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Criminal Legal News: July, 2023

Issue PDF
Volume 6, Number 7

In this issue:

  1. The Inevitability of Central Bank Digital Currencies and Their Threat to Human Rights (p 1)
  2. SCOTUS Announces ‘Right-to-Control’ Theory Not Valid Basis for Liability Under Federal Wire Fraud Statutes (p 14)
  3. Texas Court of Criminal Appeals: Trial Court Deprived Defendant of Opportunity to Present Complete Defense (p 16)
  4. SCOTUS: Honest-Services Fraud Jury Instructions Regarding Private Citizen Too Vague (p 18)
  5. New Commission in Georgia Will Discipline and Remove Prosecutors Who Are Seen as Not Tough Enough on Crime (p 19)
  6. Fifth Circuit: Placing Jacket Within Fenced-In Area of Home in Presence of Police Evidences Clear Intent Not to Abandon It, Warrantless Search Violates Fourth Amendment Rights (p 20)
  7. California Court of Appeal Reiterates ‘Three Strikes’ Law Does Not Limit ‘Presentence’ Custody Credits, Defendant Entitled to Credits Calculated Under Penal Code § 4019 (p 21)
  8. Ninth Circuit: Government’s Inflammatory Arguments in Sentencing Memorandum and at Sentencing Hearing Implicitly Breached Plea Agreement Promise Not to Recommend Sentence in Excess of Low-End Guidelines Range (p 22)
  9. Georgia Supreme Court Announces Overruling Longstanding Rule That Anything Filed by Defendant While Represented by Counsel Is Always a ‘Legal Nullity’ (p 24)
  10. Fourth Circuit: Denial of Motion for Compassionate Release Abuse of Discretion Where District Court Failed to Properly Address Numerous Health Issues, Advanced Age, and Relevant § 3553(a) Factors (p 26)
  11. Fourth Circuit Declines to Enforce Appeal Waiver and Procedural Default Excused by ‘Cause and Actual Prejudice,’ Reverses Denial of § 2255 Motion to Vacate § 924(c) Conviction Based on Hobbs Act Conspiracy (p 27)
  12. Saul Kassin Probes Dangerous Practices in ‘Duped: Why Innocent People Confess-and Why We Believe Their Confessions’ (p 30)
  13. Fourth Circuit: Counsel Ineffective for Failing to Raise Change in Sentencing Precedent Following Remand (p 33)
  14. Fourth Circuit Holds Ineligibility for First Step Act Safety Valve Relief Requires Proof of All Three Listed Criminal History Characteristics Satisfied, Widening Circuit Split (p 34)
  15. First Circuit: Plain Error Where District Court Based Upward Variant From Sentencing Guidelines Range on New Information Not Already in the Record at the Time of Sentencing (p 35)
  16. Indiana Supreme Court: Petitioner Entitled to File Belated Appeal More Than 21 Years After Conviction, Holding He Acted ‘Promptly’ (p 36)
  17. Fourth Circuit Announces Rehaif Applies to All § 922(g) Firearms-Possession Offenses and Applies Retroactively to Initial § 2255 Motions (p 37)
  18. Arkansas Supreme Court Reverses 11 Counts of Possession of Child Pornography Because CGI Images Do Not Depict Image of a Child (p 38)
  19. Specialized Police Units Hunt People for ICE (p 39)
  20. Banishment: Using an Ancient Solution to Address a Modern Problem (p 40)
  21. Police Can Get More From Your Phone Than You May Believe (p 41)
  22. Civilian Police With Military Equipment (p 42)
  23. Cops Aren’t Just Murdering People With Impunity – They Also Conduct Bogus Traffic Stops (p 42)
  24. Inspector General Report: FBI Routinely Abused Access to Private Communications (p 44)
  25. New Orleans Authorizes Facial Recognition to Identity Suspects (p 44)
  26. Financial Pressure Finally Brings Police Reform (p 45)
  27. The ACLU Calls for a Moratorium on Blanket Recording of ALPR Footage (p 46)
  28. Police Sketch Bot Arrives (p 47)
  29. Police Study Shows That Reform and Effectiveness Are Not Mutually Exclusive (p 47)
  30. ‘Contagion Effect’ Spreads Brutality Among Police Officers (p 48)
  31. Memphis Police Beat Man to Death (p 49)
  32. America’s Latest “War on” … Protestors (p 49)
  33. Minnesota Abolishes Life Without Parole for Juveniles (p 50)
  34. Louisiana Jury Selection Illegal According to Recently Passed Bill (p 50)
  35. News in Brief (p 51)

