Proffers and Info in PSRs

United States v. Merlo, No. 10-2003 (6th Cir. Mar. 23, 2012) (unpublished).

Panel of Judges Merritt, Boggs, and Clay.

Just a quick note on this unpublished case that addresses the use of proffer info at sentencing.

Tax-fraud case.  Defendant argued on appeal that the government violated the plea agreement by using information he provided while cooperating against him at sentencing and for calculating restitution.  The COA affirmed. 

Plain-error review. 

The information the dist ct considered at sentencing was not new information the D had provided.  It was info the D had had to provide in answer to a grand-jury subpoena.  So dist ct did not err in considering it.  Also, it was not clear that the info was used to determine the GL range, the D's sentence within the range, or the extent of the the departure.

Regardless of the info at issue, there was ample evidence against the D.     

Rape-Shield Issues on Habeas

Sorry for the delay in posting.  Little hectic.  It was nice saying hello to many of you at CDAM in Novi a couple weeks ago.

Jordan v. Warden, Lebanon Correctional Institution, No. 10-3064 (6th Cir. Mar. 27, 2012) (for publication).

Panel of Judges Gilman, Rogers, and Stranch.

District court denied the petitioner's application for habeas relief (he had been convicted in Ohio court of rape and unlawful sexual conduct with a minor; eight-year sentence). 

Issue: did the state trial ct violate the petitioner's Sixth Amendment rights to present a defense and confront witnesses by improperly applying Ohio's rape-shield law. 

The COA affirmed the dist ct's denial of habeas relief.

Petitioner claimed he never had sex with the alleged victim.  On direct examination, the alleged victim claimed the petitioner raped her, and that it was her first experience with sex.  Defense counsel did not inquire into that latter assertion on direct examination. 

A friend of the alleged victim testified.  On cross-examination, defense counsel asked if the alleged victim had ever confided in the friend--witness that the alleged victim was having sex with people.  The friend--witness said yes, the alleged victim had so confided.  The prosecutor objected, arguing the rape-shield rules applied. 

During the bench conference on the issue, the defense stated it was not trying to get into prior sexual conduct; it was a matter of credibility.  The alleged victim had testified that it was her first sexual encounter, so the information on prior encounters went to credibility.  The trial court sustained the objection. 

Petitioner appealed to the Ohio appellate court.  Argued he should have been allowed to present the evidence of the alleged victim's sexual history.  Argued that the state had waived the rape-shield protections by choosing to introduce evidence regarding the alleged victim's lack of past sexual activity.  The Ohio appellate court found that the doctrine of waiver did not apply in the situation.  It rejected the merits of the petitioner's argument. 

The petitioner never tried to cross-examine the alleged victim on the point at issue.  So he cannot argue a confrontation-clause error to seek habeas relief.  The defense also did not object on rape-shield grounds to the state's questioning of the alleged victim regarding her alleged lack of sexual history.  The petitioner waived his challenge to the scope of cross-examination of the alleged victim. 

In terms of the cross-examination of the alleged victim's friend, trial judges have wide latitude to impose reasonable limits on cross-examination.  Rape-shield laws impose such a limit.  B/c the U.S. Supreme Court has not ruled explicitly on the issue of waiver in the rape-shield context, and b/c of the broad latitude the trial ct has on evidentiary issues, the Ohio COA's decision on waiver was not contrary to or an unreasonable application of federal law. 

In terms of the substance of that cross-examination, only cross-examination seeking evidence of bias or other motivations for a witness's testimony is constitutionally protected.  The Supreme Court has not suggested that the Constitution always confers a right to impeach the general credibility of a witness.  The Supreme Court has also not recognized a right under the Confrontation Clause to impeach adverse witnesses by putting on a third-party witness. 

The state argued that its questioning about the alleged victim's lack of sexual history did not fall under the rape-shield bar.  While questioning "the soundness of this argument," the COA (6th Cir) did not address the scope of the rape-shield law.  Rather, the COA concluded that the trial court did not err in applying the rape-shield law, even if the state's questioning about the alleged victim's lack of sexual history should have been excluded.  The defense had not objected during that questioning.  The state, on the other hand, did object during the defense's cross-examination of the alleged victim's friend.

No confrontation-clause errors based on the limitations the Ohio trial ct placed on the defense's cross-examination of the alleged victim's friend.  Even if there had been error, it would not lead to relief b/c it would be harmless.  The alleged victim's sexual history was a collateral topic and not relevant to the central issues at trial.   

Habeas and Crawford

AEDPA presents a high standard to overcome to receive relief.  See the Sixth Cir blog for my brief post on a Confrontation Clause/Crawford opinion issued yesterday.

http://circuit6.blogspot.com/

No relief for the petitioner.

More Tech News: Searching Cell Phones

United States v. Flores-Lopez, No. 10-3803 (7th Cir. Feb. 29, 2012) (for publication).

Judges Bauer, Posner, and Rovner.

Seventh Circuit affirms district court's finding that cell-phone call history was admissible despite the fact that this history was obtained b/c the police searched the phone, without a warrant, to obtain the phone's number. 

This opinion is worth a read, especially on the heels of Jones and the GPS issue (see Jan. 25 post).

(I barely remember when phones looked like this one!)

A quick summary:

* Opening a diary found on a suspect whom the police have arrested, to verify the suspect's name and address and to discover whether the diary contains information relevant to the crime for which the suspect has been arrested, is permissible.  The cell-phone search is similar and "even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents."  

* This search did not touch on the use of an iCam to view the home of the owner of the seized cell phone.

* Other conspirators were involved in the drug distribution and they conceivably could have learned of the arrests (they could have been monitoring the drug deal from afar) and they could have wiped the cell phone remotely before the government could obtain and execute a warrant and conduct a search pursuant to the warrant to find the cell phone’s number.

* It is conceivable that the defendant might have had time to warn co-conspirators before the cell phone was taken from him, allowing time to wipe the phone.  While "conceivably” does not mean “probably,” the set off against the modest benefit to police of being able to obtain the cell phone’s phone number immediately comes at "only a modest cost in invasion of privacy."

* Armed with the phone number, the officers could obtain the call history at their leisure.  And if the number was lawfully obtained, subpoenaing the call history from the phone company would also be lawful.  A history thus obtained could properly be used in evidence against a defendant.

* It is "imperative" that officers have the authority to search or retrieve immediately, incident to a valid arrest, information from pagers in order to prevent destruction of evidence.  Same holds here.

* The court could "certainly imagine justifications for a more extensive search."  But the court leaves these questions for another day, as police here only obtained the phone’s number.