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                               OCDLA Email Summary
                          November 22, 2006 – December 5, 2006

This Issue:                                                           NOTICES:
   Supreme Court Cases…………..… 2
   9th Circuit Cases……….……...….. 3                                 MEMBER MEETING
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   Oregon Supreme Court Cases......... 5                             December 12, 2006
   Oregon Court of Appeals……...… 6
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                                      -1-
US SUPREME COURT

Gonzales v. Duenas-Alvarez
Argued: 12/05/06
No. 05-1629
Court below: 176 Fed. Appx. 820 (9th Cir. 2006)
Full text: Not Available

IMMIGRATION AND NATIONALITY ACT (Whether Aiding and Abetting Constitutes a “Theft Offense”
Chargeable as an Aggravated Felony Under the Immigration and Nationality Act)

The issue in this case is whether aiding and abetting constitutes a theft offense under the Immigration and
Nationality Act (INA), allowing for deportation of aliens who commit felonies with penalties of a at least a year
imprisonment.

Duenas-Alvarez, a native of Peru and legal resident of the U.S., was serving a three-year prison term for a theft
offense under California Vehicle Code Sec. 10851(a) when the Department of Homeland Security (DHS) initiated
deportation proceedings under the INA for committing an aggravated felony. An immigration judge ruled in favor of
removal and Duenas-Alvarez unsuccessfully appealed to the Board of Immigration Appeals. Duenas-Alvarez
appealed to the United States Court of Appeals for the Ninth Circuit (Court of Appeals). While his petition was
pending, the Court of Appeals ruled in an unrelated case that violations of California Vehicle Code Sec. 10851(a)
are not theft offenses under the INA because a person could violate the California law through aiding and abetting a
theft. The Court of Appeals considered the actual taking an essential element of the generic definition of a theft
offense. The Court of Appeals applied this holding to the Duenas-Alvarez case and dismissed the deportation
action. On appeal to the United States Supreme Court (the Court), the Petitioner argues that the Court of Appeals
erred in failing to recognize that aiding and abetting charges do constitute felonies under the INA. The Petitioner
argues as rationale that defendants in every jurisdiction can be convicted of a felony for aiding and abetting a theft,
and thus asks the Court to reverse the Court of Appeals’ holding and recognize aiding and abetting as a felony crime
under the INA. [Summarized by Jenny Stallard Lillge.]

Toledo-Flores. v. United States
Decided: 12/05/06
No. 05-7664
Full text:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=05-7664

CONTROLLED SUBSTANCES ACT, IMMIGRATION AND NATIONALITY ACT (The United States Supreme
Court Dismisses the Writ of Certiorari as Improvidently Granted)

The United States Supreme Court held per curiam that the writ of certiorari was improvidently granted to decide
whether a controlled substance offense should be classified as an “aggravated felony” for purposes of the
Immigration and Nationality Act.

Petitioner Toledo-Flores (Toledo-Flores) pleaded guilty in the United States District Court for the Southern District
of Texas (District Court) to improper entry by an alien and was sentenced to two years in prison. Toledo-Flores
appealed and the United States Court of Appeals for the Fifth Circuit (Court of Appeals) affirmed, holding that a
prior Texas state conviction for cocaine possession was a qualifying “aggravating felony” for sentencing guidelines
for improper entry by an alien, although only a misdemeanor under federal Controlled Substance Act. The United
States Supreme Court (the Court) granted certiorari, consolidating the case with Lopez v. Gonzalez (decided in this
issue). The Court held that certiorari was improvidently granted in this case. [Summarized by Viva Foley.]

Lopez v. Gonzales
Decided: 12/05/06
No. 05-547
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=05-547



                                                    -2-
CONTROLLED SUBSTANCES ACT, IMMIGRATION AND NATIONALITY ACT (A State Law Felony
Considered a Misdemeanor Under the Controlled Substance Act Is Not an “Aggravated Felony” for Purposes of the
Immigration and Nationality Act)

The United States Supreme Court held 8-1 (opinion by Souter; dissent by Thomas) that a crime treated as a felony
under state law but as a misdemeanor under the Controlled Substance Act (CSA) is not an “aggravated felony” for
purposes of the Immigration and Nationality Act (INA).

