Posts Tagged ‘Case Law’
May a felon sell rather than give up his guns?
By: Elizabeth B. Carpenter — Firearm Attorney New Orleans
The Unites State Supreme Court has agreed to examine this issue during the present session in the case Henderson vs. United States.
This case centers on Tony Henderson, a former U.S. Border Patrol agent who was charged with selling marijuana in 2006, and later convicted of a felony.
Federal law prohibits felons from possessing firearms, and Henderson turned 15 personal weapons over to the FBI while his case was pending.
Two years later, he submitted a bill of sale to the FBI, indicating that he had sold the guns to another man and asked the FBI to transfer them accordingly. The government refused, reasoning that doing so would amount to granting “constructive possession” of the guns to Henderson.
The questions before the court are:
Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure* or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.
Henderson’s case was governed by precedent in the 11th U.S. Circuit Court of Appeals that says allowing a felon to transfer guns is tantamount to giving him constructive possession of the weapons in violation of the law. U.S. Courts of Appeals for the 3rd, 6th and 8th Circuits are in accord.
“Requiring a court to return firearms to a convicted felon would not only be in violation of a federal law, but would be contrary to the public policy behind the law,” that court argued.
But Henderson says the weapons had nothing to do with his crime.
Three other appeals courts reject that position, reasoning that the guns can be transferred because the felon has an interest in the firearms apart from a possessory interest.
By denying his sale of the guns, the government is trampling on his property rights, his lawyers argued in a petition seeking Supreme Court review of the case.
“It allows the government — based on a statutory prohibition on mere possession — to bypass formal forfeiture procedures and effectively strip gun owners of their entire ownership interest in significant, lawful household assets following a conviction for an unrelated offense,” petitioners say.
In this case, I agree with Henderson. If his criminal offense involved a weapon, then I would feel differently – I see no reason for the government to deprive him of his right to transfer his ownership in this property. Of course, I will be following this case — I am curious to see what the Supreme’s think.
*Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
In 2012, Louisiana voters approved a state constitutional amendment that makes gun ownership a fundamental right. This places gun ownership on the same level as freedom of speech or freedom of religion. This law also requires that any challenges should be held to strict scrutiny which is the most stringent standard of judicial review. In other words, the law should favor the constitutional right or principle more than the government’s interest.
Since this amendment passed, many defense attorneys have challenged prosecutions for Felon in Possession of a Firearm La. R.S. 14:95.1 in state courts. The issue is whether the amendment applies to convicted felons who are barred from having firearms. District Judges in state courts seem to be divided on their interpretation of the law. A couple weeks ago, the Louisiana Supreme Court heard arguments addressing this question.
I am on the edge of my seat waiting for the justices to release their decision. Last year, I had a case where I challenged the prosecution of my client for being a convicted felon with a firearm. Unfortunately, the state court judge ruled against me. I think that he just did not feel comfortable making that call. One problem that I see with Louisiana’s statute restricting firearm possession with respect to felons is that the law is too broad. I also think that the sentencing range is too harsh — 10 to 20 years. As written, the law does not even permit someone who has been convicted of a small felony, such as theft of $500.00, to possess a rifle to go hunting.
I know that I will revisit this topic when the justices release their decision.
If you or a loved one has been arrested for a violation of a Louisiana gun law, it is imperative that you hire an attorney who defends firearm offenses. Contact attorney Elizabeth B Carpenter for a consultation.
New Orleans Drug Crime Attorney
Elizabeth B Carpenter Law is a premier law firm for Drug Crime defense. We have defended almost every type of Drug Crime imaginable in South Louisiana. If you are in need of a New Orleans criminal attorney, contact our office today.
Never give a police officer permission to search your vehicle or home!
United States v. Cotton (2013)
United States Fifth Circuit Court of Appeals
In February 2011, Marvin Cotton was driving his rental car along Interstate 10 in east Texas when, without changing lanes or slowing his speed as required by Texas law, he passed Lieutenant Tony Viator’s emergency vehicle parked on the side of the road. Having already received a tip from a fellow officer that Cotton might be carrying drugs, Viator conducted a stop and a lengthy detention, running license checks with dispatch and questioning separately both Cotton and his passenger about their itinerary and their reasons for travel. Viator’s suspicion grew when inconsistencies in Cottons’s and his passenger’s stories emerged, so he sought Cotton’s consent to search the rental car for drugs. An audio recording from the camera on Viator’s vehicle captured Viator’s solicitation of Cotton’s permission to search everything in the car. Though Viator first requested permission, he twice more asked whether he could search the car. The parties disputed Cotton’s response to Viator’s initial request, but as to the two reiterated requests, Cotton indisputably responded by limiting his consent to a search of his luggage only. Nevertheless, Viator meticulously searched the entire vehicle, ultimately discovering a small, plastic-wrapped bundle containing crack cocaine concealed in the vehicle door’s inner cavity. Cotton then made incriminating statements while trying to work out a deal with the officers. He filed a motion in the District Court to suppress the drugs and the statements. The motion was denied, and Cotton pleaded guilty to one count of possession with intent to distribute more than 280 grams of cocaine and was sentenced to 121 months in prison. He appealed the District Court’s denial of his motion to suppress, having reserved the right to do so in his plea agreement.
