The Zealous AdvocateAdvocate - f d · Many thanks to Joe Craven for his contribution to this column. Joe has kindly oﬀered to talk with anyone who has questions or a particular

AdvocateAdvocateNewsletter for the Defense

Summer 2006

The Zealous

The Defender’s Message ducating our District’s panel attorneys has been a priority of mine since becoming Federal Public Defender six years ago. We who practice federal criminal defense on a daily basis have considerable institutional knowledge which should be shared with panel attorneys. The CJA panel attorney seminars we present each year are extremely important in this education process. We had 61 attorneys from our District attend our April 28, 2006 panel attorney seminar in Raleigh, and my thanks go out to all who attended and made this a successful event. Many thanks also to all of our presenters, especially United States District Judge James C. Dever III and United States Magistrate Judge James E. Gates.

We have begun work on our annual two-day fall seminar which will be held this year on Octo-ber 12 and 13, 2006 at the Blockade Runner, Wrights- ville Beach, North Caro-lina. Please mark this date on your calendars and plan to register early. Our fall seminar has gained such a reputation that we have attorneys attending from all three Districts in North Carolina, South Carolina, and West Virginia. Our enrollment

will cap early; therefore, Eastern District panel attor-neys ought to respond to our announcement as soon as Donna Stiles sends it.

Besides these seminars, I encourage all panel attorneys to call us whenever you have a question or concern about a particular federal criminal case you are working on. The education process is reciprocal because you may have come across an issue we have not encoun-tered. We want to help make you better federal crimi-nal defense practitioners.

We hope that this Newsletter again provides a good communication tool for you. We have new Editors for our Newsletter, and I encourage you to contact Vidalia Patterson and Laura Sutton, attorneys with our office, or me, with your input.

Thomas P. McNamaraFederal Public Defender

The Zealous Advocate

TABLE OF CONTENTSFROM THE DEFENDERThe Defender’s Message 1Panel Attorney Reminder 2PRACTICE TIPSWorking with Interpreters 2Disclosing PSR Information 3From Recent Seminars 4SPOTLIGHT ON THEFourth Circuit: Highlights and Update 5Supreme Court: Highlight and Update 8LOCAL NEWSEastern District, FPD and Panel 10

Office of the Federal Public Defender, Eastern District of North Carolina150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236

Prof. William Woodruff on Impeachment by Prior Convictions

Senior Appellate Attorney, Alan DuBois on Sentencing Guidelines Update, FPD Spring Seminar 2006


Office of the Federal Public Defender, Eastern District of North Carolina150 Fayetteville Street Mall, Ste 450, Raleigh, NC 27615 (919) 856-4236 22

Important Panel Attorney Important Panel Attorney ReminderReminder

f you expect your legal fee will exceed the statutory maximum ($7000 for a felony case), you must consult with the assigned judge as the case progresses. Please see my memorandum to all CJA Panel Attorneys dated July 22, 2005 and emailed again to all panel attorneys on June 5, 2006. You must comply with this memoran-dum. Should you have any questions about panel attorney fees, please contact Donna Stiles at 919-857-9085. - Tom McNamara, Federal Public Defender


Working with Interpreters t is a daunting task to walk into a meeting with a client facing a language barrier. Thankfully, an inter-preter can interpret our English language into what-ever target language our clients may speak in order to facilitate a conversation.

However, qualified interpreters are few and far between within North Carolina. For example, there was only a 21% passage rate for the 2001 North Carolina State Court Interpreter Exam. Therefore, it is important to make sure that the interpreter that is used is certified (see http://www.nccourts.org/Citizens/CPrograms/Foreign/Directory.asp#links).

The following guidelines may be helpful for gaining the most from an interpreter:

Interpreted Proceedings

1. Always speak in first person (i.e. avoid saying “tell him” or “tell her,” simply maintain a conversation as usual between yourself and your client).2. Do not raise your voice or use exaggerated hand gestures.3. Avoid side conversations with the interpreter.4. Avoid asking the interpreter to perform duties that

are outside the scope of interpreting.5. Do not expect the interpreter to be able to translate documents.6. Do not expect the translator to be able to translate documents on the spot.7. Watch your rate of speed during the proceedings when they are interpreted simultaneously.8. Do not allow more than one person to speak at one time.9. Avoid double negatives and complex sentence struc-tures.10. Avoid asking the interpreter for his or her opinion.11. Avoid cultural phrases (i.e. “yada, yada, yada”).12. Avoid acronyms and jargon.13. Do not let the interpreter’s presence change your role.

