Friday, July 21, 2006

Case Summaries

July 18, 2006, Slip Opinions. Five criminal cases.

U.S. v. Franklin Gordon Tucker, No. 06-1218. (W.D. Missouri). Before Circuit Judges Wollman, Bowman, and Riley. (Unpublished).

After a bench trial, Tucker was convicted of being a felon in possession of three firearms. Tucker appeals the District Court’s denial of his motion to suppress evidence, citing error. Tucker moved to suppress all evidence gathered and statements obtained following the search of his residence, because the government affidavit lacked probable cause Franks. The magistrate judge denied the motion and despite Tucker’s objections the District Court adopted the magistrate judge’s report and recommendation in its entirety.
The Eighth Circuit reviewed 1) the denial of the motion to suppress de novo, and 2) the factual determinations for clear error.

The Eight Circuit held that the totality of the circumstances supports a finding of probable case. See U.S. v. Hunley, 567 F.2d 822, 827 (8th Cir. 1977). The record in the instant case does not reflect a Franks violation.

U.S. v. E.J.R.E, No. 05-4291. (D. South Dakota)
U.S. v. T.R.E., No. 05-4293. (D. South Dakota)
U.S. v. C.R., No. 05-4294. (D. South Dakota)
Before Circuit Judges Bye, Lay, and Riley. Opinion by Circuit Judge Lay.

"E.J.R.E., C.R., and T.R.E. (collectively "Appellants"), were each adjudicated delinquent and subsequently sentenced to detention followed by a term of juvenile delinquent supervision for conduct that occurred before November 2, 2002."
The Eighth Circuit held on May 21, 2004, U.S. v. J.W.T., 368 F.3d 994, 996-97 (8th Cir. 2004), that the amendment to 18 U.S.C. §5037, enacted November 2, 2002, which expressly authorized juvenile delinquent supervision, could not be applied to acts of juvenile delinquency committed prior to November 2, 2002.

One year later, Appellants filed their §2255 motions in District Court to vacate, set aside, or correct their sentences. The District Court denied all three motions as untimely. Appellants appeal this decision claiming:

1) 28 U.S.C. §2255 para.6(4) renders their §2255 motions timely, and
2) that "the doctrine of equitable tolling should be applied to toll the one-year statute of limitations provided under §2255".

The Eighth Circuit reviewed de novo the District Court’s finding that the Appellant's §2255 motions were untimely. Snow v. Ault, 238 F.3d 1033, 1034 (8th Cir. 2001).

1) The Eighth Circuit held that after sentencing by the District Court, the Appellants failed to act with "the requisite diligence" established by Johnson, by failing to file direct appeals to their final judgments, and thus did not "preserve eligibility to invoke the statute of limitations under §2255 para. 6(4)." The Eighth Circuit found the District Court’s ruling to be proper.
2) The Eighth Circuit held that equitable tolling requires
a) that the petitioner act "with due diligence in pursuing his petition", and
b) that "extraordinary circumstances beyond a petitioner’s control prevent timely filing."

In the instant case, neither requirement was met to establish equitable tolling, and the District Court’s ruling was proper.

U.S. v. Carlos Alberto Pool-Chan, No. 05-4015. (N.D. Iowa). Before Chief Judge Loken, Bowman, and Bye, Circuit Judges. Opinion by Chief Judge Loken.

"After a bench trial, Pool-Chan was convicted of possessing a counterfeit social security card...", and received a sentence of 187 days in prison, equal to time already served and two years of supervised release. Pool-Chan appeals his conviction "arguing as he did to the District Court that possession of an unsigned counterfeit social security card does not violate (18 U.S.C.) 1546(a)."
As required by U.S. v. Kirchoff, the Eighth Circuit reviewed this issue of statutory construction de novo and held that the District Court correctly concluded that an unsigned social security card is a document which provides evidence of authorization to work in the United States. "Signing is irrelevant to a verifying employer and therefore irrelevant to whether an illegal alien subverts the employer verification system by tendering a counterfeit or otherwise fraudulent card.", but not signing may affect "its validity for other purposes."

U.S. v. Zachary Hrasky, No. 05-2111. (D. Nebraska). Before Circuit Judges Riley, John R. Gibson, and Colloton. Opinion by Circuit Judge Colloton. Dissenting opinion by Circuit Judge John R. Gibson.

