Findlaw Case Summaries: Criminal Law and Procedure 23

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July 6-10, 2009.

U.S. 1st Circuit Court of Appeals, July 08, 2009 US v. Meadows, No. 08-1122 Conviction for firearms possession is affirmed where: 1) the district court properly denied defendant’s motion to suppress as the officers acted within the permissible scope of an investigatory stop when they handcuffed defendant and removed him from his sister’s home; 2) the court did not err in its handling of defendant’s status as a felon during trial as defendant was not unfairly prejudiced by any information about his criminal history that came before the jury; 3) the government did not err in the challenged statements it made during its closing summation; and 4) the government did not err in its instructions to the jury.

U.S. 1st Circuit Court of Appeals, July 08, 2009 US v. Bryant , No. 08-1160 Conviction and sentence for drug crimes is affirmed in part and reversed in part where: 1) the district court erred in not requiring the government to show that the presentence report’s description of the prior New York conviction was based on a sufficiently reliable source to establish the accuracy of that description, and thus the government could not have met its burden of establishing the existence of the prior conviction for sentencing enhancement purposes; 2) the court did not err in finding that a certified copy of the record from the Suffolk Superior Court was sufficiently reliable to support the fact of defendant’s Suffolk Superior Court conviction for sentencing enhancement purposes; 3) both of the defendant’s prior convictions, if proven, qualify as a predicate offenses under U.S.S.G. sec. 4B1.2; and 4) the court did not err in considering the two transactions as part of the same course of conduct for purposes of sentencing.

U.S. 2nd Circuit Court of Appeals, July 06, 2009 Pilgrim v. Luther, No. 07-1950 In a prisoner civil rights action, district court’s grant of summary judgment for defendant is affirmed where: 1) plaintiff’s First Amendment retaliation claim fails as a matter of law as entreaties to activity such as petitions protesting prison conditions are not entitled to First Amendment protection where other less disruptive means of airing grievances are available; and 2) plaintiff’s claims that defendant violated his due process rights are without merit as any error on the part of the corrections officer assigned to assisting plaintiff was harmless in light of defendant’s owns failures.

U.S. 2nd Circuit Court of Appeals, July 10, 2009 US v. Daye, No. 08-1012 Sentence for being a felon in possession of a firearm is vacated and remanded where: 1) defendant’s prior state conviction for engaging in a sexual act with a minor satisfies the standard articulated in Begay and is therefore a violent felony under the residual clause of the Armed Career Criminal Act; and 2) the District Court must consider of remand whether Defendant’s escape conviction constitutes a conviction for a violent felony under Chambers, and whether his two prior state convictions stem from conduct committed on different occasions for purposes of the Act.

U.S. 3rd Circuit Court of Appeals, July 09, 2009 US v. Carbo, No. 07-3576 District court judgment overturning the conviction for conspiracy and honest services mail fraud and granting a judgment of acquittal is affirmed where, even if defendant did not know the details of the disclosure requirements, the evidence was sufficient for a reasonable jury to conclude that defendant had the specific intent to aid and abet honest services mail fraud and to conspire to commit honest services mail fraud.

U.S. 3rd Circuit Court of Appeals, July 10, 2009 US v. Cuevas-Reyes, No. 08-3059 Conviction for for shielding illegal aliens is reversed where defendant’s conduct did not meet the requirements of the test established in Ozcelik and thus there is no evidence from which a reasonable juror could infer that defendant’s actions constituted substantial facilitation of the women’s remaining in the United States illegally.

U.S. 4th Circuit Court of Appeals, July 06, 2009 US v. White, No. 08-4492 Defendant’s firearm possession sentence is affirmed where the state offense underlying one of his previous convictions, conspiracy to commit robbery with a dangerous weapon, constituted a “violent felony” under the Armed Career Criminal Act.

U.S. 5th Circuit Court of Appeals, July 06, 2009 Paredes v. Quarterman, No. 07-70009 In a capital habeas matter, the denial of Petitioner’s petition is affirmed, where defense counsel’s allegedly ineffective performance due to his failure to raise a hearsay objection did not prejudice Petitioner, because the state presented overwhelming evidence that Petitioner committed capital murder.

U.S. 5th Circuit Court of Appeals, July 07, 2009 US v. Garcia-Quintanilla, No. 08-50400 Defendant’s sentence for failure to depart from the U.S. pursuant to an order of removal is vacated, where the District Court sentenced Defendant to the statutory maximum under the mistaken belief that it could later suspend the sentence. .

