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

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court:

State v. Gudgel: Mr. Gudgel filed a CrR 7.8 motion for relief from judgment over seven years after the Okanogan County Superior Court originally entered the sentence. The superior court dismissed the motion, and the Supreme Court affirmed, noting that Mr. Gudgel did not show that his judgment and sentence was facially invalid or was entered without competent jurisdiction, nor did he assert a ground for relief exempt from the time limit under RCW 10.73.100. The motion is therefore time barred.

Division One Court of Appeals:

State v. Hurst: The Court found proper a jury instruction directing the jury that to commit Mr. Hurst for a third confinement to restore his competency, the State must only prove by a preponderance of the evidence that the defendant will be restored to competency, and that the defendant is either a substantial danger to others, or that the defendant will commit criminal acts jeopardizing public safety or security. The Court reasoned that application of the preponderance standard to the issues of dangerousness and restorability of an incompetent felony defendant does not offend deeply rooted principles of justice, and noted that this standard is historically used by courts to commit defendants indefinitely to restore sanity. Therefore, the Court found that the statute provides adequate safeguards to protect the defendant from unreasonable governmental interference and satisfied due process.

Personal Restraint of Swenson: The court denied Mr. Swenson’s personal restraint petition, in which he sought resentencing before a different judge for convictions of two counts of rape of a child in the first degree, two counts of communication with a minor for immoral purposes, and one count of sexual exploitation of a minor. The Court noted that Mr. Swenson did not ask the judge to recuse, and rejected his argument that the appearance of fairness doctrine, the Code of Judicial Conduct (CJC) Canon 3(D)(1), and his due process rights were violated because the sentencing judge was one of the prosecutors involved in an unrelated juvenile adjudication approximately 20 years earlier. The Court reasoned that Mr. Swenson did not claim actual bias, nor could he show probability of bias based on the involvement of the sentencing judge 20 years earlier in an unrelated juvenile adjudication against him.

Division Two Court of Appeals:

State v. Marchi: The Court found that Ms. Marchi’s convictions for attempted first degree murder and first degree assault of a child violated double jeopardy, and vacated the sentence, remanding for resentencing on attempted murder only. The court reasoned that both charged crimes arose from the same act, establishing that they are the same in fact. The Court further found that the evidence required to convict on the attempted first degree murder charge is likewise sufficient to convict Ms. Marchi of first degree assault of a child. Therefore, the Court ruled that convictions on both violate double jeopardy protections. The Court ruled that the trial court did not err in failing to instruct the jury that the State had the burden of disproving Ms. Marchi’s diminished capacity defense beyond a reasonable doubt, noting that existing case law treats diminished capacity as evidence a jury may consider when determining the defendant’s mental state, not as an affirmative defense to the charges that the State must disprove.

Federal Law

Ninth Circuit Court of Appeals:

United States v. Goyal: The Court overturned Mr. Goyal’s convictions on fifteen counts of securities fraud and making materially false claims to auditors, holding that no jury could have found the former chief financial officer of Network Associates, Inc. (“NAI”) guilty beyond a reasonable doubt based on the evidence presented at trial. The Court found insufficient evidence of the government’s allegations that NAI, under Mr. Goyal’s supervision, violated generally accepted accounting principles (“GAAP”) by recognizing revenue from certain software sales earlier than it should have, and that Mr. Goyal concealed the allegedly improper accounting from NAI’s outside auditors and filed reports with the Securities and Exchange Commission that, because of NAI’s accounting, allegedly misstated revenue in certain reporting periods between 1998 and 2000.

In his concurrence, Judge Kozinski noted that this case is just “one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds.” The concurrence cautioned the government to act more carefully and more responsibly in the future and noted that not all wrongfully convicted defendants are fortunate enough to have exceptional trial counsel as did Mr. Goyal.

United States v. Lawrence: The Court affirmed Mr. Lawrence’s fifteen year mandatory minimum sentence under the Armed Career Criminal Act’s (“ACCA”). The ACCA provides that a person who is convicted of being a felon in possession of a firearm is subject to a fifteen year mandatory minimum sentence if that person “has three previous convictions . . . for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). Mr. Lawrence conceded that his two prior drug offenses qualified as ACCA predicate offenses, and the Court determined that Mr. Lawrence’s conviction for second degree assault in Washington likewise fit the ACCA definition of a violent felony, that is it was a crime “punishable by imprisonment for a term exceeding one year . . . that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The Court cautioned that “physical force” means “violent force,” but nonetheless concluded that the assault conviction in this case qualified.

Moormann v. Ryan: The Court affirmed the district court’s dismissal of Mr. Moormann’s habeas corpus petition, finding that Mr. Moorman’s claims that his appellate counsel was ineffective for failing to raise claims of ineffective assistance of counsel based on his trial counsel’s performance did not form the basis for habeas relief. The Court found that trial counsel’s performance was not objectively unreasonable and did not prejudice Mr. Moormann, and so appellate counsel did not act unreasonably in failing to raise what would have been a meritless claim of ineffective assistance of counsel, and Mr. Moormann was not prejudiced by appellate counsel’s omission.

