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May 17-22, 2009.
U.S. 1st Circuit Court of Appeals, May 19, 2009 US v. Paret-Ruiz , No. 06-2709
Conviction for conspiracy to import cocaine with intent to distribute is reversed and remanded with instructions to enter a verdict of not guilty where the evidence was insufficient for a reasonable jury to conclude that defendant had an agreement to import or possess cocaine with anyone other than a government agent.
U.S. 1st Circuit Court of Appeals, May 20, 2009 US v. Pulido , No. 08-1626
Conviction and sentence on drug and firearms charges is affirmed where: 1) the district court did not commit reversible error in denying defendant’s motion to withdraw his guilty plea without conducting an evidentiary hearing, as defendant’s allegations that his plea was not voluntary and knowing were contradicted by the record; 2) the court did not abuse its discretion in denying defendant’s motion to recuse based on the court’s statement about defendant in a different case, as the evidence shows that there was no likely appearance of partiality; 3) the court did not err and fail to consider mitigating evidence related to the U.S.S.G. sec. 3553(a) factors, as the record shows the court considered all of the mitigating evidence; and 4) the court did not err in imposing the mandatory minimum sentence for the firearm count under 18 U.S.C. sec. 924(c). ..
U.S. 3rd Circuit Court of Appeals, May 20, 2009 US v. Jones, No. 07-2798 Conviction for conspiracy to commit murder, attempted murder and assault with a dangerous weapon under the Violent Crimes in Aid of Racketeering Act is affirmed where: 1) the district court did not abuse its discretion in failing to restart jury selection after six co-defendants pled guilty during voir dire, and thus did not violate his Fifth and Sixth Amendment rights; 2) the court properly rejected defendant’s motion for judgment of acquittal on his conviction for murder conspiracy, as a rational jury could have found all elements of the murder conspiracy charge beyond a reasonable doubt; 3) the court did not abuse its discretion by admitting challenged evidence at trial as the evidence did not overwhelm the jury or prejudice its judgment; and 4) defendant’s sentence was not procedurally or substantively unreasonable.
U.S. 4th Circuit Court of Appeals, May 19, 2009 US v. Crabtree, No. 08-4411 The District Court’s revocation of Defendant’s probation is reversed, where the government offered taped conversations involving Defendant at the revocation hearing and, although the government was not involved in the interception of the conversations, they were nonetheless inadmissible as evidence.
U.S. 4th Circuit Court of Appeals, May 21, 2009 McLean v. US, No. 06-7784 In an action by a prisoner against the U.S. claiming that the AEDPA statute of limitations is unconstitutional, the complaint’s dismissal is affirmed, where Plaintiff did not violate the Prison Litigation Reform Act by filing his suit because a dismissal without prejudice for failure to state a claim does not count as a “strike” under 28 U.S.C. section 1915(g), but Plaintiff’s claim nonetheless failed due to the U.S.’s immunity from suit.
U.S. 5th Circuit Court of Appeals, May 18, 2009 US v. London, No. 07-31092 Defendant’s drug and firearm convictions are affirmed, where the District Court: 1) properly denied Defendant’s motion to suppress because the factual basis of the plea colloquy supported a finding that Defendant possessed the firearm in furtherance of a drug crime; and 2) did not abuse its discretion in denying Defendant’s motion to withdraw his plea.
U.S. 5th Circuit Court of Appeals, May 18, 2009 US v. Simmons, No. 08-10775 Defendant’s sentence for assault under color of state law is vacated, where the sentence was procedurally unreasonable because: 1) the District Court erred by assuming that “extraordinary circumstances” were required to permit departure from the Guidelines; and 2) the court believed it had no alternative but to impose a life sentence. ..
U.S. 5th Circuit Court of Appeals, May 20, 2009 US v. Brigham, No. 08-10315 The revocation of Defendant’s supervised release is affirmed, where: 1) the District Court did not err by reviewing the Magistrate Judge’s determination that Defendant should be released; and 2) the order that Defendant take a polygraph test did not violate the Fifth Amendment because the evidence obtained from the test could not incriminate him.
U.S. 5th Circuit Court of Appeals, May 20, 2009 Collier v. Montgomery, No. 08-30665 In a 42 U.S.C. section 1983 action alleging an unlawful arrest, the denial of summary judgment based on qualified immunity is reversed, where: 1) Defendant-Officer had probable cause to stop Plaintiff because he was not wearing a seatbelt; and 2) because Plaintiff resisted arrest, the force Defendant used to handcuff him was reasonable.
U.S. 6th Circuit Court of Appeals, May 20, 2009 US v. Roberge, No. 06-5704 Defendant’s drug conviction is affirmed where: 1) the indictment’s statement that Defendant possessed the drugs at issue “on or about” a certain date did not require the government to prove that the crime occurred on that exact date; and 2) suppression of evidence is not a remedy for violation of the knock-and-announce rule.
U.S. 6th Circuit Court of Appeals, May 21, 2009 US v. Cox, No. 07-3886 Defendant’s drug conspiracy conviction is affirmed, where there was extensive evidence of Defendant’s agreement to collect a drug debt. Sentence is vacated, where the District Court erred by sentencing Defendant based on the drug quantity alleged in the indictment as opposed to the quantity the court determined that Defendant possessed.
