Findlaw Case Summaries: Criminal Law and Procedure 29

November 30-December-4, 2009.

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U.S. Supreme Court, November 30, 2009 Porter v. McCollum, No. 08–10537 In capital habeas proceedings, circuit court’s order reversing a district court’s grant of a habeas petition is reversed where it was objectively unreasonable for a state court to conclude that there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that petitioner’s counsel neither uncovered nor presented, including evidence of petitioner’s mental health or mental impairment, his family background, or his military service.

U.S. 1st Circuit Court of Appeals, December 01, 2009 US v. Willings, No. 09-1334 In a prosecution for robbery of a federal bank through the use of a dangerous weapon, district court’s imposition of a sentence designating defendant as a career offender under U.S.S.G. section 4B1.1(a) is affirmed as escape from secure custody is a crime of violence within the purview of the career offender guideline.

U.S. 1st Circuit Court of Appeals, December 03, 2009 US v. Hersom, No. 07-2401 Defendant’s conviction for maliciously destroying by fire a building owned by an institution receiving Federal financial assistance in violation of 18 U.S.C. section 844(f) is affirmed where: 1) in general, the statute should be limited to arson of property acquired, renovated, or leased using federal financial assistance; 2) section 844(f) is constitutional and it applies to defendant’s conduct in this case; but 3) defendant’s sentence is vacated and remanded in light of US v. Giggey to determine whether defendant’s second career offender predicate is a crime of violence.

U.S. 2nd Circuit Court of Appeals, November 30, 2009 US v. Rodriguez, No. 08-2805 Defendants’ alien transportation conviction is affirmed where: 1) the strength of the evidence rendered harmless any error that might have occurred with respect to denying one defendant a severance; 2) there was no reason to anticipate that the prosecutor’s question would prompt one defendant to volunteer that he was in jail; and 3) the prosecutor merely invited the jury to consider the implausibility of one defendant’s claim that the government witnesses were all committing perjury and did not impermissibly vouch for the witnesses. However, defendants’ Hostage Taking Act conviction is reversed where the Act did not apply to an extortion scheme that used brief confinement of a taxi passenger to obtain a somewhat above average taxi fare.

U.S. 2nd Circuit Court of Appeals, December 01, 2009 US v. Garcia, No. 08-1621 Defendant’s money laundering conspiracy guilty plea is vacated and remanded where the record lacked a sufficient factual basis to conclude that defendant participated in the alleged conspiracy with the requisite knowledge of the concealment element of the crime charged. .

U.S. 2nd Circuit Court of Appeals, December 03, 2009 Ljutica v. Holder, No. 07-5638 In an action challenging the Attorney General’s denial of citizenship to plaintiff, summary judgment for defendants is affirmed where plaintiff’s conviction under 18 U.S.C. section 1344 for attempting to execute a fraudulent scheme to obtain money from a bank constituted an “aggravated felony” as defined in 8 U.S.C. section 1101(a)(43)(M)(i) and that conviction for an aggravated felony made one ineligible for naturalization under 8 U.S.C. section 1101(f)(8).

U.S. 2nd Circuit Court of Appeals, December 04, 2009 US v. Labbe, No. 08-0673 Defendant’s sentence for interstate transportation of stolen property is vacated where the district court failed to make findings in support of its denial of a minimal role adjustment. .

U.S. 3rd Circuit Court of Appeals, December 02, 2009 US v. Hoffa, No. 08-3920 District court’s imposition of a 15-month term of imprisonment on each count of bank robbery and attempted robbery to be served concurrently is vacated and remanded for resentencing as the district court, believing it was acting in defendant’s best interests because of his need of medical care, violated section 3582(a) in imposing a sentence of incarceration at the top of the Guidelines range. .

U.S. 4th Circuit Court of Appeals, December 02, 2009 US v. Johnson, No. 06-4391 Defendants’ convictions for conspiracy and other crimes related to narcotic distribution is affirmed where: 1) district court did not abuse its discretion in denying a mistrial when a government witness took the witness stand and refused to testify; 2) prosecutor did not commit improper vouching of witness; 3) a defendant’s claim that the evidence was insufficient to support her conviction is without merit; 4) there is no Confrontation Clause violation where expert witnesses present their own independent judgments, rather than merely transmitting testimonial hearsay, and are then subject to cross-examination; 5) any error in admitting a defendant’s prior conviction for armed robbery for impeachment purposes was harmless, assuming that the district court erred in admitting the convictions; 6) sentence of a defendant is procedurally and substantively reasonable; and 7) a defendant’s request to remand his case for resentencing in light of Amendment 706 to the Sentencing Guideli! nes is denied.