The Fifth Circuit reversed the denial of Cotton’s motion to suppress, and vacated his conviction and sentence. The Court concluded that Cotton had limited his consent to the search of his luggage only. Consequently, Viator’s prolonged and more extensive search of Cotton’s entire vehicle violated his Fourth Amendment right, and the drugs uncovered during the unauthorized search of the vehicle, and the incriminating statements made shortly thereafter should have been suppressed as fruits of the unlawful search.
New Orleans Child Pornography Attorney
Elizabeth B. Carpenter Law is uniquely qualified to defend clients who have been accused of a child pornography offense in New Orleans area. We have represented countless clients in child pornography cases in Louisiana. Some of the specific types of cases we address include the possession, production, possession, distribution or sale of child pornography in New Orleans. Our knowledge of the law and experience in child pornography defense gives us the skill you need to effectively challenge the allegations made against you.
Court Says Child Porn Victims Can Get Restitution
Child pornography victims can recover money from people convicted of viewing their abuse without having to show a link between the crime and their injuries, a federal appeals court ruled Monday.
The decision conflicts with rulings by several other federal circuits, possibly setting the stage for a Supreme Court challenge.
The 5th U.S. Circuit Court of Appeals ruled that a woman, identified as “Amy” in court documents, was entitled to restitution from Texas resident Doyle Randall Paroline and New Orleans resident Michael Wright, both of whom pleaded guilty in separate cases to possessing child pornography that included images of Amy.
Amy sought more than $3.3 million from Paroline to cover the cost of her lost income, attorneys’ fees and psychological care. A federal judge rejected her request.
Amy also sought more than $3.3 million from Wright, who had images of Amy and at least 20 other identifiable children stored on his computer. A federal judge ruled Wright owed Amy more than $500,000.
Wright argued he didn’t owe Amy any restitution because he didn’t obtain the images until years after she was abused. He also said there wasn’t any evidence that she knew he personally viewed the images.
Amy, now her early 20s and living in Pennsylvania, was a child when her uncle sexually abused her and widely circulated images of the abuse, according to court records. The National Center for Missing and Exploited Children said it has found at least 35,000 images of Amy’s abuse in more than 3,200 child pornography cases since 1998.
In at least 174 cases, Amy has been awarded restitution in amounts ranging from $100 to more than $3.5 million. James Marsh, one of her attorneys, said in January that she had collected more than $1.5 million.
Nine of the 15 judges joined in the majority opinion written by Judge Emilio Garza. The opinion said a federal statute dictates that a child pornography victim be awarded restitution for the full amount of their losses in each defendant’s case.
“Fears over excessive punishment are misplaced,” Garza wrote. “… Ultimately, while the imposition of full restitution may appear harsh, it is not grossly disproportionate to the crime of receiving and possessing child pornography.”
“No other circuit that has addressed this issue has adopted such a one size fits all rule,” he wrote. “Other circuits have given the district courts discretion to assess the amount of the restitution the offender is ordered to pay.”
Stanley Schneider, one of Paroline’s attorneys, said they will ask the Supreme Court to review the ruling.
If you need a Child Pornography Defense Attorney in New Orleans, contact attorney Elizabeth B. Carpenter to schedule a consultation. Early intervention by an experienced sex crime defense attorney can make a tremendous difference in your case. We are here to help you, not judge you.
By: Elizabeth B Carpenter
Serving Clients in Orleans Parish, St. Tammany Parish, St. John Parish, St. James Parish, St. Bernard Parish, St. Charles Parish, Assumption Parish, Tangipahoa Parish, Terrebonne Parish, Plaquemines Parish and Jefferson Parish.
The following cases are being argued before the U.S. Supreme Court this week:
BAILEY V. UNITED STATES
Can police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
CHAIDEZ V. UNITED STATES
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.
FLORIDA V. JARDINES
Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?
FLORIDA V. HARRIS
Is an alert by a well-trained narcotics detection dog certified to detect illegal contraband insufficient to establish probable cause for the search of a vehicle?