Preparing the Interpreter

1. Ask if the interpreter knows the non-English speaker or has any interest in the outcome of the case.2. Give the background information about the client (i.e. where client is from, how long client has been in the United States, if client speaks some English, education, speech/hearing impediments, etc.)3. Brief the interpreter on the context of the case, men-tioning any specialized terminology that may arise. Pro-vide or be prepared to provide the interpreter with names, addresses, amounts, nicknames, and other specific infor-mation about the case.4. Provide copies of any documents that will be referred to during the case.5. Inform the interpreter of any emotional or mental problems that the client may have.6. Establish times that the interpreter’s services will be needed (i.e. estimated length of stay).

Preparing Your Client

1. Ask if the client knows the interpreter or has any knowledge about the interpreter.2. Explain to your client the role of the interpreter (i.e. only there to interpret, not to give advice, and will inter-pret everything that is said).3. Instruct your client to speak directly to you, to the judge, and not to the interpreter.

Justice is a certain rectitude of mind whereby a man does what he ought to do in circumstances confronting him.- Saint Thomas Aquinas




4. During a hearing, instruct your client to speak loudly, so that everyone can hear him or her.5. Instruct your client to wait until the interpreter is finished interpreting before answering a question.6. Instruct your client to listen to the interpretation even if the client believes that he or she may under-stand the English question or comment.7. Provide copies of translated materials whenever possible.

In the end, it all comes down to having a qualified interpreter and preparing that interpreter as well as your client. For more detailed information on work-ing with interpreters, please contact Laura Sutton at (252) 830-2620 or [email protected], or Javier Y. Castillo at (252) 347-5427 or [email protected].

Thanks to Javier Y. Castillo, Jr., President of Castillo Language Services, Inc. for the information contained in this article.

Disclosing Information Disclosing Information from Your Client’s PSRfrom Your Client’s PSR

s discussed at this Spring’s Criminal Practice Seminar, there are times when you might feel that disclosing information from your client’s Pre-Sentence Report (PSR) is necessary for the preparation of the case. In our office, this most recently arose when a psychologist who was evaluating a client requested to see a copy of the PSR. In the Eastern District of North Carolina, the disclosure and use of such materials is governed by Local Rules 32.1 and 32.2. When asked about what tips to give when it comes to disclosing a PSR, Joseph Craven, who currently sits on the Local Rules Subcommittee studying this issue, responded as follows:

The issue of disclosing PSRs and Local Rules 32.1 and 32.2 has not yet been finally resolved. One of

the things we (the Local Rules Committee and the Criminal Rules Subcommittee therein) are awaiting is some feedback from the Administrative Office of the US Courts' General Counsel. Jim Johnston, of the EDNC Probation Office, has sought some guidance from their general counsel, but has not received a response.

That being said, what do we do now? Or what advice or guidance can we give to practicing lawyers? Good question, and the answer is still somewhat gray, yet nonetheless moves us downstream a little bit. As you know, the issue of disclosing PSRs has come up most recently in the context of the defense attorney want-ing to share the PSR with an expert (e.g. psychologist or psychiatrist). Chief Judge Flanagan's April 7, 2006 Order in United States v. Marcus Ramon Brown, 7:05-CR-90-FL states that the Court authorizes the release of pertinent information contained in the offender characteristics section of the report to aid the expert witness, and that information may be provided to an expert by counsel orally or in written summary form.

To the extent that we can rely on this case as prec-edent, I think defense lawyers can disclose portions of the PSR to experts orally or in summary form, as may be necessary for the expert's analysis. The main prohibition for defense attorneys is disclosing the entire report to a third party. The PSR, of course, is a sealed document prepared for the Court. The report, even though it is all about the client, is not prepared for us or the prosecution. The PSR is prepared for the Court, and is maintained by the Court and the Proba-tion Office. The report is generated with the idea of it remaining confidential. For example, when family members or other third parties are interviewed as sources of information for the report, they are told that what they say will be held in confidence. Like-wise, there may be information in a PSR about people who cooperated or provided information on the client-defendant. The confidentiality also protects our client's general information. In short, the Court and the Probation Office want to protect the report and the confidential information within. Disclosure of




large portions of the PSR should be pre-approved by the Court upon motion of the defendant.

Many thanks to Joe Craven for his contribution to this column. Joe has kindly offered to talk with anyone who has questions or a particular issue relating to these rules. He can be reached at (919) 856-4236 or email him at [email protected]. If you have a practice tip to share or know of someone who does, contact the newsletter editors, Vidalia Patterson or Laura Sutton (contact information herein). Please include a brief description of the tip.