U.S. 6th Circuit Court of Appeals, July 06, 2009 US v. Flores, No. 08-3359 In a drug conspiracy prosecution, the denial of Defendant’s motion to suppress is affirmed where the police had reasonable suspicion to stop Defendant’s vehicle because their extensive investigation had revealed that the location of the vehicle was the site of an anticipated drug delivery. ..

U.S. 6th Circuit Court of Appeals, July 06, 2009 Serrato-Soto v. Holder, No. 08-4063 Petitioner’s petition for review of the BIA’s denial of his application for voluntary departure is denied where Petitioner’s prior conviction for fraudulent use of identification constituted a crime involving moral turpitude, and thus he was ineligible for voluntary departure.

U.S. 6th Circuit Court of Appeals, July 07, 2009 US v. Lapsins, No. 07-4387 Defendant’s child pornography conviction and sentence are affirmed, where 1) the affidavit in support of the search of Defendant’s home provided probable cause to believe that the images at issue included real children; and 2) the government may decline to move for a reduction in a defendant’s sentence under U.S.S.G. section 3E1.1(b), so long as the decision does not rest on a constitutionally impermissible factor and is not arbitrary. .

U.S. 6th Circuit Court of Appeals, July 07, 2009 US v. Jones, No. 08-1352 Defendant’s ten-year mandatory-minimum sentence for possession with intent to distribute over fifty grams of cocaine base is affirmed, where the sentence did not amount to cruel and unusual punishment, because the case did not present an extreme disparity between the sentence imposed and the crime committed.

U.S. 6th Circuit Court of Appeals, July 08, 2009 US v. Moncier, No. 07-6053 Defendant’s conviction for contempt of court is vacated, where the District Judge before whom Defendant engaged in the allegedly contemptuous conduct was not permitted to preside over the trial of the charges.

U.S. 6th Circuit Court of Appeals, July 08, 2009 US v. Perez-Vasquez, No. 07-6390 Defendant’s sentence for illegally reentering the U.S. is affirmed where the District Court did not abuse its discretion in declining to order that Defendant’s federal sentence run concurrently with his undischarged state sentence, under the circumstance that he was not eligible for fast-track treatment due to the district in which he was prosecuted.

U.S. 6th Circuit Court of Appeals, July 08, 2009 US v. Herrera-Zuniga, No. 08-1540 Defendant’s sentence for illegally reentering the U.S. is affirmed where: 1) the District Court had the authority to reject the Sentencing Guidelines on policy grounds; and 2) because the Guidelines are advisory only, the particular methodology set forth in U.S.S.G. section 4A1.3 is not binding.

U.S. 6th Circuit Court of Appeals, July 10, 2009 Mills v. Cason, No. 06-2359 In an assault prosecution, the denial of Petitioner’s habeas petition is affirmed, where the pretrial identification testimony presented at trial was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

U.S. 6th Circuit Court of Appeals, July 10, 2009 Akrawi v. Booker, No. 07-1984 In a drug conspiracy prosecution, the denial of Petitioner’s habeas petition is affirmed, where there was no reason to believe that disclosure of allegedly suppressed impeachment evidence regarding a prosecution witness would have so altered the jury’s assessment of the witness’s already suspect credibility. ..

U.S. 6th Circuit Court of Appeals, July 10, 2009 Fautenberry v. Mitchell, No. 09-3819 In a capital murder matter, the District Court’s order denying Petitioner’s motion seeking funds to hire a neuropsychologist to assist in the preparation of his state clemency petition is affirmed, where Petitioner advanced no evidence from which the District Court could find that the proposed evaluation would not be duplicative.

U.S. 7th Circuit Court of Appeals, July 06, 2009 US v. Kincaid, No. 08-1953 Conviction for production and possession of child pornography is affirmed where: 1) defendant intentionally waived his right to challenge the constitutionality of the indictment against him as he was aware that he could challenge the constitutionality of the indictment on Commerce Clause grounds and made a conscious decision not to press the argument in district court proceedings; and 2) the indictment was not defective and its wording did not deprive defendant of the opportunity to prepare an adequate defense.

