Tag Archives: criminal appeals

Salinas v. Texas, No.12-246: United States Supreme Court Holds that Prosecutors Can Use Pre-Arrest Silence Against Person, And Zimmerman Jurors to Be Sequestered

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The US Supreme Court issued an important, yet highly-divided opinion for criminal law and criminal appeals attorneys today.  In Salinas v. Texas, No. 12-246, the Court held that prosecutors can use a person’s pre-arrest silence to questions posed by police as evidence of guilt.  According to the opinion, since Salinas was not in custody at the time he voluntarily accompanied the police to the station, and because he did not affirmatively invoke the 5th Amendment privilege against self incrimination, his silence to some of the questions posed by police before his arrest could be used against him at trial.

The majority opinion, which was concisely written and is a mere 12 pages long, was written by Justice Alito, and joined by Chief Justice Roberts and Justice Kennedy.  Justices Thomas and Scalia filed concurring opinions, which are equally, if not more concise than the majority opinion.  But, as is so often the case, I find the dissent most persuasive.  As noted by Justices Breyer, Ginsburg, Sotomayor, and Kagan, the mere fact that Salinas did not expressly invoke his 5th Amendment privilege is not necessarily controlling.  Rather, as noted by the dissent, the question should be whether, given all the facts and circumstances of the case, it can be inferred that the individual has invoked his or her constitutional  rights?  See Salinas, slip. op., pg. 12 (Breyer, J., dissenting).

The takeaway from this case: in order to invoke your constitutional rights, you better speak up, because remaining mute is not enough.  To read more about this case on SCOTUSblog, click here.

In Florida news, the Court in the Zimmerman trial has apparently ruled that the jurors will be sequestered.  With all the press coverage of this case, I hope that the defense team is able to somehow pick a fair and impartial jury, and avoid the mess that occurred in the John Goodman case.  See my previous post on the Goodman case here.

Maryland v. King, No. 12-207: United States Supreme Court Holds That Police Can Take DNA Swab As Part of Booking Procedure

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Well, Florida attorneys handling criminal defense and criminal appeals should know that there was a big opinion issued by the United States Supreme Court today.  In Maryland v. King, No. 12-207, the Court held that police may now take a DNA swab as part of the booking procedure of an arrest supported by probable cause.  I haven’t had a chance to read the 50-page opinion yet, but I didn’t want to delay things any further.  Here’s a link to one of the news reports, and another link to a great summary on SCOTUSblog.

Moncrieffe v. Holder, No.11-702: United States Supreme Court Holds That State Criminal Statute Penalizing The Sharing Of Small Amount Of Marijuana Does Not Constitute Aggravated Felony For Purposes Of Immigration Statute

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It’s been a really busy week, but I found a recent opinion that I wanted to pass along to all of Florida’s criminal defense and criminal appeals lawyers out there.  If you handle drug cases with potential immigration/deportation consequences (i.e, ANY drug cases where your client’s status is either unclear, or your client is clearly a noncitizen), then you should take a few minutes to read the United States Supreme Court opinion of Moncrieffe  v. Holder, No. 11-702.

The facts in the Moncrieffe opinion are pretty typical: Moncrieffe, a Jamaican citizen, came to the U.S. legally at the age of 3.  See Moncrieffe, slip op., pg. 3.  During a 2007 traffic stop, cops found 1.3 grams (yes, grams) of marijuana in his car.  Moncrieffe pled guilty to possession of marijuana with intent to distribute under Georgia law (obviously, Georgia law is a lot more harsh than Florida law).  Under a Georgia statute which allows for more lenient treatment to first time offenders, the trial court sentenced Moncrieffe to 5 years of probation, after which his record would be expunged.  See id.

Alleging that the conviction constituted an “aggravated felony” for purposes of 21 U. S. C. §841(a), punishable by up to 5 years’ imprisonment under 21 U.S.C. 841(b)(1)(D), the Government deported Moncrieffe, and the Board of Immigration Appeals affirmed.  See id at pg. 3.  After the 5th Circuit denied Moncrieffe’s petition for review, the United States Supreme Court granted cert, and reversed.

In holding that Moncrieffe’s conviction under the Georgia statute did not qualify as an “aggravated felony” under the Immigration and Nationality Act (INA), the Court rejected the Government’s application of the “categorial inquiry” or “categorial approach,” which is employed  to determine if an offense constitutes an aggravated felony.  See id , slip op., pgs. 4-19.  Although Justice Sotomayor’s majority opinion is rather technical in nature, this line pretty much sums up what the Court thinks of the Government’s argument:

“In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the categorical approach, the Government proposes a solution that largely undermines the categorical approach.  That the only cure is worse than the disease suggests the Government is simply wrong.”

Id., slip op., pg. 19.  Ouch.

