March 26, 2011

Findlaw Case Summaries: Criminal Law and Procedure March 21-25, 2011

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March 21-25, 2011.

United States First Circuit, 03/22/2011
US v. Werra, No. 09-1593
Conviction and sentencing of defendant is reversed because stop-and-frisk conducted on him after law enforcement officers forced their way into a house occupied by a group of unrelated individuals to execute an arrest warrant violated the Fourth Amendment rights of defendant, where he was not the subject of the warrant.

United States Fourth Circuit, 03/25/2011
US v. Masciandaro, No. 09-4839
Conviction and sentencing of defendant for carrying or possessing a loaded handgun in a motor vehicle, under 36 C.F.R. section 2.4(b), is affirmed where the general federal savings statute, 1 U.S.C. Section 109, denies defendants an automatic entitlement to the benefit of post-arrest changes in the law.

United States Ninth Circuit, 03/21/2011
Smith v. Almada, No. 09-55334
In an appeals arising out of the arrest and trial of the appellant for arson, summary judgment in favor of the appellee is affirmed where failure to disclose evidence during criminal trial did not prejudice appellant.

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March 26, 2011

Findlaw Case Summaries: Constitutional Law March 21-25, 2011

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March 25, 2011.

United States First Circuit, 03/24/2011
Decotiis v. Whittemore, No. 10-1242
In a First Amendment dispute involving allegations of retaliation through adverse employment action, Rule 12(b)(6) dismissals by district court is affirmed in part and vacated in part where plaintiff failed to make a constitutional claim against all defendants.

United States Third Circuit, 03/21/2011
Tri-M Group v. Sharp, No. 10-2365
In a dormant commerce clause challenge to a state regulatory scheme for the training and compensation of apprentices on construction projects, summary judgment in favor of plaintiff is affirmed where refusal to recognize out-of-state registered apprentices facially discriminated against out-of-state contractors without advancing a legitimate state interest.

United States Ninth Circuit, 03/22/2011
Young v. Honolulu, No. 09-16034
In a constitutional dispute on whether a city repeal ordinace violated the Contracts Clause of the United States Constitution, summary judgment is affirmed where ordinance did not breach any of preexisting contractual obligation.

United States Ninth Circuit, 03/22/2011
Hunt v. Los Angeles, No. 09-55750
In a 42 U.S.C. section 1983 dispute challenging the constitutionality of several city ordinances aimed at preventing vending on the Venice Beach Boardwalk, judgment by district court is affirmed in part and remanded in part where court did not abuse discretion but improperly failed to address one of the challenges in the first instance. .

United States Ninth Circuit, 03/25/2011
Stewart and Jasper Orchards v. Salazar, No. 10-15192
District court judgment that application of Sections 7 and 9 of the Endangered Species Act to the California delta smelt does not violate the Commerce Clause is affirmed. ..

March 26, 2011

Findlaw Case Summaries: New York Court of Appeals

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March 25, 2011.

Civil Procedure, Labor & Employment Law
In the Matter of Madeline Acosta, No. 36
In a dispute over the scope of Correction Law Section 75, dismissal by trial court is modified and affirmed because defendant acted arbitrarily in denying application for security clearance by petitioner where it failed to comply with the requirements of the Correction Law.

Civil Procedure, Intellectual Property, Copyright
Penguin Group (USA) Inc. v. American Buddha, No. 7
In a question involving the scope of long-arm jurisdiction under CPLR 302 (a)(3)(ii) as applied to a federal copyright infringement action, the situs of injury for purposes of determining long-arm jurisdiction is the location of the copyright holder.

Criminal Law & Procedure, Sentencing
The People v. Cornell, No. 119 SSM 61
Conviction and plea of defendant are vacated in the absence of a postallocution motion where the record is unclear that at the time defendant entered his plea, he was aware that the terms of his sentence included a period of postrelease supervision.

Civil Procedure, Health Law, Injury & Tort Law
Goldenberg v. Westchester County Health Care Corp., No. 50
In a a special proceeding on a notice of a late claim for medical malpractice against defendant, judgment of dismissal by trial court is affirmed where ultimate complaint dramatically differed, substantively and materially, from the proposed complaint which the plaintiff filed in the prior, special proceeding.

Government Law, Property Law & Real Estate
In the Matter of Mercedes Casado, No. 32
In a challenge to the validity of two orders of the New York City Rent Guidelines Board (RGB) making a distinction between low-rent apartments in which there has been no recent vacancy and other apartments, allowing larger rent increases for the former, judgment of trial court is reversed where the RGB has the power to make such distinction.

Criminal Law & Procedure, Sentencing
The People v. Beasley, No. 53
Conviction and sentencing of defendant for possession of a controlled substance in the second degree and other, lesser offenses is upheld where ground for appeal was not properly preserved at trial.

