Crime & Federalism

Travel Schmavel

U.S. v. Bredimus (here) is a two-year-old decision I noticed cited in this Mann Act case.  Because this opinion is so embarassingly reasoned, and because it was cited authoritatively, it deserves newfound attention.

At issue in Bredimus was this: Can Congress make it a federal crime, as it did with 18 U.S.C. 2423, to travel overseas to have sex? Section 2423 prevents not just dirty old men from taking sex trips, but also punishes college fornicators: it's an international version of the Mann Act.  In Bredimus, a dirty old man was convicted after taking a Thai sex trip.  He challenged his conviction, arguing that Section 2423 unconstitutionally restricted his ability to travel to other countries.

This was a strong argument.  The right to travel, in con-law lingo, is a fundamental right.  Because the right to travel is a fundamental right, the government can restrict it only if it has a compelling government interest, and only if the law is the least restrictive way for the government to achieve this interest.  If other countries have a lower age-of-consent than American, what compelling government interest does the United States have in punishing international sex?  That is, if it's legal over there, what business do we have criminalizing it here?  That's a tough argument.  How did the Fifth Circuit address it?

They didn't!  Instead, here is the panel's entire analysis:

Because this statute, as relevant here, only criminalizes foreign travel when the travel is done with an illicit intent, we find that Section 2423(b) does not impermissibly burden the fundamental right to travel.

You don't need a law degree to recognize the problem with this argument: it's circular.  The law does not burden to the right to travel because it only burdens the right to travel for illicit purposes.  What's that?  You mean that defining what is illicit itself imposes a burden on travel?  That is, by defining all travel with the intent to have sex with someone under 18-years-old, Congress has imposed a burden on the right to travel.

Let's apply the Fifth Circuit's reasoning to other contexts to see how wrong it is:

• Congress enacts a law making it illegal to travel across state lines for an abortion. 
• Congress enacts law making it illegal to move to another state in order to obtain better welfare benefits.
• Congress enacts a law making it illegal to travel across state lines to buy magazines and newspapers.
  

Under the Fifth Circuit's reasoning, all of these laws would be constitutional because they "only criminalizes foreign travel when the travel is done with an illicit intent," where Congress defines illicit in any way it sees fit. 

In the Fifth Circuit's defense, the Supreme Court used a similar "analysis" in Regan v. Wald, a poorly-reasoning opinion that upheld travel restrictions to Cuba.  There is, of course, a major difference between upholding a travel restriction to one of the United States' enemies and upholding a restriction that prevents a college student from "visiting" his 17-year-old German girlfriend.

Post-Lawrence Challenge to Incest Laws

Are incest laws constitutional?  A unanimous three-judge panel of the Seventh Circuit said, Yes.  Muth v. Frank, No. 03-3984, Slip op. at 13-17 (7th Cir. June 22, 2005).  Or maybe.   Id. at 17 ("[B]ecause this case is here on habeas review, the only question before this court is whether Lawrence announced a new rule proscribing laws prohibiting the conduct for which Muth was convicted.")  Of course, if the "only question before this court" was the habeas issue, then why did the panel used 4.5 pages to wax on about the non-Teague aspects of Lawrence?

UPDATE: Via How Appealing is this functioning link.

Double Jeopardy When the Feds and States Act-in-Concert

I've always thought that the dual sovereignty exception to the double jeopardy rule should not apply when federal and state prosecutors cherry pick the most pro-prosecution friendly jurisdiction.  Because, in acting-in-concert, they show that the "separate" governments are not trying to vindicate separate interests, but instead, have the singular interest of obtaining a conviction qua a conviction against a particular defendant. Just like a co-conspirator's acts apply to all other conspirators, so too should one prosecutor's loss be imputer to the other "sovereign's" prosecutors.