Unfortunately for Moncrieffe and others in his situation, escaping aggravated felony treatment does not necessarily lead to a conclusion that deportation has been avoided.  Rather, the Court cautioned that it only means that mandatory removal has been avoided.  Rather, under 8 U.S.C. §1227(a)(2)(B)(i), a marijuana distribution offense still renders a non-citizen deportable as a “controlled substances offender.”  See id., slip op., pg. 19.  At that stage, the non-citizen will have to seek asylum, or cancellation of the removal proceedings, assuming the non-citizen meets the other criteria under 8 U.S.C. §§1158(b), 1229b(a)(1)–(2).  As acknowledged by the Court, determinations of asylum or cancellation of removal proceedings are purely discretionary with the Attorney General.

What’s the take away from this case, you ask?  Well, although the Court rejected the Government’s attempt to define possession of a small amount of marijuana as an aggravated felony, the fact remains that non-citizens convicted of even the most low level misdemeanor drug offenses, including first-time offenders who have successfully completed required probationary periods as a prerequisite to expunction, remain subject to possible deportation proceedings.

Van Poyck v. State, SC 73662: Florida Supreme Court Order Requiring Prior Counsel to Remain As Counsel And Other Developments

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Florida’s criminal defense and criminal appeals attorneys who are interested in the developments of the Van Poyck death penalty case may want to know that I found the Supreme Court order requiring Van Poyck’s prior counsel to remain on the case.  If you want to read it, click here.  In response to the Order, two of Van Poyck’s previous attorneys have just filed a Motion to Vacate and Alternative Motion for Rehearing of the Supreme Court order.

If you have time and are interested in all the procedural drama, feel free to view the other orders and motions in the case by clicking here.

Palm Beach County News: John Goodman Gets a New Trial and Lindsay Lohan Comes to Town for Rehab

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Palm Beach polo magnate John Goodman caught a lucky break- it looks like on Friday, May 3, 2013, Palm Beach Circuit Court Judge Jeffrey Colbath granted Goodman’s motion for new trial based on juror misconduct.  Criminal defense and criminal appeals lawyers know that such a break is extremely rare indeed.  To read of an article about the defense victory, click here.  To read my previous post on Goodman’s motion, click here.  I wonder if the State will prosecute the juror for perjury based on his statements given during voir dire . . .

On another note, who knew that Palm Beach County was home to a rehab facility for Hollywood’s rich and famous?   According to reports on CNN and WPTV. com, Lindsay Lohan is going to complete her rehab at the Lukens Institute in Palm Beach Gardens.  If anyone sees Lindsay around town, be sure to give her a friendly wave!

Eleventh Circuit Reverses Two Cases on Sentencing Issues: United States v. Washington, No. 11-14177, and United States v. Hamilton, No. 12-10899

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If you handle Federal criminal defense cases or criminal appeals in the Eleventh Circuit, you’re well aware that the Government almost always wins in criminal appeals.  But today, I wanted to pass along two recent opinions where the Government lost on different sentencing issues.

In United States v. Washington, No. 11-14177, the Eleventh Circuit reversed a sentence because the Government failed to adduce any evidence that there were 250 or more victims as required by the section 2B1.1(b)(2)(C) enhancement of the Sentencing Guidelines.  Since the opinion is a mere 10 pages, you should take a moment to read it.  But if you don’t have time, here’s the Cliff’s Notes version: the best part of the slip opinion comes on page 9, where Judge Jordan, writing for the Court, declined the Government’s request to allow the Government the chance to prove, on remand, that there were 250 or more victims.  In so doing, Judge Jordan emphasized that despite the fact that the Government was aware that Washington specifically objected to the number of  victims charged, the Government made no effort whatsoever to prove up the number of victims.  See Washington, No. 11-14177, slip op., pg. 9.  Because the Government failed to meet its burden of proof on the contested sentencing issue, the Eleventh remanded the case to the District Court with directions for the District Court to resentence Washington to the 2-level enhancement based on his concession on appeal that the offense involved only 10 or more victims.

Next, in United States v. Hamilton, No. 12-10899, the Court reversed two District Court orders denying Hamilton’s Motions for Modification or Reduction of Sentence filed pursuant to 18 U.S.C. § 3582 (c)(2) because the District Court’s findings as to drug quantity were insufficient.  Although the opinion is a bit longer at 25 pages, it’s still a fairly quick read, as most of the opinion is devoted to a statement of the facts and procedural history.  The slip opinion’s analysis starts at page 16.  After quickly discussing the principles which govern section 3582(c)(2) motions and two of its prior decisions addressing drug quantity, the Court pointedly noted the flaws of the District Court’s previous orders, and explained the District Court’s task on remand.

Maybe it’s just me, but based on some of the opinions I’ve read over the last few months, it seems as though the Eleventh Circuit is becoming less of a rubber stamp for the Government.  Only time will tell, but I sure hope the trend continues.

Who Knew that Miami Dade County and Orange County Have Drones??

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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!

BOLO for Sentencing Issue: Court Must Consider Correct Sentencing Scoresheet Before Imposing Sentence on YO Recipient After Being Found Guilty of VOP

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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.

Wins For the Little Guys in United States Supreme Court, Eleventh Circuit, and Florida Supreme Court

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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.

Two Palm Beach County Cases Touch on Issues of Juror Misconduct

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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.