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September 13-17, 2010.
Criminal Law & Procedure
United States First Circuit, 09/14/2010
Merlonghi v. US
In plaintiff’s suit against the United States under the Federal Tort Claims Act (FTCA), for the actions of a U.S. Special Agent, involving an automobile accident, district court’s grant of government’s motion to dismiss for lack of subject matter jurisdiction is affirmed as plaintiff’s claim under 28 U.S.C. section 1346(b)(1) was properly dismissed for lack of jurisdiction because the agent was not acting within the scope of his employment when he crashed into plaintiff during a car chase. .
United States First Circuit, 09/16/2010
Fusi v. O’Brien
District court’s denial of defendant’s request for habeas relief from his rape conviction is vacated and remanded as the district court should have dismissed the petition without prejudice because the defendant failed to exhaust his ineffective assistance of counsel claim in state court. .
United States First Circuit, 09/16/2010
Gautier v. Wall
Defendant’s application for a certificate of appealability is denied and the judgment of the district court is vacated as the court lacked jurisdiction to consider defendant’s second or successive petition without authorization, and not one of defendant’s claims meets the gatekeeping requirements of section 2244(b).
United States Second Circuit, 09/17/2010
Brooks v. Holder
In a petition for review of an order of the Board of Immigration Appeals dismissing petitioner’s appeal from the immigration judge’s order of removal, the petition is denied where a New York State conviction of one count of criminal possession of a weapon in violation of N.Y. Penal Law section 265.03(1)(b) satisfied the definition of a “crime of violence” under 18 U.S.C. section 16 such that petitioner in deportation proceedings was removable and also ineligible for cancellation of removal. Read more…
United States Second Circuit, 09/17/2010
US v. Martinez
Defendant’s convictions for sex trafficking of minors and sex trafficking by force, fraud, or coercion are affirmed where: 1) a defendant in a criminal case may not, consistent with the Constitution, exercise peremptory challenges based on gender; and 2) defendant did not, merely by relying on the fact that the government’s first four strikes were against men, make a prima facie showing that the government was improperly exercising peremptory challenges based on gender. Read more…
United States Third Circuit, 09/13/2010
Betts v. New Castle Youth Dev. Ctr.
In plaintiff’s 42 U.S.C. section 1983 suit against a state-run juvenile detention center and several of its staff members, claiming various constitutional violations for sustaining a tragic spinal cord injury while attempting to make a tackle during a “pick-up” football at the center, district court’s grant of summary judgment in favor of the defendants is affirmed where: 1) district court’s grant of summary judgment in favor of the center and its staff in their official capacities is affirmed because the center is an arm of the state entitled to Eleventh Amendment immunity; 2) district court’s grant of summary judgment for the individual defendants on the merits of plaintiff’s Eighth Amendment claim is affirmed because plaintiff has failed to show a substantial risk of serious harm that violates contemporary standards of decency and failed to show deliberate indifference; and 3) the court’s adoption of the more-specific-provision rule obviates the need to address plaintiff’s Fourteenth Amendment substantive due process claims. Read more…
United States Third Circuit, 09/14/2010
Duhaney v. Attorney General
A Jamaican citizen’s petition for review of the BIA’s decision finding the petitioner removable as an alien convicted of an aggravated felony is denied where: 1) the BIA did not err in ordering a remand as, under the circumstances, the BIA did not disregard its established precedent by remanding the case in a way that ultimately permitted the government to lodge additional charges of removability against petitioner; 2) the BIA did not deprive petitioner of his due process rights; 3) the government was not precluded from alleging new charges of removability following the vacatur of petitioner’s 2000 conviction; and 4) petitioner’s section 212(c) waiver does not extend to the ground for removability that underlies the instant order of removal as under the applicable regulations, the government was permitted to lodge new charges of removability, even based on convictions that were disclosed in his application. Read more…
