Criminal Law Library Blog

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U.S. 1st Circuit Court of Appeals, August 21, 2008
US v. Brandao, No. 07-1215
Conviction and sentence for counts under Racketeer Influenced and Corrupt Organizations statute (RICO) and Violent Crimes in Aid of Racketeering statute (VICAR) is affirmed over defendant's challenges regarding: 1) sufficiency of evidence that the government presented at trial on each of the elements of RICO and VICAR; and 2) a constructive amendment of the indictment via the jury instructions and the standard of prejudice that will be applied to his unpreserved claim of error. .

U.S. 1st Circuit Court of Appeals, August 21, 2008
US v. Lipscomb, No. 07-1293
"Conviction for possession with intent to distribute cocaine, possession of a gun in furtherance of a drug trafficking crime, and possession of a gun as a convicted felon is affirmed where: 1) defendant actively disowned any interest in any of the items seized thus he lack the expectation of privacy required to challenge the seizure of the crack cocaine and gun; 2) defendant failed to timely appeal magistrate judge's ruling regarding court's decision to deny his request for disclosure of a confidential informant; 3 )the district court did not abuse its discretion in overruling defendant's Rule 16 notice requirement objection; 4) defendant failed to establish any independent and material ground for admitting the testimony and evidence regarding the license plate; 5) a reasonable jury could have found defendant guilty beyond a reasonable doubt; 6) the court did not abuse its discretion in denying the motion for a new trial on the basis of this unfiled motion; and 7) the court p! roperly denied defendant's motion for a new trial. Sentence is remanded for resentencing in light of new case law."

U.S. 1st Circuit Court of Appeals, August 21, 2008
US v. Pimentel, No. 07-1512
"Conviction for conspiracy to import with intent to distribute drugs into the US is affirmed over claims that the court erred in accepting his plea because there was no factual basis for it."

U.S. 1st Circuit Court of Appeals, August 21, 2008
US v. McKenzie, No. 07-1834
Sentence of forty-two months' imprisonment for distribution of cocaine base is affirmed over claims of error that: 1) district court incorrectly assigned two points to her Criminal History Category (CHC) score, thus rendering her ineligible for safety-valve relief under 18 U.S.C. section 3553(f); and 2) district court improperly credited computerized docket reports showing her past convictions.

U.S. 2nd Circuit Court of Appeals, August 18, 2008
US v. Valentine, No. 06-5648
In a criminal proceeding in which defendant plead guilty to being a felon in possession of a firearm, denial of defendant's motion to suppress evidence seized in his apartment after his arrest and from the sentence imposed after defendant pleaded guilty, is vacated and remanded where defendant's arrest was not supported by probable cause.

U.S. 2nd Circuit Court of Appeals, August 21, 2008
US v. Amato , No. 06-5600, 06-5741, 07-2152, 07-2311
Convictions and sentences for series of frauds against several states and a corporation are affirmed over claims that the district court erred by: 1) refusing to grant a new trial based on the government's alleged withholding of impeachment material and newly discovered exculpatory evidence; 2) refusing to sever defendants' trials; 3) improperly instructing the jury as to the meaning of "false statements" and "fraudulent omissions,"; 4) preventing the defense from fully cross-examining prosecution witnesses; and 5) allowing the prosecution to display photographs of the conspirators during closing arguments. Restitution order for $12.8 million is affirmed.

U.S. 2nd Circuit Court of Appeals, August 21, 2008
US v. Mundy, No. 06-1190
Conviction for possession of marijuana with intent to distribute and possessing a firearm in the furtherance of a drug crime is affirmed over claim that court erred in refusing to instruct the jury that the attempted flight of co-defendant supported an inference of defendant's consciousness of guilt.

U.S. 3rd Circuit Court of Appeals, August 19, 2008
US v. Soto, No. 07-2643
Conviction for aiding and abetting the making of false statements to a federal firearms licensee is affirmed over objections that: 1) the evidence was insufficient to support the conviction; 2) the question of whether the forms filled out by the alleged principal as required by the licensee, on which she had allegedly lied, were statutorily-required records was a jury question; and 3) even if the record-keeping question was a question of law, the forms in question were not required records. .

