Excerpts from P&J, 10/18/99, discussing the Gobernment's brief filed with the Supreme Court in the Dickerson case, in which it urged the Court not to overrule the Miranda decision.

[From Vol. 6, No. 42, dated 10/18/99]

In a major policy decision that surprised many, the Department of Justice has recently ...

[From Vol. 6, No. 42, dated 10/18/99]

QUOTE OF THE WEEK - Some excerpts from Miranda v. Arizona, 384 U.S. 436 (1966) explaining some of the reasons why the Court felt various warnings were required in a custodial interrogation setting.

“[W]ithout proper safeguards the process of in-custody interrogation of persons ...

In this case the Second Circuit joined with a number of other Circuits in holding that a district court may properly grant a downward departure on the ground that extreme childhood abuse caused mental and emotional conditions that contributed to the defendant’s commission of the offense. In support of its ...

In this case the Court held that an anticipatory warrant authorizing federal agents to search a defendant's home for child pornography and related items once he picked up a package containing a pornographic videotape and took it into the dwelling was insufficient in its showing of probable cause. It noted ...

Here, reversing its earlier decision, the Court held that the fact that the defendant engaged in additional criminal conduct after his arrest on state charges would not preclude an acceptance of responsibility reduction as to later federal charges.

In this case the Sixth Circuit established an important limitation on a ...

Section 5K1.2 of the Guidelines flatly states that “[a] defendant’s refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor.” That provision didn’t seem to bother District Judge Lewis A. Kaplan of New York very much. In sentencing defendant Jerry Walden ...

Here the Court held that the Government could not argue that it was entitled to use the defense of good faith breach by the defendant to support its refusal to file a § 5K1.1 motion where the plea agreement did not provide for that remedy.

This case is noted for ...

Here the Court held that intended loss, rather than net loss, could properly be used to determine the amount of loss for purposes of USSG § 2F1.1.

In this case the Eighth Circuit held that a state court's pretrial inquiry into an alleged conflict of interest stemming from his appointment as an upcoming prosecutor was inadequate, and it granted habeas relief to the petitioner. The counsel in question, who was the habeas petitioner's third appointed counsel, learned ...

United States v. Orozco, 191 F.3d 578 (5th Cir. 1999) (Judge Stewart)
United States v. Morales, 191 F.3d 602 (5th Cir. 1999) (Judge Barksdale)

In 1957 author Ayn Rand published her classic novel, Atlas Shrugged, in which she depicted a fictional group of citizens who fled to an enclave in ...

In this decision (which was later vacated when the full Court agreed to rehear the case en banc) a panel from the Eleventh Circuit held that the provision of the Prison Litigation Reform Act that requires prisoners to exhaust all administrative remedies, means that they must pursue those remedies even ...

This case, in which the Court granted a Writ of Habeas Corpus on the grounds that the prosecution failed to disclose Brady and Giglio materials, is noted primarily for its detailed analysis the "actual innocence" test outlined in Schlup v. Delo, 513 U.S. 298 (1995) where the Supreme Court established ...

Here the Court held that evidence of leniency arrangements between the Government and each of two witnesses who testified was required to be disclosed; and the concealment of evidence denied the defendant her right to a fair trial.

The Court stated: "Under the Brady rule, a prosecutor has a constitutional ...

Here, over the strong dissent of Judge Niemeyer, the Court held that the proper measure of loss under USSG § 2B1.1 is the value of the goods to the victim, which here was far lower than the fair market value of the stolen parts which were scrap.

The defendant was ...

Here the Court held that the manipulation of a traveler's bag in an overhead luggage compartment on a trian was a "search" within the meaning of the Fourth Amendment for which the police had no probable cause to search, thus requiring suppression.

The Court held that lifting, feeling and squeezing ...

Here the Court held that the petitioner's failure to file a timely appeal, after his counsel relied on the district court's electonic records system containing a docket sheet which failed to show that a final order had been entered, would be excused.

In this case the petitioner argued that the ...

Here the Court held that a wife's interest in real property, owned as tenant by the entireties with her husband, a convicted drug dealer, precluded forfeiture of her interest in the property and that she was entitled to relief under Rule 41(e).

This is an interesting drug forfeiture case in ...

Here the Tenth Circuit joined with a number of other Circuits in holding that the type of firearm used in a 18 USC § 924(c)(1) is a sentencing enhancement and not an element of the offense that must be submitted to the jury.

Here the defendant argued that the district ...

In this case, the defendant Appellant Burridge served as a "like kind accomodator", a position that exists to facilitate transactions under I.R.C. § 1031, which provides for "nonrecognition of gain or loss from exchanges solely in kind." In the "like kind accomodation transactions" Burridge entered into, a taxpayer would sell ...

