Criminal Law Library Blog
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April 5 – April 9, 2010:.
U.S. 1st Circuit Court of Appeals, April 01, 2010 Chamberlin v. Town of Stoughton, No. 08-1289 In plaintiff-officers’ 42 U.S.C. section 1983 suit against a town, its officials and police chiefs involving various workplace discrimination and harassment claims, district court’s grant of a directed verdict in favor of one of the two police chiefs is affirmed as any error in granting the directed verdict was harmless because of the rejection of plaintiffs’ claims against the other police chief by a different jury in a second trial.
U.S. 1st Circuit Court of Appeals, April 06, 2010 US v. Flores-Rivera, No. 09-1131 In defendant’s action seeking return of seized property without notice arising from his drug arrest and conviction in 1991, district court’s ruling that his property should be returned but simultaneously ordering that the funds be applied to defendant’s criminal fine is vacated and remanded with instructions to promptly conduct a hearing, follow the applicable statutory procedures, and otherwise provide defendant with the long-delayed process to which he is entitled.
U.S. 3rd Circuit Court of Appeals, April 06, 2010 US v. Sed, No. 09-1489 In a prosecution of defendant for conspiracy to distribute and possess with the intent to distribute drugs and other related crimes, defendant’s conviction and sentence is affirmed where: 1) the seizure of defendant by Pennsylvania State Police in Ohio was not unreasonable and the district court did not err in denying his motion to suppress; and 2) the district court did not err when it failed to grant defendant a downward departure or an additional downward variance as the record amply supports the district court’s conclusion that defendant perjured himself and that the Pennsylvania State Police did not act improperly in conducting their sting operation.
U.S. 3rd Circuit Court of Appeals, April 07, 2010 US v. Schiff, No. 08-1903 In a criminal prosecution of corporate executives at the pharmaceutical giant Bristol-Myers Squibb for securities fraud under 15 U.S.C. section 78j(b) and Securities and Exchange Commission Rule 10b-5, the district court’s pretrial order (1) dismissing the government’s theories of omission liability under Rule 10b-5 that attempted to hold defendant accountable for omissions in quarterly SEC 10-Q filings based on alleged misstatements in a company’s quarterly conference calls; and 2) excluding the government’s expert, following a Daubert hearing, who would have testified to the company’s stock price drop as evidence of Rule 10b-5’s materiality element, the order is affirmed where: 1) defendant had no duty to disclose in SEC filings deriving from a general fiduciary obligation of “high corporate executives” to the company’s shareholders; 2) there were no actionable omissions in the SEC filings on which to base the government’s theory; and 3) the district court’s thoroughly exp! lained ruling that allowed the government to present its fact witnesses at trial, and then petition the court for introduction of an expert’s stock price drop testimony, was a pragmatic solution and not an abuse of discretion.
U.S. 4th Circuit Court of Appeals, April 05, 2010 US v. Green, No. 08-4088 Conviction of defendants for drug related crimes involving a family-based drug distribution network are affirmed where: 1) the evidence was sufficient to support the defendants’ convictions beyond a reasonable doubt; 2) district court did not err in denying the motions for judgment of acquittal; 3) district court did not clearly err in finding that a search of a defendant’s residence, and the area under the bed in particular, was a permissible protective sweep intended to safeguard the officers effecting the arrest; 4) the district court correctly applied the plain view exception to the Fourth Circuit warrant requirement; and 5) there is no abuse of discretion or error of law in respect to the district court’s rulings in the management of the proceedings below.
U.S. 4th Circuit Court of Appeals, April 08, 2010 US v. Ayala, No. 07-4577 In a case involving the prosecution of members of a violent street gang under various statutes, including the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Violent Crimes in Aid of Racketeering (VICAR) statute, defendants’ convictions and sentences are affirmed where: 1) the court rejects defendant’s claim that his conviction under the VICAR statute was for the same conduct as that he was punished for under RICO, and thus constituted double jeopardy; 2) a RICO conspiracy to commit crimes including murder, kidnapping, and robbery is by its nature a crime of violence for purposes of defendant’s conviction under 18 U.S.C. section 924(c) for using or carrying a firearm during and in relation to a crime of violence; 3) defendant’s evidentiary challenges are rejected; 4) other defendant’s claim that the district court unduly limited his ability to cross-examine the two teenage victims of a gang rape is rejected; 5) the district court’s did not err in deciding n! ot to instruct the jury on the definition of reasonable doubt; and 6) the district court’s admission of the testimony of three expert witnesses did not violate the Confrontation Clause, as each was subject to cross-examination about his judgment.
