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Criminal Law Update

by Walter Reaves

The following are summaries of the some of more significant, and interesting cases decided during the last several months dealing with issues important to prisoners and those interested in post-conviction litigation.


Corroboration of Affidavit - United States v. Peck, 317 F.3d 754 (7th Cir. 2003). Police obtained a sworn statement from an informant that she had seen bundles of drugs in her boyfriend's home. Court holds the affidavit was not sufficiently detailed. Specific details about the drugs, such as where they were found, the total amount, or the frequency with which they were sold was not provided. Additionally, the informant indicated she was the defendant's girl friend, but could not give any information about him. The police also failed to corroborate information she did provide. However, the search was upheld under the good faith exception, the court finding the search warrant affidavit was not so deficient as to make reliance on it unreasonable.

Standing of Social Guest - United States v. Rhiger, 315 F.3d 1283 (10th Cir. 2003) The Tenth Circuit held that a social guest has an expectation of privacy that allows them to challenge a search. The defendant knew the owner of the home, and had stayed there several times. On the day of the search the defendant had entered the house in the owner's absence, and went in to take a nap. The court found that situation was sufficiently similar to an over night guest, which the Supreme Court has held has an expectation of privacy.

Determination of Reasonableness - In Kruelski v. Connecticut Superior Court, 316 F.3d 103 (2nd Cir. 2003), the Second Circuit attempted to establish a methodology for determining whether a lower court decision involved an unreasonable application of federal law. Court holds that a court must first decide and determine what an incorrect interpretation of the law is. The court can then determine whether the lower court decision is unreasonable. However, the court holds that approach is not required in every case.

Reasonable suspicion for traffic stop - United States v. Yousif, 308 F.3d 820 (8th Cir. 2002). The defendant exited the highway after passing a sign announcing a drug check point. The defendant had out of state plates, and there was evidence that the highway was normally used by drug couriers. However, even with those factors, court holds the defendant's actions were not sufficient to justify a stop. The sign in this case was a ruse to encourage such action. Court noted that fact, and stated that the government cannot manufacture probable cause. Court went on to hold that the subsequently obtained consent was the product of the stop, and therefore the evidence was suppressed.

Search of a Vehicle - United States v. Knight, 306 F.3d 534 (8th Cir. 2003). The state trooper stopped a commercial vehicle for a safety inspection. The stop was in part to check for the presence of alcohol, drugs, weapons, or contraband. In checking the cab of the truck, the officer saw a brief case, and opened it. Court holds that the search of the brief case was not warranted. The standard inspection procedure in such a situation does not involve searching personal belongings or opening locked or closed containers. That is inconsistent with the reason for the administrative stop, and therefore was not proper.

The Court considered an arrest inside the home in United States v. Myers, 308 F.3d 251 (3rd Cir. 2003) Officers responded to a domestic disturbance call, and entered an apartment. They did not observe any criminal activity, but did see the defendant. They ordered him to lie on the floor, and as he did he threw a bag he was carrying to the floor. He was then handcuffed, and the bag was searched after officers noticed him constantly looking at it. Court holds the arrest was not valid, because officers had not observed any criminal activity, and did not have probable cause to believe the defendant had committed a crime. Court goes on to hold that even if the arrest was valid, the search of the bag would not be a proper search incident to the arrest. By the time the bag was searched, the defendant had been immobilized, and could no longer reach the bag. As such, there was no valid reason to search the bag following the defendant's arrest.


A potentially significant habeas case is Ex parte Tuley, No. 74,364 (Tex. Crim. App. 12/18/2002), rehearing denied, No. 74,364 (Tex. Crim. App. 07/02/2003). Texas has previously recognized actual innocence as a ground for relief. Court holds in this case that a defendant is entitled to relief even if he initially pled guilty. Significantly, the court noted that the decision to plead guilty may be influenced by factors that have nothing to do with the defendant's guilt, and that should not prevent him from obtaining relief if he can establish actual innocense.

Harmless Error Review in Habeas - Herrera v. Lamaster, 301 F.3d.1192 (10th Cir. 2002). Court holds the harmless error test of Brecht v. Abramson must be applied in all habeas cases. The issue in this cases was whether that test should be applied where the lower court initially failed to properly apply the harmless error test on initial review. Court holds that the goal of the AEDPA was to limit habeas relief, and adopting a rule that was dependent on the standard applied in the lower court would contravene that purpose. The Eighth Circuit and the Third Circuit have held otherwise.

