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Discovery Requests Concerning DNA Evidence

Cases involving DNA evidence are becoming increasingly common in federal court. Unfortunately, the defense does not have automatic access to DNA evidence, even when the government has indicated that it will be relying on such evidence at trial. Accordingly, in DNA evidence cases, a motion for discovery with specific, detailed evidence requested is necessary.In one recent federal case, the government initially resisted a defense request for access to DNA evidence, but then did an about face after extensive briefing. Initially, the government’s position had been that it was only obliged to produce a summary of its DNA expert’s opinion under Fed.R.Crim.P. 16. However, as illustrated in the Eastern District of California Case of U.S. v. Liquid Sugars, 158 F.R.D. 466 (1994), this sort of limited discovery response is insufficient. Liquid Sugars provides persuasive authority for the proposition that the Government needs to go beyond the production of the mere report in responding to Rule 16 discovery requests. Sample briefing on how to access DNA evidence can be obtained by contacting the Federal Defenders. We also hope to add some briefing to the brief bank this summer.

As referenced in a recent email by CJA panel representative Pete Schweda, there are numerous internet resources available to attorneys working on forensic evidence cases. Such cases extend beyond DNA cases and may involve fingerprint, ballistic, handwriting, fiber, bite mark, hair, bloodstain pattern, arson, or digital evidence. Pete Schweda’s email referenced www.nlada.org, where counsel can find articles such as: Evaluating Forensic DNA Evidence: Where Do I Start?? Another on-line resource is “Strengthening Forensic Science in the United States: A Path Forward” by the Committee on Identifying the Needs of the Fornsic Scieneces Community, National Research council, which is available here.

Defense counsel may also wish to consult with an expert when a case involves DNA evidence. Some DNA experts used by the Federal Defender in the past include: Dr. Grimsbo with Intermountain Forensic Laboratories, Inc. and Greg Hampikian, Ph.D, at crimescience.com.

2009 06 29 admin Discovery
Evidence
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High Court To Review Constitutionality of Involuntary Commitment Under the Adam Walsh Act

In granting review of a civil case, the Supreme Court will address a matter with significant consequences for those convicted of a criminal offense, who are in the Bureau of Prisons and are found to be “sexually dangerous.” This week, the Court granted review of US v. Comstock, 551 F.3d 274 (2009), out of the 4th Circuit. In granting cert, the Court will determine whether Congress had authority in enacting 18 U.S.C. § 4248, also known as Title III of the Adam Walsh Act. In Comstock, the 4th Circuit found it unconstitutional since it neither regulated economic activity nor interstate commerce, thus being outside the scope of the Commerce Clause. It further rejected its stand alone applicability under the Necessary and Proper Clause. Just last May, the 8th Circuit took an opposite approach and has caused a circuit split by validating 18 U.S.C. ‘ 4248 in US v. Tom, 565 F.3d 497 (2009). The Ninth Circuit has not yet addressed this issue.

The civil process authorized by 18 U.S.C. § 4248 permits the federal indefinite commitment of “sexually dangerous” persons who are nearing the end of their federal prison sentence, or who have been found mentally incompetent for trial. A more detailed analysis of the potential directions the Court may go in this case is discussed at the Constitutional Law Prof Blog.

Our original blog post discussing the Comstock decision can be accessed here.

2009 06 26 admin BOP
Sex Offenses
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Can “Good Faith” Obviate Gant?

Short answer: No.

In response to this district’s Gant litigation (Arizona v. Gant, 129 S.Ct. 1710 (2009)(see discussion here), the government is now claiming that suppression is not an appropriate remedy for a pre-Gant search, based upon law enforcement’s ”good faith” belief in a broad application of New York v. Belton, 453 U.S. 454 (1981). This is a meritless argument. The Supreme Court rejected this approach to the exclusionary rule 22 years ago. Defense counsel need to be wary of the “good faith” issue and make sure prosecutors and the courts know the law. Here’s a little primer:

“[A] decision of [the Supreme] Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.” United States v. Johnson, 457 U.S. 537, 542-43 (1982). This retroactivity rule applies even when a Supreme Court decision adopts a new rule that constitutes a clear break with past cases. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Under this standard, a case is not final so long as it remains under direct review. Id. at 321, n.6.

A bit of Supreme Court history explains why the aforementioned ”new rule” doctrine means that the exclusionary rule applies to Gant violations in all pending cases, even those where the search took place prior to Gant. Continue reading ›

2009 06 23 admin Suppression
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Addressing Sentencing Enhancements in Child Porn Cases

One of the most difficult tasks we face is trying to mitigate child pornography offenses for sentencing purposes. Complicating this task are the seemingly omnipresent enhancements in child pornography cases, which can greatly escalate a guidelines range. The fact that a large percentage of cases involve materials obtained via the internet has only complicated matters further, while making it easier to obtain many images of all types. The presence of new technology, however, makes it even more critical to carefully analyze each enhancement in order to argue against the applicability of those enhancements.

