Tuesday, August 15, 2017

Psych experts & sex offenses

Earlier this month, the D.C. Circuit reminded us how important it is in sex cases to present expert mental-health testimony in support of any mental-state (lack of intent) defense.

In United States v. Laureys, the D.C. Circuit granted habeas relief to the defendant after finding that his lawyer was ineffective for failing to present expert testimony in support of his client's fantasy defense to enticement and travel charges.

Emphasizing the "pivotal role" that psychiatry has come to play in criminal proceedings, the Court held that trial counsel unreasonably failed to secure an expert for his client's defense (relying instead on his client's own "lurid" testimony about his "deviant sex fantasies").

The Court described the expert's potential testimony in some detail; this part of the opinion is crucial reading for anyone contemplating a fantasy defense to enticement or similar charges.

Sunday, August 13, 2017

Kansas drug convictions are not career-offender/ACCA predicates

Kansas convictions for selling drugs or possessing drugs with the intent to sell no longer qualify as "controlled substance" offenses under the career-offender guideline, the felon-in-possession guideline, or the ACCA. Kansas convictions for possessing with intent to sell may also not count under the illegal-reentry guideline.

Kansas law has defined a drug "sale" to include an "offer to sell" since the 1970s. This definition of sale appeared in caselaw and the PIK instructions for a long time, and is now part of the statutory definitions applicable to drug crimes. K.S.A. 21-5701(d); K.S.A. 21-5705. (Kansas has replaced the word "sell" with the word "distribute," but we will use the word "sell" here.)

This definition of sale applies whether the defendant is charged with "sale," "offer for sale," or "possession with intent to sell." In other words, three types of drug-trafficking (or "distribution") crimes might be charged in Kansas:

1. A drug sale (defined elsewhere to include an offer to sell);

2. An offer for sale (yes, redundant of #1, but there you have it); or

3. Possessing a drug with intent to sell (defined elsewhere to include an offer to sell). This third crime might include, for instance, fraudulent offers to sell; i.e., possession, intent to offer for sale, but no intent to carry out the sale.*

Last week, in United States v. Madkins, the Tenth Circuit held that none of these crimes may serve as career-offender predicates: "[A] conviction for possession with intent to sell a controlled substance—where sale is defined to include an offer—is broader than the conduct criminalized in § 4B1.2(a) and the authoritative commentary."

What to do after Madkins: 

1. Invoke Madkins to challenge the use of any Kansas drug-sale or possession-with-intent-to-sell convictions as career-offender predicates and any other predicate that cross-references § 4B1.2.

2. Invoke Madkins to challenge the use of these convictions as ACCA predicates (remember, those predicates must also have carried a max prison term of 10 or more years).

3. Invoke Madkins to challenge the use of any Kansas possession-with-intent-to-sell conviction to enhance an unlawful-reentry sentence under § 2L1.2. But note that this guideline is trickier. The commentary defines "drug trafficking offense" in this context to include an "offer to sell" or possession with intent to distribute. Does it cover possession with intent to offer for sale? We don't know, but it's definitely a live issue after Madkins.

*As the Tenth Circuit explained: "It is not difficult to imagine a scenario where a person possesses drugs and offers to sell them without ever intending to complete the transaction. For example, the would-be seller might extend an offer to sell marijuana to a would-be buyer. But the seller never intends to hand over the marijuana—instead, he plans to rob the would-be buyer and abscond with the money. In that situation, the offer would be fraudulent, because the offeror never intended to sell."

Friday, August 11, 2017

We can't stop blogging about this case......

A week a half back we blogged about a pretty crazy case where the Johnson County Sheriff got dressed up in full tactical gear to raid.....a family who was growing some tomatoes in their basement. Uh. Whoops. Sorry?

We would be remiss if we didn't mention another little gem buried in this 100 page opinion. The search warrant (besides the husband/father buying some gardening supplies for their tomatoes) was based on some green leafy vegetation (tea) "field testing" positive for marijuana. To say the Tenth Circuit was not impressed with the "field test" used in this case would be an understatement:

The field tests used by the JCSO, which are expressly identified by the manufacturer as a preliminary tool requiring laboratory confirmation, do not meet this standard of reliability. One study found a 70% false positive rate using this field test, with positive results obtained from substances including vanilla, peppermint, ginger, eucalyptus, cinnamon leaf, basil, thyme, lemon grass, lavender, organic oregano, organic spearmint, organic clove, patchouli, ginseng, a strip of newspaper, and even air. As demonstrated by this litigation, caffeine may now be added to that list. A 70% false positive rate obviously flunks the reliability test.
Yikes! Keep this language in mind for future cases. We all have cases where a field test is important in a warrant or to support further investigation. Remember this little gem when that issue rears its head in the future.

Sunday, August 6, 2017

They risked their lives . . .

. . . to help the government, but then the government refused to help them.

