Criminal Law Library Blog
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June 21-25, 2010.
U.S. Supreme Court, June 21, 2010 Holder v. Humanitarian Law Project, No. 08–1498 In a constitutional challenge to 18 U.S.C. section 2339B(a)(1), which prohibited knowingly providing material support or resources to a foreign terrorist organization, the Ninth Circuit’s affirmance of partial judgment for plaintiffs is reversed in part where the material support statute was constitutional as applied to the particular forms of support that plaintiffs sought to provide to foreign terrorist organizations. .
U.S. Supreme Court, June 24, 2010 Skilling v. US, No. 08–1394 The Fifth Circuit’s affirmance of defendant Jeffrey Skilling’s honest-services fraud conviction is affirmed in part where pretrial publicity and community prejudice did not prevent Skilling from obtaining a fair trial, and he did not establish that a presumption of juror prejudice arose or that actual bias infected the jury that tried him. However, the judgment is vacated in part where 18 U.S.C. section 1346, which proscribes fraudulent deprivations of “the intangible right of honest services,” was properly confined to cover only bribery and kickback schemes, and Skilling’s alleged misconduct entailed no bribe or kickback. .
U.S. Supreme Court, June 24, 2010 Black v. US, No. 08–876 The Seventh Circuit’s affirmance of defendants’ honest-services mail fraud convictions is vacated where: 1) per the ruling today in Skilling v. US, the honest-services component of the federal mail-fraud statute, 18 U.S.C. section 1346, criminalizes only schemes to defraud that involved bribes or kickbacks, and that holding renders the honest-services instructions given in this case incorrect; and 2) by properly objecting to the honest-services jury instructions at trial, defendants secured their right to challenge those instructions on appeal, and they did not forfeit that right by declining to acquiesce in the government-proposed special-verdict forms. Read more…
U.S. Supreme Court, June 24, 2010 Magwood v. Patterson, No. 09–158 In a capital habeas matter, the Eleventh Circuit’s reversal of the grant of petitioner’s petition is reversed where, because petitioner’s habeas application challenged a new judgment for the first time, it was not “second or succcessive” under 28 U.S.C. section 2244(b).
U.S. 1st Circuit Court of Appeals, June 23, 2010 US v. Manon, No. 08-1826 In a prosecution of defendant for drug related crimes, district court’s denial of defendant’s motion for a new trial is affirmed where: 1) this is not a case in which defense counsel’s performance was “tantamount to non-representation” entitling defendant to Cronic’s presumed prejudice standard; and 2) defendant cannot show a probability that, but for counsel’s chosen strategy, the result of the proceeding would have been different.
U.S. 1st Circuit Court of Appeals, June 23, 2010 US v. Gonzalez, No. 08-2578 In a prosecution of defendant for conspiring to distribute and possessing with the intent to distribute cocaine and marijuana, district court’s denial of a motion to suppress is affirmed where: 1) the test is not whether the individual actually lived in the apartment but whether she apparently had sufficient authority to consent to its search; 2) there was probable cause to arrest defendant; 3) there was sufficient evidence to support the search warrant of his vehicle; 4) district court clearly did not err by crediting a witness’ testimony over defendant’s; and 5) the district court did not err in imposing a two-level sentencing enhancement for obstruction of justice after finding defendant committed perjury at the suppression hearing.
U.S. 2nd Circuit Court of Appeals, June 22, 2010 Amore v. Novarro, No. 08-3150 In a 42 U.S.C. section 1983 action claiming a false arrest, a denial of summary judgment based on qualified immunity is reversed where the district court erred in deciding that, despite the fact that a state loitering statute was still widely published as though it remained valid, it would have been clear to a reasonable officer in defendant’s position that making the arrest was unlawful.
U.S. 2nd Circuit Court of Appeals, June 24, 2010 Brown v. Kelly, No. 07-3356 In a class action by persons allegedly arrested pursuant to an unconstitutional New York anti-begging statute, the district court’s class certification order is affirmed in part where the citywide plaintiff class met the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3). However, the order is reversed in part where the district court erred in certifying a statewide defendant class because the defendant class representatives did not meet the adequacy and typicality requirements of Federal Rule of Civil Procedure 23(a), and the district court also erred in certifying a statewide plaintiff class because the certification of this class was contingent on the bilateral certification of both a statewide plaintiff and a statewide defendant class.
