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U.S. 1st Circuit Court of Appeals, July 31, 2008
US v. Aviles-Colon, No. 05-1384, 05-2039, 05-2040
Conviction for conspiracy to distribute heroin, cocaine, and marijuana at three drug points in Puerto Rico in violation of 21 U.S.C. sections 841(a) and 846 and for possession of firearms, is affirmed for two appellants and vacated for the third appellant where: 1) with respect to the two appellants there is no reversible error; and 2) with respect to the third appellant, the government failed to disclose exculpatory evidence material to his defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963).
U.S. 1st Circuit Court of Appeals, August 01, 2008
Trenkler v. U.S., No. 07-1678, 07-1679
Grant of writ of error coram nobis to inmate petitioner, which vacated petitioner's original sentence on the grounds that ten years earlier the court had illegally sentenced him to life imprisonment, is reversed where: 1) the substance of the petition falls under U.S.C. Section 2255(a) habeas corpus petition; 2) a 2255 petition is unauthorized by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and 3)according to US v. Barrett, the writ of coram nobis may not be used to circumvent the clear congressional directive embodied in the 'second of successive' provisions of Section 2255. District court is directed to reinstate original sentence.
U.S. 2nd Circuit Court of Appeals, July 30, 2008
US v. Abiodun, No. 06-5335
Defendants' sentences for fraud and various fraud-related offenses are affirmed in part, vacated in part, and remanded where: 1) the district court incorrectly calculated the number of victims affected by defendants' conduct; but 2) an individual who is reimbursed for his economic loss can qualify as a victim under the number-of-victims enhancement set forth in U.S.S.G. section 2B1.1(b)(2).
U.S. 3rd Circuit Court of Appeals, July 28, 2008
US v. Lilly, No. 06-2613
Denial of an inmate's habeas petition based upon ineffective assistance of counsel is affirmed where there was sufficient evidence for a jury to have convicted defendant, and therefore no prejudice to defendant resulted from heeding his attorney's advice to waive a jury trial.
U.S. 3rd Circuit Court of Appeals, July 28, 2008
US v. Mabry, No. 06-2867
Denial of an inmate's habeas corpus petition is affirmed where: 1) defendant knowingly and voluntarily waived his right to both direct and collateral appeals in his plea agreement; 2) counsel's failure to file an appeal upon defendant's request did not give rise to a presumption that the waiver worked a "miscarriage of justice"; and 3) on the facts presented, no miscarriage of justice resulted from the waiver.
U.S. 3rd Circuit Court of Appeals, July 29, 2008
Monroe v. Beard, No. 07-3711
In a 42 U.S.C. section 1983 suit by prison inmates challenging the confiscation of legal materials by state corrections officials, dismissals of some claims and summary judgment for defendants on the remainder are affirmed where: 1) plaintiffs did not allege an actual injury in their claim of loss of access to the courts; 2) defendants demonstrated a legitimate governmental interest in stopping inmates from filing fraudulent liens and judgments against prosecutors and prison officials, and demonstrated a rational connection between that interest and their confiscation policy; 3) plaintiffs did not provide evidence demonstrating that defendants' confiscation of their publications was constitutionally unreasonable; and 4) due process required only a post-deprivation remedy, and plaintiffs were afforded a post-deprivation process for the return of their materials.
U.S. 3rd Circuit Court of Appeals, July 31, 2008
US v. Reyeros, No. 06-1485, 06-1486
Convictions and sentence for conspiracy to import cocaine are affirmed where: 1) there was sufficient evidence that defendant knew the specific object of the conspiracy; 2) documents in the possession of a foreign sovereign and never seen by the government were not subject to Brady or Jencks disclosure; 3) there was no individual or cumulative unfairness in the court's rulings on a motion to sever, evidentiary questions, or alleged prosecutorial misconduct; and 4) objections to an ex parte proceeding during sentencing were waived.
U.S. 3rd Circuit Court of Appeals, August 01, 2008
US v. Wecht, No. 07-4767
In a trial accusing a public official of misusing his office for private financial gain, an order to withhold from the public the names and addresses of prospective and trial jurors is vacated where: 1) the collateral order doctrine granted jurisdiction to hear the appeal; 2) intervenors-media companies had standing to challenge the order; 3) there is a presumptive First Amendment right to obtain the names of jurors prior to empanelment, which was not overcome here; but 4) a requirement that voir dire be conducted in open court would intrude upon the discretion of the trial court.