Extremism in the defense of liberty is no vice. ... Moderation in the pursuit of justice is no virtue. – Barry Morris Goldwater

Without justice courage is weak. - Benjamin Franklin

From Recent SeminarsFrom Recent SeminarsWebsite Recommendations

To keep updated regularly on the Fourth Circuit we recommend:• Website: www.ca.uscourts.govRegister to receive daily opinions.• Blog: circuit4.blogspot.comFor criminal sentencing guidelines and capital sentencing, we recommend:• Sentencing Law & Policy (Berman’s Blog): sentencing.typepad.comFor information on Gangs, we recommend:• Interpreting Gang Tattoos: www.highbeam.com/library/docFree.asp?docid=1Y1:92883247&key=0C177A56741D156F13030618046906167D077C0D7F70720C7609• Hispanic Gangs:www.ncgccd.org/pdfs/pubs/HispanicGangs.pdfFor an article contrasting Congress's reaction to the meth epidemic and its response to crack, we recom-mend:• www.c-span.org/pdf/CQ_060506.doc

Thanks to Alan DuBois, Stephen Gordon, and Melanie Fisher for the information contained within this Practi-cal Tip.

Verdict Sheets

At our Spring, 2006 Federal Criminal Practice Seminar, Judge Dever gave us a reminder worth mentioning concerning the verdict sheet. During a closing argu-ment, show your jury the verdict sheet, and teach them what you want them to do with it in their deliberations while making your closing argument.

Thanks to Judge Dever for this Practical Tip.

Sentencing Guideline Tips

1. Before you attempt to calculate a guideline or defend a guideline, read each guideline and the application note in its entirety every time.2. When the government cites case law to support the application of a guideline, make sure the case stands for the proposition that the guideline must be applied or that the particular guideline must be applied in all such cases. If it does not, you may argue that an alternative application of the guideline that benefits your client is also within the court’s discretion.3. Make sure to check the Sentencing Commission statistics on their website–the statistics may be in contradiction to the policy set forth and you can make an argument for this at sentencing.4. Remember to review § 1B1.3 on relevant conduct for every case.5. Always get the original, certified criminal record for each charge to determine criminal history and predicate felony convictions.6. Remember to freeze all of the client’s state charges–the date of conviction is what counts.7. For assistance with grouping, see Federal Sentencing Guidelines Handbook, Roger Haines (Thomson West, 2006).

Thanks to Alan DuBois and Anne Blanchard for the information contained within this Practical Tip.




United States Probation Sentencing Guidelines Seminar

The U.S. Probation Office recently held its annual Sentencing Guidelines Training Seminar on May 5, 2006 at the Terry Sanford Federal Building in Raleigh. The seminar covered numerous topics, including: guideline updates, guideline applications, relevant conduct, the fifteen adjustments, criminal history, plea agreements, sentencing procedures, local rules, departures, violations of probation and super-vised release. The seminar is held annually, near the first of June. If you are interested in attending the next seminar, please contact Senior United States Probation Officer John A. Wasco at [email protected] for more information.

Thanks to John A. Wasco for the information contained in this Practical Tip.

HIGHLIGHTS

From the Spring 2006 Criminal Practice Seminar, as summarized by Diana Pereira and Vidalia Patterson. Please contact Vidalia Patterson to request a complete copy of the Fourth Circuit and Supreme Court Update distrib-uted at the Spring Seminar.

United States v. Green, 436 F.3d 449 (4th Cir. 2006) (Niemeyer, J.) (D. Md.) Sentencing Guidelines presumptively reasonable- Sentences imposed with the Sentencing Guidelines range are presumptively reasonable. Where District Court declined to sentence Defendant as a career criminal, and applied a sentence below the guidelines range, it erred by failing to correctly apply U.S.S.G. § 4B1.1.

United States v. Johnson, 445 F.3d.339 (4th Cir. 2006) (Wilkinson, J.) (E.D.N.C.) Sentencing Guidelines presumptively reasonable- The advisory Guidelines

Spotlight On The...Spotlight On The...

are presumptively reasonable because they are the product of over twenty years of legislative and admin-istrative sentencing policy, they embody many of Congress’s objectives in 18 U.S.C. § 3553(a), and they foster an environment of judicial fact-finding “that invites defendants to raise objections and requires courts to resolve them.” A sentencing court need not make individual findings on each of the § 3553(a) factors; it is sufficient for a court to state that it has considered all of the factors.

United States v. Eura, 440 F.3d 625 (4th Cir. 2006) (Hamilton, J.) (E.D. Va.) Crack-powder disparity- A sentencing court may not vary from the 100:1 crack-powder ratio legislated by congress and substitute its own ratio. To establish reasonableness of a sentence, a District Court need not explicitly discuss every statu-tory factor on the record; rather the record must reflect that the court adequately and properly considered the statutory sentencing factors under 18 U.S.C. § 3553(a).

