Findlaw Case Summaries: Criminal Law and Procedure 18

May 4 -8, 2009
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U.S. Supreme Court, May 04, 2009 Flores-Figueroa v. US, No. 08-108 Defendant’s aggravated identity theft conviction is reversed where 18 U.S.C. section 1028A(a)(1) requires the government to show that a defendant knew that the means of identification at issue belonged to another person.

U.S. 1st Circuit Court of Appeals, May 04, 2009 Rice v. Hall, No. 07-2660 In conviction for murder, denial of petition for habeas relief is affirmed where plaintiff failed to show: 1) counsel’s performance was unreasonable or incompetent; and 2) any error that prejudiced him such that the outcome would likely have been different but for the error.

U.S. 1st Circuit Court of Appeals, May 05, 2009 US v. Angulo-Hern├índez, No. 07-2428 Conviction and sentence for drug crimes is affirmed where: 1) the evidence presented was sufficient to support each of the defendants’ convictions; 2) any possible error in the admission of lay testimony was harmless; 3) district court’s participation in trial did not constitute prejudicial error; 4) the defendants’ jurisdictional challenge under the Maritime Drug Law Enforcement Act was meritless; 5) the court did not abuse its discretion in denying the defendants’ multiple requests for a continuance and proceeding with the trial as scheduled; and 6) defendant’s sentence was reasonable.

U.S. 1st Circuit Court of Appeals, May 06, 2009 Gomes v. Brady , No. 08-1810
Denial of petition for habeas relief is affirmed where: 1) prosecutor’s comment on plaintiff’s decision to remain silent was improper, but did not have a substantial and injurious effect on the verdict to warrant reversal; and 2) defense counsel’s performance was not constitutionally ineffective, and any ineffectiveness that might have occurred did not prejudice the outcome of the trial.

U.S. 2nd Circuit Court of Appeals, May 05, 2009 US v. Vargas, No. 08-1542 District court judgment continuing defendant’s supervised release terms is vacated and remanded for resentencing where: 1) neither the double jeopardy clause or 18 U.S.C. sec. 3583(e)(2) prevented the district court from reimposing or extending the term of supervised release; but 2) the court did not consider the relevant factors set forth in 18 U.S.C. sec. 3553(a) before imposing the sentence as required.

U.S. 2nd Circuit Court of Appeals, May 08, 2009 US v. Ness, No. 05-440 Conviction for conspiring to commit three money laundering offenses is reversed where: 1) a reasonable jury could not find beyond a reasonable doubt that the purpose of defendant’s transportation of narcotics proceeds was to conceal the nature, location, or source of the narcotics proceeds; and 2) the government failed to prove that defendant violated 18 U.S.C. sec. 1957(a), as it did not present sufficient evidence that a financial institution was involved.

U.S. 4th Circuit Court of Appeals, May 06, 2009 Unus v. Kane, No. 07-2191 In a 42 U.S.C. section 1983 action alleging an illegal search, summary judgment for Defendant-Officers is affirmed, where Defendants’ entry into Plaintiffs’ house did not constitute an assault, and Defendants’ pointing of firearms at Plaintiffs was reasonable in light of Plaintiffs’ failure to allow Defendants entry into the house.

U.S. 4th Circuit Court of Appeals, May 07, 2009 US v. Urutyan, No. 08-4295 Defendant’s bank fraud conviction is affirmed, where Defendant claimed that the District Court violated his Sixth Amendment rights by disqualifying one of his attorneys, but there was sufficient evidence to show that counsel was being paid by other members of the alleged criminal conspiracy.

U.S. 5th Circuit Court of Appeals, May 06, 2009 US v. Garcia, No. 05-41424 Defendants’ drug convictions are affirmed where evidence of Defendants’ uncharged cocaine use was properly admitted to prove their intent and knowledge, and the District Court instructed the jury that it could only convict Defendants of the offenses charged.

U.S. 5th Circuit Court of Appeals, May 06, 2009 Club Retro LLC v. Hilton, No. 08-30512 In a 42 U.S.C. section 1983 action alleging an illegal SWAT team raid on Plaintiffs’ bar, the denial of qualified immunity to Defendant-Officers is affirmed, where the alleged search lacked a warrant, was unreasonably violent, and was not justified by state statutes permitting administrative inspections.

U.S. 5th Circuit Court of Appeals, May 06, 2009 US v. Barlow, No. 08-60556 Defendant’s conviction for attempting to persuade a person he believed to be a minor to engage in sexual activity is affirmed where, although Defendant left the place he asked to meet the victim before the victim arrived, Defendant took a substantial step toward completing the attempt by corresponding with the victim extensively.

