The Zealous
Advocate
Newsletter for the Defense
Summer 2006
The Defender’s Message
will cap early; therefore, Eastern District panel attorneys ought to respond to our announcement as soon as
Donna Stiles sends it.
Besides these seminars, I encourage all panel attorneys
to call us whenever you have a question or concern
about a particular federal criminal case you are working
on. The education process is reciprocal because you
may have come across an issue we have not encountered. We want to help make you better federal criminal defense practitioners.
ducating our District’s panel attorneys has been
a priority of mine since becoming Federal Public
Defender six years ago. We who practice federal
criminal defense on a daily basis have considerable
institutional knowledge which should be shared with
panel attorneys. The CJA
panel attorney seminars we
present each year are
extremely important in this
education process. We had
61 attorneys from our
District attend our April
28, 2006 panel attorney
seminar in Raleigh, and my
thanks go out to all who
attended and made this a
Prof. William Woodruff on Impeachment by Prior Convictions
successful event. Many
thanks also to all of our presenters, especially United
States District Judge James C. Dever III and United
States Magistrate Judge James E. Gates.
We have begun work
seminar which will
ber 12 and 13,
Runner, Wrightslina. Please mark
calendars and plan
Our fall seminar has
reputation that we
attending from all
North Carolina,
and West Virginia.
on our annual two-day fall
be held this year on Octo2006 at the Blockade
ville Beach, North Carothis date on your
to register early.
gained such a
have attorneys
three Districts in
South Carolina,
Our enrollment
We hope that this Newsletter again
provides a good communication tool
for you. We have new Editors for
our Newsletter, and I encourage you
to contact Vidalia Patterson and
Laura Sutton, attorneys with our
office, or me, with your input.
Thomas P. McNamara
Federal Public Defender
The Zealous Advocate
TABLE OF
CONTENT
FR
S
OM THE DE
FEN
DER
The Defender’s
Message 1
Panel Attorney
Reminder 2
PRACTICE T
IP
S
Working with
Interpreters 2
Disclosing PS
R Information
3
From Recent Se
minars 4
SPO
TLIGHT
ON THE
Fourth Circuit:
Highlights and
Update 5
Supreme Court
: Highlight an
d Update 8
LOCAL NEW
S
Eastern Distric
t, FPD and Pa
nel 10
Senior Appellate Attorney, Alan DuBois on Sentencing Guidelines Update, FPD Spring Seminar 2006
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
Important Panel Attorney
Reminder
f you expect your legal fee will exceed the statutory
maximum ($7000 for a felony case), you must consult
with the assigned judge as the case progresses. Please
see my memorandum to all CJA Panel Attorneys dated
July 22, 2005 and emailed again to all panel attorneys
on June 5, 2006. You must comply with this memorandum. Should you have any questions about panel
attorney fees, please contact Donna Stiles at 919-8579085. - Tom McNamara, Federal Public Defender
The Zealous Advocate
Working with Interpreters
t is a daunting task to walk into a meeting with a
client facing a language barrier. Thankfully, an interpreter can interpret our English language into whatever target language our clients may speak in order to
facilitate a conversation.
However, qualified interpreters are few and far
between within North Carolina. For example, there
was only a 21% passage rate for the 2001 North
Carolina State Court Interpreter Exam. Therefore, it
is important to make sure that the interpreter that is
used is certified (see
http://www.nccourts.org/Citizens/CPrograms/Foreig
n/Directory.asp#links).
The following guidelines may be helpful for gaining
the most from an interpreter:
Preparing the Interpreter
1. Ask if the interpreter knows the non-English speaker
or has any interest in the outcome of the case.
2. Give the background information about the client (i.e.
where client is from, how long client has been in the
United States, if client speaks some English, education,
speech/hearing impediments, etc.)
3. Brief the interpreter on the context of the case, mentioning any specialized terminology that may arise. Provide or be prepared to provide the interpreter with names,
addresses, amounts, nicknames, and other specific information about the case.
4. Provide copies of any documents that will be referred
to during the case.
5. Inform the interpreter of any emotional or mental
problems that the client may have.
6. Establish times that the interpreter’s services will be
needed (i.e. estimated length of stay).
Preparing Your Client
Interpreted Proceedings
1. Always speak in first person (i.e. avoid saying “tell
him” or “tell her,” simply maintain a conversation as
usual between yourself and your client).
2. Do not raise your voice or use exaggerated hand
gestures.
3. Avoid side conversations with the interpreter.
4. Avoid asking the interpreter to perform duties that
The Zealous Advocate
are outside the scope of interpreting.
5. Do not expect the interpreter to be able to translate
documents.
6. Do not expect the translator to be able to translate
documents on the spot.
7. Watch your rate of speed during the proceedings when
they are interpreted simultaneously.
8. Do not allow more than one person to speak at one
time.
