Fifth Amendment:
A. Prosecutor Conduct
B. Brady
C. Confessions and Testimonial Rights
D. Double Jeopardy
E. Miscellaneous Fifth Amendment
Miscellaneous Fifth Amendment
Supreme Court Decisions
• Due Process - Shackling
Deck v. Missouri, 04-5293 (5/23/05)
> The Missouri Supreme Court affirmed defendant's conviction for murder, but set aside the death sentence. At the resentencing proceeding, defendant was shackled before the jury throughout the proceeding. The new jury again sentenced defendant to death. Defendant appealed the shackling issue through the Missouri courts and certiorari was granted.
* Holding: The Court first confirmed the rule that shackling a defendant before a jury during the guilt phase of a trial is a violation of due process, unless there is a specific state interest that justifies the restraint. State interests may include security problems and the risk of escape. The Court then held that the same considerations applied during the sentencing phase of a death penalty case. The Court ruled that, in order for a trial court to shackle a defendant during the sentencing phase of a death penalty case, the court must make case specific findings on the record showing the need for the shackling. The Court noted that shackling a defendant without good cause was a due process error for which the courts will presume prejudice.
• Due Process - Insanity Evidence
Clark v. Arizona, 05-5966 (6/29/06)
> An officer stopped defendant while he was driving around a residential area with his stereo blaring. Upon being pulled over, defendant shot and killed the officer, fled on foot, and was arrested later in the day with the murder weapon hidden nearby. At trial on the state of Arizona murder charge, defendant pursued the defense of insanity. Arizona allows an insanity defense only where a defendant can show that he did not know right from wrong. Defendant also pursued the defense that his mental illness kept him from forming the specific intent to commit the crime. Arizona courts have ruled that insanity evidence is not admissible to nullify mens rea. Defendant was convicted and appealed the restriction of the insanity test and the limitation on insanity evidence regarding mens rea. The Supreme Court granted certiorari.
* Holding: Under the common law insanity defense, a defendant could establish insanity by showing either that his insanity prohibited him from knowing what he was doing, or that his insanity prohibited him from knowing that what he was doing was wrong. In the case, the Court held that Arizona's choice to permit only the "knowing right from wrong" insanity defense did not abridge defendant's due process rights.
Regarding the mens rea issue, the Court found that the Arizona rule excluded only "mental-disease evidence" and "capacity evidence" from being admitted by a defendant. These types of evidence generally appear in the form of opinion and are used to show that the defendant suffered from mental illness and that the illness affected the defendant's capacity for cognition. The Court ruled that a state's decision to exclude this evidence in relation to mens rea did not violate the defendant's due process rights. The Court emphasized, however, that the state had not attempted to exclude "observation evidence." This category of evidence includes testimony (either expert or lay witness) of those who observe what a defendant does and says in daily life, and may give indications about the way the defendant thinks and behaves. Accordingly, the Court found no due process violation in the application of the Arizona rule and affirmed the conviction.
Sixth Circuit Decisions
• Due Process - ShacklingRuimveld v. Birkett, 04-1826 (4/21/05)
> Defendant was charged in state court with poisoning a prison guard while he was an inmate. At trial, defendant was kept in shackles throughout the entire trial, in front of the jury, even though defendant posed no special risk of flight or violence. Defendant was convicted, and appealed through the state court system, and then filed a habeas petition in federal court. The district court granted the writ, and the state appealed.
* Holding: The court first held that shackling a defendant during an entire trial was a constitutional violation of a defendant’s right to a fair trial. Next, the court held that review of such an error was subject to harmless error analysis. Finally, the court ruled that the error was not harmless because there was no good reason for the shackling, the case was close and based on purely circumstantial evidence, and the State had not “alluded to any evidence that would in any way remove [the] case from the Supreme Court’s clear conclusion that indicia of guilt can result in significant prejudice when such indicia are not warranted by the security concerns of the trial court.” Thus, the conviction was reversed, and the case returned to the trial court for a new trial.
• Due Process - Shackling
Lakin v. Stine, 05-1388 (12/19/05)
> At defendant’s state court trial for escape and related offenses, defendant was shackled in leg irons throughout his trial, during which he represented himself. Defendant appealed through the state court system, and then filed a federal habeas petition. The district court found that defendant’s due process rights were violated, but held that the error was harmless and denied defendant’s petition. Defendant appealed.
* Holding: Shackling of a defendant at trial is prohibited by the Due Process Clause unless it is justified by an essential state interest such as courtroom security. In order to determine whether an essential state interest justifies the use of visible shackles, the court must consider (1) the defendant’s record, her temperament, and the desperateness of the situation, (2) the state of the courtroom and courthouse, (3) the defendant’s physical condition, and (4) whether there is a less prejudicial, but adequate, means of providing security. In the case, the court found that the trial court had done nothing more than ask the corrections officer whether he wanted defendant shackled, to which the officer replied that he did. The court held that the trial court’s consideration of the issue was inadequate, and ruled that the shackling of the defendant was error. Nonetheless, the court held that the error was harmless because the evidence of defendant’s guilt was overwhelming. Thus, the conviction was affirmed.