U.S. 7th Circuit Court of Appeals, July 06, 2009 US v. Lauderdale, No. 08-2428 Conviction for drug crimes and firearms possession is affirmed where the district court did not err in denying defendant’s motion for a mistrial as the prosecutor’s challenged remarks were not improper, and the weight of the evidence presented at trial was more than sufficient to establish defendant’s guilt beyond a reasonable doubt. ..

U.S. 7th Circuit Court of Appeals, July 06, 2009 US v. Hernandez-Arenado, No. 08-2520 District court order holding that defendant was in the custody of Immigrations and Customs Enforcement and not the Bureau of Prisons for purposes of the Adam Walsh Act is affirmed where defendant’s detention is under the authority of the ICE as part of the Department of Homeland Security, and he housed in the BOP as a service to ICE.

U.S. 7th Circuit Court of Appeals, July 07, 2009 Cheeks v. Gaetz, No. 05-3372 Petition for writ of habeas corpus is denied where: 1) the disputed testimony about whether petitioner was living at the home where the death occurred had no effect on petitioner’s first-degree murder conviction and no other actual or potential consequence has been identified; and 2) petitioner has not shown any potential benefit from further proceedings reviewing only his home invasion conviction.

U.S. 7th Circuit Court of Appeals, July 07, 2009 Pole v. Randolph, No. 06-2768 District court’s denial of plaintiff’s petition for habeas relief is affirmed where: 1) plaintiff’s argument that his counsel was ineffective for failing to introduce the results of the gunshot residue test is forfeited as the argument was not presented in district court; and 2) plaintiff failed to show he suffered prejudice as a result of counsel’s errors on his other claims, and that there was a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different.

U.S. 7th Circuit Court of Appeals, July 08, 2009 US v. Brown, No. 08-2273 Appeal of a conviction for drug related offenses is dismissed where the district court’s acts were fully consistent with the terms of the plea agreement and the acceptance of defendant’s plea agreement was unambiguous, and the court did not err by failing to specify that it was accepting Brown’s plea agreement.

U.S. 7th Circuit Court of Appeals, July 09, 2009 US v. Moore, No. 07-3978 Conviction for bank robbery and using a firearm during a robbery is affirmed where there was sufficient evidence to convict the defendant on both counts as the the jury could rationally connect defendant’s presence in the house to the description of Robber #2, and defendant’s work in the bank vault aided and abetted the use of the firearm in the robbery.

U.S. 7th Circuit Court of Appeals, July 09, 2009 US v. James , No. 08-3327 Conviction for armed bank robbery and brandishing a firearm is affirmed where the court did not err in denying defendant’s motion to suppress, as defendant’s mother had actual and apparent authority to consent to the search of his safe, and the government submitted sufficient evidence to conclude that defendant’s mother voluntarily consented to the search through her words and actions. .

U.S. 7th Circuit Court of Appeals, July 09, 2009 US v. Johnson, No. 08-3393 Sentence for drug crimes is affirmed where there was no clerical error in defendant’s sentence, as nothing in the record indicates that a relevant conduct finding involving the amount of crack cocaine was added to the overall sentencing calculation without the district court’s knowledge or approval and thus there is no jurisdiction to change the finding under Fed. R. Crim. P. 36.

U.S. 7th Circuit Court of Appeals, July 10, 2009 In re US, No. 09-226 Petition for a writ of mandamus seeking the recusal of the respondent district judge currently presiding over a criminal action is granted where the Government has established that a reasonable, well‐informed observer might question the impartiality of the judge. The judge is directed to remove himself from further proceedings in this matter, and all orders entered by the judge after the motion for recusal was filed must be vacated.

U.S. 8th Circuit Court of Appeals, July 06, 2009 US v. Vargas , No. 06-3539 Conviction for drug crimes is affirmed where: 1) the evidence was sufficient to support the drug quantity determination; and 2) the joinder of defendant’s trial with that of a co-defendant did not violate her Sixth Amendment Confrontation Clause rights under Bruton or result in any actual prejudice.

U.S. 8th Circuit Court of Appeals, July 06, 2009 US v. Rivera , No. 08-2538 District court order granting defendant’s motion to suppress statements made during a traffic stop and the evidence found in his vehicle is reversed and remanded where: 1) the court erred in finding that defendant’s traffic stop was unreasonably prolonged, as the officer did not unreasonably extend the seizure of defendant prior to the completion of the routine records check and reasonably kept him in the patrol car after the records check; and 2) the dog sniff at the end of the traffic stop was de minimis and did not violate the Fourth Amendment.

