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Prisoner Education Guide

Articles by Richard Resch

Idaho Supreme Court Rules Dead-Body Reporting Statute Unconstitutional As Applied to Defendant

by Richard Resch

The Supreme Court of Idaho held that prosecution of the defendant under a state statute that imposes a duty on anyone who discovers or has custody of a body to promptly notify authorities, based on the facts of this case, would violate the defendant’s Fifth Amendment privilege against self-incrimination. As such, the Court affirmed the district court’s decision to dismiss the charge.

In late 2015, Kimberly Vezina died of an overdose at a residence well known for drug activity. Laura Akins and another person were ordered to dispose of the body at a lake house owned by Akins’ relative. Akins eventually dumped the body in the water, but it was discovered by fishermen about three weeks later. Investigators determined that Akins was involved with dumping the body and placed her under arrest.

Akins was charged under I.C. § 19-4301A(3), failure to notify of a death. She moved for dismissal, arguing that her prosecution under the statute violated her Fifth Amendment privilege against self-incrimination. Following a hearing, the district court agreed with her, reasoning that compliance with the statute under these facts would effectively punish her for failing to incriminate herself. The court entered an order ...

Iowa Supreme Court Announces Greater Privacy Protections Under State Constitution for Impounded Vehicles Than Provided by Fourth Amendment

by Richard Resch

The Supreme Court of Iowa announced a stricter legal framework for warrantless inventory searches and seizures of vehicles being impounded under the Iowa Constitution than required by the U.S. Supreme Court under its recent case law interpreting the Fourth Amendment.

On October 30, 2015, police pulled Bion Ingram over because his vehicle’s license plate was not illuminated as required by law. During the traffic stop, the officer discovered that the vehicle’s registration had expired. The officer decided to impound the vehicle, but he did not arrest Ingram.

The vehicle was going to be towed. Another officer arrived and inventoried the contents of the vehicle without a warrant. During the inventory, the officer discovered a cloth bag on the floor and opened it. A glass pipe containing a gram of meth was inside. Ingram was arrested and charged with possession of meth and drug paraphernalia.

Ingram filed a motion to suppress based on the Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Iowa Constitution. He argued that the inventory was merely a pretext to search his vehicle without a warrant. The district court denied the motion, ruling that inventory searches are ...

Pennsylvania Supreme Court Announces Search Warrant Required for Nonconsensual Entry into Any Residence to Carry Out Arrest Warrant

by Richard Resch

The Supreme Court of Pennsylvania adopted a new rule governing nonconsensual entry into a residence to effectuate an arrest warrant. The Court rejected the constitutional framework utilized by lower state courts that differentiated between a third-party’s residence and that of the subject of an arrest warrant, which mandated a search warrant for nonconsensual entry into the former but not the latter. The Court announced that a search warrant is now required to enter any residence to carry out a search and arrest.  

A parolee named Earnest Moreno absconded from a halfway house in Philadelphia. An arrest warrant was issued for him. Authorities believed 4745 North 2nd Avenue was his residence and attempted to execute the arrest warrant at that location. In fact, it was the residence of his half-brother, Angel Romero, and his wife, Wendy Castro. While searching the residence for Moreno, investigators noticed a large number of marijuana plants in the basement. They subsequently obtained a search warrant for the premises and recovered evidence of a large-scale marijuana-growing operation.

Romero and Castro were charged with several drug offenses. They both filed motions to suppress the evidence. At the suppression hearing, the lead agent testified that ...

SCOTUS: Warrantless Invasion of Curtilage to Conduct Search Unconstitutional

by Richard Resch

In a May 29, 2018 opinion, the Supreme Court of the United States (“SCOTUS”) held that the automobile exception to the Fourth Amendment does not permit law enforcement to enter the curtilage of a home, without a warrant or consent, in order to search a vehicle located therein.

On two occasions, a person riding an orange and black motorcycle with an extended frame eluded police officers who attempted to conduct a traffic stop. Investigators observed a motorcycle matching that description on the Facebook page of Ryan Collins. Officer David Rhodes believed that the motorcycle was stolen and located at the top of the driveway of his girlfriend’s house.

Rhodes drove to the house, parked on the street, and observed what appeared to be the motorcycle in question covered with a white tarp. Without a search warrant, Rhodes walked onto the property and removed the tarp. He then performed a search of the license plate and VIN numbers, which confirmed that the motorcycle was stolen. He then got back into his patrol vehicle and waited for Collins to return.

Upon his return, Collins admitted the motorcycle was his and that he purchased it without title. Rhodes then placed ...

Ninth Circuit: Violations Alleged After Expiration of Supervised Release Term Must be Factually Related to Pre-Expiration Allegation

by Richard Resch

In a February 28, 2018, opinion, the U.S. Court of Appeals for the Ninth Circuit ruled that U.S. District Courts may not base a revocation of supervised release upon violations that (1) were not alleged prior to the expiration of the supervisory period and (2) are not factually related to any matter raised before the court during the supervision period.

Theresa Helena Campbell pleaded guilty to mail fraud and was sentenced by the U.S. District Court in the Eastern District of California to 18 months imprisonment and 36 months of supervised release.

On February 7, 2017—seven days prior to the originally scheduled expiration date of her supervised release—U.S. Probation Officer Eric Siles filed a report with the U.S. District Court in the Central District of California charging Campbell with three violations of conditions of her supervision (“Violation Report”).

Siles claimed Campbell had failed to disclose her ownership of a Chevrolet Camaro and loan she helped secure in order for a friend to purchase a BMW.

According to Siles, both activities constituted clear violations of her conditions of release. The court clerk issued a summons for Campbell to appear before the court on ...

