Criminal Law Library Blog

From: Findlaw Case Summaries, September 5, 2008

Summaries from September 1-5, 2008.

To view these cases distributed by Findlaw.com you must first sign in to Findlaw.com. "Findlaw summaries [may] include opoinions that have not yet been released for publication and may be subject to modification, correction or withdrawl

U.S. 1st Circuit Court of Appeals, September 03, 2008
US v. Hernandez, No. 071828
In criminal defendant's objection to two-point sentencing enhancement, sentence including period of criminal supervision for conspiracy to distribute heroin is affirmed where: 1) defendant "committed the instant offense while under a[] criminal justice sentence," USSG section 4A1.1(d); and 2) the district court appropriately elevated his criminal history score by two points on that account.

U.S. 1st Circuit Court of Appeals, September 04, 2008
US v. Garcia-Alvarez, No. 071471, 071697
Conviction for carjacking and firearms offenses is affirmed over claims of error that: 1) the evidence proffered against defendant was not sufficient; and 2) the district court erred in denying defendant's motion for a new trial.

U.S. 2nd Circuit Court of Appeals, September 02, 2008
US v. Santos, No. 060833
Conviction for murder while engaging in a drug offense is affirmed where: 1) because some drug conspiracies in violation of 21 U.S.C. section 846 are "punishable under" section 841(b)(1)(A), criminal liability under section 848(e)(1)(A) requires no active involvement in drug distribution; 2) the nexus between a murder and a drug offense need not be more than the "substantive connection" described in US v. Desinor, 525 F.3d 193, 202 (2d Cir. 2008); and 3) the evidence adduced at trial that defendant killed the two victims while engaging in a drug offense punishable under 21 U.S.C. section 841(b)(1)(A) was sufficient for a jury to convict him under 21 U.S.C. section 848(e)(1)(A).

U.S. 2nd Circuit Court of Appeals, September 04, 2008
US v. Riggi, No. 061280
Conviction on charges arising out of involvement in an organized crime family, including racketeering, murder and related conspiracies, is vacated and remanded where admission of eight plea allocutions of non-testifying co-conspirators amounted to plain error under the intervening authority of Crawford v. Washington.

U.S. 2nd Circuit Court of Appeals, September 04, 2008
US v. Yannotti, No. 065571
Conviction and sentence for conspiring to engage in racketeering in violation of the Racketeer Influenced and Corrupt Organizations (RICO) are affirmed over claims of error that: 1) the evidence was not legally sufficient to establish defendant's conviction for RICO conspiracy; 2) the district court erred in admitting the contents of two intercepted phone calls and allowing a witness to interpret those phone calls; 3) one of the racketeering acts alleged in the indictment was improperly vague; and 4) the district court erred in rendering his sentence.

U.S. 3rd Circuit Court of Appeals, September 02, 2008
US v. Green, No. 06-2468
Conviction for distribution of cocaine is vacated and remanded for a new trial where: 1) the written statement of a confidential informant naming defendant as the person who had sold him drugs in a controlled buy was hearsay and not subject to an exception as a present-sense impression; 2) the prosecution could not use in its case-in-chief as substantive evidence the responses and reactions of defendant upon seeing a video purporting to depict him selling drugs, when the showing of the video preceded the administration of Miranda warnings; and 3) because of the Miranda violations prior to the showing of the video, defendant's inculpatory post-Miranda statements made after seeing the video were inadmissible.

U.S. 3rd Circuit Court of Appeals, September 03, 2008
Kindler v. Horn, No. 03-9010, 03-9011
In a capital-murder case, petition for a writ of habeas corpus is granted where: 1) the time period for filing the petition was tolled during state-court proceedings, and the federal petition was therefore timely; 2) the state fugitive-forfeiture rule did not apply to procedurally default the petition; 3) the jury instructions and verdict sheet that were used during the penalty phase of petitioner's trial denied him due process of law pursuant to Mills v. Maryland, 486 U.S. 367 (1988); and 4) petitioner was denied the effective assistance of counsel during the penalty phase.

