tag:blogger.com,1999:blog-29814707059819693582024-03-05T06:15:52.177-05:00Harmless Error BlogThoughts on Criminal Law in Maine and Beyond.Unknownnoreply@blogger.comBlogger71125tag:blogger.com,1999:blog-2981470705981969358.post-67286338703031792132014-05-20T23:00:00.001-04:002014-05-20T23:27:02.420-04:00911 texting has begun, but can the text messages be used as evidence?<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgA-rNbbIrivU-UIztcWmISRMjW4qA91xAbis1EokDupESDlCwKAqchtOVdSpPY2JGtDU85o-vPFXY3tmr8ZjIs7KRwWFj3Nq7TRJ2seSSUng5oTPCC24zc6RVQc9Za-0HzD_OBGmyuJ8FG/s1600/911-text-messages+1.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgA-rNbbIrivU-UIztcWmISRMjW4qA91xAbis1EokDupESDlCwKAqchtOVdSpPY2JGtDU85o-vPFXY3tmr8ZjIs7KRwWFj3Nq7TRJ2seSSUng5oTPCC24zc6RVQc9Za-0HzD_OBGmyuJ8FG/s1600/911-text-messages+1.jpg" height="213" width="320" /></a></div>
As of last Thursday 5/15/14, major U.S. cell phone carriers support text messaging to 911 dispatch. Most call centers across the country are not equipped the handle the messages but, interestingly, Maine’s have been ready since last summer. The FCC site links to <a href="http://transition.fcc.gov/cgb/text-to-911-deployments.pdf">this document</a> showing where you can text 911.<br />
<a name='more'></a><br />
<br />
Of course, just because you can, doesn’t mean you should. Something I read said that 911 texts will not get the same priority network treatment as 911 voice calls and so messages might be delayed during high traffic times. Also, it’s got to be difficult work for a 911 dispatcher to get the needed information by texting with you. If it’s a life or death situation, the consequences could bring new meaning to the term YOLO. <a href="http://www.fcc.gov/text-to-911">As the FCC says</a>, don’t do it:<br />
<ul>
<li><em>Always contact 911 by making a voice call, if you can.</em></li>
<li><em>If you are deaf, hard of hearing or have a speech disability, use a TTY or a telecommunications relay service, if possible.</em></li>
<li><em>Remember - in most cases now, you cannot reach 911 by sending a text message.</em></li>
</ul>
<div>
<h2>
How the evidence comes in at trial</h2>
</div>
<div>
For me, the most interesting question is how 911 text exchanges might become evidence. Prosecutors often use 911 recordings at criminal trials but they can only be used if they meet some criteria. Generally speaking, the statements need to qualify as “excited utterances” (seriously, that’s the term) and the statements need to be “non-testimonial.”<br />
<br /></div>
<div>
The hearsay rule will generally prohibit any statements made outside of trial from being recited or replayed for the jury. But some statements are allowed in under exceptions to that rule. 911 calls commonly qualify as excited utterances (M.R. Evid. 803(2)) if:<br />
<ol>
<li>A startling event occurred; </li>
<li>the hearsay statement related to the startling event; and </li>
<li>the hearsay statement was made while the speaker was under the stress of excitement caused by that event. </li>
</ol>
<a href="http://scholar.google.com/scholar_case?case=6104153442998659911&hl=en&as_sdt=4,20&kqfp=17249091981731047337&kql=168&kqpfp=18209338909848072277#kq">The Maine Supreme Court has said</a> that this analysis means the trial judge must consider a variety of factors, including:<br />
<blockquote class="tr_bq">
<em>the nature of the startling or stressful event, the amount of time that passed between the startling event and the statement, the declarant's opportunity or capacity for reflection or fabrication during that time, the nature of the statement itself, and the declarant's physical and emotional condition at the time of the statement.</em></blockquote>
Even if the statement qualifies as an excited utterance, it should still be excluded unless the contents are non-testimonial. Non-testimonial statements are those where:</div>
<div>
<ol>
<li>the caller is speaking about events as they are actually happening;</li>
<li>it would be clear to a reasonable listener that the victim is facing an ongoing emergency;</li>
<li>the nature of the questions asked and answered are objectively necessary and elicited for the purpose of resolving the present emergency; and</li>
<li>the victim's demeanor on the phone and circumstances at the time of the call evidence an ongoing emergency.</li>
</ol>
</div>
<div>
<div>
So the question of whether 911 records come in at trial depends in part on what was said, but also on how it was said. The law requires the court to consider the person’s stress level, excitement, emotional condition and demeanor while making the statements. All that is pretty hard to judge from a text message. Also, there’s always the question of who is actually sending the text message; at least with a 911 call, there is a voice that someone can identify. </div>
</div>
<div>
</div>
<div>
These questions are not that new and courts have dealt with similar issues for other kinds of electronic evidence. Many 911 text messages might qualify under hearsay exceptions and be admitted as evidence. But in some cases, the bare text might not give enough information for the court to decide the threshold issues.</div>
<div>
</div>
<div>
The, the law in Maine is not well developed on text messages and hearsay exceptions. If 911 text messaging catches on, it might force the law to adapt quickly. </div>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.2466605 -111.56214800000001 67.0707175 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-28392360660364965262014-05-06T17:50:00.000-04:002014-05-06T17:50:56.416-04:00Tolan v. Cotton, SCOTUS reverses summary judgment for cop who shot pro baseball player<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgYRf74pWq2inzw0OUzhtiXHFk9H-5P4oy9f6I-T-3XC2Z3PCQ0o9nISOHusr4rMRgtcPH04jzI3m8b2_wh4kEP4seZ2yh3sWxlXzH079mPdqYtAEl4RLJj3RKgC7tVSqrTmHkLQx790yZi/s1600/SCOTUS-building.JPG" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgYRf74pWq2inzw0OUzhtiXHFk9H-5P4oy9f6I-T-3XC2Z3PCQ0o9nISOHusr4rMRgtcPH04jzI3m8b2_wh4kEP4seZ2yh3sWxlXzH079mPdqYtAEl4RLJj3RKgC7tVSqrTmHkLQx790yZi/s1600/SCOTUS-building.JPG" height="141" width="200" /></a></div>
<blockquote class="tr_bq">
Monday was an interesting day at the U.S. Supreme Court. The court approved of a local government opening official business with an explicitly religious ceremony, the judges refused to hear a highly anticipated challenge to a New Jersey law that severely limits gun rights, but for my money the most interesting story comes from Tolan v. Cotton. The case tells a bizarre tale of how police came to shoot and nearly kill a professional baseball player, in front of his parents, while mistakenly believing that he had stolen his own car.<a href="http://www.pressherald.com/blogs/harmlesserror" target="_blank">[Read More at the Portland Press Herald].... </a></blockquote>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.244951500000003 -111.56214800000001 67.0724265 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-27546202121331329732014-03-28T12:23:00.001-04:002014-03-28T12:23:33.017-04:00Maine's OUI / DUI look-back will not be extended beyond 10 years<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgU7y5Xb2MLvk431eh6Di_6D_EuftwMMv1gmu11kw_BijsDO1oA-6oQk66vuxivLEnl1ytDEbIP4KnDc38vmLeK2BMXRHFJ2Fn7OnJbigvhqmOFJwngc2UUYmIZTcYVeqv2_yI86x1oXafy/s3200/Maine-Felony-Theft-Law-Changes.JPG" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img alt="Maine's legislature will not extend the OUI look-back to 15 years" border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgU7y5Xb2MLvk431eh6Di_6D_EuftwMMv1gmu11kw_BijsDO1oA-6oQk66vuxivLEnl1ytDEbIP4KnDc38vmLeK2BMXRHFJ2Fn7OnJbigvhqmOFJwngc2UUYmIZTcYVeqv2_yI86x1oXafy/s3200/Maine-Felony-Theft-Law-Changes.JPG" height="160" title="legislature-leaves-maine-oui-10-year-lookback" width="200" /></a></div>
Read my latest post at the Portland Press Herald site: <a href="http://www.pressherald.com/blogs/harmlesserror/252132191.html" target="_blank">Legislative committee rejects 15 year OUI look-back</a>. From the article:<br />
<blockquote class="tr_bq">
<i>Second, third and subsequent OUI offenses have serious mandatory minimum sentences in Maine. Current law “looks back” 10 years to count prior convictions within that period. While the sentencing judge can consider older offenses, they don’t change the mandatory minimum penalties. In its original form, LD 1729 would have increased the look-back period from 10 to 15 years. Amendments to the bill eliminated that increase....</i>[<a href="http://www.pressherald.com/blogs/harmlesserror/252132191.html" target="_blank">Read more</a>]</blockquote>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.244951500000003 -111.56214800000001 67.0724265 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-1870982597082430302014-03-20T01:05:00.003-04:002014-03-20T01:05:49.454-04:00Meet Maine's newest crime: "Improper Contact"<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgU7y5Xb2MLvk431eh6Di_6D_EuftwMMv1gmu11kw_BijsDO1oA-6oQk66vuxivLEnl1ytDEbIP4KnDc38vmLeK2BMXRHFJ2Fn7OnJbigvhqmOFJwngc2UUYmIZTcYVeqv2_yI86x1oXafy/s3200/Maine-Felony-Theft-Law-Changes.JPG" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgU7y5Xb2MLvk431eh6Di_6D_EuftwMMv1gmu11kw_BijsDO1oA-6oQk66vuxivLEnl1ytDEbIP4KnDc38vmLeK2BMXRHFJ2Fn7OnJbigvhqmOFJwngc2UUYmIZTcYVeqv2_yI86x1oXafy/s3200/Maine-Felony-Theft-Law-Changes.JPG" height="160" width="200" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">This is where they make laws</td></tr>
</tbody></table>
On March 16, 2014 Governor LePage signed <a href="http://www.mainelegislature.org/legis/bills/bills_126th/chapters/PUBLIC478.asp">LD 1656</a> into law and created a new crime in Maine. It’s called “Improper Contact” and it’s an awkward fix for an unintended consequence of an unnecessary change to Maine’s bail code. I wrote before <a href="http://www.pressherald.com/blogs/harmlesserror/241590271.html">about LD 1656</a>. You can read this post for more about <a href="http://lukerioux.com/bail-maine-setting-reducing-violating-conditions-release/">how bail works in Maine</a>.<br />
<a name='more'></a><br />
<br />
My full post about the new law and the crime it creates is at <a href="http://www.pressherald.com/blogs/harmlesserror/250912291.html" target="_blank">Harmless Error on the Portland Press Herald site</a>.<br /><br />
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.246651000000004 -111.56214800000001 67.070727 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-13212676424691742912014-02-25T00:37:00.000-05:002014-02-25T00:37:11.684-05:00Samuel Ford v. U.S: SCOTUS applies Burrage to vacate a life sentence<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgYRf74pWq2inzw0OUzhtiXHFk9H-5P4oy9f6I-T-3XC2Z3PCQ0o9nISOHusr4rMRgtcPH04jzI3m8b2_wh4kEP4seZ2yh3sWxlXzH079mPdqYtAEl4RLJj3RKgC7tVSqrTmHkLQx790yZi/s1600/SCOTUS-building.JPG" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgYRf74pWq2inzw0OUzhtiXHFk9H-5P4oy9f6I-T-3XC2Z3PCQ0o9nISOHusr4rMRgtcPH04jzI3m8b2_wh4kEP4seZ2yh3sWxlXzH079mPdqYtAEl4RLJj3RKgC7tVSqrTmHkLQx790yZi/s1600/SCOTUS-building.JPG" height="141" width="200" /></a></div>
In its 2/24/14 list of orders, the U.S. Supreme Court summarily disposed of three criminal cases. One of them was <i>Samuel Ford v. United States</i>. Ford was convicted of selling heroin which caused the death of a man named Joseph Scolaro. Since Ford had a prior felony drug conviction, the mandatory minimum sentence under 841(b)(1)(C) was life in prison. Without further briefing or argument, the Supreme Court granted cert, applied the rule announced in <i><a href="http://harmlesserrorblog.blogspot.com/2014/01/burrage-v-us-federal-drug-trafficking-death.html" target="_blank">Burrage v. U.S.</a></i> and vacated the conviction.<br />
<br />
You can read <a href="http://www.pressherald.com/blogs/harmlesserror/246997671.html" target="_blank">my post about the case on the Portland Press Herald site</a>.Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.246652 -111.56214800000001 67.070726000000008 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-48008617049597570522014-02-23T07:33:00.000-05:002014-02-23T07:33:00.197-05:00Jeffrey Cookson v. Maine: Head in the Sand, DNA Evidence in the Trash<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjWsoPhWxEuNyta-vsSxB6IOEGgifm5CT8Kyl2RMCL9eT_1o0a-8xNIdO67ZJXkT1wgZNjdZHXlTSIsRL74SEGLitz9zgfRBIonU6qsSCUuBfv5QwJUS0cCLrKOP6GE53zVwSzXKqpacCA3/s1600/maine-postconviction-dna-testing.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img alt="Maine postconviction DNA testing Cookson v. State of Maine" border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjWsoPhWxEuNyta-vsSxB6IOEGgifm5CT8Kyl2RMCL9eT_1o0a-8xNIdO67ZJXkT1wgZNjdZHXlTSIsRL74SEGLitz9zgfRBIonU6qsSCUuBfv5QwJUS0cCLrKOP6GE53zVwSzXKqpacCA3/s1600/maine-postconviction-dna-testing.jpg" height="181" title="maine-postconviction-dna-testing" width="200" /></a></div>
The Maine Supreme Judicial Court decided <a href="http://www.courts.state.me.us/opinions_orders/supreme/lawcourt/2014/14me24co.pdf" target="_blank"><em>Jeffrey Cookson v. State of Maine</em></a> on 2/18/14. Their decision will prevent DNA testing of evidence which might show that the wrong man is in prison while a killer remains at large. The court gives a unique interpretation of Maine's chain of custody law and while it prevents testing for Cookson, it might help other defendants who challenge the prosecution's evidence at trial.<br />
<a name='more'></a><br />
<h2>
<span style="font-size: large;">History of the Case</span></h2>
Jeffrey Cookson went to trial in 2001 for the 1999 killings of Mindy Gould and 21-month-old Treven Cunningham. The case against Cookson was largely circumstantial and no murder weapon was recovered before trial. Evidence did show that, at some point, Cookson possessed a Taurus Model PT-99-AF handgun. At trial, an expert who examined the bullets and shell casings, testified that the fatal shots were fired by a PT-99-AF. Cookson was convicted of both murders and then given two life sentences.<br />
<br />
After the verdict, another man, David Vantol, confessed to police that he was the killer. He corroborated his story by bringing detectives to a hiding place where he uncovered and handed over a gun that he claimed was the murder weapon. The gun was a Taurus but a different model, a PT-92. A couple days later, Vantol appeared at the police station with a bag containing clothing he claimed to have worn during the killings.<br />
<br />
Ballistic testing confirmed that Vantol’s PT-92, not Cookson’s PT-99-AF, was the murder weapon. The firearms expert who testified at trial later admitted that he made mistakes: though he thought markings on the shells and slugs were specific to Cookson’s gun, they really only showed that the rounds came from a certain kind of gun, not a particular weapon.<br />
<br />
Still, Vantol is a strange man and his confessions were strange too. He first claimed that he shot the victims in self defense, but then changed his story saying that Cookson hired him to do the killings. After speaking to police, Vantol was admitted to a psychiatric hospital. He then recanted his confessions, claimed that he had nothing to do with the murders and said Cookson told him to confess.<br />
<br />
Cookson filed a series of appeals and motions for new trial, all of which were denied. The details and history of the case are better explained by the <a href="http://scholar.google.com/scholar_case?case=512795430919669135&q=cookson&hl=en&as_sdt=4,20">Maine Supreme Court’s 2003 <em>Cookson</em> opinion</a>. In 2004, Cookson filed a motion requesting DNA analysis of the clothing Vantol gave to police. The State has not analyzed the clothing and has been fighting Cookson's motion for the last 10 years. This decision gives the prosecution a win and almost guarantees that the clothing will never be tested.<br /><br />
<h2>
<span style="font-size: large;">Maine's DNA Statute</span></h2>
<a href="http://www.mainelegislature.org/legis/statutes/15/title15ch305-Bsec0.html" target="_blank">Maine’s post conviction DNA testing statute</a> requires the defendant to show:<br />
<ol>
<li>A sample of the evidence is available for DNA analysis;</li>
<li>The evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been substituted, tampered with, replaced or altered in a material way; </li>
<li>The evidence was not previously subjected to DNA analysis or, if previously analyzed, will be subject to DNA analysis technology that was not available when the person was convicted; </li>
<li>The identity of the person as the perpetrator of the crime that resulted in the conviction was at issue during the person’s trial; and </li>
<li>The evidence sought to be analyzed, or the additional information that the new technology is capable of providing regarding evidence sought to be reanalyzed, is material to the issue of whether the person is the perpetrator of, or accomplice to, the crime that resulted in the conviction.</li>
</ol>
Four of the five conditions were clearly met, so the issue on appeal was whether there was a sufficient chain of custody for the Vansol clothing.<br /><br />
<h2>
<span style="font-size: large;">Chain of Custody</span></h2>