U.S. 3rd Circuit Court of Appeals, August 20, 2008
Bond v. Beard , No. 06-9002, 06-9003
In a capital-murder case, denial of petition for habeas relief as to defendant's conviction, and grant of relief as to his death sentence, are affirmed where: 1) defendant's Batson claim had been fully considered and properly rejected by state courts; 2) prosecutor's Bruton violations, in which he identified defendant as the party named in a co-defendant's confession, were harmless error; 3) jury instructions were proper; but 4) defendant's counsel for the penalty phase performed inadequately by failing to investigate fully defendant's background and mental health, and defendant was prejudiced by this failure.

U.S. 4th Circuit Court of Appeals, August 19, 2008
US v. Henry , No. 07-4578, 07-4587
Denial of defendants' motions to dismiss their indictment related to marijuana growing is reversed, and their convictions and sentences vacated and remanded where the continuance of trial for 103 days could not be excluded from defendant's speedy trial clock, which caused the total delay in defendant's case to exceed the seventy days allowed by the Speedy Trial Act.

U.S. 4th Circuit Court of Appeals, August 20, 2008
US v. Branch, No. 06-4257
Conviction and sentence for drug- and firearm-related offenses is affirmed where: 1) there was no question that the police were allowed to detain defendant after witnessing him commit a traffic violation; and 2) during this detention the police formed a "reasonable suspicion" of ongoing criminal activity that justified extension of the traffic stop; and 3) defendant's other claims were without merit.

U.S. 5th Circuit Court of Appeals, August 19, 2008
US v. Bonin, No. 07-30827
In a case involving an individual previously arrested for making threats to country music singer George Strait and later for threats to a magistrate judge, an order committing defendant to the custody of the Attorney General pursuant to a dangerousness determination is vacated and remanded where the determination contravened the requisite statutory procedure. .

U.S. 5th Circuit Court of Appeals, August 19, 2008
US v. Duhon, No. 05-30387
On remand from the Supreme Court, sentence of probation for possessing child pornography is affirmed over the government's objections that: 1) the district court's failure to apply enhancements requested by the government was reversible error; 2) consideration of the disparity between defendant's and co-defendant's sentences was plain error; 3) the sentencing guidelines precluded sentencing defendant to probation; and 4) the sentence was substantively unreasonable.

U.S. 6th Circuit Court of Appeals, August 18, 2008
US v. Simpson, No. 07-5840
A sentence and order of restitution imposed for defendant's crime of mail fraud, involving his underreporting of payroll information for his businesses to his workers' compensation insurance carriers, is affirmed where the district court correctly concluded that the "loss" caused by this conduct was the amount of additional premiums that the insurance carriers would have charged had they been given accurate information.

U.S. 6th Circuit Court of Appeals, August 18, 2008
US v. Alexander, No. 07-3219
Denials of a motion to suppress evidence underlying defendant's plea of guilty to drug-related charges, as well as a motion to compel discovery of certain materials, are affirmed over claims that: 1) an officer had no basis for subjecting a package to extra scrutiny at an airport mail facility; 2) although concededly the package would inevitably have been discovered, defendant's alleged beating at the hands of an officer should preclude application of the inevitable discovery doctrine; and 3) the district court erred in refusing to compel discovery because Fed. R. Crim. P. 26.2 and 16(a)(1)(F) mandate discovery of statements and polygraph results, respectively.

U.S. 6th Circuit Court of Appeals, August 18, 2008
Jells v. Mitchell, No. 02-3505
Denial of a petition for habeas relief in a death penalty case is reversed where: 1) a state court applied the Strickland standard in an objectively unreasonable manner for purposes of claims that petitioner's counsel were ineffective in preparing for the sentencing phase of his trial; 2) the state court unreasonably determined that the alleged errors of trial counsel did not prejudice petitioner's case; and 3) a state court erroneously evaluated a Brady claim. .

U.S. 6th Circuit Court of Appeals, August 19, 2008
US v. Mastromatteo, No. 06-2349
Denial of defendant's motion for a Franks hearing and his sentence for drug-related offenses are affirmed where: 1) defendant's failure to obtain a written conditional plea was not a jurisdictional bar to the circuit court's hearing the appeal; 2) the district court did not err in holding that defendant lacked standing to contest a search of certain property; 3) even if he had standing, the denial of a Franks hearing was proper; and 4) the sentence was reasonable.