U.S. 3rd Circuit Court of Appeals, June 22, 2010 Sides v. Cherry , No. 08-1982 In a former inmate’s 42 U.S.C. section 1983 suit against various prison officials, jury verdict in favor of the defendants is affirmed where: 1) requiring a party in a civil trial to appear in shackles may well deprive him of due process unless the restraints are necessary; and 2) even if the district court erred in ordering that defendant be shackled during trial, that error was harmless.
U.S. 4th Circuit Court of Appeals, June 24, 2010 US v. Jackson, No. 09-4753 District court’s denial of defendant’s motion to dismiss his indictment for making false statements on “a matter within the jurisdiction of the executive, legislative, or judicial branch of the Government,” in violation of 18 U.S.C. section 1001, is affirmed as, defendant’s false statements on his time-sheets, which were transmitted to the prime contractor, and from the prime contractor to the National Security Agency (NSA), and ultimately paid by the NSA, are matters within the jurisdiction of the executive branch under section 1001.
U.S. 5th Circuit Court of Appeals, June 21, 2010 US v. Velasquez-Torres, No. 09-40646 Defendant’s sentence for illegal reentry by a deported alien is affirmed where, having admitted the fact of his deportation as stated in the presentence report, defendant could not argue that the district court improperly relied on that deportation.
U.S. 5th Circuit Court of Appeals, June 21, 2010 Balentine v. Thaler, No. 09-70026 In a capital habeas petitioner’s appeal from a denial of his motion to set aside a judgment that a year earlier had denied him habeas relief, the order is vacated where: 1) petitioner’s application stated a Sixth Amendment ineffective assistance of counsel claim, and the Fed. R. Crim. P. 60(b) motion did not present a new habeas claim barred by the Antiterrorism and Effective Death Penalty Act; 2) the Texas Court of Criminal Appeals’ ruling was not clearly based on an adequate state ground independent of the merits; and 3) the equities for Rule 60(b)(6) relief were compelling when the failure to investigate and present available mitigation evidence had already been found in the Section 2254 proceedings to be a substantial issue.
U.S. 5th Circuit Court of Appeals, June 22, 2010 Terry v. Hubert, No. 09-30559 In an action brought by a former inmate detained (for about 7 months) following Hurricane Katrina alleging violations of plaintiff’s First Amendment right to access the courts and Fourteenth Amendment right to due process, a denial of summary judgment based on qualified immunity is reversed where the undisputed evidence showed that defendant-warden neither violated plaintiff’s right of access to the courts nor violated any clearly established law in connection with the detention.
U.S. 5th Circuit Court of Appeals, June 25, 2010 US v. Williams, No. 07-20689 In a case involving a defendant’s transport of 74 unlawful aliens, and the death of 19 of them after he left the aliens locked in the trailer of his tractor–trailer without activating the trailer’s air conditioning unit, defendant’s murder convictions are affirmed where: 1) the Government’s articulated reasons for striking a veniremember were supported by the voir dire transcripts; and 2) it was not clear error for the district court to include defendant’s first trip, during which he transported approximately 60 unlawful aliens, as part of the relevant conduct. However, his sentence is vacated where the district court erred in its definition of “act of violence” under the Federal Death Penalty Act and, under the correct definition, the evidence at trial cannot support a finding that the requisite threshold intent was met.
U.S. 5th Circuit Court of Appeals, June 25, 2010 Woodfox v. Cain, No. 08-30958 In the state’s appeal from a grant of petitioner’s habeas petition in a murder prosecution, the order is reversed where: 1) petitioner failed to exhaust his Confrontation Clause claim in state court; 2) there was no indication in the state court adjudication that suggested a reliance on any procedural vehicle rather than the merits to deny relief; 3) it was not unreasonable to conclude that defense counsel did not render constitutionally deficient performance by failing to pursue a confrontation objection; and 4) the absence of a fingerprint expert did not cause petitioner prejudice that warrants habeas relief.
