Criminal Law Library Blog

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August 16-20, 2010.

United States First Circuit, 08/17/2010
US v. Donath
Defendant's appeal of his conviction for his participation in a conspiracy to distribute cocaine and other drugs and a below-guidelines sentence of 90-months' imprisonment is dismissed as defendant's waiver of his right to appeal his plea or sentence if it did not exceed 120 months as part of his plea agreement is enforceable and his argument that district court's error in calculating his sentence by mischaracterizing his prior crimes constituted a miscarriage of justice is meritless.

United States First Circuit, 08/17/2010
Grant v. Warden, Maine State Prison
District court's denial of defendant's request for habeas relief from his murder conviction of his mother-in-law is affirmed where: 1) the Maine Supreme Judicial Court's (SJC) application of the general standard announced in Mosley to the particular facts of defendant's case falls within the broad limits of reasonableness; and 2) regardless of whether the SJC described its analysis as a "totality of the circumstances" test or a four-factor test, its conclusion was not an unreasonable application of Mosley.

United States Second Circuit, 08/16/2010
Friedman v. Rehal
In a sexual abuse prosecution, the denial of petitioner's habeas petition is affirmed where: 1) the fact that hypnosis may have been used to stimulate alleged victims' memory recall and potentially induce false memories of abuse was a circumstance that would fit comfortably under the general understanding of impeachment evidence -- evidence that "is offered to discredit a witness . . . to reduce the effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] or [her] testimony"; and 2) even if hypnosis evidence comes within Brady's broader definition of exculpatory evidence, the petition would still have to be denied

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August 2-6, 2010.

United States Second Circuit, 08/02/2010
US v. Johnson
Defendant's sentence for being a felon in possession of a firearm is affirmed where a violation of Connecticut General Statute section 53a-179b (Rioting at a correctional institution) qualified as a "violent felony" under the Armed Career Criminal Act.

United States Second Circuit, 08/02/2010
Scott v. Fischer
In an action claiming that defendants deprived plaintiff of liberty without due process of law both by placing her on mandatory post-release supervision without a proper judicial sentence and by failing to take action to remove the supervision before or after she was rearrested for violating the terms thereof, dismissal of the action is affirmed where defendants were entitled to qualified immunity for all actions they took prior to the Second Circuit's decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), and further, plaintiff has not pleaded sufficient facts to state a claim upon which relief can be granted for any actions the defendants took thereafter. ..

United States Second Circuit, 08/03/2010
US v. Broxmeyer
Defendant's convictions for production of child pornography and for transportation of a minor across state lines with the intent to engage in criminal sexual activity are reversed where: 1) the prosecution failed to prove beyond a reasonable doubt that defendant persuaded, induced, or enticed the victim to take Photos 1 and 2; and 2) an 18 U.S.C. section 2423(a) conviction cannot lie where the unlawful sexual act occurs before the crossing of state lines, and where there is no evidence of an intent to commit a sexual act when state lines were crossed.

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June 29, 2010

RECENT DECISION

Defendant involved in fraud scheme claims that investigators were overzealous in their search

Mark Phillips was convicted of securities fraud, mail fraud, wire fraud, and access device fraud. In early 2003, the United States Postal Inspection Service began a fraud investigation of Phillips. The investigation revealed that over a period of approximately three years, Phillips had fraudulently applied for several credit cards, using his father's identity and declaring a false income. Phillips then used those fraudulent credit cards to make expensive purchases. Among other items, Phillips bought several pieces of stereo, exercise, and computer equipment, collectible coins, a pool table, a telescope, and a samurai sword. Ultimately, Phillips accumulated hundreds of thousands of dollars of credit card bills and either did not attempt to pay those bills or attempted to pay with bad checks.

Investigators at the U.S. Postal Inspection Service also uncovered other frauds perpetrated by Phillips. For example, Phillips possessed two driver's licenses, each with his own photograph, address, and date of birth, but each with a different name: Mark Le Roy Aaron and Mark Edwards Phillips. Additionally, investigators learned that Phillips had opened an account for frequent gamblers at an Atlantic City casino using his father's social security number and had made over $28,000 in cash withdrawals on that account. A criminal search history revealed that Phillips had previously been arrested on state charges of theft by deception and issuing bad checks.

During the course of the investigation, postal inspection agents also became aware that Phillips presented himself as the CEO and founder of a business called Phydea, which provided online financial stock reports. Some of Phillips's fraudulent purchases helped to fund Phydea. For example, he used a fraudulent credit card to pay Interland Web Hosting for the hosting and maintenance of his business' Web site, Phydea.com, and he used a fraudulent card to purchase advertisements for Phydea, which appeared in Investor's Business Daily. Also, Phillips frequently used Phydea's corporate name in connection with his credit card fraud. For instance, Phillips bought entertainment equipment with a fraudulent VISA card using the internet address Phydea.com. He also made a purchase on eBay using the e-mail address phydea@earthlink.com. Phillips fraudulently applied for an American Express card using the e-mail address CEO@PHYDEA.com, and when applying for the same American Express card, Phillips misstated his income as $1 million and misstated Phydea's annual revenue as $10 million. Unbeknownst to the postal inspectors at the time, however, Phillips was using Phydea in connection with more than just credit card fraud. He was also using it and a related investment vehicle, Phydea Equity Fund, as part of an elaborate securities fraud scheme.

In July 2003, the U.S. Postal Inspection Service sought a search warrant for Phillips' Maryland residence. The magistrate judge approved the search warrant, finding probable cause for violations of various fraud statutes. The search warrant and incorporated affidavit authorized the seizure of a wide range of items and documents. Specifically, Part I of Attachment A described items and services purchased using fraudulent credit cards. It contained a number of specific examples, including payments to web hosting services. It also contained broader provisions for seizing records that might be evidence of financial crimes or fraud. The affidavit also set forth additional details relating to Phillips' case and the evidence of his fraud.

