Petition for Writ of Mandamus Filed on Bond Appeal
On behalf of a client detained in the Duval County Jail, Assistant Federal Public Defender William M. Kent filed a Petition for Writ of Mandamus with the United States Court of Appeals for the Eleventh Circuit. The petition was air couriered to Atlanta, the seat of the Court of Appeals, for expedited action. The Petition asked the Court of Appeals to order the district court to comply with the requirement of the bond appeal statute and promptly rule on the appeal of the client's order of detention. The client had been ordered detained by a magistrate judge. Under the applicable statute an order of detention may be appealed to the district judge by filing a request for review within ten days of the detention order. That had previously been done in this case. Such appeals are to be "promptly" determined.
Usually such appeals are handled expeditiously, that is, within a week to ten days. A person whose detention order is upheld by the district judge is entitled to proceed to the court of appeals for an expedited appeal of the district judge's order. This appeal may be done by filing a notice of appeal within ten days of the district judge's order. Appeals of detention orders even to the district court are rare and appeals to the court of appeals on detention orders are extremely rare.
In this case, the appeal to the district court had been pending for forty-two days as of the day the petition for writ of mandamus was filed. Both the client and Mr. Kent thought that a forty-two day delay was far outside the statutory requirement of a prompt determination. One court of appeals had previously held that a thirty day delay in ruling on a bond appeal was excessive. When any official, including a judge, fails to fulfill a statutory duty, a remedy exists under the petition for writ of mandamus. Mandamus is simply a legal term for an order requiring some action. Petitions for writs of mandamus are termed "extraordinary" writs, and are used very rarely.
The filing of this petition for writ of mandamus is expected to result in a prompt determination of the bond appeal.
Background Facts: The client was at his place of employment by himself when a Secret Service agent and a Postal Inspector showed up early one morning with a warrant for his arrest on a federal fraud indictment. The client's car was outside in a public parking lot. The business was one of many in a small Kmart anchored shopping plaza. At first the agents were going to allow the client to call a friend to come pick up the car, but changed their minds and decided to impound the car. The agents had the car taken to the Secret Service impound lot where the car was subsequently searched allegedly as an "inventory" search. Items found during the search were turned over to the United States Attorney to use as evidence in the case.
Proceedings: Mr. Kent filed a motion to suppress the evidence found in the search arguing that it was a warrantless search that did not meet any of the exceptions to the search warrant requirement. The government countered that it was an "inventory" search, and as such was an accepted exception to the warrant requirement. Magistrate Judge Corrigan scheduled a suppression evidentiary hearing at which the Postal Inspector who participated in eh process was called as a witness and examined under oath by both the Assistant United States Attorney, Mr. Kent and the Judge.
Result: Magistrate Judge Corrigan issued a written report and recommendation recommending to the District Judge that he grant Mr. Kent's motion to suppress the evidence seized during the "inventory" search of the car. The magistrate found that the search did not satisfy the requirements of an inventory search, but instead was a search which should only have been done after a valid search warrant was obtained from a judicial officer.
The United States Attorney has until May 27, 1998 to file objections to the Magistrate's Report and Recommendation. Thereafter the District Court Judge may accept or reject the Magistrate's report. If the District Judge accepts the report he would issue an order that the evidence seized in the search could not be used by the government in the trial of the case.
This is apparently the first motion to suppress that Magistrate Judge Corrigan has recommended granting in his first year on the bench.
The motion to suppress also challenged the admissibility of the seizure of certain mail items. The magistrate recommended against suppression as to that evidence, a matter that will be appealed to the district court.
The Office of the Federal Public Defender is pleased to announce that Mr. Joseph DeBelder will be working in the office as a legal intern this summer. Mr. DeBelder has completed his second year of law school at New York University. Mr. DeBelder has been certified by the Court and Bar to practice under the supervision of Mr. Kent and the other attorneys in the Federal Defender Office. Under such supervision he will appear and assist in the representation of clients in court.
