September 2016 SDR - Voice for the Defense Vol. 45, No. 7

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Friday, September 2nd, 2016

Voice for the Defense Volume 45, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Massachusetts court’s explanation for upholding the law prohibiting the possession of stun guns contradicted precedent; the Second Amendment extends to all instruments that constitute bearable arms, even those not in existence at the time of the founding. Caetano v. Massachusetts, 136 S. Ct. 1027 (2016).

        The Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by U.S. Const. amend. II. The Supreme Court here found that the explanation the Massachusetts court offered contradicted Court precedent. The Court vacated the judgment of the Supreme Judicial Court of Massachusetts and remanded.

        The Supreme Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742 (2010).

        The Massachusetts court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” The court next asked, under Heller, whether stun guns are “dangerous per se at common law and unusual,” in an attempt to apply one “important limitation on the right to keep and carry arms.” In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason. Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” But Heller rejected the proposition “that only those weapons useful in warfare are protected.”

The government improperly froze assets of D indicted for violations of health care laws; the assets had no connection to the charged crimes, and depriving D of the untainted assets intended to pay for counsel undermined D’s fundamental right to the assistance of counsel. Luis v. United States, 136 S. Ct. 1083 (2016).

        “A federal statute provides that a court may freeze before trial certain assets belonging to a defendant accused of violations of federal health care or banking laws. Those assets include (1) property ‘obtained as a result of’ the crime, (2) property ‘traceable’ to the crime, and (3), as relevant here, other ‘property of equivalent value.’ 18 U.S.C. § 1345(a)(2). The Government has charged petitioner Luis with fraudulently obtaining nearly $45 million through crimes related to health care. In order to preserve the $2 million remaining in Luis’ possession for payment of restitution and other criminal penalties, the Government secured a pretrial order prohibiting Luis from dissipating her assets, including assets unrelated to her alleged crimes. Though the District Court recognized that the order might prevent Luis from obtaining counsel of her choice, it held that the Sixth Amendment did not give her the right to use her own untainted funds for that purpose. The Eleventh Circuit affirmed. . . . The judgment is vacated, and the case is remanded.”

        The pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violated U.S. Const. amend. VI. The nature and importance of the constitutional right taken together with the nature of the assets lead the Supreme Court to this conclusion. The government’s non-constitutional interest in preserving the assets to provide for payment of potential criminal forfeitures or restitution if D was convicted was not the equivalent of D’s constitutional right to the assistance of counsel of D’s choice.

Fifth Circuit

Fifth Circuit rejected D’s claim that he was ineligible for the death penalty due to his intellectual disability; D failed to show, by clear and convincing evidence, that the Texas Court of Criminal Appeals unreasonably determined D did not exhibit adaptive behavioral deficits that originated before age 18. Matamoros v. Stephens, 783 F.3d 212 (5th Cir. 2015).

        The Fifth Circuit rejected death-sentenced D’s claim that under Atkins v. Virginia, 536 U.S. 304 (2002), he was ineligible for the death penalty, even though the only competent scientific evidence in the record suggested that D had deficits in nu­merous adaptive behavior areas; the State’s expert was later discredited.

Fifth Circuit reversed the district court’s denial of D’s motion to suppress the evidence of cocaine found dur­ing a traffic stop premised on D’s failure to signal properly before turning; the record showed the officer had an incorrect legal understanding of the statute he sought to invoke (mistakenly thinking changing lanes required a signal). United States v. Alvarado-Zarza, 782 F.3d 246 (5th Cir. 2015).

        Although an objectively reasonable mistake of law does not violate U.S. Const. amend. IV (Heien v. North Carolina, 135 S. Ct. 530 (2014)), here the mistake of law was not objectively reasonable because the relevant interpretive case law far predated the stop, and the statute on its face gave no support to the officer’s erroneous interpretation of the statute. D had changed lanes to effectuate a turn. When the law in question is given its proper interpretation and applied to turning, not changing lanes, the officer also committed a critical mistake of fact; it was not objectively reasonable for officer to conclude D had failed to signal 100 feet prior to turning. In fact, the evidence (the video of the stop and the defense expert’s testimony) showed D had signaled 300 feet before turning (as opposed to simply changing lanes).

District court did not plainly err in applying an eight-level “aggravated felony” enhancement under USSG § 2L1.2(b)(1)(C) on the basis of D’s prior federal conviction for conspiracy to launder monetary instruments in violation of 18 U.S.C § 1956(h). United States v. Mendoza, 783 F.3d 278 (5th Cir. 2015).