U.S. 3rd Circuit Court of Appeals, September 04, 2008
US v. Whitted, No. 06-3271
Denial of motion to suppress and convictions for possession with intent to distribute and importation of controlled substances are affirmed where: 1) the Fourth Amendment requires reasonable suspicion to justify a border search of a private passenger cabin aboard a cruise liner arriving in the U.S. from a foreign port; and 2) on the facts of this case that standard was satisfied.

U.S. 3rd Circuit Court of Appeals, September 04, 2008
US v. Sevilla, No. 07-1105
Sentence for conspiracy to distribute, and to possess with intent to distribute, cocaine base is vacated and remanded where, when a district court fails to address a defendant's colorable argument for a lower sentence under 18 U.S.C. section 3553(a), and the defendant fails to object, the argument is nonetheless preserved for appeal under a standard requiring meaningful consideration of the 3553(a) factors.

U.S. 3rd Circuit Court of Appeals, September 05, 2008
US v. Wecht, No. 08-2258
In a trial accusing a public official of misusing his office for private financial gain, denial of motion to dismiss indictment on double jeopardy grounds is affirmed, and case remanded for reassignment to a different judge, where: 1) the declaration of a mistrial due to a deadlocked jury was procedurally flawed; 2) a violation of Fed. R. Crim. P. 26.3 lessens the degree of deference accorded to a district court's finding of manifest necessity of a mistrial; but 3) an analysis of the factors for consideration of declaration of a mistrial contained in Comment 9.06 of the model criminal jury instructions supported the conclusion that there was manifest necessity to declare a mistrial in this case.

U.S. 4th Circuit Court of Appeals, September 02, 2008
US v. Moses, No. 074508
Conviction following plea of guilt to possession of crack cocaine and to being a felon in possession of a firearm was sentenced to 262 months' imprisonment is affirmed over claims of error that: 1) the police officers' warrantless entry into the two residences was unsupported by probable cause and exigent circumstances; and therefore 2) defendant's Fourth Amendment right to be free from unreasonable searches was violated.

U.S. 4th Circuit Court of Appeals, September 03, 2008
US v. Srivastava, No. 074386
Order suppressing evidence seized by federal officers from residence and medical offices of doctor-plaintiff is vacated and remanded where: 1) the evidence suppressed was constitutionally seized and within the scope of the search warrants; and 2) the court's blanket suppression of all seized evidence was erroneous.

U.S. 6th Circuit Court of Appeals, September 02, 2008
Slusher v. Terry, No. 071756
In a claim by plaintiff that defendant deputies seized her in violation of her Fourth Amendment rights during the course of the officers' visit to her property to aid a neighbor's reclamation of property pursuant to a court order, summary judgment in favor of defendants is affirmed where: 1)defendants were entitled to qualified immunity because plaintiff failed to demonstrate that the force used was clearly established as unconstitutional in a "particularized" sense; 2) plaintiff failed to present any facts that would allow a jury to support her section 1983 claim against the county; and 3) plaintiff's own testimony demonstrates the officers did not conduct an illegal search and the only property searched for or seized was the property listed on the court order.

U.S. 6th Circuit Court of Appeals, September 04, 2008
Tucker v. Palmer, No. 071408
In a claim for relief from a conviction for second-degree home invasion, grant of petition for habeas corpus is reversed where: 1) it was not unreasonable for the trier-of-fact to link facts together to conclude petitioner entered home without permission; 2) there was sufficient evidence for the factfinder to conclude that petitioner had the intent to commit a larceny; and 3) the district court erred in finding that there was insufficient evidence to support petitioner's state conviction.

U.S. 6th Circuit Court of Appeals, September 04, 2008
Boykin v. Webb, No. 065775
In conviction for murder and related charges, denial of writ of habeas corpus is reversed where petitioner's Sixth Amendment right to effective assistance of counsel was violated at trial and on appeal due to the actual conflict of interest his attorney labored under.

U.S. 7th Circuit Court of Appeals, September 02, 2008
US v. Wheeler, No. 07-1816
Conviction and sentence for embezzling, stealing or otherwise converting employee contributions to a company's health insurance and 401(k) funds in violation of 18 U.S.C. sections 669 and 664, are affirmed over claims that the district court: 1) erred in defining the mens rea element of the offense under section 669; 2) admitted impermissible prior act evidence in violation of Federal Rule of Evidence 404(b); and 3) imposed an enhancement that lacked evidentiary support.