Criminal Law & Procedure, Sentencing
The People v. Kelly, No. 58
Conviction and sentencing of defendant for robbery in the first degree and burglary in the first degree are upheld where a brief, momentary separation of a juror from deliberations was not the type of violation contemplated by the continuously kept together language of CPL 310.10.

Criminal Law & Procedure, Sentencing, Evidence
The People v. Rodriguez, No. 44
Conviction and sentencing of defendant on charges of manslaughter is upheld where a justification charge was not warranted under the particular facts and circumstances of the case, but warranted on less serious offenses.

November 15, 2010

Findlaw Case Summaries: Constitutional Law

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November 8-12 2010.

United States First Circuit, 11/12/2010
Freedom from Religion Found. v. Hanover Sch. Dist., No. 09-2473
In plaintiffs' suit seeking a declaration that the federal Pledge statute and the recitation of the Pledge of Allegiance in New Hampshire's public schools violates various provisions of the U.S. Constitution, the New Hampshire Constitution, and federal and state law, district court's dismissal of all of plaintiffs' federal claims on their merits is affirmed as the New Hampshire School Patriot Act and the voluntary, teacher-led recitation of the Pledge by the state's public school students do not violate the Constitution. .

United States Sixth Circuit, 11/09/2010
McCarthy v. City of Cleveland, No. 09-4149
In plaintiffs' 42 U.S.C. section 1983 suit against the City of Cleveland, claiming that the city's decision to enforce its traffic camera ordinance against drivers who lease their cars constituted an unconstitutional taking of private property without just compensation because the ordinance originally did not provide for lessee liability, district court's dismissal of the suit for failure to state a cause of action under the Takings Clause of either the United States or Ohio Constitution is affirmed in part, reversed in part and remanded where: 1) plaintiffs have failed to plead a cause of action under the Takings Clause as the challenged ordinance does not seize or otherwise impair an identifiable fund of money; but 2) the district court's judgment on plaintiffs' state law claims is reversed and remanded as the district court did not analyze plaintiffs' claim which asserted that the city's enforcement of the traffic camera ordinance unjustly enriched the city. .

United States Sixth Circuit, 11/09/2010
Sykes v. Anderson, No. 08-2088
In plaintiffs' 42 U.S.C. section 1983 actions against several police officers, asserting claims of false imprisonment, malicious prosecution, and denial of due process, and against the City of Detroit claiming that the city failed to respond to citizen complaints and that it failed to train and supervise its employees, following their overturned convictions for state crimes of "Larceny by Conversion" and "False Report of a Felony," jury verdict in favor of the plaintiffs on their claims against two police officers and award of over $2.5 million in compensatory and punitive damages is affirmed in part and remanded in part where: 1) defendants' qualified immunity claim is waived as their failure to make a pre-verdict motion for judgment as a matter of law under Rule 50(a) on the grounds of qualified immunity precluded them from making a post-verdict motion under Rule 50(b) on that ground; 2) district court's judgment as to plaintiffs' claim of false arrest is affirmed because probable cause was lacking at the time the officer submitted a warrant application; 3) judgment against the defendants as to the plaintiffs' claims for malicious prosecution is affirmed as the record contains ample evidence that the officer influenced or participated in the ultimate decision to prosecute plaintiffs by way of his knowing misstatements to the prosecutor; 4) judgment against the defendants as to the plaintiffs' due-process claims is affirmed; 5) district court did not abuse its discretion in denying defendants' motion for a new trial; and 6) because the district court failed to articulate a basis for its denial of the defendants' motion for remittitur, the matter is remanded for the sole purpose of having the district court explain its reasons for denying remittitur

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November 15, 2010

Findlaw Case Summaries: Criminal Law and Procedure

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November 8-12 2010.

United States Fourth Circuit, 11/12/2010
US v. Ide, No. 09-4833
District court's grant of government's petition to revoke defendant's term of supervised release originally imposed in May 2002 as part of his sentence on a federal charge, claiming that defendant's commission of an additional state offense, along with his failure to file monthly reports, violated the conditions of his supervised release, is affirmed as, under the circumstances, a defendant's supervised release term is tolled under 18 U.S.C. section 3624(e) during the period that he spent in pretrial detention awaiting trial on the state charge for which he later was convicted. ..

United States Fifth Circuit, 11/09/2010
US v. Jackson, No. 09-10850
Defendant's conviction and sentence, following a jury trial, for conspiring to possess with intent to distribute more than five kilograms of cocaine, are vacated where certain notebooks introduced into evidence were not sufficiently authenticated, the error violated defendant's rights under the Confrontation Clause, and the error was not harmless.

United States Fifth Circuit, 11/09/2010
US v. Flores-Gallo, No. 09-40882
Defendant's sentence for unlawful reentry into the U.S. is affirmed where the district court properly found that defendant's prior Kansas aggravated battery offense was a "crime of violence" for sentencing purposes and imposed an enhancement accordingly.