9. Avoid double negatives and complex sentence structures.
10. Avoid asking the interpreter for his or her opinion.
11. Avoid cultural phrases (i.e. “yada, yada, yada”).
12. Avoid acronyms and jargon.
13. Do not let the interpreter’s presence change your role.
1. Ask if the client knows the interpreter or has any
knowledge about the interpreter.
2. Explain to your client the role of the interpreter (i.e.
only there to interpret, not to give advice, and will interpret everything that is said).
3. Instruct your client to speak directly to you, to the
judge, and not to the interpreter.
Justice is a certain rectitude of mind whereby a man does what he ought
to do in circumstances confronting him.- Saint Thomas Aquinas
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
2
4. During a hearing, instruct your client to speak
loudly, so that everyone can hear him or her.
5. Instruct your client to wait until the interpreter is
finished interpreting before answering a question.
6. Instruct your client to listen to the interpretation
even if the client believes that he or she may understand the English question or comment.
7. Provide copies of translated materials whenever
possible.
In the end, it all comes down to having a qualified
interpreter and preparing that interpreter as well as
your client. For more detailed information on working with interpreters, please contact Laura Sutton at
(252) 830-2620 or [email protected], or
Javier Y. Castillo at (252) 347-5427 or
[email protected].
Thanks to Javier Y. Castillo, Jr., President of Castillo
Language Services, Inc. for the information contained in
this article.
The Zealous Advocate
Disclosing Information
from Your Client’s PSR
s discussed at this Spring’s Criminal Practice
Seminar, there are times when you might feel that
disclosing information from your client’s Pre-Sentence
Report (PSR) is necessary for the preparation of the case.
In our office, this most recently arose when a psychologist
who was evaluating a client requested to see a copy of the
PSR. In the Eastern District of North Carolina, the
disclosure and use of such materials is governed by Local
Rules 32.1 and 32.2. When asked about what tips to
give when it comes to disclosing a PSR, Joseph Craven,
who currently sits on the Local Rules Subcommittee
studying this issue, responded as follows:
The issue of disclosing PSRs and Local Rules 32.1
and 32.2 has not yet been finally resolved. One of
The Zealous Advocate
the things we (the Local Rules Committee and the
Criminal Rules Subcommittee therein) are awaiting is
some feedback from the Administrative Office of the
US Courts' General Counsel. Jim Johnston, of the
EDNC Probation Office, has sought some guidance
from their general counsel, but has not received a
response.
That being said, what do we do now? Or what advice
or guidance can we give to practicing lawyers? Good
question, and the answer is still somewhat gray, yet
nonetheless moves us downstream a little bit. As you
know, the issue of disclosing PSRs has come up most
recently in the context of the defense attorney wanting to share the PSR with an expert (e.g. psychologist
or psychiatrist). Chief Judge Flanagan's April 7, 2006
Order in United States v. Marcus Ramon Brown,
7:05-CR-90-FL states that the Court authorizes the
release of pertinent information contained in the
offender characteristics section of the report to aid the
expert witness, and that information may be provided
to an expert by counsel orally or in written summary
form.
To the extent that we can rely on this case as precedent, I think defense lawyers can disclose portions of
the PSR to experts orally or in summary form, as may
be necessary for the expert's analysis. The main
prohibition for defense attorneys is disclosing the
entire report to a third party. The PSR, of course, is a
sealed document prepared for the Court. The report,
even though it is all about the client, is not prepared
for us or the prosecution. The PSR is prepared for the
Court, and is maintained by the Court and the Probation Office. The report is generated with the idea of it
remaining confidential. For example, when family
members or other third parties are interviewed as
sources of information for the report, they are told
that what they say will be held in confidence. Likewise, there may be information in a PSR about people
who cooperated or provided information on the
client-defendant. The confidentiality also protects our
client's general information. In short, the Court and
the Probation Office want to protect the report and
the confidential information within. Disclosure of
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
3
large portions of the PSR should be pre-approved by
the Court upon motion of the defendant.
Many thanks to Joe Craven for his contribution to this
column. Joe has kindly offered to talk with anyone who has
questions or a particular issue relating to these rules. He
can be reached at (919) 856-4236 or email him at
[email protected]. If you have a practice tip to share or
know of someone who does, contact the newsletter editors,
Vidalia Patterson or Laura Sutton (contact information
herein). Please include a brief description of the tip.
Verdict Sheets
At our Spring, 2006 Federal Criminal Practice Seminar,
Judge Dever gave us a reminder worth mentioning
concerning the verdict sheet. During a closing argument, show your jury the verdict sheet, and teach them
what you want them to do with it in their deliberations
while making your closing argument.
Thanks to Judge Dever for this Practical Tip.
Sentencing Guideline Tips
The Zealous Advocate
Extremism in the defense of liberty is no vice. ...
