Pipkins: Levy applied on remand from Supreme Court

In U.S. v. Pipkins, No. 02-14306 (June 20, 2005), the Court reaffirmed its Levy rule, and, on remand from the Supreme Court for further consideration in light of Booker, held that a defendant could not raise a Booker challenge to his sentence for the first time in an en banc rehearing petition.
The Court recognized that prior to the Supreme Court’s decision in Blakely, its caselaw did not support a Blakely-type challenge to a sentence. "Even if our precedent at the time foreclosed their argument, the Defendants still had to raise this issue in their initial brief and assert that our precedent was wrongly decided in order for us to consider it. It is through this process that the law evolves."

Kelley: Bank robbery by intimidation

In U.S. v. Kelley, No 04-13002 (June 16, 2005), the Court (Carnes, Pryor, Forrester b.d.) rejected sufficiency of the evidence challenges to a conviction for bank robbery by "intimidation" in violation of 18 U.S.C. § 2113(a).
No weapon or note was used in the robbery. But the defendant slammed onto the teller counter hard enough that he was heard from another room. One teller was within arm’s length as cash was removed from another teller’s cash drawer. The tellers were so frightened that they failed to activate the bank’s silent alarm. Based on these facts, the Court concluded that the tellers were intimidated.
The Court also rejected the argument that the facts did not establish the taking of money "from the person or presence of another." One bank teller was within arm’s length. This fact "easily satisfied" the statutory element.
Finally, the Court rejected the argument that inconsistencies in the testimony of prosecution witnesses, and the testimony of defense witnesses, made the facts insufficient to sustain the bank robbery conviction. The Court noted that the jury was free to resolve the inconsistency in the government’s favor. Further, the defendant’s employer was unsure whether the defendant was at work on the date of the robbery, and his testimony therefore did not undermine the government’s case.

McGough: Community Caretaker Exception Inapplicable

In U.S. v. McGough, No. 04-12077 (June 15, 2005), the Court (Cox, Edmondson, Birch) held that the "community caretaker" exception to the Fourth Amendment prohibition on warrantless searches of home did not permit police to enter into an apartment without a warrant and without consent. The Court held that the defense motion to suppress the marijuana and firearm found in the apartment should have been granted, and reversed the conviction.
The police arrived at the home in response to a telephone call from the defendant’s scared 5-year old daughter, whom the defendant had locked in the apartment when he went out to buy pizza. The police unlocked the door, placed McGough under arrest for reckless conduct, and called the daughter’s aunt. While outside the apartment, the police noticed a heavy burglar door and a mounted surveillance camera. They asked the defendant for consent to search his home, which he declined. While waiting for the aunt to arrive, the police entered the apartment, ostensibly to help the daughter find some shoes, and found a firearm and marijuana. The police then sought a warrant and seized the marihuana and fiream, and another firearm, and more marihuana.
The Court recognized a "community caretaker" exception to the warrant requirement of the Fourth Amendment. This exception applies when "exigent circumstances" require police to respond to a situation at a home. The Court found no such circumstances in this case. "There was no immediate threat." The daughter’s need for her shoes was not a compelling enough exigency to justify a warrantless entry by police into McGough’s home.
The Court further found that the good faith exception to the exclusionary rule did not apply. This exception applies when a warrant issues after officers engage in "objectively reasonable law enforcement activity." Here, the warrant issued after police engaged in an unlawful entry. "In such a situation, the search warrant affidavit was tainted with evidence obtained as a result of a prior, warrantless, presumptively unlawful entry into a personal dwelling." Consequently, the evidence obtained as a result of the unlawful entry must be suppressed.

Bradshaw v. Stumpf: Inconsistency on triggerman's identity

In Bradshaw v. Stumpf, No. 04-637 (June 13, 2005), the Supreme Court held that a defendant entered into a knowing guilty plea, despite the trial court’s failure to explain the specific intent to cause death element of the aggravated murder charge, when the elements of the crime were explained to the defendant by his competent defense counsel, and where the defendant so confirmed on the record.
The Court rejected the argument that Stumpf’s profession of not having been the triggerman was inconsistent with a knowing guilty plea. The Court noted that under Ohio aider and abetter theory, Stumpf could have been guilty of the offense without being the actual triggerman. The Court also rejected the argument that the plea was involuntary because the prosecution later took the inconsistent position that Stumpf was not the triggerman. The Court noted that the precise identity of the triggerman was irrelevant to the conviction.
The Court recognized, however, that the prosecution’s inconsistent position as to whether Stumpf or his accomplice was the triggerman could have affeced his death sentence. The Court pointed out that the Sixth Circuit’s opinion on this subject was ambiguous, because it focused on the validity of the conviction, not of the sentence. The Court therefore remanded the case for further proceedings to address the question of how the prosecutor’s inconsistent position related to the validity of Stumpf’s death sentence.

Rompilla: Failure to consult court records is ineffective assistance

In Rompilla v. Beard, No. 04-5462 (June 20, 2005), the Supreme Court held that capital counsel’s assistance in the penalty phase was constitutionally ineffective when he failed to examine the material he knew the prosecutor would rely on as evidence of aggravation. Counsel failed to examine the court file on Rompilla’s prior felony convictions – a file which was readily available. This was objectively unreasonable, and counsel’s consultation with the defendant and his family was not a sufficient substitute. The Court held that the lawyer’s lapse prejudiced the defendant, because the court record would have unearthed mitigation leads – such as the defendant’s mental disorders and organic brain damage and childhood problems probably related to fetal alcohol syndrome.

Matthews: 404(b) reversal

In U.S. v. Matthews, 2005 WL 1334341 (June 8, 2005), the Court (Tjoflat, Hill, Granade b.d.) reversed the defendant’s drug-trafficking conviction on the ground that evidence of a prior arrest was erroneously admitted in violation of Fed. R. Evid. 404(b).
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These cooperating witnesses testified that Matthews participated in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail, cooperating with the government.
The Court rejected the argument that wiretap evidence should have been excluded because the recordings were not sealed in accordance with 18 U.S.C. § 2518(8)(a). The Court noted that the recordings were sealed within two days of the expiration of the order authorizing interception, and held that this was a reasonable time within the meaning of the statute.
The Court also rejected the argument that one conversation among two conspirators in which Matthews’ name was mentioned should have been excluded because it was not in "furtherance of the conspiracy." The Court found that one could have concluded otherwise.
The Court also rejected the challenge to the sufficiency of the obstruction evidence. "The jury was, of course, free to infer that Matthews was merely passing on along news of [a former conspirator’s] unfortunate demise, reflecting on the fleeting nature of human existence, and sending greetings." But the jury could also have drawn other inferences from the references by Matthews in a letter to a conspirator about another conspirator’s execution when he began cooperating with the government.
Turning to the 404(b) issue, the Court rejected the government’s argument that evidence of an earlier arrest for drug trafficking could be introduced to show the defendant’s "intent" in the instant charged offense. The Court pointed out that the uncontradicted testimony of the cooperating witnesses was that Matthews had participated in significant drug trafficking activities. Had the jury believed these witnesses, intent would not have been at issue. Matthews could not have participated in these activities without the requisite criminal intent. The prior arrest, therefore, was introduced not to show intent, but to buttress the credibility of the cooperating witnesses by showing Matthews’ propensity for drug trafficking. This is precisely what Rule 404(b) prohibits.
The Court found that the error was not harmless, pointing out that the prosecutor relied heavily on the prior arrest in closing argument, as the "glue" that held its witnesses’ stories together.