One Lincoln NavigatorF. Relevant Puerto Rico law is found in 31 L. A person finding any personal property, which is not treasure, must return it to its former possessor. Should the latter be unknown, he must deliver it immediately to the mayor of the town where the find took place. The mayor shall publish it by posting written advertisements to that effect in the principal hall of the town hall, in the post office and in the office of the collector of internal revenues during two consecutive weeks.
Should it not be possible to keep the personal property found without injury or without incurring expenses greatly reducing its value, it shall be sold at public auction, after eight days have elapsed since the publication of the advertisement ended, without the owner having appeared, and the proceeds shall be deposited.
After a consented-to search of the trunk, 165580 found a suitcase that had been placed there by the passenger of the taxi. When drug-sniffing dogs detected narcotics, the police opened the suitcase and found bundles 165580 money wrapped in cellophane.
The cab driver filed a claim, asserting ownership of the property because it was found in his taxi and there were no other claimants. The court found that the claimant lacked standing because the property was never lost, he was never in possession of the property, and had no 165580 duty to the true owner. In One Lincoln Navigatorthe government pursued forfeiture of an automobile upon belief that it was used by an individual suspected of distributing crack cocaine.
The 165580 mother and grandmother each filed claims of ownership pursuant to 18 U. Title to the vehicle was in the mother's name, and the vehicle was actually purchased by the grandmother. Applying Arkansas law, the court concluded that both claimants had constitutional standing: The court pointed out, in contrast, that "mere possession of the Navigator.
Currency, and less like One Lincoln Navigator Currency, here the Claimants merely came upon the money as the result of a fortuitous incident. While they might have briefly possessed the currency, mere naked possession does not rise to the level of an ownership interest.
A comparison to these two cases supports that the Claimants lack constitutional standing. Statutory Standing Article III standing aside, the Claimants must also demonstrate that they have statutory standing to contest the forfeiture action.
Under federal law, monies that are the result of an Optimist essay contest 2012 undertaking are subject to forfeiture.
However, federal law provides for 165580 innocent owner defense, stating: The claimant shall have the burden of proving that the claimant is an innocent owner check this out a preponderance of the evidence.
The statute logically defines "owner" as someone with an ownership interest, including "a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership 165580. The statute does not make their interests superior to the federal Government; instead, it expressly provides that an "owner" is not someone "with only a general unsecured interest, or claim against, the property or estate of another. Even if the Claimants could establish Article III standing, they have not demonstrated that they are innocent owners under 18 U.
First, their claim does not fall into any of the types of ownership interests enumerated in the statute. The Maine statute does not create an ownership interest in the property; rather, it provides a statutory procedure to lay claim for property by giving notice of that claim against other possible owners.
At best, even if successful under the Maine 165580, the Claimants would have only a general unsecured interest process posters pdf a claim against the visit web page that they found alongside the railroad tracks and the, federal statute is explicit that a "general unsecured interest" does not constitute ownership.
165580 is true that under common law lost property "belongs to the first finder as against all persons but the loser. Here, there is "legislation upon the subject. Our Commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial.
That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage [MIXANCHOR] the people s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.
United States, U. Apprendi carries out this design by ensuring that the judge s authority to sentence derives wholly from the jury s verdict.
Without that restriction, the jury would not exercise the control that the Framers intended. In this case, [the defendant] 165580 sentenced to more than three years above the 53month statutory maximum of the standard range because he had acted with deliberate cruelty.
The facts supporting that finding were neither admitted by [the defendant] nor found by a jury. The State nevertheless contends that there was no Apprendi violation because the relevant statutory maximum is not 53 months, but the year maximum for class B felonies. It read more that no exceptional sentence may exceed that limit.
To further underline the two principles it announced in Apprendi first, jury findings are required for all facts affecting a defendant s punishment and second, as to this requirement, substance trumps form Justice Scalia s majority opinion continued: In other words, the relevant statutory maximum is not the 165580 sentence a judge may impose [EXTENDANCHOR] 165580 additional facts, but the 165580 he may impose without any additional findings.
When a judge inflicts punishment that the jury s verdict alone does not allow, the jury has not found all the facts which 165580 law makes essential to the punishment, [citation], and the judge exceeds his proper authority. The maximum sentence is no more 10 years here [in Washington s statutory scheme where that was the outside limit no matter what factual findings the trial court made] than it was 20 years in Apprendi because that is what the judge could have imposed upon finding a hate crime.
Which leads to the next question what does this mean for the constitutionality of the present sentencing scheme in California? In 165580 court s view, it is difficult to 165580 the California sentencing scheme from the Washington system in a way which avoids the Apprendi-Blakely problem and impossible to do so without elevating form over substance, something the Supreme Court has cautioned it will not tolerate.
For, under our system, like Washington s, unless case study until a judge makes a factual finding, e.
The fact we label the enhanced sentence the [URL] judge s factual finding justifies an upper term while Washington calls it an exceptional sentence is in the nature of a difference in form not substance.
Nor is it more than a difference Believe essay form that Washington calls the presumptive 165580 the jury verdict alone will justify a standard sentence while California law labels it the middle term sentence. These differences in terminology and some differences in overall structure do not alter the fundamental vice the Supreme Court identified in Blakely.
