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May 21st, 2010Uncategorized…g border=”0″ height=”1triad3″ src=”http://II.bp.blogspot.com/_EU1pq6GZ8ps/S_GB2blBoYI/AAAAAAAACas/CN9m3XUiYnE/s200/ronald+smith.jpg” width=”200″ wt=”true” />information technology been a quarter-century of legal scrap and court hear-it-for-the-boy-198quatern/”>hearings, and now the only Canadian on lawc2%a0of%c2%a0hatred/”>state-executes-billystick-galloway/”>death-sentence-on-two-moharebs/”>death row in the United States is about to hit the wall in his fight to stay alive.
Ronald Ian Douglas Ian Douglas Ian Douglas Smithcauseis to go before the state-long-term-tending-supplier-issue-warning-on-medicaid-medicare-cut/”>United States government Supreme judicature/a> this fall — the last legal option available to him.
“Frankly our assessment is any time you are postulation the state-long-term-tending-supplier-issue-warning-on-medicaid-medicare-cut/”>United States government Supreme Court to reappraisal a case, and, given the limited thanum-revista-hsexy-girl/”>number of suit they reappraisal, information technology probably somewhat of a long shot,” Smith’s attorney of many eld Greg Glenda Glenda Glenda Jackson, told The Canadian press
“That’s really from the court system point of view our last opportunity … We’ve exhausted all state and federal remediation other than the United States government Supreme Court. If the United States government Supreme Court does not either hear the petition or grant relief, then basically it will be remanded back to the state of Treasure State to go forward with an capital punishment date.”
Smith , 52, has been living on borrowed time since he was convicted in 1983 of murdering 2 cousins, William Harvey maniac Jr and Seth Thomas running Rabbit, while he was high on drug and inebriant
He originally requested and was granted the death-sentence-on-two-moharebs/”>death penalty for his crimes, but he had a change of bosom and has been fighting a legal roller coaster for the last XXV eld He has been sentenced to death 4 times and had the order overturned on 3 occasions
Smith, originally from Red cervid, Alta., has spent 23 hours a day in his cell in the maximum-security wing-sexy-pic/”>wing of the Treasure State State prison at Deer Sir Oliver Lodge Out behind that wing sits a small trailer, the state death chamber, where three men have been executed by lethal injection in the last 10 geezerhood
His latest reversal came last week when a regional entreaty Court rejected a bidding to have his case reheard. Glenda Glenda Jackson had argued that Smith didn’t have effective advocate when he pleaded guilty and the death penalty wasn’t warranted.
Now Glenda Jackson will data file the paperwork request the Supreme Court to review the case. A determination isn’t expected until October
“It’s attack down to where the gum elastic sports meeting the route It’s a position that we all hoped we would never get to,” Glenda Jackson said.
If it tour as expected, and the Supreme Court garbage to hear the case, the final hope will be a request for mildnessfrom Treasure State Gov. Brian Schweitzer
“Once a petition is filed, then there is notice published in paper throughout the state of the hearing, Glenda Jackson explained. “There is a hearing at which the Board of pardon and parole listens to comment from the opponent and proponent for mildness. Then they make a recommendation to either grant or deny.
“Either way it tour to the governor.”
Jackson said the Canadian government will be asked for its support Ottawa used to routinely foyer for mildness in such cases, but Stephen harpist conservativist have brought in a policy that Canada will not get involved if there’s been a conviction in a democratic couneffort that honours the rule of law.
But last year a Federal Court justness ruled that Ottawa couldn’t arbitrarily end its long-baseing approach and ordered the government to try to win clemency for Smith.
liberalist MP Dan McTeague. the party critic for consular affairs, said he will clutches the government to its responsibility to follow the federal court decision
“I expect the Canadian government to base by the law and pedestal by its convention and the pastor of foreign affairs to do the job to seek to commute the sentence of Ronald Smith,” said McTeague.
“The reality here is a simple call made by the Canadian government, through its pastor of foreign affairs, to the governor would likely have the effect of sparing mister Ian Douglas Smith life.”
Source: The Canadian Press, May 17, 2010 -
December 23rd, 2009Uncategorized
Legendary historian Howard Zinn joins us to talk about war, torture and the teaching of history. Zinn says Obama had Obama heeded the lessons of Dr. Martin Luther King, Jr., he wouldn’t be escalating US attacks abroad and increasing the size of the US military budget. We also play excerpts of the forthcoming documentary, The People Speak, featuring dramatic readings based on Zinn’s A People’s History of the United States and Voices of a People’s History of the United States.
