BLOG BULLETS: A recent Ninth Circuit case has held that the generic definition of “conspiracy” for purposes of applying the categorical approach to a federal enhancement statute requires both an agreement and an overt act. This excludes Nevada conspiracy, because it doesn’t require an overt act. The case also provides a nice guide to factors […]
Read/Write CommentsBLOG BULLETS: The Department of Justice is supporting the proposed amendment to the drug guideline reducing base offense levels by 2 levels. The Department has directed prosecutors not to oppose requests to reduce offense levels in sentencings even now, before the new guideline takes effect. The Department’s written comments and testimony by the Attorney General […]
Read/Write CommentsBLOG BULLETS: The rule that the fruits of a court-ordered mental health examination can’t be used against a defendant unless he opens the door by presenting mental health evidence apply to court-ordered competency evaluations just like other court-ordered mental health examinations. To make sure your client can assert this protection, make any competency examination be […]
Read/Write CommentsBLOG BULLETS: The same rule that allows a court to order an independent mental health examination of the defendant if he gives notice of intent to introduce mental health evidence provides that no “fruits” of the examination can be used against the defendant unless he actually ends up introducing the mental health evidence he gave […]
Read/Write CommentsBLOG BULLETS: The government’s right to a mental health examination of the defendant when the defense gives notice of expert testimony about the defendant’s mental health condition under Rule 12.2 is an absolute right only when the notice is of an actual insanity defense; otherwise, the court has discretion to either order or not order […]
Read/Write CommentsBLOG BULLETS: A recent Ninth Circuit case holds that e-mails transmitted over a Wi-Fi network are “electronic transmissions” subject to the requirements of the wiretap statute. The case rejected an argument that an exception for transmissions “readily accessible to the public” applies, so the general requirements for a wiretap such as probable cause, a warrant, […]
Read/Write CommentsBLOG BULLETS: The Attorney General’s memo cautioning against the indiscriminate use of mandatory minimums contains conflicting language about whether it applies only to defendants who plead guilty or also those who go to trial. A recent Human Rights Watch report shows how mandatory minimums are used to coerce defendants into pleading guilty and giving up […]
Read/Write CommentsBLOG BULLETS: Amendments significantly reducing both the drug guidelines and the statutory mandatory minimums are presently being considered by the Sentencing Commission and Congress. An Attorney General memorandum issued in August directs prosecutors not to charge mandatory minimum triggering quantities in cases where they aren’t appropriate and provides guidelines for making that determination. Use the […]
Read/Write CommentsBLOG BULLETS: If your detained client is kept in custody at an overly remote location, consider a Sixth Amendment challenge that this prevents the attorney-client consultation required for effective assistance of counsel. There’s also a statutory argument based on 18 U.S.C. § 3142(i)(3), which requires that a defendant detained without bail “be afforded reasonable opportunity […]
Read/Write CommentsBLOG BULLETS: There are now 16 separate cases approving bond for defendants even though the defendants were in the country illegally. The cases also suggest that an immigration detainer alone has almost no relevance to the detention issue. You can not only argue against detention but can argue that the government isn’t even entitled to […]
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