U.S. 4th Circuit Court of Appeals, December 02, 2009 US v. Thompson, No. 08-4994 In a prosecution for possession by a felon of a firearm, district court’s imposition of a 92-month sentence instead of the minimum 15-years’ imprisonment is vacated and remanded as a North Carolina conviction for breaking and entering under North Carolina General Statutes section 14-54(a) is, as a matter of law, a violent felony within the meaning of ACCA.

U.S. 4th Circuit Court of Appeals, December 03, 2009 US v. Dawson, No. 08-4000 District court’s imposition of a 70-months’ sentence on defendant found guilty of conspiracy to distribute crack and powder cocaine is vacated and remanded as the defendant met his burden of establishing plain error in the government’s breach of the plea agreement via its failure to recommend a minor participant reduction at sentencing.

U.S. 4th Circuit Court of Appeals, December 04, 2009 US v. Coleman, No. 08-5038 In a prosecution of defendant for being a felon in possession of a firearm, arising from a consensual search of a bedroom by police and the seizure of a pistol resulting from the search while the police were investigating a break-in and shooting at defendant’s residence, grant of defendant’s motion to suppress the pistol is reversed as, although the district court viewed the evidence through the lens of its later significance, the officers acted reasonably in seizing it based on what they knew at the time.

U.S. 5th Circuit Court of Appeals, December 02, 2009 US v. Sandlin, No. 08-41277 Defendant’s conviction for making false statements on loan applications is affirmed where, if a person makes a false statement that has the capacity to influence a bank, then the specific intent necessary to violate 18 U.S.C. section 1014 may be inferred and the offense is complete. However, defendant’s sentence is vacated where the district court’s use of the “gross receipts” Sentencing Guidelines enhancement was improper because defendant did not derive more than $1,000,000 “as a result of the offense.” ..

U.S. 6th Circuit Court of Appeals, December 01, 2009 Cohen v. Corr. Corp. of America, No. 06-3168 Appellate court’s opinion affirming the district court’s dismissal of plaintiff’s 42 U.S.C. sections 1983, 2000bb, and 2000cc-1 complaint on the ground that plaintiff failed to allege exhaustion of his available administrative remedies prior to filing his complaint is reversed in light of the United States Supreme Court holding in Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910 (2007), that under the Prison Litigation Reform Act, a prisoner is not required to specifically plead or demonstrate exhaustion in his complaint and that exhaustion is not per se inadequate simply because an individual later sued was not named in the grievance.

U.S. 6th Circuit Court of Appeals, December 01, 2009 US v. Martinez, No. 06-3882 Conviction and sentence of an anesthesiologist, who had operated a pain-management clinic, for health care fraud and related crimes is affirmed where: 1) any error in admitting a video of a doctor performing certain medical procedures was harmless given the overwhelming evidence that defendant was not performing medically necessary procedures and that the procedures were not those for which he was billing, and also considering the weak evidence to the contrary; 2) defendant’s claim that admission of the video violated the Confrontation Clause is rejected; 3) there is sufficient evidence to support defendant’s conviction for health care fraud under 18 U.S.C. section 1347; 4) there was sufficient evidence for a jury to conclude that defendant committed mail and wire fraud; 5) there is sufficient evidence to to conclude that defendant proximately caused the deaths of two patients; 6) any error in admitting testimony of an addiction specialist was harmless; and 7) defendant’s se! ntence is procedurally and substantively reasonable.

