CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

January 23, 2012

TWO CONFESSIONS: DIFFERENT CONSTITUTIONAL STANDARDS

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 2:20 pm

Confessions after Illegal Search Should be Suppressed if Influenced by Underlying Illegality, Violation of Forth Amendment

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

There are primarily two types of unlawful confessions: custodial confessions obtained in violation of the Fifth Amendment and confessions obtained as products of an illegal search in violation of the Fourth Amendment. The Ninth Circuit Court of Appeals had a recent opportunity in United States v. Shetler to address the latter.

Scott Raymond Shetler was a meth addict/dealer in Pomona, California in September 2009. His drug activities became so obvious that his daughter Jamie anonymously tipped off the Pomona Police Department that her father was using and manufacturing methamphetamine in his residence. Acting on this tip, three police officers arrived at the Shetler residence at 8:00 p.m. on September 22. They noticed a garage door was wide open and one officer detected a “chemical odor” coming from the garage. Standing outside, the three officers saw numerous boxes, motorcycle parts and other equipment in the garage. A partition wall concealed the back portion of the garage from frontal view. The Ninth Circuit explained what happened next:

“The officers entered the garage and conducted visual sweep to determine if there was an in-operation methamphetamine lab or a person behind the partition wall. They did not find anyone inside the garage or any evidence that methamphetamine was being cooked. The officers did, however, observe the following items in plain view behind the partition wall: a can of acetone, a duffel bag containing several plastic and glass beakers, and a jug that appeared to contain red phosphorus, a chemical that the officers knew to be related to the production of methamphetamine.

“At approximately 8:15 p.m., the officers left the garage and knocked on the front door of the house. Shetler exited the house from a side door and approached the officers, who handcuffed and detained him. By this point, several additional police officers had arrived. The police then called into the house to Shetler’s girlfriend, Cynthia Marohn, and her daughter, both of whom lived with Shetler. Marohn and her daughter stepped outside, and several officers immediately entered the residence and conducted a sweep. After completing this search of the house, several officers stayed inside the house, near the front door and in view of Marohn, who remained outside. At 8:5 p.m., while officers were still inside the residence, Marohn signed a consent form that authorized the police to enter the premises and search for ‘methamphetamine, methamphetamine cooking and packaging material, [and] weapons.’”

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December 17, 2011

THE IMPACT OF PINHOLSTER ON NEWLY-DISCOVERED EVIDENCE AND BRADY VIOLATIONS

Filed under: Federal Crimes Lawyer, Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 3:21 pm

Federal Habeas Claims of “New Evidence” of Undisclosed Exculpatory Evidence Should be Remanded to State Courts

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In January 1982, Scott Lynn Pinholster, a California native, was an Aryan Brotherhood-type who, along with two like-minded cohorts, went to the home of a local drug dealer named Michael Kumar. The drug dealer was not at home when the Neo-Nazi trio arrived so they began to ransack the residence in search of drugs and money. At this inopportune time, two of Kumar’s friends, Thomas Johnson and Robert Beckett, arrived at the drug dealer’s home where they confronted the burglars. That confrontation led to Pinholster and his cohorts brutally beating and repeatedly stabbing Johnson and Beckett until they were dead.

The total net of the robbery was $23 and approximately a quarter ounce of marijuana. As the trio drove away from the scene, Pinholster reportedly said: “We got ‘em, man, we got ‘em good.”

Two weeks later one of Pinholster’s cohorts, Art Corona, surrendered to the police and named Pinholster as the mastermind of the Kumar residence robbery/double murder. Pinholster was arrested after which he threatened to have Corona killed if he did keep his mouth shut. The threat did little, if anything, to intimidate Corona who became the State’s key witness against Pinholster at his February 1984 trial. Two attorneys, Harry Brainard and Wilbur Dettmar, were appointed to represent Pinholster, but he rebuffed their representation and elected to represent himself—even though the prosecution had noticed him that it would seek the death penalty.

Pinholster testified in his own behalf during guilt phase of his trial. He admitted burglarizing Kuman’s residence and stealing some marijuana. He denied killing anyone, boasting to the jury that he was a “professional robber,” not a murderer, and insisting that during the hundreds of robberies he had committed during the previous six years he was always armed with a gun, not a knife. He also pointed the finger at Corona as the real killer of Johnson and Beckett.

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September 8, 2011

DOUBLE STANDARD OF EVIDENCE IN CONRAD MURRAY TRIAL

Filed under: Federal Defense Attorney — Tags: , , , , — johntfloyd @ 4:05 pm

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Jury selection has begun in the high profile criminal case against Dr. Conrad Murray, the physician charged with involuntary manslaughter in the drug overdose and death of Michael Jackson.  This comes the day after a California Court of Appeals denied Murray’s request to have the jury sequestered in what will assuredly be intense media coverage and “expert” speculation.

