HOME    NEWSLETTERS     HOT LINKS    POLITICS

JANUARY 2000 - SUPREME COURT RULES ON PEREMPTORY CHALLENGES AND ANDERS PROCEDURE

Click on the LINK to reach the case you're interested in:  [NOTE: recent Daubert cases are in our special DAUBERT section]  Active links will take you to the summary of decision,  some may have a link to the full text.

FLORIDA v J.L. (98 1993) in reversing the Florida Supreme Court,   the Supreme Court applies to Exclusionary Rule to a Terry type search for weapons because there was no information upon which the stop was based other than an anonymous tip.

ILLINOIS v. WARDLOW (98-1036) released January 12, 2000,  this decision sets the tone for 21st Century "investigatory stops".  If you need to pee,  don't run to the bathroom,  because they can now take you down on suspicion of criminal activity because running from the cops is an strong indication of criminal activity.

STATE V BALLARD -  Former State Trooper,  Justice Traylor,   writes for a unanimous court that the holding in State v Simmons is an insult to law enforcement officers,  and that there is no right to automatic exclusion of an "active law enforcement officer" and no presumption of bias.  Livingston Parish.   Overrules Simmons.

U.S. HOUSE VOTES TO REQUIRE GOVERNMENT PROOF    The U.S. House slammed the forfieture industry on a June 24 vote to shift the burden of proof.

CASES

FLORIDA v. J. L. (98-1993) Web-accessible at: http://supct.law.cornell.edu/supct/html/98-1993.ZS.html

Argued February 29, 2000 -- Decided March 28, 2000 Opinion author: Ginsburg ===============================================================

After an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun, officers went to the bus stop and saw three black males, one of whom, respondent J.L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm or observe any unusual movements.

One of the officers frisked J. L. and seized a gun from his pocket. J. L., who was then almost 16, was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18.

The trial court granted his motion to suppress the gun as the fruit of an unlawful search.

The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment.

Held: An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. An officer, for the protection ofhimself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U.S. 1, 30.

Here, the officers' suspicion that J. L. was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop: It provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. See Alabama v. White, 496 U.S. 325,327.

The contentions of Florida and the United States as amicus that the tip was reliable because it accurately described J. L.'s visible attributes misapprehend the reliability needed for a tip to justify a Terry stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.

The facts of this case do not require the Court to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great--e.g., a report of a person carrying a bomb--as to justify a search even without a showing of reliability

.727 So. 2d 204, affirmed.

Ginsburg, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, in which Rehnquist, C.J., joined.

ILLINOIS v. WARDLOW (98-1036)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/98-1036.ZS.html

Argued November 2, 1999 -- Decided January 12, 2000
Opinion author: Rehnquist

===============================================================

Respondent Wardlow fled upon seeing a caravan of police
vehicles converge on an area of Chicago known for heavy
narcotics trafficking. When Officers Nolan and Harvey caught
up with him on the street, Nolan stopped him and conducted a
protective pat-down search for weapons because in his
experience there were usually weapons in the vicinity of
narcotics transactions. Discovering a handgun, the officers
arrested Wardlow. The Illinois trial court denied his motion
to suppress, finding the gun was recovered during a lawful stop
and frisk. He was convicted of unlawful use of a weapon by a
felon. In reversing, the State Appellate Court found that
Nolan did not have reasonable suspicion to make the stop under
Terry v. Ohio, 392 U.S. 1. The State Supreme Court affirmed,
determining that sudden flight in a high crime area does not
create a reasonable suspicion justifying a Terry stop because
flight may simply be an exercise of the right to "go on one's
way," see Florida v. Royer, 460 U.S. 491.

Held: The officers' actions did not violate the Fourth
Amendment. This case, involving a brief encounter between a
citizen and a police officer on a public street, is governed by
Terry, under which an officer who has a reasonable, articulable
suspicion that criminal activity is afoot may conduct a brief,
investigatory stop. While "reasonable suspicion" is a less
demanding standard than probable cause, there must be at least
a minimal level of objective justification for the stop. An
individual's presence in a "high crime area," standing alone,
is not enough to support a reasonable, particularized suspicion
of criminal activity, but a location's characteristics are
relevant in determining whether the circumstances are
sufficiently suspicious to warrant further investigation, Adams
v. Williams, 407 U.S. 143, 144, 147-148. In this case,
moreover, it was also Wardlow's unprovoked flight that aroused
the officers' suspicion. Nervous, evasive behavior is another
pertinent factor in determining reasonable suspicion, e.g.,
United States v. Brignoni-Ponce, 422 U.S. 873, 885, and
headlong flight is the consummate act of evasion. In reviewing
the propriety of an officer's conduct, courts do not have
available empirical studies dealing with inferences from
suspicious behavior, and this Court cannot reasonably demand
scientific certainty when none exists. Thus, the reasonable
suspicion determination must be based on commonsense judgments
and inferences about human behavior. See United States v.
Cortez, 449 U.S. 411, 418. Officer Nolan was justified in
suspecting that Wardlow was involved in criminal activity, and,
therefore, in investigating further. Such a holding is
consistent with the decision in Florida v. Royer, supra, at
498, that an individual, when approached, has a right to ignore
the police and go about his business. Unprovoked flight is the
exact opposite of "going about one's business." While flight
is not necessarily indicative of ongoing criminal activity,
Terry recognized that officers can detain individuals to
resolve ambiguities in their conduct, 392 U.S., at 30, and thus
accepts the risk that officers may stop innocent people. If
they do not learn facts rising to the level of probable cause,
an individual must be allowed to go on his way. But in this
case the officers found that Wardlow possessed a handgun and
arrested him for violating a state law. The propriety of that
arrest is not before the Court. Pp. 3-6.

183 Ill. 2d 306, 701 N. E. 2d 484, reversed and remanded.

Rehnquist, C. J., delivered the opinion of the Court, in
which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined.
Stevens, J., filed an an opinion concurring in part and
dissenting in part, in which Souter, Ginsburg, and Breyer, JJ.,
joined.