In 1997, Jose Antonio Lopez (Lopez) was arrested for and plead guilty to aiding and abetting another person’s
possession of cocaine, an aggravated felony under South Dakota law. At the time, Lopez was a legal, permanent
resident of the United States. Lopez served 15 months before being released for good conduct. The Immigration and
Naturalization Service subsequently initiated removal proceedings under the INA, claiming that his controlled
substance violation was a qualifying aggravated felony. Lopez contested the classification of his conviction as an
aggravated felony under the INA, but the immigration judge ruled against Lopez, rendering him ineligible for
discretionary removal cancellation, and ordered removal. The Board of Immigration Appeals affirmed. The United
States Court of Appeals for the Eighth Circuit (Court of Appeals) affirmed. On appeal, the United States Supreme
Court (the Court) reversed after considering the plain, “commonsense” meaning of the phrase “illicit trafficking,” a
crime the INA does not define. The Court held that Lopez’s state law felony, considered a misdemeanor under the
CSA, is not considered an “aggravated felony” for purposes of the INA. The Court stated that a state offense is a
felony under the CSA only if it proscribes conduct punishable as a felony under federal law. Thus, the Court
reversed the Court of Appeals’ holding, and because Lopez was erroneously removed from eligibility for
discretionary removal cancellation, remanded to the Court of Appeals for further consideration. [Summarized by
Viva Foley.]


9TH CIRCUIT

U.S. v. Lazarenko
No. 06-10273 (11/21/06)
Before Associate Justice, Sandra Day O’Connor, and Circuit Judges Graber
and Tallman
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/44B25B72D699FFA28825722C007C5C24/$file/0610273.pdf?op
enelement

CRIMINAL PROCEDURE / MONEY LAUNDERING / THIRD PARTY CLAIMANTS

Opinion (Tallman): Former Ukrainian Prime Minister Pavel Ivanovich Lazaraenko was convicted for money
laundering, and the U.S. seized the funds under criminal forfeiture law. Third-party claimants (Liquidators) were
appointed as Liquidators of the off-shore bank in Antigua where the money was laundered. Liquidators claimed
they owned the funds based on a judgment from the High Court of Antigua. Liquidators sought interlocutory appeal
for denial of an immediate hearing on the U.S. seizure of the funds, as well as a writ of mandamus compelling the
district court to force the U.S. to return the funds to Liquidators. The Ninth Circuit noted that the federal statute on
criminal forfeiture states that third parties may claim interest in U.S.-seized funds in an ancillary hearing after the
defendant’s conviction. The Ninth Circuit concluded that since this statute provides for an adequate proceeding
after conviction, there was no need to grant interlocutory appeal. Liquidators also did not meet both constitutional
and prudential requirements for standing and ripeness that would make an interlocutory appeal necessary.
DISMISSED. [Summarized by Lindsey Burton]


U.S. v. Martinez-Rodriguez
No. 05-50719 (11/21/06)
Before Circuit Judges Pregerson, Gould, and Clifton
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/50A42EB97D2DB7958825722C007C26A5/$file/0550719.pdf?o
penelement

