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U.S. 1st Circuit Court of Appeals, November 24, 2008 US v. Acosta-Roman, No. 071238, 071239
Appeal from sentence of three concurrent fifty-seven month sentences for three money laundering counts is dismissed where: 1) defendant’s waiver was both valid and enforceable as an enhacement issue; and 2) appellate consideration of that issue, on the merits, was barred.
U.S. 1st Circuit Court of Appeals, November 26, 2008 US v. Marek, No. 072437 Conviction for corruptly endeavoring to obstruct or impede the due administration of the Internal Revenue Code is affirmed where: 1) the inference that defendant knew about the audit was supported by the record; and 2) viewed in the light most favorable to the government, defendant’s conviction was supported by sufficient evidence to support a finding that defendant was guilty of the offense. .
U.S. 1st Circuit Court of Appeals, November 26, 2008 US v. Parker, No. 072776 Conviction and sentence for conspiring to distribute cocaine, possession with intent to distribute cocaine, and for possession of a firearm in furtherance of a crime of drug trafficking are affirmed over claims of error that: 1) requiring defendant to leave the hotel room was a seizure in a violation of the Fourth Amendment; 2) failure to give Miranda warnings prior to interrogation was unlawful; 3) the search warrant was impermissibly broad; and 4) defendant should not have received a consecutive five year mandatory minimum for carrying or using the gun because the applicable statute contained a qualifier that applied to him.
U.S. 2nd Circuit Court of Appeals, November 24, 2008 In reTerrorist Bombings of U.S. Embassies in East Africa, No. 011535, 011550, 011553, 011571, 056149, 056704 Judgments of convictions for offenses arising from involvement in an international conspiracy, led by Osama Bin Laden and organized through the al Qaeda terrorist network, to kill American citizens and destroy American facilities across the globe are affirmed and remanded for re-sentencing where: 1) the indictment was sufficient to support a conviction of a capital offense; 2) sufficient evidence supported the convictions; 3) the District Court’s application of the Classified Information Procedures Act did not violate the Constitution; 4) a severance motion was properly denied; 5) statements of co-defendants, co-conspirators, and certain third parties were properly admitted at trial; 6) the government withheld exculpatory evidence; 7) there was no merit in co-defendant’s suggestion that “cumulative error” deprived him of a fair trial; and 8) the application of certain enhancements to co-defendant’s sentencing guidelines calculation was not in error. Insofar as co-defendant’s! sentence resulted from the mandatory application of the U.S. Sentencing Guidelines, he is entitled to be resentenced pursuant to U.S. v. Fagans, 406 F.3d 138 (2d Cir. 2005).
U.S. 3rd Circuit Court of Appeals, November 26, 2008 Mehboob v. Attorney Gen. of the US, No. 07-1799 Petition for review of a BIA order of removability is denied where petitioner’s conviction for indecent assault under 18 Pa. Cons. Stat. section 3126(a)(8), a strict liability offense, is a crime involving moral turpitude because the offense combines a reprehensible act with deliberate conduct.
U.S. 4th Circuit Court of Appeals, November 21, 2008 US v. Goforth, No. 084291 Denial of motion to review a detention order pending sentencing for violations of the Controlled Substances Act is vacated and remanded where: 1) there was no basis for concluding that Congress intended to alter the plain and unambiguous statutory definition of “judicial officer”; 2) the district judges were “judicial officers” within the language of section 3145(c) and 3156(a)(1); and 3) as a “judicial officer”, the district judge was authorized to release defendants under section 2145(c) when “exceptional reasons” existed.
U.S. 5th Circuit Court of Appeals, November 24, 2008 Walker v. Epps, No. 0860652 In an Eight Amendment challenge to lethal injection as the method of execution for two death-row inmates, rulings that the applicable statute of limitations barred plaintiffs’ section 1983 action and grant of summary judgment to defendant are affirmed where: 1) under Wilson v. Garcia, the statute of limitations apply with equal force to section 1983 method-of-execution action; 2) the limitations period begins to accrue on the date direct review of a plaintiff’s conviction and sentence is complete; 3) the district court correctly found that the statute of limitations has run for each of the three remaining plaintiffs; and 4) there was no reason to hold that the statute of limitations has been tolled.
U.S. 6th Circuit Court of Appeals, November 24, 2008 US v. Presley, No. 071147 Sentence for 120 months of incarceration for various counts arising from a drug and money-laundering conspiracy is affirmed over claim from the government that the district court erred in reducing defendant’s sentence based on a sentencing disparity, because defendants were not similarly situated on remand. .
