United States v. Marcus D. Hamilton, United States Court of Appeals, 5th Circuit, Docket No. 12-20250

Marcus D. Hamilton was charged with felony possession of a firearm and proceeded to trial. At trial, the Government was allowed to present testimony of Hamilton's alleged gang affiliation on the basis that it displayed a motive for Hamilton to possess of a firearm over Hamilton's objection. After a jury found Hamilton guilty as charged, he timely appealed. The Fifth Circuit reversed and remanded, concluding that the district court abused its discretion in admitting the testimony regarding Hamilton's alleged gang membership and the error was not harmless.


Dorsey v. Thaler, United State Court of Appeals, 5th Circuit, Docket No. 11-20682

At trial, Charles Ray Dorsey was convicted of murder; and, in turn, Dorsey subsequently appealed the district court's dismissal of his application for a writ of habeas corpus under 28 U.S.C. § 2254. The thrust of Dorsey's argument concerned the admission of a videotape into evidence to rebut Dorsey's version of facts. Notably, this video tape was created by a detective after the death of victim, and neither Dorsey nor his counsel was present at the time this tape was created. Nonetheless, the court concluded that, even had the state court unreasonably concluded that there was no Confrontation Clause violation, habeas relief could not be granted because Dorsey failed to make a showing of prejudice where the admission of the videotape at issue did not have a substantial or injurious effect on the outcome of the jury's verdict. Furthermore, Dorsey's claim of ineffective assistance of counsel during his intermediate appeal because counsel failed to make a Confrontation Clause argument related to the admission of the videotape also failed.



United States v. Cong Van Pham, United States Court of Appeals, 5th Circuit, Docket No. 11-50717

Cong Van Pham, who had no criminal record, was convicted of growing over seven hundred marijuana plants. Pham was a refugee from Vietnam who spoke no English and cultivated the marijuana in order to raise money to pay for his wife's medical treatment after she was diagnosed with a brain tumor. The district court sentenced Pham to 60 months in prison.


Pham appealed the denial of his 28 U.S.C. § 2255 motion where he alleged ineffective assistance of counsel based on his counsel's failure to consult with him about filing a direct appeal of his sentence. When sentenced, Pham was visibly upset at receiving a prison sentence instead of probation, indicating that a prison sentence would kill his wife who relied on his care. In addition, while his wife cried nearby at sentencing, Pham spoke with his counsel regarding his concern about getting 60 months and his desire to do something to get less time. Consequently, the Fifth Circuit concluded that Pham reasonably expressed an interest in an appeal immediately after he was sentenced and this triggered his counsel's duty to consult. Accordingly, the court reversed and remanded the matter for further proceedings.


On Friday, July 5, 2013, from 8 p.m until 2 a.m., the Jefferson Parish Sheriff's Office will conduct a sobriety and seat belt checkpoint in East Jefferson Parrish. The Sheriff's Office is not disclosing the location in advance.


Needless to say, drivers should never operate a motor vehicle while impaired, and their passengers should always wear their seat belts. Yet, if you are going out on the town Friday night, please use a designated driver or a cab. Also, please remember to buckle up.


People should always avoid driving while intoxicated or impaired.  But, that will especially be the case tomorrow night (i.e.- Thursday June 20, 2013) in New Orleans.  The New Orleans Police Department will conduct a sobriety checkpoint in Orleans Parish, beginning at approximately 9:00 p.m. and ending around 5:00 a.m.  Motorists will experience minimal delays and should have the proper documentation, , such as proof of insurance, driver’s license, registration, etc., available if requested.


United States v. Davila, 569 U.S. _____ (2013)

While being prosecuted for tax fraud, Anthony Davila wrote to the district court, expressing dissatisfaction with his court-appointed attorney because the attorney was advising Davila to plea guilty. Hence, Davila requested new counsel. A magistrate judge subsequently held an in camera hearing with Davila and his attorney with no representative of the prosecution present. At that hearing, the magistrate judge told Davila that he would not get another court-appointed attorney and that, given the strength of the prosecution's case, his best course was to plead guilty. Davila later pled guilty three months later to a conspiracy charge in exchange for dismissal of 33 other charges. Davila stated under oath at the time of his plea that he was not forced or pressured to enter the plea and did not mention the hearing. Before sentencing, however, Davila moved to vacate his plea and dismiss the indictment, asserting that he had entered the plea to force the prosecution to acknowledge errors in the indictment. The district judge denied the motion, finding the plea knowing and voluntary. The Eleventh Circuit held that the magistrate's violation of Federal Rule of Criminal Procedure 11(c)(1), prohibiting court participation in plea discussions, required automatic vacatur.