U.S. 7th Circuit Court of Appeals, September 02, 2008
US v. James, No. 07-1328, 07-1810, 07-2208
Defendants' convictions and sentences for conspiring to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base are affirmed over various claims that district court erred by denying their motions for judgments of acquittal because the evidence presented at trial was insufficient to support their convictions.

U.S. 7th Circuit Court of Appeals, September 02, 2008
US v. Ochoa-Zarate, No. 06-3815
Conviction for conspiracy to distribute methamphetamine is affirmed over claims that the prosecutor improperly: 1) argued in closing that as of the last day of trial, unlike his co-defendant who had pled guilty, defendant had failed to take responsibility for his actions; and 2) improperly questioned the trooper who arrested defendant whether it was uncommon to find drugs after persons had consented to search.

U.S. 7th Circuit Court of Appeals, September 02, 2008
Klebanowski v. Sheahan, No. 06-2572
In an inmate action filed under 42 U.S.C. section 1983, alleging prison officials were deliberately indifferent to the risks caused by housing an armed gang population with non-gang members and periodically leaving them unsupervised, judgment to defendant is affirmed where there is no evidence showing that any of the defendants was deliberately indifferent to a known risk of substantial harm to plaintiff.

U.S. 7th Circuit Court of Appeals, September 02, 2008
Jackson v. Kotter, No. 06-1922
In an action for injuries sustained by plaintiff while in custody in prison, dismissal of claim under the suit under the Federal Tort Claims Act, 28 U.S.C. section 2679, is reversed because defendant's amendment naming the United States related back to his original pleading, which was timely filed. Dismissal of all other claims and grant of summary judgment to one defendant is affirmed.

U.S. 7th Circuit Court of Appeals, September 02, 2008
US v. Ervin, No. 05-4700, 06-1834
Denials of a motion to sever and motions for a new trial on charges relating to a drug-trafficking conspiracy are affirmed where: 1) the joinder of homicide and drug-conspiracy charges did not prejudice defendant in the absence of a showing of specific examples of testimony he wished to give concerning the homicide counts that would be prejudicial as to the drug counts; 2) a jury instruction was sufficient to prevent a prejudicial "spill-over" effect when a single jury considered both the homicide and drug charges; and 3) defendants waived their arguments that the district court improperly considered evidence in denying their new-trial motions by failing to object to the court itself.

U.S. 7th Circuit Court of Appeals, September 02, 2008
Alvear-Velez v. Mukasey, No. 07-2133
Petition for review of a BIA decision to remove petitioner on the ground that he had been convicted of an aggravated felony is denied where: 1) although a prior deportation proceeding based on the same felony conviction had already been concluded, res judicata did not apply to preclude the use of the conviction in a new removal proceeding because intervening legislation had retroactively expanded the definition of an aggravated felony to include petitioner's crime; and 2) transitional rules set forth in the Immigration Reform and Immigrant Responsibility Act applied only to procedural requirements for removing aliens and not to the substantive changes to the definition of aggravated felony.

U.S. 7th Circuit Court of Appeals, September 02, 2008
Vaca-Tellez v. Mukasey, No. 07-2397
Petition for review of a BIA decision to remove petitioner on the ground that he had been convicted of an aggravated felony is denied where burglary to an automobile was an aggravated felony for the purposes of a removal proceeding.

U.S. 7th Circuit Court of Appeals, September 02, 2008
US v. Knox, No. 07-2552
Conviction for making false statements in connection with defendant's resettlement in the U.S. from the Ivory Coast is affirmed where: 1) defendant's objections to venue were waived; 2) defendant's requests for funds to travel to Africa to conduct discovery were properly denied; and 3) the evidence was sufficient to support the convictions.

U.S. 7th Circuit Court of Appeals, September 02, 2008
US v. Griesbach, No. 07-3357
Conviction for possession of child pornography is affirmed where a verbal description of one pornographic photograph found on the Internet and traced to defendant's computer constituted sufficient probable cause to support a search warrant.

