Criminal Law Library Blog
August 24 – 28, 2009.
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U.S. 1st Circuit Court of Appeals, August 24, 2009 US v. Padilla-Colon, No. 07-2372 Conviction of defendant for possession of drugs with intent to distribute is affirmed where, although defendant’s waiver of appeal was invalid, there was no error in the district court finding that defendant did not qualify for the safety valve provision of 18 U.S.C. section 3553(f), based on a reasoned assessment of the defendant’s credibility in light of the facts on record.
U.S. 1st Circuit Court of Appeals, August 24, 2009 Crawford v. Clarke, No. 08-2100 In an action brought by Muslim inmates in the custody of the Massachusetts Department of Corrections (DOC) alleging the Commissioner violated their right to freely exercise their religion, grant of an injunction in favor of inmates is affirmed where the district court did not abuse its decision in denying Commissioner’s motion for reconsideration as the Commissioner sought to introduce evidence that could have been introduced at trial but chose not to.
U.S. 1st Circuit Court of Appeals, August 26, 2009 US v. Calderon, No. 05-2650 District court’s sentence and conviction of defendants for conspiring to possess drugs with the intent to distribute is affirmed where: 1) under the totality of the circumstances, the existence of common purpose, distribution of drugs, interdependence of various elements in the overall plan, and overlap among defendants, a reasonable jury could have convicted each of the defendants of the single conspiracy charge; 2) district court did not err in allowing a witness to testify as the defendant had not preserved a delayed disclosures claim; 3) court did abuse its discretion in admitting evidence of a firearm as it was clearly a relevant evidence and Rule 403 balancing did not weigh in favor of exclusion; 4) district court did not abuse its discretion in ruling that murder evidence was relevant, and even were the circuit court to conclude that the district court erred in admitting the evidence, the error would not be clear or obvious; 5) district court did not err in severing! defendant’s trial from his codefendants as he did not file a severance motion before trial; and 6) district court did not err in determining the drug quantity findings in sentencing the defendants under the sentencing Guidelines
U.S. 1st Circuit Court of Appeals, August 26, 2009 US v. Cedeno-Perez, No. 07-2126 In a prosecution for conspiracy to commit money laundering, district court’s denial of defendant’s motion for acquittal, on the ground that the evidence was insufficient to establish that he possessed the mens rea required for the crime, is affirmed where a rational jury could find: 1) that defendant knew that the money he transferred derived from unlawful activity; 2) beyond a reasonable doubt, that defendant knew that the money came from some form of unlawful activity; 3) that the defendant engaged in conduct that was commonly known to conceal the nature, location, source, ownership, or control of the proceeds.
U.S. 1st Circuit Court of Appeals, August 26, 2009 US v. Siciliano, No. 08-1745 In a prosecution for drug-related offenses, grant of defendant’s motion to suppress evidence stemming from a protective sweep is affirmed where: 1)district court did not commit clear legal error as the court employed the correct legal standard in asking whether a warrant would have been sought if what actually happened had not occurred; 2) court did not commit clear factual error in concluding that the government did not establish that the agents were not prompted to seek the search warrant by information acquired during an unlawful protective sweep; and 3) district court did not abuse its discretion in denying government’s motion to reconsider as the language of the court’s order suggests that it did consider all of the arguments. …
U.S. 1st Circuit Court of Appeals, August 27, 2009 Limone v. US, No. 08-1327 District court’s award of $100 million to the plaintiffs in their action against the United States under the Federal Tort Claims Act (FTCA)for murder related convictions due to FBI’s suppression of contrary evidence, is affirmed, although high, where the amount is not so grossly disproportionate to the harm sustained as to either shock the Court’s collective conscience or raise the specter of a miscarriage of justice, and the court used a permissible methodology in computing damages and they are not so excessive as to warrant intervention. District court’s finding that the government is liable for malicious prosecution is rejected; district court’s finding that the government is liable for intentional infliction of emotional distress is upheld; district court’s decision to reject the government’s invocation of the discretionary function defense is upheld. …
U.S. 2nd Circuit Court of Appeals, August 27, 2009 US v. Ray, No. 08-2795 In an appeal from an order sentencing defendant, after a fifteen-year delay, to a one-day term of imprisonment and three years of supervised release with a special condition that she serve six months in a halfway house, the order is vacated where: 1) the Speedy Trial Clause of the Sixth Amendment, which governs the timing of trials, does not apply to sentencing proceedings; but 2) for purposes of a Due Process claim, the delay in the imposition of sentence was not justified by any legitimate reason and caused defendant prejudice insofar as the custodial portion of it threatened to undermine her successful rehabilitation. …
U.S. 2nd Circuit Court of Appeals, August 27, 2009 US v. Main, No. 08-4088 In a drug prosecution, a denial of defendant’s motion for a reduction of sentence is affirmed where the district court lacked authority to reduce defendant’s sentence under 18 U.S.C. section 3582(c), because the sentence was dictated by his plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), and not the Sentencing Guidelines related to crack cocaine….
