Kudos to the Eastern District of Virginia

The Spring 2006 edition of The Liberty Legend, contains an article on the special recognition award to the investigators and paralegal specialist team from the Federal Public Defender’s Office for the Eastern District of Virginia for their work on the Zacarias Moussaoui case. We expect further recognition for others will appear in a future edition.

The Liberty Legend, published by the National Association of Federal Defenders is available online at the Association's web site:http://www.federaldefenders.org

Elsewhere in this issue . . .
THOUGHTS FROM THE PRESIDENT
REASONABLE DOUBT STANDARD FOR “SEPARATE OFFENSE” GUIDELINE ENHANCEMENTS
Or... Bringing Some “Due” to the Process of Guidelines Calculations
By Felicia Sarner, Supervisory Assistant Federal Defender, Eastern District of Pennsylvania
NONCAPITAL MITIGATION SPECIALISTS
By Jacob Etner, Investigator for the Central District of California, Los Angeles
and James Tibensky, Investigator for the Northern District of Illinois, Chicago
KudosKorner
ADVANCED FEDERAL DEFENDER SEMINAR SAN FRANCISCO 2006
By Geoffrey A. Hansen, Chief Assistant Federal Public Defender, Northern District of California
JUSTICE IMPERILED: THE ANTI-NAZI LAWYER MAX HIRSCHBERG IN WEIMAR GERMANY
A Book Review by Jon M. Sands, Federal Public Defender, District of Arizona
MEET THE NEW CDO OFFICE IN THE WESTERN DISTRICT OF NORTH CAROLINA
THE MISSING LINK
By Marc H. Robert, Assistant Federal Defender, District of New Mexico, Las Cruces
AMICUS COMMITTEE REPORT
By Fran Pratt, Research & Writing Attorney, Eastern District of Virginia, Alexandria
RECIPIENTS OF THE NATIONAL ASSOCIATION OF FEDERAL DEFENDERS
2006 OUTSTANDING INVESTIGATORS AND PARALEGAL AWARDS
REPORT FROM MAINE
By David Beneman, Federal Public Defender, District of Maine

Court Affirms Denial of Defendant's Motion to Suppress Statement Made to Cell Mate

U.S. v. Alexander, -- F.3d --, 2006 WL 1314663 (10th Cir. 5/15/06) - the district court properly denied inmate's motion to suppress the statement he gave to the FBI re: prison assault. Another inmate, who the court finds was not acting as an agent of the FBI and did not employ coercive tactics, persuaded Alexander to confess after they were placed in adjoining cells for that purpose. It is OK to instruct the jury on aiding and abetting even if it is not charged in the indictment. Because the instruction did not introduce facts which increased the maximum penalty for the crime charged, there was no constructive amendment of the indictment. And there was sufficient evidence of serious bodily injury to support the verdict.

Apprendi Doesn't Require Jury to Find that Prior Crimes Occurred Separately for ACCA

U.S. v. Harris, -- F.3d --, 2006 WL 1314654 (10th Cir. 5/15/06) - Apprendi does not require a jury determination of whether prior serious drug crimes or violent felonies were committed on separate occasions so as to fall under the enhanced penalty of the Armed Career Criminal Act, 18 U.S.C. § 924(e). It is inherent in the fact of a prior conviction under Apprendi whether the defendant has the requisite number of convictions under the ACCA, whether a particular conviction was for a violent felony, and whether the prior convictions happened on different occasions from one another; consequently these are matters for determination by the sentencing court. The district court had sufficient evidence from Mr. Harris's admissions and court records from prior crimes to conclude that they were committed on separate occasions and "Harris's failure to object to the PSR created a factual basis for the court to enhance his sentence under the ACCA." Finally, Booker does not preclude a court from imposing a statutory minimum sentence established by Congress based on a defendant's record of prior convictions.

No IAC for Failure to Raise Blakely-style Argument

U.S. v. Sullivan, 2006 WL 1230675 (5/9/06) - It was not unreasonable for counsel to fail to raise a Blakely-type argument even after the S.Ct. granted certiorari in Blakely.

But It's Not Profile Evidence

U.S. v. Walker, 2006 WL 1196456 (5/3/06) - Another upholding of police expert testimony about how drug organizations operate.

