Circuit Snippets
These are interesting (to me, anyway) cases from around the country:
The Eleventh Circuit added to the circuit split over suppression of identity evidence that is obtained as the result of an illegal search, coming down on the side of the 9th Circuit, which had held such evidence is never suppressible, US v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir. 2005), and disagreeing with the Tenth, which had held in US v. Olivares-Rangel, 458 F.3d 1104 (10th Cir. 2006), that the Supreme Court's decision in Lopez-Mendoza applied only to civil deportation proceedings and thus illegally obtained identity evidence could be suppressed. In this case, the facts are so outrageous I'll spend a little time on them. The story was that two special ICE agents were patrolling Atlanta apartment complexes for possible gang activity. They saw a man working on his car, and thought his haircut and tattoos were similar to those of "Hispanic gang members" (you can draw your own conclusions as to what was really going on). The agents, visibly armed, accosted him and demanded identification, which he (accompanied by the agents) got from his apartment. The ID identified him as someone else, so they questioned him some more, asked him to take off his shirt so they could photograph his tattoos, etc. Ultimately, the agents got out the handy-dandy portable fingerprint machine, took the man's prints, discovered who he was and that he was illegal.
In holding that this evidence was not suppressible, the 11th Circuit emphasized the high social costs of suppression, observing that the defendant's very presence in the US was a crime (apparently, the fact that the defendant will be deported regardless and thus no longer be polluting the US with his illegal presence was of little weight). On the other side, the Court thought there would be little deterrence effect in suppressing the evidence because law enforcement officers could obtain the evidence by other, Constitutional means -- It reasoned that the Supreme Court's decision in Hiibel had established that officers could constitutionally require persons to identify themselves (I thought Hiibel was more limited than that, holding only that officers who otherwise had reasonable suspicion to investigate someone could require that person to identify themselves, rather than the broad rule applied here). Besides, the government could always just obtain the identity evidence by other means and the criminal prosecution would merely be postponed. Scarily, the magistrate judge originally advised holding that, because the defendant had visible tattoos, he had no right to privacy to the tattoos under his shirt and therefore the ICE agents did not violate the Fourth Amendment by pushing his sleeve up to look for other tattoos. At least the district court rejected that reasoning. US v. Farias-Gonzalez, No. 08-10508, 2009 WL 232328 (11th Cir. 2/3/09)
Overruling a prior holding, the Eleventh Circuit agreed with other circuits that the federal mail fraud statute applies to fraudsters who target the foolish and naive. Earlier, it had held that 18 USC 1341 applied only to fraud schemes that would deceive someone of ordinary intelligence and prudence. The defendants in this case were selling interests in "viatical settlements," which are financial products based on agreements with "viators," who are persons suffering from terminal illnesses who sell their life insurance policies to third parties for less than their mature value so as to get some benefit from them while alive. The defendants sold these interests to investors, many of which were elderly, and made oral false statements (the viators were on the edge of death, etc., when many weren't). The contracts, of course, contained language saying the investors had relied only on the contracts. The defense was that ordinary prudent investors would have read the contracts and not been duped, but the trial court and the 11th rejected the argument, reasoning that the focus of the statute was on the violator and whether the violator intended to deceive. US v. Svete, 2009 WL 225254, NO. 05-13809 (11th Cir. 2/2/09)
Statutory rape without use of force is not a violent felony for purposes of ACCA, the Fourth said, relying on Begay. US v. Thornton, 2009 WL 242382, NO. 08-4251 (4th Cir. 2/3/09)
The en banc 8th Circuit reversed an earlier holding that approved thermal scans based only on reasonable suspicion. This wasn't a win for the defendant; the en banc court concluded that the search warrant authorizing the thermal scan was supported by "traditional probable cause" and, anyway, good old Leon good faith would rescue the situation if probable cause wasn't there. US v. Kattaria, 553 F.3d 1171, C.A.8 (Minn.), January 30, 2009 (NO. 06-3903)
A state case and junk science alert: a trial court did not abuse its discretion by allowing testimony from a "palm crease expert" that the palm creases in a hand seen assaulting a child sex abuse victim in a photograph matched the pattern on the defendant's hand (I see new career paths for Mme. Psychic -- palm reader and fortune teller). State v. Bickart, No. 2009 ME 7, Maine Supreme Judicial Court 1/20/09
A prior conviction from a Puerto Rican court is a "domestic" conviction for purposes of the federal felon in possession statute, 18 USC 922(g)(1), the Third Circuit held. US v. Laboy-Torres, 553 F.3d 715 (3d Cir. 1/29/09)
A local government employee who reviewed grant invoices and used her authority to approve unauthorized payments to grantees (who then used the payments for personal gain) was properly given a USSG 3B1.3 enhancement for abusing a position of trust, the 8th Circuit held. US v. Moten, No. 07-3760 (8th Cir. 12/24/08)
The Eleventh Circuit added to the circuit split over suppression of identity evidence that is obtained as the result of an illegal search, coming down on the side of the 9th Circuit, which had held such evidence is never suppressible, US v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir. 2005), and disagreeing with the Tenth, which had held in US v. Olivares-Rangel, 458 F.3d 1104 (10th Cir. 2006), that the Supreme Court's decision in Lopez-Mendoza applied only to civil deportation proceedings and thus illegally obtained identity evidence could be suppressed. In this case, the facts are so outrageous I'll spend a little time on them. The story was that two special ICE agents were patrolling Atlanta apartment complexes for possible gang activity. They saw a man working on his car, and thought his haircut and tattoos were similar to those of "Hispanic gang members" (you can draw your own conclusions as to what was really going on). The agents, visibly armed, accosted him and demanded identification, which he (accompanied by the agents) got from his apartment. The ID identified him as someone else, so they questioned him some more, asked him to take off his shirt so they could photograph his tattoos, etc. Ultimately, the agents got out the handy-dandy portable fingerprint machine, took the man's prints, discovered who he was and that he was illegal.