U.S. 4th Circuit Court of Appeals, April 09, 2010 US v. Claridy, No. 08-5025 A conviction for drug and firearm related offenses is affirmed where: 1) under the circumstances in this case, Federal Rule of Criminal Procedure 41 did not govern the search warrant challenged by defendant; 2) even if Rule 41 did apply, defendant was not prejudiced by the claimed violation and therefore would not have been entitled to suppression of the evidence seized during the search; and 3) an argument that defendant’s inculpating statement was made after an unreasonable delay after his arrest was unsupported by the evidence.
U.S. 5th Circuit Court of Appeals, April 07, 2010 US v. Hughes, No. 08-60870 Defendant’s firearm possession conviction and sentence are affirmed where: 1) faced with contradictory testimony regarding what officers saw in defendants’ car, the district court was entitled to decide whom to believe when both presented “reasonable views of the evidence”; 2) there was not enough in this record to rule on whether defendant’s counsel was ineffective, so he was required to follow the usual route of collateral attack; and 3) defendant’s third prior conviction for violating the federal escape statute, 18 U.S.C. section 751(a), was a violent felony, as the district court held, which qualified defendant for enhanced sentencing under the Armed Career Criminal Act.
U.S. 5th Circuit Court of Appeals, April 07, 2010 US v. Davis, No. 09-10731 Defendant’s sentence following the revocation of his supervised release is affirmed where: 1) defendant failed to meet his burden of establishing a reasonable probability that the district court’s consideration of an incorrect advisory range affected his sentence; and 2) the court of appeals declined to exercise its discretion to remand for resentencing.
U.S. 5th Circuit Court of Appeals, April 07, 2010 Jennings v. Owens, No. 09-50047 In an action claiming that officials from the Texas Board of Pardons and Paroles and the Texas Department of Criminal Justice committed procedural due process violations after the Board of Pardons and Paroles imposed sex offender special conditions on plaintiff’s parole, summary judgment for plaintiff is reversed where, because plaintiff was indeed a sex offender, he failed to show that he had a liberty interest that was infringed when the parole board imposed sex offender special conditions on his parole.
U.S. 5th Circuit Court of Appeals, April 08, 2010 US v. Bishop, No. 09-20172 In a prosecution for aggravated identity theft and fraud in connection with access devices, a condition of defendant’s supervised release requiring her to participate in a mental health program as deemed necessary and approved by the probation officer is affirmed where any error by the district court in delegating authority to a probation officer to determine the length of a defendant’s treatment was not plain or obvious because the court had not previously addressed the issue. .
U.S. 5th Circuit Court of Appeals, April 08, 2010 US v. Longstreet, No. 09-60051 Defendant’s sentence for trafficking firearms and for making a false statement in connection with the purchase of firearms is affirmed in part where: 1) defendant was not permitted to collaterally attack a prior state court conviction; 2) there was considerable evidence that defendant knew the guns would be used in other felony offenses; and 3) it was proper for the district court to have considered acts beyond defendant’s actual purchases, so long as those acts were in furtherance of the same course of conduct or common scheme or plan as the conspiracy. However, her sentence is vacated in part where, absent particularized findings that defendant was actually involved in a co-conspirator’s activities prior to 2001 or that defendant was otherwise responsible for more than 200 firearms from 2001 through 2005, the present record provided no justifiable basis for the district court’s assessment of a ten-level increase.
U.S. 6th Circuit Court of Appeals, April 05, 2010 Dorn v. Lafler, No. 08-1594 District court’s denial of defendant’s request for habeas relief, claiming ineffective assistance of counsel and denial of an appeal as of right in violation of his constitutional right to access the courts, is reversed and remanded where: 1) the prison’s handling of defendant’s papers precluded him from pursuing his statutory right of appeal and the argument that prison officials did not intentionally suppress defendant’s legal papers is irrelevant as the effect was the same; and 2) defendant is entitled to a presumption of prejudice.