SUPREME COURT OF LOUISIANA No. 98_K_2198

OSCAR BALLARD

OSCAR BALLARD

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,

FIRST CIRCUIT, PARISH OF LIVINGSTON

TRAYLOR, J. *

In the prosecution of defendant for a third offense D.W.I. in Livingston Parish, the trial court denied the defendant's challenge for cause of a prospective juror who serves active duty as a police officer in Baton Rouge. On appeal, the majority of the en banc panel of the Court of Appeal, First Circuit, upheld the trial court's ruling, distinguishing the instant facts from this Court's ruling in State v. Simmons, 390 So. 2d 1317, 1318 (La. 1980), which held: "an actively employed criminal deputy sheriff is not a competent criminal juror." We granted certiorari to reconsider Simmons and to determine whether the trial court reached the appropriate ruling. For the following reasons, we overrule Simmons and affirm the judgment of the trial court and court of appeal.

FACTS AND PROCEDURAL HISTORY

Oscar Ballard was charged by bill of information with third offense driving while intoxicated, in violation of La. R.S. 14:98. After a trial by jury, the defendant was found guilty as charged. The trial court sentenced defendant to imprisonment at hard labor for two years. On appeal defendant claimed the trial court committed reversible error in denying his challenge for cause of the prospective juror, David Schultz, Jr., since Schultz is an actively employed police officer with the City of Baton Rouge in the K_9 division.

The record indicates that the trial judge initially questioned the prospective jurors to ascertain any bias or prejudice. When specifically questioning Officer Schultz, the record indicates the following colloquy occurred:

Q: Mr. Shultz? (sic)

A: Yes, sir, I know numerous police officers.

Q: All right, sir. The fact that you are a police officer, what

bearing would that have on your ability to serve as a fair and

impartial juror?

A: None.

Q: Would you be more inclined to believe or disbelieve a police

officer [who is testifying at trial] simply because you are a    police officer?

A: No, sir.

Q: Thank you, sir.

After the trial judge questioned the prospective jurors, the defendant's attorney questioned Officer Schultz more specifically. That exchange, in its entirety, reveals:

Q. Mr. Shultz (sic), you are currently a police officer with Baton

Rouge P.D., is that correct?

A. Yes, sir.

Q. What do you do for them?

A. K_9 division.

Q. You work patrol?

A. Yes, sir.

Q. You work D.W.I.'s?

A. As many chances I get I do.

The defendant argues that because Officer Schultz is a police officer, he cannot serve as an impartial juror in this matter, and the trial court erred in denying his challenge for cause. Defendant relies on this court's holding in Simmons, 390 So. 2d at 1318, and the First Circuit's holding in Statev. Robinson, 96_0292 (La. App. 1 Cir. 11/8/96), 684 So. 2d 83, to support this assignment of error.

The defendant further contends that Officer Schultz's response to the defense attorney's questioning during voir dire indicates he aggressively seeks out DWI cases for prosecution, which presents an additional reason why the trial court should have granted his challenge for cause.

The First Circuit convened an en banc panel to consider its prior holding in Robinson, which relied on Simmons. The majority of the court of appeal determined that although this court's This court reaffirmed Simmons in State v. Vanderpool, 493 So. 2d 574 (La. 1986).

language in Simmons:

[B]roadly states "an actively employed criminal deputy sheriff is not a competent criminal juror" and that "[a]ny jurisprudence to the contrary is expressly overruled," it is evident from the authority relied upon that the holding presumes the actively employed criminal deputy sheriff who is a potential juror be from and work within the same

jurisdiction as the complaining witness for the prosecution. State v. Ballard, 97_0233 (La. App. 1 Cir. 7/14/98), 718 So. 2d 521, 526. The court of appeal st

accordingly overruled Robinson, ultimately stating:

Thus, where an actively employed deputy sheriff who is a potential

juror has no employer_employee relationship with the prosecution's

complaining witness, we hold that a showing of bias must be made on

the record before the potential juror is properly excused for cause.

Ballard, 718 So. 2d at 526.

Because this holding violates the Simmons court's broad language, we must determine whether our ruling in Simmons should stand.

DISCUSSION

The Simmons court determined that the automatic disqualification of an actively serving law enforcement officer from service on a criminal jury is a means to the constitutionally guaranteed end of an impartial trial found in LA. CONST. art. I, § 16.

Applying Simmons, a trial court must disqualify a law enforcement officer even if the officer testifies under oath that he or she may render an impartial verdict according to the law and evidence. Law enforcement officers are sworn to uphold the laws of the state, which laws include the provision of a fair trial to each and every defendant. If a law enforcement officer testifies under oath during voir dire that he can be a fair and impartial juror, the trial judge has the discretion to determine whether that officer is speaking the truth. The disqualification of all law enforcement officers from service on a jury disregards whether or not the judge, whose rulings on challenges for ca use are given great deference in all other instances, accepts the officer as a fair and impartial juror.

We find that such a disqualification amounts to an irrebuttable presumption of untrustworthiness in law enforcement officers and is an affront to police officers in this state. When this court in Simmons held: "[t]he guarantee of an impartial trial in Article 1, Section 16, of the Louisiana Constitution of 1974 is offended by the presence on a jury of a badge_wearing law enforcement officer," id. at 1318,La. Code Crim. Proc. art. 797 provides in pertinent part:

The state or the defendant may challenge a juror for cause on the ground

that:* * *

(2) The juror is not impartial, whatever the cause of his partiality. An

opinion or impression as to the guilt or innocence of the defendant

shall not of itself be sufficient ground of challenge to a juror, if he

declares, and the court is satisfied, that he can render an impartial

verdict according to the law and the evidence;

(3) The relationship, whether by blood, marriage, employment,

friendship, or enmity between the juror and the defendant, the person

injured by the offense, the district attorney, or defense counsel, is

such that it is reasonable to conclude that it would influence the

juror in arriving at a verdict[.]

it failed to explain this connection, all the while implying that wearing a badge is somehow a mark of intrinsic bias, offending those who have been awarded a badge as a police officer in this state. Moreover, by painting with such a broad brush, Simmonsfails to discuss the application of other protections that were enacted to ensure a fair trial. Specifically, the legislature enacted La. Code Crim. Proc. art. 797 to enumerate grounds by which a juror may be removed for cause, providing lack of impartiality and employment relationship as two possible grounds for removal among many. These provisions allow the trial judge, who is in the most favorable position to determine whether a prospective juror can serve impartially, to make such an examination on a case_by_ case basis while avoiding the broadly written rule set forth inSimmons.