CRIMINAL PROCEDURE / SENTENCING / SENTENCE ENHANCEMENT


                                                     -3-
Opinion (Gould): The district court sentenced David Martinez-Rodriguez (Martinez) to seventy-seven months
imprisonment with three years supervised release after a jury convicted him of re-entering the United States after
removal in violation of 8 U.S.C. Sec. 1326(a). Martinez challenged his sentence on two grounds. First, Martinez
argued the district court erred in its finding that his prior removal “was subsequent to a conviction for commission of
an aggravated felony.” Martinez argued he never admitted this fact and the fact was never proven to a jury beyond a
reasonable doubt. Second, Martinez argued that the district court erred in finding that his prior conviction for
possession of marijuana for sale under the California Health and Safety Code was a drug trafficking offense under
the Federal Sentencing Guidelines (Guidelines). The district court applied a sixteen-level enhancement to
Martinez’s sentence, because of his drug trafficking offense. The Ninth Circuit affirmed the district court's sentence
enhancement. The Ninth Circuit held that, because the removals were subsequent to Martinez's felony conviction,
the jury reached their decision appropriately. The Ninth Circuit then applied the Taylor v. U.S. categorical approach
to determine whether the prior state law conviction under the California Health and Safety Code formed a predicate
for sentence enhancement under the Guidelines. The Ninth Circuit held that under the Taylor’s categorical
approach, Martinez’s prior conviction fell within the Guideline’s definition of drug trafficking. AFFIRMED.
[Summarized by Carrie Eastman]

U.S. v. Reina-Rodriguez
No. 05-10475 (11/15/06)
Before Circuit Judges Hug., O’Scannlain, and Benitez, United States
District Judge for the Southern District of California.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/60A2888C89538F0888257226007438CE/$file/0510475.pdf?ope
nelement

CRIMINAL PROCEDURE / SENTENCING / SENTENCING GUIDELINES

Opinion (Benitez): Hector Reina-Rodriguez (Rodriguez) was arrested for illegally re-entering the country following
deportation. He had a prior second-degree felony conviction. Rodriguez pled guilty and was sentenced to fifty-one
months in prison. The district court used a categorical approach to conclude that Rodriguez’s prior second-degree
felony conviction constituted a crime of violence, which triggered a sixteen-level sentence enhancement under the
United States Sentencing Guidelines (Guidelines). Rodriguez appealed. The Ninth Circuit determined that
Rodriguez’s conviction did not categorically fit the Guidelines’ definition of “burglary of a dwelling” and reached
conduct constituting a crime of violence and conduct that did not. Therefore, the Ninth Circuit employed a modified
categorical approach, examining the charging document and judgment of conviction, to conclude that Rodriguez’s
second-degree burglary conviction constituted “burglary of a dwelling.” The Ninth Circuit held that Rodriguez’s
prior second-degree burglary conviction constituted a crime of violence under a modified categorical approach,
which warranted the sixteen-level sentence enhancement under the Guidelines. The Ninth Circuit also held that the
sentence was reasonable under the circumstances. AFFIRMED. [Summarized by Jeff Cronin]

U.S. v. Zakharov
No. 03-50214 (11/15/06)
Before Circuit Court Judges Tashima, Fisher, and Tallman
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/9815265C897F2FC7882572260073FD90/$file/0350214.pdf?ope
nelement

CRIMINAL PROCEDURE / STATUTORY JURISDICTION / CONSTITUTIONAL JURISDICTION

Opinion (Tallman): In international waters off the coast of Mexico, a United States Navy vessel stopped a fishing
vessel registered in Belize. A coast guard crew found 9,200 pounds of cocaine, and subsequently arrested
crewmember Anatoli Zakharov. After confessing to knowledge of the cocaine, a jury convicted Zakharov of
conspiracy and possession with intent to distribute. Zakharov appealed the conviction, and the Ninth Circuit rejected
Zakharov’s arguments regarding both statutory and constitutional jurisdiction. The Ninth Circuit rejected
defendant’s statutory jurisdiction arguments because defendants must make factual arguments to the trial court, and
regardless, Belize consented to American law enforcement searching the ship expressly and by treaty. The Ninth
Circuit also held that constitutional jurisdiction was proper because a sufficient nexus existed between defendant’s
activities and the United States. The Ninth Circuit, however, remanded defendant’s sentence in light of a case



                                                    -4-
determining that the Sentence Guidelines are advisory. CONVICTION AFFIRMED, REMANDED FOR
SENTENCING. [Summarized by Joshua Weissman]

US v. Kuchinski
No. 05-30607 (11/27/06)
Before Circuit Judges Kozinski, Fernandez and Carney, District Judge for the Central District of California
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/854C325F83310DBF88257233005978B3/$file/0530607.pdf?ope
nelement