Moderation in the pursuit of justice is no virtue. –
Barry Morris Goldwater
From Recent Seminars
Website Recommendations
To keep updated regularly on the Fourth Circuit we
recommend:
• Website: www.ca.uscourts.gov
Register to receive daily opinions.
• Blog: circuit4.blogspot.com
For criminal sentencing guidelines and capital
sentencing, we recommend:
• Sentencing Law & Policy (Berman’s Blog):
sentencing.typepad.com
For information on Gangs, we recommend:
• Interpreting Gang Tattoos:
www.highbeam.com/library/docFree.asp?docid=1Y1:
92883247&key=0C177A56741D156F130306180469
06167D077C0D7F70720C7609
• Hispanic Gangs:
www.ncgccd.org/pdfs/pubs/HispanicGangs.pdf
For an article contrasting Congress's reaction to the
meth epidemic and its response to crack, we recommend:
• www.c-span.org/pdf/CQ_060506.doc
1. Before you attempt to calculate a guideline or defend
a guideline, read each guideline and the application
note in its entirety every time.
2. When the government cites case law to support the
application of a guideline, make sure the case stands for
the proposition that the guideline must be applied or
that the particular guideline must be applied in all such
cases. If it does not, you may argue that an alternative
application of the guideline that benefits your client is
also within the court’s discretion.
3. Make sure to check the Sentencing Commission
statistics on their website–the statistics may be in
contradiction to the policy set forth and you can make
an argument for this at sentencing.
4. Remember to review § 1B1.3 on relevant conduct
for every case.
5. Always get the original, certified criminal record for
each charge to determine criminal history and predicate
felony convictions.
6. Remember to freeze all of the client’s state
charges–the date of conviction is what counts.
7. For assistance with grouping, see Federal Sentencing
Guidelines Handbook, Roger Haines (Thomson West,
2006).
Thanks to Alan DuBois and Anne Blanchard for the
information contained within this Practical Tip.
Without justice courage is weak. Benjamin Franklin
Thanks to Alan DuBois, Stephen Gordon, and Melanie
Fisher for the information contained within this Practical Tip.
The Zealous Advocate
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
4
United States Probation Sentencing Guidelines
Seminar
The U.S. Probation Office recently held its annual
Sentencing Guidelines Training Seminar on May 5,
2006 at the Terry Sanford Federal Building in
Raleigh. The seminar covered numerous topics,
including: guideline updates, guideline applications,
relevant conduct, the fifteen adjustments, criminal
history, plea agreements, sentencing procedures, local
rules, departures, violations of probation and supervised release. The seminar is held annually, near the
first of June. If you are interested in attending the
next seminar, please contact Senior United States
Probation Officer John A. Wasco at
[email protected] for more information.
Thanks to John A. Wasco for the information contained in
this Practical Tip.
The Zealous Advocate
Spotlight On The...
Fourth Circuit
HIGHLIGHTS
From the Spring 2006 Criminal Practice Seminar, as
summarized by Diana Pereira and Vidalia Patterson.
Please contact Vidalia Patterson to request a complete copy
of the Fourth Circuit and Supreme Court Update distributed at the Spring Seminar.
United States v. Green, 436 F.3d 449 (4th Cir. 2006)
(Niemeyer, J.) (D. Md.) Sentencing Guidelines
presumptively reasonable- Sentences imposed with
the Sentencing Guidelines range are presumptively
reasonable. Where District Court declined to
sentence Defendant as a career criminal, and applied a
sentence below the guidelines range, it erred by failing
to correctly apply U.S.S.G. § 4B1.1.
United States v. Johnson, 445 F.3d.339 (4th Cir. 2006)
(Wilkinson, J.) (E.D.N.C.) Sentencing Guidelines
presumptively reasonable- The advisory Guidelines
The Zealous Advocate
are presumptively reasonable because they are the
product of over twenty years of legislative and administrative sentencing policy, they embody many of
Congress’s objectives in 18 U.S.C. § 3553(a), and they
foster an environment of judicial fact-finding “that
invites defendants to raise objections and requires
courts to resolve them.” A sentencing court need not
make individual findings on each of the § 3553(a)
factors; it is sufficient for a court to state that it has
considered all of the factors.
United States v. Eura, 440 F.3d 625 (4th Cir. 2006)
(Hamilton, J.) (E.D. Va.) Crack-powder disparity- A
sentencing court may not vary from the 100:1 crackpowder ratio legislated by congress and substitute its
own ratio. To establish reasonableness of a sentence, a
District Court need not explicitly discuss every statutory factor on the record; rather the record must reflect
that the court adequately and properly considered the
statutory sentencing factors under 18 U.S.C. §
3553(a).
