Public Defense

What Do a Pompadour, an Ascot, and a Haberdashery Have In Common?

Posted on January 11, 2008
They're all mentioned in this entertaining article about a battle of wills over proper courtroom attire.Link via How Appealing.

Alien Gets Obstruction & Loses Acceptance for Requesting Interpreter at Sentencing, After Not Asking for One at Earlier Hearings

Posted on January 10, 2008
United States v. Juarez-Duarte, No. 05-11394 (5th Cir. Jan. 4, 2008) (per curiam) (King, Barksdale, Dennis)Juarez, a Mexican citizen, was arrested for illegal reentry. At his initial appearance, he told the magistrate judge that he could understand and speak English...

Fives Restore Inter-Circuit Harmony, Hold Sixteen is the Age of Consent for Generic Statutory Rape

Posted on January 10, 2008
United States v. Lopez-DeLeon, No. 06-41553 (5th Cir. Jan. 9, 2008) (Wiener, DeMoss, Prado)"Statutory rape" is one of the enumerated crimes of violence subject to a 16-level enhancement under the illegal reentry guideline, §2L1.2. Back in October the Ninth Circuit held, in United States v...

Cert Denied in Pineda-Arrellano; What Now of Challenges to Almendarez-Torres in the Fifth Circuit?

Posted on January 07, 2008
Today the Supreme Court denied cert, without comment, in Pineda-Arrellano v. United States. As those of you who handle lots of illegal reentry cases know well, Pineda-Arrellano is the case in which a Fifth Circuit panel opined, in dicta, that a challenge to Almendarez-Torres no longer serves as a legitimate basis for appeal...

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Simple Possession of Even Large Quantitites of Drugs Is Not an Aggravated Felony (or a Drug Trafficking or Controlled Substance Offense)

Posted on January 03, 2008
Arce-Vences v. Mukasey, No. 06-60033 (5th Cir. Dec. 21, 2007) (Jolly, Higginbotham, Prado)First, some background for those of you who aren't familiar with the Texas controlled substance scheme: Texas has no statute that include the elements of possession of marihuana with the intent to distribute it...

How to Preserve Argument That Indictment Dismissed Because of Speedy Trial Act Violation Should Have Been Dismissed With Prejudice

Posted on December 20, 2007
United States v. Stephens, No. 07-30837 (5th Cir. Dec. 19, 2007) (per curiam) (Jolly, Prado, Southwick)In United States v. Jackson, the Fifth Circuit held that a dismissal of an indictment without prejudice (due to a Speedy Trial Act violation) is not a final appealable order...

If Defendant Appears Before Being Indicted, then Indictment Starts Speedy Trial Clock Running

Posted on December 20, 2007
United States v. Lopez-Valenzuela, No. 05-61130 (5th Cir. Dec. 19, 2007) (Jolly, Clement, Owen)This is a Speedy Trial Act case, so let's start with the timeline:Lopez is arrested for illegal reentry and appears before a magistrate judgeLopez is indicted for illegal reentryLopez signs a "Waiver of Appearance and Entry of Not Guilty Plea" formmore than three months later, the waiver form is filedthe next day, Lopez files a motion to dismiss the indictment because he wasn't brought to trial within 70 days of his indictment, as required by the STAThe district court denied Lopez's motion, so he entered a conditional guilty plea reserving the right to appeal that ruling...

Assault with Intent to Commit a Felony is Generic "Aggravated Assault" for COV Purposes

Posted on December 17, 2007
United States v. Rojas-Gutierrez, No. 06-50584 (5th Cir. Dec. 13, 2007) (Garwood, Jolly, Stewart)Rojas, who pled guilty to illegal reentry, had a prior conviction under Cal. Penal Code § 220(a), which criminalizes assault with the intent to commit certain felonies (mayhem, rape, sodomy, oral copulation, or three other sex offenses)...

Panel Reverses Itself in Ford; Now Holds Possession with Intent to Offer to Sell is a Drug Trafficking/Controlled Substance Offense

Posted on December 12, 2007
United States v. Ford, No. 06-20142 (5th Cir. Dec. 11, 2007) (Davis, Prado; Dennis, dissenting)As you'll recall, back in May the panel in this case held unanimously that the Texas offense of possession of a controlled substance with intent to deliver is not a "controlled substance offense" as defined in guideline §4B1...

Fifth Circuit Local Rules Changes Effective December 1, 2007

Posted on December 11, 2007
The Fifth Circuit has helpfully provided this summary of Local Rules changes that took effect on December 1st. Those changes include:elimination of the Rule 28.2 provisions concerning the "Summary of Argument," "Statement of Jurisdiction," and "Standard of Review;"amendment of Rule 30...

Court Adopts Generic Definition of "Theft Offense" Used By Other Circuits for Aggravated Felony Purposes

Posted on December 11, 2007
Burke v. Mukasey, No. 06-60710 (5th Cir. Dec. 10, 2007) (per curiam) (Jolly, Higginbotham, Elrod)The "aggravated felony" defintion in 8 U.S.C. § 1101(a)(43) includes a bunch of things (many of which are neither aggravated nor felonies), including a "theft offense...

Plenty of FEMA Fraud Prosecutions in Southern Mississippi

Posted on December 05, 2007
Speaking of FEMA fraud, the Associated Press reports thatThe Bush administration now acknowledges it is trying to recover nearly $500 million from people who improperly received federal aid money intended to help victims of two deadly hurricanes, Katrina and Rita, along the Gulf Coast two years ago...

Cool (and Free) Online Legal Resources

Posted on November 27, 2007
Eugene Volokh hips us to a treatise published by the Congressional Research Service: The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States. I've never heard of it before, so I can't vouch for it...

