To view these cases distributed by Findlaw.com you must first sign in to Findlaw.com. "Findlaw summaries [may] include opoinions that have not yet been released for publication and may be subject to modification, correction or withdrawl.
U.S. 1st Circuit Court of Appeals, April 28, 2008
US v. Whitney , No. 07-1934
Conviction for making a false statement to a firearms dealer during an attempt to purchase firearm is affirmed over claims that: 1) the trial judge erred in defining the term "knowingly", by refusing to give an explicit willful blindness instruction; and 2) the trial judge erroneously admitted evidence that defendant was arrested for violating a protective order entered against him three weeks before denying the existence of such an order on a federal firearms form.
U.S. 1st Circuit Court of Appeals, April 28, 2008
Hannon v. Beard, No. 07-2272
In a suit against defendants, most of whom were officials in the Massachusetts Department of Corrections, alleging federal and state constitutional violations, dismissal of plaintiffs' claims for lack of personal jurisdiction is reversed in part and remanded where: 1) assertion of personal jurisdiction over one defendant was authorized by the Massachusetts long-arm statute; and 2) exercising jurisdiction over that defendant comported with due process requirements under the federal constitution.
U.S. 1st Circuit Court of Appeals, April 29, 2008
US v. Innarelli, No. 06-2400
In a prosecution for wire fraud and conspiracy to launder money for defendant's role in a "land-flipping" scheme in Massachusetts, defendant's sentence is affirmed over claims that the district court: 1) erred in calculating the amount of loss for purposes of determining guidelines base offense level; and 2) failed to adequately account for several personal circumstances justifying a lower sentence. However, an order requiring defendant to pay restitution to defrauded victims is vacated and remanded where the court appeared: 1) to have based some or all of the awards on intended loss rather than actual loss; and 2) to have taken into account emotional damages with respect to victim-buyers
U.S. 1st Circuit Court of Appeals, April 29, 2008
US v. Marti-Lon, No. 07-1040
Conviction and sentence for unlawful distribution of prescription drugs, monetary transactions from unlawful activity, and false statements is affirmed over claims of: 1) trial errors, primarily prosecutorial misconduct and error by the court as to its treatment of two jurors; 2) sentencing errors claiming that defendant was wrongly denied credit when the prosecution declined to move for a departure based on substantial assistance, and that the district court erroneously calculated the amount of loss attributable to her conduct.
U.S. 1st Circuit Court of Appeals, April 30, 2008
US v. Herrera-Martinez, No. 07-1363
Convictions stemming from defendant's use of personal information, including a Social Security number, that did not belong to defendant in order to secure subsidized housing under a federal program, are affirmed over claims that: 1) a conviction under 18 U.S.C. section 641 requires proof of elements not present in her case; 2) 42 U.S.C. section 408(a)(7)(B) prohibits the use of a false Social Security number only to obtain a Social Security payment, not to obtain other benefits; and 3) she was entitled to acquittal of aggravated identity theft because it required, as a predicate, one of the other two offenses.
U.S. 2nd Circuit Court of Appeals, April 30, 2008
City of New York v. Beretta U.S.A. Corp. , No. 05-6942
In an action involving the Protection of Lawful Commerce in Arms Act (PLCAA), which provides that any "qualified civil liability action that is pending on October 26, 2005, shall be immediately dismissed by the court in which the action was brought or is currently pending", the circuit court finds that: 1) a claim by the city of New York, predicated on New York Penal Law section 240.45, did not fall within an exception to the claim restricting provisions of the Act; and 2) the PLCAA was a valid exercise of Congressional power under the Commerce Clause, and the PLCAA did not violate the separation of powers doctrine or otherwise offend the Constitution in any manner alleged by the city.
U.S. 2nd Circuit Court of Appeals, May 01, 2008
Vives v. City of New York , No. 05-1664
In an appeal considering whether a city's acknowledged policy of enforcing New York Penal Law section 240.30(1) is a policy within the meaning of Monell that caused the violation of plaintiff's rights, a judgment awarding plaintiff damages for the city's violation of his constitutional rights is vacated and remanded where the record was insufficient to resolve this issue.
U.S. 3rd Circuit Court of Appeals, May 01, 2008
US v. Wood, No. 06-3812
Sentence for bank robbery is affirmed over defendant's challenges to the computation of his criminal history score based on the "relatedness" of his prior convictions, as the district court did not err in: 1) its interpretation of U.S.S.G. section 4A1.2(a)(2) at the time of defendant's sentencing; or 2) its finding of fact with respect to defendant's prior convictions.
