Findlaw Case Summaries: Criminal Law and Procedure 31

December-14-18, 2009.

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U.S. 1st Circuit Court of Appeals, December 14, 2009 US v. Giggy, No. 09-1542 In a case involving the sentence of a defendant for maliciously destroying by fire a building with two prior convictions for non-dwelling burglary, the government’s appeal of defendant’s sentence requesting that the Sentencing Commission be asked to clarify how courts ought to apply the Sentencing Guidelines to non-dwelling burglary is dismissed because there is no specification of error by the government directed to the district court’s reasoning or findings, and the government’s alternative request that the court consult the Commission is unpromising.

U.S. 1st Circuit Court of Appeals, December 16, 2009 US v. Zapata, No. 08-1554 A sentence of the statutory maximum imposed following defendant’s conviction for unlawful use of a communication facility in connection with a drug trafficking offense is affirmed where: 1) the sentence fell within constitutional limits as it did not exceed the statutory maximum set by Congress; 2) district court’s drug quantity estimate represents a reasonable view of the record and is therefore not clearly erroneous; and 3) defendant’s sentence was procedurally and substantively reasonable.

U.S. 1st Circuit Court of Appeals, December 17, 2009 Mosher v. Nelson, No. 09-1636 In plaintiffs’ civil rights action brought following the death of their son against a facility operated by the Massachusetts Department of Corrections that serves as both a prison and a mental hospital, its superintendent, and others, summary judgment for defendants is affirmed where: 1) defendant-superintendent is entitled to qualified immunity as a reasonable official in defendant’s place, given the circumstances and the legal standard, could have believed that allowing a certain practice to continue would not lead to events that would violate a patient’s rights; 2) commissioner is also entitled to qualified immunity as a reasonable official in his position could have reasonably believed that staffing that met the hospital’s recommendations was sufficient to avoid constitutional violations; and 3) the district court properly dismissed the plaintiffs’ state law claims as barred by the Eleventh Amendment
U.S. 2nd Circuit Court of Appeals, December 15, 2009 Richard S. v. Carpinello, No. 08-4197 In a habeas petition seeking release from involuntary confinement in a psychiatric hospital, the denial of the petition is affirmed where the involuntary commitment standard in Kansas v. Crane, 534 U.S. 407 (2002), applies to insanity acquittees, but the New York courts did not unreasonably conclude that petitioner’s continued involuntary confinement met the requirements of the due process clause.

U.S. 2nd Circuit Court of Appeals, December 16, 2009 US v. Hester, No. 08-4665 Defendant’s conviction for traveling in interstate commerce and failing to register or update his sex offender registration in violation of the Sex Offender Registration and Notification Act (SORNA) is affirmed where the fact that defendant had no actual notice of SORNA was not sufficient to render his prosecution pursuant to that statute a violation of his due process rights.

U.S. 3rd Circuit Court of Appeals, December 14, 2009 US v. Battis , No. 08-2949 In defendant’s challenge to his conviction for attempted homicide and related offenses arising from a fight at a bar, judgment of the district court concluding that there was no constitutional violation is reversed with instructions to dismiss the indictment and vacate the conviction as, weighing the four Barker factors anew, defendant’s right to a speedy trial was violated when forty-five months elapsed between his indictment and trial. Prejudice will be presumed (rebuttably) when there is a forty-five-month delay in bringing a defendant to trial, even when it could be argued that only thirty-five months of that delay is attributable to the government.

U.S. 4th Circuit Court of Appeals, December 16, 2009 Walker v. Kelly, No. 08-11 In habeas proceedings, defendant’s conviction and death sentence are affirmed where: 1) the district court properly conducted an evidentiary hearing on the Brady issue and rendered a decision on the merits; and 2) the district court properly determined that, even if defendant were able to show that the evidence at issue was withheld and that it was favorable to him, the alleged Brady material does not undermine confidence in the guilty verdict.

U.S. 4th Circuit Court of Appeals, December 16, 2009 US v. Myers , No. 08-4343 Conviction of defendant for multiple drug offenses and sentence of 360-months’ imprisonment is affirmed where: 1) the district court did not abuse its discretion in excluding the reverse 404(b) evidence as it was not of high probative value; and 2) defendant’s sentence was procedurally and substantively reasonable. ..

