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May 11-15, 2009.
U.S. 1st Circuit Court of Appeals, May 11, 2009 Pina v. Maloney , No. 07-1267
Denial of petition for habeas relief is affirmed where although plaintiff did not procedurally default his ineffective assistance of counsel claim, the claim still fails on the merits as counsel’s decision to pursue a defense of misidentification rather than an alibi defense was a reasonable, tactical decision. ..
U.S. 1st Circuit Court of Appeals, May 12, 2009 US v. Del Valle , No. 08-1234
District court’s denial of defendant’s motion for a new trial is affirmed where: 1) the defendant did not meet his burden of proving that the newly discovered evidence met the requirements for warranting a new trial; and 2) the court properly rejected defendant’s claim that the government violated Brady by failing to disclose evidence, as defendant cannot show a reasonable probability that this evidence would have changed the outcome of the trial.
U.S. 1st Circuit Court of Appeals, May 15, 2009 US v. Melendez-Rivas, No. 07-1962 Conviction for conspiracy and aiding and abetting a motor vehicle hijacking with intent to cause death is vacated and remanded where: 1) the district court properly denied defendant’s motion for aquittal as the evidence was sufficient to support his conviction; and 2) the district court’s intervention in questioning a defense witness went beyond the appropriate limits and elicited inadmissible, prejudicial testimony that interfered with defendant’s fair trial rights
U.S. 2nd Circuit Court of Appeals, May 13, 2009 Brisco v. Ercole , No. 05-4339 Grant of petition for habeas relief is reversed where: 1) plaintiff failed to establish that the state court’s decision was an unreasonable application of clearly established federal law, as the challenged showup procedure was not unnecessarily suggestive; and 2) the showup identification was independently reliable. .
U.S. 2nd Circuit Court of Appeals, May 14, 2009 US v. Tureseo, No. 07-2933 Conviction and sentence for reentering the U.S. after deportation, making a false claim of U.S. citizenship, and aggravated identity theft is affirmed in part and vacated in part where: 1) the district court erred when it instructed the jury in defendant’s absence, but the error did not cause prejudice and was harmless beyond a reasonable doubt; but 2) the court made a constitutional error that was not harmless beyond a reasonable doubt when it omitted an essential element of the offense in its jury instruction on the aggravated identity theft charge
U.S. 3rd Circuit Court of Appeals, May 11, 2009 US v. Hammer, No. 06-9000 Appeal of district court order vacating death penalty sentence and granting resentencing is dismissed where the present court does not have jurisdiction over the government’s appeal of the order resentencing defendant, as there is no final, appealable order until the resentencing has actually occurred. Defendant’s appeal of district court’s denial of a new guilt phase is dismissed for lack of jurisdiction, as the order denying defendant relief is not final until he is resentenced.
U.S. 4th Circuit Court of Appeals, May 11, 2009 Wolfe v. Johnson, No. 08-8 In a capital habeas matter, the denial of Petitioner’s habeas petition is affirmed in part, where the state supreme court could have reasonably concluded that an autopsy photograph shown to the jury did not influence its deliberations, but reversed in part, where the District Court failed to address Petitioner’s claim of actual innocence.
U.S. 4th Circuit Court of Appeals, May 15, 2009 US v. Jenkins, No. 08-4588 Defendant’s firearm possession sentence is affirmed, where the District Court properly enhanced Defendant’s sentence under U.S.S.G. section 2K2.1(b)(6), because Defendant’s possession of the gun was “in connection with” his possession of cocaine base, as he used the gun to protect himself in the course of selling the drugs.
U.S. 5th Circuit Court of Appeals, May 12, 2009 US v. Setser, No. 07-10199 Defendants’ wire and mail fraud convictions are affirmed, where: 1) the Fourth Amendment permitted a warrantless search by a receiver appointed for Defendants’ business; and 2) in any event Defendants failed to show what improperly acquired evidence was introduced by the government at trial.
U.S. 5th Circuit Court of Appeals, May 14, 2009 US v. Harrimon, No. 08-10690 In the government’s appeal of Defendant’s firearm possession sentence, the sentence is vacated, where the District Court erred by holding that a violation of Tex. Penal Code section 38.04(b)(1), evading arrest or detention by use of a vehicle, is not a “violent felony” under the Armed Career Criminal Act.