U.S. 7th Circuit Court of Appeals, September 03, 2008
US v. Campos, No. 07-1561
Conviction and sentence for participation in a drug conspiracy are affirmed over objections that: 1) there was a fatal variance between the indictment's charge of a single conspiracy and the proof offered at trial of three related conspiracies; 2) a jury instruction should have been given regarding the proof that defendant had belonged to a particular conspiracy; 3) investigators' applications to use wiretap surveillance failed to show necessity, and evidence gathered from wiretaps should therefore have been suppressed; and 4) his sentence was unreasonable.

U.S. 7th Circuit Court of Appeals, September 04, 2008
US v. Rogers, No. 06-3730
Convictions for making false statements on a firearm-purchase form and being a felon in possession of a firearm are affirmed where: 1) a period of probation following release from prison for a prior conviction is not part of the "confinement imposed for that conviction" for purposes of determining the ten-year limitation on introducing evidence of prior convictions under Fed. R. Evid. 609(b); but 2) in this case, the admission of defendant's prior conviction was harmless error.

U.S. 7th Circuit Court of Appeals, September 04, 2008
US v. Mosby, No. 07-3032
Denial of motion to suppress and convictions for drug and firearms offenses are affirmed where the police stop and subsequent search of the van in which defendant was a passenger were supported by probable cause.

U.S. 7th Circuit Court of Appeals, September 05, 2008
US v. Reyes, No. 06-3607
Convictions for conspiracy, bank robbery, and a handgun crime are affirmed where: 1) evidence of prior bank robberies in which defendant had participated was erroneously admitted, but the error was harmless; 2) limitations on defendant's cross-examination of a government witness did not violate the Confrontation Clause; and 3) a motion for new trial on the basis of newly-discovered evidence was properly denied where the new evidence proffered would not have affected the verdict.

U.S. 7th Circuit Court of Appeals, September 05, 2008
Carvajal v. Dominguez, No. 07-2598
In a suit alleging constitutional violations by a DEA officer in connection with the criminal prosecution of plaintiff for money laundering, denial of summary judgment for defendant on one of four claims is reversed where: 1) the denial of defendant's claim of qualified immunity was an appealable collateral order; and 2) defendant committed no Brady violation and was therefore entitled to qualified immunity.

U.S. 7th Circuit Court of Appeals, September 05, 2008
US v. Allday, No. 07-2698
Sentence for receiving sexually explicit images of minors is affirmed over objections that the district court impermissibly applied a presumption of reasonableness to the sentencing range calculated under the guidelines. Read more...

U.S. 7th Circuit Court of Appeals, September 05, 2008
Smiley v. Thurmer, No. 07-2901
In a first-degree murder case, grant of a petition for habeas relief is affirmed where: 1) the police who arrested petitioner failed to give proper Miranda warnings; and 2) admission of statements made after the failure to Mirandize was prejudicial to petitioner.

U.S. 8th Circuit Court of Appeals, September 03, 2008
US v. Garth, No. 07-2330
Conviction and sentencing for conspiring to defraud the U.S. and aiding and abetting the making of false claims against the government, are affirmed where: 1) no facts considered had an extreme effect on sentencing; 2) sentencing related to charges of conspiracy; 3) any variance between claims proved at trial and stated in the indictment did not result in an increased sentence; and 4) evidence relied upon did not include hearsay or improper expert testimony and was of relevance which outweighed any prejudice to defendant.

U.S. 8th Circuit Court of Appeals, September 05, 2008
Barnett v. Roper, No. 07-1234
Denial of a petition for habeas corpus is affirmed where: 1) the Missouri procedural rule requiring sufficient pleading before granting an evidentiary hearing on ineffective assistance of counsel constituted independent and adequate state grounds barring federal review; 2) there was no clear and convincing evidence of discriminatory intent in jury selection; and 3) the prosecutor's comments at trial did not deny defendant due process. .

U.S. 8th Circuit Court of Appeals, September 05, 2008
US v. Ault, No. 07-3608
In a case challenging enhanced sentencing based on misdemeanors in which defendant was unrepresented, the sentence imposed is affirmed as not violating the Sixth Amendment right to counsel where: 1) two of the four misdemeanors considered did not include incarceration; and 2) plaintiff waived counsel in the remaining two misdemeanor matters.

