Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant sold some stolen auto parts to an auto part store. He was convicted of “receiving” stolen property.

Holding: Defendant argues that older cases (some of which pre-dated the current statute) had held that to convict of receiving stolen property, there must be at least two actors involved, i.e., the accused must receive the property from some person other than the owner; defendant also relies on older cases that stated that one cannot at the same time be the principal in a larceny and a receiver of stolen property. However, while no evidence of a second party was presented at trial, the statutory definition of “receive” as contained in Sec. 570.010(13) does not require such proof. “Receives” as used in 570.080.1 references the definition of “receiving” contained in 570.010(13). This definition only required the State to prove that Defendant acquired possession or control of the property. The plain meaning of “acquire” is “to come into possession or control of [property] often by unspecified means.” The statute does not require proof of how or from whom Defendant acquired the property. The statute only requires proof of actual possession or control of it. Conviction affirmed.
Damon v. City of Kansas City, 2013 WL 6170565 (Mo. App. W.D. Nov. 26, 2013):

(1) Claims that municipal ordinances are unconstitutional are not within the “exclusive” jurisdiction of the Missouri Supreme Court, but are also within the jurisdiction of the Court of Appeals; (2) Plaintiffs who have received a notice of violation but have not yet gone to court or paid their fine have standing to assert their claims in this action because they do not have an adequate remedy in their ordinance violation cases since Private Company which administers the red light fine collection program is allowed to act in law enforcement, prosecutorial and adjudicative roles under the ordinance (disagreeing with Eastern District cases); (3) the “notice of violation” under the ordinance appears to conflict with Rule 37 because it does not state the address of a court (but rather directs payment to a private company) and does not command appearance before a court; (4) Plaintiffs have alleged sufficient facts to survive a motion to dismiss in contending that the ordinance does not have a substantial relationship to public safety because it actually increases accidents, reduces the number of police officers, and is really a revenue collection program; (5) the ordinance conflicts with state law which requires assessment of points for moving violations; and (6) if the ordinance is “criminal” in nature, then the rebuttal presumption that the owner of the vehicle is the driver is unconstitutional because it violates the presumption of innocence as to every element of the crime and because it invades the fact-finding function of the jury.

Facts: Plaintiffs raise numerous claims about validity of City “red light” ordinance. The ordinance provides that no vehicle shall be “driven” into an intersection with a red light. The ordinance also creates a “rebuttable presumption” that the owner of the vehicle is the driver. Finally, the ordinance provides that upon filing of an information in municipal court, a summons will issue pursuant to Missouri Supreme Court Rule 37.

Holding: As an initial matter, the Court of Appeals determines that it has jurisdiction in this case because claims that municipal ordinances are unconstitutional are not within the “exclusive” jurisdiction of the Missouri Supreme Court, but may also be decided by the Court of Appeals. Additionally, contrary to rulings by the Eastern District, the Western District finds that plaintiffs who have received notices of violation but who have not paid their fines do have standing to proceed as plaintiffs here because they do not have an adequate remedy at law in their ordinance violation cases since the ordinance allows the private company which collects the fines to play law enforcement, prosecutorial and/or adjudicative roles. The Supreme Court has recognized that subjecting a defendant to criminal sanctions involving his liberty before a tribunal that has a direct, personal and substantial pecuniary interest in convicting him is a denial of due process. Further, to allow private prosecutors, employed by private citizens, to participate in the prosecution of a defendant is fundamentally unfair. On the merits, the ordinance is invalid or unconstitutional for several reasons. First, there are multiple problems with the “summons procedure” for contesting a violation under the ordinance. The “notice of violation” is not delineated a “summons” and gives confusing and conflicting instructions on how to pay a fine or contest a violation. The notice conflicts with Rule 37 because it does not state the address of a municipal court, and does not command appearance in any court. Second, Plaintiffs have alleged sufficient facts to survive a motion to dismiss in contending that the ordinance does not have a substantial relationship to public safety because it actually increases accidents, reduces the number of police officers, and is really a revenue collection program. Third, the ordinance conflicts with state law, Sec. 302.302.1(1), which requires assessment of points for moving violations. Finally, if the ordinance is “criminal” (as opposed to “civil”), then the rebuttal presumption that the owner of the vehicle is the driver is unconstitutional because it violates the presumption of innocence as to every element of the crime and because it invades the fact-finding function of the jury.
State v. Rodgers, 2013 WL 427363 (Mo. App. W.D. Feb. 5, 2013):