U.S. 5th Circuit Court of Appeals, May 14, 2009 Singh v. Holder, No. 08-20065 In an action challenging the rejection of Plaintiff’s application for naturalization, summary judgment for Defendant is affirmed where: 1) Plaintiff could not collaterally attack his prior state conviction in the naturalization proceeding; and 2) the date of Plaintiff’s conviction of that offense was the date on which he was sentenced.
U.S. 6th Circuit Court of Appeals, May 12, 2009 Irick v. Bell, No. 01-5638 In a capital habeas matter, the denial of Petitioner’s habeas petition is affirmed, where: 1) the state court of appeals was not unreasonable in holding that the prosecution’s failure to provide Petitioner with a witness statement was not prejudicial; and 2) the prosecutor’s reference to general deterrence was not contrary to clearly established law.
U.S. 6th Circuit Court of Appeals, May 13, 2009 US v. Sobh, No. 07-2318 Defendant’s bank fraud conviction is affirmed where the District Court properly denied Defendant’s motion to dismiss the indictment for violation of the Speedy Trial Act, because the rule that excludable delay of one codefendant is excludable delay of all codefendants applies equally to earlier and later arraigned codefendants….
U.S. 6th Circuit Court of Appeals, May 14, 2009 US v. Berry, No. 08-1048 Defendant’s drug conviction and sentence are affirmed, where: 1) Defendant’s status as a drug dealer plus observation of drug activity near his home were sufficient to establish probable cause to search Defendant’s home; and 2) the District Court sufficiently addressed Defendant’s arguments concerning his sentence.
U.S. 6th Circuit Court of Appeals, May 14, 2009 US v. Barahona-Montenegro, No. 08-1345 Defendant’s firearm possession sentence is vacated, where the District Court’s sentence was procedurally unreasonable because it failed to calculate the applicable Guidelines range and did not explain the chosen sentence, and its subsequent written statement did not clarify its decision.
U.S. 7th Circuit Court of Appeals, May 11, 2009 Gonzales v. Mize , No. 08-1875 District court’s denial of plaintiff’s petition for habeas relief is affirmed where: 1) district court properly held that plaintiff procedurally defaulted his ineffective assistance of counsel claim based on counsel’s dual representation of him and a witness when plaintiff failed to make this argument in his petition to transfer to the Indiana Supreme Court; and 2) the court did not err in finding that the Indiana Court of Appeals was reasonable in determining that under Cuyler, no actual conflict of interest arose out of counsel’s dual representation of plaintiff and his co-party in the matter.
U.S. 7th Circuit Court of Appeals, May 13, 2009 US v. Berry , No. 07-3243 Conviction for wire fraud is affirmed where the judge did not abuse his discretion in allowing defendant to represent himself as the Constitution does allow a judge to block a request to self-represent, but does not require it, and defendant did not have a mental illness and was found competent to represent himself. .
U.S. 7th Circuit Court of Appeals, May 13, 2009 Guzman v. City of Chicago , No. 08-2172 In an action alleging unlawful search and false arrest brought under 42 U.S.C. sec. 1983, district court grant of summary judgment for defendant is affirmed in part and reversed and remanded in part where: 1) the search warrant was properly issued and supported by probable cause; 2) the execution of the search of the apartment was illegal and violated plaintiff’s Fourth Amendment rights; and 3) since the execution of the search of the apartment was illegal, defendant’s false arrest claim is reinstated.
U.S. 7th Circuit Court of Appeals, May 14, 2009 US v. Sanner, No. 07-3738 Sentence for bank robbery is affirmed where: 1) the court did not err in its conclusion that an upward adjustment of defendant’s sentence beyond the sentencing guidelines range was necessary under the circumstances of the case; and 2) the court did not err in applying a one-level increase to the offense level after adjusting the loss from the robbery for the value of the stolen car, as the sentence was based on U.S.S.G. sec. 3553(a) factors and the increase had little or no effect on the sentence. Defendant Ortiz’s sentence is affirmed where the court’s increase of defendant’s sentence was justified either by his prior convictions under U.S.S.G. sec. 2L1.2 or pursuant to the U.S.S.G. sec. 3553(a) factors.