U.S. 6th Circuit Court of Appeals, August 20, 2008
US v. Djoumessi, No. 07-1740
Convictions for holding someone in involuntary servitude and for harboring an alien for private financial gain are affirmed over claims that the charges violated defendant's rights under the Double Jeopardy Clause and that the government failed to support the involuntary servitude conviction (and a related conspiracy conviction) with sufficient evidence.

U.S. 6th Circuit Court of Appeals, August 21, 2008
US v. Poole, No. 07-3694
Defendant's convictions and sentences for drug related offenses are affirmed, but the matter remanded for consideration of whether defendant was entitled to a reduction of sentence under 18 U.S.C. section 3582(c). .

U.S. 6th Circuit Court of Appeals, August 21, 2008
US v. Mayberry, No. 06-2239, 06-2413
Defendants' convictions and sentences for being felons in possession of a firearm are affirmed over meritless claims that: 1) one defendant was deprived of his Fifth Amendment rights when the prosecution introduced evidence demonstrating that he possessed firearms during multiple armed robberies; 2) insufficient evidence existed to support his conviction; 3) he was denied his Sixth Amendment right to confront a witness; 4) the district judge unconstitutionally made findings of fact at sentencing; and 5) the sentence was unreasonable.

U.S. 7th Circuit Court of Appeals, August 18, 2008
Malone v. Walls, No. 06-3235
In a first-degree murder case, denial of habeas relief is reversed and remanded where: 1) an ineffective assistance of counsel claim was not procedurally defaulted; 2) counsel's failure to call a potentially exculpatory witness at trial was prejudicial; and 3) a remand was necessary to determine whether counsel's cumulative errors constituted ineffective assistance. .

U.S. 7th Circuit Court of Appeals, August 18, 2008
Grieveson v. Anderson, No. 05-4681
In a 42 U.S.C. section 1983 suit claiming that plaintiff was beaten by other inmates and that his safety and medical needs were neglected by jail staff while plaintiff was a pretrial detainee, summary judgment for defendants is affirmed in part and reversed and remanded in part where: 1) dismissal of defendant-city did not effectuate the dismissal of defendants-county employees; 2) plaintiff failed to present evidence to support his claims against defendants in their official capacity demonstrating that defendants had acted pursuant to an official custom or policy; 3) with respect to all but one of his claims of deliberate indifference to safety needs, plaintiff did not demonstrate that individual defendants knew of risks to plaintiff's safety posed by other inmates; and 4) genuine issues of material fact existed as to whether individual defendants were deliberately indifferent to plaintiff's medical needs, and as to whether defendants could be held liable on a state-law neg! ligence claim.

U.S. 7th Circuit Court of Appeals, August 19, 2008
US v. Clark, No. 07-1297
Amended judgment correcting a sentence for possessing and conspiring to possess cocaine with intent to distribute is affirmed where: 1) a mandatory minimum sentence was statutorily required, and the sentencing court was required to invoke Fed. R. Crim. P. 35(a) to correct its initial imposition of a lesser sentence; and 2) judge-found facts based on a preponderance of the evidence standard were sufficient to determine the drug quantity.

U.S. 7th Circuit Court of Appeals, August 19, 2008
US v. Carter, No. 07-2438
Sentence for tax fraud, money laundering, and engaging in illicit monetary transactions is affirmed over the government's objections as to: 1) findings based on defendant's age that she was unlikely to commit future crimes; 2) a finding that defendant's offenses were not typical money-laundering offenses; and 3) several other mitigating circumstances found pursuant to consideration of the 18 U.S.C. section 3553(a) factors.

U.S. 7th Circuit Court of Appeals, August 20, 2008
US v. Cannon, No. 06-3461
Conviction and sentence for distributing crack cocaine are affirmed over objections that: 1) there was insufficient evidence to convict given the failure of recording equipment that was to audiotape the drug transaction; 2) deposition testimony of an unavailable witness used against defendant was prejudicial and violated defendant's Sixth Amendment rights; and 3) the judge used a preponderance of the evidence standard to find drug quantities that subjected defendant to a mandatory minimum sentence.