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October 18, 2010

Findlaw Case Summaries: Criminal Law and Procedure

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October 11-15 2010.

United States First Circuit, 10/11/2010
US v. Brown
Defendant's conviction for possession of cocaine base with intent to distribute is affirmed where: 1) although the district court's factual findings and the inferences made from those findings, which formed the basis of its conclusion that reasonable suspicion existed to stop a car, are not compelled by the record or by the facts, both are nonetheless reasonable and therefore pass constitutional muster; 2) the affirmance of the district court's finding that the officers had reasonable suspicion to stop the car forecloses the need to address defendant's challenge to the district court's alternate conclusion that the car was not seized when the officers first approached; and 3) there was no abuse of discretion in the district court's denial of defendant's motion to suppress evidence without an evidentiary hearing.

United States First Circuit, 10/14/2010
US v. Kinsella
Conviction of defendant for conspiring to possess and distribute oxycodone, possessing oxycodone with intent to distribute, and willfully failing to appear in court as required, as well as a 97-month sentence, are affirmed where: 1) defendant's claim of multiple instances of prosecutorial misconduct is rejected; and 2) the district judge did not clearly err in his drug-quantity calculations.

United States First Circuit, 10/15/2010
Statchen v. Palmer
In plaintiff's 42 U.S.C. section 1983 suit against police officers, claiming that they used excessive force in arresting him for public intoxication and in transporting him from a station house to jail, district court's grant of summary judgment in favor of defendants on the basis of qualified immunity is affirmed as the district court had no basis for sending the case to a jury because plaintiff's own deposition provided no evidence to indicate that the force exerted was unnecessary, or that a reasonable police officer would have thought otherwise. .

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October 18, 2010

Findlaw Case Summaries: Constitutional Law

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October 11-15 2010.

United States First Circuit, 10/14/2010
Museum of Fine Arts, Boston v. Seger-Thomschitz
In an art museum's action for a declaratory judgment to confirm its rightful ownership of a painting, which a sole surviving heir of the painting's artist claimed that the artist was forced to sell under duress after Austria was annexed by Nazi Germany in 1938, district court's grant of summary judgment for the museum on statute of limitations grounds is affirmed where: 1) because defendant did not make a demand on the museum more than three years after her causes of action accrued, summary judgment was properly granted on the museum's limitations defense; 2) defendant has not shown that application of the Massachusetts statute of limitations to the Massachusetts causes of action in this case would cause a significant conflict with, or threat to, the federal interests and policies embodied in section 510(c)(3); and 3) the Massachusetts statute of limitations does not conflict with the federal government's foreign policy. ..

United States First Circuit, 10/15/2010
Statchen v. Palmer
In plaintiff's 42 U.S.C. section 1983 suit against police officers, claiming that they used excessive force in arresting him for public intoxication and in transporting him from a station house to jail, district court's grant of summary judgment in favor of defendants on the basis of qualified immunity is affirmed as the district court had no basis for sending the case to a jury because plaintiff's own deposition provided no evidence to indicate that the force exerted was unnecessary, or that a reasonable police officer would have thought otherwise.

United States Second Circuit, 10/12/2010
Amore v. Novarro
In a civil rights action alleging a false arrest, a denial of summary judgment based on qualified immunity is reversed where the district court erred in deciding that it would have been clear to a reasonable officer in defendant's position that making the arrest was unlawful.

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October 13, 2010

Findlaw Case Summaries: Constitutional Law

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October 4-8, 2010.

United States First Circuit, 10/08/2010
Tevlin v. Spencer
District court's denial of defendant's request for habeas relief from his convictions for first-degree murder, armed robbery, and assault and battery by means of a dangerous weapon, is affirmed where: 1) defendant has failed to demonstrate the existence of ineffective assistance of counsel in any of his theories; and 2) the Massachusetts discovery procedures are not on their face unconstitutional and defendant has not established that their application here violated due process. .

United States Second Circuit, 10/04/2010
Analytical Diagnostic Labs, Inc. v. Kusel
In a class-of-one equal protection claim alleging that defendants, employees of the New York State Department of Health, intentionally and maliciously subjected plaintiff-clinical testing laboratory to an intense and unwarranted degree of regulatory scrutiny, summary judgment for defendant is affirmed where there was no record evidence raising a question of fact as to whether: 1) other labs were similarly situated; or 2) even assuming other labs were similarly situated, that the same decisionmakers were aware of the similarity and treated plaintiff differently.

United States Second Circuit, 10/08/2010
Byrne v. Rutledge
In an action alleging that Vermont’s denial of plaintiff's requested vanity license plate, on the grounds that it contained a religious message in violation of state law prohibiting such messages on vanity license plates, violated the Free Speech Clause, the Equal Protection Clause, and the Due Process Clause, summary judgment for defendants is reversed where Vermont's ban on all vanity plate combinations that "refer, in any language, to a ... religion" or "deity" constituted unconstitutional viewpoint discrimination. .

