Criminal Law Library Blog
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February 09 – February 13, 2009
U.S. 1st Circuit Court of Appeals, February 09, 2009 US v. Rivera-Rivera, No. 05-2495, 05-2498
Defendants’ convictions and sentences stemming from the armed robbery of a lottery ticket business in Puerto Rico are affirmed over claims that: 1) a key witness’s in-court identification was tainted by unnecessarily suggestive pretrial encounters; 2) the government failed to meet its burden of proving that the robbery affected interstate commerce; and 3) there were multiple errors during sentencing, including that the district court improperly imposed a 25-year mandatory minimum based on facts not found by the jury beyond a reasonable doubt.
U.S. 1st Circuit Court of Appeals, February 11, 2009 US v. Combs, No. 06-2258 A conviction for being a felon in possession of a firearm and ammunition is affirmed over claims that: 1) the trial court improperly declined to give his proposed jury instruction regarding witness intimidation; and 2) the government failed to offer sufficient evidence that the firearm and ammunition had traveled in interstate commerce.
U.S. 1st Circuit Court of Appeals, February 13, 2009 US v. Campusano, No. 07-1931, 07-2442 Defendants’ sentences for drug offenses are affirmed over claims that: 1) for purposes of a drug quantity determination, defendants never intended to buy one hundred kilos and they lacked the financial capacity to do so; and 2) the district court erred in imposing a two-level sentence enhancement for obstruction of justice based on their testimony at trial.
U.S. 2nd Circuit Court of Appeals, February 09, 2009 U.S. v. Fabian, No. 011471 In conviction for two counts of conspiracy to commit robbery in violation of the Hobbs Act, motion to recall mandate, construed as an application to file a second or successive 28 U.S.C. section 2255 motion, is denied where defendant failed to meet the standard for permission to file a successive subsection 2255 motion.
U.S. 2nd Circuit Court of Appeals, February 10, 2009 Poindexter v. US, No. 071151 In conviction for one count of conspiracy to possess with intent to distribute and to distribute an unspecified quantity of cocaine, denial of petition to reduce imprisonment pursuant to 18 U.S.C. section 3582(c)(2) is affirmed where: 1) petitioner’s appeal challenged only the calculation of the base offense level, and not the sentencing court’s choice of applicable offense guidelines; therefore, 2) Amendment 291 was inapplicable; and 3) the district court properly denied petitioner’s motion.
U.S. 2nd Circuit Court of Appeals, February 11, 2009 U.S. v. Gutierrez, No. 083581 Conviction for possession of counterfeit checks and bank fraud and sentence of 24 months on each count, to run concurrently, is affirmed over claims of error that: 1) defendant’s sentence was procedurally unreasonable because the District Court did not provide defense counsel a meaningful opportunity to speak before imposing a sentence, in violation of Rule 32 of the Federal Rules of Criminal Procedure; and 2) a sentence of twenty-four months’ imprisonment was procedurally unreasonable because the District Court did not adequately consider the sentencing factors in 18 U.S.C. section 3353(a), provide sufficient reasons for imposing a sentence of twenty-four months’ imprisonment, or address defendant’s specific arguments for a non-Guidelines sentence.
U.S. 4th Circuit Court of Appeals, February 09, 2009 Cloaninger v. McDevitt , No. 072054 In a claim against defendant-deputy sheriffs alleging violation of plaintiff’s search and seizure rights under the Fourth and Fourteenth Amendments and his due process and equal protection rights, grant of summary judgment in favor of defendants is affirmed where: 1) there was no genuine dispute of fact material to defendants’ qualified immunity suit under 42 U.S.C. section 1983; and 2) plaintiff’s state law claims had abated, were abandoned, or failed as a matter of law.
U.S. 4th Circuit Court of Appeals, February 09, 2009 US v. Thompson , No. 075028 Sentence of life imprisonment for one count of bank robbery pursuant to the federal “three strikes” law is affirmed over claims of error that: 1) defendant’s latest conviction should not have been considered a strike because he met his burden under the statute; and 2) 18 U.S.C. section 3559(c) violated defendant’s constitutional rights because the sentence was based on judicial fact-finding that increased the applicable statutory maximum from twenty years to life imprisonment.
U.S. 4th Circuit Court of Appeals, February 12, 2009 Waller v. City of Danville, Virginia, No. 072099 In a claim under Title II of the Americans with Disabilities Act (ADA) alleging defendant-city violated the Fourth and Fourteenth Amendments to the U.S. Constitution by unlawfully arresting decedent using excessive force and failing to properly train officers in dealing with the disabled, grant of summary judgment in favor of defendants is affirmed where any duty of reasonable accommodation that existed under the ADA was satisfied under the circumstances. .
