February 2011

Today, the Supreme Court ruled that dying declaration (classified in this case as "excited utterances") made to police officers and identifying the suspect, were admissible despite the fact that the witness did not later testify at trial.  The Court labeled the man's statements "non-testimonial" for purposes of the Confrontation Clause (and the Crawford case).  To read more about it, see CNN coverage HERE.

Read the Court's opinion in Michigan v. Bryant.

Justice Scalia did not mince words in his dissent:

Today's tale -- a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose -- is so transparently false that professing to believe it demeans this institution.

It Takes Two to Tango | Can a Person be convicted for Conspiring With a Government Informant?

United States v. Delgado, U.S. Courts of Appeals for the 5th Circuit (Federal)

In this U.S. v. Delgado, the Defendant-Appellant, Maria Aide Delgado, was convicted of

1. possession of marijuana with the intent to distribute and
2. conspiracy to commit the same offense.

She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed, complaining that she shouldn't be convicted for Conspiracy if she was Conspiring With a Government Informant.

The Federal 5th Circuit Court of Appeals dismissed a conspiracy charge in the indictment because the government failed to introduce sufficient evidence to establish that the Appellant entered into a conspiracy with anyone other than a government informant. While it takes at least two people to form a conspiracy, an agreement must exist among co-conspirators who actually intend to carry out the agreed upon criminal plan. A defendant cannot be criminally liable for conspiring solely with an undercover government agent or a government informant, therefore, evidence of any agreement Delgado had with the government informant cannot support a conspiracy conviction.

After being convicted of aiding and abetting mail fraud and aggravated identity theft, Lonnie Oliver Jr., challenged his convictions on appeal, arguing that federal agents conducted an illegal search of the contents of a cardboard box that his girlfriend provided to them and that his statements to police officers were involuntary.

See the full opinion in United States v. Oliver  (5th Circuit, 2011)

Mr. Oliver left an unsecured cardboard box, which contained ample evidence of his identity theft operation, in the dining room of his girlfriend's apartment. When agents interviewed his girlfriend, she gave them the box, but did not tell them she had already examined its contents.

Does a person have a Reasonable Expectation of Privacy in the contents of a box that was not kept private from his girlfriend?

The court held that the girlfriend’s prior search of the box destroyed Appellant’s reasonable expectation of privacy in it, and rendered the subsequent warrantless police search permissible under the Fourth Amendment. The court stated that the girlfriend’s search made the agents’ warrantless search permissible, regardless of whether the agents knew about it. The court cautioned that his holding was limited to the unique facts of this case and was not intended to expand significantly the scope of the private search doctrine.

Does a waiver of Miranda Right to remain silent need to be in writing?

Appellant also argued that incriminating statements he made to the agents during his custodial interrogation should have been suppressed, claiming that he had not waived his Miranda rights. After agents arrested Appellant, they advised him of his Miranda rights and provided him two forms. Appellant signed the first form acknowledging that he understood his rights, but he refused to sign the second form waiving those rights. Nevertheless, Appellant told the agents that he wished to answer their questions and he confessed to his role in a mail fraud and identity theft scheme.

The Court explained that suspect may waive his Miranda rights if the waiver is made voluntarily, knowingly and intelligently. The mere refusal to sign a written Miranda waiver does not automatically make subsequent statements by a defendant inadmissible. The court held that the circumstances surrounding Appellant’s arrest and interview established that Appellant’s waiver was voluntary, even though he refused to sign the wavier form. Specifically: (1) agents provided Appellant with a copy of the Miranda warning waiver form and read it aloud to him as he followed along, (2) Appellant expressly told the agents that although he would not sign the Miranda waiver form, he would discuss the fraud scheme, (3) Appellant never requested an attorney, (4) Appellant was articulate, coherent and not under the influence of alcohol or drugs, and appeared to understand what was going on, (5) Appellant clearly understood his rights since he signed the first form that acknowledged this, and he had extensive experience with the criminal justice system, and (6) Appellant was not coerced in any way during the interview.

