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U.S. Supreme Court, October 14, 2008 Moore v. U.S., No. 07-10689 Sentence for possession of cocaine base with intent to distribute is reversed and the case remanded where the district court’s statements during sentencing showed that it did not think it had the discretion, which was later upheld by the Supreme Court in Kimbrough v. U.S., to reject the Guidelines’ crack-to-powder cocaine sentencing ratio. .
U.S. 2nd Circuit Court of Appeals, October 14, 2008 In re Vincent Basciano, No. 082157 Writ of mandamus seeking judge’s recusal based on government-furnished evidence suggesting that petitioner had plotted to have judge murdered, is denied where petitioner did not “clearly and indisputably” demonstrate that the district court abused its discretion. .
U.S. 2nd Circuit Court of Appeals, October 14, 2008 Brown v. Alexander, No. 071780 Following indictment against petitioner for criminal sale of a controlled substance in or near school grounds, denial of writ of habeas corpus is affirmed where: 1) the state courts reasonably determined that petitioner had not made out a prima facie case; and 2) petitioner’s post-conviction detention was not unlawful. .
U.S. 2nd Circuit Court of Appeals, October 14, 2008 In re the County of Erie, No. 075702 Following an order requiring the production of ten e-mail communications allegedly protected by the attorney-client privilege in a case involving a Fourth Amendment claim for invasive strip search, petition for writ of mandamus directing district court to vacate the order is affirmed where: 1) a party must rely on privileged advice from his counsel to make his claim or defense; 2) the district court erred in its ruling that the qualified immunity defense asserted by petitioners placed the privileged communications between the county attorney’s office and the sheriff’s personnel at issue; and 3) there was no unfairness to the respondents because they were “in no way worse off” as a result of the disclosure that communications existed than they would be if they were unaware of them.
U.S. 2nd Circuit Court of Appeals, October 14, 2008 US v. Huezo, No. 070031 Grant of motion for acquittal notwithstanding the guilty verdict is reversed and remanded where the district court erred in concluding that, on the basis of the evidence presented, no rational juror could have found that defendant had the requisite knowledge and intent to support his convictions for money laundering and conspiracy to commit money laundering.
U.S. 2nd Circuit Court of Appeals, October 15, 2008 US v. Rivera, No. 064946 Conviction and sentence for five counts involving the sexual abuse of children are affirmed over claims of error that: 1) certain photos of one of the minor victims were not “lascivious” within meaning of child pornography laws; 2) the jury was misled by the district court’s instructions; 3) the district court erred in denying his motion to sever the counts relating to one of the victims from the counts relating to the other victims; and 4) defendant’s sentence violated the Eighth Amendment.
U.S. 2nd Circuit Court of Appeals, October 16, 2008 US v. Luna, No. 073018 Judgment of acquittal notwithstanding the verdict for a cocaine-distribution conspiracy is reversed and remanded where there was sufficient evidence to support the jury’s determination that the defendant not only had a buyer-seller relationship with the head of the conspiracy but also knowingly and intentionally joined in and participated in the conspiracy.
U.S. 2nd Circuit Court of Appeals, October 16, 2008 US v. DeFilippo, No. 071618 Conviction and sentence for conspiring to racketeer, illegal gambling, and conspiring to collect credit through extortionate means is affirmed where: 1) though lower court erred in admitting certain testimony by a witness and his sentencing challenges, the error was harmless; 2) the district court appropriately considered murder to be relevant conduct under the Guidelines; 3) there was no support for defendant’s assertion that incarceration created a rebuttable presumption of withdrawal from a conspiracy; and 4) the district court did not abuse its discretion by resolving the dispute over attorney’s fees without a hearing.
