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Criminal Law Newsletter

VIEWS: 39 PAGES: 135

									                      DRAKE LEGAL CLINIC CRIMINAL DEFENSE PROGRAM
                               CRIMINAL LAW NEWSLETTER
                                        2007-2008



                   Drake Legal Clinic Criminal Defense Program

                              Criminal Law Newsletter
                                          2007–2008

The Criminal Law Newsletter is a publication of the Drake Legal Clinic Criminal Defense Program.
This publication was produced by Student Editors Erica A. Nichols and Nicholas A. Bailey with
contributions from Jennifer McCarville and Amber Juffer. The Criminal Law Newsletter for 2007–
2008 contains United States Supreme Court cases through June 30, 2008, Iowa Supreme Court cases
through June 30, 2008, and 2008 Iowa legislation.

The Criminal Law Newsletter as well as previous issues can be accessed in PDF format at the
following address:
                              DRAKE LEGAL CLINIC CRIMINAL DEFENSE PROGRAM
                                       CRIMINAL LAW NEWSLETTER
                                                2007-2008



                                 TABLE OF CONTENTS AND AUTHORITIES


SECTION 1: IOWA LEGISLATION 2008 ............................................................................................. 1 
SECTION 2: UNITED STATES SUPREME COURT CASE LAW ............................................................... 1 
  SECTION 2.1: SECOND AMENDMENT ........................................................................................... 1 
    District of Columbia v. Heller, 128 S. Ct. 2783 (2008). ......................................................... 1 
  SECTION 2.2: EIGHTH AMENDMENT/DEATH PENALTY ................................................................ 2 
    Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). ...................................................................... 2 
    Baze v. Rees, 128 S. Ct. 1520 (2008). .................................................................................... 4 
  SECTION 2.3: SIXTH AMENDMENT CONFRONTATION CLAUSE .................................................... 6 
    Giles v. California, 128 S. Ct. 2678 (2008). ........................................................................... 6 
  SECTION 2.4: SENTENCING ......................................................................................................... 7 
    Greenlaw v. United States, 128 S. Ct. 2559 (2008). ............................................................... 7 
    Irizarry v. United States, 128 S. Ct. 2198 (2008). .................................................................. 8 
    Kimbrough v. United States, 128 S. Ct. 558 (2007). .............................................................. 9 
    Gall v. United States, 128 S. Ct. 586 (2007)......................................................................... 11 
  SECTION 2.5: SIXTH AND FOURTEENTH AMENDMENT RIGHT TO COUNSEL .............................. 13 
    Rothgery v. Gillespie Cty., 128 S. Ct. 2578 (2008). ............................................................. 13 
    Indiana v. Edwards, 128 S. Ct. 2379 (2008). ........................................................................ 14 
  SECTION 2.6: HABEAS CORPUS PETITIONS ............................................................................... 16 
    Munaf v. Geren, 128 S. Ct. 2207 (2008). ............................................................................. 16 
    Boumediene v. Bush, 128 S. Ct. 2229 (2008). ..................................................................... 18 
    Wright v. Van Patten, 128 S. Ct. 743 (2008). ....................................................................... 21 
    Arave v. Hoffman, 128 S. Ct. 749 (2008)............................................................................. 22 
    Allen v. Siebert, 128 S. Ct. 2 (2007). .................................................................................... 23 
  SECTION 2.7: MONEY LAUNDERING STATUTE .......................................................................... 24 
    Cuellar v. United States, 128 S. Ct. 1994 (2008). ................................................................. 24 
    United States v. Santos, 128 S. Ct. 2020 (2008). .................................................................. 25 
  SECTION 2.8: ARMED CAREER CRIMINAL ACT ......................................................................... 26 
    Begay v. United States, 128 S. Ct. 1581 (2008). .................................................................. 26 
    United States v. Rodriquez, 128 S. Ct. 1783 (2008). ............................................................ 27 
    Logan v. United States, 128 S. Ct. 475 (2007). .................................................................... 29 
  SECTION 2.9: CONTROLLED SUBSTANCES ACT......................................................................... 31 
    Burgess v. United States, 128 S. Ct. 1572 (2008)................................................................. 31 
  SECTION 2.10: FOURTH AMENDMENT ...................................................................................... 31 
    Virginia v. Moore, 128 S. Ct. 1598 (2008). .......................................................................... 31 
  SECTION 2.11: RETROACTIVITY OF NEW RULES OF CRIMINAL PROCEDURE .............................. 32 
    Danforth v. Minnesota, 128 S. Ct. 1029 (2008).................................................................... 32 
  SECTION 2.12: TAX EVASION ................................................................................................... 34 
    Boulware v. United States, 128 S. Ct. 1168 (2008). ............................................................. 34 
  SECTION 2.13: JURY SELECTION ............................................................................................... 35 
    Snyder v. Louisiana, 128 S. Ct. 1203 (2008). ....................................................................... 35 
    Gonzalez v. United States, 128 S. Ct. 1765 (2008). ............................................................. 36 




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                               DRAKE LEGAL CLINIC CRIMINAL DEFENSE PROGRAM
                                        CRIMINAL LAW NEWSLETTER
                                                 2007-2008

  SECTION 2.14: TREATIES AND INTERNATIONAL COURTS .......................................................... 37 
     Medellin v. Texas, 128 S. Ct. 1346 (2008). .......................................................................... 37 
  SECTION 2.15: INTERPRETATION OF CRIMINAL STATUTES ....................................................... 41 
     United States v. Ressam, 128 S. Ct. 1858 (2008). ................................................................ 41 
     Watson v. United States, 128 S. Ct. 579 (2007). .................................................................. 42 
  SECTION 2.16: CHILD PORNOGRAPHY ...................................................................................... 43 
     United States v. Williams, 128 S. Ct. 1830 (2008). .............................................................. 43 
  SECTION 2.17: PROPERTY CLAIMS AGAINST PRISON OFFICERS ............................................... 45 
     Ali v. Federal Bureau of Prisons, 128 S. Ct. 831 (2008). ..................................................... 45 
Section 3: Iowa Case Law............................................................................................................. 47 
  SECTION 3.1: STATUTORY DOUBLE JEOPARDY ......................................................................... 47 
     State v. Boggs, 741 N.W.2d 492 (Iowa 2007). ..................................................................... 47 
  SECTION 3.2: RULES OF CRIMINAL PROCEDURE ........................................................................ 49 
     State v. Elston, 735 N.W.2d 196 (Iowa 2007). ..................................................................... 49 
     State v. Abrahamson, 746 N.W.2d 279 (Iowa 2008). ........................................................... 50 
     State v. Fremont, 749 N.W.2d 234 (Iowa 2008). Companion case to State v. Nelson. ....... 51 
     State v. Nelson, 752 N.W.2d 23 (Iowa 2008). Companion case to State v. Fremont. ........ 53 
     State v. Allensworth, 748 N.W.2d 789 (Iowa 2008). ........................................................... 54 
     State v. Brandon, 755 N.W.2d 548 (Iowa App. 2008).......................................................... 55 
  SECTION 3.3: INEFFECTIVE ASSISTANCE OF COUNSEL............................................................... 56 
     State v. Enderle, 745 N.W.2d 438 (Iowa 2007). ................................................................... 56 
     State v. Lane, 743 N.W.2d 178 (Iowa 2007). ....................................................................... 58 
     State v. Bearse, 748 N.W.2d 211 (Iowa 2008). .................................................................... 59 
  SECTION 3.4: DEFERRED JUDGMENT ......................................................................................... 61 
     State v. Nail, 743 N.W.2d 535 (Iowa 2007). ........................................................................ 61 
     State v. Kamber, 737 N.W.2d 297 (Iowa 2007). .................................................................. 63 
  SECTION 3.5: DUE PROCESS ...................................................................................................... 63 
     Swanson v. Civil Commitment Unit for Sex Offenders, 737 N.W.2d 300 (Iowa 2007). ..... 64 
  SECTION 3.6: WRONGFUL IMPRISONMENT COMPENSATION ...................................................... 65 
     State v. McCoy, 742 N.W.2d 593 (Iowa 2007). ................................................................... 66 
  SECTION 3.7: SEXUAL PREDATOR ............................................................................................. 67 
     State v. Groves, 742 N.W.2d 90 (Iowa 2007). ...................................................................... 67 
     State v. Finders, 743 N.W.2d 546 (Iowa 2008). ................................................................... 68 
     Wright v. Iowa Dept. of Corrections, 747 N.W.2d 213 (Iowa 2008). .................................. 69 
  SECTION 3.8: HABITUAL OFFENDER/POSSESSION ..................................................................... 70 
     State v. Maxwell, 743 N.W.2d 185 (Iowa 2008). ................................................................. 70 
  SECTION 3.9: SEXUALLY VIOLENT PREDATORS ........................................................................ 73 
     In re Detention of Hennings, 744 N.W.2d 333 (Iowa 2008). ............................................... 73 
     In re Detention of Pierce, 748 N.W.2d 509 (Iowa 2008). ..................................................... 75 
  SECTION 3.10: ALCOHOL-RELATED OFFENSES ......................................................................... 77 
     State v. Johnson, 744 N.W.2d 340 (Iowa 2008). .................................................................. 77 
     State v. Massengale, 745 N.W.2d 499 (Iowa 2008). ............................................................ 78 
  SECTION 3.11: RESTITUTION ..................................................................................................... 80 
     State v. Johnson, 744 N.W.2d 646 (Iowa 2008). .................................................................. 80 
  SECTION 3.12: WITNESS CONFINEMENT AND PAYMENT ........................................................... 82 
     State v. McKinney, 743 N.W.2d 550 (Iowa 2008). .............................................................. 82 




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                                   CRIMINAL LAW NEWSLETTER
                                            2007-2008

SECTION 3.13: ADMISSION OF EVIDENCE/RULES OF EVIDENCE ................................................ 83 
  State v. Parker, 747 N.W.2d 196 (Iowa 2008). ..................................................................... 83 
  State v. Reynolds, 746 N.W.2d 837 (Iowa 2008). ................................................................ 87 
  State v. Dentler, 742 N.W.2d 84 (Iowa 2007). ..................................................................... 90 
  State v. Spencer, 737 N.W.2d 124 (Iowa 2007). .................................................................. 91 
  State v. Harris, 741 N.W.2d 1 (Iowa 2007). ......................................................................... 93 
  State v. Wells, 738 N.W.2d 214 (Iowa 2007). ...................................................................... 94 
  State v. Bentley, 739 N.W.2d 296 (Iowa 2007). ................................................................... 96 
  State v. Reyes, 744 N.W.2d 95 (Iowa 2008). ....................................................................... 97 
  State v. Decker, 744 N.W.2d 346 (Iowa 2008). .................................................................... 98 
  State v. Hansen, 750 N.W.2d 111 (Iowa 2008). ................................................................... 99 
  State v. Tonelli, 749 N.W.2d 689 (Iowa 2008). .................................................................. 100 
SECTION 3.14: JURY INSTRUCTIONS ........................................................................................ 102 
  State v. Smith, 739 N.W.2d 289 (Iowa 2007). .................................................................... 102 
  State v. McCall, 754 N.W.2d 868 (Iowa App. 2008). ........................................................ 104 
SECTION 3.15: ETHICAL ISSUES............................................................................................... 105 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Kirlin, 741 N.W.2d 813 (Iowa 2007). ............................ 105 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Wintroub, 745 N.W.2d 469 (Iowa 2008). ...................... 107 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Kress, 747 N.W.2d 530 (Iowa 2008). ............................. 110 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Isaacson, 750 N.W.2d 104 (Iowa 2008). ........................ 113 
  In the Matter of Nash, 739 N.W.2d 71 (Iowa 2007). .......................................................... 115 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Kaiser, 736 N.W.2d 544 (2007). .................................... 116 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Humphrey, 738 N.W.2d 617 (2007). .............................. 117 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Carty, 738 N.W.2d 622 (2007). ...................................... 118 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Blazek, 739 N.W.2d 67 (2007). ...................................... 118 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Ramey, 746 N.W.2d 50 (2008). ..................................... 119 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Rauch, 746 N.W.2d 262 (2008)...................................... 121 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Attorney Doe No. 639, 748 N.W.2d 208 (2008). ........... 122 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Newman, 748 N.W.2d 786 (Iowa 2008). ....................... 123 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Ireland, 748 N.W.2d 498 (Iowa 2008). .......................... 124 
  Iowa Sup. Ct. Att’y Disc. Bd. v. Curtis, 749 N.W.2d 694 (Iowa 2008). ............................ 127 




                                                            iii
                          DRAKE LEGAL CLINIC CRIMINAL DEFENSE PROGRAM
                                   CRIMINAL LAW NEWSLETTER
                                            2007-2008

                                  SECTION 1: IOWA LEGISLATION 2008

        During 2008, there were minor changes to the Iowa Criminal Code because the Iowa
legislature created a Criminal Code Reorganization Study Committee. The Committee has four
subcommittees. The Foundational Subcommittee is charged with reviewing definitions,
culpability issues, defense and inchoate crimes. The Reorganization Subcommittee is charged
with reviewing proposals to reorganize the Criminal Code and to enhance the overall readability
of the Criminal Code. The Specific Crimes Subcommittee is charged with reviewing proposals
relating to specific criminal offenses including identifying potential gaps in the Criminal Code,
adding criminal offenses, removing duplicative offenses and penalties, and proportionality. The
Sentencing Subcommittee is charged with reviewing the sentencing structures of other states
including the establishment of a sentencing commission.

                      SECTION 2: UNITED STATES SUPREME COURT CASE LAW

                                   SECTION 2.1: SECOND AMENDMENT

District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
       A District of Columbia law bans handgun possession by making it a crime to carry an
unregistered firearm and prohibiting the registration of handguns.1 The law also provides that no
one may carry an unlicensed handgun and authorizes the police chief to license handguns for a
one-year period.2 The law further requires that lawfully owned firearms must be kept unloaded
and dissembled or bound by a trigger lock or similar device.3 Mr. Heller, a special policeman,
applied to register a handgun he wished to posses in his home, but was denied a license.4 Mr.
Heller filed suit seeking on Second Amendment grounds to enjoin the City from enforcing the
ban on handgun registration, the licensing requirement as it prohibits the use of functional
firearms in the home.5

        The District Court dismissed the suit and the D.C. Circuit Court of Appeals reversed
holding that the Second Amendment protects an individual’s right to possess firearms and that
the City’s total ban on handguns, as well as the nonfunctional requirement for home possession
violated that right.6

       The Supreme Court held that the Second Amendment protects an individual right to
possess a firearm unconnected to militia service and to use that firearm for traditional lawful
purposes such as self-defense within the home.7 The Court explained that the Amendment’s
prefatory clause announces a purpose, but does not limit or expand the scope of the second part,
the operative clause.8 The Court examined the operative clause’s text and history and found that


1
  Dist. Columbia v. Heller, 128 S.Ct. 2783, 2788 (2008).
2
  Id.
3
  Id.
4
  Id.
5
  Id.
6
  Id.
7
  Id. at 2799.
8
  Id. at 2793.



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                          DRAKE LEGAL CLINIC CRIMINAL DEFENSE PROGRAM
                                   CRIMINAL LAW NEWSLETTER
                                            2007-2008

it connotes an individual right to bear arms.9 The Court stated that the Second Amendment’s
drafting history reveals three state Second Amendment proposals that unequivocally refer to an
individual right to bear arms.10 The Court also acknowledges support of its conclusion by
scholars, courts and legislators from ratification through the late 19th century.11 In addition, none
of the Court’s precedents forecloses the Court’s conclusion.12

        The Court acknowledged that the Second Amendment right is not unlimited.13 The Court
further explained that this opinion should not cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding possession in schools
and government buildings, or conditions on sales of firearms or prohibition on dangerous or
unusual weapons.14

         The Court held that the trigger-lock requirement as relevant to self-defense in the home
violate the Second Amendment.15 The Court stated that ban amounts to a prohibition on an
entire class of arms, handguns, which citizens overwhelmingly choose for the lawful purpose of
self-defense.16 The disassembled or trigger lock requirement renders it impossible for citizens to
utilize arms for self-defense and thus the requirement is unconstitutional.17
The Court concluded that the District of Columbia must permit Heller to register his handgun
and issue him a license to carry it in the home, unless he is otherwise disqualified from
exercising his Second Amendment rights.18

                        SECTION 2.2: EIGHTH AMENDMENT/DEATH PENALTY

Kennedy v. Louisiana, 128 S. Ct. 2641 (2008).
       Louisiana charged Patrick Kennedy with the aggravated rape of his then-8-year old step-
daughter.19 He was convicted and sentenced to death under a state statute authorizing capital
punishment for rape of a child under 12.20 The Louisiana Supreme Court affirmed relying on
Coker v. Georgia.21

        The Supreme Court held that the Eighth and the Fourteenth Amendments bar Louisiana
from imposing the death penalty for the rape of a child where the crime did not result and was
not intended to result in the victim’s death.22 The Court explained that the Cruel and Unusual



9
  Id. at 2797.
10
   Id. at 2804.
11
   Id. at 2805–2812.
12
   Id. at 2816.
13
   Id. at 2816.
14
   Id. 2816-17.
15
   Id. at 2818.
16
   Id.
17
   Id.
18
   Id. at 2787.
19
   Kennedy v. Louisiana, 128 S. Ct. 2461, 2646 (2008).
20
   Id.
21
   Id. at 2649.
22
   Id. at 2650-51.



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                         DRAKE LEGAL CLINIC CRIMINAL DEFENSE PROGRAM
                                  CRIMINAL LAW NEWSLETTER
                                           2007-2008

Punishment Clause of the Eighth Amendment draws its meaning from evolving standard of
decency and the applicability of the clause must change with the basic mores of society.23

        The Court, after a review of the history of the death penalty and current state statutes and
consideration of the number of executions since 1964, found that there was a national consensus
against capital punishment for the crime of child rape.24       The Court analyzed precedent for
indicia of consensus and found an opinion against the death penalty for juveniles,25 mentally
retarded offenders,26 and vicarious felony murderers.27 The Court also noted that thirty-seven
jurisdictions currently impose the capital punishment, but only six states authorize it for child
rape.28

        The Court also discredited Respondent’s argument that the discussions in Coker led states
to conclude that Coker applied to child rape.29 The Court explained that the distinction between
adult and child rape was central to the reasoning in Coker and that Coker did not address rape of
a child.30 The Court stated that a consistent direction of change in support of the death penalty
for child rape might counterbalance an otherwise weak demonstration of a consensus, but
concluded that there was not a showing of consistent change made in this matter.31 The Court
also refused to consider pending state legislation and held that it was not the practice of the Court
to find contemporary norms based on legislation proposed but not enacted.32 The Court
concluded that the six states who have made child rape a capital offense do not indicate a trend
comparable to the one found in Roper v. Simmons. 33

        The Court also found that execution statistics confirmed there was a social consensus
against the death penalty for child rape.34 Nine states have permitted capital punishment for a
period of time and no execution for rape of an adult or child has taken place since 1964. 35 The
Court concluded in its independent judgment that the death penalty was disproportionate for the
crime of child rape.36 The Court explained that their decision was consistent with the
justifications for the death penalty—retribution and deterrence.37 The Court discussed the
possibility that the state may remove a strong incentive for the rapist to not kill his victim by
enforcing the death penalty for rape and acknowledged that child rape prosecution creates a
special risk of wrongful execution because of the documented problem of unreliable, induced or
even imagined child testimony.38

23
   Id. at 2650.
24
   Id. at 2653.
25
   Id. at 2650; See Roper v. Simmons, 543 U.S. 551 (2005 ).
26
   Id. See Atkins v. Virginia, 536 U.S. 304 (2002).
27
   Id. See Enmund v. Florida, 458 U.S. 782 (1982).
28
   Id at 2653.
29
   Id. at 2654.
30
   Id.
31
   Id. at 2656.
32
   Id.
33
   Id.
34
   Id. at 2657.
35
   Id. at 2657-58.
36
   Id. at 2664.
37
   Id. at 2661.
38
   Id. at 2663.



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                                   CRIMINAL LAW NEWSLETTER
                                            2007-2008


        The Court concluded that Louisiana’s statute authorizing the death penalty for the crime
of child rape was unconstitutional and reversed the Louisiana Supreme Court. 39


Baze v. Rees, 128 S. Ct. 1520 (2008).
        Ralph Baze and Thomas Bowling are convicted murders on Kentucky’s death row.40
They filed suit challenging Kentucky’s lethal injection protocol as a violation of the Eighth
Amendment’s ban on cruel and unusual punishment.41 Lethal injection is the method of capital
punishment used by the Federal government and 36 states.42 At least 30 of those states utilize
the same combination of three drugs, which Kentucky uses.43 The first drug is sodium thiopental
which induces unconsciousness and ensures that the prisoner does not feel any pain caused by
the second and third drugs.44 The second drug, pancuronium bromide causes paralysis and the
third drug, potassium chloride causes cardiac arrest.45

        Petitioners do not challenge the legality of lethal injection, but solely Kentucky’s
protocol.46 The protocol requires that personnel have at least one year of professional experience
of inserting the IV catheters.47 It requires that other personnel members are responsible for
mixing the drugs and loading them into the syringes.48 It further specifies that the warden and
assistant warden must remain in the execution chamber to monitor the administration of the
sodium thiopental.49 If the prisoner is not unconscious within 60 seconds after the administration
of the sodium thiopental’s delivery, a new dose will be given at a second IV site before the
second and third drugs are administered.50

        The state trial court held extensive hearings with expert testimony and entered detailed
factual findings.51 The trial court ruled that there was a minimal risk of improper administration
of the protocol and thus it was constitutional.52 The Kentucky Supreme Court affirmed holding
that the protocol does not violate the Eighth Amendment because it does not create a substantial
risk of wanton and unnecessary infliction of pain, torture or lingering death.53

         The Supreme Court affirmed in a plurality decision stating that risk of improper
administration of the first drug did not render the three-drug protocol cruel and unusual and the
state’s failure to adopt proposed, allegedly more humane alternatives did not constitute cruel and

39
   Id. at 2667.
40
   Baze v. Rees, 128 S. Ct. 1520, 1526 (2008).
41
   Id.
42
   Id. at 1526-27.
43
   Id. at 1527.
44
   Id.
45
   Id.
46
   Id. at 1529.
47
   Id. at 1528.
48
   Id.
49
   Id.
50
   Id.
51
   Id. at 1529.
52
   Id.
53
   Id.



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                      DRAKE LEGAL CLINIC CRIMINAL DEFENSE PROGRAM
                               CRIMINAL LAW NEWSLETTER
                                        2007-2008

unusual punishment.54 The Court explained that to constitute cruel and unusual punishment an
execution method must present a substantial or objectively intolerable risk of serious harm.55 A
state’s refusal to adopt an alternative procedure may violate the Eighth Amendment if the
alternative procedure is feasible, readily implemented, and in fact significantly reduces a
substantial risk of severe pain.56 The Court’s precedents have upheld capital punishment as
constitutional and found that some risk of pain is inherent even in the most humane method of
execution.57 Further, the Constitution does not demand the avoidance of all risk of pain.58
Petitioners argue that the Eighth Amendment prohibits procedures that create an unnecessary risk
of pain while Kentucky urges that there must be a substantial risk of pain.59

       The Court has held that the Eighth Amendment prohibits punishments of torture and all
methods which inflict deliberate pain for the sake of pain.60 All punishments are cruel when they
involve torture or lingering death and more than extinguishment of life.61 Petitioners concede
that execution under Kentucky’s procedures would be humane and constitutional if performed
properly, but claim that there is significant risk that the procedures will not be performed
properly.62 In particular, the petitioners claim that the sodium thiopental subjects individuals to
substantial risk of future harm.63 The Court noted that an isolated mishap alone does not violate
the Eighth Amendment or suggest cruelty, or substantial risk of serious harm.64

        There is substantial, constitutionally unacceptable risk of suffocation from the
administration of pancuronium bromide and pain from potassium chloride without administration
of the proper dose of sodium thiopental.65 Kentucky’s protocol contains various safeguards that
reduce the risk of administering an inadequate dose of sodium thiopental.66 The risks are not so
substantial or imminent as to amount to an Eighth Amendment violation.67 Kentucky’s failure
to adopt an alternative method cannot be found to violate the Eighth Amendment when no other
states have adopted the one-drug method and petitioners have not offered a study or other
evidence.68 The state trial court specifically found that the sodium thiopental is necessary to
prevent involuntary convulsions or seizures and preserve the prisoner’s dignity and to hasten
death.69




54
   Id. at 1534.
55
   Id. at 1532.
56
   Id.
57
   Id. at 1531.
58
   Id.
59
   Id. at 1531-32.
60
   Id. at 1530.
61
   Id.
62
   Id. at 1530-31.
63
   Id.
64
   Id. at 1531.
65
   Id. at 1533.
66
   Id. at 1533-34.
67
   Id. at 1534.
68
   Id. at 1534-35.
69
   Id. at 1535.



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                                   CRIMINAL LAW NEWSLETTER
                                            2007-2008

        Petitioner’s primary contention is that the risks identified can be eliminated by adopting
an alternative one-drug protocol.70 Petitioners contend that one-drug barbiturate only protocol is
used by veterinarians to put animals to sleep and that 23 states bar veterinarians from using a
paralytic drug like pancuronium bromide.71 The Court explained that veterinary practice for
animals is not the appropriate guide for humane practices for humans.72

        The Court further noted that the Court has consistently rejected challenges to execution
methods and society has nonetheless moved forward to more humane methods of carrying out
capital punishment.73 This decision does not preclude legislatures from taking steps, in light of
recent developments, to ensure humane capital punishment.74

                    SECTION 2.3: SIXTH AMENDMENT CONFRONTATION CLAUSE

Giles v. California, 128 S. Ct. 2678 (2008).
        Dwayne Giles was convicted of the murder of his girlfriend.75 The California trial court
allowed prosecutors to introduce statements that the murder victim made to a police officer
responding to a domestic violence call.76 While Giles’ appeal was pending, the Supreme Court
held in Crawford v. Washington, that the Sixth Amendment’s Confrontation Clause gives
defendants the right to cross-examine witnesses who give testimony against them except in cases
where an exception to the confrontation clause was recognized at the founding.77 The California
Court of Appeal and Supreme Court held that the unconfronted testimony of the murder victim
was admissible under a doctrine of forfeiture by wrongdoing.78 It concluded that Giles forfeited
the right to confront the witness because it found that he had committed the murder for which he
was on trial for-which was an intentional act making the witness unavailable to testify.79

        The Supreme Court held that California’s doctrine of forfeiture by wrongdoing was not
an exception to the Sixth Amendment’s Confrontation Clause because it was not an exception
established at the founding.80 The Court explained that a defendant must engage in conduct
designed to prevent the witness from testifying in order for the common-law rule to apply.81 In
cases where the evidence suggested that the defendant wrongfully caused the witness’s absence,
but had not done so to prevent the witness from testifying, the unconfronted testimony was
excluded unless it fell within the dying declaration exception.82




70
   Id.
71
   Id.
72
   Id. at 1536.
73
   Id.1538.
74
   Id.
75
   Giles v. California, 128 S. Ct. 2678, 2682 (2008).
76
   Id. at 2681-82.
77
   Id. at 2682 (citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
78
   Id. at 2682.
79
   Id.
80
   Id. at 2687.
81
   Id. at 2688.
82
   Id. at 2684.



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                          DRAKE LEGAL CLINIC CRIMINAL DEFENSE PROGRAM
                                   CRIMINAL LAW NEWSLETTER
                                            2007-2008

        The Court further held that California’s exception was not applied before 1985 and thus
not established in American jurisprudence after the founding.83 Further the Federal Rules of
Evidence 804(b)(6) which codifies the forfeiture doctrine only applies when the defendant
intends to make a witness unavailable to testify.84 The Court concluded that their interpretation
of the common-law doctrine forfeiture rule was supported by “(1) the most natural reading of the
language used at common law; (2) the absence of common-law cases admitting prior statements
on a forfeiture theory when the defendant had not engaged in conduct designed to prevent a
witness from testifying; (3) the common law’s uniform exclusion of unconfronted inculpatory
testimony by murder victims . . . in the innumerable cases in which the defendant was on trial for
killing the victim, but was not shown to have done so for the purpose of preventing testimony;
(4) a subsequent history in which the dissent’s broad forfeiture theory has not been applied.”85
The Court noted that the uniform exclusion of unconfronted inculpatory testimony by murder
victims was conclusive.86

        The Court acknowledged that previously confronted testimony by an unavailable witness
will always be admissible regardless of wrongful procurement.87 Further, the Court discussed
domestic violence acts that may be intended to dissuade a victim from seeking outside help and
stated that defendant’s intent would be highly relevant to a subsequent act causing the witness’s
absence.88 However, California did not consider Giles’ intent because they found it irrelevant
under the forfeiture doctrine.89 The Court commented that California would be free to consider
Giles’ intent on remand.90

                                         SECTION 2.4: SENTENCING

Greenlaw v. United States, 128 S. Ct. 2559 (2008).
        Michael Greenlaw was convicted of seven drug and firearm charges and was sentenced to
imprisonment for 442 months.91 The District Court made an error in his sentence calculation
when it imposed a 10-year mandatory minimum sentence on a count that carried a 25-year
mandatory minimum term.92 Greenlaw appealed arguing that the appropriate sentence for all
convictions was 15 years.93 The Eighth Circuit found no merit in Greenlaw’s arguments, but
further considered his sentence under the plain-error rule in Federal Rule of Criminal Procedure
54(b) because the Government had not appealed the District Court’s sentence despite its
objection at sentencing.94 The Eight Circuit ordered the District Court to enlarge Greenlaw’s
sentence by 15 years for a total of 662 months.95


83
   Id. at 2687.
84
   Id.
85
   Id. at 2688.
86
   Id.
87
   Id. at 2690-91.
88
   Id. at 2693.
89
   Id.
90
   Id.
91
   Greenlaw v. United States, 128 S. Ct. 2559, 2562 (2008).
92
   Id. at 2562-63.
93
   Id. at 2563.
94
   Id.
95
   Id. at 2563-64.



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        The Supreme Court held that absent a Government appeal or cross-appeal, the Eighth
Circuit could not, by its own initiative, order an increase in Greenlaw’s sentence.96 The Court
explained that appellate courts must follow the principle of party presentation, unless departure is
justified by protection of a pro se litigant. Further, a cross-appeal is required to justify a remedy
in favor of an appellee.97

        The Court also stated that “[n]othing in the text or history of Rule 52(b), [or in this
Court’s decisions], suggests that the rulemakers, in codifying the plain-error doctrine, meant to
override the cross-appeal requirement.”98 Congress has assigned leading Department of Justice
officers responsibility for determining when Government pursuit of a sentencing order is
necessary.99 Rule 52(b) does not allow appellate courts to interfere with the executive
determinations.100

        The Court acknowledged arguments by amici curiae that 28 U.S.C. §2106 overrides the
cross-appeal rule or that 18 U.S.C. § 3742 overrides the cross-appeal rule for sentences imposed
in violation of law.101 However, the Court found both arguments unpersuasive for the same
reason Rule 52(b) does not override the cross-appeal rule and because Congress did not
expressly define any exceptions to the cross-appeal rule.102

        The Court found that increasing Greenlaw’s sentence sua sponte would undermine the
procedural time limits that govern appeals.103 The Court stated that the current practice of
“sentencing package cases” did not have to be modified due to this opinion and the appeals court
may vacate the entire sentence on all counts so that the trial court can reconfigure the sentencing
plan.104 However, Greenlaw’s sentence was not a “sentencing package” case and since he was
unsuccessful on all of his appellate issues the Eighth Circuit had no occasion to vacate his
sentence in the absence of a cross-appeal.105

Irizarry v. United States, 128 S. Ct. 2198 (2008).
        Richard Irizarry pled guilty to making a threatening interstate communication to his ex-
wife.106 The presentence report recommended a Federal Sentencing Guideline range of 41 to 51
months in prison.107 The Court imposed the stator maximum sentence of 60 months in prison
and 3 years of supervised release.108 Defense counsel objected based on Federal Rule of
Criminal Procedure 32(h), which requires the Court to give the parties reasonable notice that it is
contemplating a departure from the Guidelines.109

96
   Id. at 2570.
97
   Id. at 2564.
98
   Id. at 2566.
99
   Id. at 2566-67.
100
    Id.
101
    Id. at 2567-68.
102
    Id.
103
    Id. at 2569.
104
    Id. at 2570.
105
    Id.
106
    Irizarry v. United States, 128 S. Ct. 2198, 2200 (2008).
107
    Id.
108
    Id. at 2201.
109
    Id.



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        The Supreme Court held that Rule 32(h) does not apply in this case because the court’s
sentence was a variance from the Guidelines.110 The Court further reasoned that at the time Rule
32(h) was promulgated the Guidelines were mandatory.111 However, any constitutionally
protected expectation that a defendant will receive a sentence within the applicable Guideline
range did not survive United States v. Booker.112 The Court explained that a sentence outside of
the Guidelines carries no presumption of unreasonableness as stated in Gall v. United States.113
Thus, notice of a variance from the Guidelines no longer raises due process concerns because the
Guidelines are advisory and there is no longer a basis to extend the rule from Burns v. United
States.114 Further, Rule 32(h) does not apply to 18 U.S.C. §3553 variances.115 The Court is
confident that district court judges and counsel have the ability to make sure all relevant matters
relating to a sentencing decision have been considered before a final determination is made.116

Kimbrough v. United States, 128 S. Ct. 558 (2007).
        Kimbrough pled guilty to conspiracy to distribute crack and powder, possession with
intent to distribute more than 50 grams of crack, possession with intent to distribute power, and
possession of a firearm in furtherance of a drug-trafficking offense.117 Under the relevant
statutes, Kimbrough was facing from 15 years to life.118 The advisory Sentencing Guidelines
range was 228 to 270 months. 119 The District Court found that the advisory sentence would
have been greater than necessary to accomplish the purposes of sentencing set forth in 18 U.S.C.
§ 3553(a), because as a sentence for crack cocaine it was disproportionate to similar sentences
for powder cocaine. 120 The District Court sentenced Kimbrough to 180 months. 121 The Fourth
Circuit vacated the sentence, finding that a sentence outside the guidelines was per se
unreasonable when based upon a disagreement with the sentencing disparity between crack and
powder offenses. 122 The Supreme Court reversed, finding that the sentencing judge could take
into account the disparity between crack and powder cocaine offenses in deciding to go outside
the sentencing guidelines.123

        The Court noted that the Sentencing Guidelines were now merely advisory after United
States v. Booker. 124 The statute, as modified by Booker, instructs district courts to “impose a
sentence sufficient, but not greater than necessary” to accomplish the goals of sentencing. 125


110
    Id. at 2202-04.
111
    Id. at 2202.
112
    Id.
113
    Id.
114
    Id.
115
    Id.
116
    Id. at 2203-04.
117
    Kimbrough v. United States, 128 S. Ct. 558, 564 (2007).
118
    Id.
119
    Id. at 565.
120
    Id.
121
    Id.
122
    Id.
123
    Id. at 564.
124
    Id. at 569-70 (citing United States v. Booker, 543 U.S. 220 (2005)).
125
    Id. at 570 (quoting 18 U.S.C. § 3553(a) (2000)).



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While the statute still requires a court to give respectful considerations to the Guidelines, 126
Booker permits the court to “tailor the sentence in light of other statutory concerns as well.” 127
The Government argued that the 100-to-1 ratio of crack to powder cocaine offenses was an
exception to the general freedom given courts under Section 3553(a), because it was a specific
policy determination that Congress had directed sentencing courts to observe. 128 In support of
its position, the Government offered three arguments. 129

        First, the Government claimed that the 1986 Act itself prohibited the Commission and
sentencing courts from disagreeing with the 100-to-1 ratio. 130 The Court noted that this position
lacked grounding in the statute, because the Guidelines mandate by their terms only minimum
and maximum sentences. 131 The Guidelines say nothing of what sentence is appropriate within
these Guidelines. 132 The Court drew an analogy with the Neal v. United States decision. 133 In
Neal, the way of calculating LSD weights for statutory minimum sentences was to combine the
pure drug and carrier weight, while the way of calculating LSD weights for the Guidelines
presumed a lower weight for the carrier medium. 134 Neal endorsed the Commission’s freedom
to adopt a new method for measuring weights. 135 If the Commission did not have to adhere to
the LSD measures in Neal, the Court reasoned the Commission nor sentencing courts should not
have to adhere to the 100-to-1 ratio in the Guidelines. 136

         Second, the Government argued that Congress made it clear when they disapproved of
the Commission’s 1995 proposal to change the ratio of crack to powder cocaine sentences to a 1-
to-1 ratio. 137 However, nothing in Congress’ disapproval meant that the ratio had to remain 100-
to-1. 138 In fact, Congress encouraged the Commission to submit alternate proposals. 139

        Third, the Government argued that if district courts could depart from the crack/powder
ratio, “unwarranted sentence disparities” will occur as contemplated by 18 U.S.C. §
3553(a)(6).140 The Government argued that this would create the perverse result that someone
convicted of possessing 49 grams of crack could get a considerable downward departure, while
someone convicted of 50 grams would have a much higher minimum sentence. 141 The Court
also discounted this argument and stated that the proper role of sentencing courts was to take all
these factors into account. 142

126
    Id. (citing Gall v. United States, 128 S. Ct. 586, 594, 596 (2007)).
127
    Id. (quoting Booker, 543 U.S. at 245-46)).
128
    Id.
129
    Id.
130
    Id. at 570-71.
131
    Id. at 571.
132
    Id.
133
    Id.
134
    Id. (citing Neal v. United States, 516 U.S. 284 (1996)).
135
    Id. at 572.
136
    Id.
137
    Id.
138
    Id. at 573.
139
    Id.
140
    Id.
141
    Id.
142
    Id. at 573-74.



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       The Court reverse the Circuit Court’s determination that the sentence was per se
unreasonable and found that the 180-month sentence imposed on Kimbrough should survive
appellate review. 143 The Court pointed to the fact that the court did not attempt to establish its
own ratio, but merely looked to all the appropriate factors under Section 3553(a) and came to a
reasoned decision on Kimbrough’s sentence. 144

Gall v. United States, 128 S. Ct. 586 (2007).
        Gall pled guilty to conspiracy to distribute ecstasy and was sentenced to 36 months of
probation. 145 The government appealed, challenging Gall’s sentence, and the Eighth Circuit
reversed and remanded for resentencing. 146 The Supreme Court reversed the Eighth Circuit’s
decision.147

        In 2000, Gall was a second year student at the University of Iowa and became involved in
a conspiracy to distribute ecstasy. 148 During the next seven months, he netted over $30,000 in
distributing ecstasy in furtherance of the conspiracy. 149 Seven months after joining the
conspiracy, Gall voluntarily withdrew from the conspiracy. 150 He graduated from the University
of Iowa in 2002 and has not sold illegal drugs since 2000. 151 He moved out of stated and
eventually became a master carpenter. 152

        After moving to Arizona, Gall was approached by federal law enforcement about the
conspiracy. 153 Gall admitted his limited participation in the conspiracy. 154 Three and a half
years after leaving the conspiracy, Gall was charged with the conspiracy. 155 When he received
notice of the indictment, Gall moved back to Iowa and turned himself in to authorities. 156 While
free and awaiting trial, Gall started his own lucrative construction business. 157 Gall entered into
a plea agreement and a presentence investigation was completed. 158 The presentence
investigation ultimately recommended a sentence of 30 to 37 months of imprisonment. 159 The
District Judge sentenced Gall to 36 months of probation and filed a detailed sentencing
memorandum which went through the factors considered under 18 U.S.C. § 3553(a) in
downwardly departing from the Sentencing Guidelines. 160 The District Judge determined that

143
    Id. at 575-76.
144
    Id.
145
    Gall v. United States, 128 S. Ct. 586, 593 (2007).
146
    Id. at 594.
147
    Id. at 602.
148
    Id. at 591-92.
149
    Id. at 592.
150
    Id.
151
    Id.
152
    Id.
153
    Id.
154
    Id.
155
    Id.
156
    Id.
157
    Id.
158
    Id.
159
    Id. at 593.
160
    Id.



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several factors warranted a lesser sentence, including: (1) Gall’s withdraw from the conspiracy;
(2) Gall’s post-offense conduct; (3) lack of criminal history; (4) support of friends and family;
and, (5) Gall’s age at the time of the crime. 161

         The Court reiterated that after Booker, the Guidelines are merely advisory, and sentences
would only be vacated if the district court abused its discretion in sentencing. 162 However, the
Court noted that district court judges must give serious consideration in departing from the
guidelines and must explain an unusually harsh or lenient sentence as appropriate with sufficient
justifications. 163 The Court held that the appellate court should take into account the degree of
variance from the Guidelines in assessing whether the sentence is reasonable; however, the Court
rejected the Eighth Circuit’s requirement that a district court show “extraordinary” circumstances
to justify a sentence outside the Guidelines range. 164

        The Court rejected any sort of hard and fast mathematical approach. 165 The Court said
both the rigid mathematical approach and the “exceptional circumstances” approach of the
Eighth Circuit, reflected a trend among the Circuits of apply a heightened standard of review to
sentences outside the Guideline range. 166 The Court stated that a district court’s first step should
be to compute a defendant’s sentence under the Guidelines. 167 Then, the district court is to look
to the factors in Section 3553(a) to make an “individualized assessment on the facts
presented.”168 The district court must then settle on an appropriate sentence and adequately
explain that sentence to allow for meaningful appellate review. 169 Regardless of whether the
sentence is inside or outside the Guidelines, the appellate court must review the sentence on an
abuse-of-discretion standard. 170

       Ultimately, the Court held that the district court judge had not abused his discretion in
sentencing Gall. 171 The judge had properly calculated the Guidelines sentencing range. 172 The
judge had considered all of the Section 3553(a) factors and had thoroughly documented his
reasoning. 173 The Court found that the district court’s attachment of great weight to Gall’s self-
motivated rehabilitation was warranted, and also found that it weighed heavily on the conclusion
that imprisonment was not necessary to deter future illegal conduct.174 The Court gave the
deference due to the district court judge’s sentencing decisions and found that the judge had not



161
    Id.
162
    Id. at 594 (citing Booker, 543 U.S. at 260-62).
163
    Id. (citing Rita, 127 S. Ct. at 2456, for the proposition that the Guidelines are “the product of careful study based
on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.” Id.)
164
    Id. at 594-95.
165
    Id. at 595.
166
    Id. at 596.
167
    Id.
168
    Id. at 597.
169
    Id.
170
    Id. at 598.
171
    Id.
172
    Id.
173
    Id.
174
    Id. at 602.