U.S. 5th Circuit Court of Appeals, July 28, 2008
US v. Ramos, No. 06-51489
Convictions of Border Patrol agents for assault, unlawful use of firearms, and tampering with an official proceeding, all resulting from their shooting of an unarmed illegal immigrant attempting to flee into Mexico, are confirmed in part and reversed in part where: 1) the exclusion of evidence relating to the marijuana being transported by the victim at the time of the shooting and his prior involvement in drug trafficking did not deny defendants their right to cross-examination or to a complete defense; 2) defendants were not denied due process for lack of notice that the firearms statute could be applied to police officers while performing law enforcement duties; 3) the indictment counts for the firearms offenses were not flawed; 4) defendants were properly convicted of substantive crimes, not for merely violating Border Patrol policies; 5) jury instructions were proper; 6) the evidence was sufficient to support the jury verdict; and 7) there was no obstruction of justice ! because the Border Patrol investigation was not an "official proceeding" within the meaning of the tampering statute. .
U.S. 5th Circuit Court of Appeals, July 28, 2008
Mahler v. Kaylo, No. 07-30024
Denial of a habeas corpus petition alleging that state prosecutors had committed Brady violations is reversed where the prosecution had withheld material impeachment evidence during defendant's manslaughter trial.
U.S. 5th Circuit Court of Appeals, July 28, 2008
US v. $92,300 in US Currency, No. 06-51033
Summary judgment ordering the forfeiture of currency allegedly found on claimant and in his vehicle is reversed where: 1) the government's evidence supporting its motion consisted of an affidavit containing hearsay evidence; and 2) legislative changes increasing the government's burden in civil forfeiture cases to a preponderance-of-the-evidence standard also required that hearsay no longer be admissible in forfeiture proceedings.
U.S. 5th Circuit Court of Appeals, July 28, 2008
US v. Conner, No. 06-50218
Conviction for conspiracy to commit access-device fraud and mail fraud is affirmed and the sentence reversed and remanded where: 1) there was sufficient evidence that defendant knew of and willingly participated in the conspiracy; 2) jury instructions on "deliberate ignorance" were proper; 3) expert testimony was properly admitted; but 4) the number of victims of the fraud was improperly calculated in enhancing defendant's sentence.
U.S. 5th Circuit Court of Appeals, July 28, 2008
Richardson v. Quarterman, No. 06-10872
Denial of a habeas corpus petition alleging that a trial judge was required to recuse himself is affirmed where the state appellate court's decision denying a new trial was not contrary to, and did not involve an unreasonable application of, clearly established federal law, and therefore did not meet the structural error test requiring automatic reversal..
U.S. 5th Circuit Court of Appeals, July 29, 2008
Pondexter v. Quarterman, No. 06-70048
Denial of a habeas corpus petition in a capital murder case is affirmed where: 1) several ineffective assistance of counsel claims failed for lack of evidence of either deficient counsel or of prejudice to defendant; 2) a Brady claim failed because the evidence alleged to have been withheld consisted of defendant's own statements; and 3) the government's use of inconsistent theories in the separate trials of co-defendants did not violate due process.
U.S. 5th Circuit Court of Appeals, July 30, 2008
US v. Baker, No. 06-40757
Conviction for possessing, receiving, and distributing child pornography is affirmed in part and reversed in part, and the sentence vacated and remanded, where: 1) a pretrial motion to suppress evidence was properly denied; but 2) two government exhibits that were the basis for the distribution conviction were improperly admitted as lacking respectively a proper foundation and proper authentication.
U.S. 5th Circuit Court of Appeals, July 30, 2008
US v. Valle, No. 07-50869
Conviction of an Immigration and Customs Enforcement agent for bribery and extortion is affirmed where: 1) an official may be convicted under the federal bribery statute if he has corruptly entered into a quid pro quo, knowing that the purpose behind the payment that he has received, or agreed to receive, is to induce or influence him in an official act, even if he has no intention of actually fulfilling his end of the bargain; and 2) a decision, when issuing a supplemental instruction, not to remind the jury of the burden and quantum of proof and presumption of innocence did not result in a prejudicial unbalanced charge, nor did it shift the burden of proof to defendant.