• Due Process - Stun Belt
U.S. v. Miller, 06-4583 (7/1/08)
> Defendant was charged with wire fraud, money laundering, and witness tampering. Prior to trial, defense counsel informed the district court that defendant was acting violently towards him, and that he was concerned about sitting next to defendant during the trial. Based on a recommendation from the marshals, the court ruled that defendant would wear a stun belt throughout the trial. Defendant raised no objection to the use of the stun belt, and he was convicted. Defendant appealed.
* Holding: The Court held that physical restraints should be used as “rarely as possible” during a trial, and that, before using restraints, a district court must make a determination that the restraints are “justified by a state interest specific to a particular trial.” In the case, the court held that the district court erred in requiring physical restraints without making any findings regarding the need for such measures. Nonetheless, defendant did not object to the use of the stun belt at trial, and thus, applying plain error analysis, the court found no prejudice to defendant’s defense. Accordingly, defendant’s conviction was affirmed.
• Due Process - Identification Testimony
Howard v. Bouchard, 03-1850 (4/28/05)
> Defendant was charged with second degree murder for shooting a man who was trying to repossess a vehicle. Three witnesses saw the shooting. Two of the witnesses were shown a photo array including defendant soon after the shooting, and both witnesses failed to pick out defendant. The third witness was not interviewed by police until two months after the shooting. Prior to trial, all three witnesses saw defendant in court at a preliminary hearing on two occasions. After viewing defendant in court, all three witnesses picked defendant out of a line-up. Defendant was convicted at trial, and lost on appeal in state court. He then filed a habeas petition in federal court challenging his identification by the three witnesses, and the district court denied the petition.
* Holding: A claim that identification testimony is improper is analyzed as a violation of Due Process, and requires consideration of two factors. First, the court analyzes whether the identification was unnecessarily suggestive, and second, the court determines whether the identification was nonetheless reliable. In the case, the court first concluded that the identification of defendant was only minimally suggestive. All three witnesses did view the defendant in the courtroom before the line-up, but they only saw him briefly and mostly from behind. Further, even though the other individuals in the line-up were shorter than defendant and had different haircuts, the court did not find the line-up unduly suggestive. Second, the court found that the witnesses’ identifications were otherwise reliable. Even though two of the witnesses failed to pick the defendant out of a photo line-up within hours of the shooting, the court nonetheless concluded that the witnesses had a sufficient independent basis to identify defendant based upon their observations at the shooting, and accordingly their identifications were reliable. Thus, the conviction was affirmed.
• Due Process - Identification Testimony
Haliym v. Mitchell, 04-3207 (7/13/07)
> Defendant was charged with murder in state court and a seven year old witness identified him from a photo line-up as the murderer. In the line-up, defendant was pictured with five other individuals, but he was the only person in jail garb and with bandages on his head. Upon defendant’s conviction and loss in his state court appeal, he filed a federal habeas petition challenging the photo line-up identification. The district court denied the petition and defendant appealed.
* Holding: In analyzing whether an identification violates the Due Process Clause, the court must first consider whether the identification was “unnecessarily suggestive,” and then second, whether the evidence was nevertheless reliable. In considering the reliability, the court must evaluate the following factors: (1) the witness’ opportunity to view the suspect; (2) the witness’ degree of attention; (3) the accuracy; (4) the level of certainty demonstrated by the witness; and (5) the time between the crime and the identification. In the case, the court first held that the line-up was unnecessarily suggestive of defendant because of the bandages on his head and that fact that he was the only person in jail garb. Second, the court found that the identification was nonetheless reliable because the witness had adequate opportunity to view defendant, his awareness was enhanced because the victims were his parents, there was no uncertainty in the identification, and the witness knew defendant from prior contacts. Accordingly, the district court ruling was affirmed.
• Identification Testimony - In-Court I.D.
U.S. v. Cody, 06-6003 (8/16/07)
> Defendant was charged with bank robbery and during cross examination of a witness, defendant elicited from a teller that she had originally described the robber as having a medium build. On redirect examination, the prosecutor had the defendant stand up in court and the witness described defendant as being “medium.” Defendant objected to the testimony, the district court overruled the objection, defendant was convicted, and he appealed.
* Holding: The court held that the in-court identification was proper because the defense had invited the line of questioning by its cross examination. Further, the court found that it was proper given that the jury had the chance to view the robber on the bank surveillance tape, and because the evidence was otherwise substantial against defendant. Thus, the conviction was affirmed.
• Due Process - Identification Testimony
Keene v. Mitchell, 05-3538 (4/25/08)
> Defendant was charged with multiple murders. At trial, defendant objected to testimony from a witness who identified him from a photo lineup. The witness described the robber to police as having “box, squared hair,” and defendant was the only person in the lineup with such a hair cut. The state court admitted the testimony and defendant was convicted. Defendant lost his state court appeals, and filed a federal habeas petition, which was denied by the district court. Defendant appealed.