Bills v. Clark: The Court reversed the district court’s denial of Mr. Bills’ habeas petition as untimely filed, concluding that equitable tolling of the petition is permissible when a petitioner can show a mental impairment so severe that the petitioner was unable personally either to understand the need to timely file or prepare a habeas petition, and that impairment made it impossible under the totality of the circumstances to meet the filing deadline despite petitioner’s diligence. The Court remanded to the district court for a review of Mr. Bills’ claims to determine whether: (1) Mr. Bills made a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing; (2) whether the record demonstrates that the petitioner satisfied his burden that he was in fact mentally impaired; (3) whether the petitioner’s mental impairment made it impossible to timely file on his own; and (4) whether the circumstances demonstrate the petitioner was otherwise diligent in attempting to comply with the filing requirements.

United States v. Caruto: The Court affirmed the district court’s denial of Ms. Caruto’s motion to dismiss the indictment against her for importation of cocaine and of possession of cocaine with intent to distribute. Ms. Caruto challenged four instructions given to the grand jury that she claimed violated the Grand Jury Clause of the Fifth Amendment. The Court found no error in the district court’s instructions 1) to ignore potential punishment in deciding whether to indict, 2) in elaborating regarding the “wisdom of the criminal laws” beyond the model instruction, 3) adding a suggestion that jurors could “go to the ballot box at the time of election, and if you disagree with the law, you can vote to change it or vote out of office those who support the law that you disagree with” and comparing the grand jury’s role to that of members of the judiciary, who are obligated to “apply the laws as the other branches give them to us,” 4) informing the jury about the role of magistrate judges in making probable cause determinations, disagreeing with Ms. Caruto’s claim that it unconstitutionally intruded on the grand jury’s independence, and 5) an instruction in which the Court stated, “It is extremely important for you to realize that under our Constitution, the grand jury is an independent arm of the United States Attorney. It’s not part of the U.S. Attorney’s Office nor an agent of the federal law enforcement agency.” Ms. Caruto argued that calling the grand jury “an independent arm of the United States Attorney” unconstitutionally associated it with the prosecution. Finally the Court found that Ms. Caruto had not made the requisite showing to obtain a grand jury transcript.

United States v. Lopez-Velasquez: The Court reversed and remanded the district court’s dismissal of the indictment against Mr. Lopez-Velasquez for illegal reentry. The Court found, s contrary to the district court’s conclusion, that the immigration judge (“IJ”) presiding over Mr. Lopez-Velasquez’ deportation hearing was limited to informing him of a reasonable possibility that he was eligible for relief at the time of the hearing. This duty did not require the IJ to inform Lopez-Velasquez of relief for which he was not then eligible and for which he would become eligible only with a change in law and the passage of eight months. The deportation order was therefore valid and had been dismissed in error.

United States v. Farmer: The Court affirmed that Mr. Farmer’s conviction under the California Penal Code for lewd and lascivious acts involving a child, categorically qualifies as “a prior conviction . . . relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” for purposes of sentencing under the federal child pornography statute. Therefore, the Court found that the district court’s imposition of a ten year mandatory minimum sentence was not in error.

In a concurrence to his own opinion, Judge Bybee, joined by Judge Noonan, wrote separately to express concerns with the court’s current approach to defining “abusive sexual conduct involving a minor” for purposes of determining whether to apply a sentencing enhancement to violators of the federal child pornography statute. The concurrence expressed concerns that, first, in defining “abusive sexual conduct involving a minor,” the court has adopted uncritically the definition of “sexual abuse of a minor” it had used to interpret an unrelated immigration statute, without regard for the distinctive structure of the child pornography statute. Second, the concurrence was concerned that the Court’s recent attempts to distinguish the array of contradictory cases in this area of law has yielded the awkward result that the court now applies two competing, but equally recognized, definitions of “sexual abuse of a minor.”

United States v. Rivera-Gomez: The Court vacated Mr. Rivera-Gomez’ sentence and remanded for resentencing, finding that the district court erred in counting Mr. Rivera-Gomez’ prior state resisting arrest conviction as part of his criminal history rather than as part of the offense level for his crime of conviction. The Court noted that the conviction was for conduct that occurred in the course of the defendant’s attempt “to avoid detection or responsibility” for the crime of conviction, and was thus “relevant conduct” and should have been included as part of his offense level for sentencing purposes.

Sacora v. Thomas: The Court affirmed the district court’s denial of petitioners’ habeas corpus petition challenging the policies by which the Bureau of Prisons (“BOP”) places inmates in community correctional facilities, also known as residential re-entry centers (“RRCs”). The Court concluded that the BOP’s policies violate neither the statutory provisions that they implement nor the APA. The Court reasoned that the Second Chance Act of 2007 (“SCA”) does not require the BOP to make any placements in a RRC for longer than six months; the statute affords the BOP the option to make placements up to 12 months, and the agency’s construction of the statute was entitled to some deference. Because the BOP used its experience in placing prisoners in RRCs in crafting its policies, the Court concluded that the policies are based on a reasonable construction of the SCA, and are not arbitrary or capricious despite being implemented without documentation or empirical evidence as the BOP permissibly relied on its experience administering RRC placements in crafting its policies, and those policies are not arbitrary or capricious. Finally, the Court found that because the challenged policies are not binding rules, but instead allow implementing officials to use their discretion in individual cases, the BOP was not required to promulgate the policies through the APA’s notice-and-comment procedures.

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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