Supreme Court Agrees to Resolve Circuit Split Regarding Speedy Trial Act in Federal Criminal Cases

April 30, 2009 by Kish & Lietz

In 1996, in United States v. Mejia, the Eleventh Circuit federal appeals court in Atlanta, Georgia, held that a court order granting a criminal defendant’s motion for additional time to file pretrial motions tolled the Speedy Trial clock for the duration of the extension of time. Last July, the Eight Circuit agreed with the Eleventh Circuit and five others in United States v. Bloate. However, two circuit courts of appeals, the Fourth and the Sixth, have held the opposite. Due to this split, the Supreme Court of the United States has granted certiorari in Bloate. We hope the justices of the Court agree with the Fourth and Sixth Circuits when it hears arguments in the fall.

The federal Speedy Trial Act requires that a criminal defendant be tried within 70 days of whichever is later: the indictment or the defendant’s first appearance in court. In calculating the 70-day period, the Act excludes “delay resulting from other proceedings concerning the defendant, including but not limited to… delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” Rather than the time between filing and disposition of motions, Bloate and Mejia have dealt with the time defendants request for preparing motions, prior to filing.

The government and the majority of circuit courts have argued that such time should be excluded from the 70-day period because that time is “delay resulting from other proceedings concerning the defendant.” They say that the phrase “including but not limited to” in the Speedy Trial Act indicates that the specifically enumerated delays are only examples, rather than an exhaustive list. The Fourth and Sixth Circuits point out, though, that the Congressional decision to specifically address a time period involving pre-trial motions, but to limit it to the time between filing and disposition, strongly indicates that Congress did not intend to exclude the preparation time from the Speedy Trial Act.

One particularly disconcerting aspect of Mejia did not factor into the Bloate decision, but we hope that the Supreme Court takes notice of the issue. The district court judge in Mejia granted an indefinite extension of time, allowing for filing of pre-trial motions until fifteen days prior to trial, rather than extending the deadline a certain number of days. Trial did not begin for another ten months in that case. The opinion does not reveal when additional motions were filed, if any, and whether any non-excludable delays accounted for any part of that ten-month period. Furthermore, in this multi-defendant case, the request for extension of time by only one defendant resulted in an extreme excludable delay for all of the codefendants.

The Eleventh Circuit placed the burden on the defendant, suggesting he limit his request for extra time to a definite period, choose not to request an extension at all, or object to an open-ended extension. Just three years later, though, in United States v. Williams, the Eleventh Circuit decided a similar question regarding a court’s sua sponte grant of addition time for filing motions, and stated, “[W]e believe that the burden should not be on the defendant to take affirmative steps to keep the speedy-trial clock running.” Even failing to consider the affect one defendant’s actions can have on all of his codefendants, such a view of the defendant’s burden is a fundamental principle of criminal law.

The United States Supreme Court must not address the issue of defendants’ requests for additional time without taking into consideration whether the court limits the extension to a definite time period. An indefinite period until only days before trial allows courts to vitiate the Speedy Trial Act altogether. We most hope, of course, the Supreme Court renders this point moot by agreeing that extensions granted for filing pre-trial motions are not excludable for purposes of calculating time under the Speedy Trial Act.

Federal Case May Impact Suppression of Evidence Resulting from Criminal Seizures of Computers in Georgia, Florida, and Alabama

April 29, 2009 by Kish & Lietz

In a potentially huge decision for criminal law in Georgia, Florida, and Alabama, the Eleventh Circuit federal appeals court in Atlanta held that twenty-one days was an unreasonably long time for law enforcement to wait before obtaining a search warrant after seizing a man’s computer hard drive. Because the circumstances of this case, United States v. Mitchell, failed to justify the three-week delay, the trial court should have suppressed the evidence discovered on the hard drive.

The Fourth Amendment’s protection against unreasonable seizures both guards us against unreasonable arrests and protects our possessory interests in personal property. Even with probable cause to seize property, the duration of the seizure pending the issuance of a search warrant must still be reasonable. Courts determine reasonableness by weighing the government interests against private interests. This rule ensures the prompt return of property, should a search reveal no incriminating evidence.

