Criminal Law Newsletter October 2017

The following is a compendium of news reports over the past month that may be of interest to our AG offices who are involved with criminal law issues. Neither the National Association of Attorneys General nor the National Association of Attorneys General Training & Research Institute expresses a view as to the accuracy of news accounts, nor as to the positions expounded by the authors of the hyperlinked articles. 

Policy

Attorney General Sessions has announced the reinvigoration of Project Safe Neighborhoods as part of actions to reduce what he describes as the rising tide of violent crime. Project Safe Neighborhoods launched in 2001 and is a nationwide commitment to reduce gun and gang crime in America by networking existing local programs that target gun crime.

Attorney General Sessions has named Robert Patterson as Acting Administrator of the Drug Enforcement Administration. Patterson took charge of the agency upon the departure of former Acting Administrator Chuck Rosenberg.

The US Department of Justice has set up a unit to oversee the recently reinstated policy concerning asset forfeiture. The unit is intended to address the issues of alleged abuse by law enforcement in seizing assets when no criminal charges were filed. A new position, Director of Asset Forfeiture Accountability, will be created. The change in policy reverses action by former Attorney General Eric Holder to stop the program.

Attorney General Sessions has formally designated MS-13 as a priority for the Department of Justice’s Organized Crime Drug Enforcement Task Forces (OCDETF). The formal priority designation of MS-13 allows OCDETF to utilize an expanded toolkit in its efforts to dismantle the organization. This means that OCDETF should look to all laws in its investigative and prosecutorial efforts, including drug, gun and tax laws, RICO, and other resources that will hinder the gang activity.

Enforcement

Indictments have been returned against two Chinese nationals and their North American based traffickers and distributors for separate conspiracies to distribute large quantities of fentanyl and fentanyl analogues and other opiate substances in the United States. Grand juries in the Southern District of Mississippi and the District of North Dakota returned the indictments. The Chinese nationals are the first manufacturers and distributors of fentanyl and other opiate substances to be designated as Consolidated Priority Organization Targets (CPOTs). CPOT designations are those who have “command and control” elements of the most prolific international drug trafficking and money laundering organizations.

Aggressive enforcement and prosecution is being given as the reason for a record high number of federal gun traces in Minnesota. The number of unlawfully possessed firearms tracked in Minnesota last year (3,029) was the highest ever, up 15 percent from the year before. Federal authorities say it is related to increased violence among gang members.

Legislation

The House of Representatives has passed The Criminal Alien Gang Member Removal Act which would allow immigration authorities to bar criminal gang members from coming to the United States. In addition, criminal gang members in the US illegally could be detained and deported if they are criminal gang members or participate in violent gang activity.

The Senate is considering legislation to reform the criminal justice system. The Sentencing Reform and Corrections Act was introduced earlier this month with bipartisan support. The legislation would reduce mandatory minimum sentences for non-violent repeat drug offenders and eliminate the three-strike mandatory life in prison provision. Senate Judiciary Chairman Chuck Grassley, R-Iowa, and Senate Democratic Whip Dick Durbin, D-Ill., reintroduced the bill which mirrors one introduced in the last Congress.

Court Opinions

The United States Supreme Court has granted certiorari in a number of cases recently. Thanks to NAAG’s Dan Schweitzer and his Supreme Court Report for providing the following information:

Collins v. Virginia, No. 16-1027, certiorari granted September 28, 2017. The question presented is “[w]hether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a home, and search a vehicle parked a few feet from the house.” In this case, a police officer searching for a stolen motorcycle walked up to petitioner’s driveway, pulled back a tarp that covered a motorcycle, and read the motorcycle’s license plate and VIN to confirm it was the stolen motorcycle. The Virginia Supreme Court upheld the search (the removal of the tarp and inspection of the motorcycle) on the ground that the “automobile exception” applied: the officer had probable cause to believe the motorcycle contained contraband (indeed, it was contraband). The court rejected petitioner’s contention that the exception does not apply when the vehicle is located on private property.

McCoy v. Louisiana, No. 16-8255, certiorari granted September 28, 2017. The issue is whether, in a capital case, defense counsel can concede defendant’s guilt to the charged murders during the guilt-innocence phase — over the defendant’s objection — in the hope of improving the chances of avoiding the death penalty. In Florida v. Nixon, 543 U.S. 175 (2004), the Court held that counsel may concede guilt for that reason where the defendant “never verbally approved or protested [counsel’s] proposed strategy.” The present case asks whether the same result obtains where defendant expressly objected to the strategy.