U.S. 5th Circuit Court of Appeals, February 09, 2009 US v. Ford, No. 07-20885 Conviction and sentence for conspiracy to commit wire fraud are affirmed where: 1) after viewing the evidence in the light most favorable to the jury verdict, the evidence is sufficient to sustain the conviction; 2) the district court did not err in imposing two sentencing enhancements; and 3) the sentence was not objectively unreasonable.
U.S. 5th Circuit Court of Appeals, February 09, 2009 US v. Rodriguez, No. 07-51044 Sentence for assault on a federal officer is affirmed over defendant’s argument that association and residence restrictions as conditions of supervised release were not reasonably related to the sentencing factors of 18 U.S.C. section 3553(a) and imposed greater deprivations of liberty than were necessary to achieve the goals of that section.
U.S. 5th Circuit Court of Appeals, February 10, 2009 US v. Severns, No. 07-40615 Conviction and sentence for mail fraud, wire fraud, arson, use of fire to commit mail fraud, and use of fire to commit wire fraud are affirmed in part over defendant’s arguments that: 1) he is entitled to a new trial because the Government failed to disclose exculpatory evidence and because he has discovered new evidence; 2) there was insufficient evidence to support the jury’s finding that a firefighter suffered injury while responding to the fire; and 3) the Double Jeopardy Clause of the Fifth Amendment was violated because of consecutive sentences for the same conduct. The sentence is vacated and remanded where only one conviction and sentence enhancement for use of fire to commit a felony can be sustained when a single fire was the basis for the enhancement.
U.S. 5th Circuit Court of Appeals, February 11, 2009 US v. Fernandez, No. 07-50513 Convictions and sentences related to a major drug-trafficking conspiracy are affirmed over defendants’ arguments that: 1) the evidence was insufficient to support the jury’s verdict; 2) the district court erred in refusing to sever the trials of the co-defendants; 3) the district court violated evidentiary rules in admitting a proffer letter to a defendant from the government; 4) the government failed to provide all evidence favorable to a defendant; 5) admission of certain evidence violated the due process clause of the Fifth Amendment; 6) the court’s limiting instruction regarding a defendant’s testimony was prejudicial; and 7) the sentences were procedurally flawed and substantively unreasonable.
U.S. 5th Circuit Court of Appeals, February 10, 2009 US v. Johnston, No. 08-10120 Sentence for aiding and abetting the possession of a firearm by a convicted felon is vacated and remanded where the district court erred in applying a cross-reference substituting the guideline sentence for attempted murder since defendant did not have actual knowledge that the firearm would be used during an attempted murder.
U.S. 5th Circuit Court of Appeals, February 11, 2009 US v. Herrera, No. 08-50028 Grant of a motion for acquittal and a new trial after conviction for tax evasion is reversed in part where the evidence presented at trial was sufficient to convict defendant on the basis of two out of the three affirmative acts alleged by the government, but affirmed in part where the district court was within its discretion in conditionally granting a new trial since, although the evidence was sufficient to support a conviction, the court cautiously reweighed it and found it preponderated heavily against the guilty verdict.
U.S. 5th Circuit Court of Appeals, February 12, 2009 US v. Jackson, No. 0751229 Conviction following guilty plea for possession with intent to distribute marijuana and re-sentence to fifteen months imprisonment and seven additional years of supervised release following defendant’s violation of conditions of his original three-year term of supervised release is affirmed over claims of error that: 1) the district court erroneously calculated the statutory maximum for his new term of supervised release; and 2) defendant’s new seven-year term was unreasonable.
U.S. 6th Circuit Court of Appeals, February 09, 2009 US v. Oaks, No. 06-6056 Sentence under the Armed Career Criminal Act for possession of a firearm by a felon is remanded for determination of the type of facility and level of security involved in a prior conviction for felony escape.
U.S. 6th Circuit Court of Appeals, February 11, 2009 US v. Lawrence, No. 06-4105 In appeal by the government after the district court overturned a death sentence because of jury verdict inconsistencies, the district court’s decision is vacated and the original sentence reinstated where: 1) 18 U.S.C. section 3731 authorizes the government to appeal the district court’s order vacating the original sentence ordering a new capital sentencing proceeding as long as the appeal does not offend the Double Jeopardy Clause; 2) the appeal did not violate the Double Jeopardy Clause; and 3) the jury verdicts were not inconsistent since the jury followed the court’s instructions and spoke their real conclusions.