U.S. 7th Circuit Court of Appeals, May 20, 2009 US v. Gooden , No. 08-3240 Sentence for conspiring to kidnap and using a firearm during a crime of violence is affirmed where defendant’s sentence was not unreasonable, as: 1) the judge gave extensive justifications for imposing the sentence; 2) the discrepancy between the sentences of defendant and his co-defendant is not a basis for challenging a sentence; and 3) the requirement that a defendant be notified of the district court’s intention to give an above-guidelines sentence does not apply to the variance from the guidelines range at issue here. .
U.S. 8th Circuit Court of Appeals, May 18, 2009 US v. Oronia-Vera, No. 08-1338 Conviction for aggravated identity theft is reversed in light of the Supreme Court’s holding in US v. Flores-Figueroa, that convictions under 18 U.S.C. sec. 1028A(a) require the Government to show that the defendant knew that the means of identification at issue belonged to another person.
U.S. 8th Circuit Court of Appeals, May 19, 2009 US v. Parish , No. 08-2794 Sentence for conspiracy to commit mail fraud and money laundering is affirmed where: 1) the district court did not err in imposing a management role enhancement to defendant Troup’s base offense level; and 2) the evidence was sufficient to support the court’s finding that the amount of loss in defendants’ mortgage fraud scheme exceeded $20 million and thus court did not err in adding twenty-two levels to the offense level based on the amount of the loss.
U.S. 8th Circuit Court of Appeals, May 19, 2009 US v. Lovelace, No. 08-2831 Sentence for being a felon in possession of ammunition is vacated and remanded for resentencing where: 1) the government breached the plea agreement by arguing for an increased offense level at sentencing, but since the agreement did not bind the court to accept the lower sentencing level the parties had bargained for, defendant could not show plain error as he failed to establish by a reasonable probability that the government’s breach affected his substantial rights; and 2) the court committed plain error in relying on the judge’s personal knowledge of previously undisclosed information at sentencing that was not disclosed in advance to the defendant, affecting the fairness of the sentencing process.
U.S. 8th Circuit Court of Appeals, May 20, 2009 US v. Tomac , No. 08-2718 Sentence for drug crimes is affirmed where the district court did not err in excluding defendant’s prior convictions for reckless driving from its calculations of the applicable sentencing guidelines range, as neither conviction was countable for criminal-history-points purposes under U.S.S.G. sec. 4A1.2(c)(1).
U.S. 8th Circuit Court of Appeals, May 20, 2009 US v. Brown , No. 08-2739 Sentence for drug crimes is affirmed where: 1) the district court does not have authority to reduce a defendant’s sentence to a term below the amended guidelines range when considering a motion to modify a sentence under the amendments to the crack sentencing guidelines; and 2) there is no Sixth Amendment right to counsel in proceedings under 18 U.S.C. sec. 3582(c). .
U.S. 8th Circuit Court of Appeals, May 22, 2009 US v. Martinez-Cortes, No. 08-1706 Conviction for drug crimes is affirmed where the district court properly denied defendant’s motion to suppress as police officers arriving to execute a warrant to search a residence had a valid reason to stop and at least briefly detain a vehicle and its occupants as they departed the residence, as the vehicle had previously been seen at the residence, the vehicle might have contained the resident they were seeking, and out of concerns for officer safety.
U.S. 9th Circuit Court of Appeals, May 19, 2009 US v. Maness, No. 06-30607 Defendant’s firearm possession sentence is affirmed, where: 1) the District Court erred by denying Defendant the opportunity to represent himself, but that error did not prejudice Defendant; and 2) the Sentencing Guidelines borrowed 18 U.S.C. section 922’s definition of a firearm, but not the statute’s effective date.
U.S. 9th Circuit Court of Appeals, May 20, 2009 US v. Heron-Salinas, No. 08-50276 The denial of Defendant’s motion to dismiss his indictment for reentering the U.S. following removal is affirmed, where assault with a firearm under Cal. Penal Code section 245 is categorically a “crime of violence” and an “aggravated felony” for immigration purposes.
U.S. 9th Circuit Court of Appeals, May 21, 2009 US v. Price, No. 05-30323 Defendant’s firearm possession conviction is reversed, where the prosecutor failed to turn over all evidence of a government witness’s criminal history to defense counsel, as required by Brady v. Maryland, 373 U.S. 83 (1963), and the prosecutor was responsible for oversights by his criminal investigator.
U.S. 11th Circuit Court of Appeals, May 18, 2009 Owen v. Sec’y., Dept. of Corr., No. 07-14727 In a capital habeas matter, the denial of Petitioner’s habeas petition is affirmed, where: 1) Petitioner waived his right to the state-court evidentiary hearing he claimed to have been denied; and 2) Petitioner failed to sufficiently plead or prove a conflict of interest between counsel in the two cases involving him..
U.S. 11th Circuit Court of Appeals, May 19, 2009 US v. Smith, No. 08-13215 Defendant’s drug conviction is affirmed, where the District Court did not abuse its discretion by sentencing Defendant at the high end of the Guidelines range, because the District Court considered all the 18 U.S.C. section 3553(a) factors in making its determination.