Prior to executing the search warrant, Inspector Judy Starliper, the head of the investigation, thoroughly briefed all agents on the facts of Phillips's case. Her operations plan summarized the investigation and informed the agents that Phillips operates a web page called PHYDEA.com and uses the same e-mail address to make his purchases. Each agent was provided a copy of Attachment A listing the items to be seized. During this briefing, another agent, Inspector David Reardon, informed the team that he had received a complaint from an aggrieved investor in Phydea Equity Fund, an entity related to Phydea, and therefore requested that the agents alert him if they saw anything relating to Phydea or Phydea Equity Fund during the search.

Immediately following the briefing, the U.S. Postal Inspection Service team executed the search warrant. During the search, Inspector Reardon himself identified several documents relating to Phydea and Phydea Equity Fund. He noted that these documents contained personal identifying information which he believed that Inspector Starliper was looking for and potentially related to many of the fraudulent credit card purchases made using Phydea's name. To err on the side of caution, Inspector Reardon brought the documents to the attention of his superiors, and Inspector Starliper telephoned the United States Attorney's office to seek guidance on whether the Phydea and Phydea Equity Fund documents were seizable. After reading the warrant and accompanying affidavit, the Assistant United States Attorney concluded that the warrant authorized their seizure.

In executing the warrant, the agents seized a number of documents and records that not only helped confirm the investigators' suspicions of credit card fraud but also revealed to the investigators for the first time the full extent of Phillips' securities law violations involving Phydea and Phydea Equity Fund. Among these seized documents and records were documents and records relating to Phydea, including invoices for the Phydea advertisements appearing in Investor's Business Daily, documents and records relating to Phydea Equity Fund, including the files of individual investors, and some of Phillips' own financial records, including his bank statements.

The government charged Phillips with 35 counts of securities fraud, mail fraud, wire fraud, and access device fraud. A federal grand jury indicted Phillips on all counts. Prior to trial, Phillips filed a motion to suppress the evidence seized pursuant to the search warrant. He argued that the contested seizures fell outside the scope of the warrant, because the warrant did not explicitly mention those items. That motion was denied. Phillips was eventually convicted on all the charges. He then appealed, claiming that the court erred by denying his motion to suppress.

The appellate court denied Phillips' appeal and upheld his conviction. Phillips primarily argued that the inspectors were overzealous when they served the warrant, and seized items that did not fall within the scope of the warrant. The government argued that they were purposefully very diligent and cautious in their search so as not to seize any item that did not fall within the purview of the warrant. They pointed to the language of the warrant, and argued that each and every item seized fell squarely within the stated requirements. The appellate court agreed with the government, and found that due to the extensive intermingling of Phillips' personal and business accounts, the investigators only seized items that fell within the requirements imposed by the warrant. Therefore, they upheld his conviction

The case discussed in Quinlan Law Enforcement ENews Alert (June 29, 2010) is U.S. v. Phillips, 2009 WL 4061558 (4th Cir. 2009).

A Service from the ABA Criminal Justice Section (CJS) *, http://www.abanet.org/crimjust*

MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS ET AL. No. 08-1521

United States Supreme Court Decision: Decided: June 28, 2010

In a 5-4 decision, the Supreme Court held that the Fourteenth Amendment of the US Constitution protects an individual’s Second Amendment right to keep and bear arms from interference by state or local gun control legislation.

In 2008, the Court ruled in District of Columbia v. Heller, 554 U. S. ___ that the Second Amendment right for an individual to keep and bear arms for self-defense was infringed upon by a District of Columbia gun control law banning the possession of guns in the home. Immediately following the Heller ruling, this federal suit was filed in Chicago, alleging that the city’s law banning possession of unregistered handguns was violating the Second and Fourteenth Amendments. Petitioners argued that the Second Amendment right to keep and bear arms was protected by both the Privileges or Immunities clause and the Due Process clause in the Fourteenth Amendment. Noting that the Heller ruling had refrained from deciding whether the Second Amendment applied to state and local legislation, the District Court upheld the Chicago law while citing precedent from several previous handgun ban cases. The Seventh Circuit Court of Appeals affirmed.

The Court’s decision traced the evolution of previous Supreme Court rulings which sought to determine which elements within the Bill of Rights were protected by the Fourteenth Amendment against state and local infringement. The Court’s 1873 decision in Slaughter-House Cases, 16 Wall. 36, called for a very narrow view of the Fourteenth Amendment’s applicability to state law. Using Slaughter-House as precedent, the Court decided during the late 19th century in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535 that Second Amendment rights were not covered under the Fourteenth Amendment. Over time, the Court gradually widened its interpretation, later holding that an element in the Bill of Rights that was “fundamental to our Nation’s particular scheme of ordered liberty and system of justice” would be protected by the Fourteenth Amendment (Duncan v. Louisiana, 391 U. S. 145, 149). The Court also cited Heller’s holding that the right to self-defense, protected by the Second Amendment, was held to be a “fundamental” right as defined in Duncan. In addition, the Court noted that Congressional debates over the Fourteenth Amendment’s ratification “referred to the right to keep and bear arms as a fundamental right deserving of protection.” Accordingly, the Court held that the Fourteenth Amendment protects the Second Amendment right to keep and bear arms against infringement by state or local legislation.

Judgment reversed and remanded.

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

Decision available at: http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

Authored by: Caleb W. Skeath, CJS Intern
_________________________________________
*We both acknowledge and appreciate the efforts and dedication of the CJS Legal Intern Caleb W. Skeath in preparing the above commentary.

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June 21-25, 2010.

U.S. Supreme Court, June 21, 2010
Holder v. Humanitarian Law Project, No. 08–1498
In a constitutional challenge to 18 U.S.C. section 2339B(a)(1), which prohibited knowingly providing material support or resources to a foreign terrorist organization, the Ninth Circuit's affirmance of partial judgment for plaintiffs is reversed in part where the material support statute was constitutional as applied to the particular forms of support that plaintiffs sought to provide to foreign terrorist organizations. .

