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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger595125
Updated: 2 hours 55 min ago

Officer testimony about pretextual stops leads to suppression

Thu, 09/12/2019 - 16:00
The lesson from the suppression order in United States v. Coleman, No. 2:18-cr-00219, 2019 WL 4262506 (D. Nev. Sept. 9, 2019) might be: put the officer on the stand. In this case, the officer testified about his unit's practice of using traffic stops to search suspected gang members.

Officers from the Las Vegas "violent crime" or "vc" unit stopped Coleman for driving with high beams on. Officer Ostorga got his identification, asked about his criminal history (prior convictions for robbery, battery and weapons possession), and asked him about gang affiliation. Ostorga remarked that "I am just going to keep asking you until you tell me." Coleman said he had previously been a member of a gang. The officers found no outstanding warrants but did discover that Coleman was on federal supervised release. They decided to contact the probation officer to see if they could get permission to search the car, which was apparently not successful. After remarking that he was not concerned about his safety, Ostorga ordered Coleman out of the car anyway. He frisked Coleman and found nothing. He ordered Coleman to stand in front of the patrol car and visibly inspected Coleman's car with a flashlight, and found nothing. He then asked "Be cool if I search it?" and Coleman did not respond. Ostorga asked again "What's up? You okay if I search it?" Coleman said yes. Eventually Ostorga removed a panel from interior and found a handgun.

The district court suppressed the gun. The court found that Ostorga impermissibly extended the traffic stop by ordering Coleman out of the car, not for any safety reason or traffic-stop purpose, but to continue to search for drugs or guns. In fact, the court noted, searching the car was the officer's purpose from the beginning of the stop, consistent with the vc unit's use of traffic stops for "proactively searching for guns, drugs, and other gang-related contraband." The court also found that the consent was not voluntary, since Coleman had been frisked and searched, was out of his car with his hands on the hood of the patrol car, the officers retained his identification, and Ostorga asked twice for permission after Coleman tried to avoid responding.

Evidence suppressed.

Tenth Circuit Breviaries

Sun, 09/08/2019 - 15:00
Last week at the Tenth Circuit:

Fourth Amendment: reasonable mistake of law

In United States v. Romero, the Tenth Circuit held that a police officer did not have probable cause to arrest Mr. Romero for obstructing an officer under a state law, as that law has been interpreted by the courts.

The Tenth Circuit further held that any mistake of law by the arresting officer was unreasonable. A couple of highlights:

First, recall that the Supreme Court held that reasonable suspicion may rest on a mistake of law in Heien v. North Carolina. As the Tenth Circuit pointed out in Romero, the Tenth Circuit has yet to decide whether Heien applies to probable-cause determinations (the Court merely assumed this point without deciding it in Romero).

Second, an officer's mistake of law must be reasonable. Here, the law at issue had been interpreted several times, and the officer could not have reasonably mistaken it as applicable to Mr. Romero's conduct.

Jury instructions on lesser-included-offenses

In United States v. Antonio, the Tenth Circuit found no error in the district court's step-down instructions to only consider involuntary manslaughter if the jury did not unanimously find the defendant guilty of second-degree murder.

And the Tenth Circuit found no error in the district court's refusal to instruct the jury to consider “the boundary which separates the two crimes of murder and manslaughter.”

 Magistrates: authority to accept guilty pleas?

The Tenth Circuit has long held that "federal magistrate judges can accept and enter guilty pleas in criminal proceedings where the parties have consented to appearing before the magistrate judge." But other circuits disagree when it comes to felony pleas, and for good reasons. In United States v. Garcia, Chief Judge Tymkovich, writing for the panel majority, acknowledged those reasons and rang the certiorari bell: "Regardless of how we, as a circuit, continue to handle these matters, the Supreme Court will have the final word." Stay tuned . . . .

Indian Country

Want to learn more about subject matter jurisdiction and Indian Country? Read United States v. Antonio (finding evidence of territorial jurisdiction sufficient, and no procedural error).