Chain of custody is the idea that the party offering evidence must show that the thing offered is the object relating to the case. When we are dealing with drugs, cash, or other fungible items, the proponent should show that there has been a continuity of possession, providing proof of every link in the chain.<br />
<br />
When we are talking about particular items identifiable by specific characteristics, the standard is less demanding. A showing that the item is the one in question and is in substantially the same condition should be enough. In this case, Vantol approached police and effectively told them:<br />
<ol>
<li>I am the man who killed these people not the defendant.</li>
<li>Here are the clothes I was wearing during the murders.</li>
<li>After the killings I hid the clothing because I knew it was incriminating.</li>
<li>Recently, I returned to the hiding spot and found the same clothing where I left it. I now deliver it to you as evidence of my crimes.</li>
</ol>
Despite Vantol’s statements, the law court reasoned that Cookson didn’t establish the clothing’s chain of custody. They said that Cookson had an obligation, not just to establish the basic identity of the items, but to prove the clothing was not tampered with or substituted. Since it’s almost impossible to prove a negative, Cookson failed to meet this standard.<br /><br />
<h2>
<span style="font-size: large;">Justice Jabar's Dissent</span></h2>
Only one judge, Justice Jabar, disagreed with the majority opinion, and he wrote a pretty great dissent. Chain of custody is most often challenged when the prosecution offers evidence against the defendant and in that context, it gets a pretty permissive interpretation. This case kind of flips the script and the law court seems to create a different, higher chain of custody standard.<br />
<br />
Jabar notes that the court’s prior decisions find sufficient chain of custody where the State can show that the items are the ones connected with the case. While actual proof of tampering, contamination or substation can compromise the chain of custody, the court has never required a prosecutor to <em>disprove</em> every hypothetical tampering scenario, or to show that the evidence was under constant watch until being presented at trial. Jabar then disagrees with the higher standard the court sets in <em>Cookson</em>:<br />
<blockquote>
<i>with this interpretation…the post-conviction court has required Cookson to prove a negative. In other words, although Vantol informed police that he wore the clothes in question during the homicides, buried them following the murders, and retrieved them to turn over to the police, the court nonetheless required Cookson to prove that the items were not “substituted, tampered with, replaced or altered in any material way,” during the two years that they were buried. This places an impossible burden on any person seeking DNA analysis, and the Court’s interpretation is an illogical reading of the post-conviction DNA analysis statute.</i></blockquote>
<h2>
<span style="font-size: large;">The Silver Lining</span></h2>
This opinion came out bad for Mr. Cookson, but it’s kind of great in another way. To prevent the DNA analysis here, the law court had to reinterpret its thinking on chain of custody and that change now strengthens defense objections to the prosecution’s evidence. The Supreme Court’s rationale demands the same of the DA that it does of Cookson and prosecutors might now be required to prove the <i>absence</i> of tampering, alteration or substitution before evidence comes in. That's a standard Cookson could never meet and it's one the prosecution might struggle with for years to come. Of course, that might change when those cases get appealed.Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.246652 -111.56214800000001 67.070726000000008 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-83121821117255545722014-02-08T06:00:00.000-05:002014-02-23T00:46:54.418-05:00Walter Scott Fox, Fixture in Portland Sailing, Guilty of $14m Fraud<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgfCz9Hh31GojFGdd3sM4AUkixTdOeTjZLu6PvOrqtI1SJTtXb903iz3VaYBv7hI38s8LZH7p__V_jTarRwNHfWUG2WLYckAhwUOFc15fT7brZwmqRVbeFg8gEYN52c9Rr7GWkI8SH9pIwY/s1600/scott-fox-maine-bank-fraud.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgfCz9Hh31GojFGdd3sM4AUkixTdOeTjZLu6PvOrqtI1SJTtXb903iz3VaYBv7hI38s8LZH7p__V_jTarRwNHfWUG2WLYckAhwUOFc15fT7brZwmqRVbeFg8gEYN52c9Rr7GWkI8SH9pIwY/s1600/scott-fox-maine-bank-fraud.jpg" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Scott Fox pleads to $14m bank fraud</td></tr>
</tbody></table>
Walter Scott Fox III, better known as Scott Fox, was a fixture in the Portland sailing community for at least the last 20 years. The 56 year old was a longtime member of the Portland Yacht Club, owner of expensive racing sailboats, and a great advocate of junior racing.<br />
<br />
He owned The Boathouse, a boating supply store in Falmouth's Handyboat complex where he appeared to do a good business of outfitting junior sailors with racing dinghies and associated gear. Scott Fox looked to be a successful businessman and a role model for the many youth that he helped support. As it turns out, his whole life was built on a fraudulent loan scheme that ran from 1995 to 2012 and netted Fox about $14,000,000.<br />
<a name='more'></a><br />
<h2>
<span style="font-size: large;">The Offense Conduct</span></h2>
Fox worked for many years as a commercial loan officer for KeyBank. While he was there, he opened loans and lines of credit in the names of business clients without their permission. He withdrew funds for his personal use and kept borrowing more money to make payments and avoid defaulting on the increasing debt. Some of the debt had to be secured by collateral and Fox faked that too. He created fake certificates purporting to show that he owned significant investments. Through his decades of membership at the Portland Yacht Club, Fox befriended well-respected finance executives and he forged of their signatures on those fake documents.<br />
<br />
The whole house of cards collapsed when Fox was unable to again increase a line of credit to continue paying the interest on the loans. By August of 2012 loans were in default and bank management started asking questions about the fraudulent accounts. Fox resigned from KeyBank suddenly in September of 2012, closed The Boathouse, and later moved to Georgia with his wife.<br />
<br />
In September of 2013, with an investigation underway, Fox's defense lawyer contacted the U.S. Attorney's Office and arranged for him to come clean. By Thanksgiving of 2013, Fox had signed a plea agreement and on February 4, 2014 he walked into Federal Court in Portland, Maine and quietly pled guilty to one of the largest financial crimes in Maine's recent history.<br />
<br />
<ul>
<li><a href="https://drive.google.com/file/d/0B3rjtxVPOqL7ZGFkdXhpMmxUU3M/edit?usp=sharing" target="_blank">Read the Prosecution Version for more details about the offense</a></li>
</ul>
<div>
<br /></div>
<h2>
<span style="font-size: large;">The Plea Agreement</span> </h2>
In federal court, plea agreements rarely guarantee the defendant a certain sentence and this one is no different. Still, the prosecution and defense can often agree on many issues and thereby shape the Judge's sentencing analysis. In this case, the prosecution and defense agreed on many important points. At sentencing, the parties will each argue for the sentence they want and the judge will impose a sentence. Here is what we know from the <a href="https://drive.google.com/file/d/0B3rjtxVPOqL7UHB3bkU3b3BBNjQ/edit?usp=sharing" target="_blank">plea agreement filed in this case</a>:<br />
<br />
Scott Fox agreed to plea guilty to an <a href="https://drive.google.com/file/d/0B3rjtxVPOqL7WWxjMGhiNjRRaFE/edit?usp=sharing" target="_blank">information charging two counts</a>:<br />
<ol>
<li>Bank fraud, a violation of <a href="http://www.law.cornell.edu/uscode/text/18/1344">18 U.S.C. § 1344</a></li>
<li>Tax Evasion, a violation of <a href="http://www.law.cornell.edu/uscode/text/26/7201" target="_blank">26 U.S.C. § 7201</a></li>
</ol>
In every federal case, the sentencing analysis starts with the sentencing guidelines. The guidelines consider two things: the offense level for the crime and the criminal history level for the defendant. Offense level goes from 1 to 43 and history categories are 1 to 6. The higher each one is, the worse things get. Sentences are expressed in terms of months. <a href="https://drive.google.com/file/d/1hvBZ6yTJwOHsLslUqoIdSk1vT3yqImqgvUYzCIfXA3yjdQFaKo6RRU4oCm4L/edit?usp=sharing" target="_blank">This sentencing table</a> helps show how it works.<br />
<br />
The parties have agreed that the guideline should be calculated in the following way. <a href="http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/2b1_1.htm">USSG §2B1.1(a)(1)</a> sets the offense level for this crime. While the basic level is quite low, the offense characteristics detailed below lead to a pretty extreme number:<br />
<ul>
<li><strong>Base offense level is 7</strong></li>
<li>Add 20: The loss was over $7,000,000</li>
<li>Add 2: The offense involved sophisticated means</li>
<li>Add 2: Fox misused identification to produce other means of identification</li>
<li>Add 2: Fox received over $1,000,000 gross from a financial institution</li>
<li>Add 1: Grouping the lesser tax evasion count in increases the offense level by 1</li>
<li><strong>Adjusted offense level is 34</strong></li>
<li>Subtract 3: For pleading guilty and accepting responsibility for his crimes.</li>
</ul>
To put a level 34 offense in perspective, or to highlight the absurdity of federal drug sentences, consider that distributing 30 grams of LSD, or 840 grams of crack cocaine <a href="http://www.ussc.gov/Guidelines/2012_Guidelines/Manual_HTML/2d1_1.htm">will also get you an offense level of 34</a>.<br />
<br />
Subtracting 3 points for acceptance gives an offense level of 31. Scott Fox has no prior convictions so he is criminal history category 1. The guideline sentencing range is then 108-135 months.<br />
<br />
Other elements of the plea agreement:<br />
<ul>
<li>Fox waives his right to appeal a sentence that does not exceed 135 months or 11 years 3 months.</li>
<li>He agrees to pay $8,196,181.15 restitution to KeyBank</li>
<li>He agrees to pay $1,349,862 restitution to the IRS</li>
<li>He agrees to forfeit a property at 17 Critter Lane in Windham, Maine</li>
</ul>
<div>
<br /></div>
<h2>
<span style="font-size: large;">What's Scott Fox's Likely Sentence?</span></h2>
<div>
It's hard to know what the sentence will be. Between the plea and sentencing, U.S. Probation will draft a report which gives the court a lot of information about the defendant and any factors that might lead to an increase or reduction in the sentence. There is no minimum sentence here and the maximum is 30 years.</div>
<div>
<br /></div>
<div>
Though his attorney will probably argue that the court should impose a sentence below the guidelines, the amount of the theft, the duration of the scheme, and simply the level of fraud and dishonesty will make that a tough sell. It's telling that Fox waived his right to appeal a sentence of 135 months or less. That's the high end of the guideline range. The appeal waiver is often set at the sentence the prosecutor will request, so you can bet they will ask for at least 135 months. </div>
<div>
<br /></div>
<div>
If the U.S. Attorney wanted to take it easy, he could have set the appeal waiver at the low end, 108 months. This would give the defense free reign to request a below guideline sentence with relative confidence that the worst case scenario is still the low end number. There was no such luck in this case.</div>
<div>
<br /></div>
<h2>
<span style="font-size: large;">Free on Bail Pending Sentencing</span></h2>
After entering his guilty a plea, Scott Fox was released on bail over the government's objection. The bail is $5,000 unsecured, meaning he does not need to put the money up, but would owe the government $5,000 if he violates his conditions. He has conditions of home confinement and electronic monitoring. He will reside at his home in Canton, Georgia awaiting sentencing scheduled for May 28, 2014 in Portland Federal Court.<br />
<ul>
<li><a href="https://drive.google.com/file/d/0B3rjtxVPOqL7cE5GX2VReXc2Wm8/edit?usp=sharing" target="_blank">Here is the defense motion for release pending sentencing</a></li>
<li><a href="https://drive.google.com/file/d/0B3rjtxVPOqL7VHd5LTEyTDlILVU/edit?usp=sharing" target="_blank">Read the conditions of release here</a></li>
</ul>
<div>
<br /></div>
<h2>
<span style="font-size: large;">Oh Yeah, The Mistress</span></h2>
The Prosecution Version mentions “CNB” a woman who Scott Fox was having an affair with for several years. In May 2011, Fox paid $180,000 in cash for a house at 17 Critter Lane in Windham, Maine. He signed the deed over to CNB in June of that year and CNB agreed to pay a $100,000, twenty year mortgage to Fox. In March of 2012, Fox discharged the mortgage. This is the same property Fox agreed to forfeit.<br />
<br />
A quick look in the registry of deeds shows that CNB is Cherish Nicole Burgess, a 25 year old woman from the Bangor area. She has a checkered past and <a href="http://bangordailynews.com/2012/01/24/news/bangor/brewer-house-fire-under-investigation/" target="_blank">seems to have developed a knack for dating men who end up in jail</a>, though usually for drug trafficking. She has a few arrests on her record for drug offenses and theft, but thats about it. She does not appear to face any charges in connection with Scott Fox's crimes.<br />
<br />
<h2>
<span style="font-size: large;">Case Documents in PDF</span></h2>
<ul>
<li><a href="https://drive.google.com/file/d/0B3rjtxVPOqL7WWxjMGhiNjRRaFE/edit?usp=sharing" target="_blank">Information Charging Bank Fraud and Tax Evasion</a></li>
<li><a href="https://drive.google.com/file/d/0B3rjtxVPOqL7ZGFkdXhpMmxUU3M/edit?usp=sharing" target="_blank">Prosecution Version of the Offense</a></li>
<li><a href="https://drive.google.com/file/d/0B3rjtxVPOqL7UHB3bkU3b3BBNjQ/edit?usp=sharing" target="_blank">Plea Agreement</a></li>
<li><a href="https://drive.google.com/file/d/0B3rjtxVPOqL7TWdsYS1GdHM5UnM/edit?usp=sharing" target="_blank">Docket Record</a></li>
<li><a href="https://drive.google.com/file/d/0B3rjtxVPOqL7cE5GX2VReXc2Wm8/edit?usp=sharing" target="_blank">Defense motion for release pending sentencing</a></li>
<li><a href="https://drive.google.com/file/d/0B3rjtxVPOqL7VHd5LTEyTDlILVU/edit?usp=sharing" target="_blank">The conditions of release</a></li>
</ul>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.246656 -111.56214800000001 67.070722 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-47293905930964855202014-01-29T00:54:00.000-05:002014-01-30T00:40:45.306-05:00Burrage v. U.S.: Trafficked Drug must be But-For Cause of Death<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhauZ3PvOtH8aFS53csYV4nunFgfD4iY0_dQ_pwu5id9IcQ5W2WS1k41myf1zapn_IIvhbmuTHoP4es05opDl5kYFcvpEUBoj8YA-3Re1hQovNfJWD6b4el1n6aRQ6RlaihIXeNgkeT5TZq/s1600/drug-trafficking-causing-death.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img alt="Burrage v. United States, supreme court rules in defendant's favor" border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhauZ3PvOtH8aFS53csYV4nunFgfD4iY0_dQ_pwu5id9IcQ5W2WS1k41myf1zapn_IIvhbmuTHoP4es05opDl5kYFcvpEUBoj8YA-3Re1hQovNfJWD6b4el1n6aRQ6RlaihIXeNgkeT5TZq/s1600/drug-trafficking-causing-death.jpg" height="150" title="Burrage v. United States, IV drug needle" width="200" /></a></div>
On 1/27/14 the United States Supreme Court decided <em><a href="http://www.supremecourt.gov/opinions/13pdf/12-7515_21p3.pdf" target="_blank">Burrage v. United States</a>.</em> The opinion limits the use of a Federal drug trafficking sentencing enhancement for cases where the drug user dies. The decision considers one specific statute, but it has lot to say about legal causation in general. In the end, the high court unanimously rejects the criminal causation rule used by Maine and a handful of other states.<br />
<a name='more'></a><br />
<h2>
<span style="font-size: large;">A Deadly Bender</span></h2>
Joshua Banka was an intravenous drug user and, in the early morning hours of April 15, 2010, he overdosed and died. In the preceding hours, he used a lot of drugs including oxycodone stolen from a roommate and heroin purchased from the defendant, Marcus Burrage.<br />
<br />
When police arrived to find Banka dead, they also found: baclofen, clonazepam, alprazolam, hydrocodone, oxycodone, a marijuana bong, a bag containing an unknown narcotic and about .59 grams of the heroin from Burrage.<br />
<br />
Burrage was prosecuted in an Iowa federal court for violating <a href="http://www.law.cornell.edu/uscode/text/21/841" target="_blank">21 U.S.C. § 841(a)</a> by distributing a controlled substance. The prosecution also invoked the penalty provisions of 21 U.S.C. § 841(b)(1)(C) which sets a mandatory minimum sentence of 20 years “if death or serious bodily injury results from the use of such substance.”<br />
<br />
<h2>
<span style="font-size: large;">The Evidence at Trial</span></h2>
At trial, the medical examiner testified that the cause of death was a “mixed drug intoxication with the drugs contributing to death, including heroin, the oxycodone, the alprazolam and the clonazepam.” Testimony also established that Banka had physical health problems including heart and lung disease.<br />