United States v. Milam, 443 F.3d 382 (4th Cir. 2006)
(Niemeyer, J.) (S.D.W.Va.) USSG § 6A1.2(b) Presentence Report- Facts that increase a defendant's
maximum sentence are essentially elements of the
offense, and a defendant cannot waive Sixth Amendment rights by failing to object to those facts in the
PSR. Rule 32(i)(3)(A), USSG § 6A1.2(b), and prior
Circuit law (see United States v. Terry, 916 F.2d 157,
162 [4th Cir. 1990]) violated prohibitions on burden
shifting by forcing the defendant to disprove allegations in the PSR.
UPDATE: APRIL-JUNE 2006
Many thanks to our summer intern, Lauren Brennan, for
her assistance in summarizing cases for the Fourth Circuit
Update.
Fourth Amendment
United States v. McQueen, 445 F.3d 757 (4th Cir. 2006)
( J. Luttig) (E.D. Va) 4th Amendment Reasonable
Suspicion- Defendant was convicted by a jury of
being a felon in possession of a firearm. Based on a
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
5
a reliable informant call about a suspicious vehicle,
police approached Defendant’s running vehicle parked
in a lot, wherein Defendant appeared to be asleep. He
was asked to exit his vehicle and consent to a search,
after which a handgun was found in the vehicle.. The
District Court did not err by failing to suppress the
handgun. Based on the circumstances surrounding the
search, the officers had reasonable suspicion for a Terry
stop.
United States v. Currence, 446 F.3d 554 (4th Cir. 2006)
( J. Shedd) (E.D. Va) 4th Amendment; Search Incident to Arrest- Defendant was under indictment for
possession of crack cocaine with intent to distribute
and possession of cocaine with intent to distribute in a
school zone. Government appealed a court order
suppressing The search of a bicycle handlebar was
permissible as a search incident to a lawful arrest as the
defendant was on the bicycle when law enforcement
officers first encountered him and it was within the
defendant’s immediate control.
Fifth and Sixth Amendments
United States v. Smith, 2006 WL 1604123 (4th Cir.
2006) ( J. King) (W.D.N.C.) Cross Examination
Rights- Defendant was convicted by a jury of conspiracy to distribute crack and possession with intent
to distribute crack. Although the District Court erred
by preventing the defendant from cross examining
prosecution witnesses about the destruction of physical
evidence (the crack), the error was harmless due to the
strength of the prosecution’s case.
Federal Rules of Evidence
United States v. Williams, 445 F.3d 724 (4th Cir. 2006)
( J. Traxler) (E.D. Va) Fed. R. Evid. 403- Defendant
was convicted by a jury of being a felon in possession
of a firearm and ammunition. The District Court did
not err in permitting circumstantial evidence connecting Defendant to an uncharged murder. The probative
value of this evidence was not substantially outweighed
by danger of unfair prejudice. Evidence of a
defendant’s silence in response to a question about
whether he committed a murder was not an adoptive
The Zealous Advocate
admission that could be introduced as an admission of
a party opponent; however it could be introduced if not
offered to prove the truth of the matter asserted.
United States v. Smith, 2006 WL 1604123 (4th Cir.
2006) ( J. King) (W.D.N.C.) Fed. R. Evid. 607 &
611(b)- Defendant was convicted by a jury of conspiracy to distribute crack and possession with intent to
distribute crack. The rules of evidence authorize the
cross-examination of witnesses on matters affecting
their “credibility.” Thus, the District Court erred by
preventing the defendant from cross-examining prosecution witnesses about the destruction of physical
evidence (the crack).
Plea Agreements
United States v. Hartwell, 2006 WL 1412393 (4th Cir.
2006) ( J. Niemeyer) (E.D. Va.) Rule 35(b) MotionDefendant pled guilty to aiding and abetting murder
for hire resulting in death. Defendant negotiated a plea
agreement in which he agreed to assist the government
in future and ongoing investigations. In exchange, the
government agreed to not seek the death penalty and
reserved the option to file a 35(b) motion. Government filed the 35(b) motion to toll the one year statute
of limitations, but stated Hartwell was in the midst of
cooperating. There were some problems with
Hartwell’s cooperation, and when the court ordered a
memorandum in support of the motion, the government recommended his sentence be reduced from life
to 38 years. Hartwell filed a motion for an evidentiary
hearing alleging the government breached the plea
agreement and attached an affidavit. The government
then filed a motion to withdraw its Rule 35(b) motion,
stating accusations in Hartwell’s affidavit were false.
Hartwell admitted the statements in his affidavit were
false; the court heard arguments on the government’s
motion to withdraw and granted it. The Appeals Court
held the language in the plea agreement giving the
government “sole discretion” to file a Rule 35(b) motion
also includes the discretion to withdraw it, absent bad
faith or improper motives.
To no man will we sell, or deny, or delay, right or justice.