U.S. 5th Circuit Court of Appeals, June 25, 2010 Bailey v. Cain, No. 08-31222 In a murder prosecution, petitioner’s appeal of the denial of his habeas petition is dismissed and the denial of petitioner’s Fed. R. Crim. P. 60 motion is affirmed where: 1) omitted from petitioner’s motion for a certificate of appealability was a specific reference to the judgment or order from which appeal was taken; and 2) petitioner made no attempt to show that he could not have obtained a transcription sooner if it were necessary to make his case before the district court.
U.S. 5th Circuit Court of Appeals, June 25, 2010 Dale v. Holder, No. 08-60661 In a petition for review of a decision by the Board of Immigration Appeals (BIA) upholding petitioner’s order of removal under 8 U.S.C. section 1101(a)(43)(F) for being convicted of an aggravated felony, the petition is granted where: 1) although the argument petitioner presented to the BIA was not identical to that which he raised in his petition for review, the arguments were sufficiently related to establish that he presented his ground for relief to the administrative agency in the first instance; and 2) the BIA erred as a matter of law in concluding that petitioner could not legally plead guilty to an attempted violation of N.Y. Penal Law 120.10(3) or (4).
U.S. 6th Circuit Court of Appeals, June 22, 2010 Miller v. Stovall, No. 08-2267 District court’s conditional grant of a writ of habeas corpus to a defendant serving a life sentence for second-degree murder and conspiracy to commit first-degree murder of her husband is affirmed as defendant’s lover’s suicide note, implicating defendant in the crime, was testimonial under Crawford and its admission violated the Confrontation Clause, and the State has waived the harmless-error argument.
U.S. 6th Circuit Court of Appeals, June 22, 2010 US v. Christman, No. 08-4474 District court’s re-sentencing of defendant, convicted of possessing child pornography, to five days in prison and fifteen years of supervised release, from his original sentence of 57 months in prison, is vacated and remanded where: 1) the district court abused its discretion in weighing several factors so heavily in favor of mitigation; 2) the sentence was substantively unreasonable for failing to provide enough reasoning of the section 3553(a) factors to provide for meaningful appellate review; 3) the complete lack of explanation for the drastic change in the sentence is unreasonable; and 4) the case is to be assigned to a different judge for re-sentencing. .
U.S. 6th Circuit Court of Appeals, June 22, 2010 US v. Stone, No. 10-1618 District court’s decision to release five defendants, belonging to a paramilitary organization known as the Michigan Hutaree, on bail pending their trial for conspiracy to levy war against or to oppose by force the authority of the United States government related offenses is reversed and remanded as each defendant poses a danger to the community and no conditions of release will reasonably assure the safety of the community.
U.S. 6th Circuit Court of Appeals, June 25, 2010 Davis v. Lafler, No. 08-1291 District court’s denial of defendant’s petition for habeas relief from convictions for carjacking and receiving and concealing stolen property is reversed as there was insufficient evidence on which to base defendant’s conviction for aiding and abetting the carjacking.
U.S. 6th Circuit Court of Appeals, June 25, 2010 US v. Robinson, No. 08-6023 District court’s grant of pro se defendant’s motion to reduce his sentence under 18 U.S.C. section 3582(c)(2) for crack cocaine and firearm related offenses is affirmed and his motion for appointment of counsel denied as, pursuant to section 3582(c)(2), a district court is not authorized to reduce a defendant’s sentence below the amended Guidelines range.
U.S. 7th Circuit Court of Appeals, June 21, 2010 Junkert v. Massey, No. 09-2908 In an attorney’s 42 U.S.C. section 1983 suit claiming that searches of her law office and residence for stolen laptop computers and controlled substances violated her Fourth Amendment rights, judgment against plaintiff pursuant to a jury verdict is affirmed as an affidavit was not so deficient that any reasonably well-trained officer would have known that probable cause was lacking, requiring the second-guessing of the judge’s authorization, and thus, the officer has a qualified immunity defense against the attorney’s section 1983 suit. .