Determination of Reasonableness - McCambridge v. Hall, 303 F.3d 24 (1st Cir. 2002). Here the court attempted to determine what is required to find a state court decision unreasonable. The court notes that some increment of incorrectness is required. That increment need not be great, but it must be great enough to make the decision unreasonable in the independent, objective, judgement of the court. The court rejected holdings in prior cases which suggested that the unreasonable application standard requires the state decision to be so offensive to the existing precedent, so devoid of record support, or so arbitrary as to indicate that it is outside the universe of plausible, credible, outcomes.

The First Circuit addressed the procedure for handling a federal petition which contains both exhausted and unexhausted claims in Nowazcyk v. Warden, 299 F.3d.69 (1st Cir. 2002). The court held that generally a court should stay the proceedings instead of dismissing the petition without prejudice. By granting a stay, the court preserves the defendant's right to proceed with the exhausted claims, while at the same time avoiding the possibility that any claim would be time barred.

An interesting case involving the cause and prejudice test is Holleman v. Cotton, 301 F.3d 737 (7th Cir. 2002). The Defendant filed a Habeas Petition which was denied. He later obtained different counsel, and discovered that his trial lawyer had an actual conflict of interest, based on his prior representation of a co-defendant. The trial court was aware of this, and conducted a hearing outside the defendant's presence, of which he was unaware. The defendant raised two claims, one being that the trial court failed to make a sufficient inquiry into the conflict, and the second that the conflict prevented the lawyer from providing effective assistance. The Court found the defendant was excused for not raising the first claim earlier since it was not in the record, and neither the defendant or his lawyer knew about it. The claim failed however, because the defendant could not prove the court had any obligation to inquire further. As for the second claim, the court held there was prejudice, but no cause. There were facts and circumstances which should have put the defendant on notice to inquire further. Had the defendant done so, the claim could have been discovered and raised in the first habeas petition. Specifically, the court found the defendant could have asked the lawyer about the conflict. If he denied it, it could have been a impediment which would have excused the failure to raise claim. He did not however, and therefore he was prevented from obtaining relief.

The Supreme Court set aside two grants of relief in habeas cases in Early v. Tacker, 537 U.S. 3 (2002), and Woodford v. Viscotti, 537 U.S. 19 (2002). In the first case, the Ninth Circuit faulted the state court for not citing any federal law, much less the controlling supreme court authority. The Supreme Court held that the state court need not cite, or even be aware of, the applicable law so long as neither the reasoning, or the result of the decision contradicts precedent. The Ninth Circuit faulted the lower court for not applying the totality of the circumstances test, but the Supreme Court found the court did so, even though it did not expressly recite what it was doing. In the second case, the lower court found counsel was ineffective in the penalty phase of a capital murder trial. The court found the Ninth circuit placed too much importance on the words used in the state court decision. Even if the wording suggested the court used an improper standard, the court did apply the proper standard. Court reiterates that a state court decision cannot be overturned merely because the federal court believes it is incorrect. Instead, it must also be unreasonable.

An unusual grant of Habeas relief is Bradley v. Duncan, 315 F.3d 1091 (9th Cir. 2002). The defendant raised an entrapment defense, claiming he provided drugs to an informant out of sympathy believing he was an addict suffering from withdrawal. An entrapment instruction was given in the first trial, and a hung jury resulted. The instruction was not given in the second trial, and the defendant was convicted. Court holds that due process entitles a defendant to an instruction on any recognized defense for which there is enough evidence for a reasonable jury to find in the defendant's favor. The defendant was denied the right to due process in this case, and the court finds it was an unreasonable application of clearly established law. The court also faulted the state court for failing to conduct a proper inquiry into prejudice, or explain why it was proper in the second trial for the judge to ignore the first court's ruling.