U.S. 7th Circuit Court of Appeals, August 20, 2008
US v. Reed, No. 07-2077
Convictions for being a felon and a drug user in possession of a firearm are affirmed over claims that: 1) consent to search defendant's residence given by a co-tenant was invalid; and 2) a proposed jury instruction was improperly denied.

U.S. 7th Circuit Court of Appeals, August 20, 2008
US v. Vinyard, No. 07-2304, 07-2674
Vacatur of defendant's guilty plea and sentence for manufacturing, possessing, and possessing with intent to distribute methamphetamine is vacated, and writ of mandamus issued ordering reinstatement of that sentence, where: 1) jeopardy had attached at sentencing, creating the possibility of a double-jeopardy challenge if the government subjected defendant to a new trial and therefore making the normal appeal process an inadequate remedy; 2) release of defendant pending re-trial, and the possibility of acquittal at a second trial, constituted irreparable harm; 3) the district court erred in applying Fed. R. Crim. P. 35(a) to correct its own alleged errors in sentencing defendant; and 4) the district court violated Fed. R. Crim. P. 11(e) by setting aside defendant's guilty plea.

U.S. 7th Circuit Court of Appeals, August 20, 2008
US v. Hicks, No. 07-3613
In a prosecution for being a felon in possession of a firearm and possession of a firearm not registered to defendant, denial of a motion to suppress is vacated and case remanded where: 1) defendant did not object to a search of his home by police; 2) defendant was not removed from the home for the specific purpose of preventing him from objecting to a search; 3) defendant's girlfriend freely and voluntarily consented to the search; but 4) further factfinding was required to determine if officer's statement to girlfriend that he would get a warrant if consent was not given was based on a reasonable belief that he could, in fact, obtain a warrant. .

U.S. 7th Circuit Court of Appeals, August 21, 2008
US v. Carson, No. 07-2944
Sentence for conspiring to transport a minor across state lines for the purpose of unlawful sexual activity and interstate travel to engage in illicit sexual conduct is affirmed where, for purposes of applying a sentencing enhancement, the minor victim was properly determined to be in defendant's custody, care, or supervisorial control, despite argument that the victim's mother's presence gave her sole custody and control.

U.S. 7th Circuit Court of Appeals, August 21, 2008
Wozny v. Grams, No. 07-3700
Denial of habeas relief to petitioner convicted of sexual assault of children is affirmed over claims that his pleas were not knowing and voluntary, where: 1) petitioner's pleading no contest and apologizing to his victims were admissions of guilt; 2) the record indicated that petitioner was aware of the elements of his crimes when he entered his plea; and 3) the limited time afforded petitioner prior to trial to agree to the pleas did not make them involuntary. ..

U.S. 7th Circuit Court of Appeals, August 21, 2008
Wheeler v. Lawson, No. 07-1791
In a 42 U.S.C. section 1983 suit alleging that defendant-sheriff's officer unlawfully arrested plaintiff without probable cause for maintaining a common nuisance, summary judgment for defendant is affirmed where: 1) defendant could not demonstrate that plaintiff had knowledge that her garage was being used to manufacture methamphetamine, and so lacked probable cause to arrest plaintiff; but 2) defendant was entitled to qualified immunity on the basis that a reasonable officer could have believed that probable cause existed.

U.S. 7th Circuit Court of Appeals, August 22, 2008
US v. Burgos, No. 06-4091
Conviction for illegal reentry following deportation is affirmed where: 1) an alien's warrant of deportation and certificate of nonexistence of record are nontestimonial business records not subject to the requirements of the Confrontation Clause, and may be used at trial by the government to prove its case; and 2) there was no error in the denial of defendant's motion for new counsel on the morning of trial.