U.S. 6th Circuit Court of Appeals, February 12, 2009 US v. Kontrol, No. 08-1185 Revocation of supervised release and imposition of a prison sentence for interstate and foreign travel in aid of drug-related racketeering is affirmed where: 1) the district court did not err in concluding that defendant violated the employment-notification provision of his release; 2) the district court correctly calculated the guidelines range, treated the range as advisory, considered the section 3553(a) factors and explained the sentence it imposed; and 3) the sentence was not substantively unreasonable.
U.S. 7th Circuit Court of Appeals, February 09, 2009 US v. Gonzalez, No. 08-1238 Conviction on drug and weapons charges is affirmed where the district court did not clearly err in its determination that the decision by officers to seek a search warrant was not prompted by any evidence observed unlawfully.
U.S. 7th Circuit Court of Appeals, February 11, 2009 US v. Scott, No. 08-2579 Sentence for possession with intent to distribute cocaine and cocaine base is affirmed where the district court did not fail to consider Section 3353(a) factors or fail to adequately explain the chosen sentence, and the sentence was not substantively unreasonable even though it exceeded the sentence defendant would have received had his crime involved powder cocaine.
U.S. 7th Circuit Court of Appeals, February 12, 2009 US v. Young, No. 081863 In a motion to reduce sentence pursuant to 18 U.S.C. section 3582(c)(2), original sentence of 108 months for possession of crack cocaine with intent to distribute is affirmed where the district court did not abuse its discretion in denying petitioner’s section 3582(c)(2) motion.
U.S. 7th Circuit Court of Appeals, February 13, 2009 US v. Montgomery, No. 081690 Conviction for being a felon in possession of a firearm is affirmed over claims of error that: 1) defendant’s statement was involuntary because it was given in response to promises of leniency, invoking a supposed per se rule prohibiting the police from making promises to a suspect in order to extract a confession; 2) defendant’s statement was involuntary under a totality of the circumstances approach; and 3) the police failed to honor defendant’s right to silence and cut off questioning.
U.S. 7th Circuit Court of Appeals, February 13, 2009 US v. England, No. 082440 Sentence of 210 months’ imprisonment for illegal possession of a firearm is vacated where there was an insufficient quantum of evidence to support the court’s assumption that defendant, if out on bond, would have possessed the criminal intent to kill and performed an act constituting a substantial step toward the commission of murder, as required to prove the crime of attempted murder in the state.
U.S. 8th Circuit Court of Appeals, February 09, 2009 US v. Quiroga, No. 07-3093 Conviction and sentence for possession of methamphetamine with intent to distribute within 1000 feet of a playground are affirmed where: 1) the district court properly denied a motion in limine to suppress evidence of currency seized during an arrest since the arresting officers had probable cause; 2) defendant breached a plea agreement and the waiver of his rights under Rule 410 in that agreement was knowing and voluntary, thus the district court’s denial of his motion in limine was proper; 3) the district court correctly concluded that defendant was a career offender; and 4) the district court did not impermissibly double-count a prior conviction.
U.S. 8th Circuit Court of Appeals, February 09, 2009 US v. Gentry, No. 07-3361 Conviction for drug and weapons charges is reversed and remanded where: 1) defendant’s post-arrest silence was not a proper subject of examination; 2) the improper examinations prejudiced defendant; and 3) defendant was entitled to a jury instruction of possession of a controlled substance under 21 U.S.C. section 844.
U.S. 8th Circuit Court of Appeals, February 09, 2009 US v. Ruelas-Mendez, No. 07-3686 Sentence for illegal re-entry into the United States after a previous deportation is affirmed over defendant’s argument that the sentence was substantively unreasonable because the district court failed to give adequate weight to mitigating facts, and gave too much weight to the sentencing guidelines and the need for deterrence. ..
U.S. 8th Circuit Court of Appeals, February 10, 2009 US v. Snelson, No. 07-3202 Sentence and denial of a continuance after a conviction for bank fraud and identity theft are affirmed where defendant knowingly and voluntarily waived his right to appeal his sentence and any issues relating to pre-trial motions.
