The End

We are suspending our little blawg, at least for the time being.
To our three regular readers, have a great holiday season.
Kirk and Melody
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Not Just a Technical Requirement

In keeping with my recent trend of stealing from other blogs, here is an excellent but really eggheaded blog from Prof. Friedman at http://confrontationright.blogspot.com/ on chain-of-custody and confrontation. Here's the teaser:

Here I will write about the chain of custody, products of a machine, who must testify, and other related topics.

Chain of custody is not a technical requirement that should be belittled as a mere technicality. The chain is part of the requirement of authentication, which is that the proponent demonstrate that a piece of evidence is what its proponent claim it to be. Absent authentication, the evidence has no substantial probative value, because its connection to the case has not been demonstrated.

All right, not really the most legally sexy topic, but this is good core stuff, especially if you are dealing with DNA, breath tests, immigration records, or other data produced by machinery or computer-generated searches.
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924(c) Cert Grant

From our ever erudite and vigilant Sentencing Resource Counsel's office:

The Supreme Court granted cert today in Dean v. United States (08-5274) to decide whether under 18 U.S.C. § 924(c)(1)(A)(iii), the mere discharge of a firearm during a crime of violence or drug trafficking, even if accidental, unintentional or involuntary, is subject to a ten-year sentencing enhancement. The defendant's gun accidentally went off during a bank robbery, and the shot did not harm anyone. Nonetheless, the Eleventh Circuit joined the Tenth Circuit to hold that § 924(c)(1)(A)(iii) contains no intent requirement and thus is a strict liability enhancement. In so holding, the court rejected the DC Circuit's reasoning that the three subsections of § 924(c)(1)(A) work in concert to impose increasingly severe penalties for increasingly egregious conduct.

Mr. Dean is represented by Scott T. Forester of Calhoun, Georgia, assisted by Sidley Austin. The Eleventh Circuit's opinion can be found at United States v. Dean, 517 F.3d 1224 (11th Cir. 2008), and all pleadings are available at www.scotusblog.com.

The Supreme Court also granted cert in two non-sentencing criminal cases. Yeager v. United States (08-67) will address whether, under the Double Jeopardy Clause, the government may retry defendants acquitted of some charges on factually related counts on which the jury failed to reach a verdict; while Abuelhawa v. United States (08-192) will address whether a person who uses a cell phone to buy drugs solely for personal use (a misdemeanor) can be charged with the separate crime of using a phone to facilitate the sale of drugs (a felony).
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Sexual Offender Registration and Notification Act

With much gratitude to our smart colleague down south in Wichita, David Freund offers this post:

On November 5th, the Tenth Circuit held that 18 USC § 2250(a)(2)(B), of the Sexual Offender Registration and Notification Act ( SORNA) applies only to persons who traveled in interstate commerce after July 27, 2006, the effective date of SORNA.

Mr. Husted was required to register as a sex offender in Illinois as a result of an conviction there. He subsequently moved to Oklahoma, where he was also required to register and did initially register. However, he allowed his Oklahoma registration to lapse and then subsequently moved to Missouri in April 2006 where he was not required to register. The District of Oklahoma indicted Mr. Husted for failing to properly "update and register as a sex offender" in Missouri after traveling in interstate commerce from Oklahoma as required by SORNA.

The section of SORNA at issue provides:
a) In general.—Whoever—
(1) is required to register under the Sex Offender Registration and Notification Act;
(2) . . .
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10 years, or both.

Applying the principles of statutory construction, the Court found that Congress’s use in the statute of the verb "to travel" indicated that SORNA’s coverage is limited to those individuals who travel in interstate commerce after SORNA’s effective date. Since Mr. Husted’s travel was complete before the effective date of SORNA the Court reversed his convictions.
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DNA at the Supreme Court

The Washington Post reports that the US Supreme Court is considering review of a critical DNA issue -- whether one has a constitutional right to have DNA tested.

Osborne was convicted, spent more than a decade in prison and gave a detailed confession to a parole board. But after recanting that confession, the Alaska man won a federal lawsuit seeking new DNA tests he now says can clear him, a judgment that was affirmed by the U.S. Court of Appeals for the 9th Circuit. It is the first time an appellate court has ruled that an inmate has a federal constitutional right to such testing.

Now, the government has sought cert, wanting to deny DNA testing as a constitutional right. This may have caught media attention just because of the Palin/Alaska hook, but this is a rather fundamental question of fairness and integrity. It is hard to imagine why anyone, even prosecutors, would object to such testing if there is the possibility of exoneration of an innocent person. But never underestimate the government's wrong-headed reasoning.
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Twice in One day

All right, we don't post anything for a week, then twice in one day. But this really caught my attention: the Supreme Court granted cert on the circuit split regarding identity theft. From SCOTUSBlog:

The issue is whether the law enhancing the sentence for identity theft requires proof that an individual knew that the identity card or number he had used belonged to another, actual person — that is, a knowledge requirement. The Circuit Courts have split 3-3 on the issue. The dispute centers on the meaning of the word “knowingly” in the 2004 statute.

The case is Flores-Figueroa, from the 8th Circuit (ala Postville, Iowa) and here is the SCOTUS-wiki link. One would think that this would cause some problems for DOJ to pursue any Postville-type raids based on identity theft accusations.
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Postville Update

For those of you who attended the Postville immigration conference last month or who are just keeping track of ICE's shenanigans, here is an update on the town of Postville. From CNN, the Postville mayor reports that "Feds Turned My Town 'Topsy Turvey'":

"It makes a person feel kind of angry," Penrod says. "It's been nothing but a freaky nightmare since May."

Five months later, tensions are high. Crime is up. Businesses are hurting. The nation's kosher supply has taken a big hit because the plant is only functioning at partial capacity. The plant is owned by Abraham Aaron Rubashkin, a powerful member of the Hasidic Jewish community. There's a seething anger toward Immigration and Customs Enforcement.

"To me, they took a problem that needed a 22-caliber bullet and they dropped a nuclear bomb on us," says Aaron Goldsmith, a Hasidic Jew and former Postville city councilman.

Down a picturesque tree-lined street off Lawler Street sits St. Bridget's Catholic Church whose pastor, Father Lloyd Paul Ouderkirk, is both soft-spoken and outspoken. It is his church that became a refuge for the town's immigrants the day of the raid and the weeks afterward. "They had attacked this town with a military-style raid -- brought in 900 immigration police to arrest 389 people. I mean, what is that other than a military raid on this town?" he says. Ouderkirk scans his church now, the sun beaming through stained-glass windows. "Can you just imagine all these pews here full of people, sleeping 300-400 people a night?"

ICE remains, not surprisingly, remains unrepentant, and that means that we should be attentive to the possibility of more raids in the mid-west.

Stay tuned . . . .
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