The Office is also pleased to have Mr. Michael Fasano, who is a second year law student from Florida Coastal Law School working as an intern this summer. Mr. Fasano is also expected to be certified to appear in court under attorney supervision.
Arrests Out of District - SpeciaI Issues
A recent case focused attention on the confusion in the federal statutes and rules as to the proper procedures to be followed on so-called "out-of-district" arrests. Under Rule 40 of the Federal Rules of Criminal Procedure, a person arrested in this district on a federal warrant out of another district is entitled to be promptly brought before a magistrate judge for appointment of counsel and a bond or detention hearing. In addition, the government has the burden of proving "identity," that is, that the person arrested is the same person named in the out of district warrant.
Confusion develops when a person is arrested who has previously been released on bond from another district. If the arrest is for a violation of that bond, what steps are to be taken in this district? In particular, what sort of bond hearing or detention hearing do you get if you are being arrested for violation of your current bond?
The government argues that under Rule 40(f) the court here goes through a new bond hearing, can consider that an arrest has been ordered for violation of the prior bond, and then for that reason now detain the person and send them back in custody for their bond violation hearing in the district that issued the arrest warrant.
Mr. Kent argued that this was a misreading of Rule 40(f); that instead the governing statute requires the magistrate to determine whether there has been a bond violation, and if so, what the consequence should be.
Although Magistrate Judge Howard T. Snyder accepted the government's position on the application of the governing statute, he nevertheless refused to accept the government's argument that the client should be detained, despite the allegation that the client had had repeated positive urinalysis tests for cocaine, had repeatedly violated his curfew, had refused to submit a urine sample, had admitted using cocaine on the he occasion that he refused the sample, and was on bond for a crime of violence, kidnapping, for which one co-defendant had already gone to trial, been found guilty and sentenced to ten years imprisonment.
This unusual result, re-release on the same bond conditions that he was alleged to have violated, came after a bond hearing that went on over two days and was the product of case specific factors, including that the alleged "victim" in the case was shown by Mr. Kent to have fled the country and was himself now named in a federal indictment for securities fraud. However the result was also a demonstration of the fact that persistence and advocacy can sometimes yield an unanticipated result.
May 18, 1998 was the day that Kenneth Lynce was supposed to be released from Florida State Prison. That in fact he had been a free man since approximately November of 1996 was the result of tireless efforts by an outstanding Assistant Federal Public Defender, Joel T. Remland, of the Orlando Division of the Federal Defender for the Middle District of Florida. In fact not just Kenneth Lynce but literally hundreds of Florida state prison inmates and hundreds of inmates around the country owed their early release from prison to Mr. Remland.
Background: Florida had a system in place to deal with prison overcrowding. When the prison population reached a certain percentage of capacity, release credits were awarded to inmates pursuant to a formula that resulted in the overall prison population going back to acceptable limits. This mechanism was in place when Mr. Lynce allegedly committed his crimes of violence. His lengthy prison sentence was dramatically shorted due to the prison overcrowding problem and the early release formula. Over time however, the state legislature responded to public pressure in opposition to such early release credits and solved the problem by building more prisons. Once the capacity was there to hold more prisoners longer, the legislature went back and took away early release credits for certain classes of prisoners, those who had been convicted of certain crimes of violence and other specified crimes. Mr. Lynce's conviction put him in the category of inmates who were to lose their early release credits. In fact, the state Department of Corrections, on orders from the State Attorney General, made the new rule retroactive, and took away early release credits that had already been given out. Mr. Lynce and approximately two hundred other Florida inmates had already been released when the Department of Corrections made this decision. So what happened? Mr. Lynce and the hundreds of other people in his position were rearrested and put back in prison and in Mr. Lynce's case he was told he had six more years to serve!
Mr. Lynce started working his way through the courts, having no one to represent him, he had to proceed pro se, meaning he had to be his own lawyer. After exhausting his state remedies he filed a petition for writ of habeas corpus under Title 28, Section 2254 in the Federal District Court for the Middle District of Florida, Orlando Division.