U.S. 6th Circuit Court of Appeals, May 04, 2009 US v. Guest, No. 07-1922 Defendant’s sentence for solicitation to engage in illicit sexual conduct is affirmed, where there was no evidence in the record that the District Court based Defendant’s sentence on any aspect of appellate review that was rejected by the Supreme Court in either Gall v. U.S. or Kimbrough v. U.S.

U.S. 6th Circuit Court of Appeals, May 05, 2009 US v. Johnson, No. 08-5667 Defendant’s drug sentence is affirmed where Defendant argued that he was entitled to a reduction in his sentence based on retroactive revisions to the Sentencing Guidelines for crack cocaine offenses, but the revisions did not affect the mandatory minimum imposed by the statute under which Defendant was convicted.

U.S. 6th Circuit Court of Appeals, May 06, 2009 US v. Rodriguez-Lopez, No. 07-6045 In a drug prosecution, the District Court’s grant of Defendant’s motion to suppress evidence of calls made to Defendant is reversed, where the evidence was not hearsay because the government did not seek to prove the truth of any of the matters asserted by the callers. .

U.S. 7th Circuit Court of Appeals, May 04, 2009 Smith v. Gaetz , No. 07-2713 Denial of plaintiff’s habeas petition is affirmed where: 1) plaintiff’s ineffective assistance of appellate counsel claim is procedurally defaulted; and 2) plaintiff did not establish that his appellate counsel failed to raise an issue that was both obvious and clearly stronger than the issues counsel did raise.

U.S. 7th Circuit Court of Appeals, May 04, 2009 US v. DiSantis, No. 07-3692 In action brought against a police officer for deprivation of a suspect’s right to be free from unreasonable seizure, conviction is affirmed where: 1) district court did not err in authorizing the jury to consider defendant’s prior inconsistent statements for their truth; 2) the court’s jury instruction on bodily injury was not in error as an incorrect statement of the law, particularly because defendant failed to offer an alternative definition of bodily injury; 3) the court did not err in its jury instruction on reasonable force; and 4) the court did not err in refusing to give a missing witness instruction. .

U.S. 7th Circuit Court of Appeals, May 05, 2009 US v. Heron , No. 07-3726 Conviction for drug crimes is reversed and remanded where: 1) the district court erred when it refused to grant a continuance after defendant’s partner changed his testimony at the last minute as the changed testimony was a crucial piece of evidence the defense counsel should have had an opportunity to develop; and 2) the court correctly concluded that defendant’s statements from the May 11 interrogations were admissible.

U.S. 7th Circuit Court of Appeals, May 07, 2009 US v. Gooden , No. 08-3240 Sentence for conspiring to kidnap and using a firearm during a crime of violence is affirmed where the district court’s decision to sentence defendant outside the advisory guidelines range was reasonable, and the judge gave extensive justifications for imposing the sentence.

U.S. 7th Circuit Court of Appeals, May 08, 2009 Washington v. Smith , No. 08-4236 Denial of petition for habeas relief is affirmed where plaintiff’s claim of ineffective assistance of counsel with respect to the restitution amount does not attack a custodial aspect of plaintiff’s sentence and thus does not state a claim for relief under the habeas corpus statutes.

U.S. 8th Circuit Court of Appeals, May 04, 2009 US v. Molina, No. 08-1368 Sentence for illegally reentering the United States after being deported is affirmed where: 1) district court did not err in sentencing defendant without considering the cost of his prison sentence and the amount of dollars that might be saved by imposing a lesser sentence, and without considering that he would be deported after serving his sentence; and 2) the court did not abuse its discretion in imposing a sentence at top of advisory guidelines range.

U.S. 8th Circuit Court of Appeals, May 04, 2009 US v. Boyce, No. 08-3146 Conviction and sentence for drug crimes is affirmed where: 1) district court did not err in basing its findings about quantity and type of drugs defendant sold on the testimony of witnesses; 2) district court did not err in finding sufficient evidence that firearms were present and involved in the drug transactions, that defendant was a leader of criminal activity, and in considering new evidence of criminal history; 3) the court adequately considered the 18 U.S.C. sec. 3553(a) factors and did not give the advisory guidelines excessive weight; and 4) the sentencing was not procedurally defective based on any alleged misconduct by the government. …

U.S. 8th Circuit Court of Appeals, May 05, 2009 US v. Wagner, No. 08-2993 Sentence for drug crimes is affirmed where the district court properly concluded that a downward variance of defendant’s sentence below the amended guidelines range was not warranted where the statutory authority to reduce a defendant’s sentence is constrained by: 1) the limiting provision of 18 U.S.C. sec. 3582(c)(2); and 2) the restriction on the extent of sentence reductions established in USSG sec. 1B1.10(b)(2)(A).