Criminal Defense Attorney New Orleans
Louisiana sex law violates offenders’ rights, federal judge rules
By: Associated Press
A Louisiana law violates the constitutional rights of people who were required to register as sex offenders after they were convicted of soliciting oral or anal sex for money, a federal judge ruled Thursday. U.S. District Judge Martin Feldman said state lawmakers had no “rational basis” for requiring people to register as sex offenders if they were convicted of a “crime against nature by solicitation.”
Feldman sided with nine anonymous plaintiffs who sued last year, saying they wouldn’t have had to register as sex offenders if instead they had been convicted of soliciting sex for money under the state prostitution law.
Civil rights attorneys who filed the suit against Louisiana Attorney General James “Buddy” Caldwell and other state officials claim the law is unconstitutional and discriminatory, unfairly condemning sex acts traditionally associated with homosexuality.
Feldman said the plaintiffs proved they have been deprived of their equal protection rights under the Fourteenth Amendment.
“The defendants fail to credibly serve up even one unique legitimating governmental interest that can rationally explain the registration requirement imposed on those convicted of Crime Against Nature by Solicitation,” Feldman wrote. “The Court is left with no other conclusion but that the relationship between the classification is so shallow as to render the distinction wholly arbitrary.”
Feldman gave the plaintiffs five days to submit a proposed judgment consistent with his decision. Plaintiffs’ attorney Alexis Agathocleous said he and his colleagues were still reviewing the ruling and weighing their options but would, at a minimum, ask for the names of the nine anonymous plaintiffs to be removed from the sex offender registry.
“We will work with the court to sort out the precise details of the judgment in this case,” said Agathocleous, an attorney for the Center for Constitutional Rights in New York.
Agathocleous said the ruling represents “powerful vindication” for the plaintiffs and a rebuke of a statute “borne of age-old animus.”
Feldman said the issue before him “is not about approval or disapproval of sexual beliefs or mores.”
“It is about the mandate of equality that is enshrined in the Constitution,” he wrote.
A spokeswoman for Caldwell’s office said she couldn’t immediately comment on the ruling.
The state Legislature amended the 200-year-old law last year so that anyone convicted of a “crime against nature by solicitation” no longer will be required to register as a sex offender. But the change didn’t apply to roughly 400 people who already had been convicted of the crime and were registered sex offenders.
The state argued the plaintiffs didn’t have a constitutionally protected right to privacy after being convicted of engaging in sex acts for money.
Gov. Bobby Jindal originally was named as a defendant in the suit, but the claims against him were dismissed last year.
Another New York Times Piece Regarding Prosecutorial Misconduct in the New Orleans DA Office: In Re Smith v. Cain
New Orleans Criminal Defense Attorney
Last week, I covered the current U.S. Supreme Court Case, Smith v. Cain. I think that it is very important for Louisiana residents to know and understand what has been going on for YEARS in the Orleans Parish DA office and how such misconduct is leading to wrongful convictions. Here are some links to refresh your memory.
The Big SleazyBy ANDREW ROSENTHAL
For the third time in 16 years, the Supreme Court is taking up the question of why prosecutors in New Orleans seem to have so much trouble with the law. Smith v. Cain, a case heard last week, outlines truly shocking misdeeds going back decades. And an article in The Times-Picayune makes clear that problems continue.
Take for example this account of District Attorney Leon Cannizzaro’s ignorance regarding an essential rule of law:
Last week, Cannizzaro insisted his office acted properly when it waited until the middle of a trial to tell a defense attorney about its deal with the victim and lone eyewitness in a December 2010 shooting in eastern New Orleans. Cannizzaro told The Times-Picayune his office didn’t initially reveal the deal, which was inked in August, because Smith’s lawyer never asked. “The defense attorney has to request it, and if he doesn’t, we’re not obligated to give it to him,” Cannizzaro said last week.
Hey, I saw “My Cousin Vinny.” That’s just wrong.
Beginning with the 1963 case Brady v. Maryland, the Supreme Court has made clear that a prosecutor has a duty to disclose evidence favorable to the defendant—even if the defendant doesn’t ask for it—if the evidence is likely to change the result of the legal proceeding.
Lest you be shocked by this tiny little gap in Mr. Cannizzaro’s knowledge, consider his predecessor, Harry Connick, who boasted that he “stopped reading law books” and “looking at opinions” after he was elected district attorney in 1974. That apparently includes Supreme Court rulings. After the Court’s 1995 decision in Kyles v. Whitley, featuring what Justice John Paul Stevens called “many instances” of the district attorney’s office’s “failure to disclose exculpatory evidence,” Mr. Connick testified in court that he made no changes in his office’s approach to meeting Brady requirements.