* Holding: If a photo lineup is unnecessarily suggestive, the court must consider the reliability of the identification, and weigh the following factors: (1) the witness’ opportunity to observe the suspect; (2) the witness’ degree of attention; (3) the accuracy of the witness’ description of the suspect; (4) the level of certainty of the witness; and (5) the time between the observation and the lineup. In the case, the court held that the witness had ample opportunity to observe the suspect, that she was particularly attentive, that her description was accurate although not detailed, that she was highly certain of the identification, and that she saw the photo lineup shortly after the incident. Thus, even if the lineup was unduly suggestive, the identification was nonetheless reliable. Further, any error was harmless because the evidence of defendant’s guilt was otherwise overwhelming and the identification did not directly bare on defendant’s guilt. Accordingly, the district court ruling was affirmed.
• Due Process - Identification Testimony
Jells v. Mitchell, 02-3505 (8/18/08)
> Defendant was charged with kidnaping and murder. A photo line-up was utilized and defendant was by far the youngest person pictured, and he was the only person portrayed in a jail jumpsuit. An eyewitness identified defendant from the line-up. Defendant was convicted at trial, lost his state court appeal, and filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: A two-step process is utilized in order to determine if a photo line-up procedure violates Due Process. First, the court inquires as to whether the line-up was unduly suggestive of the defendant. If the court makes such a finding, it must inquire as to whether the identification was otherwise reliable considering five factors: (1) the opportunity of the witness to view the perpetrator; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description; (4) the level of certainty of the witness; and (5) the length of time between the identification and the crime. In the case, the court held that the line-up was impermissibly suggestive. Nonetheless, the court found the identification to be reliable because the witness had a good opportunity to view the suspect, he paid close attention, his prior description was accurate, he was certain of his identification, and only eleven days passed between the offense and the identification. Accordingly, the identification did not violate Due Process.
• Due Process - Identification Testimony
Mills v. Cason, 06-2359 (7/10/09)
> Defendant and two accomplices were charged with the brutal assault of several women. Two days after the incident, the two surviving women could not give a description of the defendant or the others, but did pick three pictures out of a six-photo lineup, and defendant’s picture was one of the three. Nine months later, during a codefendant’s trial, a victim was shown defendant’s picture with his name under it. In defendant’s subsequent trial, defendant moved to suppress an in-court identification of him by the witness due to the fact that the witness had seen a picture of defendant with his name on it in the prior trial. The state trial court admitted the in-court identification, defendant was convicted, and his conviction was affirmed on appeal. Defendant filed a federal habeas petition and the district court denied the petition. Defendant appealed.
* Holding: In order to determine whether a pre-trial identification procedure casts an impermissible taint on a subsequent in-court identification, the court must consider whether the procedure was unduly suggestive and, if so, whether the identification was nonetheless reliable. The court analyzes five factors in considering the reliability of the identification: (1) the witness’ opportunity to view the suspect; (2) the witness’ degree of attention; (3) the accuracy of the prior description; (4) the witness’ level of certainty; and (5) the length of time between the crime and the confrontation. In the case, the court first noted that the parties agreed that the single photo with defendant’s picture was unduly suggestive. Regarding the reliability factors, the court found that the opportunity to view and degree of attention were high. There was no prior description, but the court excused that factor because of the extreme trauma the witness was under at the time the police questioned her. The court found that the witness was not certain initially, but had narrowed the pictures down to three, including defendant’s picture. Finally, the court found that the nine month delay would ordinarily weigh against the state. In the balance, however, the court ruled that the state court’s assessment of the claim was not an “unreasonable application” of federal law, as is the standard in a habeas case. Accordingly, defendant’s conviction was affirmed.
• Due Process - Lie Detector Testing
Maldonado v. Wilson, 03-4528 (7/15/05)
> Defendant was charged with murder, and at the state court trial, a police officer testified that he believed the eyewitness to the murder because the witness had been “tested.” The reference was to a lie detector test that the witness had taken and passed. Defendant was convicted, and appealed through the state court system. The state courts held that, although reference to the lie detector test was prohibited by state law, the error was harmless because it was an isolated and vague reference, and the evidence against defendant was otherwise strong. Defendant filed for habeas relief in federal court based upon a violation of his due process rights, and the district court dismissed the petition. Defendant appealed.
* Holding: The court held that admission of the testimony that the witness had been “tested” was not fundamentally unfair, and thus, did not violate the Due Process Clause. The court noted that the Supreme Court has never held that the Constitution requires all states to have rules of evidence precluding testimony about lie detector tests. Therefore, the court found that the state court ruling was not an unreasonable application of federal due process law.
• Due Process - Competency
Filiaggi v. Bagley, 04-3513 (4/14/06)
> Defendant was charged with murder in state court and on the day of trial, the stun belt he was wearing accidently discharged. Before the trial started, defendant was evaluated by a psychologist who found him competent. The psychologist also suggested that defendant was in no state to go to trial and that further evaluation may be warranted. Nonetheless, the trial court proceeded with the trial, and defendant’s two attorneys repeatedly requested additional competency testing. The trial court denied all requests for a further competency evaluation or hearing, and defendant was convicted. Defendant appealed through the state court system and then filed a federal habeas petition claiming that he was incompetent during the trial. The district court denied the petition and defendant appealed.