United States v. Milam, 443 F.3d 382 (4th Cir. 2006) (Niemeyer, J.) (S.D.W.Va.) USSG § 6A1.2(b) - Presentence Report- Facts that increase a defendant's maximum sentence are essentially elements of the offense, and a defendant cannot waive Sixth Amend-ment rights by failing to object to those facts in the PSR. Rule 32(i)(3)(A), USSG § 6A1.2(b), and prior Circuit law (see United States v. Terry, 916 F.2d 157, 162 [4th Cir. 1990]) violated prohibitions on burden shifting by forcing the defendant to disprove allega-tions in the PSR.

UPDATE: APRIL-JUNE 2006

Many thanks to our summer intern, Lauren Brennan, for her assistance in summarizing cases for the Fourth Circuit Update.

Fourth Amendment

United States v. McQueen, 445 F.3d 757 (4th Cir. 2006) ( J. Luttig) (E.D. Va) 4th Amendment Reasonable Suspicion- Defendant was convicted by a jury of being a felon in possession of a firearm. Based on a

Fourth CircuitFourth Circuit



a reliable informant call about a suspicious vehicle, police approached Defendant’s running vehicle parked in a lot, wherein Defendant appeared to be asleep. He was asked to exit his vehicle and consent to a search, after which a handgun was found in the vehicle.. The District Court did not err by failing to suppress the handgun. Based on the circumstances surrounding the search, the officers had reasonable suspicion for a Terry stop.

United States v. Currence, 446 F.3d 554 (4th Cir. 2006) ( J. Shedd) (E.D. Va) 4th Amendment; Search Inci-dent to Arrest- Defendant was under indictment for possession of crack cocaine with intent to distribute and possession of cocaine with intent to distribute in a school zone. Government appealed a court order suppressing The search of a bicycle handlebar was permissible as a search incident to a lawful arrest as the defendant was on the bicycle when law enforcement officers first encountered him and it was within the defendant’s immediate control.

Fifth and Sixth Amendments

United States v. Smith, 2006 WL 1604123 (4th Cir. 2006) ( J. King) (W.D.N.C.) Cross Examination Rights- Defendant was convicted by a jury of con-spiracy to distribute crack and possession with intent to distribute crack. Although the District Court erred by preventing the defendant from cross examining prosecution witnesses about the destruction of physical evidence (the crack), the error was harmless due to the strength of the prosecution’s case.

Federal Rules of Evidence

United States v. Williams, 445 F.3d 724 (4th Cir. 2006) ( J. Traxler) (E.D. Va) Fed. R. Evid. 403- Defendant was convicted by a jury of being a felon in possession of a firearm and ammunition. The District Court did not err in permitting circumstantial evidence connect-ing Defendant to an uncharged murder. The probative value of this evidence was not substantially outweighed by danger of unfair prejudice. Evidence of a defendant’s silence in response to a question about whether he committed a murder was not an adoptive

admission that could be introduced as an admission of a party opponent; however it could be introduced if not offered to prove the truth of the matter asserted.

United States v. Smith, 2006 WL 1604123 (4th Cir. 2006) ( J. King) (W.D.N.C.) Fed. R. Evid. 607 & 611(b)- Defendant was convicted by a jury of con-spiracy to distribute crack and possession with intent to distribute crack. The rules of evidence authorize the cross-examination of witnesses on matters affecting their “credibility.” Thus, the District Court erred by preventing the defendant from cross-examining pros-ecution witnesses about the destruction of physical evidence (the crack).

Plea Agreements

United States v. Hartwell, 2006 WL 1412393 (4th Cir. 2006) ( J. Niemeyer) (E.D. Va.) Rule 35(b) Motion- Defendant pled guilty to aiding and abetting murder for hire resulting in death. Defendant negotiated a plea agreement in which he agreed to assist the government in future and ongoing investigations. In exchange, the government agreed to not seek the death penalty and reserved the option to file a 35(b) motion. Govern-ment filed the 35(b) motion to toll the one year statute of limitations, but stated Hartwell was in the midst of cooperating. There were some problems with Hartwell’s cooperation, and when the court ordered a memorandum in support of the motion, the govern-ment recommended his sentence be reduced from life to 38 years. Hartwell filed a motion for an evidentiary hearing alleging the government breached the plea agreement and attached an affidavit. The government then filed a motion to withdraw its Rule 35(b) motion, stating accusations in Hartwell’s affidavit were false. Hartwell admitted the statements in his affidavit were false; the court heard arguments on the government’s motion to withdraw and granted it. The Appeals Court held the language in the plea agreement giving the government “sole discretion” to file a Rule 35(b) motion also includes the discretion to withdraw it, absent bad faith or improper motives.

