Law in Plain English: Johnson v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Johnson v. United States

Argument: Nov 5 2014 (Aud.)

Background: Pursuant to an undercover investigation, the FBI determined that Samuel Johnson (a felon) illegally possessed an AK-47 and a .22 caliber semi-automatic rifle. Johnson was later arrested while attending a meeting with his probation officer. Among other charges, Johnson was indicted with being an armed career criminal in possession of a firearm. The Armed Career Criminal Act (ACCA) provides a mandatory 15-year sentence for those who have been convicted of three "violent felon[ies.]" Johnson pleaded guilty, but reserved the right to challenge the applicability of the ACCA based upon a review of his prior convictions. On appeal, Johnson alleged that a prior conviction for possession of a short-barreled shotgun did not constitute a "violent felony." The Eighth Circuit disagreed, finding that possession of a short-barreled shotgun presented a serious risk of physical injury to another because it is roughly similar to the listed offenses within the ACCA, both in kind as well as the degree of risk for harm posed. As a result, the conviction was considered a violent felony and Johnson's conviction as an armed career criminal was affirmed.

Issue: The question before the Court is whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

Holding: In an 8-1 decision, the Supreme Court ruled that imposing an increased sentence under ACCA’s residual clause violates due process.

Law in Plain English: Mellouili v. Holder

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Mellouli v. Lynch

Argument: Jan 14 2015 (Aud.)

Background: Moones Mellouli, a citizen of Tunisia and a lawful permanent resident of the United States, pleaded guilty in July 2010 to violating a Kansas misdemeanor drug paraphernalia statute. Mellouli had been stopped for DUI and police found four Aderrall pills in his sock; the sock was the "drug paraphernalia." The Board of Immigration Appeals (BIA) found that he was removable because his conviction was a conviction “relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i). Mellouli argued that he was not removable because the state court record of conviction did not identify the controlled substance underlying his state paraphernalia conviction, and therefore the government failed to prove that the conviction related to a federal controlled substance, as § 1227(a)(2)(B)(i) requires. The Eighth Circuit denied his petition, finding that there was a nearly complete overlap between the definition of controlled substance in 21 U.S.C. § 802 and in the statutes of States such as Kansas that adopted the Uniform Controlled Substances Act. It was therefore reasonable for the BIA to conclude that any drug paraphernalia conviction in these States was, categorically, a violation of a law “relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i).

Issue: The question before the Court is 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.

Holding: In a 7-2 decision, the Supreme Court ruled that Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under §1227(a)(2)(B)(i). The categorical approach historically taken in determining whether a state conviction renders an alien removable looks to the statutory definition of the offense of conviction, not to the particulars of the alien’s conduct. The state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. The BIA has long applied the categorical approach to assess whether a state drug conviction triggers removal under successive versions of what is now §1227(a)(2)(B)(i). The BIA announced and applied a different approach that, in this case, finds no home in §1227(a)(2)(B)(i)’s text and leads to consequences Congress could not have intended. 

Law in Plain English: Whitfield v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Whitfield v. United States

Argument: Dec 2 2014 (Aud.)

Background: Larry Whitfield and an accomplice tried (unsuccessfully) to rob a bank, and then fled. Whitfield ended up in the home of an elderly woman. After directing the woman to a room within her home, Whitfield tried to escape and was captured. The woman died of a heart attack. Whitfield was charged and convicted of 18 U.S.C. § 2113(e), the federal forced accompaniment statute. The Fourth Circuit affirmed.

Issue: The question before the Court is whether 18 U.S.C. § 2113(e), which provides a minimum sentence of ten years in prison and a maximum sentence of life imprisonment for a bank robber who forces another person “to accompany him” during the robbery or while in flight, requires proof of more than a de minimis movement of the victim.

Holding: In a unanimous decision, the Supreme Court ruled that a bank robber “forces [a] person to accompany him,” for purposes of §2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance (as was the case here).

Law in Plain English: Abramski v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Abramski v. United States

Argument: Jan 22 2014 (Aud.)