U.S. 3rd Circuit Court of Appeals, May 02, 2008
Nijhawan v. Atty. Gen. of US, No. 06-3948
Petition for review of a BIA decision finding that petitioner was removable under 8 U.S.C. section 1101(a)(43)(M)(i) for committing an aggravated felony is denied where: 1) petitioner's conviction for conspiracy to commit bank fraud, mail fraud and wire fraud constituted offenses involving "fraud or deceit" for purpose of the INA; and 2) while petitioner's conviction did not establish that loss to his victims exceeded $10,000, section 1101(a)(43)(M)(i) does not require a jury to have determined that there was a loss in excess of $10,000.
U.S. 4th Circuit Court of Appeals, April 28, 2008
U.S. v. Benton, No. 07-4211
Denial of defendant's motion to withdraw his plea is affirmed where: 1) magistrate judges possess the authority to bind defendants to their plea so long as district judges retain the authority to review the magistrate judge's actions de novo; 2) there is no reversible error even if defendant was misinformed as to the length of his term of supervised release, so long as his overall sentence fit within the sentencing range communicated to him at his plea colloquy; and 3) a failure to discuss the mens rea of a charge where it is not at issue under the case does not constitute ineffective representation.
U.S. 4th Circuit Court of Appeals, April 28, 2008
U.S. v. Curry, No. 07-4152
A 36-month sentence for mail and wire fraud is affirmed over a reasonableness challenge based on a claim that the sentencing judge had expressed a desire to give the defendant a more lenient sentence of 29 months of home confinement, but felt compelled to give him the 36 month sentence by his interpretation of the law and a previous circuit court decision.
U.S. 4th Circuit Court of Appeals, April 28, 2008
Orem v. Rephann, No. 07-1696
In a civil rights action alleging excessive force, denial of summary judgement for defendant-deputy is affirmed where: 1) the use of a taser against plaintiff while she was handcuffed and confined to the back seat cage of a deputy's car, as another officer was attempting to tighten a restraint on her feet, was unreasonable; 2) the application of a taser for 1.5 seconds is not a de minimus injury simply because of the time factor; and 3) thus, defendant was not entitled to qualified immunity.
U.S. 4th Circuit Court of Appeals, May 01, 2008
U.S. v. Jackson, No. 07-4103, 07-4094
Defendants' convictions and sentences for bank fraud are affirmed where: 1) unpaid employer contributions to a company's ERISA plan constitute plan assets; 2) defendants were guilty of ERISA theft regardless of whether they were fiduciaries; 3) there was sufficient evidence to support their convictions; 4) the fraud-loss amount resulting in a seventeen-level increase to the offense level under the Sentencing Guidelines was not miscalculated; and 5) there was no error with the increase of the offense level based on defendants' actions.
U.S. 5th Circuit Court of Appeals, April 29, 2008
Patel v. Mukasey, No. 06-61056
Petition for review of a decision finding that petitioner, a citizen of India, was removable for having committed an aggravated felony under 8 U.S.C. section 1101(a)(43)(M)(i) is denied where plaintiff's conviction for misprision of a felony was an offense that: 1) necessarily entailed fraud or deceit; and 2) involved a loss to the victim exceeding $10,000.
U.S. 5th Circuit Court of Appeals, April 29, 2008
US v. Lopez, No. 07-10151, 07-10321
A sentence for illegal re-entry after deportation is affirmed over claims of error regarding whether: 1) defendant's sentence was substantively unreasonable; and 2) the lack of a fast-track early disposition program in the Northern District of Texas deprived defendant of a sentencing reduction, in violation of his equal protection rights, and resulted in an unwarranted sentencing disparity. Read more...
U.S. 5th Circuit Court of Appeals, April 30, 2008
USA vs. Gulley, No. 06-41528
A conviction for murder and possessing a dangerous weapon in federal prison is affirmed over claims that: 1) there was insufficient evidence to prove guilt; 2) the district court improperly excluded evidence of the victim's specific prior acts of violence; 3) the district court erroneously refused to conduct an in camera hearing to determine whether defendant's due process rights were violated as a result of preindictment delay; 4) defendant received ineffective assistance of counsel; and 5) defendant was not present when a jury note was read and the district court responded to the jury's request to recess. Read more...
