2012 & 2012 Cases Flashcards
1
Q
Does “natural dissipation” of alcohol in blood constitute a per se exigent circumstance?
A
No. McNeely S.Ct.
2
Q
Four Prongs of Plain Error Review:
A
1st Prong: An error occurred.
2d Prong: The error is plain.
3d Prong: The error affects substantial rights, which means D must show prejudice (a reasonable probability that D would have received a lower sentence had the error not occurred)
4th Prong: The error affects the fairness, integrity, or public reputation of judicial proceedings.
3
Q
Two Types of Sentencing Error
A
Constitutional Error: D’s sentence was increased based upon facts that were not found by the jury or admitted by D.
Statutory Error: The sentence was imposed under a mandatory guideline scheme.
4
Q
Does sharing marijuana for no remuneration constitute and aggravated felony under Immigration & Nationality Act?
A
No, Moncrieffe S.Ct.
Use “categorical approach” this is NOT everyday understanding of “trafficking” which usually means some kind of commercial dealing
5
Q
Is sexual assault of a child considered a “Crime of Violence”?
A
Yes, Cabeccera Rodriguez 5th Cirt
It’s statutory rape, so yes.
6
Q
Is D entitled to call fact witnesses in habeas proceeding for competency?
A
No, Green v. Thaler 5th Cir
D had expert witnesses and stipulated med. records
7
Q
Can a court strike a “waiver of appeal” in a plea agreement?
A
No, Serrano-Lara 5th Cir
Court can only accept or reject
8
Q
In child sex crimes does there have to be proximate cause for restitution?
A
No, Amy 5th Cir
Statute only requires “proximate result”
9
Q
Can court reopen restitution matter after concluding it is too complex or too many victims to calculate?
A
No Murray 5th Cir.
10
Q
If court later changes restitution amount, does waiver of appeal bar appealing that issue?
A
No, Murray 5th Cir.
“plain language of plea agreement must unambiguously apply to claim”
11
Q
Does D have to know that child porn was interstate in nature?
A
No, Terrell 5th Cir.
12
Q
If prisoner’s writ is dismissed for not exhausting appeals can he late file writ after exhausting appeals?
A
Yes, Strickland v. Thaler 5th Cir
13
Q
Can a court impose a federal sentence to run with a discharged state sentence?
A
No, Kirklin 5th Cir.
BUT even though judge intended it to work, no harm, because only a few days left on sentence
14
Q
Can a D be convicted of possession of a firearm and ammunition?
A
No, Meza 5th Cir.
It’s multiplicitous and violates Double Jeopardy Clause
15
Q
Can Gov’t appeal a court’s failure to assess restitution for a victim of child sex crime?
A
No, Amy 5th Cir.
Only relief for victim is mandamus
16
Q
Does there need to be evidence that driver passed “Left Lane for Passing Only” sign for traffic stop?
A
Yes, Abney TCA
17
Q
Is North Carolina “Taking Liberties with Children” substantially similar to Texas “Indecency with a Child”?
A
No, Anderson TCA
18
Q
Where must the “law of parties” be submitted in the jury charge to be considered to apply jury verdict?
A
It SHOULD be in the application paragraph, BUT being in the abstract portion of the charge is enough to trigger law of parties in hypothetically correct charge
SO, if D offers evidence of lesser included of robbery, BUT NOT lesser included of Agg. Robb. considering law of parties, he’s not entitled to lesser charge
Yzaguirre TCA
19
Q
Does a guest in hotel room have standing to challenge search?
A
Depends, NOT if not registered, no possessions there, and not evidence of intent to stay overnight
Consider TOTALITY of CIRCUMSTANCES
Moore TCA
20
Q
May law enforcement be present when Magistrate reads statutory warning to juvenile?
A
Yes, Herring TCA
Law enforcement may be present for reading of warnings BUT NOT present when JUV signs confession
21
Q
Can a once found indigent defendant be ordered to later pay court appointed attorney fees?
A
No, Daniel TCA
Unless there is a new finding that he is not indigent.
22
Q
Is “Possession of ID Info” and “Fail to ID” meant to be read in pari materia?