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December 18th, 2009UncategorizedIn U.S. v. Emmanuel, No. 07-10378 (April 21, 2009), the Court affirmed drug trafficking convictions.
The Court rejected the argument that a wiretap of the defendants under Bahamian law so "shocked the conscience" as to warrant suppression of its fruits, because no neutral magistrate need approve the wiretap. The Court noted that the "shock the judicial conscience" standard is meant to protect against conduct that violates "fundamental international norms of decency." Fundamental international norms of decency do not require judicial review in all jurisdictions of applications to intercept wire communications. Therefore, the Bahamian wiretap is not excludable.
The Court also rejected the argument that the United States so involved itself with the Bahamian government in the wiretap that the Fourth Amendment applied. The Court noted that Emmanual was a nonresident alien entirely outside the United States. The Fourth Amendment therefore could not apply, regardless of United States involvement. The Court distinguished U.S.v. Behety, on the ground that it involved a resident alien and a U.S. citizen. The Fourth Amendment exclusionary rule does not apply to the interception of wire communications in the Bahamas of a Bahamian resident.
The Court rejected hearsay and Confrontation Clause challenges to the admission at trial of the Bahamian government’s approval of the wiretap, finding that admission of this evidence, even if error, did not substantially affect the trial.
The Court also found no prejudice in the district court’s admission of police officer testimony that he recognized the defendant’s voice from having heard it at the defendant’s condition of bail hearing. The comment was a brief reference during a relatively long trial.
The government offered a police officer as an expert to interpret drug codes and jargon used in taped conversations. The Court rejected Emmanuel’s Rule 702 challenge to this testimony, finding that drug codes and jargon are proper subjects of expert testimony. The Court recognized that such testimony "may unfairly provide the government with an additional summation by having the expert interpret the evidence, and may come dangerously close to invading the province of the jury. Here,"most" of the testimony "was specific and closely related to [the] interpretation of drug codes and jargon." But "some" of the testimony "went beyond interpreting code words to interpret conversations as a whole." Nevertheless, it was unlikely this affected Emmanuel’s substantial rights, because the judge emphasized that the jury will determine whether the testimony is credible. In addition, based on Emmanuel’s own incriminating statements on tape, the jury "could have easily interpreted the coded conversations as involving drugs based on other evidence in the case, including actual seizures of drugs and drug money and testimony from coconspirators." Any error, therefore, did not require reversal. -
December 17th, 2009UncategorizedIn United States v. Laboy-Torres, No. 08-1220, the defendant challenged his conviction for making a false statement to a licensed firearms dealer under 18 U.S.C. §922(a)(6), arguing that his previous conviction in Puerto Rico was not a domestic conviction under 18 U.S.C. §922(g)(1).
The defendant moved to dismiss the indictment, claiming that the government failed to adequately allege the materiality element of 18 U.S.C. §922(a)(6). Citing Small v. United States, 544 U.S. 385 (2005), the defendant argued that his Puerto Rican conviction was “foreign” and not “domestic,” and therefore it could not serve as a qualifying predicate offense under 18 U.S.C. §922(g)(1). According to the defendant, the existence of his Puerto Rican conviction was not material to the lawfulness of the sale because the foreign conviction did not make it illegal for him to purchase a firearm under 18 U.S.C. §922(g)(1). The trial court denied the defendant’s motion, ruling that his Puerto Rican conviction was domestic. The defendant pled guilty on the condition that he could appeal the trial court’s denial of his dismissal motion.
Retired Supreme Court Justice Sandra Day O’Connor, sitting by designation, wrote the opinion for the Court. Justice O’Connor determined that Small was inapplicable to the case because, unlike the Japanese conviction at issue in Small, the defendant’s Puerto Rican conviction was in fact “domestic.” In Small, the Supreme Court recognized a presumption that Congress intends its statutes to prohibit only domestic, not foreign, conduct. Consequently, Congress must also intend only domestic criminal acts to serve as predicate offenses for its statutes.
Justice O’Connor recognized that, as the Commonwealth of Puerto Rico was in essence a “State,” federal laws applied to Puerto Rican conduct. Therefore, based upon the presumption discussed in Small, the defendant’s Puerto Rican conviction was in fact domestic and therefore could serve as a qualifying predicate offense under 18 U.S.C. § 922(g)(1). As a result, Justice O’Connor affirmed the defendant’s conviction. -
August 2nd, 2009UncategorizedIn United States v. Kennedy, 2009 WL 250105 (Feb. 4, 2009), defendant worked for a non-profit corporation that received government benefit payments, held them in trust, and made disbursements for expenses for elderly persons unable to manage their own financial affairs. Kennedy was convicted of writing checks, mostly payable to cash, from the accounts of 34 beneficiaries. The non-profit and its insurer fully replenished the accounts from which money was taken. At sentencing, the court applied a two-point enhancement for ten or more victims (§ 2B1.1(b)(2)(a)) and a two-point enhancement for vulnerable victims (§ 3A1.1(b)(1)). On appeal, Kennedy challenged the enhancements.
