M - Voice For The Defense Online

july/august 2007
:: sDR
Defendant’s denial of ownership of a storage unit did not
preclude the police from relying on defendant’s consent to
search that unit; notwithstanding the denial of consent, if a
reasonable officer could have believed that defendant had
authority to consent to a search of the storage unit, the search
was reasonable under the Fourth Amendment; here, the
police could reasonably have concluded that defendant had
authority because, at the time he consented, the police had
received a tip that he maintained the storage unit, they had
observed him driving into the storage facility, and they had
found a receipt and keys for the unit in his possession.
Prosecutor’s comment on post-arrest, pre-Miranda
silence was OK.
United States v. Salinas, 480 F.3d 750 (5th Cir. 2007)
Prosecutor’s references to defendant’s post-arrest, but
pre-Miranda, silence, did not run afoul of Doyle v. Ohio,
426 U.S. 610 (1976), and it progeny; these cases prohibit
reference only to a defendant’s post-Miranda silence; nor did
the prosecutor’s references to defendant’s post-arrest, pre-
Miranda silence constitute a plain violation of defendant’s
privilege against self-incrimination; in light of (1) a published
5th Circuit opinion allowing reference to pre-arrest silence, (2)
an unpublished 5th Circuit opinion relying on the published
opinion to allow reference to post-arrest, pre-Miranda, and
(3) a circuit split on the issue, any error in allowing such
references was not “plain,” i.e., clear under existing law, so
as to permit relief under the plain-error rule.
Delivery of controlled substance prior was not “drug
trafficking offense” – sentence vacated
United States v. Gonzales, __F.3d__, 2007 WL 1063993 (5th
Cir. Mar. 7, 2007)
Under the reasoning of United States v. Garza-Lopez, 410 F.3d
268 (5th Cir.), cert. denied, 1265 S. Ct. 298 (2005), defendant’s
prior Texas conviction for delivery of a controlled substance
was not a “drug trafficking offense” for purposes of USSG
§2L1.2(b)(1)(A)(i), because that conviction could have been
based on an “offer to sell” theory not covered by §2L1.2’s
definition of a “drug trafficking offense”; because the error
resulted in a 76-month sentence, reversal was required even
under plain-error review; accordingly, the 5th Circuit vacated
the sentence and remanded for resentencing.
Counsel not ineffective in DP trial for failing to adequately
investigate defendant’s epilepsy
Martinez v. Quarterman, 481 F.3d 249 (5th Cir. 2007)
District court reversibly erred in granting habeas petition
for ineffective assistance of counsel in the punishment phase
of death-sentenced petitioner’s trial for capital murder;
reasonable professional judgments supported counsel’s
limited investigation into petitioner’s condition of temporal
lobe epilepsy; moreover, petitioner failed to establish
prejudice as the result of counsel’s limited investigation;
accordingly, the 5th Circuit reversed the district court’s grant
of the writ.
Defendant not entitled to entrapment instruction
United States v. Smith, 481 F.3d 259 (5th Cir. 2007)
In prosecution for drug trafficking offenses and 18 U.S.C.
§924(c)(1), district court did not err in excluding evidence
offered to support entrapment defense or in refusing
defendant’s proposed entrapment jury instruction; the
defendant proffered no evidence of his lack of predisposition
to commit the crime; the proffered evidence was relevant only
to show the government’s conduct, if anything.
Handgun possession prior was a “crime of violence” for
career offender provisions
United States v. Rodriguez-Jaimes, 481 F.3d 283 (5th Cir.
2007)
Defendant’s prior conviction for knowing possession of
a handgun in violation of the Texas statute prohibiting
possession of a deadly weapon in a penal institution (Tex.
Penal Code §46.10) was a “crime of violence” for purposes
of the Guidelines’ career offender provisions (USSG §§4B1.1
& 4B1.2), because the possession of a deadly weapon by a
prison inmate by its nature presents “a serious potential risk
of physical injury to another,” USSG §4B1.2(a)(2).
Overnight guest had standing to challenge search, but
limited 4th Amendment rights
United States v. Taylor, 482 F.3d 315 (5th Cir. 2007)
As an overnight guest, defendant had, under Minnesota v.
Olson, 495 U.S. 91 (1990), a reasonable expectation of privacy
in, and thus standing to challenge the warrantless entry into
and search of, his girlfriend’s apartment; however, defendant’s
Fourth Amendment rights there were limited to those that he
could have asserted in his own residence; because defendant
was on post-conviction supervision pursuant to Mississippi’s
Earned Release Supervision Program, his Fourth Amendment
rights were more limited than those of the average citizen;
in such situations, under United States v. Knights, 534 U.S.
112 (2001), a search of a supervisee’s residence requires no
more than “reasonable suspicion,” i.e., “a sufficiently high
probability that criminal conduct is occurring to make the
intrusion on the individual’s privacy interest reasonable”;
here, this standard was met because (1) the police had a
misdemeanor arrest warrant for defendant at the time they
entered the house, and (2) they also had evidence suggesting
that defendant was in possession of a firearm and that he
was in violation of the conditions of his parole; since under
Knights the search would have been lawful had it occurred in
defendant’s home, it was likewise lawful (at least with respect
to him) in his girlfriend’s home.
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