Even though Sec. 571.070.1(2) makes it unlawful to possess a firearm if a person is a “fugitive from justice,” the phrase “fugitive from justice” is ambiguous because subject to multiple meanings, and must be construed strictly against the State; thus, even though Defendant had failed to appear in municipal court and a capias warrant had been issued for his arrest, the trial court did not err in dismissing an unlawful possession of firearm charge because Defendant was not necessarily a “fugitive from justice.”

Facts: Defendant was charged with a municipal offense of leaving the scene of an accident. However, he failed to appear on the charge, and a capias warrant was issued. When police approached Defendant to arrest him, he initially ran and threw down a gun, but was caught and arrested. The State charged Defendant with unlawful possession of a firearm under Sec. 571.070.1(2). Defendant moved to dismiss the charge, which the trial court granted. The State appealed.

Holding: Sec. 571.070.1(2) provides that a person commits the crime of unlawful possession of a firearm if such person knowingly has a firearm and “is a fugitive from justice.” The term “fugitive from justice” is not defined in the statute or anywhere else in the Criminal Code. Another Missouri statute, Sec. 319.303(16) defines it as a person who “has fled from the jurisdiction,” but this statute is not dispositive because it is in a different Chapter than the Criminal Code and has a different regulatory purpose. Other states and legal dictionaries give the phrase different meanings. Where a criminal statute is ambiguous, the rule of lenity requires that it be construed strictly against the State and liberally in favor of the Defendant. The elements of a crime should be clearly defined to provide meaningful notice of proscribed conduct. Here, the phrase is ambiguous and the trial court did not err in dismissing the charge. The appellate court suggests that the Legislature amend the statute to define the phrase.
* McCullen v. Coakley, ___ U.S. ___, 2014 WL 2882079 (U.S. June 26, 2014):

Holding: Statute which makes it illegal to stand in a public way or sidewalk within 35 feet of an entrance to a place where abortions are performed was not narrowly tailored to serve significant government interests and violated 1^st Amendment free speech guarantees.
* Loughrin v. U.S., 95 Crim. L. Rep. 416, ___ U.S. ___, 2014 WL 2807180 (U.S. 6/23/14):

Holding: A conviction under the federal bank fraud statute, 18 USC 1344, does not require proof that a financial institution was the target of the deception or that a financial institution was exposed to risk of loss; the statute’s reference to obtaining property “by means of” a false statement (such as a false statement in an altered check) was the mechanism that induced the bank to part with control over the money.
* Abramski v. U.S., 95 Crim. L. Rep. 381, ___ U.S. ___, 134 S.Ct. 2259 (U.S. 6/16/14):

Holding: A defendant who purchases a gun for someone else while falsely claiming it is for himself is guilty of making a false statement in connection with “any fact material to the lawfulness of the sale,” 18 USC 922(a)(6), even though the true buyer (other person) could have legally purchased the gun himself.
* Bond v. U.S., 95 Crim. L. Rep. 312, ___ U.S. ___, 134 S.Ct. 2077 (U.S. 6/2/14):

Holding: Sec. 229 of the Chemical Weapons Convention Implementation Act, which bans possession of chemicals that “can cause death, temporary incapacitation or permanent harm to humans or animals” was intended to prosecute acts of war, assassination and terrorism, not “purely local crimes”; hence, Gov’t could not use statute to prosecute a Defendant who put toxic chemicals designed to cause a rash on her husband’s mistress’ doorknob; “[t]he global need to prevent chemical warfare does not require the Federal Government … to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”
* U.S. v. Castleman, 95 Crim. L. Rep. 5, ___ U.S. ___, 134 S.Ct. 1405 (U.S. 3/26/14):

