Criminal Case Law Update, Week Ending 11-12-10

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court:

State v. Patel: The Court held that a defendant may be convicted of attempted rape of a child where the alleged victim is a fictitious underage character created by the police. Mr. Patel was caught was part of an Internet sting operation in which a police officer posing as a 13-year-old girl conducted a sexually explicit conversation with Mr. Patel on an online messaging service. At the close of the conversation, Mr. Patel agreed to meet the “girl” at her apartment for sex. He was arrested upon his arrival at the apartment. Essentially, the court found it sufficient that Mr. Patel believed his intended sexual partner was underage, and that he took a substantial step toward engaging in intercourse with her. However, the Court also held that this conclusion was not in conflict with its holding in State v. Chhom, in which the Court found that a defendant’s belief regarding the alleged victim’s age was irrelevant if in fact the victim was actually a minor, noting that it did not hold that the defendant’s belief about the victim’s age is irrelevant in all cases. The Court concluded that, “[w]hile the State is not required to prove the defendant knew of the victim’s age where it can prove there was an actual, underage victim; it assumes a greater burden by proving the defendant’s specific intent to have sex with a child where the intended victim does not exist.”

In her concurrence, Justice Madsen, joined by Justice Charles Johnson agreed with the lead opinion, but wrote separately to note the internal inconsistency with the lead opinion’s holding that “a defendant who attempts to have sex with a person he believes is underage but is actually an adult may not be convicted . . . because the victim actually existed and factual impossibility is not a concern.” Justice Madsen argued that this statement undermined the rationale that otherwise supports the lead opinion.

In his concurrence, Justice Sanders, joined by Justices Owens and Fairhurst, agreed with the conclusion, noting his belief that to establish guilt the government must merely prove that the defendant intended to have sexual intercourse with a minor. However, Justice Sanders wrote separately to disagree with the lead opinion’s reliance on State v. Chhom insofar as that case attempts to designate attempted rape of a child as a strict liability offense for which a defendant may be prosecuted even if he or she believes up until meeting his or her intended sexual partner that that person is of age.

Federal Law

Ninth Circuit Court of Appeals:

United States v. Schafer: Dale Schafer and Marion Fry challenged federal convictions arising from their operation of a medical marijuana growing operation and dispensary in the Sierra Nevada community of Cool, California. Mr. Schafer was convicted of manufacturing at least 100 marijuana plants and Ms. Fry of manufacturing fewer than 100 marijuana plants. On appeal, Ms. Fry and Mr. Schaefer claimed that the district court improperly denied their motion to dismiss on a theory of entrapment by estoppel without holding an evidentiary hearing. The Court ruled that such a hearing would have usurped the role of the finder of fact by deciding factual questions that were intertwined with the general issue to be decided at trial. Appellants also claimed that the district court erred in precluding them from presenting an entrapment by estoppel defense and a medical necessity defense at trial. The Court ruled that the district court could properly found that Appellants did not establish reliance on statements by law enforcement, and further found that Appellants cited no authority regarding the availability of a medical necessity defense. Finally, Appellants argued that the district court should have reduced their sentences on a theory of sentencing entrapment. The Court ruled that Appellants’ affidavits were insufficient to establish a prima facie showing of sentencing entrapment, and it was not an abuse of discretion for the district court to deny their request for an evidentiary hearing, as there was no basis for a sentencing mitigation on this issue.

United States v. Diaz-Lopez: Mr. Diaz-Lopez appealed his conviction of being a removed alien found in the United States, arguing that the district court erred in admitting testimony about the results of a database search introduced to show that Mr. Diaz had no permission to return to the United States, as the testimony lacked foundation and violated the best evidence rule. The Court affirmed, holding that the best evidence rule was inapplicable to the testimony of the agent regarding the database search and that the agent established a sufficient foundation for his testimony.

United States v. Grob: Mr. Grob appealed his 37 month sentence for one count of cyberstalking, arguing that the district court’s criminal history calculation improperly included a prior misdemeanor conviction for criminal mischief. The Court held that Mr. Grob’s prior Montana criminal mischief conviction should not have been counted under the applicable sentencing guideline and vacated Mr. Grob’s sentence, which placed him in the incorrect category of the sentencing guidelines and inappropriately increased his sentence. The Court vacated the sentence and remanded for resentencing.

The Law Offices of Dena Alo-Colbeck focuses on research, brief writing, and trial preparation for criminal defense litigators. If you know of anyone who you think would like to receive these updates, please feel free to either forward this message or ask us to add his or her name to our email list. If you have any questions regarding the foregoing decisions or if we may be of assistance on any other matter, please do not hesitate to contact us.

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Dena Alo-Colbeck
Law Offices of Dena Alo-Colbeck
“Research and Writing for Washington Lawyers”
[email protected]

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