U.S. 4th Circuit Court of Appeals, December 17, 2009 US v. Griffin, No. 08-4045 Defendant’s conviction for being a felon in possession of a firearm is affirmed where: 1) the circumstances of a face-to-face encounter between an informant and an officer provided sufficient reasonable suspicion to justify the Terry stop of defendant’s vehicle; and 2) given the circumstances confronting the officers, the brief protective search of defendant’s vehicle was proper.

U.S. 4th Circuit Court of Appeals, December 17, 2009 Bostick v. FNU Stevenson, No. 08-6331 In habeas proceedings involving claims of ineffective assistance of counsel, summary judgment against petitioner is reversed and remanded where: 1) the state procedural ground under which the district court found his claim to have been procedurally defaulted was not consistently applied at the time of his state proceedings; and 2) the performance of defendant’s trial counsel was constitutionally deficient because counsel did not consult with defendant about an appeal following his conviction.

U.S. 4th Circuit Court of Appeals, December 18, 2009 US v. Hawkins, No. 08-4576 District court’s denial of a motion to sever carjacking charges from a felon possession charge by a defendant convicted of crimes related to carjacking and a subsequent arrest as a felon in possession of a firearm is affirmed in part, vacated in part and remanded where: 1) the district court erred in allowing joinder of the carjacking charges with the felon in possession charge because the charges are not of a same or similar character; 2) the misjoinder of the charges affected defendant’s substantial rights because the misjoinder had substantial and injurious effect or influence in determining the jury’s verdict; 3) defendant’s conviction for being a felon in possession of a firearm is affirmed, but his sentence on this count is vacated as it was determined, in part, based on his convictions of the carjacking related crimes; 4) and defendant’s conviction for carjacking related crimes is vacated.

U.S. 5th Circuit Court of Appeals, December 17, 2009 US v. $500,000 in US Currency, No. 08-20579 In an asset forfeiture proceeding in which a company claiming to be the rightful owner of the funds at issue objected and filed a claim pursuant to 18 U.S.C. section 983, dismissal of the claim for lack of standing is reversed where: 1) the pleadings alleged that claimant owned the actual seized dollars; and 2) the evidence claimant attached to its response to the government’s motion to dismiss supported the pleadings’ allegations.

U.S. 5th Circuit Court of Appeals, December 17, 2009 Hoog-Watson v. Guadalupe Cty., No. 08-50077 In a 42 U.S.C. section 1983 action claiming that defendant-officers conducted a warrantless search of plaintiff’s property and seized her animals, summary judgment for defendants is reversed where: 1) plaintiff’s evidence opposing summary judgment created a genuine question of fact with respect to the animal cruelty proceedings’ criminal or civil nature; and 2) the district court erred when it concluded that defendant-prosecutor’s absolute prosecutorial immunity shielded her from all of plaintiff’s claims.

U.S. 6th Circuit Court of Appeals, December 15, 2009 US v. Archibald, No. 08-5703 District court’s order denying defendant’s motion to suppress the firearm evidence obtained during a search of his residence conducted pursuant to a state search warrant for probation violations is reversed and remanded where: 1) the district court erred in holding that the protective sweep of defendant’s apartment comported with the Fourth Amendment; 2) the government failed to present its protective sweep argument under the first and less stringent Buie test; and 3) even had it been preserved, a theory that the protective sweep occurred incident to an in-house arrest and involved an area immediately adjoining the place of defendant’s arrest fails on its merits.

U.S. 6th Circuit Court of Appeals, December 15, 2009 Davis v. Booker, No. 09-1140 District court’s issuance of the writ of habeas corpus for a defendant claiming that the key witness in his murder trial was the shooter who killed the victim is reversed where: 1) the only significant evidence in the record showing what an uncalled witness would have testified, if produced, is a letter that actually implicates defendant for the shooting, not the key witness who testified against him; 2) it is clear from the record that defendant was not prejudiced by his lawyer’s failure to locate and call the uncalled witness; and 3) the prosecutor’s statements did not constitute improper vouching because the key witness’s charge was in the record and his personal interest in the case was obvious to the jury.