U.S. 8th Circuit Court of Appeals, July 06, 2009 US v. Alvarez-Manzo, No. 08-2647 District court order granting a motion to suppress evidence is affirmed where: 1) the seizure of defendant’s bag from a bus cargo bay, without reasonable suspicion, violated his Fourth Amendment rights; and 2) even if defendant voluntarily consented to the subsequent search of his wallet, the government failed to demonstrate that the causal connection between the illegal seizures and defendant’s consent was broken, and thus evidence found in the wallet was fruit of the poisonous tree and properly suppressed. .

U.S. 8th Circuit Court of Appeals, July 06, 2009 US v. Ross , No. 08-3040 Sentence for firearms possession is affirmed where the district court properly enhanced defendant’s sentence under the Armed Career Criminal Act as defendant’s prior convictions for first-degree drug trafficking constituted separate convictions under the Act.

U.S. 8th Circuit Court of Appeals, July 06, 2009 US v. Anderson , No. 08-3402 Conviction and sentence for wire fraud, making false statements, and failure to appear is affirmed where: 1) the evidence was sufficient to support defendant’s convictions for wire fraud and failure to appear; 2) the district court did not abuse its discretion in denying defendant’s motion for new counsel, and made an adequate inquiry into defendant’s dissatisfaction with his attorney; 3) the use of the 2007 Guidelines Manual did not create an ex post facto violation; and 4) the court’s denial of defendant’s request for a downward departure was unreviewable.

U.S. 8th Circuit Court of Appeals, July 06, 2009 US v. Binion , No. 08-3629 Conviction for drug crimes and money laundering is affirmed where: 1) officers had probable cause to stop the vehicle in which defendant was a passenger based on the driver’s speeding violation; 2) the district court did not err in denying defendant’s motion to suppress physical evidence as the officer had reasonable suspicion to investigate defendant and to frisk him; and 3) defendant’s statements at the police station were voluntary and therefore admissible under the Fifth Amendment and Miranda.

U.S. 8th Circuit Court of Appeals, July 06, 2009 US v. Alyass, No. 08-3976 Conviction for drug crimes is affirmed where the evidence was sufficient to support defendant’s drug conspiracy conviction, as the government presented evidence of defendant’s membership in the conspiracy that went far beyond mere presence and the jury made proper credibility determinations on the testimony of cooperating co-conspirators.

U.S. 8th Circuit Court of Appeals, July 07, 2009 US v. Bordeaux , No. 08-2280 Conviction for assault and discharging a firearm during a crime of violence is affirmed where: 1) the trial court did not abuse its discretion in denying defendant’s motion for a mistrial as even asssuming arguendo that the court’s comment during voir dire was potentially prejudicial, there was no evidence that the trial’s overall fairness was impacted by the court’s passing comment; 2) the evidence was sufficient to support defendant’s conviction for assault with a deadly weapon and knowingly discharging a firearm during and in relation to a crime of violence; 3) the court carefully reviewed the evidence concerning the victims’ prior bad acts, and the court did not err in excluding some of the incidents as cumulative; and 4) the court did not err in refusing to allow defendant to impeach a witness with a prior statement as the statement was on a collateral matter and was not admissible under Federal Rule of Evidence 613(b). …

U.S. 8th Circuit Court of Appeals, July 07, 2009 US v. Montes-Medina, No. 08-2940 Conviction and sentence for drug crimes is affirmed where: 1) the district court did not err in denying defendant’s request for a Franks hearing as the warrant application established probable cause; 2) the evidence was sufficient to support defendant’s convictions for conspiracy and possession of methamphetamine with intent to distribute; and 3) the court did not err in enhancing defendant’s sentence for obstruction of justice based on its specific findings that defendant perjured himself at trial. Defendant Vega-Toscana’s sentence is affirmed where the court did not commit procedural error in its calculation of the drug quantity attributable to defendant and in its calculation of the advisory Guidelines range. ..

U.S. 8th Circuit Court of Appeals, July 07, 2009 US v. Tolliver , No. 08-3229 Sentence for drug crimes is affirmed where: 1) the district court did not err in concluding defendant was not eligible for modification of his crack sentence under 18 U.S.C. sec. 3582(c) as his applicable Guidelines range was his career offender range and that range had not been lowered by Amendment 706; and 2) the court did not err in denying defendant’s motion for a sentence reduction as his sentence was explicitly based on a stipulation between the parties and not on a sentencing range that had subsequently been lowered by the Sentencing Commission. .

