Articles Posted in Court Decisions

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Occasionally we are asked by lawyers preparing briefs if we would consider posting the final product on this blog. In this instance we are posting an appellant brief for the New York Sourt of Appeals Second Circuit case United States v. Justin K. Dorvee. The brief was prepared by Paul J. Angioletti, attorney for the defendant. We are grateful to Mr. Angioletti for submitting his brief for posting on this blog.

The information immediately below is taken from the introductory sections to give you a quick overview of the issues involved. It is followed by a link to the complete text of the brief, which you can upload.

BRIEF FOR DEFENDANT-APPELLANT JUSTIN K. DORVEE

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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.
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September 7-11, 2009.

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U.S. 1st Circuit Court of Appeals, September 11, 2009 US v. Piza-Blondet, No. 08-2263
In condemnation proceedings involving a 34 acre parcel used by the Federal Aviation Administration for aircraft navigation, the district court’s judgment is affirmed where the district court: 1) did not abuse its discretion in excluding defendant’s own testimony when the court had excluded similar testimony by defendant’s expert; 2) did not err in holding that the “before and after” method was appropriate in valuing the property, assuming a partial taking; and 3) did not err in submitting to the jury unity of use. Defendant’s remaining contentions were without merit.

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. 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.
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August 24 – 28, 2009.

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U.S. 1st Circuit Court of Appeals, August 24, 2009 Calderon-Garnier v. Sanchez-Ramos, No. 08-1284
In an employment discrimination case brought by a former prosecutor of Puerto Rico, summary judgment and dismissal rulings for defendants are affirmed where plaintiff raised no genuine issue as to any material fact that would cause the court to doubt whether the plaintiff had a meaningful opportunity to participate in a pre-termination hearing.

U.S. 1st Circuit Court of Appeals, August 24, 2009 Crawford v. Clarke, No. 08-2100 In an action brought by Muslim inmates in the custody of the Massachusetts Department of Corrections (DOC) alleging the Commissioner violated their right to freely exercise their religion, grant of an injunction in favor of inmates is affirmed where the district court did not abuse its decision in denying Commissioner’s motion for reconsideration as the Commissioner sought to introduce evidence that could have been introduced at trial but chose not to.

U.S. 1st Circuit Court of Appeals, August 26, 2009 Negron-Almeda v. Santiago, No. 08-2360 In a case brought by dismissed employees of a government agency in Puerto Rico claiming political discrimination, district court’s order of reinstatement against defendant-intervenor is affirmed where: 1) it was proper for the district court to revisit the earlier order where, under the law of the case doctrine, courts may reopen a matter previously decided on a showing of exceptional circumstances such as the serious injustice to the plaintiffs in this case; 2) the reinstatement order was proper as defendants could be substituted for the original party under Rule 25(c) and they are not protected by sovereign immunity.
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August 24 – 28, 2009.

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U.S. 1st Circuit Court of Appeals, August 24, 2009 US v. Padilla-Colon, No. 07-2372 Conviction of defendant for possession of drugs with intent to distribute is affirmed where, although defendant’s waiver of appeal was invalid, there was no error in the district court finding that defendant did not qualify for the safety valve provision of 18 U.S.C. section 3553(f), based on a reasoned assessment of the defendant’s credibility in light of the facts on record.

U.S. 1st Circuit Court of Appeals, August 24, 2009 Crawford v. Clarke, No. 08-2100 In an action brought by Muslim inmates in the custody of the Massachusetts Department of Corrections (DOC) alleging the Commissioner violated their right to freely exercise their religion, grant of an injunction in favor of inmates is affirmed where the district court did not abuse its decision in denying Commissioner’s motion for reconsideration as the Commissioner sought to introduce evidence that could have been introduced at trial but chose not to.