Holding: A “misdemeanor crime of domestic violence” under 18 USC 921(a)33 means a misdemeanor with a degree of force supporting only common-law battery, i.e., an “offensive touching” against a present or former spouse, parent, guardian or similar person. Here, Defendant was convicted under a state law allowing conviction for minor minor “bodily injury” such as a bruise. This qualified as a “misdemeanor crime of domestic violence” and, thus, prohibited Defendant from possessing a firearm under 18 USC 922(g)(9), which prohibits possession of a firearm by anyone convicted of a “misdemeanor crime of domestic violence.”
* Rosemond v. U.S., ___ U.S. ___, 94 Crim. L. Rep. 701, 134 S.Ct. 1240 (U.S. 3/5/14):

Holding: A Defendant charged with aiding and abetting another person who uses or carries a firearm in a crime of violence or drug trafficking is entitled to an instruction to determine whether he became aware that the person was armed in time to withdraw from the crime; 18 USC 924(c) requires that Defendant have “advance knowledge – or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice”; the Gov’t must prove that Defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a participant would use or carry a gun during the crime’s commission.
U.S. v. Caronia, 92 Crim. L. Rep. 265 (2d Cir. 12/3/12):

Holding: The FDA Act does not prohibit drug makers from making truthful statements promoting off-label uses of their drugs, because such a prohibition would violate the First Amendment.
U.S. v. Aleynikov, 2012 WL 1193611 (2d Cir. 2012):

Holding: The code that a defendant uploaded to a server and downloaded to his computer devices was intangible intellectual property, not “goods,” “wares,” or “merchandise,” within the meaning of the National Stolen Property Act (NSPA).
U.S. v. Lanning, 93 Crim. L. Rep. 593 (4^th Cir. 7/19/13):

Holding: 36 CFR 2.34(a)(2), which prohibits activity that is “obscene” or “physically threatening” in a federal park, was unconstitutionally vague as applied to Defendant where undercover Park Ranger had approached Defendant and indicated he would be interested in having sex, which then caused Defendant to grope Park Ranger; the regulation was vague because no reasonable person would know that acting in this way in response to a flirtatious conversation with a Park Ranger would lead to criminal liability, and the vagueness encourages arbitrary enforcement because there were no sting operations for heterosexual conduct.
MacDonald v. Moose, 92 Crim. L. Rep. 749, 2013 WL 935778 (4^th Cir. 3/12/13):

Holding: Virginia state court unreasonably applied federal law when it upheld conviction for adult who had oral sex with a minor under state statute that criminalizes oral sex since this violates Lawrence v. Texas, 539 U.S. 558 (2003), which struck down an anti-sodomy law between consenting adults under due process clause; 4^th Circuit holds that although State can proscribe oral sex between adults and minors, it cannot convict petitioner/Defendant under a general, anti-oral sex law (not a “child sex” law), which it did here.
Speet v. Schuette, 93 Crim. L. Rep. 690 (6^th Cir. 8/14/13):

Holding: Law which criminalized begging (panhandling) violated First Amendment, which protects rights of individuals to solicit money.
Moore v. Madigan, 92 Crim. L. Rep. 330 (7^th Cir. 12/11/12):

Holding: Illinois law prohibited most people from carrying a gun in public violates 2^nd Amendment right to bear arms for self-defense.
Peruta v. San Diego County, 94 Crim. L. Rep. 573 (9^th Cir. 2/13/14):

Holding: Law that allowed concealed carry permits only if applicant can show “good cause,” or “pressing need for self-protection” beyond an ordinary citizen, violated Second Amendment.
Valle del Sol Inc. v. Whitting, 94 Crim. L. Rep. 86 (9^th Cir. 10/8/13):