U.S. 6th Circuit Court of Appeals, July 31, 2008
US v. Teh, No. 06-2371
A conviction for "fraudulently or knowingly import[ing]... merchandise contrary to law" is affirmed over claims that: 1) the indictment did not give proper notice of the elements of the charged offense; 2) the section under which he was charged, 18 U.S.C. section 545, cannot be used to charge importation contrary to the copyright laws; and 3) the evidence before the district court was insufficient to prove a violation of section 545.
U.S. 6th Circuit Court of Appeals, August 01, 2008
US v. Driver, No. 04-4470, 04-4471
Defendant's convictions for various federal offenses, including Racketeer Influenced and Corrupt Organizations Act (RICO), drug trafficking, and firearms offenses are affirmed in part, but reversed in part where: 1) the evidence was not sufficient to convict him of the substantive RICO and RICO conspiracy offenses; but 2) his other contentions lacked merit. Defendant's sentence is vacated and remanded for resentencing.
U.S. 6th Circuit Court of Appeals, August 01, 2008
US v. Fowler, No. 04-4472, 04-4473
Defendant's convictions for various federal offenses, including Racketeer Influenced and Corrupt Organizations Act (RICO), drug trafficking, and firearms offenses are affirmed over meritless claims of error, but his sentence is vacated where the district court erroneously sentenced him to a consecutive 10-year sentence under 18 U.S.C. section 924(c) when he was convicted of violating section 924(o) and not section 924(c).
U.S. 6th Circuit Court of Appeals, August 01, 2008
US v. Lawson, No. 04-4480
A conviction for various offenses, including Racketeer Influenced and Corrupt Organizations Act (RICO) and drug trafficking is affirmed over meritless claims that: 1) defendant's right to an impartial jury was violated by the empaneling of an anonymous jury, as well as the district court's reading of the indictment to prospective jurors and pre-trial publicity furthered by the government; 2) the district court reversibly erred by admitting evidence that his nickname was "Psycho" and admitting evidence of a murder; 3) his convictions were not supported by sufficient evidence; and 4) the district court erroneously sentenced him under a mandatory Guidelines regime.
U.S. 6th Circuit Court of Appeals, August 01, 2008
US v. Wheeler, No. 05-3140
In part of a consolidated appeal involving thirteen defendants who were members of the Outlaw Motorcycle Club, defendant's convictions and sentences for Racketeer Influenced and Corrupt Organizations Act (RICO) and drug-related offenses are reversed in part where his indictment for substantive RICO and RICO conspiracy offenses violated the Double Jeopardy Clause because of an earlier prosecution.
U.S. 7th Circuit Court of Appeals, July 28, 2008
US v. Arceo, No. 07-3296
Conviction and sentence for conspiracy to possess and distribute drugs are affirmed where: 1) a six-year delay following defendant's initial arrest did not deprive him of his right to a speedy trial where defendant had caused most of the delay by fleeing to avoid arrest and prosecution; 2) an obstruction of justice enhancement to defendant's sentence was proper; and 3) a within-Guidelines sentence reasonably took into account defendant's cooperation with the government.
U.S. 7th Circuit Court of Appeals, July 28, 2008
US v. Grogg, No. 07-3908
Conviction on a firearms charge is affirmed where a search of defendant's car at an airport was based on reasonable suspicion, and evidence seized was therefore admissible.
U.S. 7th Circuit Court of Appeals, July 29, 2008
US v. Webber, No. 07-2117
Conviction for making false statements to obtain federal employees' compensation benefits is affirmed, and the sentence is affirmed in part and reversed and remanded in part, where: 1) the failure of the indictment to allege that the amount of loss was in excess of one thousand dollars and the omission of an instruction requiring a jury finding on the amount of loss were harmless; 2) the evidence was sufficient for a jury to find that defendant acted willfully; 3) a jury instruction on willfullness was proper; but 4) an order to pay restitution in excess of the government's losses constituted an illegal sentence. .
U.S. 7th Circuit Court of Appeals, July 29, 2008
US v. Billups, No. 07-2037
Enhanced sentence imposed upon a "career offender" based in part upon a prior state conviction for false imprisonment is affirmed where, in the ordinary case, the Wisconsin false imprisonment offense involves purposeful, aggressive conduct that presents a serious potential risk of physical injury to another, and was therefore properly classified under the Sentencing Guidelines as a crime of violence.
U.S. 7th Circuit Court of Appeals, July 30, 2008
Stallings v. US, No. 06-3914
Denial of a habeas corpus petition based on claims of ineffective assistance of counsel is vacated and remanded where: 1) appellate counsel's failure to raise appropriate claims regarding sentencing constituted ineffective assistance, but 2) a remand was necessary to determine whether petitioner was prejudiced by this failure.