U.S. 3rd Circuit Court of Appeals, August 24, 2009 US v. Tann, No. 08-2378 Defendant’s conviction on two counts of illegal possession of a firearm and ammunition under 18 U.S.C. section 922(g)(1) is affirmed in part and remanded in part where: 1) district court committed plain error in convicting and sentencing defendant on both counts charged under section 922(g)(1), as defendant’s possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction and sentence under the section; 2) defendant has met his burden to show that his substantial rights were affected by his unauthorized conviction and sentence on both counts charged under section 922(g).
U.S. 3rd Circuit Court of Appeals, August 25, 2009 US v. Lychock, No. 06-3311 District court’s decision to deviate from a 30-37 month Guideline range down to a sentence of five years probation for a defendant convicted of knowing possession of child pornography is vacated as procedurally and substantively unreasonable where the district court failed to properly consider the 18 U.S.C. section 3553 factors and failed to offer a sufficient justification for its imposition of a sentence so substantially below the applicable Guidelines range.
U.S. 3rd Circuit Court of Appeals, August 28, 2009 Robertson v. Klem , No. 07-2581 In habeas proceedings arising from petitioner’s conviction of two counts of conspiracy to commit murder, district court’s judgment is reversed where the evidence was insufficient to allow a rational trier of fact to find defendant participated in two conspiracies and the court’s contrary conclusion was an unreasonable application of clearly established Supreme Court precedent, In re Winship, 397 U.S. 358 (1970).
U.S. 5th Circuit Court of Appeals, August 26, 2009 US v. Rodriguez-Parra, No. 08-40708 Defendant’s sentence for illegally reentering the U.S. is affirmed, where the District Court erred by applying an enhancement because Defendant’s prior sentence did not meet the requirements for a “sentence imposed” under the Sentencing Guidelines. However, because Defendant failed to object to the sentence in the District Court and the law on the issue was not clearly established, the District Court did not commit plain error. …
U.S. 6th Circuit Court of Appeals, August 24, 2009 US v. Studabaker, No. 08-1614 Defendant’s conviction and sentence for causing the foreign travel of a minor with the intent to engage in criminal sexual activity are affirmed where: 1) his prosecution did not violate the Double Jeopardy Clause; 2) defendant did not reserve the right to appeal the sufficiency of the evidence, and thus waived his argument that the government did not provide a sufficient factual basis to support his plea; and 3) the district court did not abuse its discretion when it rejected defendant’s argument that his sentence should be reduced to account for his prior incarceration. …
U.S. 6th Circuit Court of Appeals, August 25, 2009 US v. Salti, No. 07-4487 In an appeal from a dismissal of a petition asserting an interest in a bank account the court had ordered forfeited as a result of the government’s plea agreement with one petitioner’s nephew, the order is reversed where a petitioner’s alleged ill health is clearly relevant to whether the petitioner is deliberately avoiding prosecution by declining to enter or reenter the U.S., and such an argument is properly asserted in response to the government’s attempt to apply the fugitive disentitlement statute. …
U.S. 6th Circuit Court of Appeals, August 26, 2009 US v. Brown, No. 07-4197 Defendant’s child pornography sentence is affirmed where, applying a “limited context” test that permits consideration of the context in which the pornographic photographs were taken but limits the consideration of contextual evidence to the circumstances directly related to the taking of the images, the court determines that certain photos at issue were “lascivious” under the Sentencing Guidelines.
U.S. 6th Circuit Court of Appeals, August 27, 2009 US v. Acierno, No. 07-4473 Defendant’s conviction for using a facility of interstate commerce with the intent that a murder be committed in consideration for payment of money under 18 U.S.C. section 1958(b)(1) is affirmed where the evidence was sufficient to support a finding that defendant agreed to pay an undercover agent, not just to cover expenses, but also as consideration for the murder of her estranged husband.
