July-August, 2015

First Circuit:  Void-For-Fraud Clause of Insurance Contract Does Not Figure Into Sentencing, Restitution

The First Circuit held that prosecutors who obtained a conviction for insurance fraud couldn’t rely on void-for-fraud clauses in the underlying insurance policies to increase the determinations of loss under either the Mandatory Victims Restitution Act or the U.S. Sentencing Guidelines.  The court characterized a void-for-fraud clause as “nothing more than an after-the-fact penalty” that did not reflect on the defendant’s culpability.  United States v. Alphas, 2015 BL 133283 (1st Cir., No. 14-2228, 05-07-15); full text at http://www.bloomberglaw.com/pu blic/document/United_States_v_Alphas_No_142228_2015_BL_133288_1st_Cir_May_07_20

Fifth Circuit:  Proof of Conspiracy Requires More Than Knowledge That Fees Were Paid With Drug Money

The Fifth Circuit held that to convict a defendant with a legitimate business of conspiring to engage in concealment money laundering, the government must present evidence of more than the defendant’s knowledge that his acceptance of drug traffickers’ tainted money would have the effect of laundering it.  United States v. Cessa, 2015 BL 133674 (5th Cir., No. 13-50849, 05-07-15); full text at http://www.bloomberglaw.com/public/document/ United_States_v_Cessa_No_1350849_2015_BL_133674_5th_Cir_May_07_20

United States Supreme Court:  Felon’s Confiscated Guns Can be Sold, Transferred For His Benefit

The Supreme Court held that the prohibition on felons possessing firearms doesn’t bar a court-ordered transfer or sale of a felon’s lawfully owned guns that were surrendered as a condition of bail.  The Court, closing a circuit split on this issue, held that the right to merely sell or otherwise dispose of firearms is not equivalent to the right to possess a gun under § 992(g).  Henderson v. United States, 2015 BL 152142 (U.S., No. 13-1487, 05-18-15); full text at http://www.bloomberglaw.com/public/document/ Henderson_v_United_States_No_131487_2015_BL_152142_US_May_18_2015

Sixth Circuit:  Medicare Billing Fraud Wasn’t Identity Theft Where Named Patients Actually Got Services

The Sixth Circuit held that a pair of ambulance operators didn’t “use” the names of their patients for purposes of the federal aggravated-identity-theft law when the operators fraudulently filed for Medicare reimbursement by alleging that their patients were eligible for ambulance transport to kidney dialysis appointments.  The operators misrepresented how and why the beneficiaries were transported, but they did not use those identities to do so. 18 U.S.C. § 1028(d)(7).  United States v. Medlock, 2015 BL 141709 (6th Cir., No. 14-5084, 05-13-15); full text at http://www.bloomberglaw.com/public/document/ United_States_v_Medlock_No_1450845100_2015_BL_141709_6th_Cir_May_

Georgia:  Not Mentioning Period of Parole Ineligibility Now Establishes Ineffective Assistance Claim

The Georgia Supreme Court held that defense counsel’s failure to mention a period of parole ineligibility when advising a client about a plea offer will now constitute ineffective assistance of counsel in violation of the Sixth Amendment.  The ineligibility for parole is a collateral consequence of a guilty plea and must be covered by the attorney’s advice.  Alexander v. State, 2015 BL 136134 (Ga., No. S14G1762, 05-11-15); full text at http://www.bloomberglaw.com/public/document/ Alexander_v_State_No_14G1762_2015_BL_136134_Ga_May_11_2015_Court

Indiana:  The Fact That an Offense is Lesser-Included Doesn’t Always Give The Defendant Fair Notice

The Indiana Supreme Court held that attempted aggravated battery was both a lesser included offense of murder and a completely different offense for purposes of fair notice of the charge where the government’s theory of murder involved a different and unrelated means – shooting – than the attempted battery with fists for which the defendants were convicted.  Young v. State, 2015 BL 148711 (Ind., No. 49S02-1505-CR-275, 05-14-15); full text at http://www.bloomberglaw.com/public/document/ BILLY_YOUNG_Appellant_V_STATE_OF_INDIANA_Appellee_MARQUISE_LEE_Ap

Sixth Circuit:  Laptop Search For Child Porn Suppressed; Officer Lacked “Virtual Certainty” of Contents

The Sixth Circuit held that child pornography found on a defendant’s laptop computer can’t be used as evidence even though the defendant’s girlfriend voluntarily showed the images to the police.  The police expanded the scope of the search performed by the girlfriend before they obtained the search warrant.  United States v. Lichtenberger, 2015 BL 158285 (6th Cir., No. 14-3540, 05-20-15); full text at http://www.bloomberglaw.com/public/document/ United_States_v_Lichtenberger_No_143540_2015_BL_158285_6th_Cir_Ma