[Lat., Nulli vendemus, nulli negabimus aut differemus, rectum au justitiam.] Magna Carta, clause 40
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
6
Sentencing
United States v. Williams, 444 F.3d 250 (4th Cir. 2006)
( J. Hamilton) (D. S.C.) Booker- Defendant pled
guilty to conspiracy to possess counterfeit securities.
Based on a number of factors, including loss amount,
the Guideline sentencing range was 77 to 96 month.
Although the statutory maximum was 60 months, the
District Court, based on defendant’s Blakely objections, imposed a 36 month statutory sentence. Both
parties appealed and the case was remanded for
resentencing. At resentencing, the District Court
imposed the statutory maximum term of 60 months.
The Fourth Circuit found that applying the remedial
post-Booker “advisory” Guideline scheme to persons
whose conduct took place prior to Booker does not
violate due process or ex post facto doctrines. Moreover, a sentence that exceeds an original pre-Booker
sentence is not presumptively vindictive. Finally, the
court held that the 60 months sentence was reasonable.
United States v. Davenport, 445 F.3d 366 (4th Cir.
2006) ( J. Wilkins) (D. Md.) Reasonableness- Defendant pled guilty to fraudulent use of an access device.
At sentencing, the PSR calculated the advisory
Guidelines range as 30-37 months; however, based on
such factors as Defendant’s role in the offense, the
court sentenced him to 120 months’ imprisonment.
The requirement that a District Court must give a
Defendant notice of its intent to impose an aboveGuidelines sentence survives U.S. v. Booker. Where
the advisory sentencing range is calculated at 30-37
months, the District Court ‘s imposing a 120 months
sentence is too great a sentence.
United States v. Montes-Pineda, 445 F.3d 375 (4th Cir.
2006) ( J. Motz) (E.D. Va) Reasonableness- Defendant pled guilty to unlawful reentry after deportation
following aggravated felony conviction and was
sentenced to 46 months’ imprisonment, a term within
a properly calculated advisory Guidelines range. The
Fourth Circuit found that it has jurisdiction to review
a within-Guidelines range for reasonableness and that
Defendant’s sentence was reasonable.
The Zealous Advocate
United States v. McQueen, 445 F.3d 757 (4th Cir. 2006)
( J. Luttig) (E.D. Va) Armed Career Criminal- The
ACC “interstate nexus” jury instruction given at
defendant’s trial fairly stated the controlling law in U.S.
v. Gallimore that the nexus is proven by showing the
gun was manufactured outside the state in which it was
possessed. Because the Defendant qualified for an
ACC enhancement, he should have been sentenced as
such.
United States v. Revels, 2006 wl 1134148 (Wilksinson)
(E.D.N.C.) USSG § 2K2.1(a)(2); Pre-Sentence
Report- Defendant robbed a convenience store at
gunpoint and pled guilty to being a felon in possession
of a firearm. He was sentenced pre-Booker and his
Guideline calculation included a four-level increase
pursuant to USSG § 2K2.1(a)(2) for possessing the
firearm in connection with another felony. He was
sentenced at 120 months, which was both the top of
the Guideline range and the statutory maximum
penalty. The sentencing court announced an alternate
sentence of 120 months in accordance with U.S. v.
Hammoud. Under U.S. v. Milam, defendant’s failure to
object to facts that supported the enhancement was not
a Booker admission and his maximum guideline
sentence should have been 115 months. However,
because the district court properly announced an
alternate sentence of 120 months, any Sixth Amendment error was harmless.
United States v. Allen, 446 F.3d 522 (4th Cir. 2006) ( J.
King) (S.D. W.Va.) Career Offender; Adult
Convictions;§ 4B1.2- Defendant pled guilty to
conspiracy to distribute crack cocaine and was
sentenced as a career offender. Defendant objected to
the career offender enhancement conviction arguing
that, because his three prior drug offenses were committed when he was 17 years old, they were not adult
convictions and could not serve as predicate felonies.
Because Defendant was convicted in N.C. Superior
Court, which does not handle juvenile convictions, he
must have been convicted as an adult. Moreover, the
qualification for career offender status is based on the
maximum sentence that could be imposed, and
Defendant’s prior convictions had maximum sentences
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
7
exceeded one year. Thus, they are felonies under
USSG §4B1.2. Finally, any error in the District
Court’s allowing the government to proffer what the
probation would testify to regarding the prior convictions did not affect Defendant’s substantial rights, and
no remand was necessary.
United States v. Shatley, 448 F.3d 264 (4th Cir. 2006)
( J. Niemeyer) (W.D.N.C.) Booker- Defendant pled
guilty to buying votes and conspiracy to buy votes in a
N.C. general election. His pre-Booker sentence was
enhanced for his alleged leadership in the conspiracy
and obstructing justice. At sentencing he received 33
months with an identical alternate sentenced
announced. Although the mandatory sentence
violated Booker, the alternate sentence did not, as the
sentencing court “presciently” followed the procedure
for post-Booker sentencing advanced in Hughes when it
announced the alternate sentence.
