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U.S. 1st Circuit Court of Appeals, September 23, 2008 US v. O’Brien, No. 072312 In a conviction for charges related to attempted robbery, conspiracy to affect interstate commerce, and carrying a firearm in furtherance of a crime of violence, ruling that machine-gun possession was an element of a crime rather than a sentencing enhancement is affirmed where absent a clearer or more dramatic change in language or legislative history expressing a specific intent to assign judge or jury functions, court is bound by Supreme Court decision, Castillo v. US, 530 U.S. 120 (2000).
U.S. 1st Circuit Court of Appeals, September 24, 2008 Thomas v. State of Rhode Island, No. 071985 In a suit brought by members of an Indian tribe claiming that state officials violated their constitutional rights by arresting them without lawful authority on tribal lands for alleged cigarette tax violations, dismissal of action for failure to state a claim is affirmed over claims of error that: 1) the court construed their allegations too narrowly, thereby ignoring a viable Fourth Amendment claim based on the lack of probable cause for arrest; and 2) the court wrongly denied their request to amend the complaint, thereby denying them the opportunity to remedy any tax deficiencies. .
U.S. 2nd Circuit Court of Appeals, September 22, 2008 Brown v. Alexander, No. 071780 In a conviction for sale of controlled substance in or near school grounds, denial of writ of habeas corpus is affirmed over claims that the state courts unreasonably applied Batson v. Kentucky in concluding that petitioner had not presented a prima facie case of race discrimination with respect to jury selection at her criminal trial in state court. .
U.S. 2nd Circuit Court of Appeals, September 23, 2008 US v. MacMillen, No. 073377 Sentence of 78 months’ imprisonment and a lifetime term of supervised release for possessing child pornography is affirmed over claims of error that: 1) the special condition prohibiting defendant from frequenting locations where “children are likely to congregate” is both overly broad and unconstitutionally vague; and 2) the special condition that authorizes Probation to discuss third-party risks with employers is overbroad because it “assumes that [defendant’s] employment will, in some form, be related to his offense of possessing images containing child pornography,” even though not all types of employment require access to or use of computers.
U.S. 2nd Circuit Court of Appeals, September 24, 2008 US v. Cote, No. 071852, 071949 In a case against in which defendant-state correctional officer for bodily injury sustained by a pre-trial detainee, judgment of acquittal and grant of new trial is reversed where: 1) the district court erred in granting defendant a judgment of acquittal, as the evidence was sufficient to support the jury’s verdict of guilt; 2) the district court abused its discretion in conditionally granting defendant a new trial; and 3) defendant’s contentions on cross-appeal were without merit, because the record evinced that defendant waived any statute of limitations challenge, and the doctrine of dual sovereignty foreclosed his double jeopardy claim.
U.S. 2nd Circuit Court of Appeals, September 24, 2008 US v. Carmenate , No. 072421 Conviction for bank fraud is affirmed where defendant’s waiver of his constitutional right to a jury trial was knowing, voluntary, and intelligent in light of defendant’s: 1) presence at a pre-trial conference at which his attorney requested a bench trial; 2) presence at another pre-trial conference at which the District Court requested a written waiver; 3) counsel’s letter to the District Court requesting a bench trial; 4) oral waiver of his right after questioning by the District Court; and 5) personal knowledge of the criminal justice system.
U.S. 2nd Circuit Court of Appeals, September 25, 2008 US v. Douglas, No. 061099 Sentence of seventeen and twenty-seven months imprisonment for conspiring to distribute and possess with intent to distribute marijuana, and possession with intent to distribute marijuana within one thousand feet of a public elementary school is affirmed where: 1) section 860(a) applies to a defendant who possesses a controlled substance within one thousand feet of a public school with the intent to distribute that controlled substance regardless of whether the defendant specifically intended that the distribution be within a one-thousand-foot radius of a school; 2) schoolyard statute in its present form remains a strict liability offense for which a defendant may be convicted regardless of his knowledge of the proximity of a school; and 3) the district court properly instructed the jury in this case.
