Findlaw Case Summaries: Criminal Law and Procedure 16

April 13 – April 17, 2009
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U.S. 1st Circuit Court of Appeals, April 17, 2009 US v. Vasco , No. 07-1520 Conviction and sentence for using interstate commerce facilities in the commission of murder-for-hire is affirmed where: 1) the district court did not err in declining to issue an entrapment instruction as defendant failed to produce the requisite evidence of government inducement; 2) there sufficient evidence to support a conviction on use of interstate commerce facilities in the commission of murder-for-hire based on defendant’s conditional intent to murder his daughter; and 3) the court did not commit sentencing error.

U.S. 1st Circuit Court of Appeals, April 17, 2009 US v. Mangual-Santiago , No. 07-1912
Conviction for drug crimes is affirmed where: 1) the district court did not err in denying defendant’s motion to dismiss as defendant failed to prove there was a variance between the conspiracy charged and the evidence at trial; 2) the court did not err in admitting evidence over his objections; 3) the court did not err in denying defendant’s request for a continuance as defendant failed to show the denial caused him prejudice; and 4) defendant is not entitled to reversal based on the delay between his arrest and his appearance before a federal magistrate, as he did not show prejudice of any kind that was caused by the delay.

U.S. 2nd Circuit Court of Appeals, April 17, 2009 US v. Borden , No. 08-1625 Sentence for drug crimes is affirmed where the district court did not abuse its discretion in denying defendant a sentence reduction where: 1) defendant’s sentence was appropriate based upon his extensive criminal history and the need to protect society; and 2) the court did not erroneously rely upon its earlier decision not to resentence defendant as a the basis for the present denial.

U.S. 3rd Circuit Court of Appeals, April 16, 2009 US v. Olhovsky, No. 07-1642 Sentence for possession of child pornography is reversed and remanded for resentencing where: 1) defendant’s sentence was substantively unreasonable; and 2) the sentencing court erred as a matter of law in refusing to allow his treating psychologist to testify at the sentencing hearing.

U.S. 3rd Circuit Court of Appeals, April 16, 2009 US v. Shabazz, No. 08-2145 Conviction and sentence for violations of the Hobbs Act and firearms possession is affirmed where: 1) the district court erred in initially denying the jury’s request to read back testimony, but the error was cured when the court reversed itself and gave the jury the option of reading the testimony; 2) even if the the district court erred in admitting a statement defendant made to a detective, defendant would still not be entitled to a new trial as admission of the testimony was harmless; 3) testimony of defendant’s co-conspirator was admissible as ordinary fact testimony; and 4) defendant’s sentence was properly based on the suggested Guidelines range of 360 months to life imprisonment.

U.S. 3rd Circuit Court of Appeals, April 17, 2009 US v. Tomko , No. 05-4997 Sentence for tax evasion is confirmed where: 1) the the district court did not commit procedural error at sentencing, as the record shows the district court did not fail to meaningfully consider the 18 U.S.C. sec. 3553(a) factor of general deterrence; and 2) the court did not abuse its discretion in sentencing defendant, as the court conducted a thorough analysis of the sec. 3553(a) factors and gave logical reasons for the variance from the sentencing guidelines range.

U.S. 4th Circuit Court of Appeals, April 15, 2009 Powell v. Kelly, No. 08-3 In a capital habeas proceeding, the denial of Petitioner’s habeas petition is affirmed, where: 1) Petitioner’s second trial was not a violation of the Double Jeopardy Clause because the state charged a different gradation offense under Virginia Law in the second indictment; and 2) Petitioner’s counsel was not ineffective due to counsel’s failure to present certain mitigation evidence, as Petitioner showed no prejudice.

U.S. 5th Circuit Court of Appeals, April 13, 2009 US v. Fields, No. 07-10384 The denial of Defendant’s motion to vacate his drug sentence based on ineffective assistance of counsel is affirmed, where Defendant’s counsel was not ineffective for failing to raise an Apprendi objection that the Court of Appeals had previously rejected.

U.S. 5th Circuit Court of Appeals, April 14, 2009 Rosales v. Quarterman, No. 09-70013 In a capital murder case, the denial of Defendant’s motions for a stay of execution and appointment of counsel for clemency purposes is affirmed, where: 1) there was no habeas petition pending, and therefore the District Court had no jurisdiction to enjoin the execution; and 2) there was no showing of additional evidence that could be presented in clemency proceedings. .