U.S. Supreme Court, June 24, 2010
Skilling v. US, No. 08–1394
The Fifth Circuit's affirmance of defendant Jeffrey Skilling's honest-services fraud conviction is affirmed in part where pretrial publicity and community prejudice did not prevent Skilling from obtaining a fair trial, and he did not establish that a presumption of juror prejudice arose or that actual bias infected the jury that tried him. However, the judgment is vacated in part where 18 U.S.C. section 1346, which proscribes fraudulent deprivations of "the intangible right of honest services," was properly confined to cover only bribery and kickback schemes, and Skilling's alleged misconduct entailed no bribe or kickback. .

U.S. Supreme Court, June 24, 2010
Black v. US, No. 08–876
The Seventh Circuit's affirmance of defendants' honest-services mail fraud convictions is vacated where: 1) per the ruling today in Skilling v. US, the honest-services component of the federal mail-fraud statute, 18 U.S.C. section 1346, criminalizes only schemes to defraud that involved bribes or kickbacks, and that holding renders the honest-services instructions given in this case incorrect; and 2) by properly objecting to the honest-services jury instructions at trial, defendants secured their right to challenge those instructions on appeal, and they did not forfeit that right by declining to acquiesce in the government-proposed special-verdict forms. Read more...

Continue reading "Findlaw Case Summaries: Criminal Law and Procedure - June 21-25, 2010" »

Supreme Court Case Summaries: Professor Rory Little’s Perspective

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

These summaries are written by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. They represent his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to members, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S.. Supreme Court Summaries – Criminal Cases June 24, 2010

Mail/Wire Fraud and “Honest Services” – Three cases:

Skilling v. United States, http://www.supremecourt.gov/opinions/09pdf/08-1394.pdf

Black v. United States, http://www.supremecourt.gov/opinions/09pdf/08-876.pdf

Weyhrauch v. United Sates, http://www.supremecourt.gov/opinions/09pdf/08-876.pdf

On June 24, the Court issued its long-awaited opinions in the trio of “honest services” mail and wire fraud cases. The Court (6-3) upheld the “honest services” statute, but limited it to schemes of “bribery and kickbacks.” Interestingly, in the lead case of former Enron CEO Jeff Skilling, the Court’s major effort was spent not on mail fraud, but on the pretrial-publicity juror bias claims that Skilling presented, and the Skilling opinion will stand more as a major decision in that constitutional area than on the statutory definition (which is changeable by Congress) of mail fraud. Each holding (due process and mail fraud) was a 6-3 vote, but different Justices were the dissenters on each. And, perhaps significantly or perhaps not, this is the first decision in which the two women on the Court disagreed in written opinions, Justice Ginsburg writing the majority and Justice Sotomayor dissenting on the due process-fair trial ruling.

The various Skilling opinions consume 114 pages. The Court also eclipses what probably was not a record of three days ago (the six-page syllabus in Humanitarian Law Prroject) with a nine-page syllabus here. Yes, there are a lot of pages here, but nine pages for an allegedly accessible “summary” of the opinion is, for the Court, pretty silly.

In Black, the Court applied its Skilling mail fraud ruling to hold that Conrad Black’s jury instructions were erroneous, and remanded for a harmless-error analysis (as it did in Skilling). The Court also reversed the Seventh Circuit’s ruling that Black had forfeited his jury instruction challenge by opposing the government’s more-precise special verdict form, and provides an important discourse on courts of appeal imposing sanctions that the Federal Rules of Criminal Procedure don’t specify, without notice.

Finally, in one sentence the Court simply vacated the Ninth Circuit’s ruling in Weyhrauch and remanded for further proceedings in light of Skilling.

Summaries of the various Justices’ opinions follow.

Continue reading "ABA: U.S. Supreme Court Summaries - Mail Fraud and "Honest Services" - Three Cases" »

A Service from the ABA Criminal Justice Section (CJS), http://www.abanet.org/crimjust*

United States Supreme Court Decisions: Decided: June 24, 2010

1)Black v. United States No. 08-076

2)Skilling v. United States

3)Magwood v. Patterson

Black v. United States No. 08-076

In a 9-0 decision today, the Supreme Court held that a criminal defendant does not forfeit his or her objection to an honest-services fraud jury instruction simply by (1) opposing the Government’s request to use special verdict forms, or (2) failing to make his or her own request for special verdict forms.

Defendant-petitioners in this case—executives of the publicly-held U.S. company Hollinger International, Inc. (Hollinger)—were originally indicted on three counts of mail fraud under 18 U.S.C. §§ 1341, 1346, as well as other federal crimes. During trial, the Government asserted two alternative mail fraud theories: (1) that Petitioners stole millions from Hollinger by fraudulently paying themselves bogus “noncompetition fees,” and (2) that by failing to disclose those fees, Petitioners failed to provide Hollinger with their honest services. Prior to the commencement of jury deliberations, the Government suggested the use of special verdict forms (interrogatories) in order to allow the jury to specify which theory they used as the basis of their verdict. Petitioners refused the use of special verdict forms, opting instead for the use of general verdict forms. Ultimately, the Government agreed.

Prior to deliberation, the District Court instructed the jury on both of the Government’s alternative theories. With regard to the second theory of honest-services fraud, the District Court explained to the jury (over Petitioners’ timely objection) that “a person commits honest-services fraud if he ‘misuse[s] his position for private gain for himself and/or a co-schemer’ and ‘knowingly and intentionally breach[es] his duty of loyalty.’” The jury ultimately returned guilty verdicts on all three mail fraud counts, recording their decision on general verdict forms.

On appeal, Petitioners asserted that the honest-services fraud jury instruction was invalid. Based on the rule established in Yates v. United States, a general verdict can be set aside “where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” 354 U.S. 298, 312 (1957). The Court of Appeals for the Seventh Circuit ruled that by opposing the Government’s suggestion for the use of special interrogatories and by failing to make their own request for special interrogatories, Petitioners had forfeited their right to object to the honest-services fraud instructions given to the jury.