In Mitchell, the Court acknowledged the substantial possessory interest people have in their computers’ hard drives. Computers are heavily relied upon for both personal and business uses, storing information including financial information, passwords, photos, e-mails, and countless other items. The Court called the hard-drive “the digital equivalent of its owner’s home, capable of holding a universe of private information.”

On the other hand, in this case, the government’s justification for the delay was less than compelling. Although the eventual search warrant application contained only three pages of original content, the hard-drive was detained for three weeks due to an agent’s attendance at a two-week training program. The agent “didn’t see any urgency” in obtaining the warrant because of the defendant’s admission that the hard drive contained contraband. The Court noted that another agent could have been assigned the task and that the defendant’s admission could have been wrong.

The Court emphasized that this rule depends on all of the circumstances of the case. The opinion noted situations in which the Court would be sympathetic to delays, such as where resources of law enforcement are overwhelmed. However, this case will potentially impact future cases involving seizure of computers, due to the importance (rightfully) placed on the private interests in such property.

The full opinion is available here.

Finally! Federal Supreme Court Limits Criminal Search Rule

April 28, 2009 by Kish & Lietz

Here in Atlanta, we have been involved in many criminal cases in which police arrested people for traffic offenses, then searched their vehicles and found evidence of completely unrelated crimes. The search incident to arrest rule has been unfairly used by police as an investigatory tool since New York v. Belton extended the rule in Chimel v. California to automobiles in 1981. Last Tuesday, the United States Supreme Court, in Arizona v. Gant, limited this rule to constitutional bounds. Dividing down unusual lines, the Court formulated a new rule that is more in keeping with the original rationale for Chimel and Belton. The rule will apply in both federal and state cases.

Chimel was decided in 1969, holding that police may search the space within an arrestee’s immediate control, “from which he might gain possession of a weapon or destructible evidence.” Belton extended the rule to vehicle searches, but has unfortunately been widely understood to permit vehicle searches even where the arrestee could not gain access to a weapon or evidence. Police have been trained to secure arrestees, then routinely search everything within the passenger compartment of the car. Though these searches have no officer safety or preservation of evidence justification, the police have on occasion acted as if the Belton rule gave them the right to search wherever and whenever they wanted to do so.

In last week’s case, Mr. Gant happened to be at a house that police thought may contain drugs, based only on an anonymous tip. With no probable cause to search Gant or the house for drugs, the officers later arrested Gant after he drove into the driveway, on a warrant for driving with a suspended license. After Gant had been handcuffed and placed in the back of a patrol car, officers searched his vehicle and found a gun and a bag of cocaine. When asked under oath why they performed the search, one of the officers responded, “Because the law says we can do it.”

A chorus of scholars, courts, and Supreme Court justices has called for the Court to revisit Belton, questioning its fidelity to the Fourth Amendment and its clarity. The majority in Gant finally rejected the overbroad reading of Belton and held that “the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” The Court further held that a search might be justified when it is reasonable to believe that evidence related to the crime for which the person is arrested may be found in the vehicle.

Justice Alito wrote the dissenting opinion in this case and was joined by Chief Justice Roberts, Justice Kennedy, and, in part, Justice Breyer, who disagreed with Alito that Belton was well-reasoned. The dissent focused on stare decisis, insisting that the majority was over-ruling Belton, without properly addressing the abandonment of prior precedent. Justice Stevens, writing for the majority, and Justice Scalia, in a concurring opinion, stressed that stare decisis does not justify unconstitutional results.

We are relieved that the court finally limited this rule, which police have taken advantage of for nearly thirty years to invade citizens’ privacy and conduct searches without probable cause. However, we take issue with the second part of the rule, permitting a vehicle search incident to arrest when officers have “reason to believe” they might find evidence related to the crime of arrest. The Court does not address why it chose this standard, rather than probable cause. This part of the rule will create confusion and could tempt officers to fabricate potential crimes in order to search the car in hopes of finding evidence.

Divided Supreme Court Protects Federal Criminal Rule

April 14, 2009 by Kish & Lietz

Last Monday, the United States Supreme Court issued its opinion in Corley v. United States. The issue in this case was whether a federal statute was intended to do away with the McNabb-Mallory exclusionary rule regarding criminal confessions or merely narrow it. In a 5 to 4 decision, the Court held that Congress meant to limit, not eliminate, this important protection against secret detention and government overreaching in federal criminal law.