U.S. 7th Circuit Court of Appeals, December 01, 2009 Thomas v. Cook County Sheriff’s Dep’t, No. 08-2232 In plaintiff’s 42 U.S.C. section 1983 suit against a county, sheriff, and correctional employees, alleging that defendants violated her son’s constitutional rights by failing to respond to his serious medical needs while detained, jury verdict in favor of the plaintiff and award in the amount of $4,450,000 is affirmed for the most part where: 1) the jury had sufficient evidence to impose liability against the county and officers for their deliberate indifference to the detainee’s medical needs; 2) there is insufficient evidence to hold the sheriff liable as the causal connection between the sheriff’s policies and practices and detainee’s death is tenuous in light of the jury’s finding that individual correctional officers deliberately disregarded the detainee’s medical needs; 3) nonetheless, the sheriff’s absence as a liable party does not affect the jury’s compensatory damage award as the parties are jointly and severally liable for the entire award, which measures the amou! nt required to compensate the plaintiff for her indivisible harm, and the sheriff only added an additional source from whom the plaintiff could collect; 4) jury’s damage award for constitutional violations that resulted in death is not excessive; and 5) none of the defendants’ evidentiary challenges warrant reversal.

U.S. 7th Circuit Court of Appeals, December 02, 2009 US v. Kimoto, No. 08-3731 Conviction and sentence of defendant for conspiracy, mail fraud, and wire fraud, arising from fraudulent marketing of defendant’s financial products, is affirmed for the most part where: 1) there is ample evidence in the record to support the jury’s conclusion that defendant had the requisite intent to defraud and that he and another individual formed an agreement to commit fraud; 2) there was no error in denying defendant’s motion to dismiss, motion for a new trial and motion to reconsider as none of the district court’s rulings on the alleged Brady, Youngblood or Jenkins Act violations constituted an abuse of discretion; and 3) district court’s enhancement for the number of victims is remanded because the court’s calculation of the number of victims did not focus on actual loss, and the enhancement affects defendant’s sentencing range.

U.S. 7th Circuit Court of Appeals, December 02, 2009 US v. Singleton, No. 09-1710 Conviction and sentence pursuant to a guilty plea to conspiracy to possess with intent to distribute over five kilograms of cocaine are affirmed where: 1) the indictment contains each of the required elements and was sufficient to notify defendant of what the government intended to prove; 2) district court did not err in denying defendant’s motion to withdraw the guilty plea; and 3) the sentence imposed was reasonable.

U.S. 7th Circuit Court of Appeals, December 04, 2009 Milwaukee Deputy Sheriffs’ Ass’n v. Clarke , No. 08-1515 In a suit brought by two sheriff deputies under 18 U.S.C. section 1983 alleging a violation of the Establishment and Free Exercise Clauses of the First Amendment when the sheriff invited a Christian group to speak at a number of mandatory employee meetings, grant of plaintiffs’ motion for summary judgment on the Establishment Clause claim is affirmed as the religious group’s presentations during mandatory employee gatherings gave, at the least, the appearance of endorsement by the sheriff’s department, and thus, defendants violated the Establishment Clause.

U.S. 7th Circuit Court of Appeals, December 04, 2009 US v. Burnside, No. 08-4135 Defendant’s conviction for possession of a controlled substance while on parole for a cocaine distribution conviction is affirmed where: 1) district court did not err in denying defendant’s motion to suppress as there was probable cause to arrest him for possession of a controlled substance, and as such, the subsequent seizure of crack cocaine from his pants was lawful; 2) district court’s denial of a motion to suppress evidence recovered from the search was proper as the issuing state court judge had a substantial and legally sufficient basis for concluding that probable cause existed to issue the warrant; and 3) the district court did not violate Rule 11(c)(1) during the plea colloquy.

U.S. 8th Circuit Court of Appeals, November 30, 2009 US v. Linderman, No. 09-1044 Defendant’s carjacking and firearm possession sentence is affirmed where: 1) the district court gave adequate consideration to the allegedly mitigating facets of defendant’s personal history and characteristics; and 2) the district court’s statements did not warrant a conclusion that the court was dissatisfied with defendant’s Guidelines range or that it was the basis for his sentence.

U.S. 8th Circuit Court of Appeals, December 01, 2009 US v. Wahlstrom, No. 08-3986 Defendant’s drug and firearm possession sentence is affirmed where: 1) the district court carefully reviewed the testimony of each witness and provided specific reasons for its belief of some and disbelief of others; 2) the Sentencing Guidelines’ obstruction of justice enhancement applied where a defendant targeted a prosecutor or his family; and 3) the district court’s refusal to hear from witnesses who attended the sentencing hearing to testify on defendant’s behalf did not show that the court gave inadequate consideration to the 18 U.S.C. section 3553(a) factors.