To no man will we sell, or deny, or delay, right or justice.[Lat., Nulli vendemus, nulli negabimus aut differemus, rectum au justitiam.] - Magna Carta, clause 40



Disclosing Information from Your Client’s PSR

Sentencing

United States v. Williams, 444 F.3d 250 (4th Cir. 2006) ( J. Hamilton) (D. S.C.) Booker- Defendant pled guilty to conspiracy to possess counterfeit securities. Based on a number of factors, including loss amount, the Guideline sentencing range was 77 to 96 month. Although the statutory maximum was 60 months, the District Court, based on defendant’s Blakely objec-tions, imposed a 36 month statutory sentence. Both parties appealed and the case was remanded for resentencing. At resentencing, the District Court imposed the statutory maximum term of 60 months. The Fourth Circuit found that applying the remedial post-Booker “advisory” Guideline scheme to persons whose conduct took place prior to Booker does not violate due process or ex post facto doctrines. More-over, a sentence that exceeds an original pre-Booker sentence is not presumptively vindictive. Finally, the court held that the 60 months sentence was reason-able.

United States v. Davenport, 445 F.3d 366 (4th Cir. 2006) ( J. Wilkins) (D. Md.) Reasonableness- Defen-dant pled guilty to fraudulent use of an access device. At sentencing, the PSR calculated the advisory Guidelines range as 30-37 months; however, based on such factors as Defendant’s role in the offense, the court sentenced him to 120 months’ imprisonment. The requirement that a District Court must give a Defendant notice of its intent to impose an above-Guidelines sentence survives U.S. v. Booker. Where the advisory sentencing range is calculated at 30-37 months, the District Court ‘s imposing a 120 months sentence is too great a sentence.

United States v. Montes-Pineda, 445 F.3d 375 (4th Cir. 2006) ( J. Motz) (E.D. Va) Reasonableness- Defen-dant pled guilty to unlawful reentry after deportation following aggravated felony conviction and was sentenced to 46 months’ imprisonment, a term within a properly calculated advisory Guidelines range. The Fourth Circuit found that it has jurisdiction to review a within-Guidelines range for reasonableness and that Defendant’s sentence was reasonable.

United States v. McQueen, 445 F.3d 757 (4th Cir. 2006) ( J. Luttig) (E.D. Va) Armed Career Criminal- The ACC “interstate nexus” jury instruction given at defendant’s trial fairly stated the controlling law in U.S. v. Gallimore that the nexus is proven by showing the gun was manufactured outside the state in which it was possessed. Because the Defendant qualified for an ACC enhancement, he should have been sentenced as such.

United States v. Revels, 2006 wl 1134148 (Wilksinson) (E.D.N.C.) USSG § 2K2.1(a)(2); Pre-Sentence Report- Defendant robbed a convenience store at gunpoint and pled guilty to being a felon in possession of a firearm. He was sentenced pre-Booker and his Guideline calculation included a four-level increase pursuant to USSG § 2K2.1(a)(2) for possessing the firearm in connection with another felony. He was sentenced at 120 months, which was both the top of the Guideline range and the statutory maximum penalty. The sentencing court announced an alternate sentence of 120 months in accordance with U.S. v. Hammoud. Under U.S. v. Milam, defendant’s failure to object to facts that supported the enhancement was not a Booker admission and his maximum guideline sentence should have been 115 months. However, because the district court properly announced an alternate sentence of 120 months, any Sixth Amend-ment error was harmless.

United States v. Allen, 446 F.3d 522 (4th Cir. 2006) ( J. King) (S.D. W.Va.) Career Offender; Adult Convictions;§ 4B1.2- Defendant pled guilty to conspiracy to distribute crack cocaine and was sentenced as a career offender. Defendant objected to the career offender enhancement conviction arguing that, because his three prior drug offenses were com-mitted when he was 17 years old, they were not adult convictions and could not serve as predicate felonies. Because Defendant was convicted in N.C. Superior Court, which does not handle juvenile convictions, he must have been convicted as an adult. Moreover, the qualification for career offender status is based on the maximum sentence that could be imposed, and Defendant’s prior convictions had maximum sentences



Supreme CourtSupreme Court

exceeded one year. Thus, they are felonies under USSG §4B1.2. Finally, any error in the District Court’s allowing the government to proffer what the probation would testify to regarding the prior convic-tions did not affect Defendant’s substantial rights, and no remand was necessary.