U.S. 5th Circuit Court of Appeals, April 15, 2009 US v. Ruston, No. 07-10433 In a prosecution for threatening a federal official, the District Court’s order denying Defendant’s request to hold a hearing on his competency to proceed pro se is reversed, where Defendant’s erratic behavior demonstrated that such a hearing was necessary.

U.S. 5th Circuit Court of Appeals, April 15, 2009 US v. Theagene, No. 08-50160 Defendant’s bribery conviction is reversed, where the District Court erred by denying Defendant’s request for an entrapment instruction because the evidence showed that he had a lack of predisposition to bribe the official at issue and the government induced him to do so.

U.S. 6th Circuit Court of Appeals, April 14, 2009 Wiles v. Bagley, No. 05-3719 In a capital habeas proceeding, the denial of Petitioner’s habeas petition is affirmed, where the state supreme court did not unreasonably apply federal law in holding that Petitioner’s counsel was not ineffective during the penalty phase of the trial, as the evidence counsel allegedly failed to uncover would have been cumulative.

U.S. 6th Circuit Court of Appeals, April 16, 2009 US v. White, No. 07-2404 Defendant’s drug conviction is affirmed, where Defendant lacked notice of the government’s intent to introduce “tools of the trade” expert testimony, but that evidence did not prejudice him. Sentence is reversed, where the District Court overestimated the drug quantity attributable to Defendant.

U.S. 6th Circuit Court of Appeals, April 16, 2009 US v. Jones, No. 07-5994 In a prosecution for firearm possession by a felon, the District Court’s order suppressing evidence is reversed, where the District Court, in assessing whether the officers who arrested Defendant had reasonable suspicion, erred by failing to take into account all information observed by the officers until Defendant yielded to unambiguous police authority. .

U.S. 7th Circuit Court of Appeals, April 17, 2009 US v. Smith , No. 08-1477 Sentence for distribution of child pornography is affirmed where: 1) the district court did not abuse its discretion in refusing to grant defendant a continuance for another chance to present expert testimony; 2) the district court correctly applied 18 U.S.C. sec. 3553 (a) when sentencing defendant, and did not fail to adequately address the factors set forth in the statute; and 3) there is no evidence that the district court’s tangential statements about early release during the second sentencing hearing played any role in the court’s determination of Smith’s sentence at a later entencing hearing.

U.S. 8th Circuit Court of Appeals, April 13, 2009 US v. Rodebaugh, No. 08-1546 Conviction and sentence on weapons and narcotics charges is affirmed where: 1) admission of expert testimony did not substantially impact the jury and was not a basis for reversal; 2) evidence was sufficient to support the jury’s verdict; 3) district court did not violate defendant’s Fifth and Sixth Amendment rights as it may determine drug quantity by a preponderance of the evidence; and 4) court’s calculation for defendant’s criminal history category was properly calculated.

U.S. 8th Circuit Court of Appeals, April 13, 2009 US v. Leach , No. 08-2086 Sentence for knowingly using a facility of interstate commerce to attempt to entice a minor into engaging in illegal sexual conduct is affirmed where: 1) government did not breach the plea agreement by asking for a sentence greater than the low end of the guidelines range as the government did not make a definite oral promise to ask for a low-end sentence; and 2) defendant was not released of his obligation under the plea agreement not to advocate for a sentence below the guidelines range.

U.S. 8th Circuit Court of Appeals, April 13, 2009 Taylor v. Roper , No. 08-2593 Denial of petition for habeas relief is affirmed where the district court did not err in denying relief as the state courts correctly identified and applied the relevant Supreme Court precedents governing the Sixth Amendment’s Speedy Trial Clause.

U.S. 8th Circuit Court of Appeals, April 14, 2009 US v. Ruvalcava-Perez, No. 08-2582 Sentence for drug possession and illegal reentry after deportation is affirmed where: 1) the district court did not abuse its discretion in departing upward from the advisory guideline range based on its finding that defendant’s criminal history category substantially underrepresented the seriousness of his criminal history and risk of recidivism; and 2) the sentence was not unreasonable.

U.S. 8th Circuit Court of Appeals, April 15, 2009 US v. Williams , No. 07-2716 Conviction and sentence for drug crimes and firearms possession is affirmed where: 1) defendant’s claim of ineffective assistance of counsel fails as district court properly held that counsel’s failure to call three possible defense witnesses was not unreasonable, and properly concluded that despite the tension between counsel and defendant he was still represented in an able and professional manner; and 2) district court adequately considered defendant’s arguments for a variance and adequately stated its reasons for the sentence imposed.