The Inevitability of Central Bank Digital Currencies and Their Threat to Human Rights

by Anthony Accurso

Bitcoin is rapidly changing the way we function as individuals in a global and interconnected economy. Even though any individual person may not own or use it directly, it is reshaping economics across the planet. It is, in many ways, the best solution to a unique problem ...

SCOTUS Announces ‘Right-to-Control’ Theory Not Valid Basis for Liability Under Federal Wire Fraud Statutes

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 ...

Texas Court of Criminal Appeals: Trial Court Deprived Defendant of Opportunity to Present Complete Defense

by Douglas Ankney 

The Court of Criminal Appeals of Texas held that the trial court erred when it prohibited William Rogers from presenting evidence to support his claim of self-defense and also when it refused to instruct the jury on self-defense.

Rogers was tried by jury on charges of Burglary ...

SCOTUS: Honest-Services Fraud Jury Instructions Regarding Private Citizen Too Vague

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 ...

New Commission in Georgia Will Discipline and Remove Prosecutors Who Are Seen as Not Tough Enough on Crime

by Jo Ellen Nott

Republican Governor Brian Kemp of Georgia signed into law Senate Bill 92 (“SB 92”) on May 5, 2023, creating the Prosecuting Attorneys Qualifications Commission (“PAQC”). The new oversight group is tasked with discipling and removing “far-left prosecutors” who make Georgia communities “less safe,” according to the ...

Fifth Circuit: Placing Jacket Within Fenced-In Area of Home in Presence of Police Evidences Clear Intent Not to Abandon It, Warrantless Search Violates Fourth Amendment Rights

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 ...

California Court of Appeal Reiterates ‘Three Strikes’ Law Does Not Limit ‘Presentence’ Custody Credits, Defendant Entitled to Credits Calculated Under Penal Code § 4019

by Douglas Ankney

The Court of Appeal of California, Second Appellate District, ruled that assault with a firearm is not a violent felony for purposes of the state’s Three Strikes Law (Penal Code § 667); consequently, Rasheed Malcolm Jones was entitled to the amount of custody credits calculated under the ...

Ninth Circuit: Government’s Inflammatory Arguments in Sentencing Memorandum and at Sentencing Hearing Implicitly Breached Plea Agreement Promise Not to Recommend Sentence in Excess of Low-End Guidelines Range

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit ruled that the Government’s inflammatory arguments in its sentencing memorandum and at the sentencing hearing implicitly breached the plea agreement because the sole effect of the arguments was to increase the defendant’s sentence beyond the low-end of the ...

Georgia Supreme Court Announces Overruling Longstanding Rule That Anything Filed by Defendant While Represented by Counsel Is Always a ‘Legal Nullity’

by Douglas Ankney

The Supreme Court of Georgia unanimously held that courts maintain discretion to consider “hybrid motions,” i.e., motions filed pro se by defendants who are also represented by counsel, expressly overruling precedents that held to the contrary.

Garry Deyon Johnson was convicted of malice murder and robbery and ...

Fourth Circuit: Denial of Motion for Compassionate Release Abuse of Discretion Where District Court Failed to Properly Address Numerous Health Issues, Advanced Age, and Relevant § 3553(a) Factors

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that a District Court’s denial of a motion for compassionate release was an abuse of discretion where the District Court concluded that Lonnie Edward Malone’s numerous health conditions did not provide extraordinary and compelling reasons for release ...

Fourth Circuit Declines to Enforce Appeal Waiver and Procedural Default Excused by ‘Cause and Actual Prejudice,’ Reverses Denial of § 2255 Motion to Vacate § 924(c) Conviction Based on Hobbs Act Conspiracy

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit declined to enforce an appeal waiver where the defendant stood convicted and imprisoned for conduct that, due to developments in the law after he pleaded guilty, did not violate 18 U.S.C. § 924(c) and was not criminal, and ...