New Jersey:  “Private Search” Rule Doesn’t Apply to Warrantless Intrusions Into Homes

The New Jersey Supreme Court held that the rule allowing police to replicate a search already conducted by a private citizen doesn’t apply to a warrantless search of a residence.  Absent exigency or some other exception to the warrant requirement, the police must get a warrant to enter a private home and conduct a search, even if a private actor has already searched the area and notified law enforcement.  State v. Wright, 2015 BL 158149 (N.J., No. A-64, 05-19-15); full text at http://www.bloomberglaw.com/public/document/ State_v_Wright_No_A64_September_Term_2013_2015_BL_158149_NJ_May_1

Ninth Circuit:  Ex-Felon Computer Check During Traffic Stop Required Reasonable Suspicion

The Ninth Circuit held that a law enforcement officer’s decision to conduct an ex-felon registration check on a detained motorist after the regular license and warrant checks prolonged the traffic stop in a way that required independent suspicion.  The court stated that checking to make sure that a driver with a prior conviction is properly registered as a felon is an additional, ancillary investigation for which the Fourth Amendment requires reasonable suspicion.  United States v. McConnell, 2015 BL 158546 (9th Cir., No. 14-10024, 05-20-15); full text at http://www.bloomberglaw.com/public/document/ United_States_v_McConnell_No_1410024_2015_BL_158546_9th_Cir_May_2

California:  Stipulation to Prior Conviction Element Required Personal Colloquy With Accused

The California Supreme Court held in a unanimous decision that the supervisory rule that requires trial judges to personally advise defendants of the rights they are waiving when their attorneys stipulate to aggravating facts applies to stipulations to prior convictions that increase the maximum penalty.  A stipulation, the court decided, must be preceded by an admonition-and-waiver colloquy when the stipulation exposes the defendant to definite penal consequences, including definite exposure to additional punishment.  People v. Cross, 2015 BL 152938 (Cal., No. S212157, 05-18-15); full text at http://www.bloomberglaw.com/public/document/ People_v_Cross_No_S212157_2015_BL_152938_Cal_May_18_2015_Court_Op

Massachusetts:  Court Clears up Residue From State Chemist’s Egregious Misconduct

The Massachusetts Supreme Judicial Court held that individuals who pleaded guilty to drug charges on the basis of drug tests conducted by a subsequently disgraced state chemist cannot face harsher charges and penalties if they are granted new trials.  The court stated that due process demands that no one face being put in a worse position for exercising the right to challenge a tainted conviction.  Bridgeman v. District Attorney for Suffolk District, 2015 BL 150647 (Mass., No. SJC-11764, 05-18-15); full text at http://www.bloomberglaw.com/public/document/ Bridgeman_v_Dist_Attorney_for_Suffolk_Dist_471_Mass_465_2015_Cour

Connecticut:  Ban on Mandatory LWOP For Juveniles is Retroactive, Applies to De Facto Life

The Connecticut Supreme Court held that the Eighth Amendment ban against sentencing juveniles to mandatory life imprisonment without parole applies retroactively to convictions that were already final at the time the U.S. Supreme Court announced the ban in 2012.  The court also held that a sentence to a long term of prison, 50 years in this case, can qualify as the functional equivalent of a sentence of LWOP.  Casiano v. Commissioner of Corrections, 2015 BL 164932 (Conn., No. SC 19345, 05-26-15); full text at http://www.bloomberglaw.com/public/document/ Casiano_v_Commr_of_Corr_No_SC_19345_2015_BL_164932_Conn_May_26_20

Kansas:  Sorting Mistakes of Fact, Mistakes of Law Still Matters After Helen v. North Carolina

The Kansas Supreme Court decided that a police officer made a constitutionally reasonable mistake, for purposes of the Fourth Amendment, when he stopped a motorist for exceeding the speed limit posted on a sign that had been knocked down.  The court held that, in this case, the officer’s reliance on the false, but normally true, fact that a speed limit sign was in place was objectively reasonable.  City of Atwood v. Pianalto, 2015 BL 161934 (Kan., No. 109,796, 05-22-15); full text at http://www.bloomberglaw.com/public/document/ City_of_Atwood_v_Pianalto_No_109796_2015_BL_161934_Kan_May_22_201

Washington:  Remedy For Failure to Timely Accept Plea is to Reoffer it, Despite State’s Role in Error

The sharply divided Washington Supreme Court ruled that a teenager whose lawyer didn’t accept a plea offer or ask the juvenile court to extend its jurisdiction before the defendant turned 18 can’t get all the charges dismissed with prejudice, but the defendant should be allowed to take advantage of the original deferred-disposition plea deal.  State v. Maynard, 2015 BL 167933 (Wash., No. 89786-7, 05-28-15); full text at http://www.bloomberglaw.com/public/document/ State_v_Maynard_No_897867_2015_BL_167933_Wash_May_28_2015_Court_O

