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U.S. 1st Circuit Court of Appeals, November 05, 2008 US v. Ford, No. 072613 Conviction for being a felon-in-possession of a handgun and denial of defendant’s motion to suppress evidence are affirmed over a claim that the district court erred in denying defendant’s motion to suppress a firearm found on his person because it was obtained during an unconstitutional search and seizure. ..
U.S. 1st Circuit Court of Appeals, November 05, 2008 Parker v. Gerrish, No. 081045 In a claim that defendant-police officer violated plaintiff’s constitutional rights by using his Taser during the course of arrest, verdict in favor of plaintiff and compensatory damage award of $111,000, are affirmed over claims of error that: 1) defendant was entitled to qualified immunity; and 2) the district court’s answer to a jury was responsible for an inappropriate damages award.
U.S. 2nd Circuit Court of Appeals, November 03, 2008 Moseley v. Branker, No. 0171p.pdf In a conviction and death sentence for capital murder, denial of petition for federal writ of habeas corpus relief is affirmed where: 1) the state motion for appropriate relief (MAR) court’s determination that production of the undisclosed evidence would not have resulted in a different verdict, either at guilt or sentencing, in petitioner’s trial for the murder was not an unreasonable one; 2) given the similarities in the murders, the evidence that the same person murdered both women and that the person was the petitioner was overwhelming; 3) nondisclosure of evidence by the state was not “so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict,” Strickler, 527 U.S. at 281; and 4) the state court’s rejection of petitioner’s Brady claim was neither contrary to, nor an unreasonable application of, the applicable precedents.
U.S. 2nd Circuit Court of Appeals, November 06, 2008 Mendez v. Mukasey, No. 071114 In an immigration appeal, petition for review of decision ordering petitioner’s removal is denied where first degree larceny in the form of “defrauding a public community” is a crime involving moral turpitude.
U.S. 2nd Circuit Court of Appeals, August 15, 2008 US v. Hamilton, No. 06-2933 Conviction for conspiracy to distribute and possess with intent to distribute marijuana is remanded for further proceedings where defendant’s motion to suppress evidence seized from a house, in which he claimed a privacy interest, could not properly be denied on grounds of lack of standing without a hearing. (Amended opinion)
U.S. 3rd Circuit Court of Appeals, November 07, 2008 Urcinoli v. Cathel, No. 06-4028 Dismissal as untimely of a petition for habeas relief is vacated where petitioner was entitled to equitable tolling of the limitations period for filing his petition after the district court sua sponte dismissed his original petition for failure to exhaust state-court remedies.
U.S. 4th Circuit Court of Appeals, November 03, 2008 Moseley v. Branker, No. 0717 In a conviction and death sentence for capital murder, denial of petition for federal writ of habeas corpus relief is affirmed where: 1) the state motion for appropriate relief (MAR) court’s determination that production of the undisclosed evidence would not have resulted in a different verdict, either at guilt or sentencing, in petitioner’s trial for the murder was not an unreasonable one; 2) given the similarities in the murders, the evidence that the same person murdered both women and that the person was the petitioner was overwhelming; 3) nondisclosure of evidence by the state was not “so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict,” Strickler, 527 U.S. at 281; and 4) the state court’s rejection of petitioner’s Brady claim was neither contrary to, nor an unreasonable application of, the applicable precedents.
U.S. 4th Circuit Court of Appeals, November 06, 2008 US v. Hardy, No. 074685 In defendant’s sentence of fourteen months imprisonment for conspiracy to commit bank and Social Security fraud through the theft and passage of stolen checks, uttering forged and counterfeit securities, and fraudulent use of a social security number, government’s motion to dismiss defendant’s appeal is granted where, because defendant failed to identify any collateral consequences stemming from the revocation of his supervised release, his “requisite personal interest” in this litigation evaporated.
U.S. 5th Circuit Court of Appeals, November 06, 2008 Santos-Sanchez v. US, No. 07-40145 In a case in which petitioner-resident alien, having pleaded guilty and served his sentence for aiding and abetting the illegal entry of an alien, sought to vacate his guilty plea in order to avoid removal in proceedings brought by DHS, denial of his petition for a writ of coram nobis is affirmed where: 1) jurisdiction to hear the petition was properly vested in the district court, not the magistrate judge who sentenced petitioner; 2) trial counsel was not ineffective for failing to advise petitioner that a guilty plea would automatically make him removable, nor did counsel affirmatively misrepresent the immigration consequences of his plea; and 3) the magistrate judge’s failure to inform petitioner at his plea colloquy of the immigration consequences of a guilty plea did not make the plea involuntary.