U.S. 7th Circuit Court of Appeals, August 24, 2009 US v. Marrocco, No. 07-3101 In forfeiture proceedings involving cash that was suspected to be connected to drugs, district court’s grant of defendant’s motion to suppress dog-sniff test evidence is reversed and remanded where: 1) the police officers’ suspicion that a briefcase contained drugs or money associated with drugs was reasonable; 2) detention of the briefcase was reasonable; and 3) officer’s unlawful search of the briefcase fell under under the inevitable discovery doctrine where the government obtained an independent legal justification for conducting a search which led to the discovery of the evidence and officers inevitably would have sought the warrant and conducted a lawful search.
U.S. 7th Circuit Court of Appeals, August 24, 2009 US v. Fouse, No. 07-3945 Conviction and sentencing of a defendant for conspiracy to distribute cocaine and possession of firearm in furtherance of that conspiracy is affirmed where: 1) the district court correctly determined that under 21 U.S.C. section 846, it is not whether the government can sustain a conspiracy charge without proving conclusively that every alleged co-conspirator had more than a buyer-seller relationship with the defendant, but rather, whether the government can prove the requisite agreement between the defendant and at least one other conconspirator; 2) a jury could conclude that defendant constructively possessed the guns found at his home and a jury could rely on circumstantial evidence in finding that a gun in defendant’s constructive possession was kept to further the drug trafficking crime; 3) district court’s decision to give the jury a “dynamite charge” during deliberations and the charge itself was not in error as there is no basis to conclude that the court encouraged ! the jurors to cast aside their opinions for the expedience of reaching a verdict; and 4) district court’s sentencing of the defendant was presumptively reasonable based on the properly calculated guidelines range. …
U.S. 7th Circuit Court of Appeals, August 24, 2009 US v. Canady , No. 08-1267 Sentence and conviction for being a felon in possession of a firearm and ammunition is affirmed where: 1) the district court’s admission of defendant’s home invasion and shooting evidence was proper as they were integral in establishing defendant’s possession of the firearm; 2) the district court was correct in determining that the evidence did not support defendant’s theory of defense instruction; 3) district court’s sentencing was proper under the sentencing guidelines. …
U.S. 7th Circuit Court of Appeals, August 25, 2009 US v. Hart, No. 07-3395 Sentencing of a defendant convicted of bank robbery as a career offender under the Sentencing Guidelines is vacated and remanded for resentencing as a conviction for escape under 18 U.S.C. section 751(a), as a categorical matter, is not a crime of violence under the Sentencing Guidelines. …
U.S. 7th Circuit Court of Appeals, August 25, 2009 US v. Deloney, No. 07-3451 Defendant’s sentence for drug possession with intent to deliver is affirmed where: 1) a sentence that falls within the properly calculated Guidelines is presumed reasonable and the district court analyzed the factors and explained the reasons for defendant’s sentence; and 2) defendant’s argument that the district court should have considered the soon to be amended Guidelines in deciding what sentence to impose is frivolous as a district court is to apply the Guidelines in effect at the time of sentencing.
U.S. 7th Circuit Court of Appeals, August 25, 2009 US v. Salem, No. 08-2034 In a prosecution for witness intimidation and possessing a firearm in furtherance of that offense, a denial of defendant’s request for a new trial is vacated and remanded for an evidentiary hearing where: 1) under Brady, the government was required to disclose evidence materially favorable to the accused; and 2) defendant never had a sufficient opportunity to make a showing of whether certain evidence at issue was material by demonstrating reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.
U.S. 7th Circuit Court of Appeals, August 25, 2009 US v. Gibbs, No. 08-2186 Defendant’s sentence of ten years’ supervised release is vacated as the district court never acknowledged that the advisory range under the sentencing Guidelines was five years. District court’s order conditioning defendant’s supervised release on repaying the money used by the government to buy the drugs is premature and the court appropriately deferred any such consideration until defendant’s release from prison. …
U.S. 7th Circuit Court of Appeals, August 25, 2009 US v. Oros, No. 08-2511 Conviction and sentencing of a defendant for bribery is affirmed where: 1) district court’s error in allowing the government to present summary charts to the jury was harmless error in that it did not have a substantial and injurious effect on the jury’s verdict; 2) the evidence presented at trial was sufficient to find defendant guilty of bribery beyond a reasonable doubt; and 3) district court did not commit clear error in calculating the amount of loss in determining defendant’s offense level. …
U.S. 7th Circuit Court of Appeals, August 25, 2009 US v. Elst, No. 09-1175 In a prosecution for conspiracy to distribute cocaine, denial of defendant’s motion to suppress is affirmed where: 1) the police officers acted in objective good faith reliance on a warrant; and 2) defendant has not rebutted that presumption, and the defendant has not shown that the affidavit was so lacking in indicia of probable cause as to make entirely unreasonable a belief that probable cause existed.