United States v. Allen, 2006 WL 1633445 (4th Cir.
2006) ( J. Hamilton) (D. Md.) § 3553(e) MotionDefendant pled guilty of being a felon in possession of
a firearm. As a part of the plea agreement, the government agreed to make a motion pursuant to § 5K1.1
for a one level downward adjustment and Defendant
reserved the right to argue for further downward
departures. The mandatory minimum for the offense
was fifteen years; the district court sentenced Allen to
63 months. The Court of Appeals held that, absent an
explicit § 3553(e) motion by the government, the
District Court cannot downwardly depart below the
statutory minimum.
HIGHLIGHT
Supreme Court
From the Spring 2006 Criminal Practice Seminar, as
summarized by Diana Pereira and Vidalia Patterson.
Please contact Vidalia Patterson to request a complete copy
of the Fourth Circuit and Supreme Court Update distributed at the Spring Seminar.
Georgia v. Randolph, 164 L. Ed. 2d 208; 2006 U.S.
LEXIS 2498 (March 22, 2006) Fourth Amendment;
Consent to Search- It is unconstitutional for police,
without a warrant, to search a home, if two occupants
The Zealous Advocate
are present at the time and one consents but the other
objects. The search may not go forward in the face of
that objection, but the occupant must be present to
have the objection count. The Court held if the
individual who may be at legal risk of prosecution and,
thus, does not want the police to enter “is in fact at the
door and objects,” the other occupant’s consent to
search will not suffice. But, if the objector is nearby,
and not at the door, an objection by him will not block
the search. The Court stressed, though, that police may
not take a potentially objecting tenant away from the
home in order to be able to make the search with the
other occupant’s consent.
UPDATE: APRIL- JUNE 2006
Many thanks to our summer intern, Lauren Brennan, for
her assistance in summarizing cases for the Supreme Court
Update.
“Plan B” Has a Leg to Stand On
The trial strategy affectionately known as “Plan B” by
the attorneys on the TV show “The Practice” received a
real-life nod from the United States Supreme Court
in May 2006 in Holmes v. South Carolina, 126 S.Ct.
1727 (2006). Holmes was accused, convicted and
sentenced to death for murder, first-degree criminal
sexual assault, first-degree burglary, and robbery. At
trial, the judge refused to allow counsel to introduce
evidence of a possible third party’s guilt by applying an
evidentiary rule established by the South Carolina
Supreme Court in State v. Gay. The rule stated that
where there is strong evidence of a defendant’s guilt,
especially strong forensic evidence, proffered evidence
about a third party’s alleged guilt may (or perhaps
must) be excluded. State v. Gay, 343 S.C. 543, 545
(2001). Upon review, the United States Supreme
Court found that the South Carolina rule overstepped
its bounds and violated a criminal defendant’s constitutional rights. Holmes at 1728 (internal quotes and
citations omitted). They held the rule’s arbitrary
nature and structure created a burden disproportionate
to the purpose it was designed to serve. Id. at 1728-29.
The Court was careful to uphold the long-standing
rule that evidence may be excluded if its probative
value is outweighed by factors such as unfair prejudice,
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
8
confusion of the issues, or potential to mislead the jury.
Despite this, the Supreme Court’s ruling helps to
ensure that criminal defendants “have a meaningful
opportunity to present a complete defense” by continuing to allow the presentation of legitimate evidence of
third party guilt. Id. at 1729 (citing Crane v. Kentucky,
476 U.S. 638, 690 (1986)).
Warrantless Searches Held Reasonable in “Backyard
Brawl” Case
The United States Supreme Court ruled in Brigham
City, Utah v. Stuart, that in exigent circumstances or
entry into a dwelling “is ‘reasonable’ under the Fourth
Amendment, regardless of the individual officer’s state
of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’” Brigham City, Utah v.
Charles W. Stuart, 126 S.Ct. 1943, 1948 (2006). In
Brigham, officers were responding to a neighborhood
disturbance. When they arrived at the residence, no
one would come to the door. The officers went around
to the back of the house, found two juveniles drinking,
and saw an altercation ensue inside the house. Officers
knocked on the door, but were not heard over the
noise, so they entered and announced their presence.
Officers arrested the respondents and charged them
with contributing to the delinquency of a minor,
disorderly conduct, and intoxication. At trial, defense
counsel moved to suppress all evidence collected after
the officers entered the home. The trial court granted
the motion and the Utah Court of Appeals and Utah
Supreme Court affirmed. On appeal to the U.S.
Supreme Court, the defendant argued the evidence
should be suppressed because (1), “the officers were
more interested in making arrests than quelling
violence,” and (2), “the conduct occurring inside the
house was not serious enough to justify the officers’
intrusion into the home.” Id. at 1948. The Supreme
Court did not find either argument to be persuasive,
and overruled the lower court decisions, holding that
the officers subjective intentions were irrelevant, so
long as the circumstances objectively justified entry. In
this case, the nature of the incident did objectively
justify entry.
