U.S. 1st Circuit Court of Appeals, February 03, 2010
Abrante v. St. Amand, No. 09-1020
Denial of defendant's petition for habeas relief following conviction of armed robbery and related crimes is affirmed where: 1) defendant has not offered clear and convincing evidence that the state established agency relationships with inmate informants who then elicited admissions from him without the presence of counsel in violation of his Sixth and Fourteenth Amendment rights; 2) defendant's due process claim fails; 3) defendant's ineffective assistance of counsel claim is rejected; and 4) the issues defendant raises do not present the court with opportunity to consider his constitutional challenge to the AEDPA. .

U.S. 1st Circuit Court of Appeals, February 04, 2010
Estrada v. State of Rhode Island, No. 09-1149
In plaintiffs' action challenging the constitutionality of the actions of a police officer during a traffic stop, summary judgment in favor of defendant is affirmed where: 1) the officer is entitled to federal and state qualified immunity for any possible constitutional violations that he may have committed in asking the van's passengers questions about their immigration status and in contacting ICE; 2) the officer is entitled to qualified immunity for alleged violations of state or federal laws surrounding the seizure of plaintiffs and their subsequent escort to ICE office; 3) officer is entitled to qualified immunity for both pat down searches under federal and state law; and 4) the officer is entitled to qualified immunity for all of the challenged actions with respect to the Rhode Island Racial Profiling Prevention Act
e produced by Findlaw

U.S. 2nd Circuit Court of Appeals, February 03, 2010
Clear Channel Outdoor, Inc. v. City of N.Y., No. 09-1553
In a group of billboard owners' First Amendment challenge to provisions of New York City's Zoning Resolution, summary judgment for defendants is affirmed where: 1) the city was not required to adopt the "least restrictive means" of advancing its asserted interests; 2) the city did not violate the protections afforded commercial speech when it distinguished between plaintiffs' signs or billboards and those located on government property; and 3) the New York Constitution did not provide broader protection for commercial speech than the First Amendment.

U.S. 3rd Circuit Court of Appeals, February 01, 2010
Jackson v. Danberg, No. 09-1925
In an appeal brought by a class of inmates challenging the constitutionality of Delaware's lethal injection method for capital punishment, district court's grant of summary judgment is affirmed and a stay dissolved as: 1) under Baze v. Rees, 553 U.S. 35 (2008), an execution protocol that does not present a substantial risk of serious harm passes constitutional muster; and 2) on the record, Delaware's protocol presents no such risk.

U.S. 3rd Circuit Court of Appeals, February 04, 2010
Layshock v. Hermitage Sch. Dist., No. 07-4465
In plaintiffs' 42 U.S.C. section 1983 action arising after defendant-school district punished their son for creating a fake internet "profile" of his high school principal on MySpace.com, district court's judgment is affirmed where: 1) district court correctly ruled that the school district's response to the student's expressive conduct violated the First Amendment guarantee of free expression as allowing the school to punish him for conduct he engaged in using his grandmother's computer while at his grandmother's house would create an unseemly and dangerous precedent; 2) the school cannot punish the student merely because his speech reached inside the school; and 3) district court correctly concluded that the parents have not shown how their liberty interest was infringed by the School District's violation of their son's First Amendment right of expression.

U.S. 3rd Circuit Court of Appeals, February 04, 2010
Snyder v. Blue Mountain Sch. Dist., No. 08-4138
In plaintiffs' action against the school district for punishing their daughter for creating a internet profile of her high school principal on MySpace.com, district court's judgment in favor of the school district is affirmed where: 1) Tinker applies to student speech, whether on- or off-campus that causes or threatens to cause a substantial disruption of or material interference with school or invades the rights of other members of the school community, and here, because the student's internet profile featuring her principal alluded to his interest or engagement in sexually inappropriate behavior and illegal conduct, it threatened to substantially disrupt the Middle School regardless of whether the student's role in creating the profile was criminal or tortious; 2) school district did not violate the parents' Fourteenth Amendment rights to direct and control the upbringing of their child; 3) Pennsylvania permits school authorities to discipline students for conduct akin to ! this student's creation of the profile; and 4) the Middle School's policies under which the student was punished were not unconstitutionally vague or overbroad.

U.S. 3rd Circuit Court of Appeals, February 05, 2010
Clausell v. Sherrer, No. 06-4606
District court's denial of defendant's petition for habeas relief is affirmed where: 1) defendant forfeited his right to raise a Batson claim on appeal; 2) defendant's ineffective assistance claim fails to meet the first prong of the Strickland standard; and 3) a state court reasonably applied established federal law regarding Sixth Amendment ineffective assistance claims.

U.S. 4th Circuit Court of Appeals, February 03, 2010
King v. McMillan, No. 08-1667
In plaintiff-former deputy's suit against a sheriff in his official capacity under Title VII for sexual harassment and in his individual capacity under Virginia law for battery, district court's substitution of new sheriff as the defendant in her official capacity in the Title VII claim and jury verdict in favor of plaintiff is affirmed as to accept defendant's argument that because each sheriff in Virginia is by state law a singular entity with an independent tenure, she could not be substituted in her official capacity as the successor to the former sheriff in the Title VII claim, would be to allow a state law to override Title VII in violation of the Supremacy Clause. Defendants' remaining challenges are rejected.

U.S. 6th Circuit Court of Appeals, February 03, 2010
Koubriti v. Convertino, No. 09-1016
In plaintiff's civil action against defendant, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, for constitutional violations that defendant allegedly committed while serving as the Assistant United States Attorney who prosecuted plaintiff for conspiracy to provide material support or resources to terrorists and conspiracy to engage in fraud or misuse of visas, permits or other immigration documents, partial denial of defendant's motion to dismiss is reversed where: 1) plaintiff has pointed to no harm to himself from the investigation defendant conducted except the non-disclosure of certain exculpatory evidence at trial; and 2) defendant is shielded by prosecutorial immunity for such non-disclosures of exculpatory evidence.

U.S. 6th Circuit Court of Appeals, February 04, 2010
Jefferson v. Lewis, No. 08-2116
In plaintiff's action against a police officer under 42 U.S.C. section 1983 and state tort law for being shot by the officer on New Year's Eve while responding to reports of gunfire shots in the area, denial of defendant's motion for summary judgment on the basis of qualified immunity is affirmed where: 1) because plaintiff has produced adequate evidentiary support for her version of events and because plaintiff's version of events must be accepted as true for purposes of interlocutory appeal, the jury must decide whether plaintiff's Fourth Amendment rights were violated; and 2) in light of the competing inferences one might draw from the facts and their effect on the question of whether the officer's actions were objectively reasonable, a jury should find the facts that determine whether the officer is entitled to qualified immunity.

U.S. 7th Circuit Court of Appeals, February 02, 2010
US v. Turner, No. 08-2350
District court's disqualification of defendant's retained counsel from representing him in a prosecution for conspiracy to distribute cocaine because the attorney was also representing an alleged co-conspirator in sentencing proceedings is reversed and remanded for retrial as the district court's disqualification order violated defendant's Sixth Amendment right to choose his own counsel, and, under Gonzalez-Lopez, this constitutional violation is a structural error not subject to review for harmlessness.