<br />
Many of the drugs involved were potentially fatal, but blood tests could not clearly distinguish the different kind of opiates in Banka's system and it was impossible to determine what amount of each drug he had taken. A toxicologist also testified, but neither expert was willing to say that heroin itself caused death, or that its omission from Banka's bender would have saved his life.<br />
<br />
At the close of the government's case, the defense argued that the judge should acquit Burrage since the prosecution had failed to prove that Banka’s death “resulted from” Burrage’s heroin; no evidence could directly connect the heroin as the fatal agent. The judge denied that motion. The defense then asked for a jury instruction requiring the prosecution to prove that death was a direct result of the heroin. The judge rejected the proposed instructions and instead told the jury to find Burrage guilty: “if the heroin distributed by the defendant was a contributing cause of Joshua Banka’s death.” The jury returned a guilty verdict and the judge imposed the minimum 20 year sentence.<br />
<br />
Burrage appealed. The eighth circuit affirmed finding that the court’s instructions were sufficient and that the defendant’s proposed instructions misstated the law since proof of proximate cause was not required.<br />
<br />
<h2>
<span style="font-size: large;">The Supreme Court Opinion</span></h2>
Burrage’s prosecutors argued that the Supreme Court should adopt a concurrent causation rule, this would allow a conviction even without proof that the defendant’s heroin was itself sufficient to kill Banka. Under this rule, “death results from the use of such substance” if the defendant’s drug, together with other causes, created intoxication that lead to death. The government argued that overdose deaths often involve multiple drugs and a more restrictive causal link would be unworkable. Slip p. 10.<br />
<br />
The Court disagreed saying: “Especially in the interpretation of a criminal statute subject to the rule of lenity,… we cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.” Slip p. 12. Instead, the court decided to apply a “but-for” causation test:<br />
<blockquote>
<em>We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U. S. C. §841(b)(1)(C) unless such use is a but-for cause of the death or injury. </em>Slip p. 15</blockquote>
The evidence at trial did not meet this test and so the conviction on that count was overturned. Burrage was convicted of other counts too and received a second concurrent 20 year sentence which remains undisturbed by this ruling.<br />
<br />
<h2>
<span style="font-size: large;">Under Maine’s law, Burrage’s Conviction Would Stand</span></h2>
Maine gets a rare mention on page 12 of the slip opinion. The court notes that, though a few other states have adopted concurrent causation via case law, Maine joins with only Alabama, North Dakota, Arkansas and Texas by incorporating the rule into our criminal statutes. Maine’s law provides:<br />
<blockquote>
<em>“when causing a result is an element of a crime, causation may be found where the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant was clearly insufficient." </em><a href="http://www.mainelegislature.org/legis/statutes/17-A/title17-Asec33.html" target="_blank">17-A §33</a></blockquote>
Though the prosecution must normally prove all elements of the crime beyond all reasonable doubt, Maine’s causation rule shifts the burden a bit. It allows the prosecution to charge a crime where multiple causes could have created the result. As long as the defendant’s conduct contributed in some way, he is guilty unless the evidence proves that (1) the other causes were clearly sufficient to cause the result, <span style="text-decoration: underline;">and</span> (2) that the defendant’s actions were clearly insufficient. That's a difficult bar to clear.<br />
<br />
<h2>
<span style="font-size: large;">So is Maine’s Law Illegal?</span></h2>
Well, no. <em>Burrage</em> turns on an interpretation of §841(b)(1)(C) so it doesn’t change anything beyond that. But the language in the opinion certainly suggests that the court does not favor the more liberal theories of causation that some states use. <br />
<br />
Maine has a similar Drug Trafficking enhancement and aggravated drug trafficking can be charged if “death is in fact caused by the use of that scheduled drug”. With our less exacting causation standard, that’s not too hard to prove.<br />
<br />
<h2>
<span style="font-size: large;">More Information</span></h2>
<ul>
<li>Read a <a href="http://www.pressherald.com/blogs/harmlesserror" target="_blank">shorter version of this post published on the Portland Press Herald site</a></li>
<li>Here’s the opinion in <em><a href="http://www.supremecourt.gov/opinions/13pdf/12-7515_21p3.pdf" target="_blank">Burrage v. United States</a></em></li>
<li>Here’s the <a href="http://www.scotusblog.com/case-files/cases/burrage-v-united-states/" target="_blank">Burrage SCOTUSblog case page</a> linking the briefs and other resources</li>
<li>Read more about <a href="http://lukerioux.com/drug-trafficking-charges-defined-maine/">Maine’s Drug Trafficking Laws</a></li>
<li>Lean about enhanced sentencing for <a href="http://lukerioux.com/aggravated-drug-trafficking-maine-minimum-sentences/#other">Aggravated Drug Trafficking in Maine</a></li>
</ul>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.2466605 -111.56214800000001 67.0707175 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-57095085611784592972014-01-26T13:53:00.001-05:002014-01-26T13:53:54.728-05:00Harmless Error at the Portland Press HeraldHarmless Error blog is now on the Portland press Herald website: <a href="http://www.pressherald.com/blogs/harmlesserror">http://www.pressherald.com/blogs/harmlesserror</a><div><br></div><div>I will be posting there at least twice a week. </div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2981470705981969358.post-35742862635700845962014-01-07T06:42:00.000-05:002014-01-17T23:02:29.098-05:00Marijuana Trial to Begin for Malcolm French, Rodney Russell & Kendall Chase<div class="separator" style="clear: both; text-align: center;">
</div>
<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEis-DYqy261HFtewpYQSbrqwiq6vebBGkvvbJGRa0k5dBYZWaV6Wr7KKZTRGltabvJ-NfnY3xcVSBoA4cZlC1YMth6BvF24i-bH6fjU8zwiY79WwadeYe-sR94ZkvdJtn3oXYZ76K8rDeHi/s1600/marijuana-field-426.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEis-DYqy261HFtewpYQSbrqwiq6vebBGkvvbJGRa0k5dBYZWaV6Wr7KKZTRGltabvJ-NfnY3xcVSBoA4cZlC1YMth6BvF24i-bH6fjU8zwiY79WwadeYe-sR94ZkvdJtn3oXYZ76K8rDeHi/s1600/marijuana-field-426.jpg" height="200" width="200" /></a></div>
This week, one of the largest marijuana busts in Maine history will go to trial in Bangor federal court. Malcolm French, Rodney Russell and Kendall Chase, all businessmen in their 50s, are accused in a marijuana trafficking conspiracy involving thousands of marijuana plants worth some $9 million. <a href="https://drive.google.com/file/d/0B3rjtxVPOqL7THFPaEVWcFBPZmc/edit?usp=sharing">The indictment alleges</a> that from 2006 to 2009, the men ran an outdoor marijuana grow of at least 1000 plants in rural Washington County Maine. <a href="http://www.law.cornell.edu/uscode/text/21/841">Federal law</a> mandates a minimum prison sentence of 10 years and a maxim sentence of life.<br />
<a name='more'></a><br />
All three defendants remain free on bail since their initial court appearance in September of 2012. French is represented by Walter McKee, Russell by Stephen Peterson and William Maddox, and Kendall Chase is represented by Jeffrey Silverstein. AUSA Joel Casey is the lead prosecutor.<br />
<br />
The indictment alleges 11 criminal counts and separate forfeiture allegations naming at least four parcels of land and the entirety of a company known as Haynes Timberland Inc. That company is also named as a defendant and is represented by Thomas Marjerison. Timberland will join the three human defendants at trial. Jury selection is scheduled for January 8, 2014 with opening statements immediately after.<br />
<br />
For more details about the case, read <a href="https://drive.google.com/file/d/0B3rjtxVPOqL7b3laTkM2VExFblU/edit?usp=sharing">the government’s trial brief</a>. It runs about 25 pages and gives an overview of the investigation and trial evidence. You can can also read <a href="http://www.pressherald.com/news/Men_accused_of_running_massive_Maine_drug_operation_going_to_trial_.html?pagenum=full">coverage of the case in the Portland Press Herald</a>. Check back here for updates as the trial unfolds. It will likely continue through the end of the month.<br />
<br />
Image by eggrole via flickrUnknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000818.136654500000002 -111.56214800000001 69.1807235 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-4976516714611737922014-01-03T00:59:00.002-05:002014-01-03T00:59:59.948-05:00Bond v. United States: Infidelity, Chemical War, and a RadioLab Podcast<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgsNqdNJQJyL9CZgB2UbMLNBYYXNZj-SnAaPAJJ0V0yQkxRgs0VMCBUF0Q7CrrIMkVIS4s0oSuIKuLYnXbZMZkDrRSCzx5pwAFX-y6vgNnJfP2pROlSDeej110E2Y0zAjdKU88Ro-NqrzMk/s1600/Chemical-Weapon-Symbol.jpeg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img alt="Bond v. United States Chemical Weapon Symbol" border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgsNqdNJQJyL9CZgB2UbMLNBYYXNZj-SnAaPAJJ0V0yQkxRgs0VMCBUF0Q7CrrIMkVIS4s0oSuIKuLYnXbZMZkDrRSCzx5pwAFX-y6vgNnJfP2pROlSDeej110E2Y0zAjdKU88Ro-NqrzMk/s200/Chemical-Weapon-Symbol.jpeg" title="Chemical Weapon Symbol" width="200" /></a></div>
<i>Bond v. United States</i> has been to the U.S. Supreme Court twice now. Round one resolved a standing issue and the latest argument dealt with the merits of the case. <i>Bond</i> asks whether there are limits on the way federal criminal liability can be expanded when congress enacts treaties and legislation to enforce them. The defendant was sent to federal prison for violating an international chemical weapons ban when she tried to get revenge on her husband's lover.<br />
<a name='more'></a><br />
<h2>
<span style="font-size: large;">Facts of Bond v. United States</span></h2>
Carol Anne Bond learned that her husband, Clifford, had been cheating on her. To make matters worse, the other woman was Bond’s closest friend Myrlinda Haynes. To make matters even worse, Haynes was pregnant by Clifford. And also, Bond was unable to bear children of her own. Carol Bond wanted revenge. She worked for a chemical company and stole a bottle of an arsenic based substance from her employer. She also ordered a vial of potassium dichromate, a photo developing chemical, from Amazon.com. On several occasions over the course of 7 months, bond spread the chemicals on Haynes’ mailbox, doorknob, and car door handle.<br />
<br />
Haynes was quite aware of Bond’s scheme, one of the chemicals she used was bright orange and easy to spot. She avoided contact with the chemicals and reported the toxic traps to local police; they weren’t interested in getting involved. The chemical attacks persisted and, after Haynes got a minor burn on her thumb, the U.S. Postal Service agreed to investigate. They set up surveillance cameras and found conclusive evidence of Bond’s involvement.<br />
<br />
<h2>
<span style="font-size: large;">The Chemical Weapons Convention</span></h2>
Normally, retaliating against your husband’s lover by hurting her thumb is called assault and is properly dealt with in State court. But here, the The U.S. Attorney got creative and prosecuted Bond for violating <a href="http://www.law.cornell.edu/uscode/text/18/229">18 U.S.C. § 229(a)(1)</a> the statute criminalizing violations of the <a href="http://www.cwc.gov/">Chemical Weapons Convention or CWC</a>.<br />
<br />
In 1993, the United States joined with other nations to sign the CWC. Signatories to the treaty agreed to ban the development, stockpiling or use of chemical weapons. 18 U.S.C. § 229(a)(1) outlaws CWC violations and makes it a federal crime “knowingly to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.” <a href="http://www.law.cornell.edu/uscode/text/18/229F">18 U.S.C. § 229F</a> defines “chemical weapon” to include any “toxic chemical” meaning:<br />
<blockquote>
<em>any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. The term includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere. 18 U.S.C. § 229F(8)(A)</em></blockquote>
That definition covers a whole lot of chemicals including the substances that Mrs. Bond spread on the door handles, mailbox and car handles for her husband’s lover.<br />
<br />
<h2>
<span style="font-size: large;">The Road to SCOTUS</span></h2>
Bond moved to dismiss the indictment arguing that her federal prosecution “exceeded Congress’ enumerated powers, invaded the powers reserved to the States by the Tenth Amendment, and impermissibly criminalized conduct that lacked a nexus to any legitimate federal interest.” <a href="http://sblog.s3.amazonaws.com/wp-content/uploads/2012/09/12-158-2012-08-01-Bond-Cert-Pet-Final.pdf">Petition for Cert</a>. Page 10. The motion was denied, and Bond entered a conditional guilty plea allowing her to appeal the issues raised in the motion. Bond was sentenced to 6 years in federal prison. If charged with a Pennsylvania State assault, she likely would have faced a sentence of 3 to 25 months.<br />
<br />
The Third Circuit affirmed but did not reach the constitutional arguments. Instead, the court held that Bond lacked standing to challenge legislation designed to implement treaties. The U.S. Supreme Court had to resolve the question and, <a href="http://scholar.google.com/scholar_case?case=12691789482415909888&q=bond+v.+united+states+2011&hl=en&as_sdt=10000006">in 2011, ruled in Bond’s favor</a> holding that she did have standing to challenge section 229.<br />
<br />
On remand, the Third Circuit reached the merits but <a href="http://scholar.google.com/scholar_case?case=12577048008112553352&q=Carol+anne+bond&hl=en&as_sdt=4,108,123&as_ylo=2010">again affirmed Bond’s conviction</a>. The Court was conflicted about the outcome noting that, “The decision to use the Act — a statute designed to implement a chemical weapons treaty — to deal with a jilted spouse’s revenge on her rival is, to be polite, a puzzling use of the federal government’s power.” n.20. They also recognized that, “The Act’s breadth is certainly striking, seeing as it turns each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.” n.7. Still, the court believed that the law required this result.<br />
<br />
<h2>
<span style="font-size: large;">Missouri v. Holland, Looking Good at 93?</span></h2>
The Third Circuit felt bound by <a href="http://scholar.google.com/scholar_case?case=8930976133950292975&q=Missouri+v.+Holland&hl=en&as_sdt=10000006"><i>Missouri v. Holland</i></a>, a five page Supreme Court opinion from 1920. That case did not involve a criminal prosecution, instead, Missouri sued Holland, the U.S. Game Warden, to enjoin him from enforcing the Migratory Bird Treaty Act of 1918. Holland had prevented some bird hunting within the state and one of the people he stopped happened to be the State's Attorney General. The District Court dismissed the suit and The Supreme Court affirmed. Though it's hard to discern a quotable “holding” from the case, the Supreme Court found that the treaty was constitutional, did not improperly invade powers reserved to the states, and that the legislation allowing the Warden to enforce the treaty was necessary and proper.<br />
<br />
So what does Holland stand for? Prosecutors read the case to say that legislation enacted to enforce a valid treaty is a constitutionally valid exercise of the Necessary and Proper Clause. Bond argues that the constitution prohibits a national police power, and that passing a treaty can’t expand federal jurisdiction into the territory of state criminal law.<br />
<br />
There is an iteresting story behind <i>Holland</i>. WYNC’s RadioLab recently did a podcast about that case and <i>Bond</i>, explaining the history in a pretty compelling way. You can use the player below to check it out.<br />
<br />
<iframe frameborder="0" height="54" scrolling="no" src="//www.radiolab.org/widgets/ondemand_player/#file=http%3A%2F%2Fwww.radiolab.org%2Faudio%2Fxspf%2F337502%2F;containerClass=radiolab" width="474"></iframe> <br />
<br />
<h2>
<span style="font-size: large;">Waiting For a Ruling</span></h2>
Bond was argued November 5, 2013 and remains undecided. You can read <a href="http://www.scotusblog.com/2013/11/argument-recap-a-tense-hour-at-the-court/">SCOTUSblog’s argument recap here</a>. The tea leaves suggest that the court might be leaning Bond’s way. Justices seemed suspicious of section 229 with Alito noting that Halloween candy could be considered a chemical weapon under the treaty since it’s poisonous to dogs. Roberts noted that the logical conclusion of the government’s position would allow congress to end run the constitution and claim a nation police power just by adopting a treaty on the issue. When Solicitor General Verrilli replied that ratification of such a treaty was “unimaginable”, Justice Kennedy said: “It seems unimaginable that you did bring this prosecution.”<br />
