Findlaw Case Summaries: Criminal Law and Procedure 21

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May 25-29, 2009.

U.S. Supreme Court, May 26, 2009 Haywood v. Drown, No. 07-10374 In a 42 U.S.C. section 1983 action by a prisoner, judgment for Defendant-Officers is reversed where Correction Law section 24, as applied to Section 1983 claims, violates the Supremacy Clause, because New York’s policy of shielding correctional officers from liability for conduct performed in the scope of their employment is contrary to Congress’s judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages.

U.S. Supreme Court, May 26, 2009 Montejo v. Louisiana, No. 07-1529 Capital murder conviction is vacated, where Michigan v. Jackson, 475 U.S. 625 (1986), is overruled, because requiring an “initial invocation” of the right to counsel in order to trigger the Jackson presumption might work in states that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the states that appoint counsel without request from the defendant. .

U.S. Supreme Court, May 26, 2009 Abuelhawa v. US, No. 08-192 Drug distribution conviction is reversed and the case remanded, where Defendant’s drug purchases from a third party over the phone constituted misdemeanors, because using a telephone to make a misdemeanor drug purchase does not “facilitate” felony drug distribution in violation of 18 U.S.C. section 843(b).

U.S. 2nd Circuit Court of Appeals, May 27, 2009 US v. Savoy , No. 08-4900 District court order granting in part and denying in part defendant’s motion for a reduction in sentence is affirmed where: 1) the district court lacked the authority when reducing a sentence pursuant to 18 U.S.C. sec. 3582(c)(2) to reduce that sentence below the amended Sentencing Guidelines range; and 2) the original sentence fell within the applicable pre-amendment Guidelines range.

U.S. 3rd Circuit Court of Appeals, May 27, 2009 US v. Lloyd , No. 08-2513 Sentence for various violations of the terms of defendant’s supervised release is vacated where defendant’s aggravated domestic battery violation was supported solely by unreliable hearsay and the government made no attempt to show cause for the declarants’ absence.

U.S. 3rd Circuit Court of Appeals, May 29, 2009 US v. Cole , No. 08-3201 Sentence for illegal reentry into the U.S. is reversed and remanded for resentencing where the district court committed plain error and exceeded its statutory authority when it ordered that defendant’s period of supervised release be tolled during his period of exclusion from the U.S., and the error affected defendant’s substantial rights and the fairness and integrity of the judicial proceedings.

U.S. 4th Circuit Court of Appeals, May 26, 2009 US v. Smith, No. 07-5123 Defendant’s drug and firearm convictions are affirmed where a government expert did not violate the best evidence rule by testifying about where the firearms at issue were manufactured, despite not having been to those locations. Sentence is vacated where the District Court erred by presuming that Defendant’s Guidelines sentencing range was reasonable.

U.S. 4th Circuit Court of Appeals, May 28, 2009 US v. Malloy, No. 08-4136 Defendant’s conviction and sentence for sexual exploitation of a minor for the purpose of producing a visual depiction are affirmed, where: 1) the First Amendment did not entitle Defendant to raise a mistake of age defense; and 2) Defendant was not prejudiced by the indictment’s charge that Defendant “knowingly” created the video at issue.

U.S. 4th Circuit Court of Appeals, May 28, 2009 US v. Kingrea, No. 08-5065 Convictions for involvement with a cockfighting operation are affirmed in part, where the government did not need to prove that Defendant personally sold the cockfighting paraphernalia at issue to show his participation in a conspiracy; but vacated in part, where the indictment failed to allege an essential element under 18 U.S.C. section 2156(a)(1) of sponsoring or exhibiting “an animal in” an animal fighting event.

U.S. 5th Circuit Court of Appeals, May 27, 2009 US v. Andrade-Aguilar, No. 07-41132 Sentence for illegal reentry into the U.S. is vacated, where the second of Defendant’s prior state drug convictions did not qualify as an “aggravated felony” under the Sentencing Guidelines, because the Government did not show that the preceding conviction was final at the time Defendant committed the second offense.

U.S. 6th Circuit Court of Appeals, May 12, 2009 US v. Moore, No. 08-5291 Defendant’s child pornography sentence is affirmed where 18 U.S.C. section 3559(e)(1), under which Defendant was convicted, was not ambiguous, and thus the rule of lenity did not apply.

U.S. 6th Circuit Court of Appeals, May 28, 2009 Grawey v. Drury, No. 07-2584 In a 42 U.S.C. section 1983 action based on Defendant-Officers’ allegedly excessive force, the denial of Defendants’ qualified immunity is affirmed where, based on Plaintiff’s allegations, Defendants did not properly comply with departmental procedures in arresting Plaintiff. .

U.S. 6th Circuit Court of Appeals, May 29, 2009 US v. Grams, No. 08-1697 Sentence for bank robbery is vacated where the District Court failed to adequately explain the reasons for Defendant’s sentence, as the court did not state on the record whether it adopted in part or full the sentencing range and factual findings suggested by the probation office.

