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WHAT'S THAT WORD?RETROACTIVE/ RETROSPECTIVE: Operating in a backward direction; applying to the past as well as to the future. Until the Supreme Court declares Alleyne v. US, 133 S.Ct. 2151 (2013), retrospective, none of the inferior courts will deem themselves to have that power as each has asserted in more than 200 hundred cases within the year after the Supreme Court's Alleyne decision.  Symptomatic of the indecisiveness of the inferior courts is the 7th Circuit Court of Appeals' pronouncement in Simpson v. US,  721 F.3rd 875 (2013):  "… the decision is the Supreme Court’s, not ours, to make. Unless the Justices themselves decide that Alleyne applies retroactively on collateral review, we cannot authorize a successive collateral attack…"  The inferior courts eschew making retrospectivity decisions, without distinguishing substance from procedure, based on their belief that Tyler v. Cain, 533 U.S. 656, 663 (2001), stands for the proposition that a new rule is not to be "made retroactive" unless the Supreme Court holds it to be retroactive, apparently forgetting the pronouncements of Teague v. Lane, 489 US 288 (1989) and Schriro v. Summerlin, 542 U.S. 348, 351, 352 & n.4 (2004) that a new constitutional rule is retroactive if it is substantive rather than procedural in nature.  If Alleyne is not substantive, and we do not concede the point, at the very least it is of that category that has been described as a "watershed" rule of criminal procedure entitled to retroactivity as well.  Retroactivity analysis is complicated under federal law where an accused has previously sought relief on habeas grounds and is, at the time of consideration, requesting relief under a second and successive petition.  28 U.S.C. § 2244(b)(2)(A) (2006).  However, federal habeas requirements on second and successive petitions are understood to allow retroactive application where “the right combination of holdings” indicates the Supreme Court’s intent that a rule be employed retroactively.  Tyler v. Cain, 533 U.S. 656, 666 (2001).  Under Teague, substantive rules are always retroactive, Summerlin, whereas procedural rules are only retroactive when they are deemed to be “watershed” rules of criminal procedure.  Saffle v. Parks, 494 U.S. 484, 495 (1990).  Substantive rules “include decisions that narrow the scope of a criminal statute by interpreting its terms.” Summerlin, at 351.   This includes interpretations that modify an element of an offense, as recognized in Summerlin, Ring v. Arizona, 536 U.S. 584 (2002) and Apprendi v. New Jersey 530 U.S. 466 2000).  As the inferior courts will not make the retroactivity decision, Supreme Court must, if it is to be made at all. 





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Crime and Prisoner Law News

Really Azamat, alleged friend of Boston Marathon Bomber found guilty of obstructing justice because he "agreed with the plan" of another friend to remove items from a dorm room!

by George Hook on 07/26/14

Really Azamat, an alleged friend of alleged  Boston Marathon Bomber Two ("Joker") has been found guilty of obstructing justice and conspiracy because a few days after the bombing he "agreed with the plan" of a friend ("Dias") to remove from Joker's dorm room a backpack containing altered fireworks, a computer, and a jar of Vaseline, even though he was not alleged otherwise to have participated in their removal, and merely watched a movie with another friend ("Robel") while Dias did it.

FBI agents testified that Azamat told them he and Dias decided to take the backpack, fireworks and Joker's laptop computer hours after Dias received a text message from Joker that said Dias could go to his dorm room and "take what's there." The items were removed hours after the FBI released photos and video of Joker and his brother, identifying them as bombing suspects.

The backpack and fireworks were later recovered in a New Bedford landfill. Prosecutors said the fireworks had been emptied of their explosive powder.

According to the superseding indictment:

"5. At approximately 5:00 p.m. on April 18, 2013, the FBI published video and photographic images of Bomber One and Bomber Two on its website. Those images were widely rebroadcast by media

outlets allover the country and the world. The FBI asked for the public's help in identifying the two men pictured in the video and photographs. On Friday, April 19, 2013, the men pictured in these

video images and photographs were identified as Tamerlan Tsarnaev and Dzhokhar Tsarnaev ("Joker")."

"7….Until April 20, 2013, Dias and Asamat shared an apartment at 69A Carriage Drive, New Bedford, Massachusetts ("the Carriage Drive apartment")."

"10. During the fall 2012 and spring 2013 semesters, Joker and a roommate were assigned campus housing at Room 7341, Pine Dale Hall, on the UMASS-Dartmouth campus ("Dzhokhar Tsarnaev' s

dormitory room"). Joker was living in his Pine Dale Hall dormitory room during April 2013, the time period of the Marathon bombing."

"11. On April 21, 2013, the FBI searched Joker's dormitory room pursuant to a search warrant. Three days before the FBI executed its search, on the evening of April 18, 2013, after the

FBI posted the photographs of Bomber One and Bomber Two, Dias, Asamat  and Robel entered Tsarnaev' s dormitory room, removed several items from the room, including Joker's laptop computer

and a backpack containing fireworks, and brought them to the Carriage Drive apartment."

"12. Subsequently, between approximately 10:00 p.m. on April 18, 2013 and 1:22 p.m. on April 19, 2013, Dias placed Joker's backpack, which contained several items including fireworks and a jar of Vaseline, in a garbage bag and placed it in a dumpster outside the Carriage Drive apartment."

"13. On April 19, 2013, the Carriage Drive apartment complex's dumpster was emptied and its contents were moved to a landfill in New Bedford, Massachusetts. Over the course of two days, April 25, 2013 and April 26, 2013, more than 30 federal agents searched this landfill for the evidence Dias had placed in the trash. On April 26, 2013, Joker's backpack was found at the landfill. Inside the backpack, the agents recovered fireworks, a jar of Vaseline, a thumb drive, and a UMASS-Dartmouth homework assignment sheet."