We find the protections of La. Code Crim. Proc. art. 797 sufficiently assure that a defendant is tried by a fair and impartial jury. In this case, Officer Schultz testified that he felt his connection with law enforcement officers would not affect his ability to serve as a fair and impartial juror. Furthermore, with regard to the colloquy between the defendant's attorney and Officer Schultz, it is difficult to say, without being able to observe his tone and inflection, whether Schultz's response indicates that he aggressively seeks out all D.W.I. cases, or whether his line of work does not result

in many opportunities to "work D.W.I.'s". The trial judge was in the best position to study Schultz's demeanor to determine his candor. Therefore, we defer to the trial judge's discretion in denying the defendant's challenge for cause.

CONCLUSION

For the reasons expressed herein, we overrule Simmons and its progeny, insofar as they hold that a law enforcement officer is not a competent criminal juror, and we affirm the judgment of the trial court and the court of appeal.

AFFIRMED.

LILLY V VIRGINIA  holds that an out of court statement by a co-defendant cannot be introduced when the declarant takes the 5th.  (June 10, 1999)       

CHICAGO V MORALES holds that an ordinance that makes gang loitering an offense,   defined and gathering "with no apparent purpose" is unconstitutional.   (June 10, 1999)                        NEDER v UNITED STATES holds that a Jury Instruction that leaves out part of the elements of the crime is reviewable under harmless error analysis.  (June 10, 1999)                                    MITCHELL v. UNITED STATES holds that a Guilty Plea does not lead to loss of 5th Amendment Priviledge against self-incrimination for sentencing purposes.   Government cannot rely on the silence of  Defendant at sentencing for enhancement.                                               WYOMING v. HOUGHTON (98-184) holds that police are authorized to search the contents of packages and purses owned by passengers in connection with search of an automobile.  Reduced expectation of privacy.                       

PEGUERO vs. U.S.  - Failure to advise D of right to Appeal at Plea:  No right to Habeas if D knew of the right.   Violation of Rule32(a)(2).   US Supreme Court March 2, 1999.                  HOLLOWAY vs. U.S.  - Carjacking conviction upheld where D had intent to kill "if necessary":  conditional intent sufficient to convict.  US Supreme      CourtMarch2,1999.                                                  

STATE V STE.MARIE - Speedy Trial in cases involving Juvenile: not per-emptive.  La. Supreme Court                                                                    

US v JACK H. HAESE  -  "Deal" for testimony not bribery under U.S. Law.   U.S. Fifth Circuit   KNOWLES V IOWA - Automatic right to search "incident to traffic citation" held violation of 4th Amendment.  US Suprme Court    MINNESOTA V CARTER - Temporary invitee not protected by any expectation of privacy: police could peek into window then search.  US Supreme Court    STATE V ROBERTSON - Vague, anonymous tip insufficent for stop and subsequent search.  La. Supreme Court   10/20/98

JUNE 25, 1999 - HOUSE VOTES MAJOR CHANGE IN FEDERAL FORFIETURE LAW:

    Henry Hyde of all people,  (R-Illinois),   finally got the U.S. House to vote 375 to 48 for a strengthening of traditional common law as applied to Forfieture of assets.   Hyde's bill imposes a standard of "clear and convincing evidence" on the government in order to allow forfieture of property.

    Hyde calls the present system, which imposes the burden on the citizen,  something out of "Soviet Style" justice.    Uncle Sam opposed the change,  looking at nearly $450 million taken in 1998.    Pres. Clinton wanted the House to take "preponderance",    but that too failed.

    Two recent cases got the attention of our representatives.    $300,000 worth of property was seized from George Gerhardt of Ft. Lauderdale,   on a tip.   George couldn't stop it, HE WAS DEAD!  No criminal activity existed,  but it cost his estate $30,000 to get the property back.    Then there's poor Willie James of Tennessee,  who needed some bushes for a landscaping job.  He bought a plane ticket with cash and went to the airport with $9,000 in plant money.   The Feds took it.

    Louisiana has the same kind of forfieture law.   In about 20 years we may see our representatives come to their senses too.

===============================================================

LILLY v. VIRGINIA (98-5881)

LAPDA.ORG, or full text at: http://supct.law.cornell.edu/supct/html/98-5881.ZS.html
Argued March 29, 1999 -- Decided June 10, 1999

Opinion author: Stevens

Petitioner, his brother Mark, and Gary Barker were arrested at the end of a 2-day crime spree, during which they, inter alia, stole liquor and guns and abducted Alex DeFilippis, who was later shot and killed. Under police questioning, Mark admitted stealing alcoholic beverages, but claimed that petitioner and Barker stole the guns and that petitioner shot DeFilippis.

When Virginia called Mark as a witness at petitioner's subsequent criminal trial, Mark invoked his Fifth Amendment privilege against self-incrimination.

The trial court then admitted his statements to the police as declarations of an unavailable witness against penal interest, overruling petitioner's objections that the statements were not against Mark's penal interest . . . . . and that their admission would violate the Sixth Amendment's Confrontation Clause.

