CJE CLE: “Representing Non-Citizens in the Era of Trump”

 

CJE CLE “Representing Non-Citizens in the Era of Trump”

 

Friday, September 21, 2018
9:00 am – 4:00 pm

 

Logan Building
500 Union St
9th Floor Conference Center
Seattle, WA 98101

 


 

Citizens for Judicial Excellence presents another CLE in its series of Continuing Legal Education courses on September 21, 2018, from 9:00 am to 4:00 pm. The CLE will be held at Regus Carillon Point.

Course Description: A review of the challenges representing in criminal defense cases those individuals who are non-documented residents, non-citizens, ESL citizens, and foreign visitors. This is a practical workshop intended to provide you with the legal tools to defend diverse clients:

  • Bail Bond Issues for Non-Citizens
  • Addressing Diversity in Voir Dire
  • Effectively Working with Interpreters
  • Prok Issues
  • Immigration Consequences of Criminal Offenses
  • Ethics Issues Related to Representing Non-Citizens and ESL Clients

Instructors include:

  • Dennis Behrend, Lacey O’Malley Bail Bond Agency
  • Hilary Han, Immigration Attorney
  • Cassandra Lopez de Arriaga, Trial Attorney
  • Iratxe Cardwell, Interpreter
  • Sarah Cho, Attorney
  • Jason Lantz, Attorney

This CLE has been approved by WSBA for 5.75 credits (including 1 Ethics credit).
WSBA Activity #1078873

This CLE is free for CJE members. $225 for attorneys not a member of CJE. Seating is limited so register early. CJE members are given priority.

(Lunch will be provided courtesy of CJE. Doors open at 8:30 a.m. for coffee and pastries.)

 

CJE Wire: Case Law Updates — 2018 August 10

 


 Washington State Courts


Division I Court of Appeals

Woodward v. State:  The Court held that Mr. Woodward’s sealed juvenile class A felony adjudication, like all sealed juvenile adjudications, was to be treated as though it had never happened, and therefore it did not bar him from restoring his firearm rights.  The Court reversed the superior court order denying restoration.  The Court found that simply because statutory revisions allowed access to sealed records by prosecutors and criminal justice agencies did not change the treatment of those adjudications.  The Court was likewise not persuaded by arguments that its ruling violated the general-specific rule of statutory construction or conflicts with legislative history. The Court also found that a conflicting attorney general opinion was not controlling.  http://www.courts.wa.gov/opinions/pdf/769324.PDF

 


Division II Court of Appeals

State v. Glover:  The Court found that the lower court’s inquiry into Ms. Glover’s ability to pay LFOs imposed after her second-degree burglary conviction was inadequate.  The trial court’s inquiry consisted solely of asking Ms. Glover if there was any reason she could not hold a job and inquiring as to her employment history.  The Court found that the trial court should have at a minimum inquired into Ms. Glover’s assets and debts and taken into account her lengthy criminal history in assessing her future employability.  http://www.courts.wa.gov/opinions/pdf/D2%2049944-4-II%20Published%20Opinion.pdf


State v. Wallmuller:  In this partially published opinion, the Court held that the community custody condition imposed on Frank Wallmuller on resentencing that prohibited him from frequenting “places where children congregate such as parks, video arcades, campgrounds, and shopping malls,” is unconstitutionally vague.  The Court observed that a community custody condition is unconstitutionally vague if either “(1) it does not sufficiently define the proscribed conduct, so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement.”  The Court in this case found that the definition of congregate was so open to interpretation as to fail to sufficiently define the proscribed conduct.  The Court found that the definition gave rise to several questions:

(1) Must the children join together in a formal group to “congregate,” or is it sufficient that children be at the same place even if they are unconnected?  (2) Similarly, must the children intend to join together with other children to “congregate,” or can they end up at the same place by happenstance?  (3) How many children are required to congregate to invoke the condition?  Is two enough, or is some unstated larger number required?  (4) How often must children congregate in a place to invoke the condition?  Is once enough, or is some unstated frequency required?  (5)  Assuming that children must have actually rather than potentially congregated at a place to invoke the condition, how recently must they have congregated there? Is one prior instance of children congregating in a place sufficient regardless of when it occurred? 

The Court found that the short list of specific locations, without the clause prohibiting Mr. Wallmuller’s presence in undefined areas where children are known to congregate did not cure the unacceptable vagueness of the remainder of the condition.  The case was remanded for yet another sentencing hearing.  http://www.courts.wa.gov/opinions/pdf/D2%2050250-0-II%20Published%20Opinion.pdf


In re Pers. Restraint of Troup:  Mr. Troup challenged the constitutionality of RCW 4.24.430, which directs the court to deny an inmate’s request to waive filing fees in any civil action or appeal against the State where the inmate has brought at least three prior actions that were dismissed because they were “frivolous or malicious” and where the action would not affect the duration of confinement.  The court found that, in context, the phrase, “frivolous or malicious” was not unconstitutionally vague, as the phrase was contained within a sentence that prohibited the court from waiving fees for an inmate that had had three previous actions dismissed on the grounds that they were frivolous or malicious.  The Court held that a person of average intelligence would be able to understand the reasons for prior dismissal.  The Court found that the statute met the enforcement requirement and the definiteness requirement.  However, the court found that procedural due process required identification of the prior actions relied upon when the clerk determined that the statute applied and remanded with instructions to the clerk to reissue his ruling and to specifically identify the strikes upon which he relies to require Mr. Troupe to pay a filing fee. http://www.courts.wa.gov/opinions/pdf/D2%2050657-2-II%20Published%20Opinion.pdf

 


 Federal Law


Ninth Circuit Court of Appeals

United States v. Nature:  The panel affirmed the defendant’s conviction for being dangerously under the influence of alcohol in violation of 36 C.F.R. § 34.5(b)(21) while he was in the El Portal Administrative Site, which is adjacent to Yosemite National Park.  The panel held that whether or not the Administrative Site is a “park area” within the meaning of the dangerous drinking-prohibition contained in 36 C.F.R. § 2.35, section 34.5 incorporates the dangerous-drinking-prohibition with the necessary changes to make the prohibition applicable to the Administrative Site.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/06/17-10161.pdf


United States v. Fomichev:  The panel vacated the district court’s order denying a defendant’s motion to suppress recordings of his conversations with his wife and his wife’s testimony describing those conversations, in a case in which the defendant was convicted of four counts of making false statements on immigration documents in violation of 18 U.S.C. §§ 1546(a) and 1001.  The panel held that the district court erred by extending the sham marriage exception, which has been applied to the spousal testimonial privilege, to the marital communications privilege.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/16-50227.pdf

 

 

 

 

 

 

Call to CJE 2018 Annual Member Meeting

 

 

Review of Judicial Candidates & November Races

Thursday, September 13, 2018 from 5:30 PM8:00 PM

All CJE members are invited and strongly encouraged to attend the 2018 CJE Annual Meeting and Judicial Candidate Review Meeting of Citizens for Judicial Excellence. CJE leadership will review the field of candidates for municipal and district court judicial races in King, Snohomish and Pierce counties.