U.S. 2nd Circuit Court of Appeals, September 25, 2008 US v. Kerley , No. 071818 Conviction for failure to pay a child support obligation is vacated and remanded where: 1) the district court did not err in its rulings as to the good faith defense; 2) the rule of lenity required the court to vacate the conviction on the second count of the offense; and 3) although the district court correctly applied the loss amount and obstruction of justice enhancements under the Sentencing Guidelines, the court erred in concluding that the vulnerable victim enhancement was applicable.
U.S. 2nd Circuit Court of Appeals, September 25, 2008 US v. Triumph Capital Group, Inc., No. 064970 Conviction and sentence for charges related to racketeering and obstruction of justice are affirmed in part, reversed in part, and remanded where: 1) the evidence was sufficient to sustain the jury’s verdicts; 2) the racketeering, racketeering conspiracy, bribery, and wire fraud counts were reversed on the grounds that the government suppressed material exculpatory and impeaching evidence; 3) the court properly instructed the jury on the obstruction of justice charge; and 4) because the court cannot be certain that the 36-month concurrent sentence on Count 24 was not affected by the convictions that were reversed, the sentence on Count 24 is vacated and remanded.
U.S. 2nd Circuit Court of Appeals, September 25, 2008 Gertsenshteyn v. Mukasey, No. 071183 Petition for review of decision ordering Ukranian citizen-petitioner to be removed for conviction of an aggravated felony is granted and the Board of Immigration Appeals (BIA) decision is vacated and remanded where: 1) the BIA decision departed, with insufficient reason, from the legal framework that the court has long used to decide whether an alien charged with removability under 8 U.S.C. section 1227(a)(2)(A)(iii) has been convicted of an aggravated felony; and 2) it was unclear what result the BIA would reach under the proper framework. .
U.S. 2nd Circuit Court of Appeals, September 25, 2008 US v. Falso, No. 062721 Conviction for crimes relating to child pornography and traveling with the intent to engage in illicit sexual conduct with minors is affirmed where: 1) though the district court’s finding of probable cause was not supported by a substantial basis, the district court nevertheless properly denied defendant’s motion to suppress physical evidence seized from his home under the good-faith exception to the exclusionary rule; 2) the district court was not knowingly or recklessly misled; and 3) the affidavit was not “so lacking in indicia of probable cause”.
U.S. 5th Circuit Court of Appeals, September 23, 2008 Mesa v. Prejean, No. 07-30953 In a suit alleging that police officers arrested plaintiffs illegally and with excessive force, summary judgment of dismissal on the basis of qualified immunity is affirmed in part and reversed in part where: 1) defendant did not use excessive force in arresting one plaintiff, nor did he fail to supervise the officers who arrested the second plaintiff, and was entitled to qualified immunity on those counts; but 2) triable factual issues remained as to the grounds for the first plaintiff’s arrest, and as to her state-law tort claims.
U.S. 5th Circuit Court of Appeals, September 25, 2008 US v. Cardenas-Cardenas, No. 08-40210 Sentence for being an alien unlawfully present in the U.S. after deportation is affirmed where defendant’s prior burglary conviction was a crime of violence for sentence-enhancement purposes. …
U.S. 6th Circuit Court of Appeals, September 24, 2008 US v. Polihonki, No. 07-2106 A sentence imposed following revocation of defendant’s supervised release is affirmed over defendant’s claim that the sentence, which was two months longer than the applicable Sentencing Guidelines range, was both procedurally and substantively unreasonable. .
U.S. 6th Circuit Court of Appeals, September 24, 2008 Smith v. Berghuis, No. 06-1463 Denial of a petition for habeas relief from a conviction and life sentence for second degree murder and felony possession of a firearm is reversed where petitioner demonstrated a violation of his Sixth Amendment right to a jury drawn from a fair cross-section of the community, and the Michigan Supreme Court unreasonably applied federal law when it held that underrepresentation of African Americans county venire panels did not occur as a result of systematic exclusion. ..