U.S. 6th Circuit Court of Appeals, November 04, 2008 US v. Simpson, No. 07-5193, 07-5194 Imposition of a 450-month term of imprisonment and a denial of defendant’s motion to dismiss a charge of escape is affirmed over claims that: 1) the sentence was unreasonable; 2) the district court erred in denying a motion to dismiss the escape indictment for violating the Double Jeopardy Clause; and 3) procedurally barred claims.
U.S. 7th Circuit Court of Appeals, November 03, 2008 US v. Wanigasinghe, No. 08-1426 Conviction for bank fraud is affirmed over defendant’s objection that he was entitled to dismissal of the indictment based upon an eleven-year lapse between the return of the indictment and his arrest, where: 1) defendant left the country and could not have been easily found; 2) there was no delay in prosecution once defendant returned to the U.S.; 3) defendant was not prejudiced by the delay; and 4) defendant had not sought a speedy trial.
U.S. 7th Circuit Court of Appeals, November 05, 2008 US v. Anderson, No. 07-3654 Sentence for bank robbery is affirmed where defendant made no showing in his motion for reconsideration of sentence that his HIV infection had in any way affected his mental capacity at the time of the offense, and it would therefore have been an abuse of discretion for the sentencing court to grant his request for a mental-health evaluation.
U.S. 8th Circuit Court of Appeals, November 04, 2008 US v. Bolden, No. 06-3264 In a death penalty case resulting from the murder of a security guard outside a St. Louis bank during an attempted robbery, the judgment is affirmed over three primary claims of error regarding: 1) whether a Batson challenge to the prosecution’s peremptory strike of a prospective juror, an African American woman, was improperly rejected; 2) findings on two statutory aggravating factors, “pecuniary gain” and “conviction for two felony drug offenses”; 3) a refusal to bifurcate the penalty phase; 4) denial of a motion to suppress; 5) denial of a motion to quash a venire panel; 6) denial of a motion for a separate trial of a felon-in-possession count; 7) various evidentiary rulings; 8) a Brady and Jencks Act claim; 9) findings on non-statutory aggravating factors; 10) mitigation issues; 11) evidentiary claims regarding the penalty phase; 12) jury instructions; 13) findings regarding defendant’s mental state for purposes of being eligible for the death penalty; and 14) prosecutor! ial misconduct.
U.S. 8th Circuit Court of Appeals, November 06, 2008 Keys v. US, No. 07-1804 An order denying defendant’s 28 U.S.C. section 2255 motion to vacate, set aside or correct his conviction is affirmed where: 1) despite counsel’s advice to appeal, defendant told him he did not want to appeal, and counsel could not be ineffective in following his express instructions; 2) trial counsel was ineffective in failing to inform defendant about his right to file a cross-appeal after the government filed a notice of appeal; but 3) defendant was not prejudiced as a result of the deficient performance, as there was no reasonable probability that, but for counsel’s failure, defendant would have appealed his conviction or sentence.
U.S. 8th Circuit Court of Appeals, November 07, 2008 US v. Diaz, No. 08-1575 A sentence pursuant to a guilty plea to knowingly possessing methamphetamine with intent to distribute is affirmed where, because the decision to depart by levels is discretionary, the district court’s decision to select the higher of two levels that encompassed the mandatory minimum sentence was procedural error..
U.S. 8th Circuit Court of Appeals, November 07, 2008 US v. Nassar, No. 08-1665 In a prosecution for possession of marijuana with the intent to distribute, a denial of defendant’s motion to suppress evidence seized from his car is affirmed where: 1) a sergeant’s questions about defendant’s destination and vehicle were routine, within the scope of a valid traffic stop; and 2) the detention was not prolonged as the sergeant was still processing a warning when he received defendant’s consent to search his vehicle.
U.S. 9th Circuit Court of Appeals, November 03, 2008 Latu v. Mukasey, No. 05-75889 In an immigration action interpreting whether violation of Hawaii Revised Statute section 291C-12.5 regarding hit and run accidents categorically constitutes a crime involving moral turpitude (CIMT) allowing removal of a lawfully admitted immigrant, petition for review of a removal order is granted where: 1) to constitute a CIMT, the generic elements of a crime must show that it involves conduct that is “base, vile, or depraved” and violates “accepted moral standards;” 2) section 291C-12.5 incorporates behavior that does not involve moral turpitude because it can be violated by simply failing to provide required information following an accident causing injury or death; and 3) violation of section 291C-12.5 need not constitute fraud.
U.S. 9th Circuit Court of Appeals, November 05, 2008 Humphries v. County of Los Angeles, No. 05-56467 California’s maintenance of the California’s Child Abuse Central Index (CACI), which is a database of known or suspected child abusers, violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given a fair opportunity to challenge the allegations against them. .