Discussion: Abramski bought a handgun in Virginia for his uncle in Pennsylvania, but told the firearms dealer he was the "actual buyer." Subsequently, he was charged with being an illegal "straw purchaser" of the firearm. Abramski was convicted for two firearm offenses: (1) making a false statement that was material to the lawfulness of a firearm sale, in violation of 18 U.S.C. § 922(a)(6); and (2) making a false statement with respect to information required to be kept in the records of a licensed firearms dealer — that is, that he was the actual buyer of the firearm, when in fact he was buying it for someone else — in contravention of 18 U.S.C. § 924(a)(1)(A). Abramski appealed and argued that he and his uncle were legally entitled to purchase and own the handgun, and as a result, his conduct was outside the purview of § 922(a)(6) and 924(a)(1)(A). Nonetheless, the Fourth Circuit affirmed his conviction.

Issue: The questions before the Court are (1) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact is “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6); and (2) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is a piece of information “required...to be kept” by a federally licensed firearm dealer under Section 924(a)(1)(A).

Holding: In a 5-4 decision, the Supreme Court ruled that Abramski's misrepresentation is material under the federal statute for making a false statement with respect to the information to be kept in the gun dealer's records.

Law in Plain English: Hall v. Florida

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Hall v. Florida

Argument: Mar 3 2014

Discussion: Freddie Lee Hall was tried and convicted for the 1978 murder of Karol Hurst. His conviction and sentence was upheld by the Florida Supreme Court on direct appeal. After multiple appeals, Hall filed a motion to vacate his sentence because Florida law prohibits the trial court from sentencing to death a mentally retarded defendant who is convicted of a capital felony. The Florida Supreme Court's interpretation of mental retardation mandates a cutoff IQ score of 70. According to several IQ tests, Hall's score was recorded at 73, 80, and 71. Florida law requires the defendant to show that the trial court's finding that Hall was not mentally retarded was not supported by competent, substantial evidence. The Florida Supreme Court found that there was competent, substantial evidence to support the trial court's finding that Hall is not mentally retarded. As a result, the Court denied his motion.

Issue: The questions before the Court is whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.

Holding: In a 5-4 decision, the Supreme Court ruled that the state's threshold requirement as interpreted by the Florida Supreme Court is unconstitutional as a violation of the Eighth Amendment and disregards established medical practice.

Law in Plain English: White v. Woodall

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: White v. Woodall

Argument: Dec 11 2013 (Aud.)

Did you know? At the Sixth Circuit, this case was known as Woodall v. Simpson because Thomas L. Simpson was the warden of the Kentucky State Penitentiary at the time the case started. Since then, Randy White has become the warden, and thus the case has been restyled as White v. Woodall.

Discussion: Woodall pled guilty to capital murder, capital kidnapping, and first-degree rape. At the penalty trial, Woodall did not testify and requested that the trial judge instruct the jury that it should not draw any adverse inference from his decision not to testify. The trial judge concluded that Woodall was not entitled to the requested instruction, determining that, by entering a guilty plea, Woodall had waived his right to be free from self-incrimination. The trial court adopted the recommendation of the jury and sentenced Woodall to death on the murder conviction and life imprisonment for the remaining convictions. His conviction was affirmed by the Kentucky Supreme Court. Woodall then filed a federal habeas petition. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §2254(d)(1), requires that an application shall not be granted unless adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." The District Court granted based on his claim that the trial court violated his Fifth Amendment right against self-incrimination by failing to instruct the jury to draw no adverse inference from Woodall's decision not to testify, despite Woodall's request for such an instruction. A divided panel of the Sixth Circuit affirmed.

Issue: The questions before the Court are (1) whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.

Holding: In a 6-3 decision, the Supreme Court reversed the Sixth Circuit and ruled that because the Kentucky Supreme Court’s rejection of respondent’s Fifth Amendment claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ.

Law in Plain English: Navarette v. California

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Navarette v. California

Argument: Jan 21 2014 (Aud.)