U.S. 6th Circuit Court of Appeals, April 06, 2010 Goff v. Bagley , No. 06-4669 District court’s denial of defendant’s petition for a writ of habeas corpus from his capital murder conviction is reversed and a conditional writ of habeas corpus granted where: 1) defendant’s appellate counsel was ineffective for failing to raise on direct appeal the issue of his right to allocution before sentencing, and the opposite conclusion reached by the Ohio Supreme Court constitutes an unreasonable application of federal law; and 2) defendant’s remaining claims are rejected as meritless, and noteably, the jury instructions and verdict forms that defendant’s trial court utilized are conceptually indistinguishable from those at issue in Spisak III, and as such, the jury instructions properly focused only on the overall balancing question, and the instructions repeatedly told the jury to consider all of the relevant evidence. Read more…
U.S. 6th Circuit Court of Appeals, April 06, 2010 US v. Everett , No. 09-5111 In a prosecution of defendant for being a felon in possession of a firearm, district court’s denial of defendant’s motion to suppress the shotgun found in his vehicle during a traffic stop is affirmed as an officer’s questions about weapons or illegal drugs did not render the traffic stop an unreasonable seizure under the Fourth Amendment. Read more…
U.S. 6th Circuit Court of Appeals, April 07, 2010 US v. Smith, No. 08-2345, 08-2366 Defendants’ convictions arising from their involvement in a large drug conspiracy are affirmed where: 1) the district court properly sustained an objection to a former IRS agent’s tax return testimony and struck that testimony from the record, and no further response was necessary; 2) allowing agent’s testimony that defendant was a “driver” for the conspiracy was not an abuse of discretion because this testimony was part of the agent’s expert testimony about the structure of the cocaine conspiracy, a matter not within the ordinary knowledge of jurors; and 3) a failure to instruct the jury about the different forms of witness testimony was an error, but it was not plain error; 4) as to other defendant, evidence from a traffic stop was properly admitted because the vehicle was stopped for speeding and all extensions of the stop were supported by reasonable suspicion; 5) sufficient evidence sustained the jury verdict; and 6) any error resulting from the district court’s failure! to instruct the jury that “proceeds” means “profits” was not plain because the controlling opinion of the relevant Supreme Court decision expressly stated that a “profits” definition was not appropriate where the laundered money had been acquired from distributing contraband. Read more…
U.S. 6th Circuit Court of Appeals, April 07, 2010 Riverview Health Inst. v. Med. Mut. of Ohio, No. 08-4431 In an action brought by out-of-network providers of health care services against an insurer and its officers raising claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), ERISA, and state law, dismissal of plaintiffs claims is affirmed where: 1) plaintiffs’ RICO claims are reverse preempted by Ohio state law, pursuant to the McCarran-Ferguson Act; and 2) the district court did not err in denying plaintiffs’ request to amend their complaint in order to add a federal estoppel claim. Read more…
U.S. 6th Circuit Court of Appeals, April 07, 2010 US v. Anglin, No. 08-5018 A sentence for bank robbery imposed on a prior remand is reversed and remanded again where intervening decisions by the Supreme Court and the circuit court required re-addressing the question of whether defendant’s 18 U.S.C. section 751(a) conviction should be categorized as a crime of violence for purposes of his status as a career offender. Read more…
U.S. 6th Circuit Court of Appeals, April 09, 2010 White v. US, No. 09-3158 Dismissal of plaintiffs’ pre-enforcement challenge to the anti-animal-fighting provisions of the Animal Welfare Act is affirmed where none of the following alleged injuries sufficed to confer standing for plaintiffs’ action: 1) plaintiffs’ economic injuries caused by the AWA; 2) the plaintiffs’ fear of false prosecution under the AWA and resulting “chill” on the plaintiffs’ conduct; 3) the AWA’s violation of plaintiffs’ constitutional rights; and 4) the AWA’s violation of the principles of federalism contained in the Ninth, Tenth, and Eleventh Amendments. Read more…
U.S. 7th Circuit Court of Appeals, April 05, 2010 Estate of Escobedo v. Bender, No. 08-2365 In a 42 U.S.C. section 1983 suit filed by a personal representative of an estate against a city and individual members of the city’s police department claiming excessive force arising from the shooting death of an individual, district court’s denial of defendants’ motion for summary judgment is affirmed as, taking the facts as the district court presented them, the district court did not err in finding that the individual officers were not entitled to qualified immunity for their decision to use tear gas to extricate plaintiff from his apartment and their decision to use more tear gas and flash bang grenades to enter his apartment. Read more…