U.S. 9th Circuit Court of Appeals, September 02, 2008
Johnson v. Knowles, No. 07-15221, CV-02-05309
In a habeas corpus case, denial of an untimely habeas petition is affirmed where petitioner conceded actual guilt, precluding access to the miscarriage of justice exception to the one year statute of limitations for habeas corpus petitions.

U.S. 9th Circuit Court of Appeals, September 02, 2008
Johnson v. Knowles, No. 07-15221
In a habeas corpus case, denial of an untimely habeas petition is affirmed where petitioner conceded actual guilt, precluding access to the miscarriage of justice exception to the one year statute of limitations for habeas corpus petitions. ..

U.S. 9th Circuit Court of Appeals, September 04, 2008
Cox v. Del Papa, No. 06-15106
In a habeas corpus case, an order denying habeas petition is affirmed with the Court holding that: 1) previous findings of incompetency to stand trial do not give a petitioner the right to a hearing on his ability to have waived his Miranda rights where petitioner does not argue that waiver was made incompetently or unintelligently; and 2) petitioner's claim of ineffective assistance by counsel in sentencing fail where plaintiff fails to put forth any mitigating evidence ignored by counsel.

U.S. 9th Circuit Court of Appeals, September 04, 2008
Paulino v. Harrison, No. 07-55429
In a habeas corpus case, grant of a habeas petition due to unconstitutionally constituted jury is affirmed where the petitioner made a strong prima facie showing of discriminatory intent in the pattern of the prosecutor's striking of potential jurors and the state offered no non-speculative evidence of non-discriminatory intent in jury selection.

U.S. 9th Circuit Court of Appeals, September 04, 2008
Rodriguez v. Smith, No. 07-16014
In a habeas corpus case challenging US Bureau of Prison (BOP) regulations, an order granting habeas corpus and directing the BOP to immediately consider transferring petitioner to a Residential Re-Entry Center (RRC) is affirmed because BOP regulations allowing prisoner transfer to RRCs only in the final ten percent of their sentences violate Congressional intent that the BOP is authorized to transfer prisoners at any time.

U.S. 9th Circuit Court of Appeals, September 05, 2008
US v. Bendtzen, No. 07-50249
In a case challenging an enhanced sentence under the U.S. Sentencing Guideline Manual, sentence is affirmed where use of a fake bomb during a bank robbery constitutes "a dangerous weapon. . .otherwise used" and thus a four level sentence increase under U.S.S.G. section 2B3.1(b)(2)(D) and consideration of defendant's past crimes was not unreasonable in calculating a category VI criminal history.

U.S. 9th Circuit Court of Appeals, September 05, 2008
US v. Medina-Beltran, No. 06-10181
In an immigration case, an enhanced sentence is affirmed where: 1) the government's decision not to move for reduced sentencing was not arbitrary; and 2) separation of powers between the judicial and executive branches is not violated by section 401(g) of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, which requires the government to make a motion in order for a defendant to receive a reduced sentence under the U.S. Sentencing Guidelines.

U.S. 9th Circuit Court of Appeals, September 05, 2008
US v. Nader, No. 07-30311, 07-30316
In prosections related to a prostitution ring, convictions for violations of the Travel Act are affirmed where: 1) the convictions were based on telephone calls within a single state; and 2) the telephone is a facility in interstate commerce even when used for in-state calling.

U.S. 10th Circuit Court of Appeals, September 03, 2008
US v. Doddles, No. 07-6169
Convictions for drug possession, conspiracy and firearms charges are affirmed where: 1) there was sufficient evidence to support the convictions; and 2) testimony elicited by the prosecution regarding witness intimidation and the characterization of defendant's prior crimes did not affect defendant's substantial rights or undermine the fundamental fairness of his trial. .

U.S. 10th Circuit Court of Appeals, September 03, 2008
US v. Edwards, No. 07-6212
Convictions and sentence for drug possession, conspiracy and firearms charges are affirmed where: 1) there was sufficient evidence to support the convictions; 2) as applied on the facts of the case, the statute criminalizing firearm possession by drug users was not unconstitutionally vague; 3) evidentiary rulings by the trial court were either not an abuse of discretion or were harmless error; and 4) criminal history points were properly applied in calculating the guidelines sentencing range.

