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In 2016 the Ninth Circuit Court of Appeals ruled in Wilson v. Lynch (9th Cir. Case No. 14-15799) that medical marijuana cardholders are prohibited from purchasing firearms based on federal regulations.  The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent an Open Letter to gun dealers in 2011 stating that, “If you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have ‘reasonable cause to believe’ that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person.”

Continue Reading That Medical Marijuana Card Can Prevent You From Buying A Gun!

I frequently get this question – “how can they charge me with rape? She said she was 19!” The answer is simple, a representation of the age of an apparently consenting person means nothing!

Bupkis! Nada! Absolutely nothing! What matters is the age of the person – that is – the ACTUAL age.

Continue Reading “She said she was 19. How can I be charged with RAPE?”

Among the changes to Idaho law taking effect on July 1, 2018, is an important clarification of when you can and cannot use deadly force to defend yourself, others or perhaps, your “habitation.”  The newest version of Idaho Code 18-4009 lays out the places and people you have a right to defend with deadly force. Previously Idaho focused on one’s home as a place to protect with deadly force. The law now spells out your right to use deadly force – if necessary – to your place of work and your occupied vehicle.

Continue Reading Stand Your Ground – when, where and who?

Idaho’s law protecting a person acting in self-defense gets clarified by the passage of Senate Bill 1313 – which goes into effect July 1st. The real impact is to consolidate and codify existing law to clearly protect the inherent right of a person to defend themselves and others. Idaho law permits a law-abiding citizen to stand their ground and protect themselves and families anywhere they have a right to be. SB 1313 also protects the right of a person to defend against intruders who enter the defender’s home or business unlawfully or by force, without having to demonstrate that he or she reasonably feared the intruder was about to cause death or great bodily harm. The entry by unlawful force establishes that the defender’s fear of serious injury was reasonable, so the use of self-defense was likewise reasonable.

There is a lot of debate about restrictions on gun ownership and use across the land, but Idaho remains committed to the notion that self-defense, including the use of firearms and deadly force, is a reasonable response to an unlawful attack on you or your family. The law doesn’t really change anything, but it clarifies the right to stand your ground in the face of an intrusion or attack on you or your family. The law had the backing of law enforcement and prosecutors.

I just finished reading a news story in the NY Times titled “Frail, Old and Dying, but Their Only Way Out of Prison Is In A Coffin.” It follows reporting by The Marshall Project on the same topic. The bottom line, accurately told by both is this: there are far too many old prisoners who are dying in federal lockup because too many bureaucrats won’t release them. They like rules. We see them in criminal law – folks who cannot find any good in anybody confined for a crime.

The reports indicate too often old prisoners are not granted compassionate release, even when death is imminent, based on the severity of their offense or criminal history. How often? Sixty percent of the time. Imagine an eighty-seven-year-old man convicted of tax fraud with less than two years to serve on his sentence – Irwin Schiff. After trying to get his father released for two years, Andrew Schiff arrived at a federal prison to say goodbye to his father, who was by then unconscious and on a respirator, chained to his bed and watched by a guard twenty-four hours a day. Andrew told the NY Times, “There is no humanity in there.” He is right.

Aging prisoners are a problem, and with our ever-increasing number of inmates and ever-increasing length of sentences, the problem is going to simply get worse. Here are three things to remember if you are facing a federal trial and the possibility of a federal prison sentence.

First – the Feds play to keep. Defendants are found guilty or plead guilty in federal court 98.5% of the time. Fighting the feds requires faith in your lawyer, money to pay for the fight, and a commitment to get the case ready for trial. Preparation wins cases, especially federal cases. That takes time and time is money.

Second – If you are guilty, tell your lawyer. I know this sounds crazy but sometimes the best we can do for you is damage control. Getting you in and out as quickly as possible may be your best move, but your best opportunity to do that means you must be honest up front.

Third – Big sentences are the norm in certain drug cases and white-collar cases. It is important to understand the law here and keep in mind the potential factors that will increase the Sentencing Guidelines range. For example, in a fraud case, the amount of loss is critical because it is the primary determiner of the length of sentence.

One final thought on this grim subject – United States v. Stein, an 11th Circuit 2017 securities fraud case, provides a look at loss calculation for purposes of the sentencing guidelines range.  As menti0ned above, the bigger the loss, the longer the sentencing range – sometimes long enough to keep you in prison for the rest of your earthly years. In Stein, the Court of Appeals rejected the Government’s calculation of loss based what it termed “the buyer’s only” method because it failed to take into account reliance and proximate causation. Stein’s guidelines range had increased by 20 points based on the calculation of a $50 to $100 million loss. Intervening causes of loss, such as a declining market generally, must be considered on that issue. The Government had relied on actual loss, not intended loss, but its proof did not include evidence other than one investor who claimed he had been defrauded in reliance on the defendant’s fraud. The guidelines range in that case put Mr. Stein’s range at life in prison. He had been sentenced to 204 months – that’s right – 17 years.

