Wednesday, October 22, 2014

Cert. Grant: Chappell v. Ayala: Harmless Error and Habeas Corpus

When the Ninth Circuit grants habeas relief over a dissent, as it did in Ayala v. Wong:
it is likely that the Supreme Court will review the decision. And so it is in this case, now renamed Chappell v. Ayala.
Like many habeas cert. grants, the issue presented (at least the first issue) involves the reach of 28 U.S.C. 2254. It asks whether a lower court's harmless-beyond-a-reasonable-doubt finding is an "adjudication on the merits" under 2254(d). The Ninth Circuit said no, the theory being that the lower court did not reach the actual merits of the underlying constitutional claim. That might be true, but it is also true that, in reaching harmless-error review, the lower courts assumed a constitutional violation (in this case, a Batson violation where the district court held an ex parte hearing to ascertain the government's reasons for striking certain jurors).
This leads to the second issue, spotted by the Court itself, asking whether the Ninth Circuit properly applied harmless error review, as articulated in Brecht v. Abrahamson, 507 U.S. 619 (1993). Now, the analysis used to resolve this question could be extremely important (perhaps more so than the answer). Any discussion of harmless error review, as a concept, would apply beyond the narrow facts of this case (again, a Batson error). With that said, if the government claims harmless error in one of your cases, pay particular attention to this case. The decision could affect the outcome in your case.

Cert. Grant: Facial Challenges to the Fourth Amendment: Hotel Records In The Crosshairs

In December 2013, the Ninth Circuit, sitting en banc, issued this decision in Patel v. City of Los Angeles:
over the dissent of 4 Judges.
The decision does two things: it not only allows a facial challenge to a municipal code provision, premised on a Fourth Amendment violation, but accepts the challenge and strikes down the provision as unconstitutional. The Los Angeles municipal code provision at issue required hotel operators to collect and record guest information (name, address, number of guests, vehicle information, date and time of arrival/departure, room number, rate charged, amount, method of payment). No one had a problem with this. But the provision went further and allowed any police officer to inspect these records "at a time and in a manner that minimizes any interference with the operation of the business."  An inspection was done without a warrant and without consent. This, said the Ninth Circuit, was an unconstitutional search in every case. The municipal code provision was unconstitutional, and the Ninth struck it down.

The Supreme Court has agreed to review the Ninth Circuit's decision in two respects.

First, the Court will determine the propriety of facial challenges under the Fourth Amendment. According to the dissent in Patel, the Supreme Court rejected such facial challenges over 40 years ago in Sibron v. New York, 392 U.S. 40 (1968). According to the City's petition for a writ of certiorari, at least one Circuit (the Sixth), has held that facial challenges under the Fourth Amendment are unavailable (Warshak v. United States, 532 F.3d 521 (6th Cir. 2008)) (the petition is available here:
This leads to this practice tip: if you are raising a constitutional issue, and that issue is (or appears to be) a facial challenge to a statute, always (always) include an as-applied challenge as well.

Assuming the answer to this first question does not moot the second, the Court will address the municipal code provision head on to determine whether the hotel operators have an expectation of privacy in guest information (is it a "search" under the Fourth Amendment), and, if so, whether the statute fails because it does not provide for pre-compliance judicial review prior to an officer's inspection.
This is where it gets complicated. For one, the information sought is not about the hotel operators, but about its guests. Yet, it is the hotel, and not the guests, that claims an expectation of privacy. Beyond that, the City tells us, in its cert. petition, that there are 70 similar ordinances, none of which require pre-compliance judicial review, and that the ordinances exist to combat nuisances such as prostitution, gambling, and even terrorism (no -- not that word). In other words, this type of ordinance is reasonable, and that is all that the Fourth Amendment requires. But, is that true? And do these purported justifications move the search (if there is one) from the administrative realm to the criminal realm (and thus requiring some sort of suspicion?) If still an administrative search, why is it unreasonable to require pre-compliance judicial review?
If you have a case involving an analogous municipal code provision, stay tuned.

Tuesday, October 21, 2014

Who gets the guns?

The client, just convicted of being a felon-in-possession, asks to get his gun back. Instead, part of the plea petition probably included a forfeiture to any claim on the weapon by the defendant. The US Supreme Court just granted cert yesterday in Henderson v. United States on this question,


"The general rule is that seized property, other than contraband, should be returned to its rightful owner once * * * criminal proceedings have terminated.” . . . .18 U.S.C. § 922(g) makes it “unlawful for any person * * * who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year * * * to * * * possess * * * any

The question presented is whether such a conviction prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer noncontraband firearms to an unrelated third party to whom the defendant has sold all his property interests or (2) sell the firearms for the benefit of the defendant. The Second, Fifth, and Seventh Circuits and the Montana Supreme Court all allow lower courts to order such transfers or sales; the Third, Sixth, Eighth and Eleventh Circuits, by contrast, bar them.
(internal citations omitted)

Notice the Tenth has not written on the issue. Argument is not yet scheduled.

