Wasserman's Appellate Summaries
June 16, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
United States v. Haynes/Denton
Case Nos. 98-30221/98-30240
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-DISMISSAL FOR GOVERNMENT MISCONDUCT-SUPPRESSION OF EVIDENCE FOR GOVERNMENT MISCONDUCT-CONDUCT MUST BE OUTRAGEOUS-SENTENCING-COURT CANNOT DISREGARD TOTAL AMOUNT OF MARIJUANA CULTIVATED AS A SANCTION FOR GOVERNMENT MISCONDUCT
Haynes and Denton were indicted for manufacturing marijuana, conspiring to manufacture marijuana, and conspiring to commit money laundering. During the investigation, law enforcement relied on information provided by Dale Fairbanks, a private investigator who worked for an attorney who represented Haynes and Denton during the initial phase of the investigation. Their motion to dismiss and suppress, based on government misconduct, was only granted in part. They entered into conditional plea of guilty.
HELD: The court properly refused to dismiss the indictment; suppression of tainted evidence at trial was an appropriate remedy sufficient to cure any prejudice to Haynes and Denton resulting from the intrusion on their attorney-client relationship. If the government's involvement in a criminal endeavor shocks a universal sense of justice, then the Due Process Clause bars prosecution. There is no basis to argue that the government created the new criminal activity that began in 1997. To the extent that Haynes and Denton contend that the government introduced perjured and inflammatory testimony before the grand jury, any such error was harmless. The district court did not have the authority to exclude a separate stand of marijuana once the defendants pled guilty to the marijuana conspiracy count, which covered both the Stanwood and Warden grows. This was not a proper remedy for government misconduct. The court had to apply the statutory minimum. Affirmed conviction. Reversed the sentence (five year sentence - ten years required).
United States v. DeJesus
Case No. 98-50639
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-UNCHARGED CRIME CONSIDERED IN SENTENCING-PROOF BY PREPONDERANCE OF THE EVIDENCE OF UNCHARGED CRIME-DISPROPORTIONATE EFFECT ON SENTENCE OF UNCHARGED CRIME-ADVERSE INFERENCE FROM DEFENDANT'S SILENCE
Mezas de Jesus was convicted in 1998 of being an undocumented immigrant in possession of a firearm. At sentencing the court used the preponderance of the evidence standard and found that de Jesus possessed the firearm in connection with a kidnapping. The court also found the evidence week, but commented on the fact that de Jesus did not deny the charge. The court then sentenced him under the kidnapping guideline, rather than for possession of the firearm.
HELD: As a general rule at sentencing due process does not require a higher standard of proof than preponderance of the evidence to protect a convicted defendant's liberty interest in the accurate application of the Guidelines. When a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction a higher standard of proof may be required. De Jesus' sentence was enhanced nine-levels on the basis of an uncharged kidnapping. A sentencing court may not draw an adverse inference from a defendant's silence in determining facts relating to circumstances and details of a crime. The errors were not harmless. Reversed and remanded (57 month s to 5 year sentence).
United States v. Johnson
Case No. 99-15467
U.S. Court of Appeals for the Ninth Circuit
ORDER
An order filed on June 5, 2000, was withdrawn. Johnson's motion for judicial notice was denied.
Stubblefield Construction Company v. Superior Court/City of San Bernardino
Case No. E026108
California Court of Appeal, Fourth District, Division Two
CIVIL-PROCEDURE-TIME TO CHALLENGE THE SAME JUDGE ASSIGNED TO HEAR CASE AFTER REVERSAL ON APPEAL
After a reversal of the grant of summary judgment to the City of San Bernardino remittitur issued. On September 17, the parties were notified that the case had been assigned to Judge Warner, the same judge that had made the ruling resulting in the reversal. On October 29, Stubblefield filed a peremptory challenge to Judge Warner pursuant to the Code of Civil Procedure and the City filed an objection based on untimeliness. The court sustained the City's objection and refused to disqualify itself.
HELD: The Code of Civil Procedure provides, with respect to a preemptory challenge of a judge hat, following reversal on appeal of a trial court's decision, or final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion challenging the judge, regardless of whether that party or side has previously done so. The motion shall be made within 60 days after the party or the party's attorney has been notified of the assignment. Under the fast track rules the Government code provides that, notwithstanding the Code of Civil Procedure, in direct calendar courts, challenges pursuant to that section shall be exercised within 15 days of the party's first appearance. Master calendar courts shall be governed solely by Section 170.6 of the Code of Civil Procedure. This case involves a direct calendar assignment. If the direct calendar assignment is made more than 15 days after a party's first appearance in the case, that party would never have the right to exercise a peremptory challenge. It would also necessarily mean that a peremptory challenge could never be exercised after an appeal and remand, because all parties would have long since made a first appearance. Given the policy reasons for the provision for challenging a judge after reversal it is plain that Stubblefield had the right to disqualify Judge Warner. The Government Code time provision has no application when a judgment has been reversed on appeal and returned to the trial court for retrial. The 60-day provision of Code of Civil Procedure controls and Stubblefield's motion was timely. Petitioners' attempt to disqualify the trial judge was timely and that the trial court erred in finding otherwise. Mandate issued.
Wasserman's Archived Appellate Summaries
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