U.S. 8th Circuit Court of Appeals, April 15, 2009 Yanez v. State of Minnesota , No. 08-2034 Denial of petition for a writ of habeas corpus is affirmed where: 1) the state court did not unreasonably apply clearly established Supreme Court precedent in ruling that admission of victim’s out-of-court testimonial statements did not violate plaintiff’s Sixth Amendment rights; and 2) the victim’s inability to remember details of her prior statements did not render admission of the statements constitutionally defective.

U.S. 8th Circuit Court of Appeals, April 15, 2009 US v. Garcia , No. 08-2170 Conviction for drug crimes is remanded where the district court erred in failing to conduct in camera review of the pre-sentence reports of cooperating government witnesses, and on remand the district court should only vacate defendant’s convictions if it concludes that the reports contain Brady/Giglio information that satisfies the materiality requirement. Judgment of the district court is affirmed where claims of instructional error were properly rejected and the evidence was sufficient to support defendant’s convictions.

U.S. 8th Circuit Court of Appeals, April 16, 2009 US v. Pereyra-Gabino, No. 08-2869 Conviction and sentence for concealing or shielding from detection illegal alien is reversed and remanded where the jury instructions were erroneous as they did not require the jury to find that each individual the defendant shielded from detection was in the U.S. illegally and that defendant knew or was in reckless disregard of the fact but instead permitted the jury to mix and match the individuals identified to the essential elements of the crime charged.

U.S. 8th Circuit Court of Appeals, April 17, 2009 US v. Farrell, No. 08-1559 Conviction for peonage and related crimes is affirmed where: 1) the evidence was sufficient to support defendant’s conviction for peonage and conspiracy to commit peonage, as the government proved beyond a reasonable doubt that defendants’ threats of physical abuse and arrest compelled the workers to serve defendants in order to satisfy their debts; 2) evidence was sufficient to support defendants’ conviction for document servitude as defendants confiscated and retained the workers’ passports in furtherance of the peonage offenses; and 3) portions of the government’s expert testimony on the issue of domestic-worker exploitation invaded the province of the jury, but the error was harmless and did not affect substantial rights.

U.S. 9th Circuit Court of Appeals, April 13, 2009 US v. Felix, No. 07-50173 Defendant’s drug sentence is affirmed, where: 1) a properly authenticated computer printout relating to Defendant’s prior state conviction could be relied upon in sentencing; and 2) the District Court properly required Defendant to prove that his prior conviction was expunged.

U.S. 9th Circuit Court of Appeals, April 14, 2009 Ramirez-Altamirano v. Holder, No. 06-71445 The denial of Petitioner’s application for cancellation of removal is reversed, where the BIA erred by finding that Petitioner’s prior state drug conviction, which had been set aside, rendered him ineligible for cancellation of removal.

U.S. 9th Circuit Court of Appeals, April 14, 2009 Marella v. Terhune, No. 07-55006 In a 42 U.S.C. section 1983 action arising out of an attack on a prisoner, the dismissal of the complaint for failure to exhaust administrative remedies is reversed, where the District Court did not notify Plaintiff that he was required to present evidence that he exhausted his remedies in response to Defendants’ summary judgment motion.

U.S. 9th Circuit Court of Appeals, April 17, 2009 Delgado v. Holder, No. 03-74442 Petitioner’s petition for review of the BIA’s order of removal is granted in part, where Petitioner’s DUI offenses did not qualify as “particularly serious crimes,” but denied in part, where substantial evidence supported the BIA’s determination that Petitioner would not be tortured if returned to El Salvador.

U.S. 9th Circuit Court of Appeals, April 17, 2009 US v. Brown, No. 08-30040 Defendant’s firearm possession conviction is affirmed, where the District Court correctly denied Defendant’s motion to suppress the firearm at trial, because Defendant’s associate consented to the challenged search, and seeking Defendant’s consent would have needlessly limited the capacity of the police to respond to ostensibly legitimate opportunities.

U.S. 10th Circuit Court of Appeals, April 14, 2009 US v. Egbert, No. 07-4180 Defendants’ convictions and sentences for conspiracy to interfere with civil rights arising out of racially-motivated attacks are affirmed in part, where there was sufficient evidence that Defendants’ conspiracy contemplated multiple assaults, but reversed in part, where there was insufficient evidence that one assault caused “serious bodily injury” under U.S.S.G. section 1B1.1.

