Oklahoma Criminal Defense Blog

The United States Supreme Court recently decided that citizens have a constitutional right to possess a firearm in their home, and that Second Amendment right applies to the states.  That means cities like Chicago have to change their laws regulating the possession of guns.

Four days after the Supreme Court decision invalidating Chicago’s gun ban, the City Council enacted new, gentler gun-control regulations.  The vote was unanimous for the 45 aldermen voting for the measure.  The council wanted to put new handgun law in place before the invalidated law disappears, and the city has no regulation at all.

Of course, Mayor Daly explained passage of the law as designed to keep guns out of the hands of “gangbangers and drug dealers.”  And, of course, the ordinance is explained as supporting adults who legitimately want a gun in their home for self-defense.  But some aldermen believe the new ordinance will have more impact on law-abiding citizens than on anyone intending to commit a crime with their gun.

The new law took effect 10 days after it was passed.  It will require anyone who wants to keep a handgun in their home lawfully to first obtain a permit from the City of Chicago. The permit requires the holder to complete firearm training and a record without any convictions of a violent crime, any record of violent use of a firearm, or two or more charges of driving under the influence of drugs or alcohol.

Each gun must be registered by the city, and a person can register only one weapon each month.  A permit-holder may have only one handgun in readily operable condition at one time. The permit requires the handguns be kept only in the home, and the ordinance excludes garages, porches, and exterior stairs from the definition of a home.

The ordinance prohibits gun sales, firing ranges or shooting galleries inside the City of Chicago.  The ban on sales is expected to be challenged in court, as are other provisions of the ordinance.  The council knows that.  Aldermen were quoted as saying they could not imagine how anyone could possibly question the reasonableness of their regulations, but they know the challenges are coming.

One of the aldermen, Leslie Hairston, said he thought the Supreme Court was wrong in their opinion upholding the Second Amendment just like the Court was wrong about segregation.  Historically, he’s right, but he forgot that it was the Supreme Court which turned the country around in the matter of segregation, beginning with the decision in Brown v. Board of Education of Wichita.  Only after years of decisions from the Supreme Court following the Brown decision did the executive and legislative branches address segregation significantly, the partial integration of the armed forces during World War II being a significant – but isolated – exception.

During consideration of the ordinance, several aldermen expressed the belief that the Supreme Court would never have overturned their gun law if the justices were more familiar with urban violence.  This comment shows the myopic viewpoint council, one incapable of looking beyond their routine horse-trading, pragmatic approach to everything.  These same aldermen would be the ones to fault any court-ordered restrictions to police handling of public demonstrators because the police need to protect public order.  They are unaware of the importance of protecting free speech by the First Amendment to the Constitution.  All countries have crowd problems and crime problems.  Only the United States has the Bill of Rights, including what is left of the Fourth Amendment.

Evidence of other crimes introduced at a trial is so clearly poisonous that the rules of evidence generally prohibit such evidence.  Intuitively, an observer knows the impact such evidence would make on a jury – regardless of the strength of the evidence of guilt offered for the charges being faced.  Such evidence would have a fatal impact upon a verdict.

Evidence of “other crimes evidence” is not admissible to prove a person’s character in order to prove the person acted in conformity with such behavior under the Federal Rules of Evidence, Rule 404(b).  It is similarly prohibited under the Oklahoma Rules of Evidence, Rule ??-ck this rule online.

However, evidence of other crimes may be admissible for other purposes, such as proof of guilty knowledge.  The United States Supreme Court found such a circumstance in Huddleston v. United States, 485 U.S. 681, taking the case on certiori from the Sixth Circuit Court of Appeals.

Huddleston was charged in federal court with one count of selling stolen property in interstate commerce and one count of possessing stolen property in interstate commerce.  Both counts related to portions of a shipment of stolen Memorex videocassette.

