United States District Judge Michael W. Mosman (D. OR) has issued an order placing on hold an Oregon domestic partnership law set to take effect Jan. 1, 2008. Although the law would not allow same sex marriages, the Oregon law would give important spousal rights to same-sex couples such as inheritance rights, child-rearing and custody rights, the right to joint state tax filings, joint health, auto and homeowners insurance policy rightss, and visitation rights at hospitals, among others.
The law does not purport or attempt to affect any federal benefits for married couples, like Social Security and joint filing of federal tax returns. The Oregon Domestic Partnership law solely affects state rights.
After the Oregon Legislature approved the domestic partnership law, gay rights opponents launched an effort to collect enough signatures to suspend the law and place it on the ballot for a statewide vote. Opponents of the law asked the federal courts to intercede after the Oregon secretary of state's office ruled that the effort to block the law via referendum had failed to collect enough valid signatures to be placed on the statewide ballot.
The state's largest gay rights group, Basic Rights Oregon, criticized the judge's decision. Both morally and legally they have a valid point. The domestic partnership law does not discriminate; it does not deprive any citizen of the equal protection of the law; and whether a state law was validly enacted or not is a state’s right issue.
Sunday, December 30, 2007
Saturday, December 22, 2007
Rule 5
Rule 5 requires government agents to promptly bring an arrestee before a federal magistrate in the district of arrest. Rule 5 was meant to put a stop to coercive police third degree practices, see United States v. McNabb, 318 U.S. at 344, and secret police interrogations. Upshaw v. United States, 335 U.S. 410, 412 (1948). Yet it is becoming more common that arrestees are induced to cooperate with government agents and waive their rights under Rule 5.
The Rule 5 waiver scenario begins when case agents think an arrestee has usable information. Before the Sixth Amendment right to counsel attaches the case agent has the arrestee go "operational" as an uncharged informant. The operational period can last a few hours, a few days or even a few months.
The purpose for which a person is arrested does not alter the fact that when one is arrested a seizure subject to constitutional scrutiny has taken place. Cupp v. Murphy, 412 U.S. 291, 294, (1973); Davis v. Mississippi, 394 U.S. 721, 726-27, (1969); Terry v. Ohio, 392 U.S. 1, 10 (1968). The essential element is the physical restraint placed upon the person, not the purpose behind the restraint. Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971). An arresting officer's determination of probable cause justifies a brief period of detention to take the executive steps incident to arrest. Gerstein v. Pugh, 420 U.S. 103 (1975). For continued detention a magistrate must make a prompt determination of probable cause. County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).
The Sixth Amendment guarantees that in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335 (1963). The right to counsel is vital to the fair administration of our adversary system of criminal justice. Brewer v. Williams, 430 U.S. 387, 389 (1977); quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972). The Sixth Amendment right to counsel does not attach until the initiation of adversarial proceedings against the defendant. Michigan v. Jackso , 475 U.S. 625, 629 (196). The arraignment signals the initiation of adversary judicial proceedings and the attachment of the Sixth Amendment. United States v. Gouveia, 467 U.S. 180, 187 (1984).
The traditional remedy for a Rule 5 violation is the suppression of any confession obtained during any unnecessarily long period of pre-arraignment delay. Mallory v. United States, 354 U.S. 449 (1957); McNabb v. United States, supra. Suppression however cannot redress the constitutional violations that occur when the government disregards its obligations under Rule 5 nor will it deter the police from continued use of this tactic. The benefit the government obtains is not just evidence needed to convict the defendant; the bigger prize is the chance to obtain evidence needed to identify and convict the defendant's coconspirators.
The Supreme Court first used the label supervisory power in McNabb v. United States, 318 U.S. at 341, to describe its authority to formulate procedural rules in its administration of criminal justice. The supervisory power doctrine is premised on the inherent ability of the federal courts to formulate procedural rules ... to supervise the administration of justice. United States v. Larrazolo, 869 F.2d 1354, 1358 (9th Cir.1989). Case law supports dismissal of an indictment as an appropriate sanction for an egregious Rule 5 violation. See United States v. Osunde, 638 F.Supp 171. 176-77 (ND CA 1986). See also United States v. Jernigan, 582 F.2d 1211 (9th Cir.1978).
The government justifies this practice by asserting that it is giving the arrestee the opportunity to qualify for cooperation and a 5K1.1 downward departure motion at sentencing. Although delay in presenting an arrestee before a magistrate was rejected over half a century ago the disregard of Rule 5 in this type of situation usually goes unchallenged. The draconian sentences most drug defendants face is often reason enough. However, this practice is an attack on the role of defense counsel. Plea negotiations are a core defense function. United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir.1993).
The Rule 5 waiver scenario begins when case agents think an arrestee has usable information. Before the Sixth Amendment right to counsel attaches the case agent has the arrestee go "operational" as an uncharged informant. The operational period can last a few hours, a few days or even a few months.