Speedy Trial Act Claims Rejected in Katrina-Related Fraud Case

Posted on November 26, 2007
United States v. Green, No. 07-60184 (5th Cir. Nov. 9, 2007) (Reavley, Smith, Garza)Green rejects a couple of novel (in the Fifth Circuit) Speedy Trial Act arguments, but doesn't completely close the door on one of them. All of you STA mavens out there will definitely want to read on to find out what this font of future litigation might be...

Documents Established That FL 2d Degree Burglary Conviction Was for "Burglary of a Dwelling" & Thus a §2L1.2 COV

Posted on November 26, 2007
United States v. Castillo-Morales, No. 07-40053 (5th Cir. Nov. 8, 2007) (Jones, DeMoss, Stewart)Under the categorical approach, a court is generally precluded from relying on documents such as complaint applications when determining whether a prior conviction was for a generic offense, such as burglary...

Search & Seizure Outline from the Oregon Federal Public Defender

Posted on November 26, 2007
As the Ninth Circuit Blog reports:The November 2007 version of Developments in Federal Search and Seizure Law is now available on the Oregon Federal Public Defender website here. We have been collecting Fourth Amendment cases for over ten years, integrating defense wins into an outline that provides counterpoints to the trends away from protection of individual rights...

District Court May Not Grant New Trial On Ground Not Raised in Defendant's Rule 33 Motion

Posted on November 08, 2007
United States v. Nguyen, No. 06-20598 (5th Cir. Nov. 7, 2007) (per curiam) (Benavides, Clement, Prado)At the closing arguments during Nguyen's trial for possession of cocaine with intent to distribute, the Government made an argument during rebuttal that it had not made in its opening argument, and that Nguyen had not addressed during his argument...

TX Injury to Child by Act is 18 U.S.C. § 16(b) COV, Because Of Substantial Risk Physical Force Against Person Will Be Used In Course of Committing It

Posted on November 07, 2007
Perez-Munoz v. Keisler, No. 06-60440 (5th Cir. Nov. 6, 2007) (Jolly, Davis, Wiener)The Texas Penal Code has an offense called "Injury to a Child," which is defined as intentionally, knowingly, or recklessly causing bodily injury to a child, either by act or omission...

More News On Operation Streamline

Posted on November 06, 2007
The Dallas Morning News reports here on the commencement of Operation Streamline in Laredo. The story covers much of the same ground as the articles mentioned here, but it's still worth a look-see.Also, the Arizona Republic reports that Operation Streamline, which has been in effect in the Yuma sector for a while now, may be expanded to the rest of Arizona...

Ninth Circuit Addresses Sell; Takes Somewhat Different View Than Fifth Circuit

Posted on November 05, 2007
Let's jump in the way-back machine for a short trip to last week, when the Fifth Circuit addressed the standard of review for Sell orders (that a defendant be involuntarily medicated to restore his competency to stand trial) in United States v. Palmer...

Happy Guidelines Day! (Hope You Saved Some of Your Halloween Candy to Celebrate With)

Posted on November 01, 2007
It's November 1st, and you know what that means: new Guidelines! The Sentencing Commission has helpfully posted on its website the 2007 version of the Guidelines Manual, as well as a reader-friendly redline version of the amendments taking effect today...

Panel Withdraws Opinion Holding that GA Meth "Trafficking" is a 2L1.2 DTO, But Holds That State Guilty Plea Admitted Conduct That Is a DTO

Posted on November 01, 2007
United States v. Gutierrez-Bautista, No. 06-40486 (5th Cir. Oct. 31, 2007) (Smith, Weiner, Owen)The court first decided this case back in July. Gutierrez, who pled guilty to illegal reentry, had a prior Georgia conviction for "trafficking" in methamphetamine...

Court Adopts Standard of Review for Appeal from Order That Defendant Be Involuntarily Medicated to Restore Competency to Stand Trial

Posted on November 01, 2007
United States v. Palmer, No. 06-31018 (5th Cir. Oct. 31, 2007) (Garwood, Jolly, Stewart)Palmer appealed an order that he be forcibly medicated with Haldol to restore his competency so he could stand trial on a charge of possession of a firearm by a person adjudicated mentally defective...

ACCA Enhancement Vacated Because Government Failed to Prove That One of the Three Prior Violent Felonies Was Counseled

Posted on October 31, 2007
United States v. Hollis, No. 06-50784 (5th Cir. Oct. 30, 2007) (Higginbotham, Smith, Owen)Although brief, this opinion covers a lot of ground on three very interesting issues: 1) whether an Old Chief stipulation waived Hollis's right to collaterally attack the validity of an uncounseled prior conviction; 2) whether the Government proved that the prior conviction complied with Gideon, in the face of Hollis's testimony that he was indigent at the time of the prior conviction, that he did not have counsel, that the court never offered him counsel, and that he never waived counsel; and 3) assuming that the court decided an issue against Hollis in his first appeal, whether the manifest-injustice exception to the law of the case rule allowed the court to reconsider that issue on this appeal following resentencing...

Ninth Circuit Holds Date of Removal Is An Element of Enhanced Penalties Under 8 U.S.C. § 1326(b) & Must Be Alleged In Indictment & Found By Jury BRD

Posted on October 29, 2007
In what is becoming a semi-regular feature of this blog, here's another Ninth Circuit case that you should be aware of: United States v. Salazar-Lopez, No. 06-50438 (9th Cir. Oct. 24, 2007) (Fisher, Clifton, Fogel, D.J.). There's good and bad in this opinion...

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