U.S. 7th Circuit Court of Appeals, July 30, 2008
Parrott v. US, No. 06-1489
In an inmate's suit under the Federal Tort Claims Act (FTCA) alleging that prison officials failed to protect him from being attacked by another inmate and subsequently negligently handled his personal property during a transfer to another prison, summary judgment for the government is affirmed in part and reversed in part where: 1) the mishandling-of-property claim was barred by an exception in the FTCA applying to detention of goods by law enforcement officers, and the officials' loss of plaintiff's property was properly classified as such a detention; but 2) plaintiff was denied adequate discovery on his failure-to-protect claim where the district court relied on rules of admissibility and generalized concerns about privacy and confidentiality, rather than discoverability, in denying discovery motions.
U.S. 7th Circuit Court of Appeals, July 31, 2008
US v. Gladish, No. 07-2718
Conviction under 18 U.S.C. section 2422(b) for attempting to induce a minor to engage in sexual activity is reversed where merely transmitting explicit sexual proposals over the internet to a would-be victim did not constitute the substantial step toward completion of a crime required for an attempt conviction.
U.S. 7th Circuit Court of Appeals, July 31, 2008
US v. Pira, No. 06-4316
Sentence for fraud and counterfeiting is affirmed where: 1) a loss calculation including relevant but uncharged conduct was properly calculated; 2) a two-level sentence enhancement for acting in a managerial or supervisory role was correctly applied; and 3) the sentencing court correctly considered the sentencing factors enumerated in 18 U.S.C. section 3553(a).
U.S. 8th Circuit Court of Appeals, July 28, 2008
US v. Rhone, No. 07-1855
A sentence for unlawful transfer of an unregistered sawed-off rifle and unlawful possession of a firearm by an unlawful user of controlled substances is vacated as to a requirement that, as a special condition of his supervised release, defendant register as a sex offender under the Sex Offender Registration and Notification Act based on a prior juvenile delinquency adjudication for assault with intent to commit sexual abuse.
U.S. 8th Circuit Court of Appeals, July 28, 2008
US v. McFarlin, No. 07-1957
A sentence of three years probation given to a defendant who pleaded guilty to conspiracy to distribute cocaine base is affirmed over the government's challenge where, on the unique facts of the case, the sentence was not unreasonable.
U.S. 8th Circuit Court of Appeals, July 28, 2008
US v. Farish, No. 07-2402
A conviction for arson and making false statements is affirmed over claims that the district court erred by: 1) allowing the Government to present the domestic violence evidence; and 2) by giving improper jury instructions that constructively amended the indictment. However, a portion of the restitution award is vacated and remanded for imposition of a corrected sentence where it was not possible to determine whether the jury convicted defendant of conspiring to commit arson or of aiding and abetting the arson, and thus the restitution award should have been limited to the damage to one home.
U.S. 8th Circuit Court of Appeals, July 28, 2008
US v. Paton, No. 07-3207
A conviction and life sentence for production of child pornography is affirmed over claims that: 1) the district court erred in denying a motion to suppress images of child pornography seized from his home during the execution of a search warrant; and 2) the sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment.
U.S. 8th Circuit Court of Appeals, July 28, 2008
US v. Williams, No. 07-3251
A conviction and sentence for drug-related offenses is affirmed over claims of error regarding: 1) a denial of a motion to suppress; 2) admission of evidence of a prior conviction; 3) a failure to determine that other prior bad acts evidence would not be admitted in a future trial; 4) denial of motion for acquittal on a conspiracy charge based upon insufficiency of the evidence; and 5) whether the life sentence was disproportionate to the crime.
U.S. 8th Circuit Court of Appeals, July 28, 2008
US v. Dembry, No. 07-3578
A conviction and 265-month sentence for being a felon in possession of ammunition is affirmed where: 1) there was no clear error in the district court's determination that there was probable cause to arrest and search defendant or in its denial of his motion to suppress; and 2) the sentence imposed was reasonable.