U.S. 11th Circuit Court of Appeals, May 19, 2009 Lamarca v. Sec’y., Dept. of Corr., No. 08-16775 In a capital habeas matter, Petitioner’s application for a certificate of appealability of the denial of his petition is denied, where: 1) Petitioner failed to show prejudice due to his counsel’s allegedly ineffective performance; and 2) the state court was not unreasonable in finding that the state did not offer a benefit to certain witnesses.
U.S. D.C. Circuit Court of Appeals, May 22, 2009 US v. Philip Morris USA Inc., No. 06-5267 In a civil RICO action claiming that Defendant tobacco manufacturers and trade associations engaged in wire and mail fraud, judgment for Plaintiffs is affirmed in part, where a group of corporations may be an association-in-fact under RICO; but reversed in part, where it was unclear whether the judgment’s application to Defendants’ subsidiaries would satisfy Fed. R. Civ. P. 65(d). .
Supreme Court of California, May 18, 2009 People v. Curl, No. S034072
Conviction for first degree murder and sentence of death is affirmed where: 1) the court’s prior-murder special-circumstance finding was proper, as defendant does not have a right to a jury trial on the constitutional validity of his prior conviction and bears the burden of proving the invalidity by a preponderance of the evidence standard; 2) the record does not support defendant’s claim of prosecutorial misconduct and trial court misconduct; 3) the trial court did not abuse its discretion in excluding impeachment evidence and limiting cross examination of a prosecution witness; and 4) the death penalty statute is not unconstitutional.
California Appellate Districts, May 18, 2009 People v. Castellanos , No. B210705 Trial court imposition of a fine under Penal Code sec. 1202.5 in connection with defendant’s conviction for felony petty theft is reversed and remanded for the court to determine whether the defendant has the ability to pay in light of the additional financial obligations attached to the fine.
California Appellate Districts, May 19, 2009 V.C. v. Superior Court of Sacramento County , No. C059050 Juvenile Court order dismissing the minor-plaintiff’s 2007 sustained petition in order to make him eligible for commitment to the Department of Corrections and Rehabilitation is vacated where the court abused its discretion under Welfare and Institutions Code sec. 782 in dismissing the 2007 petition as the dismissal was not in the interests of justice or for the welfare of the minor in light of his constitutional due process right to the benefit of his plea bargain.
California Appellate Districts, May 19, 2009 People v. Mena, No. D052091 Conviction for assault with a deadly weapon is affirmed where, even if the trial court erred by denying defendant’s motion for a pretrial lineup, defendant is still not entitled to reversal of his conviction as a defendant’s right to relief is waived if he does not challenge an adverse ruling by a timely pretrial petition for a peremptory writ, and any alleged error was harmless beyond a reasonable doubt. Defendant’s probation conditions are modified as to not violate due process.
California Appellate Districts, May 19, 2009 In re Marriage of Nadkarni, No. H032868 Trial court order dismissing wife’s application for a restraining order under the Domestic Violence Protection Act is reversed and remanded where: 1) the allegations in the wife’s application and declaration are facially sufficient for a showing of abuse within the meaning of the DVPA; and 2) the court was not required to allow oral testimony by the wife’s witnesses at her DVPA proceeding, and her application for a restraining order under the DVPA was entitled to calendar preference under Family Code sec. 244.
California Appellate Districts, May 20, 2009 People v. Ward , No. B212432 Trial court order imposing sanctions pursuant to Code of Civil Procedure sec. 177.5 for failing to obey a court order is reversed where: 1) the order that defendant’s attorney not say the words prosecutorial misconduct was lawful; 2) the imposition of sanctions did not interfere with defendant’s attorneys fulfillment of his duty as an attorney, as his claims did not fall under the advocacy exception to the power to sanction; and 3) the order imposing sanctions did not state the conduct or circumstances justifying the order as required by section 177.5. The case is remanded so the trial court can enter a proper sanctions order.
California Appellate Districts, May 20, 2009 People v. Cadogan , No. G040200 Conviction for forcible rape and other crimes is affirmed where: 1) trial court did not err in admitting evidence obtained at a conditional examination of defendant’s late wife as the court was exercising its inherent discretion in allowing the examination to proceed, and defendant was found to be competent at the time of the examination; and 2) the court properly allowed the impeachment of defendant based on his prior misdemeanor convictions involving moral turpitude, as defendant did not raise a timely hearsay objection when the prosecutor improperly asked about his misdemeanor convictions.
California Appellate Districts, May 21, 2009 People v. Sisneros, No. B205535 Conviction for first degree murder and other crimes is affirmed where the trial court did not abuse its discretion in permitting the prosecution to call a witness knowing that she would refuse to be sworn and submit to questionings, as there was no state law evidentiary error or constitutional violation arising out of the refusal, and any error would have been harmless.
California Appellate Districts, May 21, 2009 People v. Paysinger, No. C059448 Conviction for second degree robbery is affirmed where defendant failed to show any constitutional defect in the CALCRIM No. 372 flight instruction to the jury