U.S. 8th Circuit Court of Appeals, February 10, 2009 US v. Armstrong, No. 08-1974 Conviction and sentence under the Armed Career Criminal Act for possession of a firearm by a felon are affirmed where: 1) the district court did not err in denying defendant’s motion to suppress evidence of his possession of a handgun since there was probable cause to believe drug trafficking was occurring at defendant’s home, and since it is unlawful to use, carry, or posses a firearm in furtherance of a drug trafficking crime, the handgun’s incriminating nature was immediately apparent and admissible under the plain view doctrine; and 2) because defendant constitutionally waived his right to counsel on an attempted burglary conviction, the district court correctly counted the conviction towards defendant’s armed career criminal determination.
U.S. 8th Circuit Court of Appeals, February 11, 2009 US v. Camacho, No. 07-2441 Convictions and sentences for conspiracy to distribute a controlled substance are affirmed over defendants’ arguments that the district court erred in: 1) failing to find a violation of a sequestration order with respect to the government’s two primary witnesses; 2) allowing those same witnesses’ hearsay statements to be admitted as the testimony of co-conspirators; 3) admitting certain expert testimony; 4) failing to investigate alleged juror misconduct; 5) refusing to grant a new trial motion; and 6) calculating a sentencing guideline range.
U.S. 8th Circuit Court of Appeals, February 11, 2009 US v. Raplinger, No. 07-2894 Conviction and sentence for sexual exploitation of a child and distribution and possession of child pornography are affirmed where the district court did not err in: 1) granting the government’s motion in limine to bar defendant from presenting evidence related to two state court convictions; 2) excluding evidence of consent since it was correct as a matter of law that consent is not a defense to the crimes charged; 3) giving jury instruction concerning consent; 4) denying defendant’s motion for acquittal since the evidence was sufficient to permit a rational jury to find beyond a reasonable doubt that one of defendant’s dominant purposes was to produce sexually explicit images; 5) refusing to grant a new trial since there was no error in the district court’s decision to exclude the evidence; 6) adding sentencing enhancements; and 7) the sentence was not objectively unreasonable.
U.S. 8th Circuit Court of Appeals, February 11, 2009 US v. Sonnenberg, No. 08-1197 Sentence for receipt of material involving the sexual exploitation of minors is affirmed where defendant’s prior state conviction for committing lascivious acts with children qualifies as a sentence enhancement even though the state statute does not require physical contact.
U.S. 8th Circuit Court of Appeals, February 11, 2009 US v. Rivera-Ordaz, No. 08-2154 Sentence for illegal reentry after deportation is affirmed where the district court did not clearly err in denying defendant a reduction for acceptance of responsibility, and the record indicates that the district court fully understood the advisory nature of the Guidelines and considered all relevant factors in sentencing defendant to a Guidelines sentence.
U.S. 8th Circuit Court of Appeals, February 11, 2009 US v. Baylor, No. 08-2419 Grant of a motion to reduce a sentence for possession of crack with intent to distribute is reversed where the district court did not have the authority to grant a sentencing reduction because the relevant Guidelines amendment did not have the effect of lowering the defendant’s applicable Guidelines range.
U.S. 8th Circuit Court of Appeals, February 12, 2009 US v. Barker, No. 08-1067 Conviction for tax evasion is affirmed where the Government’s evidence of defendant’s willfulness could lead a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt, but the sentence is vacated and remanded where the district court erred in its conclusion that an evasion of payment under 26 U.S.C. section 7201 is not a continuing offense for the purpose of determining the correct sentencing guidelines version.
U.S. 8th Circuit Court of Appeals, February 12, 2009 US v. Lohnes, No. 08-1674 Conviction for aggravated sexual abuse and sexual abuse of a child is affirmed where the evidence was sufficient for a reasonable jury to find the defendant guilty beyond a reasonable doubt.
U.S. 8th Circuit Court of Appeals, February 13, 2009 US v. McGlothen, No. 08-1549 A conviction and sentence for unlawful possession of a firearm is affirmed where: 1) an officer’s words indicating that defendant was to be charged with possession of a firearm were statements of fact, and not the functional equivalent of an interrogation; 2) thus, Miranda warnings were not required and defendant’s incriminating response was admissible; and 3) defendant’s challenge to the reasonableness of the sentence failed.
U.S. 9th Circuit Court of Appeals, February 09, 2009 US v. Selby, No. 07-30183 The opinion previously filed by the panel is withdrawn and replaced by the current opinion. Conviction for conflict of interest, wire fraud, and making a false statement is affirmed where, given the evidence viewed in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of all three crimes beyond a reasonable doubt.