U.S. 8th Circuit Court of Appeals, July 29, 2008
Smulls v. Roper, No. 05-2456
Denial of habeas relief in a death penalty case is affirmed where: 1) state courts' Batson ruling was not contrary to and did not involve an unreasonable application of clearly established Supreme Court precedent, nor was it based on an unreasonable determination of the facts in light of the evidence presented to the state courts; and 2) the original panel's opinion rejecting meritless Batson-related ineffective assistance of counsel claims is reinstated. (En banc opinion)
U.S. 8th Circuit Court of Appeals, July 29, 2008
US v. Hughes, No. 07-3534
A conviction for purchasing furs in South Dakota without a non-resident fur dealer's license is affirmed where the district court did not err in refusing to admit certain hearsay evidence defendant sought to introduce as the proposed testimony was not admissible either as a statement against interest or pursuant to the residual exception to the hearsay rule.
U.S. 8th Circuit Court of Appeals, July 30, 2008
US v. Johnson, No. 07-2641
Convictions for drug- and firearm-related offenses are affirmed over claims that the district court erred by admitting irrelevant, prejudicial, and hearsay evidence against him and by continuing his trial.
U.S. 8th Circuit Court of Appeals, July 30, 2008
US v. Jones, No. 07-2918
In a prosecution for bank robbery, denial of defendant's motions to suppress two eyewitness identifications and evidence seized as a result of his warrantless arrest is affirmed where: 1) defendant's warrantless arrest had sufficient support, making evidence obtained in a search incident to his arrest admissible; and 2) under the totality of the circumstances, there was very little likelihood of misidentification by bank tellers.
U.S. 8th Circuit Court of Appeals, July 30, 2008
US v. Smith, No. 07-3592
A sentence for being a felon and an unlawful user of methamphetamine in possession of firearms and ammunition, and knowingly and intentionally possessing methamphetamine, is reversed and remanded where: 1) the circuit court rejects a conclusion that the mere presence of drug residue, i.e., a de minimis amount of drugs, and firearms alone is sufficient to prove the "in connection with" requirement of U.S.S.G. section 2K2.1(b)(6) when the "felony offense" is drug possession; 2) whether a firearm "facilitated, or had the potential of facilitating" a felony offense of drug possession must be determined based on the facts of each individual case; and 3) in this case, the record did not support such a finding.
U.S. 8th Circuit Court of Appeals, July 31, 2008
US v. Blaylock, No. 07-2608
A conviction for possessing a firearm and ammunition after being convicted of a felony and of distributing crack cocaine is affirmed over claims of error regarding: 1) a denial of a motion to suppress evidence obtained during a warrantless search of a car; 2) denial of a motion to suppress evidence obtained pursuant to the search warrant issued for an address; 3) the sufficiency of the superseding indictment; and 4) the admission of testimony and photographic evidence related to items destroyed prior to trial. .
U.S. 8th Circuit Court of Appeals, July 31, 2008
US v. May, No. 07-3515
Denial of defendant's motion to dismiss an indictment charging him with failure to register as a sex offender is affirmed where: 1) contrary to defendant's claim, the Sex Offender Registration and Notification Act (SORNA) applies to him; 2) prosecuting defendant under SORNA is not retrospective and does not violate the ex post facto clause; 3) he lacked standing to raise a challenge regarding the non-delegation doctrine; 4) defendant's due process rights were not violated; and 5) SORNA does not violate the commerce clause.
U.S. 8th Circuit Court of Appeals, July 31, 2008
US v. Hayes, No. 07-3516
A sentence for receipt of one or more firearms while under indictment is affirmed over claims that: 1) the district court failed to adequately consider the 18 U.S.C. section 3553(a) factors; and 2) the district court failed to recognize its authority to order defendant's sentence to commence immediately upon sentencing and to run concurrent with subsequently imposed state sentences.
U.S. 8th Circuit Court of Appeals, August 01, 2008
US v. Defoor, No. 07-3789
A sentence imposed after the district court found defendant violated the terms of his supervised release is affirmed where: 1) the district court did not exceed its statutory authority in sentencing him; and 2) the sentence imposed was not unreasonable.
U.S. 9th Circuit Court of Appeals, July 28, 2008
Casas-Castrillon v. Dep't of Homeland Sec., No. 07-56261
In the context of the detention of an alien who is a legal permanent resident of the U.S., the circuit court rules that a prolonged detention must be accompanied by appropriate procedural safeguards, including a hearing to establish whether releasing the alien would pose a danger to the community or a flight risk.
