ABA: U.S. Supreme Court Updates. May 27, 2009.

May 27, 2009.

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust
MONTEJO v. LOUISIANA (No. 07-1529)

Mr. Montejo was arrested on September 6th, 2002, in connection with the robbery and murder of Mr. Lewis Ferrari. During police questioning of Mr. Montejo, which lasted from late afternoon on the 6th to early morning on the 7th, Mr. Montejo repeatedly changed the account of the crime, ultimately confessing to having shot and killed Mr. Ferrari during a failed burglary. Later, after being read his Miranda rights for a second time, Mr. Montejo agreed to accompany police in retrieving the alleged murder weapon. During this excursion, Mr. Montejo wrote a letter of apology to Mr. Ferrari’s widow. Mr. Montejo did not have access to his court-appointed attorney until his return to jail, who was upset that his client had been interrogated in his absence and subsequently objected to the apology letter’s admission as evidence at trial.

The jury convicted Mr. Montejo, who was sentenced to death. The Louisiana Supreme Court affirmed the conviction and sentence, relying on Montoya v. Collins, 955 F.2d 279 (1992), explanation of the rule in Michigan v. Jackson, 475 U.S. 625, 636 (1986), reasoning that the prophylactic protection of Jackson is not triggered unless and until the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel. At a hearing where a judge ordered the appointment of counsel, Mr. Montejo did not explicitly request a meeting with his counsel, but rather, remained mute.

The USSC held, in deciding whether courts must presume that a waiver of an accused’s Miranda rights is invalid under certain circumstances, that when a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary. The USSC explains that the rule laid out in Jackson was designed to prevent police from badgering defendants into changing their mind about their rights, but a defendant who has never asked for counsel, such as Mr. Montejo, has not yet made up his or her mind.

Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Thomas, and Alito, J.J., joined. Alito, J., filed a concurring opinion, in which Kennedy, J., joined. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, J.J., joined, and in which Breyer, J., joined, except for n. 5. Breyer, J., filed a dissenting opinion.

Available at: http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf

No. 08-192 (May 26, 2009)

After tapping the phone of suspected drug dealer Mohammed Said, FBI agents recorded six calls between Said and petitioner Salman Khade Abuelhawa, during which Abuelhawa arranged to buy cocaine in two separate transactions, each time for a single gram. Under §844 of the Controlled Substances Act, Abuelhawa’s purchases were misdemeanors, and Said’s two sales were felonies. However, the government charged Abuelhawa with six felonies on the theory that each phone call violated §843(b), which makes it a felony “to use any communication facility in… facilitating” felony drug sales.

Abuelhawa moved for acquittal on the grounds that his efforts to commit the misdemeanor could not be treated as facilitating Said’s felonies, but the motion was denied and Abuelhawa was convicted on all six counts. Abuelhawa argued the same point before the Court of Appeals for the Fourth Circuit, which upheld the conviction, reasoning that Abuelhawa’s use of a phone counted as facilitation because it “undoubtedly made Said’s cocaine distribution easier.”

The Supreme Court reversed the decision, holding that using a telephone to make a misdemeanor drug purchase does not “facilitate” felony drug sales in violation of §843(b). Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be “odd” to speak of one party as facilitating the other’s conduct. The Court relied on holdings in similar cases in which adding to the penalty of the party on one side for facilitating the actions by the other would upend the “legislature’s punishment calibration.” See Gebardi v. United States, 287 U.S. 112, 119.

Furthermore, since the word “facilitate” is generally synonymous with “aid,” “abet,” or “assist,” it is likely that Congress had an equivalent meaning in mind when it enacted §843(b). Any broader reading would for practical purposes destroy the distinction between the possession of drugs and the distribution of drugs. Finally, the fact that Congress had previously downgraded possession from a felony to a misdemeanor shows that Congress meant to treat purchasing drugs for personal use more leniently than felony distribution, and to narrow the scope of the communications provision to cover only those who facilitate a felony. Therefore, Abuelhawa’s actions could not be considered “facilitation” of Said’s felonies.

Souter, J., delivered the opinion for a unanimous court.

Available at: http://www.law.cornell.edu/supct/html/08-192.ZS.html

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