A grand jury indicted Hrasky with unlawful possession of a firearm by a convicted felon. "Prior to trial, Hrasky filed a motion to suppress evidence, including two firearms, obtained during a search of his vehicle.", which the District Court granted. The government appeals the District Court’s granting of Hrasky’s motion to suppress, contending that the search was incidental to Hrasky’s arrest and "consistent with the Fourth Amendment".
The Eighth Circuit reviewed the instant case and applied the "bright-line rule of New York v. Belton" which the Eighth Circuit has used in the past to uphold searches of automobiles incident to arrest when the following circumstances exist:

1) the arrestee has exited the vehicle, and
2) has been handcuffed, and
3) placed in a police officer’s patrol car, U.S. v. Barnes, or,
4) removed from the scene entirely, U.S. v. Snook, U.S. v. McCrady.
The "bright-line rule" established by Belton, distinguishes between searches that are "roughly contemporaneous with the arrest" and searches that are "conducted within a reasonable time after obtaining control of the vehicle". U.S. v. Smith concludes that a search is contemporaneous with the arrest "so long as it occurs during a continuous sequence of events". See U.S. v. McLaughlin, 170 F.3d at 893.

In the instant case, prior to his arrest, Hrasky offered to provide drug information to government agents. In light of his offer, it was necessary to call in an agent to debrief Hrasky and then determine if he would be a good candidate to become a confidential informant, which placed his arrest status in limbo. After it was determined that Hrasky would not become a confidential informant, the office immediately placed Hrasky under arrest and then searched Hrasky’s vehicle.

The Eighth Circuit held that the search in the instant case was contemporaneous with the officer’s decision to place Hrasky under arrest, therefore the search was reasonable.

Dissenting opinion.
Circuit Judge Gibson dissents, arguing that the warrantless search of Hrasky’s truck does not fall on the "permissible side of the "bright-line" rule of New York v. Belton for the following reasons:
1) It does not meet the "specifically established and well-delineated exceptions" which allow a search to occur outside of the judicial process.
2) "Searches incident to arrest are not limitless" U.S. v. Pratt, and must be treated as "exceptions to the constitutional norms" to prevent a feeling that warrantless searches are a "police entitlement".
3) Coolidge v. New Hampshire requires the government to "establish its entitlement to the search incident to arrest exception", or the evidence gained from the warrantless search must be suppressed.
4) In U.S. v. Pratt the Eighth Circuit previously held that "a seizure of a person predicated upon probable cause" as in the instant case "is properly regarded as an arrest" because "at this point that a reasonable person would have believed he was not free to leave."
5) The U.S. "Supreme Court has refused to apply the search incident to arrest exception in the context of a similar delay, Chadwick, 433 U.S. at 15.
Circuit Judge Gibson would Affirm the order of the District Court.
REVERSED and REMANDED for "further proceedings not inconsistent with this opinion."

U.S. v. Juan Francisco Gonzalez, aka Michael Andrew Quinones, No. 03-2263. (E. D. Missouri). Before Circuit Judges Riley, Richard S. Arnold, and Melloy. Unpublished.

In an earlier opinion, the Eighth Circuit affirmed the criminal conviction and life sentences imposed upon Gonzalez. See U.S. v. Gonzalez, 365 F.3d 656 (8th Cir. 2004). Gonzalez appealed this opinion and was granted certiorari based upon sentencing issues under Blakely. Once the Supreme Court issued its opinion in Booker, it vacated the Eighth Circuit judgment and remanded for consideration in light of Booker.

In the instant case, the Eighth Circuit reviewed for plain error under Booker and found that the District Court committed plain error when it applied the Guidelines as mandatory. "The District court expressly commented on the lack of discretion afforded by the Guidelines in this case." Later the District Court read letters of support on the record, and stated that it was doing so to "support" Gonzalez as he started to "proceed down a monstrously difficult road.", followed by comments regarding the appropriate nature of his sentence.
The Eighth Circuit held that the District Court’s comments establish ambiguity, but not a reasonable probability that it "would have imposed a term of years under an advisory regime", and therefore the sentence will be allowed to stand.

Melissa N. Tessaro, Branch Office Administrative Assistant
Office of the Federal Public Defender
Eastern & Western Districts of Arkansas


Anonymous Anonymous said...

I, for one, miss this terribly.

Wednesday, June 20, 2007 11:52:00 AM  

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