Attorney Fee Award Consent 294

CASE LAW UPDATE:  Whether attorneys’ fee could be awarded after a consent decree?

Plaintiffs had filed suit to challenge portions of North Dakota’s election statutes.  The parties ultimately resolved the case through a consent decree.  Plaintiffs moved for an award of attorneys’ fees.  The District Court granted the motion, over defendant’s timeliness objection.  Defendant appealed.  On appeal, the Eighth Circuit Court of Appeals found that plaintiff’s motion was untimely.  However, the Court also found that plaintiff’s reasonable interpretation that a preliminary injunction was not the appropriate point to request attorneys’ fees constituted excusable neglect for the untimeliness of their motion.  Affirmed.

This seemingly innocuous case could be very important in regard your Second Amendment rights; namely, your ability to purchase a firearm.  When one goes to purchase a firearm, the dealer does what is called a NICs background check.  These NICs checks are essentially handled by the FBI.  All too often, the FBI wrongfully denies someone their ability to purchase a firearm; this constitutes a violation of your Second Amendment rights.  So, then, a person would have to challenge this in federal court. However, that is very expensive.  Hence, Congress put an attorney’s fee award provision in the statute, section 925A, so that a person wrongfully denied his Second Amendment rights will not be out $15,000 in attorney fees, or worse, do nothing, and forever be barred his right to purchase a firearm.  This is determined by whether the purchaser is considered a prevailing party.  So, this case may be helpful in that regard.

Sprit Lake Tribe v. Jaeger, MLW No. 77048, Case No. 20-2142, Eighth Circuit Court of Appeals, Colloton, J.  Appealed from the United States District Court, District of North Dakota.

Minnesota Criminal Defense Attorney Lynne Torgerson was not attorney of record in this case.

Know you are a felon 259

CASE LAW UPDATE:  Whether lack of knowledge that one is prohibited from possessing firearms is not a defense?

Defendant was convicted of felon in possession of a firearm.  Defendant appealed.  On appeal, defendant argued that his conviction should be reversed on the ground that the question of whether he knew he was a felon was not presented to the grand and petit juries.  Even acknowledging that these were plain errors, the Eighth Circuit Court of Appeals held that the plain errors did not affect his substantial rights because he could not show a reasonable probability that he would not have been charged or convicted if the right question had been presented.  (So apparently, it is a defense to not know one is a felon).

The crime of felon in possession of a firearm is a rather common charge.  Despite its being common, its potential punishments are severe.  For a first time felon in possession of a firearm charges, the range of sentence is mandatory 5 to 15 years in prison.  Most sentences do not even mandate prison.  Here, it is 5 to 15 years.  However, on a first time felon in possession charge, it is still possible, in State court, to get a downward departure to probation, and avoid an executed prison sentence.  However, on a second felon in possession charge, a prison sentence is mandatory.  This is called a “mandatory mandatory.”

United States v. Willis, 19-3361, per curiam.  Appealed from the United States District Court, Eastern District of Missouri.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Expungement theft eligible vehicle 265

CASE LAW UPDATE:  Whether the felony theft of a motor vehicle conviction was not eligible for statutory expungement?

Petitioner had been convicted of felony theft of a motor vehicle and later sought expungement of same.  The trial court held that her offense was not eligible for expungement under Minn. Stat. §609.02, subd. 3(b)(20).  Petitioner appealed.  The Minnesota Court of Appeals held that petitioner’s conviction was not eligible for statutory expungement, noting that the phrase “other theft offense” did not included Minn. Stat. §609.52, subd. (3)(d)(v), the provision under which petitioner was sentenced for theft of a motor vehicle.  Affirmed.

The expungements statutes are very important to people.  In 2015, the Minnesota legislature significantly modified the expungement statutes, and it was entitled the Second Chance Law.  The new statutory provisions allow for expungements for convictions.  This includes convictions for petty misdemeanors, misdemeanors, gross misdemeanors, and a short list of felonies.  On the list of felonies, it does include the ability to expunge a felony drug possession charge; namely 5th degree possession.  A fifth degree possession charge typically involves a small amount of a controlled substance.  There are different waiting period for each level of crime, before a person becomes eligible for an expungement.  For example, the waiting period for a misdemeanor is usually 2 years after discharge from probation, and during the that time frame, the petitioner cannot be convicted of any other crime, or else the waiting period starts over.  The waiting period for a gross misdemeanor is 4 years.

State v. D.E.L., A20-1280, Morrison County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Freedom Religion Ramadan Denied 209

CASE LAW UPDATE:  Whether defendant’s freedom of religion was not improperly infringed by one time denial of a Ramadan meal or Eid feast?