        Whether the money-laundering-conspiracy conviction qualified as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(D) turned on whether more than $10,000 was laundered. This inquiry was not subject to the categorical/modified categorical approach but rather, under Nijhawan v. Holder, 557 U.S. 29 (2009), was a circumstance-specific inquiry not subject to the proof constraints of the categorical/modified categorical approach. The evidence a court may consider under a circumstance-specific inquiry is broader than the evidence that may be considered under a modified-categorical analysis inquiry. The district court thus did not err in relying on D’s presentence report and attached documents to determine that D’s prior conviction involved over $10,000.

In sentencing D convicted of a threat to kill, injure, and unlawfully damage and destroy buildings by means of fire and explosives (in violation of 18 U.S.C. § 844(e)), the district court did not err in applying a six-level enhancement under USSG § 2A6.1(b)(1) for conduct evidencing an intent to carry out the threat. United States v. Pillault, 783 F.3d 282 (5th Cir. 2015).

        Although some overt act is required to justify a § 2A6.1(b)(1) enhancement, here the court did not clearly err in crediting testimony that D had committed such acts (e.g., buying copper pipe for a pipe bomb). Furthermore, in sentencing D, the district court did not improperly rely on rehabilitation or D’s need for treatment in imposing its 72-month prison sentence—a sig­nificant upward variance. Rather, the record showed that the primary justification for the sentence was public protection, and rehabilitation was simply a permissible secondary con­cern/additional justification.

Where D was charged with a petty offense committed on a federal enclave (a naval air station in Louisiana), it was not unconstitutional for a magistrate judge to try, convict, and sentence him, even without his consent. United States v. Hollingsworth, 783 F.3d 556 (5th Cir. 2015).

        D had no right to trial before an Article III judge.

In sentencing D convicted of receiving child pornography (18 U.S.C. §2252(a)(2)), the district court did not err in applying a five-level enhancement under USSG § 2G2.2(b)(3)(B) for distributing child pornography for the receipt of a non-pecuniary thing of value. United States v. Groce, 784 F.3d 291 (5th Cir. 2015).

        Generally, when a defendant knowingly uses peer-to-peer file-sharing software (as D did), he engages in precisely the kind of distribution contemplated by § 2G2.2(b)(3)(B). By using this software as D did, the user agrees to distribute the child pornography on his computer in exchange for additional child pornography. D knew that other users could download his files and that, by allowing users to do so, he would be dis­tributing child pornography; he also implied that he had know­ingly let users download from him. The Fifth Circuit did not reach the merits of the five-level enhancement for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor, USSG §2G2.2(b)(5), because any error in this regard was harmless.

District court did not plainly err, on revocation of D’s supervised release, by going above the Guideline range of 24 to 30 months (and rejecting the magistrate’s recommendation of 28 months) based primarily on the seriousness of the murder charge that constituted one of D’s violations of supervised release. United States v. Rivera, 784 F.3d 1012 (5th Cir. 2014), on denial of reh’g, 797 F.3d 307 (5th Cir. 2015).

        Sentencing error occurs when an impermissible consideration is a dominant factor in the court’s revocation sentence; in United States v. Miller, 634 F.3d 841 (5th Cir. 2011), the Fifth Circuit held that it is improper for a district court to rely on 18 U.S.C. § 3553(a)(2)(A)(referencing the seriousness of the offense, respect for the law, and the need for just punishment of the offense) in the revocation context. Here, the seriousness of the murder and the need for just punishment were clearly dom­inant factors in D’s revocation sentence; moreover, the district court’s error affected D’s substantial rights. However, the Fifth Circuit “[could not] say that the district court’s revocation sentence of 60 months impugns the fairness, integrity, or public reputation of the court system.” The Fifth Circuit said, “[T]he facts here do not warrant correction of the error. At the hearing on [D]’s supervised release revocation, in considering the proper sentence, the district court observed that [D] was never charged with illegal reentry following deportation even though she had committed the crime. The district court further noted that an illegal reentry conviction would have resulted in a Guidelines range of 57–71 months.” Thus, the plain-error standard was not met; the Fifth Circuit affirmed the district court.

In a case charging an 18 U.S.C. § 1956(h) conspiracy to commit concealment-type money laundering in violation of § 1956(a)(1)(B)(i), the evidence was insufficient to sustain the conviction of one defendant (the trainer of the horses that were the center of the laundering operation). United States v. Colorado Cessa, 785 F.3d 165 (5th Cir. 2015).

        Particularly, the evidence was insufficient to show that the trainer joined the conspiracy knowing that its purpose was to conceal the source or nature of illegal funds.