City of Hays, Kansas v. Vogt, No. 16-1495, certiorari granted September 28, 2017. The question presented is “[w]hether the Fifth Amendment is violated when [compelled] statements are used at a probable cause hearing but not at a criminal trial.” This is a §1983 action brought by a police officer who alleges that (1) the police department threatened to fire him unless he provided information about a knife he came into possession of while on duty, (2) he was charged with two felony counts related to the knife, and (3) his statements about the knife were used against him at a probable cause hearing. The Tenth Circuit held that his right against self-incrimination applied to his compelled statement’s use at the probable cause hearing, even though the charges were dismissed for lack of probable cause and the statements were therefore not used at a criminal trial.

Byrd v. United States, No. 16-1371, certiorari granted September 28, 2017. The Court will resolve whether, for Fourth Amendment purposes, “a driver ha[s] a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement.” Here, state troopers stopped petitioner for a traffic violation while he was driving a car that his girlfriend had rented for him. Without a warrant, the officers searched the car and found contraband. The Third Circuit affirmed his conviction, holding that a driver not named in the rental agreement has no reasonable expectation of privacy in the rental car.

Rosales-Mireles v. United States, No. 16-9493, certiorari granted September 28, 2017. This case concerns the showing a federal defendant must make to satisfy the fourth prong of the plain-error test applicable (under Federal Rule of Criminal Procedure 52(b)) for obtaining relief from an unobjected-to error: that the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993). In denying relief for failure to satisfy that prong, the Fifth Circuit held that, to meet it, the error must be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” Petitioner contends that the Fifth Circuit has improperly heightened the showing needed to satisfy that prong.

United States v. Microsoft Corp., No. 17-2, certiorari granted October 16, 2017. At issue is “[w]hether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. [§]2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.” The government obtained a warrant under the Stored Communications Act, 18 U.S.C. §2703, requiring Microsoft to disclose email information for an account allegedly being used to conduct criminal drug activity. The Second Circuit granted Microsoft’s motion to quash the warrant on the ground that Microsoft stores the contents of the emails at a datacenter in Ireland, and that enforcing the warrant as to information stored there would constitute an impermissible extraterritorial application of the Act.

Currier v. Virginia, No. 16-1348, certiorari granted October 16, 2017. The question presented is “[w]hether a defendant who consents to severance of multiple charges into sequential trials loses his right under the Double Jeopardy Clause to the issue preclusive effect of an acquittal.” Petitioner was indicted on three charges; the parties agreed to sever one of them (a felon-in-possession charge) so that a prior felony did not have to be introduced. A jury acquitted petitioner of the first two charges — and (according to petitioner) necessarily rejected the factual predicate of the third charge. The Virginia Court of Appeals held that issue preclusion did not apply because the Double Jeopardy Clause’s concern with prosecutorial overreaching was not implicated here because the separate trials occurred “with the defendant’s consent and for his benefit.”

Dahda v. United States, No. 17-43, certiorari granted October 16, 2017. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§2510-2520, authorizes a judge to issue a wiretap order to intercept communications within the court’s territorial jurisdiction. The Court will resolve whether the Act “require[s] suppression of communications that were intercepted within the territorial jurisdiction of the issuing court, pursuant to a wiretap order that permitted interceptions to take place outside the jurisdiction of the issuing court.”

Other Items of Interest

Violent crime, including homicides, rose for the second consecutive year in 2016, driven by increases in a few urban centers including Baltimore, Chicago and Las Vegas, according to FBI data. Not all of the increase can be attributed to homicides. Seattle and Washington both showed an increase in violent crime but the rate of homicides was down. In addition, the crime rate is not evenly spread across the country. It has actually dropped in some states, such as Connecticut and Hawaii


Mark Neil is the Editor of Criminal Law Newsletter and may be reached at 202-326-6019. The Criminal Law Newsletter is a publication of the National Association of Attorneys General (NAAG). Any use and/or copies of this newsletter in whole or in part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail mneil@naag.org.

Faculty Spotlight

NAGTRI's faculty are top-rated experts in their field. Read about them.

Course Schedule

NAGTRI offers high-quality, responsive and innovative trainings.

Research & Newsletters

NAGTRI produces comprehensive research and newsletters on topical legal issues.