Where an inmate challenged the adverse grant of summary judgment on claims arising from the denial of religious texts, the claims were subject to dismissal for failure to exhaust administrative remedies, and the record did not establish that the practice of the inmate’s religion was substantially burdened under the Religious Land Use and Institutionalized Persons Act or the First Amendment by the one time denial of a Ramadan meal or Eid feast meal, so the judgment is affirmed.

While there is freedom of religion in the United States, a person incarcerated in prison has lesser constitutional rights than a person not convicted of a felon.  For example, while liberty is an important interest, certainly a person’s liberty is infringed upon when they are sentenced to prison.  Also, an inmate has a substantially less Fourth Amendment right against unreasonable searches and seizures; an inmate’s cell can be searched.  So, an inmate has a lesser First Amendment freedom in prison.

Scott v. Gibson, 20-3000, per curiam.  Appealed from the United States District Court, Eastern District of Arkansas.

Minnesota Criminal Defense Lawyer was not attorney of record in this case.

Assault bodily harm great 273

CASE LAW UPDATE:  Whether evidence of defendant’s alcohol consumption in assault case was relevant as to his judgment?

Defendant was convicted of 1st degree assault, the infliction of great bodily harm upon his 5 month old son.  Great bodily harm means injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.  There are five (5) degrees of assault in Minnesota, and 1st is the worst.  The evidence showed that the injuries occurred while defendant was home alone with his 2 infant children.  Medical evidence also showed that the injuries resulted from non-accidental, abusive, physical trauma.  Defendant appealed.  On appeal, defendant argued that the trial court erred in admitting evidence:  (1) of his alcohol consumption, and (2) his prior domestic abuse of his girlfriend.  The Minnesota Court of Appeals concluded the trial court did not abuse its discretion in admitting evidence of alcohol consumption on the grounds that it was relevant to defendant’s judgment, conduct, and credibility of details of incident; and (2) that defendant was not unfairly prejudiced by evidence that he previously assaulted his ex-girlfriend.  Typically, other misconduct evidence, also called Spriegl evidence, is not admissible to prove the crime charged.  In this case, the Minnesota Court of Appeals, impliedly recognizing that the evidence of defendant’s prior domestic abuse of his girlfriend should not have been admitted, found that it did not prejudice defedant’s right to a fair trial.  Affirmed.

State v. Damian, A20-0450, Meeker County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Solicitation Juvenile Electronic Sexual 300

CASE LAW UPDATE:  Whether evidence was sufficient to sustain conviction of soliciting a juvenile through electronic communication to engage in sexual conduct?

Defendant was convicted of soliciting a juvenile through electronic communication to engage in sexual conduct.  This is the typical case that you see on 60 Minutes –a sting operation.  Law enforcement, or 60 Minutes, place an ad to lure an adult to engage with a person, a minor, for the purpose of meeting that person and having sex with them.  The person on the other end is a police officer.  The parties typically exchanged a series of text messages.  Sometimes they exchange photos.  The fake persona intitially says they are an adult.  Later, they confess they are about 15 years old, making any sexual behavior a felony.  The solicitor typically proceeds forward even after the underage revelation.  They parties then make an appointment to meet.  When the defendant arrives at the scene, he is arrested for exchanging texts with what he believes to be a minor for the purpose of sexual relations.  It is a very serious felony, with permanent life altering consequences.  The courts have consistently held that the actions of the State actors are not entrapment.  Entrapment is an affirmative defense.  In the instant case, the defendant appealed his conviction.  Defendant argued that (1) the evidence was insufficient; and (2) the jury erred in rejecting his entrapment defense.  The Minnesota Court of Appeals concluded that the evidence was sufficient to prove that defendant reasonably believed the person he solicited and agreed to hire was 15 years old.  Further, the Court of Appeals held that there was no evidence that the State induced defendant to solicit and hire the poster.  Conviction was affirmed.

State v. Ineh, A20-0005, Hennepin County.

Minneapolis Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Fifth Amendment Silent Jury 225

CASE LAW UPDATE:  Whether defendant’s constitutionally required 5th Amendment right to remain silent was violated at his jury trial?

Defendant was convicted of 2 counts of 2nd degree criminal sexual conduct.  On appeal, defendant contended that the trial court erred by failing to grant a mistrial after a detective witness testified that defendant declined, post Miranda, to talk to investigators in violation of defendant’s Fifth Amendment rights.  The Minnesota Court of Appeals concluded that the detective’s disclosure to the jury that defendant had exercise his right to remain silent constituted an error, but held in was harmless error, claiming it was a lone statement in voluminous proceedings, and, a curative instruction was given.