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abused his discretion in decided that the Section 3553(a) factors supported the sentence imposed
and justified a substantial deviation from the Guidelines range.175

            SECTION 2.5: SIXTH AND FOURTEENTH AMENDMENT RIGHT TO COUNSEL

Rothgery v. Gillespie Cty., 128 S. Ct. 2578 (2008).
        Walter Rothgery was arrested as a felon in possession of a firearm based on erroneous
police information.176 The officers brought Rothgery before a magistrate judge for an “article
15.17 hearing” at which the Fourth Amendment probable cause determination was made, bail
was set, and Rothgery was formally informed of the charges against him.177 Rothgery was
committed to jail until he posted bond.178 Rothgery made several oral and written requests for a
lawyer and appointed counsel because he was indigent.179 He was subsequently indicted and
rearrested and was unable to post the bail.180 Rothgery was then assigned a lawyer who
assembled the paperwork that prompted the dismissal of the indictment.181

        Rothgery brought this action under 42 U.S.C. §1983 claiming that if the County had
provided him with a lawyer within a reasonable time after the article 15.17 hearing, he would not
have been indicted, rearrested and jailed.182 He argued that the County’s unwritten policy of
denying appointed counsel to indigent defendants out on bond until an indictment is entered
violates his Sixth Amendment right to counsel.183 The District Court granted the County
summary judgment and the Fifth Circuit affirmed precedent that the right to counsel did not
attach at the article 15.17 hearing because the relevant prosecutors were not aware of, or
involved in, Rothgery’s arrest or appearance and there was no indication that the officer had any
power to commit the State to prosecute the matter.184

         The Supreme Court held that a criminal defendant’s initial appearance before a
magistrate judge, where he learns of the charges against him and his liberty is subject to
restriction marks the initiation of the adversary proceedings and triggers the Sixth Amendment
right to counsel.185 Attachment of the right does not require that a prosecutor be aware of the
proceedings or involved in its conduct.186

       Specifically, Texas’s article 15.17 hearing marks the point of attachment of the Sixth
Amendment right and the state’s obligation to appoint counsel within a reasonable time once a
request for assistance has been made.187 The Court referred to their prior decisions holding that


175
    Id.
176
    Rothgery v. Gillespie County, Texas, 128 S. Ct. 2578, 2581 (2008).
177
    Id. at 2581-82.
178
    Id. at 2582.
179
    Id.
180
    Id.
181
    Id.
182
    Id. at 2582-83.
183
    Id. at 2583.
184
    Id.
185
    Id. at 2584.
186
    Id. at 2588.
187
    Id. at 2584.



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the right to counsel attaches at the initial appearance before a judicial officer.188 Rothgery’s
hearing was an initial appearance.189 The Court further observed that appointed counsel is
generally made available at a defendant’s first formal proceeding and 43 States take the first step
of appointing counsel before, at or just after the initial appearance.190 The remaining 7 States
denying appointed counsel at that time are a distinct minority and no acceptable justification has
been offered for that practice.191

        Further, the Court stated that the prosecutorial awareness standard utilized by the Fifth
Circuit was wrong and prosecutorial awareness is not necessarily even a relevant factor, and far
from a controlling factor.192 The Fifth Circuit reliance on a statement in Kirby v. Illinois, that
the right to counsel attaches when the government has “committed itself to prosecute” does not
justify their prosecutorial awareness standard.193 An accusation filed with a judicial officer is
sufficiently formal and the government’s commitment to prosecute sufficiently concrete when
the accusation prompts an arraignment and restriction on the accused’s liberty.194

       The Court dismissed the County’s arguments that the Fifth Amendment protections
obviate the Sixth Amendment right to counsel stating that United States v. Gouveia does not
speak to the question at issue.195 The Court also dismissed arguments that precedents of Brewer
and Jackson were vague.196

        Thus, “a criminal defendant’s initial appearance before a judicial officer, where he learns
of the charges against him and his liberty is subject to restriction, marks the start of adversary
judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”197

Indiana v. Edwards, 128 S. Ct. 2379 (2008).
        Ahmad Edwards was charged with attempted murder and other crimes for a shooting
which occurred during his attempt to steal a pair of shoes in July 1999.198 Defense counsel
requested a psychiatric evaluation three competency hearings were subsequently held.199 At the
first hearing in February and August 2000, the trial court found Edwards incompetent to stand
trial and committed him to the state hospital for treatment.200 At the second competency hearing
in March 2000, the trial court found Edwards had improved and was competent to stand trial,
while suffering from mental illness.201 At the third competency hearing in April 2003,
Edwards’s counsel presented additional psychiatric evidence showing that Edwards was


188
    Id. (citing Brewer v. Williams, 430 U.S. 387, 398-99 (1977); Michigan v. Jackson, 475 U.S. 625, 629 (1986).
189
    Id. at 2884.
190
    Id. at 2586-87.
191
    Id. at 2587-88.
192
    Id. at 2588.
193
    Id. at 2588-89 (citing Kirby v. Illinois, 406 U.S. 682, 689 (1972).
194
    Id. at 2589.
195
    Id. at 2589-90.
196
    Id. at 2590-91.
197
    Id. at 2592.
198
    Indiana v. Edwards, 128 S. Ct. 2379, 2382 (2008).
199
    Id.
200
    Id.
201
    Id.



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suffering from serious thinking difficulties and delusions.202 In November 2003, the court
ordered Edwards was not competent to stand trial and recommitted him to the state hospital.203
Eight months later the hospital reported that Edwards’ condition had improved and he was now
competent to stand trial.204

         Just prior to trial, Edwards requested to represent himself and for a continuance of the
trial.205 The court refused the continuance and Edwards proceeded with represented by
counsel.206 Edwards was convicted of criminal recklessness and theft, but the jury failed to reach
a verdict on the charges of attempted murder and battery.207 The State retried Edwards on the
attempted murder and battery charges and just prior to trial, Edwards again requested permission
to represent himself.208 The court denied Edwards’ request and referred to the psychiatric
reports and noted that Edwards still suffered from schizophrenia.209 The court explained that
Edwards was competent to stand trial, but not competent to defend himself.210 Edwards was
convicted and subsequently appealed arguing that the court’s refusal to permit him to represent
himself at his retrial deprived him of his constitutional right of self-representation.211 Indiana
appellate court ordered a new trial and the Indiana Supreme Court affirmed.212 The Supreme
Court granted review to consider whether the Constitution required the trial court to allow
Edwards to represent himself.213

        The Supreme Court held that the Constitution does not forbid States from requiring
representation by counsel for those competent enough to stand trial, but still suffer from severe
mental illness and are not competent to conduct trial proceedings by themselves.214 The Court
explained that their precedent framed the question but did not answer it.215 Dusky v. United
States and Drope v. Missouri set out the mental competence standard forbidding the trial of an
individual lacking rational and factual understanding of the proceedings and who is unable to
assist his lawyer.216 The Court identified their foundational “self-representation” case as Faretta
v. California, which held that the Sixth and Fourteenth Amendments include a “constitutional
right to proceed without counsel when a criminal defendant voluntarily and intelligently elects to
do so.217 The right of self-representation is not absolute.218 The Court also considered Godinez
v. Moran as the most closely analogous precedent because it considered a border-line competent
criminal defendant who asked to represent himself and change his pleas from guilty to not

202
    Id.
203
    Id.
204
    Id.
205
    Id.
206
    Id.
207
    Id.
208
    Id.
209
    Id. at 2382-83.
210
    Id. at 2383.
211
    Id. (citing Faretta v. California, 422 U.S. 806 (1975)).
212
    Id.
213
    Id.
214
    Id. at 2387-88.
215
    Id. at 2383.
216
    Id. See generally Dusky v. United States, 362 U.S. 402 (1960) and Drope v. Missouri, 420 U.S. 162 (1975).
217
    Id. citing Faretta v. California, 422 U.S. 806 (1975).
218
    Id. at 2384.



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guilty.219 Godinez did not address whether the defendant was able to conduct at defense at trial
and further its holding that a State may permit a defendant to represent himself does not answer
whether a State may deny a defendant the right to represent himself.220

        Several considerations taken together led the Court to conclude that the Constitution
permits a State to limit a defendant’s right of self-representation.221 First, the Court’s precedent
setting forth a competency standard focusing on defendant’s ability to consult with his lawyer
assume representation by counsel and suggest that a decision to forgo counsel presents a very
different set of circumstances.222 Faretta rested on state precedent which expressly adopted a
competency limitation on the self-representation right.223 Second, the nature of mental illness is
that it varies in degrees over time and interferes with an individual’s functioning at different
times and in different ways and cautions against the use of a single standard for competency to
stand trial and competency to exercise the self-representation right.224             Third, a self-
representation right at trial will not affirm the dignity of a defendant who lacks the mental
capacity to conduct his defense without the assistance of counsel. Self-representation may also
undercut the objective of a fair trial.225

        Indiana’s proposed standard denies a criminal defendant the right to represent himself if
he cannot communicate coherently with the court or a jury is rejected because the Court was
uncertain how the standard would work in practice.226 The Court also declined to overrule
Faretta as this opinion may remedy the unfair trial concerns previously raised.227
The Court concluded that the Constitution permits judges to consider realistic accounts of the
defendant’s mental capacities and insist upon representation by counsel for those that are
competent enough to stand trial, but still suffer from mental illness severe rendering them
incompetent to conduct trial proceedings by themselves.228

                               SECTION 2.6: HABEAS CORPUS PETITIONS

Munaf v. Geren, 128 S. Ct. 2207 (2008).
        Shawqi Omar and Mohammad Munaf are American citizens who voluntarily traveled to
Iraq and allegedly committed crimes there.229 They were captured by military forces operating
as part of the MNF-I (the Multinational Force-Iraq which is composed of 26 nations, including
the United States).230 MNF-I detains individuals alleged to have committed hostile or warlike




219
    Id. citing Godinez v. Moran, 509 U.S. 389 (1993).
220
    Id. at 2384-85.
221
    Id. 2386.
222
    Id.
223
    Id.
224
    Id.
225
    Id. at 2387.
226
    Id. at 2388.
227
    Id.
228
    Id. at 2387-88.
229
    Munaf v. Geren, 128 S. Ct. 2207, 2213 (2008).
230
    Id.



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acts in Iraq, pending investigation and prosecution in Iraqi courts under Iraqi law.231 Family
members filed next-friend habeas corpus petitions on behalf of both Omar and Munaf.232
In Omar’s case, the district court granted an injunction barring his removal from U.S. or MNF-I
custody to the Central Criminal Court of Iraq.233 The D.C. Circuit upheld the injunction because
Omar had not yet been convicted by a foreign tribunal and distinguished the matter from Hirota
v. MacArthur.234

        In Munaf’s case, the district court dismissed his petition for lack of jurisdiction.235 The
D.C. Circuit upheld the decision finding that Hirota v. MacArthur controlled and distinguished
its decision from Omar because Munaf had been convicted by a foreign tribunal.236
The Supreme Court held:

        (1) The habeas statute extends to American citizens held overseas by American forces
operating subject to an American chain of command.237 The present cases differ from Hirota in
several respects.238 The Government acknowledges that the U.S. military commanders answer to
the President, while it is debatable whether General MacArthur was subject to United States
authority.239 Further, these cases concern American citizens and habeas jurisdiction can depend
on citizenship.240

        (2) Federal district courts may not exercise their jurisdiction to enjoin the United States
from transferring individuals alleged to have committed crimes within the territory of a foreign
sovereign to that foreign sovereign.241 The District court abused its discretion in granting Omar
a preliminary injunction.242 A preliminary injunction is an extraordinary remedy and requires a
demonstration of a likelihood of success on the merits, which neither the district court of the
D.C. Circuit considered.243 A difficult question as to jurisdiction is not a reason to grant a
preliminary injunction.244

        Reversal is required in each of these cases.245 The lower courts in Munaf erred for
dismissing for lack of jurisdiction and the lower courts in Omar erred for granting a preliminary
injunction.246 The Supreme Court reached the merits of the habeas petitions given the sensitive
foreign policy issues in the context of ongoing military operations.247

231
    Id.
232
    Id. at 2214-15.
233
    Id.
234
    Id. citing Hirota v. MacArthur, 338 U.S. 197 (1948).
235
    Id. at 2215-16.
236
    Id. at 2216.
237
    Id. at 2216-17.
238
    Id. at 2217-18.
239
    Id.
240
    Id.
241
    Id. at 2219.
242
    Id.
243
    Id.
244
    Id.
245
    Id.
246
    Id. at 2228.
247
    Id. at 2220.



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        The Supreme Court found that petitioners’ request not to be transferred to Iraqi
authorities for criminal proceedings and argument that they are unlawfully detained by the
Government, both fail because they would interfere with Iraq’s sovereign right to punish
offenses within its borders. Petitioners’ claims do not state grounds upon which habeas relief
may be granted.248

        Habeas relief is a remedy for unlawful executive detention and its typical result is
release.249 Omar and Munaf both concede that if they were not in MNF-I custody that Iraq could
arrest and prosecute them under Iraqi law.250 Iraq has a sovereign right to prosecute them for
crimes committed on its soil.251 Habeas corpus does not bar the United States from transferring
a prisoner to the sovereign authority he concedes has a right to prosecute him. 252

        Petitioners assert that their transfer to Iraqi officials will likely result in torture.253 This is
a concern for the political branches and further it is the policy of the United States not to transfer
an individual where torture is likely to result.254 The State Department has determined that
Justice Ministry has generally met internationally accepted standard for prisoner needs.255

       Petitioners’ also argue that the executive lacks discretion to transfer a citizen to Iraqi
custody because he lacks legal authority to do so as required in Valentine v. United States ex rel
Neidecker.256 Valentine was an extradition case and the present cases involve a transfer to a
sovereign’s authority of an individual captured and detained in that sovereign’s territory.257

        Omar and Munaf voluntarily travelled to Iraq and thus they are subject to territorial
jurisdiction of that sovereign and habeas corpus does not require the United States to shelter such
fugitives from the criminal justice system of the sovereign with authority to prosecute them.258

Boumediene v. Bush, 128 S. Ct. 2229 (2008).
        Petitioners are aliens detained at Guantanamo Bay after being captured in Afghanistan or
elsewhere abroad and designated enemy combatants by CSRTs (Combatant Status Review
Tribunal).259 Petitioners deny that they are enemy combatants or membership in al Qaeda.260
Each petitioner sought a writ of habeas corpus in the District Court and each case was dismissed
for lack of jurisdiction because Guantanamo Bay is outside sovereign United States territory.261
This Court previously reversed holding that 28 U.S.C. § 2241 extended jurisdiction to

248
    Id. at 2221.
249
    Id.
250
    Id.
251
    Id.
252
    Id. at 2223.
253
    Id. at 2225.
254
    Id.
255
    Id. at 2226.
256
    Id. at 2227 citing Valentine v. United States ex rel Neidecker, 299 U.S. 5 (1936).
257
    Id.
258
    Id. at 2227-28.
259
    Boumediene v. Bush, 128 S. Ct. 2229, 2241 (2008).
260
    Id. at 2241.
261
    Id.



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Guantanamo Bay in Rasul v. Bush.262 Petitioners’ cases were consolidated into two
proceedings.263 In the first, the judge granted the Government’s motion to dismiss holding that
the detainees had no rights that could be vindicated in a habeas action.264 In the second, the
judge held that the detainees had due process rights.265

        While appeals were pending, Congress passed the Detainee Treatment Act of 2005
(DTA) § 1005(e).266 The DTA amended 28 U.S.C. § 2241 to strip the courts of jurisdiction to
hear habeas corpus petitions filed by or on behalf of aliens detained at Guantanamo Bay and
gave the D.C. Court of Appeals exclusive jurisdiction to review CRST decisions.267 This Court
held in Hamdan v. Rumsfield that the jurisdiction stripping provision was inapplicable to pending
cases when the DTA was enacted.268 Congress then responded with the Military Commissions
Act (MCA) § 7(b) which amended 28 U.S.C. § 2241(e)(1) to deny jurisdiction with respect to
detained aliens’ habeas corpus petitions related to detention, treatment, trial.269 MCA §7(b)
provided that the amendments take effect on the date of enactment and apply to all cases,
pending or after the enactment date.270

        The Supreme Court held that MCA §7 denies the federal courts jurisdiction to hear
habeas actions that were pending at the time of its enactment, like petitioners.271 If MCA §7 is
valid, petitioners’ cases must be dismissed.272 The Court explained that it must determine
whether petitioners’ are barred from seeking the writ or invoking the Suspension Clause because
of their status or physical location.273

        The writ of habeas corpus was one of the few safeguards of liberty specified in the
Constitution before it had a Bill of Rights.274 The Framers considered it a vital instrument for the
protection of individual liberty and specified limited grounds for its suspension.275 The writ may
be suspended only when public safety requires it in times of rebellion or invasion.276 At common
law a petitioner’s status as an alien was not a categorical bar to habeas corpus relief.277 The
evidence of the writ’s geographic scope at common law is informative but not dispositive.278
The Supreme Court concluded that the Suspension Clause has its full effect at Guantanamo.279
The Government’s reading of Johnson v. Eisentrager as adopting a formalistic test for

262
    Id. citing Rasul v. Bush, 542 U.S. 466 (2004).
263
    Id. at 2241.
264
    Id.
265
    Id.
266
    Id.
267
    Id.
268
    Id. at 2241-42 citing Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
269
    Id. at 2242.
270
    Id.
271
    Id.
272
    Id.
273
    Id. at 2244.
274
    Id.
275
    Id. at 2246.
276
    Id.
277
    Id. at 2248.
278
    Id. at 2249.
279
    Id. at 2262.



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determining the Clause’s reach is rejected because the discussion of practical considerations in
that case was integral to the Court’s opinion; it mentioned the concept of territorial sovereignty
only twice and if the Government’s reading was correct we would have a complete repudiation
of the Insular Cases’ functional approach.280 Extraterritoriality questions turn on objective
factors and practical concerns not formalism.281

        The Government’s sovereignty-based test raises troubling separation of powers
concerns.282 The Government’s position that the Constitution does not reach non-citizens at
Guantanamo because the United States has disclaimed formal sovereignty in its lease with Cuba
is rejected.283 The Nation’s basic charter cannot be contracted away and the political branches
cannot switch the Constitution on and off at will.284

        Three factors are relevant in determining the Suspension Clause’s reach: 1) detainee’s
citizenship and status and the adequacy of the process that status was determined; 2) the nature
of the sites where apprehension and detention took place; 3) practical obstacles inherent in
resolving prisoner’s entitlement to the writ.285 Application of these three factors reveals that
petitioners’ status is in dispute.286 They are not U.S. citizens and deny they are enemy
combatants and the CSRT proceedings afforded some process, but not Eisentrager-style trials.287
Second the sites of apprehension and detention are critically different from Eisentrager’s German
prison because the U.S. has absolute and definite control over Guantanamo Bay.288 Third, the
Court is sensitive to the financial and administrative costs of applying the Suspension Clause to
military detention abroad, but these factors are not dispositive because the Government has not
made any credible arguments that the military mission at Guantanamo Bay would be
compromised.289

        Further, petitioner’s have the constitutional privilege of seeking habeas corpus.290 They
are not barred from seeking the writ or invoking the Suspension Clause’s protection because they
have been designated enemy combatants or because they are held at Guantanamo Bay.291
Petitioners are entitled to the habeas privilege and if that privilege is to be denied then Congress
must act in accordance with the Suspension Clause’s requirements.292 The DTA’s procedures for
reviewing detainees’ status is not adequate and not an effective substitute for the writ, MCA §7
operates as an unconstitutional suspension of the writ.293



280
    Id. at 2253-58.
281
    Id. at 2258.
282
    Id.
283
    Id. at 2258-59.
284
    Id. at 2259.
285
    Id. at 2259-60.
286
    Id. at 2259.
287
    Id. at 2259-60,
288
    Id. at 2260.
289
    Id. at 2261.
290
    Id. at 2262.
291
    Id. at 2261-62.
292
    Id. at 2262.
293
    Id. at 2275-76.



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       The Court does not attempt to offer a comprehensive summary of the requisites for an
adequate habeas substitute.294 It is undisputed that the habeas privilege entitles the prisoner to a
meaningful opportunity to demonstrate that he is being held pursuant to the erroneous
application of interpretation of relevant law.295 The court conducting the collateral proceeding
must have some ability to correct errors and assess the sufficiency of the Government’s
evidence.296

        The DTA review process is on its face an inadequate substitute for habeas.297 The
absence of provisions allowing petitioners to challenge the President’s authority under the
AUMF to detain them indefinitely, to contest CSRT’s findings of fact, to supplement the record
on review and to request release render the DTA process unconstitutional.298 There is no
jurisdictional bar to the District Court hearing petitioners’ claims.299 Petitioners need not seek
review of their CSRT determinations in the D.C. Circuit before proceeding with their habeas
actions because it would require additional delay of months or years.300

       In considering the procedural and substantive standard used to impose detention to
prevent acts of terrorism, the courts must accord proper deference to the political branches.301
However, security exists in freedom’s first principles, specifically being free from arbitrary and
unlawful restraint and personal liberty secured by the adherence of the separation of powers.302

Wright v. Van Patten, 128 S. Ct. 743 (2008).
        Van Patten was charged with first-degree intentional homicide and pleaded no contest to
a reduced charge of first-degree reckless homicide. 303 Van Patten’s attorney was not physically
present for his plea hearing and appeared only telephonically via speakerphone.304 Van Patten
retained other counsel and sought to withdraw his no-contest plea on the ground that his Sixth
Amendment right to counsel had been violated by his trial counsel’s physical absence from the
plea hearing. 305 The trial court found that Van Patten’s Sixth Amendment right to counsel was
not violated. 306

       After the Wisconsin Supreme Court declined further review, Van Patten petitioned for a
writ of habeas corpus under 28 U.S.C § 2254. 307 The District Court denied relief, but the
Seventh Circuit reversed. 308 The Seventh Circuit held that Van Patten’s claim should not have
been decided under the two-prong test of deficient performance and prejudice contained in

294
    Id. at 2274.
295
    Id. at 2272.
296
    Id. at 2270.
297
    Id. at 2275.
298
    Id. at 2272-75.
299
    Id. at 2274.
300
    Id. at 2275.
301
    Id. at 2276-77.
302
    Id.
303
    Wright v. Van Patten, 128 S. Ct. 743, 744 (2008).
304
    Id.
305
    Id.
306
    Id.
307
    Id. at 745.
308
    Id.



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Strickland v. Washington. 309 Instead, the Seventh Circuit found that the Sixth Amendment
violation should have been analyzed under the standard discussed in United States v. Cronic,
under which prejudice can be presumed, 310 and the Seventh Circuit found in favor of Van Patten.

        Under 28 U.S.C. § 2254(d)(1), relief is barred on any claim “adjudicated on the merits”
in state court, unless the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States.”311

        In this case, the Supreme Court reversed the determination of the Seventh Circuit. 312
The Court had never held that the appearance of counsel by speakerphone was ineffective to the
point where prejudice should be presumed. 313 For that reason, the Court held that it could not be
said that the Washington state courts “unreasonably applied clearly established Federal law” 314
when they held no prejudice had occurred and therefore no relief was necessary. For that reason,
the Court held that collateral relief was neither authorized nor justified. 315

Arave v. Hoffman, 128 S. Ct. 749 (2008).
         Hoffman was convicted of first-degree murder and sentenced to death, and his conviction
was upheld on appeal in state court. 316 Hoffman sought federal habeas relief on the grounds of
ineffective assistance of counsel during his pretrial plea bargaining and sentencing. 317 The
District Court found that Hoffman’s counsel had been ineffective at the sentencing phase of his
trail, but not at his pretrial plea bargaining, and the District Court ordered the State of Idaho to
resentence Hoffman. 318 The Ninth Circuit affirmed the District Court’s decision regarding
ineffective assistance of counsel at the sentencing stage of the trial, but reversed as to ineffective
assistance at the plea bargaining stage. 319 The Ninth Circuit ordered the State to release
Hoffman or give him a plea agreement with the same material terms as originally offered. 320

        At the Supreme Court, Hoffman abandoned his claim of ineffective assistance of counsel
at the plea bargaining stage and asked the Court to dismiss with prejudice so that he could
proceed with resentencing. 321 The State also asked that the dismissal with prejudice be
granted.322 The Court vacated the Ninth Circuit’s judgment to the extent it addressed the
ineffective assistance claim at the bargaining stage and dismissed with prejudice. 323


309
    Id. (citing Strickland v. Washington, 466 U.S. 668 (1984)).
310
    Id. (citing United States v. Cronic, 466 U.S. 648 (1984)).
311
    Id. at 745 (quoting 28 U.S.C. § 2254(d)(1)).
312
    Id. at 747.
313
    Id. at 745.
314
    Id. at 747 (citing Carey v. Musladin, 549 U.S. 70 (2006)).
315
    Id.
316
    Arave v. Hoffman, 128 S. Ct. 749, 749 (citing State v. Hoffman 851 P.2d 934 (1993)).
317
    Id.
318
    Id.
319
    Id. at 749-50.
320
    Id. at 750.
321
    Id.
322
    Id.
323
    Id.



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Allen v. Siebert, 128 S. Ct. 2 (2007).
        Siebert was convicted of murder and sentenced to death in Alabama.324 Siebert’s
conviction was affirmed on direct appeal. 325 The Supreme Court denied certiorari on November
5, 1990.326 In August 1992, Siebert filed a petition for postconviction relief in Alabama state
court. 327 The state courts denied the petition as untimely because it was filed three months after
the 2-year statute of limitations. 328 The Alabama Supreme Court denied certiorari. 329 Siebert
filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. 330

        The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a 1-
year statute of limitations for filling a federal habeas petition. 331 The limitations period is tolled
however, when the defendant properly files an application for post conviction relief. 332 The
Court held that because Siebert’s direct appeal became final before the AEDPA became
effective, the 1-year statute of limitations began to run from April 24, 1995, or AEDPA’s
effective date. 333

        The District Court dismissed Siebert’s habeas petition as untimely, reasoning that the
rejection of Siebert’s state post-conviction relief action on statute of limitations grounds meant
that it was not “properly filed” for the purposes of tolling the 1-year statute of limitations of the
AEDPA. 334 The Ninth Circuit reversed, holding that Siebert’s state post-conviction petition was
“properly filed” within the meaning of Section 2244(d)(2), because the state time bar was not
jurisdictional and the Alabama court therefore had discretion in enforcing it. 335 The Ninth
Circuit remanded to the District Court to consider the merits of the petition. 336

        While Siebert’s habeas petition was pending on remand, the Court decided Pace v.
DiGuglielmo. 337 In Pace, the Court held that a state post-conviction petition rejected by the state
court as untimely in not “properly filed” within the meaning of Section 2244(d)(2). The District
Court once again dismissed the habeas petition as untimely. 338 On appeal, the Ninth Circuit
reversed, holding that Pace did not apply and stating that the court rejected Siebert’s petition on
a non-jurisdictional ground. 339 The Court reaffirmed the Pace holding, stating that when a post-
conviction petition is untimely under state law, the defendant does not get the benefit of the
tolling of AEDPA’s 1-year statute of limitations. 340

324
    Allen v. Siebert, 128 S. Ct. 2, 2 (2007).
325
    Id.
326
    Id. (citing Siebert v. Alabama, 498 U.S. 963 (1990)).
327
    Id.
328
    Id. at 2-3.
329
    Id. at 3.
330
    Id.
331
    Id. (citing 28 U.S.C. § 2244(d)(1) (2006)).
332
    Id.
333
    Id. (citing Carey v. Saffold, 536 U.S. 214 (2002)).
334
    Id.
335
    Id. (citing Siebert v. Campbell, 334 F.2d 1018, 1030 (11th Cir. 2003)).
336
    Id.
337
    Id.
338
    Id.
339
    Id.
340
    Id. at 4-5.



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                              SECTION 2.7: MONEY LAUNDERING STATUTE

Cuellar v. United States, 128 S. Ct. 1994 (2008).
        Humberto Fidel Regalado Cuellar was arrested after a search of his car revealed almost
$81,000 concealed in a secret compartment and covered with animal hair.341 Cuellar was
charged and convicted of attempting to transport funds from a place in the United States to a
place outside of the United States knowing that the funds were proceeds of unlawful activity and
that such transportation was designed to conceal or disguise the nature, location, source,
ownership or control of the funds in violation of 18 U.S.C. § 1956(a)(2)(B)(i) (hereinafter “the
statute”.342

        The Fifth Circuit affirmed the conviction holding that defendant’s extensive efforts to
conceal the funds during transportation showed that he sought to conceal or disguise their nature,
location, source, ownership, or control.343 The Supreme Court held that the statute does not
require proof that defendant attempted to create the appearance of legitimate wealth and a
conviction requires more than evidence the funds were concealed during transport.344 A
conviction under this statute requires proof that the transportation’s purpose--not merely its
effect—was to conceal or disguise one of the listed attributes: nature, location, source,
ownership or control.345

        The statute does not require an appearance of legitimate wealth element.346 The Court
agrees with defendant that the common meaning of “money laundering” is taking steps to make
funds appear legitimate.347 Congress used broad language and intended to reach more than
classic money laundering.348 The Court explained that §1956(a)(2) and the bulk cash smuggling
statute, 31 U.S.C. § 5332 target distinct conduct, despite the fact that certain conduct may fall
within both statutes.349 Evidence that Cuellar concealed the money during transportation is not
sufficient to sustain his conviction.350 The Government has to prove that Cuellar knew taking the
funds to Mexico was designed to conceal or disguise their nature, location, source, ownership, or
control.351 Merely hiding funds during transportation is not sufficient to violate the statute.352
The term “design” in the statute means plan or purpose and requires more than how the
defendant “structured” the transportation.353     Evidence that Cuellar structured the funds in
plastic bags and placed them in a secret compartment under animal hair is probative of intent to
prevent their detection during the drive into Mexico.354 But, the structure was not evidence of

341
    Cuellar v. United States, 128 S. Ct. 1994, 1997 (2008).
342
    Id. at 1998.
343
    Id. at 1999.
344
    Id. at 1997.
345
    Id. at 2007.
346
    Id. at 2000.
347
    Id.
348
    Id.
349
    Id. at 2001-02.
350
    Id. at 2003.
351
    Id. at 2002.
352
    Id. at 2003.
353
    Id.
354
    Id. at 2004.



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intent to conceal or disguise the attributes of the funds.355 There was no evidence that Cuellar
knew about or intended the effect.356 The Court emphasized the distinction between how
someone moves funds to why someone moves funds.357

          The evidence introduced by the Government was not sufficient to permit a reasonable
jury to conclude beyond a reasonable doubt that the transportation was “designed in whole or in
part . . . to conceal or disguise the nature, the location, the source, the ownership or the control of
the proceeds.”358

United States v. Santos, 128 S. Ct. 2020 (2008).
        Efrain Santos ran an illegal lottery in Indiana.359 He employed runners and collectors.360
Benedicto Diaz was a collector. Runners took commissions from the bets they gathered, money
was paid to Diaz as a salary and to the winning gamblers.361 Santos was convicted of money
laundering based on these payments to runners, collectors and winners under 18 U.S.C. §
1956.362 The statute prohibits the use of the “proceeds” of criminal activities for various
purposes, including transactions intended to promote the carrying on of unlawful activity.363
Diaz pled guilty to conspiracy to launder money based on his receipt of the collector’s salary.364
The Seventh Circuit affirmed the convictions.365 Santos and Diaz sought collateral review in
District court based on an intervening Seventh Circuit opinion interpreting the word “proceeds”
in the statute as criminal profits only, not criminal receipts.366 The District court vacated the
convictions finding no evidence that the transactions upon which the convictions were based
involved lottery profits.367 The Seventh Circuit affirmed.368

        The Supreme Court affirmed holding that the rule of lenity dictates the adoption of the
“profits” reading369. The statute does not define proceeds.370 The term “proceeds” has been used
to mean receipts and profits and the statute makes sense under either meaning.371 However, the
rule of lenity requires that the statute be interpreted in favor of the defendant and the profits
definition of proceeds will always be more favorable to defendants than the receipts definition.372
The Government argues that the profits interpretation fails to give the statute its intended scope
and that the profits definition will hinder law enforcement.373 The Supreme Court explained that
355
    Id. at 2004-05.
356
    Id. at 2005.
357
    Id.
358
    Id at 2006.
359
    United States v. Santos, 128 S. Ct. 2020, 2022 (2008).
360
    Id.
361
    Id. at 2022-23.
362
    Id. at 2023.
363
    Id.
364
    Id.
365
    Id.
366
    Id.
367
    Id.
368
    Id.
369
    Id. at 2025.
370
    Id. at 2024.
371
    Id.
372
    Id. at 2025.
373
    Id. at 2025-26.



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neither argument overcomes the rule of lenity.374 Defendants argue that interpreting “proceeds”
to include receipts would cause a host of predicate crimes to merge into the money laundering
statute.375 For example, an individual who uses stolen money to rent a getaway car would violate
the money laundering statute.376 Further, interpreting “proceeds” to mean profits eliminates any
merger problem identified by the defendant.377 The Court held that none of the transactions on
which the convictions were based can be characterized as involving profits from the lottery.378
The Court’s opinion is narrow and holds that “proceeds” means “profits” when there is no
legislative history to the contrary.379

                             SECTION 2.8: ARMED CAREER CRIMINAL ACT

Begay v. United States, 128 S. Ct. 1581 (2008).
        Larry Begay pled guilty to being a felon in possession of a firearm.380 His presentence
report revealed that he had 12 prior convictions in New Mexico for driving under the influence
of alcohol (DUI).381 New Mexico law makes the forth and any subsequent DUI conviction a
felony.382 Based on these prior convictions, the sentencing judge found that Begay had three or
more “violent felony” convictions and therefore sentenced him as an Armed Career Criminal to
an enhanced 15-year sentence.383 The Armed Career Criminal Act imposes a special mandatory
15-year prison term upon a felon who unlawfully possesses a firearm and who has three or more
prior convictions for committing certain drug crimes or a violent felony.384 The Act defines
violent felony as a crime punishable by more than one year’s imprisonment that is “burglary,
arson or extortion, involves the use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.385

       The Supreme Court held that New Mexico’s DUI crime falls outside the scope of the
Armed Career Criminal Act violent felony definition.386 The Court explained that whether a
crime is a violent felony is determined by how the law defines it and not how the offender
committed it on a particular occasion.387 The crime of DUI is simply too unlike the example
clauses in the Act to indicate that Congress intended for it to be included as a violent felony.388
Congress meant to cover only similar crimes, not every crime that presents a serious risk of
physical injury to another.389 The Court recognized that driving under the influence carries risk,
but distinguished it from the purposeful violent and aggressive behavior included in the

374
    Id. at 2025.
375
    Id. at 2026.
376
    Id.
377
    Id. at 2027.
378
    Id. at 2031.
379
    Id.
380
    Begay v. United States, 128 S. Ct. 1581, 1584 (2008).
381
    Id.
382
    Id.
383
    Id.
384
    Id. at 1583 citing 18 U.S.C. § 924(e)(1); 18 U.S.C. § 924(e)(2)(B).
385
    Id.
386
    Id. at 1584.
387
    Id.
388
    Id.
389
    Id. at 1585.



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statute.390 DUI statutes are typically strict liability and do not require a purposeful intent to
harm another person.391 The Act looks to past crimes to determine which offenders create a
special danger by possessing a gun by examining their history for purposeful, violent, and
aggressive conduct.392 A history of DUI convictions does not involve the deliberate kind of
behavior associated with violent criminal use of firearms.393

United States v. Rodriquez, 128 S. Ct. 1783 (2008).
        Rodriquez was convicted of being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1).394 The government asked that Rodriquez be sentenced under the Armed
Career Criminal Act (ACCA), 18 U.S.C. 924(e), which sets a 15-year minimum sentence for a
person who “violates section 922(g) of [Title 18] and has three previous convictions…for a
violent felony or a serious drug offense, or both, committed on occasions different from one
another….”395 Rodriquez had two prior convictions in California for residential burglary and
three convictions in Washington for delivery of a controlled substance. 396 Rodriquez’s three
drug convictions occurred on the same day, but were based on deliveries that occurred on three
separate dates. 397

        The district court ruled that the two prior convictions for burglary were “violent felonies”
under the ACCA, and that ruling was not at issue in the appeal. 398 The issue was whether any of
the three Washington state drug convictions would be considered “serious drug offenses” under
the ACCA. 399 The ACCA defines a “serious drug offense” as:

        an offense under State law, involving manufacturing, distributing, or possessing with
        intent to distribute a controlled substance (as defined in section 102 of the Controlled
        Substances Act (21 U.S.C. § 802)), for which a maximum term of imprisonment of ten
        years or more is prescribed by law.400

        Under Washington law, Rodriquez three drug convictions were each punishable by a
maximum of five years. 401 However, there was also a recidivist provision that a second or
subsequent offense was punishable by a maximum term of imprisonment of ten years.402 The
core issue in this case was whether or not the recidivist provision should be taken into account
when judging if a conviction was for a “serious drug offense.” 403 The State claimed the
maximum term to be taken into account for the purposes of the ACCA was the ten years


390
    Id. at 1588.
391
    Id. at 1587.
392
    Id.
393
    Id. at 1588.
394
    United States v. Rodriquez, 128 S. Ct. 1783, 1787 (2008).
395
    Id. (quoting 18 U.S.C. § 924(e)(1) (2000 ed., Supp. V)).
396
    Id. at 1786.
397
    Id.
398
    Id. at 1787.
399
    Id.
400
    Id. (quoting 18 U.S.C. § 924(e)(2)(A)) (emphasis added).
401
    Id. at 1786-87.
402
    Id.
403
    Id.



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prescribed by the recidivist provision; the defense claimed the ACCA contemplated only the five
years prescribed as the maximum punishment for the underlying offense. 404

       On Rodriquez’s second and third convictions under Washington state law, he was eligible
for a maximum prison sentence of ten years. 405 Nonetheless, the Ninth Circuit found that the
relevant period to be considered on the second and third drug convictions was the five-year
period of imprisonment under the general offense definition. 406

        First, Rodriquez argued that because the word “offense” used in the ACCA is generally
understood to describe the elements constituting a crime, and the prior conviction required for
recidivist enhancements are typically not offense elements, they should not be considered part of
the “offense” under the ACCA. 407 The Court stated that the sort of reading was not faithful to
the text of the ACCA.408 The ACCA refers to the “maximum term of imprisonment prescribed
by law,” and not, the maximum term of imprisonment prescribed by law for a defendant with no
prior convictions to trigger an enhancement. 409

        Second, Rodriquez argued that the government’s interpretation of the ACCA violated the
“manifest purpose” of the statute. 410 Rodriquez contended that a defendant’s status as a
recidivist had no bearing on the whether his offense was “serious” for purposes of the ACCA.
The Court stated that subsequent offenses are often considered more “serious” because of the
future danger to the public.411 If Rodriquez’s interpretation was correct, then increased
punishments would have to be grounded on something other than the offense of conviction,
something the Court was unwilling to say. 412

        Third, Rodriquez argued that the government’s ACCA interpretation produced a
“perverse bootstrapping” whereby a defendant is punished under federal law for being
determined a recidivist under state law. 413 The Court points out that the ACCA itself is a
recidivist statute, and Congress must have realized that the “maximum penalty prescribed by
law” could be increased by state recidivist provisions. 414 Further, Rodriquez argued that the
federal courts would have to make complex state law determinations on whether the maximum
term of imprisonment was ten years or greater because it might not be clear whether a defendant
faced a state recidivist provision.415 The Court said this problem was vastly overstated because:
(1) receipt of a recidivist provision may be evident from the sentence imposed;416 (2) the
conviction may list the maximum sentence in some jurisdictions; 417 (3) some jurisdictions

404
    Id. at 1787.
405
    Id. at 1787-88.
406
    Id.
407
    Id. at 1788.
408
    Id.
409
    Id. at 1788-89.
410
    Id. at 1789.
411
    Id.
412
    Id.
413
    Id.
414
    Id. at 1790.
415
    Id. at 1791.
416
    Id.
417
    Id.



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require the prosecution to file a publicly available charging document to get a recidivist
enhancement; 418 (4) a plea colloquy will often include the maximum penalty; 419 and (5) where
the records don’t show that the defendant was subject to a recidivist provision, the government
may not be able to show that the maximum term of imprisonment was for ten years or more. 420
Future difficulties did not justify the ACCA’s clear meaning in the eyes of the Court. 421

        Lastly, Rodriquez argued that if state recidivist provisions could increase the “maximum
term” of imprisonment under ACCA, then state sentencing guideline caps on sentences must
decrease the “maximum term” of imprisonment. 422 The Court also rejected this argument on the
basis that judges can often depart from these guidelines within specified parameters in state
sentencing schemes. 423 Therefore, a cap in the sentencing guidelines of a state might not really
be the “maximum term” a defendant faced. 424

        The Court ultimately held that for purposes of the ACCA, the “maximum term of
imprisonment…prescribed by law” was the ten year maximum term set by the applicable
recidivist provisions, and thus two of Rodriquez’s drug convictions were “serious drug offenses”
under the ACCA.425

Logan v. United States, 128 S. Ct. 475 (2007).
        Logan pled guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1).426 Logan was sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(1).427 Logan argued that he was subject to one of the exemptions in 18 U.S.C. § 921 and
should not have been sentenced under the ACCA.428 Under the ACCA, a conviction may be
disregarded if the offender “has been pardoned or has had civil rights restored.” 429 Logan had
not been pardoned for any of his three past state-court convictions, nor had they been expunged
or set aside. 430 None of Logan’s state court convictions that triggered the ACCA sentencing
enhancement occasioned the loss of civil rights. 431

        Under the ACCA, if Logan’s prior criminal record includes at least three convictions for
“violent felonies” or “serious drug offenses,” he faces a sentence from 15 years to life in
prison.432 While section 921(a)(20) does not define the term “civil rights” for purposes of the



418
    Id.
419
    Id.
420
    Id.
421
    Id.
422
    Id. at 1792.
423
    Id.
424
    Id.
425
    Id. at 1793.
426
    Logan v. United States, 128 S. Ct. 475, 478 (2007).
427
    Id. at 478-79.
428
    Id. at 479 (citing 18 U.S.C. § 921(a)(20) (2000)).
429
    Id. (quoting 18 U.S.C. § 921(a)(20) (2000)).
430
    Id.
431
    Id.
432
    Id. (quoting 18 U.S.C. § 924(e)(1)).



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exemption, the Court had previously held that the rights to vote, hold office, and serve on a jury
were the right to which section 921(a)(20) referred. 433

        Responding to a call about a domestic disturbance, police stopped Logan in his car and
Logan consented to a search of the vehicle. 434 Police found a handgun hidden behind the glove
compartment. 435 Logan pled guilty to the felon in possession of a gun charge and was sentenced
to the mandatory minimum of 15 years under the ACCA based upon his three prior convictions
for battery that qualified as “violent felonies” under the ACCA. 436 Both in the district court and
on appeal, Logan claimed he should have the benefit of the exemption contained in section
921(a)(20) because his civil rights had never been taken away. 437 The district court rejected that
argument, and the Seventh Circuit affirmed, holding that an offender who never has his civil
rights taken away does not have them “restored” for the purposes of section 921(a)(20).438

        The Supreme Court first looked to the plain meaning of the term “restored” in section
921(a)(20). 439 Generally, a right never taken away cannot be “restored.” 440 Second, the Court
found Logan’s argument that a literal reading of the statute would create perverse consequences
unpersuasive. 441 Logan argued that defendants convicted of very serious offenses who lived in
states that restore civil rights would not have the harsh consequences of the ACCA, while other
less serious criminals in states that do not restore civil rights would be subject to the ACCA. 442
The Court found that Logan’s argument overlooked the “unless” clause in Section 921(a)(20)
that gives an offender no exemption from the ACCA if his or her dispensation “expressly
provides that the [offender] may not ship, transport, possess, or receive firearms.” 443 The Court
noted that many states restoring civil rights to felons also impose firearm restrictions on the same
persons. 444

        The Court also noted that under Logan’s interpretation, in states that didn’t revoke civil
rights, even murderers would get the benefit of the exemption. 445 Logan’s interpretation would
also undercut the purposes of Section 921(a)(20)(B) in including misdemeanor convictions
punishable by more than two years. 446 If the Court adopted Logan’s interpretation, the inclusion
of misdemeanors punishable by more than 2 years would be meaningless as civil rights are
usually retained in the event of a misdemeanor conviction. 447



433
    Id. (citing Caron v. United States, 524 U.S. 308, 316 (1998)).
434
    Id. at 480.
435
    Id.
436
    Id.
437
    Id. at 480-81.
438
    Id. at 481.
439
    Id. at 482.
440
    Id.
441
    Id.
442
    Id.
443
    Id. (quoting 18 U.S.C. § 921(a)(20) (2000)).
444
    Id.
445
    Id. at 483.
446
    Id. at 484.
447
    Id.