U.S. 7th Circuit Court of Appeals, June 22, 2010 US v. Brown , No. 09-1028 In a conviction of defendant for distributing more than five grams of crack cocaine, district court’s imposition of a 120-month mandatory minimum sentence, despite the fact that defendant’s two previous convictions for aggravated assault qualified him as a career offender for purposes of section 4B1.1, is vacated and remanded as the district court failed to articulate the necessary justification for such a sizable departure from the guidelines.
U.S. 7th Circuit Court of Appeals, June 22, 2010 Jay E. Hayden Found. v. First Neighbor Bank, NA, No. 09-2781 In a RICO suit against a bank, two law firms, and affiliated individuals, grant of defendants’ motion to dismiss on the ground that the complaint itself showed that plaintiffs had missed the four-year deadline governing RICO suits is affirmed as, by the summer of 2003 at the latest, the plaintiffs knew that a lawyer had looted the estate and that bank’s employees were trying to prevent further investigation of the lawyer.
U.S. 7th Circuit Court of Appeals, June 22, 2010 US v. Wheaton , No. 09-3171 In defendant’s appeal of the district court’s imposition of a 36-month sentence upon revocation of his supervised release for distributing marijuana, defendant’s attorney’s motion to withdraw pursuant to Anders is granted and the appeal is dismissed as defendant has admitted violation of the terms of his supervised release.
U.S. 7th Circuit Court of Appeals, June 23, 2010 Ebert v. Gaetz, No. 09-1627 District court’s denial of defendant’s petition for habeas relief from his murder and armed robbery conviction is affirmed where: 1) a state court’s conclusion that new statements from a witness did not negate its earlier finding of probable cause to arrest defendant was not so erroneous as to be objectionably unreasonable; and 2) defendant’s counsel was not constitutionally deficient in failing to file what would have been an unmeritorious motion to quash his arrest and suppress inculpatory statement.
U.S. 7th Circuit Court of Appeals, June 25, 2010 US v. Womack, No. 09-2488 In a prosecution of defendant for distributing cocaine base, district court’s application of a career offender enhancement when imposing a sentence of 360 months is vacated and remanded as, although the district court did not err by applying the career offender enhancement in defendant’s guidelines calculation and the sentence imposed was within a correctly calculated guidelines range, the district court erred in stating that it could not consider the sentencing disparity between crack and powder cocaine offenses under the guidelines because district courts may disagree with the career offender enhancement on policy grounds related to the crack/powder disparity and impose sentences accordingly. .
U.S. 8th Circuit Court of Appeals, June 22, 2010 US v. Pazour, No. 10-1456 Defendant’s sentence for being a felon in possession of a firearm is affirmed where: 1) defendant’s claim of sentencing error was subject to reasonable dispute, and thus the district court did not commit plain error; and 2) the firearms possessed by defendant facilitated the theft at issue, and possession of the firearms was not accident or coincidence.
U.S. 8th Circuit Court of Appeals, June 24, 2010 US v. Robinson, No. 09-1925 Defendant’s sentence for possession of a firearm as a previously convicted felon is vacated where the district court clearly erred in finding that defendant had stipulated to the requisite knowledge, or reasonable cause to believe, that the person knocking on his door was an officer.
U.S. 8th Circuit Court of Appeals, June 24, 2010 US v. Adamson, No. 09-2185 Defendants’ convictions and sentences for conspiracy to distribute and possession with intent to distribute 500 grams or more of methamphetamine and five kilograms or more of cocaine are affirmed where: 1) the district court properly considered the relevant conduct for which defendant was responsible in comparison to other members of the organization and did not commit clear error in its factual determination that defendant’s role was not minor; 2) defendants were active, necessary, and well-compensated members of the conspiracy, and their roles as couriers did not necessarily entitle them to the minor role adjustment; 3) the presence of firearms in the garage where defendant received drugs and dispatched large sums of money to the west coast made the fact of his involvement in the drug conspiracy more probable and evidence of this was thus properly admitted; and 4) the district court did not clearly err in imposing a three-level enhancement for his role in the offense.