If a prosecutor so blatantly fails to do his job, surely there is swift and powerful punishment. Actually, no. Lincoln Caplan, one of the board’s legal writers, explains below:
Mr. Connick’s testimony came in Connick v. Thompson, which the court decided last March. In a bitterly divided 5-4 vote, the court overturned a $14 million jury verdict against the district attorney’s office, reached because the office withheld exculpatory evidence from John Thompson and, as a result, sent him to prison for 18 years, 14 on death row. That disposed of one the handful of ways it was possible to deter prosecutorial misconduct.
A group of Yale Law School students recently published a report on “The Myth of Prosecutorial Accountability After Connick v. Thompson,” which is unsettling but well worth reading.
In the Connick case, Justice Clarence Thomas wrote that “[a]n attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.”
But that’s not really so. As the report relates, “prosecutors have rarely been subjected to disciplinary action by state bar authorities,” even though “state bar disciplinary procedures stand as one of the few – and perhaps the only – means of holding prosecutors accountable for gross misconduct.”
For instance, although the lead prosecutor in Smith v. Cain was sanctioned for misconduct by the Louisiana Supreme Court in 2005 (in another case), the court suspended his sentence after observing that this was “a case of first impression in the State of Louisiana” and that the court had never before “been confronted with the issue of disciplining a prosecutor for failing to disclose” Brady material.
Well, that’s a novel idea. If you’re the first to be sanctioned for an offense, you don’t get punished for it.
Frequently Asked Questions About Police Interrogations
Do I have to answer questions if the police stop me while I am walking on the street?
The police can stop a person when they have good faith belief that the person was involved in a crime – this is often referred to as a “Terry Stop.” However, under the Fifth Amendment right against self-incrimination, a person does not have to answer any questions. In fact, a person should not answer any questions during a “Terry Stop.” The law only requires a person to give his name, date of birth, address and other information to establish identity if requested. Therefore, if questioned about a crime when walking on a street, do not utter any words accept your name. Respectfully, inform the officer that you are exercising your Fifth Amendment Constitutional Rights. At the same time, do not argue with the officer!
In what circumstances do the police need a warrant to make an arrest?
If the police have “probable cause,” a reasonable suspicion that a person has been committed a crime, it is unnecessary for them to obtain a warrant before arresting someone. However, police must obtain a warrant when arresting a person in his home if it is for a non-serious offense and there is no belief that the person will destroy evidence. The arrest warrant must provide evidence that a crime has been committed, that the person names on the warrant committed the crime and the warrant must comply with all rules of court. This evidence is usually presented in the form of an affidavit signed by law enforcement officer in front of the judge who is signing the warrant.
Do police have to give Miranda warnings when making an arrest?
This is a concept that is often misunderstood by clients. No, the police do not need to give the Miranda warnings when making an arrest. Miranda warnings are required only when the police interrogate a person after an arrest. Miranda warnings are also not required when the police interrogate someone prior to an arrest however, everything that you say to the police at any point in time can be used against you. Police may also have you sign a waiver of rights form rather than verbalize your Miranda Rights. Pay attention to what you sign!
Will my case be dismissed since the police questioned and arrested me without giving a Miranda warning?
No, the prosecutor can still bring charges against you even if the police failed to give Miranda warnings before conducting a police interrogation. The failure to Mirandize a suspect after arrest and prior to interrogation prevents the prosecutors from being able to use any evidence obtained via the interrogation against the suspect at trial. But the prosecutor can use evidence obtained via another means to secure a conviction.
If I agree to police questioning, can I later decide not to answer questions?
Yes, Miranda warnings give a person the right to stop a police interrogation at any time even if he has already waived his right to remain silent and answered some questions. A person can exercise this right by refusing to answer any more questions or requesting an attorney. Once a person avers Miranda rights, the police must discontinue the interrogation.
What tactics can the police use when questioning a suspect?
Law enforcement is forbidden from using physical or psychological coercion when conducting police interrogations. However (I wish that everyone understood this) the police can lie, trick and employ other types of non-coercive methods to obtain a confession from a suspect. Police are trained in interrogation techniques. They are allowed to make false promises and use scare tactics. They are allowed to tell you that they have the power to decide how severely you will be prosecuted. This is absolutely not true!
Do the police have the right to take a bodily sample without permission?
Generally, No. Law enforcement must obtain a search warrant. However, the Fifth Amendment right against self-incrimination applies to communication and does not prohibit the police from collecting physical bodily evidence, i.e. blood samples, hair samples. I would refuse a bodily sample based on “no search warrant.”
The best advice I can give every client is Do Not Speak To The Police!