U.S. 7th Circuit Court of Appeals, February 03, 2010
Parish v. City of Chicago, No. 09-1385
In plaintiff's 42 U.S.C. section 1983 action asserting Fourth Amendment violations for malicious prosecution against the City of Chicago and detectives from the Chicago Police Department, dismissal of the action is affirmed as Seventh Circuit precedent does not permit an action for malicious prosecution under section 1983 if a state remedy exists, and plaintiff has explicitly limited his appeal to asking to overrule the precedent and there is no reason to overturn circuit precedent.

U.S. 7th Circuit Court of Appeals, February 04, 2010
Olson v. Brown, No. 09-2728
In a putative class action lawsuit filed by an inmate against a county sheriff alleging several First Amendment violations and violations of Indianan law in a county jail, dismissal of the suit as moot on the ground that plaintiff was transferred out of the county jail before class certification is reversed and remanded as this case fits within the exception to the mootness doctrine carved out for inherently transitory cases.

U.S. 7th Circuit Court of Appeals, February 05, 2010
Lopez v. Thurmer, No. 08-2110
In a prosecution for first-degree intentional murder as a party to a crime, district court's denial of defendant's petition for habeas relief is affirmed as the court did not unreasonably apply clearly established federal law to the facts of defendant's case on claims that: 1) a state appellate court's application of Strickland to the facts of petitioner's case was unreasonable because the court applied the wrong standard under Wisconsin law to determine whether he was entitled to a felony-murder instruction; and 2) a state appellate court's factual determination that counsel had discussed a felony-murder instruction with him was unreasonable.

U.S. 9th Circuit Court of Appeals, February 01, 2010
Mahach-Watkins v. Depee, No. 08-15694
In a 42 U.S.C. section 1983 action involving a deadly shooting by police, the district court's award of $136,687.35 in attorney's fees to plaintiff (following $1 nominal damages awards on two claims) is affirmed where: 1) the legality of state-sanctioned force resulting in death constituted an important legal issue; and 2) the award would likely deter the officer from future unconstitutional conduct.

U.S. 9th Circuit Court of Appeals, February 05, 2010
Mortimer v. Baca, No. 07-55393
In a 42 U.S.C. section 1983 action alleging that plaintiffs were wrongfully detained in jail for periods of time ranging from twenty-six to twenty-nine hours after the court had authorized their releases, summary judgment for defendant is affirmed where: 1) the district court was not foreclosed on a prior remand from reviewing defendant's proffered evidence concerning deliberate indifference and ruling on the motion for summary judgment on its merits; and 2) given the Los Angeles Sheriff's Department's many affirmative efforts to remedy the problem, the evidence in the record did not support a finding of a policy of deliberate indifference.

U.S. 9th Circuit Court of Appeals, February 05, 2010
Waggy v. Spokane County, No. 09-35133
In a 42 U.S.C. section 1983 action claiming that county prosecuting attorneys and a county violated plaintiff's constitutional right to be free from arrest without probable cause, summary judgment for defendants is affirmed where: 1) the prosecutor's motion for a bench warrant essentially constituted the initiation of new judicial proceedings against plaintiff for violating the terms of his community placement, and was not an investigative act; and 2) plaintiff pointed to no county policy or custom that caused his alleged injury.

U.S. 10th Circuit Court of Appeals, February 03, 2010
Clyma v. Sunoco, Inc., No. 08-5153
In a non-party's appeal from the district court's denial of an "Application for Permission to Interview Jurors for Instructional Purposes" pursuant to N.D. Okla. L.R. 47.2.1, the appeal is construed as a writ of mandamus and the district court is directed to vacate its denial of the application and reconsider the matter pursuant to a meaningful exercise of its discretion in support of its ultimate determination.

U.S. 11th Circuit Court of Appeals, February 04, 2010
Clark v. Riley, No. 08-11978
In an action by a member of the Board of Trustees for Alabama State University seeking a declaratory judgment that an age limit in Ala. Code section 16-50-20(a) prohibiting a board member from serving beyond September 30 following his seventieth birthday did not apply to him, dismissal of the action is affirmed where the Code section relied upon by plaintiff applied only to the initial reshuffling of the board that occurred when a 1986 amendment was passed.

U.S. Fed. Circuit Court of Appeals, February 05, 2010
Totes-Isotoner Corp. v. US, No. 09-1113
In plaintiff's claim that the Harmonized Tariff Schedule of the United States unconstitutionally denies equal protection of the laws by imposing different rates of duty on seamed leather gloves "for men" and seamed leather gloves "for other persons", judgment of the United States Court of International Trade dismissing the claim is affirmed where: 1) the CIT's judgment concluding that it had jurisdiction under section 1581(i), that plaintiff has standing to bring its claims, and that plaintiff's equal protection claims are justiciable is affirmed; but 2) plaintiff has failed to state an equal protection claim due to its failure to plead facts sufficient to allege a claim of unconstitutional discrimination.

Supreme Court of California, February 01, 2010
In re E.J., No. S156933
In a unified habeas petition by four registered sex offenders challenging the constitutionality of a provision in the Jessica Law, that sets forth restrictions on where certain registered sex offenders subject to the lifetime registration requirement may reside, is transferred to the courts of appeal for further proceedings where: 1) the court rejects claims that Penal Code section 3003.5(b), construed as a statutory parole condition, is being impermissibly retroactively enforced as to the petitioners, and as thus enforced, constitutes an ex post facto law under the state and federal constitutions; and 2) with regard to defendants' remaining claims that section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on a number of their fundamental constitutional rights, evidentiary hearings will have to be conducted to establish relevant facts necessary to decide each such claim.

Supreme Court of Florida, February 04, 2010
Barnes v. State of Florida, No. SC08-63
Convictions of defendant for first degree murder and related crimes and sentnece of death are affirmed where: 1) defendant's plea was knowing, intelligent, and voluntary, and he was made aware of the consequences of his plea, was apprised of the constitutional rights he was waiving, and pled guilty voluntarily; 2) trial court acted properly in appointing independent counsel, who did not represent defendant but was directed to assist the court by investigating and presenting mitigation; 3) defendant's claim that the trial court erred when it considered the comprehensive pre-sentence investigation report over his objection is rejected; and 4) the death sentence is proportionate when considered in light of other death sentences that has been affirmed involving similar circumstances of murder, similar aggravators, and similar mitigation.

California Appellate Districts, February 01, 2010
Catsouras v. Dep't of the California Highway Patrol, No. G039916
In an action brought against the State of California Highway Patrol and two of its officers by the family of a decedent who died in an automobile accident, judgment of the trial court in favor of the defendants is reversed where: 1) the trial court erred in sustaining the officers' demurrers as to the invasion of privacy cause of action for dissemination of the pictures of decedent's decapitated body, as family members have a common law privacy right in the death images of a decedent, subject to certain limitations; 2) the trial court erred in sustaining the demurrers as to a cause of action for intentional infliction of emotional distress as plaintiffs' allegation that the officers had acted with the intent to cause them emotional distress, is sufficient to withstand a demurrer; 3) the trial court erred in concluding that plaintiffs had no cause of action for negligence as, applying the Rowland factors, CHP and its officers owed plaintiffs a duty of care not to place decede! nt's death images on the internet for the purposes of vulgar spectacle; 4) trial court properly sustained the demurrer of the CHP as to the section 1983 cause of action against it based on the doctrine of sovereign immunity; and 5) the section 1983 causes of action against the officers also fail as plaintiffs did not plead facts sufficient to allege that the actions of the officers violated any clearly established constitutional right.