Remand Ordered for Prisoner's Pro Se Civil Rights Claim

Montana v. Hargett, 2006 WL 1174627 (5/4/06) - A procedural victory for a pro se prisoner. The 10th reverses dismissal of a civil rights complaint for failure to submit a prison account statement. A remand is necessary so that the prisoner can present his claim that the prison officials prevented him from filing the statement.

USSG § 2G2.2(b)(2)(B) Enhancement Upheld

U.S. v. Oldham, 2006 WL 1174508 (5/4/06) - The defendant had a sufficient expectation that he would receive child porn in exchange for displaying child porn on his chat room site to warrant a five level adjustment under USSG § 2G2.2(b)(2)(B), which applies when the defendant has an "expectation" that he will receive a thing of value in exchange for the child porn. A quid pro quo agreement is not necessary.

Still No Jury Trial Right for Juveniles

U.S. v. N.J.Y., 2006 WL 1166168 (5/3/06) - Booker doesn't change the law that a federal juvenile defendant is not entitled to a jury trial.

Prior Conviction for Failing to Pay Marijuana Tax Counts for 21 U.S.C. § 841(b)(1)(A) Enhancement

U.S. v. McGehee, 2006 WL 1149477 (5/2/06) - The 20 year mandatory minimum under 21 U.S.C. § 841(b)(1)(A) for multiple felony drug offenses is applicable to a Texas conviction for failure to pay tax for marijuana. The power to tax is the power to destroy. While ostensibly a revenue measure, the Texas marijuana tax law is meant to discourage marijuana use. It is a restriction on conduct relating to marijuana, no matter how slight. If you're so inclined, you can read this decision to see the 10th lambast lawyers from both sides, especially the government's attorney, for their briefs.

2255 Petitioner Wins IADA Claim

U.S. v. Graham, 2006 WL 1196250 (5/5/06) - A victory for a 2255 movant. The movant is entitled to an evidentiary hearing where counsel did not raise an IADA claim that was a good claim because (a) the government incorrectly filed a non-IADA detainer [when it should have been an IADA detainer] and (b) the defendant did not receive notice of a dismissal of the federal indictment without prejudice [when the court could have dismissed it with prejudice].

High End of Advisory Range Held Reasonable

U.S. v. Dixon, 2006 WL 1196454 (5/4/06) - The 10th presumes a sentence at the high end of the guideline range to be reasonable where the defendant seeks a sentence at the bottom end of the range.

To Be Reasoned, or Not? Tenth Goes Both Ways on When Court Must Give Reasons for Sentence

U.S. v. Vaca-Perez, 2006 WL 1285034 (5/11/06) - This previously withdrawn case is now back in the same form as before. It follows exactly Terry's and Joe's Sanchez-Juarez case. The judge's failure to give any reason for a within-guideline-range sentence was error where the defendant presented a nonfrivolous issue: that his prior convictions were not sufficiently serious to merit a guideline range sentence.

U.S. v. Gomez-Castillo, 2006 WL 1166119 (5/3/06) - On the other hand, the 10th affirms a sentence where the d.ct. did barely more than the d.ct. did in Sanchez-Juarez and Vaca-Perez. The d.ct. need not even mention § 3553(a).

New Edition of Liberty Legend Available

The Liberty Legend, a newsletter published by the National Association of Federal Defenders is now available online at the Association's web site: http://www.federaldefenders.org

In this issue . . .
THOUGHTS FROM THE PRESIDENT
REASONABLE DOUBT STANDARD FOR “SEPARATE OFFENSE” GUIDELINE ENHANCEMENTS
Or... Bringing Some “Due” to the Process of Guidelines Calculations
By Felicia Sarner, Supervisory Assistant Federal Defender, Eastern District of Pennsylvania
NONCAPITAL MITIGATION SPECIALISTS
By Jacob Etner, Investigator for the Central District of California, Los Angeles
and James Tibensky, Investigator for the Northern District of Illinois, Chicago
KudosKorner
ADVANCED FEDERAL DEFENDER SEMINAR SAN FRANCISCO 2006
By Geoffrey A. Hansen, Chief Assistant Federal Public Defender, Northern District of California
JUSTICE IMPERILED: THE ANTI-NAZI LAWYER MAX HIRSCHBERG IN WEIMAR GERMANY
A Book Review by Jon M. Sands, Federal Public Defender, District of Arizona
MEET THE NEW CDO OFFICE IN THE WESTERN DISTRICT OF NORTH CAROLINA
THE MISSING LINK
By Marc H. Robert, Assistant Federal Defender, District of New Mexico, Las Cruces
AMICUS COMMITTEE REPORT
By Fran Pratt, Research & Writing Attorney, Eastern District of Virginia, Alexandria
RECIPIENTS OF THE NATIONAL ASSOCIATION OF FEDERAL DEFENDERS
2006 OUTSTANDING INVESTIGATORS AND PARALEGAL AWARDS
REPORT FROM MAINE
By David Beneman, Federal Public Defender, District of Maine