U.S. 8th Circuit Court of Appeals, May 06, 2009 Martin v. Russell, No. 08-2577 In an action for deprivation of rights brought against police officers, district court judgment is reversed where no reasonable juror could have found that an order vacating the order of protection under which plaintiff was arrested had been filed by the state court, and thus the defendant officers’ actions in arresting plaintiff for violation of the order were reasonable. .

U.S. 8th Circuit Court of Appeals, May 06, 2009 US v. Vega-Iturrino, No. 08-3001 Sentence for conspiracy to commit credit card fraud and theft is reversed and remanded for resentencing where: 1) the district court did not err in applying a two-level enhancement under U.S.S.G sec. 2B1.1(b)(9)(A) for relocating a fraud scheme from another jurisdiction to avoid law enforcement; and 2) the court lacked a sufficient factual basis for imposing a vulnerable victim enhancement under U.S.S.G. sec. 3A1.1(b)(1), and thus improperly calculated defendant’s offense level and advisory Guidelines sentencing range.

U.S. 8th Circuit Court of Appeals, May 08, 2009 US v. Moore, No. 08-2539 Sentence for drug crimes is affirmed where: 1) denial of request for a downward departure under the Sentencing Guidelines is unreviewable as there is no evidence that the district court had an unconstitutional motive or erroneously believed it did not have authority to grant the departure; and 2) the court sufficiently considered the 18 U.S.C. sec. 3553(a) factors and adequately explained the chosen sentence.

U.S. 8th Circuit Court of Appeals, May 08, 2009 US v. Clark, No. 08-2778 Conviction and sentence for drug crimes is affirmed where: 1) district court did not err in denying defendant’s motion for acquittal as there was sufficient evidence to show defendant possessed 50 grams or more of a mixture containing a detectable amount of methamphetamine based on the total weight of the biphase methamphetamine solution; 2) the court did not err in using the full amount of the biphase liquid to determine her sentence; 3) the government’s cross-examination did not violate Rule 404(b) as the rule did not apply to the testimony in question; and 4) the court did not commit error in denying defendant’s motion to suppress as the warrantless entry of defendant’s home was justified by probable cause and exigent circumstances.

U.S. 8th Circuit Court of Appeals, May 08, 2009 US v. Thomas , No. 08-3118 Conviction and sentence for firearms possession is affirmed where: 1) the district court properly denied defendant’s motion for acquittal as the evidence was sufficient to support his conviction for being a felon in possession of a firearm; and 2) the court did not err in applying an enhancement under U.S.S.G. sec. 2K2.1(b)(6) for possessing the firearm in connection with another felony.

U.S. 9th Circuit Court of Appeals, May 05, 2009 King v. Ryan, No. 06-55858 In a robbery prosecution, the dismissal of Petitioner’s second habeas petition is affirmed where although the District Court erred in holding that Petitioner was required to show good cause for failure to exhaust state court remedies, the claims in Petitioner’s second petition needed to relate back to those in his first to be timely.

U.S. 9th Circuit Court of Appeals, May 06, 2009 US v. Iribe, No. 07-50432 Defendant’s kidnapping conviction is affirmed, where Defendant argued that the U.S. was prosecuting him for an offense other than the one for which he was extradited from Mexico in violation of the doctrine of specialty, but in fact Mexico agreed to Defendant’s extradition for the crimes at issue. .

U.S. 9th Circuit Court of Appeals, May 06, 2009 Millender v. Cty. of L.A., No. 07-55518 In a 42 U.S.C. section 1983 action based on an allegedly illegal search, the District Court’s denial of Defendant-Officers’ qualified immunity is reversed, where Defendants reasonably relied on a warrant approved by a deputy district attorney and a judge.

U.S. 9th Circuit Court of Appeals, May 07, 2009 US v. Osazuwa, No. 08-50244 Defendant’s conviction for assaulting a prison guard is reversed, where the District Court erred in admitting evidence of Defendant’s unrelated bank fraud conviction, where the evidence was not admissible under Fed. R. Evid. 608, because that rule does not permit the admission of the underlying facts of a prior conviction.

U.S. 10th Circuit Court of Appeals, May 04, 2009 Poolaw v. Marcantel, No. 07-2254 In a 42 U.S.C. section 1983 action alleging an illegal search, the denial of Defendant-Officers’ qualified immunity is affirmed where: 1) Defendants’ search was ordered based on little more than Plaintiffs’ status as a suspect’s in-laws; and 2) a familial relationship does not justify invading an individual’s reasonable expectation of privacy.

U.S. 10th Circuit Court of Appeals, May 05, 2009 US v. James, No. 08-1292 The restitution order imposed as part of Defendant’s wire fraud sentence is affirmed in part and reversed in part where: 1) the foreclosure price of the property at issue was a fair reflection of the victim’s loss; but 2) the amount ordered exceeded the amount of one of the loans at issue.

