BLOG BULLETS: Effective December of last year, the rule of evidence governing prior consistent statements was broadened. The rule now allows prior consistent statements not just to rebut a charge of fabrication based on improper influence or motive but also to rehabilitate the witness when his or her credibility is attacked on any other ground. […]
Read/Write CommentsBLOG BULLETS: A bill has been introduced in Congress that would prohibit BOP from monitoring attorney-client e-mails on the Corrlinks or Trulincs system. One of the bill’s sponsors is quoted in a New York Times article as expressing skepticism about BOP claims that it can’t separate out attorney-client e-mails, and the article reports an explanation […]
Read/Write CommentsBLOG BULLETS: The wiretap statute allows state wiretaps only when the state official applying for the wiretap is the “principal prosecuting attorney” of the state or a “political subdivision thereof.” Recent Ninth Circuit opinions recognize this requirement and hold it prohibits applications by an assistant district attorney unless the district attorney is absent and has […]
Read/Write CommentsBLOG BULLETS: California’s Prop 47, which reduces simple possession from a felony to a misdemeanor and also allows already sentenced defendants to go back and have their convictions modified, can be used for our federal clients. Among the arguments that can be made are that the prior conviction no longer qualifies as a prior felony […]
Read/Write CommentsBLOG BULLETS: The 2015 Guidelines amendments just took effect on November 1. There’s changes to the theft/fraud guideline that are mostly helpful, including a partial adjustment of the loss table for inflation, changes to the victims and “sophisticated means” adjustments, and modification of the commentary defining “intended loss.” There’s also some helpful changes to the […]
Read/Write CommentsBLOG BULLETS: The recent Supreme Court opinion holding the Armed Career Criminal Act residual clause unconstitutional – United States v. Johnson – can be used to help even clients who have completed serving their prison sentences. Both guidelines commentary and Ninth Circuit case law suggest a showing the defendant wrongfully served excess time in custody […]
Read/Write CommentsBLOG BULLETS: A recent Ninth Circuit case – Chavez-Solis v. Lynch – clarifies and reaffirms two important principles about the categorical approach to evaluating prior convictions used for enhancements. First, a defendant does not always have to point to an actual case to show the required “reasonable probability” of an overbroad application of the statute; […]
Read/Write CommentsBLOG BULLETS: A more limited bill including just a few of the ameliorative provisions of the SAFE Act I blogged about a couple of months ago has been introduced in Congress. The bill would (1) narrow the category of drug priors that can support enhanced mandatory minimums but add violent crime priors; (2) relax the criminal […]
Read/Write CommentsBLOG BULLETS: Ninth Circuit model instructions, in the Ninth Circuit’s own words, “do not come down from any mountain or rise from the sea.” Consistent with this, Ninth Circuit panels have invalidated a number of Ninth Circuit model instructions. So don’t just accept an instruction because it’s the Ninth Circuit model instruction; look at it […]
Read/Write CommentsBLOG BULLETS: Justification for a Terry stop doesn’t automatically justify a frisk for weapons during the stop. A frisk for weapons requires its own different justification, namely, a reasonable suspicion that the person stopped is armed. The Ninth Circuit has found the additional intrusion of a frisk unjustified in multiple cases. NOW THE BLOG: […]
Read/Write Comments