U.S. 8th Circuit Court of Appeals, December 01, 2009 US v. Wise, No. 09-1141 Defendant’s conspiracy to manufacture marijuana conviction is affirmed where: 1) there was no two-part interrogation for Miranda purposes because, prior to the recitation of the Miranda warnings, the officers made no deliberate or calculated effort to elicit a confession from defendant, and defendant made no incriminating statements; 2) following a “knock and talk,” defendant told the detectives that he would prefer to talk inside his apartment, and he voluntarily consented to the detectives’ entrance into the apartment; and 3) there was sufficient evidence to convict defendant of the conspiracy.

U.S. 8th Circuit Court of Appeals, December 01, 2009 US v. Salem, No. 09-1249 Defendant’s sentence for knowingly using unauthorized access devices, more specifically, for using fraudulent bar code labels to obtain goods at Wal-Mart stores at lower prices, is vacated where the district court erred in increasing defendant’s offense level for production of an unauthorized access device under U.S.S.G. section 2B1.1(b)(10)(B)(i) because no evidence was presented that he produced the fraudulent bar code labels used in his scheme.

U.S. 8th Circuit Court of Appeals, December 03, 2009 US v. Sawyer, No. 09-1367 Defendant’s bank robbery conviction and sentence are affirmed where: 1) police had reasonable articulable suspicion to detain him; 2) it was defendant who initiated the interrogation which led to his confession after being confronted with evidence linking him to the robbery; and 3) defendant’s prior state conviction for attempted robbery constituted a crime of violence, for career offender purposes.

U.S. 9th Circuit Court of Appeals, November 30, 2009 US v. Berger, No. 08-50171 Defendant’s bank and securities fraud sentence is vacated where, although the Dura Pharmaceuticals loss causation standard did not apply to criminal securities fraud, the district court applied an erroneous standard of proof in determining total loss for sentencing enhancement purposes.

U.S. 9th Circuit Court of Appeals, December 01, 2009 US v. Truong, No. 08-10446 Defendant’s sentence for possessing unauthorized access devices is affirmed where: 1) nothing in either the plain language of 18 U.S.C. section 1029 or the case law required that an “access device” contain information identifying a particular person as its owner; and 2) the district court sufficiently explained that the Guidelines did not account for defendant’s particular type of recidivism.

U.S. 9th Circuit Court of Appeals, December 03, 2009 US v. Thompson, No. 07-50351 Defendant’s drug and firearm possession convictions are affirmed where: 1) the district court properly determined whether defendant lacked the mental capacity to conduct trial proceedings; and 2) the district court’s decision to deny defendant’s request for a continuance was more than fair and reasonable.

U.S. 9th Circuit Court of Appeals, December 03, 2009 US v. Kuo, No. 08-10314 The district court’s restitution order imposed upon defendants for conspiracy to violate civil rights relating to a prostitution scheme is vacated where restitution for “lost income” under 18 U.S.C. section 3663 was not the same as disgorgement of all of defendants’ ill-gotten gains from the victims’ forced prostitution.

U.S. 9th Circuit Court of Appeals, December 03, 2009 Bradway v. Cate, No. 08-55296 In a murder prosecution, denial of petitioner’s habeas petition is affirmed where the California special circumstances statute that enhanced petitioner’s first degree murder sentence to life without the possibility of parole (specifically, the lying in wait special circumstance) was not unconstitutionally vague under the Fourteenth Amendment.

U.S. 9th Circuit Court of Appeals, December 04, 2009 US v. Curtin, No. 08-10394 Defendant’s conviction and sentence for travel with intent to engage in a sexual act with a juvenile and coercion and enticement are affirmed where: 1) the probative value of the introduction at trial of erotic stories on defendant’s PDA outweighed any unfair prejudice; and 2) defendant’s sentence, with a lifetime of supervised release, was not designed to punish him for exercising a protected statutory or constitutional right.

