Kent's
Federal Criminal Defense Update
Volume One, Number Four
August 1998
Contents
News of the Month
Willie Washington Case Still Uncertain
As of the publication date of this newsletter, the Eleventh Circuit had
still not issued its decision in United States v. Willie Washington,
the case challenging the search of Mr. Washington who was a passenger on
a northbound bus out of Jacksonville. On June 29, 1998 the Eleventh Circuit
issued its opinion in United States v. Guapi, in which it held that
the failure of the law enforcement officers to advise the bus passengers
that they were free to decline the requested questioning and search was
fatal to the constitutionality of the search. The Guapi bus search
was unconstitutionally coercive because of the failure to advise the passengers
that they were free to decline. This was the identical issue presented
in the Washington case, and the same judge who authored the Guapi
opinion, Judge Rodney, was also on the three judge panel that heard the
Washington case. In the initial version of the Guapi opinion
released by the Eleventh Circuit on the internet, the opinion in Guapi
contained a sentence that the Guapi opinion was paralleling that
of a different panel in United States v. Willie Washington. However,
days later, without explanation, the Court released a different version
of the Guapi decision for official publication, deleting the reference
to Washington. Mr. Kent immediately filed a motion for release of
Mr. Washington on an appeal bond citing the Guapi decision, which
should be controlling precedent for Washington. However, District
Judge Schlesinger denied the motion for bond, citing the deletion of the
sentence referred to above from the official publication of Guapi.
Click Here to Read
Guapi
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United States Marshals Service
Did you know that the United States Marshals Service is the oldest law
enforcement agency in the United States? President George Washington
established the United States Marshals Service under the Judiciary Act
of 1789. Did you know that the first United States law enforcement
officer to be killed in the line of duty was a United States Marshal?
He was J. H. Adams and was killed on September 2, 1878. Since then
over two hundred marshals have lost their lives in service to our country.
Did you know that the United States Marshals Service makes over 55% of
all federal arrests, more than all other federal agencies combined?
Like many federal agencies today, the United States Marshals Service
is operating under severe budget constraints. They are having to
do more with less. They deserve our support. Congress has before
it legislation, The Marshals Service Improvement Act, which is supported
by the Director of the United States Marshals Service that seeks to improve
the function and operation of the service. Contact your local representative
and ask them to support this important legislation! Click
here to read Director Gonzalez's Remarks to the Senate Concerning this
Legislation.
Visit the exciting and interesting Official Website of the United States
Marshals Service to learn more about the history and service of this important
agency. United States
Marshals Service Webpage - Click Here!
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Donald Garrison - New Most Wanted
Fugitive
August 24, 1998
Contact: USMS Public Affairs
(202) 307-9065
Donald Jerry Garrison, 38, wanted by the U.S. Marshal for the District
of Columbia (District Court) on federal charges of
parole violation from a previous second degree murder conviction for
the 1977 killing of an Arlington County police officer
during an armed bank robbery, was added today to the U.S. Marshals
Service list of "15 Most Wanted" fugitives by Marshals
Service Director Eduardo Gonzalez. Garrison, a District of Columbia
native, joins the list of Marshals Service top fugitives who
generally have a history of violent criminal behavior and are wanted
for crimes that pose a serious threat to the public.
Garrison violated his parole from his conviction for his part in the
murder of the Arlington County Police Officer John W.
Buckley, 26, on April 15, 1977 when he failed to appear on March 22,
1991 in the District of Columbia Superior Court on
charges of alleged prostitution. He has been at large since then. Garrison
has 6,176 days remaining to be served from his
original murder sentence. He has an extensive criminal history with
numerous arrests and convictions for murder, armed
robbery, and armed bank robbery.
Director Gonzalez cautioned that "due to Garrison's violent criminal
background, he should be considered armed and quite
dangerous."
Garrison is a white male who is 5'11" tall and weighs 220 pounds, with
brown hair and green eyes. He has a tattoo of "snake
eyes" dice on his right arm, and a heart with a protruding dagger tattoo
on his left arm. Numerous aliases he has used include:
David M. Corridon, Steve Jackson, and Steven Keith Pope.
Anyone with information pertaining to this dangerous fugitive is asked
to contact the nearest U.S. Marshals Service office or the
U.S. Marshals Service Headquarters at 800-336-0102 or 202-307-9000.
Top of Page
Foreign Friends - Venue for 8 U.S.C. 1325 Offenses
Title 8, Section 1325 makes it a federal criminal offense to entry the
United States without official inspection and permission. The first
such offense is a petty offense punishable by no more than six months incarceration.
Reentry following a prior commission of such offense is a felony, however.
For our Mexican friends, the typical place of entry will be somewhere along
the Texas border. The Constitution provides that venue for federal
offenses must be in the district wherein the offense was committed.
What is the venue for an illegal entry?