If your case involves fraud – securities fraud, tax fraud, wire fraud – consult Stein and subsequent cases for potential arguments regarding loss calculations. It may be critical to keeping your sentencing level in check and avoiding death in the big house.

I am at it again, trying to keep a nice young man from a great family out of prison. Again. He awaits his fate. Again. And he is not alone. So many of the people addicted to opiates cycle in and out of the drug and in and out of the justice system. They fight the addiction like we were trained to fight in the Army. One battle at a time. Regroup. Be ready to fight again another day.

So on Sunday I watched CBS Sunday Morning’s report on the effort to hold Big Pharma responsible for unleashing this plague on all of us. If you are in this fight, check out their report for your self to see how similar this battle is to that against Big Tobacco.

But on our home front – representing folks addicted to opiates – we face a criminal justice system that is focused on prison. There is some chance at rehabilitation, but usually, it is for first-time offenders. The criminal justice system treats the addiction as a moral lapse, not a medical crisis. Most addicts are their own worst enemies, not because they don’t want to quit, but because the drugs control their lives and they can’t quit. Cannot. At least it seems that way.

So the battle is real.

If you are a soldier in the opioid crisis – better prepare for battle. Here are three steps to help  you to deal with the addiction and the system:

First – get into treatment. NA? Yes. Right now. Read the rest of this when you come back from that first meeting.  AA? Absolutely. Get in your car and get there. And a real substance abuse treatment program. Find one. Beg or borrow the money (please don’t steal it) and get into treatment. With opiates, you need at least an intensive outpatient program.

Next – go clean now. Not just clean in the sense of not using, but clean as in “tell your family and friends you need help.” Clean. Sleep on the living room floor while your loved ones watch over you and pray for you and feed you. They will do it, even if you have been a total jerk for the past couple years as you used, but denied using. Love has a way of understanding even criminal behavior.

Finally – if the man is after you, get a lawyer. You need help and advice and someone with experience in court can make the difference between freedom and confinement.

The battle takes place on all these fronts. Treatment is a battle. It costs and it takes work. Staying clean is a battle. It hurts and every day you will want to use and then lie to your family and friends. You are not fooling family or friends. And if you are in a battle with the law, you cannot fool the law either. So toughen up. Clean up. Truth up.

One day at a time.

People frequently ask questions about search and seizure, particularly when the search is not conducted pursuant to a warrant. The Constitution prohibits unreasonable searches. A warrantless search is unreasonable unless an exception to the warrant requirement applies. One common exception permits an officer to conduct a limited “pat-down” search of a detained person for weapons. This type of search originated in a case known as Terry vs Ohio.

What facts justify a pat-down search?  Are admissions made by a defendant after a pat-down search admissible at trial if the pat-down is unreasonable? And what about a prior statement made in response to questions by an officer who does not advise the defendant of his right to remain silent? Can that failure impact on a later admission?

These questions were recently considered by the Idaho Supreme Court in State v. Downing, decided December 22, 2017. Downing was the guest in a home occupied by a probationer named Cook. Probation officers went to verify the home as the Cook’s residence, and were told that a third person was also there. One officer asked Downing and Cook to sit on a couch with their hands visible while the other officer quickly “secured” the residence. The probation officer also searched the garage and discovered drug paraphernalia in plain view.

Cook’s behavior apparently went downhill and he became erratic as that search progressed. Although he had been cooperative, Downing stood up and walked in the direction of the front door. He sat back down when asked by the officer. When the probation officer asked about the drug paraphernalia in the garage, Downing admitted he had earlier smoked methamphetamine. He was not warned of his Miranda rights before answering the probation officer.

When local police officers arrived, Downing was warned of his Miranda rights and was then patted-down. Remember that the premise of the pat-down is officer safety, and the limited search is specifically for weapons. The officer felt something in Downing’s pocket and asked what it was. Downing told him it was methamphetamine, and the officer placed him under arrest for possession and another drug crime.

The issue for the Court was whether the district court should have suppressed the drug evidence and Downing’s statements to the local police officer. Downing’s statements to the probation officer before the police officers arrived had been suppressed by the district court. The trial court ruled that the drugs found on Downing (in response to the pat-down) and his statement to the officer that it was meth, not a weapon, were admissible.

The Supreme Court held that the pat-down search of Downing by the officer violated his Fourth Amendment right to be free from unreasonable searches. The Court found that the totality of the circumstances did not  support a finding that the officer had the “required reasonable articulable suspicion particularized as to Downing.” In other words – the facts simply did not support the conclusion he was armed and dangerous to the officer. The pat-down search was therefore unreasonable and any evidence derived from that search was inadmissible, so the drugs get suppressed.