U.S. 8th Circuit Court of Appeals, June 24, 2010 US v. Shafer, No. 09-2309 Defendant’s drug conspiracy conviction is affirmed where: 1) a typical person would have understood the exchange between defendant and an officer to allow the officer to seize defendant’s briefcase and its contents; 2) the denial of defendant’s motion for a continuance did not prejudice him; and 3) a reasonable jury could conclude that defendant’s Mercedes was purchased with the proceeds from his drug distribution. ..
U.S. 9th Circuit Court of Appeals, June 21, 2010 Murdoch v. Castro, No. 05-55665 In a murder prosecution, the denial of petitioner’s habeas petition is affirmed where, because the Supreme Court has not clearly established whether and in what circumstances the attorney-client privilege must give way in order to protect a defendant’s Sixth Amendment confrontation rights, the California state court could not have unreasonably applied clearly established Supreme Court law when it denied petitioner access to an allegedly exculpatory letter sent by a witness.
U.S. 9th Circuit Court of Appeals, June 21, 2010 US v. Batson, No. 09-50238 In a prosecution for conspiracy to commit tax fraud, defendant’s restitution order is affirmed in part where the district court was authorized to order restitution for a violation of Title 26 as a condition of supervised release by 18 U.S.C. section 3563(b)(2), which granted courts broad discretion to order restitution as a condition of probation, and 18 U.S.C. section 3583(d), which made that grant applicable to supervised release. However, the order is vacated in part where restitution so ordered must be limited to the offense of conviction when, as here, that offense does not involve an element of a “scheme, conspiracy, or pattern of criminal activity.”
U.S. 9th Circuit Court of Appeals, June 23, 2010 Simmons v. Navajo County, No. 08-15522 In a civil rights action against county jail personnel claiming that they negligently permitted the suicide of an inmate, summary judgment for defendant is affirmed in part where: 1) no reasonable jury could conclude that a nurse consciously disregarded an excessive risk to plaintiffs’ decedent’s safety; 2) plaintiffs adduced no evidence that a corrections officer knew that the decedent was suicidal; and 3) because there was no underlying constitutional violation, plaintiffs could not maintain a claim for municipal liability. However, the judgment is vacated in part where, should the district court decline to exercise supplemental jurisdiction over plaintiffs’ state law claims, it may remand those claims to state court for further proceedings. .
U.S. 9th Circuit Court of Appeals, June 25, 2010 Lal v. State of Cal., No. 08-15645 In an action against the California Highway Patrol and certain officers for the shooting death of plaintiff’s husband, dismissal of the action with prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute when her attorney failed to meet deadlines and attend hearings is reversed where an attorney’s gross negligence constituted an extraordinary circumstance warranting relief from a judgment dismissing the case for failure to prosecute under Rule 41(b). .
U.S. 9th Circuit Court of Appeals, June 25, 2010 Kimbrough v. State of Cal., No. 08-17231 In an action claiming that the California Department of Corrections and Rehabilitation’s (CDCR) grooming regulations concerning hair length interfered with plaintiff’s First Amendment right to free exercise of religion, the district court’s award of attorney’s fees to plaintiff is reversed where, because the district court did not actually adjudicate plaintiff’s claims, the Ninth Circuit’s decision in Siripongs foreclosed an award of attorneys’ fees in this case.
U.S. 9th Circuit Court of Appeals, June 25, 2010 US v. Buzo-Zepeda, No. 09-50190 Defendant’s sentence for reentry into the U.S. following deportation is affirmed where a “Johnson waiver” in California state court had no effect on the determination of whether a defendant qualifies for a point increase under United States Sentencing Guidelines Manual section 4A1.1, Criminal History Category.
U.S. 9th Circuit Court of Appeals, June 25, 2010 US v. King, No. 09-50665 In defendant’s appeal from the district court’s judgment revoking his term of supervised release and imposing additional supervised release conditions on the basis of five violations of his supervised release conditions, the order is affirmed where: 1) 18 U.S.C. section 3605’s language did not limit a transferee court’s power to violations that occur after transfer; 2) together, the ordinary meaning of “associate,” the court’s cases, and defendant’s probation officer’s instructions adequately notified defendant that telephone and e-mail communications with felons were prohibited; and 3) the evidence was sufficient to support the district court’s finding that defendant’s misrepresentation was intentional.