U.S. 9th Circuit Court of Appeals, August 18, 2008
US v. Jaeger, No. 06-30621, 06-30622
Defendant's conviction for drug- and firearms-related offenses is affirmed where: 1) the district court did not prevent defendant's wife from testifying, did not threaten her, did not coerce her, did not substantially interfere with her decision whether to testify, and did not drive her off the stand; 2) the court merely provided the witness with information and access to her counsel once it became aware of possible self-incrimination and 3) thus, its admonition to the wife did not violate defendant's Sixth Amendment rights. ..

U.S. 9th Circuit Court of Appeals, August 19, 2008
Stoltie v. Tilton, No. 07-56079
The circuit court affirms the district court's decision, and adopts its opinion in Stoltie v. California, 501 F. Supp.2d 1252 (C.D. Cal. 2007), except for one section as to which it expresses no view, where: 1) the state appellate court misunderstood the confused and confusing explanation of reasonable doubt provided to the jury by the trial judge; and 2) this error led it to apply clearly established Supreme Court law regarding reasonable doubt in an unreasonable manner.

U.S. 9th Circuit Court of Appeals, August 20, 2008
US v. Hernandez-Orellana, No. 06-50584, 06-50620
Convictions for alien smuggling-related offenses are affirmed in part, reversed in part, and the sentences vacated and remanded where: 1) a reasonable jury could have determined that two defendants participated in a conspiracy to bring aliens from Mexico Mexico to the United States for financial gain in violation of federal laws; but 2) the en banc decision in United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007), decided during the pendency of this case compelled the reversal of their convictions on substantive "bringing to" counts.

U.S. 9th Circuit Court of Appeals, August 21, 2008
McMurtrey v. Ryan, No. 03-99002, 03-99009
In a pre-AEDPA case, grant of habeas corpus relief in a death penalty case is affirmed where: 1) there was substantial evidence, particularly by the time of sentencing, to suggest that petitioner's due process rights were violated when the state trial court failed to hold a hearing to determine whether he was competent to stand trial and be sentenced; and 2) this violation was not cured by a subsequent hearing thirteen years after trial.

U.S. 9th Circuit Court of Appeals, August 21, 2008
US v. Craighead, No. 07-10135
In a case addressing the question of under what circumstances under the Fifth Amendment does an interrogation by law enforcement officers in a suspect's own home turn the home into such a police-dominated atmosphere that the interrogation becomes custodial in nature and requires Miranda warnings, the court identifies four relevant factors: 1) the number of law enforcement personnel and whether they were armed; 2) whether the suspect was at any point restrained, either by physical force or by threats; 3) whether the suspect was isolated from others; and 4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made.

U.S. 9th Circuit Court of Appeals, August 21, 2008
Ngo v. Woodford, No. 03-16042
In a prisoner's civil rights suit on remand from the Supreme Court, dismissal of the suit is affirmed where prisoner failed to exhaust his administrative remedies for purposes of the Prison Litigation Reform Act (PLRA).

U.S. 9th Circuit Court of Appeals, August 22, 2008
US v. Easterday, No. 07-10347
A conviction for willful failure to pay over employee payroll taxes is affirmed where: 1) US v. Poll, 521 F.2d 329 (9th Cir. 1975), is no longer good law; 2) willfulness does not require the government to prove that a defendant had the ability to meet his tax obligations; 3) thus, the district court's refusal to give a Poll instruction to the jury and the instruction it did give on willfulness were proper; and 4) for similar reasons, the district court did not abuse its discretion in refusing to admit evidence proffered by defendant in order to show how and why he spent money owed to the IRS to pay other business expenses.

U.S. 9th Circuit Court of Appeals, August 22, 2008
Bull v. City & County of San Francisco, No. 05-17080, 06-15566
An order denying qualified immunity in an 42 U.S.C. section 1983 class action suit is affirmed where, under the circumstances of this case, San Francisco's blanket policy of strip searching without reasonable suspicion of all individuals arrested and classified for housing in the general jail population violated the arrestees' clearly established constitutional rights.

U.S. 10th Circuit Court of Appeals, August 18, 2008
US v. Contreras, No. 07-2145
A bank robbery conviction and life sentence is affirmed where: 1) a probation officer's testimony, which identified defendant as the robber from surveillance footage, was helpful to the jury and thus complied with Rule 701 of the Federal Rules of Evidence because she identified him based on her prior familiarity with his appearance; 2) her testimony also complied with Rule 403 and the Sixth Amendment because he had wide latitude to cross-examine the officer as he saw fit; and 3) a sentencing challenge was squarely foreclosed.