United States v. Shatley, 448 F.3d 264 (4th Cir. 2006) ( J. Niemeyer) (W.D.N.C.) Booker- Defendant pled guilty to buying votes and conspiracy to buy votes in a N.C. general election. His pre-Booker sentence was enhanced for his alleged leadership in the conspiracy and obstructing justice. At sentencing he received 33 months with an identical alternate sentenced announced. Although the mandatory sentence violated Booker, the alternate sentence did not, as the sentencing court “presciently” followed the procedure for post-Booker sentencing advanced in Hughes when it announced the alternate sentence.

United States v. Allen, 2006 WL 1633445 (4th Cir. 2006) ( J. Hamilton) (D. Md.) § 3553(e) Motion- Defendant pled guilty of being a felon in possession of a firearm. As a part of the plea agreement, the govern-ment agreed to make a motion pursuant to § 5K1.1 for a one level downward adjustment and Defendant reserved the right to argue for further downward departures. The mandatory minimum for the offense was fifteen years; the district court sentenced Allen to 63 months. The Court of Appeals held that, absent an explicit § 3553(e) motion by the government, the District Court cannot downwardly depart below the statutory minimum.

HIGHLIGHT

From the Spring 2006 Criminal Practice Seminar, as summarized by Diana Pereira and Vidalia Patterson. Please contact Vidalia Patterson to request a complete copy of the Fourth Circuit and Supreme Court Update distrib-uted at the Spring Seminar.

Georgia v. Randolph, 164 L. Ed. 2d 208; 2006 U.S. LEXIS 2498 (March 22, 2006) Fourth Amendment; Consent to Search- It is unconstitutional for police, without a warrant, to search a home, if two occupants

are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count. The Court held if the individual who may be at legal risk of prosecution and, thus, does not want the police to enter “is in fact at the door and objects,” the other occupant’s consent to search will not suffice. But, if the objector is nearby, and not at the door, an objection by him will not block the search. The Court stressed, though, that police may not take a potentially objecting tenant away from the home in order to be able to make the search with the other occupant’s consent.

UPDATE: APRIL- JUNE 2006

Many thanks to our summer intern, Lauren Brennan, for her assistance in summarizing cases for the Supreme Court Update.

“Plan B” Has a Leg to Stand On

The trial strategy affectionately known as “Plan B” by the attorneys on the TV show “The Practice” received a real-life nod from the United States Supreme Court in May 2006 in Holmes v. South Carolina, 126 S.Ct. 1727 (2006). Holmes was accused, convicted and sentenced to death for murder, first-degree criminal sexual assault, first-degree burglary, and robbery. At trial, the judge refused to allow counsel to introduce evidence of a possible third party’s guilt by applying an evidentiary rule established by the South Carolina Supreme Court in State v. Gay. The rule stated that where there is strong evidence of a defendant’s guilt, especially strong forensic evidence, proffered evidence about a third party’s alleged guilt may (or perhaps must) be excluded. State v. Gay, 343 S.C. 543, 545 (2001). Upon review, the United States Supreme Court found that the South Carolina rule overstepped its bounds and violated a criminal defendant’s consti-tutional rights. Holmes at 1728 (internal quotes and citations omitted). They held the rule’s arbitrary nature and structure created a burden disproportionate to the purpose it was designed to serve. Id. at 1728-29. The Court was careful to uphold the long-standing rule that evidence may be excluded if its probative value is outweighed by factors such as unfair prejudice,




confusion of the issues, or potential to mislead the jury. Despite this, the Supreme Court’s ruling helps to ensure that criminal defendants “have a meaningful opportunity to present a complete defense” by continu-ing to allow the presentation of legitimate evidence of third party guilt. Id. at 1729 (citing Crane v. Kentucky, 476 U.S. 638, 690 (1986)).

Warrantless Searches Held Reasonable in “Backyard Brawl” Case

The United States Supreme Court ruled in Brigham City, Utah v. Stuart, that in exigent circumstances or entry into a dwelling “is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objec-tively, justify [the] action.’” Brigham City, Utah v. Charles W. Stuart, 126 S.Ct. 1943, 1948 (2006). In Brigham, officers were responding to a neighborhood disturbance. When they arrived at the residence, no one would come to the door. The officers went around to the back of the house, found two juveniles drinking, and saw an altercation ensue inside the house. Officers knocked on the door, but were not heard over the noise, so they entered and announced their presence. Officers arrested the respondents and charged them with contributing to the delinquency of a minor, disorderly conduct, and intoxication. At trial, defense counsel moved to suppress all evidence collected after the officers entered the home. The trial court granted the motion and the Utah Court of Appeals and Utah Supreme Court affirmed. On appeal to the U.S. Supreme Court, the defendant argued the evidence should be suppressed because (1), “the officers were more interested in making arrests than quelling violence,” and (2), “the conduct occurring inside the house was not serious enough to justify the officers’ intrusion into the home.” Id. at 1948. The Supreme Court did not find either argument to be persuasive, and overruled the lower court decisions, holding that the officers subjective intentions were irrelevant, so long as the circumstances objectively justified entry. In this case, the nature of the incident did objectively justify entry.