Defense attorney Edward Chernoff, who is defending Dr. Conrad Murray on an involuntary manslaughter charge in connection with Michael Jackson’s drug overdose death in 2009, wanted to call a number of witnesses to testify about Jackson’s 2005 acquittal on child molestation charges. One of the witnesses was a police detective who searched Jackson’s Neverland home in Santa Barbara County in 2003 where drugs, including Demerol, were found. Chernoff wanted to use the detective and a Dr. Arnold Klein, a dermatologist who gave Jackson Demerol, to show that the famous pop singer was addicted to prescription drugs.

According to a report in the Washington Post, lead prosecutor David Walgren lamented that Dr. Murray’s defense team was trying to “character assassinate” the victim. “The people are concerned about this trial deteriorating into an attack on Michael Jackson,” Walgren was quoted by the Post.

The courtroom indignation of prosecutor Walgren is nothing short of pure hypocrisy. Prosecutors in Jackson’s 2005 trial sought, and secured, approval from Judge Rodney Melville to present testimony concerning Jackson’s prior molestation of five boys, ages 10 to 13. It was okay, from a prosecutorial point of view, to “character assassinate” Jackson as a serial pedophile in 2005 but somehow it is not okay to allow Chernoff to show the singer was a drug addict/pedophile.

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July 26, 2011

SUPREME COURT CLARIFIES CRACK-POWDER COCAINES 713 AMENDMENT

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 6:22 pm

Federal Crack Sentence Reductions: Defendants Sentenced Pursuant to 11(c)(1)(C) Agreements Eligible for 3582(c)(2) Relief

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In 2007 the U.S. Sentencing Commission issued a retroactive amendment, Amendment 713, to the Sentencing Guidelines designed to eliminate the sentencing disparities in crack cocaine and powder cocaine cases. The amendment became effective in March 2008, and promptly triggered an outbreak of conflicting appellate court decisions, prompting the U.S. Supreme Court to intervene on several occasions and to restore judicial order (here and here). This past term the Court was once again was forced to confront another issue spun off by Amendment 713: whether the amendment could be retroactively applied in cases where a defendant entered into a plea agreement with the Government for a specific sentence. The Court, in Freeman v. United States, answered that question in the affirmative, although in a plurality decision.

Federal district courts, under 18 U.S.C. § 3582(c), generally do not have the authority to “modify a term of imprisonment once it has been imposed.” This is especially true where the defendant has entered into a plea agreement for a specific sentence endorsed by the sentencing judge. Subsection (c)(2), however, provides the following stipulation: “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or upon its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”

In 2005 William Freeman was indicted for a litany of crimes, including possession with intent to distribute cocaine base and possession of a firearm. Pursuant to Federal Rules of Criminal Procedure, Rule 11(c)(1)(C), he entered into a plea agreement with the Government calling for him to plead guilty to all the charges in exchange for a recommended 106-month sentence. The plea agreement specifically stated “[b]oth parties have independently reviewed the Sentencing Guidelines applicable in this case” and that Freeman agreed “to have his sentence determined pursuant to the Sentencing Guidelines.” The recommended 106-month sentence was the minimum sentence recommended on the drug count while a mandatory consecutive sentence was required on the gun count by 18 U.S.C. § 924(c)(1)(A). The trial court accepted the agreement after which it sentenced Freeman to 106 months on the drug count and the minimum 60-month term under Sec. 924.

Shortly after the Sentencing Commission adopted Amendment 713, Freeman filed a motion to reduce his 106-month cocaine sentence pursuant to Sec. 3582(c))(2). Under the amendment, Freeman would face a minimum sentence of 37 to 46 months. The district court denied the Sec. 3582(c)(2) motion and the Sixth Circuit, citing its holding in United States v. Goins, upheld the trial court’s ruling. Both courts essentially held that defendants sentenced pursuant to a plea agreement calling for a specific sentence are ineligible for Sec. 3582(c)(2) relief. This prompted the Supreme Court to intervene and decide the issue—hopefully once and for all. Too many lower courts, at both the district court and appellate court level, have resisted the spirit, if not the intent, of Amendment 713.

