Federal Defense Attorney John Teakell

Now that the United States Supreme Court is back in full swing, a number of noteworthy petitions for certiorari have been filed with the court. The cases involve several federal law issues which include

Flores-Figueroa v. United States - The petition for certiorari asks the Court to determine what exactly the mens rea requirement of the federal “aggravated identity theft” statute, 18 U.S.C. § 1028A(a)(1). The question presented is whether the “knowingly” requirement extends through the entire clause, requiring the Government to show that the defendant knew that the identification he used belonged to another person.

Marcrum v. Roper – The petition for certiorari asks the Court to determine whether, in assessing Sixth Amendment ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984), errors by trial counsel must be considered individually or cumulatively.

Brunson v. Harris – The petition for certiorari asks the Court to determine whether the one-year time period for filing federal habeas petitions under the Antiterrorism and Effective Death Penalty Act is subject to equitable tolling.

Lett v. United States - The petition for certiorari asks the Court to determine whether, under the Federal Rules of Criminal Procedure, a district judge may amend a prior criminal sentence mistakenly based on a misunderstanding of federal sentencing factors.

Kentucky v. Leach, et ux
- The petition for certiorari asks the Court to determine whether police violate the Fourth Amendment by initiating a “knock and talk” investigation at a back door not viewable to members of the public.

Bussell v. United States - The petition for certiorari asks the Court to determine whether a defendant can be convicted of making a false statement based on what she considers to be a truthful response to an ambiguous government question.

Lewis v. United States - The petition for certiorari asks the Court to determine if a defendant violates the terms of supervised release, a district court may base the new sentence upon factors stated in 18 U.S.C. 3553(a)(2)(A).

Martinez-Guerrero v. United States - The petition for certiorari asks the Court to determine whether a district court may direct a defendant to serve a federal sentence consecutively to a not-yet-imposed state sentence.

Vonner v. United States - The petition for certiorari asks the Court to determine whether criminal defendants must object at the time a sentence is imposed in order to challenge the sentence as either procedurally or substantively unreasonable under United States v. Booker (2005).

On Tuesday, October 14, 2008, the United States Supreme Court once again delved into the Apprendi world when it heard oral argument in the case Oregon v. Ice. At the heart of the case is the issue of whether a court imposing consecutive sentences violates the Sixth Amendment.

The Facts and Decision Below

Thomas Eugene Ice was convicted in Oregon of two counts of first-degree burglary, and four counts of first-degree sexual abuse. Oregon prosecutors alleged that, on separate occasions, Ice entered the apartment of a neighbor and fondled an 11-year-old girl. Police later determined Ice was responsible for the crimes and he was then arrested.

Ice was indicted on six separate offenses, which included the burglaries and the molestation counts. Following a jury trial, he was convicted on all six counts. According to Oregon law, sentences imposed for multiple crimes shall be served concurrently, unless the court finds that the offenses did not occur as part of the same course of conduct.

The court found that the convictions for the burglaries and sex crimes were the result of separate incidents, and imposed consecutive sentences which resulted in Ice being sentenced to over 28 years.

Shortly after the state court sentenced Ice, the United States Supreme Court decided the Apprendi case. Ice’s attorneys filed a sentencing addendum, claiming that Apprendi meant that only the jury could consider factors which could result in a more severe sentence. The court rejected the argument, and instead followed the state’s recommendations for consecutive sentencing.

Ice was much more fortunate at the appellate level where the Oregon Supreme Court overturned the consecutive sentences and remanded the case for resentencing. The court found that any sentencing determination that results in a longer total sentence, based on a judge’s factual findings, violates the jury trial right.

High Court grants Certiorari

The decision did not rest well with Oregon prosecutors and they requested that the United States Supreme Court grant certiorari in order to decide the dispute. Although the face of the High Court has changed somewhat since the Apprendi decision, the majority that ruled in favor of that case is still intact. Will any of the justices sway in their decision of Ice? It will certainly be exciting to see the outcome.

The criminal trial is now underway for disgraced former FBI agent John Connolly. In one of the biggest scandals to ever hit inside the FBI, federal prosecutors allege that Connolly provided exclusive information to mobsters James “Whitey” Bulger and Stephen “The Rifleman” Flemmi, leaders of Boston’s violent Winter Hill Gang. Connolly was indicted by a federal jury for murder and conspiracy charges, and faces life in federal prison if convicted.

Crucial Testimony against Connolly

The most damaging testimony against Connolly was actually provided by many of the convicted mobsters and gangsters themselves. Kevin Weeks testified at Connolly’s trial that the FBI agent continued providing information to him even after Connolly retired from the FBI in 1990. Specifically, Weeks testified that in 1994 Connolly provided information that Bulger and Flemmi would be indicted soon and to “watch themselves.” Although Flemmi was later arrested, Bulger took heed to the warning and has been a fugitive ever since, even being named to the Federal Bureau of Investigation’s Ten Most Wanted List.

Some of the more damaging testimony came from Flemmi who told jurors that Connolly warned him and Bulger that fellow gangster John B. Callahan was being sought for questioning by the FBI and probably “wouldn’t hold up,” meaning it was very likely he would implicate the pair of mobsters in the 1981 murder of a Tulsa businessman. Acting on the provided information, Bulger ordered a hit on Callahan and his body was later recovered in the trunk of a Cadillac at Miami International Airport.

Connolly is already serving a 10 year federal sentence on a 2002 federal racketeering conviction for protecting Bulger and Flemmi by warning them to flee just before their indictment in 1995. Bulger, who slipped away and has evaded capture is charged with 19 murders and remains on the FBI’s Ten Most Wanted list, with a $2 million reward being offered for his capture. Flemmi, who is now serving a life sentence for 10 murders, has agreed to cooperate fully with the federal government in hopes of gaining a sentence reduction.

The case is expected to be in the hands of the jury in the next few days.