United States Third Circuit, 09/14/2010
US v. Mundy
Conviction and sentence of defendant for possessing 500 grams or more of cocaine with intent to distribute and for possessing with intent to distribute 500 grams or more of cocaine in a protected area are affirmed where: 1) the PPD Live Stop Policy sufficiently standardized criteria regulating the scope of a permissible inventory search, including searches of closed containers, and the officer’s search adequately complied with those criteria; and 2) the district court did not err in applying a two-level enhancement to defendant’s guidelines offense level under section 2D1.2(a)(1). Read more…
United States Third Circuit, 09/16/2010
US v. Riley
Convictions of a former mayor of Newark, New Jersey, and a co-defendant for engaging in a fraudulent scheme to purchase city-owned parcels of real property are affirmed in part, reversed in part and remanded where: 1) defendants’ honest services fraud convictions are reversed as, in light of Skilling, a failure to limit honest services fraud to “bribes and kickbacks” now constitutes legal error, and this plain error affected defendants’ substantial rights; 2) defendants’ convictions based on the remaining counts are affirmed because there is sufficient evidence from which a jury could have found defendants guilty beyond a reasonable doubt; 3) district court’s denial of defendant’s post-trial motions are affirmed; and 4) district court did not err in any of the challenged determinations. Read more…
United States Fifth Circuit, 09/13/2010
Rocha v. Thaler
In a capital habeas matter, a denial of petitioner’s habeas petition is affirmed where: 1) petitioner did not contend that his full confession was anything but knowing and voluntary, and thus evidence on that issue would have been irrelevant; 2) the identity of state and federal law in this case rendered meaningless any search for an independent and adequate ground; and 3) suppression would upend the state courts’ determination that petitioner knowingly and voluntarily confessed and did not desire an attorney.
United States Fifth Circuit, 09/14/2010
US v. Lipscomb
Defendant’s firearm possession sentence is affirmed where defendant pleaded guilty to a single-count indictment expressly charging him with possessing a sawed-off shotgun, a crime of violence.
United States Fifth Circuit, 09/14/2010
US v. Johnson
Defendant’s bank robbery sentence is affirmed where the case presented the type of situation where an abduction enhancement was proper, even though the victim remained within a single building. ..
United States Fifth Circuit, 09/14/2010
US v. Dowl
Defendant’s conviction and sentence for wire fraud and theft of government funds are affirmed where: 1) the alleged wire supported the wire fraud count, and the evidence presented at trial supported defendant’s wire fraud conviction; 2) it was not error for the district court to define “steal,” for the purposes of 18 U.S.C. section 641, to mean “the wrongful taking of money or property belonging to another with intent to deprive the owner of its use or benefit either temporarily or permanently”; and 3) the district court was not required to treat the money transferred by Louisiana to the federal government as an offset to defendant’s intended loss comparable to either amounts repaid by a defendant before a fraud is detected or investment money returned in a Ponzi scheme.
United States Fifth Circuit, 09/17/2010
US v. Gonzales
In defendant’s appeal from the district court’s order, upon revocation of defendant’s probation, to immediately pay the balance of a previously imposed fine, the matter is remanded where it was unclear whether the district court considered defendant’s “financial resources,” as required by 18 U.S.C. section 3572(a)(1) & (2), in ordering the immediate payment of that fine.
United States Fifth Circuit, 09/17/2010
US v. Williams
Defendant’s conviction of illegal possession of a “Masterpiece MAC-9mm”-style assault rifle in violation of 18 U.S.C. section 922(g)(1) and his corresponding 108-month prison sentence are affirmed where: 1) undisputed witness testimony established that the gun at issue was found under defendant’s seat in a vehicle — the “paradigmatic constructive possession” scenario in which Rule 404(b) evidence is warranted; and 2) the district court’s lengthy and weighted discussion of other significant, permissible factors belied defendant’s argument that the alleged error affected his substantial rights.