* Holding: A two judge majority ruled that the state court did not violate clearly established federal law in holding that a further competency evaluation or hearing was necessary. Although the court found that the evidence regarding defendant’s competency was mixed, the court held that the trial court had reasonably relied on its own observations of defendant, the report of the psychologist, and the testimony of a deputy who was guarding defendant. The only evidence showing defendant’s incompetency came from defendant’s two attorneys (one of whom was also a doctor) and the attorneys provided no specific evidence of his incompetency. Accordingly, the district court’s dismissal of the writ was affirmed.
• Due Process - Delay in Resentencing
U.S. v. Sanders, 04-4540 (6/29/06)
> Defendant was originally sentenced to 39 months incarceration for firearms offenses, but after several appeals and a habeas action, the Sixth Circuit concluded that defendant was an Armed Career Criminal and held that the district court must resentence defendant to 15 years in prison. The district court did not resentence defendant to the 15 year sentence until 4 years after the Sixth Circuit decision. During this 4 year time period, the government requested a resentencing hearing on three separate occasions. Upon his resentencing, defendant appealed and argued that his due process rights had been violated.
* Holding: In a two judge majority, the court first held, deciding an open question, that the Sixth Amendment Barker v. Wingo factors for speedy trial violations do not apply to consideration of a delay in resentencing a defendant. The court then held that the appropriate factors to analyze under the Fifth Amendment are (1) the reasons for the delay, and (2) the prejudice defendant suffered as a result of the delay. In the case, the court found that the government had made reasonable efforts to get defendant resentenced, and thus it was not at fault for the delay. The principle reason for the delay was that the district court did not want to give defendant the higher sentence. Further, the court found that defendant could not establish prejudice as a result of the delay. To the contrary, the court held that defendant derived some benefit from the delay: “He was able to reunite with his children and provide a strong role model for them; he was able to meet and marry his current wife and form a relationship with her children, and was able to play a more active role in his community.” Accordingly, court found no due process violation and the 15 year sentence was affirmed.
• Due Process - Judicial Bias
U.S. v. Hynes, 05-2036 (11/7/06)
> Defendant went to trial on a drug conspiracy case and, several times during the course of the trial, the district court interrupted defense counsel to ask him to clarify questions, and instructed him to avoid an argumentative tone, to move on to another topic, and to seek a stipulation of undisputed facts. Defendant was convicted and argued on appeal that the district court’s conduct violated his due process right to a fair trial.
* Holding: Three factors are important to consideration of whether a district judge oversteps her bounds during the course of a trial: (1) the nature of the issues at trial; (2) the conduct of counsel; and (3) the conduct of witnesses. The court found that the district court’s actions did not render the trial unfair because the trial was lengthy and at times required clarification of issues, the court did not show favoritism to either side, it generally permitted the defense to pursue its cross examination strategies, and it gave a proper instruction that nothing it said should give the jury the impression as to how the case should be decided. Thus, the conviction was affirmed.
• Due Process - Judicial Bias
Lyell v. Renico, 04-1106 (12/1/06)
> Defendant was charged in state court with assault with intent to commit murder. During the course of the trial, the judge repeatedly interrupted defense counsel sua sponte in a way that seriously undermined his case, only interrupted the prosecutor to assist his case, stated or implied disapproval of defendant’s case, outwardly expressed disapproval of defense counsel, and inexplicably held defense counsel in contempt in front of the jury. Defendant was convicted and lost his appeals in state court. Defendant filed a federal habeas petition which the district court denied, and defendant appealed.
* Holding: Judicial misconduct may only be characterized as bias or prejudice requiring reversal if it is “so extreme as to display clear inability to render a fair judgment.” In the case, the court held that the trial judge’s actions, taken in the context of the entire trial, rendered a fair trial for defendant entirely impossible. Accordingly, the court reversed the district court’s ruling and vacated defendant’s conviction.
• Due Process - Judicial Bias
U.S. v. Roach, 06-6266 (9/11/07)
> Defendant was a police officer charged, along with his partner, with violating a defendant’s civil rights during a traffic stop. Defendant’s argument at trial was that he was not involved in the stop at all, but that it was potentially another officer. During cross examination of the police chief, defendant’s counsel questioned him about the department’s shift log at the time of the traffic stop. In response to questions from the district court, the chief testified that the “other” officer referenced by the defense was driving in a car that did not match the description given by the victim and that the officer had no partner with him at the time. During the next break, defendant’s counsel objected at side bar to the district court’s questions. Defendant was convicted and he appealed.
