BLOG BULLETS: The Ninth Circuit has confirmed that Descamps requires that a list of alternative ways of committing a crime in a statute must be a list of alternative elements for the statute to be divisible, not just a list of alternative means. Alternatives are alternative elements rather than alternative means when the jury has […]
Read/Write CommentsBLOG BULLETS: Riley v. California’s concern about the grossly more intrusive nature of cell phone and computer searches applies equally in the border search context. While a traveler has a diminished expectation of privacy at the border, the arrestees in Riley had a diminished expectation of privacy as arrestees, and the purposes of the border […]
Read/Write CommentsBLOG BULLETS: In Riley v. California, the Supreme Court held that cell phones couldn’t be searched as part of a search incident to arrest. The Court emphasized the far greater amount of information on a cell phone and the resulting far greater intrusion on privacy when a cell phone is searched. This reasoning suggests either […]
Read/Write CommentsBLOG BULLETS: A document the government seeks to offer in a reopening of its case in chief is covered by the Rule 16(a)(1)(E)(ii) obligation to disclose all documents to be offered in the case in chief, just like documents the government offers in its initial presentation of evidence. The “materiality” threshold for the Rule 16(a)(1)(E)(i) […]
Read/Write CommentsBLOG BULLETS: In an appropriate case, you can compel the government to grant one of your witnesses immunity if the witness claims the privilege against self-incrimination. The witness’s testimony has to be relevant, but the relevance need only be “minimal.” The second requirement is that the government’s denial of immunity to the defense witness have […]
Read/Write CommentsBLOG BULLETS: We should think about filing motions for attorney-conducted voir dire in our cases, to give judges some written argument on why it’s appropriate. One reason to offer for attorney-conducted voir dire is the idea that attorney-conducted voir dire combined with the judge’s voir dire is the most effective way to get full disclosure […]
Read/Write CommentsBLOG BULLETS: The government is claiming the right to read attorney-client e-mails over the BOP Corrlinks/Trulincs system, so be careful about using the system. The government claims there is no attorney-client privilege, but the authority it cites can be challenged, and there’s non-privilege arguments that courts should preclude the government from reading the e-mails. The […]
Read/Write CommentsFormer Bell Mayor George Cole, sentenced Wednesday to home confinement for his role in the small city’s corruption case, said after the verdict that is filled with shame and remorse for the scandal. A onetime steelworker and the son of a Presbyterian minister, Cole was ordered to sentenced to 180 days of home confinement and […]
Read/Write CommentsBLOG BULLETS: The government often errs by charging continuing thefts over a period of time as a single theft of the larger amount when it’s really multiple separate thefts of the smaller amounts. Both older case law and more recent case law reaffirming the older case law support challenges to indictments charging a single theft […]
Read/Write CommentsBLOG BULLETS: In the recent case of United States v. Aguilera-Rios, the Ninth Circuit reaffirmed its rejection of the argument that all affirmative defenses have to be considered in comparing statutes under the categorical approach and heldMoncrieffe v. Holder doesn’t require a different result. But Moncrieffe does require consideration of what the court called “definitional […]
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