United States Sixth Circuit, 09/13/2010
Post v. Bradshaw
District court’s denial of defendant’s motion for habeas relief from his capital murder conviction is affirmed where: 1) defendant’s claim of ineffective assistance of counsel with regard to the no-contest plea does not survive de novo review because defendant refused to plead guilty, despite the state’s offer of a life sentence in return for a guilty plea, and this strategy was professionally reasonable; 2) defendant has waived his claim that counsel’s ineffectiveness rendered his no contest plea involuntary; 3) defendant’s claim that his counsel was ineffective in the penalty phase of the proceedings because they placed victim impact evidence and other prejudicial information before the court via a presentence investigation report and a statement from the victim’s son fails as a matter of law; 4) even assuming that defendant’s allegations that a defense team member leaked information are true, there was no prejudice, because he forfeited his right to confidentiality in the matter as a matter of state law when he disclosed the contents to a jailhouse informant; 5) defendant’s claim of a Brady violation fails as a matter of law; and 6) defendant’s claim that the trial court failed to hear evidence of a charged aggravator is without merit.
United States Sixth Circuit, 09/13/2010
US v. Montgomery
In a prosecution of defendant for knowingly growing 100 or more marijuana plants, district court’s denial of defendant’s motion to suppress evidence is affirmed as medication is one among many factors to consider in the inquiry, and the sum of relevant circumstances supported the district court’s credibility-based decision that defendant voluntarily consented to a search of his home.
United States Sixth Circuit, 09/14/2010
US v. Howard
Conviction of defendant for drug related crimes is affirmed where: 1) the district court did not abuse its discretion in denying defendant’s motion for funds to obtain a drug-dog expert; 2) because the search of the vehicle was supported by probable cause, independent of defendant’s unlawful arrest, the cash contained inside of the vehicle was properly seized; 3) facts are more than sufficient to establish probable cause that criminal activity was taking place at a second mobile home; 4) district court properly declined to suppress the evidence inside the second mobile home; 5) district court did not abuse its discretion when it sustained the government’s objection to the question put to a witness; 6) the district court did not abuse its discretion in allowing the government to recall an agent to testify about his 2003 encounter with defendant; 7) the district court did not abuse its discretion in denying defendant’s motion for a mistrial; and 8) the evidence presented at trial was more than sufficient to sustain defendant’s convictions for conspiring to possess and distribute at least five kilograms of cocaine, and for attempting to possess and distribute the drug.
United States Sixth Circuit, 09/14/2010
Barakat v. Holder
A Lebanese citizen’s petition for review of a BIA’s denial of his motion to terminate removal proceedings is granted as the BIA improperly put the burden on petitioner to prove that the state court’s vacatur of his conviction was not for rehabilitative or immigration reasons, and the government failed to bear its burden of proving that petitioner’s conviction was vacated for rehabilitative or immigration reasons. .
United States Sixth Circuit, 09/15/2010
US v. Damra
Defendant’s conviction and sentence for evading corporate income tax in violation of 26 U.S.C. section 2701 and for conspiring to defraud the United States in violation of 18 U.S.C. 371 is affirmed in part, vacated in part and remanded where: 1) defendant cannot demonstrate that the government violated his Sixth Amendment rights as he cannot meet either the burden of demonstrating that the government acted in bad faith or the burden of demonstrating that a witness’s testimony would have been material and favorable; 2) district court did not err in finding that co-defendant’s statements to his tax return preparer were admissible at trial under Fed. R. Evid. 801(d)(2)(E) as the statements of a co-conspirator; 3) district court did not err in denying defendant’s motions for a judgment of acquittal and for a new trial; 4) while the district court erred in appointing a criminal investigator to interpret for the tax return preparer, the district court did not commit plain error in doing so; 5) district court did commit plain error in issuing its instructions as to the charge of conspiring to defraud the United States, as the district court did not omit the willfulness element of section 371 conspiracy when it instructed the jury; 6) district court did not err in issuing a statute of limitations instructions as to the charge for evading corporate income tax; 7) defendant could appropriately be charged under section 371’s “defraud” clause, and thus, the charge of conspiring to defraud the United States does not fail to allege an offense pursuant to 18 U.S.C. section 317; 8) defendant’s sentence is vacated and remanded for resentencing as the district court committed procedural error by miscalculating defendant’s sentence; and 9) on remand, the district court will have the opportunity to address defendant’s arguments concerning the tax-loss calculation and to explain the basis of any decision it makes in response to those arguments. .