One of the technological advances which is sometimes present in child pornography cases is the utilization by clients of an fserve and Internet Relay Communication software. This technology allows users to trade files without users being present at their computer to actually send or receive files. While this technology can be used to trade many types of legal computer files, it can also be used to trade child pornography. This technology also makes it increasingly easy for a user to obtain a significant number of images in a short time, before the user even knows what images are present on his/her computer. This situation presents the danger of implicating numerous enhancements (for the number of images, sado-masochistic images, pre-pubescent images, etc.) without the user being aware of what is possessed.

In such situations, it is important to argue that there is a knowledge requirement which must be satisfied. A knowledge requirement is generally consistent with case law addressing proper considerations in sentencing. Moreover, there is a growing body of case law analyzing the use of computers and how technology may affect whether or not a person actually knows what images are present on a computer hard drive. A recent Ninth Circuit redacted brief addressing many of these issues may be found here. Certainly, child pornography clients do not present as the most sympathetic clients, which adds difficulty to asking for a below-guidelines sentence. Therefore, it is even more crucial to keep the guidelines range as low as possible.

While it may sometimes be difficult to analyze the technological aspects of a case, it is crucial to do so, as the enhancements may drastically increase a client’s sentencing exposure via the guidelines range. It is also critical as a basis for mitigating what may otherwise seem to be completely abhorrent conduct- it provides a basis for humanizing your client by arguing that he/she did not know what was present, and is thus less culpable due to that lack of knowledge.

2009 06 22 admin Computers
Sentencing
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Success Story

Alien Re-Entry Charge is Tossed After the Defense Establishes Derivative Citizenship

Under 8 U.S.C. § 1326, it is a federal crime for a non-citizen to return to the United States after deportation. In a recent § 1326 case, the defendant claimed he was not guilty because he was entitled to derivative citizenship. The defendant stated that, although he was born in Mexico and his mother was a Mexican citizen and he was born out of wedlock, his father was an American citizen. If this were the case, one element of the charge, could not be proved.

The initial focus of the defense was to examine the rules regarding derivative citizenship and how that fact could be established and sustained. Research led to 8 U.S.C. § 1409, Children born out of wedlock. This provision provides that derivative citizenship can be established if a blood relationship between father and child is established by clear and convincing evidence; the father was an American citizen at the time of the child’s birth; the father agreed in writing to provide financial support for the child; and either the child was legitimated, the father acknowledged paternity under oath or paternity was established by a court.

The defense strategy was to present compelling evidence of paternity and then allow the court to establish citizenship and satisfy the last provision of § 1409. We wanted to find out if there was any reliable scientific way to establish this type of admissible evidence. Through some investigation, we located a woman who was the daughter of our client’s purported father. We then contacted a DNA firm, Genex Diagnostics, Inc, Vancouver, BC, Canada, that had expertise in sib-ship DNA tests. This is a comparison of DNA from purported siblings to determine if a common parent exists. The defense motioned the court for a subpoena duces tecum compelling the “sister” to submit to a relatively non-intrusive cheek rub test for comparisons purposes. The court concluded that the test was reasonable and ordered the subpoena. The sample was obtained from the sister, which was then submitted to our expert lab along with a sample from the defendant. The results indicated a 70% chance that the two had a parent, their father, in common. With this information provided to the AUSA, the government conceded that it would have a difficult time proving beyond a reasonable doubt that the defendant was not an American citizen and dismissed the case.

This case suggests that a novel approach can produce successful results and that what seems like an outlandish position by the defendant can prove to be accurate. If you have a situation that appears similar, our office is always available to discuss specific suggestions regarding court pleadings and/or expert services to contact.

2009 06 19 admin Expert Testimony
Immigration
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When Is a Hung Jury Really an Acquittal?

The Supreme Court announced its decision in Yeager v. United States today (available here). In doing so, the Court recognized important double jeopardy principles in a case involving a hung jury.

A federal indictment charged petitioner Yeager with securities and wire fraud for allegedly misleading the public about the virtues of a fiberoptic telecommunications system offered by his employer, and with insider trading for selling his stock while in possession of material, nonpublic information about the system’s performance and value. He was also charged with money laundering for conducting various transactions with the proceeds of his stock sales. The jury acquitted Yeager on the fraud counts but failed to reach a verdict on the insider-trading and money-laundering counts.