SCOTUS: Sixth Amendment Right to Autonomy — Attorney Cannot Overrule Client’s Decision to Assert Innocence at Trial

by Richard Resch

On May 14, 2018, the Supreme Court of the United States (“SCOTUS”) issued a major decision affirming criminal defendants’ Sixth Amendment right to assert their innocence at trial. The Court determined that Robert McCoy’s “right to autonomy” had been violated when his attorney conceded his guilt at trial despite McCoy’s affirmative instructions to his attorney not to do so. The Court granted McCoy a new trial. Notably, the Court explained that when a defendant’s constitutional right to autonomy has been violated by defense counsel despite defendant’s affirmative instructions to the contrary the result is an automatic reversal of the conviction, i.e., a showing of prejudice not required.  

McCoy was charged with three counts of murder. He consistently and vociferously maintained his innocence. Nevertheless, the trial court permitted his attorney to concede his guilt to the jury. The attorney did so in an attempt to avoid the death penalty, arguing that McCoy’s mental state prevented him from forming the specific intent necessary for the imposition of the death penalty.

In a bizarre spectacle, despite his attorney telling the jury that McCoy committed the murders, McCoy took the stand in his own defense, maintaining he did not ...

Florida Supreme Court Announces SOL Defense Must be Raised at Trial to Preserve Issue for Direct Appeal

by Richard Resch

In an April 12, 2018 opinion, the Supreme Court of Florida announced that a statute of limitations (“SOL”) defense must be raised in the trial court in order to preserve the issue for direct appeal.

In 2011, DNA evidence linked Earvin Smith to a home invasion and sexual battery that took place over 20 years ago. A jury convicted him of multiple offenses, including armed burglary, which is a felony punishable by up to life in prison. The offense is subject to a four-year SOL. However, Smith never raised the SOL defense at trial.

On appeal to the Third District, he raised the SOL issue for the first time, arguing that the four-year SOL meant that the State was time-barred from prosecuting him for this offense. As a result, he claimed that his conviction and sentence must be reversed as a matter of fundamental error. The Third District agreed with him, but certified the question as a matter of great public importance to the Florida Supreme Court. Thus, the question before the Supreme Court was “whether a claim that a conviction for a charged offense is barred by the statute of limitations must be raised in the ...

Sixth Circuit Suppresses Evidence Where Triggering Event Specified in Anticipatory Search Warrant Never Occurred

by Richard Resch

In an opinion issued on April 4, 2018, the U.S. Court of Appeals for the Sixth Circuit affirmed the suppression of evidence ostensibly obtained pursuant to an anticipatory search warrant where the triggering event never occurred.

This case was set in motion when a police dog alerted law enforcement officers to a suspicious-smelling package. An examination of the package revealed that it contained methamphetamine. It was addressed to “B. PERKINS” at “5831 Rowe Gap RD Belvidere, TN 37306.”

Investigators determined that the defendant, William Perkins (aka Billy), resided at that address. A trusted confidential informant advised police that he had known Perkins for 20 years, Perkins was a meth dealer, and he had bought meth from Perkins within the past six months. Additionally, local law enforcement knew that Perkins was a meth dealer.

Based on the foregoing information, DEA officer Daniel Warren sought an anticipatory search warrant for Perkin’s residence. Unlike a traditional warrant, an anticipatory warrant becomes effective only upon the occurrence of a specified future event—the “triggering event”—that establishes probable cause for the search. United States v. Grubbs, 547 U.S. 90 (2006).

Warren proposed that fellow DEA officer Kyle Brewer pose as ...

SCOTUS Adopts ‘Look Through’ Methodology for Federal Courts in Determining State Court’s Rationale for Unexplained Habeas Decision

by Richard Resch

On April 17, 2018, the Supreme Court of the United States (“SCOTUS”) issued an opinion in which it instructed that federal courts are required to “look through” an unexplained decision of the last state court to rule on the merits of a state habeas petition to the last state-court decision that provides a relevant rationale.

Marion Wilson was convicted of murder and sentenced to death. He subsequently sought habeas relief in Georgia Superior Court, arguing ineffective assistance of counsel (“IAC”) during sentencing. He argued that counsel failed to provide new testimonial evidence regarding his childhood and the impairment of the frontal lobe of his brain. The court denied his petition, in part, because it determined that his lawyer’s performance was not deficient and had not prejudiced Wilson. The Georgia Supreme Court summarily denied his application to appeal without providing an explanatory opinion.

Wilson then filed a federal habeas petition based upon the same IAC argument raised in state court. The district court assumed that his counsel had been “deficient” in failing to investigate his childhood and brain condition. But the court deferred to the state habeas court’s determination that the deficiencies did not “prejudice” him.

Wilson appealed ...

U.S. Supreme Court Resolves Split Among Circuit Courts of Appeals on Tax Code § 7212(a)

by Richard Resch

The Supreme Court of the United States reversed a defendant’s conviction for violating the second clause of 26 U.S.C.S. § 7212(a) (“Omnibus Clause”). In doing so, the Court announced the requirements for a conviction under the criminal tax statute, resolving a split among the United States Courts of Appeals.  

Between 2004 and 2009, the IRS opened and closed multiple investigations into the tax activities of Carlo Marinello. In 2012, the Government indicted him for several violations of various criminal tax statutes, including the Omnibus Clause. It forbids “corruptly or by force or threats of force (including any threatening letter or communication) obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration” of the Internal Revenue Code.

To be convicted of violating the Omnibus Clause, the defendant must have engaged in at least one of eight enumerated activities. The Government accused Marinello of engaging in five of the eight activities: (1) failing to maintain corporate books and records, (2) failing to provide complete and accurate tax information to tax accountant, (3) destroying business records, (4) hiding income, and (5) paying employees with cash.

At trial, the judge instructed ...


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