U.S. 10th Circuit Court of Appeals, June 21, 2010 Fredericks v. Jonsson, No. 09-1169 In an action against a licensed psychologist for failing to warn plaintiffs of the danger posed by one of the psychologist’s patients, summary judgment for defendant is affirmed where: 1) Colorado’s mental health-professional liability statute, Colo. Rev. Stat. section 13-21-117, applied in the circumstances of this case; and 2) the statute did not require defendant to warn plaintiffs because the patient had not communicated to defendant any serious threat of imminent physical violence against them. .
U.S. 10th Circuit Court of Appeals, June 21, 2010 Sines v. Wilner, No. 09-1347 In a firearm possession prosecution, the dismissal of petitioner’s habeas petition is affirmed where: 1) defendant’s remedy under 28 U.S.C. section 2255 was not inadequate or ineffective; 2) defendant could have appealed the district court’s dismissal of his motion; and 3) defendant’s notice of appeal could not be construed as encompassing the denial of his section 2255 motion, because the notice did not evince an intent to appeal that denial.
U.S. 10th Circuit Court of Appeals, June 21, 2010 US v. Salazar, No. 09-3073 In a firearm possession prosecution, the district court’s order suppressing defendant’s firearm is reversed where: 1) defendant was not seized until he submitted to the police’s show of authority by obeying a command to get out of his truck; and 2) at the time that defendant submitted to the officer’s authority, the officer had reasonable suspicion to detain him. …
U.S. 10th Circuit Court of Appeals, June 23, 2010 US v. Hasan, No. 08-5137 Defendant’s perjury convictions are affirmed in part where, although the prosecutor could have done more to clarify, the district court would not have clearly or obviously erred in concluding that a reasonable jury could find that the questions were not the cause of defendant’s inconsistent answers. However, the judgment is vacated in part where the district court needed to determine in the first instance whether defendant spoke primarily a language other than the English language under the proper legal standard. ..
U.S. 10th Circuit Court of Appeals, June 23, 2010 Narotzky v. Natrona Cty. Mem. Hosp. Bd. of Trustees, No. 09-8053 In an action by doctors against their former hospital employer, stating a procedural due process claim based on a theory of constructive discharge and a claim based on the warrantless search of plaintiffs’ lockers, summary judgment for defendant is affirmed where no constructive discharge occurred and the search was reasonable, given the context and circumstances.
U.S. 11th Circuit Court of Appeals, June 21, 2010 Gilbert v. US, No. 09-12513 Defendant’s sentence for possession with intent to distribute both crack cocaine and marijuana is vacated where defendant’s sentence was enhanced based upon a nonexistent offense – being a career offender with only one prior violent felony. .
U.S. 11th Circuit Court of Appeals, June 22, 2010 US v. Williams, No. 08-10185 Defendant’s life sentence as a career offender under U.S.S.G. section 4B1.1 following his conviction for possession of crack cocaine is vacated where, in light of the Supreme Court’s ruling in Johnson, the fact of a conviction for felony battery on a law enforcement officer in Florida, standing alone, no longer satisfied the “crime of violence” enhancement criteria as defined under the “physical force” subdivision of section 4B1.2(a)(1).
U.S. 11th Circuit Court of Appeals, June 22, 2010 Bowles v. Sec’y., Dept. of Corrs., No. 10-10284 In a capital habeas matter, a denial of petitioner’s habeas petition is affirmed where petitioner did not cite any decision of any court anywhere that established any of the rights he was claiming in connection with the prosecutor’s use of peremptory strikes to remove jurors who had reservations about the death penalty but were not removable for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770 (1968).
U.S. 11th Circuit Court of Appeals, June 23, 2010 Spencer v. Sec’y., Dept. of Corr., No. 06-16503 In a capital habeas matter, the denial of the petition is affirmed where: 1) petitioner’s first five claims of prosecutorial misconduct were procedurally barred because the Florida Supreme Court had, on collateral review, denied them based on an independent and adequate rule of Florida procedure; and 2) where the evidence of guilt is overwhelming, an improper comment by a prosecutor usually does not render a trial fundamentally unfair in violation of the Constitution.
