Criminal Law Library Blog
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January 19 – January 23, 2009
U.S. Supreme Court, January 21, 2009 Waddington v. Sarausad, No. 07-772 In a case arising from a fatal drive-by shooting of a group of students standing in front of a Seattle high school, grant of a petition for habeas relief from defendant’s conviction for being an accomplice to second-degree murder, attempted murder, and assault is reversed where: 1) Washington courts reasonably concluded that the trial court’s instruction to the jury regarding accomplice liability was not ambiguous; and 2) even were it ambiguous, the circuit court still erred in finding the instruction so ambiguous as to cause a federal constitutional violation.
U.S. Supreme Court, January 21, 2009 Pearson v. Callahan, No. 07-751 In a 42 U.S.C. section 1983 action against state law enforcement officers who conducted a warrantless search of plaintiff’s house incident to his arrest for the sale of methamphetamine to an undercover informant (whom plaintiff had voluntarily admitted to the premises), a court of appeals ruling reversing a ruling that defendants were entitled to qualified immunity is reversed where: 1) the procedure the Supreme Court mandated in Saucier v. Katz, 533 U.S. 194 (2001), should not be regarded as an inflexible requirement; and 2) petitioners were entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional.
U.S. Supreme Court, January 21, 2009 Spears v. US, No. 08–5721 In proceedings arising from the government’s appeal of a sentence for conspiracy to distribute cocaine base and powder cocaine, a circuit court’s ruling reversing a mandatory minimum sentence is reversed where district courts are entitled to reject and vary categorically from the crack-cocaine Sentencing Guidelines based on a policy disagreement with those Guidelines
U.S. 1st Circuit Court of Appeals, January 21, 2009 US v. Perazza-Mercado, No. 07-1511
Imposition of two conditions of supervised release on a defendant convicted of unlawful sexual contact with a minor are vacated and remanded where: 1) under the circumstances of this case, the district court’s imposition of a total ban on home internet use during the fifteen-year supervised release period was an abuse of discretion; and 2) the district court committed plain error by failing to offer any explanation for a total ban on pornography, in the absence of a record containing any evidence regarding appellant’s use of pornography, its involvement in the offense at issue, or its relationship to the likelihood of recidivism.
U.S. 1st Circuit Court of Appeals, January 21, 2009 US v. Saunders, No. 07-1675, 07-1704 Mother and son’s convictions and sentences for conspiracy to distribute marijuana, and mother’s conviction and sentence for possession with intent to distribute, and aiding and abetting, are affirmed in the entirety over: 1) mother’s claim that the trial court erred by denying her motion to sever her trial from that of her son; 2) son’s challenge to a sentencing decision to increase his base offense level by four levels based on his being an “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive”; and 3) their joint claim that they suffered prejudicial error and should be granted a new trial because the jury reached its verdict without reviewing audio and video footage that had been admitted into evidence and previously shown at trial.
U.S. 1st Circuit Court of Appeals, January 21, 2009 US v. Dunbar, No. 071752 Conviction and sentence for various drug, firearm, and immigration crimes is affirmed over claims that: 1) the district court erred in denying defendant’s motion to suppress; 2) the district court erred in denying defendant’s motions for mistrial; 3) there was a prejudicial variance between the evidence and the indictment and district court erred in refusing defendant’s jury instruction request; and 4) the district court erred in rejecting defendant’s to the factual findings in the pre-sentence report (PSR).
U.S. 1st Circuit Court of Appeals, January 21, 2009 US v. Gibbons, No. 081216.