U.S. 3rd Circuit Court of Appeals, October 16, 2008 US v. Goodson, No. 06-4895, 06-4896 A sentence for wire fraud which included a supervised-release condition requiring defendant to consent to a search of his place of business is affirmed where: 1) defendant’s failure to address the applicability of his waiver, in a plea agreement, of his right to a direct appeal did not foreclose him from challenging the waiver’s enforceability in his reply brief; but 2) the waiver in this case did encompass defendant’s right to appeal the conditions of his supervised release, and defendant waived his appeal rights knowingly and voluntarily. .
U.S. 5th Circuit Court of Appeals, October 13, 2008 Taylor v. Cain, No. 07-30709 In a collateral proceeding in a murder case, grant of habeas relief is affirmed where: 1) petitioner adequately exhausted his claims in state court; 2) the admission of hearsay testimony at his trial was erroneous; and 3) the state court’s holding that the error was harmless was contrary to, and an unreasonable application of, clearly established federal law.
U.S. 6th Circuit Court of Appeals, October 15, 2008 Thap v. Mukasey, No. 07-3752, 07-4168 Petition for review of a decision removing petitioner to Cambodia is denied where: 1) petitioner’s robbery conviction constituted a crime of violence that supported findings that he was removable; 2) a statutory ground for removal must have a “substantially identical” counterpart in the statutory grounds for exclusion in order to qualify for INA section 212(c), and the factual basis of the underlying criminal activity is irrelevant; 3) thus, petitioner was not eligible for section 212(c) relief; and 4) the evidence in this case did not compel a conclusion that it was “more likely than not” that he would be detained, let alone tortured, upon removal to Cambodia.
U.S. 6th Circuit Court of Appeals, October 15, 2008 US v. Jordan, No. 07-5696 A conviction and sentence for mail fraud and aggravated identity theft is affirmed over claims that: 1) there was a Speedy Trial Act violation; 2) evidence was unlawfully seized from his vehicle incident to a warrantless arrest without probable cause; 3) the district court erred in refusing to appoint standby counsel to assist his pro se defense at trial; 4) the district court failed properly to exercise its discretion under Fed. R. Crim. P. 16 to grant adequate remedies for alleged discovery violations by the government; 5) the government failed to provide timely notice under Fed. R. Evid. 902(11) of its intent to offer certain records into evidence; 6) the evidence was insufficient to support a conviction; and 7) the district court erred in sentencing him on one count in finding the amount of intended loss from his actions to be around $811,000.
U.S. 6th Circuit Court of Appeals, October 15, 2008 Mendoza v. Berghuis, No. 07-1115 Denial of a petition for a writ of habeas corpus from a conviction for assault with intent to commit murder, malicious destruction of property, carrying a concealed weapon, and possession of a firearm during the commission of a felony is affirmed over a claim that shackles restraining defendant during trial (but invisible to the jury) violated his constitutional rights because the jury likely knew he was wearing them. .
U.S. 6th Circuit Court of Appeals, October 16, 2008 US v. Williams, No. 06-2018 A conviction for possession of a controlled substance with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime is affirmed where: 1) the district court correctly found that a search warrant established a nexus between defendant’s suspected possession of the handguns and his residence sufficient to support the issuing judge’s finding of probable cause; and 2) the district court correctly found that the warrant application included testimony and evidence sufficient to support the issuing judge’s finding of probable cause.
U.S. 6th Circuit Court of Appeals, October 17, 2008 US v. Henry, No. 05-2084, 05-2282 In a case arising from a large-scale drug-trafficking operation that transported cocaine on musical-band tour buses from Los Angeles to Detroit and other cities, defendant’s conviction for conspiracy to possess cocaine with the intent to distribute is affirmed but his 180-month sentence vacated where: 1) a claim that that he was denied a fair trial because of prosecutorial misconduct during closing argument is rejected; but 2) the below-Guidelines sentence required vacatur pursuant to the government’s challenge to its reasonableness, as the sentence was not adequately explained.