A
No, Jones TCA
23
Q
Does “Outcry Statute” allow admission of child’s statements on video tape?
A
No, Bays TCA
- 072 Applies to statements admitted through OUTCRY witness
- 071 Applies to video of unavailable child
24
Q
Does D have standing to challenge search of aunt’s backyard where he keeps and takes care of his dogs?
A
Yes, Betts TCA
D had expectation of privacy, he had permission to keep his dogs there, and he attended them daily.
Yard was fenced and 70 yards from the road
25
For determining "reasonable suspicions" can State rely on what is depicted in video tape if officer didn't see it?
No, Duran TCA
Officer stopped for impermissible reason (fail to yield right of way while officer was speeding), but didn't see D cross line and court found officer didn't see line crossing.
26
Is Padilla retroactive for final convictions before the Padilla ruling?
No, De Los Reyes TCA
| Also see, Chaidez S. Ct.
27
Can police keep searching vehicle once person shows up to scene to take vehicle after D's arrest?
No, Cashion Tex. App.-Dallas
BUT SEE McKinnon 5th Cir.
Police policy said nothing about having valid insurance when picking up vehicle, and police said that's why they continued to search...
STANDING may be an issue... These inventories must be conducted in good faith pursuant to reasonable standardized police procedures. See Garza. However, the Fourth Amendment protection against seizures cannot be whittled away by standard police procedures. See Benavides .
28
What is the purpose of an inventory search?
standardized regulations and procedures
(1) protecting the property of the vehicle's owner,
(2) protecting the police against claims or disputes over lost or stolen property, and
(3) protecting the police from danger.
29
Is an officer's subjective intend behind conducting an inventory search a reason for suppression?
No. U.S. v. McKinnon 5th Cir. 2012
No suggestion that officer did not follow police policy for inventory search;
Officer admitted he wanted to search the vehicle for evidence of a crime.
Subjective motivations are irrelevant, so long as there is an objective justification for the search
30
Is a search warrant authorizing search of all "electronic devices" and "electronic memory devices" sufficiently particular?
Yes. U.S. v. Triplett 5th Cir.
1. Law allows Warrant to be viewed alongside the Affidavit if incorporated by reference - which "amplified" particularity by stating goal;
2. Further, Warrant was not SO lacking in indicia of probable cause to render belief in it unreasonable, thus officers protected by "good faith" doctrine
31
.Stop by officer 50 miles from border, what will be sufficient for reasonable suspicion of alien smuggling?
1. Reputation of I-10;
2. Direction and time vehicle traveling;
3. Agents experience;
4. "Paisanos" van
5. Van registered to a woman rather than company (had company logo)
6. Passengers fit profile
U.S. v. Rico-Soto 5th 2012
32
5th Cir: Is a persons presence in a vehicle (with another person) that contains drugs enough to provide probable cause to arrest that person?
Yes. Rodriguez v. U.S. 5th Cir.
33
5th Cir: Can an officer search a cell phone incident to arrest?
Yes. U.S. v. Finley 5th Cir. 2007
It amounts to a "Container" that would be searchable. Relies on "pager" cases that allowed searching because of pushing out numbers.
Split of circuits: some say no, it's like a "sealed letter" thus not searchable
34
Where is the "trap" for reviewing for "plain error" while case is on appeal?
Davis S.Ct. 2011
Allows OFFICERS to rely on precedent at time of their actions, so even if 4th Amendment error becomes plain on appeal, officers "good faith" reliance probably fixes it
35
When did GPS tracking become a "search" in the 5th Cir.?
Jan. 23, 2012 - because United States v. Jones, 132 S. Ct. 945 (2012) decided it was a search, but before that Officers could reasonably rely on binding president, so their tracking would be excused under Jones - Under Davis S. Ct. 2011
36
Where is the "trap" for reviewing for "plain error" while case is on appeal?
Davis S.Ct. 2011
Allows OFFICERS to rely on precedent at time of their actions, so even if 4th Amendment error becomes plain on appeal, officers "good faith" reliance probably fixes it
37
5th Cir: Does consent in response to questions asked in violation of Miranda require suppression of the search consented to?
