Entries categorized "Noteworthy Criminal Law Opinions"

Consent search

The defendant lives at home with his mother, but he has his own room.  Police go to the defendant's home, place him in handcuffs, and put him in the back seat of a police car.  The police then ask the defendant's mother for permission to search his room.  The mother consents and police find inculpatory evidence.  Is the search constitutional?

A unanimous three-judge panel said, "Yes."  In United States v. Jones, No. 01-1215 (2d Cir., Oct. 5, 2004), Judge Cardamone, joined by Judges Newman and Katzmann, wrote:

The defendant concedes that his mother had permission to access his room, and had actually entered it a number of times to clean it. Further, it is uncontested that there was no lock on his bedroom door, which was a room located within his mother's bedroom. That proof demonstrates that she had access and permission to enter, and could indeed enter at any time. Under the law of this Circuit, this evidence is sufficient to show that the mother had actual authority to consent to the search of her son's bedroom. See Koch v. Town of Brattleboro, 287 F.3d 162, 167 (2d Cir. 2002).

Once a person gives authority, to be shared in common, with another over certain premises, any hope that a search of those premises based on that other person's consent will be found a Fourth Amendment violation is slim at best. The reason for this conclusion is because the Supreme Court made clear that common authority rests on the notion that any co-inhabitant can permit inspection in his/her own right and others, including defendant, have assumed the risk that such permission to search might occur. Matlock, 415 U.S. at 171 n.7. Accordingly, the defendant's decision to permit his mother joint access to his bedroom limits his reasonable expectation of privacy in that room, and to that extent also limits his Fourth Amendment protection in the effects seized there. See id.

Moreover, the case law does not support Lewis' claim that the officers should have asked his permission to search since he was outside of the apartment in handcuffs in a police car at the time of the search. Supreme Court and Second Circuit law establishes that in situations where the defendant is present -- and even in situations where the defendant has already refused consent -- the officers may nevertheless rely on consent from a third party who has the requisite authority to give it. See, e.g., Matlock, 415 U.S. at 166, 171 (warrantless search may be justified based on the consent of a third party with proper authority even when the arrested defendant was on the scene and available to give consent); United States v. Davis, 967 F.2d 84, 86-88 (2d Cir. 1992) (third-party consent justified a search and seizure despite fact that defendant was in the custody of police in squad car outside and was never asked to consent); see also United States v. Sumlin, 567 F.2d 684, 687-88 (6th Cir. 1977) (holding that since Matlock did not rely on the defendant's absence in order to justify third-party consent, but instead relied on an assumption of risk analysis, it was not constitutionally significant that defendant refused to consent to the search before the officers requested and were given third-party consent). In consequence, the search of Lewis' bedroom while he was present outside does not violate his Fourth Amendment rights.

Slip opinion at 11-13 (emphasis added).


Consent to cell phone monitoring

Does a suspect implicity consent to having his conversations monitored when he uses an illegally obtained cellular telephone?

In United States v. Staves, the Ninth Circuit answered, "No." In an opinion joined by Judges Hansen and Fletcher, Judge Fletcher wrote:

Title III permits interception of a conversation if one of the parties to the communication has given prior consent to such interception. Generally, consent must be express, but consent may be implied where there are surrounding circumstances indicating that the defendant knowingly agreed to the surveillance. Staves argues that use of a cloned cellphone constitutes consent to its monitoring because monitoring is a foreseeable harm of using an illegal cellphone. Assuming arguendo that this is true, foreseeability of monitoring is insufficient to infer consent. Rather, the circumstances must indicate that a party to the communication knew that interception was likely and agreed to the monitoring. [In Van Poyck, the court inferred] knowing agreement to monitoring of prison telephone conversations where the defendant received several warnings of the monitoring.

The necessity requirement exists in order to limit the use of wiretaps. Congress was concerned lest overzealous law enforcement officers rely excessively upon such techniques in lieu of less intrusive investigative procedures. Therefore, Title III was enacted to address the grave threat to the privacy of every American that is posed by modern techniques of electronic surveillance. Title III protects a privacy right to be free of intrusive monitoring by law enforcement officials, balancing that right with legitimate law enforcement needs. Permitting wiretapping of cloned cellphones without a court order would undermine Title III’s protections because law enforcement officials could supply informants with monitored, cloned cellphones rather than undertaking the preliminary investigation and providing
the detailed application required to receive a wiretap order.

