In re: Application of the U.S. for Historical Cell Site Data, United States Court of Appeals, 5th Circuit, Docket No. 11-20884

The Government filed three applications under § 2703 of the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701-2712, seeking evidence relevant to three separate criminal investigations. On appeal, the issue before the court was whether court orders authorized by SCA to compel cell phone service providers to produce the historical cell site information of their subscribers were per se unconstitutional. The appellate court concluded that cell site data are business records and should be analyzed under that line of Supreme Court precedent. As such, the appellate court found that, since the magistrate judge and district court treated the data as tracking information, they applied the wrong legal standard. Using the "proper framework," the appellate court found that SCA's authorization of § 2703(d) orders for historical cell site information if an application meets the lesser "specific and articulable facts" standard, rather than the Fourth Amendment probable cause standard, was not per se unconstitutional. Further, as long as the Government met the statutory requirements, SCA did not give the magistrate judge discretion to deny the Government's application for such an order. Accordingly, the court vacated and remanded with instructions to grant the applications.


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.


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