United States Seventh Circuit, 09/13/2010
US v. Figueroa
Conviction of defendant for one count of conspiracy to possess cocaine with the intent to distribute and one count of distribution of cocaine arising from charges for leading a multimillion-dollar drug conspiracy, and a 235-month sentence are affirmed in part, vacated in part and remanded where: 1) defendant’s conviction is affirmed because the evidence found during search of defendant’s home was properly admitted; and 2) although the evidence was sufficient to establish the drug quantity and the original guidelines calculation, defendant’s sentence is vacated and remanded as the district court’s comments during the sentencing hearing were utterly out of bounds and there is no way of assessing how the improper observations affected the district court’s final choice of a sentence.
United States Seventh Circuit, 09/15/2010
US v. Pineda-Buenaventura
In prosecutions of four defendants for their involvement in a large cocaine distribution, district court’s judgment is affirmed in part, vacated in part and remanded where: 1) one defendant’s sentence is vacated and remanded for resentencing as the district court’s drug quantity findings did not support the sentence he received; 2) co-defendant’s conviction is vacated and remanded because his plea colloquy did not satisfy the requirements of Rule 11; 3) district court’s denial of third co-defendant’s motion to suppress is affirmed as he and his co-tenants gave valid consent to search his apartment; and 4) fourth co-defendant’s counsel’s motion to withdraw is granted as a challenge to the reasonableness of the defendant’s sentence would be frivolous.
United States Seventh Circuit, 09/16/2010
US v. Sanders
Conviction of defendant for violating the Sex Offender Registration and Notification Act (SORNA) by traveling in interstate commerce without updating his sex offender registration is affirmed as defendant’s argument, that the registration requirement imposed by SORNA was beyond the power of Congress to enact because it applies even to those individuals convicted to local offenses having no connection to interstate or foreign commerce, is rejected.
United States Seventh Circuit, 09/17/2010
US v. Ellis
Defendant’s convictions for firearm related crimes in Indiana and in Illinois district courts, in connection with defendant’s role as the chief enforcer of a notorious Chicago street gang, are affirmed in part, reversed in part and remanded where: 1) defendant is not subject to the enhanced penalties applicable to armed career criminals under the ACCA or the sentencing guidelines as defendant’s conviction for felony intimidation under Indiana law does not have “as an element the threatened use of physical force against the person of another” and therefore does not qualify as a violent felony under the primary definition of the term; 2) defendant’s conviction on one of the section 922(g)(1) counts in the Indiana case is reversed on double jeopardy grounds as it was based on defendant’s possession of the same guns as in the Illinois case and the government has not sufficiently established a break in constructive possession; and 3) defendant’s remaining arguments are rejected and the case is remanded for resentencing.
United States Eighth Circuit, 09/13/2010
US v. Kieffer
Defendant’s conviction and sentence for mail fraud and making false statements are affirmed where: 1) evidence of defendant’s acts outside the District of North Dakota were “inextricably intertwined” with, and “intrinsic” to, the allegations in the superseding indictment; 2) it was not clear or obvious that the prosecutor was commenting indirectly on defendant’s failure to testify; and 3) the record was replete with evidence to show defendant voluntarily and intentionally devised a scheme to defraud others into believing he was a licensed attorney and collecting substantial “fees” from them. .