At that point the federal Magistrate Judge appointed the Federal Public Defender to represent Mr. Lynce. Joel T. Remland was assigned to the case. That was a lucky day for Mr. Lynce and the thousands of other inmates across the country in similar circumstances.
Despite the fact that the Florida Supreme Court and the Eleventh Circuit Court of Appeals had already ruled that Florida's retroactive taking away of early release credits was not unconstitutional, Mr. Remland did not give up. He tirelessly relitigated the issue through the magistrate's court, through the district court, through the Eleventh Circuit Court of Appeals and finally took the extraordinary step of filing a Petition for Writ of Certiorari with the United States Supreme Court.
Other lawyers familiar with the well established body of law against Mr. Remland's position would not have kept pushing this issue. In fact many did not. But his untiring, unceasing efforts paid off when the United States Supreme Court granted certiorari and set the case for oral argument in Washington. In early November, 1996 the United States Supreme Court heard Mr. Remland argue the case on behalf of his client, Kenneth Lynce, an indigent state prison inmate. Shortly thereafter the Supreme Court issued its opinion, reversing both the Eleventh Circuit Court of Appeals and the Florida Supreme Court, and agreeing with Mr. Remland's argument that Florida's retroactive taking of early release credits violated the Constitution's prohibition on ex post facto laws.
Mr. Lynce and hundreds of other inmates were released. The case continues to impact state prison programs across the country. All because one Assistant Federal Public Defender , Joel T. Remland, would not give up when he believed his client's constitutional rights had been violated.
Click Here for Full Text of Supreme Court's Decision in Lynce v. Singletary
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In a future column we will address the procedures for dealing with problems you may encounter while in custody at the Duval County Jail.
Remember to not discuss your case with anyone, especially anyone in jail, unless you want to hear it later in court!
In United States v. Biro, 1998 WL 317199, (11th.Cir. Fla. June 17, 1998), the Eleventh Circuit held that because Title 8, § "§1229a(a) became effective during the pendency of Demeter's case, we must vacate the portion of Demeter's sentence ordering his deportation as a condition of supervised release. We remand to the district court for consideration whether Demeter should be surrendered to the INS for deportation proceedings in accordance with the INA."
There was a period of time that District Court judges thought they had the authority to order deportation of illegal aliens as a part of the sentence in the criminal case. This would be done by ordering that the alien had to serve his entire prison sentence then as a special condition of his supervised release the alien was ordered to be deported. Many attorneys felt that this practice was prohibited by Title 8 of the United States Code, which delegates to Immigration judges exclusive authority in matters of immigration. The dispute rose to the Supreme Court in a case out of Georgia, United States v. Chukwura, but while certiorari was pending Congress expressly amended Title 8, § 1229 to make clear that only immigration judges could order deportations.
An interesting feature of the new Biro case is the final sentence ordering remand to the district court to determine whether the defendant should be surrendered to INS for deportation. It is not clear what this means. Congress also ordered the Department of Justice in the last immigration reform act to set up expedited procedures to deport criminal aliens, which DOJ has not done. This had been interpreted as Congress intending criminal aliens be deported prior to completion of their sentences. Is Biro telling the district court to do this own its own?
United States v. Tomono, 1998 WL 312154, (11th Cir.(Fla.) June 15, 1998) the Court of Appeals reversed a downward departure sentence. The district court had agreed with Assistant Federal Public Defender Darlene Geiger (Orlando Office) that her client, Mr. Tomono, who was from Japan and had been convicted of failing to declare some small turtles that he imported for sale in U.S. pet shops, did not understand the seriousness of his offense due to cultural differences between Japan and the United States. The district court found that this was a factor that was not considered by the Sentencing Commission in establishing the guidelines for the offense (which require prison time), and was a factor that took the case out of the "heartland" and could be used to justify a downward departure - in this case to probation. The court of appeals ruled:
"At the sentencing hearing, the district court found that the base offense level for a crime involving wildlife is six. See U.S. Sentencing Guidelines Manual § 2Q2.1(a) (1997). The district court added two offense levels because the offense involved a commercial purpose, see id. § 2Q2.1(b)(1), and five more offense levels because it found that the market value of the wildlife was more than $40,000, see id. § 2Q2.1(b)(3)(A). The district court then subtracted two offense levels for acceptance of responsibility, resulting in a total offense level of eleven.