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June 17, 2011

MILITARIZED POLICE NO KNOCK SEARCHES KILL INNOCENT PEOPLE

Filed under: Drug Defense Attorney — Tags: , , , , — johntfloyd @ 6:55 pm

Recent U.S. Supreme Court Decisions Expanding “No Knock” Powers of the Police and Insulating Law Enforcement Abuses Allow a Growing Police State

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

We are no fans of “no knock” searches by the police, especially those launched by militarized SWAT units. We made this clear after a recent U.S. Supreme Court decision expanding police powers to conduct such searches (here). We don’t like them because they kill innocent people indiscriminately. We have permitted our law enforcement agencies to become so militarized that “no knock” searches increased from 3,000 in 1981 to 50,000 in 2005, according to Eastern University of Kentucky criminologist Paul Kraska, and have resulted in the deaths of 40 innocent people during that time, according to the Washington-based Cato Institute. Peter Guither, with Drug War Rant, places the number of innocents killed in “no knock” searches at 42.

One of those innocent people gunned down by the police was 44-year-old substitute Sunday school teacher Cheryl Noel who kept a registered gun in her bedroom. Nine years earlier her 16-year-old stepdaughter had been killed in a shooting which led Noel to purchase a weapon for self-protection. On June 2, 2011 the Fourth Circuit Court of Appeals, in Noel v. Arston, rejected claims by her estate that they were entitled to civil damages under 42 U.S.C. Sec. 1983.

The Noel tragedy began in October 2004 when a Baltimore County police officer noticed a white dusty power inside a bag in Matthew Noel’s vehicle during a routine traffic stop. The 18-year-old Noel lived at home with his parents Cheryl and Charles. He admitted to the traffic stop officer that he had a “Percocet abuse problem.” The traffic stop officer passed this information on to the Baltimore County narcotics department. Sgt. Robert Gibbons initiated a surveillance of the Noel residence, examining the trash thrown away by its occupants each day. Why law enforcement officials decided to conduct such an intensive investigation based on nothing more than white dust powder in a vehicle driven by an 18-year old who admitted to having a drug abuse problem has never been made clear in the public record.

What is clear is that Gibbons found marijuana and other drug paraphernalia in the trash which was sufficient for him to apply for and secure a search warrant of the Noel residence on January 19, 2005—some three months after the traffic stop discovery of the white dust powder. Gibbons then discussed the search with Baltimore County SWAT supervisors who decided that a “no knock” entry was appropriate.

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May 21, 2011

FOURTH AMENDMENT CURTAILED ONCE AGAIN

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 1:15 pm

Kentucky V. King: Warrantless Entry into Residence Reasonable When Exigent Circumstances Exist That Were Not Created By Police

By: Houston Criminal Lawyer John Floyd and Billy Sinclair

The Fourth Amendment to the United States Constitution has historically protected Americans from unreasonable searches and seizures by law enforcement officials. The Fourth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. The Fourth Amendment has two long recognized clauses: First, the prohibition against unreasonable searches and seizures; and, second, the requirement that probable cause be established before a search warrant is issued. There are “exigent circumstances” to these two constitutional requirements which allows law enforcement officials to conduct warrantless searches when 1) there is possible imminent destruction of evidence; 2) a real threat to the safety of the general public or law enforcement officials exist; 3) the police are in “hot pursuit” of a suspect; or 4) there is a likelihood that a suspect will flee before law enforcement can obtain a warrant.

The U.S. Supreme Court, in Kentucky v. King (May 16, 2011), recently expanded what has been called the “police-created exigency” doctrine in warrantless “kick down the door” searches of a residence. While the warrantless search of a home without a warrant has been traditionally viewed as presumptively unreasonable, law enforcement officials have been allowed to bypass this constitutional impediment when the “exigencies of the situation” make it reasonable to conduct a warrantless search of a suspect’s home. Over the years a number of state and federal courts formulated a rule that the police may not rely upon “exigent circumstances” to justify warrantless searches when the “exigency” was created or manufactured by the police. The Fifth Circuit Court of Appeals, in United States v. Gould (en banc), put it this way: “[A]lthough exigent circumstances may justify a warrantless probable cause entry into a home, they will not do so if the exigent circumstances were manufactured by the agents.”

The Kentucky Supreme Court, in King v. Kentucky (Feb. 11, 2010), followed the lead of the Fifth Circuit, and other federal circuits, when it reversed the drug conviction of Hollis King. The Lexington police conducted a “controlled buy” of crack cocaine outside of an apartment complex. The drug dealer/target of their investigation engaged in a sell of the drug which was witnessed by an undercover agent. Once the transaction was over and while the drug dealer was moving quickly toward the breezeway of the apartment, the undercover agent instructed uniformed officers to “hurry up and get there” before the dealer entered the apartment complex. Just as the uniformed officers arrived at the breezeway, they heard an apartment door shut and “detected a very strong odor of burnt marijuana.” The uniformed officers were looking at two apartments—one on the right, the other on the left. They were not sure which one the drug dealer had entered. Because they smelled the burnt marijuana in the apartment on the left, they believed that was the one the suspect had entered.