U.S. 5th Circuit Court of Appeals, April 30, 2008
USA vs. Tushnet, No. 07-20103
A conviction for conspiracy to possess with the intent to distribute drugs is affirmed over a claim of error that the court improperly calculated the weight of the 5000 pills resulting in a higher base level for the offense. The circuit court rejects defendant's reasoning and affirms the presumed per-pill weight the trial court used in its calculation. Read more...
U.S. 5th Circuit Court of Appeals, May 02, 2008
USA vs. Fambro, No. 06-10847
A conviction and sentence for being a felon in possession of a firearm is affirmed over claims of error regarding whether: 1) there was insufficient evidence of his possession of the firearm; 2) the prosecutor violated his due process right to freedom from self-incrimination by commenting on defendant's failure to deny knowledge or ownership of the firearm when questioned after his arrest; 3) the prosecutor violated his due process rights by tainting prospective jurors with "commitment" questions during voir dire; 4) the district court improperly applied the relevant conduct provisions of the Sentencing Guidelines; 5) the court erred in determining that defendant was an Armed Career Criminal; and 6) the court violated defendant's Sixth Amendment right to trial by jury by enhancing his sentence on the basis of facts not found by a jury beyond a reasonable doubt. Read more...
U.S. 5th Circuit Court of Appeals, May 02, 2008
USA vs. Burns, No. 07-50321
A conviction for conspiracy to possess with intent to distribute crack cocaine and aiding and abetting the distribution of crack cocaine is affirmed over claims of error regarding whether: 1) defendant had ineffective assistance of counsel; 2) the prosecutor made improper remarks at trial; and 3) there was insufficient evidence to support the conviction. However, the sentence is vacated and remanded where defendant, having objected on the basis of an improper disparity between the Sentencing Guidelines' treatment of powder and crack cocaine offenses, was entitled to resentencing in light of Kimbrough v. United States, 128 S. Ct. 558 (2007). Read more...
U.S. 6th Circuit Court of Appeals, April 29, 2008
Johnson v. Bell, No. 04-5377
In habeas proceedings in a death penalty case, denial of habeas relief is affirmed over claims regarding whether: 1) petitioner's due process right was violated by the prosecution's failure to disclose material evidence; 2) petitioner's right to compulsory process was violated by the prosecution's improper coercion of a defense witness; 3) the prosecution improperly interfered with a defense witness; 4) the prosecution improperly vouched for a witness's credibility and inflamed the passions of the jury; 5) the cumulative misconduct violated the petitioner's rights; and 6) petitioner's counsel rendered ineffective assistance of counsel during the guilt phase. Read more...
U.S. 6th Circuit Court of Appeals, April 29, 2008
Gibson v. Moskowitz, No. 07-1074, 07-1198
In a 42 U.S.C. section 1983 and state law action brought by the estate of a mentally disabled inmate who died from severe dehydration, a judgment pursuant to a jury verdict in favor of the estate is affirmed in part and reversed in part where: 1) there was sufficient evidence to show deliberate indifference on the part of defendant-psychiatrist; 2) the evidence supported the compensatory and punitive damages awards; 3) the punitive damages award was not constitutionally excessive; 4) claims of evidentiary errors are rejected; 5) there was no error in applying Michigan's "high tier cap" on non-economic damages for medical malpractice; but 6) a remand was required as the district court failed to state a reason as to how it allocated the award between the statutorily capped malpractice claim and the deliberate indifference claims. Read more...
U.S. 6th Circuit Court of Appeals, May 02, 2008
U.S. v. Blair, No. 06-6036, 06-6037
In a case where, after entering into a plea agreement over a federal firearm charge, defendant was indicted on a federal drug charge stemming from a traffic stop and sentenced for both charges, denial of defendant's motions to dismiss the drug indictment and to suppress evidence seized during the stop is reversed and his sentence in the firearm case vacated and remanded where: 1) an officer lacked probable cause to stop defendant's car and conduct a search; 2) the stop was not based on an articulable suspicion of criminal activity necessary to extend its scope and duration; and 3) defendant's sentence for the firearm charge was approximately four times greater than it would have been had he been sentenced for the firearm charge alone. Read more...
U.S. 7th Circuit Court of Appeals, April 29, 2008
Williams v. City of Champaign, No. 07-1619
In an action alleging false arrest and use of excessive force by police and private security, summary judgment in favor of defendants is affirmed where: 1) the drawing of weapons at plaintiff's approaching car did not constitute an excessive use of force; 2) handcuffing and briefly questioning a juvenile while police fill out a juvenile contact form does not give rise to damages; 3) private security guards who erroneously reported the alleged crime to police are not liable in tort to a person arrested as a consequence of the error; and 4) plaintiffs failed to show a connection between the violation of a training statute and the harm incurred. Read more...