U.S. 9th Circuit Court of Appeals, February 10, 2009 US v. Beltran-Moreno, No. 07-10368 Sentences for drug and weapons charges are affirmed where, despite the fact that the district court erroneously issued a sentence that was five years less than the mandatory minimum, an appellate court cannot raise a defendant’s sentence if the government has not appealed, even to raise the sentence to the statutorily required minimum.
U.S. 9th Circuit Court of Appeals, February 10, 2009 US v. Cruz, No. 07-30384 Conviction for assault is reversed where the evidence adduced during defendant’s trial did not satisfy the test for determining whether an individual can be prosecuted by the federal government under 18 U.S.C. section 1153, a statute governing the conduct of Indians in Indian Country, thus the district court’s failure to grant defendant’s motion for judgment of acquittal was plain error. .
U.S. 9th Circuit Court of Appeals, February 12, 2009 Musladin v. Lamarque, No. 03-16653 Petition for review of a denial of habeas corpus is affirmed over petitioner’s contentions that: 1) the trial court’s failure to consult with defense counsel before responding to a mid-deliberations jury note deprived him of his Sixth Amendment right to counsel; 2) his trial counsel was ineffective in failing to request a limiting instruction on hearsay statements made by defendant’s son and failing to investigate the victim’s threat to defendant; and 3) the trial court’s exclusion of evidence that defendant had claimed self-defense immediately after his arrest deprived him of his due process rights to a fair trial and to present a defense.
U.S. 9th Circuit Court of Appeals, February 13, 2009 US v. Autery, No. 07-30424 A sentence imposed pursuant to a plea bargain to possession of child pornography, wherein the district court deviated from the Sentencing Guidelines and imposed a sentence of five years probation with conditions, is affirmed over the government’s challenge to it’s reasonableness where: 1) abuse of discretion is the proper standard of review where a party challenges a sentence’s substantive reasonableness on appeal but did not object to the sentence’s reasonableness before the district court; and 2) the sentence imposed was not an abuse of discretion.
U.S. 10th Circuit Court of Appeals, February 06, 2009 Christensen v. Park City Mun. Corp., No. 07-4273 In a case involving the enforcement against a visual artist selling his own work of municipal ordinances forbidding any person, with certain exceptions, from selling goods or merchandise on the streets, in the parks, or on other city property, dismissal of claims against city and individual defendants is affirmed in part and reversed in part where: 1) the district court correctly held that individual defendants were entitled to qualified immunity because they did not violate a constitutional right that was clearly established at the time of their action; but 2) plaintiffs claims of municipal liability required a remand for further determination of the proper constitutional principles and determination of the facts, if necessary.
U.S. 10th Circuit Court of Appeals, February 06, 2009 US v. Deshazer, No. 07-8023 A conviction for interstate stalking and carrying a firearm during a crime of violence is affirmed over claims that: 1) he was not competent to stand trial; 2) he should not have been permitted to represent himself at trial; and 3) his pre-trial detention without mental-health treatment violated his due process rights.
U.S. 10th Circuit Court of Appeals, February 10, 2009 US v. Friedman, No. 07-4118 A sentence for bank robbery is reversed and remanded pursuant to the government’s claim of error where the district court abused its discretion in significantly varying downward from the advisory Guidelines range to sentence him as if he were not a career offender considering that the record showed only that defendant had an extraordinary record as a recidivist bank robber and general criminal, and there was nothing in the record to justify treating him as anything other than a career offender.
U.S. 10th Circuit Court of Appeals, February 10, 2009 US v. Baum, No. 07-6257 Defendant’s conviction and sentence for wire fraud and money laundering arising from his orchestration of a scheme to defraud mortgage lenders by arranging for borrowers to provide false information to qualify for loans to purchase homes at artificially inflated prices are affirmed over defendant’s claims that: 1) the evidence at trial was insufficient to establish his fraud; and 2) the district court miscalculated his total offense level under the U.S.S.G. by using the amount by which the home prices were inflated as the measure of his intended loss to the lenders. (Revised opinion)
U.S. 10th Circuit Court of Appeals, February 10, 2009 US v. Navarette-Medina, No. 08-2014 A sentence for unauthorized re-entry into the U.S. as a previously deported alien is affirmed where defendant did not rebut the presumption of reasonableness attached to his properly calculated guidelines sentence, and the district court did not abuse its discretion in: 1) declining to vary downward from the sentencing guidelines based on defendant’s health-based motivation for re-entry, specifically that he needed medications for his HIV condition; 2) treating the offense as a serious one; and 3) in imposing the within-guideline term of imprisonment it did.
