Two New Developments Suggest an Increase in Number of Complaints and Investigations of Sexual Assault on College Campuses

Oregon Bill Would Shield Sexual Assault Complainants from Underage Drinking Citations

On Tuesday April 25, 2017, the Oregon Senate unanimously passed Oregon Senate Bill 762 A. The bill would shield sexual assault complainants who are under the age of 21 from being cited for underage alcohol possession when they come forward to report a sexual assault. The bill would also shield minors who report a sexual assault to law enforcement on behalf of someone else.

Universities Beef Up Their Sexual Misconduct Investigations

A recent study by the Association of American Universities catalogued the strong response of universities and colleges to a study two years ago that showed high incidents of sexual assault or misconduct on college campuses. According to the new study, universities and colleges across the country have funneled resources and personnel into their misconduct investigations, and developed coordination and data sharing across campus offices. Universities have also improved coordination with local law enforcement. The study can be found here.

Both developments foreshadow an increase in sexual assault complaints and investigations at both the state and university level in the near future, and, correspondingly, an increase in the need for experienced criminal defense attorneys to defend the accused in the complex university and criminal justice systems.

Ninth Circuit Rejects Hearsay and Confrontation Clause Challenges to Admissibility of Document Authored by Deceased Police Officer

In United States v. Fryberg, No. 16-30013 (9th Cir. Apr. 21, 2017), the Ninth Circuit analyzed whether a return of service of a domestic violence protection order was properly admitted into evidence. Raymond Lee Fryberg, Jr. was convicted of possession of a firearm by a prohibited person. An element of the crime for which Mr. Fryberg was convicted is that he was subject to a domestic violence protection order that was issued after a hearing for which he “received actual notice” and “had an opportunity to participate.” 18 U.S.C. § 922(g)(8). The government argued that, years before Mr. Fryberg’s conviction, a police officer served him with notice of a hearing that led to a domestic violence protective order because Mr. Fryberg failed to attend the hearing. As proof, the government admitted a copy of the return of service the now-deceased police officer prepared. Mr. Fryberg tried to exclude the return of service by claiming that it was inadmissible hearsay, and that it violated his rights under the Confrontation Clause of the Sixth Amendment.

On appeal, the court concluded the return of service was admissible under the public records exception to the hearsay rule, and that there was no Confrontation Clause violation. Speaking to the public records exception, the court noted the return of service seemingly violated the rule’s law-enforcement exclusion. This exclusion states that a hearsay statement is not admissible under the public records exception “in a criminal case” if it sets out “a matter observed by law-enforcement personnel.” Fed. R. Evid. 803(8). The court, however, looked to the exclusion’s common law origins to determine the return of service did not implicate the exclusion. Because the return of service was a record of a routine, nonadversarial matter made in a nonadversarial setting that reflected ministerial and objective observations of law enforcement, it could be admitted as a public record.

This characterization of the return of service as a neutral document also led the court to conclude that its admission did not violate the Confrontation Clause. Because the police officer was deceased at the time of trial, and Mr. Fryberg had no prior opportunity to cross-examine him, the admission of his hearsay statements against Mr. Fryberg would violate the Confrontation Clause if the statements were testimonial. The court determined the return of service was not testimonial because the “primary purpose” of the record was not for use as evidence in a future criminal trial, but rather to inform a court that Mr. Fryberg had been served with the domestic violence protection order.

Ninth Circuit Expands Reach of Restitution Orders

In United States v. Harris, No. 16-10152 (9th Cir. Apr. 20, 2017), the Ninth Circuit considered whether distributions from an irrevocable, discretionary trust may be garnished to satisfy a restitution order. Michael Harris was convicted of charges relating to theft from an employee benefit plan. He was sentenced to 30 months in prison and ordered to pay $646,000 in restitution. Years after completing his prison sentence, Mr. Harris had paid only a fraction of the restitution. As a result, the government applied for a writ of garnishment for any money or property Mr. Harris received as the beneficiary of two irrevocable, discretionary trusts that Mr. Harris’s parents established for his support. Although Mr. Harris largely disclaimed his interest in the trusts, the government nevertheless argued the trustees should be ordered to make restitution payments to the United States in the event the trustees made any distributions of trust property to Mr. Harris.

The court found Mr. Harris’s interest in the trusts was subject to garnishment for two reasons. First, although the trust documents stated the trustees had total discretion in deciding whether to make any distributions to Mr. Harris, under state law Mr. Harris could nevertheless petition a court for an order compelling a distribution if a trustee abused their discretion. Second, under federal law, once the trusts created a property interest in favor of Mr. Harris, his disclaimer under state law could not defeat the attachment of the writ of garnishment.

In United States v. Johnson, No. 15-30350 (Apr. 21, 2017), the Ninth Circuit determined whether a court may order restitution for uncharged misconduct. A jury convicted Donald Johnson of wire fraud. He was sentenced to five years of probation and ordered to pay $5,648.50 in restitution. The criminal conduct for which Mr. Johnson was convicted largely occurred in the state of Montana. However, this conduct was part of a larger fraudulent scheme in which Mr. Johnson made false claims about being a Grammy-nominated musician. The scheme reached individuals in Florida and Washington.

When crafting the restitution order, the district court concluded it could consider only the loss that resulted from the conduct for which Mr. Johnson was convicted. The government, however, argued that the district court should order restitution for Mr. Johnson’s entire scheme. In its opinion, the Ninth Circuit sided with the government and concluded that a district court may order restitution for all victims harmed by a fraudulent scheme, including those harmed by conduct beyond the count of conviction. However, the court stated the conduct must be “sufficiently related” to the overall scheme to defraud.

Each of these opinions show the importance of working with a qualified Oregon criminal defense attorney. Restitution is frequently given less attention than other terms of a sentence, but it can have a tremendous impact long after an individual completes their sentence.