<br />
Bond’s attorney, Paul Clement, argued that the court need not limit the government’s treaty power in order to find section 229 unconstitutional as applied. He argued that principles of constitutional avoidance require the court to construe the statute to apply only to warlike use of chemical weapons. Such a reading is constant with the language of the treaty and the statute, and applying that interpretation avoids the entire conflict. A decision is expected early in 2014.Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.246651500000002 -111.56214800000001 67.0707265 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-61441965461526205272013-12-11T16:54:00.003-05:002013-12-17T22:42:42.071-05:00Kansas v. Cheever: Shrinking Heads and a Shrinking 5th Amendment<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgYRf74pWq2inzw0OUzhtiXHFk9H-5P4oy9f6I-T-3XC2Z3PCQ0o9nISOHusr4rMRgtcPH04jzI3m8b2_wh4kEP4seZ2yh3sWxlXzH079mPdqYtAEl4RLJj3RKgC7tVSqrTmHkLQx790yZi/s1600/SCOTUS-building.JPG" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img alt="Kansas v. Cheever SCOTUS limits 5th amendment protections for mental evaluations." border="0" height="141" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgYRf74pWq2inzw0OUzhtiXHFk9H-5P4oy9f6I-T-3XC2Z3PCQ0o9nISOHusr4rMRgtcPH04jzI3m8b2_wh4kEP4seZ2yh3sWxlXzH079mPdqYtAEl4RLJj3RKgC7tVSqrTmHkLQx790yZi/s200/SCOTUS-building.JPG" title="" width="200" /></a></div>
<div class="p1">
The United States Supreme Court has decided <i><a href="http://www.supremecourt.gov/opinions/13pdf/12-609_g314.pdf" target="_blank">Kansas v. Cheever</a></i> with Justice Sotomayor delivering the Court's unanimous opinion. The decision overturns <a href="http://www.bloomberglaw.com/public/document/State_v_Cheever_295_Kan_229_284_P3d_1007_2012_Court_Opinion" target="_blank">the Kansas Supreme Court </a>and approves the prosecution’s use of statements a defendant made in a court-ordered psychiatric evaluation to rebut the defense expert's testimony that Cheever lacked the <i>mens rea</i> because of intoxication. Cheever did not consent to the evaluation and never raised a traditional mental health defense. At his trial for the 2005 killing of a Sheriff, the rebuttal evidence was allowed, Cheever was convicted and sentenced to death.</div>
<a name='more'></a><br />
<h2>
<span style="font-size: large;">Facts of the Case</span></h2>
<div class="p1">
In 2005 Scott Cheever was involved in the manufacture and use of methamphetamine. When police arrived, Cheever shot at them and killed a local sheriff. Cheever was prosecuted in federal court at a time when the Kansas death penalty was held to be unconstitutional. In federal court, his attorney filed a notice of intent to introduce expert testimony about defendant's intoxication. The judge ordered Cheever to submit to a psychiatric evaluation and Cheever complied. </div>
<div class="p1">
<br /></div>
<div class="p1">
The federal proceedings were suspended and later abandoned when defense counsel became incapacitated. The state court again took up prosecution, now with a death penalty that met constitutional muster. At trial, the defense presented expert testimony that Cheever was intoxicated at the time of the incident and lacked the requisite state of mind to be convicted of capital murder. The court allowed the prosecution to rebut that evidence by offering information and opinion from the federal court psychiatric evaluation. That evidence was admitted over defense objection. Cheever was convicted and sentenced to death. An appeal to the Kansas Supreme court followed.</div>
<div class="p1">
<br /></div>
<h2>
<span style="font-size: large;">The Kansas Supreme Court Orders a New Trial</span></h2>
<div class="p2">
The <a href="http://www2.bloomberglaw.com/public/desktop/document/State_v_Cheever_295_Kan_229_284_P3d_1007_2012_Court_Opinion" target="_blank">Kansas Supreme Court reversed the conviction and remanded for a new trial</a>. In so doing, they distinguished the earlier SCOTUS decision in <a href="http://scholar.google.com/scholar_case?case=3464871080593131615&q=Buchanan+v.+Kentucky+483+U.S.+402&hl=en&as_sdt=10000006" target="_blank"><i>Buchanan v. Kentucky</i> 483 U.S. 402 (1987)</a>. In that case the defense had requested an evaluation and raised a defense based on a mental disease or defect and the Supreme Court allowed rebuttal use of defendant's mental health evaluation statements. Cheever's Kansas court reasoned that intoxication was not a mental disease or defect under state law, Cheever had not requested the evaluation nor had he consented to it or otherwise waived his Fifth Amendment privilege.</div>
<div class="p1">
<br /></div>
<div class="p1">
The Kansas court's decision instead relied on <a href="http://scholar.google.com/scholar_case?case=3874052948546256691&q=Estelle+v.+Smith,+451+U.+S.+454&hl=en&as_sdt=10000006" target="_blank"><i>Estelle v. Smith,</i> 451 U. S. 454 (1981)</a>. In that case the Supreme Court held that the trial court improperly admitted statements the defendant made at a court ordered competency evaluation. The court reasoned that the defendant did not initiate the evaluation nor did he attempt to introduce any psychiatric evidence at trial or sentencing. In that case the defendant was never informed that the report could be used against him nor did he execute any proper waiver of his Fifth Amendment rights.</div>
<div class="p1">
<br /></div>
<h2>
<span style="font-size: large;">U.S. Supreme Court Reverses & Affirms the Conviction</span></h2>
<div class="p1">
Today the United States Supreme Court rejects the Kansas Court's reasoning. As best as I can tell, this is their holding:</div>
<blockquote class="tr_bq">
When a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him. Slip p. 6</blockquote>
That seems pretty limited but the logic that got us there is more troubling. A bit higher on page 6, the court seems to say that presenting evidence which challenges the prosecution's proof of <i>mens rea</i>, acts as a Fifth Amendment waiver tantamount to the waiver of a defendant who chooses to testify in their own defense:
<br />
<blockquote class="tr_bq">
The admission of this rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination. A defendant “has no right to set forth to the jury all the facts which tend in his favor without laying-himself open to a cross-examination upon those facts.” (<i>Quoting:</i> <i>Fitzpatrick v. United States</i>, 178 U. S. 304, 315 (1900).)</blockquote>
<div>
Later in the paragraph, the court quotes this really scary language from <i>Brown v. United States,</i> 356 U. S. 148 (1958) an immigration case which has almost nothing in common with <i>Cheever</i>:<br />
<blockquote class="tr_bq">
“The interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.” p. 156</blockquote>
<div class="p1">
<i>Brown</i> involved a witness who denied being a member of the communist party on direct, and then refused to answer questions about her affiliation on cross. The sentence that proceeds the one quoted above is not included in the <i>Cheever</i> opinion. It reads: "[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility."</div>
<div class="p1">
<br /></div>
<div class="p1">
This is pretty wild stuff. The holding and the rational suggest that the defendant waives Fifth Amendment protections merely by presenting evidence that is based on another person's perception of the defendant. At the very least, the decision today puts defense counsel in a challenging position where the court orders a mental evaluation which the defense does not request. Even if the defense attorney never plans to raise a traditional mental health defense the decision here opens the door to a broader use of the defendant's statements to the evaluator. Defense attorneys must attend these evaluations and carefully referee their clients answers or to simply tell the evaluator that the defendant is invoking their fifth amendment right to remain silent.</div>
<div class="p1">
<br /></div>
<div class="p1">
Check out the <a href="http://www.scotusblog.com/case-files/cases/kansas-v-cheever/" target="_blank">case page on SCOTUS blog</a> for further discussion and coverage.</div>
<div class="p1">
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</div>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.244947500000002 -111.56214800000001 67.0724305 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-91569090842458826732013-12-11T11:11:00.001-05:002013-12-11T11:45:14.792-05:00Robert Evon Pleads Guilty to Drug Trafficking in NY Federal Court<div style="text-align: right;">
</div>
<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg7T3zZwly-s4h2Lx-_z9fE_txUeaB6m2KEbSQ8I8qveLbUf_liXfBqs04rrdgJOaECy46R8Eg3SeJO_nQcNBsevtAdiufU4sKcgvD3OoTPcahkf4JdijWWVgxtvCG2D2BwdcLS8KlfO3Ia/s1600/rob-evon-maine-coke-machine.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img alt="Robert Evon of Maine used soda vending machines to smuggle cocaine across the country" border="0" height="186" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg7T3zZwly-s4h2Lx-_z9fE_txUeaB6m2KEbSQ8I8qveLbUf_liXfBqs04rrdgJOaECy46R8Eg3SeJO_nQcNBsevtAdiufU4sKcgvD3OoTPcahkf4JdijWWVgxtvCG2D2BwdcLS8KlfO3Ia/s200/rob-evon-maine-coke-machine.jpg" title="" width="200" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Now that's a Coke Machine!</td></tr>
</tbody></table>
<span id="goog_669736871"></span><span id="goog_669736872"></span>Robert Evon, the Portland, Maine man accused in an international cocaine trafficking conspiracy, entered a guilty plea in the Northern District of New York on December 3, 2013. Sentencing was set for April 4, 2014. The plea documents revealed some interesting details about the case. All my <a href="http://harmlesserrorblog.blogspot.com/search/label/Evon" target="_blank">coverage of the case is collected here</a>.<br />
<a name='more'></a><br />
<div>
Evon is the former owner of Port City Music Hall, a Portland, Maine concert venue. In July of this year, he was <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7Nmd2S29LbEFzamc/edit?usp=sharing" target="_blank">indicted by a New York federal grand jury</a> on conspiracy to distribute 5 kg or more of cocaine. <a href="http://harmlesserrorblog.blogspot.com/2013/09/federal-drug-trafficking-robert-evon.html" target="">He was arrested in Portland</a> and extradited to Syracuse for further proceedings. Once in New York, <a href="http://harmlesserrorblog.blogspot.com/2013/09/robert-evon-denied-bail-federal-drug-trafficking.html" target="">Evon was denied bail</a>. The case was then scheduled for a guilty plea on 12/3/13.<br />
<br />
For those who care about this kind of thing, the text of the minute entry for the plea hearing is reproduced in full below:<br />
<blockquote class="tr_bq">
TEXT MINUTE ENTRY for Change of Plea Hearing held on 12/3/13 before Judge Glenn T. Suddaby as to Robert Evon (1): Defendant is advised of his constitutional rights and the consequences of pleading guilty. Defendant is sworn and questioned. Defendant pleads guilty to count 1 of <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7Nmd2S29LbEFzamc/edit?usp=sharing" target="_blank">the Indictment</a> and admits to forfeiture of property located at 374 Spring Street, Portland, ME in lieu of money judgment. Government states a factual basis for the plea. Maximum possible penalties are stated for the record. Court accepts plea of guilty to Count 1 of the Indictment. Plea agreement is incorporated into the record. Sentencing is scheduled for 4/4/14 at 10:00 a.m. in Syracuse, New York. Court orders a Presentence Report from Probation. Defendant is remanded to USMS. APP: Geoffrey Brown, AUSA; Kenneth Moynihan, Esq. for Defendant. CRD: L. Welch (Court Reporter: Eileen McDonough) (lmw) (Entered: 12/03/2013)</blockquote>
<h2>
<span style="font-size: large;">Evon's Plea Agreement</span></h2>
The plea agreement is 20 pages long and mostly boilerplate. <a href="https://drive.google.com/file/d/0B3rjtxVPOqL7REROemZkZWVvSjQ/edit?usp=sharing" target="_blank">You can read the whole thing here</a>. The best stuff is in paragraph 5 which lays out the factual basis for the plea. Here is an excerpt:<br />
<blockquote class="tr_bq">
On February 22, 2012, the defendant had Kenneth Irving rent a large box truck, drive to a warehouse in Elizabeth New Jersey and pick up two soda vending machines that the defendant had arranged to have filled in Los Angeles with 78 kg of cocaine. The defendant agreed to pay Irving $5000 for delivering the cocaine from New Jersey to White River Junction Vermont. The defendant previously arranged for the soda machines to be shipped from Los Angeles to New Jersey with a false bill of lading that was provided to the defendant by co-conspirator A. Irving called an individual located in Albany, New York, who, unbeknownst to him, was an undercover DEA agent, to arrange for the further delivery of the narcotics. The defendant rented the storage facility at 220 holiday Dr., White River Junction, Vermont in another person's name for the purpose of storing the vending machines and cocaine. The undercover agent arrived at 220 Holiday Dr. and Irving retrieved six large duffel bags, which had been secreted inside the two soda vending machines, and delivered them to the undercover agent.</blockquote>
Other import details from the plea agreement include:<br />
<ul>
<li>The government will recommend a three level reduction in the offense level for acceptance of responsibility. That means the sentence will be reduced for pleading guilty rather than going to trial.</li>
<li>A 10 year mandatory minimum sentence still applies.</li>
<li>Evon and his wife agree to forfeit their home on Spring Street in Portland, Maine. The home is valued at about $575,000 yet the government agrees to accept that property in full satisfaction of the the $2.34 million dollar forfeiture claim. <a href="https://drive.google.com/file/d/0B3rjtxVPOqL7U0FJVUVldGlUYzQ/edit?usp=sharing" target="_blank">You can review that forfeiture agreement here</a>.</li>
<li>Evon waives his right to appeal a sentence that does not exceed 120 months.</li>
</ul>
<h2>
<span style="font-size: large;">So What will the Sentence Be?</span></h2>
<div>
The guideline sentencing range for this offense with the 3 point acceptance reduction and a criminal history of 1 is 135-168 months. The government usually sets the appeal waiver at a term that is equal to or longer than the sentence they will request, so it's pretty likely then prosecutors will recommend a sentence of 120 months or 10 years. The defense will likely argue that Evon should get an even lower sentence, something below the mandatory minimum. That's only possible if the "safety valve" criteria are met.</div>
<br />
<h2>
<span style="font-size: large;">Federal Safety Valve Sentencing</span></h2>
<a href="http://www.ussc.gov/Guidelines/2010_guidelines/Manual_HTML/5c1_2.htm" target="_blank">U.S. Sentencing Guideline §5C1.2</a> is often called the "safety valve" and it allows a judge to sentence below the minimum if the court finds:<br />
<ol>
<li>The defendant does not have more than 1 criminal history point (one misdemeanor with a sentence of less than 60 days in jail), </li>
<li>The defendant did not use violence or threats of violence or possess a firearm or other dangerous weapon in connection with the offense; </li>
<li>The offense did not result in death or serious bodily injury to any person; </li>
<li>The defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in <a href="http://www.law.cornell.edu/uscode/text/21/848" target="_blank">21 U.S.C. § 848</a>; and </li>
<li>The defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.</li>
</ol>
<br />
The defense is free to make this argument and the judge is free to reject it. Evon has a better shot if the government agrees with a below minimum sentence and <a href="http://www.law.cornell.edu/uscode/text/18/3553" target="_blank">18 USC § 3553(f)</a>, allows the government to request safety valve treatment. That's probably not going to happen in this case.<br />
<br />
The way the government drafted the plea agreement makes it really hard for Evon to satisfy the safety valve factors. It's pretty clear from paragraph 5 that Evon was an organizer who set up the scheme, directing and employing others to accomplish components of the operation. If he had that kind of role, he is not safety valve eligible and without the safety valve, he gonna get at least a decade in prison.<br />
<br />
Check out <a href="http://www.pressherald.com/news/Former_owner_of_Port_City_Music_Hall_pleads_guilty_in_cocaine_conspiracy_.html" target="_blank">further coverage of the plea</a> from <a class="g-profile" href="http://plus.google.com/106027987863938380269" target="_blank">+Scott Dolan</a> at the Portland Press Herald. Unlike me, he managed to publish something last week, right after the hearing.</div>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.246664000000003 -111.56214800000001 67.070714000000009 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-58522895040348431162013-11-25T12:50:00.000-05:002014-01-17T22:59:27.217-05:00Portland's Marijuana Ordinance: FAQs & the Mythical Marijuana Arrest<div class="separator" style="clear: both; text-align: center;">