Crimes of violence; 18 U.S.C. § 924(c); 28 U.S.C. §2255 timeliness; actual innocence

From United States v. Bowen:

"In short, we hold that United States v. Davis, 139 S. Ct. 2319 (2019), in which the Supreme Court held that 18 U.S.C. § 924(c)(3)(B) is void for vagueness, created a new substantive rule that is retroactively applicable on collateral review, and we conclude that Bowen’s convictions for witness retaliation do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A). Therefore, Bowen is actually innocent of 18 U.S.C. § 924(c)(1). The parties have agreed in this case that, if Bowen is actually innocent, his § 2255 motion is timely. Because Bowen is entitled to relief under § 2255, we REVERSE the district court’s dismissal of Bowen’s § 2255 motion and REMAND with instructions to VACATE his § 924(c)(1) conviction."

Tenth Circuit Breviaries

Mon, 09/02/2019 - 10:15
Last week at the Tenth Circuit:

A sentence increase after the defendant complains

In United States v. Wallace (unpublished), the district court sentenced Mr. Wallace to 6 months' imprisonment for supervised release violations, saying, "I'm looking forward to when you get out because I want to see what you can do." Mr. Wallace interrupted (more than once) as the court continued, and complained that the court was setting him up for failure. The district court warned: "we can revisit my sentence"; Mr. Wallace replied: "let's revisit it." The district court took a 10-minute recess and came back and resentenced Mr. Wallace to 10 months' imprisonment.

On appeal, counsel filed an Anders brief and the Tenth Circuit held that (1) the district court did not lose jurisdiction over Mr. Wallace's sentence between the time of its initial announcement and its revised announcement; and (2) "[w]e see no reason to interpret the within-guidelines sentence as a punishment for interrupting instead of a reasonable sentence in line with the government’s recommendation." Appeal dismissed.

USSG § 2G1.1(b)(1) (4-level enhancement for coercive behavior)

"[F]or the purpose of applying Guideline § 2G1.1(b)(1), the defendant must have coerced the Victim as part of the offense, and . . . the language 'occurs as part of the offense' includes any conduct for which the defendant is accountable under Guideline § 1B1.3 (Relevant Conduct)." United States v. Sweargin.

The right to a § 2255 hearing to prove counsel's failure to consult about an appeal

In United States v. Herring, the Tenth Circuit held that the district court erred in denying, without an evidentiary hearing, Mr. Herring's claim that his trial counsel's failure to consult with Mr. Herring about an appeal constituted ineffective assistance of counsel.

Mr. Herring alleged that when he told counsel that he was interested in appealing, counsel responded that he (counsel) did not do appellate work, and that Mr. Herring would have to find new counsel. If true, this would be deficient performance:

"Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their clients’ wishes. Once the duty to consult is invoked by a defendant expressing interest in appealing, trial attorneys must properly advise their client and assess their client’s wishes before withdrawing from the case."

Case remanded for an evidentiary hearing.

A complicated § 2254 case

Read Harmon v. Sharp (affirming denial of § 2254 relief in Oklahoma capital case) to learn more about:

  • State procedural bars/cause & prejudice (especially out of Oklahoma).
  • "Separate counsel" for purposes of raising an IAC claim.
  • De novo review in § 2254 cases.
  • Cumulative error.
See also the concurring opinions for an interesting discussion of waiver/no-review versus forfeiture/plain-error-review in AEDPA appeals.

D.C. Circuit to government: if you want to use the witness's statements, don't deport the witness

Thu, 08/29/2019 - 18:38
Before the government may present an absent witness's testimonial statements at trial, it must make two independent showings: (1) unavailability, and (2) a prior opportunity for confrontation.

In United States v. Burden, the government failed to show that a witness the government had deposed and then deported was unavailable:

"In a case such as this one, in which the government knew or should have known of the potential need for the witness’s testimony before he was deported, the government’s duty to make good-faith, reasonable efforts to ensure the witness’s presence arises before the witness leaves the United States."