U.S. 10th Circuit Court of Appeals, August 19, 2008
US v. Torres-Romero, No. 07-1421
A sentence for illegally reentering the United States following a prior deportation is affirmed where the district court did not err in its application of a sixteen-level enhancement pursuant to U.S.S.G. section 2L1.2(b)(1)(A) because defendant's 1990 Colorado guilty plea admitted all of the material facts in the charging information, including that he distributed and sold a controlled substance. .

U.S. 10th Circuit Court of Appeals, August 19, 2008
US v. Farr, No. 07-6187
A conviction for tax fraud is reversed where during trial the government constructively amended the indictment against her, trying her not just for the crime described in the indictment (failure to pay quarterly employment taxes for a medical clinic) but also for a separate and additional offense (failure to pay a trust fund recovery penalty assessed against her personally). The circuit court does, however, reject a claim that there was insufficient evidence in the record to sustain her conviction, and that consequently she could not be subjected to retrial under a lawful indictment. .

U.S. 10th Circuit Court of Appeals, August 20, 2008
US v. Gallant, No. 07-1344, 07-1391
Two defendants' convictions for a variety of fraud-related crimes arising from and related to the operation of a credit card portfolio financed by an FDIC insured bank are affirmed with the exception of two counts, and all four defendants' sentences are vacated and remanded where the district court: 1) made erroneous Guidelines calculations, particularly with respect to amount of loss calculations; and 2) erred in holding that an individual and an entity were not victims under the MVRA, and therefore not entitled to restitution. .

U.S. 10th Circuit Court of Appeals, August 20, 2008
US v. Trujillo, No. 07-2233
An appeal challenging a sentence being a felon in possession of firearms and ammunition, entered following a plea agreement wherein defendant agreed not to appeal his sentence, is dismissed where the government complied with the plea agreement, and consequently the appeal waiver was enforceable. .

U.S. 10th Circuit Court of Appeals, August 20, 2008
US v. Villa-Vazquez, No. 07-3160
Absent extraordinary circumstances, once a defendant's guilty plea has been accepted by the court, the government is bound by its plea-agreement promises regarding sentencing recommendations even if the plea agreement has not yet been accepted by the court, and even if it is ultimately rejected by the court. A sentence pursuant to a plea to illegal reentry after deportation for an aggravated felony is reversed and remanded for resentencing before a different judge where: 1) the government was bound by a plea agreement after defendant's guilty plea was accepted by the court; and 2) it blatantly violated its promises under the agreement. .

U.S. 10th Circuit Court of Appeals, August 21, 2008
US v. Jarvi, No. 07-3200
Denial of a motion to suppress evidence in a prosecution for possessing, with intent to distribute, methamphetamine is affirmed where, for purposes of the "fruit of the poisonous tree" doctrine, defendant failed to demonstrate a "factual nexus" between a violation of his own Fourth Amendment rights in a search of his truck, and the discovery of the challenged drugs found in his house. His sentence is vacated and remanded where his right to allocution was violated. ...

U.S. 11th Circuit Court of Appeals, August 18, 2008
US v. Benbow, No. 07-10560
Conviction for conspiracy to possess with intent to distribute cocaine is reversed and remanded where, because all of the sellers were official or unofficial agents for the government, they could not be co-conspirators.

U.S. 11th Circuit Court of Appeals, August 18, 2008
Holland v. State of Florida, No. 07-13366
Denial of a petition for writ of habeas corpus for death row petitioner is affirmed where: 1) the petition was filed beyond the one-year limitations period provided by 28 U.S.C. section 2244(d)(1); and 2) there was no reversible error in court's district dismissal of petition.

U.S. 11th Circuit Court of Appeals, August 19, 2008
US v. Vega-Castillo, No. 07-12141
Sentence of 70 months for reentering the United States illegally after having been deported or removed is affirmed over claims of error that prior precedent, which "does not require the district court to depart based on the availability of the [fast-track] departure", was overruled by Kimbrough.