Prospective Waiver of the Speedy Trial Act Not Allowed

In Zedner v. United States, the U. S. Supreme Court tackled the intricacies of the 1974 Speedy Trial Act. Zedner v. United States, 126 S.Ct. 1976 (2006). First, the Court was asked to determine if a defendant has the right to prospectively waive the application of the Act. Next, they addressed whether a prospective waiver of the Act estopps a defendant from later challenging the lack of an “ends of justice finding.” Defendant was indicted in 1996, and after signing a “waiver for all time” of the Speedy Trial Act, a series of continuances were filed including one in January of 1997 which continued the case for 91 days–21 days longer than allowed for by the Speedy Trial Act. After four years, and a series of additional continuances, the defendant filed a motion to dismiss based on the 1997, 91-day continuance. The district court held the prospective waiver was effective and therefore denied the motion. On appeal, the Second Circuit Court of Appeals held that a prospective waiver may be ineffec-tive; however, they affirmed the district court’s deci-sion. The court reasoned there was an exception to the Act where the defendant causes or contributes to the delay, and furthermore, the 91-day delay could be properly excluded under the Act based on the “ends of justice” exclusionary rule. The U. S. Supreme Court disagreed; holding that a defendant may not prospec-tively waive the Speedy Trial Act and that the defen-dant was not estopped from challenging the courts grant of a 91-day delay. They further held that regard-less of the court’s belief that the defendant had waived his rights, they failed to make the required findings under the “ends of justice” exception and therefore the 91 days could not be properly excluded under the Act.

If we do not maintain justice, justice will not maintain us.– Francis Bacon




Panel NewsPanel News

he FPD congratulates the Honorable James E. Gates on his appointment as United States Magis-trate Judge. Judge Gates came to bench in January 2006 and holds court in Raleigh. We extend a warm welcome on behalf of this office and the panel attor-neys from this district.

As most folks are aware, electronic filing through CM/ECF became mandatory on June 1, 2006. If you have not yet signed up for the training course, please check out the schedule and registration information at www.nced.uscourts.gov/cmecf/cal.html. Make sure that you know your judge’s filing preferences by checking the Judge's Practice Preference Links posted on individual Judge pages.

FPD Office News

n the past year, the office has seen the addition of several new attorneys, paralegals, and staff. We are pleased to welcome to the Raleigh office, Diana (Cap) Pereira, Jennifer Wellman, and Vidalia Patter-son. The additions to our Greenville office include Laura Sutton and Stephanie Britt. Finally, we welcome Ormond Harriott, who staffs our new Wilmington office.

The FPD would like to acknowledge two of our AFPDs who hold faculty positions with defender training programs. Joseph Ross recently served as a professor for the National Defense Training Project in Dayton, Ohio where he taught trial advocacy. Both Joseph Ross and Sherri Alspaugh serve as faculty for the North Carolina Defense Trial School sponsored by the North Carolina Office of Indigent Defense Services and the UNC School of Government in Chapel Hill, North Carolina.

Congratulations to:• Lindsay and Joseph Craven on the birth of Joseph Harris Craven, Jr. born May 31, 2006.• Lisa and Tony Martin on the birth of Stella Cam-eron Martin born on June 13, 2006.

• Robert and Diana (Cap) Pereira on their June 17 wedding.

We bid a fond farewell to:• Larry Adams, an investigator, who retired in November 2005 after more than 10 years of service with the Federal Public Defender’s Office.• Idalia Scott, administrator of our Fayetteville Office, who retired at the end of June 2006 after more than 16 years with the Federal Public Defender’s Office.

New Panel Attorneys

e are pleased to welcome the following attor-neys who are training to become panel attorneys: in Raleigh, Dewey Powell Brinkley, Walter A. Schmidlin, and Robert Marion Tatum; and in Greenville, John Warner Wells, Jr. The following are new panel attor-neys: in Durham, C. Connor Crook; in Raleigh, Mary Jude Darrow, William Dial Delahoyde, Scott L. Wilkinson; in Morehead City, James M. Walen; and in New Bern, Thomas Reston Wilson.

Fall Federal Criminal Practice Seminar

onna Stiles, our Panel Administrator, will be sending out information on our up-coming fall Federal Criminal Practice Seminar. The seminar will be held on October 12 and 13, 2006 at the Blockade Runner in Wrightsville Beach, North Carolina. Attendance for this seminar is capped at 125, so please mark these dates on your calendars and plan to register early!