U.S. 6th Circuit Court of Appeals, November 24, 2008 US v. Robinson , No. 075474 Conviction and sentence for conspiracy to distribute cocaine is affirmed over claims of error that: 1) the district court erroneously instructed the jury to determine the quantity of cocaine “involved in the conspiracy” instead of the quantity individually attributable to defendant; 2) the district court failed to charge a violation of 21 U.S.C. section 841(b)(1)(C) as a lesser-included offense; 3) the evidence was insufficient to prove defendant’s participation in a conspiracy; and 4) there was a prejudicial variance between the indictment and the proof at trial. .
U.S. 6th Circuit Court of Appeals, November 25, 2008 Klein v. Leis, No. 063949, 063950, 064039 In a grand jury indictment for offenses including aggravated burglary, kidnaping, receiving stolen property, and having a weapon while under a disability, denial of writ of habeas corpus based on an alleged double jeapordy violation is affirmed where: 1) the trial judge exercise the requisite “sound discretion”; and 2) the trial judge did not contrary to Supreme Court precedent when he delcared a mistrial.
U.S. 6th Circuit Court of Appeals, November 25, 2008 US v. Stephens, No. 071907 Conviction and sentence for drug-related crimes are affirmed in part, vacated in part, and remanded where: 1) even if the prior conviction was not admissible to show intent or for any other proper Rule 404(b) purpose, and despite the district court’s imprecision in dealing with the prior bad-acts evidence, any error related to the evidence did not warrant the reversal of defendant’s conviction; and 2) because a more thorough response to defendant’s arguments regarding his sentence was required, defendant’s sentence is vacated and remanded for resentencing.
U.S. 6th Circuit Court of Appeals, November 25, 2008 Avery v. Prelesnik, No. 072522 In conviction for second degree murder, grant of writ of habeas corpus for ineffective counsel is affirmed where: 1) potential alibi witnesses coupled with an otherwise weak case rendered the failure to investigate the testimony sufficient to “undermine confidence” in the outcome of the jury verdict; and 2) the state appellate court’s application of Strickland v. Washington standard was unreasonable.
U.S. 6th Circuit Court of Appeals, November 25, 2008 US v. McCauley, No. 073935 In grand jury indictment for possession of a firearm by a felon and possession of cocaine, denial of defendant’s motion to suppress evidence is affirmed where: 1) the district court did not err in finding that reasonable suspicion existed such that defendant’s Fourth Amendment rights were not violated; 2) the district court correctly held that defendant’s residence and vehicle were searched pursuant to the valid consent of his wife, rendering the search constitutional; and 3) based on clearly established precedent and the language of the Armed Career Criminals Act (ACCA), defendant’s prior offenses clearly subject him to sentencing under the ACCA. .
U.S. 6th Circuit Court of Appeals, November 26, 2008 Doan v. Carter, No. 073516 In a conviction for kidnapping and murder, denial of petition for habeas corpus is affirmed where: 1) the witnesses to which the undisclosed evidence pertained had already been impeached by the defense; 2) much of the evidence was just as inculpatory as exculpatory; 3) the cumulative effect of the evidence indicated that the undisclosed evidence was not material; and 4) petitioner did not show there was a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different”.
U.S. 6th Circuit Court of Appeals, November 26, 2008 US v. Gilpatrick, No. 075653 Sentence of 108 months for conspiring to deprive another of his civil rights and depriving another of his civil rights is affirmed where district courts retained the power to impose a community-confinement condition to supervised release during the period between the enactment of the Mandatory Victims Restitution Act of 1996 and the October 2008 amendments.
U.S. 7th Circuit Court of Appeals, November 24, 2008 US v. Tatum, No. 07-3015 In a criminal case involving various drug and weapons charges, conviction is affirmed where the district court did not abuse its discretion by admitting evidence recovered during booking: 1) as the government laid a proper foundation and; 2) any gaps in the chain of custody were minimal.
U.S. 7th Circuit Court of Appeals, November 24, 2008 US v. Singleton, No. 07-3399 In an appeal from a conviction of distributing five or more grams of crack cocaine, the district court’s sentence is reversed and remanded to allow the district court to decide whether to resentence the defendant in light of the Supreme Court’s Kimbrough v. US, 128 S. Ct. 558 (2007), where the court held that a district court judge can take the crack/cocaine powder disparity into consideration in deciding whether to impose a below-guidelines sentence. .