Thus, this opinion (United States v. Zone) was of immediate interest. Here is its lede:

Cortrayer Zone appeals from the district court’s order denying his motion to dismiss his federal criminal indictment. He argues that the instant federal prosecution violates his rights under the Double Jeopardy Clause because federal prosecutors orchestrated a previous state plea agreement in order to obtain a sworn admission for use in the federal proceedings. Because Zone has produced no evidence that “the state in bringing its prosecution was merely a tool of the federal authorities,” United States v. Figueroa-Soto, 938 F.2d 1015, 1019 (9th Cir. 1991) (quoting Bartkus v. Illinois, 359 U.S. 121, 123 (1959)) (internal quotation marks omitted), we affirm the district court’s denial of his motion to dismiss and deny his request to remand for an evidentiary hearing and further discovery.

Even if federal and state prosecutors act-in-concert when filing and prosecuting criminal charges, there is no double jeopardy violation.

Zone speculates that federal officials might have cajoled or prodded state prosecutors into concluding a plea bargain with Zone in order to facilitate a conviction in his subsequent federal trial. Even if Zone could prove this hypothesis true through testimonial or documentary evidence [there wouldn't be a double jeopardy violation]. The Double Jeopardy Clause does not prevent federal prosecutors from encouraging their state counterparts to pursue plea bargains, nor does it prevent them from taking advantage of the evidentiary record developed in connection with a defendant’s previous state conviction....Instead, the Double Jeopardy Clause limits consecutive state and federal criminal proceedings only when federal prosecutors “so throughly dominate[ ] or manipulate[ ] the [state’s] prosecutorial machinery . . . that the latter retains little or no volition in its own proceedings.” United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996);

Slip op. at *6.

Second Amendment Blog

Check out "Of Arms and the Law."

Federalism is an Individual Right

Most people say that because I am a federalist, I must support states' rights.  They say I should keep company with the likes of a Jesse Helms, Trent Lott, or John C. Calhoun.  My employers and friends would find tha ironic, since the past 2 years I have worked soley on plaintiffs' Section 1983 and criminal cases for the defense.  Is a civil libertarian like me confused?

No.  Federalism is an individual right that should be as jealously guarded as the rest of the Bill of Rights.  In the criminal context, it becomes manifestly clear why. 

Each time Congress exercises power over offense conduct that is also a state crime, the following injustices occur:

• 1. A citizen may suffer successive prosecutions because the Supreme Court held that it does not violate the Double Jeopardy Clause to allow the state and federal governments to prosecute the same individual for the same offense conduct if that conduct violates both state and federal law.  The pit bull gets two bites at a defendant'’s jugular.
• 2. A citizen is subject to harsher penalties under federal law because most states confer upon their judges extensive discretion: the Guidelines provide almost none.  State prosecutors know this and often threaten to dismiss state charges to allow their friends at the US Attorneys office to file in federal court.
• 3. A citizen is not afforded his full constitutional rights.  This is because the federal Bill of Rights provides a floor on individual rights.  States may not offer less protection in their state constitutions than are provided in the Constitution, but states may offer more.  When a citizen is prosecuted in federal court for acts that also violate state law, the individual is not receiving his full potential protection under the law.
• 4. Acts that do not violate state law may violate federal laws.  The best example of this the federal crime of statutory rape, one of many Mann Acts.  It makes it a crime to move interstate to have sex with someone under 18 years old.  And although the age of consent varies from state to state, it is not a defense that the states from which (and to which) one moved has a lower age of consent than under federal law.  Thus, a person who travels from State A, where the age of consent is 16 years old to State B, where the age of consent is also 16 years old has committed statutory rape.

It is thus obvious that federalism has implications on individual rights.  But is it a right in itself?

The capital-f Federalists - most notably, Alexander Hamilton and James Madison - argued against a Bill of Rights.  They argued that listing individual rights was unnecessary because Congress' power was curtailed.  Congress could not reach you because its power is too narrow.  In my favorite of the Federalist Papers (No. 84), Hamilton wrote:

Here [in our original Constitution], in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.  "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
***
For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

The structure of the Constitution limits federal power and thus leaves the people more free.

The structure of the Constitution was not enough for many states -- They conditioned their consent to the Constitution on the immediate amendment of the Constitution by adding a Bill of Rights. Madison and Hamilton lost that debate.