U.S. 7th Circuit Court of Appeals, April 29, 2008
Jones v. Wallace, No. 07-1470
Denial of a petition for a writ of habeas corpus from a conviction for sexual assault is affirmed where petitioner failed allege facts that, if proven, would warrant relief with regard to a claim that his counsel's failure to discover and introduce evidence that would have impeached the testimony of the victim constituted ineffective assistance. Read more...
U.S. 7th Circuit Court of Appeals, April 29, 2008
U.S. v. Van Allen, No. 07-1160
A conviction for a series of financial crimes, involving the structuring of currency transactions and the concealment of assets in a bankruptcy proceeding, is affirmed where: 1) there was sufficient evidence to support a finding that defendant structured his business transactions to evade reporting requirements; 2) there was sufficient evidence to show that defendant intentionally concealed his business in the course if filing for bankruptcy; 3) defendant failed to support his "advice of counsel" theory so no jury instruction on that matter was required; 4) the jury was properly instructed as to a concealment charge; and 5) evidence of the bank's reports for deposits totaling $10,000 was not erroneously excluded since it had no bearing on defendant's knowledge or intent. Read more...
U.S. 7th Circuit Court of Appeals, May 01, 2008
US v. Wantuch, No. 06-3681
Convictions for conspiracy to defraud the United States, bribery of public officials, fraudulent receipt of temporary Alien Registration Stamps, and making false statements to the INS, are affirmed over claims regarding whether: 1) the district court erred by allowing witnesses to testify as to their opinion of defendant's intent under Federal Rule of Evidence 701; 2) whether the court erred in admitting testimony about a confrontation in 2003; 3) whether the court erred in admitting evidence of certain cigarette sales; and 4) whether the evidence of a conspiracy was sufficient to warrant a Pinkerton instruction. Read more...
U.S. 7th Circuit Court of Appeals, May 02, 2008
Smith v. City of Chicago, No. 07-1599
In a 42 U.S.C. section 1983 action arising from the seizure of certain of plaintiffs' property under Illinois' Drug Asset Forfeiture Procedure Act (DAFPA), dismissal of the action is reversed and remanded where the circuit court recognizes that it is a violation of due process not to have a post-seizure/pre-forfeiture hearing given the length of time which can result between the seizure of property and the opportunity for an owner to contest the seizure under DAFPA. Read more...
U.S. 8th Circuit Court of Appeals, April 29, 2008
Students for Sensible Drug Policy Found. v. Spellings, No. 07-1159
In an action wherein plaintiff sought an injunction and a declaratory judgment that 20 U.S.C. section 1901(r), which suspends eligibility for student loans following a conviction for enumerated drug offenses, contravenes the federal constitution, dismissal of the complaint is affirmed where the statutory scheme did not violate the Fifth Amendment's provision against double jeopardy, as its underlying provisions are not punitive in purpose or in effect so as to transform into a second criminal penalty. Read more...
U.S. 8th Circuit Court of Appeals, April 29, 2008
US v. Peters , No. 08-1672
A denial of defendant's motion for reduction of his sentence pursuant to Amendment 706 to the U.S.S.G. is affirmed where: 1) defendant was not entitled to a reduction of sentence under Amendment 706, as he was already sentenced to the mandatory minimum; and 2) the district court properly denied defendant's request to reconsider his criminal history score, as Amendment 709 was not a covered amendment to which retroactive treatment may be given. Read more...
U.S. 8th Circuit Court of Appeals, April 29, 2008
US v. Black , No. 08-1875
An order granting a 10-month reduction to defendant's sentence for a drug-related offense pursuant to Amendment 706 of the Sentencing Guidelines is affirmed where: 1) the district court correctly determined that it could not reduce defendant's sentence below the Congressionally-mandated statutory minimum sentence; and 2) in determining the amended guidelines range, the district court properly set the bottom of the amended guidelines range at 60 months. .
U.S. 8th Circuit Court of Appeals, May 01, 2008
US v. Hullette, No. 07-3325
In a prosecution for possession of firearms by a convicted felon, grant of the government's motion in limine to preclude the defense of entrapment by estoppel is affirmed where: 1) a federally licensed firearms dealer is not a government official whose representations give rise to an entrapment by estoppel defense; and 2) even if the dealer were a government agent, a report generated from the National Instant Criminal Background Check System (NICS) permitting the dealer to "proceed" with a firearms sale is not the type of statement giving rise to the entrapment by estoppel defense.
