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A day for criminal law (UPDATED to 12:26 p.m.)

In one of three actions Monday on criminal law issues, the Supreme Court ruled unanimously that Congress did not intend in 1998 to spare individuals convicted of federal crimes from an extra sentence if they used a gun during a drug offense or a violent crime.  That was the first decision of the Term in an argued case.  The Court also added two new criminal cases to its docket for decision this Term, involving a new aspect of the “exclusionary rule” and a clarification of the proof needed under a federal murder law.

The Court’s sentencing law decision resolved a dispute among lower courts about the effect of a 12-year-old change of the federal law that adds at least five years to a criminal’s prison sentence for using or carrying a gun during either a drug crime or a crime of violence.  That added period of years extends beyond any sentence for the underlying crime.  Congress provided that extra punishment, the Court recalled in Monday’s decision, to punish independently for having a gun during a criminal episode.

That goal, the Court decided in Abbott v. U.S. (09-479) and Gould v. U.S. (09-7073), would be undercut if the 1998 revision of the law were interpreted to set aside the additional term in some cases.  Upholding the federal government’s view, the Court ruled that those who violate the criminal ban on gun possession or use must always get at least an extra five years, unless some other law added even more time to the prison term. (The Court ruling, written by Justice Ruth Bader Ginsburg, was unanimous, although Justice Elena Kagan did not take part in it.)

The practical effect of the ruling can be seen in the two specific cases the Justices decided.

Kevin Abbott (in case 09-479) was convicted of several cocaine crimes, and of being a convicted felon with a gun, as well as for using the gun during the cocaine crimes.  He got a 15-year sentence for the felon-in-possession conviction, and then five years were tacked on for having the gun during the drug offenses.  He contended that the 1998 law exempted him from the extra five years, because he already had been subject to a greater minimum sentence — that is, the 15 years on the felon-in-possession charge.

Carlos Rashad Gould pleaded guilty to a conspiracy to distribute cocaine, and with possessing a gun during that crime.  He received a mandatory ten-year sentence for the cocaine trafficking offense, plus the extra five years for the gun possession.  He contended that the extra five years were invalid, because of the mandatory minimum he already faced for drug trafficking.

Federal appeals courts rejected both of the challenges, and the Supreme Court agreed with that result Monday.

In one of the new criminal law controversies the Court agreed to review, the Court — for the second time this month — accepted a case testing another aspect of the “exclusionary rule.”  That is the Court’s requirement that, if evidence was obtained illegally by police, it cannot be used to prosecute the individual involved.  The new issue is whether an individual’s motor vehicle records cannot be used as evidence, if the police had consulted those records only after making an illegal stop of the individual’s vehicle.  In a New York City case, police stopped a car driven by Jose Tolentino, because they claimed he was playing his radio too loudly.  They learned from the stop who he was, and used that information to run a computer check of his records, showing that his driver’s license had been suspended, and that he had had at least ten prior license suspensions.  (The case is Tolentino v. New York, 09-11556.)

Tolentino moved to bar the use of the records against him, arguing that they were the product of an unlawful police stop.  That challenge was denied, and he pleaded guilty to driving without a license, and was sentenced to five years on probation.  The New York Court of Appeals, the state’s highest court, ruled that the “exclusionary rule” did not apply to the motor vehicle records, finding that an individual has no right to prevent the use of his mere identity as evidence.   Taking the issue on to the Supreme Court, Tolentino argued that lower courts are split on the issue.

On Nov. 1, the Court had granted review of Davis v. U.S. (09-11328), testing whether the “exclusionary rule” applies to bar evidence that resulted for a police search that was valid at the time it occurred, but would later turn out to have been unconstitutional because the Supreme Court in the meantime had altered constitutional doctrine on police searches.

In the other case granted review on Monday, the Court in Fowler v. U.S. (10-5443) will sort out the kind of proof that prosecutors must offer in order to get a conviction for murdering a person to prevent that individual from reporting a federal crime to a federal law enforcement officer or judge.  The specific issue is whether there must be proof that the victim actually intended to report the crime to a federal officer — an issue on which the lower courts are split.

The case involves Charles Fowler, a Floridian who was an alleged member of a gang, the Seventh Street Thugs. Fowler was convicted of violating the federal murder law for the shooting death of a Haines City, Fla., police officer who confronted Fowler and others as they were preparing to rob a bank.  Fowler’s petition for review contended that the officer had no specific intent to go to federal authorities with anything he learned at the time of his death.

The Court issued other orders Monday, including these results:

* The Justices refused to dismiss a granted case, Kentucky v. King (09-1272) at the suggestion of lawyers for the individual involved, Hollis Deshaun King of Lexington.  King’s counsel has discovered that the charges against King, in a “hot pursuit” case, were dismissed even before the Court granted review on Sept. 28. The Court presumably will deal with the effect of that dismissal when it considers the case at oral argument, set for Jan. 12.

* In another granted case, Henderson v. Shinseki (09-1036), the Court agreed to substitute the widow of a veteran, David L. Henderson, since he died after the Court agreed to hear his case.  The widow apparently would be entitled to any benefits, if the case produces them.  The case is scheduled for argument on Dec. 6.  Justice Kagan took no part in this order.

* The Court denied review of two test cases on whether the Federal Communications Commission had the authority to set ceilings on rates charged when computer users connect to the Internet through a dial-up with their local telephone company.  The FCC had urged the Court to bypass the case, arguing that dial-up technology was in declining use with the wide expansion of broadband access to the Internet.  The cases were Core Communications v. FCC (10-185) and Pennsylvania Public Utility Commission v. FCC (10-189).

* The Court also refused to hear a case testing the level of scrutiny that federal courts are to use in weighing challenges to grand jury subpoenas, when those subpoenas seek access to information that otherwise would be protected by the First Amendment.  The Court also refused to unseal the full petition for review; a heavily redacted version has been made public.  The case involves a grand jury investigation in Kansas that led to subpoenas for information from Siobhan Reynolds of Santa Fe, N.Mex., who heads a group that seeks to protect doctors who prescribe medications for relief of pain.  The case was In re grand jury proceedings (10-512).

Recommended Citation: Lyle Denniston, A day for criminal law (UPDATED to 12:26 p.m.), SCOTUSblog (Nov. 15, 2010, 10:42 AM),