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October 13, 2010

Findlaw Case Summaries: Criminal Law and Procedure

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October 4-8, 2010.

United States First Circuit, 10/07/2010
US v. Figueroa-Gonzalez
Conviction of defendant for carjacking and firearm use during and in relation to a crime of violence is affirmed as there was no error, clear or otherwise, as the district court was presented with conflicting evidence and chose to conclude that the evidence was stronger in favor of competency to plead guilty.

United States First Circuit, 10/08/2010
Tevlin v. Spencer
District court's denial of defendant's request for habeas relief from his convictions for first-degree murder, armed robbery, and assault and battery by means of a dangerous weapon, is affirmed where: 1) defendant has failed to demonstrate the existence of ineffective assistance of counsel in any of his theories; and 2) the Massachusetts discovery procedures are not on their face unconstitutional and defendant has not established that their application here violated due process. .

United States Second Circuit, 10/06/2010
Matthews v. US
Defendant's convictions for racketeering, drug-related murder, and the use of a firearm are affirmed where, while drug-related murder can be punishable by death if certain aggravating circumstances are specified in the charging instrument, no such aggravating factors were specified in the information. .

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September 29, 2010

Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency

A significant note from the Duke Law Journal by Joanna Huang with the above title has been posted today September 29 on the Sentencing Law and Policy blog According to Ms. Huang, "...in 1987 the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the Federal Sentencing Guidelines." She goes on to observe that in 2005 trust was restored in the judiciary when United States v. Booker made the Sentencing Guidelines advisory; and that, although Booker provides for increase in judicial discretion, judges are still unable to correct sentences imposed during the intervening eighteen years because Booker does not apply retroactively.

For more, we recommend that you go to the Sentencing Law and Policy blog

NOTE:

Readers interested in this topic may also be interested in Final Report on the Impact of United States v. Booker on Federal Sentencing, United States Sentencing Comission, March 2006.

September 20, 2010

Findlaw Case Summaries:Criminal Law and Procedure

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September 13-17, 2010.

Criminal Law & Procedure

United States First Circuit, 09/14/2010
Merlonghi v. US
In plaintiff's suit against the United States under the Federal Tort Claims Act (FTCA), for the actions of a U.S. Special Agent, involving an automobile accident, district court's grant of government's motion to dismiss for lack of subject matter jurisdiction is affirmed as plaintiff's claim under 28 U.S.C. section 1346(b)(1) was properly dismissed for lack of jurisdiction because the agent was not acting within the scope of his employment when he crashed into plaintiff during a car chase. .

United States First Circuit, 09/16/2010
Fusi v. O'Brien
District court's denial of defendant's request for habeas relief from his rape conviction is vacated and remanded as the district court should have dismissed the petition without prejudice because the defendant failed to exhaust his ineffective assistance of counsel claim in state court. .

United States First Circuit, 09/16/2010
Gautier v. Wall
Defendant's application for a certificate of appealability is denied and the judgment of the district court is vacated as the court lacked jurisdiction to consider defendant's second or successive petition without authorization, and not one of defendant's claims meets the gatekeeping requirements of section 2244(b).

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September 20, 2010

Findlaw Case Summaries: Constitutional Law

Constitutional Law

United States Second Circuit, 09/14/2010
Chase Grp. Alliance LLC v. N.Y. Dep't of Fin.
In an action claiming that plaintiffs' right to due process was violated by liens placed upon their properties by the City of New York, dismissal of the action is affirmed where the complaint alleged that New York law afforded appellants a right to notice and access to a tribunal to assert their objections before the liens were imposed, and thus, appellants' right to due process was not violated. ..

United States Second Circuit, 09/17/2010
Faghri v. Univ. of Conn.
In an action claiming that defendants unconstitutionally retaliated against plaintiff for his exercise of his right to free speech in violation of the First Amendment and violated his right to due process under the Fourteenth Amendment when they removed him from his position as dean, a denial of summary judgment based on qualified immunity is reversed where plaintiff had no clearly established right to remain as dean while voicing opposition to the policies of the team he was hired to be part of.

United States Second Circuit, 09/17/2010
Van Allen v. Cuomo
In an action challenging New York Election Law sections 5-210 and 5-304, which prevented plaintiff's enrollment in a party from becoming effective until after the November 2007 general election, dismissal of the complaint is affirmed where plaintiff did not indicate that he currently intended or had already attempted to change his party enrollment again, and thus his claims were moot.

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August 23, 2010

Findlaw Case Summaries: Criminal Law and Procedure

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August 16-20, 2010.

United States First Circuit, 08/17/2010
US v. Donath
Defendant's appeal of his conviction for his participation in a conspiracy to distribute cocaine and other drugs and a below-guidelines sentence of 90-months' imprisonment is dismissed as defendant's waiver of his right to appeal his plea or sentence if it did not exceed 120 months as part of his plea agreement is enforceable and his argument that district court's error in calculating his sentence by mischaracterizing his prior crimes constituted a miscarriage of justice is meritless.

