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.”


Trevino v. Thaler, 569 U.S. _____ (2013)

Carlos Trevino was convicted of capital murder in Texas state court and sentenced to death. Neither new counsel appointed for direct appeal nor new counsel appointed for state collateral review raised the claim that trial counsel provided ineffective assistance during the penalty phase by failing to adequately investigate and present mitigating circumstances. When that claim was finally raised in Trevino's federal habeas petition, the district court stayed proceedings so Trevino could raise it in state court. The state court found the claim procedurally defaulted. The federal court concluded that this failure was an independent and adequate state ground barring federal courts from considering the claim. The Fifth Circuit affirmed. The Supreme Court vacated and remanded.


The Supreme Court held, in Martinez v. Ryan, that "a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [State's] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez concerned a prisoner from Arizona, where state law required the prisoner to raise the claim during his first state collateral review proceeding. Texas law does not require a defendant to raise his ineffective-assistance claim on collateral review and the Fifth Circuit subsequently held that Martinez was inapplicable to Texas cases. Where, as here, state procedures make it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective-¬assistance-of-trial-counsel claim on direct appeal, the Martinez exception applies. Texas procedures make it nearly impossible for an ineffective-assistance claim to be presented on direct review; a writ of habeas corpus is normally needed to gather the facts necessary for evaluating such claims. Were Martinez not to apply, the Texas procedural system would create significant unfairness. The Court noted Texas courts' own "well-supported determination that collateral review normally is the preferred procedural route for raising an ineffective-assistance-of-trial-counsel claim." Failure to consider a lawyer's "ineffectiveness" during an initial-review collateral proceeding as a potential "cause" for excusing a procedural default will deprive the defendant of any opportunity for review of an ineffective-assistance-of-trial-counsel claim.


Drivers should always avoid drinking and driving. Nonetheless, if you are going out tonight in New Orleans, please be particularly sure to either use a designated driver or simply call a cab.


The New Orleans Police Department will be conducting a sobriety checkpoint tonight (i.e.- Friday May 24, 2013) in Orleans Parish, beginning at approximately 9:00 P.M. and will conclude at approximately 5:00 A.M. Motorists will experience minimal delays and should have the proper documentation available if requested (i.e.- proof of insurance, driver's license, etc.).



United States v. Andrew Kelly, United States Court of Appeals, 5th Circuit, Docket No. 12-30936

After Andrew Kelly pled guilty to possession with intent to distribute fifty (50) grams or more of cocaine base substance and possession of a firearm during a drug-trafficking offense, he appealed his sentence arguing that, pursuant to 18 U.S.C. 3582(c)(2), he was entitled to benefit from all of the changes wrought by the Fair Sentencing Act (FSA), Pub. L. No. 111-120, 124 Stat. 2372. As such, Kelly contended that the district court erred in declining to reduce his sentence below the original mandatory minimum sentence of 10 years. However, other courts had previously ruled that where a defendant was subject to a 10-year mandatory minimum sentence, the district court was not authorized to grant a reduction below that minimum. In light of this persuasive authority, the Fifth Circuit declined to treat a section 3582(c)(2) modification hearing as the equivalent of an original sentencing under Dorsey v. United States. Accordingly, the court affirmed Kelly's sentence.


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