Judge Lamberth gave all four defendants the minimum, or close to the minimum sentence. As quoted in the Washington Post:
“It’s clear that these fine young men panicked,” said Lamberth, an Army veteran and Reagan appointee who served as chief district judge from 2008 to 2013.
The “community caretaking” doctrine allows police to perform warrantless searches in some situations. If the police are not investigating a crime but simply looking out for the safety of the community, the theory goes, they should not have to get a warrant to enter a vehicle or dwelling. The risk of course, is that police will covertly investigate crimes under the guise of community caretaking, and violate the Fourth Amendment.
For the second time in two months, the DC Court of Appeals, has upheld a search under this theory. As the Court explains, some states use a reasonableness test for community caretaking searches, and some use a balancing test. The DC Court of Appeals decided to use a “hybrid of the reasonableness and balancing tests.” Here is the test quoted in full:
In order for a law enforcement officer’s community caretaking conduct to be reasonable, the government must show: 1) by specific and articulable facts that the government’s conduct was totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute; 2) the government’s conduct was reasonable considering the availability, feasibility, and effectiveness of alternatives to the officer’s action; 3) the officer’s action ended when the citizen or community was no longer in need of assistance; 4) the government’s interests outweigh the citizen’s interest in being free from minor government interference. This court does not require the government to pursue the least restrictive means of correcting the problem.
The Fourth Circuit has affirmed a sentence of prison plus a lifetime of supervised release in United States v. Helton. The lower court imposed the release term along with a sixty month prison sentence for possession of child pornography. The prison term was a substantial downward variance from the guidelines, a fact which the court relied upon to sustain the lifetime supervised release term.
Most notable is Judge Gregory’s concurrence. He agrees with the result, but is clearly uncomfortable with sentencing practices for these offenses, not excluding those which are below guidelines. He explicitly states that a downward variant sentence could, in a different case, be substantively unreasonable. There are too many quotable passages from the concurring opinion to include in this post, so I will limit myself to quoting his concluding paragraph:
We measure our humanity by the justice we mete to those thought least deserving. I join the majority in affirming the district court, which I believe did an admirable job crafting an individualized sentence. Perhaps in the future, our Guidelines will evolve to become truly proportional to the severity of our crimes. And perhaps then, a district court will not be in the lamentable position of having to balance the need to depart downward from an excessive Guideline term with an entire lifetime of supervision.
After his arraignment last week on federal corruption charges, Sen. Robert Menendez appeared with his attorney, Abbe Lowell, to make a brief statement to news media. Citing the failed prosecutions of Ted Stevens, John Edwards, and Mike Espy, Lowell said that “prosecutors at the Justice Department often get it wrong” and that “these charges are the latest mistakes.” Lowell referred to misconduct by agents investigating Senator Menendez, and said that he has asked the DOJ to investigate this misconduct.
Regarding the substance of the allegations, Lowell stated the relationship between Senator Menendez and his alleged co-conspirator, Dr. Salomon Melgen, was a real friendship, and not a corrupt relationship. The current motions deadline set by the Court is May 1, and it will be interesting to watch this case develop.
See the full video of the statements of Abbe Lowell and Sen. Menendez here: https://www.youtube.com/watch?v=WQZVF11RcQw
And other good advice from Law 360 about increasing producitivy.
…is the average loss amount in a federal sentencing under USSG 2B1.1. This and other interest facts included in the Sentencing Commissions “quick facts” publication on fraud, released yesterday.
Here is the Post story. The only explanation of the legal basis for the dismissal offered by the article is that:
During a hearing that coincided with April Fools’ Day, retired Alexandria judge Alfred D. Swersky ruled that a plea agreement reached in the case barred him from facing further charges, so he dropped the latest indictment.
Northern Virginia practitioners will recognize Judge Swersky, as well as Arlington Commonwealth Attorney Theo Stamos who prosecuted the case.
Here is the full indictment, charging bribery and honest services fraud. The alleged briber is charged as a codefendant. It is a detailed indictment of 68 pages, with many excerpts of discovery documents.
The metropolitan police have made an arrest for the february murder of a young lawyer at Thomas Circle hotel.
The Washington Post coverage offers few details of the evidence against the person in custody. This tragic case has certain similarities to another homicide investigation from not so very long ago.
The DC bar is seeking public comment on proposed changes to rule of professional conduct 1.2. The deadline is April 13.
The proposed changes clarify when limited scope representations are appropriate. While it may sound esoteric, it is potentially significant as I have found creatively limiting the scope of a representation to be very useful in criminal practice.
Burnham & Gorokhov Law Blog 