First Circuit:  Cop Seeking Search Warrant Had Duty to First Investigate Tipster’s Quirky Past

The First Circuit held that an officer who was told by fellow police officers that a tipster was quirky, had been in a few scrapes with the law and was a police groupie had a duty to investigate those allegations before presenting a search warrant application based exclusively on the information from the tipster.  The court stated that all that is required to trigger an officer’s duty of further inquiry is her knowledge of an obvious and unexplored reason to doubt the truthfulness of the allegations.  United States v. Tanguay, 2015 BL 162491 (1st Cir., No. 14-1174, 05-22-15); full text at http://www.bloomberglaw.com/public/document/ United_States_v_Tanguay_No_141174_2015_BL_162491_1st_Cir_May_22_2/1

Second Circuit:  Error in Address in Search Warrant Requires Suppression

The Second Circuit held that the Fourth Amendment required the suppression of evidence obtained pursuant to a warrant application and warrant that listed the wrong apartment.  The court found that based on the conflicting information known to the agents, they could not have reasonably concluded that the defendant actually lived in the apartment and that they were authorized to search that apartment.  United States v. Bershchansky, 2015 BL 177808 (2d Cir., No. 13-3145, 06-05-15); full text at http://www.bloomberglaw.com/public/document/ United_States_v_Bershchansky_No_133145_2015_BL_177808_2d_Cir_June

Fifth Circuit:  Judges’ Advisories on Immigration Effects Don’t Preclude Prejudice From Padilla Errors

The Fifth Circuit held that foreign-born prisoners alleging that their attorneys failed to advise them that their guilty pleas would result in their deportation aren’t necessarily foreclosed from demonstrating prejudice from their attorneys’ lapses if the judges at their plea colloquies did warn them that the guilty pleas would likely have immigration consequences.  United States v. Batamula, 2015 BL 173611 (5th Cir., No. 12-20630, 06-02-15); full text at http://www.bloomberglaw.com/public/document/ United_States_v_Batamula_No_1220630_2015_BL_173611_5th_Cir_June_0

First Circuit:  Mistake-of-Age is Legitimate Defense in Aiding and Abetting Child Porn Case

A divided First Circuit held that a former teacher charged with aiding and abetting the production of child pornography should have been allowed to argue that he didn’t know the victim was a minor.  The court stated that the result was dictated by Rosemond v. United States, 2014 BL 60803, which clarified that the government must prove that an aider and abettor of criminal conduct participated with advance knowledge of the elements that constitute the charged offense.  United States v. Encarnacion-Ruiz, 2015 BL 168837 (1st Cir., No. 12-2030 , 05-28-15;  full text at http://www.bloomberglaw.com/public/document/United_States_v_Encarnacion Ruiz_No_122030_2015_BL_168837_1st_Cir_.

First Circuit:  Admissions Made Under Immunity In Proffer Can’t be Used to Make Witness Speak ‘Truth’

The First Circuit held that a trial court violated a capital murder defendant’s immunity agreement with the government when it said that a forensic expert wouldn’t be allowed to testify for the defense unless he was informed that the defendant had already admitted his guilt while attempting to negotiate a plea that would’ve taken the death penalty off the table.  United States v. Jimeniz-Bencevi, 2015 BL 174654 (1st Cir., No. 13-2084, 06-03-15); full text at  http://www.bloomberglaw.com/public/document/United_States_v_JimenezBencevi_No_132084  2015_BL_174654¬_1st_Cir_J

California:  Appellate Courts Need Not Consider Sketchy Explanations For Peremptory Strikes

The California Supreme Court held that an appeals court can ignore a party’s suspicious explanations for exercising peremptory strikes if it agrees with the trial judge’s alternative conclusion that the opponent of the strike didn’t make out a prima facie case of invidious discrimination before the explanations were offered.  People v. Scott, 2015 BL 180512 (Cal., No. S064858 , 06-08-15); full text at http://www.bloomberglaw.com/public/document/ People_v_Scott_No_S064858_2015_BL_180512_Cal_June_08_2015_Court_O

Kansas:  Mandatory Lifetime Supervision Can’t be Applied to Juvenile Sex Offenders

The Kansas Supreme Court held that a state law that subjects sex offenders to automatic lifetime supervision once they’re released from prison is categorically unconstitutional when imposed on juveniles convicted of taking indecent liberties with a miner.  State v. Dull, 2015 BL 177708 (Kan., No. 106,437, 06-05-15); full text at http://www.bloomberglaw.com/public/document/State_v_Dull_No_106437_2015_BL_177708_Kan_05_2015_Court_Opin