The Government recharged some insider-trading and money laundering counts. Yeager moved to dismiss on the ground that the jury, by acquitting him on the fraud counts, had necessarily decided that he did not possess material, nonpublic information about the project’s performance and value, and that the issue preclusion component of the Double Jeopardy Clause therefore barred a second trial for insider trading and money laundering. The District Court denied the motion, and the Fifth Circuit affirmed, reasoning that the fact that the jury hung on the insider-trading and money-laundering counts-as opposed to acquitting petitioner-cast doubt on whether it had necessarily decided that petitioner did not possess material, nonpublic information. Continue reading ›

2009 06 18 admin Supreme Court
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Keeping Prosecutorial Vouching in Check

Being in trial can often feel like being a cook in a 100-degree kitchen with six different pots on the stove. It is stressful to make sure that nothing gets burned. One of the most difficult things to keep track of during trial is the prosecutor and one of the toughest things to rein in is improper vouching.Vouching or bolstering is a form of prosecutorial misconduct. “Improper vouching typically occurs in two situations: (1) the prosecutor places the prestige of the government behind a witness by expressing his or her personal belief in the veracity of the witness, or (2) the prosecutor indicates that information not presented to the jury supports the witness’s testimony. United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002). Most attorneys are probably familiar with this general standard. However, identifying an actual instance of vouching can be harder. The following is a summary of common types of vouching: Continue reading ›

2009 06 16 admin Evidence
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The Impact of Arizona v. Gant

As previously noted on this blog, the Supreme Court’s recent decision in Arizona v. Gant, 129 S.Ct. 1710 (2009) reins in police officers’ ability to search vehicles incident to arrest, holding that a search incident to arrest is only permissible if the arrestee is within reaching distance of the car at the time of the search or if there is reason to believe that evidence of the arrest will be found in the automobile.

Several cases within this district have been impacted by Gant. The most dramatic involved the following scenario: a patrol officer, running license plate numbers, discovers that a registered owner has outstanding warrants for felony escape and misdemeanor driving with a suspended license. The officer retrieves a booking photograph of the registered owner but leaves the scene after failing to spot that person in the area of the parked vehicle. A short while later, the officer returns and observes the registered owner exiting that same vehicle and beginning to walk back towards a residence, whereupon the officer approaches, arrests him for the outstanding warrants, and places him in the back of the squad car. Incident to the arrest, the officer searches the vehicle and discovers a firearm. The defendant is subsequently charged with being a felon in possession of a firearm (18 U.S.C. Section 922(g)(1)).

A motion to suppress was filed on April 20, 2009, arguing that the search was impermissible on grounds that neither officer safety nor preservation of evidence were at issue, thus placing that search outside of any exception of the warrant requirement. Gant was decided the next day. The government immediately responded by filing a short memorandum, agreeing to suppression.

Other cases in this district that have been impacted include two petitions for certiorari, which were granted, vacated and remanded in light of Gant, and another presently before the Ninth Circuit in which Judge Whaley has ordered the defendant’s release pending appeal, given the likelihood of his conviction being overturned.

These instances confirm the value of spotting and preserving issues on behalf of our clients. Even when current case law appears unsupportive, the law only changes when diligent attorneys chip away in the district courts and preserve issues for appeal.

2009 06 12 admin Suppression
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Success Story

Team Effort and Timely Continuance by CJA Panel Attorney Scott Richard Hill Saves Client 70 Months After Sentencing Remand from the Supremes

At the time of Gino Rodriquez’s federal conviction for being an armed felon back in July of 2004, he had two prior California state residential burglary convictions, and three prior Washington state convictions for delivery of a controlled substance. The drug convictions occurred on the same day but were based on deliveries on different occasions. Although Washington law provided for an increased sentence of 10 years if the defendant had a prior conviction for the same offense, the maximum penalty for the offense was five years in prison, not considering the recidivism enhancement. Mr. Rodriquez actually received 48-month concurrent sentences on the convictions.

At the September 2004 sentencing the government contended that the Mr. Rodriquez should be sentenced under the ACCA (18 U.S.C. § 924(e)) because the maximum term on two of the respondent’s Washington state drug offenses was 10 years under the state recidivist statute. Judge Whaley disagreed, finding that while the two California burglaries qualified as “crimes of violence” for enhancement purposes, the Washington delivery convictions did not. Thus Mr. Rodriquez, represented by AFPD Kim Deater, escaped the 15 year ACCA (Armed Career Criminal Act) sentence. Continue reading ›

2009 06 11 admin Categorical Approach
Sentencing
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CJA Panel Meeting Notice

Spokane’s CJA panel meeting will be on Thursday, June 18, from 12-1 pm. The two-part topic is “Advocating for the legal right to medical care while incarcerated and challenging criminal history points using Rothwell v. City of Spokane.” Our guest speaker will be Breean Beggs, Chief Catalyst of the Center for Justice in Spokane. Breean will discuss the law and jail policy related to the rights of inmates to medical care and how defense counsel can most effectively assist our clients through this process, as well as the Center’s recent litigation in this area. He will also speak about the Center’s case that is presently pending before the WA Supreme Court, Rothwell v. City of Spokane, and possible argument to challenge criminal history points obtained in Spokane Co. District Court over the past 5-6 years. A pizza lunch will be provided. Please RSVP so we know how many people to expect.

Yakima’s CJA panel meeting will be on Thursday, June 25, at 4:30 p.m. Rebecca Pennell will discuss the rules and procedures governing the federal drug court, which is known as the Sobriety Treatment and Education Program (STEP). As always, there will be pizza and diet coke.

2009 06 09 admin
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