U.S. 8th Circuit Court of Appeals, May 01, 2008
US v. McFadden, No. 08-1736
An order denying defendant's motion for reduction of sentence pursuant to 18 U.S.C. section 3582(c)(2) based on Amendment 706 to the U.S.S.G. is affirmed where, even with the benefit of Amendment 706, defendant was not entitled to a sentence reduction, as his newly calculated guideline range would still be limited by U.S.S.G section 5G1.1(a) and remain unchanged.
U.S. 8th Circuit Court of Appeals, May 01, 2008
US v. Tingle, No. 08-1777
An order denying defendant's motion for reduction of sentence pursuant to 18 U.S.C. section 3582(c)(2) based on Amendment 706 to the U.S.S.G. is affirmed where defendant did not meet the eligibility requirements for a sentence reduction under section 3582(c)(2), as he was a career offender.
U.S. 8th Circuit Court of Appeals, May 01, 2008
US v. Miranda, No. 08-1887
An order denying defendant's motion for reduction of sentence pursuant to 18 U.S.C. section 3582(c)(2) based on Amendment 706 to the U.S.S.G. is affirmed where defendant was sentenced as a career criminal, and thus ineligible for such a reduction.
U.S. 8th Circuit Court of Appeals, May 02, 2008
US v. Tansel, No. 07-2447
Conviction and sentence for child pornography offenses is affirmed where: 1) the totality of the circumstances described in the affidavit established a fair probability that child pornography would be found on defendant's home computer; 2) even if the state search warrant was invalid, evidence seized from defendant's home was admissible under the independent source doctrine; and 3) the underlying evidence did not suggest that the district court clearly erred by enhancing defendant's offense level for distribution of child pornography to a minor.
U.S. 9th Circuit Court of Appeals, April 28, 2008
Ortiz-Magana v. Mukasey, No. 06-72797
An alien who is convicted of aiding and abetting an assault with a deadly weapon under California Penal Code section 245(a)(1) has committed a crime of violence as if he had personally committed the offense.
U.S. 9th Circuit Court of Appeals, April 28, 2008
US v. Mara, No. 07-30102
Unrelated criminal conduct following a guilty plea may be considered in evaluating a defendant's acceptance of responsibility. A sentence for being a felon in possession of a firearm is affirmed where, because defendant engaged in continued criminal activity following his conviction, the district court did not err in concluding that he had not demonstrated the acceptance of responsibility necessary to receive a reduced sentence under U.S.S.G. section 3E1.1(a).
U.S. 9th Circuit Court of Appeals, April 28, 2008
US v. Aguila-Montes, No. 05-50170
A sentence for attempting to reenter the U.S. following deportation is affirmed where: 1) under the modified categorical approach, defendant's prior California conviction for first degree residential burglary under California Penal Code section 459 constituted a crime of violence under the Guidelines; and 2) thus, the district court properly applied a sixteen-level sentence enhancement.
U.S. 9th Circuit Court of Appeals, April 29, 2008
US v. Medina, No. 05-30477, 05-30482
Dismissal, without prejudice, of defendant's indictment for drug-related offenses based on excessive pretrial delays is affirmed where: 1) although he established a one-day error in the district court's Speedy Trial Act determination, the error was harmless; 2) other than that error, the calculation of the number of days excludable under the Speedy Trial Act was proper; and 3) there was no abuse of discretion in dismissing the indictment without prejudice.
U.S. 9th Circuit Court of Appeals, April 29, 2008
Choe v. Torres, No. 06-56634
Denial of Korean citizen's habeas corpus petition challenging certification of his extradition to the Republic of Korea is affirmed in part as to a charge that defendant bribed an officer, but reversed in part as to another charge where there was no competent evidence to support a magistrate judge's finding of probable cause that defendant committed the particular acts "for which extradition [was] requested."
U.S. 9th Circuit Court of Appeals, April 29, 2008
Gregory v. County of Maui, No. 06-15374
In an estate's 42 U.S.C. section 1983 suit involving claims of excessive force leading to the death of an individual, summary judgment for defendants is affirmed where: 1) police officers did not use excessive force in violation of the Fourth Amendment in attempting to restrain the individual; and 2) consequently, the estate's section 1983 claims against defendant-county also failed.