U.S. 7th Circuit Court of Appeals, September 26, 2008 US v. Hagerman, No. 08-2670 In a case involving criminal sanctions against a corporation for violations of the Clean Water Act, appeals from dismissal of the government’s petition seeking relief from alleged probation violations are dismissed where: 1) an individual defendant was not a party to the probation-violation proceeding and no order against him was entered; and 2) the corporate defendant, an LLC, could not be represented pro se by one of its members, but, like a corporation, was required to be represented by counsel. ..
U.S. 8th Circuit Court of Appeals, September 23, 2008 US v. Rogers, No. 07-1790 Revocation of defendant’s supervised release and a resultant sentence are affirmed where: 1) the district court did not abuse its discretion in the revocation as it did not clearly err in finding that he violated the conditions of his supervised release by committing an assault under state law; 2) the revocation sentence was proper as 18 U.S.C. section 3583(b)’s 3-year maximum term of supervised release did not apply in this case; and 3) the sentence was not unreasonable. ..
U.S. 8th Circuit Court of Appeals, September 23, 2008 US v. Cavins, No. 07-3343 Chiropractor’s conviction for willfully attempting to evade and defeat payment of federal income tax is affirmed over claims that: 1) the indictment failed to charge and the government failed to prove a willful violation of 26 U.S.C. section 7201; 2) the district court erred in refusing to dismiss the indictment because Form 1040 returns for the 1992-1994 tax years failed to comply with the Paperwork Reduction Act; and 3) the admission of evidence that he failed to file income tax returns violated his Fifth Amendment rights.
U.S. 8th Circuit Court of Appeals, September 26, 2008 US v. Reyes-Solano, No. 07-3334 A twenty-two month sentence for illegally reentry to the U.S. following deportation is vacated and remanded where the district court erred in applying Shepard v. US, 544 U.S. 13 (2005), to defendant’s prior Mississippi convictions for domestic assault and assault of a police officer, an error that undermined a U.S.S.G. section 2L1.2(b) 1)(E) four-level increase.
U.S. 9th Circuit Court of Appeals, September 23, 2008 US v. Pham, No. 06-30489 In an identity theft case challenging the level of sentencing enhancement imposed, the sentence is vacated and case remanded where: 1) a four level enhancement under U.S. Sentencing Guidelines section 2B1.1(b)(2)(B) requires that victims sustain actual losses beyond immediate losses quickly covered by a third party; 2) the victims’ monetary losses were covered by their respective banks; and 3) the government failed to provide adequate evidence of victim losses due to inconvenience in rectifying their accounts or due to not having their money in the time before their losses were covered. .
U.S. 9th Circuit Court of Appeals, September 24, 2008 US v. McCalla, No. 07-50162 In a case challenging the constitutionality of federal child pornography laws applied to intrastate production of child pornography, denial of motions to dismiss is affirmed where there is a rational basis to believe that homegrown production of child pornography, even absent evidence of a commercial intent, would affect interstate commerce.
U.S. 9th Circuit Court of Appeals, September 24, 2008 US v. Bhatia, No. 07-10424 In a wire fraud and money laundering case, interlocutory appeal of denial of a motion to dismiss is denied for lack of res judicata or collateral estoppel where the government did not assume control of prior civil litigation so was not in privity with plaintiffs from the prior litigation.
U.S. 9th Circuit Court of Appeals, September 24, 2008 Ngaeth v. Mukasey, No. 04-71732 In an immigration case, the Court denies petition for review of denial of a motion to reopen the case where a conviction for entering a locked vehicle with the intent to commit theft under California Penal Code section 459 constitutes an attempted theft offense allowing removal of a lawful permanent resident as an aggravated felon under 8 U.S.C. section 1101(a)(43)(U). .