The government may point to 8 U.S.C. Section 1329 which purports to
confer venue upon any and every United States District Court. However,
the Office of Legal Counsel of the Department of Justice has issued an
opinion in which DOJ concludes, rightly, that this statute's attempt to
override the venue provision of the Constitution is itself unconstitutional.
Venue for a 1325 offense can only lie in the district in which the illegal
entry was made.
Unless an alien enters Jacksonville illegally at its port, or at the
port in Fernandina Beach, there is virtually no way that venue can ever
lie in Jacksonville for a 1325 offense.
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Illegal Entry - Felony or Misdemeanor?
The next question to look at after venue in a Title 8, Section 1325 case,
is whether it is a felony or a misdemeanor. Clearly the first such
offense is a petty offense for which the maximum punishment is six months.
However, under the statute a subsequent reentry is a felony. What
does it take to be a felony? Must there only have been a prior entry
and a reentry or must there have been a prior conviction
for the petty offense. There is no case law on the he question in
the Eleventh Circuit, but the circuits that have looked at the question
say that there must be a prior conviction, a prior entry and removal alone
will not suffice tot urn a subsequent reentry into a felony.
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Crack or Cocaine Base?
Darlene Geiger, an attorney in the Orlando office of the Federal Public
Defender, has had remarkable success in two recent cases convincing the
District Court that it could not sentence a defendant in a cocaine case
under the crack guidelines, but must instead apply the powder cocaine guidelines,
when the only evidence is a lab report that says "cocaine base."
The argument is that although crack is cocaine base, it is only one form
of cocaine base. That is, all crack is cocaine base, but not all
cocaine base is crack. You may only get one "crack" at this argument,
so proceed with caution!
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Pending Appeals
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The MacAllister case is still awaiting a decision after having been argued
last month before the Eleventh Circuit. This case presents the novel
question of the extraterritoriality of a conspiracy to export cocaine offense.
Mr. MacAllister, was a Canadian citizen, who along with a number of other
Canadians were induced to enter into an agreement with undercover DEA agents
who offered to transship cocaine from Colombia to Canada. Mr. MacAllister
never entered the United States at any point in the conspiracy. He
was arrested in Canada on the United States indictment and extradited over
his objection to Jacksonville where he stood trial, was convicted and appealed.
Mr. MacAllister argued that Congress did not intend the conspiracy to
export statute to have extraterritorial jurisdiction. Alternatively,
to the extent there was any basis for U.S. jurisdiction, it was jurisdiction
by entrapment, or manufactured jurisdiction, and must be rejected by the
court.
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Joshua Green's petition for certiorari is before the United States Supreme
Court. It presents the issue of the requirement of the defendant
to know the length of the barrel of a short barreled shotgun to be convicted
for possession of an unregistered short barreled shotgun.
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Jury Nullification - Mr. Kent has a petition for certiorari pending before
the United States Supreme Court in two consolidated cases on the issue
of jury nullification or jury pardon. This is a hot button issue
in certain circles and may be of particular interest to Justice Sandra
Day O'Connor. See and read the petition
for certiorari in full by clicking here!
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Your Lawyer
Your lawyer is William M. Kent. Mr. Kent was first admitted to practice
by the State Bar of Florida in 1978. He has also been admitted to
practice before the United States Tax Court (1979), the State bar of California
(1980), the Middle District of Florida (1989) and the United States Supreme
Court (1992). Mr. Kent is one of three lawyers in the Jacksonville
office of the Federal Public Defender. The other attorneys are James
H. Burke, Jr., who is the Managing Assistant in charge of the Jacksonville
office and Mark Rosenblum. Both Mr. Burke and Mr. Rosenblum have
over twenty years criminal law experience. The office has a full time Jacksonville
investigator, Mr. Jerry Cribbs, and a paralegal specialist (who is also
the only Federal Court Certified Spanish Interpreter in Jacksonville),
Mr. Stephen Kruer. The Jacksonville office's administrative and support
staff consists of Mrs. Debbie Dixon and Mrs. Dottie Began. The office
hours are 8:30 to 5:00 Monday through Friday. Collect phone calls
are accepted during office hours at (904) 232-3039. The office fax
number is 232-1937. Mr. Kent's E-mail address is bill_kent@fpdflm.org.
If you are held in custody without bond, Mr. Kent will normally visit
you once a week at the jail. If you are released on bond, please
contact Mr. Kent at least weekly.
It is office policy to provide you with copies of all correspondence,
pleadings and documents coming into or going out of the office on
your case. Exceptions may be made in the case of certain sensitive
documents relating to governmental cooperation for clients who are
in custody.
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Kent's View
Some rhetorical questions:
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Why can't the Sentencing Guidelines provide for a pre-plea determination
of the applicable guidelines, so that the defendant doesn't have to play
Russian Roulette when he enters a plea? There is no basis in reason
for the current system, that amounts to little more than a game of "gotcha"
or sandbagging.
-
Why can't an agreement with the prosecutor be the basis for a downward
departure?
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