Petitioner was convicted of the DeFilippis murder and other crimes. In affirming, the Virginia Supreme Court found that the Confrontation Clause was satisfied because Mark's statements fell within a firmly rooted exception to the hearsay rule. The court also held that the statements were reliable because Mark knew that he was implicating himself as a participant in numerous crimes and because the statements were independently corroborated by other evidence at trial.
Held: The judgment is reversed, and the case is remanded.
255 Va. 558, 499 S. E. 2d 522, reversed and remanded.
Justice Stevens, delivered the opinion of the Court with respect to Parts I, II, and VI, concluding:  

1. This Court has jurisdiction over petitioner's Confrontation Clause claim. He expressly argued the claim in his opening brief to the Virginia Supreme Court; and his   arguments based on Williamson v. United States, 512 U.S. 594, and the Confrontation Clause opinion of Lee v. Illinois, 476 U.S. 530, in responding to the Commonwealth's position,   sufficed to raise the issue in that court. P. 4.  

2. The admission of Mark's untested confession violated petitioner's Confrontation Clause rights. Adhering to this Court's general custom of allowing state courts initially to   assess the effect of erroneously admitted evidence in light of substantive state criminal law, the Virginia courts are to consider in the first instance whether this Sixth Amendment violation was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24. P. 21.

(a) The Confrontation Clause ensures the reliability of evidence against a defendant by subjecting it to rigorous testing in an adversary proceeding, Maryland v. Craig, 497 U.S.836, 845, as by cross-examination of a declarant, see California v. Green, 399 U.S. 149, 158. Hearsay statements are sufficiently dependable to allow their untested admission   against an accused only when (1) the statements fall "within a firmly rooted hearsay exception" or (2) they contain "particularized guarantees of trustworthiness" such that  adversarial testing would be expected to add little, if anything, to their reliability. Roberts, 448 U.S., at 66. Pp.  4-6.

(b) Statements are admissible under a "firmly rooted" hearsay exception when they fall within a hearsay category whose conditions have proven over time "to remove all  temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath" and cross-examination at a trial. Mattox v. United States, 156 U.S. 237, 244. The simple categorization of a statement as "against penal interest" defines too large a class for  meaningful Confrontation Clause review. . . . . . . Accomplice statements that shift  or spread blame to a criminal defendant, therefore, fall outside the realm of those "hearsay exception[s] [that are] so trustworthy that adversarial testing can be expected to add little to [the statements'] reliability." White v. Illinois, 502 U.S. 346, 357. Such statements are not within a firmly rooted exception to the hearsay rule. Pp. 6-16.

(c) . . . . . . . courts should independently review whether the government's proffered guarantees of trustworthiness satisfy the Clause. Here, the Commonwealth's asserted trustworthiness guarantees are unconvincing. Mark was in custody for his involvement in, and knowledge of, serious crimes. He made his statements under governmental authorities' supervision, and was primarily responding to the officers' leading questions. He also had a natural motive to attempt to exculpate himself and was under the influence of alcohol during the interrogation. Each of these factors militates against finding that his statements were so inherently reliable that cross-examination would have been superfluous. Pp. 16-21.

Justice Scalia concluded that introducing Mark Lilly's tape-recorded statements to police at trial without making him available for cross-examination is a paradigmatic Confrontation   Clause violation. Since the violation is clear, the case need be remanded only for a harmless-error determination. P. 1.

Justice Thomas, while adhering to his view that the Confrontation Clause extends to any witness who actually testifies at trial and is implicated by extrajudicial   statements only insofar as they are contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions, White v. Illinois, 502 U.S. 346,

365, agrees with The Chief Justice that the Clause does not impose a blanket ban on the use of accomplice statements that incriminate a defendant and that, since the lower courts did not analyze the confession under the second prong of the Roberts inquiry, the plurality should not address that issue here. P. 1.

The Chief Justice, joined by Justice O'Connor and Justice

Kennedy, concluded:

1. Mark Lilly's confession incriminating petitioner does not satisfy a firmly rooted hearsay exception because the statements in his 50-page confession which are against his   penal interest are quite separate from the statements exculpating him and inculpating petitioner, which are not in the least against his penal interest. . . . . . Not only were the confession's incriminating portions not a declaration againstpenal interest, but these statements were part of a custodial confession of the sort that this Court has viewed with special suspicion given a codefendant's strong motivation to implicate  the defendant and exonerate himself. Lee v. Illinois, 476 U.S.  530, 541. A blanket ban on the government's use of accomplice  statements that incriminate a defendant sweeps beyond this  case's facts and this Court's precedents. Pp. 1-5.

CHICAGO v. MORALES (97-1121)

LAPDA.ORG or full text at: http://supct.law.cornell.edu/supct/html/97-1121.ZS.html

Argued December 9, 1998 -- Decided June 10, 1999 Opinion author: Stevens

Chicago's Gang Congregation Ordinance prohibits "criminal street gang members" from loitering in public places. Under the ordinance, if a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse. Anyone who does not promptly obey such an order has violated the ordinance.

The State Supreme Court affirmed, holding that the ordinance violates due process in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties.
Held: The judgment is affirmed.
177 Ill. 2d 440, 687 N. E. 2d 53, affirmed.

The ordinanceencompasses a great deal of harmless behavior: In any public place in Chicago, persons in the company of a gang member "shall" be ordered to disperse if their purpose is not apparent to an officer. Moreover, the Illinois Supreme Court interprets the ordinance's loitering definition--"to remain in any one place with no apparent purpose"--as giving officers absolute

discretion to determine what activities constitute loitering. See id., at 359. This Court has no authority to construe the language of a state statute more narrowly than the State's highest court. See Smiley v. Kansas, 196 U.S. 447, 455.