U.S. 7th Circuit Court of Appeals, November 24, 2008 US v. Carmel, No. 07-3906 In a criminal case involving the possession of an unregistered machine gun, motion to dismiss is affirmed where: 1) the state search warrant was supported by probable cause; 2) the district court did not err in denying the motion for a Franks hearing as the existence of an intentional or reckless omission from the accompanying affidavit and statement was not shown; and 3) 18 U.S.C. section 922(o) is reconcilable with 26 U.S.C. section 5861(d)…
U.S. 8th Circuit Court of Appeals, November 24, 2008 US v. Henson, No. 071993 Sentence of 84 months in prison for unlawful possession of a firearm as a previously convicted felon is affirmed where the government has met its burden to show that the district court’s procedural error did not substantially influence the outcome of the sentencing proceeding. .
U.S. 8th Circuit Court of Appeals, November 24, 2008 US v. Perry, No. 073732 Conviction and sentence for being a felon in possession of a firearm is affirmed where: 1) defendant failed to show there was a policy limiting admission to a Veteran of Foreign Wars hall to members only, that he was entitled to be present under that policy, and that the policy was strictly and consistently enforced in the past; 2) defendant’s failure to demonstrate an objectively reasonable expectation of privacy deprived him of standing to challenge the search; and 3) the district court did not err in denying defendant’s motion to suppress.
U.S. 8th Circuit Court of Appeals, November 24, 2008 US v. Magana-Aguirre, No. 081985 Sentence of 188 months’ imprisonment, five years of supervised release, and a fine of $10,000 for knowingly possessing with intent to distribute methamphetamine is affirmed where: 1) the district court’s comments at sentencing adequately demonstrated that the district court was aware of its ability to vary from the advisory sentencing guidelines range; and 2) the district court committed no significant procedural error and that the sentence imposed is not unreasonable.
U.S. 8th Circuit Court of Appeals, November 26, 2008 US v. Spotted Elk, No. 071914 Conviction for multiple drug and gun crimes in connection with the operation of a drug trafficking business on the state Pine Ridge Oglala Sioux Reservation is affirmed in all respects except is reversed and remanded where: 1) the indictment in Count VI was misleading as it suggested that receiving as well as giving a gun in exchange would constitute “use” of a gun in connection with the drug transaction; and 2) the district court’s findings regarding the amount of drugs for which co-defendant was responsible at sentencing were based on a legally erroneous interpretation of section 1B1.3 and because the evidence could well have supported a different finding had the district court applied the correct rule the case is remanded for resentencing.
U.S. 9th Circuit Court of Appeals, November 26, 2008 US v. Blixt, No. 07-30198 In an appeal from a jury conviction and sentence for mail fraud under 18 U.S.C. section 1341 and aggravated identity theft under 18 U.S.C. section 1028A, motion to dismiss, motion for acquittal, proposed jury instructions relating to the aggravated identity theft count, and sentence are affirmed where: 1) forging another’s signature constitutes the use of that person’s name and thus qualifies as a “means of identification” under 18 U.S.C. section 1028A; 2) steps taken in furtherance of a fraudulent purpose are material; 3) the jury instructions provided the jury with adequate and accurate guidance to determine the issues of mail fraud and/or aggravated identity theft; 4) the district court properly considered the defendant’s non-conviction conduct in determining her sentence; and 5) the sentence imposed was reasonable. .
U.S. 9th Circuit Court of Appeals, November 26, 2008 US v. Weyhrauch, No. 07-30339 In a matter of first impression, the pretrial order excluding evidence from a mail fraud prosecution is reversed and remanded in an interlocutory appeal by the government where: 1) 18 U.S.C. section 1346 establishes a uniform standard for “honest services” that governs every public official; and 2) the government does not need to prove an independent violation of state law to sustain an honest services fraud conviction.
U.S. 10th Circuit Court of Appeals, November 24, 2008 Sandoval v. Ulibarri, No. 07-2082 In a federal habeas petition, the district court’s denial of a state prisoner’s petition is affirmed where: 1) counsel’s failure to investigate evidence and the petitioner’s inability to use this evidence was highly unlikely to have any effect on the jury’s findings; 2) the lower court’s conclusion that there was no prejudice by the limitation of a witness’ testimony was a reasonable one; 3) the right of confrontation was waived in the lower court; and 4) the District Court’s denial of an evidentiary hearing was correct as the evidence was insufficient to show that the petitioner was entitled to habeas relief on his claims. .
U.S. 11th Circuit Court of Appeals, November 26, 2008 US v. Williams, No. 0812475.