U.S. 6th Circuit Court of Appeals, December 16, 2009 US v. Novales, No. 07-3663 District court’s imposition of 100 months’ imprisonment on a defendant convicted pursuant to a guilty plea to conspiracy to possess with intent to distribute cocaine is reversed and remanded as the district court committed a clear procedural error in failing to calculate defendant’s appropriate Guidelines range, and as such, the sentencing hearing was procedurally unreasonable under Gall.

U.S. 6th Circuit Court of Appeals, December 16, 2009 Arias v. Hudson, No. 08-4513 An order conditionally granting habeas relief to a defendant convicted of rape and related crimes and sentenced to an indeterminate sentence with a minimum term of thirty years and a maximum term of life is reversed as the sentence does not violate Blakely because the judicial fact-finding at issue merely increased his minimum sentence without affecting his maximum term of imprisonment, and thus, defendant’s sentence does not violate the Sixth Amendment.

U.S. 6th Circuit Court of Appeals, December 18, 2009 Earhart v. Konteh, No. 07-4127 Denial of defendant’s petition for habeas relief from a conviction of rape of a child under thirteen years of age and related crimes is reversed and a conditional writ as to the indictment charging defendant with gross sexual imposition against a minor victim is granted as the admission of a videotape deposition without a proper finding that the witness was constitutionally unavailable violated defendant’s clearly established right to confrontation under the Sixth Amendment. However, district court’s judgment as to the remainder of the petition is affirmed as defendant is not entitled to relief on the remainder of his claims.

U.S. 7th Circuit Court of Appeals, December 14, 2009 US v. Kirkpatrick, No. 09-2382 Sentence of 108 months’ imprisonment for being a felon in possession of a firearm, more than double the top of the Guidelines’ range, is vacated and remanded as the sentence appears to be chosen arbitrarily, and although the Guidelines are no longer binding, a judge still must start by using the Guidelines to provide a benchmark that curtails unwarranted disparities.

U.S. 7th Circuit Court of Appeals, December 16, 2009 US v, Villalpando, No. 09-1263 Defendant’s conviction and sentence for possession and intent to distribute cocaine is affirmed as the incriminating statements defendant gave to police after his arrest were voluntary because defendant’s choice to reveal the cocaine in his safe was rationally made within the context of negotiations and not the result of false promises made by the police.

U.S. 7th Circuit Court of Appeals, December 17, 2009 US v. Corner, No. 08-1033 Sentence of 188 months’ imprisonment on a defendant as a career offender for possessing with intent to distribute cocaine base is affirmed where: 1) defendant was sentenced properly as a career offender as criminal trespass to a dwelling is a crime of violence; and 2) defendant, as a career offender, is not entitled to a sentencing remand because career offenders’ base offense levels track the statutory maximums of their convictions.

U.S. 8th Circuit Court of Appeals, December 16, 2009 McGehee v. Norris, No. 08-1182 In a capital habeas matter, grant of petitioner’s habeas petition is reversed where: 1) to the extent that certain excluded testimony regarding petitioner’s family’s abuse of a dog was offered to show a pattern of physical violence, it was contradicted by other evidence showing that petitioner himself was not abused; 2) it was not unreasonable for the Arkansas Supreme Court to conclude that petitioner was not prejudiced by the trial judge’s decision to sustain an objection to a witness’s testimony about the abuse of petitioner’s sister; and 3) the absence of any prejudice was particularly apparent given the horrific nature of the crime.

U.S. 8th Circuit Court of Appeals, December 16, 2009 Haynes v. Stephenson, No. 08-3766 In a 42 U.S.C. section 1983 action by a prisoner alleging that he was unlawfully disciplined for filing a grievance, judgment for plaintiff is affirmed where: 1) the filing of a disciplinary charge was actionable under section 1983 if done in retaliation for the inmate’s having filed a grievance pursuant to established procedures; 2) the district court did not clearly err in finding that defendant would not have filed the disciplinary report at issue but for a retaliatory motive; and 3) because defendant’s actions resulted in only nominal compensatory damages, the district court did not err in concluding that the high ratio of punitive to compensatory damages awarded did not offend due process.