Accordingly, we conclude that Title III prohibits monitoring cloned cellphones without a court order.

United States v. Staves (No. 03-50300) at *13177-8 (9th Cir., Sept. 9, 2004) (internal citations and quotation marks omitted, emphasis added).


Mens Rea in Pseudoephedrine Cases

What is the mens rea requirement for the crime of possessing and distributing pseudoephedrine knowing or having "reasonable cause to believe" that it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2)?

Title 21 U.S.C. § 841(c)(2) makes it a crime to "possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance." Pseudoephedrine, which is found is many over-the-counter medications, can be used to manufacture methamphetamine.

Manjit Kaur owned a convenience store in Washington. One day a DEA informant purchased a large amount of over-the-counter products containing pseudoephedrine. Although the court doesn't state all of the facts, we assume that there were facts and circumstances surrounding the sale that would have tipped Ms. Kaur off that the purchaser was going to use the items to make drugs.

Thus, the DEA obtained a search warrant based on that sale. While searing Ms. Kaur's store, federal agents found several other products containing pseudoephedrine. (No shit. She ran a convenience store.) But since Ms. Kaur had already sold the pseudoephedrine that she (allegedly) knew would be used to make meth, they charged her with an additional count of violating Section 841. Do you get that?

The government now has her on two counts. Count 2 is based solely on Ms. Kaur's having inventory. Since she sold OTC medication, the government alleged that all the other OTC medication she "possessed" was in violation of Section 841.

At Ms. Kaur's trial, the trial court instructed the jury as follows:

Reasonable cause to believe means to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person knowing the same facts, to reasonably conclude that the pseudoephedrine would be used to manufacture a controlled substance.

Kaur's objected to the instruction since she thought that mere negligence would be all a jury would have to find in order to convict.

In an opinion joined by Judges Warren J. Ferguson, and Consuelo M. Callahan, Judge Harry Pregerson wrote:

We are not persuaded by Ms. Kaur’s contention that Instruction 17 improperly imposed a reasonable person standard rather than a subjective standard. The district court’s formulation does not replace a subjective standard with an objective reasonable person standard. Rather, consistent with the text of the statute, the instruction incorporates both subjective and objective considerations. The district court instructed the jury to evaluate whether Ms. Kaur knew or had reasonable cause to believe that the pseudoephedrine she possessed and distributed would be used to manufacture methamphetamine. That is a subjective inquiry. The district court then offered the jury guidance as to the meaning of reasonable cause to believe to explain how this alternative mens rea differed from (the more easily understood) actual knowledge. The district court explained that this standard incorporates both subjective and objective elements: Ms. Kaur had reasonable cause to believe if she actually knew facts that would alert a reasonable person that the pseudoephedrine would be used to make methamphetamine. The district court’s instruction simply elaborated upon the statutory language: the government had to prove that Ms. Kaur either knew, or knew facts that would have made a reasonable person aware, that the pseudoephedrine would be used to make methamphetamine. Thus, the district court did not abuse its discretion in formulating Instruction 17.6.

United States v. Kaur, No. 03-30306, slip op. at 13282 (9th Cir., Sept. 10, 2004).

As a matter of federal criminal common law, this case does not have much to offer. The jury instruction seemed reasonable to me. But if I had clients in the convenience store business, I would tell them to take heed.

Selling OTC-drugs to a shady looking fellow would only be one-count in a multiple-count indictment. This is because the DEA could use that sale as a predicate to showing all of the other OTC-drugs in your store are being "possessed" in violation of federal law. A store owner would find himself is a lot of trouble, very quickly.

Moreover, the government could also bring a civil forfeiture proceeding against the store owner. Thus, the corner-store owner could find himself being treated like a drug dealer. Scary, 'eh?