14. Between on on or about April 19, 2013, and April 25, 2013, federal agents… interviewed Robel concerning material facts related to the terrorism investigation of the Boston Marathon bombing and…Joker. During these interviews, Robel concealed the fact that he, Dias, and Azamat had

gone into Joker' s dormitory room on the evening of April 18, 2013, and removed Joker's backpack from his room.'  In so doing, he made numerous false and misleading statements to the  agents."

 

Based on this, Dias and Asamat were charged in Count One with violating 18 USC 371 by conspiring to conceal Joker's backpack and contents so to obstruct justice and thereby violated 18 USC 1519.

Among the incriminating overt acts alleged was:

"e. While inside Joker's dormitory room on the evening of April 18, 2013,Dias showed Azamat a jar of Vaseline he had found among Joker's belongings and Dias told Asamat that he believed Joker had used the Vaseline "to make bombs" or words to that effect."

Although included among the incriminating overt acts alleged, the following tends to discredit the generalized timeframe the indictment otherwise posits as to when Joker was identified to Dias and Azamat as Bomber Two:

"i. On the evening of April 18, 2013 and the morning of April 19, 2013, Dias and Asamat watched television news reports about the persons suspected of committing the Marathon bombings. These reports showed pictures of a suspected bomber who was later publicly identified (by approximately 6:50 a.m. on April 19, 2013) as Joker. On the morning of April 19, 2013, multiple news reports identified Joker as one of the two Marathon bombers."

However, allegedly the garbage truck pick up of their garbage allegedly occurred thereafter as they watched.

Count Two alleges the actual obstruction by Dias and Azamat in violation of 18 USC 1519 and that old standby 18 USC 2.

Counts Three and Four allege that Robel violated 18 USC 1001(a)(2) by lieing to federal agents about the entry and exit of Joker's dorm room and what was removed; oddly the sole charge against him given his general apparent involvement along with Dias and Azamat, but suggesting that he is the snitch upon whom the prosecutors may be relying for their cases against Dias and Azamat.  This may also explain why he is scheduled to be tried last among them.  

Insofar as remotely relevant, 18 USC 1519 provides: "Whoever knowingly…conceals, covers up, a… tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States …or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both."  Obvious problem is that putting things in the garbage may not qualify.  Contemplate California v. Greenwood, 486 U.S. 35 (1988), which held that once abandoned, officers can search and seize any evidence found in your garbage.  Dias put Joker's backpack and its contents into the dumpster in the alley where the trash collectors came to pick it up.  How is such an abandonment to a space that is not constitutionally protected from police or public view a concealment or cover up? Unlike most other contexts in which it is asserted, charging 18 USC 2 here for obstructing justice does make sense as a crime against the US.  However, the timeline itself tends to discredit such a conclusion.  The garbage trail was followed immediately so that there was little if any obstruction; albeit, admittedly, not so minimal as to be non-existant as with Christ's obstruction chronicled in my Marking Time ( US versus Christ, pp. 580-624).

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Some who did not file an Alleyne petition by Alleyne's first anniversary (6/17/2014) deadline may have made that decision based on their hope that the DOJ's Clemency Initiative would free them from their sentence just as well.  We did not address that complaint at the time for lack of time, but do now because we believe Alleyne continues to remain alive for retrospective application. Unless an inmate satisfies all of the following eight conditions, it is not available: (1) the inmate would be characterized as a non-violent federal inmate; (2) the inmate would not pose a threat to public safety if released; (3) By operation of law, the inmate likely would have received a substantially lower sentence if convicted of the same offense(s) today; (4) the inmate would be characterized as a non-violent, low-level offender without significant ties to large-scale criminal organizations, gangs, or cartels; (5) the inmate has served at least 10 years of  the inmate's sentence; (6)  the inmate does not have a significant criminal history; (7)  the inmate has demonstrated good conduct in prison; and (8)  the inmate has no history of violence prior to or during the inmate's current term of imprisonment. Even if an inmate satisfies all of these eight criteria, clemency is dependent upon the DOJ recommending clemency to the President and the President exercising his totally discretionary right to grant clemency or not.  By contrast, none of these criteria are relevant to the grant of an Alleyne habeas corpus petition. 
HEADLINE NEWS--So much for the recent negative criticism of Supreme Court Justice Thomas based on his listening to litigants' argue instead of wasting their short time arguing with them as other Justices do.  His Alleyne opinion deserves to be judged by posterity as one of the most important social justice opinions ever to come out of the Supreme Court. SELECT YOUR JUSTICE FOR ALLEYNE RELIEF: √ JUSTICE THOMAS *****Announced the judgment of the Court in Alleyne and delivered the opinion of the Court consisting of Parts I, III-B, III-C and IV.  √ JUSTICE SOTOMAYOR ****Joined in Parts Parts I, II, III and IV of THOMAS' opinion, and filed a concurring opinion. √ JUSTICE BREYER ****Joined in Parts I, III-B, III-C and IV of THOMAS' opinion of the Court, and filed an opinion concurring in part and concurring in the judgment of the Court. √ JUSTICE GINSBURG ***Joined in Parts I, II, III and IV of  THOMAS' opinion, and in SOTOMAYOR's concurring opinion.  √ JUSTICE KAGAN ***Joined in Parts I, II, III and IV of  THOMAS' opinion, and in SOTOMAYOR's concurring opinion.  ? JUSTICE ALITO *Filed a separate dissenting opinion.  As it was premised solely on application of Harris as stare decisis, now that Alleyne is precedent, Alito may grant a petition to render Alleyne retrospective.  X CHIEF JUSTICE ROBERTS Filed a dissenting opinion; X JUSTICE SCALIA and X JUSTICE KENNEDY Joined in ROBERTS dissenting opinion.