U.S. 7th Circuit Court of Appeals, April 05, 2010 US v. Billian, No. 09-3385 In a conviction of defendant for drug and firearm related crimes, district court’s denial of a motion to suppress evidence, concluding that the affidavit established probable cause and the warrant was otherwise obtained in good faith is affirmed but remanded so the district judge can determine whether the error in converting the pounds to kilograms affected the exercise of discretion in sentencing. Read more…
U.S. 7th Circuit Court of Appeals, April 07, 2010 US v. Milbourn, No. 08-2525 Defendant’s conviction for intimidation based on race, arising out of his burning of a cross in the victims’ yard, is affirmed where: 1) the evidence that defendant acted with a racial motive was more than sufficient to support the jury’s verdict; 2) burning a cross on the front yard of a biracial family was both threatening and an act of intimidation; and 3) the district court could not go below the mandated minimum sentence even if he were inclined to do so. Read more…
U.S. 7th Circuit Court of Appeals, April 07, 2010 Fox v. Hayes, No. 08-3736 In a 42 U.S.C. section 1983 action claiming that defendants arrested and prosecuted plaintiff without probable cause and in violation of his due process rights, judgment for plaintiff is affirmed where: 1) a reasonable jury could conclude that plaintiff was arrested early on during what was to be a very long night of interrogation; 2) the police lacked probable cause to arrest plaintiff because it was unreasonable for defendants to rule out a sexual predator as the victim’s attacker; 3) defendant’s abuse of his authority, involving an obviously vulnerable mother and wife, boosted what otherwise might be characterized as a particularly ugly insult across the threshold into a valid intentional infliction of emotional distress (IIED) claim; and 4) there was a plausible basis to find the jury’s verdicts consistent. However, the judgment is vacated in part where: 1) plaintiffs could not now defend the due process verdict based on a theory that was never put before the jury; and ! 2) the evidence did not come close to supporting the $1 million compensatory award for the IIED claim. Read more…
U.S. 7th Circuit Court of Appeals, April 08, 2010 US v. Klebig, No. 08-2589 Defendant’s conviction for possessing an unregistered rifle and an unregistered silencer is reversed where: 1) defendant’s preoccupation with security concerns had nothing to do with his knowledge that the sawed-off rifle at issue was a rifle rather than a pistol, or his intent to use an oil filter as a silencer rather than a flash suppressor, and evidence to that effect was improperly admitted; and 2) to make the point that defendant was very familiar with firearms, it was not necessary to lay two dozen guns out on the floor around the witness box, and such evidence was unduly prejudicial to defendant. Read more…
U.S. 7th Circuit Court of Appeals, April 08, 2010 US v. Moreno-Padilla, No. 08-4302 Defendant’s illegal reentry sentence is affirmed where: 1) defendant failed to demonstrate the inaccuracy of the presentence report; 2) defendant’s argument, raised only in a single paragraph in his pro se memorandum, was not sufficiently substantial to have warranted more overt consideration by the district court; and 3) the district court did a thorough job of addressing defendant’s concerns about the harshness of the 16-level enhancement. Read more…
U.S. 7th Circuit Court of Appeals, April 08, 2010 US v. Barnes, No. 09-2052 Defendant’s drug and firearm possession sentence is vacated where, without any justification for why one co-conspirator was responsible for a greater quantity of drugs than his fellow co-conspirators, the discrepancy in the district court’s factual findings was clearly erroneous. Read more…
U.S. 7th Circuit Court of Appeals, April 08, 2010 US v. Taylor, No. 09-2262 Defendant’s drug conspiracy conviction is affirmed where: 1) the government put forth sufficient evidence of defendant’s involvement in the conspiracy; and 2) a witness’s new statement did not meet the requirements for newly discovered evidence to warrant a new trial. However, his sentence is vacated where the district court erred in determining the amount of cocaine attributable to the conspiracy. Read more…
U.S. 7th Circuit Court of Appeals, April 08, 2010 US v. Leija-Sanchez, No. 09-2672 In a prosecution for, inter alia, violating 18 U.S.C. section 1959 by arranging and paying for a murder in Mexico, the dismissal of this charge is reversed where section 1959 applied to a murder in another nation designed to facilitate the operation of a criminal enterprise in the U.S. Read more…
U.S. 7th Circuit Court of Appeals, April 09, 2010 US v. Hall, No. 08-3809 Denial of defendants’ motions for a sentence reduction pursuant to 18 U.S.C. section 3582(c)(2) based on the retroactive crack-cocaine amendments to the Sentencing Guidelines is affirmed where the district court was well within its discretion in finding each defendant responsible for distributing over 4.5 kilograms of crack cocaine, making them ineligible for a sentence reduction under the amended Guidelines. Read more…