The Zealous Advocate
Prospective Waiver of the Speedy Trial Act Not
Allowed
In Zedner v. United States, the U. S. Supreme Court
tackled the intricacies of the 1974 Speedy Trial Act.
Zedner v. United States, 126 S.Ct. 1976 (2006). First,
the Court was asked to determine if a defendant has
the right to prospectively waive the application of the
Act. Next, they addressed whether a prospective
waiver of the Act estopps a defendant from later
challenging the lack of an “ends of justice finding.”
Defendant was indicted in 1996, and after signing a
“waiver for all time” of the Speedy Trial Act, a series of
continuances were filed including one in January of
1997 which continued the case for 91 days–21 days
longer than allowed for by the Speedy Trial Act. After
four years, and a series of additional continuances, the
defendant filed a motion to dismiss based on the 1997,
91-day continuance. The district court held the
prospective waiver was effective and therefore denied
the motion. On appeal, the Second Circuit Court of
Appeals held that a prospective waiver may be ineffective; however, they affirmed the district court’s decision. The court reasoned there was an exception to the
Act where the defendant causes or contributes to the
delay, and furthermore, the 91-day delay could be
properly excluded under the Act based on the “ends of
justice” exclusionary rule. The U. S. Supreme Court
disagreed; holding that a defendant may not prospectively waive the Speedy Trial Act and that the defendant was not estopped from challenging the courts
grant of a 91-day delay. They further held that regardless of the court’s belief that the defendant had waived
his rights, they failed to make the required findings
under the “ends of justice” exception and therefore the
91 days could not be properly excluded under the Act.
The Zealous Advocate
If we do not maintain justice, justice will not
maintain us.– Francis Bacon
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
9
Local News
Eastern District News
he FPD congratulates the Honorable James E.
Gates on his appointment as United States Magistrate Judge. Judge Gates came to bench in January
2006 and holds court in Raleigh. We extend a warm
welcome on behalf of this office and the panel attorneys from this district.
As most folks are aware, electronic filing through
CM/ECF became mandatory on June 1, 2006. If you
have not yet signed up for the training course, please
check out the schedule and registration information at
www.nced.uscourts.gov/cmecf/cal.html. Make sure
that you know your judge’s filing preferences by
checking the Judge's Practice Preference Links posted
on individual Judge pages.
FPD Office News
n the past year, the office has seen the addition of
several new attorneys, paralegals, and staff. We are
pleased to welcome to the Raleigh office, Diana
(Cap) Pereira, Jennifer Wellman, and Vidalia Patterson. The additions to our Greenville office include
Laura Sutton and Stephanie Britt. Finally, we
welcome Ormond Harriott, who staffs our new
Wilmington office.
The FPD would like to acknowledge two of our
AFPDs who hold faculty positions with defender
training programs. Joseph Ross recently served as a
professor for the National Defense Training Project in
Dayton, Ohio where he taught trial advocacy. Both
Joseph Ross and Sherri Alspaugh serve as faculty for
the North Carolina Defense Trial School sponsored
by the North Carolina Office of Indigent Defense
Services and the UNC School of Government in
Chapel Hill, North Carolina.
Congratulations to:
• Lindsay and Joseph Craven on the birth of Joseph
Harris Craven, Jr. born May 31, 2006.
• Lisa and Tony Martin on the birth of Stella Cameron Martin born on June 13, 2006.
• Robert and Diana (Cap) Pereira on their June 17
wedding.
We bid a fond farewell to:
• Larry Adams, an investigator, who retired in
November 2005 after more than 10 years of service
with the Federal Public Defender’s Office.
• Idalia Scott, administrator of our Fayetteville Office,
who retired at the end of June 2006 after more than
16 years with the Federal Public Defender’s Office.
The Zealous Advocate
Panel News
New Panel Attorneys
e are pleased to welcome the following attorneys who are training to become panel attorneys: in
Raleigh, Dewey Powell Brinkley, Walter A. Schmidlin,
and Robert Marion Tatum; and in Greenville, John
Warner Wells, Jr. The following are new panel attorneys: in Durham, C. Connor Crook; in Raleigh, Mary
Jude Darrow, William Dial Delahoyde, Scott L.
Wilkinson; in Morehead City, James M. Walen; and in
New Bern, Thomas Reston Wilson.
Fall Federal Criminal Practice Seminar
onna Stiles, our Panel Administrator, will be
sending out information on our up-coming fall Federal
Criminal Practice Seminar. The seminar will be held on
October 12 and 13, 2006 at the Blockade Runner in
Wrightsville Beach,
North Carolina.
Attendance for this
seminar is capped at
125, so please mark
these dates on your
calendars and plan to
register early!