U.S. 8th Circuit Court of Appeals, December 16, 2009 US v. Foreman, No. 09-1345 Defendant’s social security benefits fraud conviction is affirmed where: 1) the district court properly admitted defendant’s loan application and letter into evidence as business records under Fed. R. Evid. 803(6); and 2) even assuming, without deciding, that the government’s questions on cross-examination were plainly improper, the errors were not so prejudicial as to affect the outcome of the trial.

U.S. 8th Circuit Court of Appeals, December 16, 2009 Burns v. Prudden, No. 09-1704 In a child molestation prosecution, dismissal of petitioner’s habeas petition as untimely is reversed where the Eighth Circuit’s intervening decision in Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008), overruling a previous decision regarding the calculation of the statute of limitations for habeas petitions from Missouri, satisfied the “extraordinary circumstance” requirement for equitable tolling.

U.S. 8th Circuit Court of Appeals, December 17, 2009 US v. Brewer, No. 08-3079 Defendant’s child pornography conviction is affirmed where: 1) a third party’s consent to a search was valid so long as there was no evidence that police had removed defendant from the entrance of his house for the sake of avoiding a possible objection; 2) information in warrant applications supported the belief that child pornography would be found in defendant’s home; and 3) the warrant was timely executed.

U.S. 8th Circuit Court of Appeals, December 18, 2009 US v. Davis, No. 08-3692 Defendant’s conviction for willful failure to pay his child support obligations is affirmed where: 1) if defendant’s child support obligation was more than he could pay, his remedy was in the Iowa district court where he could seek modification of his support obligation; and 2) there was sufficient evidence for the jury to find that defendant was capable of paying more child support than he did.

U.S. 8th Circuit Court of Appeals, December 18, 2009 Akins v. Epperly, No. 08-3753 In a 42 U.S.C. section 1983 action claiming that defendant-officers inadequately investigated an incident in which plaintiff was shot by another officer, denial of defendants’ summary judgment motion is reversed where, although plaintiff highlighted multiple errors and inconsistencies in defendants’ investigation, he failed to show conscience-shocking reckless or intentional conduct.

U.S. 9th Circuit Court of Appeals, December 17, 2009 US v. Bays, No. 09-30124 Defendant’s drug and firearm possession sentence is affirmed where a pardon defendant received for a prior state offense did not constitute an expungement and the district court correctly considered defendant’s prior state convictions when calculating defendant’s criminal history category. .

U.S. 10th Circuit Court of Appeals, December 14, 2009 Herrera v. City of Albuquerque, No. 09-2010 In a 42 U.S.C. section 1983 action alleging a false arrest, summary judgment for defendants is affirmed where an officer in defendant’s position could have reasonably concluded that probable cause existed to arrest plaintiff for violating a New Mexico child endangerment statute.

U.S. 10th Circuit Court of Appeals, December 16, 2009 Vasquez v. Starks, No. 08-3121 In a 42 U.S.C. section 1983 action alleging that, in two separate incidents, Kansas state authorities falsely arrested plaintiff and filed falsified pre-trial diversion agreements containing his forged signatures, dismissal of the action is reversed where: 1) there was no related underlying conviction that could be invalidated by plaintiff’s section 1983 actions and thus the action was not barred by Heck v. Humphrey, 512 U.S. 477 (1994), and 2) a district court may not sua sponte dismiss a prisoner’s section 1983 action on the basis of the statute of limitations unless it is clear from the face of the complaint that there are no meritorious tolling issues, or the court has provided the plaintiff notice and an opportunity to be heard on the issue.

U.S. 10th Circuit Court of Appeals, December 16, 2009 US v. Shipp, No. 08-5157 In a firearm possession prosecution, a denial of petitioner’s habeas petition is reversed where Chambers v. United States, 129 S. Ct. 687 (2009), applies retroactively on collateral review to convictions that were final at the time the case was decided by the Supreme Court.