U.S. 7th Circuit Court of Appeals, August 26, 2009 US v. Hargrove, No. 06-2883 District court’s denial of defendant’s motion to dismiss mail fraud charges on the ground that the honest-services provision of 18 U.S.C. section 1346 is unconstitutionally vague is affirmed as the circuit court has soundly rejected the claim that the mail fraud statute, as applied to the intangible-rights theory, is void for vagueness. …
U.S. 7th Circuit Court of Appeals, August 26, 2009 US v. Thyfault, No. 07-2769 District court’s grant of defendant’s motion to dismiss retrial for mail fraud is reversed as it incorrectly determined that issue preclusion applied since the defendant failed to meet his burden of demonstrating that the acquittals in the first trial necessarily decided in his favor an issue that would be ultimately be required to convict him in the second, and as such, nothing about defendant’s conspiracy acquittal leads to a conclusion that the jury necessarily determined that he did not act with an intent to defraud.
U.S. 7th Circuit Court of Appeals, August 27, 2009 US v. Corson, No. 08-2094 District court’s conviction of defendants charged with conspiracy to rob and sell the stolen drugs as a result of a setup by the government and an informant, is affirmed where: 1)there was sufficient evidence for a rational jury to conclude that the defendants agreed, amongst themselves, to the robbery plan; and 2) the district court did not commit clear error in denying the safety valve to one of the defendants as he did not meet his burden of proving eligibility for the safety valve. …
U.S. 7th Circuit Court of Appeals, August 27, 2009 US v. Villegas-Miranda, No. 08-2308 District court’s sentence of a defendant charged with illegal reentry from Mexico while in state custody on a domestic battery charge is vacated and remanded as the district court failed to address defendant’s concurrent-sentences argument, one of his principal arguments, that were not so weak as to not merit discussion.
U.S. 7th Circuit Court of Appeals, August 27, 2009 US v. Shabaz, No. 08-3751 District court’s denial of defendant’s motion to suppress his confession and other incriminating statements resulting in his conviction for bank robberies is affirmed where: 1) defendant’s question was not a clear and unambiguous request for counsel under the circumstances; and 2) district court did not err in denying defendant’s motion to suppress his post-conviction statements where the magistrate judge made a credibility determination that despite defendant’s failure to sign the waiver form, he was advised of his Miranda rights and voluntarily agreed to waive them.
U.S. 7th Circuit Court of Appeals, August 28, 2009 US v. Booker, No. 07-3094 Conviction of a defendant for being a felon in possession of a firearm is affirmed in part and reversed in part where: 1) the district court did not err in denying defendant’s motion to suppress because the officers did have reasonable suspicion to stop defendant’s van and the gun, which was in plain view inside the van, should not be suppressed; and 2) district court plainly erred in using defendant’s prior involuntary manslaughter conviction to enhance his sentence as it does not qualify as a crime of violence. …
U.S. 7th Circuit Court of Appeals, August 28, 2009 Cruz v. Safford, No. 08-3083 District court’s judgment, involving an inmate’s pro se civil rights action against a prison guard claiming violation of his Eighth Amendment right to be free from excessive force, is affirmed where: 1) district court did not err in instructing the jury that it had to find that the Eighth Amendment protected plaintiff from excessive force; 2) district court did not abuse its discretion when it kept tardy assault and battery claims out of the pretrial order and refused to consider them in plaintiff’s section 1983 excessive force action; and 3) district court did not err in denying plaintiff the opportunity to cross-examine defendant’s supervisor regarding prior arrest as the witness’s seven arrests and one battery conviction were not credibility matters, but highly prejudicial.