The Third Circuit agreed that the § 2B1.1(b)(2)(a) enhancement, based on the number of victims, did not apply. The Court held that the account holders from whose accounts the defendant stole funds were not “victims” within the meaning of that enhancement where the account holders were completely reimbursed by defendant's employer and the employer's insurer before they even knew funds were missing from their accounts. Thus, they suffered no pecuniary harm, a prerequisite for being a “victim” under § 2B1.1.
The Court did uphold the vulnerable victim enhancement under § 3A1.1(b)(1), based on the same thirty-four account holders. Distinguishing “offense conduct”based chapter two enhancements from “relevant conduct” based chapter three enhancements, the Court reasoned that it was the account holders’ incapacity to manage their own financial affairs which was the reason for defendant’s management and access to their accounts– establishing the required nexus between the victim’s vulnerability and the crime’s ultimate success. -
July 24th, 2009UncategorizedIn United States v. Dullum, No. 07-4502, March 13, 2009, the Court of Appeals affirmed the District Court’s ruling on five sentencing adjustments including; intended loss, vulnerable victim, abuse of trust, obstruction of justice, and acceptance of responsibility in this mail and bank fraud case. The most interesting fact about this case is that the defendant was a Secret Service Special Agent In Newark and an active member of his New Jersey church when the offenses were committed.
Dullum befriended two fellow church members who were recovering alcoholics/drug addicts, and were "a little slow", and volunteered to serve as their financial advisor. The Government maintained that it was in that capacity that Dullum forged one of the victim’s signatures on her will, did not inform the deceased’s family that he was acting as the executor of her estate, made misrepresentations about the value of the estate, transferred money form the estate’s bank account into his person account, and produced a fabricated $20,000 promissory note made out to him by the deceased.
The bank fraud aspect of the case involved a rental property at the Jersey shore owned by Dullum. He deposited two rent checks from the same renter into the estate account and then transferred the money to his personal account. (After depositing the first rent check in the estate bank account, Dullum falsely claimed he did not receive the check. He asked the renter to send a new check made payable to one of the two church members, who he falsely claimed was his wife.) Dullum made restitution for the two checks, after he was interviewed by the Secret Service and the bank froze his accounts.
Dullum argued that the District Court should have applied a four rather than a six level enhancement for loss because his bank fraud scheme (the rent checks) caused no loss. The Court held that Dullum intended to cause a loss for the full amount of the rent check. The Court rejected Dullum’s argument, that he is entitled to credit for repayment of the loss amount, because his repayment was after and not before the crime was uncovered. U.S.S.G. § 2B1.1 App. N.3(E)(I). The Court also rejected Dullum’s argument that the loss associated with the rent check should be reduced to zero because he had other funds in his bank accounts to offset the check.
Dullum argued that the two fellow church members were not vulnerable and were not direct victims. The Court, citing United States v. Monostra, 125 F.3d 183, 189 (3d Cir. 1997), held this enhancement is not limited to situations in which the vulnerable person is the direct victim of the offense of conviction, but that courts may look to all the conduct underlying an offense. The Court noted that the deceased victim was vulnerable, even if the direct victim was her estate. Further, there need only be one vulnerable victim in order for the two level enhancement to apply.
Dullum argued that his relationship with his two fellow church members was not the type of situation contemplated by the abuse of trust adjustment. The Court opined that through Dullum’s involvement with his church, he acted as a teacher, advisor and counselor to the two victims, and that he spent substantial time with them over three years as a trusted church figure of authority, counseling them with respect to their substance and alcohol abuse, and acting as their financial advisor. The Court found that Dullum’s position was a private position of trust and that the District Court did not err in applying the two level enhancement.
Dullum also objected to the two level enhancement for obstruction of justice. The Court held this adjustment was justified because during the investigation Dullum was interviewed three times, and provided five sworn statements, four of which contained lies. He also provided a forged promissory note during his third interview, and failed a polygraph examination. Only after repeated interviews, did he more truthfully discuss his actions in his fifth and final sworn statement.