Sentence of ninety-two months’ incarceration imposed on defendant after his guilty plea to four crack cocaine offenses is affirmed over claims of error that: 1) the district court miscalculated defendant’s criminal history category (CHC) and, consequently, defendant’s Guidelines sentencing range (GSR) by improperly assigning defendant criminal history points for two prior juvenile offense; 2) the district court misunderstood its authority to vary from the GSR in light of the sentencing disparity between crack and powder cocaine under Kimbrough v. US; and 3) sentence was not substantively reasonable because the district court did not properly account for the crack/powder sentencing disparity or his history of mental illness under the sentencing factors listed in 18 U.S.C. section 3553(a). Read more…
U.S. 1st Circuit Court of Appeals, January 22, 2009 US v. Evano, No. 07-2605
A sentence on 20 counts of various forms of fraud and false statements is affirmed over defendant’s challenges to the imposition of sophisticated means and identity theft enhancements, as well as his category III criminal history designation. Read more…
U.S. 1st Circuit Court of Appeals, January 23, 2009 US v. Silva, No. 07-2320 A conviction and sentence for conspiracy to obtain and obtaining controlled substances by fraud, health care fraud, identity theft, and aggravated identity theft over primary claims that his conviction rested on evidence illegally obtained and that the district court improperly calculated his sentence. Read more…
U.S. 2nd Circuit Court of Appeals, January 20, 2009 US v. Draper , No. 072301, 072366 Convictions for firearm, narcotics, and witness retaliation and tampering charges are reversed and remanded where the district court committed plain error because: 1) the jury was improperly charged on the retaliation counts; and 2) the evidence presented at trial was insufficient to convict on those counts. Read more…
U.S. 2nd Circuit Court of Appeals, January 23, 2009 In re Terrorist Bombings of U.S. Embassies in East Africa, No. 011535 In conviction for terrorist bombings of U.S. Embassies in Africa, defendant’s petition for rehearing is denied over claims of error that: 1) rejection of defendant’s Fourth Amendment challenges omitted consideration of whether the challenged searches were supported by probable case; and 2) the court erred by not considering whether the overseas searches were valid. Read more…
U.S. 2nd Circuit Court of Appeals, January 23, 2009 Drake v. Portuondo, No. 061365 In conviction for two counts of second degree murder, denial of petition for writ of habeas corpus is reversed and remanded where the district court erred in concluding that: 1) prosecution was not aware of the expert witness’s false statements; and 2) false testimony was not material to the jury’s verdict. Read more…
U.S. 2nd Circuit Court of Appeals, January 23, 2009 US v. McGee, No. 081619 In conviction of defendant-career offender who was granted a departure for sentencing, denial of defendant’s motion for a reduced sentence pursuant to 18 U.S.C. section 3582(c)(2) and the so-call crack amendments is vacated and remanded where defendant who was designated a career offender but ultimately explicitly sentenced based on a Sentencing Guidelines range calculated by Section 2D1.1 of the Guidelines is eligible for a reduced sentence. Read more…
U.S. 6th Circuit Court of Appeals, January 20, 2009 US v. Bailey, No. 06-5576 In an amended opinion, portions of the previous opinion that mistakenly relied on evidence that wasn’t available to the jury to prove or disprove defendant’s guilt are removed and portions of defendant’s conviction on firearm-related offenses are reversed where there is insufficient evidence to support the conviction after the erroneous evidence is removed. Read more…
U.S. 8th Circuit Court of Appeals, January 21, 2009 Nichols v. Symmes, No. 08-1330 Denial of a petition for habeas corpus is affirmed where: 1) petitioner cannot meet the stringent requirements needed to file a successive section 2255 petition; and 2) a petitioner cannot raise in a section 2241 petition an issue which could or was actually raised in the section 2255 motion. Read more…
U.S. 8th Circuit Court of Appeals, January 21, 2009 US v. Rollins, No. 08-2076
Denial of a motion to withdraw a guilty plea and sentence for possession of unregistered destructive devices is affirmed where: 1) defendant demonstrated competence during the plea hearing; 2) defendant’s consumption of prescription medication was irrelevant since defendant told the court he was not under the influence of mind-altering substances; 3) the district court had discretion to impose a federal sentence to be served consecutively to a yet-to-be-imposed state sentence; and 4) defendant was not entitled to credit for time spent as a pretrial detainee in state custody. Read more…