All members are encouraged to attend, share their thoughts on races where CJE should play an important role, discuss the current judicial races and candidates, and vote on which candidates CJE should target or support*. This meeting will include a poll of candidates and discussion of the results which will help guide the organization’s leadership in this election.

The meeting commences on Thursday, September 13, 2018, and will be held at Carillon Point Regus Center, 5400 Carillon Point, Building 5000, 4th Floor in Kirkland. (After entering Carillon Point, turn left at the intersectionCJE-2014-Annual-Meeting, then drive to the end of the road. Building 5000 is on the right. Parking is located directly across the driveway from Building 5000 and is free for those departing after 7:00 p.m.)

A light dinner of sandwiches, beverages and dessert will be provided courtesy of CJE. Please check the CJE website at cjepac.com/meeting for further meeting details.

Please Register and RSVP by Tuesday, September 11 so that we can arrange for adequate seating and food/beverages. This is your opportunity, as a CJE member, to discuss the important judicial races. Please note that this meeting is open only to CJE members in good standing** and is not open to guests. If you cannot attend, you can assign your proxy*** to another CJE member or board member. Please email greg@cjepac.com to receive a proxy form (write “Proxy Request” in the subject line).

We look forward to seeing you there.

— CJE Board of Directors

 

* The CJE Judicial Candidate Evaluation Committee Guidelines are available for review on the CJE website at cjepac.com/evaluation-rules

** If you are not current on your dues, please contact CJE Administrative Director Greg McDonald at greg@cjepac.com or (206) 456-6911 ext 202 to make arrangements to become current

*** Proxy voting is subject to the provisions in the CJE Bylaws, Article VIII, §5(A)(2). Please refer to the CJE website at cjepac.com/bylaws for details

 

 


Carillon Point Regus Center
5400 Carillon Point
Building 5000, 4th Floor
Kirkland, WA 98033

 

 

CJE Wire: Case Law Updates — 2018 August 3

 


 Washington State Courts


Washington State Supreme Court

State v. Black/In Re Detention of Black:  In a decision authored by Justice Yu and joined by Chief Justice Fairhurst and Justices Owens, Gonzalez, and Johnson, the Court found that the trial court did not err as a matter of law in admitting expert testimony on paraphilia NOS, a sexual deviancy diagnosis, nor did it abuse its discretion when it allowed an expert to describe Mr. Black’s specific paraphilic focus as “persistent sexual interest in pubescent aged females.”  Nor did the trial court err in excluding Mr. Black’s expert’s testimony on the controversy surrounding a similar diagnosis, as that diagnosis was not generally accepted in the scientific community.  The court observed that the State’s expert had diagnosed Mr. Black after reviewing approximately 4,000 pages of records, administering a psychological test, and interviewing Mr. Black in 2008 and 2011.  The Court noted that paraphilia is generally accepted in the scientific community and, contrary to Mr. Black’s arguments, does not focus on whether an individual’s sexual focus is abnormal, but on the consequences of the illness in his specific circumstances.  Here, Mr. Black demonstrated an “inability to control his behavior to such an extent that he has committed repeated sexual offenses against multiple children who were legally incapable of giving consent. As Dr. Arnold concluded in his evaluation, “despite prior sanctions for virtually identical grooming and sexually exploitive behavior, [Black] was unable to resist the opportunity to reoffend.” Because the diagnosis was appropriate and accepted within the scientific community, the Court found that the trial court did not err as a matter of law in accepting it into evidence. 

Dissenting, Justice Madsen, joined by Justices Wiggins, Gordon McCloud, and Stephens, argued that, despite the paraphilia NOS label, “the specifically identified condition substantially mirrors a diagnosis identified under another name—^hebephilia—that is controversial within the same scientific community.”  The dissent opined that by admitting the State’s expert’s testimony regarding paraphilia NOS but excluding Mr. Black’s expert’s testimony regarding Hebephilia and the controversy surrounding the diagnosis, the trial court improperly excluded rebuttal evidence crucial to Mr. Black’s case.  http://www.courts.wa.gov/opinions/pdf/944946.pdf


State v. Tyler:  In an opinion authored by Justice Stephens and joined by Justices Wiggins, Gonzalez, Johnson, Madsen, Owens, and Yu, the Court affirmed Mr. Tyler’s conviction for possession of a stolen vehicle.  The Court disagreed with Mr. Tyler’s position that the State was required to prove that he engaged in all the actions that constitute “possession” of a stolen vehicle because these were listed in the to-convict jury instruction. The Court further found there was sufficient evidence to establish he disposed of a stolen vehicle.  The Court held that its decision in Hickman was still good law despite the recent decision inState v. Johnson, but that Hickman’s law of the case doctrine is inapplicable in this case because possession of a stolen motor vehicle is a single means crime, and the given instructions did not alter that fact. Thus, the State had to prove only that Mr. Tyler possessed a stolen vehicle, not that he disposed of it, and the Court found it was “undisputed” that the evidence established possession.

Concurring, Justice Gordon McCloud, joined by Chief Justice Fairhurst, agreed that the statute criminalizing possession of a stolen vehicle is a single means crime.  The concurrence further agreed that the five different definitions of “possess” does not change this face.  However, the concurrence disagreed with the majority’s conclusion that the jury instructions made this fact clear to the jury, as the five different methods of accomplishing possession were listed without the disjunctive made the instructions ambiguous.  Thus, the concurrence argued, there should have been an analysis of whether the evidence proved that Mr. Tyler met all of the different definitions of possess which the concurrence argued that he did.  http://www.courts.wa.gov/opinions/pdf/937702.pdf


In Re Pers. Rest. Of Meredith:  In an opinion authored by Justice Owens and joined by the Chief Justice and Justices Wiggins, Johnson, Gonzalez, Madsen, Gordon McCloud, and Stephens, the Court held that Mr. Meredith’s appellate counsel was not ineffective for failing to raise an objection to the fact that the trial court erroneously gave the State and defense counsel one less preemptory challenge than they were entitled to under the Court Rules, as the claimed error was not objected to at trial and is not the type of structural error that requires automatic reversal. The Court distinguished Mr. Meredith’s case from those in which trial courts had given, and then rescinded, preemptory challenges, causing an objectionable juror to be seated on the venire.  The Court also declined to address the issue of the limiting instruction given to the jury that failed to advise them that Mr. Meredith’s prior convictions could only be used as evidence of one element on Count II of the information, not as evidence relating to the whole of that charge.  The Court found that the issue was insufficiently briefed and not a part of the appellate grant of review in the first place.