Allen walks into Walmart, picks out a nice computer and matching desk, loads both into a shopping cart and proceeds to the exit. Of course, before he can make it out of the store, the infamous receipt-checker stops him at the door. Allen shows a fake Walmart “receipt.” Unfortunately for Allen, the receipt-checker isn’t as dumb as he was hoping. The receipt checker quickly identifies the receipt as a phony and Allen is detained while police are called.

These are the general facts of Shipp v. State, a Texas Court of Criminal Appeals case released last week and designated for publication. In Shipp, the appellant was tried and convicted of the state jail felony offense of Forgery of a Commercial Instrument. With his enhancements, punishment was assessed at 20 years in TDCJ-ID.

Is a Walmart receipt a "Commercial Instrument" under Texas' Forgery laws?

Shipp argued on appeal that the phony receipt didn’t qualify as a “commercial instrument” under 32.21(d) of the Penal Code. The 6th District Court of Appeals (Texarkana) agreed, holding:

There was no testimony provided here to demonstrate that a receipt issued by this Wal-Mart store is anything more than the memorialization of a past transaction, as opposed to other kinds of things granting or ceding future benefits or rights listed in Section 32.21(d).

The 6th Court of Appeals used the statutory construction doctrine of Ejusdem generis (you can read the opinion for more, but simply put, when general words in a statute follow specific words, courts should look to the specific words for meaning) to arrive at its conclusion that the legislature did not intend to include such items as a Walmart receipt in the statute .

The CCA, on the other hand, declined to use the doctrine here because of the wide range of writings set out in 32.21(d).  Instead, the CCA looked to the legislative history behind 32.21(d) and held that this degree of forgery (state jail felony) was meant to include “documents of commerce.”  The CCA did not define “other commercial instrument” but nevertheless concluded that a store receipt falls within the definition of “documents of commerce.” Adressing Ejusdem generis the CCA states:

To invoke the rule of ejusdem generis to exclude such a patent example of a ‘commercial instrument’ would serve to defeat rather than effectuate the intent of the Legislature…

Dissenting, Presiding Judge Keller joined by Judge Johnson agree with the Court of Appeals’ use of Ejusdem generis stating:

the phrase ‘or other commercial instrument’ must also refer to a document that creates or discharges an economic obligation or that transfers property.

Presiding Judge Keller points out that a receipt has consistently been considered a “document” for purposes of the forgery statute (citing all the way back to 1884 – wow!) but is not an “other commercial instrument” for purposes of making it a state jail felony level. Thus, in her opinion, Shipp should have been prosecuted for a misdemeanor offense.

I would never have imagined a Walmart receipt being a “commercial instrument,” but apparently it is, so says the Court.

The U.S. Court of Appeals for the 5th Circuit (Federal) issued a housekeeping ruling today (United States v. Garland) targeting counsel that wish to withdraw from a case by filing an Anders brief. The Court admonished counsel that they must not simply file a conclusory brief without any “meaningful discussion of the district court proceedings or any potential issues for appeal.” Reciting the Supreme Court’s holding in Anders v. California, 386 U.S. 738, 744 (1967), the court reminded counsel:

Rather than simply filing a brief that is little more than a no-merits letter, ‘counsel should, and can with honor and without conflict, be or more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.’

To assist future counsel that wish to withdraw and file an Anders brief, the Court directs them to its website, on which it has posted guidelines and a checklist for counsel to follow.

The Fifth Circuit’s website provides a detailed checklist and outline for Anders briefs for guilty pleas and for bench or jury trials. See http://www.ca5.uscourts.gov. The guidelines and checklist are under the ‘Attorney Information Section.'  This checklist is designed to assist counsel in preparing a brief that will satisfy the standards of Anders in this circuit.

The Court goes on to state that “if counsel submits a brief meeting this standard, we will no longer independently scour the record looking for nonfrivolous issues.” There you have it. Use the court’s template and you can’t go wrong. Appellate attorneys might also find the checklist helpful in filing Anders briefs to the state courts of appeals.