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April 9, 2011

The Paradox that is The War on Drugs

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 11:07 am

While Some Politicians Question Cost Of Incarcerating Drug Offenders, Big Money and Bigger Forfeitures Keeps Texas Tough On Drug Crime

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

An increasing number of states have abandoned the traditional notion that the best way to combat drug use and trafficking is through the costly practice of extended incarceration. TheWall Street Journal last month reported that Kentucky joined the ranks of South Carolina, Colorado and New York to enact laws that shift spending into less expensive and more effective rehabilitation and intensive drug testing programs. Delaware, Florida, Indiana, Massachusetts and Pennsylvania are currently considering bills that would reduce drug penalties and direct some drug defendants into treatment programs.

The newspaper reported that while these drug law changes “are part of broader belt-tightening efforts, they also reflect a growing belief among state lawmakers that prosecuting drug offenders aggressively often fails to treat their underlying addiction problems and can result in offenders cycling in and out of prisons for years …” Many of these lawmakers are conservative Republicans, like State Senator Tom Jensen in Kentucky, who said he had long “bought into the tough-on-crime concept” and embracing the “rehabilitative model” has been “an education process.”

But not all conservative-leaning people are convinced. For example, Scott Burns, executive director of the National District Attorneys Association, told the WSJ that “you need to have serious consequences or repercussions in place if people use heroin, Oxycontin and other drugs.” Aaron Negangard, chairman of the Indiana Prosecuting Attorneys Council, agreed: “Crime will go up in five to 10 years and people will wonder why. It’s because we are letting too many people out of prison.”

FBI crime-gathering data shows that between 1980 and 2009 drug arrests in this country climbed from approximately 580,000 to 1.6 million. Texas was one of the states that watched its prison population rise exponentially until 2007 when, as WSJ reported, the state “began shifting more drug offenders away from prison, which helped hold down the inmate population. The changes cost $241 million, less than half what the state anticipated it would have spent to build three new prisons. The impact on the crime rate isn’t clear.”

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February 11, 2011

THE PURPOSE OF REASONABLE DOUBT IN CRIMINAL TRIALS

Filed under: Drug Defense Attorney — Tags: , , , , , — johntfloyd @ 1:09 pm

Prosecutorial, Police Misconduct Lead to Wrongful Conviction Unsupported by Evidence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In a recent post we discussed both the history and role of reasonable doubt in criminal trials. We noted and criticized the fact that Texas judges in criminal trials do not, per Texas Court of Criminal Appeals mandate, have to give jurors any instruction as to what constitutes “reasonable doubt.” This, we believe, is one of several reasons why Texas leads the nation in the wrongful conviction of innocent people.

The Fifth Circuit Court of Appeals recently reversed a drug conviction of a Texas resident and had an opportunity in the process to explain why reasonable doubt is so critical in ensuring the constitutional right to a fair and impartial trial. The case involved Maria Aide Delgado who was convicted in federal court of one count of possession of marijuana with intent to distribute and one count of conspiracy to commit the same offense. The Delgado case also illustrates a subject matter we have discussed in other posts: prosecutorial misconduct (here and here).

In September 2006 federal customs officers received a tip from undercover informant that Delgado had marijuana in a tractor trailer truck parked at her rural residence in Weslaco, Texas. Delgado, the sole owner and operator of T.J. Trucking, gave the officers “consent” to search after which they discovered 230 kilograms of marijuana in the sleeper cab of the locked semi-trailer truck which was parked inside her fence. Delgado told the officers she didn’t know anything about the marijuana or how it got in the truck; that her company hired drivers to operate the semi-trailer to haul Mexican produce from Laredo to destinations throughout the United States. She also informed the officers that she did not drive or accompany the truck on its long hauls, and that the bulk of her business was conducted by telephone from her residence. The officers seized her cell phone, computer, bank records, and personal papers—none of which disclosed any evidence of illegal drug activity.

Bartolome Vasquez was a legal Mexican resident who worked as a produce broker and shipper in Laredo. He also moonlighted as a paid government informant. He knew Delgado, having done business with her arranging produce shipments the four years prior to 2006. He told his U.S. Customs handlers that he spoke with Delgado at least four times a month either in person or over the telephone. He told the handlers he considered her a “legitimate trucking business operator” until September 2006 when she offered him $10,000 to haul a load of marijuana mixed with produce to North Carolina. Vasquez said he turned down the offer and immediately reported it to his Customs handlers. Since they had previously paid him $1300 for drug smuggling related information, he naturally expected a reward for the Delgado information—and, as a matter of fact, he did receive $7,500 for that information.

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