Background: Lorenzo and Jose Navarette were detained by officers of the California Highway Patrol (CHP) and subsequently arrested for transportation of marijuana and possession of marijuana for sale. The marijuana was discovered in the Navarettes' pickup truck during a traffic stop after the officers received a report from an unidentified citizen that the vehicle had been observed driving recklessly. The Navarettes' motion to suppress the evidence seized from their truck was denied, and they pled guilty to transportation of marijuana. On appeal, the Navarettes alleged that the evidence against them should have been suppressed because the anonymous tip received by police was insufficient to provide reasonable suspicion of criminal activity justifying an investigative stop of the vehicle, where the officers directly confirmed only significant innocent details of the tip but did not directly observe any illegal activity. The Court of Appeal of the State of California, First Appellate District, Division Five, affirmed the conviction. The Supreme Court of California denied review.

Issue: The question before the Court is whether the Fourth Amendment require an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle.

Holding: In a 5-4 decision, the Supreme Court ruled that the traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the truck's driver was intoxicated.

Law in Plain English: United States v. Auernheimer

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Case: United States v. Andrew Auernheimer

Argument: Mar 13, 2014 (Aud.)

Background: Andrew Auernheimer ("Weev") was convicted of violating the Computer Fraud and Abuse Act (CFAA) by collecting the email addresses of iPad customers through an "account slurper" program.

Issues: (1) Did Auernheimer and Spitler access a computer “without authorization” under 18 U.S.C. § 1030(a)(2)(C)?

(2) If Auernheimer was properly convicted of a conspiracy to violate the CFAA, was that conspiracy a misdemeanor or a felony?

(3) Did Auernheimer violate the identity theft statute, 18 U.S.C. § 1028(a)(7)?

(4) Was venue proper in the District of New Jersey?

(5) Do AT&T’s costs in mailing a letter to its customers support an eight-level upward adjustment under the United States Sentencing Guidelines? 

Holding: The Third Circuit ruled that trying Auernheimer in New Jersey, where no elements of the crime occurred, denied Auernheimer’s substantial right to be tried in the place where his alleged crime was committed. As a result, it reversed the decision of the District Court and vacated his conviction. Weev was released on Friday night to the custody of his lawyer, Tor Ekeland.

It is important to note that the Third Circuit did not rule on the CFAA in this case. Venue is a threshold issue; by deciding the venue was improper, the District Court never had jurisdiction to hear the case. Venue is a procedural matter that doesn't go to the substance of the underlying charges. That is why it is possible that Weev could likely be charged again without violating double jeopardy, see i.e., Haney v. Burgess, 799 F.2d 661 (11th Cir. 1986) (retrial of a defendant whose conviction was reversed because of improper venue does not violate double jeopardy).

Date	Proceedings and Orders
Jan 13 2011	Criminal Complaint
Jun 22 2011	Plea Agreement with Daniel Spitler
Aug 16 2012	Superseding Indictment
Sep 21 2012	Memorandum of Law in Support of Defendant's Motion's to Dismiss
Oct 5 2012	Brief in Opposition to Defendant's Motion to Dismiss
Nov 20 2012	Trial Verdict
Dec 3 2012	Memorandum of Law in Support of Defendant's Motion for a Judgment of Acquittal Under Federal Rule of Criminal Procedure 29
Mar 17 2013	Defendant's Sentencing Memorandum
Mar 19 2013	Judgment
Jul 1 2013	Appellant's Opening Brief
Jul 8 2013	Amicus Brief of Mozilla Foundation, Computer Scientists, and Security and Privacy Experts
Jul 8 2013	Amicus Brief of Security Researchers
Jul 8 2013	Amicus Brief of Digital Media Law Project
Jul 8 2013	Amicus Brief of National Association of Criminal Defense Lawyers
Aug 5 2013	United States’ Motion for a Word Limit Extension to 26,500 Words and A Stay of the Briefing Schedule
Aug 5 2013	Opposition to United States' Motion for A Word Limit Extension to 26,500 Words and Stay of Briefing Schedule
Aug 6 2013	Reply To Appellant’s Opposition To United States’ Motion For A Word Limit Extension And Stay of Briefing Schedule
Sep 20 2013	Brief of Appellee (United States)

Law in Plain English: United States v. Castleman

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: United States v. Castleman

Argument: Jan 15 2014 (Aud.)