* Holding: In evaluating a claim of judicial bias, the court considers three factors: (1) the nature of the issues, including length of trial and complexity, to determine if judicial intervention was needed to clarify what was going on; (2) the conduct of counsel for lack of preparation or obstreperousness; and (3) the conduct of witnesses. In the case, the court held that the district court’s questions were brief, that they revealed no bias, that the court did not express its opinion, and that the questions clarified issues about which the witness gave conflicting answers. Thus, the court found no error in the district court’s questioning of the witness.
• Due Process - Judicial Bias/Fair Trial
U.S. v. Powers, 06-1684 (9/12/07)
> Defendant was charged with drug trafficking. At trial, the district court interrupted defense counsel twenty-six times during cross examination, largely for the purpose of getting the defense to stop asking repetitive and irrelevant questions. Defendant was convicted and he argued on appeal that the district court had violated his right to fair trial through its constant interruptions of his cross examination.
* Holding: In considering whether a district court’s interference with a trial constitutes a violation of a defendant’s right to a fair trial, the court must consider the following: (1) the length and complexity of the trial; (2) whether counsel are “unprepared or obstreperous” such that the facts are muddled; and (3) the conduct of the witnesses. In dealing with problems during the trial, the district court must always “act in a neutral, unbiased demeanor.” In the case, the court stated repeatedly that the district court’s conduct during the trial was “less than ideal,” “not the model of decorum,” and “not exemplary.” Nonetheless, the court ruled that the district court’s interruptions fell within the range of reasonable judicial intervention where defendant’s counsel had asked a wide variety of irrelevant and repetitive questions. Further, the court found that the district court had not exhibited judicial bias toward defendant’s counsel because the court had displayed equal impatience with both the defense and the government, and had given a proper jury instruction that his comments should not affect the verdict. Thus, defendant’s conviction was affirmed.
• Due Process - Ex Parte Communications
U.S. v. Barnwell, 04-2143 (2/27/07)
> Defendant was charged with conspiracy and embezzlement of union assets and went to trial. During the jury deliberations, the government learned through a wiretap on an unrelated matter that one of the jurors was the sister of the target of the unrelated investigation. As a result, the government believed that the juror may be tainted and thereafter engaged in a long series of ex parte communications with the district judge. During the process of these lengthy ex parte communications, defense counsel was kept completely in the dark and made decisions about how to answer juror questions, whether to agree to an Allen charge, and other jury related matters. Also during the process, the district judge met in camera with the jury- foreperson, misstated on the record the reasons behind certain decisions, declared a mistrial, and refused to poll the jury in open court. The case resulted in a hung jury. Defendant was subsequently retried and convicted, and six months after the conviction, the defense learned of all of the ex parte communications from the first trial. Defendant appealed and alleged a violation of his due process rights.
* Holding: Under the Due Process Clause, a defendant has the right to be present at all critical stages of a trial where his absence may frustrate the fairness of the proceedings. Likewise, under the Sixth Amendment a defendant has a right to be present at all critical stages, the right to the effective assistance of counsel, and the right to be tried by a fair and impartial judge and jury. In the case, the court held that all of these constitutional rights had been violated. The court found that the ex parte communications, and the in camera conversations with the jury all served to completely deprive defendant of any semblance of fair deliberations. Because the defense was not advised of even the existence of the ex parte communications until after his conviction in his second trial, the court ruled that the appropriate remedy was to reverse defendant’s conviction and remand the case for retrial.
• Due Process - Preindictment Delay
U.S. v. Atchley, 04-6521 (1/23/07)
> Defendant was charged with manufacturing meth and, shortly before the trial date, the government obtained a second superceding indictment. The new indictment resulted in a delay of the trial date. One week before the new trial date, the government discovered a lab report regarding the meth which it promptly turned over to the defense. Defendant moved to exclude the lab report for failure to disclose it earlier and the district court denied the motion. Upon defendant’s conviction, he appealed and raised for the first time that the delay in obtaining the second superceding indictment required dismissal of his case.
* Holding: In order to obtain a dismissal based upon preindictment (or pre-superceding indictment) delay, a defendant must prove (1) prejudice to her right to a fair trial and (2) that the delay was intentionally caused by the government in order to gain a tactical advantage. The court found no clear error in the district court’s conclusion that the government did not find the lab report until several weeks after the superceding indictment was issued. Thus, the court held that the government did not intentionally withhold the report and cause delay to gain tactical advantage. Accordingly, the court found no plain error and affirmed defendant’s conviction.
• Due Process - Pre-Indictment Delay
U.S. v. Brown, 06-1556 (8/16/07)
> Defendant was being investigated for kidnaping and transporting a minor across state lines for the purpose of sexual activity. The government did not arrest and indict defendant until three years after the offense occurred. Defendant was convicted and argued on appeal that his Fifth Amendment right to due process was violated by the pre-indictment delay.
* Holding: The court first held that the primary guarantee against stale criminal charges is the statute of limitations, which in this case, was ten years. Nonetheless, pre-indictment delay may violate a defendant’s due process rights if he can show that the delay was an intentional device on the part of the government to gain a tactical advantage, and that defendant suffered substantial prejudice as a result. In the case, the court held that defendant had offered no proof that the government intentionally delayed his prosecution. Further, the court found that defendant’s claims that (1) a witness (who was not present during any of the alleged crimes) had died, and (2) that the delay caused defendant to forget what happened, were insufficient to show substantial prejudice. Thus, the conviction was affirmed.