The Supreme Court held that Petitioners did not need to request special interrogatories or acquiesce in the Government’s request for discrete findings by the jury in order to maintain their challenge on appeal. Because Petitioners made a timely objection at trial, they adequately preserved their right to challenge the jury instructions. Moreover, the Court of Appeals effectively sanctioned Petitioners without providing notice (via a federal law or the Federal Rules of Criminal Procedure) that resisting the Government’s special verdict request would result in forfeiture of their right to challenge the honest-services fraud jury instructions. According to Criminal Rule 57(b), no such sanction can “be imposed for noncompliance with any requirement not in federal law [or] federal rules . . . unless the alleged violator was furnished with actual notice of the requirement before the noncompliance.”

Judgment reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment.

Decision available at: http://www.supremecourt.gov/opinions/09pdf/08-876.pdf.

By: Ashley N. Southerland, CJS Legal Intern

Skilling v. United States No. No. 08–1394
United States Supreme Court Decision: Decided: June 24, 2010

Today, the Supreme Court denied Jeffrey Skilling’s arguments that pretrial publicity prevented him from receiving a fair trial, but held that the jury improperly convicted him on the charge of conspiracy to commit “honest services” wire fraud. The vote was unanimous in regard to the “honest services” question, although three justices would have ruled that the statute is unconstitutional.

Skilling, former Enron CEO, had been previously charged with 25 substantive counts of securities fraud, wire fraud, making false representations and insider trading. In November 2004, Skilling was denied a change of venue despite hostility in Houston surrounding the downfall of Enron; the District Court contending that evidence of hostility did not warrant a presumption that Skilling would be unable to obtain a fair trial. After a four month trial in Houston, the jury found Skilling guilty of 19 counts, including honest-services fraud and conspiracy but not guilty of 9 insider-trading counts.

On appeal Skilling made two arguments. First, that pretrial publicity and community prejudice prevented him from obtaining a fair trial. Second, he contended that the jury improperly convicted him of conspiracy to commit honest-services wire fraud contending that 18 U. S. C. § 1346 (1988) was unconstitutionally vague in context.

In regards to jury contamination the court held that the pretrial publicity did not establish a presumption of juror prejudice or that he was convicted by a biased jury. Utilizing the Rideau v. Louisiana standard for jury contamination due to pretrial publicity the court noted distinct differences in the instant case. 373 U.S. 723 (1963). First, Houston is the 4th largest city and suggestions that twelve unbiased jurors were not available were difficult to sustain. Second, the court noted that unlike the swift trial following the bank robbery in Rideau, there was a four year lapse between the highly public Enron bankruptcy and Skilling’s trial. Finally, the court noted that mere evidence of negative media attention, even in the magnitude evident before the Enron trial, is not enough to inevitably lead to an unfair trial. The court further contended that there was no actual jury prejudice shown; describing the fair and balanced voir dire process utilized that would have adequately detected and defused juror prejudice.

While sustaining the constitutionality of §1346 the court still reversed Skilling’s honest-services wire fraud convictions. The “honest services” theory of fraud notes that an offender may profit from a fraudulent scheme by loss of the offenders’ “honest services,” creating actionable harm—despite no loss of actual property or money. The court noted that as codified in §1346 this honest services fraud is not unconstitutionally vague on its face, but should be read strictly to reach only bribery and kickback schemes. Under this strict interpretation, Skilling did not violate §1346 since the Government charged that Skilling conspired to defraud Enron’s shareholder’s by misrepresenting financial data, but never alleged that he solicited or accepted side payments from a third party in exchange for these misrepresentations. Whether or not the reversal on the conspiracy count would touch the other convictions, or whether the error is harmless, is to be determined upon remand.

Judgment affirmed in part, vacated in part, and remanded.

Additionally, in a per curiam decision the court vacated judgment in Weyhrauch v. United States (No. 08–1196) and the remanded to the 9th Circuit for further consideration in light of the Skilling decision. http://www.supremecourt.gov/opinions/09pdf/08-1196.pdf

GINSBURG, J., delivered the opinion of the Court, Part I of which was joined by ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, and ALITO, JJ., Part II of which was joined by ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., and Part III of which was joined by ROB-ERTS, C. J., and STEVENS, BREYER, ALITO, and SOTOMAYOR, JJ. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined, and KENNEDY, J., joined except as to Part III. ALITO, J., filed an opinion concurring in part and concurring in the judgment. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which STEVENS and BREYER, JJ., joined..

Decision available at: http://www.supremecourt.gov/opinions/09pdf/08-1394.pdf

By: Caitlin E. Huggins, CJS Legal Intern

Magwood v. Patterson, No. 09-158

United States Supreme Court Decision: Decided: June 24, 2010

In a 5-4 decision today, the Supreme Court reversed the Eleventh Circuit’s holding that the petitioner’s challenge to his new death sentence was an unreviewable “second or successive” change under 28 U.S.C. § 2244(b) since he had the opportunity to present the same challenge to his original death sentence. Instead, the Court ruled that because the petitioner’s habeas application “challenges a new judgment for the first time,” it is not “second or successive” under the statute.

Petitioner Billy Joe Magwood was indicated by a grand jury for the murder of an on-duty sheriff, a capital offense under Alabama Code § 13-11-2(a)(5) (1975). While incarcerated for a drug offense, the petitioner, who had a long history of mental illness, murdered a sheriff because he believed that the sheriff had imprisoned him without cause. Alabama courts affirmed the death sentence, and the petitioner filed a writ of habeas corpus. After the District Court ordered that he be released or resentenced, the state trial court again sentenced him to death. He filed a second federal habeas application, challenging this new sentence on the grounds that he previously did not receive fair warning that his conduct was death eligible under Alabama law and that his attorney was ineffective during resentencing. After the District Court conditionally granted the writ, the Eleventh Circuit reversed, holding that the petitioner’s challenge to his new death sentence was an unreviewable “second or successive’ challenge per 28 U.S.C. 2244(b) because he had the option to raise his fair-warning claim in his first habeas application.