Monday, October 20, 2014

From Dan Hansmeier, AFPD in the KCK office, more cert.grant updates: 

Rodriguez v. United States (No. 13-9972)

Whether an officer may extend an already completed traffic stop for a canine sniff without reasonable suspicion or other lawful justification?
And most of us thought that it would be frivolous to challenge a dog sniff of an automobile. Apparently not. An interesting issue raised by the Nebraska FPD. Cert. was granted just this month. 

Ohio v. Clark (No. 13-1352)

(1) Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause. 

It is rumored that Ohio will change its motto to The Confrontation Clause State. Everyone should read the lower court opinion in this case. 

Mellouili v. Holder (13-1034)

Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act?

If you just understood what you read, you are doing better than me. But the interesting thing about this case is that it involves a prior Kansas conviction. And, when we get an opinion, there may be some discussion about everyone's favorite tool of statutory interpretation: the categorical approach. Here is the underlying opinion.

Wednesday, October 15, 2014

Cert Grant: Johnson v. United States

Continuing with the series on cert grants for the October 2014 term, Johnson v. United States presents a short but complex issue: "Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act."

This is another in a long line of cases struggling to define violent crimes. ACCA requires three prior, separate and distinct (see note below) convictions for certain enumerated offenses -- burglary, arson, extortion, or use explosives -- or a felony "that presents a serious potential risk of injury to another," also known as the residual clause. The question is whether possession of a short-barreled shotgun falls within this residual clause.  

Begay v. US, which held that DUI is not a violent crime, directs that crimes falling within the residual clause must be roughly similar to the enumerated crimes, both in kind and in degree of risk pose. The crime should be "purposeful,  violent and aggressive conduct." The Government and Amicus present empirical data about the dangerous nature of crimes committed with short-barrreled shotguns, but Johnson counters with the elements of the crime -- this is mere possession, not criminal use.  

Scheduled for argument November 5. The Minnesota FPD is counsel for Mr. Johnson.

Note: the Tenth Circuit law on "separate and distinct" crimes is particularly bad. In  US v. Tisdale, the defendant's prior convictions, used to support ACCA, included three burglary convictions. He broke into a mall one evening, and successively burglarized two businesses and a post office. Same night, one case with three counts, sentenced together, but for ACCA purposes, these were three "separate and distinct" convictions that qualified Tisdale for a 15-year mandatory minimum sentence.

Wednesday, October 8, 2014

Cert Grants: Juror Misconduct

Continuing with the series on cases pending before SCOTUS this term, the question is whether a juror can testify about another juror's misconduct in deliberations that revealed dishonesty during voir dire. 

Sturgis Motorcycle Rally is where this case begins. A truck clipped Petitioner as he rode his motorcycle, resulting in amputation of his leg. He sued. During voir dire, one juror (who later became the foreperson) failed to reveal that her daughter had been at fault in a fatal vehicle accident. She had several opportunities to disclose this; other potential jurors related similar incidents and were excused.

Not until deliberations did this juror relay her experience and that, had they been sued, it would have "ruined her life." The jury returned a verdict in favor of the respondent. Shortly after, another juror contacted plaintiff counsel and revealed what had happened. After getting an affidavit, the motorcyclist's attorney moved for a new trial based on juror dishonesty during voir dire. That was denied.

Here is the issue: FRE 606(b) will not allow "inquiry into the validity of the verdict" coming from jury deliberations. Those are sacrosanct. But a party is entitled to a new trial where a juror failed to honestly answer a material question during voir dire, and an honest answer would have provided a valid for-cause challenge. In this instance, though, the evidence of juror dishonesty in voir dire came to light only during jury deliberations. Thus, the question, 
Whether Federal Rule of Evidence 606(b) permits a
party moving for a new trial based on juror dishonesty
during voir dire to introduce juror testimony about
statements made during deliberations that tend to show
the alleged dishonesty. 
Rule 606(b) does have an exception for an outside influence that was improperly brought to bear on a juror. The foreperson's confession not only revealed that she was dishonest during voir dire, but may have improperly influenced the jury. Both the district court and the appellate court disallowed the affidavit based on FRE 606(b).

The case is Warger v. Shauers. Argument is slated for October 8. 

Thursday, October 2, 2014

And, again, Mr. Holder on 851 policy

Another directive was handed down from outgoing AG Eric Holder on September 24, entitled Guidance Regarding Section 851 Enhancements in Plea Negotiations.  Essentially, it says one more time that 851 enhancements are not to be used in plea negotiations to force a guilty plea. The highlights from the one-page memo,

  • that in all cases, prosecutors must individually evaluate the unique facts and circumstances and select charges and seek sentences that are fair and proportional based upon this individualized assessment. 
  • § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty.
  • Whether a defendant is pleading guilty is not one of the    factors enu­merated in the 851 charging policy.  
  • practice of routinely prem­ising the decision to file an § 85 1  enhancement solely on whether a defendant is entering a guilty plea . . . is inappropriate and inconsistent with the spirit of the  policy.

Here is the "I meant what I said the first time" memo. And here is what he said the first time, the August 12, 2013, memo.