The evidence presented at trial was that a trailer containing over 32,000 blank videocassette tapes was stolen from an Overnight Express yard in South Holland, Illinois.  The manufacture cost of each videocassette tape was $4.53.  Soon after the theft, between 2 and 6 days after the theft, Huddleston contacted a manager in Ypsilanti, Michigan, seeking to sell at least 500 blank Memorex videocassettes for a price between $2.75 to $3.00 per tape.  He ultimately sold 5,000 tapes, which he delivered to various customers.

Undisputed at trial was whether the tapes were stolen. The only material issue at trial was whether Huddleston knew the tapes were stolen.  To do so, the government introduced evidence of “similar acts, ” and the trial court ruled that the evidence had “clear relevance” as to Huddleston’s knowledge.  The first piece of such evidence was the testimony of a store record owner, who testified Huddleston offered, just two months before the offer to the Ypsilanti manager, to sell him new 12″ black and white television sets for $28.00 a piece.  Huddleston indicated he could obtain several thousand of the television sets. The store owner purchased 38 of the sets.

The second piece of evidence of “similar acts” was the testimony of an undercover FBI agent posing as a buyer for an appliance store.  He testified that Huddleston, one month after the Memorex tape offer, offered to sell him a large quantity of Amana appliances, 20 refrigerators, 2 ranges and 40 icemakers, for $8,000.  The appliances were delivered, part of a shipment that was stolen.  They had a value of about $20,000.

Huddleston testified he did not know any of the items were stolen.  At the close of the trial, the prosecutor argued that Huddleston was not on trial for the other appliances, and the trial court instructed the jury that they were to consider the evidence of the similar acts only in reference to Huddleston’s guilty knowledge that the Memorex tapes were stolen, not to prove Huddleston’s bad character.  The jury convicted Huddleston, and you can bet it was because of the evidence of the “similar acts.”  Understandably, Huddleston’s lawyers argued on appeal that he had been subjected to improper prejudice, to no avail.  The Court cited Federal Rule of Evidence, Rule 403, which provides relevant evidence may be excluded if the trial judge finds “its probative value is substantially outweighed by the danger of unfair prejudice.”

The government did not prove at trial the television sets were stolen.  Huddleston’s lawyers urged that was critical.  The Supreme Court considered different levels of certainty the trial court, before admitting such evidence, ought to make by way of preliminary finding before admitting the evidence of similar acts.  Instead of the “clear and convincing” standard urged by one panel of the Sixth Circuit Court of Appeals or the “preponderance” standard by another panel of the same Court.

The Supreme Court decided that the evidence had been introduced at trial for a proper purpose, it fit the requirements as stated in the text of of Rule 404(b), and that was enough to make it admissible.  The television sets need not have been proven stolen to be admitted.  No preliminary finding was necessary by the trial judge.  It was up to the jury to make its own conclusions about whether the television sets were stolen in its verdict.

The Supreme Court of South Dakota ruled a violation of the 4th Amendment to the U.S. Constitution, a police search when they conducted a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking violations.

After incurring two overtime parking citations in the same morning, a car was towed by police and impounded.   At the impound lot, a police officer observed a watch and some other personal property inside the car and ordered the car unlocked to perform an inventory of its contents.  Using a “standard” form to list the property found, a police officer performed an inventory of the contents of the car according to police procedures.  Inside the unlocked glove compartment, police found some marijuana in a plastic bag.  All property, including the marijuana, was sent to the police department for safekeeping.

Respondent Opperman was later arrested and charged with possession of marijuana.  His motion to suppress was denied, and he was convicted by a jury.    He was sentenced to 14 days in jail and a fine of $100.  That conviction was reversed by the Supreme Court of South Dakota in a ruling that found an illegal search and seizure in violation of the Fourth Amendment.  That ruling was appealed to the United States Constitution and was decided in South Dakota v. Opperman.