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        Ultimately, the Court held that the exemption under section 921(a)(20) does not cover the
case of an offender who never had his civil rights taken away by a prior conviction. 448

                             SECTION 2.9: CONTROLLED SUBSTANCES ACT

Burgess v. United States, 128 S. Ct. 1572 (2008).
        Keith Lavon Burgess pled guilty to conspiracy to possess with intent to distribute 50
grams or more of cocaine and cocaine base, an offense under the Controlled Substances Act
(CSA) which carries a 10-year mandatory minimum sentence.449 Burgess had a prior South
Carolina cocaine possession conviction, which carried a maximum sentence of two years but was
classified as a misdemeanor.450 Burgess’ sentence was enhanced based on this prior “felony
drug offense” to a minimum 20-year sentence under the CSA.451 Burgess argues that his prior
conviction does not warrant an enhanced sentence because it was not classified as a felony under
§ 802(13) of the CSA.452

        The Supreme Court held that the term “felony drug offense” in § 841(b)(1)(A) is defined
exclusively by § 802(44) and does not incorporate § 802(13)’s definition of felony.453 § 802(13)
defines “felony” as any federal or state offense classified by applicable federal or state law as a
felony.454 § 802(44) defines “felony drug offense” as an offense punishable by imprisonment
for more than one year under any law of the United States or State that prohibits or restricts
conduct related to narcotic drugs, etc.455 §802(44) does not incorporate the §802(13) definition
of felony. 456

        The CSA legislative history reinforces the Court’s interpretation.457 By holding that §
802(44) is the exclusive definition of felony drug offense, the Court is furthering the purpose of
the 1994 revision, which was to eliminate disparities resulting from divergent state
classifications of offenses by adopting a uniform federal standard based on the authorized term
of imprisonment.458 Burgess’s compound definition including (13) and (44) would have little
practical effect and refutes the statute’s text and history.459 Further the rule of lenity is not
applicable here because the statute is coherent, complete and exclusive and, thus leaves no
ambiguity for the rule to resolve.460

                                  SECTION 2.10: FOURTH AMENDMENT

Virginia v. Moore, 128 S. Ct. 1598 (2008).
448
    Id. at 485.
449
    Burgess v. United States, 128 S. Ct. 1572, 1574-76 (2008).
450
    Id. at 1576.
451
    Id.
452
    Id. at 1577.
453
    Id.
454
    Id.
455
    Id.
456
    Id.
457
    Id. at 1579.
458
    Id. at 1579-80.
459
    Id. at 1580.
460
    Id.



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        David Lee Moore was arrested for the misdemeanor offense of driving on a suspended
license in Virginia.461 A search incident to his arrest yielded crack cocaine and Moore was tried
on drug charges.462 Virginia law required that a summons be issued for driving on a suspended
license charges, not arrest.463 The Virginia trial court declined to suppress the evidence found
during the search incident to arrest on Fourth Amendment grounds.464 The Virginia Supreme
Court reversed because the arresting officers should have issues a citation and the Fourth
Amendment does not permit search incident to citation.465

       The Supreme Court held that the police did not violate the Fourth Amendment when they
made an arrest based on probable cause and conducted a search incident to that arrest.466 Moore
argued that the Fourth Amendment was intended to incorporate statutes, but the Court did not
find any support for that argument in our common law or founding era’s decisions.467 The Court
analyzed the search and seizure under traditional reasonableness standards by balancing an
individual’s privacy rights and the government’s need to search for the promotion of legitimate
governmental interests.468 Applying this standard, the Court held that when an officer has
probable cause to believe a person committed even a minor offense, the arrest is constitutionally
reasonable.469

        The Court explained that a state’s choice of more restrictive search and seizure policy
does not render less restrictive ones unreasonable and unconstitutional.470 The Court further
noted that reading state statutes into the Fourth Amendment would make the Fourth Amendment
protections as complex as state law and cause the protections to vary from time and place.471
The Court reaffirmed that officers may perform searches incident to arrest to ensure their safety
and safeguard evidence.472 The Fourth Amendment does not require the exclusion of evidence
obtained from a constitutionally permissible arrest and the Fourth Amendment is not charged
with enforcing state law.473

            SECTION 2.11: RETROACTIVITY OF NEW RULES OF CRIMINAL PROCEDURE

Danforth v. Minnesota, 128 S. Ct. 1029 (2008).
        Stephen Danforth was convicted of first-degree criminal sexual conduct with a minor in
1996.474 The 6-year old victim did not testify at trial, but the jury was shown a videotaped
interview with the child.475 On appeal, Danforth argued that admission of the tape violated his

461
    Virginia v. Moore, 128 S. Ct. 1598, 1601 (2008).
462
    Id. at 1602.
463
    Id.
464
    Id.
465
    Id.
466
    Id. at 1608.
467
    Id. at 1603.
468
    Id. at1604.
469
    Id.
470
    Id.
471
    Id. at 1606-07.
472
    Id. at 1607.
473
    Id. at 1608.
474
    Danforth v. Minnesota, 128 S. Ct. 1029, 1033 (2008).
475
    Id.



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Sixth Amendment confrontation right.476 The Minnesota Court of Appeals affirmed the
conviction concluding that the tape was sufficiently reliable under Ohio v. Roberts.477 The
conviction became final in 1998 when the Minnesota Supreme Court denied review.478
Thereafter, the Supreme Court issued a new rule in Crawford v. Washington.479 The new rule
held that where testimonial statements are at issue the only indicia of reliability sufficient to
satisfy the Constitution is confrontation.480 Shortly thereafter, Danforth filed a state post-
conviction petition requesting a new trial because the admission of the tape violated Crawford.481
The Minnesota trial and appellate courts concluded that Crawford did not apply to Danforth
retroactively under Teague v. Lane.482 The Minnesota Supreme Court agreed and concluded that
state courts are not “free to give a decision of this Court announcing a new constitutional rule of
criminal procedure broader retroactive application than that given by this Court.”483

         The Supreme Court reversed holding that Teague does not constrain the authority of state
courts to give broader effect to new rules of criminal procedure than required by that opinion.484
The Court explained that Crawford announced a “new rule” as defined in Teague because its
result was not dictated by precedent established at the time defendant’s conviction became
final.485 The Court first adopted a case-by-case retroactivity standard in Linkletter v. Walker,
but later rejected that standard for cases pending on direct review.486 Retroactivity of a new rule
is actually determining whether a violation of the right that occurred prior to announcement of
the new rule will entitle a criminal defendant to relief.487

        Under Teague, new constitutional rules of criminal procedure may be applied
retroactively to cases on federal habeas review unless they place certain primary individual
conduct beyond the state’s power to proscribe or are “watershed” rules.488 The Court stated that
neither Linkletter nor Teague explicitly or implicitly constrained state authority to provide
remedies for a broader range of constitutional violations than those included in federal habeas.489
The Teague opinion makes it clear that the holding was tailored to federal habeas review of state
court convictions.490 It does not inhibit a state agency or court from extending the rule’s benefit
to others circumstances.491 The federal interest in uniformity does not outweigh the state’s
independent sovereignty.492 Further the Teague rule was intended to limit the federal courts


476
    Id.
477
    Id. Citing Ohio v. Roberts, 448 U.S. 56 (1980).
478
    Id. at 1033.
479
    Id. citing Crawford v. Washington, 541 U.S. 36, 68-69 (2004).
480
    Id.
481
    Id.
482
    Id. citing Teague v. Lane, 489 U.S. 288 (1989).
483
    Id. at 1033-34.
484
    Id. at 1033.
485
    Id. at 1035.
486
    Id. at 1036-37. Citing Linkletter v. Walker, 381 U.S. 618 (1965).
487
    Id. at 1035.
488
    Id. at 1037-38.
489
    Id. at 1038.
490
    Id. at 1039.
491
    Id.
492
    Id. at 1041.



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authority to overturn state convictions, not to limit state authority to grant relief for violations of
new constitutional rules.493

         Minnesota argued that the Court’s precedent cast doubt on state courts’ authority to
provide broader remedies for federal constitutional violation than mandated by Teague.494 The
Supreme Court disagreed stating that neither Michigan v. Payne nor American Trucking Ass’ns.,
Inc. v. Smith suggest that the Court intended to prohibit state courts from applying new
constitutional standard in a broader range of cases.495 There is no federal rule that prohibits
states from giving broader retroactive effect to new rules of criminal procedure.496

                                         SECTION 2.12: TAX EVASION

Boulware v. United States, 128 S. Ct. 1168 (2008).
        Michael H. Boulware was charged and convicted of criminal tax evasion and filing a
false income tax return stemming from his diversion of funds from Hawaiian Isles Enterprises
(HIE) a closely held corporation of which he was the founder, president and controlling
shareholder.497 One element of tax evasion is the “existence of a tax deficiency.”498 Boulware
sought to introduce evidence that HIE had no earnings and profits in the relevant taxable years,
so in effect he received distributions of property that were returns on his capital, which is not
taxable under 26 U.S.C. §§ 301 and 316(a).499 The District court granted the Government’s in
limine motion to bar Boulware from presenting evidence of his return-of-capital theory relying
on United States v. Miller.500 The Ninth Circuit affirmed stating that Boulware’s proffer was
properly rejected because he did not offer any proof that the amounts diverted were intended as a
return on capital when they were made.501

        The Supreme Court held that a distribute accused of criminal tax evasion may claim
return-of-capital treatment without producing evidence that when the distribution occurred,
either he or the corporation intended a return of capital.502 The Court further explained that tax
classifications like “dividend” and “return of capital” turn on objective economic realities not the
particular form used by the parties.503 A shareholder’s informal receipt of corporate property
may be effective as a means for distributing profits among stockholders.504 The view espoused
in United States v. Miller that a return-of-capital defense requires evidence of a corresponding
contemporaneous intent contradicts the tax law’s economic realism and the wording of §§ 301
and 316(a).505 The statute does not inquire as to intent of corporation’s distribution, but on
whether the corporation had earnings and profits and the amount of the taxpayer’s basis for his
493
    Id.
494
    Id. at 1042.
495
    Id. at 1042-45.
496
    Id. at 1047.
497
    Boulware v. United States, 128 S. Ct. 1168, 1174 (2008).
498
    Id. at 1173.
499
    Id. at 1174.
500
    Id. at 1174, citing United States v. Miller, 545 F.2d 1204 (9th Cir. 1976).
501
    Id. at 1175.
502
    Id. at 1181.
503
    Id. at 1175-76.
504
    Id. at 1176.
505
    Id. at 1177, citing United States v. Miller, 545 F.2d 1204 (9th Cir. 1976).



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stock.506 The Miller court incorrectly emphasized the deficiency’s amount while ignoring the
willfulness of the intent to evade taxes. 507Miller erred in requiring contemporaneous intent.508
The Court declines to address the Government’s arguments regarding distribution as a return of
capital and unlawful diversion as a distribution.509

                                     SECTION 2.13: JURY SELECTION

Snyder v. Louisiana, 128 S. Ct. 1203 (2008).
        Allen Snyder was charged with first degree murder in Louisiana and was sentenced to
death.510 Snyder appeals the trial court’s rulings on his challenges to the prosecution’s
peremptory strikes under Batson v. Kentucky.511 During voir dire, the prosecutor used
peremptory strikes to eliminated black prospective jurors who survived challenges for cause.512
The Louisiana Supreme Court rejected petitioner’s claim that the prosecution’s peremptory
strikes of certain prospective jurors, including Mr. Brooks were based on race in violation of
Batson.513

        The Supreme Court held that the trial judge committed clear error in rejecting the Batson
objection to the strike of Mr. Brooks.514 The Court explained that Batson delineates a three-step
process for evaluation claims under Batson.515 First, a defendant must make a prima facie
showing that the challenge was based on race.516 If so, then secondly the prosecution must offer
a race-neutral basis for striking the juror in question; and thirdly, in light of the parties’
submission the trial court must determine whether the defendant has shown purposeful
discrimination.517 The Court noted that the trial court’s role is pivotal, for it must evaluate the
demeanor of the prosecutor exercising the challenge and the juror being excluded.518

       The explanation given for striking Mr. Brooks, a college senior attempting to complete
his student teaching obligation, is insufficient by itself and suffices for a Batson error
determination.519 The prosecutor first stated that she struck Mr. Brooks because he looked
nervous.520 The trial court allowed the challenge without any explanation.521 Further the
prosecutor waited until the day after Mr. Brooks was questioned to challenge him and the judge
might not have been able to recall his demeanor.522

506
    Id.
507
    Id.
508
    Id. at 1180.
509
    Id. at 1181.
510
    Snyder v. Louisiana, 128 S. Ct. 1203, 1206 (2008).
511
    Id. citing Batson v. Kentucky, 476 U.S. 79 (1986).
512
    Id. at 1207.
513
    Id.
514
    Id. at 1208.
515
    Id. at 1207-08.
516
    Id.
517
    Id.
518
    Id. at 1208.
519
    Id.
520
    Id. at 1208-09.
521
    Id. at 1209.
522
    Id.



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        The prosecutor’s second reason for striking Mr. Brooks was that his student teaching
obligation and concern about missing teaching time needed for graduation would incline Mr.
Brooks to find Snyder guilty of a lesser charge to shorten the trial and obviate the need for a
penalty phase.523 The Court found no merit in this reasoning.524 The prosecutor’s scenario is
highly speculative and rebutted by the transcript.525 A law clerk spoke with Mr. Brooks’ dean
and confirmed that he would be able to make up the teaching time missed during trial before the
semester ended.526 Further, the prosecution accepted white jurors with at least as serious
conflicting obligations as Mr. Brooks.527 Under Batson’s third stage, the prosecution’s
pretextual explanation gives rise to an inference of discriminatory intent.528 At this point, the
burden shifts to the prosecution to show that the discriminatory factor was not determinative.529
The record here does not show that the prosecution would have preemptively challenged Mr.
Brooks based on his nervousness alone and there is no realistic possibility that the subtle
question of causation could be profitably explored on remand a decade after Snyder’s trial. 530
The trial court committed a clear error in its ruling on Snyder’s Batson challenge and therefore
the matter is reversed. 531

Gonzalez v. United States, 128 S. Ct. 1765 (2008).
        Gonzalez was convicted of importing heroin and appealed on the ground that a magistrate
judge presided over voir dire without proper consent.532 The key issue was that defense counsel
had consented to having a magistrate judge, rather than an Article III judge, preside over voir
dire, but that the defendant had not expressly consented. 533 The magistrate judge asked the
parties if they would consent to having him “proceed in assisting in the jury selection of this
case.” 534 The defendant was present but was never directly asked if he consented to the
magistrate judge’s presiding. 535 Gonzalez made no objections at the time of jury selection and a
jury was selected. 536 A District Judge presided over the jury trial and Gonzalez was convicted.
537



       Gonzalez brought up the issue of the magistrate judge presiding over voir dire for the first
time on appeal. 538 The Fifth Circuit affirmed Gonzalez’s convictions, holding that the right to
have an Article II judge preside over voir dire could be waived by defense counsel. 539 The Court

523
    Id. at 1209-10.
524
    Id. at 1210.
525
    Id.
526
    Id.
527
    Id. at 1211-12.
528
    Id. at 1212.
529
    Id.
530
    Id.
531
    Id.
532
    Gonzalez v. United States, 128 S. Ct. 1765, 1767 (2008).
533
    Id.
534
    Id.
535
    Id.
536
    Id.
537
    Id.
538
    Id.
539
    Id.



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noted that at least one circuit, the Eleventh Circuit, required personal and explicit consent from
the defendant to have a magistrate judge preside over voir dire. 540

        First, the Court noted that a federal magistrate judge may preside over voir dire and jury
selection in a felony criminal trial if the parties consent. 541 The Federal Magistrates Act, 28
U.S.C. § 631 et seq. (2000), permits district courts to assign this role to magistrate judges. 542
The statute directly applicable here was 28 U.S.C. § 636(b)(3), which provides, “A magistrate
judge may be assigned such additional duties as are not inconsistent with the Constitution and
laws of the United States.” 543 The Court contrasted Section 636(b)(3) with the provision that
allows magistrate judges to preside over entire misdemeanor trails with the express, personal
consent of the defendant. 544 In contrast, Section 636(b)(3) doesn’t require such clarity with the
defendant. 545 The Court analogized the right to a district judge at voir dire with other similar
“trial management matters” such as scheduling, which are properly tactical decisions of the
attorney. 546 For instance, in Hill the Court held that an attorney could waive the right to speedy
trial without indication of particular consent from his client. 547 The Court noted that Gonzalez
conceded that magistrate judges are capable of competent and impartial performance when
presiding over jury selection. 548 Similar to other tactical decisions, the Court said, requiring an
on-the-record discussion with the defendant would necessitated at lengthy explanation that the
defendant might not understand and would distract from more pressing matters. 549 The Court
notes that it is not deciding the not-presented case of a defendant’s attorney consenting to the
presiding of a magistrate judge over his client’s objection. 550 The Court held that the consent of
the parties’ attorneys is enough to validly waive the defendant’s right to have an Article III judge
preside over the voir dire and jury selection of his trial. 551

                       SECTION 2.14: TREATIES AND INTERNATIONAL COURTS

Medellin v. Texas, 128 S. Ct. 1346 (2008).
       The International Court of Justice (ICJ) held that the United States violated Article
36(1)(b) of the Vienna Convention on Consular Relations in Case Concerning Avena and Other
Mexican Nationals.552 The ICJ found the violation occurred because the U.S. failed to inform
51 named Mexican nationals, including petitioner Medellin, of their Vienna Convention rights
when they were arrested.553 THE ICJ held that the named individuals were entitled to a review


540
    Id. (citing United States v. Maragh, 174 F.3d 1202, 1206 (11th Cir. 1999)).
541
    Id. at 1766-67 (citing Peretz v. United States, 501 U.S. 923, 933 (1991)).
542
    Id. at 1767.
543
    Id. (quoting 28 U.S.C. § 636(b)(3) (2000)).
544
    Id. at 1768-69 (citing 18 U.S.C. § 3401(b) (2000) (requiring careful explanation to the defendant that he has a
right to have his case heard before a district judge)).
545
    Id. at 1769.
546
    Id. at 1770.
547
    Id. at 1769-70 (citing New York v. Hill, 528 U.S. 110, 115 (2000)).
548
    Id. at 1770.
549
    Id.
550
    Id. at 1772.
551
    Id.
552
    Medellin v. Texas, 128 S. Ct. 1346, 1352 (2008).
553
    Id. at 1353-54.



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and reconsideration of their U.S. state court convictions regardless of the individuals’ failure to
comply with state rules governing challenges to criminal convictions.554

        The Supreme Court held in Sanchez-Llamas v. Oregon, that contrary to the ICJ’s
determination, the Convention did not preclude the application of the state default rules.555 The
President then issued a memorandum (Memorandum) stating that the United States would
“discharge its international obligations” under Avena “by having State courts give effect to the
decision.556 Medellin filed a second Texas state court habeas application challenging his
conviction and death sentence on the ground that he had not been informed of his Vienna
Convention rights.557 The Texas Court of Criminal Appeals dismissed the application
concluding that neither Avena nor the Memorandum was binding federal law that could displace
the state’s limitations on filing successive habeas applications.558

        The Supreme Court held that neither Avena nor the President’s Memorandum constitutes
directly enforceable federal law that preempts state limitations on habeas petitions.559 The Court
explained that the Avena judgment is not directly enforceable as domestic law in state courts.560
A treaty may constitute an international commitment, but it is not binding domestic law unless
Congress has enacted statutes implementing it or the treaty is self-executing.561 The Avena
judgment is based on the Optional Protocol, the U.N. Charter and the ICJ Statute.562 It is not
automatically binding because none of the international agreements are self-executing and
Congress has not enacted any legislation.563        The Optional Protocol is merely a grant of
             564
jurisdiction.      It does not commit signatories to comply therewith and is silent as to
enforcement methods.565 The obligation to comply with ICJ judgments is derived from Article
94 of the U.N. Charter, which states that each member “undertakes to comply” with the ICJ’s
decision.566 It is simply a commitment to take future action through their political branches; the
language does not indicate that the Senate intended to vest ICJ decisions with immediate legal
effect in domestic courts.567

        The Court explains that their interpretation is confirmed by Article 94(2) which provides
that the sole remedy for noncompliance is referral to the U.N. Security Council.568 It is a
diplomatic rather than a judicial remedy.569 The Court holds that this is evidence that the ICJ


554
    Id. at 1352.
555
    Id. at 1352-53, citing Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).
556
    Id. at 1353.
557
    Id. at 1356.
558
    Id.
559
    Id. at 1372.
560
    Id. at 1357.
561
    Id. at 1356-57.
562
    Id. at 1358-61.
563
    Id. at 1357.
564
    Id. at 1358.
565
    Id.
566
    Id.
567
    Id.
568
    Id. at 1359.
569
    Id.



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judgments were not meant to be enforceable in domestic courts.570 Medellin’s construction of
the Charter would eliminate the noncompliance option remedy and undermine the ability of the
political branches to determine whether and how to comply with ICJ judgment.571
The ICJ statute limits disputes to those involving nations.572 It does not reach individuals.573 It
only has binding force between those nations. Medellin cannot be considered a party to the
Avena decision.574

         The Executive branch has unfailingly adhered to its view that treaties do not create
domestically enforceable federal law.575 The Court noted that it has long looked to the language
of a treaty to determine whether the President who negotiated it and the Senate who ratified it,
intended for the treaty to automatically create domestically enforceable federal law.576 The
Court’s conclusion that Avena does not create binding federal law is supported by the “post
ratification understanding” of signatory countries.577 There are 47 nations party to the Optional
Protocol and 171 nations party to the Vienna Convention, but Medellin has not identified a single
nation that teats ICJ judgments as directly enforceable domestic law.578

        The Court explained that their conclusion is further supported by general principles of
interpretation.579 A forum state’s procedural rules govern a treaty’s implementation absent a
clear and express statement to the contrary.580 There is no statement in the Optional Protocol, the
U.N. Charter, or the ICJ Statute that supports the argument that ICJ judgments have domestic
effect.581 This holding does not call into question the ordinary enforcement of foreign
judgments.582 Congress is responsible and capable of implementing non-self-executing
treaties.583
        The President’s Memorandum does not independently require the States to provide
review and reconsideration of the claims of 51 Mexican nationals named in Avena without regard
to state procedural default rules.584 The President seeks to ensure the reciprocal observance of
the Vienna conventions and protect relations with foreign governments.585 But those interests do
not allow the Court to set aside first principles.586 The President’s authority must stem from
either an act of Congress or the Constitution.587 Justice Jackson’s three part framework in
Youngstown Sheet & Tube Co. v. Sawyer is the accepted authority for evaluating the President’s

570
    Id.
571
    Id. at 1360.
572
    Id.
573
    Id.
574
    Id.
575
    Id. at 1361.
576
    Id. at 1362.
577
    Id. at 1363.
578
    Id.
579
    Id. at 1363-64.
580
    Id.
581
    Id. at 1364.
582
    Id. at 1365.
583
    Id. at 1366.
584
    Id. at 1368-72.
585
    Id. at 1367.
586
    Id. at 1368.
587
    Id.



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authority.588 First, when the President acts pursuant to an express or implied authorization of
Congress his authority is at its maximum.589 Second, when the President acts in absence of
congressional authority, he can only rely on his own Constitutional power.590 When the
President takes action incompatible with expressed or implied will of Congress, his power is at
its lowest point.591

        The Government argues that the President has authority to establish binding rules of
decision that preempt contrary state law.592 First, the Government argues that the relevant
treaties give the President the authority to implement the Avena decision and Congress has
acquiesced in the exercise of that authority.593 Second, the President has independent
international dispute-resolution power.594 Medellin argues that the President’s Memorandum is a
valid exercise of his “Take Care” power.595 The Court finds all three arguments unpersuasive.596
The Government also argues that the President’s Memorandum is implicitly authorized by the
Optional Protocol and the U.N. Charter, but the Court holds that the responsibility for
transforming a non-self-executing treaty into domestic law belongs to Congress.597 The power to
make necessary laws belongs to Congress and the power to execute those laws belongs to the
President.598

        Thus, the President’s Memorandum does not fall into the first or second category of the
Youngstown framework.599 The Memorandum and the President’s assertion of power falls
within the third category of the Youngstown framework.600 The Court also noted that
Congress’s failure to act following the President’s resolution of prior ICJ controversies does not
demonstrate acquiescence because none of the prior controversies involved the President
asserting authority to transform international treaties into domestic law.601 Further, the
President’s established role in litigating foreign affairs speaks to his international responsibility
not to any unilateral authority to create domestic law.602

       The combination of a non-self-executing treaty and the lack of implementing legislation
does not preclude the President from acting to comply with international treaty obligations.603
As long as the President’s means are consistent with the Constitution, however, the President
may not rely upon a non-self-executing treaty to establish binding rules of decision that preempt


588
    Id. citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952).
589
    Id.
590
    Id.
591
    Id.
592
    Id.
593
    Id.
594
    Id.
595
    Id.
596
    Id. at 1372.
597
    Id. at 1368-69.
598
    Id.
599
    Id. at 1369.
600
    Id.
601
    Id. at 1372.
602
    Id.
603
    Id. at 1371.



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state law.604 Lastly, the President’s Memorandum is not based on a longstanding practice as the
Government contends.605 The Executive has limited authority to settle international claims
disputes pursuant to an executive agreement.606 That authority does not include the
Memorandum and its attempt to set aside neutrally applicable state laws and compel those courts
to reopen final criminal judgments.607 The Avena decision, Optional Protocol, U.N. Charter and
the President’s Memorandum are not binding domestic law.608

                      SECTION 2.15: INTERPRETATION OF CRIMINAL STATUTES

United States v. Ressam, 128 S. Ct. 1858 (2008).
        Ressam was convicted of carrying an explosive during the commission of a felony in
violation of 18 U.S.C. § 844(h)(2) and making a false statement to a United States customs
official, in violation of 18 U.S.C. § 1001.609 Ressam attempted to enter the United States by car
ferry at Port Angeles, Washington, and U.S. customs official stopped and questioned him.610
The customs official asked Ressam to fill out a customs declaration form. 611 On the form,
Ressam provided a false name and declared himself as a Canadian citizen, when in fact he was
Algerian.612 Ressam was directed to a secondary inspection area, where another official found
explosives in the car’s spare tire well. 613

        The Court took the case to resolve a circuit split on the interpretation of the word
“during,” as used in 18 U.S.C. § 844(h)(2), making it a crime to carry an explosive during the
commission of a felony. 614 In the present case, the Ninth Circuit set aside Ressam’s conviction
under Section 844(h)(2) because it read the word “during” to include a requirement that the
explosive be carried in relation to the underlying felony. 615 The Court pointed out that both the
Third and Fifth Circuit had declined to interpret Section 844(h)(2) as requiring that the explosive
be carried in relation to the underlying felony. 616 The Court ultimately overturned the Ninth
Circuit’s reading of the word “during,” essentially stating that it denoted only a temporal link
between the commission of the underlying felony and the commission of the felony. 617 The
carrying of explosives and the underlying felony did not have to be related to one another. 618




604
    Id.
605
    Id. at 1372.
606
    Id.
607
    Id.
608
    Id.
609
    United States v. Ressam, 128 S. Ct. 1858, 1860 (2008).
610
    Id.
611
    Id.
612
    Id.
613
    Id.
614
    Id.
615
    Id.
616
    Id. at 1860 n.1 (citing United States v. Rosenberg, 806 F.2d 1169, 1178-79 (3d Cir. 1986); United States v. Ivy,
929 F.2d 147, 151 (5th Cir. 1991)).
617
    Id. at 1862.
618
    Id.



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        The Court first turned to a natural reading of Section 844(h)(2) and the word “during” as
used in that statute. 619 Because Ressam conceded that the items in his car were explosives, the
court declined to determine the bounds of that term as used in the statute. 620 The Court said the
plain meaning of the term merely denotes a temporal link. 621 Under that analysis, Ressam
carried the explosives during the time he committed the underlying felony of making a false
statement to the customs official.622

        The Court then turned to an analysis of the legislative history. The Court analyzed the
parallel development of Section 844(h)(2) and Section 924(c)(2), which makes it unlawful to
carry a firearm during the course of a felony. 623 In 1984, Section 924(c)(2), the prohibition
against carrying a firearm during the commission of a felony, had been revised by changing
“during” to “during and in relation to the commission of any felony.” 624 In 1988, Congress
enacted Section 844(h)(2). 625 The Court emphasized that Congress could have inserted the
language “in relation to” in the explosives statute as well, but it chose not to, and the Court felt
that decision was not inadvertent. 626 The Court held that the intent of Section 844(h)(2) was to
prohibit the carrying of explosives during the time a person was committing any felony. 627

Watson v. United States, 128 S. Ct. 579 (2007).
        Watson was convicted for use of a firearm during and in relation to a drug trafficking
crime for trading drugs for a gun.628 The Court reversed Watson’s conviction on the grounds
that trading drugs for a gun did not constitute “use” under 18 U.S.C. § 924(c)(1)(A). 629

        Watson was charged with distributing a Schedule II controlled substance and for “using”
a pistol during and in relation to that crime, in violation of Section 924(c)(1)(A). 630 Watson pled
guilty to both charges, reserving the right to challenge the factual basis for the conviction under
section 924(c)(1)(A) and the additional 60 months he got for “using” the gun. 631 The Fifth
Circuit affirmed. 632

       The Court stated that there was no statutory definition of the word “use,” and thus the
Court turned to the plain meaning of the word. 633 The Government cited Smith v. United States
for the proposition that trading a gun for drugs could be considered “use” under Section
924(c)(1)(A). 634 In Smith, the Court held that “a criminal who trades his firearm for drugs ‘uses’

619
    Id. at 1860.
620
    Id.
621
    Id.
622
    Id.
623
    Id.
624
    Id.
625
    Id. at 1862.
626
    Id.
627
    Id.
628
    Watson v. United States, 128 S. Ct. 579, 582 (2007).
629
    Id.
630
    Id.
631
    Id. at 584 (citing Smith v. United States, 508 U.S. 223, 241)).
632
    Id.
633
    Id. at 583 (citing Lopez v. Gonzales, 127 S. Ct. 625, 629-30 (2006)).
634
    Id.



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it…within the meaning of § 924(c)(1).” 635 The Court stated that Smith was not dispositive
because Smith dealt with the situation of a person who uses his own gun to trade it for drugs,
which was in stark contrast to the barterer who merely ends up with a gun in a barter situation. 636

        The Court cited Bailey v. United States for the proposition that the mere possession of a
firearm near the scene of drug trafficking is not “use” under § 924(c)(1), but noted that Bailey
did not answer the question presented here because it only said that a gun must be used actively
to satisfy the “use” requirement of Section 924(c)(1)(A). 637 The Court recognized that this
would create a strange result for barterers of guns and drugs, as the original owner of the gun
could be charged under Section 924(c)(1)(A), but the recipient of the gun could not. 638
However, the Court said that the statute would have to be amended if it was meant to apply to
both parties on the ends of a gun-for-drug barter. 639

                                  SECTION 2.16: CHILD PORNOGRAPHY

United States v. Williams, 128 S. Ct. 1830 (2008).
        Williams pled guilty of pandering or solicitation of child pornography, in violation of 18
U.S.C. § 2252A(a)(3)(B), and possession of child pornography, in violation of 18 U.S.C. §
2252A(a)(5)(B), but reserved the right to challenge his pandering conviction’s
constitutionality.640 The district court rejected his constitutional challenge and sentenced him to
concurrent 60-month sentences on the two counts.641 On appeal, the Eleventh Circuit reversed
William’s conviction for pandering of child pornography on the grounds that 18 U.S.C. §
2252A(a)(3)(B) was overbroad under the First Amendment and impermissibly vague under the
Due Process Clause. 642 The Supreme Court reversed, finding that Section 2252A(a)(3)(B) was
neither overbroad under the First Amendment, nor impermissibly vague under the Due Process
Clause. 643

        Williams logged into an Internet chat room under a sexually explicit name. 644 A Secret
Service agent was also logged into that chat room and noticed that Williams had posted a
message that read: “Dad of toddler has ‘good’ pics of her an [sic] me for swap of your toddler
pics, or live cam.” 645 The agent and Williams struck up a conversation and Williams told the
agent that he had photos of men molesting his 4-year-old daughter. 646 Suspicious that the agent
was with law enforcement, Williams asked her to send him additional pictures. 647 When the
agent would not do so, Williams sent a message to the room taunting the agent with a hyperlink


635
    Id.
636
    Id.
637
    Id. at 583.
638
    Id. at 584-85
639
    Id. at 585.
640
    United States v. Williams, 128 S. Ct. 1830, 1838 (2008).
641
    Id.
642
    Id.
643
    Id. at 1846-47.
644
    Id. at 1837.
645
    Id.
646
    Id.
647
    Id.



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several pornographic photographs of children. 648 Police executed a search warrant and found at
least 22 images of child pornography on two hard drives in Williams home. 649

        Section 2252A(a)(3)(B) makes it a crime for any person to knowingly offer to provide or
request child pornography. 650 Rather than targeting actual material, this Section bans the
“collateral speech that introduces such material into the child-pornography distribution
network.”651 The Court found that the statute’s definition of the material or purported material
that could not be pandered or solicited tracked the material previously held constitutionally
proscribable; the statute proscribed “obscene material depicting (actual or virtual) children
engaged in sexually explicit conduct, and any other material depicting actual children engaged in
sexually explicit conduct.” 652 The Court found several factors that weighed in favor of the
holding that Section 2252A(a)(3)(B) was not overbroad. First, the statute only proscribed
conduct that was done “knowingly.” 653 Second, the Court found that the operative verbs that
described the proscribed transactions, when taken in context, clearly proscribed only speech that
accompanies or seeks to induce a transfer of child pornography. 654 Third, the phrase in the
statute “in a manner that reflects the belief” includes both subjective and objective components,
lessening the likelihood of over breadth. 655 The speech must objectively manifest such a belief
in the receiver of the speech and must also show that the speaker subjectively thought the
material to be child pornography. 656 Fourth, the phrase “in a manner…that is intended to cause
another to believe,” contains only a subjective element. 657 The defendant must intend the
listener to believe the material to be child pornography in order for the statute to proscribe the
speech. Fifth, the definition of “sexually explicit conduct” in the statute was very similar to the
definition in a New York statute that the Court had previously upheld. 658 The Court held that
offers to provide or requests to obtain child pornography were categorically excluded from First
Amendment protection. 659 The Court rejected Williams argument that the statute could be
extended to cover video documentaries of atrocities overseas, such as soldiers raping young
children. 660 The Court said it would have to rise to a very high level of obscenity to be covered
by the statute, and even if it did, the statute could be subject to an as-applied challenge in that
instance.661

       Williams also argued that Section 2252A(a)(3)(B) was void for vagueness under the Due
Process clause of the Fifth Amendment. 662 In order to survive a void for vagueness challenge,


648
    Id.
649
    Id. at 1837-38.
650
    Id. at 1838.
651
    Id. at 1838-39.
652
    Id. at 1839.
653
    Id.
654
    Id. at 1840.
655
    Id.
656
    Id.
657
    Id.
658
    Id. (citing Ferber, 458 U.S. at 751).
659
    Id. at 1842.
660
    Id.
661
    Id. at 1844.
662
    Id. at 1845.



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the statute must provide a person of ordinary intelligence fair notice of what is prohibited. 663
Williams came up with the example of a parent sending an e-mail that said “little Janie in the
bath-hubba, hubba!” as potentially violating Section 2252A(a)(3)(B). 664 The Court dismissed
this notion due to the fact that both the speaker and an objective listener would have to believe
the item to be child pornography. 665 Even if both parties did hold such a belief, the Court point
out that a statute is not vague due to the simple fact that there will be close cases where a factual
determination will be difficult to make. 666 There is no indeterminacy in what content is
proscribed, and that is what is important in assessing whether a statute is void for vagueness. 667
The Court concluded that Section 2252A(a)(3)(B) was neither overbroad nor vague.

                   SECTION 2.17: PROPERTY CLAIMS AGAINST PRISON OFFICERS

Ali v. Federal Bureau of Prisons, 128 S. Ct. 831 (2008).
        Ali sued the Federal Bureau of Prisons (BOP), its Director, and a warden under the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq., for the alleged mishandling
and loss of his belongings.668 Ali was being transferred from prison facility in Atlanta, GA to a
prison facility in Inez, KY. 669 Ali left two duffle bags containing his personal property in the
Atlanta prison’s Receiving and Discharge Unit to be inventoried, packaged and shipped to
Kentucky. 670 After the move, Ali inspected his property and discovered that several items were
missing. 671 The missing items were of religious and nostalgic significance, including two copies
of the Qur’an, a prayer rug, and religious magazines. 672 The missing property was valued at
approximately $177.673

        Ali filed an administrative tort claim, which was denied. 674 Ali then filed a complaint
alleging violations of the FTCA, 28 U.S.C. §§ 1346, 2671 et seq.675 The BOP maintained that
Ali’s claim was barred by the exception in § 2860(c) for property claims against law
enforcement officers. 676 The District Court agreed and dismissed Ali’s claims. 677 The Eleventh
Circuit affirmed, agreeing with the District Court’s interpretation of § 2860(c). 678

      The FTCA waives the United States’ sovereign immunity for claims arising out of torts
committed by federal employees.679 However, the FTCA exempts from this waiver certain

663
    Id.
664
    Id.
665
    Id. at 1845-46.
666
    Id. at 1846.
667
    Id.
668
    Ali v. Federal Bureau of Prisons, 128 S. Ct. 831, 834 (2008)
669
    Id.
670
    Id.
671
    Id.
672
    Id.
673
    Id.
674
    Id.
675
    Id.
676
    Id.
677
    Id.
678
    Id.
679
    Id. at 835 (citing 28 U.S.C. § 1346(b)(1)).



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categories of claims, including those against law enforcement officers associated with the
detention of property. 680 Ali argued that the “other law enforcement officers” exception
embodied in § 2860(c) included only law enforcement officers acting in a customs or excise
capacity. 681 The Court instead gives the term “any other law enforcement officers” its natural
meaning. 682 The Court notes that Congress could have clearly limited the exception to waiver of
sovereign immunity for law enforcement officers if it wanted to do so. 683 Instead, Congress
used the all-encompassing phrase “any other law enforcement officer.” 684 Further, the Court
emphasized that section 2860(c) only maintains sovereign immunity for claims against law
enforcement officers for claims “arising in respect of the detention of property.” 685




680
    Id. (citing § 28 U.S.C. § 2860(c)).
681
    Id.
682
    Id. at 835-36.
683
    Id. at 841.
684
    Id.
685
    Id.



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                                        SECTION 3: IOWA CASE LAW

                             SECTION 3.1: STATUTORY DOUBLE JEOPARDY

State v. Boggs, 741 N.W.2d 492 (Iowa 2007).
        While executing a search warrant of David Boggs’s residence, the police discovered
Boggs with drugs, instruments used in drug distribution, and drug paraphernalia.686 The police
arrested Boggs, brought him to jail, and read him his Miranda rights, which Boggs waived.687
Boggs then admitted to ownership of the drugs found in his basement, and he also had a
discussion with the police about a plea agreement.688 Boggs was charged with possession of
marijuana and one possession of methamphetamine with intent to deliver within 1,000 feet of a
public park.689 The second count was enhanced because Boggs was a subsequent offender.690

       Boggs agreed to waive a jury trial, while retaining his right to appeal certain issues, in
exchange for the dismissal of the possession of marijuana charge and a lessened charge of
possession of methamphetamine.691 Boggs was found guilty at trial, and he appealed.692 During
the appellate process the State motioned for a summary reversal of the sentence and judgment,
which was granted.693 On remand, the State tried Boggs for the original possession of
methamphetamine with intent to distribute which was a class B felony.694 Boggs filed a pretrial
motion that stated trying him for the original charge would violate Iowa’s statutory double
jeopardy provisions.695 This motion was overruled, and at trial the jury found Boggs guilty both
of the original possession of marijuana and the original charge of possession of
methamphetamine with intent to deliver.696

        Boggs raised four issues on appeal.697 The most important issue to the court was whether
the statutory double jeopardy provisions allow for a defendant to be “subjected to a retrial for a
greater offense after reversal of a conviction for a lesser offense, when the greater offense was
originally charged but dismissed as part of an agreement between the parties in which the
defendant waived a jury trial.”698 The court reviewed the district court’s interpretation of the
double jeopardy statute for errors at law.699 After concentrating on the statutory provisions, the
court expounded on federal case law concerning the double jeopardy principle when applied to
cases that were reversed or set aside on appeal.700 The federal case law history acknowledged a

686
    State v. Boggs, 741 N.W.2d 492, 496–97 (Iowa 2007).
687
    Id. at 497.
688
    Id.
689
    Id.
690
    Id.
691
    Id.
692
    Id.
693
    Id.
694
    Id.
695
    Id. (referencing IOWA CODE § 811.3(3)).
696
    Id. at 497–98.
697
    Id. at 498.
698
    Id. at 496.
699
    Id. at 498.
700
    Id. at 499–501. The court first referenced the Ball principle that “double jeopardy under the Constitution does
not normally prohibit the retrial of a defendant whose conviction has been set aside or reversed on appeal because of



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“long-standing judicially crafted exception” to the rule barring retrials after an appellate court
has reversed or set aside a conviction, but that case law also qualified the rule in cases involving
the retrial of a greater offense.701 The court quickly added that the qualification concerning
retrial of greater offenses has only been applied when the jury had the option of convicting the
defendant of the greater offense in the first trial.702 Boggs, however, argued the Iowa statute
provides broader protection for defendants than federal case law, and claimed the Iowa statute
“prohibit[s][] prosecution of a greater offense, when that offense was charged, but dismissed
before the original trial.”703 After reviewing statutory language for its normal meaning, the court
concluded the state legislature’s inclusion of the phrase a “lesser included offense” implied that
there was deliberation on a greater offense by the finder of fact.704 If the legislature had intended
“to exclude unprosecuted greater crimes from reprosecution” the legislature would have
eliminated the phrase, “a lesser included offense.”705

        Boggs raised several other issues on appeal. First, Boggs claimed the trial court should
not have admitted his incriminating statements made to police because they were made during
plea discussions.706 The court agreed that plea discussions occurred, but Boggs did not present
evidence concerning whether the plea discussions took place prior to the incriminating
statements.707 The court reviewed the district court’s admission for errors of law since the
decision was statutorily based, and determined the district court did not err in the admission of
evidence.708

        The court also reviewed Boggs claims that the district court should have allowed his
attorney to withdraw, and that his attorney provided ineffective assistance of counsel. The court
examined whether the intention of Boggs’s counsel to remain silent during sentencing actually
justified substitute counsel.709 Because neither the record nor Boggs displayed that he suffered
prejudice due to his counsel’s actions, the trial court was not in error in refusing to grant a
substitution of counsel.710 Boggs also contended that his counsel failed to object to jury
instructions and prosecutorial misconduct during closing arguments.711 To prevail, Boggs had to
show that failure to do this was a failure to perform an essential duty and prejudice resulted.712
Although the court did acknowledge the jury instruction was perplexing, they did not find


an error in the trial proceedings.” Id. at 500 (citing Ball v. United States, 163 U.S. 662 (1896)). The court went on
to say “both the Constitution and public policy permit retrial of a defendant whose first conviction was set aside or
reversed. However, in Green v. United States, the Supreme Court qualified the Ball principle. It held Ball did not
apply to a retrial of a greater crime following the conviction of a crime in the first trial, which was set aside or
reversed.). Id. at 501 (citing Green v. United States, 355 U.S. 184, 189 (1957)).
701
    Id.
702
    Id.
703
    Id.
704
    Id. at 502.
705
    Id.
706
    Id. at 504.
707
    Id. at 505.
708
    Id. at 499, 505.
709
    Id. at 507.
710
    Id. at 507. Boggs’s counsel did not offer mitigation evidence during sentencing, but Boggs later provided a
written statement to the court. Id. at 508.
711
    Id.
712
    Id. (citing State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998)).