United States First Circuit, 08/17/2010
Grant v. Warden, Maine State Prison
District court's denial of defendant's request for habeas relief from his murder conviction of his mother-in-law is affirmed where: 1) the Maine Supreme Judicial Court's (SJC) application of the general standard announced in Mosley to the particular facts of defendant's case falls within the broad limits of reasonableness; and 2) regardless of whether the SJC described its analysis as a "totality of the circumstances" test or a four-factor test, its conclusion was not an unreasonable application of Mosley.

United States Second Circuit, 08/16/2010
Friedman v. Rehal
In a sexual abuse prosecution, the denial of petitioner's habeas petition is affirmed where: 1) the fact that hypnosis may have been used to stimulate alleged victims' memory recall and potentially induce false memories of abuse was a circumstance that would fit comfortably under the general understanding of impeachment evidence -- evidence that "is offered to discredit a witness . . . to reduce the effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] or [her] testimony"; and 2) even if hypnosis evidence comes within Brady's broader definition of exculpatory evidence, the petition would still have to be denied

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August 23, 2010

Findlaw Case Summaries: Constitutional Law

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August 16-20, 2010.

United States Third Circuit, 08/18/2010
McCauley v. Univ. of the Virgin Islands
In plaintiff's 42 U.S.C. section 1983 suit against a university, its president and two other individuals arising from the university's decision charging plaintiff with violating provisions of the Student Code of Conduct (Code) for his alleged harassment of an individual who had accused his friend of rape, claiming that various Code provisions violated the First Amendment, district court's judgment is affirmed in part and reversed in part where: 1) district court's dismissal of all claims against the university in holding that it was not a "person" for purposes of section 1983 is affirmed; 2) the two individuals, as employees of the university acting in their official capacities, were likewise not "persons" for purposes of section 1983; 3) adjudication of plaintiff's as-applied challenge to Major Infraction Paragraph E was unnecessary because the district court had already concluded that the paragraph was facially unconstitutional; 4) district court's dismissal of Paragrap h B for lack of an injury should be reversed and judgment should be entered in favor of the two employees because that paragraph has a limited, constitutional construction; and 5) Paragraphs H and R are unconstitutional infringements on students' First Amendment right to free speech.

United States Sixth Circuit, 08/17/2010
McKenna v. Honsowetz
In plaintiff's 42 U.S.C. section 1983 suit against two police officers who responded to a 911 report that plaintiff was having a medical seizure and and thereafter allegedly violated his Fourth Amendment rights, district court's denial of defendants' motions for summary judgment based on qualified immunity and reduction of an award for pain and suffering from $275,000 to $10,000 are affirmed where: 1) whether the officers were entitled to qualified immunity depends on whether they acted in a law-enforcement capacity or in an emergency-medical-response capacity when engaging in the conduct that plaintiff claimed violated the Fourth Amendment, and here, the view of the facts undoubtedly supports a finding that the officers acted in a law-enforcement capacity; 2) the record contained ample evidence to support the determination that the officers unreasonably searched the home and seized plaintiff; and 3) plaintiff's appeal of the reduction in the award is denied as the Suprem e Court has clearly stated that a plaintiff cannot appeal a remittitur after he has accepted it. .

United States Sixth Circuit, 08/20/2010
Hussein v. City of Perrysburg
In homeowners' suit against a city, a city inspector and other individuals in their official and personal capacities, claiming that defendants violated their procedural and substantive due process rights by ordering a construction worker to remove a temporary asphalt layer in their driveway, judgment of the district court is reversed and remanded where: 1) defendants are entitled to qualified immunity because state officials are permitted under the Constitution to inform citizens of the officials' view that they are violating state or local law and state officials are also permitted to threaten litigation or prosecution if citizens do not agree to conform their actions to state or local law; and 2) defendant did not violate plaintiffs' substantive due process rights as the asphalt driveway incident did not implicate specific constitutional guarantees.

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August 13, 2010

Findlaw Case Summaries: Criminal Law and Procedure

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August 2-6, 2010.

United States Second Circuit, 08/02/2010
US v. Johnson
Defendant's sentence for being a felon in possession of a firearm is affirmed where a violation of Connecticut General Statute section 53a-179b (Rioting at a correctional institution) qualified as a "violent felony" under the Armed Career Criminal Act.

United States Second Circuit, 08/02/2010
Scott v. Fischer
In an action claiming that defendants deprived plaintiff of liberty without due process of law both by placing her on mandatory post-release supervision without a proper judicial sentence and by failing to take action to remove the supervision before or after she was rearrested for violating the terms thereof, dismissal of the action is affirmed where defendants were entitled to qualified immunity for all actions they took prior to the Second Circuit's decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), and further, plaintiff has not pleaded sufficient facts to state a claim upon which relief can be granted for any actions the defendants took thereafter. ..

