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DOMA, Full Faith & Credit, and Criminal History

Under Rhode Island law, a plea of nolo contendere in state court followed by a period of simple probation "shall not constitute a conviction for any purpose." R.I. Gen. L. sec. 12-18-3(a). But when a Rhode Island defendant is charged with a new offense in federal court, the federal sentencing judge will not abide by that statute but will treat any prior Rhode Island "nolo/probation" as a prior conviction because the federal sentencing guidelines ignore state definitions and include all nolo pleas (regardless of sentence) within the definition of "convicted of an offense." 2012 U.S. Sentencing Guidelines Manual, sec. 4A1.2(a). If SCOTUS holds that DOMA is unconstitutional in that Congress could not ignore state definitions of marriage, then why can federal sentencing law -- or immigration law -- ignore state definitions of "conviction?"

SCOTUS Sniffs Out Fourth Amendment Issue

Amidst all the excitement of the same-sex marriage arguments, SCOTUS on Tuesday issued another drug-sniffing dog decision. Last month in Florida v. Harris, the Justices approved use of a drug-sniffing dog to find probable cause for a vehicle search, but in the new case Florida v. Jardines, in an opinion by Justice Scalia, the Court rejected warrantless use of a drug-sniffing dog at the curtilage of a home to support a warrant for an interior search of the home. The problem is not the dog itself, but that use of the dog constitutes a search and therefore intrudes on the residents Fourth Amendment rights. And, by the way, as noted on this blog, when Jardines was argued, while police need a warrant under these circumstances, Girl Scouts selling cookies are free to approach a residence without fear of running afoul of the Fourth Amendment . . .

SCOTUS: First Sale doctrine applies to foreign-made publications

The US Supreme Court today decided Kirtsaeng v. John Wiley & Sons (U.S. March 19, 2013), holding that the "first sale" copyright doctrine applies to publications made and purchased outside the United States.

First Circuit removes Bulger trial judge

In an opinion by Justice Souter, the First Circuit today ordered District Judge Richard Stearns removed from the Whitey Bulger trial, based on a possible perception of bias. Stearns was in several supervisory roles in the U.S. Attorney's office during the period covered by the indictment. In re James Bulger (1st Cir. Mar. 14, 2013).

SCORI: Retirement Board cannot withhold retirement contribution of convicted (former) N.P. Councilman

The Supreme Court has held that convicted former North Providence City Council member John Zambarano is entitled to the return of over $35,000 that he contributed to the State system while in public employ. Zambarano was sentenced to federal imprisonment, and the federal court also ordered him to forfeit some $46,000, representing the amount he and confederates received in bribes. Ordinarily, a person leaving state service has the right to withdraw funds contributed, but the statute also allows the Retirement Board to refuse the withdrawal under some circumstances when the former public official is guilty public corruption. Reading the statute precisely, our Supreme Court held that the Rhode Island pension statute allows the Retirement Board to withhold funds when the contributing member has been ordered to make restitution to an injured party, but that language does not encompass an order of forfeiture, which benefits not the victim, but the federal government. Zambarano v. Retirement Board. The Supreme Court's decision does not relieve Zambarano of the federal forfeiture, but it does prevent the Retirement Board from holding onto his employee contribution.

SCOTUS: Judge-granted acquittal -- even if erroneous -- bars retrial

SCOTUS today released its decision in Evans v. Michigan first discussed here on the day of argument. In an arson case, the Michigan trial judge granted a judgment of acquittal at the close of the state's case, finding that the state had missed an element. The state appealed within the state system, and the Michigan Supreme Court held that the "missing element" was not really an element of the offense. Because the trial judge had added an extra element, the acquittal was error and the state supreme court, finding no double jeopardy bar, ordered retrial. Not so fast, says the U.S. Supreme Court in an 8-1 opinion by Justice Sotomayor (Alito, J., dissents). A judge-ordered acquittal bars retrial, the Court said, even if the trial judge's decision is "based upon an egregiously erroneous foundation." (quoting Fong Foo v. U.S.).

SCOTUS: Hague Convention case not mooted by order to return child

The Supreme Court held today in Chafin v. Chafin, that a case brought under the Hague Convention on the Civil Aspects of International Child Abduction is not rendered moot in the United States by a District Court's order for return of the child to another country (in this case, Scotland). In a unanimous opinion, Chief Justice Roberts noted that the parties continue to contest issues related to residence of the child and related issues.

SCOTUS gives pat on the head to Aldo, the drug sniffing dog

The United States Supreme Court has held that a Florida's police officer's reliance on the olfactory powers of Aldo, the drug-sniffing dog, was enough to constitute probable cause to search the defendant's vehicle. Florida v. Harris (Feb. 19, 2013). Reversing the Florida Supreme Court, the Justices held -- in the words of Justice Kagan -- that Aldo's sniff was "up to snuff."

SCOTUS to consider Apprendi Expansion

On Monday the U.S. Supreme Court will hear argument in Alleyne v. United States, a case that could advance the Apprendi revolution. See this site's discussion at the time of the cert. grant or, for more details, look at SCOTUSBLOG's argument preview. Briefly the case involved a defendant convicted of robbery, and "using" a firearm, but not guilty of a separate charge for "brandishing." Notwithstanding the "brandishing" acquittal, the District Court enhanced the sentence based on a judicial finding of brandishing, believing that was required by the Supreme Court's 2002 plurality decision in Harris v. United States. In Alleyne SCOTUS appears poised either to overrule Harris or breathe new life into it. Stay tuned.

First Circuit: Dist Ct erred in enjoining Building #19's ad for Swarovski crystal

The First Circuit in Swarovski v. Building No. 19 has reversed a preliminary injunction that would have limited the retailer's ability to advertise a sale of Swarovski Crystal products it had purchased at salvage. Finding that Chief Judge Mary Lisi (D.R.I.) erred in granting preliminary relief without addressing the issue of consumer confusion (important to the "likelihood of success" prong of prelim. inj. analysis) and that the District Court never even considered the matter of irreparable harm.

Providence Superior - Dispositive Motions

Superior Court Justice Luis Matos on January 3, 2013 issued a new Administrative Order re: Dispositive Motions. Of particular note: hearings will be no sooner than 45 days from the date of filing, objections are to be filed within 21 days of the original filing, and the moving party will then have 10 days to reply to the objection.

Foreign Corporation - Authority to Sue in Rhode Island

The Rhode Island Supreme Court today held that the Superior Court erred in granting summary judgment against plaintiff foreign corporation whose authorization to do business in R.I. had been revoked, noting that the plaintiff had corporate authority at the time suit was filed. Custom Metal Systems Ltd. v. Tocci Building Corp.

SCOTUS to review judge's role in coercing plea

The Supreme Court today granted certiorari to review the decision of the 11th Circuit in U.S. v. Davila, 664 F.3d 1355 (11th Cir. 2011). The Court of Appeals held that the actions of the Magistrate-Judge during plea discussions constituted a violation of F.R.Crim.P. 11(c), which protects defendants against judicial coercion of guilty pleas. The Supreme Court will consider whether the judge improperly participated in the plea discussions between the defendant and the prosecution. United States v. Davila, No. 12-167, cert. granted (U.S. Jan. 4, 2013).