By a unanimous opinion by Justice Ginsburg (Justice Scalia filed an opinion concurring in part in which Justice Thomas joined), the Supreme Court reversed the Eleventh Circuit, noting that both Rule 11 and Rule 52(a), governing trial court errors in general, allow for harmless error analysis. The Court explained that vacatur of the plea is not in order if the record shows no prejudice to Davila's decision to plead guilty. Rule 11(c)(1) was adopted as a prophylactic measure, not one impelled by the Due Process Clause or any other constitutional requirement; so its violation does not belong in the highly exceptional category of structural errors, such as the denial of counsel of choice or denial of a public trial, that trigger automatic reversal because they undermine the fairness of the entire criminal proceeding. The Court further noted that three months had elapsed between the in camera meeting and Davila's appearance before the district judge who examined and accepted his guilty plea after an "exemplary" Rule 11 colloquy. Thus, in the absence of prejudice, the Court concluded that Davila's guilty plea should stand.


If you are going out in New Orleans tomorrow night (i.e.- Friday, June 14, 2013), please get your designated drivers lined up or use a taxi cab for transportation. The New Orleans Police Department will be conducting a sobriety checkpoint between 7 p.m. and 5 a.m. Motorists will experience minimal delays and should have the proper documentation, such as proof of insurance, driver's license etc. available, with them at all times.



Peugh v. United States, 569 U.S. _____ (2013)

Marvin Peugh was convicted in federal court in 2009 on five counts of bank fraud for conduct that occurred in 1999 and 2000.  Under the 1998 sentencing guidelines, his sentencing range was 30 to 37 months.  However, the sentencing guidelines were revised in 2009 and provided a range of 70 to 87 months for Peugh’s crimes.  Peugh argued that the Ex Post Facto Clause prohibited the passage of laws that impose a greater punishment than the punishment in effect when the crime was committed and required the court to sentence him using the earlier version of the guidelines.  Nevertheless, the district court rejected Peugh’s ex post facto claim and sentenced Peugh to 70 months in prison. The Seventh Circuit Court of Appeals affirmed.


By a 5-4 opinion by Justice Sotomayor joined by Justices Ginsburg, Breyer, Kagan and Kennedy (except as to Part III-C), the Supreme Court reversed, holding that sentencing a defendant to a longer term under guidelines promulgated after the commission of the criminal acts, violates the Ex Post Facto Clause. The Court rejected the government’s argument that the sentencing guidelines lack sufficient legal effect to have the status of “law” within the meaning of the Ex Post Facto Clause.  Thus, the existence of discretion does not displace the constitutional protections.


The Jefferson Parish Sheriff's Office has announced a DWI checkpoint for motorists at an undisclosed location on the East Bank of Jefferson Parish on Friday night (i.e. June 7, 2013) between 8 p.m. to 2 a.m.


Indeed, motorists should never drive while under the influence of alcohol or any other substance that could lead to impairment.


In any event, please remember to use a designated driver or a cab if you plan to be out on the town tomorrow night.


Maryland v. King, 569 U.S. _____ (2013)

Maryland police arrested Alonzo Jay King, Jr., in 2009 for first- and second-degree assault.  King was processed through a Wicomico County, Maryland, facility, where personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act, which authorizes officers to collect DNA samples from persons charged with violent crimes.  When the DNA data was added to the state’s database, it matched a prior set of DNA data collected in a separate, unsolved 2003 rape case.  King unsuccessfully moved to suppress the DNA match; and using the 2009 DNA match as evidence, a Maryland trial court convicted King of the 2003 rape.  The state’s highest court reversed King’s conviction, finding that the DNA evidence was improperly obtained during an unreasonable search.  The court deemed the search unreasonable and thus unconstitutional under the Fourth Amendment because King’s expectation of privacy was greater than Maryland’s interest in using his DNA to identify him.  Yet, the court upheld the constitutionality of the DNA Act overall.  


In an 5-4 opinion by Justice Kennedy joined by Chief Justice Roberts and Justices Alito, Thomas and Breyer, the Supreme Court reversed.  The majority reasoned that taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment when officers make an arrest supported by probable cause to hold and bring the suspect to the station to be detained in custody, for a serious offense.  The majority further explained that DNA testing involves minimal intrusion that may significantly improve both the criminal justice system and police investigative practices.  It is quick and painless and requires no intrusion beneath the skin.  When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving interests in properly identifying who has been arrested, ensuring that the custody of an arrestee does not create inordinate risks for staff, for the existing detainee population, and for a new detainee, and in ensuring that persons accused of crimes are available for trials.  Identifying an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned.  The majority also noted that the test does not reveal an arrestee’s genetic traits and is unlikely to reveal any private medical information.


But the four dissenting justices, Justice Scalia joined with Justices Ginsburg, Sotomayor and Kagan, said that the court was allowing a major change in police powers.  "Make no mistake about it: Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason," Justice Scalia said in a sharp dissent which he read aloud in the courtroom. "This will solve some extra crimes, to be sure.  But so would taking your DNA when you fly on an airplane -- surely the TSA must know the 'identity' of the flying public.  For that matter, so would taking your children's DNA when they start public school."  Scalia further questioned the majority’s assertion that DNA helps police identify suspects:  "The court's assertion that DNA is being taken, not to solve crimes, but to identify those in the state's custody taxes the credulity of the credulous.”


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