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<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEizin_JFVozBBF8SgW6GJOhZ-BpKjWYSsQRINthr4C6EEcD1HKLvfnpR9Bb0KllIkN6ZYWWRa-2U6MJhioXnXTOcMaakuOReHCXSqdmgeZaebURgMNpujrjXfLRqDJTUZ2SP0J3twSG8DH_/s1600/portland-maine-marijuana-ordinance-effect.jpeg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEizin_JFVozBBF8SgW6GJOhZ-BpKjWYSsQRINthr4C6EEcD1HKLvfnpR9Bb0KllIkN6ZYWWRa-2U6MJhioXnXTOcMaakuOReHCXSqdmgeZaebURgMNpujrjXfLRqDJTUZ2SP0J3twSG8DH_/s200/portland-maine-marijuana-ordinance-effect.jpeg" height="170" width="200" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Reports of my legalization <br />
have been greatly exaggerated</td></tr>
</tbody></table>
On November 5, 2013 Portland voters overwhelmingly passed a city ordinance purporting to legalize possession use of up to 2.5 ounces of marijuana within the city. A lot of people have questions about how the Portland marijuana ordinance changes things and so, <a href="http://www.portlandmaine.gov/showart.asp?contentID=2540">the city has posted some frequently asked questions to its website</a>. Of course, the article is entitled "untitled document" and it's posted at a URL made up of meaningless words and numbers so there's pretty much no chance that anyone searching for the information will actually find it. To remedy that I've provided some of the highlights with a bit of my own information and commentary mixed in.<br />
<br />
<a name='more'></a><h2>
<span style="font-size: large;">When does the ordinance take effect and how long will it be in force?</span></h2>
<br />
The ordinance will take effect December 6, 2013, 30 days after it was passed. A Portland city ordinance can't be repealed until its been in effect for five years so it'll be on the books for at least that long.<br />
<br />
<h2>
<span style="font-size: large;">I'm planning to get, like, super baked on Pearl Harbor Day. Is that gonna be a problem?</span></h2>
<br />
Well, yeah that's got the potential to be a problem. Like I said in my <a href="http://harmlesserrorblog.blogspot.com/2013/10/portland-maine-ordinance-legalize-marijuana.html">earlier post about the marijuana ordinance and it's potential impact</a>, no city ordinance can legalize something that is illegal under State or Federal law. That's because lesser jurisdiction's laws are overridden by the broader laws of the land. While A city might pass ordinances that are more restrictive than state laws, they can't use an ordinance to exempt their jurisdiction from the broader state law. As the FAQ on the city site puts it:<br />
<div>
<blockquote class="tr_bq">
<u>4. Why is it important to know that state laws in most instances preempt/overrule local laws?</u><br />
Preemption is a legal doctrine that means that a state law displaces or overrules a local (city or town) ordinance, law or regulation that is in the same subject area and is in conflict with the state law. Because Maine already has state laws governing the use, possession and sale of marijuana, those laws overrule the new city ordinance. </blockquote>
<h2>
<span style="font-size: large;">How will this ordinance impact the way law enforcement treats marijuana?</span></h2>
<br />
Things don't look like they are going to change at all. Here is what the city has to say on that in their FAQ post:<br />
<blockquote class="tr_bq">
<u>5. How will Portland Police Officers Comply with the New Ordinance?</u><br />
Portland Police officers are sworn to uphold the law. Those laws include federal, state and local laws. The passage of this ordinance will not affect the police department’s enforcement of state law. Officers will continue to use their discretion and judgment in a manner that will ensure that their enforcement authority is exercised in a fair and judicious manner.</blockquote>
The <a href="http://bangordailynews.com/2013/11/06/politics/portland-police-chief-pot-legalization-doesnt-change-anything-about-enforcement-state-law-prevails/" rel="nofollow" target="_blank">Bangor Daily News found</a> that the Portland Police don't plan to make any changes and neither do prosecutors:<br />
<blockquote class="tr_bq">
“This doesn’t change anything for us in terms of enforcement,” [<span style="background-color: white; font-family: georgia, tahoma, verdana, arial; font-size: 14px; line-height: 18px;">Portland Police Chief Michael Sauschuck]</span> said. “But the actual statistics show this is a low priority for us.” Maine Attorney General Janet Mills on Wednesday reinforced Sauschuck’s position that state law takes precedence over a local ordinance in determining enforcement strategy. “While the people of Portland are free to express their views on marijuana or other topics of social importance, the marijuana ordinance of course does not override state or federal laws regulating the use, possession, furnishing and sale of marijuana,”... “In this regard, we view the referendum as somewhat advisory in nature.”</blockquote>
<br />
<h2>
<span style="font-size: large;">Great, police will keep filling Maine's jails with marijuana users?</span></h2>
<br />
Well, no. While a lot of people think that marijuana possession will get you arrested in Maine, that's just not true. The police could never arrest anyone for possessing two in a half ounces of marijuana or less since possession of those amounts has been a civil violation in Maine for a long time. Civil violations are not crimes, the worst sentence that you can get is a fine. A lot of people who should know better don't get that. <a href="http://bellowsforsenate.com/" rel="nofollow" target="_blank">Shenna Bellows, who is running for one of Maine's U.S. Senate seats</a> tweeted thusly the night the ordinance passed:<br />
<blockquote class="twitter-tweet" lang="en">
Excitement at Brian Boru Portland. Time to stop locking people up for marijuana. <a href="https://twitter.com/search?q=%23legalize&src=hash">#legalize</a> <a href="https://twitter.com/search?q=%23mepolitics&src=hash">#mepolitics</a><br />
— Shenna Bellows (@shennabellows) <a href="https://twitter.com/shennabellows/statuses/397916821476892672">November 6, 2013</a></blockquote>
<br />
I agree with this general sentiment and in many states, this would make sense. But the tweet suggested that legalization in Maine would accomplish something that it couldn't. I responded and accidentally discovered a source of some of this confusion:<br />
<blockquote class="twitter-tweet" lang="en">
<a href="https://twitter.com/LukeRioux">@LukeRioux</a> just tweeted link to ACLU report looking at DOJ data on marijuana arrests in Maine. Portland important first step.<br />
— Shenna Bellows (@shennabellows) <a href="https://twitter.com/shennabellows/statuses/397927065150038016">November 6, 2013</a></blockquote>
Shenna was the director of the ACLU of Maine for 8 years and the link she tweeted was to <a href="https://docs.google.com/viewer?url=http%3A%2F%2Fwww.aclu.org%2Ffiles%2Fassets%2Faclu-thewaronmarijuana-rel2.pdf" target="_blank">this report</a> detailing the disproportionate impact of marijuana enforcement on black and brown Americans. It's a good report that makes a good point and it looks pretty scary since it lists 2,842 arrests for marijuana possession in Maine. From my own experience, I knew that this was simply not possible, so what went wrong?<br />
<br />
The Report uses Data from the <a href="http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/persons-arrested" target="_blank">FBI Uniform Crime Reporting Program</a>. That program tracks arrests for various crimes nationwide. So what counts as an arrest? Well, the first line on the site hosting the report data says this:<br />
<blockquote class="tr_bq">
The FBI’s Uniform Crime Reporting (UCR) Program counts one arrest for each separate instance in which a person is arrested, cited, or summoned for an offense.</blockquote>
</div>
So while almost nobody gets arrested for marijuana in Maine, the FBI counts every civil marijuana ticket as an arrest. That and the report based on the data is why the Bangor Daily News ran a story headlined: <a href="http://bangordailynews.com/2013/06/06/news/state/black-people-in-maine-twice-as-likely-to-be-arrested-for-marijuana-aclu-study-shows/?ref=relatedBox" target="_blank">ACLU: Black people in Maine twice as likely to be arrested for marijuana</a>.<br />
<br />
Look, I am all for legalization. I voted for the ordinance on 11/5/13 and was glad to see it pass. I like the ACLU and Shenna Bellows too, she would make a great senator. There are lots of good reasons to legalize marijuana and, even though no one goes to jail, it still costs a ton of money to enforce the law and prosecute these violations. I hope the legitimate reasons will carry the day, but the idea that there are thousands of people sitting in Maine jails for marijuana possession is simply nonsense. Legalization advocates had better get the facts straight or their valid arguments will be tarnished by this red herring.Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.2449435 -111.56214800000001 67.0724345 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-10231054068447571652013-10-29T00:22:00.001-04:002013-10-29T00:22:09.608-04:00City Ordinance Would Legalize Marijuana in Portland, Maine...Kinda<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEidP_XKHIe9BCmWBNYLmh6lJ6_kyjbzhe1Cz_Wxg0yudqVbxEa-INx7sGNApUi-MtvA60hWzY38jOJedxOxdTbCSUwrYHP3ZHxZRXFB10BaCu-88cQGoFn8_-ajCaF3fbf4uiom8dgN4bgZ/s1600/portland-maine-legalize-marijuana-flyer_Page_1.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img alt="Flyer for Portland Maine city ordinance to legalize marijuana" border="0" height="219" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEidP_XKHIe9BCmWBNYLmh6lJ6_kyjbzhe1Cz_Wxg0yudqVbxEa-INx7sGNApUi-MtvA60hWzY38jOJedxOxdTbCSUwrYHP3ZHxZRXFB10BaCu-88cQGoFn8_-ajCaF3fbf4uiom8dgN4bgZ/s320/portland-maine-legalize-marijuana-flyer_Page_1.jpg" title="" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">I found one of these on my door this weekend</td></tr>
</tbody></table>
A proposed city ordinance is on the November 5, 2013 ballot in Portland Maine. It claims to legalize possession of up to 2.5 ounces of marijuana within the city, but can it? Maine statutes still make possession a civil violation, and marijuana is still illegal under federal law. Here's some explanation of the current state of Maine's law, what the ordinance says and what it might actually do if it passes.<br />
<a name='more'></a><br />
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<h2>
<span style="font-size: large;">The Current State of Maine Marijuana Law</span></h2>
Today, Maine's <a href="http://www.mainelegislature.org/legis/statutes/22/title22sec2383.html" target="_blank">Title 22 §2383</a> prohibits possession of marijuana except as permitted by <a href="http://harmlesserrorblog.blogspot.com/2012/07/maine-medical-marijuana-law-proposed.html" target="_blank">Maine's medical marijuana law</a>. Here's the relevant text from 2383:<br />
<blockquote class="tr_bq">
<span style="font-family: 'Times New Roman', Times, serif; font-size: 12pt; text-align: justify; text-indent: 0em;"><b><u>A person may not possess marijuana.</u></b></span> </blockquote>
<blockquote class="tr_bq">
(A) A person who possesses a usable amount of marijuana commits a civil violation for which a fine of not less than $350 and not more than $600 must be adjudged for possession of up to 1 1/4 ounces of marijuana and a fine of not less than $700 and not more than $1,000 must be adjudged for possession of over 1 1/4 ounces to 2 1/2 ounces of marijuana, none of which may be suspended.</blockquote>
So while it's not a crime to possess marijuana, it still gets you in trouble and the police charge a ton of these offenses. Similarly, possession of a pipe or even rolling papers can get you cited for "use of drug paraphernalia." <a href="http://www.mainelegislature.org/legis/statutes/17-a/title17-asec1111-a.html" target="_blank">17-A §1111</a> sets a mandatory fine of $300 for that civil infraction.<br />
<br />
<a href="http://lukerioux.com/drug-trafficking-charges-defined-maine/" target="_blank">Drug Trafficking is definitely a crime under state Maine state law</a> and selling marijuana will get you charged with trafficking in schedule Z drugs. That's a misdemeanor punishable by up to 364 days in jail. We have recently seen that the <a href="http://harmlesserrorblog.blogspot.com/2013/10/david-jones-and-attorney-drug-trafficking.html" target="_blank">Federal government can prosecute marijuana trafficking too</a> and the sentences there can get truly horrific. So while Maine is a marijuana decriminalization state, it's not a complete safe haven for users and sellers.<br />
<br />
<h2>
<span style="font-size: large;">The Language of the Portland Marijuana Ordinance</span></h2>
You can view a <a href="https://drive.google.com/file/d/1V7PHeRdDN_l5KYJ_LWCXj45wKMt-a9_Re6OhvE9ENN7PUwUPWiNSb61bVJqt/edit?usp=sharing" target="_blank">sample of Portland's 11/5/13 city ballot here</a>. The summary language from question 1 is excerpted below:<br />
<blockquote class="tr_bq">
This ordinance legalizes the recreational use of marijuana by adults 21 years of age or older.<br /><ul>
<li>It allows adults 21 years of age or older to legally possess up to 2.5 ounces of marijuana and paraphernalia.</li>
<li>It also allows adults 21 years of age or older to engage in activities for the purpose of ascertaining the possession of marijuana and paraphernalia.</li>
<li>It prohibits recreational use activities in public spaces, school grounds, and on transportation infrastructure.</li>
<li>It prohibits adults under 21 and minors from engaging in recreational use activities.</li>
<li>Landlords and property owners may restrict the smoking of marijuana on their property by posting “No Smoking” signs near the entrances.</li>
<li>It requires the Mayor to report annually on the implementation and enforcement of the ordinance; allows city officers and employees to cooperate with federal drug enforcement authorities as required by law; and makes the City’s disciplinary procedures for officers and employees the exclusive remedy for a violation of the ordinance.</li>
<li>Finally, it resolves to support taxation and regulation of marijuana by the State of Maine and Federal Government.</li>
</ul>
</blockquote>
<h2>
<span style="font-size: large;">What Would the Proposed Ordinance Do?</span></h2>
The ordinance purports to allow possession of marijuana and to take away the civil sanction for possessing up to 2.5 ounces and would eliminate the civil liability for possessing drug paraphernalia. The language also allows adults "to engage in activities for the purpose of ascertaining the possession of marijuana and paraphernalia," but it would not legalize the sale of marijuana, so there will still be no legal way to get the stuff.<br />
<br />
The reality is that a Portland city ordinance legalizing marijuana will do nothing of the sort. That's because of preemption: the legal doctrine providing that, when a lesser government's laws conflict with those of the broader jurisdiction, they are overtaken by the broader law. So if it passes, the Portland ordinance would be preempted by the State and Federal laws which the city is powerless to change; the city can't bar the State or feds from prosecuting people who violate their laws.<br />
<br />
<b><u>Still, the ordinance may have a significant practical impact</u></b>. The Portland Police might well decline to enforce the State marijuana prohibition within the city, and there is something of a message sent when the State's largest city rebels against the law of the land. Similar local ordinances were the first steps towards Statewide legalization in Colorado and Washington. The <a href="http://www.mpp.org/" target="_blank">Marijuana Policy Project</a> helped draft the ordinance language and also worked legalization efforts in those states.<br />
<br />
These efforts have not changed the Federal laws, but have changed the Federal policy on enforcement. As U.S. Attorney General Eric Holder announced in his <a href="https://drive.google.com/file/d/15i_FytzSG-lCK0PUq6Q90lTc5SaCaL6YBEsWXrYaVT1b9w9Zw9o1JuNL9Ngk/edit?usp=sharing" target="_blank">August 29, 2013 memo</a>, marijuana enforcement should not generally be a high priority for federal prosecutors. Also, the department of justice does not plan a legal challenge against states that have legalized marijuana.<br />
<br />
It's pretty clear that a major change is coming and it's great to see Maine on the cutting edge of this issue. So get out and vote on 11/5/13. I will be there, voting for "legalization," whatever that means.Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.246683 -111.56214800000001 67.070695 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-14078623142673672692013-10-15T00:06:00.000-04:002013-10-15T00:06:19.270-04:00The Banality of False Confession: This American Life and Detective Jim Trainum<div class="separator" style="clear: both; text-align: center;">