The McNabb-Mallory exclusionary rule was established as a means of enforcing the presentment rule, which requires officers to bring prisoners before a judge as soon as reasonably possible to prevent secret detention and inform the suspect of his rights and the charges against him. The Court in Corley cited evidence that the pressure involved in police interrogation “can induce a frighteningly high percentage of people to confess to crimes they never committed.” The presentment rule protects innocent people from being pressured into false confessions. The McNabb-Mallory exclusionary rule enforces the presentment rule by prohibiting the government from using confessions that were obtained in violation of the presentment rule.

In 1968, Congress enacted 18 U.S.C. § 3501 in response to Miranda (which requires police to inform suspects of their rights) and Mallory (which held that a confession given seven hours after arrest was inadmissible for unnecessary delay in presentment). The first two sections were intended to eliminate Miranda altogether, but the Court rejected the attempt in 2000 in Dickerson v. United States. The Government argued that the statute was intended to eliminate Mallory, as well, but the Court held that the Congress meant only to limit its application. The third section of the statute provides that in any federal prosecution a confession made by a defendant, while under arrest, is not inadmissible solely because of delay in bringing such person before a magistrate judge if the confession was made within six hours of arrest. The six-hour time limit is extended where further delay is reasonable considering transportation and distance to the nearest magistrate.

The Court said that the Government’s reading of the statute to require only that the confession be made voluntarily would render the third section “nonsensical and superfluous.” The opinion also provided examples of the absurdities that would follow from the Government’s literal reading of the statute and reviewed the legislative history of the statute. Finally, the Court explained that the presentment rule was “one of the most important protections against unlawful arrest” under the common law and still matters in “very practical ways.” To leave it without any means of enforcement would allow federal agents to freely “question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to.”

Here at Kish & Lietz, we have handled cases in which our clients made confessions and told us they did so only because they were pressured and had no attorney with them. According to the Innocence Project, in about 25% of DNA exoneration cases, innocent defendants made incriminating statements, false confessions, or pled guilty, not because of actual guilt, but due to external sources. The McNabb-Mallory exclusionary rule is an essential protection for all of us.

The entire Corley opinion is available here.

Eleventh Circuit Court of Appeals in Atlanta Affirms Tax Fraud Conviction

April 8, 2009 by Kish & Lietz

A federal criminal tax fraud case, for your tax season reading pleasure:

Gregory Louis Clarke, pastor of New Hope Baptist Church, Superintendent of New Hope Christian School, and manager of New Hope Federal Credit Union in Birmingham, Alabama, was convicted in federal court of committing tax fraud for failing to declare income in his 2000, 2001, and 2002 returns. In December 2007, he was sentenced to 21 months in federal prison. Last month the Eleventh Circuit Court of Appeals in Atlanta, Georgia affirmed Reverend Clarke’s conviction and sentence.

Evidence presented at trial showed that Rev. Clarke filed tax returns for 2000-2002 based solely on his W-2s and 1099s, failing to declare additional income in those years. His undeclared income included insurance and car payments, a housing allowance, and personal bills paid out of church and school bank accounts, in addition to fees for speaking engagements and referrals to a mortgage company and car dealership.

Rev. Clarke appealed his conviction on three grounds: that the jury selection process violated the Sixth Amendment, that evidence was insufficient to support a guilty verdict, and that the District Court erred in calculating his sentence under the Sentencing Guidelines. The Eleventh Circuit held that Rev. Clarke failed to show that the under-representation of African-Americans on the jury venire in his case was due to systematic exclusion of the group from juries. The Court went on to say that the government had presented ample evidence of all elements of the crimes charged. The Court then determined that the District Court had accurately calculated his sentence both by assessing the total tax loss correctly and by appropriately applying the two-level enhancement for using “sophisticated means.”

Having handled tax evasion and fraud cases like this one, we understand that these issues are not unusual. However, it is important for attorneys to read opinions as they are issued to remain abreast of legal developments. The full opinion in this case is available here. A list of recent opinions issued by the Eleventh Circuit is available here.