by Dale Chappell
The government’s use of incriminating statements made by a defendant at a confidential debriefing breached the plea agreement and constituted “plain error” when the government disclosed that information to the sentencing court to push for a longer sentence, the U.S. Court of Appeals for the D.C. Circuit held.
Kamal King-Gore was arrested on June 10, 2010, for selling 60.6 grams of cocaine base to a confidential informant. After being indicted, he met with prosecutors in a voluntary, off-the-record debriefing. In a written agreement, prosecutors promised that “no statements made by or other information provided by” him would “be used directly against [him] in any criminal proceeding.”
He subsequently pleaded guilty. At sentencing, despite its promise not use any statements or information obtained during the debriefing, the government told the sentencing court that King-Gore was a major drug “wholesaler” responsible for more drugs than the court knew. The term “wholesaler” was used by King-Gore during the debriefing to describe himself. The court sentenced King-Gore to well above the mandatory minimum sentence.
He appealed the government’s breach of the agreement. On appeal, the government admitted it breached the agreement, but argued that it did not ...
by Dale Chappell
Lawmakers and prosecutors just don’t get it. Instead of treatment and prevention of opioid overdoses, lawmakers and prosecutors are pushing for more convictions under draconian drug-induced homicide laws in response to America’s deadly crisis. They claim it is to “send a strong message” to drug dealers.
In reality, the only “message” being heard, however, is not to call 911, lest you get charged in the death under the drug-induced homicide laws. Rather than targeting the major drug distributors as the laws were intended, prosecutors often charge friends and lovers of the victim, according to Health in Justice, an organization that opposes “criminalization of health and social problems” and tracks punitive drug policies. “Fewer than half of the cases we analyzed involved a traditional buyer/seller relationship,” noted Leo Beletsky, lead investigator at Health in Justice and associate professor of law and health sciences at Northeastern University.
“Drug-induced homicide is couched as a way to respond to the overdose crisis, but prosecutors are not held accountable for proving whether these laws are effective,” said Lindsay LaSalle, senior staff attorney at the Drug Policy Alliance, a New York-based nonprofit. “There is not a shred of evidence that ...
by Dale Chappell
The U.S. Supreme Court struck yet another residual clause definition of “crime of violence” as unconstitutionally vague in a major decision that could potentially affect thousands of prisoners serving longer prison sentences for a conviction falling under this type of clause.
When the Government sought to deport James Dimaya after his second California burglary conviction, the Board of Immigration Appeals (“BIA”) determined that his first-degree burglary conviction was a “crime of violence” under the “substantial risk of the use of force” clause and therefore an “aggravated felony,” requiring his deportation pursuant to the Immigration and Nationality Act (“INA”).
The INA requires that any alien convicted of an “aggravated felony” must be deported. This includes a conviction for a “crime of violence,” as defined in 18 U.S.C. § 16. The statute’s definition of “crime of violence” is divided into two parts that are commonly known as the elements clause in § 16(a) and the residual clause in § 16(b), which was at issue in the present case.
The statute’s two parts cover: (a) an offense that has an element the use, attempted use, or threatened use of physical force against the ...
by Dale Chappell
Interpreting the word ‘exposes’ in Iowa’s indecent exposure statute, the Supreme Court of Iowa held on February 2, 2018 that texting an image of one’s genitals to another does not constitute “indecent exposure” and that counsel was ineffective for failing to challenge the sufficiency of the evidence ...
by Dale Chappell
The State failed to prove that packages of marijuana hidden in a car truck were in the “constructive possession” of a passenger, who was unaware they were there especially when the driver claimed ownership, the Supreme Court of Mississippi held October 12, 2017.
Marvin Carver and his ...
by Dale Chappell
The government’s “eleventh hour” motion to “correct” a sentence to remove credit for time served in a related case before federal sentencing was improperly granted by the district court, the U.S. Court of Appeals for the Fifth Circuit held November 16, 2017.
When Derrick Smothers, Terrell ...
by Dale Chappell
A U.S. district court cannot, “of its own volition,” invoke a collateral attack waiver in a plea agreement to dismiss a § 2255 motion, the U.S. Court of Appeals for the Eleventh Circuit held on November 6, 2017.
“Efficiency can be a virtue, particularly ...
by Dale Chappell
The Court of Criminal Appeals of Texas (“CCA”) held that “furtive gestures” alone did not give police probable cause to search a vehicle under the automobile exception to the Fourth Amendment’s warrant requirement.
When a marked police car pulled behind Andreas Marcopoulos’ truck, police said he made ...
by Dale Chappell
Deviations from statutory requirements are not jurisdictional and must be “properly preserved” for appellate review and not raised for the first time on appeal, the North Carolina Supreme Court held on November 3, 2017.
After Sandra Brice was found guilty by a jury in 2015 of habitual ...
by Dale Chappell
The Supreme Court of Appeals of West Virginia held that a life sentence based on two prior driving on a revoked license felonies violated the West Virginia Constitution’s provision that “[p]enalties shall be proportioned to the character and degree of the offence.”
After ...