The Fifth Circuit suffered another loss on a habeas case in Miller-El v. Cockrell, 537 U.S. 322 (2003). The defendant raised a Batson claim, and produced a substantial amount of evidence indicating the prosecutor exercised his jury challenges based on race. The court first addressed whether the court properly denied a certificate of appealability, and found the standard used by the Fifth circuit was too strict. A defendant is entitled to a COA if he makes a substantial showing of the denial of a constitutional right. A full consideration of the factual or legal basis for the claim should not be under taken, which is what the court did here. The could should apply the clear and convincing evidence test for factual determinations, and the "objectively unreasonable" determination for legal issues, only to the ultimate decision to grant or deny relief, and not whether to grant or deny a certificate of appealability. That decision is a threshold one, which hinges on the debatability of the constitutional claim, and not the ultimate resolution of that claim. The court went on the hold that the defendant made a sufficiant showing to receive a COA.


Death Penalty - The Second Circuit reversed a District Court which had held the federal death penalty act unconstitutional in United States v. Quinones, 313 F.3d 49 (2nd Cir. 2002). The lower court held the statute violated due process by eliminating the possibility of establishing innocence. The second circuit holds there is not a continuing right to establish innocence, even in light of the number of recent exonerations.

Departure based on Prior Criminal Record - United States v. Bonner, 313 F.3d 110 (2nd Cir. 2002). Defendant was convicted of making false statements to an FBI agent. The court decided to depart upward based on the non-economic harm to the victim, and based the extent of the departure in part on the defendant's prior criminal record. Court holds that was error, since the defendant's prior criminal record was taken into account in fixing his criminal history category. Court holds that in determining the extent of a departure, the court cannot consider factors that would not be permissible grounds for the initial decision to depart. The court recognized a split in authority on the issue, with the Fifth Circuit holding otherwise.

Departures for Substantial Assistance - United States v. Truman, 304 F.3d. 586 (6th Cir. 2002). Court holds that a government motion is not required for the court to depart where the defendant's assistance does not involve the prosecution or investigation of another person. The defendant in this case was convicted of stealing drugs from a drug company he worked for. He cooperated by turning over large quantities of drugs he stole, and revealing security lapses that allowed him to commit his crime. Court holds there is no reason to limit the court's discretion in granting departures in such cases. The only situation where the court cannot depart is where the defendant's cooperation involves the prosecution of another person.

Limiting Determination of Aggravated Felony - Chang v. Immigration and Naturalization Service, 307 F.3d 1185 (9th Cir. 2002). The defendant was charged with 14 counts of bank fraud. He pled guilty to one count, and it was stipulated that the loss to the victim was $600.00. The plea agreement also provided that additional restitution would be paid, in an amount some where between 20 and 40 thousand dollars. The INS determined this was an aggravated felony, since there was in excess of $10,000.00 in loss. The court held the plea agreement prevented the INS from treating the conviction as an aggravated felony. They must take the plea agreement as it stands, which stipulated the loss was approximately $600.00. The court erred by going further, and looking at the amount of restitution paid, and not the offense the defendant was convicted of.

Credit for State Sentence - Ruggiano v. Reish, 307 F.3d 121 (3rd Cir. 2002). Court held that a district court still has the authority to award a defendant credit on a federal sentence for time served on a State sentence. In this case, the defendant was convicted for a state offense, and over one year later was sentenced on a federal offense. The judge ordered the federal sentence to run concurrently, and gave credit for the time served on the state sentence. Court holds the court does have authority to grant credit for time served, and rejected the government's arguments to the contrary.

Increase to a Mandatory Minimum Sentence - In Harris v. United States, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). The Supreme Court held that an increase in the minimum sentence is a sentencing factor, which does not need to be alleged in the indictment, and found by the judge or jury beyond a reasonable doubt. The court refused to apply Apprendi to that situation, noting that a minimum sentence limits the judges discretion, whereas an increase in the maximum increases it. Therefore Apprendi is still limited to those sentencing factors which increase the maximum possible punishment.

Rule 11 Admonishments regarding Drug Amounts- The Ninth Circuit held in United States v. Minore, 292 F.3d 1109 (9th Cir. 2002), that a drug quantity allegation that increases the maximum punishment must be addressed in a Rule 11 colloquy and, the defendant must be advised that the government has to prove the amount beyond a reasonable doubt. The court construed the drug quantity in such cases as a critical element which must be addressed by the court. However, no objection was made in this case, so review was for plain error. Court finds the defendant cannot meet the burden of establishing plain error since there was over whelming evidence of the drug quantity, including the defendant's own admissions.