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prejudice from either the jury instruction or the prosecution’s closing arguments largely because
the case against Boggs was so strong.713 The court found that Boggs failed to show prejudice,
thus his ineffective assistance of counsel claim failed.714

                            SECTION 3.2: RULES OF CRIMINAL PROCEDURE

State v. Elston, 735 N.W.2d 196 (Iowa 2007).
       Mark Elston was charged with eighteen counts of sexual exploitation of a minor based on
accessing child pornography on a computer and taking illicit photographs of a minor, in violation
of Iowa Code sections 728.12(1), 728.12(3), and 728.1(7)(g); and one count indecent contact
with a child based on alleged inappropriate touching, in violation of section 709.12(2).715 A
motion to sever the eighteen counts of exploitation from the single count of indecent contact was
overruled.716 Elston was acquitted of all counts of sexual exploitation of a minor, but the jury
found him guilty of indecent contact with a child.717 Elston appealed the district court’s denial of
the motion to sever.718 The Iowa Supreme court reviewed the district court’s refusal to sever
charges for abuse of discretion.719

         The Iowa Rule of Criminal Procedure 2.6(1) states that when “‘[t]wo or more indictable
public offenses . . . arise from the same transaction or occurrence or from two or more
transactions or occurrences constituting parts of a common scheme or plan . . .’” they should be
joined.720 A transaction or occurrence is part of a “common scheme or plan” when it is a
‘“product[] of a single or continuing motive.’”721 In making its determination, the court looked
at “intent, modus operandi, and temporal and geographic proximity” of the offenses.”722 The
district court determined all charges against Elston were part of a “common scheme or plan”
because all the charges “could be found to have been motivated by [Elston’s] desire to satisfy
sexual desires through the victimization of children,” and all were in close geographical
proximity.723 The Iowa Supreme Court found the district court did not abuse its discretion, even
though the temporal proximity was not close and the modus operandi employed were
dissimilar.724

       Rule 2.6(1) gave Elston another opportunity to sever the charges if he could prove that
the “prejudice resulting from the joinder outweighed the State’s interest in judicial economy.”725
Elston alleged he suffered prejudice because the pornographic pictures of young girls would not
have been admissible in the case of indecent contact had it been tried separately.726 The court

713
    Id. at 509.
714
    Id.
715
    State v. Elston, 735 N.W.2d 196, 197 (Iowa 2007)
716
    Id.
717
    Id. at 198.
718
    Id.
719
    Id.
720
    Id. (quoting IA R. CRIM. PRO. 2.6(1))
721
    Id. (citing State v. Lam, 391 N.W.2d 245, 250 (Iowa 1986))
722
    Id. at 199 (quoting Lam, 391 N.W.2d at 249–50).
723
    Id.
724
    Id.
725
    Id.
726
    Id.



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disagreed, and stated, in response to Elston’s assertion that he accidentally touched A.E., those
pictures had “great probative value on the question of whether Elston touched A.E. ‘for the
purpose of arousing or satisfying . . . sexual desires,’” which tended to prove that the touching
was not accidental.727 Additionally, the court noted that the pictures were no more prejudicial
than other evidence admitted at trial.728 Thus, because Elston did not prove he was prejudiced,
the district did not err in overruling his motion to sever the sexual exploitation and indecent
contact charges.729

State v. Abrahamson, 746 N.W.2d 279 (Iowa 2008).
        In April 2004, Michael Abrahamson was riding in a car that was stopped by officers near
Bussey, Iowa.730 When the officers approached the vehicle they reported the distinct odor of
ammonia emanating from the car and saw Abrahamson reach down to the floorboard, giving
them cause to search the vehicle.731 During the search, the “officers discovered rubber tubing, a
pair of leather gloves, and a cold Tupperware bowl with a mixture containing methamphetamine
on the passenger floorboard.”732 Consequently, both Abrahamson and the driver were
arrested.733 Abrahamson was charged, on April 30, 2004, with conspiracy to manufacture
methamphetamine, in violation of Iowa Code section 124.401(1)(b)(7).734

        On July 28, 2004, the court found Abrahamson’s voluntary inpatient drug treatment to be
“good cause” to postpone the trial until August 25, 2004.735 On August 13, 2004, the State
moved to dismiss the charge, without prejudice, “in the interest of justice,” pursuant to Iowa
Rule of Criminal Procedure 2.33(1).736 The State’s motion was granted, and it re-filed a two-
count charge:         manufacturing methamphetamine and conspiracy to manufacture
                   737
methamphetamine.         On April 4, 2005, the district court dismissed, with prejudice, the
conspiracy charge because the August 13 dismissal “was not shown to be in furtherance of
justice.”738 However, the district court did not dismiss the manufacturing charge, and
Abrahamson was convicted of manufacturing more than five grams of methamphetamine.739
Abrahamson appealed the jury’s verdict, “contending the district court erred in denying his
motion to dismiss the manufacturing charge on speedy trial grounds,” and the court of appeals
reversed his conviction.740

       The Iowa Supreme Court reviewed the court of appeals decision “for correction of errors
at law.”741 In order to determine whether the court of appeals was correct in dismissing the

727
    Id. 200 (quoting IOWA CODE § 709.12)
728
    Id.
729
    Id.
730
    State v. Abrahamson, 746 N.W.2d 270, 271 (Iowa 2008).
731
    Id. at 271.
732
    Id. at 272.
733
    Id.
734
    Id.
735
    Id.
736
    Id.
737
    Id.
738
    Id.
739
    Id.
740
    Id.
741
    Id. at 273.



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manufacturing charge, the court took a two-step analysis approach.742 First, the court looked at
whether the initial charge that was dismissed “for speedy trial reasons, not in the furtherance of
justice.”743 In Iowa, a case may be dismissed upon “the application of the prosecuting attorney,
in the furtherance of justice, may order the dismissal of any pending criminal prosecution, the
reasons therefore being stated in the order and entered of record, and no such prosecution shall
be discontinued or abandoned in any other manner.”744 However, the State is required to provide
“appropriate and sufficient reasons for dismissal” in order to obtain a valid dismissal in the
interest of justice.745 In this case, the State did not provide specific reasons or validations for its
assertion that the case be dismissed in the interest of justice.746 Because of this, it was not a valid
dismissal in the interest of justice, but rather for failure to provide a speedy trial, which is an
absolute dismissal with prejudice.747

        Second, because the first question was answered in the affirmative, the court looked at
whether the manufacturing charge was the “same offense” as the conspiracy charge dismissed on
speedy trial grounds.748 The court held that because Abrahamson was charged with
manufacturing and conspiracy to manufacture methamphetamine under the same code section,
Iowa Code section 124.401(1), the two charges were alternative means of committing the same
offense or violating the code section, rather than separate charges.749 The State urged the court
to adopt the “same elements” test to resolve the “same offense” issue in speedy trial cases.750
However, the court recognized the State’s proposed interpretation would break section
124.401(1) into thirty-six separate crimes because all require proof of different elements, thus
persons could be charged, convicted, and sentenced for multiple violations of the same code
provision.751 Additionally, the court’s interpretation has been used for more than twenty-five
years, giving the legislature ample opportunity to amend the statute to enumerate multiple
offenses, but it has not done so.752 Consequently, the court did not adopt the State’s proposed
interpretation, and held that manufacturing and conspiracy to manufacture methamphetamine are
alternative means of violating section 124.401(1), and affirmed the court of appeals dismissal of
Abrahamson’s manufacturing charge.753

State v. Fremont, 749 N.W.2d 234 (Iowa 2008). Companion case to State v. Nelson.
       Fremont was convicted of possession of marijuana with intent to deliver, failure to affix a
drug tax stamp, and child endangerment.754 At trial, Fremont moved to suppress the seized
evidence on the ground that the magistrate who signed the warrant was not “neutral and
detached” as required by Article I, Section 8 of the Iowa Constitution and the Fourth


742
    Id. (citing State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984)).
743
    Id. (citing Fisher, 351 N.W.2d at 801).
744
    Id. (quoting IA R. of CRIM. PRO. 2.33).
745
    Id.
746
    Id.
747
    Id.
748
    Id. 273–74 (citing Fisher, 351 N.W.2d at 801).
749
    Id. at 274, 276.
750
    Id. at 274 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).
751
    Id. at 277.
752
    Id.
753
    Id.
754
    State v. Fremont, 749 N.W.2d 234, 236 (Iowa 2008).



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Amendment of the United States Constitution.755 The district court held that because probable
cause was so clearly established, it did not violate the Fourth Amendment to have a magistrate
sign the warrant that was not “neutral and detached.”756 Fremont reasserted his claim on appeal
that the evidence should be suppressed because the magistrate was not “neutral and detached.”757

        Fremont was first suspected of possessing marijuana when police received a call from
two informants.758 The informants had a daughter, Destiny, and Destiny’s baby who also lived
in the home with Fremont. 759 The informants called police on two separate occasions when they
noticed the smell of marijuana on the baby’s clothing and that their daughter had bloodshot eyes
and acted “goofy” when she visited them. 760 The informants were advised to contact DHS and
report any further conduct to the police. 761 The following month, the informants found a leafy
substance in the baby’s blanket when they picked her up. 762 The informants turned the
substance over to police and tests later confirmed that it was marijuana. 763

        Approximately four months later, police received a call from another informant stating
that marijuana was being used in the home and possibly methamphetamines as well. 764 Two
weeks after the second informant’s tip, police removed a bag of garbage from the sidewalk in
front of the Fremont home. 765 In the garbage, they found numerous stems, seeds, and a pack of
used Zig-Zag rolling papers. 766

       Police presented an application for a search warrant to Douglas Krull, a part-time
magistrate, including an affidavit by the officer who had received the call and retrieved the
garbage, and photos of the items recovered from the garbage. 767 Destiny was listed on the
search warrant as residing in the home. 768 Krull immediately recognized Destiny’s name
because he had represented a party adverse to Destiny in a temporary child support action two
months earlier. 769 The matter was still pending at the time the warrant was issued. 770 Krull
made the decision to sign the warrant because the physical evidence was overwhelming and did
not require him to assess the credibility of witnesses. 771 When the police searched the home,
they found two trays of marijuana in a kitchen cabinet, and marijuana, methamphetamines, and
paraphernalia in an upstairs bedroom. 772

755
    Id.
756
    Id.
757
    Id.
758
    Id. at 235.
759
    Id.
760
    Id.
761
    Id.
762
    Id.
763
    Id.
764
    Id.
765
    Id.
766
    Id.
767
    Id.
768
    Id.
769
    Id.
770
    Id.
771
    Id. at 235-36.
772
    Id. at 236.



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        The Court noted that the provision of the Iowa Constitution dealing with search and
seizure is nearly identical in language to the Fourth Amendment. 773 The Court also points out
that nothing in the text of the Fourth Amendment provides guidance on who may issue a valid
warrant. 774 The Court noted that while judicial ethical guidelines may be instructive, they were
not determinative on the question of whether Krull was “neutral and detached” for purposes of
the Fourth Amendment. 775 The Court said this case was different than a case where the
conflicting representation was completed and thus unable to affect the outcome of the other
proceeding. 776 The issuance of the warrant could have lead to charges against Destiny, and thus
there was a clear nexus between the issuance of the search warrant and the current adverse
representation. 777 A drug charge would weigh heavily on the best interests of the child analysis
in a child custody dispute. 778 Krull’s simultaneous and conflicting dual roles made him unable
to meet the requirements of a neutral and detached magistrate under the Fourth Amendment. 779
Krull had a non-pecuniary personal interest in the matter that cast doubt on his ability to hold the
balance between the state and the accused and could offer a possible temptation to the
magistrate. 780

        The Court agreed with the State that the defendant had shown no actual prejudice. 781 If a
Fourth Amendment violation of this nature occurs, the evidence seized as a result of the
execution of the warrant is subject to suppression. 782 The State argued that the harmless error
rule should apply because there was ample probable cause for the warrant, regardless of whether
the magistrate was neutral and detached. 783 The Court found that the lack of a neutral and
detached magistrate is a structural defect and that the application of the harmless error doctrine
was improper. 784

State v. Nelson, 752 N.W.2d 23 (Iowa 2008). Companion case to State v. Fremont.
          This was a companion case to State v. Fremont, 749 N.W.2d 234 (Iowa 2008). Nelson
challenged her conviction for child endangerment on the ground that the magistrate approving
the search warrant was not “neutral and detached” as required by the Fourth Amendment.785 For
the same reasons stated above, the Court found that the evidence should have been suppressed at
trial. 786


773
    Id. (citing State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982)).
774
    See id. at 236-37.
775
    Id. at 242.
776
    Id. at 243 (citing Guthrie 184 Fed. Appx. at 804; Outler 659 F.2d at 1312; Mandravelis, 325 A.2d at 794).
777
    Id.
778
    Id.
779
    Id.
780
    Id. at 239, 243 (citing Tumey v. Ohio, 273 U.S. 510 (1927)).
781
    Id.
782
    Id. (citing Wong Sun v. United States, 371 U.S. 471, 484-85 (1963; State v. Leto, 305 N.W.2d 482, 484 (Iowa
1981)).
783
    Id.
784
    Id. at 244 (citing Chapman v. California, 386 U.S. 18, 23 (1967) for the proposition that the harmless error rule
does not apply to the charge of a partial judge)).
785
    State v. Nelson, 752 N.W.2d 23, 23 (Iowa 2008).
786
    Id.



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State v. Allensworth, 748 N.W.2d 789 (Iowa 2008).
        Allensworth was charged with possession with intent to deliver of more than five grams
of methamphetamine that was located in the steering column of Allensworth’s impounded
vehicle.787 The State claimed that the automobile exception to the warrant requirement applied
and no search warrant was needed. 788 Allensworth moved to suppress the evidence at trial, and
the district court granted the motion. 789 The State applied for discretionary review of the district
court’s suppression order and the Iowa Supreme Court granted discretionary review. 790

         Allensworth was stopped for speeding on Euclid Avenue in Des Moines. 791 When police
approached the vehicle, Allensworth gave his name and stated that there was a warrant for his
arrest. 792 Allensworth had a large snake draped around his neck. 793 The deputy confirmed
Allensworth had an outstanding warrant and called Allensworth’s friend to come to the scene
and retrieve the snake. 794 Due to the presence of the snake and the large amount of traffic at the
location, the deputy deferred an inventory search until the vehicle was impounded. 795 The Polk
County Sheriff’s department had an official policy that it was to impound a vehicle and
inventory its contents when it was searched, but that such an inventory was not to be used as a
pretext to search for evidence. 796 Before performing an inventory search of the vehicle but after
transporting Allensworth to jail, the deputy received an anonymous call that there were drugs in
the vehicle. 797 The deputy started the inventory search and found a small bag of marijuana in the
center console. 798 Knowing that the steering column is a “known place where people hide drugs,
an officer removed the horn button on the steering column and found a bag with twenty-five
grams of methamphetamine. 799

        The district court suppressed the evidence on the ground that it exceeded the proper scope
of an inventory search. 800 The State filed a motion to reconsider, advancing the automobile
exception to the warrant requirement as an alternative for upholding the search. 801 The district
court stated that probable cause for the steering column search arose only after the vehicle was
impounded and not at the scene, so the automobile exception did not apply. 802 Allensworth
contended that once the officers conducting the inventory search found the marijuana, the
officers should have stopped the search and gotten a search warrant. 803

787
    State v. Allensworth, 748 N.W.2d 789, 791 (Iowa 2008).
788
    Id.
789
    Id.
790
    Id.
791
    Id. at 790.
792
    Id.
793
    Id.
794
    Id.
795
    Id.
796
    Id.
797
    Id. at 791.
798
    Id.
799
    Id.
800
    Id.
801
    Id.
802
    Id. at 791-92.
803
    Id. at 796.



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        The Court stated that the only exigency needed to justify the automobile exception to the
warrant requirement is the vehicle’s ready mobility. 804 Probable cause for an automobile-
exception search does not have to occur at the scene in order for the search to be valid. 805 There
was sufficient exigency to justify a warrantless search of a readily mobile vehicle even after the
officers had impounded the vehicle and moved it to another location. 806 The Court emphasized
that the reasonableness of the search does not depend on the fortuity of whether the inventory
search was commenced and contraband found before or after the car was removed from the
scene. 807

State v. Brandon, 755 N.W.2d 548 (Iowa App. 2008).
        Brandon was charged with possession of methamphetamine and child endangerment after
the police searched his home and found drugs and drug paraphernalia.808 At an evidentiary
hearing, Brandon moved to suppress the evidence as fruits of an illegal warrantless search of his
home.809 The State argued that the evidence should not be suppressed because it had Brandon’s
wife’s consent to search the home. 810 The trial court found that the evidence was obtained in
violation of the Fourth Amendment and suppressed the evidence. 811 The Supreme Court granted
discretionary review and transferred the case to the Court of Appeals. 812

        Brandon and his wife were involved in a domestic altercation which led her to leave their
residence. 813 Four days later, she faxed police written permission to search the family home. 814
Deputies went to the Brandon home with an arrest warrant associated with the domestic
altercation. 815 When the deputies arrive at the home, Brandon was sitting in his living room. 816
Brandon asked if the deputies had a search warrant. 817 One of the deputies replied that the
officers had an arrest warrant, and another officer said because of the arrest warrant, they did not
need a search warrant. 818 Deputies arrested Brandon and removed him from the residence. 819
Deputies searched the home and found drug paraphernalia, small plastic bags, and some white
residue. 820 After finding these items, deputies ceased searching and left to get a search warrant.
821
    When they executed the search warrant, they performed a more extensive search. 822


804
    Id. at 797.
805
    Id.
806
    Id.
807
    Id. at 797.
808
    State v. Brandon, 755 N.W.2d 548, 550 (Iowa App. 2008).
809
    Id.
810
    Id.
811
    Id.
812
    Id.
813
    Id. at 549.
814
    Id.
815
    Id.
816
    Id.
817
    Id.
818
    Id.
819
    Id.
820
    Id. at 550.
821
    Id.
822
    Id.



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        The Court found that the consent of Brandon’s wife was insufficient to perform a
warrantless search, in light of the fact that Brandon was there and questioned officer’s
authority.823 The State had claimed that Georgia v. Randolph, and the rule that a warrantless
search cannot be performed with consent on a home over the objection of another resident
present at the scene, did not apply because Brandon had not explicitly objected to the search. 824
The Court pointed to the fact that officers had claimed authority to search under the arrest
warrant. 825 When an officer claims authority to search under a warrant, the officer is
announcing basically that the person has no right to resist the search.826 The State argued that
merely asking if the officer’s had a search warrant did not constitute an objection or expression
of non-consent for the purposes of Georgia v. Randolph. 827 The Court disagreed. 828 Brandon
had challenged the officer’s authority to search with his question, and by the officers saying they
had authority to search under the arrest warrant, the officers implied that Brandon had no further
right to resist the search. 829

                        SECTION 3.3: INEFFECTIVE ASSISTANCE OF COUNSEL

State v. Enderle, 745 N.W.2d 438 (Iowa 2007).
        Enderle was convicted of first degree murder and on appeal raised the issue of ineffective
assistance of counsel.830 Enderle claimed errors both from the denial of a motion to suppress
evidence obtained from a material-witness warrant, and the denial of a motion for acquittal based
on insufficient evidence.831

       Enderle was first connected to the murder of Gregory Harris when the police searched the
victim’s cell phone log, found Enderle’s number, and called Enderle’s phone.832 The police
believed Enderle would be uncooperative since he had his number changed after the police’s
phone call.833 The police then arrested Enderle using a material-witness warrant.834

        Enderle claimed that his counsel should have challenged the material-witness warrant.835
To obtain a valid material-witness warrant the police must show “probable cause to believe (1) a
person is a necessary and material witness to a felony, and (2) such person might be unavailable
for service of a subpoena.”836 The material-witness warrant application included facts linking
Enderle to the victim.837 The application also stated that Enderle had repeatedly rebuffed the


823
    Id. (citing Georgia v. Randolph, 547 U.S. 103 (2006)).
824
    Id.
825
    Id. at 551.
826
    Id.
827
    Id.
828
    Id.
829
    Id. at 552.
830
    State v. Enderle, 745 N.W.2d 438, 439–40 (Iowa 2007).
831
    Id. at 439.
832
    Id.
833
    Id. at 439–40.
834
    Id. at 440.
835
    Id. at 441.
836
    Id. at 440 (referencing IOWA CODE § 804.11).
837
    Id.



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police’s attempts to contact him.838 The court found the material-witness warrant was supported
by probable cause as shown by the warrant application.839 The court further stated that even if
the material-witness warrant was not supported by probable cause, Enderle failed to display
prejudice since Enderle did not confess during the interrogation and the statements he made did
not lead to evidence of guilt.840 The most damaging evidence that resulted from the material-
witness warrant interrogation was the fingerprint samples obtained, but the samples could have
been obtained through other means.841 Therefore, the court found no prejudice would result from
the material-witness interrogation.842

         Enderle also argued the material-witness interrogation was improper.843 He first claimed
he was intimidated and promised leniency, but the court found the district court made a detailed
record of the videotape that negated that assertion, and the leniency that was offered was not
improper.844 Enderle also contended that he was injured by the admission of his confession of
drug use.845 The court found the district court had properly weighed the probative value against
the prejudice and did not abuse its discretion.846 Enderle also believed his statutory right was
violated when he asked to see his girlfriend, but was denied.847 The court decided that the
girlfriend is not a family member, and thus Enderle has no statutory right to see her.848 Plus a
violation of this statute would not result in the exclusion of evidence, especially since the
interrogation was merely cumulative of other known evidence.849 Finally Enderle contended the
police statements in the portion of the videotape shown to the jury were a prejudicial attack on
his credibility.850 The court found this was not an impermissible attack on Enderle’s credibility
since Enderle could not show prejudice as required by his ineffective assistance of counsel claim,
and the case law showing that police comments during interrogations provided context for the
jury.851

        Besides the challenge to the material-witness warrant and interrogation, Enderle also
argued the court should have granted his motion to acquit based on insufficient evidence.852 The
court reviews these claims for correction of errors of law, and when reviewing the evidence, the
court views it in the light most favorable to the State.853 After reviewing the evidence which
included Enderle’s fingerprints at the scene of the crime, Enderle’s many phone calls to the
victim before the murder as well as his absence of phone calls after the murder, Enderle’s failure


838
    Id. at 440–41.
839
    Id. at 441.
840
    Id.
841
    Id.
842
    Id.
843
    Id.
844
    Id. at 441–42.
845
    Id. at 441.
846
    Id. at 442.
847
    Id. at 441–42.
848
    Id. at 442.
849
    Id.
850
    Id. at 441–42.
851
    Id. at 442–43.
852
    Id. at 439.
853
    Id. at 443 (quoting State v. Leckington, 713 N.W.2d 208, 212–13 (Iowa 2006) (citations omitted)).



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to cooperate with the police, and other evidence, the court decided the district court was correct
in denying the motion for acquittal.854

State v. Lane, 743 N.W.2d 178 (Iowa 2007).
        Lane was violating a protective order by being at his mother’s home.855 The police were
told of this violation, and the sheriff proceeded to the house where he found Lane, and then
arrested him.856 During the arrest Lane stated, “‘That Atlanta shooting is not going to be the
only thing that’s going to happen. I am going to come down, get a court schedule, and I’m going
to take care of all you mother fuckers.’”857 Lane then continued by saying, “‘You guys are all
going to be sorry when I get a court schedule.’”858 Lane continued to make comments while
being driven to the sheriff’s office.859 In the booking room, Lane was obedient, but continued
his statements.860 The police charged Lane “with intimidation with a dangerous weapon with
intent to injure or provoke fear or anger in another” which is a class C felony.861 He was also
charged with the class D felony of threat of terrorism.862 A jury convicted Lane of the charge of
terrorism and a lesser offense of intimidation.863 Lane appealed both counts claiming insufficient
evidence and ineffective assistance of counsel due to his counsel’s failure to request a specific
jury instruction.864

        The court used correction of errors at law for the standard of review of the challenges of
insufficient evidence.865 The court used the totality of the circumstances test for the standard of
review regarding ineffective assistance of counsel claims.866

        First, addressing the terrorism charge, the court looked at whether Lane would act
imminently on his threats as required by the Iowa statute.867 The statute did not address the
definition of the word, imminent, so the court reviewed case law discussing the definition of this
word.868 Relying on Shanahan, the court stated imminent means “‘ready to take place,’ ‘near at
hand,’ ‘hanging threateningly over one’s head,’ and ‘menacingly near.’”869 Based on that
definition the court found “there was no reasonable likelihood Lane would imminently act on his
threats.”870 The court admitted Lane could find assistance or break out of custody and commit
the acts, but those scenarios were not likely.871 Since Lane was not to be released until the next
854
    Id. at 443.
855
    State v. Lane, 743 N.W.2d 178, 180 (Iowa 2007).
856
    Id.
857
    Id. at 180–81. Lane was referencing the shooting in an Atlanta courthouse which had occurred eight days earlier.
Id. at 181.
858
    Id.
859
    Id.
860
    Id.
861
    Id.
862
    Id.
863
    Id.
864
    Id.
865
    Id. (citing State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997)).
866
    Id. (citing State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987)).
867
    Id. at 181–82 (quoting IOWA CODE § 708A.5 (2005)).
868
    Id. at 182.
869
    Id. (quoting State v. Shanahan, 712 N.W.2d 121, 142 (Iowa 2006) (internal citations omitted)).
870
    Id.
871
    Id.



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day, the court found there was no reasonable likelihood that Lane could carry out his threats
imminently.872 The court agreed with Lane that he should have been granted his motion for
judgment of acquittal regarding the terrorism charge.873

        Lane also argued insufficient evidence for a conviction of the intimidation charge, but the
court decided he failed to preserve that error for appeal.874 Lane’s next argument was that failure
of his counsel to preserve that issue equaled ineffective assistance of counsel.875 To display
ineffective assistance of counsel Lane had to prove that his “counsel failed to perform an
essential duty, and prejudice resulted.”876 Ultimately, the court determined making a motion for
an acquittal of the charge of intimidation was not an essential duty since the motion would not
have been granted.877 The court stated that due to Lane’s statements regarding shooting people
and the tone of Lane’s voice established sufficient evidence to submit the intimidation charge to
the jury.878

        Finally, Lane contended his counsel failed to request an objective standard instruction
regarding the reasonable expectation language in both counts, and thus provided ineffective
assistance of counsel.879 The court disagreed.880 The court did not find prejudice because there
was “no reasonable probability the results would have been different” had Lane’s counsel
requested an objective standard.881 Either way Lane’s statements would lead a juror to believe
Lane would act on his threats.882

       The court agreed with Lane that there was insufficient evidence for the terrorism count;
the court found sufficient evidence regarding the intimidation count, and found no prejudice
regarding the counsel’s failure to request a different jury instruction.883

State v. Bearse, 748 N.W.2d 211 (Iowa 2008).
        Greagory Bearse plead guilty to third degree sexual abuse, in violation of Iowa Code
section 709.4(2)(c)(4) (2005).884 The plea agreement between Bearse and the State prosecutor,
which was reduced to writing, required Bearse to plead guilty in exchange for the State’s
recommendation against incarceration.885 The prosecutor, however, did not recommend against
incarceration at the sentencing hearing.886 Originally, the prosecutor recommended incarceration


872
    Id.
873
    Id.
874
    Id. at 182–83.
875
    Id. at 183.
876
    Id. (citing Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)). The court chose to decide this issue even though
ineffective assistance of counsel claims are normally resolved on post conviction relief hearings. Id.
877
    Id.
878
    Id. at 184.
879
    Id.
880
    Id. at 185.
881
    Id. at 184–85.
882
    Id. at 184.
883
    Id. at 185.
884
    State v. Bearse, 748 N.W.2d 211, 213 (Iowa 2008).
885
    Id.
886
    Id.



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in concurrence with the presentence investigation report.887 However, when the court informed
the prosecutor of the inconsistency with the plea agreement the prosecutor responded: “Your,
Honor, the court is not bound by the plea agreement. The State is, so we’ll . . . abide by the plea
agreement. The court has the presentence investigation report.”888 No objection was made by
the defense counsel.889

        The two issues before the Iowa Supreme Court are: (1) “whether trial counsel was
ineffective in failing to object to an alleged breach of a plea agreement by the prosecutor” and
(2) whether the trial “counsel was ineffective for failing to file a motion in arrest of judgment to
challenge the alleged involuntariness of the plea.”890 Both ineffective assistance of counsel
claims were reviewed de novo by the court.891 However, the court stated that it does not hear
ineffective assistance of counsel claims on direct appeal unless the record is adequate.892 The
court determined that the record was sufficient to determine the first issue presented because the
record “clearly reflected the written plea agreement and the circumstances [that] gav[e] rise to
Bearse’s claim . . . as well as defense counsel’s response.”893 However, the court determined the
record was insufficient to make a determination on the second issue because that claim required
Bearse to prove “‘there [was] a reasonable probability that, but for counsel’s errors, he or show
would not have pleaded guilty and would have insisted on going to trial.’”894 The court
concluded that the record was “devoid of evidence [that] indicat[ed] Bearse would not have
plead guilty, but would instead have gone to trial.”895 Therefore, the court preserved that claim
for post-conviction proceedings.896

        To determine “whether trial counsel was ineffective in failing to object to an alleged
breach of a plea agreement by the prosecutor,” the court used a two-part analysis: (1) whether
“counsel failed to perform an essential duty,” and, if so, (2) whether prejudice resulted.897 The
court first determined the prosecutor did, in fact, clearly breach the plea agreement.898 The
prosecutor had a duty to “carry out all obligations and promises of the state in good faith,” which
required the prosecutor to both “understand the state’s obligations under a plea bargain and to
strictly comply with those obligations.”899 Additionally, the court stated compliance with a
“promise to make a sentencing recommendation” required more than “‘simply inform[ing] the
court of the promise the State has made to the defendant with respect to the sentencing.’”900 It
required the State to fulfill that promise, to “recommend” that Bearse not be incarcerated “‘with
his or her approval, to commend the sentence[] to the court, and to otherwise indicate to the court
that the recommended sentence[] [was] supported by the State and worthy of the court’s

887
    Id.
888
    Id.
889
    Id.
890
    Id.
891
    Id. at 214.
892
    Id.
893
    Id.
894
    Id. at 219 (quoting State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006)).
895
    Id.
896
    Id.
897
    Id. at 213, 214–15.
898
    Id. at 216.
899
    Id. at 215.
900
    Id. at 216 (quoting State v. Horness, 600 N.W.2d 294, 299 (Iowa 1999)).



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acceptance.’”901 The court also noted that “‘[t]he State’s promise to make a sentencing
recommendation . . . [carried] with it the implicit obligation to refrain from suggesting more
severe sentencing alternatives.’” 902

        Upon finding that the State breached the plea agreement, the court next looked to
determine whether counsel’s failure to object constituted “a failure to perform an essential
duty.”903 The court held the defense counsel’s failure to object was a failure to perform an
essential duty because:

        only by objecting could counsel ensure that the defendant received the benefit of
        the agreement. Moreover, no possible advantage could flow to the defendant
        from counsel’s failure to point out the State’s noncompliance. Defense counsel’s
        failure in this regard simply cannot be attributed to improvident trial strategy or
        misguided tactics.904

        Finally, the court looked at whether Bearse demonstrated that prejudice resulted from
counsel’s failure to perform an essential duty.905 To show prejudice resulted in an ineffective
assistance of counsel case, the defendant must “‘simply show that the outcome of the
[sentencing] proceeding would have been different.’”906 The court concluded that prejudice had
resulted because there was “‘no way of knowing what sentence [the] judge would have imposed
had the State [performed its obligation under the plea agreement],’” and the court refused to
speculate as to such.907 Additionally, had defense counsel objected to the State’s breach of the
plea agreement, “the hearing would have been rescheduled, or the plea of guilty would have been
withdrawn.”908 Consequently, the court held that Bearse proved that his counsel was
ineffective.909 To remedy the situation the court found the interest of justice would be served if
the case was remanded for resentencing because Bearse would still be able to “receive the
benefit of his bargain under the plea agreement if the State carries out its obligation at
resentencing.”910

                                SECTION 3.4: DEFERRED JUDGMENT

State v. Nail, 743 N.W.2d 535 (Iowa 2007).
       Nail and Kucera were arrested for operating a vehicle while intoxicated.911 The
defendants both entered written guilty pleas and requested deferred judgments which the State
agreed to as part of the plea bargain.912 Before the hearing of the entry of judgment and

901
    Id. (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1897 (unabr. ed. 1993)).
902
    Id.
903
    Id. at 217.
904
    Id. (quoting Horness, 600 N.W.2d at 300).
905
    Id.
906
    Id. (quoting Horness, 600 N.W.2d at 300–01).
907
    Id.
908
    Id. at 218.
909
    Id.
910
    Id.
911
    State v. Nail, 743 N.W.2d 535, 537 (Iowa 2007).
912
    Id.



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sentencing, the defendants argued the potential imposition of a civil penalty as part of a deferred
judgment was unconstitutional.913 They claimed the statute was unconstitutional because it was
void for vagueness and violated their due process rights since it “imposed a civil penalty prior to
an adjudication of guilt.”914 The judge at the hearing granted the defendants deferred judgment
and then heard arguments about the civil penalty.915 The district court agreed with the
defendants and found the civil penalty in the case of a deferred judgment violated the Due
Process Clause.916

        The court reviewed this constitutional claim de novo.917 First, the court addressed the
void for vagueness argument.918 The court reviewed the reasons for the void for vagueness
argument citing the following as justifications: the necessity to give persons fair notice, the
necessity to give authority figures guidance so power is not arbitrarily exercised, and the
necessity to limit the statute so it does not “prohibit substantial amounts of constitutionally
protected activities.”919 The court also reviewed the scope of the void for vagueness doctrine
declaring it applied to civil or criminal sanctions. The court also stated they would use the
avoidance theory that would save a statute from unconstitutionality as long as there is any
reasonable construction that would uphold it.920 Therefore, the court could narrow the law to
cure its unconstitutional defect.921 The statute could also be cured if its meaning is fairly
ascertainable by reference to other similar statutes.922 To further find the statutory meaning a
court would then read the statute in pari materia and assume “that the legislature strives to create
a symmetrical and harmonious system of laws.923

        When the court applied these principles to the law at hand the court found the law set a
floor for civil penalties in deferred judgments, “but did not expressly create a ceiling.”924
However, in State v. Link, the court determined that when there is a ceiling, but no floor, “the
statute should not be read in isolation, but should be read in context with other related sentencing
provisions of the criminal code.925 The Link problem is the opposite one from the case at hand
where the floor is established, but no ceiling.926 The court in this case determined that if they did
not impose a ceiling it would violate the rule that statutes must be interpreted to avoid absurd
results, but many will argue that setting a ceiling is contrary to legislative intent since the
legislature expressly cited other criminal sections to set the floor for civil penalties.927 The court
concluded the legislature did not intend to enact a statute that would absurdly give unlimited
civil penalties, and thus read the statute to say the ceiling is established by Iowa Code sections

913
    Id.
914
    Id.
915
    Id. at 538.
916
    Id. (citing IOWA CODE § 907.14(1)).
917
    Id. (citing State v. Shanahan, 712 N.W.2d 121, 131 (Iowa 2006)).
918
    Id.
919
    Id. at 539.
920
    Id. at 539–40.
921
    Id. at 540.
922
    Id.
923
    Id. at 541 (citations omitted).
924
    Id. (referring to IOWA CODE § 907.14(1)).
925
    Id. at 542 (citing State v. Link, 341 N.W.2d 738 (Iowa 1983)).
926
    Id.
927
    Id. at 542–43.



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902.9 and 903.1.928 The court then found the statute as applied to Nail and Kucera did not
violate their due process rights because a civil penalty imposed would be subject to Iowa Code
sections 902.9 and 903.1.929

        Next the court addressed Nail and Kucera’s due process claim concerning punishment
prior to the adjudication of guilt.930 The court determined this claim fails because although there
is no final judgment of guilt, both Nail and Kucera admitted guilt which negated their due
process claims.931 The court also acknowledged that Nail and Kucera wanted the deferred
judgments so they could “avoid a final criminal adjudication” which counteracted their objection
to the lack of a final adjudication.932 The court concluded the imposition of a civil penalty did
not violate Nail and Kucera’s due process rights.933

State v. Kamber, 737 N.W.2d 297 (Iowa 2007).
        JoAnn Kamber pled guilty to second degree theft in violation of Iowa Code sections
714.1 and 714.2(2).934 Kamber requested a deferred judgment, but the court found Kamber was
ineligible for deferred judgment under Iowa Code section 907.2(1)(c)—a defendant is ineligible
for deferred judgment when “[p]rior to the commission of the offense the defendant has been
granted a deferred judgment or similar relief, two or more times . . . .”935 The court concluded
Kamber’s two prior deferred sentences were “similar relief” to deferred judgments and,
therefore, she was ineligible for a deferred judgment.936 Kamber appealed contending the district
court erred when it concluded she was ineligible for a deferred judgment.937

        The Iowa Supreme Court reviewed Kamber’s appeal for “correction of errors of law.”938
The court concluded the legislature intended a deferred judgment to be different than a deferred
sentence because chapter 907 of the Iowa Code defines both terms separately.939 Additionally,
the court concluded “[w]hen the statute [was] considered as an integrated whole, it [was]
apparent that when the legislature intended to include both deferred judgments and deferred
sentences, it expressly referred to both sentencing options.”940 Therefore, because the section
907.3(1)(c) does not expressly state both options it means only “deferred judgments;” and the
phrase “similar relief” actually means other sentences, “anywhere in the United States,” in which
‘“both the adjudication of guilt and the imposition of sentence’ was deferred.”941

                                       SECTION 3.5: DUE PROCESS


928
    Id. at 543.
929
    Id. at 543–44.
930
    Id. at 545.
931
    Id.
932
    Id.
933
    Id.
934
    State v. Kamber, 737 N.W.2d 297, 298 (Iowa 2007) (referencing IOWA CODE §§ 714.1, 714.2(2) (2005)).
935
    Id. (quoting IOWA CODE § 907.3(1)(c)).
936
    Id.
937
    Id.
938
    Id.
939
    Id. at 299.
940
    Id. at 300.
941
    Id.



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Swanson v. Civil Commitment Unit for Sex Offenders, 737 N.W.2d 300 (Iowa 2007).
        Robert Swanson was civilly committed under Iowa’s Sexually Violent Predator Act at the
Civil Commitment Unit for Sexual Offenders (CCUSO).942 CCUSO adheres to a level system,
which rewards patients with increased privileges when they are “free from behavioral
problems.”943 When a patient violates a CCUSO rule, privileges can be suspended or taken
away.944 If a patient continues to violate CCUSO rules additional sanctions will be put in place,
“including placement in seclusion.”945 CCUSO’s handbook states that a patient has the right to
appeal a behavioral report by submitting a written appeal to the CCUSO Director.946 The report
will then be investigated, and the Director will decide the appeal within ten working days.947
Additionally, the handbook gives patients access to grievance procedures if the patient is
dissatisfied with the appeals process.948 If resolution of grievance is not satisfactory, the patient
can submit a written grievance to the Director who will make a decision within three weeks.949
The handbook provides no further appeal, but states “the patient may take the complaint to the
courts . . . .”950

        Swanson appealed four behavioral reports, asserting “his due process rights were violated
and requested that the department provide him with a contested case hearing.”951 An
administrative law judge dismissed all of Swanson’s complaints because the ‘“[h]andbook [did]
not expressly provide a CCUSO patient, after exhausting internal review procedures, with the
right to appeals a behavioral report and disciplinary consequences pursuant to Iowa Code
Chapter 17A or 441 IAC Chapter 7.”952 The district court affirmed.953

        Swanson appealed to the Iowa Supreme Court, asserting the district court erred in
determining he was not an “aggrieved person” under Iowa Administrative Code rule 441-
7.1(9).954 The Iowa Supreme Court reviewed this assertion for correction of errors at law.955
The court concluded Swanson’s failure to progress through the levels due to his major behavioral
problems did not constitute an adverse action because it was an essential component of
CCUSO’s treatment based on the cognitive-behavioral model.956 And thus, Swanson did not
constitute an “aggrieved person for purposes of contested case review under Iowa Administrative
Code rule 441-7.1(9).”957



942
    Swanson v. Civil Commitment Unit for Sex Offenders, 737 N.W.2d 300, 302 (2007).
943
    Id. at 304.
944
    Id.
945
    Id.
946
    Id.
947
    Id.
948
    Id. at 305
949
    Id.
950
    Id.
951
    Id.
952
    Id.
953
    Id.
954
    Id. at 305–06.
955
    Id. at 306.
956
    Id. at 307.
957
    Id.



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        Additionally, Swanson contended the denial of his request for a contested case hearing
violated his due process rights.958 The court reviewed this contention de novo.959 Swanson
argued CCUSO’s practice of lengthening patient’s involuntary commitment when the patient
receives a major behavioral report violates his, and other patients, due process rights because it
denies them access to the courts—it denies him proper procedure.960 In determining that
Swanson’s procedural due process rights were not violated the court adopted the U.S. Supreme
Court’s test from Matthews v. Eldridge:

        [I]n order to determine what the “specific dictates of due process generally
        require[],” the court must consider three factors: (1) “the private interest that will
        be affected by the official action;” (2) “the risk of an erroneous deprivation of
        such interest through the procedures used, and the probable value, if any, of
        additional or substitute procedural safeguards;” (3) “the Government’s interest,
        including the function involved and the fiscal and administrative burdens that the
        additional or substitute procedural requirements would entail.”961

        In examining the first factor in the Eldridge test, the court concluded CCUSO’s
handbook did not create a liberty interest beyond the liberty interest to “conditions of
reasonable care and safety, reasonably nonrestrictive confinement conditions, and such
training as may be required by these interests.”962 The level system merely provides for
certain behaviors Swanson must achieve before graduating from the program; the time it
takes him to complete the program is completely dependent upon his individual progress
though the levels.963

       The court also recognized that, in fulfillment of the second Eldrige factor, the
CCUSO handbook provided for appropriate procedural safeguards.964 It provided
Swanson a right to appeal his behavioral reports to the director, and additional grievance
procedures if he was not satisfied with any matter.965

       Finally, the court found the government’s interest was high, not only because
permitting patients access to judicial hearings for every behavior report would be
financially costly, but also because it would “interrupt Swanson’s treatment while the
proceedings work through the court system.”966 Therefore, the court found “no additional
process [was] necessary to satisfy Swanson’s procedural due process rights . . . .”967

                     SECTION 3.6: WRONGFUL IMPRISONMENT COMPENSATION


958
    Id. at 305–06.
959
    Id. at 306.
960
    Id. at 307, 308.
961
    Id. at 308 (quoting Matthews v. Eldridge, 424 U.S. 319, 335 (1976)).
962
    Id. at 308–09 (quoting Youngberg v. Romeo, 457 U.S. 307, 324 (1982)).
963
    Id. at 309.
964
    Id.
965
    Id.
966
    Id.
967
    Id. at 309–10.