The admissions to the officer were not admissible because there was no attenuation between the unreasonable search and the admissions by Downing.The admissions, like the drugs, flowed directly from the illegal pat-down search.

The purpose of the Terry stop and frisk – or pat-down search – is really officer safety. If an officer feels something during the pat-down search that is not a weapon, evidence seized without a warrant or admissions flowing from the warrantless search may be suppressed by the court and excluded at trial. Here the police officer found the drugs after receiving permission to search from Downing, but his consent to search his pocket flowed from his earlier admission that he had smoked methamphetamine before the officers arrived. That statement to the probation officers was not admissible because there had been no Miranda warning. His subsequent admission to the local police flowed directly from the prior illegal search.

If your case involves a search, a subsequent admission of guilt (“yes that is meth in my pocket”), or the seizure of evidence (the meth), you may have a viable motion to suppress all of the above. Check out the Downing decision for a great tutorial on these issues.

I recently attended the depositions of a couple clients who faced questioning about their lives by insurance lawyers. These depositions were really not intended to get to the “truth” of anything. The lawyers wanted to see our clients and hear their story as a means of valuing their cases. An insurance adjuster sat in on the questioning, likely trying to figure out how much money their claims were worth. That is, after all, the job for an adjustor.

Don’t get me wrong – there was nothing unusual about this. Although this blog spends most of its time addressing criminal case issues, my practice includes personal injury claims, wrongful death claims, contract disputes and civil rights matters. In those civil cases we get the opportunity to fully explore each person’s story through discovery, including depositions. Depositions provide the opportunity to evaluate the people we will oppose in court if the case is tried.

What struck me as I watched these proceedings was the simplicity with which their story can be told. Both of our clients were injured. They had been hospitalized and received medical care. Their medical costs continue today as their primary concern going forward. When it came to explaining how their injuries had impacted their daily lives, each had a simple explanation that was unique to their circumstances. For example – “I am less productive. I need time for the medications to work in the morning so I can safely drive to work. I can’t function as a manager….” Simple.

Each case is a story. What is behind the claim? Who is really responsible for the case? What actually happened, and why? How much money can make the plaintiff whole? Can he or she be made whole?

If you are headed for a deposition, I suggest these three things:

First – just keep it simple. Answer the questions you are asked. No reason to go wandering off into the never asked land.

Second – undersell, don’t oversell. No crazy claims about hair loss resulting from an auto collision or pain in your hip resulting from an injury to your arm. Claims that go too far simply make your case more difficult to settle or win.

Third – be truthful. I listened as our client told the insurance lawyer that she did not know what the doctor thought about the cause of a seemingly unrelated condition, and I cheered. Just a little cheer and to myself. Here was a woman who clearly was not trying to game the system and include unrelated issues. That added to her credibility in ways that likely scared the adjustor.

At the end of the day, a solid deposition can make or break your case, so be cautious.

The Idaho Supreme Court once again points out the importance of challenging line-up identifications whenever the issue arises. Many people do not understand how common such evidence is, or how often jurors rely on the identification as the basis for their decisions. Eyewitness identification evidence can destroy a defense case with little more effort than announcing the name of the witness at trial. So how do you handle this problem as the lawyer?

The answer is simple – you challenge the identification before trial, during trial and after the trial if you have lost.

In Wurdemann v. State of Idaho, the Idaho Supreme Court held that John David Wurdemann’s sixth amendment right to effective assistance of counsel was violated by his conviction resulting from an attack on Linda LeBrane. Wurdemann’s lawyers did not adequately prepare for trial and were unaware of the relevant law regarding the admission of such evidence. Counsel failed to challenge LeBrane’s eyewitness identification of Mr. Wurdemann in a video line-up the Court reasoned was improperly suggestive. From that video, Wurdemann was identified as one of four attackers. His lawyers should have filed a motion to suppress the identification before trial, but they did not even object at trial.

Linda LeBrane picked Wurdemann out of a video lineup, some two years after she was severely beaten while driving from Washington to Utah. She had picked out men other than Wurdemann as her attacker from at least three other photo lineups. LeBrane described her attacker to police as a “very, very tall and thin” Hispanic or Native American man with long, dark greasy hair. She also said he had a “really bad rash” on his face, spoke English, and no facial hair. In the video lineup Wurdemann was one of six men shown to LeBrane, three of whom had long hair. Of those with long hair, Wurdemann was much taller than the other two. One of the other two did not speak English and the other had facial hair. And if that was not enough, a detective who investigated the beating identified another man as more closely matching the composite drawing of LeBrane’s attacker. That man was a known accomplice of a codefendant convicted in the case.