United States Second Circuit, 08/03/2010
US v. Broxmeyer
Defendant's convictions for production of child pornography and for transportation of a minor across state lines with the intent to engage in criminal sexual activity are reversed where: 1) the prosecution failed to prove beyond a reasonable doubt that defendant persuaded, induced, or enticed the victim to take Photos 1 and 2; and 2) an 18 U.S.C. section 2423(a) conviction cannot lie where the unlawful sexual act occurs before the crossing of state lines, and where there is no evidence of an intent to commit a sexual act when state lines were crossed.

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August 13, 2010

Findlaw Case Summaries - Constitutional Law

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August 2-6, 2010.

United States First Circuit, 08/04/2010
IMS Health Inc. v. Mills
In a challenge to the constitutionality of 22 Me. Rev. Stat. Ann. tit. 22, section 1711-E(2-A), which allows prescribers licensed in Maine to choose not to make their identifying information available for use in marketing prescription drugs to them, district court's grant of plaintiffs' motion for preliminary injunction in prohibiting Maine from enforcing section 1711-E(2-A) on the basis of plaintiffs' First Amendment claims is reversed where: 1) plaintiffs' First Amendment challenges fail for the reasons stated in Ayotte, as the statute regulates conduct, not speech, and even if it regulates commercial speech, that regulation satisfies constitutional standards; 2) the Maine statute constitutionally protects Maine prescribers' choice to opt in to confidentiality protection to avoid being subjected to unwanted solicitations based on their identifying data; 3) plaintiffs' argument that the statute is void for vagueness is rejected; 4) section 1711-E(2-A) regulates prescript ion drug information intermediaries' out-of-state use or sale of opted-in Maine prescribers' data, and this interpretation does not raise constitutional concerns under the dormant Commerce Clause; and 5) nor would section 1711-E(2-A)'s regulation of prescription drug information intermediaries' out-of-state use of sale of opted-in Maine prescribers' identifying data raise constitutional concerns as a disproportionate burdens on interstate commerce under Pike.

United States Second Circuit, 08/02/2010
Scott v. Fischer
In an action claiming that defendants deprived plaintiff of liberty without due process of law both by placing her on mandatory post-release supervision without a proper judicial sentence and by failing to take action to remove the supervision before or after she was rearrested for violating the terms thereof, dismissal of the action is affirmed where defendants were entitled to qualified immunity for all actions they took prior to the Second Circuit's decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), and further, plaintiff has not pleaded sufficient facts to state a claim upon which relief can be granted for any actions the defendants took thereafter. ..

United States Second Circuit, 08/03/2010
US v. Broxmeyer
Defendant's convictions for production of child pornography and for transportation of a minor across state lines with the intent to engage in criminal sexual activity are reversed where: 1) the prosecution failed to prove beyond a reasonable doubt that defendant persuaded, induced, or enticed the victim to take Photos 1 and 2; and 2) an 18 U.S.C. section 2423(a) conviction cannot lie where the unlawful sexual act occurs before the crossing of state lines, and where there is no evidence of an intent to commit a sexual act when state lines were crossed.

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August 5, 2010

U.S. District Court Rejects Same Sex Marriage in California

On Wednesday August 4, 2020 Chief U.S. District Judge Vaughn Walker in San Francisco struck down California's ban on same sex marriage in a 136 page opinioon, ruling that voter approved Proposition 8 violates the constitutional right of equal protection. Proposition 8 defines marriage as a union between a man and a woman.

This high profile case, Kristin Perry et. al. v. Arnold Schwarzenegger Case3:09-cv-02292-VRW, is being watched closely by both supporters and opponents of same sex marriage, as many believe it will make its way to the U.S. Supreme Court where it could result in a landmark decision.

Below are links to a discussion of this decision in the August 15 New York Times and to the decision as decided on Wednesday.

Article by James Wilson and Mary McKay in August 15 New York Times.

Kristin Perry et. al. v. Arnold Schwarzenegger Case3:09-cv-02292-VRW

July 1, 2010

Quinlan Commentary: U.S. v Philips - Fourth Circuit 2009

June 29, 2010

RECENT DECISION

Defendant involved in fraud scheme claims that investigators were overzealous in their search

Mark Phillips was convicted of securities fraud, mail fraud, wire fraud, and access device fraud. In early 2003, the United States Postal Inspection Service began a fraud investigation of Phillips. The investigation revealed that over a period of approximately three years, Phillips had fraudulently applied for several credit cards, using his father's identity and declaring a false income. Phillips then used those fraudulent credit cards to make expensive purchases. Among other items, Phillips bought several pieces of stereo, exercise, and computer equipment, collectible coins, a pool table, a telescope, and a samurai sword. Ultimately, Phillips accumulated hundreds of thousands of dollars of credit card bills and either did not attempt to pay those bills or attempted to pay with bad checks.

