Update from the Lexis Alert Service,
April 13, 2009.
1. People v. Gagot, 277, 6919/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2724; 2009 N.Y. App. Div. LEXIS 2591, April 9, 2009, Decided, April 9, 2009, Filed, 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.
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April 6-10, 2009:
U.S. Supreme Court, April 06, 2009 Corley v. US, No. 07-10441 Defendant’s bank robbery conviction is vacated, where the District Court erred by denying Defendant’s motion to suppress his confession under McNabb v. US, 318 U.S. 332 (1943), and Mallory v. US, 354 U.S. 449 (1957), based on the government’s delay in bringing him before a judge, where 18 U.S.C. section 3501 modified McNabb-Mallory but did not supplant it. …
U.S. 1st Circuit Court of Appeals, April 09, 2009 US v. González-Castillo , No. 07-2134 Sentence for unlawfully entering the U.S. after being previously deported is reversed and remanded where a clear and obvious error occurred when the court based defendant’s sentence on unsupported factual assertions, such that the error affected the defendant’s substantial rights and impaired the fairness of defendant’s sentence. .
U.S. 2nd Circuit Court of Appeals, April 06, 2009 US v. Hertular, No. 07-1453 Conviction for drug and drug-related crimes is affirmed in part, reversed in part, and vacated and remanded where: 1) the evidence was insufficient to support defendant’s conviction for forcibly impeding or intimidating a federal officer under 18 U.S.C. sec. 111(a)(1) as the agents were not being threatened with immediate harm; 2) defendant’s sufficiency challenge to his obstruction of justice conviction was patently without merit; 3) there was no plain error in the district court’s jury instructions regarding the specific intent element of the obstruction of justice charge; and 4) although defendant’s sentence is vacated in light of the reversal of his sec. 111 conviction, there is still no merit to defendant’s procedural challenges to his sentence.
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U.S. 5th Circuit Court of Appeals, April 08, 2009 Davis v. Tarrant Cty., No. 07-11223 In a 42 U.S.C. section 1983 action seeking admission to a state system of appointing attorneys in felony cases, the dismissal of the complaint is affirmed, where Plaintiff lacked standing because he failed to show that his application would have been denied had he reapplied for the position after changes in the system. .
U.S. 7th Circuit Court of Appeals, April 06, 2009 US v. Benson , No. 08-1312 District court action enjoining defendant from selling materials based on his premise that customers could stop paying federal income taxes and avoid or defeat prosecution by relying on the materials is affirmed where: 1) defendant violated 26 U.S.C. sec. 6700 by selling an illegal method by which to avoid paying taxes, and knew that his statements regarding the illegal plan were false or fraudulent; and 2) the injunction was properly issued and did not violate the First Amendment. Denial of government’s request to require defendant to divulge a list of his customers is reversed where: 1) defendant would not be harmed by identifying his customers and it would serve the public interest for the government to receive the full list; and 2) an order divulging the client list does not infringe on the First Amendment rights of defendant’s customers.
U.S. 7th Circuit Court of Appeals, April 09, 2009 City of Joliet v. New West, L.P. , No. 08-3032 In an action involving eminent domain proceedings, district court judgment is affirmed where neither the National Housing Act nor the Multifamily Assisted Housing Reform and Affordability Act preempts state and local condemnation laws.
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April 8-9, 2009.
COMMUNICATIONS LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE Global Network Communications, Inc. v. City of New York, No. 07-5184 In an action involving the denial of an application for a public pay telephone franchise, district court’s grant of summary judgment for defendant is affirmed where: 1) defendant’s refusal to grant plaintiff a franchise to operate on public rights-of-way on the basis of its past history of fraud is within the scope of the safe harbor exception of Telecommunications Act sec. 253; 2) the court did not err in dismissing plaintiff’s state and federal law preemption claims; and 3) the court did not err in dismissing plaintiff’s federal constitutional claims.
Update from the Lexis Alert Service,
April 9, 2009.