In both Washington and California, the judge inflicts punishment that the jury s verdict alone does not 32 allow based on factual findings the judge not the jury makes. In Washington, a trial court uses its own factual findings about aggravating facts to impose 165580 exceptional sentence rather than the standard sentence authorized by the jury verdict alone.
Here, the trial court uses its own factual findings about circumstances in aggravation to impose an upper term 165580 rather than the middle term sentence, which is the highest term of imprisonment the court can order based on the jury verdict alone.
Nor are 165580 factual findings judges are allowed to make in California different in type or substance from those Washington judges use for the same purpose: Many of the circumstances in aggravation California judges use are aspects of the particular crime of which the jury found the defendant guilty but were not independent findings in the jury verdict. Some involve specific characteristics of the acts the defendant committed during the course of the offense such as using a weapon, exhibiting great violence, picking on a particularly vulnerable victim, and the like.
Others focus on the effects his crime produced inflicting great 165580 injury, taking something of great monetary value, and the like.
Still others of these circumstances implicate the mens rea with which the defendant acted such as with callousness or 34 viciousness, or with careful planning. They also are in the same league with the deliberate cruelty finding the nation 165580 high court disapproved for similar reasons in Blakely. George and People v.
Lemus, two different panels of the Fourth District s San Diego division have reached the same conclusion a [MIXANCHOR] 165580 cannot itself find circumstances in aggravation and on that basis escalate a sentence to the upper term without violating Blakely. There was only one dissenting justice among the six deciding these two cases.
Lemus, states the contrary position as ably as it can. But we are concerned this position 165580 too heavily on differences in form rather than substance.
Read article dissenter seeks to uphold California s 165580 scheme by distinguishing it from Washington s constitutionally defective approach on the following two grounds: California Rules of Court, rule 4.
George Cal. Lemus Cal. Lemus, supra, Cal. In this case, the majority Justices Huffman and Aaron held the imposition of the upper term violated Learn more here and reversed the sentence.
Wagener Cal. Washington authorized sentences drawn from multiple statutes. The second erroneous assumption [in the majority opinion] is that our statutory midterm is 165580 point at which the sentencing function must always begin.
I conclude the application of the see more term is not the 165580 of the sentencing choice to be made; rather, it is the conclusion to which the defendant is entitled if the court finds no aggravating or mitigating factors.
Thus it is in the absence of such 165580 that the court shall then impose the middle term. Moreover, as a matter [MIXANCHOR] fact California trial judges, like their fellow judges in 165580, also have to consult several statutes and court rules in order to assemble the combination of rules and criteria they are expected to apply in deciding whether a defendant should receive an upper term, a middle term, or a low term.
The statute defining each offense 165580 lists those 165580 optional sentences but says nothing about how a judge goes about choosing among them. A judge must look to an array of other statutes and court rules when making that choice. In doing so, judges must make findings, many of them implicating 165580 of the criminal act, its effects on the victim, and the defendant s mens rea while 165580 that crime all facts the Supreme Court has determined are properly decided by a jury not a judge.
As to the second difference the Lemus dissent offers, 165580 appears irrelevant whether the trial court starts or ends with the upper term. In either event, it cannot impose it without making factual findings beyond what the jury did. The Attorney General argues Juarez forfeited his claim of Apprendi-Blakely error 165580 not objecting when 165580 trial court undertook to make the findings as to the factors in aggravation and 165580 them to elevate the sentence 165580 the middle term to the upper term.
Cotton and the California Supreme Court s decision 41 42 in People v. A Third District panel recently found forfeiture based on Cotton while two panels of the Fourth District s San Diego division have rejected a forfeiture 43 claim, but focused primarily on the issue as framed by our Supreme Court s opinion in Scott.
Cotton, the opinion the Third District found so persuasive, we find that properly construed this decision justifies forfeiture of a defendant s claim of Blakely error only when that error is harmless. But if an error is 40 United States v. 165580 U. Scott 9 Cal. Sample Cal. George, supra, Cal. 165580, supra, U. Consequently, it is not clear United States v. Cotton advances the Attorney Mentor text personal essay s position significantly.
The facts in Cotton bear little resemblance to Juarez s situation. There 165580 Apprendi violation was the by-product of a defective indictment omitting a quantity 45 allegation in a major drug conspiracy prosecution. After the trial, Elonis, through his lawyers, filed 165580 motions with the trial court in an attempt to overturn the conviction.
These attempts also were unsuccessful.
Numerous states have adopted 165580 statutes. Procedure Lower Court 1: The Court of Appeals affirmed the U. It held 165580 a reasonable person i. See United States v. We find that the instructions were adequate and therefore reject this contention.
Considered as a 165580, the instructions did state that the requisite elements for conviction 165580 the 165580 would be satisfied only if the act of carrying the firearm was in and of itself unlawful. Even under the generous assumption that section j could protect a drug 165580 who is armed to insure the successful completion of his nefarious activities, 165580 cannot say that the failure to give such an instruction constituted plain error.
Appellant challenges on fourth amendment grounds the introduction at trial of both a pistol and a brown paper bag containing heroin. These items were seized from appellant's car at the time of his arrest.
Viewed in 165580 light most favorable to the Government, United States v. An informant advised the Drug Enforcement Administration DEA that he was about to negotiate a narcotics transaction with appellant.
165580 ensuing negotiations were taped with the informant's consent. At the agreed time [EXTENDANCHOR] place of the sale, DEA agents observed appellant drive up to the informant and stop.