* * * "Before his deportation, the government did not give Yindeear-Rom a subpoena, offer to permit and pay for him either to remain in the U.S. or to return here from Thailand, obtain his commitment to appear, confirm his contact information, or take any other measures."

So sayeth the D.C. Circuit. Conviction reversed.

Tenth Circuit Breviaries

Sun, 08/25/2019 - 18:31
Last week at the Tenth Circuit . . .

Haymond remedy

18 U.S.C. ' 3583(k) provides for mandatory revocation and enhanced prison terms for sex offenders who violate the terms of their supervised release. The statute's provisions are triggered by judicial (not jury) factfinding by a preponderance of evidence (not evidence beyond a reasonable doubt). We now know that these provisions are unconstitutional. That's what the Supreme Court told us earlier this summer when it decided United States v. Haymond. But what's the remedy for this problem? Is it to strike that portion of the statute, nixing the enhancement entirely? Or to hold a jury trial if the government wishes to pursue the enhancement? And what would that jury trial look like? The Supreme Court sent the case back to the Tenth Circuit to decide the remedy question.

Last week, the Tenth Circuit decided not to decide the remedy question . . . at least not in Mr. Haymond's case. And that's because (1) the government waived any claim that a jury trial is authorized and would remedy the statute's constitutional problems; and (2) any remedy is now moot as to Mr. Haymond, who was already resentenced to time served.

And so. Going forward. Object to the enhancement, and argue that the only plausible remedy is to strike that portion of the statute. There are no jury-trial provisions in Section 3583 or anywhere else for revocations of supervised release. The enhancement is not enforceable.

Materiality of false statements

A veteran's lies to the VA in an effort to get undeserved benefits are material where they may be (even if they're not) the sole basis for an eligibility finding. And thus the Tenth Circuit affirmed the defendant's false-statements conviction in United States v. Williams.

In Williams, the Tenth Circuit reminds us that "[a]false statement can be material regardless of its influence on the decisionmaker and can also be material even if the decisionmaker had already arrived at her conclusion before the statement is made."

FRE 404(b) evidence v. "intrinsic" evidence v. FRE 403

The Williams Court held that Mr. Williams's prior false statements were admissible as "intrinsic to the charge," and therefore their admission was not limited by Fed. R. Evid. 404(b). But the Court also noted that even intrinsic evidence may be excluded "if it upsets the balancing test of Rule 403."

Preservation of objections

More from Williams: Once the trial court definitively ruled on defense counsel's motion in limine before trial, counsel was not required to re-raise the objections in that motion at trial. But counsel may only be relieved of the contemporaneous-objection requirement when the issue at hand is (1) fairly presented pretrial; (2) capable of a final decision pretrial; and (3) ruled on unequivocally by the judge.

D. Kan. Judge: Statute criminalizing encouraging unlawful alien is unconstitutionally overbroad

Thu, 08/22/2019 - 13:04
8 U.S.C. § 1324(a)(1)(A)(iv) provides criminal penalties for any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”

Last December, the Ninth Circuit held this section unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression, including “a loving grandmother who urges her grandson to overstay his visa.” United States v. Sineneng-Smith, 910 F.3d 461, 483 (9th Cir. 2019) (cert. pet. filed 07/12/2019).The Tenth Circuit has yet to address this section. But this week, D. Kan. Judge Murguia relied on Sineneng-Smith to vacate two jury convictions under this section. United States v. Hernandez-Calvillo, D. Kan. No. 16-cr-20097-05 (Order of Dismissal filed 08/21/19); United States v. Papalotzi, D. Kan. No. 16-cr-20097-06 (same).The government may well appeal. In the meantime, if your client has been charged under this section, move to dismiss, and consider moving to vacate any already-entered plea.