U.S. 8th Circuit Court of Appeals, April 06, 2010 US v. Hernandez-Mendoza, No. 08-3899 Defendants’ drug conspiracy convictions are affirmed where: 1) an officer who searched defendants’ vehicle did not violate defendants’ Fourth Amendment rights by extending the traffic stop to search their vehicle, because he had probable cause to believe there was contraband in the vehicle; 2) from the perspective of defendants, there was nothing so coercive about the officer’s simple act of leaving them alone in the patrol car that would justify characterizing the officer’s behavior as interrogation; and 3) the circumstantial evidence introduced at trial was sufficient to support the jury’s findings of defendants’ knowledge. Read more…
U.S. 8th Circuit Court of Appeals, April 06, 2010 US v. Winters, No. 09-1740 Defendant’s drug possession conviction is affirmed where: 1) even assuming an arresting officer’s report qualified as newly discovered evidence, it fell far short of being the kind of substantial evidence that would authorize the district court to disregard the law of the case; 2) a search of defendant’s vehicle was constitutionally reasonable for two reasons: the totality of the circumstances provided probable cause to search, and there was reason to believe that evidence of the crime for which defendant was arrested might be found; and 3) the time from the filing of a defendant’s motion to suppress until the conclusion of the appellate process directly attributable to that motion was properly excluded under article IV(a) of the Interstate Agreement on Detainers Act. Read more…
U.S. 8th Circuit Court of Appeals, April 08, 2010 Noe v. US, No. 08-2057 In habeas proceedings arising from a drug conspiracy conviction and sentence, denial of petitioner’s habeas petition is affirmed where: 1) the district court’s determination that defendant and his codefendant were represented by independent counsel was not clearly erroneous; 2) petitioner claimed that defense counsel’s failure to pursue a split conspiracy defense or to “point the finger” at the codefendant established an actual conflict, but he did not show that these strategies were objectively reasonable; and 3) petitioner made a knowing, voluntary, and intelligent waiver of his right to conflict-free assistance of counsel. Read more…
U.S. 8th Circuit Court of Appeals, April 09, 2010 US v. Jones, No. 09-1378 Defendants’ cocaine possession convictions are affirmed where: 1) assessing witness credibility was the job of the jury and absent extraordinary circumstances the court would not review that assessment; 2) there was sufficient circumstantial evidence for the jury to conclude that defendant possessed with intent to distribute the cocaine; and 3) the district court did not clearly err in finding the government provided a race-neutral justification for its peremptory strikes. Read more…
U.S. 9th Circuit Court of Appeals, April 05, 2010 Holley v. Cal. Dept. of Corrs., No. 07-15552 In a 42 U.S.C. section 1983 action by a prisoner claiming that California Department of Corrections grooming regulations requiring short hair imposed a substantial burden on his exercise of religion in violation of section 3 of the Religious Land Use and Institutionalized Persons Act (RLUIPA), summary judgment for defendants is affirmed where the acceptance of federal prison funding by the state of California did not effect a waiver of the state’s sovereign immunity that would allow the RLUIPA claim for damages against state officials in their official capacities to proceed in federal court. Read more…
U.S. 9th Circuit Court of Appeals, April 06, 2010 US v. Valencia-Barragan, No. 09-50018 Defendant’s sentence for attempted reentry into the U.S. is affirmed where: 1) a conviction under Wash. Rev. Code section 9A.44.076(1) categorically constituted “sexual abuse of a minor” and was therefore a crime of violence warranting a sixteen-level increase; and 2) the district court did not impose a procedurally or substantively unreasonable sentence. Read more…
U.S. 9th Circuit Court of Appeals, April 07, 2010 White v. Martel, No. 08-16387 The dismissal of petitioner’s habeas petition as untimely is affirmed where: 1) the adequacy analysis used to decide procedural default issues was inapplicable to the issue of whether a state petition was “properly filed” for purposes of 28 U.S.C. section 2244(d)(2); and 2) petitioner’s delay did not demonstrate the diligence required for application of equitable tolling. Read more…
U.S. 9th Circuit Court of Appeals, April 07, 2010 US v. Tello, No. 08-50579 Defendant’s conviction for using a means of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to engage in a sexual activity for which he could be charged with a criminal offense is affirmed where defendant could have been convicted of a criminal offense under California law, even if he intended to engage in sexual activity with the minor only after returning to Arizona. Read more…