U.S. 11th Circuit Court of Appeals, December 02, 2009 Mann v. Taser Int’l., Inc., No. 08-16951 In a 42 U.S.C. section 1983 and wrongful death action by the estate of a decedent against police deputies and the manufacturer of a Taser device used by police in apprehending decedent, summary judgment for defendants is affirmed where: 1) plaintiffs’ statement of material facts accompanying their opposition to defendants’ motion for summary judgment was convoluted, argumentative and nonresponsive, and thus the district court properly excluded it; 2) plaintiffs provided no admissible evidence to support their claim that use of the Taser caused the decedent’s death; and 3) plaintiffs provided no evidence that defendants-deputies used excessive force or were deliberately indifferent to a serious medical need.

U.S. D.C. Circuit Court of Appeals, December 01, 2009 US v. Robinson, No. 07-3127 Defendants’ drug and racketeering conspiracy sentences are affirmed where 1) despite the district court’s occasional imprecision, it plainly accepted defendants’ guilty pleas and left them “no reasonable basis” for thinking otherwise; 2) the district court did not impermissibly intrude on the plea-bargaining process; and 3) the district court was not required to hold an evidentiary hearing on the plea agreement.

U.S. D.C. Circuit Court of Appeals, December 04, 2009 Ord v. Dist. of Columbia, No. 08-7094 In a 42 U.S.C. section 1983 action claiming that the District of Columbia lacked probable cause to secure an arrest warrant against plaintiff for allegedly violating firearms laws, dismissal of the complaint for lack of standing is reversed where the warrant for plaintiff’s arrest revealed that the district had already targeted him for prosecution, and its concession signaled that it expected to prosecute him in the future.

California Appellate Districts, November 30, 2009 People v. Dotson, No. C060310 Defendant’s conviction for committing a criminal offense while released on bail is reversed and remanded where, although the trial court properly denied defendant’s motion to suppress evidence obtained as a result of a vehicle stop, it is unclear from the record whether the prosecution was commenced within applicable limitations periods for the crimes.

California Appellate Districts, November 30, 2009 People v. Zarazua, No. C062268 People’s motion to vacate and reconsider an order granting defendant’s motion for constructive filing of an appeal is denied as, when a notice of appeal in a criminal case is received by the trial court after the jurisdictional deadline to perfect the appeal, the appellate court may deem the notice of appeal to have been constructively filed in a timely manner if, prior to the deadline, the defendant expressly relied on his trial counsel to file it, but trial counsel neglected to do so.

California Appellate Districts, December 02, 2009 People v. Gray, No. C056083 A deputy clerk assigned to a courtroom is part of the clerk’s office; thus, absent a valid local rule of court to the contrary, a notice of appeal can be filed with a courtroom clerk, not just with the appeals unit of the clerk’s office. In habeas proceedings arising from a conviction for second-degree murder and in response to the state supreme court’s order to show cause, the court of appeals issues a writ of habeas corpus giving petitioner the opportunity, within 30 days after the finality of the opinion, to file in the clerk’s office of the Sacramento County Superior Court, a notice of appeal from a 2007 judgment.

California Appellate Districts, December 02, 2009 People v. Fulton, No. C058389 Defendant’s conviction for evading an officer with willful or wanton disregard and driving on a suspended license is affirmed as the defendant needed a certificate of probable cause to challenge the validity of his negotiated plea to the prior prison term allegation.

California Appellate Districts, December 02, 2009 In re Gomez, No. G042807 Petition for a writ of supersedeas by the California Department of Corrections and Rehabilitation, following grant of a petition for habeas relief directing the Department to grant defendant additional post-sentence conduct credit and to recalculate defendant’s release date, is denied as Penal Code section 2933.1(a) has no effect when the only violent felony conviction at issue is stayed pursuant to section 654.

California Appellate Districts, December 03, 2009 In re J.H., No. B212635 Conviction of defendant-minor for arson after defendant and his friends lit a firecracker in a wooded area and caused a fire that burned five acres of forest land is affirmed but modified where: 1) the juvenile court misapplied the principles stated in Atkins and there was no evidence that the act that caused the fire was done with the requisite mental state, i.e., maliciously; and 2) the trial court should have found the minor guilty of the lesser included offense of unlawfully causing a fire.