Tenth Circuit Breviaries

Sun, 08/18/2019 - 16:13
Conditions of Release

A special condition of supervised release granting authority to the probation officer to decide whether and when the defendant may use computers and internet-access devices is impermissibly broad and an abuse of discretion in United States v. Blair
Civil Rights

Prosecutors are not absolutely immune from liability for fabricating evidence during the preliminary investigation of a crime. For more information, and a fascinating (if disturbing) account of a wrongful conviction, read Bledsoe v. Vanderbilt.

Yes, officer, you may stop someone for flipping you off

Wed, 08/14/2019 - 14:00
So says the Court of Appeals of North Carolina. The court held that a state trooper had reasonable suspicion to stop a vehicle after its passenger flashed an obscene hand gesture at the officer, as the vehicle passed the officer assisting a stalled motorist. During the stop, the passenger refused to provide identification, and got a ticket for obstructing a public officer.

In approving the stop, the court explained that even if the middle-finger gesture itself is not a crime, the "trooper saw Defendant make rude, distracting gestures while traveling on a highway in a moving vehicle in the vicinity of other moving vehicles." Those gestures, the court said, were evidence of the crime of disorderly conduct. The court stressed that the gestures were aimed at an "unknown target" and "could alert an objective officer to an impending breach of the peace."

This result differs from one reached by the Sixth Circuit earlier this year.  In the Sixth Circuit case, a traffic stop had ended and the driver gestured to the officer as she left. The officer pulled her over again, and upgraded the already-given ticket to a more serious violation. The Sixth Circuit concluded that the stop violated the Fourth Amendment because the driver “did not break any law that would justify the second stop and at most was exercising her free speech rights.” In direct contrast to the North Carolina court, the Sixth Circuit found that not only is the gesture itself not a crime, but it is also not evidence of any other ongoing crime.

Tenth Circuit Breviaries

Sun, 08/11/2019 - 08:37
Last week in the Tenth Circuit:

Defense experts

Don't be tardy or stingy with your defense-expert notice, especially if the court has granted multiple continuances to accommodate your expert search. That's the lesson of United States v. Paup, affirming a magistrate judge's exclusion of the defendant's expert witness.

Sentencing: obstruction of justice

In Paup, the Tenth Circuit also affirmed the magistrate judge's imposition of a 2-level offense-level increase for perjury under USSG 3C1.1.

Notice of appeal

A person who has been convicted and sentenced may immediately appeal from the judgment of conviction and sentence, even if restitution is still pending. This is true even if the district court has upheld a magistrate-imposed sentence and remanded the case to the magistrate for further restitution proceedings. Despite the outstanding restitution order, the conviction and sentence are final for notice-of-appeal purposes. Read Paup to learn more.

Cautionary note: This notice of appeal will not invoke appellate review of the eventual restitution order. A separate notice of appeal must be filed from that order, at which point, if practicable, the two appeals may consolidated.

Tenth Circuit Breviaries

Sun, 08/04/2019 - 10:39
Only one published criminal case from the Tenth Circuit last week:

Sentencing: official victim

USSG 3A1.2(c)(1) provides for a hefty 6-level offense-level increase if the defendant assaulted a law-enforcement officer. This guideline requires proof of an intent to instill fear of bodily harm. So said the Tenth Circuit in United States v. Gonzales, vacating Mr. Gonzales's sentence and remanding for resentencing because the district court erroneously interpreted this section as lacking any intent requirement.

"This ends here": no more sentencing based on acquitted conduct (in Michigan state court, anyway)

Wed, 07/31/2019 - 17:52
The Tenth Circuit has long held---as have other circuits---that a district court may consider acquitted conduct as relevant conduct at sentencing.

It's time to ask the circuits to reconsider. This week, the Michigan Supreme Court held that "due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted." In People v. Beck (available here), the majority explained why this conclusion is not foreclosed by existing United States Supreme Court decisions. The majority also offered an impressive list of judges and commentators who have criticized the use of acquitted conduct at sentencing, including Justice Kavanaugh when he was on the DC Circuit (see here).