CRIMINAL PROCEDURE / DOUBLE JEOPARDY / GUILTY PLEA

Opinion (Fernandez): During a search of John C. Kuchinski’s house, the FBI found about 19,000 images of child
pornography on his computer. Sixteen images were located on the computer, 94 in the deleted files, 1,106 in the
Active Temporary Internet Files, and the rest in the Deleted Temporary Internet Files. Kuchinski was convicted for
receipt of child pornography by entry of a guilty plea and possession of child pornography by a bench trial. He
appealed his conviction and sentencing arguing that prosecution for receipt and possession violated the Double
Jeopardy clause of the Fifth Amendment, that sentencing guidelines violated the separation of powers doctrine, and
that it was improper to use all the images found on his computer in determining his sentencing. The Ninth Circuit
held that the government was not bound a plea agreement and the separation of powers doctrine was not violated
when a defendant enters a conditional plea agreement with consent of the court and the government. The Ninth
Circuit found no Double Jeopardy clause violation when the court tried Kuchinski after his guilty plea. The Ninth
Circuit vacated the sentencing because Kuchinski lacked knowledge about the cache files and thus, lacked control
and access to those files and should not have been charged with receipt and possession of the cache files.
AFFIRMED, VACATED, AND REMANDED. [Summarized by Elizabeth Ross]


OREGON SUPREME COURT

State v. Carter
Case No.: S53014
http://www.publications.ojd.state.or.us/S53014.htm

AREA OF LAW: CRIMINAL PROCEDURE

HOLDING: (Opinion by Kistler, J.) The particularity clause of the Oregon Constitution’s warrant requirement does
not require all warrants to authorize both a search and a seizure.

Police obtained a warrant to search Carter’s residence for marijuana and materials for manufacturing and
distribution of marijuana, but the warrant did not authorize a seizure of any items. Upon executing the warrant,
police seized some items. Prior to trial, Carter moved to suppress the seized items. The trial court granted Carter’s
motion, and upon the state’s appeal the Court of Appeals reversed, remanding for consideration of the evidence’s
admissibility under the plain view doctrine. The Supreme Court allowed review to address whether a warrant must
include authorization both to search and to seize in order to be valid. The Court looked at the language of the
particularity clause of the Oregon Constitution’s warrant requirement, which Carter argued required authorization of
both search and seizure. The Court interpreted the language as setting forth what might be required to be described
with particularity in any given warrant. Either a search or a seizure or both were authorized. The Court noted the
long-recognized validity of arrest warrants which only authorize a seizure. Court of Appeals decision affirmed.
Circuit Court reversed. Remanded to Circuit Court. [Summarized by Patricia Migliuri.]

State v. Dinsmore
Case No.: S53033
http://www.publications.ojd.state.or.us/S53033.htm

AREA OF LAW: CRIMINAL PROCEDURE




                                                     -5-
Holdings: (Opinion by De Muniz, C.J.) 1) Defendant did not repudiate a plea agreement with state by withdrawing
her no contest plea where the agreement provided that upon successful appeal defendant had the right to withdraw
her plea; therefore, the state was still bound by the terms of the agreement. 2) Evidence obtained in violation of a
defendant’s right to reasonable consultation with counsel prior to taking a Breathalyzer test is inadmissible at trial
for all purposes.