Co-conspirators' Statements Inadmissible in CA2

Crawford is being felt in the Circuits.  The Second Circuit held on Tuesday that co-conspirator statements are inadmissible against a criminal defendant unless the defendant had a prior opportunity to cross-examine the speakerUnited States v. Bruno, 2004 WL 2039421    (2d Cir., Sept. 14, 2004).  Judge Miner, for Judges Katzmann and Tsoucalas, wrote:

We turn first to whether the District Court’s admission of two hearsay statements — a plea allocution and [ ] grand jury testimony — violated the Confrontation Clause of the Sixth Amendment in light of the Supreme Court’s recent decision in Crawford v. Washington. There, the Court held that the Confrontation Clause was violated when the state trial court admitted a statement made by the defendant’s wife to the police, notwithstanding the wife’s unavailability to testify at trial due to the invocation of the marital privilege. Specifically, the Court held that testimonial statements of witnesses absent from trial are to be admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. In reaching this conclusion, the Court identified earlier lower federal court cases where testimonial statements had been admitted in contravention of its interpretation of the Confrontation Clause, including cases where a plea allocution showed the existence of a conspiracy, and cases involving the admission of grand jury testimony.

***
[T]he District Court plainly erred in admitting into evidence testimonial hearsay statements that the Crawford Court expressly stated are not admissible under the Confrontation Clause. We hasten to observe that the able District Court made its rulings before the Supreme Court issued Crawford, and that only a soothsayer could have known with any certainty that the Court would change the legal landscape. That these statements were clearly admissible under our interpretation of the Confrontation Clause at the time they were admitted is of no moment, however, given that an error is plain if it is clear or obvious at the time of appellate consideration.

Id. at *7-9.


Marital Privilege & Confidential Communications

Is inculpatory information that a wife writes in a letter to her husband covered under the marital privilege?  If husband leaves the letter on a desk that his children have access to, has husband waived that privilege?

James and Louise Montgomery (husband and wife) formed a real estate managment company in Oregon.  The company was created to rent out peoples' vacation homes.  For a 25-30% commission, husband and wife would make their best efforts to rent out these homes and to keep them in good repair.  They would periodically provide a full and detailed accounting to the property owners.

In 1992, Mary Lou O’Connor, husband's sister, came to work at the company.  Wife and sister-in-law could not work together.  Consequently, wife quit working for the company and sister-in-law took over the financial books and made capital contributions to the company.

When wife returns to the company two years later, she notices some shady dealings.  Sister-in-law seems to be diverting money from corporate accounts receivable for her own use.  Sister-in-law would also not report overnight rentals to the property owners.

Wife wrote husband a letter saying [I'm ad-libbing here since the court did append the full letter]: 

Dear Jimmy, I will not "be part of a dishonest operation."  Nor will I prepare any statements until your "sister stops cheating."  I will also not bring further business to the company because they "will probably be cheated."  “If you can’t stop [O’Connor] or if we can’t stop her together I am going to write to her or talk to her.” Love, Louise

After some property owners become hip to the scheme, the IRS agents searched the Mongomery's home, where they found the letter.  Husband, wife, and sister were indicted on conspiracy and mail fraud charges.

Wife flipped on husband and sister-in-law, who were then convicted of mail fraud and conspiracy.  All charges against wife were dismissed in exchange for her testifying.

At trial, the court admitted the letter from wife to husband into evidence.  Judges William A. Fletcher and Richard C. Tallman joined Judge Alfred T. Goodwin's opinion, reversing husband's conviction.

Judge Goodwin first reminded us of the relevant privileges that apply to married couples:

Federal Rule of Evidence 501 provides that “the privilege of a witness [or] person . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” The Supreme Court has recognized two privileges that arise from the marital relationship. The first permits a witness to refuse to testify against his or her spouse.  [This is the testimonial privilege].  The witness spouse alone holds the privilege and may choose to waive it. Id. [ ].

The second privilege, called the marital communications privilege, provides that “[c]ommunications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged . . . .” The privilege (1) extends to words and acts intended to be a communication; (2) requires a valid marriage; and (3) applies only to confidential communications, i.e., those not made in the presence of, or likely to be overheard by, third parties. Recognizing that the privilege obstructs the truthseeking process, we have construed it narrowly, particularly in criminal proceedings, because of society’s strong interest in the administration of justice. The government bears the burden of showing that the communication was not intended to be confidential.

Slip opinion at *6-7 (citations and quotation marks omitted - here and below) (emphasis added).

Since factors 1 & 2 were obviously met, the court asked whether the letter was a "confidential communication."  The court wrote that "the nature of the communication — a handwritten letter from a wife to a husband that was left on the kitchen counter of the couple’s home — is of the kind likely to be confidential.”  Id. at *8.  The court also found that husband's leaving the letter on the kitchen counter did not waive the privilege.  At least, the government - who has the burden of establishing waiver - did not prove that it did.