The Michigan decision was based not on the Michigan state constitution, but on the due process clause of the Fourteenth Amendment to the United States Constitution. Chances are good that the state will petition the United States Supreme Court for a writ of certiorari. Will the High Court bite? I don't know, but it won't hurt our clients to start preserving the issue (and it might hurt them if we don't).

Tenth Circuit Breviaries

Sun, 07/28/2019 - 17:26
Last week at the Tenth Circuit:


In Eaton v. Pacheco, a federal district court partially granted Section 2254 relief to Mr. Eaton, vacating his Wyoming death sentence. But the district court affirmed Mr. Eaton's convictions for murder and other crimes, and refused to bar the state from conducting new death-penalty proceedings. On appeal, the Tenth Circuit affirmed, holding that (1) the district court was not required to hold an evidentiary hearing on Mr. Eaton's ineffective-assistance-of-counsel-claims; (2) the district court did not err in denying those claims; (3) the district court did not err in refusing to bar further death-penalty proceedings; and (4) Mr. Eaton's Brady claim was waived (as to sentencing) and beyond the scope of his certificate of appealability (as to guilt).

Of particular interest to postconviction practitioners are Eaton's discussions of Pinholster; of stand-alone IAC claims versus IAC as cause/prejudice to excuse procedural default; and of the need for specificity in requesting Section 2254 relief.

The Tenth Circuit also reminds all appellate practitioners in Eaton that arguments raised perfunctorily in an opening brief, or for the first time in a reply brief will be considered waived.

Sentencing: organizer/leader versus manager/supervisor

Check out United States v. Rubio-Sepulveda (unpublished) for a detailed discussion of what makes an organizer/leader versus a manager/supervisor under USSG 3B1.1. In this case the Tenth Circuit held that the district court clearly erred when it applied the organizer/leader enhancement to Mr. Rubio-Sepulveda.

How to get a Franks hearing

Thu, 07/25/2019 - 17:24
What makes a good Franks motion? To find out, check out Judge Dillon's order granting a hearing in United States v. Anderson, No. 7:19-cr-00027, 2019 WL 3307841 (W.D. Va. July 23, 2019).

In Anderson, the search warrant affidavit at issue (1) failed to clarify that the affiant was relying on controlled buys conducted by two (not just one) confidential informants (and not conducted by the affiant himself); (2) made no statements concerning either confidential informant's credibility; and (3) omitted information that the first confidential informant had been caught with a narcotic during a previous controlled buy and had been terminated from the investigation.

This detailed offer of proof was sufficient to warrant a Franks hearing:

"[W]hat the magistrate did not know, and could not have gleaned from the totality of the affidavit, is that there were two different confidential informants, that no information about reliability or trustworthiness had been provided for either of them, and that the first confidential informant was in possession of narcotics during one of the earlier controlled buys from Anderson. Therefore, looking to the omissions and the affidavit as a whole, the court finds that Anderson has also made a substantial preliminary showing under the materiality prong that the omitted information was material and necessary to the finding of probable cause."

Tenth Circuit Breviaries

Sun, 07/21/2019 - 14:29
Last week at the Tenth Circuit:

Waiver of Right to Counsel

When a person charged with a crime seeks to proceed pro se, the district court must ensure that the person's waiver of counsel is knowing and intelligent. Among other things, the district court must properly warn the person of the need to adhere to federal procedural and evidentiary rules. In United States v. Hansen, a tax-crimes prosecution against a sovereign citizen, the district court failed to do just this, rendering Mr. Hansen's waiver inadequate. Convictions and sentences vacated.

Fourth Amendment

In United States v. Pittman (unpublished), the Tenth Circuit affirmed the district court's denial of Mr. Pittman's motion to suppress, reminding us along the way that the Federal Rules of Evidence do not apply at a suppression hearing.