U.S. 9th Circuit Court of Appeals, April 07, 2010 US v. Andrews, No. 09-30072 In defendant’s appeal from a restitution order imposed pursuant to the Mandatory Victims Restitution Act following his guilty plea to an assault resulting in serious bodily injury, the order is remanded for a renewed restitution proceeding because the district court abused its discretion in precluding defendant’s expert witness from testifying regarding the proximate cause of the victim’s injuries. Read more…
U.S. 9th Circuit Court of Appeals, April 08, 2010 US v. Juarez, No. 09-50323 In defendant’s appeal from the district court’s judgment revoking his supervised release and sentencing him to eighteen months in prison, the order is affirmed where the fugitive tolling of a defendant’s term of supervised release begins when the defendant becomes a fugitive, not at the later time when a warrant was issued for his apprehension. Read more…
U.S. 9th Circuit Court of Appeals, April 09, 2010 Serra v. Lappin, No. 08-15969 In an action by prisoners claiming that the low wages they were paid for work performed in prison violated their rights under the Fifth Amendment and various sources of international law, the dismissal of the action is affirmed where prisoners had no enforceable right to be paid for their work under the Constitution or international law. Read more…
U.S. 9th Circuit Court of Appeals, April 09, 2010 Ramirez-Villalpando v. Holder, No. 08-72102 In a petition for review of the BIA’s decision affirming an order of removal based on petitioner’s conviction for an aggravated felony, the petition is denied where petitioner’s prior conviction for grand theft under California Penal Code section 487(a) qualified as an aggravated felony under the modified categorical approach. Read more…
U.S. 10th Circuit Court of Appeals, April 05, 2010 US v. Cook, No. 08-2297 In a prosecution for various offenses arising out of a prison murder, the grant of defendant’s motion suppressing his statement to a jailhouse informant is reversed where defendant was completely unaware that he was in the presence of a government agent when he made the suppressed statement, and Miranda and its progeny were directed at the prevention of pressure and coercion in custodial interrogation settings, and thus the fears motivating exclusion of confessions that were the product of such custodial interrogation settings were not present. Read more…
U.S. 11th Circuit Court of Appeals, April 05, 2010 US v. Jones, No. 08-16999 Defendant’s drug and firearm possession convictions and sentences are affirmed in part where: 1) when a defendant possesses different weapons at different times or places, the government may treat them as separate units of prosecution; 2) Counts One and Two of the indictment charged separate offenses from Counts Three and Four, and thus the indictment did not violate double jeopardy principles; 3) defendant failed to demonstrate actual prosecutorial vindictiveness; and 4) the district court did not abuse its discretion in concluding that a witness lacked sufficient memory to testify to the subject matter of a video. However, the judgment is reversed in part where defendant was brought to trial seventy-five nonexcludable days after the district court received the court of appeals’ mandate — a violation of the Speedy Trial Act, and vacated in part where the district court took into account untimely charges in calculating defendant’s sentence. Read more…
U.S. 11th Circuit Court of Appeals, April 05, 2010 US v. Coast, No. 08-17116 Defendant’s firearm possession sentence is affirmed where: 1) revocation of probation is part of a defendant’s original sentence because revocation of probation constitutes a modification of the terms of the original sentence and implicates solely the punishment initially imposed for the offense conduct underlying that sentence; and 2) U.S.S.G. section 4A1.2(k) directly instructs a district court, when calculating criminal history points, to add the original term of imprisonment to any term of imprisonment imposed upon revocation, and the district court did just that. Read more…
U.S. 11th Circuit Court of Appeals, April 09, 2010 Powell v. Allen, No. 08-16784 In a capital habeas matter, the denial of the petition is affirmed where: 1) the method by which petitioner’s judge selected his grand jury foreperson did not make out a prima facie violation of the Equal Protection Clause; 2) petitioner failed to show that the jury selection process resulted in a non-representative venire; 3) the record did not support petitioner’s Batson claim; 4) the trial judge retained discretion as to the form and number of questions on the subject of race, including the decision whether to question the venire individually or collectively; 5) petitioner pointed to no record evidence, nor did the court’s review of the record revealed any, from which the allegedly true DNA test results could be found; and 6) petitioner failed to allege what mitigating factors would have been established but for his counsel’s deficient performance.