Investigators at the U.S. Postal Inspection Service also uncovered other frauds perpetrated by Phillips. For example, Phillips possessed two driver's licenses, each with his own photograph, address, and date of birth, but each with a different name: Mark Le Roy Aaron and Mark Edwards Phillips. Additionally, investigators learned that Phillips had opened an account for frequent gamblers at an Atlantic City casino using his father's social security number and had made over $28,000 in cash withdrawals on that account. A criminal search history revealed that Phillips had previously been arrested on state charges of theft by deception and issuing bad checks.

During the course of the investigation, postal inspection agents also became aware that Phillips presented himself as the CEO and founder of a business called Phydea, which provided online financial stock reports. Some of Phillips's fraudulent purchases helped to fund Phydea. For example, he used a fraudulent credit card to pay Interland Web Hosting for the hosting and maintenance of his business' Web site, Phydea.com, and he used a fraudulent card to purchase advertisements for Phydea, which appeared in Investor's Business Daily. Also, Phillips frequently used Phydea's corporate name in connection with his credit card fraud. For instance, Phillips bought entertainment equipment with a fraudulent VISA card using the internet address Phydea.com. He also made a purchase on eBay using the e-mail address phydea@earthlink.com. Phillips fraudulently applied for an American Express card using the e-mail address CEO@PHYDEA.com, and when applying for the same American Express card, Phillips misstated his income as $1 million and misstated Phydea's annual revenue as $10 million. Unbeknownst to the postal inspectors at the time, however, Phillips was using Phydea in connection with more than just credit card fraud. He was also using it and a related investment vehicle, Phydea Equity Fund, as part of an elaborate securities fraud scheme.

In July 2003, the U.S. Postal Inspection Service sought a search warrant for Phillips' Maryland residence. The magistrate judge approved the search warrant, finding probable cause for violations of various fraud statutes. The search warrant and incorporated affidavit authorized the seizure of a wide range of items and documents. Specifically, Part I of Attachment A described items and services purchased using fraudulent credit cards. It contained a number of specific examples, including payments to web hosting services. It also contained broader provisions for seizing records that might be evidence of financial crimes or fraud. The affidavit also set forth additional details relating to Phillips' case and the evidence of his fraud.

Prior to executing the search warrant, Inspector Judy Starliper, the head of the investigation, thoroughly briefed all agents on the facts of Phillips's case. Her operations plan summarized the investigation and informed the agents that Phillips operates a web page called PHYDEA.com and uses the same e-mail address to make his purchases. Each agent was provided a copy of Attachment A listing the items to be seized. During this briefing, another agent, Inspector David Reardon, informed the team that he had received a complaint from an aggrieved investor in Phydea Equity Fund, an entity related to Phydea, and therefore requested that the agents alert him if they saw anything relating to Phydea or Phydea Equity Fund during the search.

Immediately following the briefing, the U.S. Postal Inspection Service team executed the search warrant. During the search, Inspector Reardon himself identified several documents relating to Phydea and Phydea Equity Fund. He noted that these documents contained personal identifying information which he believed that Inspector Starliper was looking for and potentially related to many of the fraudulent credit card purchases made using Phydea's name. To err on the side of caution, Inspector Reardon brought the documents to the attention of his superiors, and Inspector Starliper telephoned the United States Attorney's office to seek guidance on whether the Phydea and Phydea Equity Fund documents were seizable. After reading the warrant and accompanying affidavit, the Assistant United States Attorney concluded that the warrant authorized their seizure.

In executing the warrant, the agents seized a number of documents and records that not only helped confirm the investigators' suspicions of credit card fraud but also revealed to the investigators for the first time the full extent of Phillips' securities law violations involving Phydea and Phydea Equity Fund. Among these seized documents and records were documents and records relating to Phydea, including invoices for the Phydea advertisements appearing in Investor's Business Daily, documents and records relating to Phydea Equity Fund, including the files of individual investors, and some of Phillips' own financial records, including his bank statements.

The government charged Phillips with 35 counts of securities fraud, mail fraud, wire fraud, and access device fraud. A federal grand jury indicted Phillips on all counts. Prior to trial, Phillips filed a motion to suppress the evidence seized pursuant to the search warrant. He argued that the contested seizures fell outside the scope of the warrant, because the warrant did not explicitly mention those items. That motion was denied. Phillips was eventually convicted on all the charges. He then appealed, claiming that the court erred by denying his motion to suppress.

The appellate court denied Phillips' appeal and upheld his conviction. Phillips primarily argued that the inspectors were overzealous when they served the warrant, and seized items that did not fall within the scope of the warrant. The government argued that they were purposefully very diligent and cautious in their search so as not to seize any item that did not fall within the purview of the warrant. They pointed to the language of the warrant, and argued that each and every item seized fell squarely within the stated requirements. The appellate court agreed with the government, and found that due to the extensive intermingling of Phillips' personal and business accounts, the investigators only seized items that fell within the requirements imposed by the warrant. Therefore, they upheld his conviction

The case discussed in Quinlan Law Enforcement ENews Alert (June 29, 2010) is U.S. v. Phillips, 2009 WL 4061558 (4th Cir. 2009).