U.S. 9th Circuit Court of Appeals, November 05, 2008 US v. Youssef, No. 07-10335 A violation of 18 U.S.C. section 1015(a), which criminalizes the making of a false statement in an immigration document, does not require the false statement to be “material” as an element of the offense.
U.S. 9th Circuit Court of Appeals, November 06, 2008 US v. Williams, No. 06-50599, 06-50608, 06-50612 Defendants’ convictions for conspiracy to interfere with interstate commerce by robbery, conspiracy to possess cocaine with the intent to distribute, and possession of a firearm during a drug crime and crime of violence are reversed and remanded for a new trial where: 1) there was sufficient evidence to support the convictions; 2) the government did not deny the defendants their due process rights by engaging in outrageous conduct; but 3) the district court, although it did not intend to do so, gave an Allen charge after a juror disclosed that she was a holdout.
U.S. 9th Circuit Court of Appeals, November 07, 2008 US v. Miller, No. 07-30481 Denial of defendant’s “Motion to Dismiss Revocation Petition and Request for Immediate Release from Custody” is affirmed where: 1) the district court correctly found that the time that defendant spent at a county jail constituted “imprisonment,” and not, as he argued, supervised release; 2) thus, his supervised release term did not start until his release from the jail work release program; and 3) as a result, the district court did have jurisdiction to revoke his supervised release and impose sentence on him.
U.S. 10th Circuit Court of Appeals, October 31, 2008 US v. Zapata, No. 06-1541 Defendants’ convictions and sentences stemming from a large-scale cocaine trafficking scheme are affirmed where: 1) based on applicable case precedent, as well as ample evidence supporting the necessity of wiretaps, the district court did not abuse its discretion in authorizing the wiretaps and refusing to suppress evidence obtained therefrom; 2) the evidence was sufficient to support a defendant’s conviction; 3) defendants challenging jury instructions did not meet their burden to demonstrate prejudice; 4) there was no abuse of discretion in not severing three defendants’ trials; and 5) the sentences were procedurally and substantively reasonable. (Amended opinion)
U.S. 10th Circuit Court of Appeals, October 31, 2008 US v. Poole, No. 07-7080 A conviction for assault resulting in serious bodily injury is affirmed over a claim that the jury’s verdict was impermissibly ambiguous where the district court took measures, all without contemporaneous objection, sufficient to render the verdict free of any reasonable claim of ambiguity.
U.S. 10th Circuit Court of Appeals, November 04, 2008 Duffield v. Jackson, No. 08-6002 In a 42 U.S.C. section 1983 suit against several members of the medical staff at a correctional center claiming that they violated his Eighth Amendment right to be free from cruel and unusual punishment by showing deliberate indifference to his medical condition, dismissal and summary judgment rulings against plaintiff are affirmed where: 1) plaintiff failed to object to the findings and recommendations of a magistrate and thus waived appellate review of both factual and legal questions; 2) no exception to the firm waiver rule applied; and 3) there was no error in denying his motion for a thirty-day extension in which to object to the magistrate judge’s report and recommendations.
U.S. 10th Circuit Court of Appeals, November 05, 2008 US v. Husted, No. 08-6010 In the context of convictions under the Sex Offender Registration and Notification Act (SORNA) for failure to register as a sex offender after traveling in interstate commerce, the circuit court rules that SORNA cannot apply to a defendant whose interstate travel is complete prior to the effective date of the Act.
U.S. 11th Circuit Court of Appeals, November 03, 2008 US v. McNeese, No. 0810093 Following a four-count indictment against defendant for drug-related charges and sentences of life-imprisonment on 3 counts, grant of government’s motion to reduce defendant’s sentence as to a specific count of his multi-count judgment is affirmed where: 1) the district court did not err in acting in accordance with the government specification regarding the term to which its Rule 35(b) motion should apply; and 2) regarding the issue of whether the government erred in declining to file a Rule 35(b) motion, the court lacked jurisdiction to review that choice because defendant did not show that the government had unconstitutional motives.
U.S. D.C. Circuit Court of Appeals, November 04, 2008 Basardh v. Gates, No. 07-1192 In a Guantanamo Bay detainee’s challenge to his detention, the government’s motion to hold in abeyance detainee’s petition for direct judicial review of the Combatant Status Review Tribunal’s determination that he was an enemy combatant is granted where: 1) in light of the decision in Boumediene v. Bush, 128 S. Ct. 2229 (2008), petitioner’s prior request for habeas corpus relief could be considered, potentially mooting the petition for direct review; and 2) there was a high probability that while restoring the availability of habeas relief, Boumediene simultaneously stripped the court of jurisdiction to review Detainee Treatment Act petitions.