Holding: Ariz. statute that makes it unlawful for a “person who is in violation of a criminal offense” to harbor or transport an alien is void for vagueness because this phrase is unintelligible, and the statute is also preempted by federal law.
Comite de Jornaleros de Redondo Beach v. Redondo Beach, Calif., 89 Crim. L. Rep. 826 (9^th Cir. 9/16/11):

Holding: Anti-soliciting ordinance designed to deter day laborers from congregating was not narrowly tailored as to time, place and manner.
U.S. v. Bellaizac-Hurtado, 2012 WL 5395281 (11^th Cir. 2012):

Holding: The Maritime Drug Law Enforcement Act (MDLEA) exceeds Congress’ authority to define “Offences against the Law of Nations,” since drug trafficking was not a violation of the law of nations during the founding period or under current customary international law.
Conley v. U.S., 94 Crim. L. Rep. 95 (D.C. Cir. 9/26/13):

Holding: Statute making it illegal to knowingly be in a car where an illegal firearm is present – even if the person has no connection to or control over the firearm and is not engaged in wrongdoing – is unconstitutional because (1) given the long history of 2^nd Amendment rights, ordinary citizens would have no reason to think that passive presence in a car with an illegal gun is itself illegal; (2) the statute sweeps in people who may be in the car for any number of “innocent reasons” and have nothing to do with the gun; and (3) the statute violates due process because it shifts the burden of proof to defendants by making them prove that their continued presence in the car was involuntary.
U.S. v. Ali, 93 Crim. L. Rep. 397 (D.C. Cir. 6/11/13):

Holding: Defendant cannot be tried in U.S. for conspiracy to commit high seas piracy if the acts occurred on dry land or in his country’s territorial waters, but he can be tried for aiding and abetting piracy.
In re National Security Letter, 92 Crim. L. Rep. 759 (N.D. Cal. 3/14/13):

Holding: The “gag order” and judicial review provisions of 18 USC 2709 governing the FBI’s issuance of a national security letter to an internet service provider violate the First Amendment and separation of powers.
Shelton v. Sec’y, Dept. of Corrections, 89 Crim. L. Rep. 659, 2011 WL 3236040 (M.D. Fla. 7/27/11):

Holding: Drug trafficking law which authorizes conviction without any proof of criminal intent violates due process.
Warren v. State, 2014 WL 696339 (Ga. 2014):
Holding: Even though Defendant sent nude photo of self to victim’s cell phone, this did not violate statute prohibiting unsolicited distribution of nude materials because the statute contemplated use of standard mail, involving tangible material in a tangible envelope or container.
McCormack v. Heideman, 90 Crim. L. Rep. 19 (D. Idaho 9/23/11):

Holding: Statute that imposes criminal penalties on women who get an abortion without requiring that their abortion provider comply with all state laws regarding abortion violates women’s right to abortion.
People v. Clark, 94 Crim. L. Rep. 766 (Ill. 3/20/14):

Holding: Eavesdropping statute which criminalizes recoding of almost all conversations, public or private, without the consent of all parties is overbroad under 1^st Amendment.
Doe v. Jindal, 90 Crim. L. Rep. 717 (M.D. La. 2/16/12):

Holding: A state law that bars certain unregistered sex offenders from accessing internet sites frequented by children, but that results in a “near total ban” on the offenders’ internet access is overbroad in violation of the First Amendment.
U.S. v. Cassidy, 90 Crim. L. Rep. 388 (D. Md. 12/15/11):

Holding: 18 USC 2261A(2)(A) which criminalizes using a computer to harass or cause someone emotional distress violated First Amendment as applied to a Defendant who made blog posts which attacked a prominent religious leader who was a well-known public figure.
U.S. v. Cassidy, 2011 WL 6260872 (D. Md. 2011):

Holding: Interstate stalking statute criminalizing anyone for intentionally causing substantial emotional distress to another person using an interactive computer service was unconstitutional, as applied to defendant, where defendant used an Internet blog and Twitter to engage in conduct that caused substantial emotional distress to an easily recognizable public religious leader, and the victim had the ability to avert her eyes from the blog and ignore or block Twitter messages.
Com. v. Robertson, 94 Crim. L. Rep. 711, 2014 WL 815332 (Mass. 3/5/14):