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<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj6nkjnqAmGL036iNCDCKzzTbAM7Bq051P4isU7vrGw4EUExe2SO6jurpGAxmFLnIFB4-liQMEcJD7omeEoZLrcpG2JnTNEF5bvs9rJIZ01p_4NLbwyOuQGGvn0z5NvCu2zicusI2VIY2lY/s1600/detective-jim-trainum.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img alt="detective Jim Trainum, former DC Homicide Detective turned interrogation reform advocate" border="0" height="212" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj6nkjnqAmGL036iNCDCKzzTbAM7Bq051P4isU7vrGw4EUExe2SO6jurpGAxmFLnIFB4-liQMEcJD7omeEoZLrcpG2JnTNEF5bvs9rJIZ01p_4NLbwyOuQGGvn0z5NvCu2zicusI2VIY2lY/s320/detective-jim-trainum.jpg" title="detective-jim-trainum-false-confession" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Detective Jim Trainum</td></tr>
</tbody></table>
In case anyone missed <a href="http://www.thisamericanlife.org/radio-archives/episode/507/confessions" target="_blank">This American Life Episode 507 entitled "Confessions"</a> check it out. Act one centers on Jim Trainum a long serving Washington DC Homicide Detective. He worked a big case early in his career and got a 19 year old woman named Kim to confess to a murder. The thing is, she didn't do it. After getting the confession, Trainum accidentally found an alibi for Kim and the case was dismissed for that and other reasons. It was only many years later that Trainum discovered he had unwittingly created the false confession. The arrest and months of incarceration ruined Kim's life and the murder charge still shows up on background checks. Use the embedded player to listen to the story:<br />
<a name='more'></a><script src="http://audio.thisamericanlife.org/widget/widget.min.js" type="text/javascript"></script><br />
<div class="this-american-life" id="this-american-life-507-1" style="width: 540px;">
</div>
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<h2>
<span style="font-size: large;">It Doesn't Take a Bad Cop</span></h2>
The story demonstrates how a police interview makes a false confession a very real possibility. The interviewers give the suspect a lot of information about the crime in an effort to get more. Answers that don't comport with police suspicions are easily dismissed while details that reinforce the detective's theory are taken as truth. The interrogation becomes, not a search for the truth, but a bizarre exercise in shaping the person's statement so it lines up with what the investigators already believe. Once the subject has it all right, the police have a "confession." The recorders now come on to create the evidence that will be played for the jury.<br />
<br />
The only reason that detective Jim Trainum caught the false confession in his case is that he accidentally left the video recording running for a large part of the interview. Kim had previously confessed to using the dead man's credit card and, after recording that, the video kept going. At the time in 1994, department policy was to record only the inculpatory statement.<br />
<br />
Today most states, Maine included, don't require police interviews to be recorded at all. In many cases, the officer will simply write a report of the interview, recording the details he thinks are important. Later, he will take the witness stand to give the jury his recollection of the defendant's confession.Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.246684500000004 -111.56214800000001 67.0706935 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-38807546200183293912013-10-08T10:00:00.000-04:002014-03-08T23:59:17.985-05:00David Jones and Former Attorney Implicated in Federal Drug Trafficking<span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);">David Jones, AKA Dave Kaos, of Portland Maine was arrested late last week on a federal drug trafficking charge. <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7WmJubTdHQTNjcEE/edit?usp=sharing" target="_blank">The complaint alleges a single count of conspiracy to distribute 100 kg or more of marijuana</a>. He faces up to 40 years in prison.</span><br />
<a name='more'></a><span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);"><br />
The complaint charges that David Jones traveled to California where he had several sources of supply for large amounts of marijuana. At some point it seems that he dealt with California based family members involved in the wholesale marijuana trade. After purchasing marijuana in California, Jones then used the United States Postal Service to ship thousands of pounds of marijuana across the country.</span><br />
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<span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);"><br />
</span></div>
<div>
<span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);">The most remarkable part of the case is not the amount of drugs involved, though that is impressive. The affidavit alleges that Jones conspired with a local attorney to launder "several hundred thousand dollars" that were presumably the proceeds of his drug enterprise.</span><br />
<br />
<h2>
<span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0); font-size: large;">Who is David Jones' Attorney?</span></h2>
<span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);"><span style="background-color: rgba(255, 255, 255, 0);">The attorney is not named in the complaint and the information has not been published elsewhere. It appears that the attorney may be cooperating with the investigation since U.S. DEA agent Paul Wolf alleges in his affidavit that authorities got a copy of some documents from the attorney as part of the investigation. Then again, </span></span>the language I am referring to reads: "Law enforcement obtained a copy of that letter from the attorney as part of the investigation." So it might just mean that they got the letter the attorney sent from some other source. The drafting leaves a bit to be desired.<br />
<span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);"><span style="background-color: rgba(255, 255, 255, 0);"><br />
</span></span> <span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);"><span style="background-color: rgba(255, 255, 255, 0);">There's a good </span><a href="http://www.pressherald.com/news/Portland_man_faces_federal_charge_in_interstate_pot_smuggling_case.html" target="_blank">piece about the case over the Portland press Herald</a><span style="background-color: rgba(255, 255, 255, 0);"> by </span><a class="g-profile" href="http://plus.google.com/106027987863938380269" target="_blank">+Scott Dolan</a><span style="background-color: rgba(255, 255, 255, 0);"> </span><br />
<a href="https://docs.google.com/file/d/0B3rjtxVPOqL7WmJubTdHQTNjcEE/edit?usp=sharing" target="_blank">You can read the complaint here</a></span><br />
<span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);"><a href="https://docs.google.com/file/d/0B3rjtxVPOqL7VDh0OVlCeXdLT2s/edit?usp=sharing" target="_blank">The Synopsis is here</a></span><br />
<br />
Thats all I know for now. Other shoe to drop soon. Stay tuned for updates. XOXO<br />
<br />
Update: Jones plead guilty December 10, 2013 and is scheduled for sentencing May 8, 2014. The previously un-named attorney is Gary Prolman. Check out <a href="http://www.pressherald.com/blogs/harmlesserror/248700181.html" target="_blank">my post here about that situation</a>.</div>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.244945500000004 -111.56214800000001 67.0724325 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-85751644946409731462013-09-23T00:43:00.001-04:002013-09-23T00:43:54.583-04:00Rhonda Nappi has Died<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh8kNvMaaKalYQz4K6jNQD64vNVeBz0Ytsb4pssjfui4mQpKsX8lGYEWLsT4HqhMKCCOQHp8l5VPO_iljua9RbmfN25h2qUPeCyV4ToIM2J48_j7P0KHfAtJNfjDrbGc79pRRUAdLJItajP/s1600/Rhonda-Nappi-palm-tree.png" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh8kNvMaaKalYQz4K6jNQD64vNVeBz0Ytsb4pssjfui4mQpKsX8lGYEWLsT4HqhMKCCOQHp8l5VPO_iljua9RbmfN25h2qUPeCyV4ToIM2J48_j7P0KHfAtJNfjDrbGc79pRRUAdLJItajP/s320/Rhonda-Nappi-palm-tree.png" width="276" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">There's a <a href="http://obits.dignitymemorial.com/dignity-memorial/obituary.aspx?n=Rhonda-Nappi&lc=1633&pid=167074553&mid=5674018&Affiliate=mainetoday-pressherald&PersonID=167084222&FHID=11167" target="_blank">Rhonda Photo Gallery</a> at the link. I like<br />
this photo because it shows a palm tree on her head</td></tr>
</tbody></table>
Rhonda Nappi died on Thursday, September 19, 2013 and it really sucks. She was 60 when she died and was married to the same man for the last 41 of those years. She worked as a front desk assistant at the Cumberland County District Attorney's Office for the last 13 years and was very much alive for the eight years that I knew her.<br />
<a name='more'></a><br />
I probably saw Rhonda two or three times almost every day and spoke with her on the phone more often than that. She always asked to see pictures of my children and gave me the latest updates on her two daughters and four grandkids who now live out west. It was always a joy to see her. When I had forgotten to pick up something important, she would let me in after the office was closed and she always thought it was hilarious when I would come in to check my discovery folder and ask if they had any "discovs." I have to admit, it was pretty hilarious.<br />
<br />
Rhonda recently had an episode that lead to discovery of a brain aneurysm. She was treated and monitored in the hospital for several days. During her stay she continued to post Facebook updates and kept in touch with her friends in the DAs office. She was discharged with a good prognosis and everyone looked forward to her return in a few weeks. The next day she had another attack which proved fatal.<br />
<br />
Rhonda's job was to be the DA office's first line of defense. She dealt with pretty much everyone who walked in the door or called on the phone. That means she spent a lot of her day dealing with assholes. Many of them defendants angry that they were charged with a crime, or citizens angry that crimes were going unprosecuted, or defense attorneys angry for reasons less compelling than those already stated. I never saw Rhonda angry or in a bad mood. Not even once. For the time I knew her, she was kind and funny and made me happy. If anyone had to go, it doesn't seem right that it had to be Ronda Nappi.<br />
<br />
Visiting hours are 5-7 PM Monday, September 23 at Jones, Rich and Hutchins Funeral Home at 199 Woodford St., Portland, Maine. A memorial service will follow.<br />
<br />
Here's the <a href="http://obituaries.pressherald.com/obituaries/mainetoday-pressherald/obituary.aspx?n=rhonda-l-nappi&pid=167084222&fhid=11167#fbLoggedOut" target="_blank">Obituary that ran 9/22/13 in the Portland Press Herald</a>.<br />
Here's the <a href="http://obits.dignitymemorial.com/dignity-memorial/obituary.aspx?n=Rhonda-Nappi&lc=1633&pid=167074553&mid=5674018&Affiliate=mainetoday-pressherald&PersonID=167084222&FHID=11167" target="_blank">Funeral Home Page for Rhonda</a>Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.246682000000003 -111.56214800000001 67.070696 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-74564187287891579972013-09-09T17:51:00.002-04:002013-09-09T22:26:01.816-04:00Robert Evon Denied Bail, Accused of International Drug ConspiracyLast week I wrote about <a href="http://harmlesserrorblog.blogspot.com/2013/09/federal-drug-trafficking-robert-evon.html" target="_blank">Robert Evon, former owner of Portland's Port City Music Hall</a>. He was arrested on Federal Drug Trafficking charges in Portland. He was then transferred to Syracuse New York since the case was indicted out of that district. He had an arraignment there on 8/30/13 and plead not guilty. Evon remained in custody pending a detention hearing set for 9/4/13. At that hearing, the Judge heard evidence that Evon was part of an international drug smuggling operation involved with importing 77 kilograms of cocaine. She then denied him bail.<br />
<a name='more'></a><br />
<h2>
<span style="font-size: large;">An International Drug Smuggling Operation</span></h2>
Evon was up against <a href="http://www.law.cornell.edu/uscode/text/18/3142" target="_blank">18 USC § 3142</a>(e)(3)(A). That statute allows the prosecution to invoke a rebuttable presumption that a defendant, indicted on drug a offense with a maximum sentence of 10 years or more should be held without bail. The mandatory minimum sentence for Evon is 10 years. At the bail hearing, the government estimated that Evon's Sentencing Guideline Range was at least 168 months and up to 293 months. That's 14 to 24 years.<br />
<div>
<br /></div>
<div>
In her <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7LTdCOG5uOWttOTA/edit?usp=sharing" target="_blank">pretrial detention order</a> Judge Therese Wiley Dancks found that Evon failed to sufficiently rebut the presumption favoring detention. Though he has almost no criminal history and strong family support, Judge Dancks found that the seriousness of the case required detention. Here's paragraph three of her order:</div>
<div>
<blockquote class="tr_bq">
<b>3. The Weight of the Evidence Against the Defendant</b><br />
The court has weighed the evidence against Defendant as alleged in the indictment and as proffered at the detention hearing and finds it supports detention. The evidence appears to show that Defendant was involved in a conspiracy involving importation of approximately seventy-seven (77) kilograms of cocaine through several states including California, New Jersey and Vermont, and Canada. The Government indicated that Defendant has ties to an international drug smuggling operation. The alleged volume of cocaine and alleged ties to international smuggling operations on the part of the Defendant are of particular concern to the court and support detention. </blockquote>
If any of that is true, we are in for a very interesting ride. <span style="background-color: #f9f9f9;">At this point, jury selection is set for 10/21/2013 at 09:30 AM in Syracuse NY before Judge Glenn T. Suddaby. In a case like this, it's very likely that the selection date will be continued.</span><br />
<span style="background-color: #f9f9f9;"><br /></span>
<a class="g-profile" href="http://plus.google.com/106027987863938380269" target="_blank">+Scott Dolan</a> of the Portland Press Herald had also been covering this case. You can read his <a href="http://www.pressherald.com/news/ex-nightclub-owner-alleged-in-drug-deal_2013-09-05.html" rel="nofollow" target="_blank">story about Evon's arrest and arraignment here</a> and here's his <a href="http://www.pressherald.com/news/Ex-Portland-businessman-accused-in-international-drug-conspiracy.html" rel="nofollow" target="_blank">coverage of the detention hearing</a>.</div>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.244946000000002 -111.56214800000001 67.072432 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-60323407109744769962013-09-06T13:21:00.001-04:002013-09-06T16:28:04.156-04:00Debra Milke, On Death Row since 1990, May Be Bailed Today Pending Retrial<div class="separator" style="clear: both; text-align: center;">
<a href="http://media.pressherald.com/images/Son%20Killed_Acco.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="128" src="http://media.pressherald.com/images/Son%20Killed_Acco.jpg" width="200" /></a></div>
In 1990, Arizona prosecutors convinced a Jury that Debra Milke had two men kill her four year old son in order to collect a $5000 life insurance policy. She has always maintained her innocence. The two others confessed but would not testify against her at trial. The only evidence connecting her to the killing is her own confession which, despite orders from a detective supervisor, was not recorded or witnessed by anyone other than the lead detective. Thought it was not told to the defense at the time. detective has a long history of lying to improve his cases. Milke denies confessing. <br />
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As <a href="http://www.pressherald.com/news/Woman-on-death-row-could-be-freed-to-await-retrial-.html" target="_blank">reported by the Associated Press</a>, bail had been set at $250,000 and it appears that supporters are willing to post it. The new trial was ordered in March of this year after <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/14/07-99001%20web%20-%20corrected.pdf">the 9th Circuit granted Milke's Habeas Petition</a>. They found that Arizona prosecutors violated Milke's rights by failing to turn over a personnel file on the lead detective, Armando Saldate. That would have shown that Saldate had been cited for multiple instances of misconduct, including cases where confessions or statements were thrown out because Saldate lied under oath or violated the suspect's rights.<br />
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From the summary of the 9th Circuit Opinion: <br />
<blockquote class="tr_bq">
Petitioner Milke’s conviction was based largely on the testimony of Police Detective Saldate, who allegedly obtained her confession. The panel held that the state remained unconstitutionally silent instead of disclosing information about Det. Saldate’s history of misconduct and accompanying court orders and disciplinary action. The panel held that the state court’s failure to comply with Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), resulted in a decision by the state post-conviction court that was contrary to clearly established Supreme Court law, and that the state post-conviction court so misread the evidence documenting the state’s Brady violations that its decision was based on an unreasonable determination of the facts. As a result of these two failings, the panel could not accord deference to the state court’s decision under the AntiTerrorism and Effective Death Penalty Act.</blockquote>