Notice of Departure - United States v. Williams, 291 F.3d.1180 (9th Cir. 2002). The court departed in this case by imposing consecutive sentences. The only notice received by the defendant was the government's objection to the pre-sentence report, in which it stated it would seek consecutive sentences, but did not address it in terms of a departure. Court holds the defendant must receive notice either from the court, a submission by the government, or the pre-sentence report. Where that is not done, departure is not proper.

Grouping of Unrelated Counts- In United States v. Tolbert, 306 F.3d 244 (5th Cir. 2002), the Fifth circuit recently addressed a case involving grouping of unrelated counts. The defendant was convicted of several counts of wire fraud based on a 1988 scheme involving a loan application. He also was indicted for a check writing scheme from 2001. The court refused to group the counts, determining that he would receive no additional punishment for the second offense. The Court held that section 3D1.2 (d) requires grouping of factually unrelated counts. While this may result in a windfall to a defendant, the court retains the authority to depart to address that problem.


Termination of Conspiracy - United States v. Jiminez-Recio, 123 S.Ct. 819, 154 L.Ed.2d 744 (2003). The Supreme court reversed the Ninth Circuit, and held a conspiracy does not automatically end when the government intervenes and makes its object impossible. The defendants in this case were convicted of conspiracy to possess with intent to distribute cocaine and marijuana. Officers stopped a truck and then set up a sting operation. The other defendants arrived, and one drove the truck away. The Ninth Circuit held the conspiracy ended when the government seized the truck and the drugs, and there was no evidence linking the other defendants to the conspiracy prior to that time. Court held the ninth circuit misconstrued conspiracy law, and attempted to deal with entrapment type situations. Court finds there was no reason to find the conspiracy was terminated where the other conspirators were unaware the conspiracy had been abandoned or terminated.

Scope of Immunity Agreements - United States v. McFarlane, 309 F.3d 510 (8th Cir. 2002). The defendant entered into a cooperation agreement, and pursuant to that agreement debriefed and provided information concerning his criminal activity. The Cooperation agreement provided that any information provided by the defendant could not be used to determine the applicable guideline range. The court used the information in limiting the downward departure. Court holds that an immunity agreement is limited by its terms. The guidelines provide that information can be used to determine the extent of a departure. Therefore, unless the agreement specifically restricts the use of information for that purpose, the court is free to use anything provided by the defendant in determining the amount and degree of a departure.

An Important (and bad) decision for petitioners is United States v. Ruiz, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). The issue was whether a defendant who entered a guilty plea was entitled to the disclosure of exculpatory evidence before entering the plea. The evidence in issue was impeachment evidence, as well as evidence that could support an affirmative defense. The Supreme Court held that such disclosure was not required, finding that a defendant need not know the entire prosecution's case to make a valid guilty plea. The court did limit the holding to material that is primarily impeachment material. Therefore, it appears a defendant still has the right to disclosure of any evidence which establishes actual innocence.

The Fifth Circuit addressed waivers of appeals in United States v. White, 307 F.3d 336 (5th Cir. 2002) and held that a waiver of appeal in a plea agreement will prevent a claim of ineffective assistance brought in a habeas petition. The court finds that holding a waiver does not cover such claims would render the waiver meaningless, since almost any claim could be framed as an ineffective assistance claim. This means it is important to reserve this right in any case when appeal is waived if there is a possibility such claim might be made in the future.

The Fifth Circuit found the court was required to conduct an additional inquiry into a potential conflict during trial in United States v. Newell, 315 F.3d 510 (5th Cir. 2003). At trial, it became apparent that antagonistic defenses were being presented by the defendant and co-defendant, both of whom were represented by the same attorney. The court had gone over the dangers of joint representation prior to trial, and the defendant waived his right to conflict free counsel. The court finds the trial court was under a continuing obligation to ensure that a conflict did not affect the proceedings. When it became apparent that there was a conflict during trial the court should have inquired again and obtained a waiver, disqualified counsel, or granted a severance.

Walter Reaves is an attorney specializing in post conviction litigation in Texas.

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