        (2) The district court abused its discretion in instructing the jury that “the commingling of illegal proceeds with le­gitimate business funds is evidence of intent to conceal or dis­guise.” A jury instruction must make clear that an inference of this type is permissive and not mandatory, and this instruction does not do so. Although this error was harmless beyond a reasonable doubt as to two defendants, it was not harmless as to another defendant; the Fifth Circuit vacated that defendant’s conviction, sentence, and money judgment and remanded.

Where Louisiana defendant, convicted of armed robbery in 1985, was subjected to a 1997 Louisiana statute governing the forfeiture of good-time credits upon revocation of parole that was less favorable than the forfeiture rule in effect at the time of his offense, rejection of D’s ex post facto challenge was contrary to clearly established federal law. Price v. Warden, Forcht Wade Correctional Center, 785 F.3d 1039 (5th Cir. 2015).

        The state courts’ rejection of prisoner’s challenge was, namely, contrary to the Supreme Court’s summary affirmance in Greenfield v. Scafati, 277 F. Supp. 644 (D. Mass. 1967), aff’d mem., 390 U.S. 713 (1968). By summarily affirming in Greenfield, the Court necessarily held that it violated the U.S. Constitution Ex Post Facto Clause to apply a “good time” forfeiture law enacted after a prisoner’s sentencing even if the forfeiture is triggered by the parolee’s post-enactment conduct; because Greenfield was materially distinguishable from this case, the Fifth Circuit reversed the district court’s judgment denying federal habeas relief and remanded to the district court with instructions to order the state to either recalculate D’s sentence using the law in effect at the time of his offense or release him.

Court of Criminal Appeals

In a case in which D’s large family was excluded from voir dire not, according to the trial court, as a closure of the trial but because the jury panel would fill all the available chairs and space in the courtroom, COA was required to consider first whether D showed the trial was closed to the public and second whether the closure was justified. Cameron v. State, 482 S.W.3d 576 (Tex.Crim.App. 2016).

        D was found guilty of murdering her ex-boyfriend. COA reversed, holding that D’s right to a public trial was violated during voir dire because the public was asked to leave the courtroom to accommodate a large venire panel. On discretionary review in 2014, CCA affirmed COA. Here, CCA granted the State’s motion for rehearing. CCA vacated COA’s judgment and remanded to COA for application of correct prin­ciples. COA was required to defer to the trial court’s findings of fact that were supported by the record as a necessary prerequisite before it could resolve whether D met her burden of proof to show her trial was closed to the public based on the totality of the evidence, and then resolve the ultimate legal question of whether D’s public-trial right was violated.

The record was clear that the State did not object to the lack of affidavit verification given that the Tex. Code Crim. Proc. art. 64.01 motion was a joint filing; D’s failure to comply with the Chapter 64 verification requirement was a non-fatal pleading deficiency. Skinner v. State, 484 S.W.3d 434 (Tex.Crim.App. 2016).

        D was convicted of capital murder and sentenced to death for the killing of his girlfriend and her two sons in the home they shared. On direct appeal, CCA affirmed his conviction in 1997. Subsequent to his conviction, DNA testing was conducted pursuant to Tex. Code Crim. Proc. Chap. 64. The trial court found that the test results were not favorable to D. Here, he appealed that finding and asked CCA to decide whether it was reasonably probable that he would not have been convicted had the test results been available at trial. CCA abated this appeal: “In light of Appellant’s advisory [of errors in his DNA test] and the nature of this issue, this Court has determined that further fact-finding and analysis by the trial court may be in order.”

If the Tex. Code Crim. Proc. art. 11.07 habeas application had been received and was pending, the party had to file a motion to stay the proceedings pending the filing of evidence in trial court; CCA could consider evidence not filed in the trial court if compelling and extraordinary circumstances existed. Ex parte Pena, 484 S.W.3d 428 (Tex.Crim.App. 2016).

        D pleaded guilty to delivery of a controlled substance and did not appeal. In this habeas application, D contended his plea was involuntary and the State failed to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). CCA directed the parties to brief whether: (1) the misconduct in D’s case should be imputed to the prosecution for D’s Brady v. Maryland claim; (2) this misconduct was exculpatory; and (3) D’s plea was involuntary because of “impermissible conduct by state agents.” Brady v. United States, 397 U.S. 742 (1970). Attached to the State’s brief as Appendix A was a police incident report. This report was not filed in the trial court first. Here D filed a motion with CCA to strike the State’s brief or strike Appendix A and all references to it from the brief. D argued Appendix A was not made part of the habeas record and was otherwise inadmissible hearsay, CCA should not hear the evidence, and the State’s attempt to supplement the record at this stage was improper.