U.S. 10th Circuit Court of Appeals, May 05, 2009 US v. Cornejo-Sandoval, No. 08-2070 Defendant’s drug conviction is affirmed where: 1) the District Court did not err in declining to order a second competency hearing for Defendant because; and 2) although Defendant was a difficult client and highly suspicious of his lawyers, there was no indication that he was unable to understand the proceedings.

U.S. 10th Circuit Court of Appeals, May 05, 2009 US v. Landers, No. 08-6105 Defendant’s extortion conviction and sentence are affirmed where: 1) the District Court did not abuse its discretion in declining to order a competency hearing as the evidence showed Defendant’s intelligence and sophistication; and 2) the District Court did not err in denying Defendant’s request for a psychological expert as Defendant did not assert an insanity defense.

U.S. 11th Circuit Court of Appeals, May 07, 2009 Clarke v. Dep’t of Corr. State of Florida, No. 08-10955 In an attempted robbery matter, the denial of Petitioner’s habeas petition is reversed, where the District Court erred by considering the delay between Petitioner’s conviction and petition for a belated direct appeal in state court to be untolled time for the purposes of the AEDPA statute of limitations.

U.S. 11th Circuit Court of Appeals, May 07, 2009 Payne v. US, No. 08-12944 In a wire fraud matter, the denial of Petitioner’s habeas petition is affirmed, where Petitioner claimed that his counsel performed ineffectively on appeal by failing to challenge Petitioner’s sentencing enhancement for abuse of trust, but it was reasonable for counsel to focus on stronger arguments on appeal.

Supreme Court of California, May 04, 2009 In re Bolden , No. S099231 Denial of petition for habeas relief is affirmed where: 1) plaintiff failed to prove that he was denied effective assistance of counsel by virtue of his attorney’s failure to ask prospective jurors about their prior acquaintance with the victim; and 2) plaintiff failed to prove that one of the jurors was biased against him, or committed misconduct by failing to disclose a prior relationship with the victim, by prejudging the issue of penalty, or by failing to deliberate on the issue of penalty.

Supreme Court of California, May 07, 2009 People v. Burgener, No. S116882 Trial court judgment sentencing defendant to death is vacated where the court erred in granting defendant’s motion to represent himself, as the record is insufficient to establish that defendant’s waiver of his Sixth Amendment right to the assistance of counsel was knowing and intelligent. The matter is remanded for reconsideration of defendant’s request to represent himself and the automatic application for modification of the penalty death verdict.

New York Court of Appeals, May 05, 2009 People v. Borrell, No. 61 Defendant’s robbery sentence is affirmed where Defendant argued that counsel performed ineffectively by declining to raise the legality of Defendant’s sentence, but Defendant failed to show the absence of strategic or other legitimate explanations for counsel’s choice.

New York Court of Appeals, May 07, 2009 People v. Boyd, No. 60 Defendant’s robbery sentence is reversed, where the trial court failed to pronounce the post-supervision release term of Defendant’s sentence, and the trial court needed to resolve the issue of whether the deficiency could be rectified by granting Defendant specific performance of the plea agreement.

California Appellate Districts, May 05, 2009 People v. Torres , No. D052887 Conviction for driving while under the influence of a drug is reversed where there was insufficient evidence to support the conviction and prove that defendant’s methamphetamine use actually impaired his driving ability on the night of his arrest.

California Appellate Districts, May 07, 2009 Doe v. California Dept. of Justice , No. D053176 Trial court order denying plaintiffs petition for an order prohibiting defendant from posting their information on the Megan’s Law Web site is affirmed where: 1) the court properly denied plaintiffs’ argument that defendant was equitably estopped from rescinding their exclusions from disclosure of personal information on the Megan’s Law Web site as plaintiffs provided no evidence they detrimentally relied on the exclusions; 2) plaintiffs’ constitutional arguments fail as the measure rescinding their exclusions does not take away fundamental vested rights without due process of law, does not constitute a forbidden ex post facto law, does not violate their liberty interests in privacy and does not violates their equal protection rights; and 3) the posting of plaintiff’s information on the Web site does not violate the penal code section under which his conviction was previously dismissed. ..

Texas Court of Criminal Appeals, May 06, 2009 Ex Parte Watson, No. PD-0294-08 Defendant’s intoxication assault conviction is affirmed, where the offense of failure to yield right of way is not a lesser included offense of intoxication assault, and thus the government did not violate the Double Jeopardy Clause due to its previous prosecution of Defendant for failure to yield the right of way.

Texas Court of Criminal Appeals, May 06, 2009 Smith v. State, No. AP-75479 Capital murder conviction is affirmed, over Defendant’s arguments that the trial court amended the indictment to charge that the two murders committed by Defendant occurred “during the same transaction,” because Defendant had notice that he was being charged with capital murder and prepared for his defense accordingly. .

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