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State v. McCoy, 742 N.W.2d 593 (Iowa 2007).
        McCoy was convicted of first degree murder and willful injury in 2002.968 In 2005, the
Iowa Supreme Court reversed the conviction and sentence because McCoy had received
ineffective assistance of counsel due to trial counsel’s failure to move to suppress incriminating
statements made to the police.969 Believing they could not win without the admission of those
incriminating statements, the county chose not to retry McCoy and instead dismissed the
charges.970 Thus, after a three year imprisonment, McCoy was released.971 McCoy then filed a
wrongfully imprisoned person application in district court.972 In McCoy’s application, he
included the trial transcript, but excluded his incriminating statements.973 Iowa’s attorney
general resisted the application and a hearing was scheduled.974 The district court found the
incriminating statements would not be entered into evidence at the determination hearing
regarding McCoy’s right to seek compensation.975 However, the district court also decided
McCoy’s application did not establish the right to bring a wrongful imprisonment action.976
McCoy then challenged that ruling claiming there was not only evidence to support wrongful
imprisonment, but also evidence demonstrating that he did not commit murder.977

        The court reviewed this district court decision concerning the wrongfully imprisoned
person statute for correction of errors at law.978 The court first reviewed the steps in the
wrongful imprisonment statute.979 The statute falls under the State Tort Claims Act which
allows a person to institute tort actions against the state of Iowa after going through the State
Appeals Board.980 However, those claiming wrongful imprisonment must first obtain a
“predicate review and assessment” by the district court.981 The court will allow a person to begin
a civil action if the person demonstrates that the person is a wrongfully imprisoned person
according to Iowa Code section 663A.1.982 The determination of a wrongfully imprisoned
person includes considering the: “seriousness of the charge, form of conviction, term of
incarceration, disposition of the conviction, and reason for the imprisonment.”983 The court has
to engage in a fact-finding determination of whether the person is wrongfully imprisoned, but is
not confined to a standard of proof.984 After proving the claimant is a wrongfully imprisoned
person, then the claimant must also demonstrate the person did not commit the offense, or the



968
    State v. McCoy, 742 N.W.2d 593, 595 (Iowa 2007).
969
    Id.
970
    Id.
971
    Id.
972
    Id.
973
    Id.
974
    Id.
975
    Id. at 596.
976
    Id.
977
    Id.
978
    Id. (citing State v. Dohlman, 725 N.W.2d 428, 430 (Iowa 2006)).
979
    Id.
980
    Id. (citing IOWA CODE ch. 663A (2005)).
981
    Id.
982
    Id. at 596–97 (citing IOWA CODE § 663A.1(1), (3)).
983
    Id. at 597 (citing IOWA CODE § 663A.1(1)).
984
    Id.



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offense was not committed by anyone.985 The second prong requires “‘clear and convincing
evidence.’”986

        The district court in McCoy found both that McCoy was not a wrongfully imprisoned
person, but also that he had not established that he had not committed the offense.987 So the
Iowa Supreme Court had the opportunity to affirm the district court’s decision on either basis.988
The court chose to affirm the district court’s ruling based on McCoy’s failure to prove the
innocence requirement.989 McCoy had to prove either he had not committed the offense, or that
the offense was not committed by anyone.990 The court recognized the burden was high, but still
maintained the proof of innocence is the “lynchpin” in the wrongful imprisonment statute.991
The court found McCoy’s trial transcript, which lacked proof of criminal guilt, did not establish
innocence.992 The court found the district court had evidence to support their finding especially
the concerns about McCoy’s role in the murder provided by the redacted trial transcript.993 The
court affirmed the district court’s ruling that McCoy failed to provide the elements necessary to
establish a right to sue the state.994

                                    SECTION 3.7: SEXUAL PREDATOR

State v. Groves, 742 N.W.2d 90 (Iowa 2007).
        In 2002, the legislature passed the two thousand foot law. 995 This statute prohibited
registered sex offenders from residing “‘within two thousand feet of the real property comprising
a public or nonpublic elementary or secondary school, or a child care facility.’”996 The
defendant, Groves, was convicted of lascivious acts with a child in 1997 and was charged with
the violation of the above residency restriction in 2006.997 Groves argued the two thousand foot
rule was unconstitutional, and the district court agreed that it violated his substantive due process
rights.998

      The court reviewed the constitutional claim de novo.999 This case was also based on the
presumption that statutes are constitutional unless proven otherwise beyond a reasonable

985
    Id. (citing IOWA CODE § 663A.1(2)).
986
    Id. (citing IOWA CODE § 663A.1(2)).
987
    Id. at 598.
988
    Id.
989
    Id.
990
    Id.
991
    Id. (citing Cox v. State, 686 N.W.2d 209, 212 (Iowa 2004)).
992
     Id. at 598–99. When evaluating this prong of the wrongful imprisonment statute, the court did not find it
necessary to decide whether the redaction of McCoy’s incriminating statements should or should not be included in
the trial transcript during the wrongful imprisonment hearing. The district court was able to rule against McCoy
even though the incriminating statements were not in evidence, and surely the district court would have ruled the
same way had the incriminating statements been contained in the evidence provided by the trial transcript. Id. at
599.
993
    Id.
994
    Id. at 600.
995
    State v. Groves, 742 N.W.2d 90, 92 (Iowa 2007).
996
    Id. (quoting 2002 Iowa Acts ch. 1157, § 1).
997
    Id.
998
    Id.
999
    Id. (citing State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005)).



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doubt.1000 The court then examined this case using the two-step analysis of identifying “‘the
nature of the individual right involved’” and determining “whether that right is fundamental,”
and applying the appropriate test.1001

        Groves raised the issue of the “right to reside somewhere that meets basic 21st century
living standards.”1002 The court found this right, like those rights raised in similar cases
contesting this law, was not fundamental.1003 Thus, the court determined “there must only be a
reasonable fit between the government interest and the means utilized to advance that
interest.”1004 In this case, Groves failed to present evidence demonstrating that he could not live
in a residence that met the 21st century standard of living.1005 The court decided that Groves
failed in his burden to prove the statute was unconstitutional under this rational basis analysis.1006

State v. Finders, 743 N.W.2d 546 (Iowa 2008).
         Finders was convicted of sexual exploitation of a minor, and was thus subject to the
state’s registration requirements.1007 Prior to the passage of the two thousand foot rule that bars
certain convicted sex offenders from residing in some areas, Finders lived in an area that would
later be restricted by the two thousand foot rule found in Iowa Code section 692A.2A(2), (3).1008
In 2005, after the passage of the two thousand foot rule, Finders changed residences to another
home that was also within the restricted area.1009 He was then charged with violating the sex
offender residency restrictions.1010 Finders filed a motion claiming “the grandfather provision of
the two thousand foot rule allowed him to move within a restricted zone without penalty.1011 The
district court sided against him, and after Finders waived his right to a jury trial, the court also
found Finders guilty of the crime charged.1012 He was sentenced to a suspended term of two
years.1013 Finders appealed claiming the district court should have granted his motion to dismiss
the case based on the grandfather clause of the two thousand foot rule.1014
         The Iowa Supreme Court reviewed Finders’s claim for errors at law.1015 The court, after
acknowledging that Finders was subject to the residency restriction, focused on the grandfather
clause of the restriction.1016 Looking at the language of the statute, the court determined the
statute was not ambiguous despite both parties’ arguments to the contrary.1017 Finders argued the
statute emphasized the person, not the residence whereas the State contended a person should
1000
     Id. (citing Seering, 701 N.W.2d at 661).
1001
     Id. at 92–93 (quoting In re Detention of Cubbage, 671 N.W.2d 442, 446 (Iowa 2003)).
1002
     Id. at 93.
1003
     Id. See Doe v. Miller, 405 F.3d 700, 709–16 (8th Cir. 2005), and Seering, 701 N.W.2d at 662–63 (claiming a
right live where one chooses, and under the conditions one chooses).
1004
     Id.
1005
     Id.
1006
     Id.
1007
     State v. Finders, 743 N.W.2d 546, 547 (Iowa 2008).
1008
     Id. (citing IOWA CODE § 692A.2A (2), (3)).
1009
     Id.
1010
     Id.
1011
     Id. (citing IOWA CODE § 692A.2A(4)(c)).
1012
     Id.
1013
     Id. at 548.
1014
     Id.
1015
     Id. (citing State v. Gonzalez, 718 N.W.2d 304, 307 (Iowa 2006)).
1016
     Id.
1017
     Id. at 548–49.



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lose the exemption when relocating.1018 The court decided the clause “refer[red] to ‘a residence,’
which is a specific place.”1019 Therefore, the exemption dissipated when Finders moved.1020 The
court also clarified that even if they had found the statute ambiguous, an interpretation
exempting the person would be contrary to legislative intent.1021 The court believed the
legislature’s intent “was to avoid the harsh effect of the retroactive application of the two
thousand foot rule.”1022 The court determined the intent was not, as Finders argued, “to cap the
population of sex offenders living within two thousand feet of a school or day care facility.”1023
Based on their analysis of the statute, the court upheld the district court’s dismissal of Finders’s
motion to dismiss.1024

Wright v. Iowa Dept. of Corrections, 747 N.W.2d 213 (Iowa 2008).
         Floyd Wright petitioned the district court for a declaratory judgment that the residency-
restriction statute for sex offenders was invalid as applied to him, and also sought injunctive
relief against its enforcement.1025 Wright argued that “the residency-restriction did not apply to
him because he was not a registered sex offender, [Iowa Code] section 692A.2A violate[d] his
equal protection and substantive due process rights, and the minimum-distance statute
constitute[d] a bill of attainder.”1026 The district court held that the residency-restriction applied
to all sex offenders, including Wright, not merely registered sex offenders, and it rejected all
Wright’s constitutional arguments.1027 Wright appealed.

         The first issue addressed by the Iowa Supreme Court, was whether Iowa’s residency-
restriction was applicable to Wright.1028 The court determined that the statute was not
ambiguous, and stated that a “person who has committed a criminal offense against a minor, or
an aggravated offense, sexually violent offense, or other relevant offense that involved a minor . .
.” is subject to the two-thousand foot rule.1029 Thus, the fact that Wright was not a registered sex
offender was irrelevant because the legislature specifically applied the rule to “a person,” not
merely registered sex offenders.1030 Additionally, the court stated the fact that the provision is
contained under the chapter titled “sex offender registry” is not evidence that the legislature
intended to limit its application solely to those on the registry.1031

         The court next addressed several constitutional issues presented by Wright.1032 Wright
first argued that section 692A.2A violated his Equal Protection rights because it treated “him—a
sex offender on probation—differently from a sex offender who is not currently on

1018
     Id.
1019
     Id. at 549.
1020
     Id.
1021
     Id.
1022
     Id.
1023
     Id.
1024
     Id. at 550.
1025
     Wright v. Iowa Dept. of Corrections, 747 N.W.2d 213, 215 (Iowa 2008).
1026
     Id.
1027
     Id.
1028
     Id.
1029
     Id. (quoting IOWA CODE § 692A.2A).
1030
     Id. at 215–16.
1031
     Id. at 216.
1032
     Id.



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probation.”1033 The court, however, held that the two groups were not similarly situated because
those currently on probation are subject to state monitoring, while the others are not.1034
However, even if the two groups were similarly situated, the residency-restriction applies equally
to all sex offenders.1035 Thus, Wright’s Equal Protection rights were not violated.1036 Second,
Wright argued that section 692A.2A violated his substantive due process rights.1037 The court
held that this issue was resolved in State v. Seering, and because there was no evidence to change
that decision, Wright’s claim “must fail.”1038

        Next, Wright claimed that application of the residency-restriction statute to him
constitutes a bill of attainder.1039 The court recognized that to establish a claim for a bill of
attainder, three elements must be shown: (1) “‘specificity as to the target of the legislation,’” (2)
“‘imposition of punishment,’” and (3) “‘the lack of a judicial trial.’”1040 Wright, however, was
afforded a trial, and it was upon the basis of that conviction that section 692A.2A applied to
him.1041 Thus, the court held, the imposition of the residency-restriction did not constitute a bill
of attainder.1042

        Finally, in connection with his bill of attainder argument, Wright argued that the statute
“effectively banishe[d] him from places of reasonable residency, and therefore constitutes
punishment.”1043 However, the court held that this argument had already been rejected in
Seering, stating:

        [T]rue banishment goes beyond the mere restriction of one’s freedom to go or
        remain where others have the right to be . . . Section 692A.2A, to the contrary,
        only restricts sex offenders from residing in a particular area. Offenders are not
        banished from communities and are free to engage in most community
        activities.1044

Thus, even though Wright argued that the cumulative effect of other communities in the area
having similar restrictions constituted banishment, the court still held in accordance with
Seering, and found because he was “free to engage in most community activities and free to live
in areas not covered by the residency restriction[]” it did not constitute banishment.1045

                           SECTION 3.8: HABITUAL OFFENDER/POSSESSION

State v. Maxwell, 743 N.W.2d 185 (Iowa 2008).
1033
     Id. 216–17.
1034
     Id. at 217.
1035
     Id.
1036
     Id.
1037
     Id.
1038
     Id. (referencing State v. Seering, 701 N.W.2d 665 (Iowa 2005)).
1039
     Id.
1040
     Id. (quoting State v. Phillips, 610 N.W.2d 840, 843 (Iowa 2000)).
1041
     Id. at 218.
1042
     Id.
1043
     Id.
1044
     Id. (quoting State v. Seering, 701 N.W.2d 665, 667–68 (Iowa 2005)).
1045
     Id.



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        A police officer attempted to pull Maxwell over for not wearing his seatbelt.1046 Maxwell
did not pull over immediately.1047 Once Maxwell finally pulled over in the driveway of his own
home, he proceeded to exit the vehicle and walk toward his home.1048 The officer caught up to
Maxwell and asked him to return to his car, and Maxwell acquiesced.1049 When discussing the
reason for the stop, the officer smelled marijuana on Maxwell and saw Newport cigarettes in the
front seat of the car Maxwell had been driving.1050 The officer also saw a plastic baggie sticking
out of the pack of cigarettes, which indicated to the officer, based on his experience, that the
pack of cigarettes could contain other narcotics.1051 After seeing the plastic baggie, the police
officer read Maxwell his Miranda rights and asked for identification.1052 Then, after placing
Maxwell in the squad car, Maxwell consented to a search of his person.1053 The officer found
nothing illegal on Maxwell’s person.1054 The officer then asked to search Maxwell’s vehicle.1055
Maxwell replied that he borrowed the car and did not know what the officer would find, but still
consented to the search.1056 The officer searched the vehicle, finding 2.77 net grams of cocaine
base in the baggie in the pack of cigarettes.1057

        Maxwell was charged with possession with intent to deliver and failure to possess a tax
       1058
stamp.      The State wanted to enhance both charges using the habitual offender statute.1059 A
jury found Maxwell guilty of a lesser offense of possession.1060 Maxwell filed a motion for
acquittal and a motion for a new trial claiming insufficient evidence for the verdict, but the court
denied the motions without stating reasons for denial.1061 After the verdict, the State asked to
enhance the possession charge under Iowa Code chapter 124 and also renewed its request to
sentence Maxwell as a habitual offender.1062 Both requests were based on Maxwell’s prior two
convictions under chapter 124.1063 Maxwell argued his two previous felony convictions could be
used to enhance his current possession charge, but those same felony convictions should not be
used to sentence him as a habitual offender.1064 The court disagreed and used the two prior
felony convictions to enhance his drug possession charge, and to sentence Maxwell as a habitual
offender.1065 Because Maxwell was convicted and sentenced as a habitual offender rather than



1046
     State v. Maxwell, 743 N.W.2d 185, 188–89 (Iowa 2008).
1047
     Id. at 189.
1048
     Id.
1049
     Id.
1050
     Id.
1051
     Id.
1052
     Id.
1053
     Id.
1054
     Id.
1055
     Id.
1056
     Id.
1057
     Id.
1058
     Id.
1059
     Id.
1060
     Id.
1061
     Id. at 189–90.
1062
     Id. at 190.
1063
     Id.
1064
     Id.
1065
     Id.



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only being convicted and sentenced as a class D felon, he was sentenced to fifteen years, rather
than five years.1066

        On appeal Maxwell renewed his argument against using the same prior two felonies to
enhance his drug charge and classify him as a habitual offender.1067 The Iowa Supreme Court
reviewed this appeal for correction of errors at law.1068 Maxwell never argued his possession
charge should not have been enhanced, so the court focused on the habitual offender statute.1069
The court stated the legislature had to intend for chapter 124 of the Iowa Code “to be
comprehensive and all encompassing when it comes to sentencing violators of chapter 124.”1070
They further added that they have already rejected that analysis in three other opinions.1071 The
court determined chapter 124 was not intended to be all-encompassing because the chapter does
not include sentencing information.1072 The court’s ruling also relied on “the legislature’s
purpose for enacting a recidivist statute” which was “to deter and punish incorrigible
offenders.”1073 Based on the above reasons, the court found Maxwell’s sentence was legal and
the district court properly interpreted the use of prior convictions in sentencing.1074

        Maxwell also contended the district court should have stated reasons for denying his
motion for a new trial.1075 In the district court’s denial of Maxwell’s motion for a new trial, the
court failed to state any reasons for the denial.1076 Although the court noted that district courts
should state reasons for the ruling of a motion for a new trial, the court claimed they could
review this ruling.1077 The court reviewed the ruling for an abuse of discretion.1078 After
reviewing the record, the court found “the greater weight of the evidence support[ed] the jury
verdict.”1079 The court listed the constructive possession elements and evaluated the evidence
found in the record.1080 The court found the following facts supported the jury’s verdict:
Maxwell was the only person near the car around the time of the stop, Maxwell could have seen

1066
     Id. at 191 (citing IOWA CODE § 902.9(3); IOWA CODE § 902.9(5)).
1067
     Id. at 190.
1068
     Id. (citing State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005)).
1069
     Id. at 190–91.
1070
     Id. at 191.
1071
     Id. (citing State v. Owens, 635 N.W.2d 478, 484–85 (Iowa 2001); State v. Sisk, 577 N.W.2d 414, 416 (Iowa
1998); State v. Draper, 457 N.W.2d 600, 603–04 (Iowa 1990)).
1072
     Id.
1073
     Id. (citing State v. Conley, 222 N.W.2d 501, 503 (Iowa 1974)).
1074
     Id. at 192.
1075
     Id.
1076
     Id.
1077
     Id.
1078
     Id. at 193.
1079
     Id.
1080
     Id. at 194. The listed elements of constructive possession include:
           (1) Incriminating statements made by the person;
           (2) Incriminating actions of the person upon the police’s discovery of a controlled substance among or
                near the person’s personal belongings;
           (3) The person’s fingerprints on the packages containing the controlled substance; and
           (4) Any other circumstances linking the person to the controlled substance.
Id. (citing State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002)).
The court also considered additional factors regarding constructive possession because the premises was a vehicle.
Id. (citing State v. Carter, 696 N.W.2d 31, 39 (Iowa 2005)).



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the plastic baggie of drugs because it was in plain view, Maxwell had a pack of cigarettes on his
person that was the same brand of the cigarette pack that contained the drugs, Maxwell did not
pull over right away and then proceeded to get out of the vehicle and go to his house when he
stopped, and the drugs were situated next to Maxwell in the vehicle.1081 After looking at that
evidence the court found the jury’s conviction “was not contrary to the weight of the
evidence.”1082 So the district court did not abuse its discretion, regardless of its failure to state
reasons for the denial of the motion for a new trial.1083

        Maxwell also stated he believed his counsel provided ineffective assistance in failing to
object to a jury instruction regarding aiding and abetting the crime.1084 To show ineffective
assistance of counsel, Maxwell had to demonstrate, by a preponderance of the evidence, that
counsel failed to perform an essential duty and prejudice resulted.1085 Neither party believed
Maxwell could be charged as an aider and abetter, but including the jury instruction had to result
in prejudice for Maxwell to prevail.1086 Maxwell claimed the jury instruction “misstated his
culpability and permitted the jury to speculate about possible facts not presented at trial.”1087
The court did not believe the instruction had an effect on the jury.1088 The court, following past
case precedent, did not believe the case would have been different had the superfluous jury
instruction been omitted.1089 Thus, Maxwell’s ineffective assistance of counsel claim failed.1090
The court affirmed Maxwell’s conviction and his sentence.1091

                            SECTION 3.9: SEXUALLY VIOLENT PREDATORS

In re Detention of Hennings, 744 N.W.2d 333 (Iowa 2008).
         Hennings was charged with six counts of third degree sexual abuse, three counts of
indecent contact with a child, and one count of dissemination of obscene material to minors.1092
Hennings accepted a plea agreement in which he pled guilty to one count of the sexual abuse
charge.1093 Just before Hennings’s release from the adult corrections facility, the State filed a
petition to classify Hennings as a sexually violent predator.1094 At a hearing on the issue the
district court found probable cause to support the State’s petition and scheduled a trial.1095 The
State then filed for a jury demand according to Iowa Code section 229A.7(4), and Hennings filed
a motion to strike the jury demand claiming violation of the Equal Protection and Due Process
Clauses.1096 The district court denied the motion, and the trial proceeded in front of the jury.1097

1081
     Id.
1082
     Id. at 195.
1083
     Id.
1084
     Id
1085
     Id. at 196 (citing Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001)).
1086
     Id.
1087
     Id.
1088
     Id. at 197.
1089
     Id. (citing State v. Tejeda 677 N.W.2d 744, 755 (Iowa 2004)).
1090
     Id.
1091
     Id.
1092
     In re Detention of Hennings, 744 N.W.2d 333, 335 (Iowa 2008).
1093
     Id.
1094
     Id. (referencing IOWA CODE § 229A.2(11) (2005)).
1095
     Id.
1096
     Id. (citing IOWA CODE § 229A.7(4)).



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        At trial, the State had to demonstrate that Hennings had a mental abnormality that would
make him “likely to engage in predatory acts if not confined.”1098 The State presented evidence,
via an expert witness, that Hennings did have various disorders that would make him more likely
to be a recidivist.1099 At that point, Hennings moved for a directed verdict which the court
denied.1100 Hennings had two expert witnesses that testified Hennings did not have a mental
abnormality, and did not have a mental abnormality that would make him more likely to commit
criminal sexual offenses.1101 At the end of his case Hennings again asked for a directed verdict,
which was overruled.1102 The jury determined Hennings was a sexually violent predator.1103

        Hennings appealed claiming the State’s right to require a jury trial violates the Due
Process and Equal Protection Clauses.1104 He also contended the court should have granted his
motion for a directed verdict based on the insufficiency of the evidence.1105 The court reviewed
the claim concerning the Iowa and United States Constitutions de novo.1106 The court reviewed
the ruling on the directed verdict motion for correction of errors at law.1107

         The court first evaluated the due process claim.1108 The court agreed that Hennings had a
fundamental right to a fair trial.1109 The court disagreed with Hennings’s interpretation of a fair
trial.1110 The court determined that a fair trial “does not guarantee a trial before the decision
maker of the respondent’s choosing.”1111 The court also noted the right to a fair trial guarantees
the right to an impartial decision maker.1112 The court contended the SVP proceeding was not so
inherently prejudicial in character that it would render assembling an impartial jury
impossible.1113 Because the court did “not share Hennings’s complete lack of confidence in a
jury’s ability to serve as an impartial fact-finder” the court determined Hennings was not entitled
to a bench trial under the due process clause.1114


1097
     Id.
1098
     Id. (citing IOWA CODE § 229A.2(11)).
1099
     Id. at 336.
1100
     Id.
1101
     Id.
1102
     Id.
1103
     Id.
1104
     Id.
1105
     Id.
1106
     Id. (citing In re Detention of Williams, 628 N.W.2d 447, 451 (Iowa 2001)).
1107
     Id. at 336–37 (citations omitted).
1108
     Id. at 337. The court acknowledged that Hennings raised his constitutional claims under both the Iowa and
United States Constitutions. The court also claimed they need not interpret the due process claim under the state
constitution as narrowly as the federal due process claim would be interpreted. Id.
1109
     Id.
1110
     Id.
1111
     Id.
1112
     Id.
1113
     Id. The court claimed that “[j]uries are often called upon in our courts to decide cases presenting profoundly
disturbing evidence.” So a contentious issue would not automatically rule out the possibility of an impartial jury.
Id. at 338.
1114
      Id. The court also noted the numerous procedural safeguards including voir dire, peremptory challenges,
limitations on the admission of evidence, and pre and post trial remedies. Id.



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        Next, the court evaluated Hennings’s equal protection argument regarding the State’s
right to demand a jury trial against his objection.1115 The Equal Protection Clause mandates
“equal treatment of similarly situated people.”1116 Hennings asserted that SVP respondents and
defendants in criminal cases are similarly situated, but are being treated differently.1117 The
court did not agree with Hennings’s assertion.1118 The court claimed the groups were not
actually similarly situated.1119 The court found that a respondent in a sexually violent predator
proceeding has allegedly “been convicted of or charged with committing a sexually violent
offense and the respondent has “a mental abnormality making it likely they will commit sexually
violent predatory acts if not confined and treated.”1120 The State has a higher “stake in the
outcome of SVP cases” than in criminal cases because of the recidivism aspect.1121 Therefore,
the court concluded the two groups were not similarly situated, and there was no violation of the
equal protection clause.1122

        Regarding Hennings’s final claim, the court concluded there was sufficient evidence for
the district court to deny Hennings’s motion for a directed verdict.1123 The court reviewed the
assertion for correction of errors at law, and viewed the evidence in the light most favorable to
the State.1124 The court found the motion for a directed verdict was “without merit” because the
State did present an expert witness to testify about the elements required for a determination of
an SVP.1125
        Overall, the court found the statute allowing for the State to file for a jury trial in an SVP
proceeding did not violate the Equal Protection or the Due Process Clauses.1126 The court
affirmed the judgment of the district court.1127

In re Detention of Pierce, 748 N.W.2d 509 (Iowa 2008).
       Pierce had a history of sexually abusing young children. 1128 Prior to his release from
prison, the State filed a petition to have him committed as a sexually violent predator
(“SVP”).1129
The district court found that while Pierce suffered from pedophilia and antisocial personality
disorder, that State failed to prove Pierce was likely to “currently” engage in sexually violent and
predatory acts if not confined in a secure facility. 1130 The State appealed. 1131 At issue was

1115
     Id. at 338–39. The court stated they would treat the federal and state Equal Protection Clause the same for
purposes of this analysis. Id.
1116
     Id. at 339 (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)).
1117
     Id.
1118
     Id.
1119
     Id.
1120
     Id.
1121
     Id. at 340.
1122
     Id.
1123
     Id.
1124
     Id. (citations omitted).
1125
     Id.
1126
     Id.
1127
     Id.
1128
     In re Detention of Pierce, 748 N.W.2d 509, 510 (Iowa 2008).
1129
     Id.
1130
     Id.
1131
     Id.



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whether the State could appeal a determination that a person is not an SVP, and what burden the
State had in its proof that Pierce was an SVP. 1132

        Pierce had an extensive criminal history and had been convicted of three sexually violent
offenses. 1133 In 1987, while living in Missouri, Pierce performed oral sex on his girlfriend’s six-
year-old son. 1134 He pled guilty to sexual abuse in the first degree for that offense. 1135 In 2000,
Pierce was living with another girlfriend and her children, and fondled his girlfriend’s seven-
year-old daughter on two occasions. 1136 That same year, Pierce showed pornographic magazines
to a nine-year-old girl he was babysitting and performed oral sex on her. 1137 As a result of his
actions in 2000, Pierce pled guilty to lascivious acts with a child and third degree sexual
abuse.1138

        Eighteen days before Pierce was to be released from prison on the offenses he committed
in 2000, the states filed a petition under Iowa Code chapter 229A to have Pierce committed as an
SVP. 1139 After a trial, the district court said the State had failed to meet its burden of proving
that Pierce was an SVP and Pierce was released from custody. 1140 The State appealed. Pierce
moved to dismiss the appeal, arguing that Iowa Code chapter 229A did not give the State the
right to appeal a determination that he was not an SVP. 1141

        The State conceded that the Iowa Code Section 229A.7(5) did not expressly provide the
right to appeal, but pointed out that the proceedings were civil in nature and any party usually
may appeal a final civil judgment. 1142 Iowa Code section 229A.7(5) provides in relevant part:
“If the court or jury determines that the respondent is a sexually violent predator, the respondent
shall be committed to the custody of the director of the department of human services…The
determination may be appealed.1143 The Court found that final sentence of Section 229A.7(5)
merely emphasized the respondent’s right to appeal if he was found to be an SVP, rather than
eliminating the State’s right to appeal if he was not found to be an SVP. 1144 All civil litigants are
given the right to appeal “all final judgments,” including a civil determination that a person is not
an SVP. 1145

        At trial, the State was required to prove beyond a reasonable doubt that Pierce was an
SVP. 1146 The State had to prove three elements: “(1) Pierce has been convicted of a sexually
violent offense; (2) Pierce suffers from a mental abnormality; and (3) the mental abnormality

1132
     Id.
1133
     Id. at 511.
1134
     Id.
1135
     Id.
1136
     Id.
1137
     Id.
1138
     Id.
1139
     Id.
1140
     Id.
1141
     Id.
1142
     Id. (citing Atwood v. Vilsack, 725 N.W.2d 641, 649 (Iowa 2006).
1143
     Id. at 511-12 (citing Iowa Code section 229A.7(5))(emphasis added).
1144
     Id. at 512.
1145
     Id. (citing Iowa R. Civ. P. 6.1.).
1146
     Id.



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makes him more likely than not to engage in predatory acts constituting sexually violent
offenses, if not confined in a secure facility.” 1147 The district court found that the State had met
its burden on the first two elements. 1148 Pierce had three sexually violent convictions and
suffered from two mental abnormalities, pedophilia and antisocial personality disorder. 1149 The
district court held that the third element contained a presumed time element that the likelihood of
re-offense be “current or present.” 1150 The Court rejected the assertion that there was some
implied time element in the likelihood of re-offense requirement in Chapter 229A. 1151 If the
fact-finder believed that Pierce would reoffend when given the opportunity due to his mental
abnormality, then he is an SVP; no likelihood of an immediate or present threat need be
proven.1152

                            SECTION 3.10: ALCOHOL-RELATED OFFENSES

State v. Johnson, 744 N.W.2d 340 (Iowa 2008).
         Johnson caused an accident that seriously injured someone.1153 Johnson then left the
scene, but when he was found, he failed the field sobriety tests.1154 After his arrest, Johnson
refused to provide a breath sample.1155 The police then brought Johnson to the hospital and
obtained a blood sample without Johnson’s consent and without a warrant.1156 At the time of the
sample, two hours and forty minutes after the car accident, Johnson had a BAC of .25%.1157 At
trial, Johnson motioned to suppress this evidence, but the court denied the motion.1158 The only
issue Johnson raised on appeal was whether the evidence of his BAC should have been
admitted.1159

        Iowa Code section 321J.10A allows the withdrawal of blood for testing without consent
when there is an accident, the driver is reasonably believed to be intoxicated, there is a serious
injury that is reasonably likely to cause death, and the search is done pursuant to a warrant.1160
In limited circumstances the statute also allows for withdrawal of blood without a warrant.1161
To obtain a blood sample under these circumstances the peace officer has to reasonably believe
the blood will produce evidence of intoxication,1162 the method used is reasonable and performed
in a reasonable manner,1163 and “[t]he peace officer reasonably believes the officer is confronted
with an emergency situation in which the delay necessary to obtain a warrant under section

1147
     Id. (citing Iowa Code § 229A.2(4), (11) (2008)).
1148
     Id. at 513.
1149
     Id.
1150
     Id.
1151
     Id. at 514.
1152
     Id.
1153
     State v. Johnson, 744 N.W.2d 340, 341 (Iowa 2008).
1154
     Id.
1155
     Id.
1156
     Id.
1157
     Id.
1158
     Id.
1159
     Id.
1160
     Id. at 341–42 (citing IOWA CODE § 321J.10A).
1161
     Id. at 342 (citing IOWA CODE § 321J.10A(1)).
1162
     Id. (citing IOWA CODE § 321J.10A(1)(a)).
1163
     Id. (citing IOWA CODE § 321J.10A(1)(b)).



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321J.10 threatens the destruction of evidence.”1164 The last requirement is contested in this
case.1165

        This exigency argument has been raised in Schmerber v. California, an applicable United
States Supreme Court case that the Iowa Supreme Court relied heavily upon.1166 The Court in
Schmerber found there was a Fourth Amendment issue, but the search absent a search warrant
may be justified by the natural dissipation of alcohol from the body.1167 The Iowa statute is close
to the language of Schmerber, and Iowa case law has followed the Schmerber ruling.1168 After
dismissing a per se exigency rule, the court still stated they believed there were exigent
circumstances in this case.1169 The officer testified that he believed the evidence would be
destroyed by waiting, so exigency existed.1170

        Johnson claimed the search and seizure of his blood was unreasonable because the officer
could have phoned a magistrate to obtain a warrant, and a later sample could determine the
alcohol content at an earlier time through the extrapolation process.1171 The court first evaluated
the telephone warrant claim.1172 The Iowa Code does allow a telephone warrant, however, the
court did not agree with Johnson’s argument.1173 The court claimed the telephone warrant
process is lengthy and complicated and would not extinguish exigency.1174 The court also
disagreed with Johnson’s argument concerning the extrapolation process.1175 The court stated
the extrapolation process “is far from an exact science.”1176 Because the accuracy was in doubt,
the court determined the possibility of using that science did not eliminate exigency in this
case.1177 The court determined the district court was not in error in its admission of evidence
regarding Johnson’s blood alcohol content, despite the nontraditional method of obtaining that
evidence.1178

State v. Massengale, 745 N.W.2d 499 (Iowa 2008).
        Codey Massengale was charged with operating while intoxicated, first offense, in
violation of Iowa Code section 321J.2.1179 Although Massengale had a commercial driver’s
license, he was driving his pickup truck, a noncommercial vehicle, when he was arrested.1180
The trial court granted Massengale’s motion to suppress the results of his breath test, in which he
argued that the implied consent advisory was “inaccurate and misleading with respect to the

1164
     Id. (citing IOWA CODE § 321J.10A(1)(c)).
1165
     Id.
1166
     Id. (citing Schmerber v. Cal., 384 U.S. 747 (1966)).
1167
     Id. at 342–43 (citing Schmerber, 384 U.S. at 770).
1168
     Id. at 343.
1169
     Id. at 343–45 (citations omitted).
1170
     Id. at 344–45.
1171
     Id. at 343.
1172
     Id. at 345.
1173
     Id. at 345–46 (citing IOWA CODE § 321J.10(3)).
1174
     Id. at 345.
1175
     Id. at 346.
1176
     Id.
1177
     Id.
1178
     Id.
1179
     State v. Massengale, 745 N.W.2d 499, 500 (Iowa 2008) (citing IOWA CODE § 321J.2 (2005)).
1180
     Id.



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applicable suspension periods to his commercial driving privileges and therefore ‘violated due
process and rendered [his] ‘consent’ involuntary.’”1181 The State applied for, and was granted,
discretionary review.1182

        Under the Iowa implied consent statute, drivers impliedly agree to submit to sobriety tests
in exchange for the privilege of using public highways.1183 However, a person has a statutory
right to withdraw implied consent, and refuse to submit to the chemical testing.1184 Additionally,
Iowa Code section 321J.8 requires a peace officer to inform a person of the consequences of
taking and failing or refusing to submit to chemical testing.1185 The issue before the Iowa
Supreme Court here arose because, on July 1, 2005, section 321.208 of the Iowa Code was
amended, but neither section 321J.8 nor the implied consent advisory was amended to reflect the
change.1186 The advisory read to Massengale read as follows:

        Refusal to submit to the withdrawal of a body specimen for chemical testing will
        result in a revocation of your privilege to operate a motor vehicle for one year if
        you have not previously been revoked within the pervious twelve years under the
        implied consent or drunk driving laws of this state or two years if you have one or
        more revocations within the previous twelve years . . . .

        If you consent to chemical testing and the test results indicate an alcohol
        concentration of eight hundredths or more, or if the test results indicate the
        presence of a controlled substance or other drug or a combination of alcohol and
        another drug violation of [Iowa Code section] 321J.2, the department shall revoke
        your privilege to operate a motor vehicle for a period of 180 days if you have no
        revocation within the previous twelve years under the drunk driving or implied
        consent law, or one year if you have one or more previous revocation sunder
        those provisions.1187

Thus, a reasonable person would have likely interpreted the advisory to mean they would
lose their commercial driver’s license (CDL) for six months if they failed the test and one
year if they refused to take the test because it could be interpreted to mean that the
consequences are the same for CLDs and non-CDLs.1188 The 2005 amendment, however,
required a one year revocation of a person’s CDL if they “refused or failed chemical
testing regardless of whether the individual was operating a commercial or
noncommercial motor vehicle” at the time.1189

       The court determined that the advisory given to Massengale did not meet the
“reasonable fit” test because the means chosen by the State did not advance the purpose

1181
     Id.
1182
     Id.
1183
     Id. at 501 (quoting State v. Hitchens, 294 N.W.2d 686, 687 (Iowa 1980)).
1184
     Id. (citing IOWA CODE § 321J.9).
1185
     Id. (quoting IOWA CODE § 321J.6(1)).
1186
     Id. at 503.
1187
     Id. at 502.
1188
     Id. at 503–04.
1189
     Id. at 503.



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of the statute—“giving an arrested individual[] information to make a reasoned and
informed decision with respect to chemical testing”1190 It reasoned, had the advisory
been properly administered and the person understood that they would lose their CDL for
one year regardless of whether they submit and fail or refuse to submit to the chemical
testing, a person may have decided not to give the State evidence upon which it could
convict him or her for an OWI.1191 Thus, the advisory as given did not give Massengale a
chance to make a reasoned and informed decision about whether to consent to the
chemical testing.1192 The Iowa Supreme Court, thus, affirmed the district court’s grant of
Massengale’s motion to suppress.1193

                                       SECTION 3.11: RESTITUTION

State v. Johnson, 744 N.W.2d 646 (Iowa 2008).
        Johnson, as part of his sentence for convictions of burglary, robbery, and sexual abuse,
had to pay court costs, attorneys’ fees, and victim restitution.1194 The Iowa Department of
Corrections filed Johnson’s restitution plan in 1989 and in 1993 Johnson challenged the
forfeiture of funds from his prison account.1195 The district court scheduled a hearing concerning
Johnson’s restitution plan, but that hearing never occurred.1196 The State never obtained
Johnson’s availability via phone for multiple scheduled hearings.1197 In 1998, the district court
judge ordered that the hearing had to be held within sixty days, otherwise Johnson would no
longer be responsible for restitution.1198 In July of 1998, well past sixty days later, a hearing still
had not occurred so the presiding judge issued an order that Johnson was no longer responsible
for “‘any restitution in this matter.’”1199 Pursuant to this order, Johnson filed an order claiming
the Iowa Department of Corrections owed him several hundred dollars.1200 Then, in July of
2005, the Iowa Department of Corrections filed a new restitution plan for Johnson.1201 Johnson
also filed a motion to compel the money he felt the Iowa Department of Corrections still owed
him for their violation of the July 1998 order.1202

        Johnson filed, and the district court issued, an order nunc pro tunc in January 2006.1203
The district court declared the July 1998 order only referred to victim restitution.1204 The Iowa
Department of Corrections had only seized funds for repayment of the court costs and attorneys’
fees; so under the order nunc pro tunc, Johnson received nothing.1205 Johnson appealed and the

1190
     Id. at 504 (internal quotations omitted).
1191
     Id.
1192
     Id. at 505.
1193
     Id.
1194
     State v. Johnson, 744 N.W.2d 646, 647 (Iowa 2008).
1195
     Id.
1196
     Id.
1197
     Id. at 647–48.
1198
     Id. at 648.
1199
     Id. (emphasis in original).
1200
     Id.
1201
     Id.
1202
     Id.
1203
     Id.
1204
     Id.
1205
     Id.



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court of appeals sustained the order.1206 The Iowa Supreme Court then granted review, evaluated
the actions for correction of errors at law, and reversed the lower courts’ opinions.1207

         Johnson argued that the nunc pro tunc order impermissibly modified the July 1998
order.1208 The State claimed the 2006 order was valid and proper because it clarified the July
1998 order.1209 The State further added that even if the district court improperly issued the nunc
pro tunc order, the State has the right to seek a modification of restitution by an incarcerated
defendant.1210 The court premised its opinion by stating a nunc pro tunc order can be issued
either “where there is an obvious error that needs correction or where it is necessary to conform
the order to the court’s original intent.”1211 The court also emphasized the importance of the
intent of the trial judge.1212 The court based its ruling on several facts including: the non-
ambiguous statements of the original order, the procedural context of the case, and the language
of the district court’s 2006 order.1213 The court found the original order was not ambiguous, and
clearly stated “‘any restitution’ obligation” which means all.1214 The court also stated that the
seven years between the original order and the nunc pro tunc order mitigated any obvious error
because the “more time that passes the more evident and manifest the alleged error must be
before issuing a nunc pro tunc entry.”1215 The court also determined the State’s conduct, in its
repeated failure to make Johnson available for the restitution hearing and its “inability to comply
with simple court directives,” supported the interpretation that the order extinguished all
restitution obligations.1216 The court also found the language of the 2006 order demonstrated
intent to interpret rather than correct the original 1998 order.1217 The court believed the 2006
order’s interpretation was not based on the plain language, and also reiterated that nunc pro tunc
orders were not meant to interpret earlier court orders, so the 2006 order would be improper.1218

         The court also addressed the State’s argument that the district court can modify
restitution orders.1219 They determined this argument was not supported by the statute.1220 First,
the court declared the statute allowing for modification of a defendant’s restitution plan can only
occur during “‘the pendency of the restitution plan.’”1221 In this case the restitution plan was
nonexistent because the 1998 order extinguished the state’s right to obtain restitution from




1206
     Id.
1207
     Id.
1208
     Id.
1209
     Id.
1210
     Id.
1211
     Id. (citing Graber v. Iowa Dist. Ct., 410 N.W.2d 224, 229 (Iowa 1987)).
1212
     Id. at 649.
1213
     Id.
1214
     Id. (citations omitted).
1215
     Id. (citing McVay v. Kenneth E. Montz Implement Co., 287 N.W.2d 149, 151 (Iowa 1980)).
1216
     Id.
1217
     Id.
1218
     Id. at 650.
1219
     Id. (citing IOWA CODE § 910.7(1)).
1220
     Id.
1221
     Id. (citing State v. Izzolena, 609 N.W.2d 541, 552 (Iowa 2000)).