Supreme Court of California, November 06, 2008 People v. Arias, No. S155571 In the context of Health and Safety Code section 11366.8, which prohibits the possession of a “false compartment” “with the intent to … conceal … or transport a controlled substance within the false compartment”, the California Supreme Court interprets section 11366.8 to exclude from its definition of “false compartment” a vehicle’s original factory equipment that has not been modified, altered, or changed in any way.
Supreme Court of Florida, November 06, 2008 Lowe v. Florida, No. SC05-633 In a first-degree murder case, conviction and order for a new penalty phase are affirmed, and petition for habeas relief is denied, where: 1) trial counsel rendered effective assistance, but defendant suffered from ineffective assistance of counsel in the penalty phase; 2) defendant’s claims of newly-discovered evidence and a Brady violation did not merit vacating his conviction; and 3) habeas relief was not warranted on defendant’s claims of ineffective assistance of counsel, unconstitutionality of the capital-sentencing law, and unconstitutionality of the use in sentencing of prior convictions for crimes committed when under age 18.
Supreme Court of Florida, November 06, 2008 Lynch v. Florida, No. SC06-2233, SC07-1246 In a capital case involving charges of burglary, kidnapping, and murder, denial of postconviction relief is affirmed and a petition for habeas relief is denied over defendant’s claims of: 1) ineffective assistance of counsel during both the guilt and penalty phases; 2) judicial bias resulting from the postconviction court’s in camera inspection of the murder weapon; 3) exclusion of expert testimony regarding the standard of practice for capital defense counsel; 4) Brady and Giglio violations; 5) the insufficiency of the facts proffered during defendant’s plea colloquy to support the convictions; 6) incompetency for purposes of determining the constitutionality of his death sentence; 7) failure to charge statutory aggravators in the indictment; and 8) cumulative error.
Supreme Court of Delaware, November 05, 2008 Johnson v. State of Delaware, No. 319, 2007 Defendant’s appeal of her conviction for forgery and theft upon a guilty plea is dismissed without prejudice where: 1) defendant had not exhausted her remedies in the trial court by applying for post-conviction relief; but 2) defendant was free to apply for post-conviction relief based on her allegations of ineffective assistance of counsel.
California Appellate Districts, November 04, 2008 People v. Garcia, No. B205182 Sentence for second degree robbery, firearm possession by a felon, carjacking, grand theft auto, and unlawful driving or taking of an automobile is reversed and affirmed as specified where: 1) the number of possible one-year enhancements will depend on whether the current offense is a serious felony; and 2) the trial court had the discretion to impose a concurrent term on a count for being a felon in possession of a firearm.
California Appellate Districts, November 05, 2008 People v. Smith, No. D051448 A trial court does not violate a defendant’s rights to due process and a fair trial by preinstructing the jury on the definitions of direct and circumstantial evidence under CALCRIM No. 223, without also preinstructing on the method of assessing the sufficiency of the circumstantial evidence under CALCRIM No. 224, where those instructions are fully and correctly given along with the presumption of innocence and the prosecution’s burden of proof at the close of evidence and before deliberations.
California Appellate Districts, November 05, 2008 People v. Stier, No. D051505 Conviction for transportation of methamphetamine is reversed where: 1) certain evidence should have been suppressed because the prosecution did not establish that the handcuffing of the driver was reasonably necessary to the detention; and 2) the prosecution did not establish the driver’s subsequent consent to be searched was voluntary.
California Appellate Districts, November 06, 2008 People v. Ramirez, No. F053454 Conviction for receiving aid by misrepresentation and perjury is affirmed over claims of error that: 1) defendant could not be convicted of both misrepresentation and perjury arising from the same activities because the misrepresentation statute is a specific statute precluding prosecution under the general statute defining perjury; and 2) the evidence was insufficient to prove that defendant’s misrepresentation arose in the context of a state assistance program, and thus her case was not subject to the general/specific exceptions as applied in People v. Jenkins. .
California Appellate Districts, November 06, 2008 People v. J.L., No. H032639 In a case brought in juvenile court after defendant admitting violating probation, a dispositional order committing minor defendant to the Division of Juvenile Justice (DJJ) is affirmed where: 1) defendant-minor admitted to committing an offense that constituted an assault under both the “deadly weapon” clause and the “force likely” clause of Penal Code section 245(a)(1); 2) the offense constituted an “[a]ssault by…means of force likely to produce great bodily injury,” as described in section 707(b)(14); and 3) because the offense was described in section 707(b), and it was “the most recent offense alleged in any petition and admitted or found to be true by the court,” the juvenile court was not precluded by section 733(c) from committing the minor to the DJJ. ..