Indeed, included in the Bill of Rights is the Tenth Amendment, which provides that "The powers not delegated to the United States by the Constitution [ ] are reserved to the States respectively, or to the people."  Since the Tenth Amendment is included in the Bill of Rights, it is tautological to say that we have an individual right to be free from excessive Congressional power.

Virtual Porn, Morphed Porn, Free Speech Coaltion, and U.S. v. Bach

In United States v. Bach, No. 04-1211 (8th Cir. Mar. 14, 2005) a unanimous three-judge panel rejected Bach's First Amendment challenge to his conviction for possessing morphed child p*rnography.  Id. at *11-16. [Ed's note: I use * in place of some letters to keep creepos from finding my blog while looking for pictures of kids.]  Bach was convicted under 18 U.S.C. §2252A(a)(2), which makes it illegal to "knowingly receive[] ... any child p*rnography [in interstate commerce]."

In Bach the received a p*rnographic image (that was never proven to be of a minor) that had the head of a minor - identified as "AC" in the opinion - superimposed on the image "so that the resulting image appeared to be a nude picture of AC posing in the tree."  Id. at *3.  Bach challenged the conviction arguing that Ashcroft v. Free Speech Coalition required the government to prove that the pornographic image sans the superimposed head, was of a minor.  Otherwise, it was morphed child p*rnography and thus could not be criminalized unless first found to be obscene.

The panel, relying on Ferber's rather than Free Speech Coalition's reasoning, wrote that "[a]lthough there is no contention that the nude b*dy actually is that of AC or that he was involved in the production of the image, a lasting record has been created of AC, an identifiable min*r child, seemingly engaged in sexually explicit activity. He is thus victimized every time the picture is displayed."  Id. at *15-16.

Did the Eighth Circuit get this one right?  Let's begin.

Nuance to Free Speech Coalition

In United States v. Bach, No. 04-1211 (8th Cir. Mar. 14, 2005) a unanimous three-judge panel rejected Bach's First Amendment challenge to his conviction for possessing morphed child pornography.  Id. at *11-16.  In Free Speech Coalition, the Supreme Court held that the First Amendment prohibited prohibitions against virtual child pornography and "morphed" child pornography.  Morphed child pornography is created by taking innocent-looking pictures of children and making them appear pornographic.

In Bach, the Eighth Circuit held that, as in New York v. Ferber, and "[u]nlike the virtual pornography protected by the Supreme Court in Free Speech Coalition, the picture with AC's face implicates the interests of a real child and does record a crime." Bach at *15.  Further:

The picture depicts a young nude boy who is grinning and sitting in a tree in a lascivious pose with a full erection, his legs spread, and his pelvis tilted upward. The jury could find from looking at the picture that it is an image of an identifiable minor, and that the interests of a real child were implicated by being posed in such a way. This is not the typical morphing case in which an innocent picture of a child has been altered to appear that the child is engaging in sexually explicit conduct, for the lasciviously posed body is that of a child. See S. Rep. No. 108-002, at n.2 (2003) ("[T]he morphing provision is explicitly aimed at the creation of a sexually explicit image using an innocent image of a child.").

Bach at *16.  The court treated Bach's challenge as an as-applied one:

Although there may well be instances in which the application of § 2256(8)(C) violates the First Amendment, this is not such a case. The interests of real children are implicated in the image received by Bach showing a boy with the identifiable face of AC in a lascivious pose. This image involves the type of harm which can constitutionally be prosecuted under Free Speech Coalition and Ferber.

Id.  I'm not sure that the panel was correct, but I won't have the time to address these issues until later.  In the meantime, please feel free to post a comment.

Stripper Statute Struck Down

The Las Vegas City Council wanted to draw a line between legitimate exotic dancing and borderline prostitution.  They wanted to prevent strippers from, frankly, dry-humping patrons.  Thus, they enacted this statute:

"No attendant or server shall fondle or caress any patron and no patron shall fondle or caress any attendant or server."

Yup -- that's it.  Accordingly:

The law that defines what strippers can and can't do during lap dances in Las Vegas is unconstitutional, a judge ruled Friday.

District Court Judge Sally Loehrer affirmed a lower court ruling that as many as five misdemeanor criminal cases filed against strippers in Las Vegas should be dismissed because city code is too vague and unenforceable.