NO. Gonzalez-Garcia 5th Cir. 2013
Violation of prophylactic Miranda rule does not require suppression of non-testimonial evidence, in this case the marijuana found after consent was given.
38
Under Federal law, when does a mistrial based on Gov't's misconduct require a Double Jeopardy bar?
Oregon v. Kennedy S.Ct. 1986
Dugue 5th Cir. 2012
When the prosecutor INTENDED to goad D into moving for a mistrial.
Even when Gov't conduct is "overreaching and unprofessional" the Dist. Crt. found Gov't's conduct not intended to create mistrial
39
Can D be convicted of possession of firearm and ammunition on the same occasion?
NO. Meza 5th Cir. 2012
| Sua Sponte - plain error
40
Fed: Can you be convicted of "possession" and "distribution" of child pornography?
Woerner 5th Cir.
| YES
41
Where D was charged with 6 counts of alien harboring: 2 for each sister (1 for harboring in house, 1 for harboring in bar) - was it plain error for multiplicity?
Garcia-Gonzalez 5th 2013
NO. 1. Not plain because no precedent interpreting statute;
NO. 2. Did not show "seriously affects the fairness, integrity, or public reputation"
42
What must the Gov't prove for multiple counts of possession of child pornography?
Multiple possession counts:
Unit of prosecution is "material" defined as "medium"
(1) “has images stored in separate materials,” and (2) “the prohibited images were obtained through the result of different transactions.”
>NOT DAYS
43
5th Cir: What are the units of prosecution for child porn?
Materials (medium i.e. pictures, video, paper, electronic)
| 5th Cir
44
5th Cir: What can jurors use to "infer" multiple transactions?
Large number of images
| Woerner 5th Cir.
45
5th Cir: Is possession of child porn a lesser of distribution of child porn?
No, 18 U.S.C.A. § 2252A
You can distribute without possessing: i.e. brokers
Distinguishes from possession of controlled substance
46
What are the two types of "multiplicity"?
1. Charging for greater and lesser offense - Blockburger Double Jeopardy - does one require proof of element that other doesn't
2. Charing multiple times for same conduct
Planck Test - 1. unit of prosecution; 2. number of criminal acts
47
5th CIr: What must happen to terminate "War Time Suspension" of statute of limitation?
Pfluger 5th Cir. 2012
Congress or President must make "official declaration"
NOT "Functional Approach" meaning use of force ceases
48
5th Cir: What triggers "Wartime Suspension" of statute of limitations?
18 USC 3287 "Wartime Suspension of Limitations Act"
| Trigger is "Authorization for Use of Military Force"
49
What is the 4th prong of "plain error" review?
How does 5th Cir. determine this?
Does error "seriously affect the fairness, integrity, or public reputation of justice system"
5th Cir: This dependent upon the degree of the error and the particular facts of the case
50
Does D's failure to file Motion to Dismiss for Speedy Trial Deadline before "scheduling order deadline" waive claim?
Hale 5th Cir.
NO.
But, in this case, delay excusable for Gov't continuance of 30 days
AND D brought to trial within the statutory 70-day period
51
5th CIr: What should you argue if delay in indictment beyond the Speedy Trial Act 30-day period permitted is based on Gov't's excuse is absense of essential witness?
Ortiz 5th Cir. 2012
| "testimony would be cumulative for the purpose of obtaining a grand jury indictment"
52
5th Cir: What determines whether a Speedy Trial Act violation should require a dismissal with PREJUDICE?
1. Seriousness of offense;
2. Absence of prosecutor gamesmenship
3. Any material prejudice against D
53
How does court determine whether a dismissal should be with prejudice under Speedy Trial Act?
Unde the Act -
Trial Court Looks at:
among other things...
(1) the seriousness of the offense;
(2) the facts and circumstances which led to the dismissal; and
(3) the impact of a reprosecution on the administration of the Speedy Trial Act and on the administration of justice.
Appellate court reviews de novo.
54
What are the sanctions for counsel in the Speedy Trial Act?
(A) appointed defense counsel - reducing amount of compensation - not to exceed 25 per centum;
(B) counsel retained - a fine of not to exceed 25 per centum of the compensation to which he is entitled;(C) Attorney for the Government a fine of not to exceed $250;
(D) Denying counsel or attorney for the Government the right to practice before the court considering such case for a period of not to exceed ninety days; or
(E) by filing a report with an appropriate disciplinary committee.