In holding that this evidence was not suppressible, the 11th Circuit emphasized the high social costs of suppression, observing that the defendant's very presence in the US was a crime (apparently, the fact that the defendant will be deported regardless and thus no longer be polluting the US with his illegal presence was of little weight). On the other side, the Court thought there would be little deterrence effect in suppressing the evidence because law enforcement officers could obtain the evidence by other, Constitutional means -- It reasoned that the Supreme Court's decision in Hiibel had established that officers could constitutionally require persons to identify themselves (I thought Hiibel was more limited than that, holding only that officers who otherwise had reasonable suspicion to investigate someone could require that person to identify themselves, rather than the broad rule applied here). Besides, the government could always just obtain the identity evidence by other means and the criminal prosecution would merely be postponed. Scarily, the magistrate judge originally advised holding that, because the defendant had visible tattoos, he had no right to privacy to the tattoos under his shirt and therefore the ICE agents did not violate the Fourth Amendment by pushing his sleeve up to look for other tattoos. At least the district court rejected that reasoning. US v. Farias-Gonzalez, No. 08-10508, 2009 WL 232328 (11th Cir. 2/3/09)
Overruling a prior holding, the Eleventh Circuit agreed with other circuits that the federal mail fraud statute applies to fraudsters who target the foolish and naive. Earlier, it had held that 18 USC 1341 applied only to fraud schemes that would deceive someone of ordinary intelligence and prudence. The defendants in this case were selling interests in "viatical settlements," which are financial products based on agreements with "viators," who are persons suffering from terminal illnesses who sell their life insurance policies to third parties for less than their mature value so as to get some benefit from them while alive. The defendants sold these interests to investors, many of which were elderly, and made oral false statements (the viators were on the edge of death, etc., when many weren't). The contracts, of course, contained language saying the investors had relied only on the contracts. The defense was that ordinary prudent investors would have read the contracts and not been duped, but the trial court and the 11th rejected the argument, reasoning that the focus of the statute was on the violator and whether the violator intended to deceive. US v. Svete, 2009 WL 225254, NO. 05-13809 (11th Cir. 2/2/09)
Statutory rape without use of force is not a violent felony for purposes of ACCA, the Fourth said, relying on Begay. US v. Thornton, 2009 WL 242382, NO. 08-4251 (4th Cir. 2/3/09)
The en banc 8th Circuit reversed an earlier holding that approved thermal scans based only on reasonable suspicion. This wasn't a win for the defendant; the en banc court concluded that the search warrant authorizing the thermal scan was supported by "traditional probable cause" and, anyway, good old Leon good faith would rescue the situation if probable cause wasn't there. US v. Kattaria, 553 F.3d 1171, C.A.8 (Minn.), January 30, 2009 (NO. 06-3903)
A state case and junk science alert: a trial court did not abuse its discretion by allowing testimony from a "palm crease expert" that the palm creases in a hand seen assaulting a child sex abuse victim in a photograph matched the pattern on the defendant's hand (I see new career paths for Mme. Psychic -- palm reader and fortune teller). State v. Bickart, No. 2009 ME 7, Maine Supreme Judicial Court 1/20/09
A prior conviction from a Puerto Rican court is a "domestic" conviction for purposes of the federal felon in possession statute, 18 USC 922(g)(1), the Third Circuit held. US v. Laboy-Torres, 553 F.3d 715 (3d Cir. 1/29/09)
A local government employee who reviewed grant invoices and used her authority to approve unauthorized payments to grantees (who then used the payments for personal gain) was properly given a USSG 3B1.3 enhancement for abusing a position of trust, the 8th Circuit held. US v. Moten, No. 07-3760 (8th Cir. 12/24/08)
posted by Anonymous at 10:14 AM
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