The Supreme Court of the United States has recognized for years the distinction between the search of a building versus the search of an automobile.  According to the Court’s decision in Carroll v. United States in 1925, the “inherent mobility of automobiles creates circumstances of exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible.”  The Court stated the expectation of privacy was less in an automobile than in a home because its function is transportation and “seldom serves as one’s residence or as the repository of one’s personal effects…”

The Court found state courts have “overwhelmingly” concluded that, even if an inventory is characterized as a search, the intrusion is constitutionally permissible.  The Court noted that the majority of Appeals Courts have approved inventory procedures as reasonable police intrusions, citing decisions from the Fourth, Fifth, Sixth and Ninth circuits.

The Court cited its prior decision in Cady v. Dumbrowski, which had approved a warrantless search of an automobile which had been towed to a private garage even though no probable cause existed to believe the vehicle contained fruits of a crime.  In Dumbrowski, “the sole justification for the warrantless incursion was that it was incident to the caretaking function of the local police to protect the community ‘s safety.”

The Court distinguished its holding in Preston v. United States in 1964, in which the Court had invalidated a car search after a vagrancy arrest, saying Preston stood for the proposition that “the search challenged there could not be justified as one incident to an arrest.”  The Court said Preston did not raise the issue of the constitutionally of a protective inventory of a car lawfully within police custody.  Preston was not, therefore, at odds with the Court’s decision in Opperman, the Court ruled.

When you are arrested, you have the right to remain silent. Everyone knows that.  But if you simply maintain silence, the police can continue to question you until you finally talk.  That is the recent ruling from the United States Supreme Court.  If you want to protect your right to remain silent, you must, interestingly, speak up to assert that right.

In the case of Berghuis versus Thompkins, the Supreme Court decided by a vote of 5-4 in a split along well-known ideological lines not to suppress the statements of a suspect who incriminated himself after 3 hours of police interrogation.  Justice Anthony Kennedy wrote the majority opinion which decided that courts need not suppress statements made by defendants who receive the “Miranda” warning and do not expressly waive their rights and speak only after remaining silent through hours of interrogation.  Justice Sonia Sotomayor wrote her first major dissent.  She wrote that the majority’s decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

The case involved a Michigan man, Van Chester Thompkins, accused of shooting a man to death in 2000.  He was arrested a year later and read his Miranda rights.  He refused to sign a form to acknowledge he understood his Miranda rights.  He then sat through three hours of interrogation, silent.
Then, after two hours and forty-five minutes into the interrogation, Thompkins answered with the answer, “yes,” to three questions: “Do you believe in God?” “Do you pray to God?”  “Do you to pray to God to forgive you for shooting that boy down?”  His answer to the last question was introduced as evidence against him at his trial, at which he was convicted of murder in the first degree.  The U.S. Court of Appeals had ruled that statement should have been excluded because the prosecution could not prove Thompkins did not knowingly and voluntarily waive his right to remain silent, and it was that decision the U.S. Supreme Court reversed.

The famous 1966 U.S. Supreme Court decision of Miranda versus Arizona ruled that a “valid waiver will not presumed from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”  It also said the government faced a “heavy burden” in trying to prove that a suspect’s waiver was knowing and intelligent.
Justice Kennedy in Berghuis acknowledged that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.”  Justice Kennedy then said that decisions Miranda have diminished its language, and a more sensible rule put the burden on suspects to invoke their rights.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy wrote.   He said that people who knew their rights and acted “in a manner inconsistent with their exercise’ might be presumed to have waived their rights, meaning that responding to police questioning in itself an implied waiver of the right to remain silent.”  As criminal defense lawyers know, just because the Miranda rights are read, many suspects do not understand their rights;  They often have the impression that is not really a right which they can actually invoke.
Justice Kennedy was joined in the majority opinion by Justices Antonin  Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts.

Justice Sotomayer’s dissent pointed out the majority opinion created a paradox.  “A suspect who wishes to guard his right to remain silent must, counterintuitively, speak.”  She said the principles flatly contradict earlier decisions from the court.  “At best, the court today creates an unworkable and conflicting set of presumptions.  At worst, it overrules sub silentio an essential aspect of the protections Miranda has long protected.”  She was joined in her dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.