State v. Rundles, A19-1601, Dakota County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

COMMENTARY:  With all due respect, this decision needs to be reversed by the Minnesota Supreme Court.  There cannot be “harmless error” in these circumstances.  What does the 5th Amendment require?  That if you invoke your constitutional right to remain silent, your silence CANNOT be used against you in a court of law.  The 5th Amendment requires that no one, including the judge, prosecutor and witnesses, CANNOT comments on the invocation of a constitutional right.  This case is manifestly unconstitutional, and needs to be reversed.  We cannot allow bad facts to destroy our constitution.

Theft Lawyer Shoplifting Cart 228

Shoplifting Attorney Minneapolis MN

CASE LAW UPDATE:  Whether the evidence was sufficient to sustain conviction for theft?

Defendant was convicted of shoplifting theft.  Retail stores have theft personnel who watch the store via video surveillance.  These theft personnel become quite expert as to the methods people use to steal merchandise.  They can often predict the behavior.  In Minnesota, generally, for theft, there is misdemeanor, gross misdemeanor, and felony level theft.  The level is determined by the value of the items stolen  The evidence in the instant case was that he removed several items from a retail store without paying for them.  Defendant contended that he did not commit a crime by temporarily leaving his cart, which contained unpaid for items, near the customer service area and the exit, while he spoke with customer service employees.  The Minnesota Court of Appeals concluded that the evidence was sufficient to support the conviction of shoplifting theft, noting that the inference that defendant intended to purchase the unpaid for items in his cart after putting the items he paid for back in his vehicle was not a reasonable inference in light of the evidence that defendant and another who attempted to  leave the store with the cart coordinated a hand off of the cart.  Conviction affirmed.

State v. Quaas, A19-2076, Beltrami County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Carrying pistol jury strike 304

Minneapolis Minnesota Gun Rights Lawyer

CASE LAW UPDATE:  Whether in this carrying without a permit case the trial court erred in failing to strike a juror sua sponte for bias?

Defendant was convicted of carrying a pistol without a permit.  In Minnesota, before a person can legally carry a pistol in public said person has to obtain a permit to carry from the local Sheriff’s Office.  The standard of whether the application will be granted is whether there would be a substantial likelihood that the person would be a danger to the public if allowed to carry a pistol in public.  The Sheriff makes that determination.  If the Sheriff denies the application, the person can take an appeal to the trial court.  The court then applies that statutory test.  If a person carries a pistol in public without a permit to carry, the defendant t is subject to criminal prosecution.  A violation is punished at the gross misdemeanor level for a first offense, and, a felony level for a second offense.  Arguably, this punishment for engaging in pure Second Amendment behavior is unconstitutional, and the United States Supreme Court needs to strike this statute down as unconstitutional.  In the instant case, defendant appealed. his conviction.  On appeal, he argued that he was entitled to a new trial on the grounds that the trial court erred by failing to strike a juror sua sponte for bias.  Sua sponte means on the trial court’s own motion.  Because defendant failed to bring forth a cause challenge to the juror in the trial court, the Minnesota Court of Appeals concluded that the question of whether the trial court erred by failing to strike the juror sua sponte was not properly before it.  Affirmed.

State v. Collins, A19-1277, Hennepin County.

Minneapolis Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Perjury oath notary affidavit 241

CASE LAW UPDATE:  Whether there was sufficient evidence to support defendant’s perjury conviction?

Defendant was convicted of perjury.  He appealed.  At trial, the notary testified that he did not administer an oath.  His testimony was uncontradicted.  Defendant’s conviction was based on a notarized affidavit he filed in litigation brought against him by a group of tenants.  On appeal, defendant argued that the evidence could not support a finding that he was under oath.  The Minnesota Court of Appeals concluded that the jury had ample reason to doubt the notary’s testimony, and, that sufficient evidence supported the jury’s determination that defendant was under oath when he knowingly made false material statements in his affidavit.  Affirmed.

Perjury is an exceedingly uncommon criminal charge.  It is surprising that this case was even charged out and prosecuted.  Even more surprising, is that the jury convicted him.  And, the jury convicted him in spite of the notary’s testimony that he never administered an oath to defendant.  The evidence did include however, an affidavit, which had been notarized by the notary.  So, the jury must have not believed the testimony of the notary.  Our jury system is vital to our entire system of justice.  While our system of justice in the United States is not perfect, it is by far one of the best in the world.

State v. Frenz, A20-0385, Hennepin County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.