18 U.S.C.A. § 3162 (West)
55
What is Fed. Rule and Fed. Code provision for speedy trial?
| Which is broader?
FRCP 48
18 U.S.C. §§3161
Rule 48 is broader - CRT can dismiss on Rule 48 without reference to Speedy Trial Act
56
5th Cir: When does the SOL begin to run for tax evasion?
Irby 5th Cir. 2012
| The 6 year SOL begins to run at last "evasive act" not deadline for filing
57
In 5th Cir. what is the hearing called to determine conflict of interest between counsel and D?
Garcia Hearing
58
For severance what must a D produce for the claim that a Co-D will testify on her behalf?
Owens 5th Cir. 2012
An affidavit or similar proof from CODEFENDANT
NOT an affidavit from D's own lawyer
59
Cop 1 walks up on Cops 2&3 beating guy, while Cop 1 is there they shoot him, then Cops 2&3 burn body and car, properly joined?
McRae 5th Cir. 2012
Under Rule 8 - properly joined by indictment
Under Rule 14 - court should've granted severance at trial
Object before, during, after evidence
60
What happens if the Gov't is putting pressure on organization that then stops paying employees legal fees?
Brooks 5th Cir. 2012
No problem, distinguishes 2nd Cir. Stein -
In Stein: 1. Gov't helped KPMG craft memo urging employees not to obtain counsel; 2. KPMG had policy of paying fees and reasonably would have paid fees "but for" Gov't "forcing" them not to
61
Does the 5th Amendment apply to D records of foreign bank account? (compelled by grand jury subpoena)
5th Cir. 2012
No, under the "Required Records Doctrine"
1. records keeping is required by law;
2. records kind customarily kept;
3. records assume a public aspect - making them analogous to public documents
62
Is an indictment stating that a D possessed a firearm "in relation to" drug trafficking sufficient for a conviction when offense requires possession "in furtherance of" drug trafficking?
No, an indictment must allege each element
BUT WAIT if the CAPTION says "in furtherance" it's ok, and it's ok for judge to charge jury on "in furtherance" even when body says "in relation to"
Cooper 5th Cir. 2013
63
Do "Captions" in indictments impact the substane of the charge?
Yes. Under Cooper 5th Cir. 2013 - it cured mistatement in body
64
Is it a Brady violation for State to fail to include jail-house-informants exculpatory/impeaching letter in the "open file" of D?
Cobb 5th Cir. 2013
Reviewing Texas state court:
NO, not when it was in co-D's file, and D's lawyer had access to that file; and letter not material considering impeachment evidence already available to D counsel
65
Does Dist. Crt. allowing expert to inspect child porn at his facility rise to the level of mandamus?
Jarman 5th Cir. 2013
NO, for mandamus must "clear and indiputable error"
BUT Gov't was right, allowing inspection at Gov't facility IS reasonable under Fed law
66
What is required to show a judge is bias?
Due Process Requires "fair and impartial tribunal"
"a deep-seated favoritism or antagonism that would make fair judgment impossible"
67
What is to be considered for right to open and public trial?
Waller Factors
1) a party seeking to close a court proceeding must advance an overriding interest that is likely to be prejudiced;
2) the closure must be no broader than necessary to protect that interest;
3) the trial court must consider reasonable alternatives to closing the proceeding; and
4) it must make findings adequate to support the closure.
68
5th Cir: When co-actor made statement to another prisoner against penal interest is it admissible against hearsay and Confrontation objection?
Ebron 5th Cir. 2012
Yes. 804(b)(3)
and not in response to custodital interrogation - so not testimonial
69
What is the "plain error" analysis?
Pucket
(1) error;
(2) that is clear or obvious;
(3) that affects substantial rights; and
(4) if those elements are satisfied, the court of appeals may exercise its discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings
70
Does a witness statement to 911 dispatch describing crime, which witness knew would institute machinery of prosecution, violate 6th Amendment?
Polidore 5th Cir. 2012
No.