U.S. 11th Circuit Court of Appeals, September 02, 2008
US v. Gonzalez, No. 06-15365
Conviction and sentence for several counts of mail and wire fraud is affirmed in part and vacated in part where: 1) conviction is supported by the evidence and the district court did not commit any reversible error at trial; 2) because the fine imposed by the district court is not supported by the evidence in the record, sentence is vacated and case is remanded for resentencing.

U.S. 11th Circuit Court of Appeals, September 04, 2008
Powell v. Barrett, No. 0516734
In Fourth Amendment claims by plaintiffs who were strip searched as part of the point-of-entry booking process before they were placed into the general jail population for the first time, dismissal of claims is affirmed and case is remanded where it follows from precedent in the decision in Bell v. Wolfish that the less intrusive searches in this case do not violate the Fourth Amendment.

U.S. 11th Circuit Court of Appeals, September 05, 2008
US v. Schwartz, No. 0511715
Convictions for offenses committed in carrying out a fraudulent scheme to sell high-yield promissory notes issued by defendants' companies to individual investors, are affirmed in part and vacated in part where: 1) the district court committed a Bruton violation when it permitted the prosecutor to introduce into evidence an out-of-court statement by codefendant that implicated him in most, if not all, of the charged offenses; and 2) the admission of codefendant's affidavit, and the indispensable role it played in the prosecutor's closing argument to the jury, was not harmless beyond a reasonable doubt.

U.S. 11th Circuit Court of Appeals, September 05, 2008
US v. Moore, No. 0811230
Sentences for unrelated crack cocaine offenses are affirmed where: 1) the courts properly determined that they lacked authority under 18 U.S.C. section 3582(c)(2) to grant the requested sentence reductions in these cases; 2) when a retroactively applicable guideline amendment reduces a defendant's base offense level, but does not alter the sentencing range upon which his or her sentence was based, section 3582(c)(2) does not authorize a reduction in sentence; and 3) although Amendment 706 to the Sentencing Guidelines would reduce the base offense levels applicable to the defendants, it would not affect their guideline ranges because they were sentenced as career offenders under U.S.S.G. section 4B1.1.

Supreme Court of Florida, September 04, 2008
Jones v. State of Florida, No. SC06-474, SC07-729
In a capital-murder case, denial of postconviction relief is affirmed and petition for writ of habeas corpus denied over claims of error regarding: 1) Brady and Giglio violations by prosecutors; 2) counsel's failure to present mitigation evidence during the penalty phase; 3) summary denial of two additional ineffective assistance of counsel claims; 4) the constitutionality of Florida's capital sentencing scheme; 5) improper burden-shifting during the penalty phase; and 6) the advisory nature of the penalty phase jury verdict.

Supreme Court of Delaware, September 03, 2008
Dailey v. State of Delaware, No. 425, 2007
Conviction for first-degree rape is affirmed over objections that: 1) the complaining witness's videotaped statement should have been excluded as lacking adequate foundation; 2) the trial judge "chilled" defendant's right to testify by suggesting that he would admit the facts underlying an earlier conviction for a sex crime into evidence if defendant testified; and 3) the prosecutor's remarks during his rebuttal summation impermissibly shifted the burden of proof to defendant, requiring the trial judge to issue a curative instruction.

California Appellate Districts, September 02, 2008
P. v. Hernandez, No. B203151
In conviction for oral copulation with a person under the age of 16, denial of criminal defendant's motion to terminate the mandatory, lifetime requirement that he register as a sex offender is reversed and remanded where: 1) this appeal is cognizable without a certificate of probable cause; and 2) the mandatory sex offender statute is unconstitutional as applied to section 288a, subdivision (b)(2).

California Appellate Districts, September 04, 2008
People v. Castagne, No. A120694
In a conviction for unlawfully possessing methamphetamine, sentence finding defendant ineligible for probation is reversed where: 1) record does not establish that defendant's acts and omissions evinced a complete refusal to undergo treatment; and 2) facts in the present case are subject to conflicting inferences and the lower court never considered the question whether defendant demonstrated a complete refusal to undergo drug treatment.