The underlying question was whether the petitioner’s application to challenge his death sentence, as imposed per the District Court’s resentencing, is subject to § 2244(b)’s “second or successive” habeas application constraints. The State contended that although the phrase “second or successive” applies to “application[s],” it “is a claim-focused statute,” and that “[c]laims, not applications, are barred by § 2244(b).” They contended that the phrase implies that “a prisoner is entitled to one, but only one, full and fair opportunity to wage a collateral attack,” and that the petitioner’s fair-warning claim was successive because he had an opportunity to raise it in his first application. The petitioner contended that § 2244(b) applies only to a “second or successive” application challenging the same state-court judgment, and therefore, his resentencing led to a new judgment. Thus, his application challenging the new judgment was not “second or successive.” The court agreed with the petitioner and found that the phrase “second or successive” refers to all § 2254 applications filed second or successively in time.

Reversed and remanded.

THOMAS, J., delivered the opinion of the Court, except as to Part IV– B. SCALIA, J., joined in full, and STEVENS, BREYER, and SOTOMAYOR, JJ., joined, except as to Part IV–B. BREYER, J., filed an opinion concurring in part and concurring in the judgment, in which STEVENS and SOTOMAYOR, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and GINSBURG and ALITO, JJ., joined.

Case is available at: http://www.supremecourt.gov/opinions/09pdf/09-158.pdf

By: Stacey L. Sklaver, CJS Legal Intern
_____________________________________
* We both acknowledge and appreciate the efforts and dedication of the CJS Legal Interns, Ashley N Southerland, Caitlin E. Huggins, and Stacey L Sklaver in preparing the above commentary.

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June 14 - 18, 2010.

U.S. Supreme Court, June 14, 2010
Dolan v. US, No. 09–367
In a prosecution for assault resulting in serious bodily injury, the Tenth Circuit's affirmance of the district court's untimely restitution order is affirmed where a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution, at least where, as here, that court made clear prior to the deadline's expiration that it would order restitution, leaving open (for more than 90 days) only the amount.

U.S. Supreme Court, June 14, 2010
Holland v. Fla., No. 09–5327
In a capital habeas matter, the Eleventh Circuit's affirmance of the denial of petitioner's habeas petition is reversed and remanded where: 1) 28 U.S.C. section 2244(d), the AEDPA statute of limitations, is subject to equitable tolling in appropriate cases, and the per se standard employed by the Eleventh Circuit was too rigid; and 2) the district court incorrectly rested its ruling not on a lack of extraordinary circumstances (which may well be present), but on a lack of diligence. .

U.S. Supreme Court, June 14, 2010
Carachuri-Rosendo v. Holder, No. 09–60
The Fifth Circuit's denial of petitioner's petition for review of the BIA's order holding that petitioner was not eligible for cancellation of removal is reversed where second or subsequent simple possession offenses are not aggravated felonies under 8 U.S.C. section 1101(a)(43) when, as in this case, the state conviction was not based on the fact of a prior conviction

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Apparently prosecutors in Queens County New York think so. This month Queens prosecutors have charged two women with stealing more than $30,000 from three elderly men they had befriended separately. The women were charged with grand larceny as a hate crime.

This strategy of treating some hate crimes as larcenous behavior is considered a novel approach. Indeed Kathleen Hogan, president of the New York State District Attorneys Association and Scott Burns, executive director of the National District Attorneys' Association have both said they had not heard of another jurisdiction using this Queens County approach to hate crimes.

According to a New York Times article by Anne Barnard, A Novel Twist for Prosecution of Hate Crimes, "the legal thinking behind the novel method is that New York's hate crime statute does not require prosecutors to prove defendants 'hate' the group the victim belongs to, that they commit the crime because of some belief, correct or not, they hold about the group."

This is different than the standard public perception of hate crimes as resulting an animus against or "hate" of a particular ethnicity, as described in "Hate Crimes and Revealing Motivation Through Racial Slurs" as posted in the September 2009 The Jury Expert: The Art As Science of Litigation Advocacy, September 2009, "hate" of a particular sexual orientation, or similar strong, negative feelings toward a particular individual or group.

Holder (Attorney General) v. Humanitarian Law Project et. al. 08-1498

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

This summary has been created by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S. Supreme Court Summaries – Criminal Cases June 21, 2010

Holder (Attorney General) v. Humanitarian Law Project et al., http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf

On June 21, although the Court reversed the Ninth Circuit in all four decisions it issued (!), only one was a criminal case. Humanitarian Law Project addresses the long-running attack on the “material support to a foreign terrorist organization” criminal statute, 18 U.S.C. § 2339B. Setting a record (I think) for the longest “syllabus” ever (six tiny-type pages), the Court upheld the statute, 6-3, as applied to the facts before it, while reserving decision as to possible future “as applied” questions based on hypotheticals not presented by these plaintiffs. Interestingly, Justice Stevens did not join Justices Breyer, Ginsburg, and Sotomayor in dissent, and a paragraph near the end of the majority opinion (pages 33-34) addressed to a hypothetical statute “prevent[ing] American citizens from training the Japanese Government” during World War II, seems self-consciously to be designed to keep Justice Stevens in the majority fold. It worked.

FIRST AMENDMENT (criminal statute prohibiting provision of “material support” to foreign terrorist organizations upheld in the face of First Amendment and Fifth Amendment vagueness challenges).

Holder (Attorney General) v. Humanitarian Law Project et al., No. 08-1498, 130 S.Ct. ___ (June 21, 2010), reversing in part, affirming in part 552 F.3d 916 (9th Cir. 2009).

Holding (6-3): Statute criminalizing provision of “material support to foreign terrorist organizations” upheld as not unconstitutionally vague or violative of the First Amendment, even as applied to certain “training” activities for such organizations directed at peaceful activities, so long as such support is “independent” and not “directed by or coordinated with” the foreign terrorist organization. Constitutional objections regarding other, hypothetical applications to other activities or speech are reserved.

Facts: In 1996 as part of the AEDPA statute, Congress made it a crime to provide “material support or resources” to a designated foreign terrorist organization (“FTO”). In response to this and other constitutional challenges, Congress subsequently amended the statute twice, to more clearly define “material support” as including “services,” “personnel,” “expert advice or assistance,” and “training … designed to impart a specific skill as opposed to general knowledge;” and to require “knowledge” of the “terrorist designation or the group’s commission of terrorist acts.” Congress also made clear that “individuals who act entirely independently of the foreign organization” were not subject to prosecution, at least under the “personnel” part of the statute.