United States Eighth Circuit, 09/13/2010
US v. Perdoma
Defendant’s conviction for possession with intent to distribute fifty grams or more of a substance containing methamphetamine is affirmed where: 1) because the officer had probable cause to believe that defendant possessed marijuana in violation of Nebraska law, defendant’s arrest did not violate the Fourth Amendment; and 2) the search was a valid search incident to arrest.
United States Ninth Circuit, 09/14/2010
US v. Pool
In defendant’s appeal from the district court’s implementation of 18 U.S.C. sections 3142(b) and (c)(1)(A), requiring defendant to give a DNA sample as a condition of his pre-trial release, the order is affirmed where, if a court has determined that there is probable cause to believe that the defendant committed a felony, the government’s interest in definitively determining the defendant’s identity outweighs the defendant’s privacy interest in giving a DNA sample as a condition of pretrial release in cases in which the government’s use of the DNA is limited to identification purposes, and there is no indication that the government intends to use the information for any other purpose.
United States Ninth Circuit, 09/14/2010
Dunn v. Castro
In a challenge to a restriction that was temporarily imposed on plaintiff’s right to receive visits from his three minor children while he was in prison, the denial of defendants’ motion to dismiss the complaint is reversed where a reasonable prison official could have believed that terminating plaintiff’s right to receive visits from his children was lawful, in light of clearly established law and the information he possessed.
United States Ninth Circuit, 09/15/2010
US v. Waters
Defendant’s convictions for arson are reversed where: 1) certain articles allegedly given to defendant should have been excluded from her trial, or at least limited, because they were highly prejudicial due to their advocacy of anarchy and violence; 2) the district court abused its discretion when it excluded a video of a peaceful demonstration made by defendant; and 3) the district court erred when it prevented defendant’s cousin from testifying to the fact that defendant told him to tell the truth.
United States Ninth Circuit, 09/16/2010
US v. Albritton
Defendant’s bank robbery sentence is affirmed where: 1) the surveillance video showed defendant pointing the gun directly at each of the two credit union employees; 2) defendant physically restrained the victim; and 3) the district court did not err in requiring that defendant’s sentence run consecutive to any other undischarged term of imprisonment.
United States Tenth Circuit, 09/14/2010
US v. Bowling
Defendant’s conviction and sentence for bank fraud are affirmed where: 1) the government did not need to prove that bank officers’ conduct had not waived the bank’s security interest in the cattle at issue or in the proceeds from the sale of the cattle under commercial law to convict defendant of bank fraud; and 2) the district court more than adequately conveyed — with its use and explanation of the term “knowingly” — that the jury could not find defendant guilty of bank fraud if the jury found he acted in good faith; and 3) the district court followed an appropriate course in sentencing defendant because it made factual findings based on the evidence before it and left room to take into account any future change in circumstances. .
United States Eleventh Circuit, 09/13/2010
US v. Williams
Defendant’s conviction for unlawful possession of a firearm is affirmed where the vehicle stop at issue was justified by the officer’s reasonable suspicion, and the resulting search incident to defendant’s arrest revealed a hidden gun.
United States Eleventh Circuit, 09/13/2010
Bauder v. Dep’t. of Corrs.
In the government’s appeal from the district court’s grant of petitioner’s petition for habeas corpus, in which the district court ruled that petitioner’s criminal defense attorney was ineffective by misadvising petitioner regarding the possibility of being civilly committed as a result of pleading to a charge of aggravated stalking of a minor, the order is affirmed where: 1) based on counsel’s testimony, the court could not say that the district court’s factual finding that counsel misadvised petitioner was clearly erroneous; and 2) counsel did not tell petitioner that there was a possible risk of civil commitment, or that the law was unclear as to whether it could apply to petitioner, or that he simply did not know.