The court wrote that unlike the testimonial privilege, the marital privilege could be invoked by either party: Either spouse could prevent the other from disclosing the information.  Wrote Judge Goodwin:

[W]e hold that either spouse may assert the privilege to prevent testimony regarding communications between spouses. Vesting the privilege in both spouses recognizes that allowing the communicating spouse to disclose one side of a conversation would eviscerate the privilege. As one treatise has observed, permitting each spouse to testify as to his or her own statements invites attempts to prove circumstantially the statements of one spouse by proof of what the other had said.

Id. at *11-12.

While the court recognized that “the marital communications privilege does not apply to statements made in furtherance of joint criminal activity,” id. at *13, the government failed to establish that wife was involved in husband's criminal activity.

The letter should not have been admitted into evidence.  Moreover, admitting it was reversible error:

In sum, the district court erred in admitting Mrs. Montgomery’s letter and her testimony recounting her conversations with Montgomery. Because the government conceded at oral argument that any error was prejudicial, we reverse Montgomery’s convictions.

Id. at *14.

Overall, the case is a great primer on marital privilege.  It recognizes the sanctity of marriage.  A spouse is also a counsellor.  It is a good thing for men and women to have someone to whom they can bear their souls.


Hearsay in the Ninth Circuit

Is a state court judgment determing property ownership admissible hearsay in a tax evasion prosecution?

In United States v. Boulware, No. 02-10338 (9th Cir., Sept. 14, 2004) the court held that a state court judment adjudicating property rights was admissible FRE 803(15) (Statements in documents affecting an interest in property).

Michael H. Boulware was the sole shareholder of Hawaiian Isles Enterprises (HIE).  In 1989 the company was reporting gross recipts of $55 million.  Mr. Boulware was married to Mal Sun Boulware.  He also kept a girlfriend on the side - Jin Sook Lee.

In 1987 Mr. Boulware asked Ms. Boulware for a divorce.  Since Hawaii is a community property state, Mrs. Boulware was entitled to 1/2 of HIE.  Mrs. Boulware said that she would force Mr. Boulware to liqudiate HIE unless he paid her several million dollars.  Since he was not liquid enough to meet her demands, he said that it would take some time.  Mrs. Boulware said she would wait.

Mr. Boulware then started transferring millions of dollars from HIW to Ms. Lee.  Mr. Boulware's attorney told him that if he transferred the money from HIE to Lee, that it would not be taxable income to him.

By 1994, Lee held enough cash for Mr. Boulware to allow him to pay off his wife.  However, Lee refused to give him the money.  Finally, after litigation, a state court jury found that Lee was holding the money ulawfully: The money belonged to HIE.

Sometime in 1999 or 2000, the government filed criminal tax evasion charges against Mr. Boulware.  The government alleged that he had been siphoning off money from HIE to Lee.  Lee would then give the money to Mr. Boulware.  In other words, Mr. Boulware would indirectly dividents from from HIE withoiut paying income tax. 

At trial, Mr. Boulware tried to introduce the state court judgment into evidence.  His theory was clear: The money belonged to HIE, and this verdict proves it.  Or, at the very least, it shows that Lee was holding the money for the company in trust.  In sum, I did not obtain dividends from HIE, and thus, I did not underreport my income tax liability.

Unsurprisingly, the government fought against admitting this evidence.  The District Court agreed.  Mr. Boulware was convicted.

Judge Thomas joined Judge Tashima's 2-1 decision:

[Is the state court judment relevant] The district court excluded the state court judgment pursuant to Federal Rules of Evidence 401 and 402, stating that whether the transfers to Lee were gifts “is not relevant to the ultimate issues of the case.” This ruling was erroneous. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Whether Boulware transferred the HIE funds to Lee for personal purposes or for her to hold in trust for HIE was a key issue in the case. That he pursued a successful litigation against Lee to force her to return the monies to HIE has some tendency to make it more likely that he gave the monies to her to hold in trust. Indeed, the government conceded at oral argument that the state court judgment is relevant.

(2) Hearsay Hearsay is “a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). A prior judgment is therefore hearsay to the extent that it is offered to prove the truth of the matters asserted in the judgment. A prior judgment is not hearsay, however, to the extent that it is offered as legally operative verbal conduct that determined the rights and duties of the parties. See United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004). Although Rule 803 contains exceptions for certain kinds of judgments, such as judgments of previous felony convictions and judgments as to personal, family, or general history or boundaries, see Fed. R. Evid. 803(22) & (23), civil judgments do not fit comfortably into any hearsay exception.