Also, with regard to hearsay, it's present sense impression
71
Was admitting co-D's "written factual resume" including factual basis for his plea a violation of hearsay rules?
Demmitt 5th Cir. 2013
| Yes, but harmless
72
5th Cir: Are lay witnesses allowed to give opinion of D's mental state?
Heard 5th Cir. 2013
| Yes, if rationally based on the witness' perception, as informed by his experience and interaction
73
5th Cir: Are recorded statements of gov't informant arranging a crack sale with D testimonial?
Brown v. Epps 5th Cir. 2012
| No. Purpose not to create a record for trial, but to set up drug buy
74
5th Cir: Did anonymous calls to 911 describing drug sale occuring violate Confrontation Clause?
Polidore 5th Cir. 2012
| No. Even though not for purpose of addressing ongoing emergency, not for purposes of substituting trial record
75
What is a comment on D's failure to testify called?
a Griffin Error
| Griffin S.Ct. 1965
76
5th Cir: Is it permissible for Gov't to comment on D's invocation of his 4th Amendment rights to refuse a search?
5th Circuit has not directly addressed this issue, but acknowledged that all of the circuits that have, have held it violates D's constitutional right.
Harmless error analysis
77
5th Cir: May a court give a jury instruction on "deliberate ignoracne"?
Brooks 5th Cir. 2012
| Yes, comports with S.Ct. recent decision
78
5th Cir: Is "Missing Witness" instruction required when co-D has pleaded and is awaiting sentencing?
Grant 5th Cir. 2012
No. co-D was not demonstrated to be "peculiarly within the control of the government" and already addressed in "failure to present evidence" charge
79
5th Cir: What is required for the "deliberate indifference" jury instruction?
The evidence at trial must raise two inferences:
(1) the defendant was subjectively aware of a high probability of the existence of the illegal conduct; and
(2) the defendant purposely contrived to avoid learning of the illegal conduct.
80
5th Cir: What is required for a "missing witness" instruction?
That the witness is:
(1) is peculiarly within one party's power to produce, and
(2) would provide testimony that will elucidate facts at issue.
81
5th Cir: Where is venue for criminal attempt?
Thomas 5th Cir. 2012
In the district where D's actions took place, NOT where actions of those working in concert
NOTE: different from Conspiracy or Aiding and Abetting
82
5th Cir: What is the appropriate way for D to raise a complaint that his lawyer wont withdraw his guilty plea?
Minor 5th Cir. 2013
| 28 USC 2255 IAC
83
5th Cir: Can the district court strike a waiver of appeal in a plea agreement?
Serrano-Lara 5th Cir. 2012
No. Only accept or reject fully.
Thus, D had no right to appeal.
84
5th Cir: Can district judge release Presentence Report (PSR) to immigration officials?
Iqbal 684 F.3d 507 2012
| Yep. Compelling interest. Redacted. OK
85
5th Cir: Is having a D entitled to have counsel appointed to attack a prior conviction that is the basis of illegal re-entry?
Diaz Garcia 5th Cir. 2012
| No. Criminal Justice Act (CJA) - that is not an "ancillary matter" that counsel can be appointed for
86
5th Cir: What happens if on re-sentencing the judge gives D a larger sentence?
5th Cir - Determines Vindictiveness by using the Aggregate Approach
"comparing the total original sentence to the total sentence after resentencing. If the new sentence is greater than the original sentence, the new sentence is considered more severe."
87
Does Fair Sentencing Act reducing punishment for crack cocaine apply to crimes committed before the act?
Yes, the more lenient penalties of the Fair Sentencing Act, which reduced the crack-to-powder cocaine disparity, applied to those offenders whose crimes preceded the effective date of the Act, but who were sentenced after that date
August 3, 2010
Dorsey v. United States, 132 S. Ct. 2321 (2012)
88
What's the name and date of the act reducing crack cocaine penalties?
Fair Sentencing Act
| August 3, 2010
89
5th Cir: Does court have to make specific findings if Guidelines STRONGLY recommend lifetime supervision on child porn case?
Alvarado 5th Cir. 2012
| Yes.
90
5th Cir: Was judges increasing sentence from 71 to 108 months because of D's "disrespect" procedurally or substantively unreasonable?