Justice Stevens, joined by Justice Souter and Justice Ginsburg, concluded in Parts III, IV, and VI:

1. It was not improper for the state courts to conclude that the ordinance, which covers a significant amount of activity in addition to the intimidating conduct that is its

factual predicate, is invalid on its face. An enactment may be attacked on its face as impermissibly vague if, inter alia, it fails to establish standards for the police and public that are

sufficient to guard against the arbitrary deprivation of liberty. Kolender v. Lawson, 461 U.S., at 358. The freedom to loiter for innocent purposes is part of such "liberty." See, e.g., Kent v. Dulles, 357 U.S. 116, 126. The ordinance's vagueness makes a facial challenge appropriate. This is not an enactment that simply regulates business behavior and contains a scienter requirement. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499. It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U.S. 379, 395, and infringes on constitutionally protected rights, see id., at 391. Pp. 7-12.

2. Because the ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague. See, e.g., Coates v. Cincinnati, 402 U.S. 611, 614. The term "loiter" may have a common and accepted meaning, but the ordinance's definition of that term -- "to remain in any one place with no apparent purpose" -- does not. It is difficult to imagine how any Chicagoan standing in a public place with a group of people would know if he or she had an "apparent purpose." This vagueness about what loitering is covered and what is not dooms the ordinance.

NEDER v. UNITED STATES (97-1985)

LAPDA.ORG or full text at: http://supct.law.cornell.edu/supct/html/97-1985.ZS.html
Argued February 23, 1999 -- Decided June 10, 1999

Opinion author: Rehnquist

Petitioner Neder was convicted of filing false federal income tax returns and of federal mail fraud, wire fraud, and bank fraud. At trial, the District Court determined that materiality with regard to the tax and bank fraud charges was not a question for the jury and found that the evidence established that element.

The court did not include materiality as an element of either the mail fraud or wire fraud charges. The Eleventh Circuit affirmed. It held that the District Court's failure to submit the materiality element of the tax offense to the jury was error under United States v. Gaudin, 515 U.S. 506, but that the error was subject to harmless-error analysis and was harmless because materiality was not in dispute and thus the error did not contribute to the verdict.

The court also held that materiality is not an element of a "scheme or artifice to defraud" under the mail fraud, wire fraud, and bank fraud statutes, 18 U.S.C. sect. 1341 1342, 1344, and thus the District Court did not err in failing to submit materiality to the jury.
Held: 1. The harmless-error rule of Chapman v. California, 386 U.S. 18, applies to a jury instruction that omits an element of an offense. Pp. 4-17.

(a) A limited class of fundamental constitutional errors is so intrinsically harmful as to require automatic reversal without regard to their effect on a trial's outcome. Such errors infect the entire trial process and necessarily render a trial fundamentally unfair. For all other constitutional errors, reviewing courts must apply harmless-error analysis.

An instruction that omits an element of the offense differs markedly from the constitutional  violations this Court has found to defy harmless-error review, for it does not necessarily render a trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Omitting an element can easily be analogized to improperly instructing the jury on the element, an error that is subject to harmless-error analysis, Johnson v. United States, 520 U.S. 461, 469. 

The conclusion reached here is consistent with Sullivan v. Louisiana, 508 U.S. 275, on which Neder principally relies. The strand of Sullivan's reasoning that supports his position that harmless-error review is precluded where a constitutional error prevents a jury from rendering a "complete verdict" on every element of an offense cannot be squared with the cases in which this Court has applied harmless-error analysis to instructional errors, see, e.g., Pope v. Illinois,

481 U.S. 497.
The restrictive approach that Neder gleaned from Connecticut v. Johnson, 460 U.S. 73, a concurring opinion in Carella v. California, 491 U.S. 263, and language in Sullivan--under which an instructional omission, misdescription, or conclusive presumption can be subject to harmless-error analysis only in three rare situations--is also mistaken. Neder underreported $5 million on his tax returns, failed to contest materiality at trial, and does not suggest that he would introduce any evidence bearing upon that issue if so allowed. Reversal without consideration of the error's effect upon the verdict would send the case back for retrial focused not on materiality but on contested issues on which the jury was properly charged. The Sixth Amendment does not require the Court to veer away from settled precedent to reach such a result. Pp. 4-12.

136 F.3d 1459, affirmed in part, reversed in part, and remanded.

UNITED STATES SUPREME COURT

MITCHELL v. UNITED STATES (97-7541)                                     Argued December 9, 1998 -- Decided April 5, 1999

Opinion author: Kennedy
Petitioner pleaded guilty to federal charges of conspiring to distribute five or more kilograms of cocaine and of  distributing cocaine, but reserved the right to contest at  sentencing the drug quantity attributable under the conspiracy  count.

Before accepting her plea, the District Court made the inquiries required by Federal Rule of Criminal Procedure 11;  told petitioner that she faced a mandatory minimum of 1 year in  prison for distributing cocaine, but a 10-year minimum for   conspiracy if the Government could show the required 5  kilograms; and explained that by pleading guilty she would be  waiving, inter alia, her right "at trial to remain silent."

Indicating that she had done "some of " the proffered conduct, petitioner confirmed her guilty plea. . The District Court ruled that as a consequence of petitioner's guilty plea, she had no right to  remain silent about her crime's details; found that the  codefendants' testimony put her over the 5-kilogram threshold,  thus mandating the 10-year minimum; and noted that her failure  to testify was a factor in persuading the court to rely on the  codefendants' testimony. The Third Circuit affirmed.

Held:                                                                                                         1. In the federal criminal system, a guilty plea does not waive the self-incrimination privilege at sentencing. Pp. 6-12.

(a) The well-established rule that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details is justified by the fact that a witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the statements' trustworthiness and diminishing the factual inquiry's integrity. The privilege is waived for matters to which the witness testifies, and the waiver's scope is determined by the scope of relevant cross-examination. Brown v. United States, 356 U.S. 148, 154. The concerns justifying cross-examination at trial are absent at a plea colloquy, which protects the defendant from an unintelligent or involuntary plea. There is no convincing reason why the narrow inquiry at this stage should entail an extensive waiver of the privilege. A defendant who takes the stand cannot reasonably claim immunity on the matter he has himself put in dispute, but the defendant who pleads guilty takes matters out of dispute, leaving little danger that the court will be misled by selective disclosure.