Loehrer said she believes the strip club industry needs to be regulated, but the law as written is flawed.

"I don't think the law is clear enough," Loehrer said, adding, "I don't think it's possible for the law enforcement to know what is allowable and what is not."

The full story is available here.  In striking down the law, the judge relied on the void-for-vagueness doctrine, which I've summarized for you.

Over a century ago, the Court outlined the policy of what would become the void-for-vagueness doctrine: 

“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government.”

United States v. Reese, 92 U.S. 214, 221 (1875).

The void-for-vagueness doctrine has remained vibrant, and “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982).   The void-for-vagueness doctrine protects a citizen from “standardless sweep[s] [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Smith, supra, 415 U.S. at 574   The aim is also to avoid giving police, prosecutors, and juries undue discretion in defining what conduct is prohibited.

It is not enough for a criminal defendant to boldly assert that a statute is vague. See Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).   All language is, to some degree and to some people, vague.  See   Indeed, very respected and credible philosophers have theorized that the only language lacking vagueness is the language within each person’s own mind: Your own private language.   Instead of merely shouting that statutory language is vague, a criminal defendant must show that the statute so vague that a reasonable person would not know what conduct is prohibited. Kolender v. Lawson, 461 U.S. 352 (1983).

Here the judge noted that "fondle" and "caress" were indefinately certain.  What if the stripper and patron (maybe we should call them "johnnys") held hands, or brushed up to each other?  What if the johnny put $5 into the stripper's panties? 

Too many unanswered questions means that there would be discretionary arrests, prosecutions, and convictions.  As such, the law had to go.

Public Use

The Fifth Amendment prohibits the government from taking your property, unless it's doing so for a "public use."  Should the Courts defer to legislative judgments as to what constitutes a public use?  At least one blogger at Ex Post answers yes, in a post you can access here.

Timothy Sandefur argues otherwise in a column available here.

Abortion Protests

Stuart Buck of The Buck Stops Here, has file a cert. petition challenging a restriction on anti-abortion speech, which is available here.  The Question Presented is:

Whether a speech-restrictive no-approach “buffer zone” law violates the First Amendment where, unlike the statute sustained in Hill v. Colorado, 530 U.S. 703 (2000), it (i) bars speech-related “approaches” only outside free-standing abortion clinics, rather than outside all health-care facilities, and thus is not content-neutral; and (ii) expressly exempts unconsented, speech-related “approaches” by clinic employees or agents, and thus is not viewpoint-neutral.

In Hill v. Colorado, the Court upheld a Colorado law that prohibited leafletters from coming closer than 8-feet to any person approaching any health-care facility.  Although everyone knew that the law was enacted to prevent abortion protesters from showing would-be abortion patients pictures of aborted fetuses, the Court closed its eyes and pretented it was a merely a content-neutral time, place, and matter restriction. 

Just as the state can require you to keep the volume down while performing a concert in a public forum, Ward v. Rock Against Racism, 491 U.S. 781 (1989), so too can it require you to maintain a reasonable distance from someone seeking medical treatment.  In Hill, the Court was able to analogize Colorado's restrictions to those in Ward because everyone was presented from coming within 8-feet of all health care facilities.  Had New York, in Ward, allowed political groups to turn the volume up while requiring other groups to turn the volume down, the law would have been invalid, since it singled out one type of speech for favored treatment.  (Re: You can hold loud political rallies, but not loud book fairs).

Here is appears that only anti-abortion speech receives disfavored treatment.  The challenged law reads:

No person shall knowingly approach another person or occupied motor vehicle *** for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person in the public way or sidewalk area within a radius of 18 feet from any entrance door or driveway to a reproductive health care facility...

This law only targets speech directed at persons entering a "reproductive health care facility."  More so than in Hill, the law's purpose of restricting anti-abortion speech is clear.

(Hat tip: SCOTUSBlog)

Know Your Rights

What do you do if the police want to question you?  You call a criminal defense attorney, of course.  Or, at least, get your "Bust Card" today.

Less Freedom = More Safety?