Tomono moved for a downward departure under § 5K2.0, alleging that because of the cultural differences between the United States and Japan, he was unaware of the serious consequences of his actions, and that these cultural differences constituted a factor not considered by the Sentencing Commission that should be taken into account in calculating his sentence. The district court agreed with Tomono, and granted him a three-level downward departure under § 5K2.0, bringing the offense level down to eight. Tomono was sentenced to five years of probation (unsupervised provided that he would leave the United States), a fine of $5000, and a special assessment of $200. The Government filed a Motion to Correct Sentence, contending that the judge had erred in granting a downward departure based on "cultural differences." The district court denied the motion. The Government appeals the downward departure.
. . . The record before us does not support the conclusion that the circumstances surrounding Tomono's crime were very different from the heartland of cases considered by the Sentencing Commission in drafting § 2Q2.1. We hold that the district court abused its discretion in concluding that the circumstances of this case were sufficiently unusual to justify granting Tomono a downward departure under § 5K2.0."
United States v. West, 1998 WL 306560 (11th Cir.(Ala.) June 11, 1998) demonstrates how the court of appeals will always find a way to deny a speedy trial objection. That is the bad news. The good news is that the district judges in Jacksonville are very good at keeping cases on track and not continuing or allowing cases to drag out unless the defendant agrees with the continuance. Of course there are always exceptions, but normally continuances in Jacksonville require the defendant's agreement. If your lawyer thinks your case should be continued, you should defer to his judgment and experience.
The court held:
"This court reviews claims under the Speedy Trial Act (Act) de novo.
United States v. Twitty, 107 F.3d 1482, 1488 (11th Cir.), cert. denied,
--- U.S. ----, 118 S.Ct. 253, 139 L.Ed.2d 181 (1997). The Act provides
that when a defendant enters a plea of not guilty, "the trial ... shall
commence within seventy days from the filing date (and making public) of
the information or indictment, or from the date the defendant has appeared
before a judicial officer of the court in which such charge is pending,
whichever date is later." 18 U.S.C. S 3161(c)(1). The Act also
provides numerous instances of excludable time periods from this seventy-day
calculation. See 18 U.S.C. S 3161(h). West claims that 177 unexcluded
days elapsed between his first appearance and his trial and, therefore,
the court erred in not dismissing his indictment.
The grand jury in the Northern District of Alabama first indicted West
on June 10, 1993, and he did not appear in court concerning this indictment
until February 9, 1995. This first appearance triggered the running of
his speedy trial clock. See 18 U.S.C. S 3161(c) (1998). On April
4, 1995, the government moved to dismiss West's indictment, after a drug
task force grand jury returned a new, "replacement" indictment against
him. The court granted this motion, and the grand jury indicted West again
on April 5, 1995. According to the Act and case law in this circuit, the
government's dismissal of West's original indictment, and the subsequent
("replacement") indictment, triggered a new seventy-day time period. See
18 U.S.C. S 3161(d)(1); see also United States v. Puett, 735 F.2d 1331,
1333-34 (11th Cir.1984) (stating, "[t]he better construction of section
3161(d)(1) is that after the dismissal of the complaint [by the government],
the Act's time limit runs anew from the date of filing of the subsequent
complaint or indictment"). The grand jury indicted West one day after the
government dismissed the original indictment, and therefore, West's speedy
trial clock restarted with the April 5, 1995 indictment.
On May 4, 1995, the government filed a motion to continue West's
trial, anticipating that the June 1995 session of the drug task force grand
jury would return a superseding indictment against West. On May 26, 1995,
West, and his lawyer, executed a waiver of his speedy trial rights, through
August 7, 1995. The court granted the government's motion to continue on
June 1, 1995, basing its decision in part on the waivers that the defendants
filed and their lack of objections to the continuance. At trial, 124 days
after the grand jury issued its "replacement indictment," West moved to
adopt several motions of codefendant Wofford, including a motion to dismiss
the indictment based on speedy trial violations. The court granted West's
motion to adopt, but denied all of the underlying motions.