In 1997, the Secretary of State designated 30 groups as FTOs, Two of the groups filed this challenge to the statute (one group also separately challenged its FTO designation, which was upheld by the DC Circuit and is not at issue here). Both groups alleged that they also engage in non-terrorist “political advocacy” and “humanitarian activities,” and other plaintiffs here alleged that they wanted to assist these organizations in only their lawful, non-violent activities. Specifically, they wanted to provide training to the FTOs “on how to use … international law to peacefully resolve disputes;” “how to petition … the United Nations for relief,” and “political advocacy” on behalf of certain groups allegedly oppressed by the governments of Sri Lanka and Turkey. The plaintiffs alleged that the material support statue was unconstitutionally vague, in that they could not determine which if any of their activities would violate the statute; and also violated the First Amendment as chilling their rights to speech and to association. In a series of opinions issued over a decade, the district court and Ninth Circuit ruled that the statute was unconstitutionally vague insofar as “training, service, or expert advice or assistance” reached “protected advocacy,” but that the statute was not overbroad under the First Amendment.

Roberts (joined by Stevens, Scalia, Kennedy, Thomas, and Alito): First, the lawsuit is justiciable (as one might hope after 12 years of litigation)” as a preenforcement review of a criminal statute that presents “a credible threat of prosecution.” Second, we cannot interpret the statute as limited only to persons who provide material support with a specific intent to further the FTO’s terrorist activities, because it would be “inconsistent with the text of the statute.” Congress expressly added a mental state of “knowledge” to the statute, and we cannot rewrite that merely to “avoid” the constitutional issues (as the dissent suggests).

Third, the Ninth Circuit “did not adhere to [our previously announced] principles” for a due process vagueness attack. Such a challenge cannot be “merged” with the First Amendment issues, and cannot be based on hypothetical facts when the plaintiff “engages in some conduct that is clearly proscribed.” “That rule makes no exception for conduct in the form of speech.” We think that as clarified by Congress’s amendments, the statute “provides a person of ordinary intelligence fair notice of what is prohibited.” At bottom, plaintiffs simply disagree with application of the statute against their proposed training and advocacy activities – but those activities are plainly within the compass of the statute. The government concedes that mere membership in an FTO is not prohibited. [Ed. Note: why this is true is unanalyzed by the majority as well as the dissent – presumably the government had to make this concession to avoid running afoul of the Communist Party membership cases of the 1950s.] And “independent advocacy” is not proscribed by the statute; providing service or personnel is prohibited only if the person or service is “under th[e FTO’s] direction or control,” which includes “in coordination with” the FTO. Hypothetical line-drawing difficulties under these definitions are simply not before the Court. They involve “sheer speculation” and “must await a concrete fact situation” (Zemel v. Rusk, 381 U.S. 1 (1965).) The statute is not impermissibly vague on these facts.

The statute also does not violate the First Amendment. It “does not prohibit independent advocacy or expression of any kind.” It does not bar association since it does not prohibit membership. And while it may reach some speech, it is “carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” We agree that a “more demanding standard” of review than O’Brien (1968) applies to this statute, because the statute clearly reaches some speech. But it survives that review.

“Everyone agrees” that the objective of combating terrorism is a compelling interest. But we disagree with the plaintiffs that this statute is not “necessary” to further that interest, and we disagree with the dissent that more “specific” facts are necessary to sustain it. In this area, the judiciary should give the other branches deference, without abandoning our independent role. Congress and the Executive have made findings that “any contribution” to an FTO ultimately “facilitates” the organization and its objectives. Even teaching peaceful negotiation and petitioning concepts could be used, by an FTO to further its unlawful objectives. Congress was “justified” in rejecting the view that “ostensibly peaceful aid would have no harmful effects.” It can help “legitimate” a terrorist organization, and also interfere with the United States’ diplomatic and foreign affairs efforts. “Common sense” as well as the evidence supports this view (footnote 6). Congress has indicated that it is “conscious of its own responsibility” to consider constitutional concerns. It has drawn the statute narrowly, and allowed FTOs to judicially challenge their designation. It has excluded the provision of medicine and religious materials from the statute. But “the particular speech plaintiffs propose to undertake” is “wholly foreseeable” as potentially useful to the FTOs, and “the dissent fails to address the real dangers at stake.”

Now, “all this is not to say that any future applications” of the statute “will survive First Amendment scrutiny.” But on the factual allegations presented, the statute does not violate the First Amendment. Finally, Congress may rationally distinguish aid to terrorist organizations from aid to other types of groups. The Constitution proclaims that government is established to “provide for the common defence.” This statute pursues that objective consistently with the Constitution.

Breyer dissenting (with Ginsburg and Sotomayor): I agree that the statute is not unconstitutionally vague. But I don’t think the government has borne the heavy burden required to justify criminalizing speech activities. There is no hard evidence that peaceful activities of the sort proposed here actually benefit an FTO, as opposed to leading toward peaceful resolutions. I would interpret the statute (based on the word “material”) to apply “only when the defendant knows or intends that [his] activities will assist the organization’s terrorist activities.” Otherwise, “the risk that those who are taught will put otherwise innocent speech or knowledge to bad use is omnipresent,” and “there is no natural stopping point” to the Court’s “legitimizing” argument. Certainly even completely “independent” advocacy can further the goals of an FTO and help “legitimize” it. Meanwhile, there is no real showing here that the peaceful teachings and advocacy that plaintiffs propose will actually aid the FTOs in their terrorist goals – and the fact that the law treads upon political speech should heighten our need for hard evidence. Thus in the 1950s, we struck down statutes that criminalized Communist party membership by those “intending to further only its peaceful activities.” [Ed. Note: Of course, here, the government has conceded that membership is allowed under 2339B – although why that is not “material support” is unexplained, other than by the need to distinguish the Communist Party cases.] “What is one to say about … arguments that would deny First Amendment protection to the peaceful teaching of international human rights law”? The government and the majority “stretch [their arguments] beyond constitutional limits” – indeed, even the government has never offered the hypothetical “legitimizing” arguments that the majority adopts. Today’s ruling “gravely and without adequate justification injure[s] interests of the kind the First Amendment protects.” I would remand the case for further proceedings under my proposed interpretation. Because the majority also changes the analysis used by the lower courts, it too should remand rather than simply upholding this statute. “The Court has failed to examine the Government’s justifications with sufficient care” and “ultimately deprives the individuals before us of the protections that the First Amendment demands.”