California Appellate Districts, February 02, 2010
In re Watson, No. D055404
Petition for habeas relief by a defendant convicted of murder and related crimes is granted and his sentence is reversed in part and remanded where: 1) defendant's claim of sentencing error is timely as defendant has shown good cause for any delay in seeking habeas corpus relief based on Cunningham and Apprendi; and 2) defendant's upper term sentences for kidnapping and two firearm use enhancements violated the rule set forth in Apprendi. .

California Appellate Districts, February 02, 2010
People v. Leon, No. H034066
Trial court's imposition of various conditions on defendant's probation following conviction of drug related crimes is modified where: 1) the gang-association probation order is constitutionally defective because it lacks an explicit knowledge requirement; 2) the gang paraphernalia order is modified to include a knowledge requirement; 3) probation order with respect to the areas of gang-related activity is modified as it is constitutionally vague; and 4) the prohibition-from-court-proceedings condition is modified.

California Appellate Districts, February 04, 2010
In re A.G., No. D053991
Juvenile court's true finding that defendant violated the San Diego curfew ordinance is reversed as, although a more narrowly tailored curfew ordinance is within the legislative prerogative, the present ordinance sweeps too broadly and includes within its ambit otherwise innocent and legal conduct by minors even when they have the permission of their parents, and as such, the ordinance is unconstitutional.

U.S. Supreme Court, January 25, 2010
Hemi Group, LLC v. City of N.Y., No. 08–969
In an action by New York City against an online cigarette seller under the civil enforcement provision of RICO, alleging that defendant's failure to file Jenkins Act reports with New York State constituted mail and wire fraud, the court of appeals' judgment reversing the dismissal of the complaint is reversed where plaintiff failed to satisfy RICO's proximate cause requirement because defendant's obligation was to file Jenkins Act reports with the state, not the city, and the city's harm of lost tax revenue was directly caused by cigarette customers, not defendant.

U.S. 1st Circuit Court of Appeals, January 25, 2010
US v. Alfonso-Reyes, No. 06-1484
Convictions of defendants for defrauding the Farm Service Agency (FSA) of emergency loans and incentives to qualified farmers following the damage inflicted on the Commonwealth of Puerto Rico by a hurricane is affirmed where: 1) evidence is sufficient to support defendants' convictions; 2) district court did not abuse its discretion by instructing the jury on sentencing enhancements; 3) district court did not abuse its discretion in its pre-trial disqualification of a defendant's attorney; 4) district court's imposition of a 27-month sentence defendant is not unreasonable; and 5) district court did not err in awarding a four-point leadership role enhancement on the other defendant.

U.S. 1st Circuit Court of Appeals, January 25, 2010
Gray v. Brady, No. 08-2548
District court's denial of defendant's request for habeas relief, convicted of distributing cocaine and for doing so in a public park, is affirmed where: 1) defendant's arguments that the trial court mistakenly believed that defendant, because he is not Hispanic, could not object to the exclusion of an Hispanic juror is without merit; 2) defendant's argument that the state courts wrongly ignored the evidence of discriminatory animus toward the African-American jurors in finding no discriminatory animus against the Hispanic juror is without merit; and 3) defendant's argument that the state courts erred in evaluating the challenges to the Hispanic juror and the African-American jurors separately, as opposed to challenges directed at "minority jurors" as a class is without merit, as defendant has provided no evidence or authority for the proposition that "minorities" constitute a cognizable group for Batson purposes.

U.S. 1st Circuit Court of Appeals, January 29, 2010
US v. Larios, No. 08-1299
Conviction of defendants for drug related crimes, after they were captured on audio/video participating in drug transactions in a motel room with an undercover agent, is affirmed where: 1) any error in admitting the recording at sentencing was harmless and, as such, the question of whether the defendants had a reasonably expectation of privacy in the motel room need not be addressed; and 2) district court's rejection of a defendant's challenge to the admission of the audio recording at trial is affirmed as defendant's brief engagement with the motel room did not justify a reasonably expectation of privacy in the room, and thus his communications were not protected by Title III. ..

U.S. 1st Circuit Court of Appeals, January 29, 2010
US v. Cartagena, No. 08-2177
Conviction of defendant for drug-trafficking conspiracy is affirmed where: 1) the district court did not err in concluding that the omission or misstatement of information of an informant's activities did not provide grounds for suppression; and 2) district court did not abuse its discretion in refusing to require the government to produce documents containing identifying information as to the other informants.

U.S. 1st Circuit Court of Appeals, January 29, 2010
US v. Carl, No. 08-2281
Conviction of defendant for distributing drugs and sentence to 120 months imprisonment and 3 years of supervised release is affirmed where: 1) even if the district court erred in admitting defendant's confession, any error was harmless beyond a reasonably doubt; 2) any error in admitting disputed statements was harmless beyond a reasonable doubt; 3) district court did not commit clear error in determining drug quantity; and 4) defendant has not shown that the district court failed to comply with Rule 32(i)(3)(B) or that any other error occurred by including the acquitted conduct in the PSR.

U.S. 2nd Circuit Court of Appeals, January 28, 2010
Hayden v. Pataki, No. 04-3886
In a Due Process and Equal Protection Clause challenge to New York's felon disenfranchisement laws, judgment on the pleadings for defendants is affirmed where: 1) plaintiffs' amended complaint failed to allege any facts as to discriminatory intent behind the legislature's adoption of the state constitutional provision at issue; and 2) there was a rational basis for the statutes' distinction between felons sentenced to incarceration or serving parole and those sentenced to probation.

U.S. 2nd Circuit Court of Appeals, January 28, 2010
Farid v. Ellen, No. 07-4057
In a prisoner's challenge to a prison's rules regarding contraband and smuggling as applied to a pamphlet he possessed, summary judgment for defendants is affirmed in part where plaintiff failed to administratively exhaust his claim regarding the confiscation of certain papers from his cell. However, the order is vacated in part where: 1) the rules at issue were unconstitutionally vague as applied to plaintiff, both because they failed to give him adequate notice and because they failed adequately to constrain the discretion of the prison officials who had the power to impose them; and 2) the right not to be punished under one set of rules for violations of another was clearly established. .

U.S. 2nd Circuit Court of Appeals, January 28, 2010
Bolarinwa v. Williams, No. 08-0832
In a murder prosecution, dismissal of petitioner's habeas petition as untimely is vacated where petitioner's mental illness could serve as a ground for equitable tolling of the one-year statute of limitations for filing habeas petitions prescribed by the Antiterrorism and Effective Death Penalty Act.

U.S. 2nd Circuit Court of Appeals, January 28, 2010
US v. Rossi, No. 08-6108
In an insurance fraud prosecution, the district court's amended restitution order is affirmed where the provisions of the governing statute in this case, the Victim and Witness Protection Act of 1982, were complied with because, inter alia, the restitution order was imposed at the time that defendant was resentenced following the court of appeals' remand, and defendant did not show that she was prejudiced by the lapse of time preceding resentencing. .