U.S. 8th Circuit Court of Appeals, January 21, 2009 US v. Vasquez , No. 08-2530 Sentence for drug offenses is affirmed where the government met its burden of proof in arguing for a sentence enhancement based on defendant’s role as a manager or supervisor in the drug scheme, and the district court considered the appropriate factors and gave an adequate explanation for its decision to impose an upward departure. Read more…
U.S. 8th Circuit Court of Appeals, January 23, 2009 Sasser v. Norris, No. 07-2385 Denial of a petition for habeas corpus is affirmed in part and reversed in part where: 1) the district court should have granted petitioner’s request for an evidentiary hearing on his mental retardation claim since Atkins v. Virginia, 536 U.S. 304 (2002) created a new federal claim not in existence at the time of the proceedings in state court; 2) the existence of a similar claim under state law is irrelevant; 3) petitioner alleged sufficient facts in order to obtain an evidentiary hearing on his mental retardation claim; 4) petitioner’s ineffective assistance claim was not properly before the court; and 5) the government forfeited its statute of limitations claim.
U.S. 9th Circuit Court of Appeals, January 20, 2009 US v. Aguila-Montes De Oca, No. 05-50170 Sentence for for attempting to reenter the U.S. following deportation is vacated where the district court’s imposition of a sentencing enhancement was in error since the defendant’s prior conviction for first degree residential burglary was not a crime of violence.
U.S. 9th Circuit Court of Appeals, January 20, 2009 US v. Bond, No. 06-50628 Conviction for conspiracy to commit mail and wire fraud, mail and wire fraud and making a false statement is affirmed where the government did not conceal information since it provided defendant with the information necessary to review testimony from a previous trial to determine whether a witness’ testimony would be helpful to the defendant’s case.
U.S. 9th Circuit Court of Appeals, January 20, 2009 US v. Esparza, No. 07-50293 Sentence for distribution of child pornography is affirmed in part but certain elements are limited to interpretations that do not indicate a substantial liberty interest of the defendant’s since the district court did not make the required findings for a more expansive interpretation, but vacated and remanded where the court impermissibly delegated judicial authority to a probation officer to determine the conditions under which defendant should enter inpatient psychiatric treatment.
U.S. 9th Circuit Court of Appeals, January 22, 2009 Brown v. Cal. Dep’t of Corr., No. 07-55409 In a suit under 42 U.S.C. section 1983 alleging that defendants violated the terms of an oral plea agreement by advocating for plaintiff’s imprisonment past the term agreed to in the plea, summary judgment on grounds of immunity is affirmed for all defendants where: 1) prosecutors should be afforded absolute immunity for parole recommendations; 2) parole board members are entitled to absolute immunity for parole board decisions; 3) plaintiff failed to present any evidence that defendant-warden set in motion a series of acts by others, which she knew or reasonably should have known, would cause others to inflict the constitutional injury, and the warden lacked independent authority to order the release; and 4) in the absence of a waiver by the state or a valid congressional override, under the eleventh amendment, agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court.
U.S. 9th Circuit Court of Appeals, January 22, 2009 US v. Mikhel, No. 07-99008 Defendant’s motion is granted and special administrative measures are modified in order to allow defendant’s full exercise of his Sixth Amendment right to counsel.
U.S. 9th Circuit Court of Appeals, January 23, 2009 US v. Orlando, No. 07-50473 Sentence and fine for tax evasion are affirmed where: 1) the sentence imposed was a variance, not a departure, from the sentencing guidelines, thus the notice requirement in Fed. R. Crim. P. 32(h) does not apply; 2) the district court did not abuse its discretion by failing to grant a continuance before announcing the variance; and 3) neither the sentence nor the fine were unreasonable. The written judgment is amended to reflect the fine announced at oral sentencing where the terms of an oral pronouncement control when a discrepancy arises between the terms of an oral pronouncement of a sentence and the subsequent written judgment.