Background: In 2001, James Castleman pleaded guilty to one count of misdemeanor domestic assault in violation of Tennessee Code § 39-13-111(b) for "intentionally or knowingly cause bodily injury to [the mother of his child]." Several years later, federal agents discovered that Castleman and his wife were buying firearms from dealers and selling them on the black market. Under the Castlemans' scheme, Castleman's wife purchased firearms, allegedly lied on federal firearms paperwork by stating that she was the actual buyer of the firearms, and turned the firearms over to her husband, who was legally prohibited from purchasing firearms because of his domestic assault conviction. One of the firearms Castleman's wife allegedly purchased was recovered in a homicide investigation in Chicago, Illinois. An investigation by the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) led agents to the Castlemans. A grand jury indicted Castleman on two counts of possession of a firearm after being "convicted...of a misdemeanor crime of domestic violence," in violation of 18 U.S.C. § 922(g)(9). The District Court dismissed the § 922(g)(9) counts in Castleman's indictment, reasoning that Castleman's misdemeanor domestic assault conviction did not qualify as a domestic violence crime because the statute required "force in the sense of violent contact" instead of merely "force as a scientific concept relating to the movement of matter." The Sixth Circuit affirmed.

Issue: The question before the Court is whether the respondent’s Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9).

Holding: In a 9-0 decision, the Supreme Court ruled that Castleman's conviction qualifies as a "misdemeanor crime of domestic violence." Section 922(g)(9)’s “physical force” requirement is satisfied by the degree of force that supports a common-law battery conviction—namely, offensive touching.

Law in Plain English: Rosemond v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Rosemond v. United States

Argument: Nov 12 2013 (Aud.)

Did you know? Rosemond is represented by John Elwood, a blogger at the Volokh Conspiracy and writer of the Relist Watch at SCOTUSblog.

Discussion: Rosemond was involved in a drug transaction-gone-wrong. He was punched in the face by another man who then fled. Someone then pulled out a nine-millimeter handgun and fired nine or ten shots at the fleeing man. At trial, the District Court instructed jurors on both of the Government's theories, that Rosemond was the shooter and, alternatively, that he aided and abetted another's use of a firearm during the drug deal. Based on a written statement and testimony at trial that Rosemond was the shooter, jurors found Rosemond guilty of using and discharging a firearm during a federal drug-trafficking offense (among other charges). However, they were not required to specify under which theory they convicted. The Tenth Circuit affirmed, but acknowledged that most other circuits require jurors to find, additionally, that the defendant took some action to facilitate or encourage his cohort's use of the firearm.

Issue: The question before the Court is whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

Holding: In a 7-2 decision, the Supreme Court held that the Government establishes that a defendant aided and abetted a §924(c) violation by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission. As a result, the Court ruled that the trial judge's jury instructions were erroneous, and remanded the case to determine whether there was harmless error.

Law in Plain English: United States v. Apel

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Dennis Apel. Photo from Paul Wellman,
Santa Barbara Independent.

SCOTUSblog: United States v. Apel

Argument: Dec 4 2013 (Aud.)

Background: Dennis Apel is a frequent protester at the front gate of  Vandenberg Air Force Base. He was as subject to a pre-existing order barring him from the base, and was convicted of trespassing under 18 U.S.C. § 1382. After his conviction, the Ninth Circuit ruled in another case that a stretch of highway running through the base was subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," and as a result the federal government lacked the exclusive right of possession of the area on which the trespass allegedly occurred. Therefore, a trespassing conviction under § 1382 was not valid. In a per curiam decision, the Ninth Circuit reversed Apel's conviction.

Issue: The question before the Court is whether 18 U.S.C. § 1382, which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, may be enforced on a portion of a military installation that is subject to a public roadway easement.