U.S. 8th Circuit Court of Appeals, August 24, 2009 Ward v. Norris, No. 05-4381
In a capital murder case, district court’s judgment denying defendant a writ of habeas corpus is affirmed where: 1) defendant’s motions, in substance, comprise a claim of ineffective or incompetent representation by federal habeas counsel, and the Antiterrorism Death Penalty Act specifically prohibits such grounds for relief; 2) defendant’s claims on appeal concerning ineffective assistance of counsel represented an impermissible broadening of claims to include federal bases before both the state courts and the district court; and 3) defendant’s claim that the trial court’s disparate treatment of the defense counsel’s requests to approach the bench deprived him of a fair trial failed as rulings on those requests did not reflect actual or presumed bias rising to the level of a constitutional violation or structural error.
U.S. 8th Circuit Court of Appeals, August 24, 2009
Mathena v. US, No. 08-2184 District court’s denial of defendant’s writ of habeas corpus is reversed and remanded to dismiss the petition without prejudice where: 1) district court erred in finding defendant’s petition was untimely under 28 U.S.C. § 2241; and 2) defendant failed to exhaust his administrative remedies within the Bureau of Prisons. …
U.S. 8th Circuit Court of Appeals, August 24, 2009 US v. Gray, No. 08-3497 District court’s Sentencing of a defendant convicted of drug possession with intent to distribute and it’s denial of defendant’s motion to declare unconstitutional the statute establishing a mandatory minimum is affirmed where: 1) court did not commit plain error as it understood its authority to vary from the guidelines and the career offender guidelines; 2) the court did not impose a substantively unreasonable sentence; and 3) defendant lacked standing the challenge the constitutionality of 21U.S.C. Sec. 841(b)(1)(B)(iii).
U.S. 8th Circuit Court of Appeals, August 24, 2009 US v. Jenkins, No. 08-3616 District court’s sentencing of a defendant convicted of wire fraud is affirmed where: 1) district court did not commit clear error in making a reasonable estimate of loss; and 2) court did not commit err in imposing the abuse of trust enhancement under U.S.S.G. § 3B1.3.
U.S. 8th Circuit Court of Appeals, August 25, 2009 Bandey-Bey v. Crist, No. 08-2084 In a case involving plaintiff-inmate’s 42 U.S.C. section 1983 action against various prison officials, summary judgment for defendants is affirmed where: 1) plaintiff’s claim that the defendants denied him access to the courts by failing to grant him the library time he requested was properly rejected as he did not demonstrate an actual injury; 2) plaintiff failed to show that the disciplinary measures taken against him by the defendants was in retaliation for pursuing his claims; 3) plaintiff failed to make a sufficient showing of a substantive due process claim. …
U.S. 8th Circuit Court of Appeals, August 26, 2009 Wooten v. Norris, No. 06-4068
District court’s denial of Arkansas death-row inmate’s petition for habeas relief claiming ineffective assistance of counsel is affirmed where: 1) defendant’s claims are procedurally defaulted as he failed to develop the factual basis for his claim in state court; 2) counsel’s conduct, although deplorable, was not an external factor that would remedy the default; 3) counsel’s misconduct did not destroy the agency relationship between counsel and defendant; 4) defendant’s actual innocence claim is rejected as the district court did not err in determining that the evidence tendered by the new counsel did not create a reasonable probability that a jury could have acquitted defendant or found the death-qualifying aggravator inapplicable; and 5) district court correctly rejected defendant’s Rule 59(e) motion and his motion to stay federal proceedings as defendant’s motion to Recall and Reopen is not a proper vehicle for exhausting state remedies in Arkansas or creating a state re! cord that might support federal habeas claims.
U.S. 8th Circuit Court of Appeals, August 27, 2009 Becker v. Luebbers, No. 07-3031
In habeas proceedings arising from petitioner’s conviction of attempted rape, district court’s denial of relief is affirmed as there was no unreasonable application of Strickland in the state court’s denial of defendant’s ineffective assistance of counsel claim. …
U.S. 8th Circuit Court of Appeals, August 27, 2009 Keiser v. US, No. 07-3878 Sentence and conviction of defendant on bank fraud related charges is affirmed where: 1) district court did not abuse its discretion in denying defendant’s motion to continue sentencing as defendant’s attorney had sufficient time to prepare for sentencing and as reflected by his conduct; 2) district court’s failure to inform defendant of right to standby counsel did not negate the validity of defendant’s waiver of right to counsel, as defendant had no absolute right to such; 3) district court did not abuse its discretion in admitting expert testimony regarding fiduciary duties of commodities brokers, as any unfair prejudice to defendant was slight and insufficient to outweigh its probative value; ; and 4) district court did not err in applying the sentencing enhancements under the Guidelines.