Judge Posner's latest post at Prof. Leit'ers blog reminded me of an old post:

      The Fallacy of Freedom vs. Safety

Whenever I discuss civil liberties with almost anyone, the following exchange is bound to occur:
Me:  I dislike X-law because it takes away my right to-Y.
Them:  Well, you have to balance freedom and safety. 
I have always been bothered by the freedom-safety dichotomy. Benjamin Franklin's retort that the person who would surrender freedom for perceived safety deserves neither did not lessen my anguish. My mind rebelled against the dichotomy, though I could not explain why - until now.

When we say that one must balance freedom and safety, we presuppose that surrendering civil rights makes us safer. In other words, giving more power - power in the form of not having rights restrain governmental action - to the government will lead to safety. Now, I have seen state action that turned my stomach. I have worked on cases where mentally ill people were entrapped into taking actions the criminality of which they did not appreciate. I worked on a Section 1983 action where a social worker threatened to take custody away from a mother if she refused to cooperate with an unjust prosecution against her husband. But no matter how many examples of government misconduct I cite, people continually rely on the freedom-safety dichotomy.

Ultimately, though, the freedom vs. safety debate arises only in the criminal context. We all believe that when persons suspected of crimes have less rights, we are safer. But almost all of us are enraged when Congress or the states regulate speech or deny us the right to vote. Almost none would argue that you have to balance the freedom of speech or right to vote with safety, even though bad ideas can corrupt a nation. Bad political leaders can ruin our economy and start wars. We will stack more dead bodies under a wicked President than we would by putting a gun in the hand of any mugger. But no one argues that we need to restrain freedom of speech or the right to vote in the name of safety.

Indeed, about half of us would balk at a Congress seeking to take away gun rights or deny a woman access to abortion clinics. To an opponent of gun control (which includes many people antagonistic to basic criminal rights), it is an unsatisfactory answer to tell them we must balance the freedom to own guns with the need to remain safe from unlawful uses of guns. Gun owners say, "But the Constitution protects our right to keep and bear arms!"

If I told a woman we must balance her freedom to have an abortion with the need for safety - since abortion teaches us to devalue personal responsibility - she would say, "I have the right to control my body!" And so, people who support gun control or oppose abortion do not use the freedom-safety dichotomy. Why is that?

I believe that underlying this bias against the Fourth, Fifth, and Sixth Amendments (Criminal Defense Clauses) is the belief that none of us will ever be charged with a crime. That is why most of us do not care about the rights of persons charged with crimes. Because, frankly, it will never happen to me. But when a criminal prosecution happens, the defendant changes his tune.

I have worked on many criminal cases for the defense. No one - not even the staunchest law and order person - was willing to give up her rights. Indeed, I would blissfully listen while these people - who never in their lives cared about the rights of our other clients - lectured me on the Constitution. [My boss would with joy collect the large fees paid for the protection and vindication of these rights.] Suddenly, they cared. Even George W. Bush, whose would so willingly deny the right to counsel to others, retained a first-class lawyer when his toes were in warm water.

I conclude that the freedom vs. safety dichotomy is fallacious since it presupposes the premise that more power in the hands of government leads to more safety. However, even if we falsify this smuggled premise, the balancing test applied is still accpetable for most people since even a complete repealing of the Criminal Defense Clauses would not harm them. Unjust prosecutions happen, but most people will never be mugged by the state.

Disavowing the rights of criminal defendants on the ground that these rights so important to them will never be relevant to you, is immoral. Those who would allow the government to unconstitutionally abrogate the rights the rights of others but jealously guard their own deserve neither freedom nor safety.