Concurring, Justice Yu wrote separately to emphasize that “jury selection is a critical part of trial and ought not to be treated as merely a prelude to the main event.”  Justice Yu agreed with the result in this case but argued that trial courts should make every effort to ensure litigants have a “meaningful opportunity to select an unbiased jury.”  http://www.courts.wa.gov/opinions/pdf/945829.pdf


In Re Pers. Rest. Of Light-Roth:  In an opinion authored by Justice Madsen and joined by Chief Justice Fairhurst, Justices Wiggins, Johnson, Owens, Stephens, and Yu, and Justice Pro Tem Van Deren, the Court found that the State Supreme Court’s decision in State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), did not constitute a significant change in the law and could not be retroactively applied to relieve Mr. Light-Roth of any portion of his 335-month sentence, imposed when he was 21 years old.  The Court reasoned that the O’Dell decision found that while “age is not a per se mitigating factor automatically entitling every youthful defendant to an exceptional sentence, a trial court is permitted to consider youth as a mitigating factor.” In this way, the Court held, O’Dell broadened the Court’s understanding of youth as it relates to culpability but did not open up avenues of argument that had been previously foreclosed.  In fact, the Court noted, defense counsel had asked for consideration in sentencing due to Mr. Light-Roth’s age.

Concurring in the result, Justice Gonzalez agreed that Mr. Light-Roth was not entitled to relief, as the O’Dell decision was not material to his case, but argued that O’Dellshould have been found to be significant because it altered the Court’s understanding of prior decisions, and retroactive because it reinterpreted a provision in the SRA.  http://www.courts.wa.gov/opinions/pdf/949506.pdf


In Re Pers. Rest. Of Schorr:  In a unanimous decision authored by Justice Gordon McCloud, the Court found that Mr. Schorr’s guilty plea to first degree murder, first degree robbery, second degree arson, and first-degree theft in 2006 could be heard after the one-year time bar for personal restraint petitions (PRP) because Mr. Schorr’s petition was based solely on double jeopardy grounds.  The Court affirmed that double jeopardy challenges are exempt from the one-year time bar.  The Court further cited prior jurisprudence that held that challenges to sentences that exceed the court’s authority, such as a double jeopardy challenge, cannot be waived by a guilty plea such as the one entered in this case.  The Court found, however, that Mr. Schorr’s convictions did not violate double jeopardy protections.  http://www.courts.wa.gov/opinions/pdf/945918.pdf

 

 


Division II Court of Appeals

State v. Moen:  The Court affirmed Mr. Moen’s conviction for aggravated first degree murder and his sentence to mandatory life imprisonment without the possibility of parole.  The court found that the trial court did not err in refusing to excuse a juror on day 2 of the trial when she disclosed that she had met his family once in the past for about half an hour in her capacity as the director for a long-term care facility, when Mr. Moen’s family was looking into long term care after his self-inflicted head injury.   The Court also found that sentencing a defendant with dementia to mandatory life imprisonment without the possibility of parole under RCW 10.95.030(1) is not categorically barred by article I, section 14’s prohibition against cruel punishment.  http://www.courts.wa.gov/opinions/pdf/D2%2049474-4-II%20Published%20Opinion.pdf

 

 


Division III Court of Appeals

State v. Clements:  In this partially published opinion, the Court affirmed Ms. Clements’ convictions and exceptional sentence for first degree theft and first-degree identity theft. The Court found that the fact that the jury was momentarily discharged before being recalled to complete a corrected verdict form did not abrogate the conviction.  The jury had been given an erroneous verdict form referring to theft instead of identity theft and were returned to the jury room with blank verdict forms and no instructions as to what the error had been.  After brief deliberations, verdicts of guilty were again returned.  The Court found that the constitutional right to a verdict authorized by the jury is not implicated when jurors are re-empaneled, particularly after no more than two minutes had passed, as here.  Further, discharging a jury does not foreclose recall and did not impact Ms. Clements’ right to an impartial jury when there was no time for the jury to be involved in any activity that may have influenced their revised verdict.http://www.courts.wa.gov/opinions/pdf/351122_pub.pdf

 

 


 Federal Law


Ninth Circuit Court of Appeals

United States v. Mickey:  The panel affirmed convictions for two counts of sex trafficking by force, threats of force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a) and (b)(1). The panel held that the district court did not err by refusing to give a specific unanimity instruction regarding which precise combination of means the defendant used to cause the victim to engage in a commercial sex act.  The panel rejected the defendant’s contention that force, threats of force, fraud, and coercion are separate elements of the crime. The panel held that although the prosecution technically erred in failing to include the statutory phrase “or any combination of such means” in the indictment, inclusion of that phrase in the jury instructions and Special Verdict Form did not constitute a constructive amendment of the indictment. The panel wrote that the defendant cannot show prejudice and concluded that there was no plain error. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/16-50343.pdf


United States v. Ochoa-Orogel:  Reversing a conviction for unlawful re-entry into the United States in violation of 8 U.S.C. § 1326, the panel held that the defendant’s 2008 and 2011 removals were fundamentally unfair, and neither can serve as a predicate removal for purposes of § 1326.  

 The panel held that because the 2008 removal proceeding was in absentia, the defendant satisfied the exhaustion and deprivation-of-judicial-review requirements for bringing a collateral attack on the validity of that removal, which was based on a prior conviction for California domestic violence battery. The panel also held that because circuit precedent at the time of the 2008 removal hearing established that California battery was not a categorical crime of violence, it was error to remove the defendant for a crime of domestic violence under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act based on his California battery conviction. The panel held that the due process defects in the 2008 removal proceeding infected the defendant’s 2011 expedited removal for presenting invalid entry documents. The panel wrote that a person should not be stripped of the important legal entitlements that come with lawful permanent resident status – including protection against expedited removal – through a legally erroneous decision that he or she had no meaningful opportunity to contest.  The panel rejected the government’s contention that the defendant was not prejudiced.  The panel explained that if the defendant was still a lawful permanent resident, his entry documents were not invalid, and even if the government might have been able to remove him on other grounds through a formal removal proceeding, his removal on illegitimate grounds is enough to show prejudice. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/02/16-50413.pdf

 

 

 

 

 

CJE Wire: Case Law Updates — 2018 July 23

 


 Washington State Courts


Washington State Supreme Court

State v. Blair:  In an opinion authored by Justice Johnson and joined by Chief Justice Fairhurst and Justices Wiggins, Gonzalez, Owens, and Yu, the Court found that any challenge of the validity of a prior conviction for purposes of offender score calculation must be based on a constitutional defect on its face.  The Court found established precedent, including State v. Ammons, required this result, and that Mr. Blair’s argument, that his prior convictions for theft of snowmobiles under the theft of a motor vehicle statute, does not raise a constitutional issue. 