U.S. 7th Circuit Court of Appeals, May 27, 2009 US v. Sainz-Preciado, No. 07-3706 Sentence for drug crimes is affirmed where: 1) the district court did not err in in its drug quantity finding, and in crediting the informant’s testimony and holding defendant responsible for numerous cocaine deliveries; 2) the court did not err in applying a sentencing enhancement under U.S.S.G. sec. 3B1.1(b) for his role in the offense as defendant had relative responsibility and control over other participants and thus qualified as a manager; 3) there was no error in defendant’s failure to receive an additional one-level reduction in his offense level under U.S.S.G. sec. 3E1.1(b) for acceptance of responsibility as the government never made a motion for an additional point reduction; and 4) defendant’s sentence is reasonable notwithstanding the court’s failure to explicitly discuss the 18 U.S.C. sec. 3553(a) factors as the court’s stated reasons for choosing defendant’s sentence reflect a meaningful consideration of the factors.

U.S. 7th Circuit Court of Appeals, May 28, 2009 Gevas v. Ghosh, No. 08-1538 District court order enforcing a settlement agreement is affirmed where: 1) plaintiff bears the burden of providing the court with a record permitting meaningful review of his claim that he never actually agreed to a settlement, and there is no evidence to substantiate his denial; and 2) plaintiff failed to show that the magistrate judge coerced a settlement.

U.S. 8th Circuit Court of Appeals, May 26, 2009 US v. Coplen , No. 082384p.pdf
Conviction for drug crimes is affirmed where: 1) the district court did not abuse its discretion in denying defendant’s motion for a new trial as the newly discovered evidence would not likely result in an acquittal; and 2) defendant failed to establish a Brady violation.

U.S. 8th Circuit Court of Appeals, May 28, 2009 US v. Sohn , No. 08-1047 Conviction and sentence for firearms possession is affirmed where defendant’s indictment satisfied the Fifth Amendment by including the substantive offense, and the district court may apply the sentencing enhancement under the Armed Career Criminal Act even though the indictment did not charge him with violating the statute or include his prior convictions.

U.S. 8th Circuit Court of Appeals, May 28, 2009 US v. O’Connor, No. 08-1642 Sentence for transportation and distribution of child pornography is affirmed where: 1) the district court did not err in considering and giving significant weight to Congress and the Sentencing Commission’s expressed desire to avoid sentences below the guidelines range for offenders who commit sexual offenses involving minors; and 2) defendant’s sentence was not unreasonable.

U.S. 8th Circuit Court of Appeals, May 28, 2009 US v. Pulliam , No. 08-2454 Conviction and sentence for drug crimes and firearms possession is affirmed where: 1) the district court did not abuse its discretion in denying defendant’s motion for new trial based on his claim that the government withheld impeachment evidence concerning contact between the arresting officer and defendant’s parole officer before the arrest, as the proposed impeachment would have had little or no impact on the outcome of the trial; and 2) defendant’s prior conviction for unlawful use of a weapon under Missouri law meets the statutory definition of violent felony in 18 U.S.C. sec. 924(e)(2)(B)(I), and thus the court did not err in determining that defendant qualified for a sentencing enhancement as an armed career criminal.

U.S. 9th Circuit Court of Appeals, May 26, 2009 US v. Jefferson, No. 08-30067 Defendant’s attempted drug possession conviction is affirmed where the District Court properly denied Defendant’s motion to suppress because: 1) a postal inspector’s visual inspection of a package sent to Defendant did not violate the Fourth Amendment; and 2) Defendant had no possessory interest in the package until its guaranteed delivery time had passed.

U.S. 9th Circuit Court of Appeals, May 27, 2009 US v. Juvenile Female, No. 07-50549 In a prosecution for assault on a federal officer, the denial of Defendant’s motion to dismiss the indictment is affirmed where: 1) a violation of 18 U.S.C. section 111 is a “crime of violence” under 18 U.S.C. section 5032; and 2) a Border Patrol officer does not exceed his authority when investigating a possible drug crime.

U.S. 9th Circuit Court of Appeals, May 27, 2009 US v. Mendoza-Zaragoza, No. 08-30130 Defendant’s sentence of 72 months for reentering the U.S. following removal is affirmed, where an indictment charging the illegal reentry of a previously removed alien may support an increased maximum sentence even if it alleges the date of the prior removal without specifying the relative date of the prior conviction.

U.S. 9th Circuit Court of Appeals, May 28, 2009 US v. Medina-Villa, No. 07-50396 Sentence for illegal reentry into the U.S. is affirmed, where Defendant’s prior conviction under Cal. Pen. Code section 288(a) constituted “sexual abuse of a minor,” qualifying it as a “crime of violence” that warranted a sixteen-level increase under U.S.S.G. section 2L1.2. .