U.S. 11th Circuit Court of Appeals, April 09, 2010 Edwards v. Prime Inc., No. 09-11699 In an action under RICO and the Fair Labor Standards Act (FLSA) claiming that defendant restaurant franchise (Ruth’s Chris Steak House) knowingly provided illegal aliens with names and social security numbers of American citizens to use for illegal employment, unlawfully took employees’ tips, discriminated on the basis of race, and retaliated against employees who challenged those and other practices, dismissal of certain counts of the complaint is affirmed in part where: 1) plaintiffs failed to plead that defendants had actual knowledge that the unauthorized aliens who they allegedly hired had been “brought into the United States” in violation of 18 U.S.C. section 1324; 2) plaintiffs’ mere use of the words “conspiracy” and “aiding and abetting” without any more explanation of the grounds of plaintiffs’ entitlement to relief was insufficient; 3) the complaint did not plausibly allege that plaintiff was harassed because he was Caucasian; and 4) defendants were not strangers t! o the business relationships with which they allegedly interfered, and thus plaintiffs failed to state a tortious interference claim. However, the dismissal is reversed in part where the amended complaint adequately pleaded that defendants encouraged or induced an alien to reside in the United States, and either knew or recklessly disregarded the fact that the alien’s residence here was illegal, in violation of 18 U.S.C. section 1324(a)(1)(A)(iv).
Supreme Court of California, April 05, 2010 People v. Noriega , No. S160953 Judgment of the court of appeal reversing trial court’s conviction of defendant for murder on the ground that the trial court’s replacement of appointed counsel violated defendant’s right to counsel under the California Constitution and that under state statutory law the replacement was an abuse of trial court’s discretion is reversed as the trial court did not violate defendant’s right to counsel under either the federal or state Constitution. Furthermore, conceding that the replacement violated state statutory law and was an abuse of discretion, the error requires reversal only upon a showing of prejudice, which defendant did not establish.
Supreme Court of California, April 05, 2010 People v. Sutton, No. S166402 Judgment of the court of appeal upholding the trial court’s action in delaying trial in the underlying criminal proceedings is affirmed as the trial was delayed on a day-to-day basis for a brief period of time in order to permit one co-defendant’s appointed counsel to complete an ongoing trial in another case that ran longer than had been anticipated and People v. Johnson, 26 Cal.3d 557 (1980), should not be understood to preclude a trial court from finding good cause to delay trial under the circumstances presented by this case.
Supreme Court of California, April 08, 2010 People v. Superior Court (Pearson), No. S171117 Penal Code section 1054.9, which requires a court to order that a defendant under a sentence of death or life in prison without the possibility of parole be provided postconviction discovery in specified circumstances, does not amend Proposition 115 because that proposition governs only pretrial discovery and does not prohibit postconviction discovery of the kind that section 1054.9 provides. Thus, contrary to district attorney’s claim in the case at hand, section 1054.9 is not invalid.
New York Court of Appeals, April 06, 2010 People v. Pettigrew, No. 51 In a rape prosecution, defendant’s adjudication as a level three offender under the Sex Offender Registration Act is affirmed where defendant’s display of a gun to the victim and its threatened use constituted clear and convincing evidence that he was armed with a dangerous instrument during the commission of the crime.
New York Court of Appeals, April 06, 2010 People v. Cruz, No. 52 Defendant’s assault conviction is vacated where the jury was erroneously allowed to see an unadmitted exhibit that contradicted defendant’s misidentification defense at trial, and the error was not harmless.