U.S. 3rd Circuit Court of Appeals, January 26, 2010
Palmer v. Hendricks, No. 06-2991
District court's denial of petition for habeas relief by a defendant convicted of multiple crimes related to a 1998 shooting death is affirmed where: 1) defendant failed to make a prima facie showing of the prejudice element of his ineffective assistance of counsel claims; and 2) the district court did not abuse its discretion in declining to convene an evidentiary hearing to resolve defendant's claims. .

U.S. 3rd Circuit Court of Appeals, January 26, 2010
US v. Boria , No. 08-2550
District court's judgment of acquittal for defendant convicted of drug related crimes is reversed and remanded as, the district court was required to review the record in the light most favorable to the government and should not have overturned the verdict where the evidence presented at trial could lead a rational trier of fact to find defendant knew a controlled substance was involved in the transaction, particularly his co-conspirator's statement regarding his role.

U.S. 3rd Circuit Court of Appeals, January 27, 2010
US v. Johnson, No. 09-2245
In a prosecution of defendant for possession of a firearm by a person with three prior felony convictions and drug related offense, denial of a motion to suppress and the resultant conviction are affirmed as, because police officers had specific, reliable facts indicating that at least one of a taxicab's occupants had been involved in a shooting just minutes before, the Fourth Amendment's requirement that a Terry stop be conducted in a reasonable manner was clearly met.

U.S. 4th Circuit Court of Appeals, January 25, 2010
US v. Abdelshafi, No. 08-4884
District court's conviction and sentence of defendant, an owner of a medical transportation services provider, for health care fraud and aggravated identity theft is affirmed where: 1) the district court did not err in ruling that defendant's use of Medicaid patients' identifying information was without lawful authority and violated section 1028A(a)(1); and 2) the district court did not err in imposing a two-level enhancement to defendant's Guidelines' offense level for abuse of trust. .

U.S. 4th Circuit Court of Appeals, January 26, 2010
US v. Manigan, No. 08-4292
District court's sentencing and conviction of defendant for drug related crimes is affirmed where: 1) an appellate waiver will not be enforced where a district court has advised a defendant that, contrary to the plea agreement, he is entitled to appeal his sentence, as the defendant can hardly be said to have knowingly waived his right of appeal; and 2) the district court did not err in increasing the offense level because the PSR recitation circumstantially supports the district court's application of a weapon enhancement and because defendant failed to show that it was clearly improbable for the handguns to be connected to the common scheme or plan surrounding his drug activities.

U.S. 4th Circuit Court of Appeals, January 26, 2010
US v. Carr , No. 08-5037
Conviction of defendant for being a felon in possession of a firearm and sentence as an armed career criminal to 262 months' imprisonment is affirmed as, although defendant's crimes are substantively the same and arguably had the same criminal objective, the combination of factors establishes that defendant's prior felonies were separate and distinct criminal episodes for purposes of the ACCA.

U.S. 4th Circuit Court of Appeals, January 27, 2010
Walker v. Kelly, No. 06-23
District court's denial of defendant's petition for habeas relief seeking to prevent his execution is affirmed where: 1) the district court did not clearly err in denying defendant's Atkins claim; and 2) the district court did not err by refusing to empanel a jury to determine defendant's mental retardation claim.

U.S. 4th Circuit Court of Appeals, January 27, 2010
Winston v. Kelly, No. 09-2
District court's denial of habeas relief by a defendant convicted of capital murder and sentenced to death is affirmed in part, vacated in part, and remanded where: 1) with respect to Atkins and Atkins-related claims, decision of the district court is vacated and remanded as it was error for the district court to refuse to consider evidence of defendant's mental retardation because the evidence does not fundamentally alter defendant's claims and because habeas counsel was diligent in searching for it; and 2) district court's denial of defendant's ineffective assistance claims for both the guilt and sentencing phases, and jury instruction claim are affirmed.

U.S. 4th Circuit Court of Appeals, January 28, 2010
US v. Kelly, No. 08-4982
Defendant's convictions for conspiracy to distribute and possess drugs and related crimes is affirmed as the automobile exception does not have any exigency requirement apart form the inherent mobility of the automobile, and thus, if the police have probable cause, the justification to conduct a warrantless search does not vanish once the police have established some degree of control over the automobile. Defendant's remaining claims are rejected as without merit.

U.S. 4th Circuit Court of Appeals, January 28, 2010
US v. Lynn, No. 08-5125
In consolidated criminal cases involving defendants' objections, for the first time on appeal, to the sentences imposed by the sentencing courts, the circuit court rules that such unpreserved objections are to be subjected to plain-error review.

U.S. 4th Circuit Court of Appeals, January 28, 2010
US v. Myers, No. 09-1212
Defendant's appeal of a contempt citation for failure to produce various items in a criminal trial is dismissed for lack of jurisdiction because defendant has not appealed a final judgment under 28 U.S.C. section 1291 and cannot satisfy the Perlman doctrine or collateral order doctrine.

U.S. 4th Circuit Court of Appeals, January 29, 2010
US v. Chapman, No. 08-7976
District court's denial of defendant' 28 U.S.C.A. section 2255 motion is affirmed as, decisions involving mistrials - whether to seek a mistrial or accept a mistrial offered by the trial court - are tactical decisions left to the sound judgment of counsel, and the decision remains counsel's to make even if the client expresses disagreement with the decision, and counsel's decision is not unreasonable simply because the client disagrees.

U.S. 4th Circuit Court of Appeals, January 29, 2010
Sharpe v. Bell, No. 09-6206
In habeas proceedings, district court's ruling in favor of defendant on the merits of his ineffective assistance of counsel claims is reversed and remanded as, in reaching its conclusions, the district court ignored the several state post-conviction proceedings which had determined that the evidence defendant presented was not credible and that his constitutional claim was without merit, and such a de novo do-over was impermissible under the Antiterrorism and Effective Death Penalty Act of 1996.

U.S. 5th Circuit Court of Appeals, January 26, 2010
US v. Phipps, No. 08-10831
Defendant's tax fraud conviction is affirmed where: 1) a rational jury could find that a fax sent by a participant in defendant's investment program updating her contact information in anticipation of future payments was an important part of "lulling" participants into believing that defendant's investment scheme was a legal, secure financial program; 2) defendant did not show that his behavior advising and advocating tax evasion to participants should be entitled to First Amendment protection; and 3) defendant was at the very least on notice that the IRS expected him to pay taxes on his income from the operation.

U.S. 5th Circuit Court of Appeals, January 27, 2010
US v. Broadnax, No. 08-10494
Defendant's conviction for being a felon in possession of a firearm is affirmed where: 1) no constructive amendment of the indictment occurred because neither the evidence at trial nor the jury instructions implied that defendant could be convicted of anything other than being a felon in possession of a firearm that had been in and affecting interstate commerce in violation of 18 U.S.C. section 922(g)(1); and 2) where a defendant's stipulation to a prior felony offense uses the very language of the statute that defines that element of the offense, he has stipulated that the element is satisfied as a matter of fact and law.