U.S. 9th Circuit Court of Appeals, May 28, 2009 US v. Lomeli-Mences, No. 07-50452 Sentence for illegal reentry into the U.S. is affirmed where: 1) Defendant’s prior convictions for false imprisonment and false personation were not “related” for purposes of calculating his criminal history score; and 2) the District Court did not err in assessing criminal history points for those two offenses.

U.S. 10th Circuit Court of Appeals, May 27, 2009 US v. Dolan, No. 08-2104 The District Court’s restitution order in connection with Defendant’s assault conviction is affirmed, where: 1) the 90-day deadline for restitution orders set by 18 U.S.C. section 3664(d)(5) is non-jurisdictional; and 2) the order adequately accounted for Defendant’s financial condition.

U.S. 10th Circuit Court of Appeals, May 27, 2009 US v. Orr, No. 08-7070 Defendant’s sentence for possessing a counterfeit access device is vacated, where the District Court lacked an evidentiary basis for calculating the number of victims and the amount of the loss caused by Defendant’s conduct, and in turn applying enhancements based on those calculations..

U.S. 10th Circuit Court of Appeals, May 28, 2009 Cassady v. Goering, No. 07-1092 In a 42 U.S.C. section 1983 action alleging an unreasonable search, the denial of Sheriff-Defendant’s motion for judgment as a matter of law due to qualified immunity is affirmed, where the warrant at issue permitted a general search and seizure of “all other evidence of criminal activity,” and was thus a general warrant prohibited by the Fourth Amendment.

U.S. 10th Circuit Court of Appeals, May 28, 2009 US v. Garza, No. 08-5040 Conviction for possession of a firearm in furtherance of a drug crime is affirmed, where: 1) the use of firearms in the drug trade is a proper subject for expert testimony under Fed. R. Evid. 702; and 2) even if the expert’s testimony improperly discussed Defendant’s intent, admitting it did not constitute plain error.

U.S. 10th Circuit Court of Appeals, May 29, 2009 US v. Warren, No. 08-1196 Defendant’s drug and firearm convictions are affirmed, where the police search of Defendant’s home complied with the Fourth Amendment because it was a special-needs parole search in which the participating police officer acted under the direction of a parole officer.

U.S. 10th Circuit Court of Appeals, May 29, 2009 US v. Meacham, No. 08-3082 Defendant’s destructive device conviction is affirmed, where Defendant’s ineffective assistance claim failed because he did not specify how his counsel allegedly refused to let him testify; but his sentence is vacated, where Defendant’s base offense level should have been lower because he was not a “prohibited person” under U.S.S.G. section 2K2.1(a)(4)(B).

U.S. 11th Circuit Court of Appeals, May 27, 2009 US v. Hoffman-Vaile, No. 07-12629 Defendant’s conviction and sentence for obstruction of justice are affirmed in part, where 18 U.S.C. section 1519 governed Defendant’s alteration of records sought by a grand jury because the proceedings related to a Medicare fraud investigation; but reversed in part, where the District Court miscalculated the amount of the forfeiture judgment.

California Appellate Districts, May 26, 2009 People v. Hairston, No. C057504 Conviction for resisting arrest and making a criminal threat is affirmed where: 1) trial court did not err in convicting defendant of three separate misdemeanor counts of resisting a peace officer in the discharge of his duty as defendant could be convicted for each officer whose exercise of duty he resisted under the express language of Penal Code sec. 148; and 2) the trial court did not violate Penal Code sec. 654 when it imposed concurrent one-year jail terms for each violation of sec. 148 as substantial evidence supports a determination that defendant violated sec. 148 three times with an independent criminal objective for each violation.

California Appellate Districts, May 26, 2009 People v. Robertson, No. C058306 Trial court sentence and order imposing a restitution fine and administrative fee is affirmed where the court properly interpreted the statute and added the 10 percent administrative fee to the restitution fine imposed pursuant to Penal Code sec. 1202.4 (a)(3)(A). .

California Appellate Districts, May 28, 2009 People v. Vasilyan , No. B205679 Trial court’s judgment of conviction and defendant’s pleas of nolo contendere stemming from a his 1994 conviction are vacated where the judgment against defendant under Penal Code sec. 422.7 is void, as sec. 422.7 is only a penalty provision, and thus, the court lacked subject matter jurisdiction over the matter
California Appellate Districts, May 28, 2009 People v. Gutierrez, No. F055925 Conviction and sentence for battery against a custodial officer is affirmed where: 1) there is sufficient evidence in the record that the detention deputy used necessary, not excessive, force to discharge his duty to secure inmates; 2) the court improperly instructed the jury on the custodial officer’s use of force, but the instructional error did not produce an improper verdict; and 3) trial court did not err in the imposition of a felony sentence against defendant.