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Archive for June, 2016

Federal Authorities Investigating Shooting Death of Journalist in Texas

Journalist Jay Torres was killed in Texas.

Journalist Jay Torres was killed in Texas.

By Steve Neavling
ticklethewire.com

The FBI, Secret Service and U.S. Marshals Service have joined an investigation into the murder of a freelance journalist in Garland, Texas.

Jacinto Hernandez Torres was discovered with a gunshot wound on June 13 in the backyard of a vacant house he was considering buying, the Dallas Morning News reports. 

Authorities are unsure why Torres was killed, but his family members said he was working on stories that could endanger him. One of the stories was human trafficking.

“We are aware that he was a journalist, as well as worked in real estate. We are working at all aspects and leads that we have in order to find out who killed Mr. Torres,” Lt. Pedro Barineau told CBS.

Senator Delays Bill to Allow FBI to Obtain Internet Records without a Warrant

congress copyBy Steve Neavling
ticklethewire.com

A bill that would expand the FBI’s authority to use secret surveillance to obtain some Internet records was held up because of privacy concerns.

Sen. Ron Wyden, D-Ore., placed a hold on the Intelligence Authorization Act, saying it would lead to a “dramatic erosion” of privacy rights, Reuters reports. 

A provision in the legislation would allow the FBI to hand over certain Internet records using national security letter, which do not require a warrant.

“Convenience alone does not justify such a dramatic erosion of Americans’ constitutional rights,” Wyden said on the Senate floor.

Ex-L.A. County Undersheriff Sentenced to 5 Years in Prison for Obstructing FBI

Former L.A. County Undersheriff Paul Tanaka.

Former L.A. County Undersheriff Paul Tanaka.

By Steve Neavling
ticklethewire.com

Paul Tanaka, a former Los Angeles County undersheriff, was sentenced to five years in prison Monday after he was convicted in April of conspiracy and obstructing an FBI investigation into deputy jail abuse.

Prosecutors alleged Tanaka, 57, gave deputies permission to use violence against inmates and protected them from recourse, the Los Angeles Times reports.

Tanaka also was accused of directing his underlings to intimidate the FBI during the investigation and conceal the whereabouts of an inmate working as a federal agent.

“Not only did he fail to identify and address problems in the jails, he exacerbated them,” the judge said of Tanaka.

FBI Failed to Alert Numerous Americans They Were on ISIS Kill Lists

By Steve Neavling
ticklethewire.com

Numerous Americans who were placed on secret ISIS kill lists were never notified by the FBI, nor were the local police alerted, Circa reveals.

The ISIS hit lists have been posted on encrypted websites, identifying more than 15,000 people who should be killed by sleeper cells or lone wolves in Florida, California, Texas and New York.

Circa made the discovery by obtaining copies of some of the lists and contact people who are targets.

In Texas, Circa discovered that 22 out of 24 people sampled were never notified they were on an ISIS kill list.

“I was terrified. We live in a different world and the Jewish community is a number one target of these radicals,” said a woman in Austin who found out from Circa that she and several of her friends in the Jewish community were on a list. The woman agreed to be interviewed only on condition of anonymity, fearing using her name would only increase her risk.

“I’m very upset that I was not notified by the FBI or local law enforcement,” she said.

The FBI has said its agents have intended to alert all Americans threatened by ISIS and notify the local police departments.

The FBI acknowledged some names may have been missed, but insists most people were alerted.

“The FBI routinely notifies individuals and organizations of potential threat information. We perform these notifications so potential victims are aware of possible threats and take appropriate steps,” the bureau said. “Those measures may include paying close attention to your surroundings at all times, protecting personally identifiable information, and immediately calling the local authorities if you observe something suspicious. The FBI will continue to work closely with federal, state, and local partners to keep the public informed of potential threats.”

Suspected Mobster Arrested Over Boston Club Owner’s 1993 Death

Suspected mobster Robert DeLuca.

Suspected mobster Robert DeLuca.

By Steve Neavling
ticklethewire.com

A suspected Rhode Island mobster who is accusing of interfering in a federal probe of a 1993 murder has been arrested by the FBI for allegedly interfering with the investigation.

UPI reports that Robert DeLuca was arrested in South Florida, just three months after authorities found the remains of Boston nightclub owner Steven DiSarro in Providence. He disappeared in 1993.

DeLuca, 70, was charged with obstruction of justice and lying to federal investigators about the death of DiSarro.

Prosecutors believe DeLuca was involved in the nightclub owner’s death and lied to FBI agents about what he knew.

“We look forward to the conclusion of the FBI’s investigation so we can learn as much as possible about what really happened to Steven and finally get some closure for our family,” widow Pamela DiSarro said in March.

DeLuca is expected to face extradition to Massachusetts as early as Thursday.

Appellate Court Dismisses Lawsuit Filed by Parents of Slain Border Patrol Agent

Brian Terry

Slain Border Patrol Agent Brian Terry

By Steve Neavling
ticklethewire.com

An appellate court dismissed a lawsuit filed by the parents of Border Patrol Agent Brian Terry, who was killed at a gun battle worth of the Arizona-Mexico border in December 2010.