U.S. 8th Circuit Court of Appeals, August 27, 2009 US v. McClellon , No. 08-3249
Conviction of defendant for possession of crack cocaine with intent to distribute is affirmed where: 1) district court did not err in denying defendant’s motion for judgment of acquittal as there was sufficient evidence to support the jury’s verdict that he possessed the intent to distribute; 2) the district court did not abuse its discretion in denying defendant’s motion for a new trial as the admission of a cooperating witness’s written plea agreement as evidence of the witness’s credibility is left to the district court’s discretion; 3) imposition of the mandatory minimum sentence did not violate defendant’s rights to due process and equal protection of the law. …
U.S. 8th Circuit Court of Appeals, August 27, 2009 US v. Ultsch , No. 08-3794
District court’s enhanced sentencing of a defendant convicted of receiving, distributing and possessing child pornography under the sentencing Guidelines was not in error where: 1) the defendant used LimeWire, a file-sharing software, to download and share child pornography: and 2) the sentence was not unreasonable. …
U.S. 8th Circuit Court of Appeals, August 28, 2009 US v. Gammage, No. 08-3819 District court’s sentencing of a defendant to 180 months’ imprisonment, convicted of knowingly possessing a firearm after having been convicted of a misdemeanor crime, is reversed and remanded where the court erred in determining that defendant was an armed career criminal, as the government failed to prove up defendant’s convictions before he would be subject to the enhancement issue. Accordingly, district court is directed to resentence defendant based on the record already before it. …
U.S. 9th Circuit Court of Appeals, August 24, 2009 US v. Gonzalez, No. 07-30098 Defendant’s firearm possession conviction is reversed where Arizona v. Gant, 129 S. Ct. 1710 (2009), required that defendant’s motion to suppress be granted and, thus, that defendant’s conviction be reversed because a warrantless vehicle search incident to the arrest of an occupant of the vehicle is not permitted under the Fourth Amendment. …
U.S. 9th Circuit Court of Appeals, August 25, 2009 S-Yong v. Holder, No. 07-70619 In a petition for review of an order removing petitioner from the U.S., the petition is granted where there was no record documentation supporting the BIA’s determination that petitioner committed a felony involving a controlled substance. …
U.S. 9th Circuit Court of Appeals, August 25, 2009 Randle v. Crawford, No. 08-15657 In a murder prosecution, dismissal of a habeas petition as untimely is affirmed where: 1) the Nevada Supreme Court’s order dismissing petitioner’s appeal as untimely did not constitute “the conclusion of direct review” pursuant to 28 U.S.C. section 2244(d)(1)(A); and 2) even with the benefit of statutory tolling pursuant to Section 2244(d)(2), petitioner’s petition was untimely by 192 days.
U.S. 9th Circuit Court of Appeals, August 25, 2009 US v. George, No. 08-30339 Defendant’s conviction for failure to register as a sex offender under the Sex Offender Notification and Registration Act (SORNA) is affirmed where an individual’s obligation to register is not dependent on a state’s implementation of SORNA, and thus the fact that Washington had not implemented SORNA at the time of defendant’s sexual abuse of a minor conviction was irrelevant….