U.S. 10th Circuit Court of Appeals, February 10, 2009 US v. Yanez-Rodriguez, No. 08-2100 A conviction and sentence pursuant to a guilty plea to reentering the U.S. after previous deportation is affirmed over claims that: 1) the government breached its plea agreement to recommend that a sentence at the lower end of the sentencing guidelines range was appropriate; 2) the guideline range was incorrectly calculated; and 3) an upward variance was substantively unreasonable.
U.S. 10th Circuit Court of Appeals, February 10, 2009 US v. Vazquez, No. 08-4044 Defendant’s conviction for possession of methamphetamine with intent to distribute, based on the discovery of three pounds of the drug in the car he had been driving on an interstate highway in Utah, is affirmed over claims of error regarding whether: 1) the initial stop of his car, the duration of his detention, and the search of the car violated his rights under the Fourth Amendment; and 2) the district court improperly admitted expert testimony by a law-enforcement officer.
U.S. 10th Circuit Court of Appeals, February 10, 2009 US v. Sanchez, No. 08-5047 In a prosecution for a drug-related offense, denial of a motion to suppress evidence is affirmed where: 1) a search warrant for a house was lawful even though the affidavit for the warrant provided no direct evidence of criminal conduct at the house because, if law-enforcement officers have probable cause to believe that a person is a supplier of illicit drugs, then the officers have probable cause to search the person’s home for such contraband and evidence; 2) officers executing a search warrant of a home may detain persons they encounter standing by a vehicle in the home’s driveway; 3) in Oklahoma, if such a person flees the officers after being ordered to get down, the officers have probable cause to arrest him for violation of a statute prohibiting obstruction of an officer performing his duties; 4) officers may search the person of one who is apprehended after such flight, even though (a) the apprehended person is not formally arrested until the search of the home has ! been completed; and (b) the formal arrest is not for the offense of obstructing an officer; and 5) the district court did not err in any challenged procedural rulings related to the suppression hearing.
U.S. 10th Circuit Court of Appeals, February 11, 2009 US v. Dozier, No. 08-4086 Defendant’s sentence for possession of a firearm by a convicted felon is affirmed over a claim that the district court erred by including in his criminal history computation the period of incarceration imposed by a state court upon revocation of a suspended sentence when the revocation resulted from the same conduct that was the basis of the instant offense.
U.S. 11th Circuit Court of Appeals, February 09, 2009 US v. Williams, No. 0811361 Sentence of forty months of imprisonment for distribution of crack cocaine and consecutive sixty-months sentence for carrying a firearm during a drug offense is vacated and remanded where the record did not make clear whether the district court considered the 18 U.S.C. section 3553(a) factors when resentencing defendant.
U.S. 11th Circuit Court of Appeals, February 09, 2009 Tompkins v. Sec., Dep’t of Corr., No. 0910022 In death row defendant’s conviction for sexual battery and murder of a fifteen year old girl, application for certificate of appealability (COA) is denied where reasonable jurists could not disagree about whether the district court erred in dismissing petitioner’s habeas petition insofar as it included the Gardner v. Florida, Brady v. Maryland, and Giglio v. US claims.
U.S. 11th Circuit Court of Appeals, February 10, 2009 Williams v. McNeil, No. 0811259 In a criminal procedure matter of first impression regarding whether a district court had discretion not to consider a criminal-petitioner’s arguments regarding the timeliness of petitioner’s federal habeas petition when petitioner raised the timeliness arguments for the first time in his objections to a magistrate judge’s report and recommendation, dismissal of petition for writ of habeas corpus is affirmed where: 1) a district court has discretion to decline to consider a party’s argument when that argument was not first presented to the magistrate judge; and 2) the district court did not abuse its discretion in dismissing petitioner’s 28 U.S.C. section 2254 habeas petition as time-barred.
U.S. 11th Circuit Court of Appeals, February 12, 2009 Gary v. Hall, No. 04-15535 In conviction of three counts of murder, rape, and burglary and sentence of death, denial of petition for writ of habeas corpus is affirmed over claims that: 1) the superior court erred by denying petitioner’s request for funds to hire a forensic serologist; 2) the district court abused its discretion in denying petitioner funds to have his semen tested; 3) and the prosecution denied petitioner a fair trial by withholding evidence favorable to the defense.