U.S. 7th Circuit Court of Appeals, October 14, 2008 Arreola v. Godinez, No. 07-1700 In a putative class-action suit by an inmate challenging a jail’s policy of denying crutches to injured inmates in certain areas of the jail, denial of certification of a class for injunctive relief is affirmed, and denial of certification of a class for damages is remanded where: 1) plaintiff had standing to sue; 2) plaintiff’s second amended complaint was not time-barred; 3) the proposed class for injunctive relief did not meet the Fed. R. Civ. P. 23(b)(2) requirements for certification; and 4) remand was necessary for consideration of whether the proposed damages class met the Rule 23(b)(3) requirements.
U.S. 7th Circuit Court of Appeals, October 14, 2008 US v. Jackson, No. 07-1449, 07-1577 Convictions for mail fraud and conspiracy are affirmed over claims of error regarding: 1) the sufficiency of the evidence supporting the convictions; 2) due process; 3) ineffective assistance of counsel; 4) the admissibility of evidence concerning credit-card fraud; 5) the admission of the prior conviction of one defendant; and 6) the denial of a motion for a new trial on the basis of newly discovered evidence.
U.S. 7th Circuit Court of Appeals, October 15, 2008 Burr v. Pollard, No. 07-4031 In a first-degree murder case, denial of habeas relief with regard to sentencing is affirmed where: 1) the sentencing judge’s error in considering portions of the presentence report that he had previously agreed to strike was harmless; and 2) there was no Fifth Amendment violation in the consideration of defendant’s refusal to testify at sentencing.
U.S. 8th Circuit Court of Appeals, October 14, 2008 US v. Chahia, No. 073594 Conviction and life imprisonment-sentence for conspiracy to possess with intent to distribute substance containing a detectable amount of methamphetamine and intent to distribute a controlled substance is affirmed over claims of error that: 1) there was insufficient evidence to support the jury’s verdict; 2) the district court abused its discretion in denying his motion for continuance; 3) the district court erred in allowing hearsay testimony; and 4) defendant’s life sentence constituted unconstitutional cruel and unusual punishment.
U.S. 8th Circuit Court of Appeals, October 16, 2008 US v. Morelos, No. 07-3598 Defendant’s drug conspiracy conviction and sentence is affirmed where: 1) the evidence was sufficient to support the conviction; 2) there was no error in the determination of the amount of drugs attributable to him; 3) a three-level enhancement he received for being a manager or supervisor in a conspiracy involving five or more persons was proper; and 4) the sentence was not unreasonable. .
U.S. 8th Circuit Court of Appeals, October 17, 2008 US v. Miner, No. 08-1796 In a case arising after defendant failed to appear to testify in a criminal trial pursuant to subpoena, her 12-month sentence for felony criminal contempt of a lawful court order is affirmed where, despite the fact that the parties recommended a sentence of drug treatment, a weekend in jail, and a $500 fine, the court did not abuse its discretion in rejecting the parties’ plea agreement and imposing the within-Guidelines sentence.
U.S. 9th Circuit Court of Appeals, October 15, 2008 US v. Armstead, No. 06-30550 In a challenge to the sentence given in a bank fraud case, the sentence is vacated and case remanded for resentencing where the district court 1) miscalculated the number of victims under United States Sentencing Guidelines (U.S.S.G.) section 2B1.1(b)(2); and 2) erred by failing to apply U.S.S.G. section 5G1.3(b)(1) for time served.
U.S. 10th Circuit Court of Appeals, October 16, 2008 Boyle v. McKune, No. 06-3025 Denial of habeas relief from a conviction and 424-month sentence for aggravated criminal sodomy and sexual battery is affirmed where: 1) petitioner was not entitled to an evidentiary hearing on his claim of ineffective assistance of trial counsel; 2) his trial counsel was not constitutionally ineffective for failing to interview or call to the stand certain witnesses; and 3) his appellate counsel was not ineffective for failing to challenge the sufficiency of the evidence on direct appeal.