• Due Process - Pre-indictment Delay
U.S. v. Schaffer, 09-3053 (11/12/09)
> Defendant was charged with conspiracy to commit computer fraud based on conduct that occurred five years prior. Defendant moved to dismiss the indictment based on pre-indictment delay and claimed that his memory had faded over the years, thus hindering his defense. Further, defendant argued that prejudice should be presumed for lengthy delays, as it is in the Sixth Amendment context. The district court denied the motion, defendant was convicted, and he appealed.
* Holding: In order to establish that dismissal is appropriate based on pre-indictment delay, the defendant must show substantial prejudice to her right to a fair trial and that the delay was an intentional device on the part of the government to obtain a tactical advantage. In the case, the court found no evidence of actual prejudice to defendant’s defense. Defendant’s loss of memory of the events did not amount to a showing that he was unable to assist in his own defense or that specific evidence had been lost or destroyed. Additionally, the court declined to apply the presumption of prejudice applicable to lengthy delays in the Sixth Amendment context. Accordingly, the district court’s ruling was affirmed.
• Right to Grand Jury Indictment
Short v. U.S., 05-6520 (12/28/06)
> Defendant was charged with conspiracy to distribute 500 grams of cocaine. As part of the plea negotiations, defendant and his counsel agreed that defendant would actually plead guilty to 5000 grams of cocaine, an amount that triggered a 10 year mandatory minimum. At the plea hearing, defendant and his counsel consented to the amendment of the indictment, agreed to the factual predicate establishing that the amount exceeded 5000 grams, and were advised by the district court of the increased penalty. The district court did not advise defendant of his right to be re-indicted by the grand jury. At sentencing, the district court imposed the mandatory 10 year minimum sentence. The sentencing guidelines for the offense would have provided a sentence lower than the mandatory 10 year minimum. Because defendant waived in the plea agreement the right to challenge any aspect of his case other than the effectiveness of his counsel, defendant did not appeal, but instead filed a habeas petition claiming that his attorney was ineffective. The district court denied the petition and defendant appealed.
* Holding: The court held that the question of the attorney’s effectiveness essentially turned on whether a defendant can waive his right to require re-indictment by the grand jury and, if so, whether the plea hearing effectively waived that right. First, the court held that, at least in the context of a plea hearing to an amended indictment, a defendant may waive his right to grand jury re-indictment. Second, the court held that defendant’s plea hearing effectively waived his right to re-indictment. The court noted that the district court discussed the amendment to the indictment in open court with defendant and his counsel and neither objected, that the district court advised defendant of the enhanced penalty under the amended indictment, and that defendant admitted to the factual predicate supporting the amendment. Under these circumstances, the court found the waiver sufficient, even though the district court did not specifically advise defendant of his right to re-indictment by the grand jury. Thus, the court held that defendant’s counsel was not ineffective and affirmed the conviction and sentence.
• Due Process - Right to Indictment
U.S. v. Thompson, 06-6233 (2/11/08)
> Defendant pled guilty to drug trafficking and carrying a firearm in relation to drug trafficking. While defendant’s indictment charged him only with “carrying and using” the firearm, the codefendant was charged in a separate count with carrying and discharging a different firearm. At sentencing, the district court imposed the 10 year mandatory minimum sentence to defendant for the codefendant’s discharge of the other firearm. Defendant appealed.
* Holding: The court held that the district court’s application of the 10 year mandatory sentence to defendant violated defendant’s due process rights to be indicted by the grand jury and his Sixth Amendment right to fair notice of the charge against him. Specifically, because the codefendant was charged with discharging a gun, and defendant was charged only with carrying and using a separate gun, the indictment failed to put defendant on notice that he could be held liable for the codefendant’s gun, or that he could be responsible for the discharge of the firearm. The court emphasized that the government could simply have indicted both defendants with a general charge under 18 § 924(c) in both counts, without reference to a specific gun or a discharge. But because the indictment did make such references, defendant’s rights to fair notice were deprived and his sentence was vacated.
• Due Process - Pretrial Publicity
Foley v. Parker, 04-5746 (3/22/07)
> Defendant was charged in state court with six murders and on the eve of trial his attorney moved for a change of venue based upon prejudicial pretrial publicity. The state court denied the motion and defendant was convicted of two murders and sentenced to death. Defendant lost his state court appeals and then filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: If pretrial publicity would prejudice a defendant’s right to a fair trial, a change of venue is appropriate. The prejudice ensuing from pretrial publicity may be either presumptive or actual. Presumptive prejudice arises from pretrial publicity where “an inflammatory, circus-like atmosphere pervades both the courthouse and the surrounding community.” Actual prejudice is determined by a “searching voir dire of prospective jurors” and is established where there is a “community-wide sentiment . . . against the defendant.” In the case, the court found neither presumptive nor actual prejudice to defendant as a result of pretrial publicity. Specifically, although many of the 98 prospective jurors had heard about the case, some of whom had opinions about defendant’s guilt, the court found that the jury expressed its views that it could set aside what they had heard and decide the case based upon the evidence. Accordingly, the trial court ruling was affirmed.