The purpose for which a person is arrested does not alter the fact that when one is arrested a seizure subject to constitutional scrutiny has taken place. Cupp v. Murphy, 412 U.S. 291, 294, (1973); Davis v. Mississippi, 394 U.S. 721, 726-27, (1969); Terry v. Ohio, 392 U.S. 1, 10 (1968). The essential element is the physical restraint placed upon the person, not the purpose behind the restraint. Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971). An arresting officer's determination of probable cause justifies a brief period of detention to take the executive steps incident to arrest. Gerstein v. Pugh, 420 U.S. 103 (1975). For continued detention a magistrate must make a prompt determination of probable cause. County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).
The Sixth Amendment guarantees that in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335 (1963). The right to counsel is vital to the fair administration of our adversary system of criminal justice. Brewer v. Williams, 430 U.S. 387, 389 (1977); quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972). The Sixth Amendment right to counsel does not attach until the initiation of adversarial proceedings against the defendant. Michigan v. Jackso , 475 U.S. 625, 629 (196). The arraignment signals the initiation of adversary judicial proceedings and the attachment of the Sixth Amendment. United States v. Gouveia, 467 U.S. 180, 187 (1984).
The traditional remedy for a Rule 5 violation is the suppression of any confession obtained during any unnecessarily long period of pre-arraignment delay. Mallory v. United States, 354 U.S. 449 (1957); McNabb v. United States, supra. Suppression however cannot redress the constitutional violations that occur when the government disregards its obligations under Rule 5 nor will it deter the police from continued use of this tactic. The benefit the government obtains is not just evidence needed to convict the defendant; the bigger prize is the chance to obtain evidence needed to identify and convict the defendant's coconspirators.
The Supreme Court first used the label supervisory power in McNabb v. United States, 318 U.S. at 341, to describe its authority to formulate procedural rules in its administration of criminal justice. The supervisory power doctrine is premised on the inherent ability of the federal courts to formulate procedural rules ... to supervise the administration of justice. United States v. Larrazolo, 869 F.2d 1354, 1358 (9th Cir.1989). Case law supports dismissal of an indictment as an appropriate sanction for an egregious Rule 5 violation. See United States v. Osunde, 638 F.Supp 171. 176-77 (ND CA 1986). See also United States v. Jernigan, 582 F.2d 1211 (9th Cir.1978).
The government justifies this practice by asserting that it is giving the arrestee the opportunity to qualify for cooperation and a 5K1.1 downward departure motion at sentencing. Although delay in presenting an arrestee before a magistrate was rejected over half a century ago the disregard of Rule 5 in this type of situation usually goes unchallenged. The draconian sentences most drug defendants face is often reason enough. However, this practice is an attack on the role of defense counsel. Plea negotiations are a core defense function. United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir.1993).
Parent-Child Privilege And Evidence Rule 501
In this country we do not have what's called "parent-child privilege." In a legally privileged relationship, such as that between lawyer and client, psychiatrist and patient, husband and wife, or clergyperson and congregant, exchanges are considered confidential. With some exceptions, one party cannot be compelled to testify against the other. But the relationship between parent and child is not privileged.
The testimonial privilege of a witness “shall be governed by principles of common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Fed. R. Evid. 501. Federal courts have the discretion to develop rules on privileged communications based upon privileges extant in common law on a case-by-case basis. In Re Grand Jury Proceedings (Doe), 867 F.2d 562, 564-65 (9th Cir.) ( per curiam), cert. denied, 483 U.S. 906 (1989).
The Ninth Circuit does not recognize a “family privilege” which would encompass confidential communications between a child and parent. United States v. Penn, 647 F.2d 876, 885 (9th Cir.), (en banc), cert. denied, 449 U.S. 903 (1980). Six other circuits are in accord. See, Grand Jury Proceedings of John Doe v. United States, 842 F.2d 244, 247 (10th Cir. 1988); United States v. Ismail, 756 F.2d 1253, 1258 (6th Cir. 1985); United States v. Davies, 768 F.2d 893, 896-98 (7th Cir. 1984), cert. denied, 474 U.S. 1008 (1985); In Re Grand Jury Subpoena Dominic Santarelli, 740 F.2d 816, 817 (11th Cir. 1984) (per curiam); In Re Grand Jury Subpoena Issued to Lawrence Mathews, 714 F.2d 223, 224-25 (2d Cir. 1983); and United Stats v. Jones, 683 F.2d 817, 818-19 (4th Cir. 1982). Thus, the weight of the authority favors a finding against the establishment of such a privilege.
Nonetheless, in In Re Grand Jury Proceedings Unemancipated Minor Child, 949 F. Supp. 1487 (E.D. Washington, 1996), a seventeen year old child sought to quash a grand jury subpoena to avoid having to testify against his parents. The child argued that he would be psychologically and emotionally damaged if forced to testify against his parents. The district court found that although neither the constitution nor common law recognized the existence of a “parent-child” privilege, authority for such a privilege could be found under Evidence Rule 501.