U.S. 11th Circuit Court of Appeals, February 12, 2009 US v. Vazquez, No. 0810671 Sentence of 180 months’ imprisonment for conspiracy with intent to distribute cocaine is affirmed where: 1) the district court did not procedurally err when it declined to mitigate defendant’s sentence due to its concern over the application of the career offender provision; and 2) since the district court imposed a below-range sentence, it clearly understood its discretion to apply the Sentencing Guidelines in an advisory manner.
U.S. D.C. Circuit Court of Appeals, February 10, 2009 US v. McCants, No. 06-3161 Sentence for possession of false document-making implements is affirmed in part where the district court did not err in applying a sophisticated means enhancement since the record supported the district court’s conclusion that defendant used sophisticated means to conceal his offense, but vacated and remanded in part where the district court erred by including within defendant’s relevant conduct a bank fraud the government failed to show had the requisite connection to defendant’s offense.
Supreme Court of California, February 09, 2009 Spielbauer v. County of Santa Clara, No. S150402 In an action for reinstatement brought by a former deputy public defender who was investigated by his employer for deceptive court conduct, and who was terminated after he refused to answer questions regarding such conduct, an appellate court ruling in favor of plaintiff is reversed where: 1) a public employee may be compelled, by threat of job discipline, to answer questions about the employee’s job performance, so long as the employee is not required, on pain of dismissal, to waive the constitutional protection against criminal use of those answers; 2) in this case, plaintiff was not ordered to choose between his constitutional rights and his job; and 3) employer was not required to seek, obtain, and confer a formal guarantee of immunity before requiring its employee to answer questions related to the investigation.
New York Court of Appeals, February 11, 2009 People v. Williams, No. 22mem09 The order of the Appellate Division is affirmed where there is no legal reason to upset the court’s exercise of its discretion in allowing the prosecution to use prior convictions to impeach a defendant’s testimony.
New York Court of Appeals, February 11, 2009 People v. Taveras, No. 2opn09 Sentence for a criminal sexual act in the third degree and falsifying business records in the first degree is affirmed where the actus reus underlying the crime of criminal sexual act in the third degree does not constitute a “material element” of falsifying business records in the first degree, thus the Appellate Division correctly held that the sentencing court’s imposition of consecutive sentences for these crimes was not in error.
New York Court of Appeals, February 11, 2009 People v. Romeo, No. 7opn09 Reversal of a conviction for manslaughter is affirmed where the People’s lengthy post-indictment delay occasioned by delaying their prosecution in favor of a Canadian prosecution violated defendant’s constitutional right to a speedy trial.
New York Court of Appeals, February 11, 2009 People v. Rouse, No. 8mem09 Order of the Appellate Division is reversed and the indictment dismissed where the People did not satisfy their statutory readiness obligation. .
New York Court of Appeals, February 12, 2009 People v. Dorm, No. 17 Order of the Appellate Division is affirmed where the evidence of prior bad acts in the case was not propensity evidence, but was probative of defendant’s motive and intent to assault the victim. .
New York Court of Appeals, February 12, 2009 People v. Small, No. 18 Order of the Appellate Division is affirmed where the County Court did not abuse its discretion in permitting the People to present Molineux evidence. ..
New York Court of Appeals, February 12, 2009 People v. Ryan, No. 23 Order of the Appellate Division is modified by remitting to Supreme Court for further proceedings after a finding that an investigatory detention that occurred here exceeded the permissible scope.
New York Court of Appeals, February 12, 2009 People v. Maye, No. 77 SSM 54 Order of the Appellate Division is affirmed but modified by granting defendant’s motion to suppress cocaine recovered in a body cavity search since no exigent circumstances prevented the police from seeking prior judicial authorization for the search.
Supreme Court of Florida, February 12, 2009 Simpson v. State of Florida, No. SC07798 Convictions and death sentences for two counts of first degree murder are affirmed over claims of error that: 1)the trial court did not abuse its discretion in concluding that the juror’s expression of confusion arising from other jurors’ misstatements of the law was inherent in the verdicts and, therefore, not a permissible method of impeaching those verdicts; 2) the trial court did not err in allowing the jury to proceed to the penalty phase after the juror expressed that the guilty verdicts were not hers because there was no basis for allowing the juror to recede from her verdict; 3) the trial court also did not err in denying appellant’s motion for a jury interview because the juror’s concerns arose from matters which inhered in the verdict itself and thus could not be the subject of a jury interview; 4) the trial court did not err in its handling of the issues arising from the juror’s alleged recantation of her guilty verdicts; 5) defendant was not entitled a new trial ! because the trial court never ruled on admissibility of defendant’s “reverse Williams rule” motion; 6) prosecutorial comments during guilt and penalty phase closing arguments were brief and did ont constitute fundamental error; 7) there was sufficient evidence to support appellant’s convictions; and 8) based on the specific facts and circumstances of the murders and the aggravators and mitigators found by the trial court in this case, the death sentences were proportionate. .