U.S. 7th Circuit Court of Appeals, May 15, 2009 US v. Strahan , No. 07-1494 Conviction and sentence for drug crimes is affirmed where: 1) the district court properly declined to give defendant’s requested jury instruction on a public authority defense as the evidence was insufficient to support the defense; 2) the evidence was sufficient to support his conviction; and 3) defendant’s mandatory-minimum sentence based on judge-found facts regarding prior felony drug convictions did not violate the Sixth Amendment, and and a life term based on recidivism does not constitute cruel and unusual punishment in violation of the Eighth Amendment. ..
U.S. 7th Circuit Court of Appeals, May 15, 2009 Smith v. Grams , No. 07-2302 District court’s dismissal of plaintiff’s petition for habeas relief is reversed and remanded where the Wisconsin Court of Appeals made an unreasonable application of clearly established federal law and an unreasonable determination of facts in determining that plaintiff knowingly and voluntarily waived his Sixth Amendment right to assistance of counsel. ..
U.S. 7th Circuit Court of Appeals, May 15, 2009 US v. Mannava, No. 07-3748 Conviction for coercing a minor to engage in prostitution or any sexual activity is reversed where: 1) the court erred in allowing the prosecutor to try to inflame the jury and repeatedy accuse defendant of intending to rape the minor; and 2) the court erred in allowing the jury to convict without a unanimous determination that the defendant violated one or both of the Indiana statutes. .
U.S. 7th Circuit Court of Appeals, May 15, 2009 US v. Loera , No. 08-2324 Conviction and sentence for drug crimes is affirmed where: 1) the district court properly dismissed defendant’s motion to suppress evidence as the traffic stop leading to the search was constitutionally reasonable; 2) court’s dismissal without prejudice of defendant’s original indictment under the Speedy Trial Act was appropriate under the circumstances; and 3) the delay between defendant’s second indictment and trial was not a violation of his Sixth Amendment right to a speedy trial, and any Sixth Amendment claim regarding the delay associated with his first indictment should have been brought then.
U.S. 8th Circuit Court of Appeals, May 11, 2009 US v. James, No. 08-2356 Conviction and sentence for drug crimes is affirmed where: 1) district court did not abuse its discretion in admitting evidence of defendant’s prior drug conviction, and evidence that defendant brandished a firearm and threatened the arresting officers; and 2) district court did not err in imposing a two-level enhancement for obstruction of justice based on the determination that defendant perjured himself at trial, and the sentence was not unreasonable and did not violate the Eighth Amendment.
U.S. 8th Circuit Court of Appeals, May 11, 2009 US v. Neal , No. 08-2998 Conviction for firearms possession is affirmed where the district court did not err in denying defendant’s motion to dismiss under the Interstate Agreement on Detainers Act as the government did not violate the 180-day period for being brought to trial set out in the Act since the time for bringing defendant was tolled by his state court proceedings. .
U.S. 8th Circuit Court of Appeals, May 14, 2009 US v. Vanderpool, No. 08-2542 Sentence for drug crimes is affirmed where the district court did not err in applying a two-level enhancement under U.S.S.G. sec. 2D1.1(b)(3) for distributing drugs in a detention facility.
U.S. 8th Circuit Court of Appeals, May 14, 2009 US v. Wilson , No. 08-2579 Conviction for transporting a minor across state lines for prostitution, production of child pornography, and firearms possession is affirmed where: 1) the challenged evidence was properly seized under the plain view doctrine, as the officers had information that the items had been used to produce child pornography and the incriminating nature of the items was immediately apparent; 2) defendant’s challenge to the jury instructions for not stating that he was reasonably mistaken as to the victim’s age is rejected as the First Amendment does not require a reasonable-mistake-of-age defense to charges of producing child pornography; 3) the court did not abuse its discretion in refusing to declare a mistrial as defendant’s generalized claim of jury bias is insufficient to establish his claim; 4) the guilty verdict rendered any possible error in the grand jury indictment process harmless; and 5) the evidence was sufficient to support his convictions.