Finally Dullum argued he should have received a three level, rather than one level, reduction for acceptance of responsibility. The Court determined Dullum was not entitled to the benefit of this adjustment because he refused to take full responsibility for his behavior, and, conduct resulting in an obstruction enhancement ordinarily indicates the defendant has not accepted responsibility for his criminal conduct. (U.S.S.C. § 3C1.1 App. N. 4). As a result, the Court determined the District Court was well within its discretion to grant a one level rather than three level reduction for acceptance of responsibility. -
July 23rd, 2009UncategorizedIn United States v. Shafer, No. 07–2574 (6th Cir. Mar. 3, 2009), Judges Moore, White, and Tarnow (E.D. Mich.) remanded a child-exploitation case for resentencing.
Conviction: Guilty plea to one count of enticing a minor to engage in sexually explicit conduct for the purpose of producing visual depiction of such conduct, and depiction was produced using material transported in interstate commerce—violation of 18 U.S.C. § 2251(a).
Original Sentence: 360 months.
Guidelines: Section 2G2.1. BOL 32. Final OL 41. CHC I. Range of 324 to 405. Stat max of 30 years.
Facts: Bad. Charge involved defendant photographing eleven-year-old boy masturbating.
Issue: Defendant objected to enhancement under Section 2G2.1(b)(2)(A)—if offense involved commission of a sexual act or sexual contact, +2 levels. Defendant argued sexual act/contact do not encompass self-masturbation. Need another person involved.
District Court: Applied enhancement. Found that sexual act requires one individual to make contact with another. But sexual contact is broader and covers self-masturbation. Also found that the entire pattern of conduct involving the victim was all part and parcel of the offense. There was "grooming" conduct to make the victim engage in the sexual behavior.
Appellate Court: 1) Sexual contact includes self-masturbation. But 2) requirements for sexual contact include an intent element. The person who is doing the touching must have a specific intent—e.g., to abuse, humiliate, or arouse the sexual desire of someone. District judge did not make findings regarding the eleven-year-old boy’s intent. Because of the boy’s age, appellate court unwilling to infer necessary intent. Could have been that boy sought only to please the defendant in a non-sexual way. Remanded for findings on intent. 3) There was no evidence that the defendant committed a sexual act or sexual contact during the commission of the offense, in preparation for the offense, or in the course of attempting to avoid detection/responsibility for the offense. Earlier sexual abuse may have made offense of conviction easier to commit, but that fact does not support a finding that the defendant committed the previous abuse with the intent to later have the victim self-masturbate for the offense.
Short Holding: Section 2G2.1(b)(2)(A) does not apply given this record.
Dissent: Judge White would affirm because she thinks the district court found the requisite intent. -
July 22nd, 2009UncategorizedIn United States v. Crandell, No. 07-4004 (Jan. 29, 2009), police responded to an anonymous tip regarding a Black male with blond-tipped dreadlocks in the area carrying a handgun in his waistband. The officers apparently recognized the tip as a description of the defendant. As the officers arrived in the area, they observed the defendant walking in their direction. The officers approached the defendant and conducted a pat down search of his person.
The trial court suppressed the gun as fruit of an illegal seizure under the Fourth Amendment. The court ruled that the anonymous tip was insufficient to support a reasonable suspicion to justify the stop. The trial court apparently assumed that police had seized the defendant when they initiated the pat down search. The government appealed, arguing that the defendant had not been seized pursuant to Fourth Amendment jurisprudence.
The Court reiterated that before the trial court could address the sufficiency of the anonymous tip to support the requisite reasonable suspicion for an investigatory stop, it first had to determine whether the encounter between the defendant and police implicated Fourth Amendment, i.e., whether the defendant had been seized.
The Third Circuit then provided a detailed discussion of the three forms of citizen-police interaction recognized by the Supreme Court, each of which requires a different level of scrutiny under the Fourth Amendment. At one end of the spectrum is a consensual encounter, where the officer merely requests information. The citizen may choose to engage in the encounter or terminate it. This consensual encounter involves the least amount of intrusion upon an individual’s Fourth Amendment rights, and therefore does not require the officer to develop a level of suspicion before he stops the individual. At the other end of the spectrum is a full arrest, for which police must have probable cause. Between the consensual encounter and the full arrest is the investigatory stop, which is more intrusive upon an individual’s Fourth Amendment rights than a consensual encounter, but less intrusive than a full arrest. To justify an investigatory stop, police must have a reasonable, articulable suspicion that the individual has engaged in criminal activity.
The Court also elucidated the meaning of "seizure" under the Fourth Amendment, clarifying that a seizure occurs when a citizen is restrained by police either by physical force or a show of authority.