Gerezano-Rosales 5th Cir. 2012
No, there was no formal break after sentencing and within range;
BUT it was a "Clear Error in Judgment" balancing sentencing factors, SO remand
91
5th Cir: If CRT while sentencing doesn't assess restitution in a crime against person, but later reforms the judgment to include restitution, is this allowable?
Murray 5th Cir. 2012
Distinguishes Dolan v. U.S. S.Ct. 2010
Because ability to reopen under 18 USC 3663 is limited to property crimes (for large number of victims, or too complicated)
So, district court had no authority to reopen sentencing.
92
5th Cir: Is a victims restitution for child pornography require proof of proximate cause of loss?
Amy Unknown 5th Cir. 2012
NO, it requires "proximate result" which is less of a connection than "cause" SO Amy entitled to remand for full restitution
NOTE: Split of Circuits
SCOTUS granted cert. in Paroline - not set yet
93
5th Cir: Does Fair Sentencing Act apply to 21 USC 844?
| What is 844? What date for FSA?
Yes.
844 = simple possession
August 3, 2010
94
5th Cir: Can sentencing court rely on "bare arrest" for sentencing?
Harris 5th Cir. 2012
| NO, BUT if facts of offense are in PSR without objection, CRT can consider
95
5th Cir; Is NM "burglary of vehicle" an Agg. Felony under 8 USC 1101?
What is 8 USC 1101?
Yes.
| Immigration & Nationality Act
96
5th Cir: Does Florida "theft" offense constitute an Agg. Felony under 8 USC 1101 or USSG 2L1.2?
What is 8 USC 1101?
What is USSG 2L1.2?
No.
8 USC 1101 is Immigration and Nationality Act (INA)
2L1.2 relevant conduct for Immigration, Naturalization, and Passport crimes
97
5th Cir: Is Texas Sexual Assault an Agg. Felony or Crime of Violence for 8 USC 1101(a)(43) purposes?
Nope, using categorical approach Texas Penal Code 22.011 could include: clergy relationship, counselor relationship. etc.
98
5th Cir: Does a CRT have to give notice of departure from Guidelines?
```
FRCP 32(h)
Yes if on grounds not identified for departure either in the PSR or in a party's prehearing submission, The notice must be reasonable and specify any ground on which the court is contemplating a departure.
```
99
What does "affect substantial right" mean in the 5th Cir. regarding "Plain Error" analysis?
Reasonable probability that the result of the proceeding would have been different.
i.e. Sentencing, less sentence; Guilt/Innoc., not guilty
100
5th Cir: Does a waiver of appeal bar a Motion to Modify Supervised Release Conditions filed by D?
Yes.
| CRT left open whether this also applied to waiver of appealing an order modifying or revoking supervised release
101
5th Cir: Does appeal waiver apply to restitution order entered after sentence?
No. Murray.
102
5th Cir: Does a general Rule 29 motion preserve sufficiency-of-evidence claim that turns purely on legal question?
Don't know...
| 5th Cir. declined to clear up the circuit split in Compian-Torres 2013
103
When was Padilla decided?
March 31, 2010
104
Is SORNA constitutional as applied to D that was released from federal custody before the enactment of SORNA in 2006?
Yes. Initially, 5th Cir. said it was not constitutional under the "Commerce Clause" BUT
the Supreme Court said it was constitutional under the "Necessary and Proper Clause" of Article 1
105
5th Cir: Can the offense of "child enticement" be committed by speaking with an adult?
Where D was talking to father (actually undercover cop) asking father to show child sexually explicit photo and videos was "Attempted Child Enticement" under 18 USC 2422
106
What can the following be prosecuted under, sending false information about natural gas prices to trade magazines that report natural gas prices in indexes, in an effort to affect and manipulate those indexes, which, in turn, would affect the market for natural gas futures and benefit the company's financial positions?
This activity constitutes "false reports" about "commodities" under the Commodities Exchange Act.
U.S. v. Brooks 5th Cir. 2012
107
Does a D have to know that materials (computer, camera, film) used to make sexually explicit images of a child are interstate in nature?
