by Richard Resch

In a unanimous decision, the Supreme Court of the United States held that § 924(c)(1)(D)(ii)’s prohibition on concurrent sentences does not extend to sentences imposed under a different subsection of the statute, viz., § 924(j), and thus, when multiple convictions – including a § 924(j) conviction – are involved, sentencing courts are free to run the sentences concurrently or consecutively.

In 2002, a group engaged in drug-dealing murdered a rival dealer. Efrain Lora was accused of serving as a lookout during the shooting. He was convicted of aiding and abetting in violation of 18 U.S.C. § 924(j)(1), which criminalizes the actions of a “person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm,” where the death is the result of murder. Lora was also convicted of conspiracy to distribute drugs in violation of 21 U.S.C. §§ 841 and 846.

During sentencing, Lora argued that the U.S. District Court for the Southern District of New York had discretion to run his § 924(j) concurrently with his conspiracy sentence, but the District Court ruled that it did not have the discretion to run the sentences concurrently. ...

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit held that a postconviction relief (“PCR”) application in Arizona is “pending as long as a state avenue of relief remains open, whether or not a petitioner takes advantage of it” and thus tolls the Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA”) one-year statute of limitations period – 28 U.S.C. § 2244(d)(1) – for filing a federal habeas petition under 28 U.S.C. § 2254.

In 2013, Paul Melville was convicted of two counts of armed robbery and four counts of aggravated assault. He was sentenced to an 18-year prison term. His convictions were affirmed on direct review by the Arizona Court of Appeals on July 29, 2014. The Court summarized the key dates as follows:

July 29, 2014 - Conviction affirmed by Arizona Court of Appeals on direct appeal

September 26, 2014 - PCR petition signed by Melville and delivered to prison officials for mailing to Maricopa County Superior Court

September 29, 2014 - Expiration of extension of time to petition the Arizona Supreme Court for review of affirmance by Arizona Court of Appeals on direct review of conviction (no such petition was filed)

October 1, 2014 ...

by Richard Resch

The U.S. Court of Appeals for the Seventh Circuit held that because petitioner’s Illinois postconviction relief petition had been pending in state court for over 20 years, state postconviction remedies proved “ineffective,” entitling him to seek federal habeas relief under the terms of 28 U.S.C. § 2254(b)(1) without first waiting for further relief in Illinois courts.

In 1999, two separate juries convicted James Evans of murder and soliciting murder. He received sentences of 60 years for the former and 47 years for the latter to run consecutively. The convictions were both affirmed on direct appeal. In 2003, Evans filed a petition for postconviction relief in state court, claiming that he was innocent and that the prosecution engaged in serious misconduct during both prosecutions.

After nearly 20 years, the state courts still have not resolved Evans’ petition for postconviction relief due, in large part, to the conduct of the State. For example, in December 2008, Evans requested copies of audio recordings that he claims were manipulated by the prosecution; the court ordered the State to “provide all copies” of the recordings to Evan. But it failed to comply and would continue to do so for the next two-and-a-half ...

by Richard Resch

The Supreme Court of the United States held that criminal liability for true threats, which are not protected by the First Amendment, requires proof that the defendant had a subjective understanding of the threatening nature of the statements and further held that a mental state of recklessness is sufficient because it provides enough breathing space for protected speech without sacrificing too many of the benefits of enforcing laws prohibiting true threats.

Billy Counterman sent hundreds of Facebook messages to a local singer and musician, C.W., over a two-year period despite the fact they had never met. C.W. did not respond to any of Counterman’s messages and blocked him numerous times, but he created new Facebook accounts and resumed sending her unwanted messages. The messages ranged from the mundane – “I am going to the store would you like anything?” – to the unsettling – “Fuck off permanently” and “Staying in cyber life is going to kill you.”

The barrage of messages affected C.W.’s daily existence. Believing that Counterman was threatening her life, she had “a lot of trouble sleeping” and suffered from severe anxiety. Consequently, she no longer walked alone, reduced her social activity, and canceled some ...

by Richard Resch

The Supreme Court of the United States (“SCOTUS”) held that the “right-to-control” theory of liability, which imposes liability for depriving the victim of “potentially valuable economic information … necessary to make discretionary economic decisions,” is not a valid basis for liability under the federal wire fraud statutes because SCOTUS has previously held that the wire fraud statutes criminalize only schemes to deprive victims of “traditional property interests.”
Cleveland v. United States, 531 U.S. 12 (2000).

This case stems from former New York Governor Andrew Cuomo’s “Buffalo Billion” initiative, which sought to invest $1 billion in development projects in upstate New York. It was administered by a nonprofit called Fort Schuyler Management Corporation (“Fort Schuyler”). Investigations into the project uncovered a scheme in which Louis Ciminelli’s construction company LPCiminelli was virtually guaranteed to be awarded lucrative development projects, including the $750 million Riverbend project in Buffalo. The scheme included the drafting of request for proposals in a manner that designated certain unique aspects of LPCiminelli as qualifications for “preferred-developer status.” 