U.S. 9th Circuit Court of Appeals, April 29, 2008
US v. Stoterau, No. 07-50124
Defendant's sentence for transporting child pornography is affirmed in part and vacated in part where: 1) the district court did not err in applying a two-level enhancement pursuant to U.S.S.G. section 2G2.1(b)(2)(A); 2) it did not abuse its discretion in sentencing him to a 151-month term of imprisonment; 3) with one exception, it did not abuse its discretion in imposing certain special conditions on his term of supervised release; 4) the district court was not obliged by Rule 32 of the Federal Rules of Criminal Procedure to rule on his evidentiary challenge to information contained in his PSR; but 5) the use of the word "pornography" in one condition of supervised release made such condition impermissibly vague.
U.S. 9th Circuit Court of Appeals, May 01, 2008
US v. Tapia-Romero, No. 05-50121
A sentence for being an illegal alien found in the U.S. after deportation is affirmed where the district court correctly concluded that the cost to society of imprisoning a defendant is not a factor to be considered in determining the appropriate length of a defendant's term of imprisonment under 18 U.S.C. sections 3553(a) and 3582(a).
U.S. 9th Circuit Court of Appeals, May 02, 2008
Pinholster v. Ayers, No. 03-99003, 03-99008
In habeas proceedings arising from a death penalty case, a denial of an evidentiary hearing on petitioner's claims of ineffective assistance during the guilt phase is affirmed, but a grant of habeas relief on an ineffective assistance of counsel claim at the penalty phase is reversed on cross-appeal by the government where the California Supreme Court's ruling on the prejudice prong of Strickland was not an unreasonable application of the case.
U.S. 10th Circuit Court of Appeals, April 29, 2008
US v. Eddy, No. 07-5081
A conviction for drug- and firearm-related offenses is affirmed over claims of error that: 1) the district court committed plain error when it failed to instruct the jury that distribution of a small amount of marijuana for no remuneration constitutes simple possession, punishable as a misdemeanor; and 2) if such conviction was invalid, a conviction on another count should also be reversed because the distribution count was an alternative predicate for it.
U.S. 10th Circuit Court of Appeals, April 29, 2008
Archuleta v. Wagner, No. 07-1108
In a civil rights action arising from circumstances in which plaintiff was strip searched pursuant to an incorrect arrest warrant, a decision rejecting police officer's claim to qualified-immunity defense on a strip-search claim is affirmed where: 1) plaintiff demonstrated that her constitutional rights were violated by the strip search under the circumstances; and 2) those rights were clearly established at the time of the search.
U.S. 10th Circuit Court of Appeals, April 30, 2008
US v. Vigil, No. 07-2060
Former New Mexico State Treasurer's conviction for attempted extortion is affirmed over challenges to the sufficiency of the evidence regarding whether: 1) defendant's conduct was "wrongful" and not merely hard bargaining or political patronage; 2) he "obtained property" from a contractor; 3) he used actual or threatened force, violence, or fear; 4) the government met the quid pro quo requirement showing that he obtained property "under color of official right"; 5) defendant's conduct affected interstate commerce; and 6) he took a substantial step toward the commission of extortion.
U.S. 10th Circuit Court of Appeals, May 01, 2008
United States v. Saavedra, No. 07-2192
A sentence for being an addict or unlawful user of a controlled substance in possession of a firearm and ammunition is reversed where the district court committed procedural error in calculating defendant's criminal history category and corresponding sentencing range.
U.S. 11th Circuit Court of Appeals, April 29, 2008
US v. Brown, No. 05-16128
Conviction and sentence for using a facility and means of interstate commerce to entice a minor to engage in sexual activity is affirmed over defendant's claims that the district court: 1) failed to comply with the requirements of Fed. R. of Crim. Pro. 11 in entertaining and accepting his plea of guilty; 2) violated a core concern of Rule 11 by failing to inform him of the consequences of his plea; 3) denied him due process by a retroactive application of US v. Searcy, 418 F.3d 1193 (2005), and a consequent application of a career offender enhancement; 4) used court docket sheets to find him convicted of two predicate offenses in violation of his Sixth Amendment right to have a jury determine the existence of those convictions; 5) imposed an unreasonable sentence; and 6) demonstrated bias and prejudice at a sentence hearing, in violation of his due process rights to a fair hearing.
