Crime & Federalism

If a gun is "found in the car [the defendant] was driving, the car was used to commit the drug crime, and drugs were found in the car" then there exists a "temporal and spatial relationship" between the defendant, the drugs, and the gun. United States v. Mendoza-Mesa, No. 02-4039, (8th Cir., Oct. 8, 2004) (applying U.S.S.G. § 2D1.1(b)).

This case definately satifies my, "Well, it seems like an easy issue that never should have even been argued, but if a CTA publishes an opinion on it, then it's important enough for me to read and blog about" test.

In light of Booker, when is a criminal defendant entitled to release from custody pending his appeal?

Judge Posner, for a unanimous three-judge panel, writes:

[T]here are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.

United States v. Lagiglio, No. 01 CR 348-7, at *3 (7th Cir., Oct. 8, 2004).

In an article entitled, "Pro Bono: Doing Well by Doing Good," Kristen C. Limarzi explains why taking pro bono cases is in your enlightened self-interest.

I generally think lowly of lawyers and law students who do not take pro bono cases. If all you care about is money, get an MBA, because you'll get much richer as a businessperson than as a lawyer. However, I also think lowly of such people because they obviously lack direction, motivation, and initiative.

While in law school I worked on cases filed in and argued before the U.S. Supreme Court; I've written a motion that kept a guy off death row; and I wrote a motion that persuaded a state court judge to strike down a state criminal law on first amendment grounds (during jury selection in a criminal case). Why have I done all this? Is it because I'm the shiz nit? No!

It's because anyone will hire you if you work for free. Since you're working for free, people necessarily give you interesting assignments. A paying boss will feel no guilt dropping a pile of rogs on your desk. But everyone knows that no one will answer or propound discovery for free, unless that discovery is related to a very cool case you're handling.

Thus, by not doing pro bono you tell me you're not a very upright person, or a very smart one.

H. Wayne Hays was convicted of fraud in connection with a Ponzi scheme, sentenced to 20 years imprisonment, and ordered to pay $425,705 restitution. Hays represented himself at trial, although the trial court did not give him Faretta warnings, namely Hays was not told the dangers and disadvantages of self-representation. Faretta v. California, 422 U.S. 806 (1975). Hays lost on direct appeal, but won after a collateral attack for the Faretta violation. Since the government lost the exhibits from Hays' case, it dismissed the charges. Hays had paid about 75K of the required restitution, and he wants reimbursed. What result?

The government must pay back any money it retains. However, if the government has already dispursed the cash to crime victims, the defendant has no remedy since the government was allowed to dispurse the money upon entry of a final judgment. United States v. Hays, No. 02-10203, (9th Cir., Oct. 8, 2004) (Thomas, J., for Reinhardt and Clifton, J.J.)

A sheriff in Vermont acts as a state official, and thus is not suable under section 1983. Huminski v. Corsones, 2004 WL 2248175 (2d Cir., Oct. 7, 2004) (slip opinion here).

Apropos this post comes a tip on how not to persuade.

If you want to court personnel to allow you in and near the courts to peacefully protest, do not send this letter:

As it is the policy of the State of Vermont to encourage and allow crimes to be committed against myself and my wife without fear of prosecution I must take the law into my own hands and initiate activities that will get national media attention. Vermont has ruined my life [;] perhaps my activities will prevent Vermont from doing the same to other oppressed individuals. Vermont's policies in violation of due process, equal protection of the law and a guarantee to a remedy at law have destroyed my life .... A State can not target an innocent citizen for destruction. When the smoke clears, the nation will wonder what went wrong in Vermont. Hopefully that inquiry will prevent you from doing this to someone else. [Huminski details his dissatisfaction with particular actions of the office of the Vermont Attorney General.]

.... You might achieve [the] goal of driving us out of Vermont (or killing us) and attaining my destruction, [but] not without a fight. The conflict has begun. My demise won't be in vain. There will be national publicity and an outside investigation.

It[']s odd how people like you wonder why citizens form militias and arm themselves[;] now I know why. The government does target people for purely political reasons and the criminal justice system and law enforcement is a tool used by corrupt agencies to kill innocent civilians. For twenty months I have given the State multiple opportunities to prove that my assumptions
in this letter were wrong[;] now it[']s time for action as the State has revealed that corrupt policies are in place at the highest levels.... No justice. No fairness. No constitution. No rights. Someone will be held accountable.

Since I try to write for my readers, I'd like to hear from you. What do you want to see more - or less - of? Lately I've been spending most of my blogging time digesting cases. Is this something you enjoy? Would you like me to link to more criminal-law related news story?

Please email me to make any suggestions or criticisms.

Ulises Ariel Lopez, Israel Gonzales-Lara, Felix Baccam were in methamphetamine conspiracy. Lopez was the supplier, Lara was the middleman, and Baccam was the street pusher. At one point Pusher was pushing 3 pounds of meth a week. One of Pusher's cutomers, Joe Hernadez, was busted for simple possession of meth.

Hernadez flipped on Pusher, told the police where the drug buys went down, and set up a fake buy so that the police could arrest him.

The police went to the drug buy location. Supplier and Middleman went to deliver drugs to Pusher. Pusher and Supplier took the drugs and left to meet Hernandez. Pusher was driving his own car.

The police stopped Pusher's car, arrested Pusher and Supplier, and searched the car. They found drugs and a .380 under Pusher's seat. Pusher, Middleman, and Supplier were all convicted or pled guilty to drug and conspiracy offenses.