U.S. 9th Circuit Court of Appeals, July 28, 2008
Moore v. Czerniak, No. 04-15713
Denial of a petition for habeas relief from a conviction for felony murder is reversed where: 1) a conclusion that petitioner's recorded confession to police was nonprejudicial because of his prior statements to others was contrary to clearly established Supreme Court precedent; 2) counsel's failure to move to suppress his involuntary confession fell below an objective standard of reasonableness; and 3) a state court's rejection of petitioner's constitutional claim was contrary to Supreme Court precedent, and constituted an objectively unreasonable application of Strickland.
U.S. 9th Circuit Court of Appeals, July 31, 2008
US v. Stringer, No. 06-30100
Dismissal of criminal indictments against three individual defendants charging counts of criminal securities violations, based on the government's deceitful conduct, is vacated and remanded where there was no deceit because the government fully disclosed the possibility that information received in the course of a civil investigation could be used for criminal proceedings. An order excluding evidence received from a conflicted attorney is also reversed where the government advised the attorney of the existence of a potential conflict and did not interfere with the attorney-client relationship. (Amended opinion) .
U.S. 9th Circuit Court of Appeals, August 01, 2008
US v. Ruff, No. 07-30213
A modified sentence of one day in prison and three years supervised release, with conditions, for health care fraud, embezzlement and money laundering is affirmed over the government's claims of error where the district court did not abuse its discretion and the sentence it imposed was reasonable.
U.S. 9th Circuit Court of Appeals, August 01, 2008
Mendez v. Knowles, No. 06-15153
Denial of a petition for habeas relief from petitioner's convictions for the molestation of two minor boys is affirmed where: 1) the district court did not err in excusing petitioner's late filing of a notice of appeal; and 2) a claim of instructional error failed as it was absolutely certain that the jury found beyond a reasonable doubt that petitioner was guilty of the charged offenses; and 3) the circuit court declines to expand the certificate of appealability to consider a due process claim that the trial court was required to hold an evidentiary hearing to determine his competence.
U.S. 10th Circuit Court of Appeals, July 28, 2008
US v. Caraway, No. 07-3229
A conviction for causing an explosive device to be delivered by U.S. Mail and possession of an explosive device during and in relation to a crime of violence is affirmed over challenges to the sufficiency of the evidence supporting the verdict, and to admission of evidence of: 1) testimony about a witness's prior statement; 2) a written copy of a prior statement; and 3) testimony that a bomb-construction manual had been found on his property.
U.S. 10th Circuit Court of Appeals, July 28, 2008
Bryson v. Gonzales, No. 07-6071
In a suit brought by an exonerated former inmate against a city and officials alleging that they falsely procured his original conviction and prevented him from obtaining access to DNA evidence that he believed would demonstrate his innocence, denial of a motion to dismiss one claim based on qualified immunity is reversed where the complaint failed to state a claim against defendant-former city police chief for denying plaintiff access to post-conviction DNA evidence for testing.
U.S. 10th Circuit Court of Appeals, July 28, 2008
US v. Hanson, No. 07-8067
A sentence for being an unlawful user of a controlled substance in possession of a firearm is affirmed where: 1) given the type of weapon, defendant's criminal history and addiction to methamphetamines, and the district judge's credibility determination, it was not clear error to find that defendant failed to show by a preponderance of the evidence that he had not considered using the gun for non-sporting purposes; and 2) thus, denying a "sporting exception" sentence reduction was not error.
U.S. 10th Circuit Court of Appeals, July 29, 2008
US v. Cudjoe, No. 07-6166
A sentence pursuant to a plea to drug- and firearm-related offenses is vacated and remanded for resentencing where the government materially breached the plea agreement by asking the court to sentence defendant in a manner "that will protect society from him in any and all future events", in contravention of its promise to defendant it would not advocate for a sentence in excess of 30 years.
U.S. 10th Circuit Court of Appeals, July 29, 2008
US v. Chavez, No. 07-2008
A conviction for drug related offenses is affirmed over a claim of erroneous denial of a motion to suppress where a patrolman's stop and search of defendant's vehicle was justified under the "collective knowledge" doctrine.
U.S. 10th Circuit Court of Appeals, July 30, 2008
US v. Servin-Acosta, No. 07-2228
A sentence for illegal reentry after deportation is remanded for resentencing where: 1) a minute order from a California court purportedly reflecting a conviction of second-degree robbery, together with other evidence before the district court, was sufficient to prove the conviction; but 2) the evidence did not establish that the conviction was for the crime of generic robbery, as required by U.S.S.G. section 2L1.2. .