Panel Attorneys, Mary Jude Darrow,
Myron Hill & Joshua Willey
For more information on our practice seminars or panel
attorney resources, feel free to contact Donna Stiles at
919-856-4236 or [email protected].
All the great things are simple, and many can be expressed in a single word: freedom, justice, honor, duty,
mercy, hope. – Winston Churchill
The Zealous Advocate
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
10
National CJA Panel Attorney Conference
yron T. Hill, Jr., the CJA Panel Attorney Representative for the Eastern District recently attended the
Eleventh National Panel Attorney Conference in San
Diego, California in March, 2006 with CJA panel
representatives from every federal district in the United
States. Several highlights of the conference are detailed as
follows.
Effective January 1, 2006, the hourly payment to
Criminal Justice Panel Attorneys increased. Specifically, the in-court and out-of-court rates were raised
from $90 to $92 an hour and federal death penalty
hourly rates were raised from $160 to $163. It was
noted that during a budget shortfall, payments for
CJA attorneys are suspended. Additionally, there is a
practice among some judges of cutting the voucher
requests of attorneys or delaying the ruling on
payment of requests until after the budget shortfall.
The request of the CJA panel is for judges to continue
paying vouchers and allow the administration to
suspend payment until funds are available, which is
the policy in most districts throughout the United
States.
The conference discussed the cost of pre-trial detention, which is approximately $1.6 billion per year. The
argument for reducing pre-trial detention was that
magistrates could find alternative ways in which
defendants could be out on pre-trial custody. The
counter-argument was the increased spending on
pre-trial costs such as monitoring defendants on
house arrest.
The Judicial Conference of the United States, upon
recommendation of its Defender Services Committee,
has approved a pilot project that will fund three circuit
positions for up to three years to support the casebudgeting process. The positions are designed to
provide objective, case-budgeting advice to judges and
to support the case management process. This project
will be vital in “mega” cases such as non-death penalty
cases where fees, including experts exceed $30,000 or
in death penalty cases where fees and expenses exceed
$100,000. For example, in California, case budgeting
The Zealous Advocate
of “mega” cases has taken place over the past eight
years, resulting in substantial savings because of
sharing resources such as paralegals and private
investigators.
The most expensive cases are those in which the death
penalty is sought by the United States Attorney’s
Office. The cost of death penalty litigation is on the
rise, as a significant amount of U.S. Attorneys are
being overruled when they do not seek the death
penalty and are subsequently ordered to do so. One
method to reduce the cost of these cases is for judges
to provide more funds within 45 days of the initial
appointment to the death penalty case in order to
push the mitigation process forward so that the
Attorney General may not seek the death penalty
upon review of detailed mitigation concerning the
case, victim, and defendant. Another effective tool in
preventing a death penalty trial is, if appropriate, to
have the defendant sign a written document indicating his willingness to plead to life at the preauthorization stage.
In “mega” cases, there is also an issue with U.S. Attorneys providing multiple pages of duplicate discovery,
which increases billing and the volumes of paperwork.
The recommendation at the conference was for CJA
panel attorneys to file motions with their local judges
to cut down on this type of duplicate discovery.
There have also been issues in several districts with
regard to attorneys over-billing clients. For example,
if an attorney visits four clients at a jail in an adjacent
city, the attorney should only bill one client for that
mileage, but each client should be billed individually
for the actual time spent with the attorney.
Finally, there was a question concerning the continuity
of counsel on appeal. The circuits are split with regard
to appointment of appellate counsel–the question
being who should decide who takes the case on
appeal. One argument is that the trial attorney should
take the case, because he or she had the knowledge of
the case and a new appellate attorney would expend
additional time and money reading transcripts in
order to prepare the appeal. The counter argument is
that the trial attorney must still read transcripts and
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
11
prepare the appeal. Further, there is no proof that
there is an increased cost for an appellate attorney to
take the case from trial counsel. Moreover, it may also
be noted that it is difficult for a trial attorney to attack
himself or herself, it is difficult for a trial attorney to
be an expert at both the trial and appellate level, and
an appellate attorney may be able to see issues more
clearly.
Thanks to Myron T. Hill, Jr. for the information contained
within this article of the Panel News.
The Zealous Advocate
The Zealous Advocate
Office of the Federal Public Defender
for the Eastern District of North Carolina
150 Fayetteville Street Mall
Suite 450
Raleigh, NC 27615
Tel: (919) 856-4236
Fax: (919) 856-4477
Thomas P. McNamara, Federal Public Defender
Donna Stiles, Panel Administrator, [email protected]
Vidalia Patterson, Editor, [email protected]
Laura Sutton, Editor, [email protected]
Charles Washington, Layout and Design
Roger Burbage, Photography
The Zealous Advocate
Office of the Federal Public Defender, Eastern District of North Carolina
150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236
12