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.