"Sloppy study of the laws" leads to suppression

Thu, 07/18/2019 - 18:35
We learned a few years ago in Heien v. North Carolina, 574 U.S. 54 (2014), that the exclusionary rule does not apply to the fruit of a police seizure based on an objectively reasonable mistake of law.

But what about an earnestly believed mistake of law?

If that belief is not objectively reasonable, then it cannot support the seizure.

So held D. Kan. Judge Teeter in a recent order suppressing the fruit of a traffic stop for leaving a running car "unattended." "Unattended" as used in the Topeka ordinance at issue does not apply to a car that is simply "unoccupied" while its driver remains nearby. The seizing officer's earnest belief to the contrary was not reasonable. Applying the exclusionary rule in this circumstance will deter "a sloppy study of the laws" that officers are duty-bound to enforce.

Evidence suppressed.

Tenth Circuit Breviaries

Sun, 07/14/2019 - 15:00
Fourth Amendment

When and for how long may a passenger be detained during a traffic stop? "So long as law enforcement retains the ‘need to control the scene’—here, for at least the duration of a consent search of the vehicle—the longstanding interest in officer safety outweighs any additional intrusion created by investigatory detention to a passenger’s personal liberty." That's the lesson of United States v. Gurule. The Gurule Court also held that law enforcement's frisk of Mr. Gurule during this traffic stop was reasonable.

Conditions of Release

A person may move to amend the conditions of his or her pretrial release under 18 U.S.C.  § 3145(a)(2). Fed. R. Crim. P. 59(a)'s framework (for appeals from matters referred to a magistrate) does not apply to this type of motion. And thus, in United States v. Doby, the Tenth Circuit held that the district court erred in denying Mr. Doby's Section 3145 motion to amend as untimely under Rule 59.

Predicate Offenses

An Oklahoma felony conviction for conspiracy to shoot with intent to kill is not an ACCA predicate, despite its inclusion of an overt-act element. United States v. Wartson (unpublished). Read Wartson for a good discussion of how the categorical approach works under the ACCA's element-of-force clause (the predicate offense must do more than merely involve the use or threatened use of force, it must include an element of force).

Federal Expungements

Federal expungements of arrests, acquittals, and convictions, though rare, do exist, at least for now in the Tenth Circuit. Want to know more? Read United States v. Trzaska (unpublished).

Is your "alien" client really a US citizen?

Thu, 07/11/2019 - 20:27
Federal records indicate that between 2007 and 2015, more than 1,500 US citizens spent time in immigration detention. And those are the just the numbers acknowledged by the government. Is your unlawful entry/reentry client really a US citizen? Read this article about citizens illegally detained by ICE, and get inspired to challenge the government's case for alienage.

Remember: Challenging alienage is not as complicated as trying to undo an underlying removal order. Alienage is an essential element that the government is required to prove. Demand exculpatory discovery regarding this essential element. Make the government prove this element at trial.

Tenth Circuit Breviaries

Sun, 07/07/2019 - 15:16
Last week at the Tenth Circuit:

Fourth Amendment

In United States v. Mathews, the Tenth Circuit held that, under the totality of circumstances, ATF investigators reasonably searched Mr. Mathews’s historical GPS data (collected from his ankle monitor while he was under a state community supervision order). This was a legal question that the district court appropriately resolved without an evidentiary hearing. Read this case for a fuller understanding of the law regarding warrantless searches involving people on state parole/probation.

FRE 702/Daubert

Mathews also reminded us that “Daubert does not mandate an evidentiary hearing.” And that if we want to preserve a challenge to the reliability of an expert’s opinions, conclusions, and methodologies, we must do more than simply challenge the expert’s credentials. Specificity in making Daubert objections is key to appellate review. 