U.S. 10th Circuit Court of Appeals, December 18, 2009 US v. Davis, No. 08-6266 Defendant’s firearm possession conviction is affirmed where the good-faith exception to the exclusionary rule applied when an officer acted in reasonable reliance upon the circuit’s settled case law that was later made unconstitutional by the Supreme Court.

U.S. 11th Circuit Court of Appeals, December 15, 2009 US v. Griffey, No. 09-11696 Defendant’s conviction for failure to register as a sex offender as required by the Sex Offender Registration and Notification Act (SORNA) is affirmed where: 1) because Alabama had not implemented SORNA’s requirements into its registry program during the time period charged in the indictment, Alabama did not have a duty to notify defendant of his duty to register; and 2) 18 U.S.C. section 2250(a) did not require that defendant specifically know that he was violating SORNA, but only that he “knowingly” violated a legal registration requirement upon relocating.

U.S. 11th Circuit Court of Appeals, December 17, 2009 US v. English, No. 09-12788 Defendant’s sentence for violating the terms of his supervised release is affirmed where, although defendant already served Florida’s statutory maximum of five years in prison, the Assimilative Crimes Act’s “like punishment” clause did not prohibit the court from sentencing him to an additional 24 months of imprisonment.

California Appellate Districts, December 14, 2009 People v. Copass, No. B211281 Conviction of defendant for evading a police officer with a willful disregard for the safety of others and driving with a suspended or revoked license is affirmed where, although under the relevant statutes an officer must activate a red light when in pursuit of a traffic offender who attempts to flee, the officer may deactivate his red light during the period he momentarily loses sight of the offender.

California Appellate Districts, December 17, 2009 People v. Saleem, No. B204646 Defendant’s conviction for possession of body armor by a person previously convicted of a violent felony, with prior serious felony and prior prison term findings, is reversed where: 1) Penal Code section 12370 must be construed to contain a knowledge element and the prosecution had to prove that defendant knew, or reasonably should have known, the body vest in his possession had characteristics making it illegal under section 12370; and 2) section 12370 is unconstitutionally void for vagueness because it does not provide fair notice of which protective body vests constitute the body armor made illegal by the statute.

California Appellate Districts, December 17, 2009 People v. Branner, No. C059288 Conviction of defendant for possession of drugs and a firearm is affirmed as the good faith exception to the exclusionary rule applies and the evidence obtained by virtue of a search incident to arrest may not be suppressed despite the retroactive applicability of Gant to this case.

California Appellate Districts, December 17, 2009 R.R. v. Sup. Ct. , No. C060573 A juvenile’s petition for a writ of mandate to compel the juvenile court to vacate its order refusing to apply ICWA is granted as, because ICWA sets the minimum standards for the protection of Indian children with respect to their tribal relationships, California law imposing a higher standard is not inconsistent with the purpose of the federal law, and is not preempted.

California Appellate Districts, December 17, 2009 People v. Hernandez, No. D053807 Trial court’s sentencing of a defendant to 50 years to life, plus a consecutive 8-year term after the jury convicted him of sodomy and rape and found true the special allegations that he committed the crimes during the commission of a burglary with the intent to commit a sex crime and personally used a dangerous and deadly weapon is affirmed where: 1) it was unnecessary for the court to submit the question of reasonable belief to the jury as there is no substantial evidence in the case to support defendant’s argument that he reasonably relied on what he claimed to be the victim’s equivocal conduct to form the basis of his mistaken belief that she consented to the sexual assault; and 2) the burglary is the predicate act or aggravating circumstance that triggered the life sentence under section 667.61(a)(d)(4), and, under well-established legal principles, the jury was not required to unanimously agree on the specific sex offense or offenses that were the object of his intent ! when he entered the victim’s residence. ..

California Appellate Districts, December 17, 2009 Derick B. Sup. Ct., No. D055446 A juvenile defendant’s petition for a writ of prohibition to bar the juvenile court from imposing a Fourth Amendment waiver condition is granted and the condition vacated as a juvenile court does not have the authority to impose a Fourth Amendment waiver as a condition of informal supervision under Welfare and Inst. Code sections 654 and 654.2.