NOTE: This posting includes Professor Little's perspective on City of Ontario v. Quon, the cfase whch includes interesting discussion about whether public employees have a reasonable expectation of privacy regarding text messages went on government owned equipment during working hours.

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

This summary has been created by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S. Supreme Court Summaries – Criminal Cases

Two decisions: June 18, 2010

Dillon v. United States;

City of Ontario v. Quon

On June 17, the Court issued two decisions related to criminal law. In Dillon, the majority’s opinion presents what would appear to be a straightforward account of federal sentencing statutes and guidelines to affirm an old, 23-year guidelines sentence. But Justice Stevens in dissent raises much larger separation-of-powers questions, post-Booker, to challenge (on very sympathetic facts) “what I have come to view as an exceptionally, and often mindlessly, harsh federal punishment scheme.”

Meanwhile, in Quon the Court addresses, but then avoids deciding, the sensitive issue of expectations of privacy regarding electronic text messaging. In a fact-specific setting of a law enforcement officer using his government-provided pager during work hours to send personal messages, the Court rules that an employer review of the messages for budgetary reasons is “reasonable” under the Fourth Amendment.

1) FEDERAL SENTENCING (upholding mandatory limit on sentence reductions for new, retroactive guidelines).

Dillon v. United States, No. 09-6338, 130 S.Ct. ___ (June 17, 2010), affirming 572 F.3d 146 (3d Cir. 2009).

Holding (7-1, Alito not participating, presumably because it is an old case from his Circuit): The Sentencing Commission policy statement that limits the amount of reduction a defendant can receive, when the Commission later revises a guideline and makes it retroactive, is not made “advisory” by Booker.

Facts: [Ed. Note: There are always more ways than one to present “facts.” One way is to start with the “legal facts” (statutes and such); another is to start with the defendant’s personal facts. The majority takes the former approach, but I’ll try the latter here. Most of the sympathetic facts come from Justice Stevens’ dissent. See if it makes a difference to you.]

Dillon was convicted in 1993, when he was 23, of a crack cocaine offense and a § 924(c) firearms offense, which by statute required a mandatory minimum of 15 years total (10 for the crack, consecutive 5 for the gun). The Sentencing Guidelines, however, recommended a higher 262-327 months for the crack offense, based on the amount of drugs and criminal history (Dillon had two prior misdemeanor convictions). The sentencing judge gave the bottom of the range (22 years), plus 5 years for the gun, for a total of 322 months, and the Third Circuit affirmed. But at Dillon’s original sentencing, the district judge said “I personllay don’t believe that you should be serving 322 months, but I feel I am bound by those Guidelines. ….I don’t think they are fair.” The Guidelines are “entirely too high for the crime committed,” and a five-year sentence would be appropriate, said the judge.

Of course, two decades later in Booker the Court made the guidelines “advisory, and in 2007 in Kimbrough the Court ruled that disagreement with the crack guidelines could support a “reasonable” below guidelines sentence. If Dillon had received the mandatory minimum 15 years, he would be out of prison today. Meanwhile, in prison Dillon has been a pretty extraordinary “good” prisoner. He has participated in the development of youth outreach programs, with two different universities, to steer youth away from drugs and violence. “Without his insight and advice, our project would not have succeeded and grown,” said one program coordinator. Dillon also completed a GED degree, taken vocational classes, “and has job prospects awaiting him upon release.”

After Kimbrough, the Sentencing Commission amended the Guidelines to reduce the crack offense levels by two points, and ordered that the amendment be retroactive. But the Commission also issued a “policy statement” directing that any reduction must not be “less than the minimum for the amended guideline range.” The amended Guidelines that permit a retroactive reduction for crack offenses are an exception to the normal statutory rule that a federal court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c).

Dillon moved for the sentencing reduction, and the district judge reduced his 262 months for crack to 210 months, the bottom of the amended range. But Dillon asked the court to go lower, arguing that the guidelines were now advisory under Booker and that the new sentencing proceeding permitted the court to sentence freely under Kimbrough and § 3553. The district court, however, found no authority permitting it to ignore the mandatory limit on the sentencing reduction found in the policy statement, and the Third Circuit affirmed.

Sotomayor (joined by all Justices except Stevens, who dissents, and Alito who did not participate in the review of his old Circuit’s decisions): The limited sentencing reduction permitted for a retroactive amended Guideline is not a general “resentencing,” so the wide-open, discretionary sentencing authority under § 3553 and Booker does not come into play. Congress has made it clear that an imprisonment sentence may not be modified except in limited circumstances, and the exception for reductions when Guidelines are amended is “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Section 3582(c) authorizes a reduction only “if such a reduction is consistent with applicable policy statements.” Here, the policy statement limits the reduction to the bottom of the amended guideline range. Booker does not require or permit us to eliminate the mandatory limits on reductions that Congress and the Commission have announced. (“We do not respond” to Justice Stevens’ separation of powers discussion, which was not briefed and is not within the question presented here.) There is no constitutional right to a reduction, and the reduction proceeding itself does not implicate Booker or Apprendi, because the judge in a reduction proceeding only exercises discretion within the statutory range. “None of the confusion or unfairness that led us” to the Booker remedy is present here. The constitutional errors, if any, in Dillon’s original sentencing (i.e., basing the Guidelines sentence on facts not found by the jury such as the amount of drugs, and thinking that the Guidelines were mandatory) “are outside the scope of the [sentencing reduction] proceeding.”

