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March 2010
A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

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JOHNSON v. UNITED STATES (No. 08-5274)

United States Supreme Court Opinion Decided: March 2, 2010

Petitioner Johnson pleaded guilty to possession of ammunition by a convicted felon. 18 U.S.C. §922(g)(1). The Government sought sentencing under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates §922(g) and who “has three previous convictions” for “a violent felony,” §924(e)(1), defined as, an offense that “has as an element the use . . . of physical force against the person of another,” §924(e)(2)(B)(i). Among Johnsons’ three prior felony convictions was a 2003 Florida conviction for simple battery. Under Florida law, battery is ordinarily a first-degree misdemeanor but was a felony conviction for Johnson because he had a previous battery conviction. A battery can occur under Florida law when a person “[a]ctually and intentionally touches or strikes another person against [his] will.” §784.03(1)(a). The District Court enhanced Johnson’s sentence, concluding that Johnson’s 2003 conviction was a “violent felony” under the Armed Career Criminal Act because “[a]ctually and intentionally touch[ing]” another constitutes the use of “physical force” under §924(e)(2)(B)(i). The Eleventh Circuit affirmed.

The Supreme Court held that the Florida felony offense of battery by “[a]ctually and intentionally touch[ing]” another person does not have “as an element the use . . . of physical force against the person of another,” §924(e)(2)(B)(i), and thus does not constitute a “violent felony” under §924(e)(1).

In interpreting the phrase “physical force” in §924(e)(2)(B)(i), the Court was not bound by the Florida Supreme Court’s conclusion that, under Florida’s statutory equivalent to the Armed Career Criminal Act, the offense of battery does not “involve the use . . . of physical force or violence against any individual.”

Because §924(e)(2)(B)(i) does not define “physical force,” the Court gave the phrase its ordinary meaning.

The Government suggested that “force” in §924(e)(2)(B)(i)’s definition of “violent felony” is a legal term of art describing one element of the common-law crime of battery. Here, “physical force” does not define the crime of battery, but rather the statutory category of “violent felony.” §924(e)(2)(B)(i). In that context, “physical force” means violent force capable of causing physical pain or injury to another person.

The Court interpreted the phrase “physical force” only in the context of a statutory definition of “violent felony,” and did not decide whether the same meaning applies in the context of defining the scope of misdemeanor offenses.

The Court declined to remand for consideration whether Johnson’s 2003 battery conviction qualifies as a “violent felony” under § 924(e)(2)(B)(ii).

Reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Alito, J., filed a filed dissenting opinion, in which Thomas, J., joined.

Available at: http://www.supremecourtus.gov/opinions/09pdf/08-6925.pdf.
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BLOATE v. UNITED STATES (No. 08-728)

United States Supreme Court Opinion Decided: March 8, 2010
The Speedy Trial Act of 1974, 18 U. S. C. §3161 et seq., requires that a criminal defendant’s trial commence within 70 days after he is charged or makes an initial appearance, whichever is later, 3161(c)(1), and entitles him to dismissal of the charges if that deadline is not met, §3162(a)(2). Delays in the trial, however, can negate this 70 day period (i.e.: delay resulting from other proceedings concerning the defendant).

On August 24, 2006, petitioner Bloate was indicted by a grand jury with felony possession of firearms and possession with intent to distribute cocaine, starting the Speedy Trial Act’s 70 day clock. On September 7, petitioner filed motion to extend the deadline to file pretrial motions. The deadline was extended to September 25, on which date counsel for the petitioner waived all pretrial motions. On October 4th a hearing was held, in which the magistrate judge found petitioner’s waiver voluntary and intelligent. After several other delays, counsel for petitioner moved to dismiss trial under the Speedy Trial Act, as the 70 day clock had expired. District Court denied the motion as the period from September 13 to October 4 was excluded from the 70 days under the language of the act. Petitioner Bloate stood trial for two days on March 5 and 6, 2007 and was sentenced to two 30 year concurrent terms.

The 8th Circuit Court of Appeals denied petitioners appeal reasoning “pretrial motion preparation time” is automatically excludable under [Speedy Trial Act] subsection (h)(1)-which covers “delay resulting from other proceedings concerning the defendant”-as long as “the [district] court specifically grants time for that purpose.” 534 F. 3d, at 897. The Eighth Circuit joined 6 other Courts of Appeals in adopting this ruling, however, two Courts of Appeals disagree, holding that pretrial motions are outside of subsection (h)(1)’s scope. The Supreme Court sought to resolve this issue.