California Appellate Districts, February 09, 2009 People v. Watkins, No. c058337 In a prosecution for possession of cocaine base for sale and transporting cocaine base, denial of motion to suppress evidence is affirmed where defendant was estopped from claiming that the search was not validly conducted as a probation search.
California Appellate Districts, February 09, 2009 People v. Hamlin, No. c053982 Convictions and sentencing for torture, making a criminal threat, three counts of inflicting corporal injury on his wife, and three counts of child abuse are affirmed in part and reversed in part where: 1) the trial court erred in imposing upper terms on defendant’s convictions formaking a criminal threat and inflicting corporal injury on a spouse based on facts not found to exist by the jury, admitted by defendant, or justified based on defendant’s record of prior convictions; 2) the trial court erred in imposing a no-contact order on defendant; and 3) in all other respects the convictions are upheld.
California Appellate Districts, February 10, 2009 People v. Zanoletti, No. B199682
Conviction on 19 counts of felony insurance fraud and unauthorized practice of law is affirmed in part, reversed in part, and remanded where the the single-intent-and-plan doctrine was inapplicable to the crimes proven.
California Appellate Districts, February 10, 2009 People v. Jackson, No. c056828 Conviction for second degree robbery and sentence of 30 years to life imprisonment are affirmed over claims of error that: 1) defendant’s five prior serious felony convictions were not “brought and tried separately” within the meaning of Penal Code section 667, subdivision (a)(1); and 2) the trial court improperly found four of the five prior serious felony convictions to be true.
California Appellate Districts, February 10, 2009 In re Ross, No. C057249 In conviction for second degree murder and sentence of indeterminate term of 15 years to life in state prison, petition for writ of habeas corpus is granted where: 1) In re Lawrence (Lawrence) requires more of an explanation than did In re Rosenkrantz, which was the controlling law when the Governor made the parole decision in this case; and therefore, 2) the case is remanded to the Governor for further proceedings consistent with the standards articulated in Lawrence. .
California Appellate Districts, February 11, 2009 People v. Romero-Arellano, No. A119908 Convictions for possession of methamphetamine for sale, transportation of methamphetamine, and evading a police officer are affirmed over claims of error that: 1) the trial court abused its discretion in excluding cross-examination of police officer about his testimony in another case; and 2) the jury instructions referring to “the People” violated due process.
Texas Court of Criminal Appeals, February 11, 2009 Pollard v. The State of Texas, No. PD036308 In conviction for retaliation by “intentionally or knowingly” threatening to hurt much younger friend on account of friend’s service “as a prospective witness”, decision that criminal-appellant’s 1986 murder conviction was inadmissible to show appellant’s motive for threatening younger friend is affirmed where the evidence that appellant had actually killed a person, standing alone, did not make any fact of consequence more or less probable in this retaliation-by-threat prosecution. .
Texas Court of Criminal Appeals, February 11, 2009 Stokes v. The State of Texas, No. PD041706 In conviction for felony theft and sentence to fifteen years’ confinement, decision to not hold a hearing on criminal-appellant’s motion for new trial on the basis of ineffective counsel, is vacated where the docket-sheet entry, “Motion New Trial presented to court no ruling per judge,” was sufficient to show that the motion was presented to the trial court as required by Rule 21.6.
Texas Court of Criminal Appeals, February 11, 2009 Ivey v. The State of Texas, No. PD055208
Judge’s suspension of criminal’s appellant’s sentence for misdemeanor offense of driving while intoxicated and replacement with community service is affirmed where a trial court may place an eligible defendant on community supervision even if the defendant has elected to have his punishment assessed by the jury and the jury does not recommend it.
Texas Court of Criminal Appeals, February 11, 2009 Billodeau v. The State of Texas, No. pd096907.pdf In a conviction for felony theft and sentence of fifteen years’ confinement, decision not to hold a hearing on criminal-appellant’s motion for new trial is vacated where the docket-sheet entry, “Motion New Trial presented to court no ruling per judge,” was sufficient to show that the motion was presented to the trial court as required by Rule 21.6.