West attacks his waiver, claiming it could not have been "knowing and intelligent" because he and his lawyer executed it beyond his speedy trial limits, and the potential punishment of life incarceration. West and his lawyer, however, executed this waiver well within the limits of the Act (50 days had elapsed since the April 5, 1995 "replacement" indictment), and he has not presented any other evidence demonstrating that this was not a "knowing and intelligent" waiver.
West also claims that the court erred in granting the government's motion
to continue, because it failed to make a specific "ends of justice"
finding pursuant to 18 U.S.C. S 3161(h)(8). [FN4] We review a
court's decision to grant or deny a continuance under the Act for abuse
of discretion. United States v. Goetz, 826 F.2d 1025, 1027 (11th
Cir.1987).
The court granted the continuance based in part on the waivers that the defendants filed and their failure to object to the continuance. Further, the grounds listed in the government's motion to continue included: (1) that the grand jury was prepared to issue a superseding indictment; (2) that the government needed more time to compile discovery material; and (3) that the defendants would need additional time to file any necessary motions when they received the discovery materials. While the court's order did not specifically state that the decision was based on the "ends of justice," we find, after a review of the record and the findings enunciated in its order, that the court did not abuse its discretion and that the continuance served the "ends of justice." See Twitty, 107 F.3d at 1489-90; United States v. McKay, 30 F.3d 1418, 1420 (11th Cir.1994), cert. denied, 516 U.S. 924, 116 S.Ct. 323, 133 L.Ed.2d 224 (1995); United States v. Vasser, 916 F.2d 624, 627 (11th Cir.1990), cert. denied, 500 U.S. 907, 111 S.Ct. 1688, 114 L.Ed.2d 82 (1991).
We therefore find that West validly waived his speedy trial rights,
and the court relied on it and other factors in rescheduling a trial to
a date beyond the expiration of the seventy-day period."
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The Internet will revolutionize our culture and the culture of the world. It is happening already.
If you haven't done so, you should obtain an internet connection. I recommend a high speed connection. Currently in Jacksonville the only high speed connection (other than dedicated lines, which are not available to ordinary consumers) is Mediaone's cable service. Coming next fall is high speed ALDS service over the telephone presented by Southern Bell. This technology will allow you to use the phone at the same time you are using your phone line for high speed data transmission. The ALDS service is anticipated to be slightly more expensive than the cable service.
I am proud to announce that this newsletter and other items of interest can be found at my newly constructed internet web site, "William Kent's Federal Criminal Defense Update," at
www.jacksonville.net/~wkent.
Check it out! If you access the site, please let me know what
you think of its layout and content by sending me an email from the site.
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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.
"Elmer swallowed ideas whole; he was a maelstrom of prejudices; but Jim accurately examined every notion that came to him. Jim was selfish enough, but it was with the selfishness of a man who thinks and is coldly unafraid of any destination to which his thoughts may lead him." Elmer Gantry, by Sinclair Lewis (1927 ed., p.8).
Oral argument in United States v. MacAlister presenting the issue of the extraterritorial application of the conspiracy to export statute. Can the United States apply its criminal law to a foreign citizen for acts committed by him solely in his own country when he has never entered the United States? This is an issue of first impression.
Consulado General
Dirección: 1200 N.W. 78th. Ave.,
Suite 200 33126 Miami Fl.
Tels:(305) 716-4979/ 716-4953/85
Fax: (305) 593-2758
Cónsul General
Luis Ortiz Monasterio Castellanos
*****
Consulado de Carrera
Dirección:823East Colonial Drive
Orlando, Florida, 32803
Tels: (407) 894-0514
Fax: (407) 895-6140
Titular
Martín Torres Gutierrez Rubio