United States Eleventh Circuit, 09/14/2010
US v. One 1990 Beechcraft
In an appeal from a district court decision ordering the forfeiture, under the Civil Asset Forfeiture Reform Act, of a Beechcraft airplane to which appellant held legal title, the order is affirmed where the district court did not err in drawing credibility determinations and inferences against appellant and in favor of the government and, on that basis, determining that appellant did not meet its burden of proving, by a preponderance of the evidence, that it, rather than a third party, exercised any dominion or control at all.
United States Eleventh Circuit, 09/14/2010
Darling v. Sec’y. Dep’t of Corr.
In a capital habeas matter, petitioner’s application for a certificate of appealability to appeal the denial of his petition is denied where: 1) the Florida Supreme Court accurately described the statements of the prosecutor and the instructions of the trial court; 2) petitioner’s trial attorneys conducted a thorough investigation of potential mitigation evidence and presented, through several witnesses, evidence that petitioner suffered — mostly at the hands of his father — serious physical, verbal, sexual, and emotional abuse as a child, and thus their performance was not deficient; and 3) petitioner never explained how the failure of Florida to comply with the Vienna Convention affected his conviction or sentence.
California Court of Appeal, 09/16/2010
People v. Lopez
Conviction of defendant of various crimes for threatening his daughter’s mother with potato peeler and scissors is affirmed as the trial court’s imposition of a $30 assessment is not punitive and was properly imposed by the court. However, the abstract of judgment and minute order is to be corrected to show the court ordered defendant to pay $30 assessment for each of his three convictions, making the total assessment $90.
California Court of Appeal, 09/16/2010
In re Taplett
Defendant’s petition for habeas relief from the governor’s reversal of the Board of Parole Hearings’ (Board) decision finding her suitable for parole, after serving over 16 years of her indeterminate sentence of 16 years to life for second degree murder conviction, is denied as there is some evidence to support the governor’s finding that defendant lacks proper insight into the circumstances of the commitment offense.
Supreme Court of Florida, 09/16/2010
Geralds v. State of Florida
Defendant’s petition for habeas relief from his capital murder conviction is denied and circuit court order denying his motion to vacate his conviction and sentence affirmed where: 1) defendant has not demonstrated Brady error; 2) defendant has not demonstrated Giglio error; 3) defendant fails to establish how trial counsel was ineffective; 4) defendant’s claim that newly discovered evidence establishes a conflict of interest between the public defender’s office and the state attorney’s office is rejected; 5) the circuit court did not err in summarily denying defendant’s first and second supplements, and various other claims; 6) circuit court did not abuse its discretion in denying defendant’s motion to depose a suspect; 7) the circuit court did not abuse its discretion in denying the public records request; 8) circuit court did not err in summarily denying defendant’s challenge to the constitutionality of the lethal injection; and 9) defendant’s claim that the circuit court erred when in failed to remand for an additional resentencing after it struck the CCP aggravator in his resentencing direct appeal, is without merit.
Court of Criminal Appeals of Texas, 09/15/2010
Spence v. State of Texas
Conviction of defendant for drug related crimes, arising after he was stopped by a police officer for license plate violation and for illegally parking in a driveway, the judgment of the court of appeals is affirmed where: 1) the plain language of Texas Transportation Code section 502.404(a) requires that a license plate be displayed at the foremost part or front of a vehicle; and 2) the trial court did not err in declining to give Article 38.23 jury instructions because there was no factual dispute for the jury to resolve, as the requirement for the proper location of a license plate is a question of law, not fact.
Supreme Court of Delaware, 09/15/2010
Hill v. State
Defendant’s drug conviction is affirmed where a trained officer may have reasonably suspected criminal activity from the facts and inferences discovered during the traffic stop at issue. .
Supreme Court of Delaware, 09/15/2010
Robinson v. State
Defendant’s murder and firearm possession convictions are affirmed where: 1) defendant’s attorney made an understandable strategic decision not to raise a Brady claim at trial; and 2) the trial court did not abuse its discretion by requiring defendant’s attorney to follow the traditional sequencing procedures for impeaching a witness with a prior inconsistent statement