• Proof Beyond a Reasonable Doubt
U.S. v. Ayoub, 06-1610 (8/16/07)
> Defendant was charged with being a felon in possession of a firearm and with possession of marijuana with intent to distribute. Prior to trial, defendant entered written stipulations with the government indicating that defendant had a prior felony conviction on his record, that the firearm had traveled in interstate commerce, and that the drugs were, in fact, marijuana. At the close of the trial, the district judge did not enter the stipulations into evidence. The court did, however, instruct the jury regarding the prior-felony and interstate-commerce stipulations. Upon defendant’s conviction, he appealed and argued that neither of the offenses could have been proven beyond a reasonable doubt due to the failure to introduce the stipulations into evidence.
* Holding: The court held that, where parties enter written stipulations regarding an element of an offense, the government is relieved of its burden of proving that element. Answering an open question in the Sixth Circuit, the court held that where a district court instructs a jury as to the existence of a stipulation between the parties, the element is considered to be proven beyond a reasonable doubt, regardless of whether the stipulation is actually provided to the jury. Thus, conviction for being a felon in possession was affirmed. Regarding the marijuana charge, the court found that other evidence established that the drug was marijuana, so the failure to enter the stipulation or instruct the jury about it did not affect the trial outcome. Defendant’s convictions were accordingly affirmed.
• Due Process-Sentencing-Confidential Info.
Stewart v. Erwin, 05-4635 (10/9/07)
> Defendant was convicted in state court of two counts of sexual battery. At sentencing, the state court considered victim impact statements that were not shared with defendant. Defendant argued on his state appeal that he was denied due process by the court’s refusal to provide him with the victim impact statements. Upon losing his state court appeal, defendant filed a federal habeas petition. The district court denied defendant’s petition, but ordered that the state court produce the victim impact statements under seal for federal court review. The state court refused to produce the statements. Defendant appealed the denial of his petition.
* Holding: In a habeas petition, the federal court may only reverse a state court ruling if it is contrary to clearly established federal law constitutional law. In the case, the court first held that no federal appeals court had ever held that the Due Process Clause requires that all materials relied upon by a trial court in sentencing a defendant be turned over to the defendant. The only Supreme Court precedent on the subject requires the production of derogatory sentencing information relied upon by the trial judge where such information was shown to be materially false. While the court found defendant’s argument for a broader due process requirement appealing, the court was constrained, in the context of habeas review, to determine that no clearly established federal case law required such a broad interpretation.
Second, the court held that the state court’s failure to produce, under seal, the documents in question, left the court unable to effectively review defendant’s additional claim that the state court may have relied on materially false information. Defendant pointed to facts utilized by the state court at sentencing, such as the number of victims and the length of defendant’s activities, that were not supported by the documents that were disclosed by the state court during habeas review. Thus, the court concluded that there was at least a possibility that the state court relied on false information, in violation of Supreme Court precedent. Accordingly, the court remanded the case to the district court with instructions to grant the habeas petition unless the state court produced the ordered victim impact statements within 45 days.
• Due Process - Exclusion of Evidence
U.S. v. Stuart, 06-2279 (11/7/07)
> Defendant was charged with drug trafficking and possessing a firearm in furtherance of drug trafficking. Defendant argued in a pretrial motion to suppress that the search warrant to search his residence was invalid because it was actually issued two days after the search. The government countered that the date mix-up on the warrant was due to a computer error and it offered substantial evidence to show that the warrant was issued the same day as the search. The district court denied defendant’s motion. At trial, defendant attempted to argue the issue to the jury, and requested a jury instruction on the subject. The district court declined to provide the instruction and, upon his conviction, defendant appealed.
* Holding: The court held that a district court is not required to present juries with factual questions bearing on the admissibility of evidence obtained during a criminal investigation. Long-standing precedent clearly requires that the court, not the jury, decide such issues. Accordingly, the district court ruling was affirmed.
• Due Process - Denial of Continuance
U.S. v. Garner, 06-3288 (11/7/07)
> Defendant was charged with car jacking and using a firearm during a crime of violence. On the day of trial, the government disclosed to defendant the cell phone records from the victim’s phone, which had been used by the robbers during the car jacking. Defendant moved for a continuance to investigate the records, and the district court denied the request. Defendant was convicted and he appealed.
* Holding: In order to establish a due process violation in the denial of a continuance, a defendant must show actual prejudice to the defense. Actual prejudice may be demonstrated where a continuance would have made “relevant witnesses available or added something to the defense.” In the case, the court held that defendant and his attorney could not have possibly investigated the cell phone records and effectively handled the one day trial at the same time. The government admitted that it had difficulty tracking down the names that went with the cell phone numbers on the records, and the government had the records for a week before trial. Further, the continuance would have added something to the defense because investigation into the records would had provided critical impeachment evidence in order to cross examine a key government witness. Accordingly, the court held that the district court’s denial of the continuance amounted to a due process violation warranting a reversal of the conviction and a new trial.