Holding: State law that prohibited secretly photographing someone who is “nude or partially nude” where they have an expectation of privacy did not prohibit taking “upskirt” photos of female passengers on a train, because women in skirts were not “nude or partially nude, no matter what is or is not underneath the skirt by way of underwear or other clothing.”
State v. Melchert-Dinkel, 94 Crim. L. Rep. 767 (Minn. 3/19/14):

Holding: Provision of assisted suicide law that prohibits encouraging or advising someone to commit suicide violates 1^st Amendment right to speech.
U.S. v. Rubin/Chambers, 2011 WL 3041637 (S.D. N.Y. 2011):

Holding: 18 USC 1005 imposes criminal liability only on bank officers, directors and employees.
U.S. v. South Carolina, 2012 WL 5897321 (D.S.C. 2012):

Holding: South Carolina law making it a felony to transport, shelter, etc., an illegal alien to help them avoid detection is likely preempted by federal law, and so a preliminary injunction against the law issues.
U.S. v. Richards, 2013 WL 1683639 (S.D. Tex. 2013):

Holding: 18 USC 48, which criminalizes “animal crush” videos, violates 1^st Amendment because such videos, although offensive, are not obscene in that they do not involve sexual conduct.

U.S. v. Wainright, 2011 WL 2276992 and 2517013 (E.D. Va. 2011):

Holding: Defendant’s conviction for killing witness to prevent them from reporting to law enforcement must be vacated in light of intervening law that witness’ proposed communication must be to federal law officials.
Paschal v. State, 91 Crim. L. Rep. 65 (Ark. 3/29/12):

Holding: Statute that makes it a crime for teachers to have sex with students under age 21 violates constitutional right to privacy as applied to teacher who has sex with 18 year old student.
People v. Murphy, 2011 WL 2638136 (Cal. 2011):

Holding: If a general statute defines an offense and there is also a special statute, violation of which will result in violation of the general statute, then the special statute is interpreted as creating an exception to the general statute; thus, the statute making it a misdemeanor to file a false report of theft of a vehicle creates an exception to the general statute making it a felony to offer any false or forged instrument.
Final Exit Network, Inc. v. State, 2012 WL 360523 (Ga. 2012):

Holding: Statue criminalizing offers of assistance in suicide was facially invalid under the free speech provisions of the state and federal constitutions because it was not narrowly tailored to promote the state’s compelling interest in preventing suicide.
People v. Aguilar, 93 Crim. L. Rep. 775, 2013 WL 5080118 (Ill. 9/12/13):

Holding: Statute that makes it illegal for anyone other than police and certain others to carry a “ready to use” firearm that is “immediately accessible” violates 2^nd Amendment.
State v. Sarrabea, 94 Crim. L. Rep. 117, 2013 WL 5788888 (La. 10/15/13):

Holding: La. law making it a felony for an alien to drive without documentation demonstrating lawful presence in the U.S. is preempted by federal law in the area of alien registration.
People v. Moreno, 2012 WL 1381039 (Mich. 2012):

Holding: Statute prohibiting people from resisting and obstructing a police officer did not abrogate common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas; neither the language nor legislative history of the statute indicated that the Legislature intended to abrogate this common-law right.
State v. Dugan, 92 Crim. L. Rep. 734, 2013 WL 607824 (Mont. 2013):

Holding: (1) Even though Defendant, in talking to Gov’t employee on phone, got angry and called her a “f***ing [obscene name]”, these were not fighting words that lacked First Amendment protection since there was little likelihood of an immediate breach of peace or imminent violence since the employee was on the phone; “words spoken over the telephone are not proscribable under the fighting words doctrine because the person listening on other end of the line is unable to react with imminent violence against the caller,” and (2) harassment law provision which made use of profane language “prima facie” evidence of intimidation was overbroad under First Amendment.
State v. Romage, 94 Crim. L. Rep. 748 (Ohio 3/6/14):