Concurring, Justice Gordon McCloud, joined by Justices Stephens and Madsen, argued that the majority’s conclusion lacked support in Ammonsand created a “ridiculous anomaly” wherein a defendant can raise facial challenges to prior convictions on statutory and jurisdictional grounds in a personal restraint petition, but not at the prejudgment sentencing.  The concurrence also argued that the majority’s bar on trial courts engaging in statutory interpretation when presented with facially clear challenges at sentencing “misreads Ammonsand betrays a lack of trust in the ability of trial court judges to conduct statutory analysis.”  However, the concurrence concluded that Mr. Blair did not provide sufficient documents here to support his claim and concurred in the result. http://www.courts.wa.gov/opinions/pdf/939951.pdf


Personal Restraint of Schley:  In an opinion raised by Justice Owens and joined by Justices Wiggins, Gordon McCloud, and Yu, the Court found that a fact that necessarily results in a DOSA revocation must be provide by the higher proof standard required at revocation hearings, preponderance of the evidence.  The Court granted relief to Mr. Schley, as the Department in his hearing was required to prove a fighting infraction that resulted in his DOSA revocation by only the “some evidence” standard.  Specifically, Mr. Schley was not allowed to contest the fighting infraction that resulted in administrative suspension and ultimately the DOSA revocation, a circumstance that the Court found violated due process.  Finally, the Court held that if the underlying infraction was not proven by a preponderance of the evidence, treatment must be reinstated.

Justice Gonzalez concurred in the preponderance of the evidence standard imposed for an infraction leading to a DOSA revocation. However, Justice Gonzalez wrote separately to express concern regarding the “very low standard of proof used in prison disciplinary cases and its effect on liberty interests.” Specifically, such cases rely on the “some evidence” standard, which the justice argued is insufficient in the context of serious prison infractions.  Justice Gonzalez argued that the preponderance standard applied to DOSA revocations should be extended to all prison infractions. 

Chief Justice Fairhurst, joined by Justices Johnson, Madsen, and Stephens, dissented, arguing that Mr. Schley was provided due process at every level of the proceeding in this case.  The dissent argued that the infraction was proven by some evidence at a hearing for which Mr. Schley was provided notice and an opportunity to be heard, and that the following DOSA revocation provided similar protections.  The dissent argued that the opinion conflicted with settled precedent and would allow an inmate to retain DOSA status after being terminated from treatment. http://www.courts.wa.gov/opinions/pdf/942803.pdf


State v. Dennis:  In an en banc decision authored by Justice Johnson, and joined by Justices Wiggins, Madsen, Gordon McCloud, Owens, and Stephens, the Court found that the portion of RCW 9.41.040 that allows an offender to petition for restoration of firearm rights after five or more consecutive years in the community without being convicted or charged with a crime is satisfied by any five year conviction free period, and that the period need not immediately precede the petition for restoration.  The Court found that the language of the original bill supported this interpretation, holding that the original bill focused on the fact that petitioners’ prior crimes must have washed out for sentencing purposes when they applied for restoration.  The Court reconciled the language prohibiting petitions for restoration while crimes were pending to mean not that the clock would start over for any conviction, but that even a misdemeanor could be escalated to a felony, which conviction would require a re-starting of the clock for restoration purposes. 

Dissenting, Justice Gonzalez, joined by the Chief Justice and Justice Yu, argued that the majority reading of the statute was not what the people intended in passing the bill.  Rather, the dissent argued, a plain reading of the statute mandated that a petitioner must be crime-free for five years immediately preceding the petition for restoration.  http://www.courts.wa.gov/opinions/pdf/950831.pdf

 


Division II Court of Appeals

In Re Restraint of Bufalini: The Court found that the Department of Corrections (DOC) violated Mr. Bufalini’s due process rights by failing to inform him that he could have his request for counsel considered on a case-by-case basis at his urinalysis (UA) violation hearing.  The Court further held that RCW 9.94A.662(3), the statute allowing DOC to revoke a DOSA, did not violate the separation of powers.  The Court thus granted Mr. Bufalini’s petition and vacated the DOC decisions on his alleged UA violation and revocation of his DOSA.  Mr. Bufalini was ordered released from confinement and transferred to community custody status pursuant to his DOSA, and all time spent in total confinement beyond the 36.75 month initial term of confinement under his DOSA was to be credited against the community custody term.  The Court allowed DOC to begin again in its process in response to the allegation of a UA violation, but must follow the Court’s opinion and governing law in so doing.  The Court did not reach other challenges raised, including Mr. Bufalini’s claims that DOC improperly applied RCW 9.94A.662(3), that his UA was so unreliable that reliance on its results violates due process, and that DOC’s failure to preserve his UA test sample violates due process.  http://www.courts.wa.gov/opinions/pdf/D2%2050785-4-II%20Order%20Publishing.pdf


State v. Classen:  The Court found that kidnapping is a course of conduct crime, but that Mr. Classen’s convictions for kidnapping and attempted kidnapping did not constitute a continuing course of conduct as they were based on two separate acts interrupted by the victim exiting her car and attempting to run away.  The court also found that Mr. Classen’s counsel did not provide ineffective assistance by failing to raise a voluntary intoxication defense, as no facts alleged at trial supported the claim that Mr. Classen was unable to formulate the required mens rea for the crimes due to intoxication. However, the Court found that counsel did provide ineffective assistance by failing to request an inferior degree instructions on the assault charge, as the evidence could have supported the lesser offense.  The Court reversed the assault conviction and remanded but affirmed the kidnapping and harassment convictions.  http://www.courts.wa.gov/opinions/pdf/D2%2049762-0-II%20Published%20Opinion.pdf


State v. Imokawa:  The Court reversed Mr. Imokawa’s convictions for vehicular homicide and vehicular assault, finding that superseding causation negates an element of both crimes, and due process requires the State to prove the absence of a superseding cause when the issue is properly raised by the defense, and the trial court erred in failing to so instruct the jury.  The Court found that dismissal with prejudice was not the only proper remedy, however, as there was sufficient evidence to support the jury’s guilty verdicts on both charges.  The case was remanded for further proceedings.http://www.courts.wa.gov/opinions/pdf/D2%2049995-9-II%20Published%20Opinion.pdf