Under the plain meaning of Rule 803(15), hearsay statements are admissible if they are contained within a document that affects an interest in property, if the statements are relevant to the purport of the document, and if dealings with the property since the document was made have not been inconsistent with the truth of the statements. See Silverstein v. Chase, 260 F.3d 142, 149 (2d Cir. 2001). Here, the state court judgment meets each of these requirements. The judgment affected an interest in property by declaring HIE to be the legal owner of the funds and by requiring Lee to return them to HIE, and the statements are relevant to the purport of the document. In addition, there is no indication that the parties acted inconsistently with the judgment; it was undisputed that the judgment was valid and could be authenticated.

Slip opinon at 15-20.

Judge Silverman wrote a 1-page dissent.

In my view, the district court did not abuse its discretion in refusing to admit the state court judgment into evidence. The judgment does no more than establish that, as between Jin Sook Lee and Hawaiian Isles Enterprises, the money belonged to Hawaiian Isles Enterprises. This has no bearing on whether Boulware diverted corporate funds to his girlfriend for his own benefit without paying tax on the money. The judgment establishes only that she was not entitled to keep the cash. It does not prove, or even tend to prove, that he didn’t siphon off the money from the corporation, tax-free. Why would it? That was not at issue in the case.

District courts have wide latitude in ruling on the relevancy of evidence. United States v. Alvarez, 358 F.3d 1194, 1216 (9th Cir. 2004). Implicit in any such ruling is an evaluation of probative value. 1 McCormick on Evidence § 185, at 637 (5th ed. 1999) (“There are two components to relevant evidence: materiality and probative value.”). Because the state court judgment against Lee sheds little if any light on whether Boulware committed tax evasion, I would hold that the district court did not abuse its discretion in ruling the Hawaiian judgment inadmissible.


Small v. United States

The Court recently granted cert. in Small v. United States (03-750). Small concerns the interpretation of 18 U.S.C. 922(2)(1) - the felon in possession law, which makes it a federal offense for any person convicted of a felony to posses a firearm.

The specific statutory language reads: "[It is 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 ... a firearm."

The petitioner, who was convicted of a felony by Japanese authorites in Japan, possessed a firearm. Thus, the question presented is whether "any court" includes Japanese courts.

Now, before you chortle out, "Well, any court means any court," do recognize that there is a longstanding presumption against the extraterritoriality of statutes. Also note that the rule of lenity governs in criminal cases.

The rule of lenity is a canon of statutory construction, which says that criminal statutes must be construed narrowly. The rule of lenity also comports with due process since a citizen must be put on notice that his conduct is criminal before he can be punished. When a law is unclear or ambiguous, that citizen has not properly been put on notice. We should give him the benefit of the doubt. Also, the government bears the burden of putting a citizen in prison. We when let them do so based on anything less than a crystal clear law, we improperly relieve them of that burden.

Well, this case presents a great vehicle for the Court to affirm (or, dare we say, disavow) those canons. In Sabri the Court stuck a tack in the criminal defense bar's chair when it wrote: "We add an afterword on Sabri's technique for challenging his indictment by facial attack on the underlying statute, and begin by recalling that facial challenges are best when infrequent." Sabri v. United States, 124 S.Ct. 1941, 1949 (2004). Lopez and Morrison were facial attacks to federal laws.

However, you will also recognize that the argument that we possess a 2nd Amendment right to individual firearm ownership might also inform the Court's statutory interpretation. To wit, statute so be construed to avoid a constitutional question.  Thus, the Court could avoid the constitutional question whether a felon should be entitled to own a firearm by saying Small's conduct is not covered. Unfortunately, the Court has never said that the 2nd Amendment recognizes our natural law right to keep and bear arms. (The Ninth Circuit says we don't have a right to gun ownership. The Fifth Circuit disagrees.)  However, it would be better for the Court to avoid the potential constitutional question by holding that Japanese convictions are not covered by the statute.  If Congress disagrees, it can amend the law.

The petitioner's merits brief is here. One of Small's attorneys, Stephen P. Halbrook is an expert on all things gun-related

The government's reply brief is here.