U.S. 9th Circuit Court of Appeals, September 24, 2008 US v. Vega, No. 07-50245 In a case challenging the conditions of supervised release, the sentence is affirmed where: 1) the condition that defendant abstain from alcohol was not a abuse of discretion; 2) the condition requiring community service when unemployed was not an abuse of discretion; and 3) the condition against “association” with “any member of any criminal street gang” specifically “Harpys street gang” was not impermissibly vague, impliedly excluded inadvertent association, and was not plain error. …
U.S. 9th Circuit Court of Appeals, September 24, 2008 US v. Gomez-Leon, No. 05-50138 In a case challenging an enhanced sentence imposed for illegal reentry after deportation, the sentence is reversed and remanded where: 1) the district court erred by enhancing defendant’s sentence under U.S. Sentencing Guidelines (USSG) section 2L1.2(b)(1)(A)(I) because the government failed to show that defendant’s sentence for his prior drug trafficking offense exceeded thirteen months; and 2) defendant’s conviction under California Penal Code section 192(c)(3) for vehicular manslaughter while intoxicated without gross negligence was not a “crime of violence” allowing a sixteen point enhancement under USSG section 2L1.2(b)(1)(A)(ii).
U.S. 9th Circuit Court of Appeals, September 26, 2008 US v. Lazarenko, No. 06-10592 In a case of involving millions of dollars extorted and stolen by former Ukrainian Prime Minister Lazarenko, eight convictions are affirmed and six reversed where: 1) the indictment need not plead a violation of a specific foreign law; 2) wire transfers not part of the execution of the scheme in question could not support conviction for wire fraud under 18 U.S.C. sections 1343 or 1346; and 3) interstate transfer of stolen property under 18 U.S.C. section 2314 require direct tracing of the stolen proceeds, and evidence of a comingled account will not suffice.
California Appellate Districts, September 22, 2008 Quinones v. Super. Ct. , No. D052665 Petition for writ of prohibition restraining respondent-court from proceeding further on torture and attempted murder counts is partially granted where: 1) the torture charge unfairly surprised petitioner; but 2) the attempted murder charge did not.
California Appellate Districts, September 23, 2008 People v. Barkley, No. H031717 Sentence for possession for sale or purchase for sale of cocaine base is affirmed where trial court’s conclusion that defendant’s prior assault conviction was a felony strike prior was supported by the record of conviction, so the trial court did not err in doubling defendant’s midterm sentence.
California Appellate Districts, September 23, 2008 People v. Martinez, No. C055549 54-year 8-month to life sentence for torture, rape, assault and other crimes is affirmed where: 1) defendant had no right to a jury trial on the factors used to impose consecutive sentences; and 2) the trial court’s selection of the upper term on stayed counts is supported by at least one aggravating factor that the jury would have found true beyond a reasonable doubt.
California Appellate Districts, September 25, 2008 People v. Zepeda, No. C054972 Conviction for murder, attempted murder, assaults with a semiautomatic firearm, and other gang-related charges is affirmed over claims that the trial court erred by: 1) instructing the jury with CALCRIM No. 220, an instruction defendant claimed misstated the proof beyond a reasonable doubt standard by not referring to the conviction of proof being deeply “felt”; and 2) admitting unduly prejudicial evidence in the form of two tracks from a gangster rap CD that defendant wrote.
California Appellate Districts, September 25, 2008 Wilkinson v. Zelen, No. B200074 In the context of legal malpractice actions stemming from an attorney’s representation in an underlying criminal trial, a legal malpractice plaintiff must prove factual innocence and exoneration as to all transactionally related offenses comprising the basis for the underlying criminal proceeding in order to maintain a malpractice action.
Texas Court of Criminal Appeals, September 24, 2008 Clarke v. Texas, No. PD-1454-07 In a prosecution for sexual assault, denial of a Brady claim as waived by defendant’s failure to raise it during proceedings on a motion for a new trial is reversed and remanded for consideration on the merits where, under Appellate Rule 33.1, a claim that the trial court erred in denying a motion for new trial is preserved for appellate review if the nature of the ground allegedly warranting the new trial is raised and litigated, without objection, at some point during the motion-for-new-trial proceedings. .
Texas Court of Criminal Appeals, September 24, 2008 Brown v. Texas, No. AP-75,294 Conviction and sentence of death for capital murder are affirmed on automatic appeal over claims of error regarding: 1) the corroboration of the testimony of an accomplice-witness; 2) defendant’s requests to shuffle the jury panel; and 3) improper statements during closing arguments made by the prosecutor