At sentencing, Middleman was given a two-level sentencing enhancement under § 2D1.1(b)(1), which covers guns used in drug-related offenses. A unanimous three-judge panel (Loken, C.J., Bright, Smith, J.J.) reversed this enhancement. In a per curiam opinion, the panel wrote:

In United States v. Atkins, we upheld a § 2D1.1(b)(1) sentencing enhancement when the defendant knew his co-conspirator possessed a gun and knew, based on past experience, that his co-conspirator brought the gun along when delivering drugs. In contrast, when police arrested [Pusher] and [Supplier], [Middleman] was across town in a hotel room. Police found the gun below the driver’s seat in [Pusher's] vehicle. The Government did not present any evidence that showed [Middleman] knew [Pusher] owned a gun. Nor did the Government present evidence that showed [Middleman] knew [Pusher] carried a gun when he delivered drugs to Hernandez. To support [Middleman's] sentence, the Government argues that we can infer a defendant’s knowledge based solely on the nature of drug dealing. Cf. United States v. Claxton. We disagree. Under the Guidelines, a two-level firearm enhancement can only be applied if the Government shows that the defendant knew or should have known based on specific past experiences with the coconspirator that the co-conspirator possessed a gun and used it during drug deals. See United States v. Highsmith. To hold otherwise would unfairly penalize defendants for conduct over which they have no control. Here the Government failed to present any evidence showing that Lara knew or should have known that Baccam possessed a firearm. Thus, we unequivocally vacate the two-level firearm enhancement for Lara and remand for resentencing.

I'm going to have to get out my Guidlines to figure out how Lopez squares with this one.

I notice that quite a few people have reached my blog through (http://library.lb9.circ9.dcn/index.htm). Would someone please email me the site that URL references?

Does a person who obtained a hotel room under false pretenses have authority over, or an expectation of privacy in, that hotel room?  Although the panel says, "Yes, until..." in dicta it suggests, "No way."

The Ninth Circuit has added to our understanding of the Fourth Amendment in United States v. Cunag, No. 03-50067, (9th Cir., Oct. 7, 2004).  Cunag   distinguished Stoner v. California, 376 U.S. 483 (1964) [Ed's note: Yes, I realize that Stoner is not cited in the decision and the panel pretends that the hotel manager did not consent to a search].  In Stoner, the Court found a hotel clerk's consenting to a search of a hotel guest's room unconstitutional because nothing "in the record to indicate[d] that the police had [a good faith basis] to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner's room."  Id. at 489.

Anyhow, in Cunag, Judge Trott wrote wrote for the panel:

Peter Cunag entered a conditional guilty plea to the charge of possessing stolen mail, reserving the right to appeal the denial of his pre-trial motion to suppress evidence. In that motion, Cunag sought to suppress stolen mail seized by police officers from a hotel room which Cunag had procured by registering under a false name, using a dead woman’s credit card, and providing admittedly forged authorization and identification documents. The record, which conclusively demonstrates that the hotel manager had taken affirmative steps to repossess the room and to reassert control over it before calling the police and confronting the appellant, fully supports the district court’s findings and conclusions that (1) Cunag was not lawfully present in the hotel room because he procured it through fraud, and (2) that he had no reasonable expectation of privacy in it, either objective or subjective, at the time of the disputed search. Thus, we affirm the district court’s denial of his motion to suppress the incriminating evidence of his crime.

Slip op at 2-3.

The rule in the Ninth Circuit is that a patron who obtains a hotel room by trick or device still has an expectation of privacy in the hotel room. 

Nevertheless, in the Ninth Circuit, the rule is that even if the occupant of a hotel room has procured that room by fraud, the occupant’s protected Fourth Amendment expectation of privacy is not finally extinguished until the hotel justifiably takes affirmative steps to repossess the room.

Bautista held that whether a hotel patron retains a reasonable expectation of privacy in his hotel room depends on whether or not management had justifiably terminated [the patron’s] control of the room through private acts of dominion. This general rule had been previously applied in our Circuit in United States v. Huffines; United States v. Haddad, and United State v. Poulsen.  As summed up in Dorais, a justifiable affirmative act of repossession by the lessor is the factor that finally obliterates any cognizable expectation of privacy a lessee might have.

Here, hotel management took several steps to exclude Cunag from his hotel room, including invalidating his hotel key and calling the police.  Id. at 15 ("Locking out Cunag and the room’s occupants in conjunction with registering a crime report with the police certainly satisfies the Dorais test.")  Thus, whatever privacy interest Cunag had in the room was extinguished, and the entry was lawful.

However, the panel obviously does not like Dorais rule, since it buries the rule on page 15 of the slip opinion.  Pages 12-14 imply that a hotel patron who unlawfully obtains possession of a hotel room has no expectation of privacy in the room.

In Rakas, the Supreme Court elucidated the principle that when an individual is not legitimately on the premises, he does not enjoy the protection afforded by the Fourth Amendment. The Court noted, [w]e would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one’s expectation of privacy, but it cannot be deemed controlling.

To illustrate this principle, the Court used the example of a burglar plying his trade in a summer cabin during the off season. The Court noted that while the burglar might not expect to be discovered, he does not enjoy a Fourth Amendment privacy interest in the summer cabin. Though Cunag argues to the contrary, that example resonates with this case.

However, the panel did not analyze Cunag under the Rakas rule.  Instead, it applied Dorias.  Thus, the Rakas discussion is clearly dicta, though it's core holding is something that the Ninth Circuit would be wise to adopt.

I can't think of any good reason why someone who obtains a hotel room through fraud (re: steals the hotel room) has an expectation of privacy in that room.  Can you?