I have noted before <a href="http://harmlesserrorblog.blogspot.com/2013/05/metrish-v-lancaster-kiss-your-defense-goodbye.html" target="_blank">how hard it is to get Habeas relief under the AEDPA</a>; the fact that she met that standard says something about the gravity of the prosecution's violations. As part of the 9th circuit opinion, the court included a <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7M3MyaklVZnFPSVE/edit?usp=sharing" target="_blank">9 page appendix listing known instances of detective Saldate's misconduct</a>. The court was not at all impressed with the detective himself or the lower courts that approved his conduct and denied prior attempts to overturn the conviction. As Judge Kozinski said in his concurrence:<br />
<blockquote class="tr_bq">
Indeed, given Saldate’s long history of trampling the rights of suspects, one wonders how Saldate came to interrogate a suspect in a high-profile murder case by himself, without a tape recorder or a witness. And how could an interrogation be concluded, and a confession extracted, without a signed Miranda waiver? In a quarter century on the Ninth Circuit, I can’t remember another case where the confession and Miranda waiver were proven by nothing but the say-so of a single officer. Is this par for the Phoenix Police Department or was Saldate called in on his day off because his supervisors knew he could be counted on to bend the rules, even lie convincingly, if that’s what it took to nail down a conviction in a high-profile case?</blockquote>
Kozinski goes on to ask the fundamental question that should have given the trial and appellate courts pause long before the Habeas petition:<br />
<blockquote class="tr_bq">
Could the people of Arizona feel confident in taking Milke’s life when the only thread on which her conviction hangs is the word of a policeman with a record of dishonesty and disrespect for the law? Bad cops, and those who tolerate them, put all of us in an untenable position. </blockquote>
The prosecution intends to retry Milke. They plan to again offer Saldate's testimony about the confession and will seek the death penalty if Milke is convicted. A hearing on the defense motion to suppress Saldate's testimony is set for 9/23/13.Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.2449465 -111.56214800000001 67.072431500000008 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-48738531077213952992013-09-04T23:36:00.000-04:002013-09-04T23:36:48.630-04:00Proposed 72 Hour Hold for Maine Prisoners is Withdrawn<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-ge5GsMtFiCZtH7VmSTd_09zP-54prtW_ESj3jnYOI6r3VURCHyxlXFhbzpNBNElSbcG9S8aGH7DxU9f-vdEABrjnUT1PfQBTiJOBkiXv1nz-lLeyVpYMkbpjciIpm-oSAEdXILP2Ve3E/s1600/jail-cell-kangotraveler.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="150" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-ge5GsMtFiCZtH7VmSTd_09zP-54prtW_ESj3jnYOI6r3VURCHyxlXFhbzpNBNElSbcG9S8aGH7DxU9f-vdEABrjnUT1PfQBTiJOBkiXv1nz-lLeyVpYMkbpjciIpm-oSAEdXILP2Ve3E/s200/jail-cell-kangotraveler.jpg" width="200" /></a></div>
In Maine, prisoners are generally entitled to a court hearing within 48 hours of arrest. In some areas, staff and funding shortages have made if difficult to comply with the mandate. The proposal to "fix" the problem did nothing to foster compliance with the law. Instead, it would have changed the 48 hour rule to allow for up to 72 hours of pre-hearing detention. I was happy to learn today that the proposal has been withdrawn.<br />
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I wrote about the <a href="http://harmlesserrorblog.blogspot.com/2013/07/72-hr-hold-for-prisoners.html" target="_blank">proposed rule change in an earlier post</a>. There, I suggested that while increasing the allowable detention time might make things easier for the judicial apparatus, it would make things worse for the prisoner whose rights and freedom are at stake. It turns out that almost no one, from prosecutors, to sheriffs, to defense attorneys, supported the proposal. Today, the Supreme Judicial Court posted <a href="http://www.courts.state.me.us/rules_adminorders/rules/proposed/mr_crim_p_2013-6-24/order_prop_crim_r_5-and-5C_2013-9-4.pdf" target="_blank">this notice formally withdrawing the proposed rule change</a>. It reads as follows:<br />
<blockquote class="tr_bq">
The Advisory Committee on the Maine Rules of Criminal Procedure has withdrawn in full its proposal to amend Maine Rules of Criminal Procedure 5 and 5C, which it had originally proposed by letter dated June 19, 2013. All of the Justices concurring therein, after considering the Committee’s letter dated August 20, 2013, in which it withdrew its proposals regarding these two Rules and recommended no changes to these rules, the Court has accepted the Committee’s recommendation. Accordingly, no proposals to amend Rules 5 and 5C are currently pending, and the public hearing on this matter, previously scheduled for September 12, 2013, is hereby canceled.</blockquote>
I am glad they got this one right and it's nice to see that the Advisory Committee is willing to reverse course when the realize they were wrong. For more coverage, check out <a href="http://www.pressherald.com/news/Maine-court-rejects-proposal-to-up-jail-wait-time-.html" target="_blank">this Portland Press Herald Article</a>.Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.2466785 -111.56214800000001 67.0706995 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-84937859495326845682013-09-03T23:47:00.000-04:002013-09-09T22:00:42.808-04:00Federal Drug Charge for Robert Evon, Former Port City Music Hall OwnerRobert Evon, the former owner of Portland's Port City Music Hall, has been indicted on Federal Cocaine Trafficking charges. <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7Nmd2S29LbEFzamc/edit?usp=sharing" target="_blank">The Indictment</a> comes from the Northern district of New York and alleges a single count of violating <a href="http://www.law.cornell.edu/uscode/text/21/846" target="_blank">21 USC § 846</a> by conspiring to possess and to distribute powder cocaine, in violation of <a href="http://www.law.cornell.edu/uscode/text/21/841" target="_blank">21 USC § 841(a)(1)</a>. The Government also alleges that the conspiracy involved 5 kilograms or more triggering a mandatory minimum 10 year prison sentence. The maximum sentence is life.<br />
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<span style="font-size: large;">Arrested in Maine, Taken to Syracuse</span></h2>
Evon was arrested in Maine on the <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7ZDBjTXptV0NuaTg/edit?usp=sharing" target="_blank">New York Federal warrant</a> on 7/31/13. He appeared before Portland Federal Magistrate Judge John Rich that day and was then scheduled for a Rule 5 hearing or initial appearance for 8/7/13. Evon appeared for that hearing in custody and <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7SmVvdEltQWJkWm8/edit?usp=sharing" target="_blank">executed a waiver</a> of his right to have the rule 5 hearing in Maine. He was therefore <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7WjNTTWhyZ215N2c/edit?usp=sharing" target="_blank">ordered committed to the Northern District of New York</a>.<br />
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In New York, <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7ZkZHMUlDWDlNWjA/edit?usp=sharing" target="_blank">Evon retained Attorney Kenneth Moynihan</a>. He was arraigned in the Syracuse Federal District Court on 8/30/13 and pled not guilty. The US attorney has requested that Mr. Evon be detained pending trial but Evon wants to be bailed out. He has requested a detention hearing which is set for 9/4/13. Since he is facing a 10 year minimum sentence, bail is no sure thing.<br />
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[UPDATE: Read my newer post: <a href="http://harmlesserrorblog.blogspot.com/2013/09/robert-evon-denied-bail-federal-drug-trafficking.html" target="">Bail was denied, and more details emerged at the detention hearing</a>.]<br />
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<span style="font-size: large;">NY Federal Charges Lien Portland Real Estate</span> </h2>
As part of the indictment, the prosecution seeks forfeiture of $2,340,000 somehow connected to the conspiracy. If the cash is not available, the prosecution <a href="https://docs.google.com/file/d/0B3rjtxVPOqL7MWk3djhFd1EtbkU/edit?usp=sharing" target="_blank">seeks forfeiture of the Evon residence at 374 Spring St in Portland Maine</a>. The government's lien was recorded against the property on 8/1/13. The Spring Street residence has been held by Robert Evon and his wife since 2008 and <a href="http://www.portlandassessors.com/searchdetail.asp?Acct=061%20%20D018001" target="_blank">has a tax valuation of $575,000</a>.<br />
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<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjRKkQXFCL7qZf8w5y0_qNj8wUL2-L9R7BsTCq-jAXxsQ4IJ3p4T0rsNdopivOwKRZuVFLVxGJ-Z1V6OxA0JIqK-trwORLwxxT4KVPPHbV4zDMcqXRBRYpJdJIJcBCGIQNeVUIZx-cUhkKb/s1600/Rob-Evon-with-Linda-Greenlaw.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img alt="Robert Evon, indicted for Federal Drug Trafficking once fished with Linda Greenlaw" border="0" height="312" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjRKkQXFCL7qZf8w5y0_qNj8wUL2-L9R7BsTCq-jAXxsQ4IJ3p4T0rsNdopivOwKRZuVFLVxGJ-Z1V6OxA0JIqK-trwORLwxxT4KVPPHbV4zDMcqXRBRYpJdJIJcBCGIQNeVUIZx-cUhkKb/s320/Rob-Evon-with-Linda-Greenlaw.jpg" title="Robert Evon Federal Drug Traficking" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Robert Evon, in orange, with Linda Greenlaw and a big fish.<br />
Picture is from the <a href="http://www.pressherald.com/business/bluefins-be-warned-greenlaws-after-you_2013-04-22.html?page" rel="nofollow" target="_blank">PPH Article</a></td></tr>
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Robert Evon has been something of an entrepreneur in Portland for some years. Before selling the Port City Music Hall, he was part of a <a href="http://www.pressherald.com/business/bluefins-be-warned-greenlaws-after-you_2013-04-22.html?page" target="_blank">charter fishing venture</a> which gave clients the chance to fish for bluefin tuna with Linda Greenlaw. He sold the Port City Music Hall sometime in the spring of 2013 as described in this <a href="http://www.pressherald.com/news/State-Theatre-to-buy-Port-City-Music-Hall.html?pagenum=full" target="_blank">Portland Press Herald Article</a>. The indictment currently does not name co-conspirators or a specific location of the conspiracy and alleges conduct from 2/21/13 to 2/22/13. This is odd since most Federal conspiracy indictments allege conduct over a long period and name multiple defendants. It appears that Evon is the only person charged at this time.Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.246689000000003 -111.56214800000001 67.070689 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-41242649665198108272013-08-30T16:35:00.000-04:002013-11-06T23:35:43.167-05:00Can Police Paralyze Me and Probe my Ass for Drugs? 6th Circuit Says No<div>
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjqQVbpNGkhWXEO0Y3EFds9-e3PjvzzKpay5Ja8nnvgf6j11FoArt53FFTLPm0z3_mB12UXwhbHOAeQcvCGqS8wNOugAr6kEIsOJ6OECoJFt0-IF6Za6xLsVZDU_HWdqek5oR2hveXGybMc/s1600/fourth-amendment-violation-anal-probe.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="147" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjqQVbpNGkhWXEO0Y3EFds9-e3PjvzzKpay5Ja8nnvgf6j11FoArt53FFTLPm0z3_mB12UXwhbHOAeQcvCGqS8wNOugAr6kEIsOJ6OECoJFt0-IF6Za6xLsVZDU_HWdqek5oR2hveXGybMc/s200/fourth-amendment-violation-anal-probe.jpg" width="200" /></a></div>
I'm sure many of you have asked this same question. Up until Monday, the answer, at least in the Sixth Circuit, was "yeah." But in what can only described a victory for those who oppose non-consensual anal penetration, the Sixth Circuit Court of Appeals has vacated the conviction of a man who was involuntarily paralyzed, intubated, attached to a breathing machine and anally probed for drugs. The case is <a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0251p-06.pdf" target="_blank">United State v. Felix Booker</a>. The fact that it ever went to trial demonstrates just how egregious police conduct must be before it will violate constitutional protections against unreasonable search and seizure.<br />
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<h2>
<span style="font-size: large;">U.S. v. Felix Booker: Facts of the Case</span></h2>
In August, 2010 Oak Ridge Tennessee police stopped a car containing Felix Booker and his brother William who was driving. Officers smelled marijuana, the occupants denied having illegal drugs and gave police permission to search. The search discovered .06 grams of marijuana. Possession of that amount is a misdemeanor under Tennessee law and, only a citation, not arrest, is authorized for such offenses. Still, officers arrested Felix for felony marijuana possession even though they never found the 14 grams needed to support the charge.<br />
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After his arrest, officers observed Booker fidgeting around his buttocks and, during a strip search, one officer thought he saw something protruding from his anus. It was reasonable then for officers to suspect that Booker was concealing something, what was unreasonable is what they did next: They transported him to a medical facility where they met Dr. LaPaglia. It turns out that this doctor had assisted these police with involuntary rectal examinations in the past. With the officers standing by, LaPaglia went to work once again. As the Sixth Circuit puts it:<br />
<blockquote class="tr_bq">
LaPaglia first performed the rectal examination on Booker without medication. But Booker contracted his anal and rectal muscles while LaPaglia was attempting to examine him, preventing LaPaglia from inserting a finger in Booker’s anus. As LaPaglia said, “If an individual does not want you to enter their rectum, you are not going to.”.... LaPaglia ordered a nurse to inject muscle relaxants into Booker’s left buttock. On the second attempt, Booker remained uncooperative and LaPaglia could not complete the examination, but he could feel a foreign object inside Booker’s rectum, convincing LaPaglia that completion of the rectal examination was imperative. Finally, LaPaglia directed an emergency room nurse, Tammy Jones, to administer a sedative and a paralytic agent to Booker intravenously, and had him intubated to control his breathing. At 4:12 p.m., Booker was intubated. He remained intubated for about an hour, unconscious for twenty to thirty minutes, and paralyzed for seven to eight minutes. While Booker was paralyzed, LaPaglia removed a rock of crack cocaine, greater than five grams, from Booker’s rectum. LaPaglia then turned over the crack rock to Officer Steakley, who took it for evidence.</blockquote>
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<h2>
<span style="font-size: large;">Sixth Circuit Rejects the District Court's Ruling</span></h2>
Booker was charged with possession with intent to distribute more than 5 grams of crack cocaine. He moved to Suppress the evidence but the District Court Judge denied the motion. That Judge bought the prosecution argument that removing the drugs was not a search, but was a medical procedure required to protect Booker's safety. The reasoning was that, if there was something hidden in there, and it did contain drugs, and the package ruptured, there was a possibility that Booker's health could be endangered. The prosecution also argued that the Doctor was not a state actor and so proceeds of his <strike>fingerbang</strike> proceedure were not subject to exclusion under the fourth amendment. With suppression denied, Booker was convicted.<br />
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The Sixth Circuit disagreed:<br />
<blockquote class="tr_bq">
Even though the doctor may have acted for entirely medical reasons, the unconsented procedure while Booker was under the control of the police officers must, in the circumstances of this case, be attributed to the state for Fourth Amendment purposes...When police officers bring a suspect in custody to a purportedly independent actor, and stand by without interfering while the actor unlawfully batters the subject in a way that the police clearly could not, it can hardly be argued that resulting evidence is admissible.</blockquote>
Even if the acts of the doctor are imputed to the state, the evidence doesn't need to be excluded if the actions were reasonable under the circumstances. The court considered previous cases where involuntary stomach pumping, or forced surgery were deemed unconstitutional, and found that this conduct was just as bad:<br />
<blockquote class="tr_bq">
The unconsented procedure, moreover, shocks the conscience at least as much as the stomach pumping that the Supreme Court long ago held to violate due process...Supreme Court precedent thus shows that the unconsented paralysis, intubation, and rectal examination amounted to an unreasonable search, which violated Booker’s Fourth Amendment rights. </blockquote>