State v. Harris (Pers. Rest. Of Harris):  In this partially published opinion, Mr. Harris sought to vacate his guilty plea and In Re Barrpleas to second degree murder and second and third degree assault, claiming that the plea were not voluntary and intelligent, that the superior court’s calculation of his offender score violated doubt jeopardy, and that newly discovered evidence undermines the factual basis for his plea.  In the published portion of this opinion, the Court held that Mr. Harris’ plea was voluntary and intelligent when the record supported an assertion that he was aware of the original charge for purposes of the Barr plea, the record shows the relationship between Mr. Harris’ actions and the original plea, the record demonstrates he was aware of the evidence available to the State on the original offense, and the record shows he was aware of the nature and consequences of his plea bargain. The Court declined to review the sentence, finding Mr. Harris’ waiver of his right to appeal the sentence valid.  http://www.courts.wa.gov/opinions/pdf/D2%2049641-1-II%20Published%20Opinion.pdf

 


 Federal Law


Ninth Circuit Court of Appeals

United States v. Mickey: The panel affirmed convictions for two counts of sex trafficking by force, threats of force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a) and (b)(1). The panel held that the district court did not err by refusing to give a specific unanimity instruction regarding which precise combination of means the defendant used to cause the victim to engage in a commercial sex act.  The panel rejected the defendant’s contention that force, threats of force, fraud, and coercion are separate elements of the crime. The panel held that although the prosecution technically erred in failing to include the statutory phrase “or any combination of such means” in the indictment, inclusion of that phrase in the jury instructions and Special Verdict Form did not constitute a constructive amendment of the indictment.  The panel wrote that the defendant cannot show prejudice and concluded that there was no plain error.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/16-50343.pdf


United States v. Turner:  The panel affirmed convictions for two separate fraud schemes pursuant to trials in 2009 and 2012.  The panel held that the defendant’s Sixth Amendment right to counsel was not violated in the 2009 case when the district court partially rejected the eighth request for a continuance, after continuing the trial for over two and half years. Because the district court reasonably concluded that the defendant had repeatedly alternated between invoking his right to self-representation and his right to counsel in order to manipulate proceedings and cause delay, the panel rejected the defendant’s claim that the district court violated his Sixth Amendment right to counsel in the 2012 case by requiring him to represent himself. The panel held that the district court did not abuse its discretion in determining that the defendant was not entitled in either trial to CJA funds to hire a psychiatrist to conduct a mental evaluation, and that the district court did not err in failing to hold a sua sponte competency hearing in the 2012 trial.  Because a reasonable court would not doubt the defendant’s competency, the panel held that the district court did not err in denying the defendant’s motion for mistrial and in its decision not to terminate the defendant’s self-representation.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/27/14-50238.pdf


United States v. Holden:  The panel affirmed the defendant’s convictions for mail and wire fraud, conspiracy to commit mail and wire fraud, and money laundering offenses; vacated his custodial sentence and restitution order; and remanded for further proceedings. Assuming without deciding that the defendant’s argument to the contrary is not foreclosed by precedent, the panel held that this court’s caselaw that “participating” in a scheme to defraud is forbidden by the mail and wire fraud statutes does not amount to the creation of a common-law crime in violation of separation-of-powers principles, and that the district court therefore did not err by instructing the jury that it could find the defendant guilty for “participating in” a scheme to defraud. The panel vacated the custodial sentence because the record does not support the district court’s conclusion that the defendant exercised sufficient control or organizational authority over his co-conspirator to qualify for a two-level “organizer” enhancement under U.S.S.G. § 3B1.1(c), and the panel could not say whether the district court would impose the same sentence if it kept the correct Sentencing Guidelines range in mind throughout the process.

The panel observed that the district court’s written restitution order – which both required immediate restitution in full and set a mandatory, unconditional schedule of payments during the period of incarceration – is internally inconsistent, and inconsistent with the district court’s oral announcement that the defendant lacked the ability to make immediate restitution in full.  The panel therefore vacated the restitution order and remanded so that the district court can strike the lump-sum payment requirement from the judgment. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/26/16-30186.pdf


Echavarria v. Filson:  The panel affirmed the district court’s grant of habeas corpus relief to Jose Echavarria, who was convicted and sentenced to death for killing FBI Special Agent John Bailey. Mr. Echavarria claimed that there was a constitutionally intolerable risk of bias, based on the fact that several years earlier Agent Bailey had investigated for possible criminal prosecution Nevada District Judge Jack Lehman, who presided over Mr. Echavarria’s trial.  The panel reviewed the Nevada Supreme Court’s decision de novo, rather than with AEDPA deference, because the Nevada Supreme Court adjudicated only Mr. Echavarria’s claim of actual bias, not his distinct claim of risk of bias.  The panel held that Mr. Echavarria’s right to due process was violated because for an average judge in Judge Lehman’s position there would have been a constitutionally intolerable risk of bias. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/25/15-99001.pdf


State v. Sleugh:  The panel affirmed the district court’s affirmance of a magistrate judge’s order denying Damion Sleugh’s motion to unseal codefendant Shawndale Boyd’s applications to issue subpoenas pursuant to Fed. R. Crim. P. 17(c).  The panel held that there is no presumption of public access under the First Amendment or common law that attaches to Rule 17(c) subpoena applications and their supporting materials; and that parties can only justify accessing sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents by demonstrating a “special need.”  The panel held that Mr. Sleugh failed to demonstrate a “special need” for Boyd’s Rule 17(c) subpoena materials, and that there is a continuing need to seal them. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/17-10424.pdf

 

 

 

 

CJE Wire: Case Law Updates — 2018 July 20

 


 Washington State Courts


Division II Court of Appeals

In Re Knight:  The Court allowed Mr. Knight to withdraw his guilty plea to the non-existed crime of attempted manslaughter in the first degree and remanded to vacate the conviction. The Court found that Mr. Knight’s collateral attack was not time barred, because the judgment and sentence was facially invalid.  Because the conviction was for a non-existent crime, the Court found that it constituted constitutional error that per se actually and substantially prejudiced Mr. Knight.  Further, because the crime was a predicate for a three strikes sentence, the Court found Mr. Knight showed actual prejudice as well.  http://www.courts.wa.gov/opinions/pdf/D2%2049521-0-II%20Published%20Opinion.pdf

 


Division III Court of Appeals

State v. Johnson:  The Court remanded Mr. Johnson’s matter for resentencing regarding five community custody conditions challenged by Mr. Johnson.  The Court found that four of the conditions prohibited access to images or media containing some form of sexual content, and the fifth prohibited Mr. Johnson from being present at locations where children congregate.  The Court found that two provisions, restricting access to nude images and images of children wearing only undergarments and/or swimsuits were overbroad and not crime related, as there was no evidence Mr. Johnson was aroused by the types of nonerotic images described in this conditions. The Court applied similar reasoning to the conditions prohibiting the viewing of sexually explicit activity and attendance at X-rated movies, peep shows, or adult book stores, finding again no connection to the crime of conviction.  The court affirmed but amended the condition prohibiting Mr. Johnson from being in places where children congregate, adding that those children must be under 16 years of age.