The Supreme Court held that “the time the District Court grants petitioner to prepare pretrial motions may be excluded [from the 70 days] only when a district court enters appropriate findings [justifying the exclusion]. The 28-day period from September 7 through October 4…is not automatically excludable under subsection (h)(1). We therefore do not consider whether any other exclusion would apply to all or part of the 28-day period” 559 U.S. (2010). Although the Supreme Court decision was in favor of Bloate, the 8th Circuit Court may decide on remand, whether the indictment and conviction remain effective.

Reversed and Remanded.

Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Sotomayor, JJ., joined. Ginsburg, J., filed a concurring opinion. Alito, J., filed a dissenting opinion, in which Breyer, J., joined

Available at: http://www.law.cornell.edu/supct/html/08-728.ZS.html

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U.S. Supreme Court, March 08, 2010 Bloate v. US, No. 08–728 In a drug and firearm possession prosecution, the Eighth Circuit’s order affirming the district court’s denial of defendant’s motion to dismiss the indictment on Speedy Trial Act grounds is reversed where the time granted to prepare pretrial motions was not automatically excludable from the 70-day limit under 18 U.S.C. section 3161(h)(1), and such time may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7).

U.S. 1st Circuit Court of Appeals, March 11, 2010 Peralta v. US, No. 08-1765 In proceedings involving defendant’s pro se motion under 28 U.S.C. section 2255 to vacate his sentence on grounds of ineffective assistance of counsel in connection with his guilty plea, sentencing, and direct appeal, the district court’s denial of the motion is affirmed where: 1) the district court did not commit err in finding that defendant was not denied constitutionally effective assistance of counsel; and 2) defendant’s other issues outside the certificate of appealability are waived.

U.S. 1st Circuit Court of Appeals, March 11, 2010 US v. Mejia, No. 08-2505 Defendant’s conviction and sentence for conspiring to distribute cocaine and possession of a firearm in furtherance of a drug crime are affirmed where: 1) district court did not err in denying defendant’s motion to suppress his incriminating statements; 2) defendant’s evidentiary claims are rejected as there was no abuse of discretion in admitting any of the evidence; and 3) district court did not abuse its discretion in denying defendant’s motion for a new trial.
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U.S. Supreme Court, March 08, 2010 Milavetz, Gallop & Milavetz, P.A. v. US, No. 08–1119 In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act’s (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit’s order rejecting the district court’s conclusion that attorneys are not “debt relief agencies” under BAPCPA, upholding application of BAPCPA’s disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528’s requirements were reasonably related to the government’s interest in preventing consumer deception. However, the court of appeals’ order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advis! ing a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose. .

U.S. 1st Circuit Court of Appeals, March 10, 2010 Foley v. Town of Randolph, No. 09-1558 In plaintiff’s 42 U.S.C. section 1983 suit claiming that he was wrongfully retaliated against in violation of his First Amendment rights when he was suspended, as a Chief of the Fire Department, for fifteen days based on public statements he made at the scene of a fatal fire, district court’s grant of summary judgment in favor of the defendants is affirmed as, under the circumstances of the press conference in the case, there could be no doubt that plaintiff was speaking in his official capacity and not as a citizen when he addressed budgetary and staffing shortfalls the department.

U.S. 1st Circuit Court of Appeals, March 11, 2010 Peralta v. US, No. 08-1765 In proceedings involving defendant’s pro se motion under 28 U.S.C. section 2255 to vacate his sentence on grounds of ineffective assistance of counsel in connection with his guilty plea, sentencing, and direct appeal, the district court’s denial of the motion is affirmed where: 1) the district court did not commit err in finding that defendant was not denied constitutionally effective assistance of counsel; and 2) defendant’s other issues outside the certificate of appealability are waived Continue reading

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U.S. Supreme Court, November 09, 2009 Bobby v. Van Hook, No. 09–144 In a capital habeas matter, a circuit court of appeals’ grant of the petition on the basis that petitioner’s lawyers performed deficiently in investigating and presenting mitigating evidence is reversed where: 1) the court of appeals applied 2003 ABA Professional Guidelines to defense counsel’s conduct at a trial that took place in 1985; and 2) counsel’s performance at the trial was not deficient under the standards in place at the time.