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<h2>
<span style="font-size: large;">So the Rectum is a Perfect Hiding Place?</span></h2>
Well, not really. There are lots of ways to find out what's in there, it's just that the police here did it super wrong. As the Sixth Circuit opinion notes, other agencies have procedures for this sort of thing:<br />
<blockquote class="tr_bq">
For example, the <a href="http://foiarr.cbp.gov/streamingWord.asp?i=7" target="_blank">established policy of the United States Customs and Border Protection</a> is first to attempt an x-ray to confirm the presence of contraband. If further medical examination is necessary, officers consider whether to engage in a monitored bowel movement, and only engage in an involuntary body cavity search after obtaining a court order.</blockquote>
In Maine, as in other jurisdictions, body cavity drug smuggling is common. Here, the police prefer to let nature take it's course and put such prisoners in a "dry cell" where they can't use a sink or toilet to dispose of drugs; that stuff is coming out one way or another. These cops did not have the decency to wait, the sense to do an x-ray, or the brains to get a warrant. In the words of the Sixth Circuit Judge John Rogers:<br />
<blockquote class="tr_bq">
When less intrusive means to investigate were available but not used and when the prosecution has other ways to establish guilt, this diminishes the weight that should be given to using an involuntary and invasive medical procedure to further society’s interest in fairly and accurately determining guilt or innocence.</blockquote>
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Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658689 -70.25355400000000820.244941000000004 -111.56214800000001 67.072437000000008 -28.944960000000009tag:blogger.com,1999:blog-2981470705981969358.post-62458121954887778182013-07-28T00:04:00.000-04:002013-08-06T17:45:18.908-04:00Suspended Suspension for ADA Mary Kellett's Misconduct<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgCtrevv3kfj84XxHeEOP5u4Up_L7HSjJDpOolcZywNiJWnn-2ayCR_EyTojl0_qHEcqY25mnUNhUCw16zFjnfDbXwNI1utIOpo0UfkSrjaAfMuo7q6S6L7WkqCOzo7WDh9fc5JfErkkPOo/s1600/Kellett.jpeg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgCtrevv3kfj84XxHeEOP5u4Up_L7HSjJDpOolcZywNiJWnn-2ayCR_EyTojl0_qHEcqY25mnUNhUCw16zFjnfDbXwNI1utIOpo0UfkSrjaAfMuo7q6S6L7WkqCOzo7WDh9fc5JfErkkPOo/s1600/Kellett.jpeg" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">ADA Mary Kellett</td></tr>
</tbody></table>
Last week the Maine Board of Bar Overseers imposed sanctions on assistant district attorney Mary Kellett for Prosecutorial Misconduct. You can read the <a href="http://www.maine.gov/tools/whatsnew/index.php?topic=mebar_overseers_discipline&id=562078&v=article" target="_blank">Judgment of the Board of Bar Overseers here</a>. I have written before about this case, first when <a href="http://harmlesserrorblog.blogspot.com/2012/10/Kellett-prosecutorial-misconduct-hearing.html" target="_blank">Kellett's Misconduct hearing began</a> in October of 2012 and again in December when <a href="http://harmlesserrorblog.blogspot.com/2012/10/Kellett-prosecutorial-misconduct-hearing.html" target="_blank">the grievance panel recommended that Kellett be suspended</a> and referred the case for a Disciplinary Hearing. That hearing was held 7/15/13 and ADA Kellett has now been suspended. But kinda not, since the suspension itself was suspended and will almost certainly never be imposed. Today, she continues to work as a prosecutor in the same office.<br />
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<span style="font-size: large;">What Happened to Cause All This Trouble?</span></h2>
The bar complaint case stems from the 2009 trial of Vladek Filler. He was charged with 5 counts of Gross Sexual Assault and two counts of Assault all against his ex-wife. Filler plead not guilty and claimed that his wife fabricated the allegations to (successfully) gain advantage in child custody proceedings.<br />
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Kellett failed to disclose exculpatory evidence relevant to the wife's motive and also hid some of her exculpatory prior statements to police. She did not provide the materials in ordinary discovery or after the court ordered their production. She also prevented police from disclosing the information when defense counsel subpoenaed the materials from them directly. With no tangible evidence to support the defense theory, Kellett successfully convinced the trial judge to prevent the defense from even questioning the wife about her motives. Her objection granted and all evidence excluded, Kellett argued in closing that the defense had failed to prove any motive to fabricate. The jury found Filler guilty of one count of Gross Sexual Assault, which has a 30 year maximum sentence and a lifetime sex offender registration requirement, and two counts of misdemeanor assault.<br />
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The trial judge later granted a new trial because of Kellett's improper closing argument. The State appealed and the <a href="http://scholar.google.com/scholar_case?case=5674983315339164945&q=vladek+filler&hl=en&as_sdt=4,20" target="_blank">Supreme Court affirmed, ordering a new trial</a> where Filler was acquitted of all but one count of misdemeanor assault. After the first trial, Filler himself requested police documents and 911 recordings that Kellett had suppressed. The police provided them and, after reviewing the materials, Filler filed a bar complaint against Kellett.<br />
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<h2>
<span style="font-size: large;">The Bar Grievance Process and Resolution</span></h2>
After a hearing in October 2012, the <a href="http://www.maine.gov/tools/whatsnew/index.php?topic=mebar_overseers_discipline&id=464815&v=article" target="_blank">Grievance commission recommended suspension</a> and referred the case for a disciplinary hearing before a single judge. That hearing was held July 15, 2013 before Justice Ellen Gorman of the Maine Supreme Judicial Court. Originally, she was to hear argument and decide what misconduct happened and what sanction should be imposed. The hearing was not contested since the parties reached an agreement, which Justice Goman accepted over Filler's strenuous objection:<br />
<br />
<div>
ADA Kellett admitted to the following violations:<br />
<ol>
<li>Her rebuttal argument in Filler’s first trial unfairly prejudiced the defendant and resulted in the granting of a new trial.</li>
<li>To the extent certain statements in her closing argument to the jury might suggest that Filler had any burden of proof, her statements were improper.</li>
<li>She violated the discovery obligations of a prosecutor under M.R. Crim. P. 16, Bar Rule 3.7(i)(2) and </li>
<li>She violated the court's discovery order. </li>
<li>She failed to act with reasonable diligence to provide both automatic and requested discovery in the form of a written statement by the complaining witness, a recording of a 911 call made by the complaining witness, and a recording made at the time of an encounter between the complaining witness and a law enforcement agency.</li>
</ol>
</div>
<div>
In aggregate, that amounts to a violation of the following, then applicable rules:</div>
<div>
<ol>
<li>3.1(a) (conduct unworthy of an attorney); </li>
<li>3.2(f)(4) (conduct prejudicial to the administration of justice); </li>
<li>3.6(a) (failure to employ reasonable care and skill and apply best judgment in the performance of professional services); </li>
<li>3.7(e)(1)(i) (failing to employ before the jury such means only as are consistent with the truth); and</li>
<li>3.7(i)(2) (failing to comply with a public prosecutor’s duty to make timely disclosure to the defense of exculpatory evidence).</li>
</ol>
</div>
<h2>
<span style="font-size: large;">What's the Penalty For all that?</span></h2>
The penalty turns out to be almost nothing. Here is a summary of the sanction:<br />
<ul>
<li>Kellett is ordered suspended for 30 days.</li>
<li>The suspension is suspended for at least 6 months and not more than 1 year.</li>
<li>The suspension will not be imposed and will be automatically terminated if she...</li>
<li><b>Attends 6 hours of CLE</b> (continuing legal education) concerning opening statements, closing arguments and discovery issues. This is in addition to the 11 hours required each year for all Maine attorneys. </li>
<li>Luckily, one of the hours must cover prosecutorial ethics.</li>
</ul>
As a criminal defense attorney I'm a bit conflicted about this outcome. On the one hand, a lot of my job is trying to explain to tribunals that one mistake should not define a person and that an individual should be given a chance to take responsibility and move on with their life.<br />
<div>
<br />
On the other hand, is there really anything worse that a lawyer can do? Stealing money, charging excessive fees, missing deadlines and getting drunk, have all lead to real suspensions or disbarment, but none of that puts people in prison for fictional crimes. The system is so profoundly undermined if prosecutors abandon basic moral principles and legal requirements to obtain wrongful convictions. After an ADA has admitted to that level of wrongdoing, how many more cases should they prosecute?<br />
<br />
Often, I approach the ADA and plead my client's case trying to explain that they made a one time mistake and drove drunk, or lost their temper. Some prosecutors dismiss this argument, and respond that this "one mistake," the one they got caught for, probably represents dozens of similar acts that they got away with. I'll admit that, often, they're right. But, if the old prosecutor's logic holds, how many people are in prison right now because they never discovered the exculpatory evidence that the prosecutor never told them about? The problem is, we'll never know.</div>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658616 -70.25360069999999320.246596500000003 -111.56219469999999 67.070635500000009 -28.945006699999993tag:blogger.com,1999:blog-2981470705981969358.post-80042610463296576452013-07-24T23:16:00.000-04:002013-09-04T23:44:48.672-04:00Presumed Innocent but Already Sentenced: 72 Hour Hold for Prisoners<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; margin-left: 1em; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEih44IWfGzH8nP0RoPxJiToAdxU-AAfQvao3mvLUSupLVIONQLmAm8sNWXDWhomTg6DXAxN4K-QFgghJS2wMYvRPKggBBc69kSUAOKQPkO27ZK19QqG7VHl7MSalEZ0CkdB-ShHK9xp3Jvx/s1600/jail-cell-kangotraveler.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="240" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEih44IWfGzH8nP0RoPxJiToAdxU-AAfQvao3mvLUSupLVIONQLmAm8sNWXDWhomTg6DXAxN4K-QFgghJS2wMYvRPKggBBc69kSUAOKQPkO27ZK19QqG7VHl7MSalEZ0CkdB-ShHK9xp3Jvx/s320/jail-cell-kangotraveler.jpg" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">48, 72, what's the big deal? Image: kangotrageler via flickr</td></tr>
</tbody></table>
Current Maine Law says that prisoners can't be held for more than 48 hours before seeing a judge. At that hearing, the judge will review the evidence to determine if there is probable cause to believe the person committed a crime and will set bail. In some areas, jails and courts have been unable to comply with the 48 hour rule and so prisoners have been detained longer than allowed, some have even been released since continued detention was illegal. Naturally, Maine's Judicial apparatus is scrambling to fix the problem. You might expect that procedures will change and funding will increase to ensure that every defendant gets a hearing within 48 hours. Unfortunately, you'd be wrong. Instead, the proposal is to change the rule and allow for detention of up to 72 hours without a hearing.<br />
<a name='more'></a><br />
<h2>
<span style="font-size: large;">Changes to Rules 5 and 5C</span></h2>
The increase from 48 to 72 hours is part of a larger set of <a href="http://www.courts.state.me.us/rules_adminorders/rules/proposed/mr_crim_p_2013-6-24/mr_crim_p_proposed_amends_2013-6-24.pdf" rel="nofollow">proposed changes to the Maine Rules of Criminal Procedure</a>. The change here would modify rule 5 to add the underlined text and to remove the strikethrough text. Similar changes are also proposed to Rule 5C which pertains to to felonies:<br />
<blockquote class="tr_bq">
<b>(a) Initial Appearance Before the Court</b>. A defendant arrested for a Class D or Class E crime (and not charged with related Class C or higher crimes), (i) under a warrant issued upon a complaint filed in the District Court or the Superior Court or (ii) without a warrant <b><i><u>but a probable cause determination having </u></i></b><b><i><u>been made in accordance with Rule 4A</u></i></b>, who is not sooner released, shall be brought before a District Court judge or a Superior Court justice without unnecessary delay and in no event later than <strike>48</strike><b><u><i>72</i></u></b> hours after the arrest, excluding Saturdays, Sundays, legal holidays, and court holidays. Such appearance may be by audiovisual device in the discretion of the court. If such appearance has not taken place within <strike>36</strike><b><u><i>48</i></u></b> hours after the arrest, the custodian shall notify the attorney for the state <b><u><i>and the clerk of court</i></u></b> of the upcoming deadline. If such appearance has not taken place within <strike>48</strike><b><i><u>72</u></i></b> hours after the arrest, excluding Saturdays, Sundays, legal holidays and court holidays, the custodian shall release the defendant from custody or bring the defendant forthwith before the District Court or the Superior Court for such appearance.</blockquote>
<u><b>A few things are worth noting</b></u>:<br />
<ol>
<li>The 72 hours limit does not include weekends or holidays. That means a person arrested on a Friday before a Monday holiday could legally be detained until the following Thursday without a hearing.</li>
<li>The change does not alter Maine Rule of Criminal Procedure 4A which still requires a probable cause determination within 48 hours of arrest including holidays or weekends. That determination can be made by a judge or a justice of the peace. This is to ensure compliance with the supreme court's decision in <i><a href="http://scholar.google.com/scholar_case?case=418195808368952125&q=County+of+Riverside+v.+McLaughlin,+500+U.S.+44+(1991).&hl=en&as_sdt=2,20">County of Riverside v. McLaughlin</a>. </i>Defendants can only be held for longer than 48 hours if there has been a P.C. determination within the first 48.</li>
<li>The jail must now notify the clerk if the person has not had an initial appearance within 48 hours. The prior rule only required notice to the prosecution, but the notice was to be given after 36 hours since the rule only allowed for 48 hours of pre-hearing detention.</li>
</ol>
<div>
<h2>
<span style="font-size: large;">Presumed Innocent but Already Sentenced</span></h2>
The biggest issue is that allowing longer initial detention means many prisoners will serve their sentence before they ever see a courtroom. That's because the prosecutor's sentencing recommendation for many crimes is something between 1 and 7 days in jail. It's a daunting sentence for someone who is free, but the rule change means many people will appear before a judge having already served the sentence likely to be imposed and more people will simply plead guilty at initial appearance and be sentenced to "time served."<br />
<br />
These guilty pleas are entered after consulting with a lawyer for maybe a few minutes. Defendants who plead guilty at initial appearance rarely understand that a conviction might mean future offenses will be charged as felonies, or that they can't get federal housing, or student loans, or keep their driver's license, or stay in this country.<br />
<br />
Certainly, pleading guilty is the best option for some, but many have legitimate defenses. Sitting in jail for several days, serving the sentence before seeing a judge really changes the prisoner's calculus. Even if they have a defense, many won't be willing to spend months fighting when, win or loose, they've already done the time.</div>
<div>
<br />
While the rule change would be a benefit for judicial economy, the jail's procedure, and the prosecution's statistics, it's a detriment to arrestee whose rights and liberty are at stake. They are the only constituency with anything to loose but they're also the only constituency with no political influence.<br />
<br />
<a href="http://www.courts.state.me.us/rules_adminorders/rules/proposed/mr_crim_p_2013-6-24/notice_hrg_2013-7-19.shtml" rel="nofollow" target="_blank">Public hearing on the proposed changes</a> is set for September 12, 2013 at 1:30 p.m.<br />
<br />
UPDATE: <a href="http://harmlesserrorblog.blogspot.com/2013/09/proposed-72-hour-prisoner-hold-withdrawn.html">The proposed change was withdrawn 9/4/13</a>. Hit the link to read my newer post with more information.</div>
Unknownnoreply@blogger.com075 Pearl Street #400, Portland, ME 04101, USA43.658616 -70.25360069999999320.246598000000002 -111.56219469999999 67.070634 -28.945006699999993