Upon discovery of the scheme, Ciminelli and several others were indicted by a federal grand jury on numerous counts, including wire fraud in violation of 18 U.S.C. ...

by Richard Resch

The Supreme Court of the United States held that a trial court’s jury instructions on the standard as to whether a private citizen owes a fiduciary duty to the public and a breach thereof may serve as the basis for a conviction for honest-services fraud were too vague.

From 2011 to 2016, Joseph Percoco served as the Executive Deputy Secretary to former New York Governor Andrew Cuomo. His position afforded him a great deal of influence over official government decision-making. For an eight-month period in 2014, he resigned his government position to manage Cuomo’s reelection campaign.

During his break from government service, he accepted payments totaling $35,000 from a real-estate development company to persuade Empire State Development, a state agency, to drop the requirement for a costly “Labor Peace Agreement” with local unions as a precondition for being awarded a lucrative state project. After Percoco urged a senior official with the agency to drop the requirement, it did so and advised the real-estate company of its decision the next day.

The U.S. Justice Department discovered the arrangement and indicted Percoco and others in connection with several allegedly illegal schemes. He was charged with several crimes, including conspiracy ...

by Richard Resch

The U.S. Court of Appeals for the Fifth Circuit held that police violated a defendant’s Fourth Amendment rights by conducting a warrantless search of his jacket that he tossed over the fence at his mother’s home as police were initiating contact because he did not “abandon” his jacket under either Katz’s expectation of privacy test or Jones’ trespassory test.

San Antonio Police Department Officer Christopher Copeland was on the lookout for a truck registered to the mother of Albert Ramos Ramirez, Jr. He observed Ramirez driving the truck, rolling through a stop sign and pulling into his mother’s driveway. Copeland attempted to initiate a traffic stop, but Ramirez had already exited the truck and tossed his jacket over the fence around his mother’s home, landing on top of a closed trash bin.

Copeland pat-frisked him, placed him in handcuffs, and detained him in the backseat of his patrol vehicle. While patting him down, Copeland asked if he had any weapons. Ramirez stated that he did not and gave his consent to search the truck. No contraband was found in it.

Without asking for consent to enter the property or search the jacket, Officer Craig Pair ...

by Richard Resch

The Supreme Court of the United States held that when a prisoner’s request for postconviction DNA testing of evidence in accordance with the process established by the state is denied and the prisoner files a 42 U.S.C. § 1983 procedural due process claim challenging the constitutionality of the state process, the statute of limitations (“SOL”) for the § 1983 claim begins to run at the completion of the state-court litigation – including state-court appeals – not when the state trial court denies the request for DNA testing.

In 1996, Stacey Stites was strangled to death; Rodney Reed was charged with her murder. At trial, Reed argued that her fiancé or another acquaintance murdered her. The jury rejected his defense and convicted him. He was sentenced to death. His conviction and sentence were affirmed on appeal, and his state and federal habeas petitions were unsuccessful.

In 2014, Reed filed a motion requesting DNA testing on more than 40 items of evidence pursuant to Texas’ postconviction DNA testing law. See Tex. Code Crim. Proc. Ann., Arts. 64.01-64.05 (Vernon 2018). The state prosecutor, Bryan Goertz, opposed the motion, and the state trial court subsequently denied it. The court reasoned that ...

by Richard Resch

The U.S. Court of Appeals for the Seventh Circuit ruled that a suspect in a federal drug investigation who leased a condominium using a false name retained a subjective expectation of privacy in the premises that society recognizes as reasonable, and thus, the landlord could not give valid consent to the police to conduct a warrantless search of the premises.

During the course of a federal drug investigation in Indiana targeting Michael Thomas, he obtained multiple fake identification documents, including one under the name “Frieson Dewayne Alredius.” Using this identity, he leased a condominium in Atlanta, Georgia; nevertheless, federal investigators tracked him to the area and arrested him outside the building.

The landlord of the unit told investigators that she had leased it to an individual going by the name of “Alredius Frieson.” With her consent, investigators searched the unit and found drugs, drug paraphernalia, and six cellphones. Investigators obtained warrants to search the phones; they discovered evidence on them that Thomas was trafficking methamphetamine.

Thomas was indicted for conspiracy to distribute methamphetamine. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. He filed a motion to suppress evidence recovered from the leased condo unit, arguing that the landlord could ...

by Richard Resch

The Court of Appeal of California, Second Appellate District, held that a geofence warrant used to gather evidence in a homicide investigation that resulted in two murder convictions lacked the requisite particularity and was overbroad in violation of the Fourth Amendment. Nevertheless, the Court affirmed the convictions based on the good faith exception to the exclusionary rule due to the newness of geofence warrants as an investigative tool at the time the warrant was sought and executed.

Facts of the Case

On the morning of March 1, 2019, Adbadalla Thabet was shot and killed as he exited his car at a bank in Paramount, California. Surveillance video showed a gray sedan and red sedan following him. The driver of the gray car pulled slowly up to Thabet, fatally shot him, and sped away. The driver of the red car retrieved Thabet’s backpack and fled the scene.

Investigators learned that Thabet managed several local gas stations and had just picked up cash receipts from multiple locations prior to arriving at the bank. Upon reviewing surveillance video from those locations, the red and gray cars are seen tailing Thabet at two pick-up locations, but their license plate numbers are ...