U.S. 10th Circuit Court of Appeals, January 16, 2009 US v. Zuniga, No. 07-3333 A sentence for being a felon in possession of a firearm is affirmed where: 1) defendant’s prior conviction for possession of a deadly weapon in a penal institution qualified as a predicate violent felony, triggering the Armed Career Criminal Act’s (ACCA’s) minimum fifteen-year sentence; and 2) defendant received due process prior to sentencing. .
U.S. 10th Circuit Court of Appeals, January 21, 2009 Westar Energy, Inc. v. Lake, No. 07-3219, 07-3280 An interlocutory order, requiring plaintiff-company to advance past and future legal fees incurred by defendant for his criminal defense, is affirmed in part and reversed in part where: 1) although the order was not labeled a preliminary injunction, it meets the elements of a preliminary injunction and thus there was appellate jurisdiction over the matter; 2) the retrospective relief ordering the payment of past attorneys’ fees could not be upheld as a preliminary injunction as the remedy is not necessary to prevent irreparable harm; 3) the prospective relief ordering future advances, on the other hand, satisfied Rule 65 and the equitable standards necessary to justify a preliminary injunction; but 4) the district court erred in effectively assigning plaintiff the burden of disproving the reasonableness of defendant’s advancement requests.
U.S. 11th Circuit Court of Appeals, January 21, 2009 US v. Bennett, No. 0812352 In a per curiam decision, conviction for possession of a firearm by a convicted felon is affirmed where: 1) because the law enforcement agent had a reasonable belief that the occupants of one of the bedrooms could be dangerous and his reason for moving them to the bed was legitimate, his sweep of occupants’ grab areas was properly limited; 2) the under-mattress search was not unlawful; 3) because the agents’ conduct was not unlawful, defendant’s challenged statements were not the fruit of unlawful conduct; and 4) the weapon and statements were properly admitted to evidence.
U.S. 11th Circuit Court of Appeals, January 23, 2009 Magwood v. Culliver, No. 0712208 Partial denial of petitioner-death row inmate’s habeas corpus petition is affirmed in part and reversed in part where: 1) petitioner’s fair-warning claim was successive since it was available at his original sentencing and petitioner did not assert that it fit into one of the 28 U.S.C. section 2244(b)(2) exceptions; and 2) the district court erred in holding that petitioner’s counsel’s performance was deficient.
Supreme Court of California, January 23, 2009 In re Jose C., No. S158043 Welfare and Institutions Code section 602, which purports to give state courts jurisdiction to declare any juvenile who “violates any law … of the United States” a ward of the court, is not preempted by: 1) the U.S. Constitution’s supremacy clause; 2) 18 U.S.C. section 3231, which grants federal courts “original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States”; or 3) any other provision of federal law.
Supreme Court of Florida, January 22, 2009 Parker v. State of Florida, No. SC06-2176 Denial of postconviction relief from a capital conviction of first-degree murder and sentence of death is affirmed in part and reversed in part where: 1) criminal appellant’s sixteen claims on direct appeal of his convictions and sentence of death were without merit, not properly preserved for appellate review, or harmless beyond a reasonable doubt; and 2) counsel failed to fully investigate and present mitigating evidence regarding appellant’s childhood and mental health. .
Supreme Court of Florida, January 22, 2009 Nixon v. State of Florida, No. SC07-953 Denial of postconviction relief for conviction for murder and trial court’s finding that criminal appellant is not mentally retarded are affirmed where there was competent, substantial evidence to support the trial court’s determination that appellant did not meet the criteria for mental retardation.