New York Court of Appeals, April 06, 2010 People v. Kadarko, No. 54 In a robbery prosecution, the appellate division’s order reversing defendant’s conviction is reversed where the trial judge informed counsel of the contents of a note received from the jury and that he was specifically withholding the vote counts discussed in the note from counsel until after the jury had retired to resume deliberations, and defense counsel voiced no objection to this procedure either before or after the entire contents of the note were revealed by the judge.
Supreme Court of Florida, April 08, 2010 State v. Montgomery, No. SC09-332 In a murder prosecution, the Florida Supreme Court answered a certified question from the court of appeal as follows: 1) the crime of manslaughter by act does not require the State to prove that the defendant intended to kill the victim; and 2) the Court approved the decision of the court of appeal to the extent that it held that the use of the standard jury instruction on manslaughter, which required that the state prove the defendant’s intent to kill the victim, constituted fundamental error in defendant’s case.
Supreme Court of Delaware, April 08, 2010 Harris v. State, No. 270, 2009 Defendant’s conviction for controlled substance possession within 300 feet of a church is affirmed where a LIDAR device provided a reliable and trustworthy measurement of the distance to the religious building at issue, and the building presumptively constituted a church, synagogue or other place of worship. However, defendant’s conviction for tampering with evidence is reversed where the police perceived and immediately retrieved the marijuana baggie defendant placed in his mouth.
California Appellate Districts, April 06, 2010 People v. Bui, No. A119404 Conviction of defendant for burglary and other related offenses is affirmed as, Presley v. Georgia (2010)_ U.S._[130 S.Ct. 721] does not alter the “de minimus” doctrine recognized by the California Supreme Court on which the prior decision relied in concluding that any error in exclusion of persons from the courtroom was de minimus.
California Appellate Districts, April 06, 2010 People v. Sup. Ct. (Costa), No. B220346 People’s petition for a writ of mandate is granted as the trial court erred in granting defendant’s motion to dismiss murder charges as the evidence before the grand jury was sufficient to support a rational ground for assuming the possibility that defendant decided to continue to drive his truck down a highway with an actual awareness of the great risk of harm his actions created, resulting in the deaths of two people.
California Appellate Districts, April 06, 2010 Martinez v. Bd. of Parole Hearings, No. C061031 Superior court’s order directing the Board of Parole Hearings to recommend to a sentencing court that defendant’s sentence be recalled, following a stabbing by another inmate that caused his immediate and complete quadriplegia, is affirmed in part, reversed in part, and remanded as, although the Board did not act arbitrarily or capriciously in impliedly finding that defendant could seek the aid of others to threaten public safety, the matter is remanded because the Board did not make any of the findings required by section 1170(e)(6), and considered factors other than the criteria set forth in the statute.
California Appellate Districts, April 06, 2010 People v. Milosavljevic, No. D055327 Conviction of defendant for rape and various related offenses involving multiple victims is affirmed in part, reversed in part and remanded where: 1) defendant’s conviction on count 52 for violation of section 222 is reversed as the trial court erred by not giving a unanimity instruction regarding count 52; and 2) defendant’s section 1465.8 fine is reduced to $740.
California Appellate Districts, April 06, 2010 People v. Cantu, No. E048651 In a prosecution of defendant for infliction of corporal punishment upon a cohabitant, judgment of the trial court is reversed as the court erred in enforcing a plea bargain that the parties had entered into, but from which the prosecution withdrew before the defendant pled guilty in open court.
California Appellate Districts, April 06, 2010 People v. Dowl, No. F057384 Conviction of defendant for possession of marijuana for sale is affirmed as a police officer need not qualify as a medical marijuana expert in order to render an opinion that marijuana being possessed is for sale in cases where the defendants raise an affirmative defense under California’s Compassionate Use Act of 1996.
California Appellate Districts, April 07, 2010 People v. Zamani, No. H032414 Defendant’s conviction for felony appropriation of lost property is affirmed where: 1) the crime of appropriation of lost property was not a specific intent offense, and thus there was no instructional error; and 2) defendant’s prior act of returning lost property had no relevance to whether he knew or had means to find the identity of the true owner of the property at issue.
California Appellate Districts, April 08, 2010 People v. Friedeck, No. B213944 The trial court’s denial of probation to defendant, who had been convicted of a drug offense, is affirmed where the trial court did not err in finding defendant was not eligible for Proposition 36 based on his implied refusal of treatment.