Holding: In a unanimous decision, the Supreme Court ruled that for purposes of § 1382, a military installation emcompasses the commanding officer's area of responsibility; and here, it includes Vandenberg's highways and protest area. As a result, the Ninth Circuit's decision was vacated and Apel's conviction would be reinstated.

The painted green line marks the boundary for peaceful
protest activity, according to Vandenberg Air Force Base.

Law in Plain English: Kaley v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Kaley v. United States

Argument: Oct 16 2013 (Aud.)

Background: The Kaleys were indicted for conspiracy to transport prescription medical devices (PMDs) from hospitals and then selling them on the black market (among other charges). The indictment also sought criminal forfeiture of all property traceable to the charged offenses. The government asked the District Court for an ex parte protective order restraining the Kaleys from transferring or otherwise disposing of the property listed in the forfeiture count. Included in this property was a $500,000 certificate of deposit purchased with a home equity line of credit on their home which they intended to use to fund their criminal defense. The Kaleys contended that the order prevented them from retaining counsel of their choice in violation of their Sixth Amendment right to the representation of counsel. Further, they asked the court to vacate the protective order and and expressly requested a pretrial, post-restraint evidentiary hearing, both of which were denied. The Eleventh Circuit affirmed.

Issue: The question before the Court was whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.

Holding: In a 6-3 decision, the Supreme Court ruled that when challenging the legality of a §853(e)(1) pre-trial asset seizure, a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury’s determination of probable cause to believe the defendant committed the crimes charged. As a result, the Kaleys do not have a right to a pretrial, post-restraint evidentiary hearing.

Law in Plain English: Fernandez v. California

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Fernandez v. California

Argument: Nov 13 2013 (Aud.)

Background: Police responded to an apartment where there was a report of an assault with a deadly weapon by members of a gang. Police heard screaming from an apartment, and knocked on the door. A bruised woman answered the door and told the police she had been in a fight. When police tried to conduct a sweep of the apartment, Fernandez stepped forward and denied entry to the police. He was then arrested. Police went back to the woman and asked for the woman's consent to search, which she gave. The police found weapons that tied Fernandez to the gang. He was tried and convicted of robbery, assault, and the use of a weapon in connection with gang activity. The Court of Appeal of California ( Second District) affirmed, and the Supreme Court of California denied review. Under a previous Supreme Court case, a physically present co-occupant's stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him.

Issue: The question before the Court is whether, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.

Holding: In a 6-3 decision, the Supreme Court ruled that Randolph does not extend to this situation, where the woman's consent was provided well after petitioner had been removed from the apartment. In other words, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search. That Fernandez was absent because he was arrested does not matter because the police had probable cause to arrest him (and he conceded as much).

Law in Plain English: Burrage v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Burrage v. United States

Argument: Nov 12 2013 (Aud.)

Background: Burrage sold heroin to Banka, who later died. A forensic toxicologist and a doctor from the State Medical Examiner's Office said that heroin contributed to Banka's death, but neither could say that Banka would not have died if he had not taken the heroin. Nonetheless, a jury convicted Burrage of distribution of heroin and distribution of heroin resulting in death (which subjected Burrage to a mandatory minimum sentence), and the Eighth Circuit affirmed. Burrage's appeal is based on the argument that a death that "results from" heroin required the prosecution to show "proximate cause" (but for the heroin, Banka's death would not have happened); and that heroin contributed to Banka's death as part of a larger mixed drug intoxication was not sufficient to show that it resulted from heroin.

Issue: The questions before the Court are (1) whether the crime of distribution of drugs causing death is a strict liability crime, without a foreseeability or proximate cause requirement; and (2) whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed “contributed to,” death by “mixed drug intoxication,” but was not the sole cause of death of a person.

Holding: In a 9-0 decision, the Supreme Court ruled that, at least where the use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, the defendant cannot be eligible for the mandatory minimum sentence under the statute unless such use is a but-for cause of the death or injury. As a result, the Eighth Circuit's decision was reversed and Burrage cannot be subject to the penalty enhancement.