Stevens dissenting: “Neither the interests of justice nor commonsense” support this result. “I thought Booker had dismantled the mandatory Guidelines regime. The Court ought to finish the job.” Moreover, the idea that the Commission can, in a mere “policy statement,” mandatorily order district courts in this instance, despite Booker, is of “dubious” constitutionality -- Justice Scalia’s criticisms of the Commission on separation of powers grounds in Mistretta might well apply here. “I do not think the Commission’s authority encompasses the ability to promulgate binding guidelines via policy statements.” [Ed. Note: However, neither Justice Breyer, who wrote Booker, nor Justice Scalia, who dissented in Mistretta saying the entire Sentencing Commission was unconstitutional on separation of powers grounds, joins or comments on Justice Stevens’ discussion of those two cases here.]

Although I joined the majority in Mistretta, “it became apparent during the next two decades” that the mandatory guidelines “produced a host of excessively severe sentences” and also deprived defendants of “long-settled constitutional protections” (thus leading to Apprendi and Booker). And although I dissented in Booker, the fact that Congress has allowed it to stand “demonstrates not only that Justice Breyer is more clairvoyant than I … but also that Congress has acquiesced to a discretionary Guidelines regime.” We should not leave in place the “narrow sliver” of mandatoriness in the policy statement at issue here. Finally, the Commission makes the “subtle threat” that if we remove its limit on sentencing reductions, it won’t make amended Guidelines retroactive in the future. We ought not be influenced that in our decision here, and it seems unlikely.

2. FOURTH AMENDMENT (reasonableness of searching electronic text messages of public employees sent on government–owned equipment during work hours)

City of Ontario, California, v. Quon, No. 08-1332, 130 S.Ct. ____ (June 17, 2010), reversing 529 F.3d 892 (9th Cir. 2008).

Holding (9 (7-1-1) to 0): Without deciding generally whether public employees have a reasonable expectation of privacy in their text messages sent on government-owned equipment during work hours, the review of Quon’s messages here, for a legitimate work-related purpose and not excessive, was reasonable under the Fourth Amendment.

Facts: Quon’s city police department employer gave him a text-messaging device for use in his work as a member of the SWAT team. The city made it clear that texts could be monitored and that he should have no expectation of privacy regarding them. However, when the city became concerned that it was paying too much for “overages” on its plan, Quon’s supervisor told Quon that, if Quon paid for the overages, then his texts would not be “audited.” Quon then started paying monthly overage charges himself, and says this created a “reasonable expectation of privacy” that his messages would not be reviewed. Later, however, the city became tired of being a “bill-collector” and decided to audit the texts to see whether the level of messages paid for was adequate for the policing job. The city restricted its review to text messages sent during work hours, and only for two months. Still, it found that Quon was sending lots of texts for personal reasons (they revealed his romantic, and sometimes sexually explicit, messages), and he was disciplined. Officer Quon and other people he messaged with sued, alleging their Fourth Amendment rights were violated by this government “search” of their messages. The district court rejected the claim after a jury found that the audit was conducted for a legitimate government purpose, but the Ninth Circuit reversed and remanded, finding that “less intrusive means” could have been used to achieve that purpose.

Kennedy (for all Justices except Scalia in one Part): This case “touches issues of far-reaching significance,” and we “must proceed with care when considering the whole concept of privacy expectations in” modern electronic mechanisms. “It is not so clear that courts are at present on so sure a ground” so as to opine authoritatively on these issues. “Prudence counsels caution before the facts of this case are used to establish far-reaching premises.” (The Court cites to Olmstead, which early on held that wire-tapping was not a constitutional issue, which took some 45 years to reverse in Katz (1967).)

Meanwhile, this Court has disagreed as to the proper analysis for workplace Fourth Amendment concerns. In O’Connor v. Ortega (1987), the Court agreed that a worker in a government office does not necessarily lose all privacy expectations. However, only a plurality said that “operational realities of the workplace” must be examined. Justice Scalia rejected this idea, and said that “reasonable” workplace searches should simply be upheld. We do not resolve this dispute here. Even assuming that Quon had a reasonable expectation of privacy in his text messages here, we think the review of his messages was reasonable. It was for a “legitimate work-related” purpose, and it was not excessive. Quon had only a “limited expectation of privacy” at best, because “a reasonable employee” in a law enforcement job would know that his messages might be reviewed. [Ed note: Here the Court appears to be answering the questions, at least in part, that it said it would not answer, above.] It was error for the Circuit to rule on a “less intrusive means” analysis, because a hindsight court “can almost always imagine some alternative means,” and we have “repeatedly refused to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment” (Vernonia, 1995).

Stevens, concurring: I want to point out that Justice Blackmun, in dissent in O’Connor, offered a third approach, more protective of workplace privacy, and his approach is not yet “foreclosed.” However, “Quon, as a law enforcement officer who served on a SWAT team, should have understood that all of his work-related actions – including all of his communications on his official pager – were likely to be subject to public and legal scrutiny.”

Scalia, concurring in part and in the judgment: First, Justice Blackmun’s approach is foreclosed, he was the losing dissenter in O’Connor. More importantly, the “operational realities rubric” of the O’Connor plurality is “standardless and unsupported,” so I can’t join that part of the majority’s discussion. And finally, the Court’s “digression” on the general issue is “unnecessary,” “exaggerated,” and “self-defeating” because it “underscores the unworkability of that standard.” [Ed. Note: Justice Scalia is particularly unhappy with the majority’s speculation that electronic “gadgets” might be necessary, even in the workplace, for “self-expression, even self-identification,” which does indeed seems like an unnecessary, and typically Kennedy-ian, poetic description.]

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On October 1, 2009 I posted an appalant brief for U.S.A v. Justin K. Dorvee on this blog. The Brief was prepared by Paul F. Angioletti, attorney for the defendant-appellant.

Mr. Angioletti has now informed me that the Court of Appeals Second Circuit issued an opinion on the Dorvee appeal on May 11, 2010. In this posting we are including a paragraph from the Second Circuit decision which summarizes the conclusion that the sentence imposed on Dorvee by the District Court was "substantively unreasonable", therefore vacating the judgment and remanding the case to the District Court for resentencing.;

EXCERPT FROM OPINION:

Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation
of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the
Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing.