September 7-11, 2009.
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U.S. 1st Circuit Court of Appeals, September 11, 2009 US v. Bucci, No. 07-2376
Defendant’s sentence, a forfeiture order and convictions for drug trafficking and related crimes is affirmed where: 1) district court did not abuse its discretion in denying defendant discovery in support of his vindictive-prosecution claim; 2) a second superseding indictment was timely filed as defendant did not “engage” in a monetary transaction until the funds were deposited into his account; 3) defendant had no reasonable objective expectation of privacy in the front of his home; 4) officers had probable cause to believe there was evidence of criminal activity in defendant’s vehicle to conduct a search; 5) district court did not abuse its discretion in allowing the government a rebuttal opening statement; 6) district court’s imposition of enhancement did not violate defendant’s Sixth Amendment rights where the court was aware of its discretion to impose a below-guideline sentence and adequately considered defendant’s argument for a below-guideline sentence; and 7) distri! ct court did not plainly err in instructing the jury that “proceeds” meant “gross proceeds” for forfeiture purposes.
U.S. 3rd Circuit Court of Appeals, September 11, 2009 Simmons v. Beard , No. 05-9001 In habeas proceedings arising from defendant’s capital murder conviction, district court’s grant of habeas relief on the ground that the state prosecutors had withheld several pieces of material exculpatory evidence in violation of Brady is affirmed where the cumulative effect of the multiple Brady violations was to undermine confidence in the verdict.
U.S. 3rd Circuit Court of Appeals, September 11, 2009 Massey v. US, No. 09-1665 District court’s denial of pro se defendant’s petition for a writ of audita querela is affirmed as his claim is cognizable under 28 U.S.C. section 2255 and there is no gap to fill in the post-conviction remedies
U.S. 6th Circuit Court of Appeals, September 08, 2009 Ruelas v. Wolfenbarger, No. 08-1571 In a murder prosecution, the district court’s grant of a habeas petition is reversed where, even assuming state courts unreasonably applied federal law in determining that petitioner’s guilty plea was not improper, the inquiry became whether the failure to consider manslaughter “had a substantial and injurious effect or influence” on the determination that he was guilty of second-degree murder, and it did not have such an effect.
U.S. 6th Circuit Court of Appeals, September 08, 2009 US v. Dyer, No. 08-5671 In a drug prosecution, a denial of defendant’s motion to suppress evidence is affirmed where: 1) an affidavit in support of the search warrant established the reliability of the police’s informant; and 2) there were sufficient indicia of reliability without substantial independent police corroboration.
U.S. 6th Circuit Court of Appeals, September 09, 2009 Saqr v. Holder, No. 07-3794 In a petition for review of the BIA’s order holding that petitioner was subject to removal on the grounds that his criminal conviction for second degree assault under extreme emotional disturbance under Kentucky law was an aggravated felony and that his conviction for reckless homicide was a crime of moral turpitude, the petition is granted: where 1) the BIA erred when it applied the post-IIRIRA definition of “aggravated felony” to petitioner’s case because the issuance of an arrest warrant by the INS which had not been canceled constituted an “action taken” for purposes of triggering application of the pre-IIRIRA definition of an aggravated felony; and 2) neither of petitioner’s prior convictions constituted an aggravated felony under the pre-IIRIRA definition. The matter is remanded for reconsideration of whether petitioner’s conviction for reckless homicide constitutes a crime involving moral turpitude.
U.S. 6th Circuit Court of Appeals, September 11, 2009 Thompson v. Bell, No. 06-5744 In habeas proceedings arising from petitioner’s capital murder conviction, district court’s denial of relief is affirmed in part and reversed in part and remanded where: 1) district court’s denial of defendant’s Rule 60(b) motion is reversed and remanded with instructions for the district court to first rule on the merits of defendant’s remaining ineffective assistance claims, while only addressing the incompetency question if it rejects the ineffective assistance claims on the merits; 2) the case is remanded to conduct defendant’s incompetency hearing and decide the merits of his incompetency claim de novo because the Tennessee courts unreasonably applied federal law clearly established by Ford v. Wainwright, 477 U.S. 399, (1986); and 3) district court’s dismissal of defendant’s chemical competency claim is affirmed without prejudice to defendant raising a chemical competency claim in the future should he be forcibly medicated.
U.S. 6th Circuit Court of Appeals, September 11, 2009 US v. Stall, No. 08-4064 District court’s sentencing of a defendant convicted of possession of child pornography to one day of incarceration and a ten-year period of supervised release is affirmed as the government at sentencing put forward almost no evidence for why a sentence within the Guidelines was warranted and did not raise the argument it now raised on appeal, and the district court’s explanation for the extent of its downward variance was sufficient in light of the record made before it.
U.S. 7th Circuit Court of Appeals, September 08, 2009 Harper v. Sheriff of Cook County, No. 08-3413 District court’s certification of a class action lawsuit involving challenges to the constitutionality of certain intake procedures at a county jail is vacated as the intake procedures detainees are required to undergo on remand to the Sheriff’s custody after a probable cause hearing are an individual issue and thus, not appropriate for class disposition. The matter is remanded for resolution of plaintiff’s individual claims.
U.S. 7th Circuit Court of Appeals, September 09, 2009 US v. Perez, No. 07-2375 District court’s enhanced sentencing of a defendant convicted of drug possession during a traffic stop, based on other drugs found at defendant’s home, is affirmed where: 1) district court’s refusal to apply the exclusionary rule to evidence found in defendant’s home was not clear error based on lack of any evidence to support defendant’s bare assertion of misconduct; 2) district court did not clearly err in finding that the drugs seized from defendant’s home were part of the same common scheme or plan as the offense for which he was convicted, and thus, the drugs were properly used to enhance his sentence; 3) district court did not err in applying the enhancement under section 2D1.1(b)(1) based on a firearm found at defendant’s home, as there was sufficient evidence to support a conclusion that defendant had constructive possession of the gun found at his home and that the gun was used in connection with his drug activity; and 4) sentence was reasonable as it was at the low! end of the applicable guidelines range.
U.S. 7th Circuit Court of Appeals, September 09, 2009 US v. Woods, No. 08-1778 In a consolidated appeal of a denial of three defendants’ motions to modify their sentences pursuant to 18 U.S.C. section 3582(c)(2), denial of the motions is affirmed where: 1) defendants did not give up their right to appeal the denial of the motions as section 3582(c)(2) motions do not fall within the appeal waiver’s scope; and 2) the district court did not err in finding the defendants ineligible for a reduction where the court did not make findings inconsistent with those of the original sentencing court and it did not abuse its discretion in light of the large quantity of drugs involved and in finding that the defendants were responsible for more than 4.5 kg of crack each.
U.S. 7th Circuit Court of Appeals, September 10, 2009 Buchmeier v. US, No. 06-2958 An enhanced sentence of defendant to 188 months’ imprisonment as an armed career criminal following four firearm convictions is vacated and remanded where, because the state of Illinois sent defendant a document stating that his principal civil rights have been restored, while neglecting to mention the continuing firearms disability, the final sentence of 18 U.S.C. section 921(a)(20) means that his burglary convictions do not count for federal purposes.
U.S. 7th Circuit Court of Appeals, September 10, 2009 US v. Statham, No. 08-2676 Sentence of defendant for conspiracy to buy, sell and transport firearm from Mississippi to streets of Chicago is affirmed as the district court did not clearly err, based on factual findings, in increasing the offense level in calculating the Guidelines range to the statutory maximum. District court did not abuse its discretion by ordering defendant to serve two consecutive sentences and imposition of a sentence that was different from that received by co-defendants was not unreasonable.
U.S. 7th Circuit Court of Appeals, September 11, 2009 US v. Simmons, No. 08-2207 Sentence and conviction of defendant for conspiracy, armed bank robbery and use of a firearm during a crime of violence is affirmed where: 1) for purposes of a bank robbery count, sufficient evidence existed for a jury to find that bank teller’s life was in jeopardy when co-conspirator pointed an unloaded gun at the teller; 2) as to the firearm count, it was foreseeable to the defendant that the robbery would have involved the use of a firearm; 3) district court did not abuse its discretion in denying defendant’s request for a mistrial after the government displayed a demonstrative chart with defendant’s mug shot in its closing argument, as the brief glimpse of the photograph did not deprive defendant of a fair trial; 4) district court did not abuse its discretion in failing sua sponte to order a mistrial, as prosecution’s statement in its closing argument was not improper vouching of co-conspirators; and 5) application of an enhancement based on abduction was proper as the! re was sufficient evidence to support that abduction took place and was foreseeable.
U.S. 7th Circuit Court of Appeals, September 11, 2009 Suarez v. Town of Ogden Dunes, No. 08-2544 In plaintiffs’ section 1983 action arising from a search of their home and arrests for contributing to the delinquency of a juvenile, resisting arrest and battery of a law enforcement officer, district court’s judgment is affirmed where: 1) summary judgment for defendants was appropriate as plaintiffs failed to establish that any statement in an affidavit in support of a search warrant was an intentional or reckless misrepresentation or omission; 2) because there was probable cause for the search warrant, plaintiffs’ argument that their arrests were illegal fails; and 3) district court did not abuse its discretion in excluding the earlier portion of the police activity recordings as it would have confused the jury on the issue of excessive force.
U.S. 8th Circuit Court of Appeals, September 08, 2009 Sutherland v. Missouri Dep’t of Corr. , No. 08-3000 In plaintiff’s employment discrimination lawsuit under Title VII, summary judgment for the Missouri Department of Corrections is affirmed where: 1) the district court correctly granted summary judgment on a hostile work environment claim as the offensive conduct did not constitute actionable harassment under Title VII; and 2) district court correctly granted the summary judgment on the retaliation claim as plaintiff failed to prove that a reasonable person would perceive as retaliatory the actions she found offensive, and actions by her co-workers are not sufficient to support a conclusion that they were materially adverse retaliatory actions.
U.S. 8th Circuit Court of Appeals, September 08, 2009 US v. Ybarra, No. 08-3137 Defendant’s conviction for a conspiracy to distribute drugs is affirmed where the district court’s supplemental charge to the jury, based on Allen v. United States, 164 U.S. 492, 501 (1896), was not coercive.
U.S. 8th Circuit Court of Appeals, September 09, 2009 US v. Christensen , No. 08-3103 District court’s sentence of a defendant convicted of manufacturing and distributing illegal drugs is affirmed where: 1) district court properly limited its section 3553(e) departure analysis to a consideration of defendant’s substantial assistance and declined to consider the section 3553(a) factors, as section 3553(e) departure below a statutory minimum sentence must be based exclusively on assistance-related considerations; 2) district court did not err in refusing to grant a greater departure based on 3553(a) factors as it lacked the authority to do so; 3) district court did not abuse its discretion or err in selecting a starting point for the departure of 60%; and 4) the sentence was not unreasonable.
U.S. 8th Circuit Court of Appeals, September 11, 2009 Toledo v. US, No. 08-2527 In a firearm possession prosecution, denial of defendant’s motion pursuant to 28 U.S.C. section 2255 to vacate her sentence based on ineffective assistance of counsel is affirmed where, under the state of the law at the time of sentencing, defendant’s counsel simply withdrew objections that had no legal support.
U.S. 8th Circuit Court of Appeals, September 11, 2009 US v. Peterson, No. 08-2715 In the government’s appeal from the district court’s order granting defendant a 50% reduction in her drug and firearm possession sentence for substantial assistance, the order is affirmed where the district court did not significantly consider any improper factors nor make any clearly erroneous factual findings.
U.S. 8th Circuit Court of Appeals, September 11, 2009 US v. Moore, No. 08-2812 Defendant’s identity theft sentence is affirmed where: 1) the district court could only consider the value of defendant’s substantial assistance in reducing his mandatory two-year sentence for aggravated identity theft based on the government’s 18 U.S.C. section 3553(e) motion; and 2) defendant did not file a motion for a departure nor request a departure orally at the sentencing hearing. .
U.S. 9th Circuit Court of Appeals, September 08, 2009 Smith v. Curry, No. 07-16875 In a burglary prosecution, a grant of petitioner’s habeas petition is affirmed where a state court’s approval of the trial court’s instruction, directing the jurors to the evidence the judge believed supported conviction, crossed the boundary from appropriate encouragement to exercise the duty to deliberate in order to reach a unanimous verdict, and went into the forbidden territory of coercing a particular verdict on the basis of the judge’s selective view of the evidence.
U.S. 9th Circuit Court of Appeals, September 08, 2009 US v. Bride, No. 08-30266 In an appeal from the district court’s denial of defendant’s motion to reduce his sentence under 18 U.S.C. section 3582(c)(2), the order is affirmed where the district court lacked authority to reduce defendant’s sentence because the sentence, which was eleven years shorter than the low end of the applicable advisory Guidelines range, was not based on a sentencing range that had subsequently been lowered by the Sentencing Commission. .
U.S. 9th Circuit Court of Appeals, September 08, 2009 Lam v. US, No. 08-35221 In an appeal from the district court’s order striking claimant’s claim to his assets in a civil forfeiture proceeding, the order is affirmed where: 1) 18 U.S.C. section 1956 authorized federal jurisdiction over forfeiture actions for proceeds of a violation of 18 U.S.C. section 1324, if that violation was for financial gain; and 2) 28 U.S.C. section 2466(a), the fugitive disentitlement statute, applied to claimants who were fugitives from state criminal proceedings. ..
U.S. 9th Circuit Court of Appeals, September 09, 2009 US v. Charles, No. 08-50086 Defendant’s drug and firearm sentence is affirmed where the district court did not plainly err in determining that defendant qualified as a career offender based on his prior convictions under California Health and Safety Code section 11351.5, which constitutes a controlled substance offense.
U.S. 9th Circuit Court of Appeals, September 09, 2009 Delgado-Hernandez v. Holder, No. 08-70789 In a petition for review of the BIA’s final order removing petitioner from the U.S., the order is affirmed where the BIA did not err in determining that petitioner’s conviction for attempted kidnapping under California Penal Code section 207(a) was an aggravated felony because it was categorically a crime of violence.
U.S. 9th Circuit Court of Appeals, September 10, 2009 US v. Juvenile Male, No. 07-30290 In an appeal from a juvenile defendant’s sentence for violating the terms of his supervised release, the district court’s requirement that defendant register as a sex offender under the Sex Offender Registration and Notification Act (SORNA) is reversed where the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violated the Ex Post Facto Clause.
U.S. 9th Circuit Court of Appeals, September 10, 2009 US v. Johnson, No. 08-30094 Defendant’s firearm possession conviction and sentence is affirmed where: 1) the record amply supported a “stop and frisk” search of defendant’s vehicle under Terry v. Ohio, 392 U.S. 1 (1968); and 2) the government presented an adequate reason for declining to file the discretionary motion for downward departure, a reason that could not fairly be characterized as arbitrary or based on an unconstitutional motive. .
U.S. 9th Circuit Court of Appeals, September 10, 2009 Zepeda v. Walker, No. 08-56085 In an attempted murder prosecution, dismissal of petitioner’s habeas petition as untimely is affirmed where the verification requirement for a California habeas petition was so important under California law that, where a petitioner is denied the opportunity to provide a verification upon filing, he must provide one prior to any judicial proceeding.
U.S. 9th Circuit Court of Appeals, September 11, 2009 Schad v. Ryan, No. 07-99005 In a capital habeas matter, a denial of the petition is affirmed in part where the prosecution’s failure to produce letters written by the prosecutor on behalf of a government witness resulted in little or no prejudice, given the extensive impeachment material already available to the defense. However, the denial of the petition is vacated in part where the district court applied the wrong diligence standard to deny petitioner an evidentiary hearing on his sentencing ineffectiveness claim.