Dinsmore was driving and got into an accident involving injuries and a fatality. Dinsmore was arrested for driving
under the influence (DUI), informed of her Miranda rights and taken to the police station to take a Breathalyzer test
and for further questioning. Dinsmore spoke with her counsel via telephone while the arresting officer remained
within her sight and hearing. Pursuant to a written plea agreement, Dinsmore pled no contest to one count of
criminally negligent homicide. In exchange, the state dismissed other charges. The agreement permitted Dinsmore
to withdraw her plea if she were successful on appeal of several evidentiary issues. Dinsmore won on appeal and
withdrew her plea. The state responded by asking the trial court to reinstate all charges against Dinsmore that were
dropped, arguing that Dinsmore’s withdrawal of her plea repudiated the agreement. The trial court agreed, and
Dinsmore was convicted on all charges. Dinsmore appealed. The Supreme Court, affirming the Court of Appeals,
held that Dinsmore had not repudiated the plea agreement by withdrawing her no contest plea because the ability to
withdraw her plea upon successful appeal was an express term of the agreement. Therefore, in accordance with the
original plea deal, the state was not permitted to reinstate the charges dismissed pursuant to the plea agreement.
Furthermore, the Court rejected the state’s arguments that the evidence obtained in violation of Dinsmore’s
constitutional right to reasonable consultation with counsel prior to taking a Breathalyzer should only be excluded
for purposes of her DUI prosecution, but could be admitted for other purposes. The Court held that as a result of the
violation of Dinsmore’s rights, the evidence was excluded for all purposes. Court of Appeals decision affirmed;
Circuit Court decision reversed and remanded for further proceedings. [Summarized by Joshua Lute.]


OREGON COURT OF APPEALS

State v. Powell
Case No.: A122860
http://www.publications.ojd.state.or.us/A122860.htm
AREA OF LAW: CRIMINAL LAW

HOLDING: (Opinion by Edmonds, P.J.) Resisting a blood draw while in police custody does not constitute resisting
arrest.

Powell assigned error to his conviction for resisting arrest. After taking Powell into custody for driving under the
influence of intoxicants, police requested Powell’s consent to a blood draw. Powell refused and police initiated a
forced draw. Powell fought, yelled obscenities, and otherwise resisted the blood draw. The trial court applied
Oregon case law and determined that a defendant can be charged with resisting arrest for conduct up to and
including booking. The Court of Appeals focused on the statutory definitions of “resist” and “arrest,” and found that
the plain meaning of “arrest” does not include seizure of blood. Powell did not resist being taken into custody;
therefore he did not resist arrest. Reversed and Remanded. [Summarized by Patricia Migliuri.]

State v. Barnes
Case No.: A121427
http://www.publications.ojd.state.or.us/A121427.htm
AREA OF LAW: CRIMINAL PROCEDURE

HOLDING: (Opinion by Ortega, J.) Under Crotsley, sexual abuse in the third degree merges into sexual abuse in the
first degree but harassment does not merge because harassment requires proof of an element in addition to those
necessary to prove sexual abuse in the first degree.

A jury convicted Barnes of first-degree sexual abuse, third-degree sexual abuse, and harassment. The convictions
stemmed from an incident involving a camping trip with teenagers and underage drinking. Barnes appealed, arguing
the trial court erred in failing to merge the three convictions, contending third-degree sexual abuse and harassment


                                                     -6-
are both lesser-included offenses of sexual abuse in the first degree. The State argued ORS 161.067(1) authorizes
separate convictions and pointed to the Crotsly decision as instructive. In applying Crotsley to third-degree sexual
abuse charge, the Court of Appeals found the charges merged because neither offense requires proof of an element
the other does not. As to the harassment charge, the court came to a different conclusion, finding the legislative
history established the legislature sought to address to unique concerns with the two offenses and thus merger would
be incorrect. Reversed and Rremanded in part, Affirmed in part. [Summarized by Gregg Silliman.]

State v. Pitt
Case No.: A120428
http://www.publications.ojd.state.or.us/A120428.htm
AREA OF LAW: CRIMINAL PROCEDURE

HOLDING: (Opinion by Landau, P. J.) The defendant’s confrontation right under the Sixth Amendment to the
United States Constitution was violated in allowing in evidence of a recorded interview between two child victims
and a Child Advocacy Center employee because (1) the interview was conducted to elicit statements from the
children so that police officers could videotape them for a criminal proceeding, (2) they were conducted for the
furthering of a police investigation, and (3) because the primary purpose was to establish or prove past events
potentially relevant to later criminal prosecution.