The Tenth Circuit has officially endorsed two approaches when the government refuses to move for a substantial-assistance departure despite your client's best (and risky) efforts. In United States v. John Doe, the Court clarified that your client may have both constitutional and contractual remedies.

First, as the Supreme Court held in Wade v. United States, "federal district courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if . . . the refusal was based on an unconstitutional motive" or "not rationally related to any legitimate government end."

And second, because parties to a contract have a duty to deal in good faith, the district court may review the government's decision not to file the motion for good faith. This review should take a 3-step Batson-like form:

"[A] defendant must first allege that the government acted in bad faith. The government may then rebut that allegation by providing its reasons for refusing to file the motion. Assuming those reasons are at least facially plausible, we hold that a defendant is only entitled to good-faith review if he or she produces evidence giving reason to question the justification the government advanced."

Tuesday, August 1, 2017

Glove-box invasion violates Fourth Amendment

Image result for glove compartment with gun
In United States v. Painter, an unpublished decision released last week, the Ninth Circuit held that law-enforcement officers conducted an unreasonable search when they looked in a driver's glove box after he ran a red light and crashed his car. The officers claimed to be looking for the car registration. But this information was "readily available" elsewhere: by running the license plate or the publicly viewable VIN through the police computers. And even if the VIN had been obscured and the licence plate destroyed in the crash, there was no exigency to excuse the officers from getting a warrant. A solid Fourth Amendment win for the defendant and a reminder that the police may not rely on a need for evidence that they can readily find in a less intrusive manner.

Sunday, July 30, 2017

Law-abiding tea drinkers and gardeners beware . . .

So begins Judge Lucero's opinion in Harte v. Johnson County Board Comm'rs, a 100-page civil-rights plurality decision from the Tenth Circuit last week.

The Harte family (mom,* dad,* and two children) became "suspects" on a list of potential marijuana growers because dad and his two kids once visited a hydroponic garden store. Seven months after the garden-store visit, Johnson County officers claimed that two trash pulls from the Harte home yielded wet green vegetation** that allegedly field-tested positive for marijuana. The officers elected not to confirm these results with laboratory tests. In a hurry to meet their deadline for a drug-prosecution publicity stunt,*** they got a search warrant and executed a seven-man, two-plus-hours SWAT-style raid on the Harte family home.

Read about the raid for yourselves on pages 8-9 of Judge Lucero's opinion. It was intense. And the big find? Nothing but tomato plants.

The Hartes sued, asserting Fourth Amendment violations. The district court granted the defendants summary judgment on all claims, and the Hartes appealed. The Tenth Circuit sent the case back for further proceedings.

Some highlights:

Judge Lucero found the SWAT style raid to be excessive force and thus an unreasonable execution of the search warrant at pages 14-19/Lucero. Judge Phillips agreed. Page 50/Phillips. (They disagreed about whether the law on this issue is clearly established.)

Judge Phillips found insufficient allegations for the Hartes to proceed with their Franks claim that the Johnson County Officers lied about the field tests in their search-warrant affidavit. Judges Lucero and Moritz disagreed, finding that the Hartes had made the required "substantial showing" to proceed on at least part of their Franks claim. Pages 11-13/Lucero; Pages 3-8/Moritz.

Judge Phillips found that the search warrant was supported by probable cause, but that "what the deputies learned early on in the search dissipated any probable cause to continue searching." Page 34/Phillips. Judge Lucero agreed (though he would not have found probable cause in the first place). Page 14/Lucero. (Again, they disagreed about whether the law of dissipated probable cause is clearly established.) Dissipated probable cause is a theme we've seen before in the Tenth Circuit, here and here. Take heed. This is an issue not to be overlooked in suppression litigation.


*Oops, ex-CIA employees with the highest security-level clearance and no criminal records. And Mrs. Harte an attorney. Which Johnson County never bothered to find out before raiding their home.

**Double oops. Actually Teavana tea leaves.

***Judge Lucero: "This is too rich for fiction."

Thursday, July 27, 2017

Let's talk about forensic science: week 4

We will take a break this week from scaring you with science by....scaring you with science. The last thirty years have shown that DNA evidence can be used to convict (or exonerate) someone. It is now 2017. A new technology uses a DNA sample to pull "physical appearance and other information from DNA samples." The process is referred to as DNA phenotyping. Phenotyping attempts to predict likely hair color, eye color, skin, etc. That information is used to create a profile of a suspect (as in the photo below).

Then, if the police get a tip they follow around the suspected person until they can get a DNA sample (from a fork, spit, trash, etc.) and then run that DNA sample. And the odds that the sample will have a significance is high because we already know the person has the same eye color, hair color, etc. There are already examples of using this technology in Louisiana and California. For a discussion of some of the concerns related to phenotyping the ACLU has a section dedicated to the topic.