U.S. 11th Circuit Court of Appeals, April 30, 2008
Laperriere v. Vesta Ins. Group, Inc., No. 06-14524
In an appeal addressing whether, and to what extent, the proportionate liability scheme of section 21(D)(f) of the Securities Exchange Act of 1934 (Act), enacted as part of the Private Securities Litigation Reform Act of 1995 (PSLRA), amends section 20(a) of the Act, under which a person who controls a violator of the Act is "liable jointly and severally with and to the same extent" as that violator, the circuit court rules that section 21(D)(f) and section 20(a) should be read in harmony to preserve both the PSLRA's proportionate liability scheme and a controlling person's derivative liability under section 20(a).
Supreme Court of California, April 28, 2008
P. v. Lewis , No. S031603
Defendant’s conviction and sentences resulting from five counts of first degree murder and multiple counts of robbery, and kidnapping are: 1) vacated where lying-in-wait special circumstances as to four of the murder victims four were not supported by sufficient evidence; 2) reversed where defendant’s six convictions for simple kidnapping are lesser-included offenses to committing robbery; 3) modified to reflect a single sentence for conspiracy where trial court erred in sentencing defendant for five separate conspiracies to commit the five separate crimes listed in the indictment (3) stayed on the order that sentences for the conspiracy conviction in count 27 and for the robbery convictions on the basis that defendant may not be punished for both the underlying crimes and the conspiracy. The judgment is affirmed over claims of error regarding (a) whether four-day delay between defendant’s warrantless arrest and his arraignment violated his Fifth Amendment right to be lef! t alone after his invocation of Miranda rights until attorney was appointed; (b) whether defendant failed to meet his burden of establishing that the small size of the relevant community weighed in favor of a change of venue; (c) that defendant has not shown reasonable likelihood that he did not receive fair trial before an impartial hearing; (d) whether trial court’s denial of defendant’s motion for severance, based on out-of-court statements made by co-defendants implicating defendant, or for separate juries was erroneous and violated his Constitutional rights; (e) trial court did not err in finding defendant did not establish purposeful discrimination in the prosecutor’s exercise of peremptory challenges with regards to jury selection; (f) whether erroneous admission of drawings, or testimony regarding prior incarceration, or admission of other evidence as exhibits did not prejudice defendant, (g) whether jury’s consideration of all reversed counts and invalid special c! ircumstances in the aggregate did not effect the penalty verdi! ct; (h) that the trial court did not err in not conducting competence hearing because there was no substantial evidence of incompetence before the trial court; (i) whether error to admit the photographs of damage to the holding cell wall and the records of defendant’s juvenile confinement, was harmless; (j) whether evidence of defendant’s possession of homemeade stabbing object while in custody on a prior charge was sufficient for jury to conclude that defendant’s possession of the shank was knowing; (k) trial court need not instruct that beyond-a-reasonable-doubt standard and the requirement of jury unanimity do not apply to mitigating factors; (l) whether trial court’s error in failing to reinstruct jury with applicable instructions regarding evaluating the evidence was harmless; The Court did not consider defendant’s new claim that four-day delay between arrest and arraignment violated his Constitutional right against unreasonable search and seizure under McLaughlin be! cause the defense was not raised at trial.
New York Court of Appeals, April 29, 2008
People v, Sparber , No. 53
In appeals considering whether defendants were entitled to relief of their statutory obligation to serve a term of post-release supervision (PRS) because sentencing courts failed to pronounce their PRS terms in accordance with Crim. Proc. Law sections 380.20 and 380.40, the court of appeals concludes that the procedure through which PRS was imposed upon the defendants was flawed, as it did not comply with the statutory mandate. However, in remedying this error, rather than striking the PRS from the sentences, the matters are remanded for resentencing and the proper judicial pronouncement of the relevant PRS terms.
New York Court of Appeals, April 29, 2008
In the Matter of Garner v. New York State Dep't of Corr. Serv. , No. 57
The New York State Department of Correctional Services (DOCS) may not administratively add a mandatory period of Post-Release Supervision (PRS) onto a prisoner's sentence when the PRS term was never pronounced by the sentencing judge, as Crim. Pro. Law 380.20 and 380.40 collectively provide that only a judge may impose a PRS sentence.
New York Court of Appeals, May 01, 2008
People v. Cabrera, No. 61
In a criminal case arising from a traffic accident wherein sober defendant-driver's excessive speeding claimed the lives of three passengers, conviction for criminally negligent homicide and third-degree assault is reversed and dismissed where, although defendant's excessive speeding behavior was negligent and unquestionably "blameworthy", the evidence adduced at trial did not establish that circumstances surrounding the accident amounted to the kind of "morally blameworthy" component required to infer defendant's criminal negligence.