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Johnson.1222 Second, the State’s right to directly appeal had lapsed since the 1998 order was a
final order that “fully adjudicated the rights of the parties.”1223

        The Iowa Supreme Court vacated the appellate court order and reversed the district court
order finding the 2006 nunc pro tunc order invalid.1224 The case was remanded to enforce the
terms of the 1998 order that released Johnson from any restitution payments.1225

                       SECTION 3.12: WITNESS CONFINEMENT AND PAYMENT

State v. McKinney, 743 N.W.2d 550 (Iowa 2008).
       McKinney was confined as a material witness for fifty-three days with a $150,000 cash-
only bond.1226 McKinney never testified and was never asked to testify during confinement.1227
He filed an application to obtain his material witness fees, but then argued to receive an award
equal to current minimum wage for every hour of his confinement.1228 The court granted him
only $40 per day.1229 McKinney appealed.1230

        The State argued McKinney was not eligible for a direct appeal, and the court agreed.1231
Because McKinney was not entitled to a direct appeal, he had to file for writ of certiorari to
obtain appellate review.1232 He did not do so, but the court treated his appeal as a writ in order to
decide on its the merits.1233

        On this appeal, McKinney contended the district court erred when it failed to pay him
equal to the statutory minimum wage rate for his service as a material witness in confinement.1234
He also claimed the district court violated the involuntary servitude prohibitions of both the
United States and Iowa Constitutions.1235 The court chose to discuss the Thirteenth Amendment
and rely on the federal case law in that area since McKinney had given no reason to interpret the
Iowa and United States Constitutions differently.1236 The court cited to Hurtado v. United States
which determined that when a person “owes a public duty to provide evidence in a court of law,”
the Thirteenth Amendment does not apply.1237 Hurtado specifically upheld a confined material


1222
     Id.
1223
     Id.
1224
     Id.
1225
     Id.
1226
     State v. McKinney, 743 N.W.2d 550, 551–52 (Iowa 2008).
1227
     Id. at 552.
1228
     Id. (citing IOWA CODE § 815.6 (2005)).
1229
     Id.
1230
     Id.
1231
     Id. The court declared that McKinney was not a criminal defendant so he could not appeal under those rules.
Also, the statute that he appealed concerning material witness fees are in the criminal procedure code so civil
appeals could not govern McKinney’s claim. That left McKinney with the writ of certiorari as his only option for
appellate review. Id.
1232
     Id. (citing McKeever v. Gerard, 368 N.W.2d 116, 118 (Iowa 1985)).
1233
     Id. (citing Bousman v. Iowa Dist. Ct., 630 N.W.2d 789, 793 (Iowa 2001)).
1234
     Id.
1235
     Id. at 552–53.
1236
     Id. at 553.
1237
     Id. (citing Hurtado v. United States, 410 U.S. 578, 589 n.11 (1973)).



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witness fee of only one dollar per day, so the Iowa Supreme Court found “no merit” to
McKinney’s Thirteenth Amendment claim.1238

        The court also looked at the purpose of the statutes that pay “laypersons who participate
in the judicial system.”1239 The court contended the fees were to “lessen the financial burden” on
those participants rather than to reimburse them for their services.1240 Specifically in the material
witness provision of the Iowa Code, the legislature did not define a set fee for those witnesses,
but rather left the amount to the court’s discretion.1241 The court instructed dicta that courts are
to consider the “effect of confinement on the material witness’s financial situation” to
appropriately set a fee.1242 Those fees will only be reversed upon an abuse of discretion.1243 The
court did not find an abuse of discretion in this case.1244 Thus, the court upheld the district
court’s award of $40 per day.1245

                   SECTION 3.13: ADMISSION OF EVIDENCE/RULES OF EVIDENCE

State v. Parker, 747 N.W.2d 196 (Iowa 2008).
        A jury convicted defendant, Parker, of second-degree robbery and sentenced him as a
habitual offender.1246 Parker appealed the decision to admit conversations that he claimed were
privileged through the attorney-client privilege, to admit evidence of his prior drug convictions,
to sentence him as a habitual offender, and Parker also claimed ineffective assistance of counsel
and prosecutorial misconduct.1247 The Iowa Supreme Court vacated the appellate court’s
decision and affirmed the judgment and sentence.1248

       Parker was convicted of robbing a bank after entering the bank and demanding money
from a bank teller.1249 The branch manager also saw the robbery and made a note of the make,
model, and license plate number as the robber drove away.1250 A customer also observed the
robbery and tried to follow the robber, but was obstructed when a person driving a red Blazer
pulled in front of him.1251 The police stopped that red Blazer that was driven by Inger Hall-
Smith and found gloves similar to that worn by the robber.1252 The police questioned Hall-Smith
and she referred to the bank robbery without being told about it.1253 Later in the day, a man
mowing his lawn saw a car similar to the getaway car when the driver asked for directions, and


1238
     Id. (citing Hurtado, 410 U.S. at 589 n.11).
1239
     Id.
1240
     Id. at 554.
1241
     Id. (citing IOWA CODE § 815.6).
1242
     Id.
1243
     Id.
1244
     Id.
1245
     Id.
1246
     State v. Parker, 747 N.W.2d 196, 200 (Iowa 2008).
1247
     Id. at 202.
1248
     Id. at 212.
1249
     Id. at 200.
1250
     Id.
1251
     Id.
1252
     Id.
1253
     Id. at 201.



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that driver noted the dark mark on the driver’s face.1254 Another person stated that the getaway
car broke down and he saw the driver who asked for a ride, and that person declined.1255
Someone else picked up the driver and noticed the mark on his passenger’s face and a black bag
with green lettering.1256

         Six months later, Parker visited Hall, the attorney brother of Hall-Smith.1257 Parker
stayed with Hall that night and they discussed the bank robbery.1258 Parker told Hall of his plans
to rob another bank and apologized for Hall’s sister’s involvement in the robbery.1259 The next
day Hall called the police and told them Parker was at his house and that Parker was not his
client.1260

         Before trial Parker motioned to exclude Hall’s testimony, but was denied.1261 Hall, as
well as the bank teller, the man mowing his lawn when Parker stopped to ask directions, and the
truck driver that picked Parker up when the car broke down— all identified Parker.1262 Hall told
the jury about the incriminating statements Parker had made to him.1263 Parker also testified and
claimed he had been in Chicago the day of the robbery.1264 During direct examination, Parker
testified “that he had never been charged with the crimes of theft, robbery, or burglary.”1265 On
cross, the State questioned Parker about that statement, and Parker admitted he had been charged
with breaking into a car.1266 The State then asked whether Parker had any other convictions on
his record, and the defense objected, but the question was allowed.1267 Parker then admitted to
possession of a controlled substance within a thousand feet of a school, as well as delivery of the
controlled substance.1268 That conviction had taken place thirteen years prior.1269

        The court reviewed the issue of the attorney-client privilege with deference to the district
court’s findings but the district court had to have substantial evidence for those findings.1270 To
determine whether an attorney-client relationship exists, a court undergoes a three part test
asking whether: “‘(1) a person sought advice or assistance from an attorney, (2) the advice or
assistance sought pertained to matters within the attorney’s professional competence, and (3) the
attorney expressly or impliedly agreed to give or actually gave the desired advice or
assistance.’”1271 The burden of proving the relationship rests on the person claiming the

1254
     Id.
1255
     Id.
1256
     Id.
1257
     Id.
1258
     Id.
1259
     Id.
1260
     Id.
1261
     Id.
1262
     Id. at 201–02.
1263
     Id. at 202.
1264
     Id.
1265
     Id.
1266
     Id.
1267
     Id.
1268
     Id.
1269
     Id.
1270
     Id. at 203.
1271
     Id. at 203–04 (quoting Comm. on Prof’l Ethics & Conduct v. Wunschel, 461 N.W.2d 840, 845 (Iowa 1990)).



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privilege.1272 The court decided first that Parker was not seeking advice from Hall as an
attorney.1273 Parker and Hall discussed the robbery, but the court did not find that Hall gave any
advice, and found that Parker and Hall did not develop a strategy or course of action.1274 The
court also found it was not Parker’s intent to employ Hall as his attorney.1275 The court claimed
the conversations all took place in a social setting and did not rise to the level of the creation of
an attorney-client relationship.1276 Parker claimed that because Hall stated he would check into
the status of the robbery investigation, that demonstrated an attorney-client relationship, but the
court disagreed.1277 Hall also never demonstrated that he believed there was a professional
relationship as shown when he called the police with Parker’s whereabouts.1278 The court
ultimately decided there was no attorney-client relationship so Hall’s testimony was properly
admitted.1279

        Next the court discussed whether Parker’s prior convictions should have been
admitted.1280 The court reviewed these admissions for an abuse of discretion.1281 Parker claimed
the statement concerning his prior burglary charge was proper, but the admission of his statement
regarding his drug convictions should have been excluded.1282 On, the other hand, the State
claimed Parker “opened the door” when he said he had never been charged with theft, robbery,
or burglary.1283 The court acknowledged that a testifying defendant places their credibility in
issue, and thus the defendant’s character can be attacked by evidence of conviction of a crime
when the crime is punishable by more than one year imprisonment or is a crime of dishonesty or
false statement.1284 However, regarding convictions not involving dishonesty, the courts must
balance and decide the probative value outweighs the prejudicial effect on the accused.1285 The
State claimed there was no need for this balancing because they were correcting the false
impression presented on direct examination concerning Parker’s criminal background.1286 This
“opening the door” principle is allowed, but not when the evidence was relevant, competent, and
concerns an admissible matter.1287 The court found that facially Parker’s testimony on direct
satisfied those requirements because it displayed Parker’s character for truthfulness.1288 The
court also stated that when the “open door” principle applies, the principle does not allow for
unrestricted cross-examination of the defendant.1289



1272
     Id. at 204.
1273
     Id.
1274
     Id.
1275
     Id. at 205.
1276
     Id.
1277
     Id.
1278
     Id.
1279
     Id.
1280
     Id.
1281
     Id. at 203 (citations omitted).
1282
     Id. at 205.
1283
     Id.
1284
     Id. at 205–06.
1285
     Id. at 206 (quoting Iowa R. Evid. 5.609(a)(1)).
1286
     Id.
1287
     Id.
1288
     Id.
1289
     Id.



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        In this case, since the State had already impeached Parker by revealing his prior burglary
charge, no further impeachment to demonstrate his false impression was necessary.1290 The
court concluded the impeachment at that point “would be limited to other prior crimes of theft,
robbery, or burglary or perhaps other crimes involving dishonesty.”1291 Since the court
determined the drug convictions could not be used to impeach Parker for creating a false
impression, the court then considered whether the drug convictions could be used to impeach
Parker using evidence of a conviction of a crime.1292 These crimes would be allowed under Iowa
Rules of Evidence 5.609 because they were punishable by more than a year’s imprisonment, but
these crimes were also more than ten years old.1293 Crimes that are more than ten years old are
presumed to be more prejudicial than probative, and should only be admitted in exceptional
circumstances.1294 The court determined these prior drug convictions, especially considering the
additional possession near a school conviction, were potentially prejudicial, and had limited to
no probative value.1295 Based on that balancing test, the court found the prior drug convictions
should not have been admitted, but then proceeded to determine whether the admission was
harmless error.1296

        To be a harmless error, the party must not be “‘injuriously affected by the error’” and the
party must not “‘suffer a miscarriage of justice.’”1297 The court had many considerations in
determining whether there was harmless error, especially the overwhelming evidence against
Parker in this case.1298 There were many witnesses that identified Parker, Hall testified as to
Parker’s admission of guilt, and Parker did not provide additional evidence to support his alibi
defense.1299 All these facts weighed against Parker, so the court found the error was harmless,
largely based on the overwhelming evidence.1300

        The court then discussed Parker’s claim of ineffective assistance of counsel and
prosecutorial misconduct.1301 To prove ineffective assistance of counsel, the attorney had to fail
to perform an essential duty, and prejudice must result.1302 Parker asserted his counsel failed to
perform an essential duty for failure to object to the admission of prior drug convictions and
failure to object to the State’s closing arguments that suggested Parker stole a car.1303 The court
had already ruled on a motion in limine that reference to the car must be excluded, but Hall
answered a question which referred to the stolen car, and the State mentioned it later.1304 The
court found the evidence about the car and the drug convictions should not have been admitted,

1290
     Id. at 207–08.
1291
     Id. at 208.
1292
     Id.
1293
     Id. (quoting Iowa R. Evid. 5.609).
1294
     Id. (citing State v. Roby, 495 N.W.2d 773, 775 (Iowa App. 1992)).
1295
     Id. at 209.
1296
     Id.
1297
     Id. (quoting State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004) (quoting State v. Trudo, 253 N.W.2d 101, 107
(Iowa 1977))).
1298
     Id. at 210.
1299
     Id.
1300
     Id.
1301
     Id.
1302
     Id.
1303
     Id. at 210–11.
1304
     Id. at 211.



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but again found that prejudice did not result.1305 Much like the harmless error test, the court
found prejudice did not result because of the overwhelming evidence of guilt.1306 The court
rejected the ineffective assistance of counsel claim as well as the prosecutorial misconduct
claim.1307 Parker stated the State should not have introduced evidence about the stolen car after
the ruling on the motion in limine.1308 The court agreed, but found the references were not
pervasive, plus the evidence guilt was overwhelming so there was no prejudice.1309

        Finally, the court evaluated the habitual offender sentence.1310 A habitual offender is one
that has been convicted twice before of any felony and is currently convicted of a class C or D
felony.1311 To be sentenced as a habitual offender the first predicate offense must occur before
the commission of the second predicate offense and the conviction of the second predicate
offense must occur before the commission of the offense before the bar.1312 Parker challenged
his sentence because the two prior convictions were entered on the same day; however the first
offense listed stated that Parker was a habitual offender already.1313 The State claimed Parker
should be sentenced as a habitual offender because the prior conviction as a habitual offender
satisfied the definition.1314 The court found the habitual offender sentence was not illegal
because Parker had failed to object to the earlier habitual offender status.1315

State v. Reynolds, 746 N.W.2d 837 (Iowa 2008).
        Defendant Reynolds’s convictions were reversed for ineffective assistance of counsel,
and the court remanded the case for a new trial.1316 Reynolds entered a U.S. Bank on December
17, 2004 and tried to cash six U.S. postal money orders for $950 each.1317 The service manager
was suspicious of the transaction and put a hold on them.1318 Reynolds then found a new bank
that would cash the orders so Reynolds went back to take the money orders from U.S. Bank.1319
Reynolds then entered Central State Bank and cashed two of the U.S. postal money orders,
returning later and cashing the other four money orders.1320 On December 30 Reynolds cashed
four more U.S. postal money orders at Central State Bank.1321 January 31st, Reynolds returned
to Central State Bank and cashed two Traveler’s Express international money orders.1322




1305
     Id.
1306
     Id.
1307
     Id.
1308
     Id.
1309
     Id.
1310
     Id.
1311
     Id.
1312
     Id.
1313
     Id. at 212.
1314
     Id.
1315
     Id.
1316
     State v. Reynolds, 746 N.W.2d 837, 846 (Iowa 2008).
1317
     Id. at 839.
1318
     Id.
1319
     Id.
1320
     Id. at 839–40.
1321
     Id. at 840.
1322
     Id.



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        On February 1st of 2005, Best, a proof operator and research officer at Central State
Bank, received error messages from the Federal Reserve concerning the six U.S. postal money
orders from December 17.1323 February 8th, Best received more messages concerning the four
other money orders from December 30.1324 All the money orders were deemed counterfeit.1325
After that, Central State Bank’s head teller, Harmon, investigated the Traveler’s Express money
orders by calling the 800 number and discovered those money orders had no value.1326

        Reynolds was charged with first degree theft and six counts of forgery.1327 At Reynolds’s
trial, Best testified to lay foundation for ten exhibits under the business records exception to
hearsay.1328 These exhibits were the money orders, documents created by Central State Bank,
and a copy of the Federal Reserve error message.1329 Reynolds’s attorney did not object to the
testimony, but later objected to the admission of those exhibits.1330 Harmon also testified about
the recording from the Traveler’s Express 800 number.1331 Reynolds’s attorney objected to
Harmon’s testimony.1332
        Reynolds was convicted on all counts.1333 He appealed and the court of appeals affirmed
the district court’s rulings. The Iowa Supreme Court reviewed these hearsay admissions for
corrections of errors at law.1334

       The court first examined the business records exception to hearsay. In order to qualify
for a business record, the court determined certain foundational requirements must be met
including:
       1) That it is a business record;
       2) That it was made at or near the time of an act;
       3) That it was made by, or from information transmitted by, a person with knowledge;
       4) That it was kept in the course of a regularly conducted business activity;
       5) That it was the regular practice of that business activity to make such a business
       record.1335

Reynolds argued the State did not have sufficient evidence to meet the third requirement.
Central State Bank’s proof operator, Best, attempted to lay the foundation.1336 There were two
documents that were e-mails of errors from the Federal Reserve sent to the Central State Bank.
Best never mentioned whether these e-mails “were made by a person with knowledge.”1337 The

1323
     Id.
1324
     Id.
1325
     Id.
1326
     Id.
1327
     Id.
1328
     Id.
1329
     Id.
1330
     Id.
1331
     Id. at 841.
1332
     Id. at 840–41.
1333
     Id. at 841.
1334
     Id. (citing State v. Musser, 721 N.W.2d 734, 751 (Iowa 2006)).
1335
      Id. (citing Beachel v. Long, 420 N.W.2d 482, 484 (Iowa Ct. App. 1988) (citing 5A Iowa Rules of Civil
Procedure Annotated 581 (1984))).
1336
     Id.
1337
     Id. at 841–42.



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documents were made by the Federal Reserve, and Best did not testify as to the Federal
Reserve’s business operations for creating the e-mails.1338 The court did not find any testimony
from anyone that could lay the requisite foundation for the creation of the Federal Reserve error
reports.1339 The court recognized the Federal Reserve error messages might have been
automated, and thus not hearsay, but also stated there was no evidence admitted demonstrating
that the messages were not hearsay.1340 The court concluded the district court erred in admitting
the Federal Reserve messages because they were hearsay without an exception.1341 However, the
court continued that the admission of this evidence was not reversible error because Best had
already testified as to the messages without objection.1342

        Next, the court evaluated whether Harmon’s testimony relating the information from
Traveler’s Express’s 800 number should have been admitted.1343 Again, the court found the
message may or may not have been hearsay depending upon whether it was computer-
generated.1344 The court also found there was a problem with the third prong of the business
records exception in this situation as well.1345 The State did not lay the foundational evidence
concerning how Traveler’s Express found this information or whether someone with knowledge
made the statement concerning the international money orders’ value.1346 The court also found
the information from the 800 number would not fit in the business record exception because it
was not in a memorandum or report, the information was presented at trial through Harmon’s
testimony.1347 The court then determined whether this admission resulted in prejudice.1348 After
finding there was no other evidence concerning the counterfeit Traveler’s Express money orders,
the court reversed the defendant’s conviction of count seven and ordered a new trial for that
charge.1349

        Finally, the court assessed Reynolds’s ineffective assistance of counsel claim.1350
Reynolds asserted that his counsel failed to object to Best’s testimony about the Federal Reserve
error messages and failed to object to Best and Harmon’s testimony based on the confrontation
clause.1351 To prove ineffective assistance of counsel, Reynolds must show his attorney failed to
perform an essential duty and prejudice resulted.1352 The court agreed with Reynolds that his
counsel failed to perform an essential duty by not objecting to Best’s testimony.1353 The court
stated that had Reynolds’s attorney raised the issue, Best would not have been allowed to testify
and there would be insufficient evidence to convict Reynolds of the six forgery charges and the

1338
     Id. at 842.
1339
     Id. at 843.
1340
     Id.
1341
     Id.
1342
     Id. at 843–44.
1343
     Id. at 844.
1344
     Id.
1345
     Id.
1346
     Id.
1347
     Id.
1348
     Id.
1349
     Id. at 844–45.
1350
     Id. at 845.
1351
     Id.
1352
     Id. (citations omitted).
1353
     Id.



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theft charge.1354 The court then reversed Reynolds’s convictions on all seven counts and ordered
a new trial.1355

State v. Dentler, 742 N.W.2d 84 (Iowa 2007).
        The district court granted a motion to suppress evidence of alcohol intoxication in a
situation where the defendant was in Iowa, but then drove into Missouri and was arrested in
Missouri by Iowa officers.1356 Dentler was testing a new car by speeding when a Wayne County
sheriff’s deputy, Henderson, saw him and pursued him.1357 Dentler did not automatically pull
over when Henderson signaled him, but instead proceeded into Missouri before pulling over.1358
Henderson called for backup from two Missouri law enforcement officers as well as another
Wayne County sheriff’s deputy.1359 The other Iowa deputy noticed Dentler’s bloodshot and
watery eyes, as well as the smell of alcohol on Dentler’s breath.1360 The officers all discussed
how to proceed and the Missouri deputies told Henderson to “keep him.”1361 The Iowa police
gave Dentler his Miranda warning before arresting him, and bringing him back to Iowa where
they performed field sobriety tests.1362 Dentler was charged with a second offense for operating
a motor vehicle while intoxicated.1363

        Dentler contended that he was not presented to a Missouri magistrate as mandated by
Missouri state law, thus the evidence obtained after removal from Missouri should be
suppressed.1364 The district court agreed.1365 This issue was an issue of first impression for
Iowa.1366 The court reviewed the district court’s decision for an abuse of discretion regarding
admission of evidence, but reviewed admission based on interpretation of the statute for errors of
law.1367

        The court began its discussion by looking at other states’ courts.1368 The state courts had
split on whether they applied the exclusionary rule under similar circumstances.1369 The court
then considered its own history in allowing the exclusionary rule to apply in situations that
concerned violations of constitutional rights, statutory fundamental rights, as well as statutory
violations involving police misconduct.1370



1354
     Id.
1355
     Id. at 846.
1356
     State v. Dentler, 742 N.W.2d 84, 86 (Iowa 2007).
1357
     Id.
1358
     Id.
1359
     Id.
1360
     Id.
1361
     Id.
1362
     Id.
1363
     Id.
1364
     Id. (citing MO. REV. STAT. § 544.155).
1365
     Id. at 87.
1366
     Id.
1367
     Id. (quoting State v. Kjos, 524 N.W.2d 195, 196 (Iowa 1994)).
1368
     Id.
1369
     Id. (citing Commonwealth v. Sadvari, 752 A.2d 393 (Pa. 2000), State v. Ferrell, 356 N.W.2d 868 (Neb. 1985)).
1370
     Id. at 87–88 (citations omitted).



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        Dentler argued that in the present case he would have been released by the Missouri
magistrate for lack of probable cause, so the failure to present him to the magistrate violated his
constitutional due process rights.1371 The court did not accept this argument stating Dentler did
go before an Iowa judicial and was given the “opportunity to test the validity of his arrest.”1372
Also the court believed a Missouri magistrate would have found probable cause based on the
factual information at that time.1373

        However, the court’s examination did not end there because the Iowa sheriff deputies did
violate a Missouri statute.1374 The court had to determine whether that violation necessitated the
exclusion of evidence.1375 In Iowa, the first step is to determine whether exclusion of the
evidence is statutorily mandated.1376 The Missouri statute had no such requirement.1377 Next,
the Iowa court must decide whether the statute protected a defendant’s fundamental right.1378
The court determined Missouri’s Fresh Pursuit Statute was to ensure Missouri’s sovereign rights,
and was “not to protect the individual from overreaching evidence-gathering techniques by
government prosecutors.”1379 The court believed Missouri’s statute, at its heart, was to protect
the state of Missouri, not the defendant.1380 Because the statute was not a protection for Dentler
he did not have standing to invoke the exclusionary rule.1381 The final question in the analysis is
whether evidence should be excluded because of police misconduct.1382 The court found no
evidence of police misconduct, although there was confusion on the part of the police officers of
both states.1383 So the exclusionary rule was not invoked in this case.1384 The court refused to
expand the current law concerning the exclusionary rule at the time of this case based on the
facts before them.1385 Ultimately, the court reversed the district court’s suppression order and
remanded the case.1386

State v. Spencer, 737 N.W.2d 124 (Iowa 2007).
       Jeffrey Spencer was charged with “sexual exploitation by a school employee[,] . . .
indecent contact with a child[,] . . . and lascivious contact with a minor . . . ” based on several
inappropriate and sexually explicit phone calls made by Spencer to A.T. Thompson.1387 Spencer
pled not guilty, claiming all three charges violated Iowa Code chapter 808B because Mr.


1371
     Id. at 88.
1372
     Id. at 88–89.
1373
     Id.
1374
     Id. at 89.
1375
     Id.
1376
     Id.
1377
     Id.
1378
     Id.
1379
     Id.
1380
     Id. “To the extent an ox is being gored in this case, it belongs to Missouri, not Dentler.” Id.
1381
      Id. “Moreover, even if Dentler could vicariously assert the sovereign rights of the State of Missouri, it is
undisputed that the Missouri officers on the scene acquiesced to the action.” Id.
1382
     Id. at 90.
1383
     Id.
1384
     Id.
1385
     Id.
1386
     Id.
1387
      State v. Spencer, 737 N.W.2d 124, 127 (Iowa 2007) (citing IOWA CODE §§ 709.15(1)(f)–(g), 709.15(3)(a),
709.12(1), (2), 709.14).



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Thompson recorded phone conversations without the consent of either A.T. or Spencer.1388 The
district court granted Spencer’s motion to suppress the tape recordings.1389 The State requested
discretionary review of the district court’s decision to suppress the tapes.1390

        Iowa’s interception of communications act prevents a person from willfully intercepting
oral communications.1391 The exception, however, is if consent is obtained prior to the
taping.1392 If prior consent is obtained the communications and any derivative evidence is
admissible in a criminal proceeding.1393 The question before the Iowa Supreme Court was
whether a parent may vicariously consent on behalf of a minor to record phone conversations,
therefore making the communication admissible.1394 Spencer argued that vicarious consent was
not permissible because the Iowa legislature provided for 2 specific exceptions, and because
there was no explicit exception stated ‘“it is presumed and inferred that [the legislature] intended
to exclude all other exceptions.’”1395 However, the court pointed out the question was not
whether the legislature intended to create an exception for vicarious liability, but rather, whether
under the current provision a parent may vicariously consent for their minor child.1396

        The court first examined how the legislature has applied the concept of consent to
minors.1397 It determined that consent—something more than permission—often requires
parental input in situations where a minor is particularly vulnerable, or unable to make sound
judgments regarding certain actions.1398 Therefore, it concluded, the term “consent,” when
applied to minors under this act, is ambiguous.1399 In addition, the court noted the legislative
history has provided no commentary with regard to this issue.1400

        The court next examined the federal interpretation of the communications act, which also
contains the consent exception.1401 Federal courts have interpreted the consent exception to
allow a guardian, acting in good faith, who has an objectively reasonable basis for his or her
belief, and believes “that it is necessary and in the best interest of the child to consent on behalf
of his or her minor child to the taping of telephone conversations, . . . may vicariously consent on
behalf of the child to the recording.”1402 Additionally, the court recognized that several states
have integrated the federal court’s interpretation of consent into the interpretation of their own
statues, and have applied the vicarious consent doctrine.1403 Consequently, the court determined
that a minor’s right to privacy is not violated when the vicarious consent doctrine is applied to

1388
     Id.
1389
     Id. at 128.
1390
     Id. at 126.
1391
     Id. at 128 (citing IOWA CODE § 808B.2).
1392
     Id. (citing IOWA CODE § 808B.2(2)(c)).
1393
     Id. (citing IOWA CODE § 808B.4(3)).
1394
     Id.
1395
     Id. at 129.
1396
     Id.
1397
     Id.
1398
     Id.
1399
     Id.
1400
     Id. at 130.
1401
     Id.
1402
     Id. at 130–31 (quoting Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir 1998)).
1403
     Id. at 132.



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section 808B.2(2)(c), as long as the court examines the parent or guardian’s motive in recording
the conversation and the minor’s age.1404

        The court held that section 808B.2(2)(c) permits a parent or guardian, who, in good faith,
has an ‘“objectively reasonable basis for believing consent was necessary for the welfare of the
child;’” therefore, overruling the district court’s suppression of the tapes.1405

State v. Harris, 741 N.W.2d 1 (Iowa 2007).
        Kevin Harris was arrested, after eluding the police, and held on a material witness
warrant in the investigation of the murder of his brother Joseph Harris.1406 Cedar Rapids Police
Detective Doug Larison questioned Harris regarding his knowledge of, and role in, Joseph
Harris’s murder.1407 Harris eventually confessed to being present when Jones murdered Joseph
Harris, and to “pouring gasoline over the interior of the vehicle and Joseph’s body and lightening
the gasoline with a cigarette lighter.”1408 After confessing, Harris was charged with second
degree arson, in violation of Iowa Code sections 712.1 and 712.3, and obstruction of justice, in
violation of Iowa Code section 719.3.1409 The district court denied Harris’s motion to suppress
his confession, in which he claimed detective Larison had violated his Miranda rights by
continuing to interrogate him after he asked for an attorney, and statutory right to speak with a
family member when Larison did not allow Harris to call his brother.1410 The jury found Harris
guilty on both counts.1411 Harris appealed on both counts.1412

        It was undisputed that Harris was subjected to a custodial interrogation, that detective
Larison read Harris his Miranda rights and questioned him regarding his involvement in his
brother’s murder.1413 Harris refused to provide a written waiver of his Miranda rights, but
agreed to answer the detective’s questions.1414 After approximately an hour of questioning,
Harris said I don’t want to talk about it. We’re going to do it with a lawyer. That’s the way I got
to go.”1415 Larison responded by asking Harris “You want to do it with a lawyer, is that what
you’re saying?”1416 Harris replied “Yeah, because I don’t understand all these questions.”1417
Harris informed detective Larison that Dave Grinde had represented him before, and when
Larison asked Harris if he wanted him to contact Grinde, Harris responded “Yeah, because these
are trick questions. If you get my story out of me, I want my lawyer to be there.”1418 The court
determined that Harris “could not have been more clear—he wanted his attorney present during


1404
     Id. at 131, 132.
1405
     Id. at 131 (quoting Pollock, 154 F.3d at 610), 134.
1406
     State v. Harris, 741 N.W.2d 1, 4 (2007).
1407
     Id.
1408
     Id.
1409
     Id.
1410
     Id.
1411
     Id.
1412
     Id.
1413
     Id. at 6.
1414
     Id.
1415
     Id. at 7.
1416
     Id.
1417
     Id.
1418
     Id.



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police questioning.”1419 At this point, detective Larison was required to cease questioning
Harris.1420 According to the U.S. Supreme Court, after an accused has “invoked his right to have
counsel present during custodial interrogation, a valid waiver of that right cannot be established
by showing only that he responded to further police-initiated custodial interrogation even if he
has been advised of his rights.”1421 Here, detective Larison did not cease questioning Harris.1422
Thus, because Harris’s confession was made after he unambiguously requested the presence of
his attorney the district court should have suppressed it.1423

       Additionally, Harris argued his statutory right to contact a family member, under Iowa
Code section 804.20, was violated when detective Larison did not allow Harris to speak with his
brother as he requested.1424 However, because the State conceded that Harris’s right to speak
with a family member had been violated, the court was “left to determine the appropriate
remedy.”1425 The court determined Iowa precedence required the suppression of Harris’s
statements “obtained after an ‘unnecessary delay’ in allowing [Harris] to contact a family
member” because it was not made spontaneously.1426 Thus, the statements Harris made after
requesting to speak with his brother should have been suppressed.1427

       Finally, the State did not ‘“prove beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained,’” and therefore did not meet its burden of proving
harmless error.1428 Thus, because the district court erred in denying Harris’s motion to dismiss,
and because it was not harmless error, the court ordered a new trial.1429

State v. Wells, 738 N.W.2d 214 (Iowa 2007).
       Lorant Wells was convicted of third degree sexual abuse, in violation of Iowa Code
section 709.4(2)(c)(4).1430 In 2001, a fourteen year old L.M. was brought to the University of
Iowa Hospitals and Clinics on suspicion of sexual abuse.1431 During the examination, L.M. told
Nicollet Markovetz, the sexual assault nurse examiner, that she had a sexual relationship with a
twenty-four year old Wells.1432 After performing a gynecological examination, evidence was
placed in a sexual assault kit, sealed, and delivered to the hospital’s storage facility.1433 In 2004,
buccal swabs—swabs used to collect DNA evidence—were taken from Wells.1434 The buccal
swabs were properly labeled with Wells’ name, and placed in envelope labeled with Wells’ case


1419
     Id.
1420
     Id.
1421
     Id. at 6 (quoting Edwards v. Arizona, 451 U.S. 477, 484 (1981)).
1422
     Id. at 7.
1423
     Id. at 8.
1424
     Id. 8–9.
1425
     Id. at 10.
1426
     Id. at 9 (citing State v. Moorehead, 669 N.W.2d 667, 675 (2005))(quoting Iowa Code § 804.20).
1427
     Id. at 10.
1428
     Id. at 10 (quoting State v. Peterson, 663 N.W.2d 417, 431 (Iowa 2003)).
1429
     Id. at 10–11.
1430
     State v. Wells, 738 N.W.2d 214, 215, 217 (Iowa 2007).
1431
     Id. at 216.
1432
     Id.
1433
     Id.
1434
     Id.



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number, but the name placed on the outside of the envelope was “Lamont Wells.”1435 Both
L.M.’s sexual assault kit and Wells’ buccal swabs were then delivered to the lab for testing.1436
A DNA analysis showed Wells’ buccal swabs matched the DNA in L.M’s kit—“fewer than one
in one hundred billion unrelated individual would be expected to have the same profile.”1437 At
trial, the court overruled Wells’ objection Markovetz’s testimony that recounted “L.M.’s out-of-
court statements that she had sexual contact with Wells “was inadmissible hearsay, and violated
his Sixth Amendment right to confront a witness against him.1438 The district court also denied
Wells’ petition for a new trial, stating “[t]he verdict was not contrary to the weight of the
evidence.”1439

        Wells appealed, claiming the district court erred when it overruled his hearsay and
Confrontation Clause objections, failed to adequately inquire into the allege breakdown of his
relationship with his attorney, and applied the wrong standard when it overruled his motion for a
new trial.1440 The Iowa Supreme Court reviewed the constitutional claims, as well as the claimed
breakdown of the attorney-client relationship de novo, and the motion for a new trial for errors at
law.1441

        Wells claimed L.M.’s out-of-court statements were testimonial because they identified
him as the person with whom she had sexual relations, and because L.M. did not testify at trial
Markovetz’s recounting constituted inadmissible hearsay, and violated Wells Confrontation
Clause rights.1442 The court held that even if it assumed L.M.’s statements were testimonial,
their admission was harmless error.1443 The court stated that because the DNA evidence was
overwhelming, “the guilty verdict was surely unattributable to Markovetz’s recounting of L.M.’s
identification of Wells as the person with whom she had sexual relations.”1444 Thus, a reversal
was not necessary.1445

        Wells next claimed the district court failed to adequately inquire into alleged breakdown
of his relationship with his court appointed attorney, Fields.1446 The court determined it was
unable to rule on this issue because there was insufficient evidence within the record to allow the
court make a determination about whether there was a ‘“complete breakdown in
communications, and if so, its causes and duration.’”1447 Consequently, the court preserved this
claim for possible post-conviction proceeding.1448



1435
     Id.
1436
     Id.
1437
     Id. at note 3.
1438
     Id. at 217.
1439
     Id.
1440
     Id. at 217–18.
1441
     Id. at 218.
1442
     Id.
1443
     Id.
1444
     Id.
1445
     Id.
1446
     Id. at 219.
1447
     Id. at 219–20 (quoting State v. Tejeda, 677 N.W.2d 744, 751 (Iowa 2004)).
1448
     Id. at 220.



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       Finally, Wells claimed the district court applied the wrong standard when it denied his
motion for a new trial.1449 The court stated the standard for determining whether a new trial
should be granted is when the verdict is “contrary to the weight of the evidence.”1450 The court
held Wells claim lacked merit because the district court specifically stated it found the verdict
was not contrary to the weight of the evidence.1451

State v. Bentley, 739 N.W.2d 296 (Iowa 2007).
         James Bentley was charged with second degree sexual abuse, in violation of Iowa Code
section 709.1 and 709.3, for sexual abuse of a ten year old, J.G., in 2004.1452 J.G. was
interviewed by a counselor at St. Luke’s Child Protection Center (CPC) in November of
2004.1453 The interview was taped, and witnessed, through an observation window, by Detective
Ann Deutmeyer and DHS representative Pam Holtz.1454 J.G. made several statements that
claimed Bentley had sexually abused her.1455 In March of 2005, J.G. was murdered by Bentley’s
brother.1456 After the district court denied Bentley’s motion for a preliminary determination that
the videotaped interview with J.G. was inadmissible under the Confrontation Clause, Bentley
filed a motion in limine, which sought to prevent the admission of the tape at trial.1457 The
district court held a hearing on the motion in limine, and found the admission of the interview
“would violate Bentley’s constitutional right to confront a witness against him.”1458 The State
applied for discretionary review, and the trial was stayed pending resolution of this issue.1459

        The Iowa Supreme Court conducted a de novo review to determine if admission of J.G.’s
videotaped interview would violate Bentley’s right to confront a witness against him.1460
Because the parties agreed J.G. was “unavailable” to testify and Bentley had no prior opportunity
to cross-examine her, the admissibility of J.G.’s videotaped interview was dependent on whether
her statements were “testimonial.”1461 To prevail, the State must prove by a preponderance of
the evidence that J.G.’s statements were non-testimonial.1462 The court concluded the CPC
interview “was essentially a substitute for a police interrogation at the station house”—detective
Deutmeyer and DHS representative Holz were present and participated in the interview, J.G. was
informed of their presence, the nature of the questions were to elicit factual details regarding
sexual acts perpetrated against her, and Deutmeyer left with the videotape and considered it
evidence against Bentley.1463       Additionally, the recorded showed CPC—created by a
‘“community task force steering committee’” that include law enforcement personnel—had a


1449
     Id. at 219.
1450
     Id. (quoting State v. Ellis, 578 N.W.2d 665, 659 (Iowa 1998)).
1451
     Id.
1452
     State v. Bentley, 739 N.W.2d 296, 297 (Iowa 2007).
1453
     Id.
1454
     Id.
1455
     Id.
1456
     Id.
1457
     Id.
1458
     Id.
1459
     Id.
1460
     Id.
1461
     Id. at 298.
1462
     Id.
1463
     Id. at 299.



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close and ongoing relationship with local law enforcement personnel.1464 One manifestation of
this relationship is located in the police department’s standard of procedure, which states an
officer is to refer child sexual abuse victims to CPC for ‘“forensic interviews.’”1465 Detective
Deutmeyer and DHS representative Holtz arranged for the interview, and have acknowledged it
served an “investigative function.”1466

        The State claimed, however, J.G.’s statements were non-testimonial because “a
reasonable child of J.G.’s chronological age (10) and functional age (7) would not have
understood her statements would be used to prosecute [Bentley].”1467 In addition, based on a
U.S. Supreme Court case that stated the Confrontation Clause does not ‘“categorically
prohibit[]”’ the admission of testimony by means of closed circuit television when it is
determined in-court testimony would be traumatic for a child sexual abuse victim; the State
argued Bentley’s right to confront his accuser should yield to J.G.’s interest.1468 The court
found, however, that Bentley’s right to confront his accuser could not be dispensed with simply
because the accuser was a child.1469 The court stated that, unlike Maryland v. Craig, J.G. did not
testify under oath and was not subjected to cross-examination via a closed-circuit television;
therefore, Bentley’s right need not yield under the circumstances of this case.1470 The court held
the State failed to meet its burden of proving J.G.’s statements were non-testimonial; therefore,
the district court correctly concluded the videotape was inadmissible.1471

State v. Reyes, 744 N.W.2d 95 (Iowa 2008).
        Raymond Reyes was convicted of sexual abuse of his minor niece, AG.1472 At trial, the
court admitted evidence of a prior sexual assault by Reyes against AG.1473 Reyes filed an appeal,
contending the evidence of the prior sexual assault was improperly admitted, which violated his
due process rights, and ineffective assistance of counsel.1474 The Iowa Supreme Court reviewed
three issues: (1) whether the lower court abused its discretion when it admitted evidence of prior
sexual abuse involving the same victim, (2) whether the Reyes’s constitutional due process rights
were violated, and (3) whether Reyes was denied an effective assistance of counsel.1475

        The court held that the lower court did not abuse its discretion when it admitted evidence
of the prior sexual abuse involving AG because, according to Iowa Code section 701.11, “[i]n a
criminal prosecution in which a defendant is charged with sexual abuse, evidence of the
defendant’s commission of another sexual abuse is admissible and may be considered for its
bearing on any matter for which the evidence is relevant.”1476 Additionally, the court found the
evidence elicited at trial to be “concise, direct, noninflamatory, and of the nature similar to that
1464
     Id.
1465
     Id.
1466
     Id.
1467
     Id. at 300.
1468
     Id. at 301 (quoting Maryland v. Craig, 497 U.S. 836, 853 (1990)).
1469
     Id.
1470
     Id.
1471
     Id. at 299, 303.
1472
     State v. Reyes, 744 N.W.2d 95, 98 (Iowa 2008).
1473
     Id.
1474
     Id.
1475
     Id. at 97, 99.
1476
     Id. (quoting IOWA CODE § 701.11 (2005)).



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in the underlying charge,” not likely to incite “overmastering hostility” towards Reyes.1477 Thus,
the court concluded the evidence was not subject to exclusion under Iowa Code section
701.11(1) on the grounds that its “probative value was substantially outweighed by the danger of
unfair prejudice, . . . confusion of issues, or misleading the jury . . . .”1478 The court also
concluded that a victim’s direct testimony regarding a prior assault, as a matter of law, is
sufficient “clear proof” to meet the requirements of the Iowa Code.1479

        The court also held that Reyes’s due process rights were not violated by the admission of
evidence of prior sexual abuse involving the same victim, AG, because it was “not offered to
show a general propensity to be attracted sexually to young girls,” but rather “to demonstrate the
nature of [his] relationship and feelings towards a specific individual,” AG.1480 Additionally, the
court held that Reyes’s fundamental right to a fair trial was not jeopardized by the admission of
evidence of a prior sexual abuse involving AG because it tended to show the nature of the
relationship between Reyes and AG.1481

        Finally, the court held that Reyes was not denied effective assistance of counsel regarding
his attorney’s failure to object to a jury instruction given, which instructed the jury that it could
only use the evidence of prior sexual abuse to show Reyes had a sexual desire toward AG, and
not that he actually committed the crime.1482 However, the court held there was not enough
evidence in the record to rule on Reyes’s other ineffective assistance of counsel claim—the
failure to request a limiting instruction in connection with admission of his taped interview with
police at his home—on direct appeal, and preserved the issue for post-conviction relief
proceedings.1483

State v. Decker, 744 N.W.2d 346 (Iowa 2008).
        Errol Edward Decker was charged with attempted murder, first degree burglary, and
willful injury of his ex-girlfriend, Amy McNeal.1484 The case was tried to the bench, and Decker
was convicted on all counts.1485 The overarching issue presented to the Iowa Supreme Court
here was “whether a videotaped interrogation, suppressed during the State’s case-in-chief for
constitutional violations, can be admitted as rebuttal evidence to combat an insanity defense.”1486
At trial, the court permitted the videotape to be admitted for the limited purpose of showing
Decker’s demeanor shortly after the events had taken place.1487 Decker asserted that the
admission of the videotape violated his Fifth and Fourteenth Amendment rights because it

1477
     Id. at 100.
1478
     Id. 99, 100 (quoting IOWA CODE § 701.11(1)).
1479
     Id. at 101 (citing State v. Jones, 464 N.W.2d 241, 243 (Iowa 1990)).
1480
      Id. at 103. Recent Iowa case law demonstrates that prior sexual abuse is admissible “to show passion or
propensity for illicit sexual relations with the particular [victim],” but not different victims, as long as it is “relevant
and material to a legitimate issue in the case other than a general propensity to commit wrongful acts.” Id. at 102
(citing State v. Sullivan, 697 N.W.2d 19, 25 (Iowa 2004); State v. Mitchell, 633 N.W.2d 295, 300 (Iowa 2001); State
v. Spaulding, 313 N.W.2d 878, 880 (Iowa 1981)).
1481
     Id. at 102.
1482
     Id. at 103.
1483
     Id. at 103–04.
1484
     State v. Decker, 744 N.W.2d 346, 349 (Iowa 2008).
1485
     Id. at 350, 353.
1486
     Id. at 349.
1487
     Id.



