BLOG BULLETS: The government can’t unilaterally decide you or your client has breached a plea agreement; it has to seek a ruling from the court. The defense is entitled to an evidentiary hearing on the question if there are disputed facts. The defense breach has to be “substantial,” or “material”; a mere technical, de minimus […]

BLOG BULLETS: Remember that it’s you doing the government a favor when you offer a conditional plea, not them doing you a favor by accepting the offer. A new guidelines amendment overrules a bad Ninth Circuit case and states that the government can’t withhold the third acceptance of responsibility point simply because a defendant won’t […]

BLOG BULLETS:   Instructions on affirmative defenses aren’t given automatically; you do need some evidence to get one. The way the cases have phrased it is that you need “more than a scintilla” of evidence for a theory of defense instruction, but that threshold is “slight indeed.” The court can’t weigh the evidence but must […]

BLOG BULLETS:   The Ninth Circuit has long held that what is called “sentencing entrapment” – meaning inducement of a defendant into selling a type and/or larger quantity of drugs than he was predisposed to sell – allows a sentence below the statutory mandatory minimum for that drug type and/or quantity. The Ninth Circuit has […]

BLOG BULLETS:   There’s more district court opinions out there holding the existence of an ICE detainer doesn’t preclude a court from granting bond to a defendant who’s in the country illegally. Two of these opinions also consider the issue of whether ICE can then hold the person in immigration custody without removing him and […]

BLOG BULLETS:   There’s a government “watch list” for citizens crossing the border whose property (including laptop computers) they want to search. The few cases that exist tend to suggest this pretextual targeting probably doesn’t by itself prevent a suspicionless, warrantless search under the border search exception. But there may be a claim that the […]

BLOG BULLETS:   Remember the argument that a computer search should be limited by an appropriate search protocol where possible, so files not within the scope of the search don’t get examined. A recent Second Circuit case vacated the denial of a suppression motion and remanded for a further hearing on “whether the forensic examiner’s […]

BLOG BULLETS: Remember that convictions under the California drug statutes don’t qualify as drug trafficking offenses under the straight categorical approach because the California controlled substance schedules include substances that aren’t in the federal controlled substance schedules. The type of controlled substance may not be an element on which jurors must unanimously agree under California […]

BLOG BULLETS:   Lists of ways of committing an offense in a statute may be lists of either alternative elements, which a jury has to unanimously agree on, or lists of alternative means, which a jury doesn’t have to unanimously agree on. The divisible statutes to which Descamps limits the modified categorical approach are those […]