Fourteenth Amendment/Due Process

In case you didn't know, "[e]xposing a person's naked body involuntarily is a severe invasion of personal privacy" implicating due-process concerns. Consequently, the district court properly denied qualified immunity to six deputy sheriffs who walked a man in their custody through the public area of a hospital completely unclothed but for a pair of orange mittens. So said the Tenth Circuit in Colbruno v. Kessler, a § 1983 case.

Rehaif v. United States: Scienter separates "wrongful from innocent" conduct

Mon, 07/01/2019 - 22:52
Under federal law, certain people cannot possess firearms based on their status: felons, fugitives, those lacking legal immigration status, and so forth. See 18 USC sec. 922(g).  Previously, the Tenth Circuit held that to convict someone of this crime, the only mens rea required was "knowledge that the instrument possessed is a firearm.” The government did not have to prove that the person knew of their ineligible status.

Justice BreyerBut that changed with the Supreme Court's decision in Rehaif v. United States last week, in a 7-2 opinion by Justice Breyer.:
We hold that the word "knowingly" applies both to the defendant's conduct and to the defendant's status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.Rehaif was convicted of possessing a firearm while he was in the country without legal immigration status, under sec. 922(g)(5). He had been here on a student visa, but that lapsed. At trial, the jury was instructed that the "United States is not required to prove" that Rehaif "knew that he was illegally or unlawfully" in the United States. He was convicted, and the Eleventh Circuit upheld the conviction.

The Supreme Court did not agree. Emphasizing the text of the statute, the Court required the presumption of scienter to separate "wrongful from innocent" conduct.
It is therefore the defendant's status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach.The Court offered two examples:
If the provisions before us were construed to require no knowledge of status, they might well apply to an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is "punishable by imprisonment for a term exceeding one year."To break it down, Rehaif requires that the government prove, in a felon-in-possession case, that,

1) the person had a prior disqualifying felony (punishable by more than one year in prison) and 
2) that the person knew that they were convicted of a  disqualifying felony at the time of the alleged possession.

These are not the same element. Proof that the person was convicted of a felony years before is not the same as proof that they knew they were a felon at the time of the possession.  Someone may have been convicted of a felony, but then believed they could have a gun once they were off supervision. Or they may have been told they were convicted of a felony, but that conviction does not disqualify because it was not punishable by more than one year in prison. 

With Rehaif,  the grand jury must find as an element that the defendant actually knew their status at the time of the possession; it must be alleged in the indictment as an element; and the jury must be so instructed.

Justice AlitoJustice Alito and Thomas dissented, and angrily so. The dissent seemed less concerned about whether the decision was correct and more concerned about the fallout.
The decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions. Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts. A great many convictions will be subject to challenge . . . Let's hope so.

Conditions of release, diversion, probation, etc: testing by ordeal?

Wed, 06/19/2019 - 17:30
Your client is offered pretrial release, or diversion, or a chance to avoid revocation. All he or she must do is prove worthiness by complying with certain conditions for a certain period of time. What a deal!

Not necessarily. In a fascinating new article now available on SSRN or Westlaw, Yale Law School Clinical Professor Fiona Doherty compares these sorts of "testing periods"---during which the defendant has a chance to avoid prison by passing a test---to medieval trials by ordeal. While they are great opportunities for some defendants, they are traps for many others.

As Professor Doherty observes: "It turns out that defendants will accept nearly any arrangement as long as it provides them the opportunity to avoid going to prison. The possibility of avoiding prison is so strong an incentive for defendants that little else is required to counteract the scope of the concessions that judges and prosecutors have been able to demand from defendants in exchange . . . . [F]or defendants facing addiction, mental health issues, or disadvantaged social circumstances, the “test” may be stacked against them from the beginning. Given the high stakes, careful attention needs to be paid to the criteria that are being used in Testing Periods to sort defendants into the system's winners and losers."
Read this article and think about how defense counsel can encourage judges, prosecutors, and probation officers to impose more realistic tests, so that the defendant's gamble in accepting the challenge might actually pay off.