Law in Plain English: Kansas v. Cheever

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Scott Cheever. Photo from HutchPost.

SCOTUSblog: Kansas v. Cheever

Argument: Oct 16 2013 (Aud.)

Background: Cheever was charged with murder in federal court for the death of a law enforcement officer. Cheever intended to claim that although he killed the sheriff, he was intoxicated (by methamphetamine). As a result, the judge ordered a mental examination. The federal charges were later dismissed and reinstated in Kansas state court, where Cheever raised the same intoxication claim and presented an expert witness on his behalf. In response, prosecutors called the doctor who had examined Cheever in the federal case as a witness to testify that Cheever was not impaired at the time of the crime. Cheever was convicted and sentenced to death. The Kansas Supreme Court reversed the conviction, ruling that the admission of the doctor's testimony violated Cheever’s Fifth Amendment right against self-incrimination.

Issue: The question before the Court was whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant.

Holding: In an unanimous decision, the Supreme Court ruled that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. As a result, the court-ordered mental examination and the doctor's testimony was admissible. The Court distinguished Estelle v. Smith, in which the Court had previously held that the state may not force a defendant to submit to a psychiatric examination solely for the purposes of sentencing, with Buchanan v. Kentucky. In Buchanan, the Court ruled that if the defendant had raised a psychiatric defense and joined in the motion for a mental evaluation, the Fifth Amendment was not offended if the prosecution used the examination results to rebut the defense's claims. The practical impact of this decision is that prosecutors will continue to be able to use the defendant's mental evaluation as rebuttal evidence when the defense raises issues concerning the defendant's requisite mental state as an element of the crime.

Get-away driver gets felony murder charge

Monday was a bad day for two armed robbers, who were both shot and killed by a concealed carry holder. It will also be bad for the get-away driver, who wasn't even in the store when the robbery happened:

About nine hours later, Reading police arrested the man they said was the get-away driver in his Fleetwood apartment.

Alexander Garcia Bialek, 21, was taken into custody late Monday with the help of borough police in the apartment building in the first block of North Laurel Street.

Police said witnesses saw the two robbers speaking to someone in a brown SUV before going into the store. Police gathered surveillance video that showed the SUV, then contacted its owner, who said he had lent the vehicle to Bialek.

Bialek was charged with second-degree murder, robbery and conspiracy.

District Attorney John T. Adams said a person can be charged with second-degree murder if he or she is an accomplice to a felony that results in a death.

The fact that Bialek wasn't in the store doesn't matter. The fact that he didn't kill anyone doesn't matter. The fact that it was his partners who were killed lawfully by the concealed carry holder doesn't matter. According to 18 Pa.C.S.A. § 2502:

(b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony...

(d)...“Perpetration of a felony.” The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

Bialek has some long days ahead of him.

Law in Plain English: Burt v. Titlow

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Burt v. Titlow

Argument: Oct 8 2013 (Aud.)

Background: Titlow was implicated for participation in a plot (with her Aunt Billie) to murder her uncle. Her first lawyer negotiated a plea deal (a 7-to-15-year sentence, on the conditions that she plead guilty, submit to a lie-detector test, testify against Billie at trial, and not challenge the prosecutor's recommended sentencing range on appeal). After the court accepted the plea agreement, but before sentencing, Titlow spoke with Eric Ott, a sheriff's deputy assigned to the jail, who advised her not to plead guilty if she believed that she was innocent. She ultimately brought on a new attorney who withdrew her guilty plea, but the attorney soon withdrew (he did not obtain Titlow's file, inspect the government's discovery materials, or speak with the previous attorney a half after the plea-withdrawal hearing). Titlow was found guilty by a jury of second degree murder and sentenced to 20-to-40 years. The Michigan Court of Appeals affirmed. Titlow then filed a habeas petition which the District Court denied. The Sixth Circuit granted the petition, finding that Titlow's second attorney was ineffective, in violation of the Sixth Amendment.