        CCA conditionally granted Applicant’s motion to strike Appendix A and references to it from the State’s brief. For CCA to consider Appendix A as evidence, the State shall comply with the procedures set out in this order. If the State fails to do so, Appendix A and references to it would be considered struck and would not be considered for any purpose.

        An Article 11.07 application “must be filed with the clerk of the court in which the conviction being challenged was obtained.” Tex. Code Crim. Proc. art. 11.07, § 3(b); cf. Tex. R. App. P. 73.4(a). “There is no provision in Article 11.07 or the Rules of Appellate Procedure that permits a party to file evidence directly in this Court. Nor is there a provision explaining how a party should supplement the record after we have received an Article 11.7 application or filed and set it for submission. But we have said that evidence should not ordinarily be filed directly in this Court. . . . Today, we . . . explain the procedures a party must follow if, after we have received an Article 11.07 application from the county of conviction or filed and set it for submission, the party wishes this Court to consider evidence not filed in the trial court. . . . First, the party may file evidence directly in this Court with a motion for this Court to consider the evidence. In this motion, the party should describe the evi­dence for this Court to consider and explain its evidentiary value and why ‘compelling and extraordinary circumstances’ exist for us to consider it. In an Article 11.07 proceeding, such circumstances must be truly exceptional before we will consider evidence filed directly in this Court. Second, the party may file in this Court a motion to supplement in the trial court. In this motion, the party should describe the evidence . . . and explain its evidentiary value and why the evidence could not have been filed in the trial court before we filed and set the application for submission. After we have filed and set an Article 11.07 application for submission, we will not consider evidence that was not filed in the trial court unless a party follows these procedures and we grant the appropriate motion.”

D used materials available to her while incarcerated and was able to make clear to the trial judge that she was attempting to invoke the appellate court’s jurisdiction because the judge further amended the document by adding “ON APPEAL” after “Order Appointing/Denying Counsel,” crossing out “Denying,” and appointing appellate counsel. Harkcom v. State, 484 S.W.3d 432 (Tex.Crim.App. 2016).

        “Appellant was arrested and charged with possession of a controlled substance, methamphetamine, of less than one gram. On October 2, 2012, appellant was convicted of a state jail-felony and was sentenced to twenty-four months’ imprisonment and a $2,250.00 fine. The trial court certified her right to an appeal that same day. On October 30, 2012, the twenty-eighth day after the sentence was imposed, appellant filed a pro se application for appointment of counsel, writing the word ‘APPEAL’ on the top of the document. This was the only document made available to appellant while incarcerated, and she had not yet been appointed an attorney. On October 31, 2012, twenty-nine days after the sentence was imposed, the trial court granted appellant’s application for appointment of counsel and changed the title of the document to ‘Order Appointing Counsel on Appeal’ by adding the words ‘ON APPEAL’ in block letters to the original title and crossing out the word ‘Denying’ in the phrase ‘Order Appointing/Denying Counsel.’ It is clear from this amended document that the trial judge understood the appellant to be acting pro se and giving notice of appeal. The trial court signed and filed the judgment the same day. Appellate counsel was notified of his appointment the next day, thirty days after sentence was imposed. Appellate counsel filed a more formal notice of appeal on November 8, 2012, seven days past the 30-day deadline to timely file a notice of appeal. . . . [COA] dismissed the appeal for want of jurisdiction due to the lack of a timely notice of appeal. . . . [COA] concluded that the handwritten reference to an appeal on the order granting appellant’s application is not determinative and ‘does not necessarily reflect the trial court’s understanding of appellant’s present intent to appeal.’. . . We find this analysis contrary to our instruction to construe the rules related to the perfection of an appeal liberally. . . .

        “The Rules of Appellate Procedure should be construed reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. . . . All that is required is that the notice be in writing, be submitted within thirty days or ninety days after sentencing, as appropriate, and show the party’s desire to appeal from the judgment or other appealable order. In this instance, appellant used the materials available to her while incarcerated. We know that, by adding the simple word ‘APPEAL’ to the Order requesting counsel, appellant was able to make clear to the trial-court judge that she was attempting to invoke the appellate court’s jurisdiction because the judge fur­ther amended the document by adding the words ‘ON APPEAL’ after the phrase ‘Order Appointing/Denying Counsel,’ crossing out ‘Denying,’ and appointing appellate counsel. The trial-court judge thereby recognized appellant’s intent to give a notice of appeal and request appellate counsel. Construing the Rules of Appellate Procedure liberally leads us to conclude that appellant gave sufficient notice. . . . We reverse the judgment of the court of appeals and remand[.]”