News stories report that Tiger Woods had a traffic accident backing out of his home in Florida, an estate in Isleworth, outside Orlando.   According to the Florida Highway Patrol accident report, Woods had just pulled out of his driveway when he struck a fire hydrant and then a tree, and Woods said he had cuts, bruising and “right now, I’m a little sore.”

A 911 caller reported an accident in the middle of the night.  “I have a neighbor, he hit the tree.  And we came out here just to see what was going on.  I see him and he’s laying down,” the neighbor reported without naming Tiger Woods.  When the caller was asked by the dispatcher if the “victim” was unconscious, the neighbor stated, “Yes.”  The 911 call goes on with the voice of a woman shouting, “What happened?”  “We’re just trying to get the police here right now, “ the caller says to the woman. “We don’t know what happened.  We’re figuring that out right now.  I’m on the phone with the police right now.”

The Florida Highway Patrol has been asking to interview Woods about the accident.  Woods has just published a statement on his website.  “The situation is my fault, and it’s obviously embarrassing to my family and me.  I’m human and I’m not perfect. I will certainly make sure this doesn’t happen.”

Woods’ statement went on: “Although I understand there is curiosity, the manly false, unfounded and malicious rumors that are currently circulating about my family and me are irresponsible.  The only person responsible for the acccident is me.  My wife, Elin, acted courageously when she saw I was hurt and in trouble she was the first person to help me.  Any other assertion is absolutely false.”  This was published about an hour after Woods’ attorney told the Highway Patrol that for the third straight day Woods would be unavailable to talk to troopers.  Woods said this was a private matter, and he intended to keep it that way.

The Highway Patrol went to Woods’ estate nevertheless. They were met there by Woods’ attorney, who gave then Woods’ driver’s license, registration and insurance as required for such accidents.  The Highway Patrol still does not know where Woods was headed at that time of night, how he lost control of his SUV at such a speed that the air bags did not deploy, and why both rear windows of this Cadillac Escalade were smashed out.  Perhaps the biggest question is if was just a careless mistake, why not speak to state troopers to complete their investigation?

A spokesman for the highway patrol was towed away from the gated community in which Woods lives “for safekeeping.”  Why would the police take Woods’ vehicle from its resting place, which was apparently feet from Woods’ garage?

Besides not wanting to make public what Woods said is a “private matter,” Woods has another reason not to speak to the police about his matter.  Every criminal defense lawyer knows why Woods was well advised to have his lawyer speak for him when the police arrived at his home for a “friendly chat.”  Anything Woods says can and will be used against him in a court of law.  So why should he help the police make a criminal case against him?

Such a case does not have to appear likely.  Certainly, no criminal case appears likely from the sparse facts known.  But who knows how creative the police may become?  Such things have happened before, and that is why Woods’ attorney, informed any interview was optional, exercised the option that excluded any interview.  Why take any other option, why give up one’s Fifth Amendment Rights, just so as to appear one is “not guilty?”

Rumors are circulating that Tiger Woods is seeing some cocktail waitress in New York, and that may be related somehow to this accident.  The waitress is now represented by a Hollywood attorney.  Regardless, if a police interview took place, whatever would be said, would be front page news in 12 hours.  That is another reason Tiger Woods could understandably not want to talk to the police about this accident.  But the first reason is the reason that applies to every citizen who has available Constitutional Rights.

William Jefferson, former Congressman from New Orleans, was sentenced to 13 years in federal prison for using his office to enrich himself and his family.  His sentence was less than the 27 years recommended by the U.S. Attorney.  He was convicted by a jury last August for bribery, racketeering and money laundering.  Some of his schemes involved business ventures in Africa.

Since Jefferson is 62 years old, his sentence could be a life sentence, since there is no parole in the federal prison system, although he could get 15 per cent of his sentence off for good behavior.