U.S. 9th Circuit Court of Appeals, August 25, 2009 Crickon v. Thomas, No. 08-35250 In a drug prosecution, a denial of petitioner’s habeas petition is reversed where the Bureau of Prisons failed to provide a rational explanation for its regulations categorically excluding prisoners with certain prior convictions from early release eligibility. …
U.S. 9th Circuit Court of Appeals, August 26, 2009 US v. Comprehensive Drug Testing, Inc., No. 05-10067 In cases arising from the federal investigation of the Bay Area Lab Cooperative (Balco) and its alleged distribution of illegal steroids to professional baseball athletes, orders quashing subpoenas seeking information regarding drug tests performed on baseball players are affirmed over the government’s appeal where: 1) the government failed to timely appeal one of the orders, which determined that the government failed to segregate intermingled data, and thus the order had preclusive effect on the other pending cases; and 2) Fed. R. Crim. P. 41(g) was an appropriate means of obtaining the return of property improperly seized by the government. …
U.S. 9th Circuit Court of Appeals, August 26, 2009 US v. Cardenas-Mendoza, No. 07-10553 Defendant’s drug conviction is affirmed where the district court abused its discretion under the Jencks Act when it did not strike the testimony of a government agent whose grand jury testimony transcript could not be produced, but the error was harmless because the agent’s testimony played only a small part in the government’s case. …
U.S. 9th Circuit Court of Appeals, August 26, 2009 Prakash v. Holder, No. 07-72831 In a petition for review of the BIA’s order removing petitioner from the U.S., the petition is denied where convictions for solicitation to commit rape by force, in violation of Cal. Pen. Code section 653f(c), and solicitation to commit assault by means of force likely to produce great bodily injury, in violation of Cal. Pen. Code section 653f(a), constitute crimes of violence under 8 U.S.C. section 1101(a)(43)(F) for immigration law purposes. …
U.S. 9th Circuit Court of Appeals, August 27, 2009 US v. Guzman-Mata, No. 08-10061 Defendant’s sentence for illegally reentering the U.S. is affirmed where a conviction under 8 U.S.C. section 1324(a)(1) is categorically an “alien smuggling offense” under U.S.S.G. section 2L1.2(b)(1)(A), and thus the district court properly enhanced defendant’s sentence. …
U.S. 9th Circuit Court of Appeals, August 28, 2009 US v. Gallenardo, No. 07-30414 Defendant’s child pornography conviction and sentence are affirmed, where 1) intrastate possession of child pornography may affect interstate commerce; 2) the prosecution had a strong case independent of the initial portions of an improperly admitted audiotape; and 3) 18 U.S.C. section 3559(e)(2) mandates a life sentence only for that specific subset of prior convictions under 18 U.S.C. section 1591 where the victim is a minor. …
U.S. 10th Circuit Court of Appeals, August 24, 2009 US v. Garcia, No. 08-2246 Defendant’s firearm possession is affirmed where defendant did not show a fair and just reason for moving to withdraw his guilty plea, because all defendant did was articulate a potential defense theory but no reason why the district court erred in accepting the plea. …
U.S. 10th Circuit Court of Appeals, August 24, 2009 US v. Commanche, No. 08-2257 Defendant’s conviction for assault resulting in serious bodily injury is reversed where defendant’s two prior aggravated battery convictions bore on his intent only if a jury first infers that he is prone to violence, and the district court abused its discretion by allowing testimony as to the facts underlying these convictions. …
U.S. 10th Circuit Court of Appeals, August 25, 2009 US v. Parada, No. 07-3272 Defendant’s drug distribution conviction is affirmed where: 1) defendant lacked standing to challenge the search of a cooler containing PCP found in defendant’s vehicle because he did not assert ownership of it; and 2) a dog’s alert to the presence of contraband is sufficient to provide probable cause to search a vehicle.
U.S. 10th Circuit Court of Appeals, August 27, 2009 Wilson v. Workman, No. 06-5179 In consolidated appeals from denials of habeas petitions based on ineffective assistance of counsel, the orders are affirmed where the district courts properly accorded deference to decisions of the Oklahoma state courts on claims of ineffective assistance of counsel under 28 U.S.C. section 2254, even though those claims were based on evidence that was not part of the original trial court record and the state courts declined to supplement the record with the proffered evidence, based on Oklahoma Appellate Rule 3.11(B)(3)(b). …
U.S. 11th Circuit Court of Appeals, August 26, 2009 Ferguson v. Sec’y. for the Dep’t of Corrs., No. 05-13595 In a capital habeas matter, denial of the petition is affirmed where: 1) defense counsel was not ineffective during the penalty phase because the aggravating circumstances far outweighed any mitigating factors, even taking into account the evidence that counsel failed to uncover; and 2) any infirmities in the trial court’s initial jury instructions would have been cured by the court’s subsequent statement. …
U.S. 11th Circuit Court of Appeals, August 27, 2009 US v. McIntosh, No. 08-15449 In a drug and firearm prosecution, denial of defendant’s motion to dismiss the indictment on Double Jeopardy grounds is reversed where a defendant whose conviction has not been vacated may not be indicted again for the same offenses without violating the Double Jeopardy Clause when the government obtained a dismissal of the original indictment after the defendant pleaded guilty to it.
U.S. 11th Circuit Court of Appeals, August 28, 2009 US v. Gomez, No. 09-11031 Defendant’s identity theft conviction is vacated, where the District Court erred by failing to instruct the jury that the word “knowingly” in 18 U.S.C. section 1028A(a)(1) requires proof that he knew the means of identification belonged to an actual person. …
Supreme Court of California, August 24, 2009 People v. Moye, No. S157980 In a second degree murder case, Court of Appeal’s judgment reversing defendant’s murder conviction based on its determination that the trial court’s jury instructional error prejudicial, is reversed and remanded where the evidentiary record supports the trial court’s determination that there was insubstantial evidence to warrant instruction on a sudden quarrel/heat of passion theory of voluntary manslaughter….