U.S. 5th Circuit Court of Appeals, January 29, 2010
US v. Carter, No. 08-20235
In defendant's appeal from a denial of his motion to reduce his drug and firearm possession sentence in response to a recent change to the federal sentencing guidelines for crimes involving crack cocaine, the order is affirmed where defendant was subject to a statutory minimum sentence greater than the high end of his guideline calculation, whether calculated with or without the crack cocaine amendments.

U.S. 5th Circuit Court of Appeals, January 29, 2010
US v. Martinez-Rios, No. 08-40809
Defendant's conviction for illegally reentering the U.S. is affirmed where, although the district court erred in admitting a Certificate of Nonexistence of Record (CNR) without hearing the testimony of the records analyst who created it, there was sufficient evidence apart from the CNR to convict defendant.

U.S. 6th Circuit Court of Appeals, January 25, 2010
Kellermann v. Holder , No. 08-3927
A petition for review of BIA's final order of removal of a German citizen is denied as, petitioner's convictions under 18 U.S.C. sections 371 and 1001 (making false statements to an agency of the U.S. and conspiracy for failure to provide accurate financial records in connection with a grant he received from the government) constituted aggravated felonies as defined at INA section 101(a)(43)(M)(i), rendering him ineligible for cancellation of removal. .

U.S. 6th Circuit Court of Appeals, January 28, 2010
US v. McFalls, No. 08-5839
District court's classification of defendant as a career offender under U.S.S.G. section 4B1.1 based on his prior convictions in South Carolina for four counts of second degree burglary of a dwelling and one count of assault and battery of a high and aggravated nature is reversed and remanded where: 1) defendant's four prior convictions for violating South Carolina's second degree burglary statute should have been counted as a single sentence under the Sentencing Guidelines because the four convictions were sentenced on the same day and the four offenses were not separated by an intervening arrest; and 2) defendant's prior sentence for second degree burglary of a dwelling does not qualify categorically as a crime of violence for purposes of U.S.S.G. section 4B1.1.

U.S. 6th Circuit Court of Appeals, January 28, 2010
Robinson v. Mills, No. 09-5243
District court's grant of conditional habeas relief to a defendant convicted of first degree murder is affirmed as withholding impeachment evidence regarding a witness's status as a confidential informer was material under Brady because there was a reasonable probability that disclosure of the evidence would have resulted in a different outcome for the proceeding. Read more...

U.S. 7th Circuit Court of Appeals, January 25, 2010
Singer v. Raemisch, No. 07-3400
In an inmate's 42 U.S.C. section 1983 action against prison officials alleging that the confiscation of his Dungeons and Dragons game materials and imposition of a ban on D&D play violated his First Amendment right to free speech and his Fourteenth Amendment rights to due process and equal protection, district court's grant of summary judgment in favor of the prison officials is affirmed as, despite the inmate's large quantum of affidavit testimony asserting that D&D is not associated with gangs and that the game can improve inmate rehabilitation, he has failed to demonstrate a genuine issue of material fact concerning the reasonableness of the relationship between the ban and the prison's clearly legitimate penological interests. Read more...

U.S. 7th Circuit Court of Appeals, January 25, 2010
US v. McDonald, No. 08-2703
District court's imposition of an enhanced sentence on a defendant convicted of being a felon in possession of a firearm, based on prior convictions, is vacated and remanded where: 1) under Begay and Woods, defendant's conviction for first-degree reckless injury does not qualify as a crime of violence for purposes of section 2K2.1(a)(2); and 2) defendant's second-degree sexual assault conviction should not have been used to increase his offense level under section 2K2.1(a). Read more...

U.S. 7th Circuit Court of Appeals, January 25, 2010
US v. Isaacs, No. 08-2876
District court's conviction of defendant, a wireless telephone store owner, of fraudulently using unauthorized access devices in violation of 18 U.S.C. section 1029(a)(2) is affirmed where: 1) district court acted within its discretion in denying defendant's motion to continue the trial for thirty days as he has failed to show that there were any material differences in the underlying data contained in the new set of CDs he received shortly before trial, so as to cause him any prejudice; 2) because the government complied with Rule 1006, the district court properly admitted the summary exhibits into evidence; 3) district court did not abuse its discretion in limiting defendant's cross-examination of witness; and 4) defendant's argument that he has presented three clear errors made by the district court constituting cumulative errors is without merit. Read more...

U.S. 7th Circuit Court of Appeals, January 27, 2010
Corcoran v. Levenhagen, No. 07-2093
On remand from reversal of district court's grant of habeas relief on defendant's Sixth Amendment claim, district court's conditional grant of defendant's petition for a writ of habeas corpus is affirmed where: 1) defendant's challenge to the state trial court's sentencing process has obvious merit, as the trial court did not consider non-statutory aggravators in the balancing process used to determine defendant's death sentence, obviously in error; and 2) defendant's habeas claims actually before the court are meritless and the claims defendant declined to pursue are waived. Read more...

U.S. 7th Circuit Court of Appeals, January 27, 2010
McGee v. Bartow, No. 07-3278
In defendant's action for habeas relief claiming that his civil commitment as a sexually violent person (SVP) deprives him of his right to due process of law, denial of the writ but issuance of certificate of appealability is affirmed as the diagnoses of two mental health professionals which were constitutionally adequate under existing Supreme Court precedent, and the evidence upon which the diagnoses were based, afforded the Wisconsin committing court an adequate basis, under the Due Process Clause, to order defendant's commitment. Read more...

U.S. 7th Circuit Court of Appeals, January 27, 2010
US v. Dismuke , No. 08-1693
Conviction of defendant for being a felon in possession of a firearm and sentence to a statutorily mandated 15-year prison term based on three prior convictions is affirmed where: 1) the guns at issue were properly admitted at trial and an affidavit contained enough independent corroboration to support probable cause to search defendant's home; and 2) Wisconsin's vehicular-fleeing offense qualifies as a violent felony under the ACCA. Read more...

U.S. 7th Circuit Court of Appeals, January 27, 2010
US v. Huddleston, No. 08-2895
District court's conviction of defendant for drug and firearm related offenses is affirmed where: 1) the warrantless search fell within the exigent circumstances exception to the warrant requirement; and 2) there was ample evidence to support defendant's conviction. Read more...

U.S. 7th Circuit Court of Appeals, January 27, 2010
US v. Warren, No. 09-1228
Conviction of a defendant for bank robbery and using a firearm during a robbery at the second trial after the jury in the first trial was unable to reach a verdict is affirmed where: 1) double jeopardy did not bar defendant's second trial as defendant has not shown any error, let alone plain error, in the district court's decision to discharge the first jury; and 2) the circumstantial evidence supports a finding of guilty beyond a reasonable doubt. Read more...

U.S. 7th Circuit Court of Appeals, January 27, 2010
US v. Mays , No. 09-1767
District court's conviction of defendant pursuant to his unconditional guilty plea to possession of a firearm by a felon is affirmed where: 1) the district court did not abuse its discretion in holding that a potential change in Fourth Amendment law posed by Gant did not constitute a fair and just reason for permitting defendant to withdraw his guilty plea; and 2) defendant's sentence was based on reliable information and was substantively reasonable. Read more...