Treating a guilty plea as a waiver of the privilege would be a grave encroachment on   defendants' rights. It would allow prosecutors to indict without specifying a drug quantity, obtain a guilty plea, and  then put the defendant on the stand at sentencing to fill in the quantity. To enlist a defendant as an instrument of his or her own condemnation would undermine the long tradition and  vital principle that criminal proceedings rely on accusations proved by the Government, not on inquisitions conducted to  enhance its own prosecutorial power. Rogers v. Richmond, 365  U.S. 534, 541. Pp. 6-10.

(b) Where a sentence has yet to be imposed, this  Court has already rejected the proposition that incrimination   is complete once guilt has been adjudicated. See Estelle v.  Smith, 451 U.S. 454, 462. That proposition applies only to   cases in which the sentence has been fixed and the judgment of  conviction has become final. See, e.g., Reina v. United   States, 364 U.S. 507, 513. Before sentencing a defendant may   have a legitimate fear of adverse consequences from further  testimony, and any effort to compel that testimony at   sentencing "clearly would contravene the Fifth Amendment,"   .   .    .   To maintain that sentencing proceedings are not part of "any criminal case" is contrary to the Federal Rules of Criminal Procedure and to common sense. Pp. 10-12.

2. A sentencing court may not draw an adverse inference from a  defendant's silence in determining facts relating to the   circumstances and details of the crime. The normal rule in a  criminal case permits no negative inference from a defendant's   failure to testify. See Griffin v. California, 380 U.S. 609,   614. A sentencing hearing is part of the criminal case, and  the concerns mandating the rule against negative inferences at   trial apply with equal force at sentencing.    122 F.3d 185, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Scalia,  J., filed a dissenting opinion, in which Rehnquist, C. J., and  O'Connor and Thomas, JJ., joined. Thomas, J., filed a  dissenting opinion.

===============

WYOMING v. HOUGHTON (98-184)

http://supct.law.cornell.edu/supct/html/98-184.ZS.html

Argued January 12, 1999 -- Decided April 5, 1999

Opinion author: Scalia

During a routine traffic stop, a Wyoming Highway Patrol officer noticed a hypodermic syringe in the driver's shirt pocket, which the driver admitted using to take drugs.

The officer  then searched the passenger compartment for contraband,   removing and searching what respondent, a passenger in the car,  claimed was her purse. He found drug paraphernalia there and  arrested respondent on drug charges.

The trial court denied   her motion to suppress all evidence from the purse as the fruit   of an unlawful search, holding that the officer had probable   cause to search the car for contraband, and, by extension, any    containers therein that could hold such contraband. Respondent  was convicted.

In reversing, the Wyoming Supreme Court ruled  that an officer with probable cause to search a vehicle may  search all containers that might conceal the object of the  search; but, if the officer knows or should know that a  container belongs to a passenger who is not suspected of   criminal activity, then the container is outside the scope of   the search unless someone had the opportunity to conceal  contraband within it to avoid detection. Applying that rule    here, the court concluded that the search violated the Fourth and Fourteenth Amendments.

Held: Police officers with probable cause to search a car, as in this case, may inspect passengers' belongings found in the  car that are capable of concealing the object of the search.

In determining whether a particular governmental action violates the Fourth Amendment, this Court inquires first  whether the action was regarded as an unlawful search or   seizure under common law when the Amendment was framed, see,  e.g., Wilson v. Arkansas, 514 U.S. 927, 931. Where that   inquiry yields no answer, the Court must evaluate the search or  seizure under traditional reasonableness standards by balancing  an individual's privacy interests against legitimate  governmental interests, see, e.g., Vernonia School Dist. 47J v.   Acton, 515 U.S. 646, 652-653.

This Court has concluded that   the Framers would have regarded as reasonable the warrantless  search of a car that police had probable cause to believe   contained contraband, Carroll v. United States, 267 U.S. 132, as well as the warrantless search of containers within the  automobile, United States v. Ross, 456 U.S. 798. Neither Ross   nor the historical evidence it relied upon admits of a   distinction based on ownership. . . . . . . . . . .  The Wyoming Supreme Court's  "passenger property" rule would be unworkable in practice.    Finally, an exception from the historical practice described in  Ross protecting only a passenger's property, rather than property belonging to anyone other than the driver, would be less sensible than the rule that a package may be searched,   whether or not its owner is present as a passenger or  otherwise, because it might contain the object of the search.Pp. 3-11.

956 P.2d 363, reversed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, Thomas, and Breyer,  JJ., joined. Breyer, J., filed a concurring opinion. Stevens,  J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.

PEGUERO v. UNITED STATES (97-9217)

http://supct.law.cornell.edu/supct/html/97-9217.ZS.html

Argued January 11, 1999 -- Decided March 2, 1999

Opinion author: Kennedy

After petitioner pleaded guilty to federal drug charges, the

District Court sentenced him to prison, but failed to inform

him at the sentencing hearing of his right to appeal the

sentence. In a later motion for habeas relief, petitioner

alleged that that failure violated the express terms of Federal

Rule of Criminal Procedure 32(a)(2). The District Court

rejected petitioner's claim that any Rule 32 violation, without

regard to prejudice, is enough to vacate a sentence, and held

that petitioner was not entitled to relief because he actually

knew of his right to appeal when he was sentenced. The Third

Circuit affirmed, holding that the Rule 32(a)(2) violation was

subject to harmless-error review and that, because petitioner

was aware of his right to appeal, the Rule's purpose had been

served.