Grant of defendant’s motion for a reduced sentence pursuant to 18 U.S.C. section 3582 for distribution of crack cocaine is reversed and remanded where: 1) because defendant was subject to a statutory mandatory minimum that replaced his original sentencing guideline, defendant was not sentenced according to the base offense level in section 2D1.1, even taking into account the section 5K1.1 downward departure; and 2) defendant would thus not fall within the scope of the Amendment 706.
Supreme Court of California, November 24, 2008 People v. Brendlin, No. S123133.pdf When a peace officer directs the driver of a vehicle to pull over for a traffic stop but, in effecting the stop, gives no indication that the passenger of the vehicle is the focus of the officer’s investigation or show of authority, the passenger is not subjected to a “seizure” within the meaning of the Fourth Amendment in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer’s investigation or show of authority. In conviction for manufacturing methamphetamine, order to suppress evidence seized from defendant’s person and from the vehicle in which he was a passenger is reversed where, in applying the factors of Brown v. Illinois, the outstanding warrant, which was discovered prior to any search of defendant’s person or of the vehicle, sufficiently attenuated the taint of the unlawful traffic stop.
Supreme Court of California, November 24, 2008 People v. Mentch, No. S148204.pdf Convictions for cultivation and possession of marijuana for sale are reversed where: 1) a defendant whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, could not qualify as a primary caregiver under the Compassionate Use Act of 1996 and was not entitled to an instruction on the primary caregiver affirmative defense; and 2) nothing in the Legislature’s subsequent 2003 Medical Marijuana Program altered this conclusion or offered any additional defense on the record.
New York Court of Appeals, November 24, 2008 People v. Johnson, No. 166 In a child pornography case, the court’s application of the Board of Examiners of Sex Offenders risk Factor 7, indicating an increased level of risk when a crime “was directed at a stranger,” is affirmed over defendant’s claim that Factor 7 be interpreted in a way that makes it inapplicable to his case, where the factor’s plain language preclues such a result.
New York Court of Appeals, November 24, 2008 People v. Naradzay, No. 188 Convictions for attempted murder in the second degree, attempted burglary in the first degree, and criminal possession of a weapon in the fourth degree are all affirmed over defendant’s challenges to the legal sufficiency of the proof supporting his attempted burglary and murder convictions.
New York Court of Appeals, November 24, 2008 People v. MacShane, No. 220 SSM 40 Order of the Appellate Term is affirmed where defendant failed to meet his burden of establishing a prima facie case of discrimination under step one of the three-step protocol in Batson v Kentucky (476 US 79 [1986])
New York Court of Appeals, November 25, 2008 People v. George, No. 172 Order of the Appellate Division should be affirmed, where contrary to the People’s contention, defendant properly preserved for our review his challenge to the legal sufficiency of his depraved indifference murder conviction. .
New York Court of Appeals, November 25, 2008 People v. Castellano, No. 173 Order affirmed where defendant’s argument that the evidence presented at trial was insufficient to support his conviction for depraved indifference murder is unpreserved for this Court’s review.
New York Court of Appeals, November 25, 2008 People v. Jean-Baptiste, No. 174 Reduction of conviction to manslaughter in the second degree is affirmed where, because the Appellate Division properly applied the present standard for depraved indifference murder, the evidence introduced at trial was not legally sufficient to establish defendant’s guilt of depraved indifference murder.
New York Court of Appeals, November 25, 2008 People v. Hawkins, No. 175 In consolidated but otherwise unrelated criminal appeals, both convictions are affirmed where defendants did not properly preserve for appellate their challenges to the legal sufficiency of the evidence.
Supreme Court of Florida, November 26, 2008 Wainwright v. State of Florida, No. SC07-2005 On appeal from an order under Florida Rule of Criminal Procedure 3.851 denying a successive motion to vacate a judgment of conviction of first-degree murder and a sentence of death, denial of relief is affirmed where, given the totality of the evidence, codefendant’s statement that petitioner was innocent would not raise reasonable doubt about the convictions or undermine any of the six aggravators found in this case.
Supreme Court of Florida, November 26, 2008 In Re: Standard Jury Instructions in Criminal Cases – Report No. 2008-01, No. SC08-335 The Court hereby authorizes the publication and use of instructions 3.12(a) – Single Defendant, Multiple Counts or Information, 3.12(c) – Multiple Counts or Informations, Multiple Defendants, and 3.12(d) – Legally Interlocking Crimes.
Supreme Court of Florida, November 26, 2008 In Re: Standard Jury Instructions in Criminal Cases – Report No. 2008-03 and 2008-06, No. SC08-490 The Court hereby authorize the publication and use of instructions 21.1 – Resisting Officer with Violence and 21.2 – Resisting Officer without Violence. ..