1. People v. Dunkley, 243, 4713/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2659; 2009 N.Y. App. Div. LEXIS 2557, April 7, 2009, Decided, April 7, 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.
April 8, 2009
A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust
Corley v. United States No. 07-10441
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April 7, 2009.
CRIMINAL LAW & PROCEDURE, PER CURIAM US v. Kopp , No. 07-2797 Conviction for intentionally inflicting on a person, because that person was a provider of reproductive health services, an injury resulting in death is affirmed where: 1) district court properly denied defendant’s motion to suppress evidence as untimely, and defendant provided no valid basis for a claim for relief from the Fed. R. Crim. P. rule 12(e) waiver; 2) court did not err when it granted government’s motion to introduce defendant’s statements in redacted form as the redacted portions had no bearing on the jury’s consideration; and 3) the court did not err in precluding defendant from asserting a justification defense and instructing the jury that it was not to consider a justification defense, as the evidence was insufficient to support that defense under any reasonable articulation. ..
Harbison v. Bell, Warden
No. 07-8521
“In reversing a 6th Circuit opinion, the U.S. Supreme Court has found that a certificate of appealability is not required to appeal a denial of federally appointed counsel, and that federally appointed counsel may represent clients in state clemency proceedings and be compensated for that representation. Following Tennessee state courts’ rejection of Petitioner’s conviction and death penalty challenges, a federal public defender had been appointed to represent him in a habeas petition. Upon denial of that petition, counsel sought to continue representing Petitioner in state clemency proceedings since Tennessee does not provide counsel for such proceedings. The District Court had denied the motion, and the 6th Circuit had affirmed.”
From: Findlaw Case Summaries, Second Circuit U.S. Court of Appeals:
CYBERSPACE LAW, INTELLECTUAL PROPERTY, TRADEMARK
Rescuecom Corp. v. Google Inc. , No. 06-4881
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March 30 – April 3, 2009:
U.S. Supreme Court, March 31, 2009 Rivera v. Illinois, No. 07-9995 Provided that all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reversal of a conviction because of the trial court’s good-faith error in denying the defendant’s peremptory challenge to a juror. Defendant’s murder conviction is therefore affirmed.
U.S. Supreme Court, April 01, 2009 Harbison v. Bell, No. 07-8521 In a capital habeas proceeding, the denial of federal appointed counsel’s motion to expand the scope of her representation to include state clemency proceedings is reversed, where: 1) a certificate of appealability is not required to appeal an order denying a request for federally appointed counsel, because 28 U.S.C. section 2253(c)(1)(A) governs only final orders that dispose of a habeas corpus proceeding’s merits; and 2) because state clemency proceedings are “available” to state petitioners who obtain representation under 28 U.S.C. section 3599(a)(2), the statute’s plain language indicates that appointed counsel’s authorized representation includes such proceedings.
U.S. 1st Circuit Court of Appeals, March 30, 2009 US v. Gonzalez-Ramirez , No. 07-1880 Conviction and sentence for drug crimes is affirmed where: 1) the district court did not abuse its discretion in denying defendant’s motion for a competency hearing and request for a continuance; 2) the court did abuse its discretion in admitting the cocaine and packaging as evidence, or the officer’s testimony related to the evidence; and 3) the evidence was sufficient to support his conviction.
U.S. 1st Circuit Court of Appeals, March 30, 2009 US v. Rivera , No. 07-2675
District court judgment is affirmed where the “did assault and beat” charging language in the criminal complaint sufficed to identify the offense as a violent felony under the Armed Career Criminal Act or a “crime of violence” under the career offender provision of the United States Sentencing Guidelines. Read more…
U.S. 1st Circuit Court of Appeals, April 01, 2009 US v. Marsh , No. 07-1698
Sentence for drug crimes is affirmed where the court was not unreasonable in applying a twelve-month upward departure from defendant’s mandatory minimum sentence, as the court made an informed decision and also stated it would have reached the same result under the U.S. Sentencing Guidelines as it would have in a non-Guideline setting.
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