U.S. 7th Circuit Court of Appeals, January 28, 2010
Gayton v. McCoy, No. 08-2187
In plaintiff's suit against prison officials and nurses on behalf of decedent who died while detained at a county jail, district court's judgment is affirmed in part, reversed in part, and remanded where: 1) a doctor's testimony was properly excluded as it relates to the effect of the county jail's failure to provide the decedent with her medications, but his testimony regarding the adequate standard of medical care in prisons and the effect that decedent's vomiting may have had on her heart condition should not have been excluded; 2) district court's grant of summary judgment in favor of one of the nurses is reversed and remanded because a jury could find that her inaction amounted to deliberate indifference to a serious medical need of decedent's; 3) district court's grant of summary judgment in favor of remaining defendants is affirmed; and 4) because plaintiff has failed to develop any argument relating to the district court's award of summary judgment to the defendants ! on a state law claim, any objection to the court's decision on those claims have been waived. Read more...

U.S. 7th Circuit Court of Appeals, January 28, 2010
Ellison v. Acevedo, No. 08-2977
District court's denial of defendant's petition for habeas relief from a conviction for the first-degree murder of a four-month-old infant and sentence to 60 years in prison is affirmed as the record does not support defendant's contention that state courts unreasonably applied clearly established federal law in rejecting his claims. Read more...

U.S. 7th Circuit Court of Appeals, January 28, 2010
Canto v. Holder, No. 08-4272
Petition for review of the BIA's finding that petitioner is deportable due to his conviction of counterfeiting over two decades ago is denied where: 1) 8 U.S.C. section 1101(a)(43) does not violate the equal protection component of the Due Process Clause; and 2) Immigration Code section 212(c) is not impermissibly retroactive as aliens who went to trial did not forgo any rights in reliance on the continued existence of the section. Read more...

U.S. 7th Circuit Court of Appeals, January 28, 2010
US v. Eubanks , No. 09-1029
District court's imposition of a sentence on a defendant convicted of robbery and related crimes is affirmed in part, vacated in part and remanded where: 1) the sentence under 18 U.S.C. section 924(c) accounted for all of the guns possessed, carried, or used by defendant and the co-defendant in relation to the robbery, including the plastic B.B. gun, thus the district court's four-level enhancement under U.S.S.G. section 2B3.1(b)(2)(D) was impermissible double counting; 2) a six-level enhancement for otherwise using the firearm was appropriate as district court's factual finding was not clearly erroneous; 3) district court's bodily injury enhancement was proper; 4) district court erred by enhancing defendant's offense levels four points for abduction; 5) district court correctly calculated defendant's criminal history; and 6) because the district court's errors in calculating the guideline range may have affected the sentence imposed, the errors are not harmless. Read more...

U.S. 7th Circuit Court of Appeals, January 28, 2010
Cianciola v. Dittmann, No. 09-1867
District court's denial of defendant's request for habeas relief from a conviction for sexual assault of a child is affirmed where defendant's Sixth Amendment ineffective assistance of counsel claim fails as he falls short of establishing that he was prejudiced by anything his trial counsel did or didn't do. Read more...

U.S. 7th Circuit Court of Appeals, January 29, 2010
Northern v. Boatwright, No. 08-3272
District court's denial of a petition for habeas relief from a conviction for possessing cocaine with the intent to distribute is affirmed as the state court reasonably applied Strickland when it denied petitioner's ineffective assistance of counsel claim regarding trial counsel based on the amended information. Read more...

U.S. 7th Circuit Court of Appeals, January 29, 2010
US v. Vrdolyak, No. 09-1891
Defendant's conviction for conspiracy to commit mail and wire fraud and sentence to five years probation, with a community-service obligation but no confinement and a $50,000 fine, is reversed and remanded as, while a judge can give a below-guidelines sentence, the sentence cannot stand if it is based on a legal, factual, or analytic error that is not harmless as it is in this case. Read more...

U.S. 8th Circuit Court of Appeals, January 25, 2010
Wallingford v. Olson, No. 09-1271
In a 42 U.S.C. section 1983 alleging excessive force by the police, the denial of summary judgment to defendant-officer based on qualified immunity is reversed where videotape evidence demonstrated, as a matter of law, that the officer's conduct was objectively reasonable under the circumstances. Read more...

U.S. 8th Circuit Court of Appeals, January 27, 2010
US v. Lange, No. 08-3957
Defendant's embezzlement sentence is affirmed where: 1) as defendant at sentencing did not tie any transfers of funds listed on a government exhibit to specific cars he sold, and presented no evidence as to the amount of sales commissions paid to other salesmen on cars they sold, the district court properly rejected defendant's theory that his restitution award should be reduced by sales commissions he earned; 2) as defendant made no disclosure that he was paying himself commissions on car sales, and failed to prove these payments were legitimate sales commissions, as opposed to embezzled profits, the transfers of funds from the credit union accounts at issue were part of the credit union's losses; and 3) defendant failed to refute proof that all funds he withdrew without credit union approval were part of the total victim loss caused by his embezzlement scheme. Read more...

U.S. 8th Circuit Court of Appeals, January 28, 2010
US v. Romo-Corrales, No. 09-1072
Defendant's conviction for conspiracy to distribute methamphetamine is affirmed where: 1) an officer's failure to address the on-going drug investigation of defendant in the affidavit in support of a search warrant did not destroy the probable cause necessary for the warrant; and 2) the officers lawfully conducted the search pursuant to the search warrant. Read more...

U.S. 8th Circuit Court of Appeals, January 29, 2010
US v. Turpin, No. 08-1585
Defendant's robbery and attempted murder convictions are affirmed where: 1) the district court's denial of defendant's motion to sever his trial from that of his brother did not prejudice him because the record showed that defendant chose to testify for reasons other than simply exonerating his brother; and 2) no reasonable juror would infer from the prosecution's cross-examination of a defense psychologist that successful malingering would in fact get defendant "out of trouble" by setting him free.

U.S. 8th Circuit Court of Appeals, January 29, 2010
US v. Young, No. 08-2428
In a tax fraud prosecution, the district court's wage garnishment order in favor of the government and its denial of defendant's motion to proceed in forma pauperis are affirmed for the reasons stated by the district court.

U.S. 8th Circuit Court of Appeals, January 29, 2010
US v. Sandstrom, No. 08-3161
Defendants' murder and firearm use convictions are affirmed where 1) it was the government's evidence -- not any perceived conflict between defendants' defense theories -- that was the basis for the jury's verdicts, and thus the district court did not abuse its discretion by declining to sever defendants' trials; 2) given the multiple purposes of defendants' separate acts at different times and locations, the district court did not err in refusing to dismiss certain counts of the indictment; and 3) 18 U.S.C. section 245 was a valid exercise of Congress's power under the Thirteenth Amendment.

U.S. 8th Circuit Court of Appeals, January 29, 2010
US v. Ghane, No. 08-3700
In defendant's appeal from a district court order finding him mentally incompetent to stand trial, the order is reversed where: 1) the magistrate judge erred in relying too much on defendant's actions two years prior to the current competency determination, particularly in light of defendant's actions since that time; and 2) the magistrate judge erred in relying on defendant's desire to be found competent as evidence of his incompetence to stand trial.

