Showing posts with label Ex Post Facto. Show all posts
Showing posts with label Ex Post Facto. Show all posts

Seventh Circuit: Brian Hope v. Commissioner

 

Unequal treatment of a state's residents under the 14th Amendment right to domestic travel only occurs when a law expressly differentiates between residents based on their length or timing of residency.

Absent a violation of the right to travel, the equal protection claim should be assessed under rational basis review.

State's offender registration law is insufficiently punitive to base an ex post facto claim upon it; the stated purpose of the legislature was civil and regulatory.  In practice, it's sufficiently different from parole, as the status can't be revoked; its restraints and disabilities aren't sufficiently severe to make the law punitive;  residency restrictions do not serve punitive aims, and there is sufficient connection to nonpunitive purposes; and the law is not excessive in relation to its aims.

CONCURRENCE:

The registration law is permissibly retroactive; it imposes obligations beyond those prescribed at the time of the offense.

CONCURRENCE/DISSENT:

Requiring registration of residents who are subject to registration in their prior state of residence puts those residents on unequal terms with residents of their present state who are shielded from registration requirments by a decision of the state's supreme court holding the registration requirment to be sufficiently punitive to trigger ex post facto scrutiny.

A resident of the instant state who then travelled to another state where they were subject to registration requirements would then have to register in the instant state upon their return, burdening the travel right.


http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-16/C:19-2523:J:St__Eve:aut:T:fnOp:N:2748072:S:0

Seventh Circuit: Joshua Vasquez v. Kimberly Foxx

State's expansion of residence restrictions for registered offenders was not an ex post facto penalty, as the conduct regulated is post-enactment knowing residence.  The law does not amount to a taking, since it is a regulation on the use of property, doesn't affect the market value of the property, and plaintiffs acquired the property after enactment.  Procedural due process does not require individual hearings.  The law has a rational basis.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1061:J:Sykes:aut:T:fnOp:N:2184695:S:0

Third Circuit: Ahmed Bakran v. Secretary

As the statute vests the determination of status in the agency and such action is statutorily unreviewable, supporting criteria developed by the agency are also unreviewable, as they are merely interpretive aspects of the determination.

As the felony conviction of the alien's spouse and sponsor does not impede the marriage, but merely the right of the spouse to live in the US, the right to marry is not affected; further, the question of residency is much broader, and the limitation of the rights of the sponsor following a felony conviction is a reasonable one.

As the statute that attached new limitations to the rights of those already convicted was clearly intended to apply to past convictions and referenced post-enactment dangers, there is no violation of Ex Post Facto; waived anyway.

http://www2.ca3.uscourts.gov/opinarch/163440p.pdf

Eighth Circuit: United States v. Gervais (Ken) Ngombwa

No ineffective assistance where attorney declines to investigate family relations, thinking there to be a substantial likelihood that unsavory details might be discovered.

Misstatements to agency properly grouped with later immigration offenses, as the purpose of the agency action was immigration enforcement, which serves society -- the victims were identical.

No Ex Post Facto violation in using a version of the sentencing guidelines in effect at the time of the later crimes that contains a new enhancement relevant to the earlier crimes, as sufficient notice before the later crimes is presumed.

No abuse of discretion in use of foreign convictions as proxies for the factual finding that the criminal history level underrated the deft's acts.

No abuse of discretion in use of genocide witness statements -- if hearsay, they had sufficient indicia of credibility.

Foreign expert testifying on video-link at sentencing is not unreliably unsworn.

http://media.ca8.uscourts.gov/opndir/18/06/187168P.pdf



Second Circuit: United States v. Vernace

RICO, Crim

Sufficient evidence for RICO predicate where a personal motive and the racketeering motive coexist.

Sufficient evidence for drugs conviction.

No plain error in use of post-hoc amendments to sentencing statute, given independent life sentence and minimal briefing on appeal.

No abuse of discretion in denial of new trial for witness' subsequent initial gambling, given extensive prior illegal activity.

http://www.ca2.uscourts.gov/decisions/isysquery/7a5c1e15-407f-473e-84d7-0818e2325d88/1/doc/14-2197_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7a5c1e15-407f-473e-84d7-0818e2325d88/1/hilite/


Seventh Circuit: Michael Belleau v. Edward Wall

Release conditions - electronic monitoring

No Fourth Amendment violation for warrantless perpetual electronic monitoring, given the incremental loss of privacy and substantial social benefits.

Electronic monitoring isn't Ex post facto, as it's not a punishment.

Concurrence in J: Reasonable special needs search, but if tech was more ubiquitous, possibly a different calculus.  Not punitive in purpose or effect.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-29/C:15-3225:J:Flaum:con:T:fnOp:N:1694901:S:0