• Equal Protection
U.S. v. Nichols, 06-5862 (1/15/08)
> Officers observed a group of people congregating around a car, and the individuals dispersed upon the officers’ arrival. As a result, the officers ran a license check on the car, and then a warrant check for the car owner. The check showed that defendant had an open felony warrant. The officers approached and arrested defendant based upon the open warrant. Upon subsequently finding a gun, defendant was charged with being a felon in possession of a firearm and he moved to suppress the evidence. Defendant claimed that the officer’s violated his right to equal protection by running the warrant check upon the sole basis that he was black. The district court denied the motion, and defendant appealed.
* Holding: In order to establish a violation of the Equal Protection Clause, a defendant must show purposeful discrimination. In making this showing, defendant may rely on inferences from statistical evidence of the disparate impact of a law or government action on a certain race. If defendant makes a prima facie showing of discriminatory purpose, the government must identify a race-neutral reason for its actions, or show a compelling government interest justifying the action. In the case, the court held that defendant had offered no evidence of purposeful discrimination, and that the statistical evidence offered by defendant – one-third of young black men are involved in the justice system – was irrelevant. Thus, no discriminatory purpose was shown. Additionally, the court opined that suppression of evidence would not be the appropriate remedy for an equal protection violation in the running of a license tag and warrant check (actions which do not implicate the Fourth Amendment). Instead, a defendant’s remedy would be a civil action under 42 USC § 1983. Accordingly, the district court’s ruling was affirmed.
• Due Process - Involuntary Medication
U.S. v. Green, 06-6186 (7/16/08)
> Defendant was charged with drug trafficking and the district court determined that he was incompetent to stand trial. Defendant was committed to the custody of the Bureau of Prisons to be restored to competency, but refused to participate with the recommended treatment plan which included the administration of medication. The government petitioned the district court to allow the use of forced medication to restore defendant to competency. After holding a hearing, the district court ruled that administration of involuntary medication was appropriate. Defendant filed an interlocutory appeal.
* Holding: The Supreme Court has held that involuntary medication does not violate due process if the defendant poses a risk of harm to himself or others. Where a defendant does not present such a risk, the proper standard to apply was laid out by the Supreme Court in Sell. In such a case, the government must present clear and convincing evidence to show the following: (1) an important governmental interest; (2) that involuntary medication will “significantly further” that interest; (3) that involuntary medication is “necessary;”and (4) that administration of the drugs is “medically appropriate” for the defendant. In the case, the court held that the government interest was important, making reference to the fact that the offenses for which defendant was charged carried a mandatory minimum of 10 years up to life in prison. Further, the court ruled that the medication was necessary and would further the governmental interest, and that it was medically appropriate for defendant. Accordingly, the district court ruling was affirmed.
• Due Process - Involuntary Medication
U.S. v. Payne, 07-5592 (8/28/08)
> Defendant was charged in an indictment with drug trafficking, firearms violations, and multiple murders. He was found incompetent to stand trial, and involuntarily medicated in order to restore him to competency. Defendant filed a motion requesting an evidentiary hearing to determine whether the government could continue its involuntary medication. The district court determined that continued involuntary medication was appropriate and defendant filed an interlocutory appeal.
* Holding: In analyzing the four factors outlined in the Sixth Circuit’s decision in Green (See supra), the court found that continued medication was appropriate. Specifically, the court ruled that, although no progress had been made toward defendant’s competency through the use of the medication, the doctors treating defendant believed that there was a “substantial probability” that through increased dosages, changing medications, and adjustments to medications defendant would attain competency. Accordingly, the court held that continued involuntary medication did not violate defendant’s due process rights and the district court ruling was affirmed.
• Due Process - Overbreadth/Vagueness
U.S. v. Paull, 07-3482 (1/9/09)
> Defendant was charged with possession of child pornography and filed pretrial motions challenging the statute on overbreadth and vagueness grounds. Defendant claimed that he could not defend his case because asking any expert to view the images would necessarily violate the prohibition on possessing child porn images, and further that the statute was vague because defendant “lacked the capacity to know whether the charged items contain actual minors.” The district court denied the motion, defendant entered a conditional plea, and he appealed.
* Holding: The court held first that defendant made no showing that he was unable to obtain an expert or defend his case as a result of the fear of prosecution for viewing the child porn images. Thus, defendant’s claim had no merit. Second, the court held that the statute was not unconstitutionally vague. The court ruled that the vagueness doctrine requires that a person be able to read a statute and determine what is illegal. In contrast, the court found that defendant’s vagueness claim was that, knowing what was illegal, he could not “distinguish between the prohibited and the permitted.” This question, the court stated, is addressed “not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.” Thus, defendant’s conviction was affirmed.