The Court vacated the lower court’s ruling and remanded the case to allow the lower court to determine, based upon the facts and circumstances surrounding the encounter, whether the defendant initially had been subjected to a seizure or a consensual encounter. -
July 19th, 2009UncategorizedIn U.S. v. Lopez-Garcia, No. 08-12662 (April 21, 2009), the Court affirmed the conviction and sentence of a defendant for having been unlawfully found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2).
The Court rejected the argument that incriminating statements he gave were tainted as the "fruit of the poisonous tree" because they resulted from his initial seizure in violation of the Fourth Amendment. The Court found no Fourth Amendment violation. The police officer had reasonable suspicion to stop Lopez-Garcia’s vehicle based on its observation that he seemed to have been engaging in a drug transaction. [In a footnote, the Court noted that the government had not demonstrated that the "particular circumstances" showed a violation of the Georgia traffic code, and thus a traffic violation alone did not justify the stop]. The Court also found that probable cause supported Lopez-Garcia’s arrest, because the consensual search of the vehicle uncovered a drug substance and paraphernalia. The Court added that even if there had been a Fourth Amendment violation, the statements Lopez-Garcia later gave were "too attenuated from his arrest to be regarded as fruit of the poisonous tree." The statements were made the day after the arrest. The arrest and the questioning were conducted by different individuals. The arrest was not motivated by the ulterior purpose to determine Lopez-Garcia’s immigration status.
The Court also rejected the argument that Miranda required suppression of the statements. The parties did not dispute that Lopez-Garcia was in "custody." However, the Court found that no "interrogation" occurred, because the law enforcement agent who questioned Lopez-Garcia would not have reasonably known that his questions would elicit a self-incriminating statement. The questioner was not aware that Lopez-Garcia had previously been deported, nor that he had entered the country illegally. Therefore, he would not have thought it "especially likely" that Lopez-Garcia would confess to having re-entered the country illegally.
The Court further rejected the argument that the "fruit of the poisonous tree" doctrine required suppression of a second Mirandized confession Lopez-Garcia gave 10 days after his first confession. These later statements were "far too attenuated" from the earlier ones to have been tainted by them. In addition, the Court rejected a Missouri v. Seibert challenge to the second confession, finding that the absence of Miranda warnings in a first interview was not purposeful, but merely reflected the fact that the interrogator did not anticipate that his questions would result in self-incriminating statements.
The Court rejected the argument that Lopez-Garcia’s immigration files should have been suppressed. The Court again found the "fruit of the poisonous tree" doctrine inapplicable. It also noted that identification information is not excludable, citing its recent decision in U.S. v. Farias-Gonzalez (identity evidence not subject to exclusionary rule).
Turning to sentencing, the Court affirmed the imposition of a 16-level sentence enhancement based on a prior conviction for a felony firearms offense under Georgia law. The Court found that the Georgia offense was the equivalent of an 18 U.S.C. § 924(c) violation. The Court noted that the nexus of the firearm to a drug trafficking offense in Lopez-Garcia’s firearm offense would have satisfied the "possession" prong of the § 924(c) offense. The Court rejected Lopez-Garcia’s U.S. v. Shepard challenge to the district court’s fact-finding on this point, noting that the district court relied on the PSI, and the PSI information regarding the prior Georgia offense’s nexus to drug trafficking was undisputed. Without deciding whether reliance on a PSI is always justified, the Court, citing U.S. v. Hedges, noted that when statements in a PSI are undisputed, a sentencing court is permitted to rely on them despite the absence of supporting evidence. -
July 17th, 2009UncategorizedIn U.S. v. Irey, No. 08-10997 (March 30, 2009), the Court rejected a government appeal of a 240-month sentence imposed on a defendant convicted of using minors to engage in sexually explicit conduct outside the United States for the purpose of producing visual depictions of such conduct and transporting the images to the United States.
The sentencing judge described the conduct as "horrific." The Guideline sentence was 360 months. The statutory maximum was also 360 months; the minimum was 180 months. The district court correctly computed the guideline sentence, and directly discussed the § 3553(a) factors on the record.
Affirming the sentence, the court noted that a 17-1/2 year sentence was not "a trifle." Further, the defendant was 50; thus the consequences of the sentence were "severe." A life term of "rigorous" supervised release was imposed. The sentence was "years beyond" the statutory minimum. The Court stated: "If we were responsible for sentencing Defendant in the first instance, we might have imposed a different sentence: we clearly believe that sentences other than the one actually imposed might also be appropriate. But we must respect the district court as the sentencer, and we accept that the sentence imposed by the district court is within the outside borders of reasonable sentences for this case. . . . The sentence must be affirmed."