U.S. 8th Circuit Court of Appeals, July 07, 2009 US v. Dotson , No. 08-3446 Conviction for conspiracy to commit murder-for hire and conspiracy to deliver a firearm to a convicted felon is affirmed where: 1) the evidence was sufficient to support defendant’s convictions; and 2) the district court did not err in calculating defendant’s advisory guidelines range for the murder-for-hire conviction. .

U.S. 8th Circuit Court of Appeals, July 08, 2009 US v. Cheney, No. 08-1509 Conviction for drug crimes and firearms possession is affirmed where there was an adequate factual basis to determine that defendant Holland possessed a firearm in furtherance of a drug crime. Appeal of defendant Cheney is dismissed where he voluntarily and knowingly waived his right of appeal as part of his sentencing agreement.

U.S. 8th Circuit Court of Appeals, July 08, 2009 US v. Azure , No. 08-2453 Appeal of a sentence for assault resulting in serious bodily injury is dismissed where defendant knowingly and voluntarily waived his right to appeal a sentence within the advisory guideline range, and enforcement of the waiver will not result in a miscarriage of justice. ..

U.S. 8th Circuit Court of Appeals, July 09, 2009 US v. Jordan , No. 08-2276 District court order revoking defendant’s term of supervised release and sentencing him to imprisonment is affirmed where the court had statutory authority to sentence defendant based on conduct occurring after the issuance of the revocation warrant and did not abuse its discretion in sentencing him to the statutory maximum term of imprisonment based on that conduct.

U.S. 8th Circuit Court of Appeals, July 09, 2009 US v. Rush-Richardson, No. 08-2414 Conviction for possession of firearms in furtherance of drug trafficking is reversed and remanded where the district court erred in its jury instruction on possession of a firearm in furtherance of a drug crime as the instruction would allow the jury to convict on a lesser finding, and affected his substantial rights. .

U.S. 8th Circuit Court of Appeals, July 10, 2009 US v. Johnson , No. 08-3140 Conviction and sentence for drug crimes is affirmed where: 1) the evidence was sufficient to show defendant was an unlawful user of marijuana; 2) the evidence was sufficient for a jury to reasonably conclude that defendant was an unlawful user of marijuana in possession of a firearm; and 3) even if the district court procedurally erred in granting the government’s motion for an upward departure in his advisory guidelines range, the error is harmless and the sentence would be affirmed based on the district court’s alternative decision to impose an upward variance based on the U.S.S.G. sec. 3553(a) factors.

U.S. 9th Circuit Court of Appeals, July 06, 2009 US v. Old Chief, No. 08-30317 Defendant’s assault sentence is affirmed, where Defendant restrained the victim and thus assisted another person in stabbing the victim, and accordingly the District Court properly applied the enhancement under U.S.S.G. section 3A1.3 for physical restraint. ..

U.S. 9th Circuit Court of Appeals, July 07, 2009 US v. Ringgold, No. 06-10492 Defendant’s firearm possession sentence is affirmed, where a District Court does not abuse its discretion by declining to consider the disparity between a recommended Guidelines sentence and the maximum sentence a defendant would receive if convicted of the same conduct in state court.

U.S. 9th Circuit Court of Appeals, July 07, 2009 Ali v. Hickman, No. 07-16731 In a murder prosecution, Petitioner’s habeas petition is granted, where a comparative juror analysis, in combination with other facts in the record, demonstrated that the prosecutor’s purported race-neutral reasons for striking at least one of the jurors were pretexts for racial discrimination.

U.S. 9th Circuit Court of Appeals, July 10, 2009 US v. Gerritsen, No. 06-50552 Defendant’s conviction for malicious interference with a military radio system is affirmed, where Defendant waived his right to counsel knowingly and intelligently, because the prosecutor did not err in including the potential sentencing enhancements in his calculation of the maximum possible penalty provided by law.

U.S. 9th Circuit Court of Appeals, July 10, 2009 Ramirez v. Yates, No. 07-15087 In a burglary prosecution, the denial of Petitioner’s habeas petition is vacated, where the District Court was required to undertake further factfinding to resolve whether Petitioner was entitled to equitable tolling based on the improper denial of library materials. .