Supreme Court of Florida, January 22, 2009 Kelley v. State of Florida, No. SC08-608 Denial of criminal-appellant’s successive postconviction motion for conviction of first-degree murder and sentence of death and petition for writ habeas corpus are affirmed over claims of error that: 1) State of Florida violated Brady v. Maryland by failing to disclose evidence disposition forms which indicated that in 1966 and 1967, certain evidence was transported from the Florida Sheriff’s Bureau Crime Laboratory in Tallahassee back to the submitting agency after laboratory examination; and 2) a manifest injustice occurred because evidence was destroyed prior to appellant’s trial.
Supreme Court of Florida, January 22, 2009 State of Florida v. Meshell, No. SC08-903 In conviction for sex acts, decision of Fifth District in Meshell v. State holding that criminal-respondent’s convictions for lewd and lascivious battery and for vaginal penetration or union violated double jeopardy is quashed and remanded with directions to reinstate criminal-respondent’s convictions and sentence as originally imposed by the trial court where: 1) the oral sex described in count 3 was a criminal act distinctively different from the vaginal penetration or union in count 1; and therefore 2) there was no double jeopardy violation.
California Appellate Districts, January 20, 2009 People v. Graff, No. B203935 Convictions on two counts related to committing a lewd and lascivious act on a person who was 15 years old with the intent of “arousing, appealing to and gratifying” defendant’s “lust passions, and sexual desires” is reversed where the jury was erroneously permitted to convict based on charges not established at the preliminary hearing. .
California Appellate Districts, January 21, 2009 Vasquez on Habeas Corpus, No. d051015 In challenge to state governor’s reversal of decision finding petitioner suitable for release on parole, petition for writ of habeas corpus is granted where there was no evidence to support the governor’s ultimate conclusion that petitioner was unsuitable for parole because he currently posed an unreasonable risk to public safety.
California Appellate Districts, January 21, 2009 In re Vasquez, No. D051015 In challenge to state governor’s reversal of decision finding petitioner suitable for release on parole, petition for writ of habeas corpus is granted where there was no evidence to support the governor’s ultimate conclusion that petitioner was unsuitable for parole because he currently posed an unreasonable risk to public safety.
California Appellate Districts, January 22, 2009 Legal Servs. for Prisoners with Children v. Bowen, No. A120220
Writ of mandate claiming that disenfranchment allowed by section 2 of the Fourteenth Amendment is limited to felonies at common law is denied where: 1) there is no historical evidence supporting the claim; and 2) the US Supreme Court in interpreting the Constitution never read the word “crime” as petitioners contend.
California Appellate Districts, January 22, 2009 People v. Quintanilla , No. B203825 Sentences of indeterminate term of 15 years to life for aggravated sexual assault and consecutive low term of three years for forcible lewd act are affirmed over claims of error that: 1) the court abused its discretion by imposing a full consecutive sentence under section 667.6, subdivision (c); and 2) the imposition of a consecutive sentence violated of defendant’s Sixth Amendment right to a jury trial.
California Appellate Districts, January 22, 2009 People v. Myers, No. B205941 Conviction for felony possession of cocaine is affirmed over claims of error that: 1) because defendant did not serve a prison sentence, his offense could not be considered a felony; and 2) application of Penal Code section 1210.1, subdivision (e)(2) and (3) denied defendant equal protection of the law..
California Appellate Districts, January 22, 2009 People v. Sardinas, No. B207979 Conviction for possession for sale of cocaine base is affirmed where: 1) searches of a parolee can be constitutionally unreasonable; however, 2) substantial evidence supported the trial court’s conclusion that the parole search of defendant was not conducted to harass or for any other arbitrary reason, but rather for a legitimate law enforcement purpose and; therefore, 3) the search was constitutionally reasonable. .
California Appellate Districts, January 22, 2009 People v. Wagner, No. G039038 Conviction for pandering is reversed where: 1) the Penal Code provision defendant was charged with violating stated that pandering occurs when defendant, “[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute”; and 2) the evidence was undisputed that the young woman defendant was accused of “inducing” was already a prostitute