Jefferson was convicted after a six-week trial in Alexandria, Virginia. He was found guilty of 11 of 16 counts after he was indicted in June, 2007.  But his indictment followed highly publicized activity in the case.  Jefferson was videotaped by the FBI in July, 2005, receiving $100,000 of $100 bills in a briefcase in Arlington, Virginia.  Captured by a wire on one of the participants, Jefferson allegedly advised an informant to give Nigerian Vice President Atiku Abubakar $500,000 to make sure their business interests obtained contracts for their companies in Nigeria.

A few days later the FBI raided Jefferson’s home in Washington, D.C. and claimed to have found $90,000 of the cash in the freezer in $10,000 increments, wrapped in aluminum foil and stuffed inside frozen-food containers.”  The FBI claimed the serial numbers found on the bills in Jefferson’s home matched serial numbers of the money the FBI had given to their informant.

It was nine months later that the really big raid took place.  FBI agents executed a search warrant on Jefferson’s office in the House of Representatives, the Rayburn House Office Building.  Jefferson was a sitting Congressman at the time, and the FBI raid is believed to be the first time a raid was ever conducted on the office of member of Congress.

The separation of powers implications raised great concerns.  Members of Congress feared the precedent of law enforcement officers raiding legislators’ offices.   If legislators’ offices could be raided whenever agents of the executive branch claimed they were on the trail of criminal evidence, the legislative branch of government could be at the mercy of the executive branch.  These are the kinds of raids Russia’s Premier Putin has conducted to crush the formerly free press and private businessmen who challenged Putin.  These are the kinds of raids governments around the world have used as a pretext to force legislators to follow the command of the executive.

Congressional leaders immediately demanded the FBI return documents seized from the raid of Congressman Jefferson’s House office.  House Speaker Dennis Hastert and Minority Leader Nancy Pelosi spoke out together.  Reportedly Attorney General Alberto Gonzales and FBI Director Robert Mueller threatened to quit if the Justice Department had to return the documents.  Meanwhile, the House of Representatives was threatening to axe the Justice Department’s budget.  President Bush ultimately directed the Justice Department to seal all seized evidence for 45 days.

At the time, an ABC News poll in June, 2006 found 86% in the United States supported the FBI’s right to search congressional offices when they obtain a warrant.  This should be no surprise. The public’s support of law enforcement always outweighs support of Constitutional restraints.  At least the poll dealt with a search warrant.

As any criminal defense lawyer will tell you, members of the general public for the most part always will see the justification of unconstitutional actions in the results.  If the police acted without probable cause or a trumped up justification, the public does not often question the action.  There are significant exceptions, but for the most part, the safeguards of the Constitution are not appreciated by the general public when weighed against the value of “getting bad guys.”.

The public wants crimes solved, and the restraints on government placed by the Constitution are seen as speed bumps to be ignored only “a case at a time.”  The “case at a time,” of course, becomes the rule rather than the exception because in every case there is a “good reason” to go ahead with ignoring the restraints, to go ahead and get this guy because “this guy really needs getting” or “this crime really needs solving.”  The Constitution remains on the sidelines from little use until that member of the public or this person has an experience when they are surprised at how easy the rules have made it to convict someone innocent of a crime.

William Jefferson challenged the raid on his office to the District Court of the District of Columbia.  The Court held that the broad protections of the Speech or Debate Clause, which give absolute immunity from prosecution for legislative acts does not shield members of Congress from the execution of valid search warrants.  For those who fear executive overreach, it is noteworthy that search warrants would necessarily require approval from the judicial branch of government.  Oddly, Chief Hogan, who made this finding was the one who had approved the original search.

The decision of the District Court was appealed to a three-judge panel held that Department of Justice could not review Jefferson’s filed until Jefferson had seen what files had been taken from his office and which pertained to his legislative duties.

Thereafter the House of Representatives stripped Jefferson of his committee assignment in the House.  Jefferson was reelected in 2006, but after being indicted in 2007, he lost election in 2008, upset by a Republican in an overwhelmingly Democratic district.  Jefferson went to trial as an ex-Congressman.