U.S. 11th Circuit Court of Appeals, June 24, 2010 Suggs v. McNeil, No. 09-12718 In a capital habeas matter, a denial of the petition is affirmed where the decision of the Florida Supreme Court finding that petitioner failed to prove prejudice due to allegedly ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), was neither contrary to nor an unreasonable application of clearly established federal law.
U.S. 11th Circuit Court of Appeals, June 25, 2010 US v. Huff, No. 08-16272 Defendant’s convictions and sentences for bribery and conspiracy to commit wire fraud and bribery are affirmed in part where: 1) the evidence was sufficient to establish a single conspiracy in this case, and there was no material variance between the indictment and the evidence presented at trial; and 2) the district court did not err in basing the loss amount on defendant’s substantive counts of conviction only. However, a restitution order is vacated in part where the circuit court was unable to determine whether the amount of restitution imposed by the district court exceeded the victims’ actual losses.
U.S. 11th Circuit Court of Appeals, June 25, 2010 US v. Alexander, No. 08-17062 Defendant’s sentence for being a felon in possession of a firearm is affirmed where: 1) a conviction under Fla. Stat. section 790.15(2) involved conduct that was “similar in kind and degree of risk posed” to burglary, arson, extortion, and crimes involving the use of explosives — the crimes enumerated in the Guidelines’ definition of crime of violence; and 2) the district court did not have authority to award credit for time served in state custody.
U.S. D.C. Circuit Court of Appeals, June 23, 2010 Barhoumi v. Obama, No. 09-5383 In a habeas petition filed by a Guantanamo Bay detainee, the denial of the petition is affirmed where: 1) the district court’s alleged failure to comply with its case management order did not require reversal; 2) the district court did not clearly err in relying on a diary recovered at a confidential location for its finding that petitioner was part of an al-Qaida associated force.
Supreme Court of California, June 21, 2010 People v. Fontana, No. S170528 Judgment of the court of appeal reversing defendant’s sex offense related conviction is reversed as, although the trial court erred in failing to conduct a hearing under Evidence Code section 782 to investigate whether the victim’s prior sexual activity could have provided an alternative explanation for her oral and vaginal injuries, and even assuming the hearing would have established the existence and relevance of sexual conduct by the victim earlier that day, the exclusion of such evidence was harmless under any standard. Furthermore, the trial court did not abuse its discretion in excluding evidence of the victim’s sexual conduct earlier that day, to the extent it was offered to corroborate defendant’s testimony. .
Supreme Court of California, June 24, 2010 People v. Low, No. S151961 Conviction of defendant for violating Penal Code section 4573, which makes it a felony for any person to knowingly bring into any state prison or into any county jail any controlled substance, is affirmed where: 1) section 4573 applies to someone who is arrested and brought into jail, and who is found to possess a controlled substance during the booking process; and 2) enforcement of section 4573 does not violate the Fifth Amendment ban on the criminal use of compelled incriminating testimony as the statute does not coerce anyone to admit guilt of any crime or punish them for failing to do so.
Supreme Court of California, June 24, 2010 People v. Gastello, No. S153170 Court of Appeal’s reversal of defendant’s conviction under section 4573, which makes it a felony for any person to knowingly bring a controlled substance into a custodial setting, is reversed where: 1) the statute applies to someone who has a controlled substance in his possession when arrested for another crime, and who knowingly and voluntarily brings the drugs into jail when booked pursuant to that arrest; and 2) violation of section 4573 does not involve compelled self-incriminating “testimony,” but rather the nontestimonial act of knowingly bringing drugs into a correctional facility. .
Supreme Court of Florida, June 24, 2010 Olmstead v. Fed. Trade Comm’n, No. SC08-1009 An order to partially satisfy a judgment against defendant in the FTC’s suit for unfair or deceptive trade practices is affirmed as Florida law permits a court to order a judgment debtor to surrender all right, title, and interest in the debtor’s single-member limited liability company to satisfy an outstanding judgment.
Supreme Court of Florida, June 24, 2010 Pasha v. State of Florida, No. SC08-1129 Convictions for two first degree murder of his wife and step-daughter and sentence to death are reversed and remanded as the trial court committed reversible error by determining that defendant’s motion to proceed pro se was equivocal.