Saul Kassin Probes Dangerous Practices in ‘Duped: Why Innocent People Confess-and Why We Believe Their Confessions’

By James M. Doyle

Do innocent people really confess to horrific crimes they did not commit?

Yes, they do. A masterful recent book from John Jay College of Criminal Justice Professor Saul Kassin, “Duped: Why Innocent People Confess—and Why We Believe Their Confessions,” proves it beyond any doubt.  

And Dr. ...

Fourth Circuit: Counsel Ineffective for Failing to Raise Change in Sentencing Precedent Following Remand

by David M. Reutter

The U.S. Court of Appeals for the Fourth Circuit held a federal defendant was denied the effective assistance of counsel by failing to object to his designation as a career offender on the ground the conspiracy under 21 U.S.C. § 846 is broader than generic conspiracy ...

Fourth Circuit Holds Ineligibility for First Step Act Safety Valve Relief Requires Proof of All Three Listed Criminal History Characteristics Satisfied, Widening Circuit Split

by David M. Reutter

The U.S. Court of Appeals for the Fourth Circuit held that the plain text of 18 U.S.C. § 3553(f)(1) “requires a sentencing court to find that a defendant has all three of the listed criminal history characteristics before excluding a defendant from a safety valve eligibility” ...

First Circuit: Plain Error Where District Court Based Upward Variant From Sentencing Guidelines Range on New Information Not Already in the Record at the Time of Sentencing

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit found plain error where the U.S. District Court for the District of Puerto Rico based an upward variance from the Guidelines range on new information not already in the record at the time of sentencing.

In 2011, Angel ...

Indiana Supreme Court: Petitioner Entitled to File Belated Appeal More Than 21 Years After Conviction, Holding He Acted ‘Promptly’

by Douglas Ankney

The Supreme Court of Indiana held that Charlie D. Leshore, Jr., was entitled to file a belated appeal more than 21 years after his conviction because the trial court and Leshore’s attorneys failed to advise him of his right to appeal his sentence and because he promptly ...

Fourth Circuit Announces Rehaif Applies to All § 922(g) Firearms-Possession Offenses and Applies Retroactively to Initial § 2255 Motions

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that the holding of Rehaif v. United States, 139 S. Ct. 2191 (2019), applies retroactively to cases on collateral review and applies to convictions for being a felon in possession of a firearm in violation of ...

Arkansas Supreme Court Reverses 11 Counts of Possession of Child Pornography Because CGI Images Do Not Depict Image of a Child

by Douglas Ankney

The Supreme Court of Arkansas reversed the convictions against Jeremey Lewis on 11 counts of “distributing, possessing or viewing matter depicting sexually explicit conduct involving a child” because the images were computer-generated imagery (“CGI”) and did not depict or incorporate the image of a child.

Lewis was ...

Specialized Police Units Hunt People for ICE

by Keith Sanders

On February 22, 2023, a Teller County District Judge in Colorado ruled that the county Sheriff’s Office legally entered into an agreement with U.S. Immigration and Customs Enforcement (“ICE”) that gives the Sheriff’s Office the authority to detain prisoners after they post bond on behalf of ICE. ...

Banishment: Using an Ancient Solution to Address a Modern Problem

by Benjamin Tschirhart

The old has become new again in the city of Saint Louis. For several years now, police have been issuing “neighborhood orders of protection,” which forbid a cited person from entering a specific municipal area for a certain amount of time. Those found in violation of the ...

Police Can Get More From Your Phone Than You May Believe

by Michael Dean Thompson

Few of us would not feel violated to learn that our spouse or partner has been digging through our phone. Imagine if they were to use that data to analyze where we’ve been and who we’ve been near, and then, they were to gain access to ...

Civilian Police With Military Equipment

by Ed Lyon

During late May through the first of June 1989, citizens peacefully demonstrated for freedom in China’s Tiananmen Square. On June 4, the government’s response was to authorize a bloody rout of these peaceful protesters using soldiers, tanks, and other military resources resulting in thousands of dead citizens. ...

Cops Aren’t Just Murdering People With Impunity – They Also Conduct Bogus Traffic Stops

by Anthony W. Accurso

Police are tasked with upholding the law, but current case law has created a system where officers are actually incentivized to break the law by making bogus traffic stops.