Material Support to Terrorists

United States v. Afshari, No. 02-50355 (9th Cir., Nov. 20, 2004)

    The Mujahedin-e Khalq (“MEK") has participated or incited terrorism against the United States.  MEK was responsible for the American embassy hostage crisis of 1979.  MEK members have also engaged in joint terrorist actions with Saddam Hussein. 
    Yet the defendants here gave the MEK money.  Because money flowing to MEK might be used to kill Americans (and, indeed, money given to MEK was used to support Saddam Hussein), giving money to MEK is a felony. 
    However, before MEK was designed a "foreign terrorist organization," it received several lawyers of due process.  As the panel noted: 
8 U.S.C. § 1189(a)(1) sets out a carefully articulated scheme for designating foreign terrorist organizations. To make the designation, the Secretary has to make specific findings that 'the organization is a foreign organization'; that 'the organization engages in terrorist activity (as defined in section 1182(a)(3)(B) of this title)'; and that 'the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States.' 
    Moreover, "[t]he Secretary also must furnish the congressional leadership advance notification of the designation and the factual basis for it, which Congress can reject,"  id at  § 1189(a)(2)(A)(i), and which is then “published in the Federal Register.”  § 1189(a)(2)(A)(ii).  Then the allegedly foreign terrorist organization gets judicial review.
    The D.C. Circuit has jurisdiction to overturn the Secretary's finding on many grounds, id. at § 1189(b)(3)(A), including that the designation is  “contrary to constitutional right, power, privilege, or immunity.”  Id. at § 1189(b)(3)(B).
    The designation expires in two years (unless Congress overrides it sooner, § 1189(a)(5), (6)), after which the process begins anew.  Id. at § 1189(a)(4)(B).
    Even though the defendants learned “after participating in a conference call with an MEK leader … that the State Department had designated the MEK as a foreign terrorist organization,” they gave MEK hundreds of thousands of dollars.  Accordingly, there were charged under 18 U.S.C. § 2339B(a)(1), which makes it illegal to provide “material support to designated foreign terrorist organizations.”
    The defendants (and the ACLU) were upset because they could not give money to an organization that wanted to kill Americans and thus they brought two challenges against the law.      First, "[t]he defendants’ central argument is that § 2339B denies them their constitutional rights because it prohibits them from collaterally attacking the designation of a foreign terrorist organization."  Id. at *17103-04.  In other words, they want to relitigate each designation in every federal circuit. 
    Like a person who fails to appear in court for trumped-up charges, a person who disobeys a court order, and a felon who uses a firearm before his predicate conviction is expunged, these supporters of terrorist argue that “due process prohibits a prosecution under § 2339B when the predicate designation was obtained in an unconstitutional manner or is otherwise erroneous.”  Id.
    The panel quickly disposed of this argument.  Supreme Court precedent is clear: If you disagree with a judicial or legislative finding, clear it up before you do something that, but for the predicate finding, would be legal.  That is, if you have a felony, don't purchase a firearm until you successfully strike the felony from your record.  If you disagree with an injunction, don't violate the order: Have a higher court dissolve it.  You can't later say, “Well, the conviction was invalid, or the judge should not have granted the injunction.”  Just as the government followed procedures before designating the MEK a foreign terrorist organization, so too should the defendants have followed procedures before giving MEK money.
    Their second argument was “(1) they have a First Amendment right to contribute to organizations that are not terrorist; (2) the statutory scheme denies them the opportunity to challenge the ‘foreign terrorist organization’ designation; therefore (3) it deprives them of their First Amendment right to make such contributions."  Id. at *17107.
    The panel reached the right result, stating that since Congress can regulate contributions to legitimate candidates for office, so too can it regulate expenditures to agencies designed as terrorist.  Id. at *17108 (“[Since contribution limits are constitutional] [a] fortiori, contribution of money to organizations that engage in terrorism, as well as expressing a political agenda with speech, can be restricted by Congress.”).  See also id. (“It would be anomalous indeed if Congress could prohibit the contribution of money for television commercials saying why a candidate would be a good or bad choice for political office, yet could not prohibit contribution of money to a group designated as a terrorist organization.”)
    Here's the guts of the defendant's theory.  If someone is charged under one of BCRA's provisions preventing certain corporate contributions or expenditures, the company can argue that since its a media organization, its exempt.  Thus, the company can litigate it as part of its defense that BCRA doesn't cover it.  Here, the defendant's want to litigate that MTK is not a terrorist organization as part of its defense strategy.
    The Ninth Circuit denied the defendants that opportunity since MTK challenged its being designated as a terrorist organization thrice.  Since "the MEK protected its interests vigorously," the defendant's could not re-open its being designated a terrorist organization.  Id. at *17112.
    Although this decision has received a lot of negative press, it's yet another good one fom the Ninth Circuit.