U.S. 1st Circuit Court of Appeals, August 26, 2009 US v. Calderon, No. 05-2650 District court’s sentence and conviction of defendants for conspiring to possess drugs with the intent to distribute is affirmed where: 1) under the totality of the circumstances, the existence of common purpose, distribution of drugs, interdependence of various elements in the overall plan, and overlap among defendants, a reasonable jury could have convicted each of the defendants of the single conspiracy charge; 2) district court did not err in allowing a witness to testify as the defendant had not preserved a delayed disclosures claim; 3) court did abuse its discretion in admitting evidence of a firearm as it was clearly a relevant evidence and Rule 403 balancing did not weigh in favor of exclusion; 4) district court did not abuse its discretion in ruling that murder evidence was relevant, and even were the circuit court to conclude that the district court erred in admitting the evidence, the error would not be clear or obvious; 5) district court did not err in severing! defendant’s trial from his codefendants as he did not file a severance motion before trial; and 6) district court did not err in determining the drug quantity findings in sentencing the defendants under the sentencing Guidelines Continue reading

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Update from the Lexis Alert Service,

August 19, 2009
1. People v. Olivo, 880, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5194; 63 A.D.3d 576; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5037, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (Laura Ward, J.), …

2. People v. Gomez, 892, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5169; 63 A.D.3d 558; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5036, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (William A. Wetzel, …

3. People v. Disla, 864, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5182; 63 A.D.3d 566; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5062, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (James Yates, J.), …

4. People v. Bustamante, 899, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5174; 63 A.D.3d 561; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5042, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (Bonnie Wittner, J. …

5. People v. Neary, 902, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5177; 63 A.D.3d 563; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5038, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (Carol Berkman, J.), …

6. People v. Rivera, 861, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5180; 63 A.D.3d 565; 881 N.Y.S.2d 359; 2009 N.Y. App. Div. LEXIS 5053, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
… appellant from a judgment of the Supreme Court, New York County (Charles Solomon, J.), …

7. People v. Padworski, 893, 7538/89, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5170; 63 A.D.3d 558; 880 N.Y.S.2d 486; 2009 N.Y. App. Div. LEXIS 5041, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), …

8. People v. Hernandez, 874, 6597/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5188; 63 A.D.3d 571; 880 N.Y.S.2d 489; 2009 N.Y. App. Div. LEXIS 5040, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Rena K. Uviller, …

9. People v. McNeil, 885, 832/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5163; 63 A.D.3d 551; 881 N.Y.S.2d 417; 2009 N.Y. App. Div. LEXIS 5047, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (William A. Wetzel, …

10. People v. Nelson, 901, 3425/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5176; 63 A.D.3d 563; 881 N.Y.S.2d 94; 2009 N.Y. App. Div. LEXIS 5048, June 23, 2009, Decided, June 23, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Lewis Bart Stone, …
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Source: Quinlan Law Enforcement E-News Alert, July 16, 2009.

Warrant to seize computer records

In a case involving a narcotics arrest, the court held that a warrant allowing for the seizure of “computerized records” authorized the investigators serving the warrant to seize the defendant’s computers. The defendant argued that because the warrant did not specifically list “computers” as an item to be seized, the seizure of the computers was outside the scope of the warrant. The court reasoned that anyone with a minimum of computer knowledge would understand that seizing “computer records” would necessitate seizing the actual computers those records were contained within. The court did, however, note that seized computers should not be kept by the government indefinitely after the seizure.

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To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

July 20-24. 2009.

U.S. 1st Circuit Court of Appeals, July 22, 2009 US v. Allen, No. 08-1451
Conviction for being a felon in possession of a firearm is affirmed where: 1) the district court did not abuse its discretion in failing to conduct an evidentiary hearing before denying defendant’s motion to suppress as defendant failed to raise a genuine issue of material fact regarding the plain view analysis or the existence of probable cause; 2) the court did not abuse of discretion by finding without an evidentiary hearing that his statements to the police were voluntary, as there was an affidavit and a signed Miranda acknowledgment, and defendant’s assertions were unsupported by any references to specific statements he sought to suppress; and 3) the court did not abuse its discretion in denying defendant’s motion for reconsideration as defendant’s affidavit in support of his motion did not respond to the government’s plain view assertions or specify the alleged Miranda violations. Read more…