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amounted to an impermissible use of the invocation of his right to remain silent as evidence of
his sanity.1488

        The Iowa Supreme Court conducted a de novo review to determine whether the district
court properly admitted the interrogation videotape in its entirety, and focused on two sub-
issues.1489 First, the court recognized part of the video contained clearly inadmissible evidence
of Decker’s invocation of his right to remain silent, not admissible to prove sanity.1490 Second,
the court found that the video contained nontestimonial evidence—Decker’s fidgeting and slow
speech pattern—which was admissible, as well as testimonial evidence—any communicative
response made after Decker asserted his Miranda rights—which was not admissible.1491
Because the video contained both admissible and inadmissible evidence Decker argued that it
would be “extremely difficult for a finder of fact to separate out the permissible from the
impermissible evidence,” and thus required reversal.1492 The court, however, held that because
the case was tried to a judge rather than a jury, the video was admitted for demeanor evidence
only and there was no indication the court considered any inadmissible evidence in drawing its
conclusion, the decision of the district court should be affirmed.1493 In drawing this conclusion,
the court recognized that if the case had been tried to a jury, Decker would have had a much
stronger argument; however, because it was “tried to the court we assume that the court
considered the tape solely for the limited purpose for which it was offered . . . [t]hus the mere
fact that the tape also contained his Miranda invocations and testimonial demeanor evidence . . .
did not make [it] wholly inadmissible.”1494

State v. Hansen, 750 N.W.2d 111 (Iowa 2008).
       Eric Hansen was charged and convicted with enticement of a minor.1495 A police officer
posed as “Suzi”, a fifteen year-old girl, in an internet chat room.1496 Hansen, who was twenty-
three years old at the time, approached Suzi as Rick H. and asserted that he was nineteen years-
old and interested in meeting Suzi.1497 Hansen inquired “what was in it for him” to drive from
Des Moines to Cedar Falls and indicated that Suzi’s friend “could join in.”1498 Hansen then
requested to speak to Suzi on the phone.1499 During their phone conversation Hansen discussed
“messing around” and later on line stated: “Trust me. I’ll bring a full pack.”1500 Hansen made
arrangements the next day to meet Suzi at Wal-Mart in Cedar Falls and provided a description of
his vehicle.1501 Hansen appeared at Wal-Mart as planned and attempted to call Suzi from a pay



1488
     Id. at 349.
1489
     Id. at 353, 354.
1490
     Id. (citing Wainwright v. Greenfield, 474 U.S. 284, 292 (1986)).
1491
     Id. at 354, 355.
1492
     Id. at 355.
1493
     Id. at 357.
1494
     Id. at 356.
1495
      State v. Hansen, 750 N.W.2d 111, 111 (Iowa 2008).
1496
     Id.
1497
     Id.
1498
     Id. at 112.
1499
     Id.
1500
     Id.
1501
     Id.



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phone.1502 He was arrested as he exited Wal-Mart and admitted that “the pack” referred to
condoms.1503 Hansen did not have any condoms on his person.1504

       Hansen was charged with enticing away a minor in violation of Iowa Code section
710.10(2) (2005).1505 The case was tried to the court on the minutes of testimony and Hansen
was found guilty.1506 Hansen appealed arguing that there was not substantial evidence to support
his conviction and at the most he was guilty of attempted enticement.1507 The Court of Appeals
reversed Hansen’s conviction and remanded with instructions to enter a finding of guilt for
attempted enticement.1508 The Supreme Court affirmed the Court of Appeals.1509

        The court explained that evidence is substantial if it would convince a rational trier of
fact that the defendant is guilty beyond a reasonable doubt.1510 The statute states that a person
commits a Class D felony when a person with intent to commit an illegal act upon a minor under
the age of sixteen entices away a minor or a person reasonably believed to be a minor; and a
person commits an aggravated misdemeanor when with the intent to commit an illegal act upon a
minor under the age of sixteen, the person attempts to entice away a minor.1511 The statute does
not define “entice.”1512 The court explains that the meaning of “entice” is readily ascertainable
by giving the word its ordinary and usual meaning as described in State v. Osmundson.1513 The
court states that using Black’s Law Dictionary’s definition of “entice” eliminates any distinction
between the crimes enticement and attempted enticement.1514 The court instructs that when
defining “entice” for purposes of Code § 710.10 the Webster’s Dictionary definition is more
succinct.1515 The court stated that the word “entice” focuses on the defendant’s actions, not what
the victim thought.1516 Hansen failed to lure or tempt away a minor or someone reasonably
believed to be a minor and is thus guilty of attempted enticement.1517

State v. Tonelli, 749 N.W.2d 689 (Iowa 2008).
       Tonelli and two other codefendants, George and Nolte, were charged with providing
alcohol to minors and providing alcohol to a minor which resulted in death.1518 The State filed a
motion for adjudication of a law point regarding application of co-conspirator exception to rule
against hearsay. 1519 The district court rule that “conspiracy” under the evidentiary rules could

1502
      Id.
1503
      Id.
1504
      Id.
1505
      Id.
1506
      Id.
1507
      Id.
1508
      Id.
1509
      Id.
1510
      Id.
1511
     Id. citing Iowa Code § 710.10.
1512
      Id. at 113.
1513
      Id. citing State v. Osmundson, 546 N.W.2d 907, 910 (Iowa 1996).
1514
      Id. at 113-14.
1515
      Id. at 114.
1516
      Id.
1517
      Id.
1518
      State v. Tonelli, 749 N.W.2d 689, 690 (Iowa 2008).
1519
      Id. at 691.



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only be established with evidence that declarant was involved in conspiracy to commit
aggravated misdemeanor or felony. 1520 The Supreme Court took this case on discretionary
review. 1521

        In late 2005, Tonelli, George, and Nolte planned a house party for December 2 at their
home in Ames, IA. 1522 The three planned the party by putting an invitation on an internet site,
Facebook, by purchasing two beer kegs, by making “Jell-O” shots, and by making arrangements
to collect money at the door and split the proceeds. 1523 The State claimed that the men knew
there were underage persons at the party and that they were serving alcohol to minors. 1524 One
of the underage guests was Shanda Munn. 1525 Munn drove home from defendants’ party and
killed Kelly Laughery by striking Laughery with her car. 1526

        During a pretrial hearing on a motion to sever the trials, the State stated that intended to
offer testimony of coconspirators Galante and Campbell pursuant to Iowa Rule of Evidence
5.801(d)(2)(E), the exception to the hearsay rule for co-conspirator statements. 1527 Defendants’
counsel asserted that the definition of “conspiracy” in the co-conspirator exception to the hearsay
rule was limited by the criminal definition of “conspiracy” in Iowa Code section 706.1. 1528 In
contrast, the State claimed “conspiracy” for the purposes of the co-conspirator exception to the
hearsay rule should be defined to include “a combination or agreement between two or more
persons to accomplish a criminal or unlawful act, or to do a lawful act in an unlawful
manner.”1529

        The Court noted that a party does not have to be charged with the crime of conspiracy for
the co-conspirator exception to the hearsay rule to apply. 1530 The Court agreed with the State
that the definition of “conspiracy” in the hearsay rule exception was broad enough to include
lawful conduct done in an unlawful manner. 1531 The Court also recognized that this was a case
of first impression. 1532 The Court noted that the evidentiary co-conspirator exception applied
also in a cause of action for civil conspiracy. 1533 If the evidentiary rule applies in the civil
context, the Court analogized that it should also apply in cases where the crime the defendant has
committed does not rise to the level of an aggravated misdemeanor or felony. 1534 The
defendants claimed that there could be no conspiracy to plan a party because the planning of a
party is not unlawful in itself. 1535 The Court rejected that argument and stated that the co-

1520
     Id.
1521
     Id.
1522
     Id. at 690.
1523
     Id.
1524
     Id.
1525
     Id.
1526
     Id.
1527
     Id. at 691.
1528
     Id.
1529
     Id. (citing State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998)).
1530
     Id. (citing State v. Lain, 246 N.W.2d 238 (Iowa 1976)).
1531
     Id. at 692 (citing Ross, 573 N.W.2d at 914).
1532
     Id.
1533
     Id.
1534
     Id.
1535
     Id. at 693.



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conspirator exception applied to conspiracies to commit an unlawful act, or to commit a lawful
act in an unlawful manner. 1536 The Court did not decide whether or not a conspiracy was present
here or whether the statements of Galante and Campbell the State wished to admit under the
hearsay exception for co-conspirator statements should be admitted. 1537 Rather, the Court left
that determination up to the trial court and merely found that the State did not have to show a
conspiracy to commit an aggravated misdemeanor or felony in order to invoke the co-conspirator
exception to the hearsay rule. 1538

                                  SECTION 3.14: JURY INSTRUCTIONS

State v. Smith, 739 N.W.2d 289 (Iowa 2007).
        Christopher Barron Smith was traveling from Nebraska to Illinois with Colteen Dineen
and Jeremy Clark in a stolen Navigator with stolen handguns, rifles, and shotguns.1539 At the
time, Smith did not know that the Navigator or the guns were stolen.1540 While traveling through
Iowa, Pottawattamie County deputy sheriff Brian Loomis pulled the Navigator over for doing
eighty-six in a sixty-five.1541 Loomis approached the vehicle on the passenger side, asked
Dineen’s license and registration.1542 Dineen told Loomis he did not have his license, but gave
Loomis his correct name, social security number, and address, and had Smith hand Loomis the
registration.1543 At this time, Dineen told Smith and Clark that the guns were stolen, and the
three discussed their “options.”1544 When Loomis re-approached the Navigator, Smith or Clark
handed Dineen a gun, with which he shot Loomis four times, and then sped away.1545

        Smith was charged with attempt to commit murder, willful injury causing serious injury,
assault on a peace officer while using or displaying a dangerous weapon, assault while
participating in a felony, and theft in the first degree. The jury instruction stated:

        When two or more persons act together and knowingly commit a crime, each is
        responsible for the other’s acts during the commission of the crime or escape from
        the scene. The Defendant’s guilt is the same as the other person’s(s’) unless the
        act(s) could not reasonably be expected to be done in aiding the commission of
        the crime.1546

In instructing the jury, the court allowed the “jury to return a general verdict for each charge.”1547
It did not ask the jury to state “whether it was finding Smith guilty as a principal, an aider and
abettor, or because of his joint criminal conduct.”1548 The jury found Smith guilty of “assault
1536
     Id. at 694.
1537
     Id.
1538
     Id.
1539
     State v. Smith, 739 N.W.2d 289, 290–91 (Iowa 2007).
1540
     Id. at 290.
1541
     Id. at 291.
1542
     Id.
1543
     Id.
1544
     Id.
1545
     Id.
1546
     Id. at 292–93.
1547
     Id. at 293.
1548
     Id.



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with intent to inflict serious injury, willful injury causing serious injury, assault on a peace
officer while using or displaying a dangerous weapon, and assault while participating in a
felony.”1549

        Smith appealed the jury instruction, claiming the district court erred when it overruled his
objection to the joint criminal conduct jury instruction.1550 Smith argued that because he “did not
knowingly participate in a previous, underlying offence that constituted a different crime in
furtherance of Dineen’s offenses,” there was no evidence to support the submission of the joint
criminal conduct jury instruction.1551 The Iowa Supreme Court reviewed Smith’s challenge for
errors at law.1552 The court stated that it would “uphold [Smith’s] guilty verdict if substantial
evidence support[ed] the verdict.”1553

        In State v. Satern, the court stated that “[j]oint criminal conduct . . . contemplates two
acts—the crime the joint actor has knowingly participated in, and a second or resulting crime that
is unplanned but could reasonably be expected to occur in furtherance of the first one.”1554 To
find Smith guilty by reason of joint criminal conduct, the State must have proved: (1) Smith
acted in concert with another; (2) Smith knowingly participated in a public offense; (3) “a
‘different crime’ [was] committed by another participant in furtherance of [Smith’s] offense”;
and (4) the commission of the different crime was reasonably foreseeable.1555

        The court concluded there was not sufficient evidence to submit the charges under the
theory of joint criminal conduct because Smith did not “knowingly participate in a public offense
that was different from the crimes committed by Dineen when he shot” deputy Loomis.1556 The
court stated that “knowingly participating in the crime of assault on a police officer while using
or displaying a dangerous weapon is not a different crime to support a conviction for assault on a
police officer while using or displaying a dangerous weapon.”1557 Additionally, when Smith
assisted Dineen by giving him the gun used to shoot deputy Loomis, it was an act done directly
toward the commission of each offenses for which the jury convicted Smith.1558 Thus, handing
Dineen the gun did not constitute a separate crime from those with which Smith was charged.1559

        In State v. Jackson, the court stated that it will not reverse a verdict when the district
court erroneously gives a joint criminal conduct instruction “as long as there is no opportunity
for the defendant to be found guilty based on anything other than the defendant’s own conduct as
a principal or aider and abettor of the crime charged.”1560 Here, the evidence showed there were
crimes committed—possession of stolen goods and methamphetamine—apart from the shooting
1549
     Id. at 290.
1550
     Id. at 292.
1551
     Id. at 293.
1552
     Id.
1553
     Id. (“Evidence is substantial if, in the light most favorable to the State, the evidence can convince a rational jury
the defendant is guilty of the charged crime beyond a reasonable doubt.”).
1554
     Id.(quoting State v. Satern, 516 N.W.2d 839, 843 (Iowa 1994)).
1555
     Id. at 294 (citing State v. Jefferson, 574 N.W.2d 268, 277 (Iowa 1997)).
1556
     Id.
1557
     Id.
1558
     Id.
1559
     Id.
1560
     Id. (quoting State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998)).



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that involved.1561 Thus, because it was possible that the jury could have “erroneously relied on
these collateral offenses to support a conviction under the joint criminal conduct theory,” the
court reversed the convictions and remanded the case for a new trial.1562

       Finally, the court stated that when giving jury instructions on joint criminal conduct, it
should include the elements of the joint criminal conduct in the instructions, rather than using the
general language.1563 Additionally, a court “should instruct the jury on the separate public
offense supporting a theory of joint criminal conduct.”1564

State v. McCall, 754 N.W.2d 868 (Iowa App. 2008).
        McCall was convicted by jury of criminal mischief in the first degree and burglary in the
third degree.1565 McCall appealed on the ground that the jury was given two improper revised
jury instruction in response to a question during deliberations.1566
        McCall and his wife were in the process of getting a divorce and a protective order was in
       1567
place.      McCall’s wife was living with her children in the couple’s home. McCall called his
wife at work and asked if he could stay at the home, to which his wife replied, “No.” 1568 When
McCall’s wife came home, the home had been broken into and was destroyed inside. 1569 While
officers were at the residence, McCall called and made some incriminating statements.
        Jury instructions at the trial required the State to prove “the Defendant broke into the
residence” and “did not have permission or authority to break into the residence,” to convict him
on the burglary charge.1570 Further jury instructions provided a definition of “to enter,” but did
not provide a definition for “to break.” 1571 Neither side objected to the set of instructions. 1572
During deliberations, the jury came back and asked if it would be breaking and entering if
McCall received a key from another person, or just trespassing. 1573 The trial judge conducted a
hearing to hear the opinions of both the State and McCall on how to respond to the jury’s
question. 1574 The State wanted a new instruction to be given for burglary that required the State
prove the defendant “broke into or entered the residence.” 1575 McCall objected because the State
had waived the right to any objection, and wanted the jury advised to re-read the instructions. 1576
The judge provided the jury with two new instructions that required the State to prove
“defendant entered or broke into the residence” without “permission or authority to enter the
residence.”1577 The jury returned a verdict of guilty.1578

1561
     Id. at 295.
1562
     Id.
1563
     Id.
1564
     Id.
1565
     State v. McCall, 754 N.W.2d 868, 870 (Iowa App. 2008).
1566
     Id.
1567
     Id.
1568
     Id.
1569
     Id.
1570
     Id.
1571
     Id.
1572
     Id.
1573
     Id. at 870-71.
1574
     Id. at 871.
1575
     Id.
1576
     Id.
1577
     Id.



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        The decision of the judge to respond to the jury was reviewed on an abuse of discretion
standard, and the content of the instruction was review for errors at law. 1579 The Court said there
had been no waiver of any right to object. 1580 All the State had done is respond to a judicially
initiated inquiry about how to respond to the jury’s question. 1581 The Court found the judge’s
decision to respond to the jury’s question with another instruction to be proper. 1582 Further, the
revision to the instruction did not expand the State’s theory of the case, as McCall claimed. 1583
The addition of the “entering” language was legally synonymous with the “breaking” language
included in the original instruction. 1584 Under burglary law, the definitions “breaking” and
“entering” embody one another. 1585 The judge’s revised instruction merely clarified that
breaking included any entry into the residence. 1586 The instruction did not add an alternative
method of committing the crime of burglary, as McCall had asserted. 1587 Last, the instruction
was fair to both sides, since it merely clarified the law. 1588 The Court affirmed McCall’s
convictions. 1589

                                      SECTION 3.15: ETHICAL ISSUES

Iowa Sup. Ct. Att’y Disc. Bd. v. Kirlin, 741 N.W.2d 813 (Iowa 2007).
        This proceeding was instituted against attorney, Kirlin, after complaints from two
clients.1590 In the first matter with client, Smith, Kirlin took Smith’s worker’s compensation case
in October 2000.1591 In April of 2001, the insurer offered to settle, but Kirlin wanted his client,
Smith, to get an independent medical examination and a vocation rehabilitation evaluation;
neither Smith nor Kirlin ever scheduled those examinations.1592 Also, Kirlin never commenced
the proceedings of the case with the workers’ compensation division.1593 Kirlin also represented
Smith in a personal injury case resulting from a motor vehicle accident.1594 Kirlin had many
concerns about this case including Smith’s physical and mental health conditions, as well as her
prior accidents, and the possibility that Smith intended to provide a witness that would commit
perjury.1595 Kirlin told Smith that he was working on a settlement, but never prepared a
proposal, and then Kirlin terminated the relationship eighteen months after agreeing to take the
personal injury action.1596 On August 8, 2002, when terminating the attorney-client relationship,
Kirlin sent a letter to “Smith stating the statute of limitations would run on her workers’
1578
     Id.
1579
     Id.
1580
     Id.
1581
     Id.
1582
     Id. at 872.
1583
     Id. at 873.
1584
     Id.
1585
     Id. (citing Black’s Law Dictionary 201 (8th ed. 2004)).
1586
     Id.
1587
     Id.
1588
     Id.
1589
     Id.
1590
     Iowa Sup. Ct. Att’y Disc. Bd. v. Kirlin, 741 N.W.2d 813, 814 (Iowa 2007).
1591
     Id.
1592
     Id.
1593
     Id.
1594
     Id.
1595
     Id.
1596
     Id.



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compensation claim in November 2004 and on her personal injury claim in March 2003.”1597 A
few months later, Smith filed a complaint.1598 That complaint was sent on to the Iowa Supreme
Court Attorney Disciplinary Board (“Board”) after Kirlin did not acknowledge the inquiries from
the Polk County Bar Association Ethics Committee.1599 The Board also sent Kirlin letters and
Kirlin failed to respond.1600

         In the second matter concerning Kirlin’s client, Mendenhall, Kirlin did not respond to the
client.1601 The attorney-client relationship began in July of 2002, and Kirlin moved his practice
to his home in April 2003.1602 Mendenhall claimed the more time passed, the more difficulty he
had in reaching his attorney.1603 After Kirlin’s practice was relocated to his home, Mendenhall
gave Kirlin releases for his medical records.1604 However, that was as far as Kirlin ever got in
the case. Kirlin did not believe that Mendenhall had a strong case, but did not discuss that with
his client, and Kirlin never filed a workers’ compensation claim within the statutory
limitations.1605 Mendenhall filed a complaint, and Kirlin failed to respond to the notice of that
complaint.1606 Because of his failure to respond, the court suspended Kirlin’s law license
temporarily in October 2005.1607

        Kirlin did respond to the complaints in December 2006, and also in January 2007 self-
reported that he had failed to notify two clients about his suspension.1608 Kirlin admitted to
ethics violations, but also testified that he had depression and ADHD, and also discovered his
son had ADHD during the time period in question.1609 After the hearing, the Grievance
Commission the Iowa Supreme Court (“Commission”) decided Kirlin’s actions warranted a
ninety-day suspension, medical certifications demonstrating Kirlin’s fitness to practice law, and
the requirement that Kirlin would be monitored by a licensed attorney on at least a monthly
basis.1610

        The court reviewed Kirlin’s case de novo.1611 First, the court looked at the violation of
DR 6-101(A)(3) concerning professional neglect.1612           The court concluded Kirlin did
demonstrate neglect in several instances including his failure to respond to Mendenhall’s
inquiries and his failure to file both Smith and Mendenhall’s workers’ compensation cases.1613
The court also concluded the violation of the professional neglect rule led to a violation of DR 1-

1597
     Id. at 814–15.
1598
     Id. at 815.
1599
     Id.
1600
     Id.
1601
     Id.
1602
     Id.
1603
     Id.
1604
     Id.
1605
     Id.
1606
     Id.
1607
     Id.
1608
     Id.
1609
     Id. at 816.
1610
     Id. at 816–17.
1611
     Id. at 817 (citations omitted).
1612
     Id. (citing Iowa Code of Professional Responsibility DR 6-101(A)(3)).
1613
     Id.



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102(A)(5) which states “‘A lawyer shall not . . . [e]ngage          in conduct that is prejudicial to the
administration of justice.’”1614 The court found Kirlin also        violated Iowa Court rules by failing
to notify his clients of his temporary suspension which             is also a violation of professional
misconduct rules that prohibit lawyers from acting in                a way that is prejudicial to the
administration of justice.1615

        Finally, the court had to determine the appropriate discipline in this instance.1616 The
court recognized that they must look at both mitigating and aggravating factors while also
considering factors such as “‘the nature of the alleged violations, the need for deterrence,
protection of the public, maintenance of the reputation of the [bar] as a whole, and the
respondent’s fitness to continue in the practice of law.’”1617 The court believed Kirlin’s main
infraction was neglect that did prejudice at least one of his clients.1618 The court also considered
that Kirlin had been practicing for a number of years and has received a prior reprimand.1619
However, the court also took Kirlin’s depression, his ADHD, and his son’s ADHD into account
as mitigating factors since these facts were related to his neglect problems, and Kirlin did make
recovery efforts.1620 The court believed the above facts were significant in a case where the
attorney’s problems that caused the ethical infractions were being resolved.1621 The court
explained that in this type of situation an attorney’s recovery eliminates the necessity for
“deterrence, public protection, and vindication of the profession.”1622 After considering all the
above facts and prior case law, the court determined Kirlin’s appropriate sanction was a sixty-
day suspension, and a medical evaluation of Kirlin’s fitness to practice law within forty days of
the suspension and before reinstatement.1623 The court declined to include the Grievance
Commission’s monitoring recommendation.1624

Iowa Sup. Ct. Att’y Disc. Bd. v. Wintroub, 745 N.W.2d 469 (Iowa 2008).
        In 2004, Iowa suspended attorney Wintroub’s law license after his Nebraska license was
suspended for unethical conduct.1625 During that proceeding, Wintroub denied the allegations
and asserted the affirmative defenses of laches and estoppel, and claimed the violations were due
to a medical condition that had since been resolved.1626 Two years later, the Iowa Supreme
Court Disciplinary Board (“Board”) filed three new counts against Wintroub for potential
violations that had occurred during the same time period as the violations that had led to the




1614
     Id. (quoting Iowa Sup. Ct. Att’y Disc. Bd. v. Kadenge, 706 N.W.2d 403, 408–09 (Iowa 2005)).
1615
     Id.
1616
     Id.
1617
     Id. at 817–18 (citing Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Freeman, 603 N.W.2d 600, 603 (Iowa
1999) (further citations omitted)).
1618
     Id. at 818.
1619
     Id.
1620
     Id.
1621
     Id.
1622
     Id.
1623
     Id. at 819.
1624
     Id.
1625
     Iowa Sup. Ct. Att’y Disc. Bd. v. Wintroub, 745 N.W.2d 469, 471 (Iowa 2008).
1626
     Id.



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2004 suspension.1627 These counts alleged Wintroub had committed improper business deals
with clients, neglected a client matter, and improperly managed client accounts.1628

        The first alleged violation resulted from dealings with a client, Bergman.1629 Wintroub
and Bergman were friends and throughout the years Wintroub represented Bergman in litigation,
but never for business or financial matters.1630 Wintroub then formed a corporation and, while
representing Bergman in two matters, Wintroub sold Bergman shares of stock in the
company.1631 In so doing, Wintroub never told Bergman to hire his own attorney for the
matter.1632 Bergman also loaned Wintroub money shortly thereafter.1633 Before the loan,
Wintroub did make many disclosures to Bergman, but never advised him to seek counsel from
another attorney.1634 Around a year later, Bergman wanted Wintroub to repay the loan, but
Wintroub could not do so.1635 Bergman also terminated the attorney-client relationship with
Wintroub over the Moyer case and then hired a former associate of Wintroub’s firm to represent
him.1636 That attorney, Sens, asked Wintroub to give him the file on the matter four times
spanning four months, but Bergman refused.1637 Sens finally had to file a declaratory judgment
action to gain the file.1638 The file was turned over, and Wintroub filed for bankruptcy which
ended Bergman’s chance to collect on the personal loan.1639 The Grievance Commission of the
Iowa Supreme Court (“Commission”) determined this did amount to an ethical violation.1640

        In the second alleged violation, a client, Pack, filed a complaint against Wintroub for
failing to designate an expert in the statutory time limit.1641 Because the expert was not
designated, the client’s action was dismissed.1642 The Commission dismissed this claim after
finding it did not result in an ethical violation.1643

        In the third potential violation, Wintroub had his client, Van Winkle, sign a contingency
fee agreement, but Wintroub did not sign it.1644 Almost a year later, Wintroub withdrew from
that representation.1645 However, the next day Wintroub met with Van Winkle and had her sign
a new contract that reduced the contingency fee, but also required her to pay $5,000 immediately
for services already rendered.1646 The Commission also found this was an ethical violation.1647

1627
     Id.
1628
     Id.
1629
     Id.
1630
     Id. at 471–72.
1631
     Id. at 472.
1632
     Id.
1633
     Id.
1634
     Id.
1635
     Id.
1636
     Id.
1637
     Id.
1638
     Id.
1639
     Id.
1640
     Id. at 473.
1641
     Id. at 472.
1642
     Id.
1643
     Id. at 473.
1644
     Id. at 472–73.
1645
     Id. at 473.
1646
     Id.



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        The Commission had determined based on these violations that Wintroub should be
suspended for two years.1648 However, the Commission also found that Wintroub had served
those two years based on other violations during that same time period.1649 They requested the
suspensions run concurrently, so Wintroub could now apply for reinstatement of his license.1650
The court reviewed these actions de novo.1651 The court required the Board to prove ethical
violations by a convincing preponderance of the evidence.1652

        First, the court reviewed Wintroub’s business dealings with Bergman.1653 The court
stated that when an attorney acts with conflicting interests, the attorney must prove good faith
and full disclosure.1654 Expanding on this, the court remarked that full disclosure requires the
attorney to explain every fact that a person “‘should know to make an intelligent decision’”1655
The court also explained that attorneys that are acting with a conflict of interest must advise the
party to obtain independent counsel and explain the benefits of having that counsel.1656 In the
case at bar, Wintroub did make adequate disclosures about the personal loan, but did not make
adequate disclosures concerning Bergman’s investment in the company.1657 Wintroub failed to
fully disclose the financial situation of the company.1658 Also, Wintroub did not advise Bergman
to obtain an independent attorney in either situation.1659 Wintroub failed in his burden to prove
the transactions with Bergman were sufficient despite his conflict of interest, so the court found
Wintroub did violate DR 5-104(A), the rule discussing business transactions with clients, in both
business transactions with Bergman.1660 The court also found Wintroub violated DR 9-
102(B)(4), concerning delivery of client’s property, when he failed to return the file to
Bergman’s new representation.1661

       Concerning the second count, the court agreed with the Commission that a failure to meet
an expert deadline does not constitute a violation of ethics rules.1662 The court also found there
was not enough evidence that Wintroub breached his ethical duty when he required his client,
Van Winkle, to pay $5,000 because there was no evidence that the payment was unearned.1663




1647
     Id.
1648
     Id.
1649
     Id.
1650
     Id. at 473–74.
1651
     Id. at 474.
1652
     Id.
1653
     Id.
1654
     Id. (citing Comm. on Prof’l Ethics & Conduct v. Mershon, 316 N.W.2d 895, 899 (Iowa 1982)).
1655
     Id. (quoting Mershon, 316 N.W.2d at 898).
1656
     Id.
1657
     Id.
1658
     Id.
1659
     Id. at 474–75.
1660
     Id.
1661
     Id. at 475.
1662
     Id.
1663
     Id. at 476.



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       The court then discussed Wintroub’s affirmative defenses of laches and estoppel.1664
Wintroub also claimed that the complaints currently before the disciplinary board occurred at the
same time as charges against him in Nebraska for which his license was suspended in both
Nebraska and Iowa.1665 Wintroub believed if the current matters had been considered with the
other charges, he only would have received one suspension, instead now facing the possibility of
an additional suspension.1666

        The court took these arguments into account, but quickly dismissed the use of the laches
and estoppel claims.1667 First, the court found the laches claim failed because there was no proof
of prejudice from the delay in proceedings.1668 Next, the court found the estoppel argument
failed since the Iowa authorities never made a representation to Wintroub, Wintroub never relied
on any representation, nor did he change his actions based on a representation.1669 The court still
believed that Wintroub’s argument concerning the delay in his disciplinary proceeding had
merit.1670 They found Wintroub was severely punished for his conduct, and that Wintroub had
resolved some medical issues that may have provoked his misconduct.1671 There were also
surrounding circumstances the court considered, including the possibility that Nebraska would
impose a reciprocal sanction if Iowa lengthened Wintroub’s suspension.1672 The court also
considered mitigating factors including that Wintroub had served his suspension in good faith
and resolved his medical problems.1673 Based on those factors, the court issued a public
reprimand rather than a suspension.1674 The court decided some sort of sanction was necessary,
but found the public reprimand to be appropriate.1675

Iowa Sup. Ct. Att’y Disc. Bd. v. Kress, 747 N.W.2d 530 (Iowa 2008).
        Attorney and professor, Kress, taught at the University of Iowa College of Law.1676
Kress taught for many years and was nationally recognized, especially in the field of mental
health law.1677 Kress had medical and psychological problems.1678 Kress suffered from bipolar
disorder, physical health complications which included sleep apnea and diabetes mellitus.1679 In
April of 2004, Kress ran out of the medication for his bipolar disorder, and Kress’s significant
other who was a mental health advocate stated that Kress suffered from delusions and had the
inability to track during that time.1680 On Monday April 19th, Kress’s students were to fill out


1664
     Id.
1665
     Id.
1666
     Id.
1667
     Id.
1668
     Id.
1669
     Id.
1670
     Id.
1671
     Id.
1672
     Id. at 477.
1673
     Id.
1674
     Id.
1675
     Id.
1676
     Iowa Sup. Ct. Att’y Disc. Bd. v. Kress, 747 N.W.2d 530, 532 (Iowa 2008).
1677
     Id. at 533.
1678
     Id.
1679
     Id.
1680
     Id.



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faculty evaluations. These evaluations were to be confidential.1681 Kress had two classes that
day, one class filled out evaluations and the process was entirely normal.1682 During the evening
class, which was a mental health class with ten students, Kress passed out the evaluations
himself, gave a lecture on the importance of the evaluations and the necessity for him to receive
good feedback, and remained in the room after handing out the evaluations.1683 The student that
testified claimed Kress acted normally throughout this process.1684 Kress left the room while the
students filled out evaluations after his research assistant asked him to leave.1685 The students
then discussed whether they should fill out the evaluations honestly or inflate the numbers.1686
As the students came out of the room, Kress was right outside the door.1687 Kress than made his
research assistant bring the evaluations to the secretary’s office rather than turning them in the
next morning when the secretary would be there.1688 The students reported this incident the next
day and the administrators investigated.1689 The investigation revealed that three evaluations
were replaced, two were altered, and two were unchanged.1690 This raised Kress’s score from a
2.86 which is rather low, to a 4.86 which is extremely high.1691

        Kress claimed his actions were a result of mental and physical illnesses that should
excuse or at least mitigate his conduct.1692 Kress stated that on the night in question, he
remembered the class and placing the evaluations in the office, but then hallucinated.1693 He
believed conspirators had forced the students to change their answers so he had to change them
back to correct the problem.1694 Kress claimed the delusion led him to believe the evaluations
were a matter of life and death or good and evil.1695 Kress also stated he did not remember
changing the evaluations, but did remember checking his blood sugar level which was at the
highest point Kress had ever experienced.1696 There was no record of that level, but there was
evidence that after Kress returned home his blood sugar was at 403 and rose to 548 within an
hour.1697

       The Board offered a psychiatric report by Dr. Lembke which averred the situation was
probably not caused by delirium although it was plausible.1698 Lembke stated that Kress knew
what he was doing in the classroom.1699 She also stated everything was done in a purposeful and


1681
     Id.
1682
     Id.
1683
     Id. at 533–34.
1684
     Id.
1685
     Id. at 534.
1686
     Id.
1687
     Id.
1688
     Id.
1689
     Id.
1690
     Id.
1691
     Id.
1692
     Id.
1693
     Id.
1694
     Id. at 534–35.
1695
     Id. at 535.
1696
     Id.
1697
     Id.
1698
     Id.
1699
     Id.



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methodical manner that was inconsistent with a person acting under a delusion or with
fluctuating consciousness.1700

         Kress submitted multiple reports and opinions by various experts.1701 Dr. Michaelson
stated the high blood sugar could cause delirium and hallucinations, but the person would appear
to be disturbed.1702 Michaelson claimed Kress suffered from delirium and did not know the
difference between right and wrong.1703 Next, Dr. Fisher, Kress’s therapist, concluded based on
discussions with Kress that the incident was caused by delirium.1704 Dr. Fisher also criticized Dr.
Lembke’s findings and failure to consider Kress’s history of brain injury and cognitive or
amnesic episodes.1705 Then Dr. LeBlond, who also treated Kress, stated that Kress’s blood sugar
could cloud Kress’s judgment.1706 Finally, Dr. First claimed Kress’s bipolar disorder was related
to this incident, and the hallucinations and delusions were not inconsistent with Kress’s apparent
consciousness during his evening class.1707

        Based on this evidence, the Grievance Commission of the Iowa Supreme Court
(“Commission”) recommended suspension of Kress’s law license with no possibility of
reinstatement for one year.1708 They also recommended that Kress complete a mental health
evaluation before his license could be reinstated.1709 The Board had the burden to prove the
violations by a convincing preponderance of the evidence.1710 The court reviewed the matter de
novo.1711

        Kress claimed that there is an intent requirement for certain ethical violations.1712 The
court agreed that intent is an element for misrepresentation and for fraud, dishonesty, and
deceit.1713 Intent can be shown when “the actor intends the natural and logical consequences of
his or her acts.”1714 However, the court continued that once an intentional act is shown, then
insanity is not a defense to the violation.1715 The court stated they would not accept affirmative
defenses because the primary purpose for discipline is to protect the public, not to punish the
attorney.1716 The public needs protection regardless of the mental health status of the
attorney.1717



1700
     Id.
1701
     Id. at 536.
1702
     Id.
1703
     Id.
1704
     Id.
1705
     Id.
1706
     Id.
1707
     Id.
1708
     Id. at 537.
1709
     Id.
1710
     Id.
1711
     Id.
1712
     Id. at 538.
1713
     Id.
1714
     Id.
1715
     Id.
1716
     Id. at 539 (citations omitted).
1717
     Id. (citations omitted).



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        The court first addressed the possible violation of DR 1-102(A)(6), conduct adversely
reflecting on the practice of law.1718 After first discussing the intent requirement, the court
concluded intent was not an element of this rule.1719 But, the court further stated that under the
newly adopted rules, DR1-102(A)(6) only applied to criminal transgressions.1720 Kress’s
behavior did not equal criminal activity regardless of his failure to manage his medical and
mental health.1721

        The court then discussed Kress’s potential violation of DR 1-102(A)(4), conduct
involving dishonesty, fraud, deceit, or misrepresentation.1722 The court did state that intent was
required, but believed “that Kress did not act in a totally unconscious fashion sufficient to vitiate
intent.”1723 To reach this conclusion, the court relied on Dr. Lembke’s report, while identifying
the inconsistencies in Kress’s experts’ opinions.1724 The court stated the overall nature of
Kress’s activity on that night “suggests intentional, conscious conduct.”1725 Kress’s own
statements about his delusions were noted, but the court found them improbable.1726

        After finding a violation of DR 1-102(A)(4), the court considered the appropriate
sanction.1727 Although, the medical and mental conditions could not serve as a defense, the court
did consider them mitigating factors.1728 They also considered that Kress did not have a
discipline problem in the past.1729 However, the court did find that Kress’s failure to admit the
intent of his action was an aggravating factor if believed.1730 Also, the court determined Kress
was not entirely candid with the Commission.1731 Finally, after considering the protection to the
public and the public’s confidence in the legal system, the court ordered suspension of Kress’s
license for three months.1732 Additionally, when applying for reinstatement Kress would have to
prove he has not practiced law during that time, and he must undergo mental and physical health
examinations to determine his fitness to practice law.1733

Iowa Sup. Ct. Att’y Disc. Bd. v. Isaacson, 750 N.W.2d 104 (Iowa 2008).
        The Iowa Supreme Court Disciplinary Board (“Board”) lodged a complaint against David
Isaacson, alleging violations of the Iowa Code of Professional Responsibility for Lawyers.1734
The Board alleged that Isaacson violated the ethical rules by failing to deposit a client’s funds in
a trust account, converting the client’s funds, failing to keep records of the transactions, and

1718
     Id.
1719
     Id.
1720
     Id.
1721
     Id.
1722
     Id. at 540.
1723
     Id.
1724
     Id.
1725
     Id.
1726
     Id. at 541.
1727
     Id.
1728
     Id.
1729
     Id.
1730
     Id.
1731
     Id.
1732
     Id.
1733
     Id. at 541–42.
1734
      Iowa Sup. Ct. Att’y Disc. Bd. v. Isaacson, 750 N.W.2d 104, 106 (Iowa 2008).




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making misrepresentations to the Iowa Supreme Court Disciplinary Board, the Iowa Supreme
Court Client Security Commission, and the law firm partnership of which he was a member.1735
The Grievance Commission of the Iowa Supreme Court (“Commission”) found that Isaacson
violated the Iowa Code of Professional Responsibility by failing to deposit a client’s funds in a
trust account and failing to keep proper records of transactions pertaining to those funds, but
concluded that the Board failed to meet their burden of proof as to the other allegations.1736 A
majority of the Commission recommended a public reprimand.1737 The Court found that
Isaacson committed several of the charged ethical violations and suspended his license to
practice law for six months.1738

        The Court reviewed the Commission’s findings de novo and explained that they give the
Commission’s findings respectful consideration, but are not bound by their recommendation.1739
The Board has a burden to prove its allegations of misconduct by a preponderance of the
evidence.1740 The allegations arise out of Isaacson’s representation of Kelly Belz in an action to
collect rent from Belz’s tenant, Robert Young.1741 The parties reached a settlement in which
Young agreed to make a series of payments.1742 Young made three payments in the form of
checks to Isaacson.1743 Isaacson deposited the checks into his personal banking account,
withdrew funds for the payment of his services, and delivered cash to his client, Belz.1744 There
was a dispute regarding the final payment delivered to Isaacson and its remittal to Belz.1745 The
parties did not retain records establishing when the transactions occurred.1746 Isaacson’s law
partner reviewed the firm’s trust account and did not find any evidence of Belz’s settlement
proceeds and Isaacson denied being in possession of the proceeds from the third payment.1747
Isaacson represented to the Board that he could provide a “proper accounting for the settlement
funds” and that the last payment by Young was received considerably later than the agreed upon
December 31, 2003.1748 The Court held that both of these representations by Isaacson were
false; and further that Young had made all payments before the end of 2003 and that Isaacson
could not properly account for the funds because he had comingled them with his personal
funds.1749

        The Court held that Isaacson had violated DR 9-102(A) by failing to deposit Belz’s funds
in a trust account.1750 The Court dismissed Isaacson’s argument that he had fully complied with
his client’s instructions to deliver the proceeds in cash and stated that the duty under the rule to

1735
     Id.
1736
     Id.
1737
     Id.
1738
     Id.
1739
     Id.
1740
     Id.
1741
     Id.
1742
     Id.
1743
     Id.
1744
     Id. at 106-07
1745
     Id.
1746
     Id. at 107.
1747
     Id.
1748
     Id.
1749
     Id.
1750
     Id. at 108.



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deposit client funds into a trust account is not constrained by a client’s instructions or
preferences.1751 The Court held that Isaacson violated DR 9-103 by failing to maintain books
and records sufficient to demonstrate compliance with DR 9-102 because he failed to deposit
Belz’s funds in a trust account.1752 The Court found that Isaacson violated DR 1-102(A)(4) when
he deceitfully failed to deposit legal fees in the partnership account to avoid paying his share of
the firm’s overhead pursuant to the partnership agreement.1753 Isaacson also violated DR 1-
102(1) and DR 1-102(4) when he filed his 2004 Combined Statement and Questionnaire with the
Iowa Supreme Court Client Security Commission, in that he asserted that he kept all client funds
in a separate interest bearing trust account.1754

        The Court explained that there is not a standard sanction for this particular type of
misconduct and that the appropriate sanction is based on the particular circumstances of each
case.1755 The Court will consider the “nature of the violations, protection of the public,
deterrence of similar misconduct by others, the lawyer’s fitness to practice, and the court’s duty
to uphold the integrity of the profession in the eyes of the public.”1756 The Court concluded that
a sanction less than revocation was appropriate because the Board did not prove that Isaacson
intended to convert the third payment from Young.1757 The Court also considered Isaacson’s
lack of candor in his responses to the Board, the deceit in his statement to the Client Security
Commission, and his deceit in his relationship with his law partners.1758 Isaacson’s prior
disciplinary action was considered to be an aggravating factor.1759 Isaacson’s license had been
suspended for six months in 1997 for violations of DR 1-102(A)(4), DR 5-104(A), DR 5-105(B),
and DR 5-105(C).1760 The Court also took into consideration that Isaacson was an experienced
lawyer with more than thirty years of experience and that he clearly knew his obligation to
deposit his client’s funds in a trust account, keep records of the transactions, and his
responsibility to be truthful in his responses to the Board, Commission, and his law partner.1761
The Court suspended Isaacson’s license to practice law in Iowa indefinitely with no possibility of
reinstatement for six months.1762

In the Matter of Nash, 739 N.W.2d 71 (Iowa 2007).
       Michael Nash, a third year student at Creighton University School of Law, was denied
permission to take the Iowa bar examination in July 2006 because the Iowa board of law
examiners (board) determined he was unfit to practice law.1763 The board’s decision rested on
information provided by Nash to question 32(h) on the bar application which asked whether he
had ever been “‘formally or informally investigated, reprimanded, disciplined, discharged or
asked to resign by an employer or educational institution for misconduct, including . . . actions in
1751
     Id.
1752
     Id.
1753
     Id.
1754
     Id. at 109.
1755
     Id.
1756
     Id.
1757
     Id. at 109-10.
1758
     Id. at 110.
1759
     Id.
1760
     Id.
1761
     Id.
1762
     Id.
1763
     In re Matter of Nash, 739 N.W.2d 71, 71, 75 (Iowa 2007).