The Fourth Amendment to the U.S. Constitution provides that citizens will be free from unreasonable searches and ...

Inspector General Report: FBI Routinely Abused Access to Private Communications

by Eike Blohm, MD

A recent Department of Justice (“DOJ”) Inspector General report found that the Federal Bureau of Investigation (“FBI”) routinely sidesteps regulations of electronic surveillance and essentially deliberately misinterprets DOJ guidelines.

Edgar Hoover was the first director of the FBI and was notorious for amassing personal and private ...

New Orleans Authorizes Facial Recognition to Identity Suspects

by Michael Dean Thompson

The use of facial recognition systems was banned by the New Orleans City Council in 2020, only to be overturned in July of 2022 in response to fears of rising crime despite concerns within the affected communities about civil rights, privacy, and accuracy.

Facial recognition systems ...

Financial Pressure Finally Brings Police Reform

by Jayson Hawkins

Their names became litanies on streets across America: Trayvon Martin, Freddie Gray, Breonna Taylor, George Floyd. Yet protests, relentless media coverage, and the promises of politicians failed to move the needle on police violence or impunity. At last, as protests has faded from the headlines, a player ...

The ACLU Calls for a Moratorium on Blanket Recording of ALPR Footage

by Kevin W. Bliss

The American Civil Liberties Union (“ACLU”) has published an appeal to the general public asking for organized opposition to the encroaching blanket surveillance company, Flock Safety. Concerns continue to be expressed regarding the company’s desire to catalog the movement of every citizen, and make that data ...

Police Sketch Bot Arrives

by Carlos Difundo

It is one of those things that seems to be a great idea at first. Once in place though, it becomes something very different. That happened when two coders created Forensic Sketch AI-rtist. The tool was simple enough given the skills of OpenAI’s DALL-E2 image generation model. ...

Police Study Shows That Reform and Effectiveness Are Not Mutually Exclusive

by Benjamin Tschirhart

Following the murder of George Floyd by Minneapolis police officers, a new social movement has emerged and is growing in popularity. The burgeoning movement is calling for police reform along with the reduction of police budgets and tighter reigns on police training and tactics. Their demand (shocking ...

‘Contagion Effect’ Spreads Brutality Among Police Officers

by Eike Blohm

The case of Tyre Nichols, beaten to death by five police officers during two encounters, has raised the question of how law enforcement officers could possibly commit such a brutal and heinous act. Laurence Miller, researcher and author of the 2020 book “The Psychology of Police Deadly ...

Memphis Police Beat Man to Death

by Kevin W. Bliss

Five Memphis police officers have been charged with second degree murder, aggravated assault, aggravated kidnapping, official misconduct, and official oppression in the death of the 29-year-old Black motorist Tyre Nichols.

Ex-Memphis police Tadarrius Bean, Demetrius Haley, Desmond Mills, Jr., Emmitt Martin III, and Justin Smith pulled ...

America’s Latest “War on” … Protestors

by Casey J. Bastian

For decades, American law enforcement apparatuses have embraced an ideology of going to “war” against the American people. Under the guise of being “tough on crime,” addressing societal issues has instead become an opportunity to offend individual liberty and rights. This country has chosen to go ...

Minnesota Abolishes Life Without Parole for Juveniles

by Jordan Arizmendi

On May 19, 2023, Minnesota Governor Walz (D) signed omnibus public safety bill – SF 209, which abolishes life imprisonment without parole for minors. Under the bill, juvenile life-without-parole sentences will be retroactively eliminated. In addition, all minors who were sentenced in adult court will be eligible ...

Louisiana Jury Selection Illegal According to Recently Passed Bill

by Kevin W. Bliss

January 23, 2023, the Orleans Parish criminal court system halted all active jury trials until further information concerning the summons prices for jury selection could be supplied to the Fourth Circuit Court of Appeals in response to allegations that the system precluded people with felony convictions ...

News in Brief

California: A former police officer with the LAPD, Paul Razo, 46, was arrested in early May 2023, accused of sexually assaulting at least four minor boys over the course of more than a decade. Weeks after his arrest, Razo died of medical complications while in custody. KNBC in Los ...

 

 

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