Pitt was convicted of several sexual offenses against two minor children. Before the trial the children were taken to
the Lane County Child Advocacy Center to conduct a videotape interview for a possible abuse investigation. At
trial, both children were frightened to testify and refused to answer questions during a competency hearing. The
court ruled the children were unavailable. The court ruled that the children’s hearsay statements to the Child
Advocacy Center were admissible. The Oregon Court of Appeals reversed. The court concluded that the children’s
videotaped statements to the Child Advocacy Center employee were undeniably “testimonial,” and because Pitt did
not have a opportunity the cross-examine the children his confrontation right under the Sixth Amendment to the
United States Constitution was violated. Reversed and Remanded. [Summarized by Justin Nelson.]


ARTICLE OF THE WEEK
Baby-as-weapon charge heads to trial
December 4, 2006 CNN.com

ERIE, Pennsylvania (AP) -- A woman accused of grabbing her 4-week-old son by his feet and swinging him,
hitting her boyfriend and fracturing the baby's skull, was ordered to stand trial.

Chytoria Graham did not intend to use her baby as a weapon, as Erie County prosecutors alleged, said defense
attorney Dennis Williams.

But District Judge Suzanne Mack ruled Monday that there was evidence enough for Graham, 27, to be tried on
assault and related counts.

"I understand a child was hurt, and a child was hurt badly," Williams said after the hearing. "But he was hurt during
a domestic dispute."

Police said Graham and her boyfriend, 20-year-old Deangelo Troop, argued on October 8 after she returned from a
night of drinking.

The argument progressed to shoving and, as Jarron lay in bed wrapped in a blanket, Graham grabbed the infant and
swung him at Troop, police said. Troop punched her in the eye after she put the child down, police said.

The baby has recovered completely and is now in the custody of Graham's parents, along with her other four
children. The grandparents attended the hearing but declined to comment.

The judge ruled that Graham can get out of jail if her family can post 10 percent of her $75,000 bail, but Williams
said they likely cannot afford it.


                                                    -7-
Graham, who is charged with aggravated assault, endangering the welfare of children, simple assault and reckless
endangerment, has no criminal record.



Police: Homeless man confesses to 23 slayings
December 5, 2006

HOUMA, Louisiana (AP) -- A man has confessed to strangling or suffocating 23 men during an eight-year killing
spree and dumping their bodies in remote spots in seven parishes, police said.

Ronald J. Dominique, 42, was charged with nine additional counts of murder on Monday, bringing the total to 11
counts against him -- 10 for first-degree murder and one for second-degree murder.

Terrebonne Parish Sheriff Jerry Larpenter said Dominique confessed to killing 23 men, all males between the ages
of 16 and 46, between 1997 and 2005.

"He stated how, when and where they were killed," Larpenter said.

Joseph Waitz, the parish's district attorney, said his office will seek the death penalty against Dominique, who was
being held Monday in Terrebonne Parish jail.

Dominique, who is indigent, has not yet been appointed a lawyer and did not have one present during questioning.
Sheriff's officials say the confession is solid and that Dominique supplied details that hadn't been released and that
only the killer and investigators would know. Authorities are investigating his claims and more charges are possible.

The victims' bodies were found in seven different south Louisiana parishes. All were found bound and had been
killed in similar fashion, Larpenter said, leading investigators to suspect the work of a serial killer.

Authorities said Dominique said he had sex with each of the victims. Jefferson Parish Sheriff Harry Lee said
investigators have DNA evidence linking Dominique to at least two of the killings.

Les Bonano, an investigator with Attorney General Charles Foti's office, said all 23 victims were homeless.

Larpenter said the biggest break in the case came within the past year, when a man told authorities Dominique had
attacked him.

Family members of victims gathered outside the Houma building where authorities held Monday's news conference.
Jodie LeBouef, the sister of victim Nicholas Pellegrin, cried and held pictures of her brother. Dominique has not
been charged with his death.

"I'm glad they got him. I hope he gets the death penalty," LeBouef said. "My brother didn't deserve for anything to
happen to him. My brother would do anything for anybody."




                                                    -8-

				
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