The lawsuit alleges the federal government endangered law enforcement officers during the botched “Fast and Furious” gun-smuggling investigation, the Associated Press reports.

Two guns found at the scene were bought by a drug-smuggling ring monitored through the “Fast and Furious” investigation.

The 9th Circuit Court of Appeals agreed with a lower-court’s decision to dismiss the lawsuit because of congressionally-mandated remedies in place for survivors of agents who die in the line of duty.

Other Stories of Interest

The Wrap Up of the U.S. Supreme Court’s Criminal Cases for 2015-16, Including the Decision on Ex-Virginia Gov. Bob McDonnell’s Corruption Case

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

Ex-Gov. Bob McDonnell

Ex-Gov. Bob McDonnell

By Ross Parker
ticklethewire.com

The Supremes spent a very busy June and completed opinions on six difficult criminal cases, as well as three important civil cases and several others totaling 24 opinions as of June 27th.

That constitutes more than a quarter of the opinions for the entire year. The Court did, of course, have other business, several hundred certiorari petitions to review for next term’s docket, in-chambers opinions (applications to stay proceedings etc.), orders, and a few per curiam opinions deemed not to be worthy of full, authored opinion. The Justices have, for the most part, cleared the deck so that they can visit the grandchildren.

The Court rounded off the term on criminal cases by vacating the conviction of former Virginia Governor Bob McDonnell in a convincing unanimous opinion that not only restored his career hopes but also those of hundreds of legislators who feared the government’s interpretation of Hobbs Act bribery would make politics as usual a dicey business.

The Court narrowed the definition of “official acts” and “pending question or matter” such that the standard assistance of constituents provided by politicians could not result in a career-ending indictment.  The Court did not go so far as to completely end McDonnell’s worries. It remanded the case to the Court of Appeals to review his claim that the evidence was insufficient, thus requiring dismissal of the charges. Even if he overcomes that hurdle or the Justice Department decides not to re-try the case, the question is whether future voters will forgive the First Couple’s receipt of $175,000 in shopping sprees and luxury vacations from someone who got essentially zero for his generosity.

As expected, the Court also vacated the judgment in Williams v. Pennsylvania, a capital case in which the Chief Justice of the Pennsylvania Supreme Court refused to recuse himself from ruling on a habeas petitioner’s appeal. What makes this action remarkable is that the Chief Justice, in his position as district attorney, had been involved in the criminal case by authorizing the decision to seek the death penalty and in supervising the case generally as head of the office. The vote, however, was closer than expected, 5-3, in reviewing this egregious behavior by former Chief Justice Castille. The dissent’s distinction was that the appeal involved a habeas decision, not the criminal phase of the case and occurred after Castille had left the prosecutor’s off ice. The state’s argument did not, however, pass the smell test, whatever artificial distinctions could be drawn.

In contrast, the Court ruled unanimously, 8-0, to reverse the 9th Circuit’s dismissal of the conviction in United States v. Bryant. The case held that tribal court domestic assault convictions could be valid predicates in a federal habitual offender prosecution, even though the prior convictions were without counsel. This was not a 6th Amendment violation since the right to counsel does not apply in this misdemeanor context in tribal courts. A victory for serially battered Native American women.

It was a tough month for Puerto Rico. Another prediction whiff by this column occurred in Puerto Rico v. Sanchez Valle. Apparently a vestige of Yankee imperialism lives on since the majority found that Congress, not the Puerto Rican people, was the historical source of the territory’s authority to enforce criminal laws. This meant that Puerto Rico is not sovereign in the same way that Indian tribes or the states are. Therefore the illegal firearms prosecution by local prosecutors was barred under Double Jeopardy after the Justice Department did a quickie prosecution for the same offense while the Puerto Rican case was awaiting trial.

For my money, Justice Breyer’s dissent had it right that all three branches of the federal government had returned that authority to the people of Puerto Rico when a self-governing Constitution was authorized. This broke any chain of authority going back to Congress. Yet another reason for statehood.

Then the Court piled on a week later when it struck down a Puerto Rican civil law as unconstitutional under the federal bankruptcy law. The case disallowed the attempt by Puerto Rican public utilities to restructure a $20 billion debt over the objections of creditors. Without a way to reduce its enormous debt, the case threatens the government’s ability to provide transportation and clean water to the public. Unlike say Detroit, Puerto Rico had been excluded from the Bankruptcy Code by Congress in 1984. Look for a renewed bail out plea by Puerto Rico to Congress.

In Taylor v. United States the Court rejected the defendant’s clever defense to a Hobbs robbery charge that he only intended to rob those who dealt in locally grown marijuana, and thus had no effect on interstate commerce. Not much left of this element in the context of drug dealing victims since all drug dealing affects the economy.

Without Justice Scalia as a partner in dissents, Justice Thomas must feel lonely on that side of the opinions. Justice John Marshall Harlan was the first called the Great Dissenter for his opposition in the 19th Century to the Court’s abominable opinions denying equal protection to Black Americans. Since then others have been given the title as an expression of respect—Oliver Wendell Holmes in the 1st Amendment freedom of speech context, Hugo Black and William O. Douglas in the 60s, and John Paul Stevens for his unique way of viewing the law in contemporary society. But Justice Thomas will never join their ranks. The Great Contrarian perhaps.