Dissenting in part, Judge Fearing urged further modification of the condition prohibiting Mr. Johnson from patronizing places where children congregate, urging the court to make this condition more specific by specifying the places to be avoided. http://www.courts.wa.gov/opinions/pdf/349284_pub.pdf


State v. Burnam: The Court found no error in the trial court’s exclusion of evidence showing that the murder victim had dated a man accused of murder and hidden the murder weapon.  The Court agreed that this evidence “had minimal or no relevance to Mr. Burnam’s claim at trial that he feared serious injury or death.”  The Court noted that Mr. Burnam was allowed to present ample evidence that he was afraid of the victim and believed he was acting in self-defense on the night of the murder but found the specific evidence of the unrelated case irrelevant, and held there was no error in its exclusion.  http://www.courts.wa.gov/opinions/pdf/349462_ord.pdf


State v. Taylor:  The Court found that the rule enunciated in Old Chief, allowing a defendant to stipulate to prior convictions if the conviction is an element of the crime, extends to a defendant’s offer to stipulate to a postconviction no contact order.  The Court found that the order had no further probative value once the defendant stipulated to its existence and his knowledge of the order.  However, the Court found the risk of undue prejudice was substantial, particularly considering the order itself notified the reader that it was a post-conviction order.  The Court also found that Mr. Taylor’s guilty plea to a related charge was not knowingly and voluntarily entered because Mr. Taylor appeared to both admit and deny the prohibited conduct.  http://www.courts.wa.gov/opinions/pdf/351726_pub.pdf


State v. Karas:  The Court accepted the defendant’s motion for reconsideration and withdrew its original opinion, noting that an amended opinion will be filed in due course. http://www.courts.wa.gov/opinions/pdf/348997_ord.pdf

 

 


 Federal Law


United States Supreme Court

Carpenter v. United States:In a decision authored by the Chief Justice, and joined by Justices Breyer, Ginsburg, Sotomayor, and Kagan, the Court held that the government’s acquisition of the defendant’s cell site records, allowing the government to place Mr. Carpenter near the scene of four robberies on the dates they occurred, was a search under the terms of the Fourth Amendment, and a warrant was required.  In so holding, the Court recognized the privacy interest inherent in a person’s location and physical movements, and likened the records obtained by the government to the use of a GPS tracker, which also requires a warrant.  The government refused to extend the doctrine of third-party sharing, noting that the information contained in cell site records was far more revealing than the types of information subject to third-party sharing, and that the cell records were generated by the mere act of possessing the phone, and were thus not affirmatively shared. https://www.supremecourt.gov/opinions/17pdf/16-402_new_o75q.pdf

Dissenting, Justice Kennedy, joined by Justices Thomas and Alito argued that cell site records are no different than any other business record, and that third parties have no expectation of privacy in such records.

Dissenting, Justice Alito, joined by Justice Thomas argued that the request in this case, asking a company to look through its records and turn over specific documents, did not rise to the level of an actual search and is contrary to Fourth Amendment jurisprudence.  The dissent further argued that the Court today allows a defendant to object to a search of a third party’s property.

Dissenting, Justice Thomas argued that this case should not turn on whether a search occurred, but on whose property was searched, and posited that the government did not search the defendant’s records in this case, but those belonging to the cell phone companies.  Justice Thomas also found fault with the Katz reasonable expectation of privacy test, which he claimed had no basis in the Fourth Amendment.

Dissenting, Justice Gorsuch advocated for a return to the pre-Katz method of evaluating the need for a warrant, by merely determining the right to privacy through the lens of common law property rights.

 


Ninth Circuit Court of Appeals

Tamplin v. Muniz:The panel reversed the district court’s judgment denying California state prisoner Dwight Tamplin, Jr.’s petition for a writ of habeas corpus, and remanded with instructions to grant the writ.  Mr. Tamplin argued that his 25years-to-life Three Strikes sentence was obtained in violation of his Sixth Amendment right under Faretta v. California, 422 U.S. 806 (1975).  The panel reviewed the state habeas court’s decision that Mr. Tamplin’s Farettaclaim was meritless through the lens of the Antiterrorism and Effective Death Penalty Act (AEDPA).  The panel specifically found that the state court’s two conclusions—that Mr. Tamplin’s request to represent himself was equivocal, and that Mr. Tamplin waived his Sixth Amendment right by not continuing to object after a public defender was reappointed to represent him—were clearly contrary to established Supreme Court law.  Reviewing de novo, the panel held that Mr. Tamplin’s request to represent himself was timely; that Mr. Tamplin’s appellate counsel rendered constitutionally deficient performance by failing to raise Mr.  Tamplin’s compelling Farettaclaim; and that Mr. Tamplin was prejudiced by counsel’s deficient performance.

Dissenting, Judge Hawkins wrote that Mr. Tamplin has not established that the state court’s decision was in direct and irreconcilable conflict with Supreme Court precedent and has not shown that the state court ruling applying Faretta was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf


United States v. Obendorf: Affirming a conviction for illegally baiting ducks in violation of the Migratory Bird Treaty Act, and conspiring to do the same, the panel held that an “agricultural practice exception” set forth in 50 C.F.R. § 20.21(i)(1) applies to unlawful taking, but not unlawful baiting, and thus could not have immunized the defendant’s conduct. The panel concluded that although the parties misapprehended the law in the district court by treating § 20.21(i)(1) as applicable to the defendant’s case, the error was harmless.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/09/16-30188.pdf


United States v. Hernandez: The panel affirmed in part and vacated in part a sentence for sexual exploitation of a child and issued a limited remand for resentencing. The panel affirmed the district court’s determination that the distribution-of-pornography enhancement set forth in U.S.S.G. § 2G2.1(b)(3) applies when the perpetrator creates an illicit image of a minor victim and shares it only with the victim. The panel issued a limited remand for resentencing because the record suggests that the district court penalized the defendant by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial. Judge Rawlinson dissented from the portion of the majority opinion concluding that the district judge impermissibly “punished” the defendant by tethering his sentence to the exercise of his constitutional right to have his guilt determined by a jury.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/13-10428.pdf


United States v. Joyce: Affirming a conviction for conspiring to suppress and restrain competition by rigging bids, in violation of 15 U.S.C. § 1, the panel held that bid rigging is per se illegal under Section 1 of the Sherman Act, and that the district court therefore did not err by refusing to permit the defendant to introduce evidence of the alleged ameliorative effects of his conduct.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/17-10269.pdf