U.S. 9th Circuit Court of Appeals, July 10, 2009 Kardoh v. US, No. 07-15700 In an action seeking to recover money paid by Plaintiff to an officer posing as a corrupt immigration official, judgment for Plaintiff is reversed, where the doctrine of in pari delicto barred Plaintiff from recovering the money. .

U.S. 10th Circuit Court of Appeals, July 07, 2009 Matthews v. Workman, No. 07-6209 In a capital habeas matter, the denial of Petitioner’s petition is affirmed, where 1) an allegedly improper juror communication did not prejudice Petitioner, because the defense made no appeal to residual doubt in the penalty phase; and 2) the prosecutor did not reference any extra-record evidence in his argument…

U.S. 10th Circuit Court of Appeals, July 07, 2009 Davis v. Miller, No. 07-7062 In a murder prosecution, the dismissal of Petitioner’s habeas petition as a sanction is reversed where, because the District Court entered an order requiring Petitioner to file an amended petition the day after Respondent was served with the original petition, there was no chance Respondent was prejudiced by exerting effort to reply to the initial petition.

U.S. 10th Circuit Court of Appeals, July 07, 2009 US v. Burke, No. 08-8033 Defendant’s drug conviction is affirmed where the defense failed to articulate to the District Court the reasons why the delay in production of potentially exculpatory evidence by the government should be regarded as materially prejudicial.

U.S. 10th Circuit Court of Appeals, July 08, 2009 Williams v. Jones, No. 06-7103 In a murder prosecution, Petitioner’s habeas petition is granted, where the state appellate court erred by simply reducing Petitioner’s sentence, as that remedy was not tailored to the seriousness of the ineffective assistance rendered by Petitioner’s counsel.

U.S. 11th Circuit Court of Appeals, July 07, 2009 US v. Valencia-Trujillo, No. 07-10524 Defendant’s drug conviction is affirmed where: 1) the rule of specialty did not apply to Defendant’s extradition because he did not establish that he was extradited under a United States-Colombia extradition treaty; and 2) the addition of predicate acts to the indictment did not prevent a meeting of the minds between the grand jury and the trial jury on the charges for which Defendant was convicted.

U.S. 11th Circuit Court of Appeals, July 07, 2009 US v. Goings, No. 08-15705 Defendant’s drug conviction is affirmed where the arrest was legal under Florida law because the Georgia police officers were in fresh pursuit and, contrary to Defendant’s argument, interstate compacts only become relevant when there is no fresh pursuit.

U.S. 11th Circuit Court of Appeals, July 07, 2009 Garczynski v. Bradshaw, No. 08-16100 In a 42 U.S.C. section 1983 action alleging excessive use of force by the police, summary judgment for Defendants is affirmed where the situation the officers faced, which involved an armed, suicidal man, was urgent and inherently dangerous, and thus Defendants had probable cause to use the force they did.

U.S. 11th Circuit Court of Appeals, July 09, 2009 Zakrzewski v. McNeil, No. 07-15930 In an appeal from the denial of Petitioner’s Fed. R. Crim. P. 60(b) motion to reconsider the denial of his application for post-conviction relief, the District Court’s order is affirmed where the District Court did not abuse its discretion in finding that Petitioner’s attorney did not defraud him.

U.S. 11th Circuit Court of Appeals, July 10, 2009 Land v. Allen, No. 08-15254 In a capital habeas matter, the denial of Petitioner’s petition is affirmed, where the State met its burden of demonstrating by a preponderance of the evidence that Petitioner’s confession was a result of voluntary choice.

U.S. D.C. Circuit Court of Appeals, July 07, 2009 Moore v. Hartman, No. 08-5370 In a malicious prosecution action, summary judgment for Defendants is reversed, where the District Court erred by holding that an indictment is conclusive evidence of probable cause in a subsequent retaliatory or malicious prosecution action.

U.S. D.C. Circuit Court of Appeals, July 10, 2009 US v. Blalock, No. 08-3020 Defendant’s firearm possession sentence is affirmed, where the District Court did not err in enhancing Defendant’s sentence because the court’s finding that Defendant’s drug use did not negate his ability to act with the necessary intent was not clearly erroneous.