U.S. 8th Circuit Court of Appeals, January 29, 2010
US v. Morrison, No. 08-3883
Defendant's conviction for possessing pseudoephedrine knowing it would be used to manufacture methamphetamine is affirmed where: 1) the information in support of the search warrant at issue supported a belief that defendant was engaged in an ongoing criminal enterprise and that evidence of her illegal activities would be found at her residence; and 2) based on the information obtained from a police drive-by, the government informant, and other investigative efforts, the police had sufficient cause to believe that certain chemical odors emanated from the defendant's house. ..

U.S. 8th Circuit Court of Appeals, January 29, 2010
US v. Thomas, No. 08-3946
Defendant's conviction for distributing crack cocaine is affirmed where: 1) considering the similarities between the crimes charged and the subsequent-acts evidence introduced by the government, the mere passage of four years' time between the events did not render the evidence irrelevant to show knowledge or intent; and 2) the evidence rationally supported an inference that defendant sold crack cocaine to a confidential informant in violation of 21 U.S.C. sections 841(a)(1) and (b)(1)(C). ..

U.S. 8th Circuit Court of Appeals, January 29, 2010
US v. Martinez-Hernandez, No. 09-1420
Defendant's sentence for transporting a minor (his 11-year-old step-daughter) to engage in sexual activity is affirmed where the district court did not commit a significant procedural error by applying an abduction enhancement to defendant's sentence.

U.S. 8th Circuit Court of Appeals, January 29, 2010
Oglesby v. Bowersox, No. 09-1864
In a prosecution for attempting to produce or manufacture a controlled substance, denial of petitioner's habeas petition is affirmed where the allegedly ineffective assistance of petitioner's postconviction counsel did not constitute cause for procedural default.

U.S. 9th Circuit Court of Appeals, January 26, 2010
US v. Juvenile Male, No. 07-50107
In defendant-juvenile's appeal from a proceeding in which he was found to be a juvenile delinquent, the order is affirmed in part where: 1) the U.S. Attorney may certify to the absence of state court jurisdiction under 18 U.S.C. section 5032 if he learns that the appropriate state prosecutor has decided not to prosecute a particular juvenile for the specific crime at issue; and 2) there was no violation of the Juvenile Justice and Delinquency Prevention Act's speedy trial provision because defendant caused the delay in the start of his trial by lying about his age. However, the order is reversed in part where, because defendant was, as the district court ultimately determined, a juvenile at the time of his arrest, he was entitled to the protections of 18 U.S.C. section 5033.

U.S. 9th Circuit Court of Appeals, January 28, 2010
Esquivel-Garcia v. Holder, No. 07-70640
Petition for review of the BIA's denial of petitioner's requests for cancellation of removal, adjustment of status and voluntary departure is granted in part where the government needed to put forth reliable evidence to show that the petitioner was convicted of a disqualifying controlled substance offense. However, the petition is denied in part where there was sufficient evidence to support the Immigration Judge's finding that petitioner had possessed a disqualifying controlled substance, and that precluded adjustment of status.

U.S. 9th Circuit Court of Appeals, January 28, 2010
US v. Treadwell, No. 08-50562
Defendants' wire fraud convictions and sentences are affirmed where: 1) 18 U.S.C. section 1343 did not require an intent to cause pecuniary loss; 2) "preponderance of the evidence" was the appropriate standard of proof for determining the amount of loss caused by the conspiracy; and 3) the district court correctly found the scope of relevant conduct under U.S.S.G. section 1B1.3 in attributing losses to defendants as a result of their conspiracy convictions.

U.S. 10th Circuit Court of Appeals, January 26, 2010
US v. Osborne, No. 08-7121
Defendant's bank robbery sentence is affirmed where the facts of defendant's high-speed car chase following the robbery, which formed the basis for the district court's upward departure, were exceptional, and therefore outside of the heartland of ordinary cases.

U.S. 11th Circuit Court of Appeals, January 25, 2010
US v. Bernal-Benitez, No. 08-10308
Defendants' drug conspiracy convictions and sentences are affirmed where: 1) the magistrate judge's factual finding that a venireperson was less educated than the others in the venire, and subject to a peremptory strike on that ground, was not clearly erroneous; 2) the prosecutor's closing argument did not bolster the government witnesses' testimony; 3) one defendant's refusal to sign a waiver of rights form was not enough to constitute an invocation of his Miranda rights; and 4) the district court properly compared two defendants' roles with the conduct attributed to them in denying them a minor role adjustment. ..

U.S. 11th Circuit Court of Appeals, January 25, 2010
Lott v. Att'y. Gen., State of Fla., No. 09-14196
In a capital habeas matter, petitioner's application for a certificate of appealability is denied where: 1) jurists of reason would not debate the correctness of the district court's denial of petitioner's claim of ineffective assistance of counsel in investigating an alibi defense; and 2) reasonable jurists would not find debatable the district court's conclusion that petitioner could not show prejudice as to this claim.

U.S. 11th Circuit Court of Appeals, January 27, 2010
Thompson v. Sec'y, Dept. of Corrs., No. 08-10540
In a sexual battery prosecution, the dismissal of petitioner's habeas petition as untimely is reversed where the fact that petitioner did not succeed in obtaining habeas relief on his claims (because the claims belonged in a Florida Rule of Criminal Procedure 3.850 motion) did not mean he filed his habeas petitions in the wrong court, or that his petitions were not "properly filed" under 28 U.S.C. section 2244(d)(2).

U.S. 11th Circuit Court of Appeals, January 27, 2010
US v. Caraballo, No. 09-10428
Defendant's alien smuggling conviction and sentence are affirmed where: 1) officers do not violate the Fourth Amendment simply by approaching an individual on the street or in some other public place and asking a question or asking for identification; 2) the government properly offered a redacted portion of a Form I-213 only to demonstrate that the aliens found on defendant's boat were deportable and inadmissible; and 3) the district court did not clearly err by applying the sentencing guideline enhancement for intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.

U.S. D.C. Circuit Court of Appeals, January 26, 2010
US v. Pineda, No. 08-3012
Defendant's petition for rehearing the court of appeals' affirmance of his kidnapping conviction is denied where the prosecution presented, and the district court admitted over objection, evidence of crimes committed by a Colombian guerrilla group in which defendant played no role, but the admission of the evidence was harmless.

Supreme Court of California, January 25, 2010
Lexin v. Sup. Ct., No. S157341
In a prosecution of defendants-board trustees, responsible for administering the City of San Diego's (City) retirement system, for felony violations of state conflict of interest statutes for allegedly voting to authorize an agreement allowing the City to limit funding of its retirement system in exchange for the City's agreeing to provide increased pension benefits to City employees, a court of appeals' denial of defendants' motion to set aside the information against them is reversed and remanded as to five of the six defendants where: 1) with one exception, the defendant trustees' actions fall within statutory exceptions to Government Code section 1090, and accordingly, their motion to dismiss the information against them should have been granted as this case turns on the conclusion that the trustees of the City's retirement system board were not burdened by a conflict of the sort section 1090 prohibits; and 2) the sixth defendant could, on the preliminary hearing record,! reasonably be suspected of having obtained a unique, personalized pension benefit as a result of voting to approve the retirement board's contract with the City and such individually tailored benefits pose genuine conflict problems and do not fall under any statutory exception.