U.S. 11th Circuit Court of Appeals, July 28, 2008
Douglas v. Yates, No. 07-10518
In an action by prisoner-plaintiff against four prison officials alleging violations of his civil rights, dismissal with prejudice of the complaint is affirmed as to three officials but reversed against the fourth official where the allegations against defendant-supervisor allowed a reasonable inference that he was informed of ongoing misconduct by his subordinates, knew that they would continue to engage in unconstitutional misconduct, and failed to stop them from doing so.
U.S. 11th Circuit Court of Appeals, July 31, 2008
Freeman v. Atty Gen., State of Florida, No. 07-11658
Denial of a petition for a writ of habeas corpus claiming that the state impermissibly chose to pursue a capital sentence not because of the severity of his crimes, but because he is white and the victims of his crime were black, is affirmed where: 1) petitioner did not demonstrate by clear and convincing evidence that the findings of a state court were unreasonable in light of the evidence presented during a post-conviction evidentiary hearing, and those findings were fatal to petitioner's constitutional claims; and 2) petitioner failed to show he was in custody in violation of the constitution or federal laws.
U.S. 11th Circuit Court of Appeals, July 31, 2008
US v. $291, 828.00 in US Currency, No. 07-14269
In an in rem civil forfeiture proceeding brought pursuant to 21 U.S.C. section 881(a)(7) against money, jewelry and electronic equipment seized from claimant's home, rulings in favor of government and an order of forfeiture are affirmed where: 1) exigent circumstances existed; and 2) evidence obtained after the search warrant was admissible.
Supreme Court of California, July 28, 2008
People v. Allen, No. S148949
A defendant in a sexually violent predator proceeding has a state and federal constitutional right to testify despite counsel's decision that he or she should not testify. the denial of the right to testify is subject to harmless error analysis under Chapman v. California, 386 U.S. 18 (1967).
Supreme Court of California, July 28, 2008
People v. Loker, No. S045060
In a death penalty case, the judgment and sentence are affirmed over claims of error regarding: 1) admission of photographic evidence; 2) instructional error; 3) allowing the prosecutor to cross-examine defense witnesses about a psychiatric report; 4) limitation of mitigating evidence; 5) a failure to issue a protective order; 6) exclusion of a toxicology report; 7) admission of evidence regarding plea negotiations on Arizona charges; 8) prosecutorial misconduct; 9) instructional error during the penalty phase; 10) juror misconduct; 11) the constitutionality of the death penalty statute; 12) the proportionality of the sentence; and 13) cumulative error.
Supreme Court of California, July 28, 2008
People v. Wilson, No. S089623
In an automatic appeal in a death penalty case, the conviction is affirmed but the penalty judgment is reversed based on the erroneous excusal, during the penalty phase deliberations, of the sole juror holding out for a life sentence.
California Appellate Districts, July 28, 2008
People v. Del Rio, No. B203270
A conviction pursuant to a no contest plea to robbery and a sentence of a term doubled under the "Three Strikes" law, based on defendant's admitted prior robbery adjudication in juvenile court, is affirmed over a claim that the use of prior juvenile adjudication to enhance defendant's sentence was unconstitutional.
California Appellate Districts, July 28, 2008
People v. Fiu, No. A112738
A conviction for second degree murder and of conspiracy to commit assault with force likely to cause great bodily injury is affirmed over claims of error regarding: 1) a failure to instruct on the theory of supervening cause; 2) whether the burden of proof was shifted to defendant on the question of withdrawal by an aider and abettor; 3) a failure to dismiss the grand jury indictment for insufficient probable cause; 4) admission and instruction on predicate felonies needed for purposes of a gang enhancement; and 5) racially discriminatory jury selection. A 10-year enhancement imposed on one count pursuant to Penal Code section 186.22(b)(1)(C) is ordered stricken.
California Appellate Districts, July 29, 2008
In re Mathew A., No. B200559
Conviction of juvenile ward of the court for first degree burglary is affirmed over claims of error that: 1)the evidence was insufficient to support the juvenile court's finding he had committed burglary; and 2) evidence did not show he intended to steal at the time he entered the victim's residence. Maximum term and confinement set by the court is stricken.