U.S. D.C. Circuit Court of Appeals, July 10, 2009 Mills v. Dist. of Columbia, No. 08-7127 In an action to enjoin further implementation of a police checkpoint program in Defendant city, the denial of a preliminary injunction is reversed, where the checkpoint did not meet the Fourth Amendment’s requirement of individualized suspicion.

Supreme Court of California, July 06, 2009 People v. Rogers , No. S064337 Conviction for first and second degree murders and sentence to death is affirmed where: 1) trial court’s voir dire on the death penalty was adequate and did not violate his due process rights, and the warrantless entries into defendant’s house were justified by exigent circumstances; 2) witness’s testimony describing defendant’s nonverbal conduct was properly admitted, and the court did not err in admitting victims’ photographs and autopsy photographs; 3) the court did not err in failing to give the jury an instruction on voluntary manslaughter and in instructing the jury on CALJIC No. 2.06; 4) any conceivable error in the substitution of judges upon the trial judge’s temporary absence was harmless beyond a reasonable doubt; 5) the death sentence is not authorized for second degree murder, and thus the judgment must be modified to reflect the appropriate sentence; 6) the court properly refused to give a lingering doubt instruction and did not instruct the jury with an incorr! ect version of CALJIC No. 8.85 or 8.88; and 7) California’s death penalty statute is not unconstitutional.

Supreme Court of California, July 09, 2009 People v. McNeal , No. S157565 Court of Appeals judgment is affirmed where evidence about partition ratio variability is relevant in generic DUI cases to rebut the presumption of intoxication in Vehicle Code sec. 23610 and support an inference that the defendant was not under the influence, but may not be used to negate the basic fact triggering the Vehicle Code sec. 23610 presumption and thereby defeat operation of the presumption itself. Conviction for driving under the influence is affirmed where: 1) although defendant was prevented from introducing evidence about partition ratio variability, the error was harmless, as there was significant evidence of his intoxication; and 2) the jury’s verdict indicated that the admission of partition ratio evidence was not reasonably likely to have produced a more favorable result.

California Appellate Districts, July 07, 2009 People v. Ramon , No. F054603 Conviction and sentence for receiving a stolen vehicle and firearms possession is reversed and remanded where: 1) the evidence was insufficient to support a support a Penal Code sec. 186.22(b)(1) sentence enhancement for committing the crimes for the benefit of a criminal street gang; and 2) the trial court erred in convicting defendant of both possession of a loaded firearm by a member of a criminal street gang and possession of a loaded firearm for which he was not the registered owner as they are both penalty provisions of Penal Code sec. 12031 (a)(1), and as defendant violated the statute only once be can be convicted of the crime only once.

California Appellate Districts, July 08, 2009 People v. Ochoa , No. C059868 Conviction for drug crimes is reversed and remanded where the trial court erred in its determination that defendant’s more than two-year-old marijuana possession conviction rendered him ineligible for Penal Code sec. 1000 deferred entry of judgment, as the record of defendant’s earlier conviction should have been destroyed after two years and thus not been taken into consideration. .

California Appellate Districts, July 09, 2009 People v. Sizemore, No. B200408 Trial court judgment sentencing defendant to state prison following revocation of probation which had been granted after his plea of guilty to possession of methamphetamine is affirmed where: 1) the trial court properly removed defendant from the Proposition 36 drug treatment and placed him on regular felony probation, given his record and his stated desire to opt out of the Proposition 36 program; 2) defendant’s trial counsel was not ineffective for proposing that he opt out of the Proposition 36 program and be placed on regular felony probation as it was not deficient to acquiesce to defendant’s request to proceed under the terms of formal felony probation and defendant did not suffer prejudice as a result of counsel’s performance; 3) the court properly exercised its discretion when it sentencing defendant to prison as he violated the terms of the deferred entry of judgment as well as the terms of the Proposition 36 program, and then violated the terms of his formal felony! probation.

California Appellate Districts, July 09, 2009 People v. Stuckey , No. C057782 Conviction for drug crimes is affirmed where: 1) the trial court did not err in denying defendant’s motions for appointment of experts under Evidence Code sec. 730 as the statute does not authorize request for experts to assist his attorney at sentencing proceedings; and 2) the court’s denial of defendant’s request for defense experts for the sentencing hearing did not violate his constitutional rights to due process, equal protection, and effective assistance of counsel as nothing in the federal or state Constitutions requires a trial court to appoint experts to serve as surrogate advocates at sentencing hearings.