U.S. 1st Circuit Court of Appeals, November 10, 2009 US v. Villar, No. 08-1154 In proceedings arising after defense counsel in a criminal matter received an e-mail from a juror containing ethnically-biased statements, an order denying defendant’s motion to make an inquiry into the validity of the verdict is reversed and the matter remanded where: 1) although the trial court correctly found that Rule of Evidence 606(b) precludes inquiry into juror prejudice; 2) a court has the discretion to conduct such an inquiry under the Sixth Amendment and the Due Process Clause of the United States Constitution. …

U.S. 1st Circuit Court of Appeals, November 12, 2009 Cabral v. US Dep’t of Justice, No. 07-1633 In an appeal arising from an underlying action brought by a nurse practitioner claiming that defendant-sheriff barred plaintiff from a County House of Correction (HOC) for informing the FBI of alleged prisoner abuse at the HOC, denial of defendants’ motions for a new trial and for remittur is affirmed where: 1) there is nothing in the record indicating that the district court abused its discretion in making its pre-trial evidentiary and disclosure rulings; 2) district court’s dismissal of defendants’ action under the Administrative Procedure Act (APA) was proper as there was nothing in the record indicating that agency’s denial of the defendants’ Touhy requests was arbitrary and capricious; 3) the evidence was sufficient to establish that the sheriff engaged in the callous and reckless conduct necessary to support an award of punitive damages; and 4) the award of punitive damages of $250,000 against sheriff was not excessive.
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August 18 – 27, 2009.

View FindLaw’s new Case Summary Blog for the U.S. 2nd Circuit Court of Appeals
CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW, INJURY AND TORT LAW Okin v. Cornwall-on-Hudson, No. 06-5142 In a 42 U.S.C. section 1983 action alleging that defendants-officers permitted plaintiff’s partner to abuse her, summary judgment for certain defendants is affirmed in part where plaintiff failed to show a genuine issue of material fact as to whether defendants enhanced the risk of violence by making explicit assurances to the perpetrator. However, the ruling is reversed in part where plaintiff raised a genuine issue of material fact as to whether defendant-officers implicitly but affirmatively sanctioned the abuse.

CRIMINAL LAW & PROCEDURE, SENTENCING US v. Dhafir, No. 05-5965 Defendant’s Medicare fraud sentence is vacated where the district court overlooked an alternate means of determining which sentencing provision under U.S.S.G. section 2S1.1(a) applied to the charges against defendant
CRIMINAL LAW & PROCEDURE, SENTENCING US v. Ware, No. 07-5222 Defendant’s securities fraud conviction is affirmed, where the Double Jeopardy Clause did not apply to defendant’s retrial because he himself moved for a mistrial. However, his sentence is vacated where the district court made insufficient findings regarding defendant’s role in the conspiracy for sentencing purposes.

CRIMINAL LAW & PROCEDURE, EVIDENCE US v. Pizzonia, No. 07-4314 Defendant’s Racketeer Influenced and Corrupt Organizations (RICO) Act conviction is affirmed where, even though the predicate acts proved by the government were outside the statute of limitations, other trial evidence permitted the jury to conclude that both the charged racketeering conspiracy and defendant’s membership in it continued into the limitations period.
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1. People v. Lasalle, 1006, 3722/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 5603; 2009 N.Y. App. Div. LEXIS 5422, 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.

Identity theft “In a case involving identity theft, the court found that a search warrant for computer data was valid even though its actual wording was overbroad, since the officers executing the search acted in good faith that the warrant was valid. The defendant was a United States postal worker who intercepted certain credit card information from individuals on her route. After an investigation, postal inspectors applied for a warrant to search both the defendant’s home and computers. The warrant was drafted in such a way that it was overbroad in its reference to the computerized data. However, the court found that because the officers believed the warrant to be valid and limited their search in a reasonable manner, the search was not unconstitutional.”

Citation: U.S. v. Otero, 2009 WL 1119657 (10th Cir. 2009)

Hard drive mirror image “In a case in which a prosecutor has complied with its duty to provide discovery by delivering a transcript of evidence from the hard drive of a police computer, the defendant argued that he had the right to obtain a mirror image of the computer hard drive without making a prima facie showing that the information in the transcript was false, incomplete, adulterated, or spoliated. The court concluded that without making such a showing, the defendant had no right to obtain a copy of the hard drive. The defendant was accused of inappropriate sexual conduct with a minor. The state presented evidence that included transcriptions of chat logs obtained from the defendant’s computer. When the defendant requested a mirror image of the hard drive, the state refused. The court concluded that the transcripts were sufficient evidence and that the defendant’s mere speculation that the original hard drive would vindicate him was insufficient to compel the state to produce a mirror image.”