Held: A district court's failure to advise a defendant of his right to appeal does not entitle him to habeas relief if he knew of his right and hence suffered no prejudice from the  omission. Because Rule 32(a)(2) requires a district court to  advise a defendant of any right to appeal his sentence, it isundisputed that the court's failure to give the required advice was error in this case. However, as a general rule, a court's   failure to give a defendant advice required by the Federal  Rules is a sufficient basis for collateral relief only when the  defendant is prejudiced by the error. See, e.g., United States  v. Timmreck, 441 U.S. 780. Because petitioner had full knowledge of his right to appeal, the fact that the court violated the Rule, standing alone, does not entitle him to collateral relief. The narrow holding in Rodriquez v. United  States, 395 U.S. 327--that when counsel fails to file arequested appeal, a defendant is entitled to resentencing and  an appeal without showing that his appeal would likely have  merit--is not implicated here because the District Court found   that petitioner did not request an appeal. Pp. 3-7.142 F.3d 430, affirmed.   Kennedy, J., delivered the opinion for a unanimous Court.

O'Connor, J., filed a concurring opinion, in which Stevens,

Ginsburg, and Breyer, JJ., joined.

===============================================================

HOLLOWAY v. UNITED STATES (97-7164)

http://supct.law.cornell.edu/supct/html/97-7164.ZS.html

Argued November 9, 1998 -- Decided March 2, 1999

Opinion author: Stevens

Petitioner was charged with federal offenses including carjacking, which 18 U.S.C. sect. 2119 defines as "tak[ing] a motor vehicle ... from ... another by force and violence or by intimidation" "with the intent to cause death or serious bodily harm." Petitioner's accomplice testified that their plan was to steal cars without harming the drivers, but that he would have used his gun if any of the victims had given him a "hard time." The District Judge instructed the jury, inter alia, that the intent requisite under sect. 2119 may be conditional, and that the Government satisfies this element of the offense when it proves that the defendant intended to cause death or serious bodily harm if the alleged victims refused to turn over their cars. The jury found petitioner guilty, and the Second Circuit affirmed, declaring, among other things, that the inclusion of a conditional intent to harm within sect.2119 comported with a reasonable interpretation of the legislative purpose.

Held: Section 2119's "with the intent to cause death or  serious bodily harm" phrase does not require the Government to prove that the defendant had an unconditional intent to kill or  harm in all events, but merely requires proof of an intent to kill or harm if necessary to effect a carjacking. This mens rea component of sect. 2119 directs the factfinder's attention to the defendant's state of mind at the precise moment he demanded or took control over the car "by force and violence or by intimidation." If the defendant has the proscribed state of mind at that moment, the statute's scienter element is satisfied. Petitioner's reading--that the defendant must possess a specific and unconditional intent to kill or harm in order to complete the prescribed offense--would improperly transform the mens rea element from a modifier into an additional actus reus component of the carjacking statute; it would alter the statute into one that focuses on attempting to harm or kill a person in the course of the robbery of a motor vehicle. Given that sect. 2119 does not mention either conditional or unconditional intent separately--and thus does not expressly exclude either--its text is most naturally read to encompass the mens rea of both species of intent, and not to limit its reach to crimes involving the additional actus reus of an attempt to kill or harm.

Two considerations strongly support the Court's conclusion. First, petitioner's   interpretation would exclude from the coverage of the statutemost of the conduct that Congress obviously intended to  prohibit. Second, it is reasonable to presume that Congress  was familiar with the leading cases and the scholarly writing recognizing that the specific intent to commit a wrongful act may be conditional. The Court's interpretation does not, as  petitioner suggests, render superfluous the statute's "by force  and violence or by intimidation" element. While an empty threat, or intimidating bluff, would be sufficient to satisfy that element, such conduct, standing on its own, is not enough to satisfy sect. 2119's specific intent element. Pp. 4-11. 126 F.3d 82, affirmed.

Stevens, J., delivered the opinion of the Court, in whichRehnquist, C. J., and O'Connor, Kennedy, Souter, Ginsburg, andBreyer, JJ., joined. Scalia, J., and Thomas, J., filed dissenting opinions.

LA SUPREME COURT PUTS "6 MONTH SPEEDY TRIAL" TO REST IN CHILD SEX CASES

STATE v Ste. Marie,  98 K 1167 (La. 12/18/98) 

15:171 said trial had to commence within 6 months when charges involved a minor child   (repealed in Act 713 of 1997) -  Third Circuit had reversed the conviction here,  finding a speedy trial right.

REVERSED:  La. Supreme Court holds that the language of the statute was "supplicatory only,  to serve as a directive" to trial courts to expedite child cases " to ease the emotional burden on the children",  not to do so "at the cost of freeing their accusers".

U.S. FIFTH CIRCUIT REJECTS SINGLETON,  SAYS 10TH CIRCUIT ERRED IN FINDING PLEA BARGAIN FOR TESTIMONY IS BRIBERY.....

UNITED STATES VS  JACK HUTCHINS HAESE,

No. 97-10307  December 7, 1998

Section 201(c)(2) prohibits the giving, offering or promising anything of value to a witness for or because of his testimony. Haese relies upon United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998) reh’g en banc granted, opinion vacated, (10th Cir. July 10 ,1998). In Singleton, the court found that the prosecutor violated section 201(c)(2) and reversed the defendant’s conviction based upon an accomplice’s testimony at trial under a cooperation agreement. Id. at 1359-61. The accomplice agreed to testify truthfully in return for leniency, including the possibility of a 5K1.1 motion by the government. Id. at 1344. No other jurisdiction has adopted Singleton’s holding, and even the Tenth Circuit vacated the decision pending rehearing en banc.