United States v. Orozco, 191 F.3d 578 (5th Cir. 1999) (Judge Stewart)
United States v. Morales, 191 F.3d 602 (5th Cir. 1999) (Judge Barksdale)

In 1957 author Ayn Rand published her classic novel, Atlas Shrugged, in which she depicted a fictional group of citizens who fled to an enclave in ...

This is an interesting case that deals with the dangers of a defendant acting pro se. Here, the Ninth Circuit rejected a defense claim that the defendant had not knowingly, intelligently and unequivocally waived his right to counsel, and thus affirmed the defendant’s mail fraud conviction. Judge Reinhardt concurred on ...

The defendant in this case was convicted of conspiring to transport stolen aircraft parts in interstate commerce, and on appeal one of his arguments was that the district court erred by giving the jury a "willful blindness" or "Jewell" instruction, which "allows the jury to impute the element of knowledge ...

Here the Court held that instructions that allow a jury to convict without finding every element of the offense violate In Re Winship's requirement that "every fact necessary to constitute the crime" must be proven beyond a reasonable doubt.

The defendant in this case was convicted in both state and ...

One of the many holdings in this lengthy habeas case was a ruling that the defendant's due process rights were not violated at the penalty phase as a result of an award of only $300 for expert psychiatric assistance.

The Court reasoned that the defendant had failed to show that ...

In this case the Court held that the United States cannot be considered a "vulnerable victim" for purposes of USSG §3A1.1(b) as it "simply does not fall in the same category as [the] more vulnerable members of society.

The Court stated: "Section 3A1.1 of the Sentencing Guidelines is leveled at ...

Here the Court held that the starting point for calculating a sentence reduction based on USSG § 5K1.1 is the statutory mandatory minumum, not the low end of the Guideline range that would have been applicable but for the mandatory minimum.

Judge Butzner dissented, stating that "Section 3553(e) does not ...

The defendant in this case pled guilty to to unlawful transportation of hazardous waste and unlawful storage of hazardous waste. His landlord spent $15,775 removing waste, some of which was classified as hazardous, and estimated that the total clean-up costs would be "well above $32,000." The Government sought to have ...

Here, following the Supreme Court's decsion inMartin v. Hadix, 527 U.S. 343 (1999), the Ninth Circuit held that the attorney fee caps set forth in 42 U.S.C. § 1997e(d) passed constitutional muster and did not violate the Equal Protection Clause.

For other decisions in accord, see Hadix v. Johnson, No. ...

This case helps to show the impact of the Supreme Court’s recent decision in Neder v. U.S., 119 S.Ct. 1827 (1999), which held that the erroneous omission of an element of an offense in jury instructions need not automatically result in a reversal of a conviction, because such errors are ...

This appeal concerns the petitioner’s ability to assert the adverse spousal testimony privilege. Mr. Yerardi was indicted in the district court on 71 counts, including money laundering, extortion, witness intimidation, operating an illegal gambling business, racketeering, and criminal forfeiture. The forfeiture counts resulted in additional proceedings, which are where the ...

The defendant in this case agreed to cooperate with Customs Officials after he was discovered as a recipient of child pornography on his computer. He agreed to cooperate with Customs and signed a consent form authorizing their search of his home for child pornography. When he was ultimately charged with ...

In this case defendants were convicted under the National Stolen Property Act of conspiracy to commit interstate transportation of checks obtained by fraud and causing interstate transportation of monies obtained by fraud. The District Court held that defendants were deprived of fair notice of what they were to defend against ...

In this high-profile case, the defendant, police officer Charles Schwarz, was found guilty of conspiring to violate, and violating the civil rights of Abner Louima by assaulting him in the bathroom of the police station. Schwarz moved for a new trial and for release on bail.

Schwarz sought a new ...

Here the Court held that, under 18 USC § 1791(d)(1)(B), intent to use a "prohibited object" as a weapon is an essential element of the offense and not merely a sentencing factor.

In this case the defendant/inmate was convicted of possessing a wooden dowel with needles in violation of 18 ...

Here the Court stated: "Rudolph's appeal raises the question of whether a district court has the discretion to depart downward on the basis of a defendant's rehabilitative efforts made after the defendant received his initial sentence. Defendants may engage in rehabilitative efforts at several stages: post-offense, post-arrest, post-conviction, and post-sentence. ...

The defendant in this case, Darnell Hayes, a college professor, was a target of an investigation into what the court described as "a complicated, multi-party scheme to sell grades for classes that foreign students did not attend, perform course work for, or take exams in." (Id., at 941). During the ...

The Court of Appeals held that the policy of opening and inspecting a prisoner's outgoing mail is reasonably related to legitimate penological goals and therefore constitutional.

This case involves the appeal of George Deeds, the warden of a correctional center in Virginia, from the district court’s order granting Mr. Altizer, ...

Section 5K1.2 of the Guidelines flatly states that “[a] defendant’s refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor.” That provision didn’t seem to bother District Judge Lewis A. Kaplan of New York very much. In sentencing defendant Jerry Walden ...