Probability and the Sell Test

Today a unanimous three-judge panel of the Eight Circuit handed down an interesting (though short) opinion in United States v. Ghane, No. 04-1769 (8th Cir., Dec. 20, 2004).  Applying the Sell test, the panel held that the state may not involuntarily medicate a defendant where there is only a 10% chance that medicating him will render him competent to stand trial.  That is, a 10% chance of success is not "substantially likely to render the defendant competent to stand trial."

In Sell v. United States, 539 U.S. 166 (2003), the Court held that a defendant who is not compentent to stand trial can be involuntarily medicated if four factors are met.

First, a court must find that important governmental interests are at stake. *** Second, the court must conclude that involuntary medication will significantly further those concomitant state interests.  It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial.  ***  Third, the court must conclude that involuntary medication is necessary to further those interests.  ***  Fourth, the court must conclude that administration of the drugs is medically appropriate, i.e.,  in the patient’s best medical interest in light of his medical condition.

Id. at 180-182.  Here, the court said that involuntarily medicating Ghane failed the second ("substantially likely") prong of the Sell test.  Ghane, at *4 ("A five to ten percent chance of restored competence cannot be considered substantially likely under any circumstances.")

Consent search

The defendant lives at home with his mother, but he has his own room.  Police go to the defendant's home, place him in handcuffs, and put him in the back seat of a police car.  The police then ask the defendant's mother for permission to search his room.  The mother consents and police find inculpatory evidence.  Is the search constitutional?

A unanimous three-judge panel said, "Yes."  In United States v. Jones, No. 01-1215 (2d Cir., Oct. 5, 2004), Judge Cardamone, joined by Judges Newman and Katzmann, wrote:

The defendant concedes that his mother had permission to access his room, and had actually entered it a number of times to clean it. Further, it is uncontested that there was no lock on his bedroom door, which was a room located within his mother's bedroom. That proof demonstrates that she had access and permission to enter, and could indeed enter at any time. Under the law of this Circuit, this evidence is sufficient to show that the mother had actual authority to consent to the search of her son's bedroom. See Koch v. Town of Brattleboro, 287 F.3d 162, 167 (2d Cir. 2002).

Once a person gives authority, to be shared in common, with another over certain premises, any hope that a search of those premises based on that other person's consent will be found a Fourth Amendment violation is slim at best. The reason for this conclusion is because the Supreme Court made clear that common authority rests on the notion that any co-inhabitant can permit inspection in his/her own right and others, including defendant, have assumed the risk that such permission to search might occur. Matlock, 415 U.S. at 171 n.7. Accordingly, the defendant's decision to permit his mother joint access to his bedroom limits his reasonable expectation of privacy in that room, and to that extent also limits his Fourth Amendment protection in the effects seized there. See id.

Moreover, the case law does not support Lewis' claim that the officers should have asked his permission to search since he was outside of the apartment in handcuffs in a police car at the time of the search. Supreme Court and Second Circuit law establishes that in situations where the defendant is present -- and even in situations where the defendant has already refused consent -- the officers may nevertheless rely on consent from a third party who has the requisite authority to give it. See, e.g., Matlock, 415 U.S. at 166, 171 (warrantless search may be justified based on the consent of a third party with proper authority even when the arrested defendant was on the scene and available to give consent); United States v. Davis, 967 F.2d 84, 86-88 (2d Cir. 1992) (third-party consent justified a search and seizure despite fact that defendant was in the custody of police in squad car outside and was never asked to consent); see also United States v. Sumlin, 567 F.2d 684, 687-88 (6th Cir. 1977) (holding that since Matlock did not rely on the defendant's absence in order to justify third-party consent, but instead relied on an assumption of risk analysis, it was not constitutionally significant that defendant refused to consent to the search before the officers requested and were given third-party consent). In consequence, the search of Lewis' bedroom while he was present outside does not violate his Fourth Amendment rights.

Slip opinion at 11-13 (emphasis added).