U.S. 10th Circuit Court of Appeals, September 09, 2009 US v. Lovern, No. 08-3141 In a prosecution against pharmacy employees for dispensing unlawful controlled substances, one defendant’s conviction is affirmed where: 1) Gonzales v. Oregon did not apply because there was no interpretive rule seeking to define a practice as lacking any legitimate medical purpose; and 2) the government adduced sufficient proof at trial that defendant’s practices were not within the usual course of professional pharmaceutical practice. However, another defendant’s conviction is reversed where there was no evidence that he knew the pharmacy’s managers and pharmacists filled prescriptions issued without a legitimate medical purpose or in defiance of professional standards. .
U.S. 11th Circuit Court of Appeals, September 10, 2009 US v. Garcia-Bercovich, No. 08-12061 Defendant’s drug distribution conviction is affirmed where: 1) the evidence was sufficient to establish defendant’s knowledge or awareness that the containers which he picked up, or attempted to pick up, at various locations contained marijuana; and 2) a police search following an unsolicited private search does not constitute a search under the Fourth Amendment, as long as the search is confined to the same scope as the initial private search.
U.S. 11th Circuit Court of Appeals, September 11, 2009 US v. Jordan, No. 06-12583 Defendants’ convictions for obtaining the criminal records of those who voted absentee in a sheriff’s election, in violation of 18 U.S.C. section 641, is affirmed where: 1) the indictment gave defendants adequate notice of the charges against them; and 2) a reasonable jury could have found defendants guilty on the basis of the evidence presented.
California Appellate Districts, September 08, 2009 People v. McIntosh , No. A122142 Denial of defendant’s motion to withdraw his pleas of no contest is affirmed where, when sentencing discretion is expressly constrained by the terms of a plea agreement and the judge who accepted the plea becomes unavailable for reasons beyond the court’s or the prosecutor’s control, the defendant is not automatically entitled to withdraw his plea under People v. Arbuckle (1978) 22 Cal.3d 749 in the absence of evidence that exercise of individualized judicial discretion was material element of the consideration for the plea agreement.
California Appellate Districts, September 08, 2009 Birotte v. Superior Court, No. B213606 Petition for a writ of mandate to dismiss defendant’s rape and other related charges as barred by statute of limitations is denied where: 1) the plain language of section 803(g)(1) of the Penal Code requires more than an initial match or positive identification of a suspect’s DNA with crime scene evidence; and 2) the legislative history supports the conclusion that the one-year limitations period is not triggered by an initial match or link.
California Appellate Districts, September 08, 2009 People v. Lawrence, No. F055219 Defendant’s conviction for attempted unpremeditated murder and related firearm offenses is affirmed where: 1) trial court did not err in a failure to give an instruction not supported by the evidence on what was asserted to be a lesser included offense; 2) there is no infirmity in the wording of CALCRIM Nos. 105 and 226, and they were properly given in the case; and 3) CALCRIM No. 600 correctly states the law. Defendant’s sentence is remanded with directions to the trial court to stay the sentence on count 4 and exercise its discretion to impose or strike the second enhancement found under section 667.5(b).
California Appellate Districts, September 09, 2009 People v. Gutierrez , No. B211622 Conviction of defendant on multiple counts of kidnapping and sex-related crimes is affirmed where defendant’s Sixth Amendment right of confrontation was not violated by admission of a lead nurse practitioner’s testimony regarding a report prepared by a nontestifying nurse, as People v. Geier (2007) 41 Cal.4th 555 is still controlling law after Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), where the supervisor of the analyst who prepared the reports testified at trial and Melendez-Diaz involved only “near-contemporaneous” affidavits that were prepared almost one week after the tests were performed, whereas this case involves contemporaneous recordation of observable events. To the extent the narrative portion of the report ran afoul of defendant’s right of confrontation, the violation did not result in prejudicial error as there was nothing in the narrative portion of the report potentially damaging to defendant’s case. .
California Appellate Districts, September 10, 2009 People v. Quiles, No. A119615 Defendant’s conviction and sentence for multiple crimes is affirmed as the trial court did not err in imposing the upper term of sentence as prior juvenile adjudications that are of increasing seriousness may be used in imposing the upper term under California Rules of Court, rule 4.421(b)(2). .