U.S. 9th Circuit Court of Appeals, May 12, 2009 US v. Alderman, No. 07-30186 Defendant’s conviction for possession of body armor by a felon is affirmed, where Congress has the authority under the Commerce Clause to criminalize such possession when the armor has been sold or offered for sale in interstate commerce.
U.S. 9th Circuit Court of Appeals, May 15, 2009 Byrd v. Lewis, No. 06-15977 In an auto theft matter, the denial of Petitioner’s habeas petition is affirmed, where the state court of appeals’ application of harmless error review to the trial court’s failure to give a mistake of fact instruction regarding Petitioner’s alleged belief that he had permission to use the car was not clearly unreasonable. ..
U.S. 9th Circuit Court of Appeals, May 15, 2009 US v. Nguyen, No. 07-30197 Defendant’s convictions on charges relating to transportation of stolen property are affirmed in part, where the District Court’s failure to instruct the jury regarding materiality on the misbranding of medical devices charge, but reversed in part, where the government introduced prejudicial hearsay accomplice testimony at trial.
U.S. 9th Circuit Court of Appeals, May 15, 2009 US v. Raygosa-Esparza, No. 07-50573 Defendant’s drug sentence is affirmed, where: 1) the District Court was statutorily required to impose consecutive sentences, as required by 18 U.S.C. section 1791(a)(2) when the offense at issue involves controlled substances, and 2) the sentence did not exceed the applicable statutory maximum.
U.S. 11th Circuit Court of Appeals, May 11, 2009 US v. Bautista-Silva, No. 08-13803 In a prosecution for transporting illegal aliens, the grant of Defendant’s motion to suppress evidence obtained from a traffic stop is reversed, where the border patrol agent’s decision to stop Defendant’s car was based on specific and articulable facts that, viewed in light of the agent’s extensive experience, created a reasonable suspicion.
U.S. D.C. Circuit Court of Appeals, May 15, 2009 US v. Ventura, No. 07-3099 Defendant’s sentence for reentering the U.S. following removal is vacated, where Defendant’s prior state conviction was not a “crime of violence,” as the District Court found, but was instead an “aggravated felony,” which triggers a less severe Sentencing Guidelines range.
New York Court of Appeals, May 12, 2009 People v. Weaver, No. 53 Defendant’s burglary conviction is reversed, where the police violated Article I, Section 12 of the New York Constitution by conducting a warrantless surveillance of Defendant’s vehicle for several months, because Defendant had a reasonable expectation of privacy in the whereabouts of his vehicle.
California Appellate Districts, May 12, 2009 People v. Zambia, No. B207812 Conviction for pandering is affirmed where there was substantial evidence of inducement, persuasion, or encouragement for the police officer to engage in prostitution on defendant’s behalf.
California Appellate Districts, May 12, 2009 People v. Richard G., No. B209512 Juvenile court order denying defendant’s motion to suppress is affirmed where: 1) the court properly found that a police officer did not violate defendant’s Fourth Amendment rights as the officer had a reasonable suspicion that defendant violated the law; 2) defendant’s detention was supported by evidence that created a reasonable suspicion of criminal wrongdoing, and thus it was not necessary to require strict compliance with the Harvey-Madden rule; and 3) the exclusionary rule does not result in immunity from prosecution where the charged offense can be proven with evidence from a source independent of any Fourth Amendment violation. .
California Appellate Districts, May 12, 2009 People v. Stump, No. G040446 Sentence for driving under the influence of alcohol/drugs with a prior felony within 10 years is affirmed where the trial court properly denied defendant credit for time served in parole revocation custody as defendant has not shown that, but for having driven under the influence of alcohol, he would not have been held in custody for the period of time in question.
California Appellate Districts, May 14, 2009 People v. Chaffin, No. E046217 Conviction for child endangerment is affirmed where the court did not err in refusing to instruct the jury sua sponte on the meaning of the term “likely” in the child endangerment statute as the failure to give the jury the legal definition of the term was not prejudicial to defendant and could not have affected the verdict.
Texas Court of Criminal Appeals, May 13, 2009 Esparza v. State, No. PD-1616-07 The denial of Defendant’s post-conviction motion for DNA testing is reversed, where evidence presented at trial of the victim’s prior sexual encounter did not preclude Defendant from establishing by a preponderance of the evidence that the tests showed he was not the perpetrator.