U.S. 11th Circuit Court of Appeals, October 16, 2008 US v. Singleton, No. 0713329 Conviction for conspiracy to distribute and possess with intent to distribute a controlled substance is affirmed, and sentence is reversed where: 1) the district court did not clearly err in determining that both requirements for admitting statement of a co-conspirator were met as a matter of fact and thus, did not abuse its discretion in admitting the statement; 2) if there was any error in admitting evidence of flight and in the jury instruction, it was harmless in light of the abundance of evidence against defendant; 3) the cumulative error doctrine was unavailing; and 4) the district court clearly erred in calculating the quantity of crack cocaine present that yielded a base offense level of 36, and this error was not harmless.
Supreme Court of Florida, October 16, 2008 In re: Amendments to Fla. R. Crim. P., Fla. R. Juv. P., and Fla. Fam. L. R. P. – Report of the Task Force on Treatment-Based Drug Courts, No. SC06-434 Upon consideration of submissions by the Juvenile Court Rules Committee and the Task Force on Treatment-Based Drug Courts, the court declines to adopt a proposed amendment to Fla. R. Juv. Pro. 8.010.
Supreme Court of Florida, October 16, 2008 The Florida Bar v. De la Torre, No. SC07-1633 In an attorney discipline case, a referee’s finding of guilt is approved, but the suspension recommendation is rejected as too lenient where: 1) the referee’s findings of aggravating factors, with one exception, were supported by competent and substantial evidence; and 2) defendant’s concealment from the state bar of his nolo contendere pleas to felonies was egregious misconduct warranting an eighteen-month suspension.
Supreme Court of Florida, October 16, 2008 In re: Standard Jury Instructions in Criminal Cases – Report No. 2008-05, No. SC08-744 Upon recommendation of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the court authorizes the publication and use of new and amended instructions.
Supreme Court of Florida, October 16, 2008 In re: Amendments to Fla. Rules for Certification & Regulation of Court Interpreters, No. SC08-1671 Upon recommendation of the Court Interpreter Certification Board, the court adopts amendments to the rules. ..
Supreme Court of Delaware, October 16, 2008 Hignutt v. Delaware, No. 169, 2008 Convictions for felony theft and falsifying business records are affirmed where: 1) a witness’s testimony about his personal goals was routine background information and not unfairly prejudicial to defendant; and 2) defendant was not entitled to a jury instruction on lesser-included offenses.
California Appellate Districts, October 14, 2008 Woods v. Shewry, No. C056072 In a constitutional challenge to several domestic violence programs and programs for inmate mothers, denial of petition for writ of mandate is reversed where: 1) the gender-based classifications in the challenged statutes that provide programs for victims of domestic violence violated equal protection; 2) male victims of domestic violence are similarly situated to female victims for purposes of the statutory programs and no compelling state interest justified the gender classification; and 3) plaintiffs failed to show men are similarly situated to women for purposes of the prison programs for inmate mothers. ..
Texas Court of Criminal Appeals, October 15, 2008 Ex Parte Campbell, No. AP-75,838 In a habeas proceeding for a habitual offender convicted of burglary, challenging the imposition of special parole conditions for sex offenders, habeas relief is denied where: 1) a releasee may be required to comply with sex offender conditions of early release, even if he has never been convicted of a “reportable” sex offense; and 2) the conditions were not imposed in violation of due process.
Texas Court of Criminal Appeals, October 15, 2008 Hernandez v. Texas, No. PD-1879-06 Conviction for capital murder is affirmed where the out-of-court statement of a co-defendant was properly admitted as nonhearsay evidence for impeachment purposes only.
Texas Court of Criminal Appeals, October 15, 2008 Littrell v. Texas, No. PD-1555-07 Conviction and sentence for felony murder are affirmed, and conviction and sentence for aggravated robbery are reversed, where: 1) aggravated robbery was a lesser-included offense of felony murder, and there was no clear legislative intent that an accused should be punished twice for a single act that included both crimes; and 2) defendant’s conviction and sentence for the lesser-included offense were therefore in violation of the Double Jeopardy Clause.