White v. Ryan:The panel reversed the district court’s judgment denying Arizona state prisoner Michael Ray White’s petition for a writ of habeas corpus based on ineffective assistance of counsel at resentencing and remanded with instructions to grant a conditional writ.  Regarding counsel’s performance, the panel held (1) that counsel performed deficiently by failing to challenge evidence that Mr. White committed the murder for pecuniary gain, and by failing to conduct an adequate investigation of mitigating factors, including the unreasonable decision not to hire any experts to assist with the penalty phase; and (2) that the state post-conviction court’s contrary conclusion was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), and Wiggins v. United States, 539 U.S. 510 (2003).  The panel evaluated prejudice without AEDPA deference because the state post-conviction court applied a test for prejudice contrary to Strickland.  Reviewing de novo, the panel concluded that there is a reasonable likelihood that White would have received a different sentence if counsel had investigated and presented mitigating evidence.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/15-99011.pdf


United States v. Pepe:The panel vacated a conviction and sentence under the 2005 version of 18 U.S.C. § 2423(c), which applies to a U.S. citizen “who travels in foreign commerce and engages in any illicit sexual conduct with another person,” and remanded, in a case in which the defendant, a U.S. citizen, drugged and raped several children in Cambodia, where he claims to have resided for several years.  The defendant contended that the statutory language didn’t encompass his conduct because, as a resident of Cambodia, he had ceased “travel[ing] in foreign commerce.” The panel held that in light of a 2013 amendment to the statute adding a new basis for criminal liability, as well as the accompanying legislative history, it is evident that the version of § 2423(c) in effect at the time of the defendant’s illicit sexual conduct was inapplicable to U.S. citizens living abroad unless they were traveling—meaning something more than being in transit—when they had illicit sex.  The panel wrote that this subsequent Congressional pronouncement is clearly irreconcilable with this court’s previous construction of the statute in United States v. Clark, 435 F.3d 1100 (9th Cir. 2006) (concluding that § 2423(c) “does not require that the conduct occur while traveling in foreign commerce”), and that the panel is therefore not bound by the reasoning in Clark.  The panel observed that the government appears to dispute the defendant’s claim that he had resettled in Cambodia.  Because the jury was not properly instructed on the travel element, the panel wrote that if the government elects to retry the defendant, it will need to prove that he was still traveling when he committed illicit sexual conduct.

Dissenting, Chief Judge Thomas wrote that Clark, whose holding of the statutory reach of the prior statute is completely consistent with the 2013 amendment, remains good law and is binding on this panel.  He wrote further that the panel should not be deciding the question, never argued to the district court, of whether the prior statute applied to citizens who temporarily resided abroad and intended to resettle.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/14-50095.pdf


United States v. Buenrostro:  The panel affirmed the district court’s denial of Jose Luis Buenrostro’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), and the district court’s denial of his motion to vacate his sentence under 28 U.S.C. § 2255, following President Obama’s commutation of his sentence from life in prison without release to 360 months in prison. The panel held that Mr. Buenrostro is ineligible for a sentence modification under § 3582(c)(2) because he was originally sentenced based on a statutory mandatory minimum, not based on a sentencing range.  Explaining that a presidential commutation does not overturn the sentence imposed by the sentencing court, the panel wrote that President Obama’s commutation was not based on a recalculation of a sentencing range. The panel held that President Obama’s commutation of Mr. Buenrostro’s sentence did not create a new judgment, and that Mr. Buenrostro therefore remains subject to the restrictions on second-or-successive motions under § 2255. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-10499.pdf


United States v. Barnes:  The panel affirmed a conviction for being a felon in possession of a firearm, in a case in which the defendant argued that the district court erred (1) by denying his motion to suppress evidence based on an allegedly invalid arrest warrant and (2) by precluding the defendant from presenting a necessity defense.  The panel held that the district court’s finding that the municipal judge who signed the defendant’s arrest warrant must have reviewed the underlying citation as part of her “ordinary course of business” was clearly erroneous, where there is no record evidence that the municipal court judge either received or read a copy of the citation prior to her finding of probable cause.  The panel therefore concluded that the warrant for the defendant’s arrest for the underlying trip permit violation was inexcusably infirm and that the defendant therefore satisfied his burden of showing judicial abandonment by a preponderance of the evidence.   The panel held that the good faith exception to the exclusionary rule applies unless a defendant can show that the issuing judge abandoned his or her role and that the law enforcement officer knew or should have known of such abandonment.  The panel concluded that although the defendant met his burden of showing judicial abandonment, the evidence cannot be suppressed because the officers executing the infirm warrant were unaware—and had no reason to be aware—of any judicial misconduct.  The panel held that the district court did not err in denying the defendant’s request to present a necessity defense to the jury.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/19/16-30203.pdf


Ross v. Williams:  The panel affirmed the district court’s judgment dismissing as untimely California state prisoner Ronald Ross’s amended habeas corpus petition brought pursuant to 28 U.S.C. § 2254.  Mr. Ross argued that the claims in his new petition, prepared with the assistance of counsel, arose out of facts set out in a state court order attached to his pro se original petition, and that the district court therefore erred in failing to apply the relation back doctrine in Fed. R. Civ. P. 15(c). The panel held that because Mr. Ross did not comply with Rule 2(c) of the Rules Governing Section 2254 Cases either directly or by incorporating (or attempting to incorporate) the facts in the Nevada Supreme Court affirmance into his original petition, that petition does not provide an aggregation of facts that can support the claims in his amended petition. The panel concluded that the district court therefore did not err in concluding that Mr. Ross’s amended petition cannot relate back to the claims in his original petition.

Dissenting, District Judge Bates wrote that this court should liberally construe Mr. Ross’s pro se original petition as setting out facts discussed in the attached state court decision and should then remand for the district court to determine in the first instance whether the claims in the amended petition arose out of the conduct, transaction, or occurrence set out in his original petition. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/19/16-16533.pdf


United States v. Robertson:  The panel affirmed convictions for theft of mail by a postal employee in violation of 18 U.S.C. § 1709, and possession of stolen mail in violation of 18 U.S.C. § 1708.   The panel held that the district court did not err in denying the defendant’s motion to dismiss the indictment on due process grounds based on the government’s failure to preserve a video of a Postal Service employee parking lot.  The panel held that the district court’s finding that the investigating agent did not act in bad faith was not clearly erroneous, and that the exculpatory value of the video was speculative. The panel held that the district court did not abuse its discretion by failing to instruct the jury on lost or destroyed evidence as a sanction for the government’s failure to preserve the parking lot video.

The panel held that the district court did not abuse its discretion in ruling that a conversation between the prosecutor and two investigating agents outside the courtroom did not violate Fed. R. Evid. 615, which provides that, at a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony.  Addressing an open question, the panel held that Rule 615 prohibits a sequestered witness from not only attending a hearing or trial but reading transcripts from it.  The panel held that the district court acted within its discretion by determining that the appropriate sanction for the government’s allowing two agent witnesses to review transcripts of prior testimony was to allow the defense to cross-examine the witnesses about their exposure to the transcripts. The panel held that the district court did not abuse its discretion in denying the defendant’s request for production of an agent’s notes under the Jencks Act.  The panel clarified that unless a defendant makes a threshold showing that notes sought pursuant to the Jencks Act may qualify as a “statement” under the Act, the district court is not obligated to review the notes in camera before refusing to compel production.  The panel concluded that the defendant did not make that threshold showing.