California Appellate Districts, July 30, 2008
People v. Osorio, No. G036221
Conviction and sentence for murder, arson, robbery, and burglary is affirmed over a claim of error that admission of a victim's out of court statements describing her attacker violated his right to confrontation where the trial court properly: 1) admitted the victim's statements to a paramedic and a police officer at the scene because they were nontestimonial; 2) admitted the victim's third description of the attacker as partial impeachment under Evidence Code section 1202 of her earlier descriptions; and 3) instructed the jury to consider the third description as impeachment only, and there was nothing in the record indicating the jury failed to follow that instruction.
California Appellate Districts, July 30, 2008
People v. Gonzales, No. C054743
Conviction for robbery is reversed where trial court erred in denying defendant's motion under Batson and Wheeler based on the prosecutor's exercise of peremptory challenges on Spanish-speaking jurors in violation of defendant's rights to equal protection and to a jury drawn from a representative cross-section of the community.
California Appellate Districts, July 30, 2008
People v. Windus, No. b196483.html
Conviction pursuant to defendant's plea of no contest to possession of marijuana for sale and an admission to a prior strike allegation is reversed and remanded where the court erred in denying defendant the opportunity to present a qualified patient defense under the Compassionate Use Act of 1996 (CUA).
California Appellate Districts, July 30, 2008
Regents of Univ. of California v. Superior Ct. of San Diego County, No. D051364
In an antitrust action against defendants-energy suppliers, petition for writ of mandate challenging a denial of plaintiff's motion to compel disclosure of privileged documents that defendants produced during the course of federal government investigations is denied where the threat of regulatory action and indictment posed the risk of significant costs and consequences to defendants such that they could cooperate with the DOJ's investigation without waiving the attorney-client and attorney work privileges.
California Appellate Districts, July 30, 2008
People v. Diaz, No. B203034
Conviction pursuant to defendant's guilty plea to transportation of a controlled substance is affirmed over a claim of erroneous denial of a motion to suppress evidence of an incriminating text message retrieved from his cell phone, which was searched by the arresting officer approximately 90 minutes after his arrest, where the cell phone was immediately associated with defendant's person at the time of his arrest, and was therefore properly subjected to a delayed warrantless search.
California Appellate Districts, July 30, 2008
People v. Pearson, No. B198805
Conviction for corporal injury of a cohabitant and assault with a deadly weapon, in which the trial court vacated a partial acquittal after defense called victim-witness to testify on behalf of defense, is affirmed where a defendant cannot conceal the victim-witness from the prosecution on certain counts, obtain a partial acquittal and then produce the witness to testify as a defense witness on the remaining counts while retaining the benefits of the partial acquittal.
California Appellate Districts, July 31, 2008
People v. Cuellar, No. C056855
Conviction for burglary, uttering a fictitious check, grand theft, robbery, resisting arrest, unlawfully driving or taking a vehicle, and exhibiting a deadly weapon other than a firearm, is affirmed as modified to stay the sentence on one count where: 1) there was sufficient evidence for a reasonable jury to find defendant guilty of grand theft from the person; 2) grand theft from the person of another requires that the item taken have some intrinsic value; 3) a jury could reasonably infer that a phony check had intrinsic value; 4) defendant's right to counsel was not violated by the admission of a jailhouse confession; 5) defendant forfeited a claim that an officer violated his right to counsel; 6) an ineffective assistance of counsel claim regarding a failure to object failed; 7) trial counsel was not ineffective for failing to object to hearsay testimony at trial; and 8) trial court erred in failing to stay punishment for one count under Penal Code section 654.
California Appellate Districts, July 31, 2008
People v. Phomphakdy, No. C056881
Conviction for misdemeanor possession of marijuana is reversed where: 1) the Medical Marijuana Program Act's numerical limits are an unconstitutional amendment to the Compassionate Use Act; and 2) application of the Medical Marijuana Program Act here was not harmless beyond a reasonable doubt.
California Appellate Districts, July 31, 2008
People v. Weeks, No. B199849
Conviction for first degree burglary is affirmed over claims of error that court violated his right to self-representation when, at a pretrial proceeding, it re-appointed the public defender to represent him over defendant's stated wish to remain in pro per.
California Appellate Districts, July 31, 2008
People v. Manning, No. E042230
Conviction for battery on an institutionalized victim is affirmed over claims the the trial court erred in: 1) admitting evidence of defendant's prior sexual offenses; 2) excluding expert testimony on the meaning of a People v. West, 3 Cal.3d 595 (1970), plea; and 3) failing to give a limiting instruction as to the victim's fresh complaint.