Supreme Court of California, January 25, 2010
People v. Robinson, No. S158528
Conviction of defendant for five felony sexual offenses against the same victim is affirmed where: 1) in cases in which the warrant identifies the perpetrator by his or her unique DNA profile only, the statute of limitations is satisfied if the prosecution is commenced by the filing of the "John Doe" arrest warrant within the limitations period; 2) and although the defendant's blood was mistakenly collected under the Data Bank Act, the law enforcement personnel errors in the case do not trigger the exclusionary rule.

California Appellate Districts, January 25, 2010
People v. Powell, No. C057847
In a prosecution of defendant for DUI related offenses, judgment of the trial court is reversed in part, affirmed in part and remanded where: 1) the trial court did not err in substituting two misdemeanor charges for two felony charges for which there was insubstantial evidence; but 2) defendant's conviction for leaving the scene of an injury accident pursuant to section 20001 is reversed as no substantial evidence supports the conviction.

California Appellate Districts, January 26, 2010
People v. Brown, No. B211558
In a conviction of defendant for possession of a firearm by a felon and drug related crimes, defendant's claim that he was denied his right to bring a motion to withdraw his plea when his retained counsel announced he was unable to make the motion due to a conflict and the trial court refused to appoint new counsel for purposes of the motion is dismissed as, the defendant failed to obtain a certificate of probable cause as required by Penal Code section 1237.5.

California Appellate Districts, January 26, 2010
People v. Her, No. C058443
Conviction of defendant for murder and attempted murder is affirmed as any error in the instructions with respect to the imperfect self defense was harmless beyond a reasonable doubt.

California Appellate Districts, January 26, 2010
People v. Hernandez, No. E047219
Trial court's conviction of defendant for DUI and related crimes is affirmed where: 1) trial court had proper jurisdiction to enter judgment against the defendant; and 2) Penal Code section 1387(a) does not apply to bar the continuation of this case as a misdemeanor prosecution.

California Appellate Districts, January 27, 2010
People v. Nero, No. B206799
Conviction of co-defendant for murder is reversed as the trial court's jury instruction was prejudicial error as an aider and abettor may be found guilty of lesser homicide-related offenses than those actual perpetrator committed.

California Appellate Districts, January 27, 2010
People v. Leon, No. B211679
Conviction of defendant for murder and related crimes and sentence to an aggregate prison term of 145 years to life is affirmed for the most part but reversed in part where the evidence was insufficient to show beyond a reasonable doubt that defendant harbored the specific intent to kill the attempted murder victim. Therefore, conviction for attempted murder is reversed and defendant's sentence is reduced by 40 years.

The first e-mail, which we refer to as a comment, presented here in exerpted form, raises concerns about the impact of increased digitization of the process and a percieved lack of planning and resources to deal with these impacts.

The second e-mail is a response to the first. It defends some of the issues criticized in the first e-mail and presents an altervative perspective regarding the roles of stenographic reporting and electronic recording in the court reporting process.

Because of the nature of the exchange and the need to respect privacy we have deleted all identification information regarding either party

COMMENT (EXCERPT) :

:The reports prepared by NACM or reports by other groups sponsored by the National Center for State Courts should be prepared with the help of fine court staff who have spent years and dedicated their careers to expertly recording and preparing court transcripts.

As they say in the appellate courts, there is court reporter dissent with the recommendations of the National Association of Court Management and the recommendations of the Conference of State Court Administrators.

All court reporters who have ever worked in a courtroom and recorded court proceedings will strongly disagree with above mentioned findings and recommendations by NACM and the Conference of State Court Administrators.

Professional court reporters of all types have high standards, and it is not high standards to have the proceedings of several courtrooms monitored from a remote location.

Professional court reporters have high standards and would would never recommend wrapping court reporter notes in rubber bands and storing those notes in metal filing cabinets and then having to later empty those cabinets and file the records in cardboard boxes for permanent storage.

I believe it is the duty and responsibility of those who are skilled in court reporting to challenge reports put out by NACM and the Conference of State Court Administrators when skilled court reporters believe the recommendations made by NACM and the Conference of State Court Administrators are not in the best interests of the court systems or the best interests of the taxpayers when expensive unneeded metal filing cabinets are recommended for the storage of court reporter records.

Court reporters should speak up when the court administrators recommendations give bad advice.

RESPONSE:

Lets try to remove the hysterics from this issue, ... It is not an either/or choice of stenographic reporting or electronic recording. With the exception of Kentucky, every state I am aware of that has grappled with this has ended up with a blended solution of both methods of capturing the verbatim record. As the NACM Miniguide on this subject points out, court managers should go over several considerations to determine the best method to suit the circumstances depending upon such things as case type, likelihood of the need for a transcript and available resources.

As to the other matters you raise, in order to be effective, electronic recording equipment should be monitored by qualified internal or contract staff. The Florida courts have recommended a formula for how many courtrooms a monitor could handle simultaneously, again depending upon several factors. Their report has loads of helpful information about the effective use of electronic recording, and can be found at http://www.flcourts.org/gen_public/court-services/bin/TCPACtReportingFinalReport.pdf

Finally, stenographic notes should be stored electronically, not in paper form. Who cares about the shelf life of rubber bands or whether notes should be stacked vertically or in hermetically sealed boxes?

Stenographic reporting is an honorable profession and there is a rightful place in the making of the court record for steno, especially if the reporter offers realtime and the host of technology advances that come with computer aided transcription. This combination is the platinum standard, but courts do not always need a Cadillac solution especially in these tough budgetary times.

I would much prefer that court reporters bring their expertise about the record to the table to help court management make informed decisions that benefit the system as a whole. Inflammatory rhetoric such as yours only harms this cause, in my view.

State Courts & the Economy is an e-newsletter published by the National Center for State Courts.

Contents of this issue:

Courts Starting to Bear the Brunt of the Recession
Close Some Courthouses, But Build New Ones, Too?
Budget Cuts Go to Court
State-by-State Budget News

Law Firms
EEOC Sues Kelley Drye Over Firm's De-Equitization Policy for Older Partners
Jan 28, 2010, 02:44 pm CST

U.S. Supreme Court
Alito Mouths an Objection During Obama's Speech
Jan 28, 2010, 06:25 am CST

Careers
Vinny of 'Jersey Shore' Says Law School Is Fallback Plan
Jan 27, 2010, 07:46 am CST

Legal Technology
Emoticons a Sign You Should Step Away from the Keyboard, Firm Chair Says
Jan 26, 2010, 09:15 am CST

Careers
Appellate Law Clerk Is Out of a Job After Ghostwriting Claim
Jan 28, 2010, 07:41 am CST

Law Schools
Cornell Law School Officials Expected More Applications, But Not a 52% Spike
Jan 26, 2010, 06:41 am CST

Criminal Justice
DWI Defendant Goes to Jail After Posting 'Drunk in Florida' Facebook Photo
Jan 28, 2010, 07:12 am CST

Legal Ethics
A Subdued Scott Rothstein Pleads Guilty in $1.2B Ponzi Scheme
Jan 27, 2010, 09:58 am CST

Criminal Justice
Judge Can't Figure Out Why Lawyers Thought DWI Scheme Was a Good Idea
Jan 26, 2010, 01:56 pm CST

Law Schools
Another Law School Offers to Wipe Out Entire Loans of Public Sector Grads
Jan 26, 2010, 01:27 pm CST