For more information on our practice seminars or panel attorney resources, feel free to contact Donna Stiles at 919-856-4236 or [email protected].

All the great things are simple, and many can be expressed in a single word: freedom, justice, honor, duty, mercy, hope. – Winston Churchill

Local News Eastern District News

Panel Attorneys, Mary Jude Darrow, Myron Hill & Joshua Willey



National CJA Panel Attorney Conference yron T. Hill, Jr., the CJA Panel Attorney Repre-sentative for the Eastern District recently attended the Eleventh National Panel Attorney Conference in San Diego, California in March, 2006 with CJA panel representatives from every federal district in the United States. Several highlights of the conference are detailed as follows.

Effective January 1, 2006, the hourly payment to Criminal Justice Panel Attorneys increased. Specifi-cally, the in-court and out-of-court rates were raised from $90 to $92 an hour and federal death penalty hourly rates were raised from $160 to $163. It was noted that during a budget shortfall, payments for CJA attorneys are suspended. Additionally, there is a practice among some judges of cutting the voucher requests of attorneys or delaying the ruling on payment of requests until after the budget shortfall. The request of the CJA panel is for judges to continue paying vouchers and allow the administration to suspend payment until funds are available, which is the policy in most districts throughout the United States.

The conference discussed the cost of pre-trial deten-tion, which is approximately $1.6 billion per year. The argument for reducing pre-trial detention was that magistrates could find alternative ways in which defendants could be out on pre-trial custody. The counter-argument was the increased spending on pre-trial costs such as monitoring defendants on house arrest.

The Judicial Conference of the United States, upon recommendation of its Defender Services Committee, has approved a pilot project that will fund three circuit positions for up to three years to support the case-budgeting process. The positions are designed to provide objective, case-budgeting advice to judges and to support the case management process. This project will be vital in “mega” cases such as non-death penalty cases where fees, including experts exceed $30,000 or in death penalty cases where fees and expenses exceed $100,000. For example, in California, case budgeting

of “mega” cases has taken place over the past eight years, resulting in substantial savings because of sharing resources such as paralegals and private investigators.

The most expensive cases are those in which the death penalty is sought by the United States Attorney’s Office. The cost of death penalty litigation is on the rise, as a significant amount of U.S. Attorneys are being overruled when they do not seek the death penalty and are subsequently ordered to do so. One method to reduce the cost of these cases is for judges to provide more funds within 45 days of the initial appointment to the death penalty case in order to push the mitigation process forward so that the Attorney General may not seek the death penalty upon review of detailed mitigation concerning the case, victim, and defendant. Another effective tool in preventing a death penalty trial is, if appropriate, to have the defendant sign a written document indicat-ing his willingness to plead to life at the pre-authorization stage.

In “mega” cases, there is also an issue with U.S. Attor-neys providing multiple pages of duplicate discovery, which increases billing and the volumes of paperwork. The recommendation at the conference was for CJA panel attorneys to file motions with their local judges to cut down on this type of duplicate discovery.

There have also been issues in several districts with regard to attorneys over-billing clients. For example, if an attorney visits four clients at a jail in an adjacent city, the attorney should only bill one client for that mileage, but each client should be billed individually for the actual time spent with the attorney.

Finally, there was a question concerning the continuity of counsel on appeal. The circuits are split with regard to appointment of appellate counsel–the question being who should decide who takes the case on appeal. One argument is that the trial attorney should take the case, because he or she had the knowledge of the case and a new appellate attorney would expend additional time and money reading transcripts in order to prepare the appeal. The counter argument is that the trial attorney must still read transcripts and




prepare the appeal. Further, there is no proof that there is an increased cost for an appellate attorney to take the case from trial counsel. Moreover, it may also be noted that it is difficult for a trial attorney to attack himself or herself, it is difficult for a trial attorney to be an expert at both the trial and appellate level, and an appellate attorney may be able to see issues more clearly.

Thanks to Myron T. Hill, Jr. for the information contained within this article of the Panel News.


Office of the Federal Public Defenderfor the Eastern District of North Carolina

150 Fayetteville Street MallSuite 450

Raleigh, NC 27615Tel: (919) 856-4236Fax: (919) 856-4477

Thomas P. McNamara, Federal Public DefenderDonna Stiles, Panel Administrator, [email protected]

Vidalia Patterson, Editor, [email protected] Sutton, Editor, [email protected] Washington, Layout and Design

Roger Burbage, Photography

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The Zealous AdvocateAdvocate - f d · Many thanks to Joe Craven for his contribution to this column. Joe has kindly oﬀered to talk with anyone who has questions or a particular