As Chief Justice Burdick wrote, “such a lineup is the epitome of an improperly suggestive lineup.” Left unchallenged before trial, and without an expert witness on eyewitness identification, the Court held Wurdemann had not received a fair trial.

And the whole point of any trial is to provide a fair forum for the determination of the facts.

What should you do when faced with the identification evidence and a lineup? Is the lineup suggestive – does it point the witness to the defendant? If it does, challenge the lineup before trial by filing a motion to suppress, and object at trial. Hire an expert to testify as to the suggestiveness of the lineup and the value of such testimony in general.

The language in the case reminds us as lawyers that regardless of the type of evidence, or the type of case, a pretrial challenge may be the only way to effectively represent our client. That is particularly true in any sexual assault or battery case. The eyewitness identification may be the only real evidence linking a defendant to a crime. That duty to defend diligently requires lawyers to prepare and research the law in every case. You cannot simply rely on your ability to cross-examine at trial.  Wurdemann’s lawyers overlooked their obligation to challenge the admission of the video lineup under Idaho Criminal Rule 12(b)(3). That rule permits defendants to file motions to suppress when evidence was illegally obtained or is otherwise constitutionally inadmissible. The Court ruled that there was no reasonable trial strategy that excused the lawyers’ failure to object to the admission of the video lineup. They simply did not adequately prepare, review, research and object!

Preparation for trial takes time and effort. Every case requires the lawyer know the facts, the law, and how they intersect. The bottom line for us is simple. We cannot get lazy.

Have a trial question? Drop us a line and maybe we can all learn something.

We receive daily inquires regarding the expungement of convictions, dismissing convictions, and reducing felony judgments to misdemeanors. Here are the Idaho options for someone who has completed probation. I hope this post helps demystify the procedures.

Withheld judgment:

Idaho generally allows each person one withheld judgment, but not every offense will support a withheld judgment. For example – there are no withheld judgments likely available for rape, robbery or murder. A withheld judgement requires the defendant to plead guilty and go through a sentencing proceeding. This usually requires that a presentence investigation report be completed for a felony offense. At sentencing, the judge may place the defendant on probation and impose specific conditions without entering a judgment – that is – by withholding the entry of judgment. If the defendant complies with the Court’s conditions, no judgment of conviction is entered, but if the defendant violates the terms of probation, the judge can resentence the defendant and enter a judgment of conviction. A successful withheld judgment will allow you to say honestly that you’ve never been convicted of a crime. But, as with the following, a record of your charge will remain. Once probation is completed successfully, a person whose judgment has been withheld can file a motion to have the court dismiss the case.

Dismissal:

Idaho Code § 19-2604 details the eligibility requirements to have a conviction dismissed. Two key factors determine eligibility. The first is whether you completed your probation without EVER violating the terms. If you have either admitted to a probation violation or the court found you guilty of one, you will not be eligible for a dismissal of your conviction. The second factor is whether the court finds ‘good cause’ to dismiss your conviction. Good cause will likely be found if you never violated your probation.

If you served a sentence at the Idaho State Penitentiary, you are not eligible to have the case dismissed under this statute. You may, however, be eligible to have your charged reduced from a felony to a misdemeanor.

Reduction to misdemeanor:

Under Idaho Code §19-2604, a felony conviction may be reduced to a misdemeanor upon petition to the court. If less than five years have passed since the defendant’s discharge from probation, the prosecuting attorney must agree with the reduction. If at least five years have passed, then the prosecuting attorney’s approval is only needed if the defendant was convicted of the offenses listed under § 19-2604(3)(c)(i)-(xv).

Specific to juvenile offenders:

Idaho Code § 20-525A details eligibility for juveniles to have their conviction expunged, with certain serious violent offenses excluded. For felonies, eligibility begins the latest of reaching 18 years of age, five years after release, or five years after the end of the juvenile court’s jurisdiction. For misdemeanors, eligibility is the latest of one year after the end of the juvenile court’s jurisdiction or reaching age 18. The procedure for expungement allows the court, after a hearing, to expunge a juvenile record if it finds that the juvenile has been held accountable, is a contributing member of society, and that expungement will not risk public safety. The result of the expungement will result in records being sealed and removed from public access and the juvenile may deny the existence of any record.

Effect of a Dismissal:

It is useful to know the effect of a dismissal of a conviction on your record. In Idaho, even if you have your conviction dismissed or have been granted a withheld judgment, the record for your being charged will remain on the Idaho State Repository(iCourts?). The record will then read “Dismissed By Court” or “Dismissed”. There is no way to have your record completely cleared unless it is a juvenile conviction or certain domestic violence convictions where the case is sealed.

For more information about getting a conviction dismissed, give us a call at (208) 342-4633.