Officer did not have reasonable suspicion to detain D based on observing him walking with another person at 2 a.m. in an area known for narcotics activity and based on officer’s unsubstantiated belief that D was a known criminal; D was illegally detained, and the court erred by denying D’s motion to suppress the cocaine found in the subsequent search. Brodnex v. State, 485 S.W.3d 432 (Tex.Crim.App. 2016).

        D was charged with tampering with physical evidence and possession of a controlled substance after he was stopped by police and found to be carrying crack cocaine. D filed a pre­trial motion to suppress the evidence, which the trial court denied. After a bench trial, the court acquitted D of the tampering offense but found him guilty of the possession offense. D pled true to three enhancement paragraphs, and the court sentenced him to 20 years’ confinement. D appealed the denial of his motion to suppress, arguing that the officer did not have sufficient grounds to come into contact with him, and that the discovery of the drugs was the result of an excessive pat-down search. COA affirmed the trial court. After refusing D’s petition for discretionary review, CCA granted review on its own motion to determine whether an officer has reasonable suspicion to detain a suspect based on observing the suspect walking with another person at 2 a.m. in an area known for narcotics activity and based on the officer’s unsubstantiated belief the suspect is a “known criminal.”

        CCA reversed COA. “Under the totality of the circumstances, we hold that the facts apparent to [officer] at the time he detained Appellant did not provide him with a reasonable suspicion for the detention. Thus, Appellant was illegally detained, and the crack cocaine that was found in the subsequent search should have been suppressed. We, therefore, reverse the judgment of the court of appeals and remand the case to the trial court[.]”

D’s amended habeas application was not statutorily barred because the plain language in Tex. Code Crim. Proc. art. 11.07 permitted the court’s consideration of amended or supplemental claims filed by an applicant before final disposition of an application; counsel was ineffective for not impeaching the chief witness against D. Ex parte Saenz, No. WR-80,945-01 (Tex.Crim.App. Apr 6, 2016).

        CCA granted habeas relief. Trial counsel was ineffective for failing to adequately cross-examine the chief witness against D with the witness’ prior inconsistent statement under Tex. R. Evid. 613(a); the witness identified D in court but had told police the day after the shooting that he could not see the shooter’s face and would not recognize him if he saw him again, and counsel later admitted in a deposition that it would have been a mistake not to impeach the witness. D was prejudiced because the evidence establishing D’s identity as the shooter was weak.

Although, in entering a guilty plea to assault on a family member under Tex. Penal Code § 22.01(b-1)(1), (2), (3), D did not have an agreed punishment recommendation from the State, and he did enter into a bargained-for waiver of his right of appeal in exchange for the State’s abandonment of one of two punishment enhancements. Jones v. State, 488 S.W.3d 801 (Tex.Crim.App. 2016).

        “[A]ppellant contends that, because the trial court’s certification of the right of appeal was defective by indicating that he waived his appellate rights, the court of appeals erred by upholding that certification as a basis for dismissing his appeal. Appellant claims that he did not waive his right of appeal because he did not sign any document that would be adequate to show a valid waiver of that right, and he further contends that the record does not otherwise indicate that he waived his right to appeal. The State, however, contends that the court of appeals properly found that appellant waived his right of appeal based on the plea agreement. . . . Pursuant to that agreement, the State abandoned one of the two punishment-enhancement paragraphs that had been alleged, thereby reducing the minimum punishment that appellant could receive from twenty-five years in prison to five years in prison. In exchange, appellant agreed to plead guilty, waive his right to trial, and waive his right to appeal. We conclude that, although he did not have an agreed punishment recommendation from the State, the record supports a determination that appellant did enter into a bargained-for waiver of his right of appeal in exchange for the State’s abandonment of the enhancement. We affirm the court of appeals.”

        As evidence of the bargained-for agreement, D signed a document stating, “Further, I waive any right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor.” Although this was not a plea bargain case as defined in Tex. R. App. P. 25.2, the language referred to a “plea bargain agreement” and was binding.

Court of Appeals

Because defense counsel opened the door to the redirect examination by the State and subsequent rehabilitation of its witness, regarding whether complainant’s testimony was truthful or fabricated, the trial court properly concluded that the State’s questioning did not amount to improper bolstering. Nassouri v. State, No. 04-15-00280-CR (Tex.App.—San Antonio May 16, 2016).

            The testimony did not violate the Tex. R. Evid. 610 prohibition against invoking the religion of the witness in an attempt to support her credibility. Furthermore, the court did not abuse its discretion in concluding that complainant’s testimony regarding her cutting herself and using “weed” after the alleged sexual contact was admissible because it was more probative than prejudicial under Tex. R. Evid. 401 and 403. COA affirmed D’s conviction for indecency with a child by sexual contact.