"Knowledge" only applies to "transported in interstate or foreign commerce or mailed"
Not to: produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or
if such visual depiction has actually been transported in interstate or foreign commerce or mailed.
U.S. v. Terrell 5th Cir. 2012
108
What does "honest service fraud" constitute?
Skillings v. U.S. S.Ct. 2010
Only, "bribes" and "kickbacks" not just self-dealing
Enron CEO Skillings - sentence reduced by10 years
109
In money laundering statute, what does "proceeds" mean?
It means "profits" not "receipts"
U.S. v. Santos, S.Ct. 2008
But not really in the 5th Cir. - In Ghali the 5th Cir. adopts Stevens's concurrence - "proceeds" meand "profits" only if perverse result, so concurred in rule of lenity
BUT would presume in other contexts of the money laundering act that "proceeds" means "gross receipts"
110
In money laundering statute when does "proceeds" mean "profit"?
5th Cir. adopts Stevens' concurrence, so only when there is a "merger" problem MEANING D convicted under laundering statute for essentially same conduct of the "specified unlawful activity" (underlying offense), this happens in 2 ways:
1. D demonstrates underlying crime not complete at time of laundering; or 2. D show that money was not payment from profits in support of new crimes, rather payments for expenses of underlying offense
111
What actually constitutes being "found" for Reentry of Removed Aliens?
D must be "found" by Immigration Authorities - this is the offense which triggers the 5 year SOL
Even where D encountered state police, a federal probation officer, and a federal court in 2004
112
What are the statutory sentence ranges for Illegal Reentry?
8 USC 1326
2 year max - generally
10 year max - (3 misd. for drugs or crime against person OR a felony)
20 years max - Agg. Felony
10 years - removed on security related grounds
10 years - removed as "nonviolent offender" prior to completion of sentence
113
What is the crime of coercion or enticement?
18 USC 2422
Persuade, induce, entice, or coerce:
a. Interstate travel for sexual activity that's a crime - or prostitution - max 20 years;
b. Someone younger than 18 to travel for prostitution or criminal sexual conduct - 10 years to life
114
Can you have "computer" double counted for "material involving sexual exploitation of minors"?
5th Cir. Richardson
YES. Use computer in offense AND IF you use computer in offense, you get 2 level increase for relevant conduct under 2G2.2
115
Does downloading child porn and storing it on a shared folder in peer-to-peer network (Limewire) amount to "distribution" of child pornography?
Yes.
| Richardson, 5th Cir. 2013
116
What is an affirmative defense to child porn?
Possess less than 3 "matters"
1. promptly and in good faith, destroy; or
2. report matter to law enforcement and allow them to access
117
5th Cir: Is it error for court to give jury instruction stating that sex act need not occur for "sex-trafficking" under 18 USC 1591?
It is not. Sex act is not required for offense.
| Garcia-Gonzalez
118
Can the government forcefully medicate D to get him competent to stand trial?
CASE?
Yes, if:
1. treatment is medically appropriate;
2. is substantially unlikely to have side effects that 3. may undermine the fairness of the trial;
4. taking account of less intrusive alternatives; and
5. is necessary significantly to further important governmental trial-related interests
Sell v. United States, 539 U.S. 166 (2003)
119
What is the D's burden to be released if hospitalization of a person found not guilty only by reason of insanity?
Burden of proof depends on the underlying offense:
1. Clear and Convincing Evidence if “an offense involving bodily injury to, or serious damage to the property of, another person, or involving a substantial risk of such injury or damage”
2. Preponderance of Evidence if other offense.
If D fails, AG gets him.
120
Why may "conditional release" for an insanity aquittee be revoked?
He fails to comply with medical, psychiatric, or psychological care or treatment
Hearing upon report or P.C. of violation
121
5th Cir: What does a court consider to determine whether to hold a competency hearing?
3 factors:
(1) the existence of a history of irrational behavior, (2) the defendant's demeanor at trial, and
(3) prior medical opinion on competency
122
5th Cir: What is the burden for revocation of insanity aquittee conditional release?
Mitchell 5th Cir. 2013
Court didn't decide... Statute doesn't say...
CRT just said, IF Gov't bears burden, and IF it's Clear and Convincing - the Gov't met it's burden