California Appellate Districts, June 22, 2010 People v. Ogle, No. B214086 Conviction of defendant for making criminal threats, disobeying a domestic relations order, and stalking is affirmed as stalking is an act of domestic violence and admissible to prove propensity to commit the crime of making criminal threats.
California Appellate Districts, June 22, 2010 People v. Morris, No. C060358 In a conviction of defendant for robbery, grand theft and other related crimes, section 667.9 sentence enhancement is stricken as there was insufficient evidence that defendant knew or should have known the victim was “developmentally disabled” within the meaning of the enhancement statute.
California Appellate Districts, June 22, 2010 In re Maes, No. C062967 Defendant’s petition for habeas relief claiming that he is entitled to conduct credits during service of his term for spousal abuse conviction, is denied as section 2933.2 bars such credit as a defendant convicted of murder and sentenced to an indeterminate life term is not entitled to earn post-sentence conduct credit against a consecutive determinate term imposed for a separate offense, which section 669 directs to be served first.
California Appellate Districts, June 22, 2010 In re Michael K., No. H034209 In habeas proceedings brought by a public defender on behalf of a gravely disabled individual and under the authority of In re Hop, the trial court’s grant of San Andreas Regional Center’s (SARC) request for a court order to place the individual in a particular residential facility is reversed as here the parents and co-conservators successfully objected to their son’s community placement and properly invoked the statutorily authorized administrative procedure to challenge that placement, and the within petition sought to relitigate the same claim among the same parties that the administrative decision put to rest. …
California Appellate Districts, June 23, 2010 Schaffer v. Superior Court, No. B217743 Defendant’s request for extraordinary relief to set aside an order of the superior court denying his motion to compel the People to provide copies of discovery under Penal Code section 1054.1 free of charge, is denied as section 1054.1 imposes no such duty on the prosecution as the People comply with section 1054.1 by affording a defendant an opportunity to examine, inspect, or copy the discoverable items, and a non-indigent defendant may receive at his or her expense copies of discovery made available by the People. .
California Appellate Districts, June 23, 2010 People v. Tompkins, No. E047842 Defendant’s conviction of multiple counts of lewd and lascivious acts with a minor under the age of 14 is affirmed over claims: 1) that the corpus delicti rule prohibited convicting him of acts described only by his out-of-court statements; 2) victim’s generic testimony was insufficient to establish his guilt; 3) that there was no evidence that he filed the victim; 4) that the trial court erred in allowing a detective to testify as an expert on child sex abuse victims; and 5) that imposition the upper term for one count violated his constitutional rights. ..
California Appellate Districts, June 23, 2010 People v. Lopez, No. E048027 Conviction of defendant for molesting his two stepdaughters, including convictions for committing a lewd act upon a child under the age of 14, is affirmed as, under the totality of the circumstances, the evidence supported a reasonable finding that there was a touching concurrent with lewd intent, in violation of section 288(a).
California Appellate Districts, June 23, 2010 People v. Garcia, No. E048416 Trial court’s restitution order following defendant’s no contest plea to a single count of felony false imprisonment by force in exchange for dismissing a rape charge and another separate case is affirmed where: 1) the trial court appropriately allowed only a limited inquiry into the confidences of the psychotherapist-patient relationship, compelling disclosure of only those matters directly relevant to the issue of restitution for the victim’s therapy costs; 2) by not requesting at the restitution hearing, enforcement of a subpoena duces tecum, defendant forfeited his objection on appeal; 3) there was sufficient evidence establishing that the doctor charged the victim $4,764.71 for therapy and that the victim was ultimately responsible for paying that amount; and 4) defendant’s objection to the doctor’s $500 witness fee is forfeited.
California Appellate Districts, June 23, 2010 Espinosa v. Kirkwood, No. E048472 In plaintiffs’ suit against the driver of their getaway vehicle (they were participants in a burglary) for damages for personal injuries sustained in a vehicle collision while fleeing from the police, judgment of the trial court is affirmed as, because their injuries were “in any way proximately caused by their commission of a felony or immediate flight therefrom,” plaintiffs were barred from recovering damages based on negligence..