This Circuit refuses to adopt Singleton’s reasoning and holding. This Court has stated that "no practice is more ingrained in our criminal justice system than the practice of the government calling a witness who is an accessory to the crime for which the defendant is charged and having that witness testify under a plea bargain that promises him a reduced sentence." United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987), cert. denied, 484 U.S. 1026 (1988). The First Circuit has correctly noted that frequently the most knowledgeable witnesses available to testify about criminal activity are other co-conspirators. United States v. Dailey, 759 F.2d 192, 196 (1st Cir. 1985); see United States v. Reid, 1998 WL 481459, at *3 (E.D.Va. July 28, 1998). Often, there are situations where these individuals are the only credible witnesses, and without the ability to use their testimony the government would not be able to obtain a conviction. Id. Moreover, this essential "right on the part of the prosecutor to make promises of leniency in exchange for testimony is as old as the institution of the criminal trial." Id. In addition, affording leniency to cooperating accomplices dates back to the common law of England and has been recognized and approved by the United States Congress, the United States Courts and the United States Sentencing Commission. United States v. Barbaro, 1998 WL 556152, at *3 (S.D.N.Y. Sept. 1, 1998); see also United States v. Laureano, 1998 WL 696006, at *1 (S.D.N.Y. Oct. 7, 1998).

Unlike the Singleton court, it is evident to this Court that Congress did not intend for section 201(c)(2) to be used when prosecutors offer lenity for a witness’ truthful testimony. To interpret section 201(c)(2) in any other way would apply shackles to the government in its pursuit to enforce the law. See United States v. Hammer, 1998 WL 725211, at *17 (M.D.Pa. Oct. 9, 1998) (noting that the Singleton opinion makes a criminal out of nearly every federal prosecutor, accomplices out of district judges, suppresses highly relevant evidence and cripples the enforcement of federal criminal law).

Two courts have followed Singleton’s flawed rationale. United Stated v. Fraguela, 1998 WL 560352, at *2 (E.D.La. Aug. 27,1998)(concluding that section 201(c)(2) "does and should apply to prosecution plea bargaining"); United States v. Lowery, 15 F.Supp.2d 1348, 1359-60 (S.D.Fla. 1998) (finding that suppression of co-defendant’s testimony is the appropriate remedy for a violation of section 201(c)(2) and to deter unlawful prosecutorial conduct). These courts are incorrect and this Circuit will not follow down a path that will throw our criminal system into disarray.

Although Fraguela and Lowery were misguided by the Singleton court, numerous courts dealing with the application of section 201(c)(2) have refused to accept its rationale.for her testimony); United States v. White, 1998 WL 758830, at *2 (E.D.N.C. Oct. 14, 1998)(recognizing that section 201(c)(2) is inapplicable to government plea agreements that are designed to encourage witnesses to testify against other criminal defendants); United States v. Nieves, 1998 WL 740835, at *1 (D.Conn. Oct. 13, 1998)(rejecting the reasoning of Singleton and stating that section 201(c)(2) does not apply to the government because it is not expressly included within the statute’s scope); United States v. Revis, 1998 WL 713229, *19 (N.D.Okla. Oct. 8,1998)(concluding that section 201(c)(2) did not prohibit the government’s plea agreements where it followed specific procedures mandated by the law). To apply section 201(c)(2) to the government in this case is "unsound, not to mention nonsensical, especially in its creation ex nihilo of an exclusionary rule barring testimony from virtually every cooperating federal witness." Eisenhardt, 10 F.Supp.2d at 521. Therefore, we must reject Haese’s contention that 18 U.S.C. § 201(c)(2) is violated when testimony is obtained in exchange for a favorable plea agreement. Thus, we hold that the district court did not err in allowing Assomull’s testimony.

KNOWLES V IOWA

United States Supreme Court No.  97-7597,  by Rehnquist

Unanimous court holds Iowa cannot authorize a search "incident to traffic citation".   Court finds that such a Search is unreasonable under the 4th Amendment.   Search incident to arrest is not inclusive of situation where a traffic ticket is given to a motorist.   Safety concerns are resolved by authority of police to remove passengers and driver from the vehicle.   All the evidence necessary to prosecute the speeding was available at the time of the stop,   and no other steps were needed for that investigation.   Nor could the need to preserve identification evidence or other evidence.

The decision may be limited to cases in which the states try to impose some kind of "implied consent" or other automatic permit to search based on a traffic stop.   While the Court rejects this,  it is somewhat inconsistent with the wide bearth given to pretext stops where police get consent.   However,  it is important to note Iowa had a statute that gave the police an automatic permit to search based on a mere traffic citation without anything else.

Full text of the opinion is at Cornell Law:  http://supct.law.cornell.edu/supct/html/97-7597.Zs.html

MINNESOTA V CARTER

United States Supreme Court No. 97-1147,   by Rehnquist

Officer looked into a window and saw people bagging cocaine.  Two were overnight guests,  one was the lessee of the apartment.    ISSUE was whether peeking into the apartment was unreasonable search under the 4th Amendment.  

The lower courts went off on "standing", holding the guests had no legal right to challenge the search.  The Minnesota Supreme Court reversed and found   that the officer's observation was an unreasonable search, and that the guests had a legitimate expectation of privacy.

HELD:     REVERSED.   Fourth Amendment protects against unreasonable searches of "persons and homes" and therefore creates a personal right.   Here, the purely commercial nature of the transaction, the relatively short period of time that respondents were on the premises, and the lack of any previous connection between them and the householder all lead to the conclusion that the situation is closer to one of a mere permittee.  They had no legitimate expectation of privacy.

FIND THE FULL OPINION AT CORNELL LAW

STATE V ROBERTSON

97-KK-2960   (LA. 10/20/98)

Court REVERSES denial of Motion to Suppress,  holding that a vague anonymous tip was insufficient for "reasonable suspicion" for "investigatory stop".     Court found the tip was general, and "non-predictive",   and that the Police needed more "suspicious or unusual behavior" in order to justify investigatory stop.   "The tip . . . contained no predictive information from which the officers could reasonably determine that the informant had "inside information" or a "special familiarity" with defendant's affairs."  (p5)

Full PDF file on this case,  for which you must have the Adobe Acrobat Reader : ROBERTSON

A DAUBERT PRIMER

Daubert sets the rules for expert evidence under Article 702.   From our 1998 CL Seminar,  we have stored the Daubert outline here for your review.