However, the district court found that the child failed to establish the application of such a privilege in the case sub judice. Id. 1497. In denying the minor’s claim of “parent-child” privilege the district court observed that the child had failed to allege that the testimony the government sought would involve a "confidential" parent-child communication. The child had also failed to allege that the confidential communications sought did not involve communications made in furtherance of jointly undertaken criminal activity. Id.
Thus, to the extent that a “parent-child” privilege exists, as with all privileges, there are limits. First, the communication in question must have been between a parent and child. Second, the communication must have been uttered in confidence. Third, the communication must not have involved communications between a parent and child made in furtherance of jointly undertaken criminal activity.
The testimonial privilege of a witness “shall be governed by principles of common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Fed. R. Evid. 501. Federal courts have the discretion to develop rules on privileged communications based upon privileges extant in common law on a case-by-case basis. In Re Grand Jury Proceedings (Doe), 867 F.2d 562, 564-65 (9th Cir.) ( per curiam), cert. denied, 483 U.S. 906 (1989).
The Ninth Circuit does not recognize a “family privilege” which would encompass confidential communications between a child and parent. United States v. Penn, 647 F.2d 876, 885 (9th Cir.), (en banc), cert. denied, 449 U.S. 903 (1980). Six other circuits are in accord. See, Grand Jury Proceedings of John Doe v. United States, 842 F.2d 244, 247 (10th Cir. 1988); United States v. Ismail, 756 F.2d 1253, 1258 (6th Cir. 1985); United States v. Davies, 768 F.2d 893, 896-98 (7th Cir. 1984), cert. denied, 474 U.S. 1008 (1985); In Re Grand Jury Subpoena Dominic Santarelli, 740 F.2d 816, 817 (11th Cir. 1984) (per curiam); In Re Grand Jury Subpoena Issued to Lawrence Mathews, 714 F.2d 223, 224-25 (2d Cir. 1983); and United Stats v. Jones, 683 F.2d 817, 818-19 (4th Cir. 1982). Thus, the weight of the authority favors a finding against the establishment of such a privilege.
Nonetheless, in In Re Grand Jury Proceedings Unemancipated Minor Child, 949 F. Supp. 1487 (E.D. Washington, 1996), a seventeen year old child sought to quash a grand jury subpoena to avoid having to testify against his parents. The child argued that he would be psychologically and emotionally damaged if forced to testify against his parents. The district court found that although neither the constitution nor common law recognized the existence of a “parent-child” privilege, authority for such a privilege could be found under Evidence Rule 501.
However, the district court found that the child failed to establish the application of such a privilege in the case sub judice. Id. 1497. In denying the minor’s claim of “parent-child” privilege the district court observed that the child had failed to allege that the testimony the government sought would involve a "confidential" parent-child communication. The child had also failed to allege that the confidential communications sought did not involve communications made in furtherance of jointly undertaken criminal activity. Id.
Thus, to the extent that a “parent-child” privilege exists, as with all privileges, there are limits. First, the communication in question must have been between a parent and child. Second, the communication must have been uttered in confidence. Third, the communication must not have involved communications between a parent and child made in furtherance of jointly undertaken criminal activity.
Sunday, December 16, 2007
When A Resident Alien is Automatically A United States Citizen
Deportation is by far the most significant consequence to a resident alien convicted of a crime. Another less well known consequence of a federal criminal conviction is that the resident alien is not eligible to serve any part of his/her sentence in a prison camp, at a minimum security facility or at a halfway house.
U.S. Citizenship can be acquired in three ways: by birth in the United States, through naturalization after having first been a lawful permanent resident and derivatively through one or both parents.
8 USC § 1431. Children born outside the United States and residing permanently in the United States; conditions under which citizenship automatically acquired
(a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
(b) Subsection (a) of this section shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 1101(b)(1) of this title.
Although rare, sometimes unbeknownst to the resident alien, s/he is already a U.S. citizen. If the resident alien is derivatively a U.S. citizen through their parents pursuant to 8 USC § 1431, it doesn’t matter that the resident alien didn't act to formalize their U.S. citizenship as a minor or even that s/he was not aware of their derivative U.S. citizenship until after attaining their majority.
Whenever representing a resident alien in a criminal case a defense attorney is well advised to always consult with a lawyer versed in immigration law for advice on immigration related consequences of a criminal conviction.
U.S. Citizenship can be acquired in three ways: by birth in the United States, through naturalization after having first been a lawful permanent resident and derivatively through one or both parents.
8 USC § 1431. Children born outside the United States and residing permanently in the United States; conditions under which citizenship automatically acquired
(a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
(b) Subsection (a) of this section shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 1101(b)(1) of this title.
Although rare, sometimes unbeknownst to the resident alien, s/he is already a U.S. citizen. If the resident alien is derivatively a U.S. citizen through their parents pursuant to 8 USC § 1431, it doesn’t matter that the resident alien didn't act to formalize their U.S. citizenship as a minor or even that s/he was not aware of their derivative U.S. citizenship until after attaining their majority.
Whenever representing a resident alien in a criminal case a defense attorney is well advised to always consult with a lawyer versed in immigration law for advice on immigration related consequences of a criminal conviction.
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