Supreme Court of Florida, August 27, 2009 Sheppard v. Florida, No. SC08-1452 Second District’s conclusion that the defendant’s pro se motion should have been stricken as a nullity in Sheppard v. State is quashed and remanded to trial court where allegations that the lawyer misadvised the defendant, misrepresented the terms of the plea, or coerced the defendant into accepting the plea creates an adversarial relationship where the lawyer cannot both represent his client and refute the allegations. In narrow circumstances such as these, the defendant has in effect requested discharge of counsel and the pleading should not be stricken as a nullity.
Supreme Court of Florida, August 27, 2009 Hayward v. State of Florida, No. SC07-1234 Convictions and sentence of death for first degree murder and other crimes is affirmed where: 1) trial court did not err in admitting certain evidence as it fell under a hearsay exception, and other evidence admitted in violation of the confrontation clause was harmless beyond a reasonable doubt; 2) there was probable cause to detain and arrest defendant; 3) recorded conversation of defendant from jail was properly admitted and any impact they may have had on the jury during the penalty phase was insignificant; 4) Florida’s sentencing scheme is constitutional where a death sentence is supported by the prior violent felony aggravating factor and as such, the sentence was proportional. …
California Appellate Districts, August 24, 2009 Hospital Cmtee. for Livermore-Pleasanton Areas v. Oakland, No. A122674 In an action by a hospital to recover costs from a city based on the hospital’s treatment of an arrestee, judgment for Plaintiff is reversed where, under the nature of the offense rule, the county, not the city, was responsible under Cal. Penal Code section 4011 for the costs at issue because the arrestee was hospitalized while incarcerated for violations of probation and parole under state law. …
California Appellate Districts, August 24, 2009 People v. Hovda, No. C058800 Defendant’s vehicular manslaughter conviction is affirmed, where the trial court did not err in failing to instruct the jury that gross negligence requires conscious indifference to consequences, because CALCRIM No. 590, the pattern instruction on gross vehicular manslaughter while intoxicated the trial court gave, conveyed the equivalent of “conscious indifference” by informing the jury that gross negligence exists only if a reasonable person would have known that acting in that way would create a high risk of death or great bodily injury. …
California Appellate Districts, August 25, 2009 People v. Cannedy, No. A120293 In the state’s appeal from the trial court’s order granting defendant’s motion to recuse the Alameda County District Attorney’s office pursuant to Cal. Penal Code section 1424, the order is reversed where the fact that an employee of the district attorney’s office might be a witness did not justify disqualifying the entire office.
California Appellate Districts, August 25, 2009 People v. R.O., No. B208117 Defendant’s murder sentence is vacated where the juvenile court failed to recognize its discretion to set a lesser term of confinement than the indeterminate sentence applicable to an adult convicted of the same offense as a juvenile.
California Appellate Districts, August 25, 2009 People v. Hach, No. C055692 Defendant’s murder conviction is affirmed where the trial court erred by instructing on felony murder with shooting at an occupied vehicle as the predicate felony, but the other instructions were sufficient to base a second degree murder conviction on either malice or felony murder.
California Appellate Districts, August 25, 2009 People v. Dungo, No. C055923 Defendant’s murder conviction is reversed where allowing a physician, who was not present at the victim’s autopsy, to testify based on the facts in the report of another doctor who did not appear at trial violated defendant’s right of confrontation under the Sixth Amendment.
California Appellate Districts, August 25, 2009 People v. A.I., No. C058506 In a drug prosecution of a minor in juvenile court, order denying the minor’s request for deferred entry of judgment is reversed where the jurisdictional hearing did not commence with the suppression hearing and, thus, the minor timely requested deferred entry of judgment after his suppression motion was denied.
California Appellate Districts, August 26, 2009 People v. Williams, No. C059218 Defendant’s burglary conviction is affirmed where the trial court erred by failing to instruct the jury on the claim-of-right defense, which requires substantial evidence that the defendant, in good faith, believed the property taken from the victim belonged to his co-principal, but the error was harmless because the instruction could not have influenced the verdict