June 30, 2010

ABA Case Update: U.S. Supreme Court Case Related to Criminal Justice

A Service from the ABA Criminal Justice Section (CJS) *, http://www.abanet.org/crimjust*

MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS ET AL. No. 08-1521

United States Supreme Court Decision: Decided: June 28, 2010

In a 5-4 decision, the Supreme Court held that the Fourteenth Amendment of the US Constitution protects an individual’s Second Amendment right to keep and bear arms from interference by state or local gun control legislation.

In 2008, the Court ruled in District of Columbia v. Heller, 554 U. S. ___ that the Second Amendment right for an individual to keep and bear arms for self-defense was infringed upon by a District of Columbia gun control law banning the possession of guns in the home. Immediately following the Heller ruling, this federal suit was filed in Chicago, alleging that the city’s law banning possession of unregistered handguns was violating the Second and Fourteenth Amendments. Petitioners argued that the Second Amendment right to keep and bear arms was protected by both the Privileges or Immunities clause and the Due Process clause in the Fourteenth Amendment. Noting that the Heller ruling had refrained from deciding whether the Second Amendment applied to state and local legislation, the District Court upheld the Chicago law while citing precedent from several previous handgun ban cases. The Seventh Circuit Court of Appeals affirmed.

The Court’s decision traced the evolution of previous Supreme Court rulings which sought to determine which elements within the Bill of Rights were protected by the Fourteenth Amendment against state and local infringement. The Court’s 1873 decision in Slaughter-House Cases, 16 Wall. 36, called for a very narrow view of the Fourteenth Amendment’s applicability to state law. Using Slaughter-House as precedent, the Court decided during the late 19th century in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535 that Second Amendment rights were not covered under the Fourteenth Amendment. Over time, the Court gradually widened its interpretation, later holding that an element in the Bill of Rights that was “fundamental to our Nation’s particular scheme of ordered liberty and system of justice” would be protected by the Fourteenth Amendment (Duncan v. Louisiana, 391 U. S. 145, 149). The Court also cited Heller’s holding that the right to self-defense, protected by the Second Amendment, was held to be a “fundamental” right as defined in Duncan. In addition, the Court noted that Congressional debates over the Fourteenth Amendment’s ratification “referred to the right to keep and bear arms as a fundamental right deserving of protection.” Accordingly, the Court held that the Fourteenth Amendment protects the Second Amendment right to keep and bear arms against infringement by state or local legislation.

Judgment reversed and remanded.

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

Decision available at: http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

Authored by: Caleb W. Skeath, CJS Intern
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*We both acknowledge and appreciate the efforts and dedication of the CJS Legal Intern Caleb W. Skeath in preparing the above commentary.

June 30, 2010

Findlaw Case Summaries: Criminal Law and Procedure - June 21-25, 2010

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June 21-25, 2010.

U.S. Supreme Court, June 21, 2010
Holder v. Humanitarian Law Project, No. 08–1498
In a constitutional challenge to 18 U.S.C. section 2339B(a)(1), which prohibited knowingly providing material support or resources to a foreign terrorist organization, the Ninth Circuit's affirmance of partial judgment for plaintiffs is reversed in part where the material support statute was constitutional as applied to the particular forms of support that plaintiffs sought to provide to foreign terrorist organizations. .

U.S. Supreme Court, June 24, 2010
Skilling v. US, No. 08–1394
The Fifth Circuit's affirmance of defendant Jeffrey Skilling's honest-services fraud conviction is affirmed in part where pretrial publicity and community prejudice did not prevent Skilling from obtaining a fair trial, and he did not establish that a presumption of juror prejudice arose or that actual bias infected the jury that tried him. However, the judgment is vacated in part where 18 U.S.C. section 1346, which proscribes fraudulent deprivations of "the intangible right of honest services," was properly confined to cover only bribery and kickback schemes, and Skilling's alleged misconduct entailed no bribe or kickback. .

U.S. Supreme Court, June 24, 2010
Black v. US, No. 08–876
The Seventh Circuit's affirmance of defendants' honest-services mail fraud convictions is vacated where: 1) per the ruling today in Skilling v. US, the honest-services component of the federal mail-fraud statute, 18 U.S.C. section 1346, criminalizes only schemes to defraud that involved bribes or kickbacks, and that holding renders the honest-services instructions given in this case incorrect; and 2) by properly objecting to the honest-services jury instructions at trial, defendants secured their right to challenge those instructions on appeal, and they did not forfeit that right by declining to acquiesce in the government-proposed special-verdict forms. Read more...


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