The Court in Utah v. Streiff held 5-3 that the attenuation doctrine could limit the exclusionary rule’s application in the context of a police officer who made an unlawful stop but then got lucky when he discovered that there was an outstanding arrest warrant for the detainee. The case made sense since the officer acted in good faith and did nothing to contrive the basis for the stop. As Napoleon said before Waterloo, it’s better to be lucky than good.

Another significant 4th Amendment decision was Birchfield v. North Dakota/Bernard v. Minnesota, in which the Court reviewed state statutes which made it a crime for detained drivers to refuse to submit to a sobriety test. Both breathalyzer and blood tests are considered searches incident to arrest, but is a warrant required? The Court distinguished between the two, finding that the former does not implicate significant 4th Amendment privacy interests but the latter does. So, unless there are exigent circumstances, a warrant is required to obtain a blood sample.

Finally the Court disappointed 2nd Amendment firearms advocates in holding in Voisine v. United States, by a 6-2 vote, that a conviction of domestic violence misdemeanor, even with only a showing of recklessness, could satisfy the federal statute’s prohibition of possession of a firearm.

For those schadenfreudian readers who kept track of the column’s predictions for the term, it is 17 out of 22, about 80%, great for a hockey forward on shoot outs, bad for a goalie.

Not that the summer will be a complete blow-off for the Justices. They, with the help of their law clerks, continue to look over about 100 new petitions for review received every week, along with motions, preparing for fall arguments, etc.

Actually, the Justices travel quite a bit throughout the year, frequently on the dime of outside groups. These trips totaled 365 for all nine of the Justices last year, ranging from about five a year by Chief Justice Roberts to around 25 by Justice Scalia. The trips often involve speeches which, no doubt, help educate the public about the life and function of the Court.

One interesting development this last month was the GAO’s report which gently supported the idea of live video of oral arguments, an issue advocated for some time. Two of the Circuit Courts, as well as dozens of state courts, already have stepped into the 21st Century with this project. The Court, however, is cautious about such changes, and column writers on oral arguments are unlikely to be made redundant in the near future.

This project has renewed my respect for the rigorous job the Justices have as the Supreme law of the land. Not the occupation for slackers or the faint of heart.

Parker’s Wrap Up of the Supreme Court’s 2015-16 Criminal Cases, Including the Vacating of Ex-Virginia Gov. Bob McDonnell’s Corruption Conviction

Ross Parker

Ross Parker

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

By Ross Parker
ticklethewire.com

The Supremes spent a very busy June and completed opinions on six difficult criminal cases, as well as three important civil cases and several others totaling 24 opinions as of June 27th.

That constitutes more than a quarter of the opinions for the entire year. The Court did, of course, have other business, several hundred certiorari petitions to review for next term’s docket, in-chambers opinions (applications to stay proceedings etc.), orders, and a few per curiam opinions deemed not to be worthy of full, authored opinion. The Justices have, for the most part, cleared the deck so that they can visit the grandchildren.

The Court rounded off the term on criminal cases by vacating the conviction of former Virginia Governor Bob McDonnell in a convincing unanimous opinion that not only restored his career hopes but also those of hundreds of legislators who feared the government’s interpretation of Hobbs Act bribery would make politics as usual a dicey business.

Ex-Gov. Bob McDonnell

Ex-Gov. Bob McDonnell

The Court narrowed the definition of “official acts” and “pending question or matter” such that the standard assistance of constituents provided by politicians could not result in a career-ending indictment.  The Court did not go so far as to completely end McDonnell’s worries. It remanded the case to the Court of Appeals to review his claim that the evidence was insufficient, thus requiring dismissal of the charges. Even if he overcomes that hurdle or the Justice Department decides not to re-try the case, the question is whether future voters will forgive the First Couple’s receipt of $175,000 in shopping sprees and luxury vacations from someone who got essentially zero for his generosity.

As expected, the Court also vacated the judgment in Williams v. Pennsylvania, a capital case in which the Chief Justice of the Pennsylvania Supreme Court refused to recuse himself from ruling on a habeas petitioner’s appeal. What makes this action remarkable is that the Chief Justice, in his position as district attorney, had been involved in the criminal case by authorizing the decision to seek the death penalty and in supervising the case generally as head of the office. The vote, however, was closer than expected, 5-3, in reviewing this egregious behavior by former Chief Justice Castille. The dissent’s distinction was that the appeal involved a habeas decision, not the criminal phase of the case and occurred after Castille had left the prosecutor’s off ice. The state’s argument did not, however, pass the smell test, whatever artificial distinctions could be drawn.

In contrast, the Court ruled unanimously, 8-0, to reverse the 9th Circuit’s dismissal of the conviction in United States v. Bryant. The case held that tribal court domestic assault convictions could be valid predicates in a federal habitual offender prosecution, even though the prior convictions were without counsel. This was not a 6th Amendment violation since the right to counsel does not apply in this misdemeanor context in tribal courts. A victory for serially battered Native American women.

Read more »