California Appellate Districts, November 24, 2008 People v. Genovese, No. C055486 Conviction for second degree murder is affirmed where there was no instructional error in the CALCRIM homicide instructions given to the jury.
California Appellate Districts, November 24, 2008 People v. Zavala, No. F051843 Conviction for second degree murder, torture, and kidnapping, and firearms-related allegations is affirmed over claims of error that: 1) the doctrine of collateral estoppel required reversal of the torture count; 2) the admission of certain hearsay statements as adoptive admissions violated both the hearsay rule and the confrontation clause and that his attorney rendered ineffective assistance of counsel if the absence of a constitutional objection forfeited his right to appellate review; and 3) CALCRIM No. 220 impermissibly precluded the jury from considering lack of evidence on the issue of proof beyond a reasonable doubt.
California Appellate Districts, November 24, 2008 People v. Morelos, No. F052418 Conviction for multiple counts of receiving stolen property, forgery of blank checks, forgery of altered checks, possession of forged driver’s licenses, money counterfeiting, and being a felon in possession of a firearm is affirmed as modified and remanded where: 1) the record reasonably supported the inference that appellants received the stolen goods; 2) in accordance with People v. Carter, all but one of the three counts of possession of a completed check with intent to defraud were reversed; 3) all but one of the four driver’s license counts should have been stricken since all licenses bore the personal information of the same victim; 4) since the jury could reasonably infer that defendants altered genuine checks and generated fictitious checks during an ongoing forgery operation, all convictions of altered check counts were proper; 5) claim that all but one receiving count as to each “possession-related” count should be stricken is rejected; 6) claim that since the same! check was the basis of two altered check counts, one of those counts each should be stricken is rejected; 7) the abstract of judgment required amendment; 8) claim that sentence on all but one of the “possession-related’ counts should have been stayed is rejected; and 9) claim of Sixth Amendment violation is rejected.
California Appellate Districts, November 24, 2008 People v. Lopez, No. F053389 Convictions for first degree murder are affirmed in part, reversed in part, and remanded where: 1) defendants’ challenges to the sufficiency of the evidence were rejected; 2) defendants failed to show a clear abuse of trial court’s discretion; 3) defendant failed to show a reasonable likelihood that the jury applied the trial court instruction in a way that denied fundamental fairness; 4) section 1203.1l emergency medical services restitution fines, which the statute authorized solely “as a condition of probation,” was stricken from the judgment since neither defendant received a grant of probation; 5) there was no basis for reversal of the judgments on the basis of cumulative error; 6) defendant failed to show either an actual conflict that adversely affected counsel’s performance or informed speculation with a factual basis in the record about a potential conflict that adversely affected counsel’s performance and an abuse of discretion by the trial court in denying his or! her motion to disqualify counsel; and 7) denial of defendant’s Marsden motion as “not timely” was an error.
California Appellate Districts, November 25, 2008 In re Cannon, No. A121142 In contention by petitioner-inmates claiming food service in secured housing facility in state prison was inadequate, grant of limited relief with respect to temperature of the food served is reversed where the petitioners failed to demonstrate that the prison’s food service violated any of their constitutional or statutory rights.
California Appellate Districts, November 25, 2008 People v. Kimbell, No. B202422 Conviction for two felony counts of assault on a peace officer, one felony count for driving under the influence, one felony count for evading a police officer, and one misdemeanor count for driving with a suspended license for a prior DUI conviction, is affirmed as modified where: 1) the court properly reconvened the jury since the verdict was incomplete and the jury was still within the court’s control; and 2) defendant was entitled to additional conduct credit
California Appellate Districts, November 25, 2008 People v. Galvan, No. E042254 Conviction for attempted murder, torture, burglary, active participation in a criminal street gang, and personally causing great bodily injury is affirmed as modified and remanded where: 1) the court did not err in admitting detective’s testimony; 2) even if there were error, such error was harmless because it was not reasonably probable that a result more favorable to defendant would have been reached in the absence of any erroneous conclusion; 3) there was no surprise in allowing the amendment to charge torture in place of aggravated mayhem; 4) the trial court did not abuse its discretion in concluding that there was no prejudice to the defense in amending the pleadings; 5) section 12022.7, subdivision (b) of Assembly Bill No. 2173, enhancement applies to comatose victims, whether the state of their coma is permanent or not; and 6) the abstract of judgment erroneously indicated defendant was convicted of aggravated mayhem.