Issue: The questions before the Court are (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Holding: In a 9-0 decision, the Supreme Court reversed the Sixth Circuit because it failed to apply the “doubly deferential” standard of review recognized by the Court’s case law when it refused to credit the state court’s reasonable factual finding and assumed that counsel was ineffective where the record was silent. The impact of this decision is that the Supreme Court continues to reinforce the strong deference federal courts should give to state courts' fact finding, as mandated by AEDPA and Strickland, even when the record is sparse. Rather, a defendant must go beyond an otherwise-silent record and present sufficient evidence to overcome the presumptions of AEDPA and Strickland.

Law in Plain English: Conley v. United States

Antwaun Conley v. United States

Docket No.	Opinion Below	Argument	Opinion	Vote	Author	Term
No. 11-CF-589	N/A	Nov 20 2012	Sep 26 2013	3-0	Glickman	N/A

Plain English Summary: In 2009, the Council of the District of Columbia enacted a statute making it a felony offense for a person to be present in a motor vehicle if the person knows that the vehicle contains an illegal firearm (“PMVCF”), even if the person has no connection to or control over the weapon and is not involved in any wrongdoing whatsoever. The statute was enacted in order to allow convictions to be obtained when a firearm is found in a car with more than one occupant and the government cannot prove who possessed it. Conley was arrested after police found a loaded handgun in the center console of a car he was driving (there was also a passenger in the front seat; and two passengers in the rear of the vehicle). The jury acquitted Conley of several possessory offenses. It found him guilty only of PMVCF, and the judge sentenced him to thirty-four months in prison.

Holding: The DC Court of appeals found the PMVCF unconstitutional because it violated due process. Instead of requiring the government to prove that the defendant‟s continued presence was voluntary, the law requires the defendant to shoulder the burden of proving that his presence in the vehicle was involuntary. This shifting of the burden of persuasion with respect to a critical component of the crime is incompatible with due process. Additionally, the Court found it s incompatible with due process to convict a person of a crime based on the failure to take a legally required action—a crime of omission—if he had no reason to believe he had a legal duty to act, or even that his failure to act was blameworthy. In other words, the statute criminalizes entirely innocent behavior—merely remaining in the vicinity of a firearm in a vehicle, which the average citizen would not suppose to be wrongful (let alone felonious)—without requiring the government to prove that the defendant had notice of any legal duty to behave otherwise. As a result, Conley's conviction was overturned.

News Coverage

• Blog of Legal Times (Sep 26 2013)

Is a pellet gun a firearm?

State of Kansas v. Timothy Wayne Craddick

Docket No.	Opinion Below	Argument	Opinion	Vote	Author	Term
No. 108,335	N/A	N/A	Nov 1 2013	3-0	Pierron	N/A

Plain English Summary: Craddick pointed his Ruger Air Hawk pellet rifle at his victims and threatened to shoot them if they did not put his dog on the ground (they had tried to pet his dog after it approached them while they were walking). He was convicted of attempted aggravated assault. The district court found that Craddick had committed his crimes with a firearm, which triggered a presumptive prison sentence under K.S.A. 2011 Supp. 21-6804(h). Applying this firearm rule, Craddick was sentenced to a controlling term of 11 months' imprisonment. The question before the Kansas Court of Appeals was whether a pellet gun was a firearm for purposes of K.S.A. 2011 Supp. 21-6804(h).

Ruger Air Hawk pellet rifle

Holding: The Kansas Legislature defined firearm as "any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion." Therefore, a pellet rifle is not a firearm because rather than propelling projectiles by force of an explosion or combustion, it propels projectiles by force of air or gas. As a result, the Court of Appeals vacated Craddick's sentence and remanded it to the trial court for resentencing. It is important to note that this decision doesn't overturn his conviction. Craddick will be sentenced for two counts of attempted aggravated assault, but without the firearm enhancement.

News Coverage

• Lawrence Journal-World (Nov 1 2013)
• Topeka Capital-Journal (Nov 1 2013)

"I dont know if there is such a thing but I prefer A Christian man or woman."