Career Offender Does Not Violate Double Jeopardy

U.S. v. Andrews, -- F.3d --, 2006 WL 1217261 (10th Cir. 5/8/06) - the § 4B1.1 career offender enhancement does not violate double jeopardy. Mr. Andrews' bank robbery sentence is reversed, however, for non-constitutional Booker error. Mr. Andrews had previously been resentenced after a successful gov't appeal of a downward departure for aberrant behavior and community ties and on remand, the district court applied the GLs as mandatory. Because the district court indicated it would have liked to impose a significantly shorter sentence, the miscarriage of justice standard is met.

Obstruction Enhancement Warranted For Swallowing Contraband

U.S. v. Bedford, -- F.3d --, 2006 WL 1217269 (10th Cir. 5/8/06) - COA affirms § 3C1.1 enhancement for obstruction of justice because Mr. Bedford willfully swallowed crack cocaine he possessed before his arrest and he later attempted to conceal his vomit at the police station.

No Liberty Interest Implicated by Prisoner’s Punishment for Contraband Possession

Grossman v. Bruce, -- F.3d --, 2006 WL 1196447 (10th Cir. 5/5/06) - appeal of habeas denial re: prison disciplinary conviction following administrative hearing. Prison officials erred in precluding Mr. Grossman from presenting officer testimony at his disciplinary hearing, but guess what, the error was harmless. No liberty interest was implicated in Mr. Grossman's punishment--seven days' disciplinary segregation and thirty days' restriction time--for contraband possession.

Evidence Insufficient to Support Gun Convictions

U.S. v. Michel, --- F.3d ----, 2006 WL 1266514 (10th Cir. May 10, 2006)

Evidence of sawed-off firearm found with barrel sticking out from under driver’s seat in car in which D a passenger in the front passenger seat , coupled with evidence that cop saw D reaching into back seat area during stop, sufficient to support a jury verdict that D constructively possessed the gun for conviction as felon in possession. Government showed nexus between the gun and D and jury could infer that he knowingly had the power to control the gun. However, the same evidence was insufficient (no fingerprint evidence, e.g., showing he had ever handled gun) to show that he knowingly possessed a sawed-off (unregistered) shot gun and a gun lacking a serial number, and convictions on those counts reversed and case remanded for re-sentencing.
D not entitled to a jury trial to determine whether his 3 prior violent felonies (convictions), for ACCA purposes, were committed on occasions different from one another. That determination falls within Apprendi's prior conviction exception. Moreover, the district court did not err in its determination that the 3 priors were committed on different occasions: D assaulted first cop, fled, assaulted and attempted to rob a convenience store, fled and assaulted a second cop. He pleaded guilty to assaulting the first cop, attempting to rob the store, and assaulting the second cop. Because he could have ceased his activity after the first stop, and after the attempted robbery, the 3 events were distinct though all occurred within a short space of time. Finally, 10th rejects D’s DP void for vagueness argument regarding ACCA’s “occasions different from one another” provision.

Court Erred in Dismissing 922(g) Indictment

U.S. v. Todd, -- F.3d --, 2006 WL 1135346 (10th Cir. 5/1/06) - an appellate victory for the gov't, reversing district court's dismissal of indictment due to insufficient corroboration of defendant's admission to gun possession. The allegations in the indictment, if proved, were sufficient to establish a violation of § 922(g)(2) and were legally sufficient. The district court erred in dismissing the indictment because of insufficient factual support for the charge; there was no indication as a matter of law that Mr. Todd could not have committed the crime. The district court had no jurisdiction to sentence Mr. Todd on the counts of conviction after the government filed a notice of appeal.