U.S. 11th Circuit Court of Appeals, August 20, 2008
Jones v. Walker, No. 04-13562
Denial of a petition for writ of habeas corpus from a conviction for felony murder and cruelty to a child is affirmed where petitioner failed to meet his burden of proving the waiver to his Sixth Amendment to counsel was unknowing.

U.S. 11th Circuit Court of Appeals, August 20, 2008
US v. Garey, No. 05-14631
In a case involving unsuccessful attempts to extort money by threatening to bomb various buildings in the state, conviction for multiple felony counts is affirmed where: 1) defendant's waiver of his Sixth Amendment right to counsel was knowing and voluntary; and 2) the trial court did not err by allowing defendant to represent himself at trial. ..

U.S. 11th Circuit Court of Appeals, August 22, 2008
US v. Diaz, No. 06-13782
Conviction for armed bank robbery, use of a firearm during a crime of violence, and possession of a firearm by a convicted felon is vacated and remanded where defendant did not knowingly waive his right to a jury trial.

Supreme Court of California, August 18, 2008
People v. Chance, No. S145458
In a case involving the "present ability" element of the crime of assault, the California Supreme Court rules that it is a defendant's action enabling him to inflict a present injury that constitutes the actus reus of assault. There is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay. .

Supreme Court of California, August 22, 2008
In re Lawrence, No. S154018
The California Supreme Court rules that, because the core statutory determination entrusted to the Board of Parole Hearings and the governor is whether an inmate poses a current threat to public safety for purposes of suitability for parole, the standard of review of such decisions is properly characterized as whether "some evidence" supports a conclusion that the inmate is unsuitable for parole because he or she currently is dangerous. Moreover, with regard to the aggravated circumstances of a commitment offense, to the extent certain decisions have been read to imply that a particularly egregious commitment offense will always provide the requisite modicum of evidence supporting the Board's or governor's decision, this assumption is inconsistent with the statutory mandate that the Board and the governor consider all relevant statutory factors when evaluating an inmate's suitability for parole, and inconsistent with the inmate's due process liberty interest in parole. .

Supreme Court of California, August 22, 2008
In re Shaputis, No. S155872
Denial of habeas relief from a decision denying petitioner parole is affirmed where "some evidence" in the record supported the governor's conclusion that petitioner remains a threat to public safety in that he has failed to take responsibility for the murder of his wife, and despite years of rehabilitative programming and participation in substance abuse programs, has failed to gain insight into his previous violent behavior, including the brutal domestic violence inflicted upon his wife and children for many years preceding the commitment offense. .

California Appellate Districts, August 19, 2008
People v. Meneses, No. A113017
Conviction and sentence for crimes related to defendant's participation in a scheme to defraud insurance companies is affirmed over claims of error regarding: 1) whether the court, on its own initiative (sua sponte), should have provided certain instructions to the jury; 2) prosecutorial misconduct; 3) whether the court should have sanitized a prior conviction for conspiring to forge immigration documents, by eliminating all reference to conspiracy when the prosecutor impeached defendant's credibility as a felon; 4) insufficiency of the evidence; and 5) ineffective assistance of counsel.

California Appellate Districts, August 19, 2008
P. v. Wyatt, No. C056249
An aggregate sentence of 50 years for possessing paraphernalia and possessing or manufacturing a weapon while in jail is affirmed where trial court did not abuse its discretion in failing to strike one or both of defendant's prior strike convictions.

California Appellate Districts, August 20, 2008
Piscitelli v. Salesian Society, No. B195450
In a negligence action against defendant-Salesian Society for failing to protect plaintiff from childhood sexual abuse at the hands of one of defendant's priests, judgment against defendant is affirmed where, if it is relevant to the issue, a witness may be impeached by evidence of a prior conviction in order to show bias, without regard to the nature of the underlying crime as it relates to the character traits of honesty and truthfulness.

California Appellate Districts, August 21, 2008
In re Arthur V., No. D052215
Conviction of juvenile for assault by means of force likely to produce great bodily harm, assault with a deadly weapon, and felony vandalism is affirmed where, under People v. Bailey, juvenile's criminal acts permissibly could be aggregated into a single felony offense.