Supreme Court Grants Certiorari in § 924(c) Cases Regarding Mandatory Minimums in Federal Criminal Firearms Cases

January 28, 2010 by Kish & Lietz

This week, the Supreme Court agreed to hear Abbott v. U.S. and Gould v. U.S. These criminal cases involve a deep circuit split among the federal courts that we addressed in this post in September, when the 11th Circuit decided U.S. v. Segarra.

The Armed Career Criminal Act (ACCA), drug laws, and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The ACCA and drug minimums are often longer than the minimum called for by § 924(c). § 924(c) contains a prefatory clause, called the “except” clause, that applies the subsection “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” The plain language of that clause prohibits application of § 924(c) where defendants are subject to greater minimums.

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Eleventh Circuit Court of Appeals Avoids Rule of Specialty in Federal Criminal Extradition Case… Again

January 25, 2010 by Kish & Lietz

Last week, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, decided U.S. v. Marquez, a federal criminal RICO case involving two extradition rules, the rule of specialty and the rule of dual criminality. The Court held that those rules concern the court’s personal jurisdiction over the defendant, rather than subject matter jurisdiction. Because personal jurisdiction is subject to waiver, the Court held that Marquez waived the protections provided by the rules by failing to timely assert them.

As we explained in this post last July, the rule of specialty requires countries that request extradition of a person to prosecute that person only for the offenses for which the foreign country surrenders the person. In other words, if the United States asks Spain to extradite someone for charges A, B, and C, once Spain extradites that person, the United States can’t turn around and charge the person with X, Y, or Z. Marquez argued that a superseding indictment changed the basis under which Spain agreed to extradite him.

The rule of dual criminality allows extradition only where the defendant’s actions constitute a crime in both the requesting and surrendering countries. Marquez argued that the extradition request was too vague, rendering it impossible for Spanish courts to determine whether the rule of dual criminality was satisfied.

Because the rules limit the crimes that may be prosecuted, they appear to limit the court’s subject matter jurisdiction. However, the Court held that the extradition process is a means of obtaining personal jurisdiction over a defendant, so a violation of these extradition rules raises the question of personal jurisdiction. Thus, claims of such violations must be raised in a pretrial motion pursuant to Rule 12.

Because Marquez did not assert the rules of specialty or dual criminality until nearly 2.5 years after the final deadline for submission of pretrial motions, the Court held that he “waived his right to assert the protection of the rules of specialty and dual criminality” and failed to show good cause to warrant relief from that waiver.

In U.S. v. Valencia-Trujillo last year, the Eleventh Circuit issued an opinion declining to address the rule of specialty. Our commentary on that decision is available here. We hope that the Court decides to address this important issue in future cases.

The Court’s opinion in Marquez is available here.

DOJ Appoints National Coordinator of Criminal Discovery Initiatives

January 21, 2010 by Kish & Lietz

The federal Department of Justice has announced its appointment of Andrew Goldsmith as the new national coordinator of criminal discovery initiatives in this press release.


Earlier this month, the DOJ issued three memoranda regarding criminal discovery procedures. These memos set forth policies in an attempt to ensure that prosecutors meet their obligations in sharing information with criminal defense attorneys. They are available to read in full at the following links:

Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group

Requirement for Office Discovery Policies in Criminal Matters

Guidance for Prosecutors Regarding Criminal Discovery

This is a step in the right direction, but other steps need to be taken. For example, as many criminal defense lawyers have been saying for far too long, it is time to amend Rule 16 by requiring the parties to exchange witness lists in federal criminal cases. This is precisely what the Advisory Committee and the Supreme Court proposed in 1974 and it should be done now.

Georgia Innocence Project Exonerates Another Wrongfully Convicted Man

January 20, 2010 by Kish & Lietz


Last month, Michael Marshall was released from prison, where he served time for a crime that he did not commit. Eyewitness identification and neglect to investigate the physical evidence led to the incarceration of an innocent man. The lawyers and interns at the Georgia Innocence Project proved Mr. Marshall’s innocence through DNA testing and will continue to help him rebuild his life after exoneration.

In 2007, an eyewitness identified Mr. Marshall ten days after the crime in a prejudicial “show-up” identification. He was charged with armed robbery, aggravated assault, possession of a firearm during a felony, and possession of a firearm by a convicted felon and he faced up to 25 years in prison. After the judge denied his motion to suppress the identification evidence, Marshall pleaded guilty to theft by taking out of fear of the lengthy potential sentence.

What Went Wrong

The principal evidence against Mr. Marshall was misidentification by a victim of the crime. After watching a man steal his mother’s truck and threaten her life, the male victim gave the Hapeville Police Department information to create a composite sketch of the man who committed the crime. Ten days after the crime, officers called the victim to Mr. Marshall’s location, where he identified Mr. Marshall. The other victim failed to pick Mr. Marshall out of a photo line-up.

Eyewitness identification is often faulty and has contributed to the wrongful convictions of more than 75% of the 247 people exonerated by Innocence Projects nationwide. The kind of identification in this case is called a “show-up” and is highly prejudicial because of the suggestive context of the situation. The suspect is surrounded by police officers, often located near the scene of the crime, and alone, rather than lined up with 5 other people.

The Hapeville Police also failed to investigate the physical evidence in the case. Although they had found a cell phone, a cell phone case, and a t-shirt belonging to the person who committed the crime, these items were never even fingerprinted, let alone tested for DNA, until the Georgia Innocence Project got involved.

Georgia Innocence Project

The Georgia Innocence Project has exonerated eight people of crimes that they did not commit. All of those convictions were based on mistaken eyewitness investigation. We are delighted that they have again helped a victim of eyewitness identification to prove his innocence.

More information on the Georgia Innocence Project is available at their website. More information on the background of Mr. Marshall’s case is here and the major issues in his case here.

Photograph used with permission from the Georgia Innocence Project.