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disregard for health, safety and welfare of others.’”1764 Nash responded affirmatively, and
explained that he was dismissed from his employment as a Catholic priest in Juneau, Alaska
under an accusation of sexual abuse of a minor.1765 After the board denied his application to take
the Iowa bar exam, Nash timely filed a written request for a hearing before the board.1766 He
also requested, and was granted, the ability to sit for the bar examination pending the hearing.1767

        At the hearing, Nash presented evidence that the alleged abuse was based on disciplinary
tactics he used on a teenager during youth ministry trips in the 1980s.1768 Nash stated the
disciplinary tactics were intended to humiliate and encourage the boy to modify his behavior,
and were not sexually motivated.1769 When the allegations surfaced in 1989, Nash discussed
leaving the priesthood with the bishop of Juneau, but instead entered and completed a holistic
residential health program.1770 After completion of the program Nash returned to his parish
responsibilities with no further allegations of improper conduct.1771 Additionally, Nash provided
the board testimony of twelve individuals, including the Dean of Creighton’s law school, who
attested to Nash’s good moral character, and the board received nearly eighty letters in support of
Nash’s application.1772 Nash also underwent a full sexual abuse examination in which the
psychiatrist found no evidence that he suffered from any mental disorder or personality traits that
would “impair his ability to maintain the moral character and honesty expected of an Iowa
lawyer.”1773 Finally, as soon as the church allowed him to, Nash sent a written apology to all
those who were improperly disciplined.1774 However, the board affirmed its prior decision
because the decision was split evenly.1775

        Nash next sought review of the board’s decision from the Iowa Supreme Court.1776 The
court reviewed the record de novo, and held Nash had proven, by a convincing preponderance of
the evidence, that he possessed the required moral character and fitness to practice law in
Iowa.1777 The court stated that “decades-old inappropriate but noncriminal acts admitted by
Nash [were] insufficient to support the board’s denial of Nash’s application to become a member
of the Iowa bar.”1778

Iowa Sup. Ct. Att’y Disc. Bd. v. Kaiser, 736 N.W.2d 544 (2007).

1764
     Id. at 71 (quoting Iowa Bar Application question 32(h)).
1765
     Id. at 71–72, 73.
1766
     Id.
1767
     Id.
1768
     Id. at 72–73. “Nash admitted that he used spanking, tickling, push-ups, and sit-ups as disciplinary techniques
during the trips . . . [and] further conceded he sometimes required the boys to remove their trousers prior to the
spanking, tickling, or calisthenics.” Id. at 72.
1769
     Id. at 72.
1770
     Id. at 73.
1771
     Id.
1772
     Id. at 74.
1773
     Id.
1774
     Id. at 75.
1775
     Id. at 74 (the board’s decision was split, three members voted favor, while three members voted against Nash’s
admission to the Iowa bar).
1776
     Id. at 71.
1777
     Id. at 74, 76.
1778
     Id. 75–76.



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        The Iowa Supreme Court Disciplinary Board (“Board”) lodged a complaint against
Steven Kaiser, alleging violations of the Iowa Code of Professional Responsibility for
Lawyers.1779 The Board alleged that Kaiser entered into a business venture with a client without
fully disclosing potential conflicts, without receiving informed consent before proceeding in the
deal, and using his legal knowledge to protect his own self-interest.1780 Kaiser stipulated to the
Board that his actions violated following rules of the Iowa Code of Professional Responsibility:

       •   DR 1-102(A)(1): providing a lawyer shall not violate a disciplinary rule;
       •   DR-1-102(A)(6): providing a lawyer shall not engage in conduct that adversely reflects
           on the fitness to practice law;
       •   DR 5-101(A): providing a lawyer shall not, except with consent of the client after full
           disclosure, accept employment if the exercise of the lawyer’s professional judgment on
           behalf of the client will be or reasonably may be affected by the lawyer’s own financial,
           business, property, or personal interests;
       •   DR 5-104(A): providing a lawyer shall not entered into a business transaction with a
           client if they have differing interest if the client expects the lawyer to exercise
           professional judgment for the protection of the client, unless the client consents after full
           disclosure 1781

Additionally, the parties stipulated that the appropriate sanction would be suspension of Kaiser’s
law license for at least three months.1782 The Grievance Commission (“Commission”), however,
noting that Kaiser had never been the subject of a disciplinary proceeding recommended
suspension of Kaiser’s law license for at least sixty days.1783

       The Iowa Supreme Court agreed with the stipulation and found Kaiser violated the above
mentioned provisions, but disagreed with both sanction recommendations from the Board and
the Commission and suspended Kaiser’s law license for thirty days because the stipulation did
not show the client suffered any harm from Kaiser’s actions.1784

Iowa Sup. Ct. Att’y Disc. Bd. v. Humphrey, 738 N.W.2d 617 (2007).
        The Iowa Supreme Court Disciplinary Board (“Board”) lodged a complaint against
Gregory J. Humphrey, alleging violations of the Iowa Code of Professional Responsibility for
Lawyers.1785 The Iowa Supreme Court found Humphrey’s lack of attention led to his failure to
obtain tax clearances in violation of DR 6-101(A)(3), DR 1-102(A)(4), DR 1-102(A)(5), DR 1-
102(A)(6).1786 Humphrey allowed six estates to remain open for over three years without
necessity and without court approval.1787 Additionally, it found Humphrey deposited fees into
his business account before they were earned in violation of DR 9-102(A).1788

1779
     Iowa Sup. Ct. Att’y Disc. Bd. v. Kaiser, 736 N.W.2d 544, 544 (Iowa 2007).
1780
     Id. at 544–45.
1781
     Id. at 545.
1782
     Id.
1783
     Id.
1784
     Id. at 545–46.
1785
     Iowa Sup. Ct. Att’y Disc. Bd. v. Humphrey, 738 N.W.2d 617, 618 (Iowa 2007).
1786
     Id. at 620.
1787
     Id.
1788
     Id.



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        The Board recommended Humphrey be privately reprimanded with restrictions on his
future probate practice because it found the errors were “more in the nature of inexperience” than
dishonest acts.1789 Although Humphrey had not previously been reprimanded by the Iowa
Supreme Court, the court disagreed with the Board and suspended Humphrey’s license for a
minimum of six months.1790 The court applied the suspension to all facets of Humphrey’s
practice of law.1791 If, or when, Humphrey applies for reinstatement he must show he has not
practiced law during his suspension, meets all requirements of Iowa Court Rule 35.13, and that
he has associated with an experienced probate lawyer before representing any probate estates.1792

Iowa Sup. Ct. Att’y Disc. Bd. v. Carty, 738 N.W.2d 622 (2007).
        The Iowa Supreme Court Disciplinary Board (“Board”) lodged a complaint against John
W. Carty, alleging violations of the Iowa Code of Professional Responsibility for Lawyers.1793
Carty stipulated to the Board he collected an illegal fee when he received his full ordinary fee, by
failing to amend the ordinary-fee, and submitting a claim for extraordinary fees that included
duplicated services in violation of DR 2-106(A).1794 The Iowa Supreme Court found that Carty
violated DR 2-106(A) when he accepted the full ordinary fee before he filed the final report,
when he failed to amend his ordinary fee claim after the gross value of the estate was reduced to
reflect the correct amount, and when he charged and collected duplicate fees.1795 Even though
the violations resulted partly from a miscommunication between Carty and his new secretary, it
did not excuse the conduct.1796

         The Board recommended Carty’s license be suspended for a minimum of four
months.1797 However, the Iowa Supreme Court disagreed with the Board, stating the fact that
Carty took no action to correct obvious excessive fees once mistakes were discovered warrants
additional discipline.1798 The court suspended Carty’s license, in all facets of the practice of law,
for sixty days.1799 If, or when, Carty applies for reinstatement he must show he has made full
restitution in the amount of $6,165 to the trust established under the Beech will.1800 Carty will
also be responsible for all fees, expenses, and costs incurred in making the restitution.1801

Iowa Sup. Ct. Att’y Disc. Bd. v. Blazek, 739 N.W.2d 67 (2007).
      The Iowa Supreme Court Disciplinary Board (“Board”) lodged a complaint against
Michael Blazek alleging violations of the Iowa Code of Professional Responsibility for Lawyers
based criminal convictions involving sexual misconduct with a minor, of which Blazek is


1789
     Id. at 618.
1790
     Id. at 620–21.
1791
     Id. at 621.
1792
     Id.
1793
     Iowa Sup. Ct. Att’y Disc. Bd. v. Carty, 738 N.W.2d 622, 622 (Iowa 2007).
1794
     Id. at 623–24.
1795
     Id. at 624.
1796
     Id.
1797
     Id. at 622.
1798
     Id. at 625.
1799
     Id.
1800
     Id.
1801
     Id.



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currently serving a 235-month sentence in federal prison in Illinois.1802 Blazek entered a “male
for male” chat room, and began chatting with who he believed to be a fifteen year old boy, Brian,
but was instead “Inspector Dan Everett of the Chicago Police Department posing as a teenage
boy to investigate internet crimes against children.”1803 Blazek and Brian chatted for fifteen
months, and arranged to meet at a restaurant in Chicago on October 26, 2002.1804 Blazek was
arrested upon arrival.1805 His apartment was searched and his computer was seized, which
revealed hundreds of child pornography photos and movies.1806

        The Iowa Supreme Court found that Blazek’s criminal conduct violated DR 1-102(A)(1)
(providing that a lawyer “shall not violate a disciplinary rule”), DR 1-102(A)(3) (providing that a
lawyer “shall not engage in illegal conduct involving moral turpitude”), and DR 1-102(A)(6)
(providing that a lawyer “shall not engage in any other conduct that adversely reflects on the
practice of law”).1807 The court agreed with the Board’s recommendation, to revoke Blazek’s
law license, partially because this conviction was not Blazek’s first.1808 In 1997, Blazek pled
guilty to knowingly engaging in sexual contact with a child under twelve, serve twelve months,
and three years of supervised release.1809 The court revoked Blazek’s license, stating that Blazek
“continued to prey on minor children and indulge his pedophilia after his first conviction. His
behavior is reprehensible. We gave him the opportunity to redeem himself and he squandered it.
He is unfit to practice law.”1810

Iowa Sup. Ct. Att’y Disc. Bd. v. Ramey, 746 N.W.2d 50 (2008).
       The Iowa Supreme Court Disciplinary Board (“Board”) lodged two complaints against
James Ramey for conduct that arose during the summer of 2000 in connection with a complaint
for which his license had already been suspended for a minimum of three years.1811

       The first complaint arose out of dissolution action.1812 In June 2000, Ramey’s client,
Randy Haberthur, paid Ramey $430, as a retainer, to represent him in his dissolution of marriage
proceeding.1813 In December, Ramey told Haberthur he had obtained a divorce decree for him,
and gave him a copy of the purported decree.1814 However, when Haberthur went to the court
house to inquire about the dissolution, the clerk informed him no petition for dissolution had ever
been filed.1815 Additionally, Ramey did not inform Haberthur that his license had been
suspended in November 2000.1816


1802
     Iowa Sup. Ct. Att’y Disc. Bd. v. Blazek, 739 N.W.2d 67, 68 (2007).
1803
     Id.
1804
     Id.
1805
     Id.
1806
     Id.
1807
     Id.
1808
     Id. at 69.
1809
     Id. at 68–69.
1810
     Id. at 70.
1811
     Iowa Sup. Ct. Att’y Disc. Bd. v. Ramey, 746 N.W.2d 50, 52 (2008).
1812
     Id. at 53.
1813
     Id.
1814
     Id.
1815
     Id.
1816
     Id.



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       The second complaint against Ramey arose from a real estate matter, in which Charles
Hethershaw asked Ramey to investigate the marketability of a piece property he inherited located
in Alabama.1817 One month after delivering Ramey the file, including the deed to the property,
Hethershaw attempted to contact Ramey to no avail.1818 Finally, after Hethershaw had no
response from Ramey for a couple of months, he went to Ramey’s office and found it closed and
locked.1819 Additionally, Ramey did not inform Hethershaw that his license had been suspended
in November 2000.1820

        Additionally, Ramey did not respond to the Iowa Supreme Court Grievance
Commission’s (“Commission”) notification of the complaints, did not file an answer, and did not
appear at the disciplinary hearing.1821 The Commission found Ramey committed the following
ethical violations:

       •   DR 1-102(A)(4): a lawyer shall not engage in conduct involving dishonesty,
           fraud, deceit or misrepresentation;
       •   DR 1-102(A)(5): a lawyer shall not engage in conduct that is prejudicial to the
           administration of justice and shall respond to the board’s notices;
       •   DR 1-102(A)(6): a lawyer shall not engage in conduct that adversely reflects on
           the fitness to practice law;
       •   DR 6-101(A)(3): a lawyer shall not neglect a client’s legal matter
       •   DR 7-101(A)(1): a lawyer shall not intentionally fail to seek the lawful objectives
           of the client;
       •   DR 7-101(A)(2): a lawyer shall not intentionally fail to carry out a contract of
           employment
       •   DR 7-101(A)(3): a lawyer shall not intentionally damage a client during the
           course of the professional relationship
       •   DR 9-102(B)(3): a lawyer shall maintain complete records of all funds, securities,
           and other properties of a client coming into the possession of the lawyer and
           render appropriate accounts to the client regarding them;
       •   DR 9-102(B)(4): a lawyer shall promptly pay or deliver to the client as requested
           by a client the fund, securities, or other properties in the possession of the lawyer
           which the client is entitled to receive.1822

Consequently, the Commission recommended that Ramey’s license to practice law in Iowa be
revoked.1823

      The court held the record supported the Commission’s findings “by a convincing
preponderance of the evidence,” and concluded that Ramey had violated several sections of Iowa

1817
     Id.
1818
     Id.
1819
     Id.
1820
     Id.
1821
     Id.
1822
      Id. at 53–54; Note that the violations of the disciplinary rules are based on the Iowa Code of Professional
Responsibility in 2001. Id. at 52.
1823
     Id. at 54.



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Code of Professional Responsibility for Lawyers.1824 First, the court held Ramey violated DR 6-
101(A)(3) and DR 7-101(A)(1)–(3) when he abandoned his client’s cases without
notification.1825 Second, the court held Ramey violated DR 1-102(A)(4) when he told Haberthur
that his divorce was complete and gave him a counterfeit dissolution decree.1826 Next, the court
held Ramey violated DR 1-102(A)(5) and DR 1-102(A)(6) in several ways: (1) Ramey forged
the dissolution document effectively forcing Haberthur to obtain alternative counsel and delaying
the dissolution for more than six months; (2) Ramey failed to inform Haberthur and Hethershaw
of the suspension of his license to practice law; and (3) Ramey failed to complete Hethershaw’s
matter and return Hethershaw’s file upon request, causing Hethershaw to be “delayed in the
realization of his legal objectives.”1827 Fourth, the court held Ramey violated DR 9-102(B)(3)
and (4) when he “failed to return Haberthur’s retainer or provide an account of services
rendered,” and when he failed to maintain and return Hethershaw’s file when requested to do
so.1828 Finally, the court held Ramey violated DR 1-102(A)(5) and (6) when he failed to respond
to the Board’s inquiries.1829

        The court, however, did not follow the Commission’s recommendation to revoke
Ramey’s license to practice law in Iowa.1830 Instead, the court looked at whether Ramey’s
conduct in both cases was “‘similar and demonstrate[d] the same pattern of conduct,’”
concluding it was both similar in nature and appeared to be part of the same pattern of conduct—
abandonment of his legal practice without notification of clients or return of their files or
advanced funds.1831 Because the conduct occurred in connection with matters for which
Ramey’s license had previously, and currently, suspended, the court analyzed whether it would
have imposed a greater suspension had it known the current information that was before the
court.1832     The court determined that it would not have imposed a longer suspension had it
previously known this information, thus, the court found that public reprimand would be
sufficient.1833 However, in addition to the conditions previously stated by the court, before
Ramey may apply for reinstatement he must: “(1) pay $430 to Haberthur, and (2) return to
Hethershaw any of his documents in Ramey’s possession . . . .”1834

Iowa Sup. Ct. Att’y Disc. Bd. v. Rauch, 746 N.W.2d 262 (2008).
       The Iowa Supreme Court Disciplinary Board (“Board”) lodged two complaints against
Allan Rauch in 2004.1835 Count I claimed: (1) Rauch engaged in the authorized practice of law
when he agreed to represent Howser after his license had been suspended, and did not inform
Howser of this suspension, (2) Rauch did not identify himself with a motion to quash, which he
wrote and filed with the clerk of court.1836 Count II claimed: (1) the Andersons’ hired Rauch to
1824
     Id. at 54
1825
     Id.
1826
     Id.
1827
     Id. at 54–55.
1828
     Id. at 55.
1829
     Id.
1830
     Id. at 56.
1831
     Id. at 55–56.
1832
     Id. at 55.
1833
     Id. at 55–56.
1834
     Id.
1835
     Iowa Sup. Ct. Att’y Disc. Bd. v. Rauch, 746 N.W.2d 262, 263 (2008).
1836
     Id. at 263–64.



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represent their nephew, (2) paid him a $500 retainer, (3) Rauch filed one motion to quash and
wrote one letter to Child Support Recovery unit, and (4) the matter was set for hearing, but –no
hearing occurred.1837 The Board attempted to notify Rauch of the complaints filed against him,
but were unable to do so, and ultimately the Board’s complaint was served on the clerk of the
supreme court.1838

        The Iowa Supreme Court Grievance Commission (“Commission”), with respect to Count
I, found Rauch “engaged in unauthorized practice of law by agreeing to represent Howser while
his law license was suspended” in violation of Iowa Code of Professional Responsibility for
Lawyers DR 3-101(B) and DR 7-106(A).1839 Additionally, the Commission found Rauch guilty
of “deceit by failing to inform Howser that his license was suspended and by ghostwriting and
filing a pleading on behalf of Howser without disclosing to the court his involvement,” in
violation of DR 1-102(A)(4).1840 Finally, the Commission found Rauch guilty of violation of DR
1-102(A)(5), “an additional ethical violation for failing to respond to the Board after being
served.”1841 The Commission, however, did not make specific findings regarding Count II,
concluding “it did not believe Rauch’s suspension would have been lengthened had [it]
considered the Andersons’ complaint at the time.”1842

       The Iowa Supreme Court agreed with the Commission’s findings and conclusions, and
turned to the issue of the appropriate sanctions.1843 The court looked at Rauch’s “long and
troubled history of ethical violations,” and held Rouch had:

        demonstrated a penchant for deceit and a total lack of respect toward the courts of
        this state. He thumbed his nose at this court by accepting Howser’s case just days
        after we suspended his license. He tried to hide his involvement by omitting his
        name on the motion to quash. Ghostwriting a court document is a “deliberate
        evasion of the responsibilities imposed on an attorney.1844

Consequently, the court determined because of Rauch’s history of disobeying suspension
orders, “[d]ooling out another suspension sentence [was] simply not sufficient . . . .”1845
The court ultimately concurred with the Commission and revoked Rauch’s license to
practice law in Iowa.1846

Iowa Sup. Ct. Att’y Disc. Bd. v. Attorney Doe No. 639, 748 N.W.2d 208 (2008).
       The Iowa Supreme Court Disciplinary Board (“Board”) lodged a formal complaint
against Attorney Doe No. 639 with the Grievance Commission of the Supreme Court of Iowa,
which found Attorney Doe’s conduct violated various provisions of the Iowa Code of

1837
     Id. at 264.
1838
     Id.
1839
     Id. at 265.
1840
     Id.
1841
     Id.
1842
     Id.
1843
     Id. at 265, 266.
1844
     Id. at 266 (quoting Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Lane, 642 N.W.2d 296, 299 (Iowa 2002)).
1845
     Id.
1846
     Id.



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Professional Conduct.1847 The Commission issued Attorney Doe a private admonition.1848 When
the Commission issues a private admonition, the Board has ten days in which to appeal the
decision to the Iowa Supreme Court or the Commission’s holding is considered final.1849 Here,
the Board filed a notice of appeal one day late, and Attorney Doe filed a motion to dismiss on
that ground.1850 The State argued that the ten-day limit was directory rather than mandatory, and
as such, it was irrelevant that they filed the notice of appeal one day late.1851 Attorney Doe,
however, argued that the ten-day limit was mandatory, and thus required the court to dismiss.1852
The court agreed with Attorney Doe, and held that the ten-day limit is a mandatory time limit.1853
The court recognized the language of the statute specifically states that the consequence for the
Board’s failure to file within ten-days is that the Commission’s decision becomes final, which
evidenced the intent to make the ten-day filing requirement mandatory.1854 Thus, the
Commission’s decision was final.1855

Iowa Sup. Ct. Att’y Disc. Bd. v. Newman, 748 N.W.2d 786 (Iowa 2008).
        This proceeding was instituted against attorney Newman, after a judge discovered that
the attorney had forged the judge’s signature on an order and then filed the order.1856 Newman
agreed to assist another attorney with a conservatorship in October 2006.1857 The other attorney
sent Newman two orders to get signed by the judge.1858 In January 2007, Newman drove to
Garner in Winnebago County, Iowa to present the two orders to Judge James M. Drew.1859 One
of the orders approved Newman’s appointment as guardian ad litem; the other order approved a
wrongful death settlement.1860 Judge Drew and Newman discussed the two orders and Judge
Drew agreed to sign both the orders.1861 Judge Drew dated and signed the order appointing
Newman as guardian ad litem in the case, but he did not sign the order approving the wrongful
death settlement.1862 When Newman returned to this office, he noticed that one of the orders was
not signed, forged Judge Drew’s signature on the second order, and then filed both orders.1863
Two days later, the judge telephoned Newman and confronted him about the forged
signature.1864 Newman admitted to the forgery and both Judge Drew and Newman reported the
incident to the Iowa Supreme Court Attorney Disciplinary Board (“Board”).1865

1847
     Iowa Sup. Ct. Att’y Disc. Bd. v. Attorney Doe No. 639, 748 N.W.2d 208, 208–09 (2008). “The identity of an
attorney who receives a private admonition from the Commission is to remain confidential unless the supreme court,
on review, decides to impose discipline.” Id. at note 1 (citing Iowa Ct. R. 35.11(3).
1848
     Id. at 209.
1849
     Id.
1850
     Id.
1851
     Id.
1852
     Id.
1853
     Id. at 210.
1854
     Id.
1855
     Id.
1856
     Iowa Sup. Ct. Att’y Disc. Bd. v. Newman, 748 N.W.2d 786, 787 (Iowa 2008).
1857
     Id.
1858
     Id.
1859
     Id.
1860
     Id.
1861
     Id.
1862
     Id.
1863
     Id.
1864
     Id.
1865
     Id.



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        Judge Drew confirmed that his failure to sign the order was an oversight and that he, in
fact, had read and approved the order.1866 The Judge also confirmed that Newman was
remorseful and apologetic.1867 Newman’s Answer to the Board’s complaint admitted that the
stated ethical violations had occurred.1868 The Board found Newman’s violation to be an
“isolated instance of unethical conduct.”1869 The Grievance Commission of the Iowa Supreme
Court (“Commission”) privately admonished Newman and requested he accept 120 hours of
court-appointed criminal cases with pay by the end of 2008.1870 The Board applied for
permission to appeal the Commission’s decision as it felt that the violation was serious enough to
warrant a suspension of Newman’s law license.1871

       First, the Court found that Newman’s forgery of the judge’s signature violated Iowa Rule
of Professional Conduct 32:8.4(c), which prohibits an attorney from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation.1872 The bulk of the Court’s analysis
then went to the appropriate sanction for such conduct.1873 The Court noted that Newman was a
person of good moral character who had committed a serious lapse in judgment.1874 Newman
provided testimony and affidavits from several persons attesting to his generally good moral
character.1875 Newman accepted responsibility for his actions and was very remorseful. 1876
However, the Court noted that forgery was a very serious ethical violation.1877

        The Board compared Newman’s conduct to that of the attorney in Thompson.1878 In
Thompson, the Court had suspended an attorney’s license for nine months for forging a judge’s
signature on an order “without the knowledge or authorization of the judge.”1879 The Court
distinguished Newman’s conduct from that in Thompson because Thompson had a prior record
of discipline for altering a court document.1880 In contrast, Newman had no prior record of
discipline. Also, the forged document in Thompson was never presented to the judge in
question.1881 The Court found that Newman should be publicly reprimanded for forging the
judge’s signature.1882

Iowa Sup. Ct. Att’y Disc. Bd. v. Ireland, 748 N.W.2d 498 (Iowa 2008).
1866
     Id.
1867
     Id.
1868
     Id.
1869
     Id.
1870
     Id.
1871
     Id.
1872
     Id. at 788 (citing Iowa Sup. Ct. Att’y Disc. Bd. v. Thompson, 732 N.W.2d 865, 867 (Iowa 2007)).
1873
     Id.
1874
     Id.
1875
     Id.
1876
     Id.
1877
     Id. (citing Iowa Sup. Ct. Att’y Disc. Bd. v. Rickabaugh, 728 N.W.2d 375, 382 (Iowa 2007); Iowa Sup. Ct. Bd. of
Prof’l Ethics & Conduct v. Rylaarsdam, 636 N.W.2d 90, 93 (Iowa 2001); Iowa Sup. Ct. Bd. of Prof’l Ethics &
Conduct v. Clauss, 530 N.W.2d 453, 455 (Iowa 1995)).
1878
     Id. (citing Thompson, 732 N.W.2d at 866).
1879
     Id. (citing Thompson, 732 N.W.2d at 866).
1880
     Id.
1881
     Id.
1882
     Id. at 788–89.



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        This proceeding was instituted against attorney Ireland, for neglecting a client’s legal
matter, not providing an accounting or return of retainer funds, failing to return personal papers
of the client, failing to notify the client he had closed his office, and failing to cooperate with the
Iowa Supreme Court Attorney Disciplinary Board (“Board”) in its investigation.1883 The
Grievance Commission of the Iowa Supreme Court (“Commission”) recommended suspension
of Ireland’s law license for two years with no possibility of restatement.1884 The Court
suspended Ireland’s law license for a period of six months. 1885

        Ireland was a lawyer who had practiced in several communities in the state. 1886 In
January 2002, Ireland had a law practice in Panora, Iowa. 1887 In early 2002, Ireland agreed to
act as the attorney for the estate of a client’s deceased father. 1888 The client provided Ireland
with his father’s will and other paperwork. 1889 At a second meeting, Ireland agreed to handle the
estate for a fee of $2,000. 1890 The widow of the decedent also met with Ireland at one point
early in the process. 1891 In February 2002, the decedent’s widow provided Ireland with a check
for $1000. 1892 The memo portion of the check read “retainer for the L.G. Barker estate.” 1893
Ireland deposited the check in his trust account. 1894

        In May 2002, Ireland closed his law office in Panora without notifying the client. 1895 At
that point in time, Ireland had done no work on the estate for which he would have earned a
fee.1896 Ireland never provided an accounting or refund of the retainer to the client.1897 Ireland
did not return the client’s personal papers, including the decedent’s will.1898 The client
eventually sought new counsel to handle the estate, which was subsequently successfully
closed.1899
        In March 2003, the client filed a complaint with the Board. 1900 In August 2005, the
Board wrote to the respondent requesting a response and an accounting of the $1000 retainer. 1901
In his response, Ireland claimed he was hired to prepare living trust documents for the widow
and son of the decedent and not to probate the estate. 1902 Ireland claimed he had tried to locate
the clients prior to the closing of his practice but was unable to do so. 1903 Ireland stated he

1883
     Iowa Sup. Ct. Att’y Disc. Bd. v. Ireland, 748 N.W.2d 498, 499 (Iowa 2008).
1884
     Id.
1885
     Id.
1886
     Id. at 500.
1887
     Id.
1888
     Id.
1889
     Id.
1890
     Id.
1891
     Id.
1892
     Id.
1893
     Id.
1894
     Id.
1895
     Id.
1896
     Id.
1897
     Id.
1898
     Id.
1899
     Id.
1900
     Id.
1901
     Id.
1902
     Id.
1903
     Id.



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would return the materials if given a current address, as well as more time to retrieve the
documents. 1904 The Board contacted Ireland on numerous occasions and finally received a final
bill that was never received by either of the clients. 1905 Ireland also provided copies of the living
trusts he claimed he prepared for the clients. 1906

        On January 24, 2007, the Board filed a complaint against Ireland which included the
following violations: failure to take action on the estate in violation of DR6-101(A)(3) (neglect);
failure to meet the lawful objectives of the client in violation of DR 7-101(A)(1); and, engaging
in conduct prejudicial to the administration of justice and conduct that adversely reflects on the
fitness to practice law in violation of DR 1-102(A)(5) and (6). 1907 Additionally, the Board stated
that Ireland’s failure to promptly return the clients’ property violated DR 2-110(A)(2) and DR 9-
102(B)(4).1908 Further, Ireland’s failure to cooperate with the Board was a violation of DR 1-
102(A)(5) and (6).1909 Lastly, Ireland’s failure to return the clients’ funds and make an
accounting violated DR 9-102(B)(3) and (4).1910

         At the hearing before the Grievance Commission on October 12, 2007, one of the clients
testified that the $1000 check had contained the address of the residence where both the widow
and her son had resided for years.1911 Ireland did not attend the hearing. 1912 Instead, Ireland
advised the Commission that he did not intend to return to Iowa to practice law and did not have
the funds to travel to Des Moines for the hearing. 1913 The Commission found no evidence in the
record that Ireland had done anything that would allow him to keep any portion of the $1000
retainer. 1914 In considering the appropriate sanction for Ireland’s ethical violations, the
Commission took note of several aggravating circumstances: prior disciplinary actions, a current
suspension, and Ireland’s evasive and untruthful responses to the Board’s inquiries. 1915 The
Commission recommended a suspension of two years. 1916 The Court concurred in the
Commission’s findings with respect to the ethical violations detailed above. 1917

       The Court then turned to the appropriate sanction to be levied upon Ireland.1918 The
Court noted that the usual sanction for neglect of client legal matters ranges from a public
reprimand to a six-month suspension. 1919 The Court did note, however, that aggravating factors
such as “harm resulting to the client,” multiple incidents of neglect, misrepresentations and past


1904
     Id.
1905
     Id.
1906
     Id.
1907
     Id. at 501.
1908
     Id.
1909
     Id.
1910
     Id.
1911
     Id.
1912
     Id.
1913
     Id.
1914
     Id.
1915
     Id. at 501–02.
1916
     Id. at 502.
1917
     Id.
1918
     Id.
1919
     Id. at 502–03 (citing Iowa Sup. Ct. Att’y Disc. Bd. v. Gottschalk, 729 N.W.2d 812, 815 (Iowa 2007).



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disciplinary history are factors that warrant more serious discipline than simple neglect.1920 In
this case, the Court found Ireland’s claims that he was not hired to probate the estate had been
shown to be false by testimony to the contrary. 1921 In addition, the Court noted that Ireland had
a prior private admonition in July 2002, a public reprimand in December 2002, and a three-
month suspension in 2006, all relating to incidents of neglect.1922 Although the Court noted that
Ireland had no intention to resume practice in Iowa, the Court still concluded that a six-month
suspension of Ireland’s license to practice law was an appropriate sanction.1923

Iowa Sup. Ct. Att’y Disc. Bd. v. Curtis, 749 N.W.2d 694 (Iowa 2008).
        This proceeding was instituted against attorney Curtis, based upon a five-count complaint
that the Iowa Supreme Court Attorney Disciplinary Board (“Board”) filed with the Grievance
Commission of the Iowa Supreme Court (“Commission”) regarding Curtis’s handling the matters
of multiple clients.1924 Count I involved the misapplication of a client’s fee.1925 Count II alleged
Curtis disclosed confidential information about a client. 1926 Count III alleged Curtis did not act
with reasonable diligence when representing a client. 1927 Count IV alleged Curtis did not
provide competent representation in an estate matter and failed to deposit an unearned fee in her
trust account. 1928 Count V alleged Curtis failed to file a proper objection in a bankruptcy
proceeding and then misrepresented the status of the matter to the client. 1929 The Commission
found the Board failed to prove the allegations contained in counts I, II and II, but that the Board
proved the violations alleged in counts IV and V. 1930 The Commission also found that Curtis
suffers from depression and attention deficit disorder (ADD).1931                 The Commission
recommended an indefinite suspension with no possibility for reinstatement for one year. 1932

        In Count I, Curtis was charged with misapplication of client funds that the client claimed
were earmarked for a bankruptcy filing. 1933 Curtis was representing a client in a domestic
relations matter. 1934 During the representation, the client asked Curtis if she could represent him
in the filing of a bankruptcy. 1935 In April 2004, the client issued Curtis a check for $209. 1936
Curtis produced a letter in which she stated she could not represent him in his bankruptcy and
that she was going to apply the $209 check to the client’s outstanding bill on the domestic
relations matter. 1937 The client in Count I did not testify, and the Court found that Curtis’s letter

1920
     Id. at 503.
1921
     Id.
1922
     Id. (citing Iowa Sup. Ct. Att’y Disc. Bd. v. Ireland, 723 N.W.2d 439, 440 (Iowa 2006).
1923
     Id.
1924
     Iowa Sup. Ct. Att’y Disc. Bd. v. Curtis, 749 N.W.2d 694, 697 (Iowa 2008).
1925
     Id.
1926
     Id.
1927
     Id.
1928
     Id.
1929
     Id.
1930
     Id.
1931
     Id.
1932
     Id.
1933
     Id. at 698.
1934
     Id.
1935
     Id.
1936
     Id.
1937
     Id.



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refuted the allegation that the funds were earmarked for the bankruptcy filing. 1938 The Court
held there was insufficient evidence to prove the allegations of misconduct in Count I. 1939

         In Count II, Curtis was charged with disclosing confidential client information.1940 Curtis
was representing the father of children who had been removed from the father’s home by the
state. 1941 Curtis allegedly told a DHS representative that the next time they went to court Curtis
was going to put witnesses on the stand to testify negatively about her client. 1942 Curtis also
allegedly told the DHS representative that her client was drunk may times when Curtis called
him, and she felt that DHS should have her client submit to urinalysis testing. 1943 Curtis not
only denied having said these things, but also presented evidence of a personal animus between
herself and DHS representatives. 1944 The Court held that the Board had also failed to prove the
allegations in Count II. 1945

         In Count III, Curtis was charged with mishandling a post-conviction relief action. 1946
Curtis was appointed on July 20,2005 to represent a client in an action for post-conviction
relief.1947 On August 19, the clerk of the supreme court sent Curtis a delinquency notice for
failing to file and serve a combined certificate. 1948 On November 21, she received another
delinquency notice from the clerk for failing to pay or request a waiver of the docketing fee. 1949
On December 20, she received a notice that unless a docket fee was paid or waived within 18
days, the appeal would be dismissed. 1950 Curtis did not pay the fee and the clerk dismissed the
case. 1951 On January 9, 2006, Curtis filed an application to reinstate the appeal. 1952 On
February 2, the Court reinstated the appeal. 1953 On May 15, the clerk issued another notice of
default for failure to file and serve the appellant’s proof brief. 1954 Curtis then requested more
time to file the brief, which the Court granted. 1955 On September 8, the clerk issue another
default notice. 1956 On October 6, the clerk again dismissed the appeal due to Curtis’s failure to
file the proof brief. 1957 On December 11, the Court receive a motion to enlarge time for filing
the proof brief and treated it as a motion to reinstate the appeal and reinstated the appeal. 1958 On
March 16, 2007, the clerk issued another notice of default for failure to file the deferred

1938
     Id.
1939
     Id.
1940
     Id.
1941
     Id.
1942
     Id.
1943
     Id.
1944
     Id.
1945
     Id.
1946
     Id.
1947
     Id.
1948
     Id.
1949
     Id.
1950
     Id.
1951
     Id.
1952
     Id.
1953
     Id.
1954
     Id.
1955
     Id.
1956
     Id.
1957
     Id.
1958
     Id. at 698–99.



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appendix. 1959 Curtis eventually filed the appendix and the State moved to strike the appendix.
1960
      On June 12, 2007, the Court entered an order striking the appendix and requiring Curtis to
file an amended appendix along with 18 copies of an amended brief. 1961

        The Commission found that the evidence was insufficient to carry the Board’s complaint
because all the required filings were current and the matter was still pending, but the Court
disagreed.1962 The Court stated that the result obtained was not a defense to an ethical
violation.1963 The failure to meet appellate deadlines is a violation of rules 32:1.1 (competence),
32:1.3 (diligence), and 32:8.4(d) (engaging in conduct prejudicial to the administration of
justice).1964 The Court stated that Curtis’s use of the clerk’s office as “her private tickler system”
was deplorable1965 and the court found that Curtis’s actions violated multiple provisions of the
Iowa Code of Professional Responsibility.1966

         In Count IV, Curtis was charged with not providing competent representation in an estate
matter and for failing to deposit a fee in her trust account. 1967 Curtis filed an inventory with only
her signature. 1968 Based upon that inventory, Curtis filed an application for her fees. 1969 The
executor of the estate questioned the need for Curtis to take a fee because the executor was the
sole beneficiary. 1970 Curtis agreed to take only half the attorney fee and deposit the rest in her
trust account1971 The court approved that fee. 1972 However, Curtis did not deposit any of the fee
in her trust account and took the entire fee. 1973 In spring 2006, Curtis was not returning the
executor’s phone calls. 1974 The executor thought Curtis was likely neglecting the estate matters
and fired Curtis and hired another attorney. 1975 The new attorney looked over the file and
discovered the estate was relatively easy to probate. 1976 Curtis never sent the fees with the
file.1977 Curtis met with the attorney and claimed that her secretary had embezzled other funds
from her trust account in the past, so she instead put the fee in a savings account. 1978 Curtis then
sent a letter to the new attorney explaining that she was trying to track the money because it was
no longer in the account. 1979 Curtis eventually refunded the fees, but the checks to the new


1959
     Id. at 699.
1960
     Id.
1961
     Id.
1962
     Id.
1963
     Id.
1964
     Id. (citing Iowa Sup. Ct. Att’y Disc. Bd. v. Tompkins, 733 N.W.2d 661, 668-69 (Iowa 2007).
1965
     Id.
1966
     Id.
1967
     Id.
1968
     Id.
1969
     Id.
1970
     Id.
1971
     Id.
1972
     Id.
1973
     Id.
1974
     Id.
1975
     Id. at 699-700.
1976
     Id. at 700.
1977
     Id.
1978
     Id.
1979
     Id.



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attorney were not drawn on a trust account. 1980 An audit of Curtis’s trust account showed that no
funds had ever been embezzled. 1981

         Further, as the new attorney began to work on the file, he realized that Curtis had over-
valued the assets, causing an excessive fee to be awarded. 1982 Also, Curtis never filed tax
returns for the estate.1983 Essentially, the new attorney had to probate the estate as if nothing was
done on the estate.1984 When the Board confronted Curtis about the improper handling of the
estate, Curtis admitted that she knew little about probating an estate or taxes. 1985 The Court
noted that Curtis’s conduct in probating the estate went beyond negligence.1986 Curtis’s
incompetence and procrastination showed her indifference to advance the interests of her
client.1987 The Court held that Curtis’s misrepresentation to the client that she would only take
one-half of the fee, when she took the whole thing, violated rule 32:8.4(c) because Curtis
engaged in dishonest conduct. 1988 Further, her failure to deposit the fee in her trust account
violated rule 32:1.15(c). 1989 Curtis inflated the value of the assets, causing her to take an
excessive fee. 1990 In fact, Curtis’s failure to file a tax return also meant that she was never
entitled to a fee in the first place. 1991

        In Count V, Curtis was charged with failing to file an objection to a discharge of her
client’s debt in bankruptcy. 1992 Curtis had represented a client in an intentional tort action and
obtained a $25,000 judgment. 1993 The tortfeasor then filed bankruptcy. 1994 The tortfeasor’s
bankruptcy attorney sent Curtis notice as a creditor, which Curtis claimed she never received. 1995
Curtis eventually prepared an objection that the debt was not dischargeable because it arose from
an intentional tort. 1996 On the date of the deadline for filing an objection, instead of filing an
original objection with the court, Curtis faxed the objection to the clerk. 1997 The clerk told
Curtis that the rules did not allow the clerk to accept a faxed pleading. 1998 The clerk left a phone
message for Curtis to get permission from the court to fax a pleading or provide a hard copy on
that day. 1999 Curtis claimed she never got the message. 2000 After time had expired to file an


1980
     Id.
1981
     Id.
1982
     Id.
1983
     Id.
1984
     Id.
1985
     Id.
1986
     Id. at 701.
1987
     Id. (citing Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 552 (Iowa 2004)).
1988
     Id.
1989
     Id.
1990
     Id.
1991
     Id.
1992
     Id.
1993
     Id.
1994
     Id.
1995
     Id.
1996
     Id.
1997
     Id. at 701-02.
1998
     Id. at 702.
1999
     Id.
2000
     Id.



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objection, Curtis filed a request for an extension of time to file an objection. 2001 The bankruptcy
court denied her request. 2002 Curtis appealed the determination to the Bankruptcy Panel of the
Eighth Circuit. 2003

        The Eighth Circuit upheld the decision, but left open the option for Curtis to file a
complaint objecting to the discharge based upon lack of notice. 2004 Curtis told her client she had
filed such a complaint, but never did so. 2005 The client sent a letter to Curtis asking for the
return of the client’s funds and the entire file. 2006 Curtis never returned the file or the money.2007
The client let Curtis continue the representation based upon the assumption that the earlier notice
complaint had been filed. 2008 Curtis even sent the client a document that she purported to be the
filed complaint. 2009 The Court found that this intentional misrepresentation to the client violated
DR 1-102(A)(4) (dishonesty), DR 1-102(A)(5) (prejudicial to the administration of justice), DR
1-102(A)(6) (adverse effect on the practice of law), DR 7-101(A)(2) (failing to carry out contract
of employment), and, DR 7-101(A)(3) (intentional damage to client). 2010 The Court found there
was insufficient evidence, however, to say that Curtis had violated the duty not to handle a legal
matter for which she was not competent. 2011 Instead, the Court characterized her conduct as
neglectful. 2012

       The Court found that Curtis’s illnesses were mitigating factors in the sanction to be
imposed. 2013 Aggravating factors were the multiple incidents of neglect. 2014 Another
aggravating factor was the intentional misrepresentation to the client. 2015 The Court found that
an indefinite suspension without possibility of reinstatement for one year was warranted. 2016 The
Court also required Curtis to pass the MPRE as a condition of reinstatement. 2017 Lastly, the
Court required a comprehensive mental examination as a condition for reinstatement, which
would evaluate her fitness to practice law. 2018




2001
     Id.
2002
     Id.
2003
     Id.
2004
     Id.
2005
     Id.
2006
     Id.
2007
     Id.
2008
     Id.
2009
     Id.
2010
     Id.
2011
     Id.
2012
     Id. at 703.
2013
     Id.
2014
     Id. (citing Iowa Sup. Ct. Att’y Disc. Bd. v. Walker, 712 N.W.2d 683, 686 (Iowa 2006).
2015
     Id.
2016
     Id. at 704.
2017
     Id.
2018
     Id.



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