U.S. 10th Circuit Court of Appeals, April 14, 2009 US v. Serafin, No. 07-8086 Defendant’s firearm possession conviction is reversed, where possession of an unregistered short-barreled rifle does not constitute a “crime of violence” under 18 U.S.C. section 924(c)(1), as mere possession did not create a substantial risk of harm.

U.S. 10th Circuit Court of Appeals, April 14, 2009 US v. Morris, No. 07-8099 Defendant’s firearm sentence is affirmed, where the District Court properly applied U.S.S.G. section 2K2.1 in enhancing Defendant’s sentence for possessing a firearm during “another felony offense,” because the burglary during which Defendant possessed the firearm fell into that category.

U.S. 10th Circuit Court of Appeals, April 17, 2009 US v. Pech-Aboytes, No. 08-4124 Defendant’s drug sentence is affirmed, where the District Court did not err by declining to apply the safety-valve provision of U.S.S.G. section 5C1.2, because the nunc pro tunc order Defendant obtained from a state court that meant that he did not commit his offense while on probation did not render him eligible for safety-valve relief.

U.S. 11th Circuit Court of Appeals, April 13, 2009 Kimbrough v. Sec’y., Dept. of Corr., No. 08-11421 In a capital habeas proceeding, the denial of Petitioner’s petition is affirmed, where the state supreme court’s determination that it was a reasonable trial tactic for Petitioner’s counsel not to present mental health mitigation testimony did not unreasonably apply clearly established federal law.

U.S. 11th Circuit Court of Appeals, April 13, 2009 US v. Webb, No. 08-13405 Defendant’s drug sentence is affirmed, where Defendant was not eligible for a sentence reduction under 18 U.S.C. section 3582(c)(2) because Amendment 706 to the Sentencing Guidelines did not lower his Guidelines range.

U.S. 11th Circuit Court of Appeals, April 16, 2009 In re Davis, No. 08-16009 In a capital habeas matter, Petitioner’s application for leave to file a second habeas petition is denied, where: 1) Petitioner’s application did not show that the exculpatory evidence he sought to present could not have been discovered earlier; and 2) Petitioner failed to explain why he had not exhausted his state remedies prior to filing his first petition.

U.S. 11th Circuit Court of Appeals, April 17, 2009 US v. Beckles, No. 07-15062 Defendant’s firearm conviction and sentence are affirmed, where: 1) Defendant knowingly and intelligently waived his Miranda rights; and 2) Defendant failed to object to statements in the pre-sentence report stating that the firearm he possessed was a sawed-off shotgun. .

U.S. D.C. Circuit Court of Appeals, April 14, 2009 US v. Guillen, No. 07-3077 Sentence for wire fraud is affirmed, where Defendant’s agreement to waive her right to appeal if the sentence was within the applicable Guidelines range was enforceable, because that waiver was knowing and intelligent.

U.S. D.C. Circuit Court of Appeals, April 17, 2009 US v. Thompson, No. 08-5203 In an appeal from a discovery order requiring the production of documents provided by Defendant’s former employer to the government, the order is vacated, where the District Court’s order must encompass only those documents material to Defendant’s defense in his criminal trial.

California Appellate Districts, April 13, 2009 People v. Lewis, No. A120636 Conviction for drug crimes is affirmed where the trial court did not err in upholding the Evidence Code sec. 1040 government information privilege without making any adverse order or finding under sec. 1042, as the identity of the location which the officer testified about was not material. .

California Appellate Districts, April 16, 2009 People v. Felix, No. B204858 Conviction for attempted premeditated murder and assault with a firearm is affirmed where: 1) the evidence was not sufficient to support his conviction for attempted premeditated murder as it showed he possessed the necessary mental state of a specific intent to kill; 2) the evidence was sufficient to support the conviction for assault with a firearm and the jury’s implied finding that defendant knew it was highly likely that there were occupants in the house at the time he fired the gunshots; and 3) the trial court properly declined to stay the sentence on a count of shooting at an inhabited dwelling as it was governed by the multiple victim exception to Penal Code section 654. The case is remanded to amend the judgment to show that defendant’s sentence on count 3 is stayed pursuant to Penal Code section 654.