Supreme Court of Florida, May 01, 2008
State of Florida v. Belvin, No. SC06-593
Portions of a breath test affidavit containing the operator's procedures and observations in administering the breath test were testimonial and their admission at defendant's criminal DUI trial without a prior opportunity to cross-examine the operator violated his right of confrontation under Crawford.
Supreme Court of Florida, May 01, 2008
Peters v. State of Florida, No. sc06-341
The rule set forth in Crawford v. Washington, 541 U.S. 36 (2004), which provides that testimonial hearsay is inadmissible in a criminal prosecution unless the declarant is unavailable and the accused has had an opportunity to cross-examine the witness, does not apply to probation or community control revocation proceedings in Florida.
Supreme Court of Florida, May 01, 2008
Russell v. State of Florida, No. sc06-335
The decision in Crawford v. Washington, 541 U.S. 36 (2004), is not applicable to probation revocation proceedings and the trial court properly revoked defendant's probation in this case.
Supreme Court of Florida, May 01, 2008
Lebron v. State of Florida, No. SC06-138
A conviction and death sentence for murder is affirmed over claims of error regarding: 1) mitigation findings of the trial court; 2) whether the trial court improperly required the jurors to record a numerical vote for findings with regard to each aggravating and mitigating factor presented; 3) a Ring claim; 4) the constitutionality of the standard penalty-phase jury instructions; 5) the constitutionality of lethal injection; and 6) the proportionality of the death sentence.
Supreme Court of Florida, May 01, 2008
State of Florida v. Johnson, No. SC06-86
The admission of a Florida Department of Law Enforcement lab report establishing the illegal nature of substances possessed by a defendant violates the confrontation clause and Crawford v. Washington, 541 U.S. 36 (2004), when the person who performed the lab test does not testify.
Supreme Court of Florida, May 01, 2008
Woodel v. State of Florida, No. SC05-1336
A death sentence imposed on defendant following a remand is affirmed over claims that: 1) the trial court erred in excusing for cause two jurors who were not sufficiently fluent in the English language without the aid of an interpreter; 2) fundamental error occurred when the jury heard and considered prejudicial testimony from a state witness; 3) the trial court erred in finding the aggravating factor of "vulnerability due to advanced age or disability" with regard to one murder; 4) the sentence of death was not proportional; 5) defendant was entitled to a life sentence because Florida's death penalty law violates his due process right and his right to a jury; and 6) execution by lethal injection constitutes cruel and unusual punishment.
California Appellate Districts, April 30, 2008
People v. Kelly , No. E042607
Following a remand wherein the trial court conducted a hearing to allow the prosecutor to state her reasons for exercising contested peremptory challenges, determined that the prosecutor's use of peremptory challenges were proper, and reinstated a judgment against the defendant for his criminal offenses, the ruling is affirmed over claims that: 1) the hearing was conducted in a manner so fundamentally unfair as to render it void; and 2) the recent decision in Snyder v. Louisiana (2008) implies support for all the procedural deficits existing at the hearing at issue.
California Appellate Districts, April 30, 2008
People v. Eddards, No. C054656
In a case wherein the court imposed a restitution fine plus a "10 percent administrative fee" for defendant's conviction for violent crimes, the court of appeals rules that: 1) the 10 percent fee was erroneously added to the defendant's restitution fund payment, as the fee was unauthorized by Penal Code section 1202.4; and 2) an order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed.
California Appellate Districts, April 30, 2008
People v. Semien, No. C053802
A conviction for evading a police officer while driving recklessly, resisting an executive officer by threat, force, or violence, and other related offenses is affirmed where: 1) the prosecutor did not violate defendant's constitutional rights by using a peremptory challenge to excuse a prospective juror who was an African-American pastor whose spouse worked in the county welfare department; and 2) a conviction for assault on peace officer constitutes a "strike" even though the assault was not with a deadly weapon.
California Appellate Districts, April 30, 2008
Mendez v. Superior Court (People), No. D051512
Petition for a writ of prohibition challenging an order denying petitioner's motion to dismiss under Penal Code section 1382.1 is denied over claims that: 1) the government, in seeking a continuance, failed to comply with the written notice and pleading requirements of Penal Code section 1050(b); 2) the prosecutor's scheduling problems did not require a continuance of as many as 10 days; 3) a police officer's unavailability to testify at trial did not constitute good cause for the continuance; and 4) in ruling on the motion to dismiss, the trial court was limited to considering evidence presented at a section 1050 motion hearing.