 The panel rejected the defendant’s argument that the district court’s disjunctive jury instruction on embezzlement of mail by a postal employee – which allowed the jury to convict her solely on a finding that “she came into possession” of the mail, rather than a showing of both entrustment and possession – was plain error.  The panel explained that the jury instruction tracked the language of section 1709, and that the government may charge in the conjunctive and prove in the disjunctive.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/20/16-10385.pdf


United States v. Sleugh:  The panel affirmed the district court’s affirmance of a magistrate judge’s order denying Damion Sleugh’s motion to unseal codefendant Shawndale Boyd’s applications to issue subpoenas pursuant to Fed. R. Crim. P. 17(c).  The panel held that there is no presumption of public access under the First Amendment or common law that attaches to Rule 17(c) subpoena applications and their supporting materials; and that parties can only justify accessing sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents by demonstrating a “special need.”  The panel held that Sleugh failed to demonstrate a “special need” for Boyd’s Rule 17(c) subpoena materials, and that there is a continuing need to seal them. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/17-10424.pdf

 

 

 

CJE CLE: “Stranger in a Strange Land”

THIS EVENT HAS BEEN POSTPONED UNTIL SEPTEMBER — A NEW DATE WILL BE ANNOUNCED SHORTLY


Eventbrite - CJE CLE "Stranger in a Strange Land"

 

CJE CLE “Stranger in a Strange Land”

 

Friday, May 4, 2018
9:00 am – 4:00 pm

 

Regus Carillon Point Training Center
5400 Carillon Point, 4th Floor
Kirkland, WA 98033

 


 

Citizens for Judicial Excellence presents another CLE in its series of Continuing Legal Education courses on May 4, 2018, from 9:00 am to 4:00 pm. The CLE will be held at Regus Carillon Point.

Course Description: A review of the challenges representing in criminal defense cases those individuals who are non-documented residents, non-citizens, ESL citizens, and foreign visitors:

  • Bail Bond Issues for Non-Citizens
  • Addressing Diversity in Voir Dire
  • Effectively Working with Interpreters
  • Prok Issues
  • Immigration Consequences of Criminal Offenses
  • Ethics Issues Related to Representing Non-Citizens and ESL Clients

Instructors include:

  • Dennis Behrend, Lacey O’Malley Bail Bond Agency
  • Miguel A. Bocanegra, Immigration Attorney
  • Cassandra Lopez de Arriaga, Trial Attorney
  • Iratxe Cardwell, Interpreter
  • Sarah Cho, Attorney
  • Jason Lantz, Attorney

This CLE is pending approval by WSBA for 6 credits (including 1 Ethics credit).
WSBA Activity #1068638

This CLE is free for CJE members. $225 for attorneys not a member of CJE. Judicial officers are welcome to attend at no charge.

(Lunch will be provided courtesy of CJE. Doors open at 8:30 a.m. for coffee and pastries.)

 

Graves Elected CJE President

CJE is pleased to announce that Tacoma attorney and CJE Board member Daryl Graves has been elected President of Citizens for Judicial Excellence.

Graves is a highly regarded attorney who has formerly served as a member of the Board of Governors of the Washington State Bar Association and P1resident of the Tacoma-Pierce County Bar Association, among his many activities.

Daryl has been a valued member of the CJE Board. We look forward to Daryl’s leadership to build on CJE’s past successes to make us an even more effective organization this coming year, as well as laying the groundwork for an increased presence in Pierce County.

He succeeds former president Lizanne Padula who remains as a member of the CJE Board and we thank her for her past work as CJE president.

 

CJE CLE: “DUIs & IIDs”

 

LifeSafer-Ignition-Interlock-FC100-HandEventbrite - CJE CLE "DUIs & IIDs"

 

CJE CLE “DUIs & IIDs”

 

Friday, March 2, 2018
12:00 pm – 4:30 pm

 

LifeSafer of Washington

1404 Central Ave S
Suite 100
Kent, WA 98032

 


 

Back by popular demand, this “field trip” CLE provides participants the chance to see how an Ignition Interlock Device is installed in a vehicle from start to finish along with how subsequent monitoring and reporting is conducted. The CLE curriculum will include a review of the various issues involved when working with a client-defendent ordered to install an Ignition Interlock Device:

  • IID Installation & Client Training Demonstration
    Bridget Doherty, LifeSafer of Washington State Director, and Ken Denton, LifeSafer technician, will review from start to finish the process of installing an ignition interlock device on a vehicle and review the client training provided. This includes a live demonstration of IID installation on a vehicle and how your clients will use the IID on a daily basis.
  • Defending IID Violation Hearings
    Attorney Paul Cullen, a pioneer in the IID field, will provide an in-depth review of defending an alleged IID violation including what you need to do for a successful hearing.
  • IID Legal Issues: Unlawful Search and Pending Statutory Changes
    Attorneys John Ziegler and Jason Lantz will review various legal issues pertaining to IIDs including unlawful searches. They will also review pending statutory changes.
  • Ethics of IID Review Hearings
    Attorney Paul Cullen will review the ethical issues you may encounter and considerations when arguing before an IID review hearing.

 


This CLE has been approved by WSBA for 4.25 credits (including 1 Ethics credit).
WSBA CLE Activity #1063470

This CLE is free for CJE members. $150 for attorneys not a member of CJE.
Space is limited to 20 seats so R.S.V.P. sooner than later.

(Lunch will be provided courtesy of CJE. Doors open at 11:30 a.m. for lunch.)

 

CJE To Conduct Judicial Candidate Training Class on March 17

Citizens for Judicial Excellence announced that it will conduct a free judicial candidate training workshop for attorneys, public defenders, and prosecutors interested in running for seats on Municipal and District Court in King, Snohomish and Pierce counties on Saturday, March 17. The workshop is also open to incumbents seeking re-election.

The class will cover reporting and filing requirements for the Washington State Public Disclosure Commission (PDC) presented by Jason Bennett . Snohomish County District Court Judge Jeff Goodwin, a member of the Supreme Court’s Ethics Advisory Committee, will provide an overview and guidelines for candidates’ ethical conduct while campaigning. Dean Nielsen, CJE’s Political Director and a principal at the nationally recognized political consulting firm Cerillion N4 Partners, will cover fundraising techniques and the nuts and bolts of building and running a campaign for judicial office.

CJE will provide complimentary lunch for attendees. Space is limited so attendees should register early at cjepac.com/training.