U.S. 1st Circuit Court of Appeals, July 23, 2009 US v. Rodriguez-Barrios, No. 07-1854
Conviction for committing a carjacking resulting in death is affirmed where: 1) the court properly denied defendant’s motion for acquittal as the evidence was sufficient for a reasonable jury to conclude that defendant had the intent to kill or seriously harm the victim when he took control of her car; 2) the court did not err in excluding tape recordings of the victim as the recordings did not contradict the victim’s hearsay allegations of abuse; 3) the court did not abuse its discretion in refusing to allow defendant to present expert witness testimony regarding the reliability of eyewitness identification; 4) the court did not abuse its discretion denying defendant’s motion for a mistrial as the brief mention of the possibility of a polygraph examination did not warrant a mistrial; and 5) the court erroneously admitted certain statements made by the victim’s friend and mother, but the error was harmless. Read more..! .

U.S. 1st Circuit Court of Appeals, July 23, 2009 US v. Wallace, No. 07-1884 Sentence for armed robbery and other crimes is affirmed where: 1) the district court properly applied the mandate rule and refused to consider defendant’s objection to sentencing enhancement for obstruction of justice based on his perjury as defendant failed to challenge the enhancement in his first appeal and it became the law of the case; 2) the court properly applied the mandate rule to defendant’s objection to the stolen weapons enhancement; 3) defendant’s claim that his use of a dangerous weapon during the robbery was an improper basis for an upward departure and his claim that court’s decision to depart upwardly based on defendant’s disruption of government functions are both barred by the law of the case doctrine; 4) the court did not err in imposing a two-level increase for extreme psychological injury; 5) the court did not abuse its discretion in imposing an upward departure to his sentencing level based on his criminal history; and 6) defendant’s sentence was reaso! nable Continue reading

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To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

July 20-24. 2009.

U.S. 5th Circuit Court of Appeals, July 21, 2009 Oscar Renda Contracting Inc. v. Lubbock, No. 08-10481 In a 42 U.S.C. section 1983 action claiming that defendant city violated the First Amendment by denying plaintiff a construction contract, summary judgment for defendant is affirmed where not all construction contract disputes involving government entities or agents are matters of public concern.

U.S. 5th Circuit Court of Appeals, July 21, 2009 US v. Whaley, No. 08-10951 Defendant’s conviction for failure to register in accordance with the Sex Offender Registration and Notification Act (SORNA) is affirmed where SORNA does not exceed Congress’s powers under the Commerce Clause because it forbids sex offenders from using the channels of interstate commerce to evade their registration requirements.

U.S. 6th Circuit Court of Appeals, July 22, 2009 Waeschle v. Dragovic, No. 08-2228 In a 42 U.S.C. section 1983 action against a county Medical Examiner for depriving plaintiff of her right to dispose of her deceased mother’s brain (removed in an autopsy and later incinerated as medical waste), denial of defendant’s motion for summary judgment based on qualified immunity is reversed where plaintiff had no clearly established property right in the brain because it was removed and retained for study in furtherance of a lawful criminal investigation Continue reading

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Update from the Lexis Alert Service,

July 24, 2009
1. People v. Bright, 1010, 5732/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5607; 881 N.Y.S.2d 291; 2009 N.Y. App. Div. LEXIS 5436, July 2, 2009, Decided, July 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Eduardo Padro, J.), …

2. People v. Thomas, 985, 5090/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5636; 881 N.Y.S.2d 291; 2009 N.Y. App. Div. LEXIS 5417, July 2, 2009, Decided, July 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment of resentence, Supreme Court, New York County, (Carol Berkman, J.), …

3. People v. Coronel, 975, 9516/98, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5629; 881 N.Y.S.2d 293; 2009 N.Y. App. Div. LEXIS 5414, July 2, 2009, Decided, July 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Michael R. Ambrecht, …

4. People v. Deoleo, 979, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5632; 881 N.Y.S.2d 292; 2009 N.Y. App. Div. LEXIS 5468, July 2, 2009, Decided, July 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Laura Ward, J.), …
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