Criminal – Page 96 – Turtle Talk

Finally, the court could always impose a fine in the amount of the “buy money.” In fact, 21 U.S.C. § 844(a) has its own special provisions for fines, which, among other things, provide that, upon conviction “a person who violates this subsection shall be fined the reasonable costs of the investigation and prosecution of the offense …, except that this sentence shall not apply and a fine under this section need not be imposed if the court determines under the provision of Title 18 that the defendant lacks the ability to pay.”

Federal Court Denies Motions to Dismiss Indictment for Drug Smuggling in Akwesasne

December 19, 2012Matthew L.M. Fletcher

Here is the order in United States v. Cournoyer (E.D. N.Y.):

DCT Order Denying Cournoyer Motions to Dismiss

MSU Law Prof Study Helps N.C. Inmates (inc. a Lumbee Indian) Get Off Death Row

December 15, 2012Matthew L.M. Fletcher

Here.

Excerpts:

After the act was passed, researchers from Michigan State University studied the application of the death penalty in North Carolina and found that peremptory challenges had been used to remove blacks from juries at a rate more than twice that of whites, a rate that was even higher in Cumberland County. Removing potential jurors solely on the basis of race has been ruled unconstitutional.

***

Mr. Golphin and Mr. Augustine are black, and Ms. Walters is a Lumbee Indian. They were convicted of unrelated murders and have been on death row at least 10 years. Their victims included whites and blacks; in Mr. Golphin’s and Mr. Augustine’s cases, the victims were law enforcement officers.

A summary of the study is here.

A paper by the study’s authors, Catherine Grosso and Barbara O’Brien, in the Iowa Law Review about the study is here.

Magistrate Report and Recommendations Order in Native Mob Indictments — Motions to Suppress

December 14, 2012Matthew L.M. Fletcher

Here is the order in United States v. McArthur et al. (D. Minn.):

US v. McArthur MJ Report

Eighth Circuit Creates Intra-Circuit Conflict –On Same Day — in Major Crimes Act Sexual Assault Cases

December 14, 2012Matthew L.M. Fletcher1 Comment

Here are the cases:

United States v. Bruguier

United States v. Rouillard

Here is a blog post from On Brief, Iowa Appellate Blog, that details the conflict. H/t to P.T. and How Appealing.

The conflict:

In United States v. Bruguierand United States v. Rouillard, the defendants were convicted of “knowingly . . . engaging in a sexual act with another person if that other person is–(A) incapable of apprising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” The issue is whether the “knowingly” requirement extends to both (A) and (B)—in other words, must the defendant have known that the person was mentally or physically incapacitated?

The Bruguier panel, Judge Diana Murphy writing, said no: “[T]he ‘most natural grammatical reading’ of the statute suggests that ‘knowingly’ only modifies the surrounding verb, which in this case is the phrase ‘engages in a sexual act.’”

The Rouillard panel, Judge Shepherd writing, said yes: “Knowingly ‘engag[ing] in a sexual act with another person’ is not inherently criminal under federal law, barring some other attendant circumstance”—“we believe the statute is properly read as requiring defendant’s knowledge that the other person was incapacitated.”

Salon: How Abusers Get Away with Targeting Indian Women

December 13, 2012Matthew L.M. Fletcher4 Comments

Here.

An excerpt:

“We have serial rapists on the reservation — that are non-Indian — because they know they can get away with it,” said Charon Asetoyer, executive director of the Native American Women’s Health Education Resource Center in Lake Andes, S.D. “Many of these cases just get dropped. Nothing happens. And they know they’re free to hurt again.”