Findlaw Case Summaries: Criminal Law and Procedure 32

December-28, 2009 – January 1, 2010
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U.S. 1st Circuit Court of Appeals, December 28, 2009 US v. Dyer, No. 08-1343 Sentence on a defendant convicted of possessing child pornography is affirmed where: 1) the district court properly interpreted the trafficking cross-reference under U.S.S.G. section 2G2.4(c)(2) to include situations in which a defendant intended to exchange child pornography without any commercial purpose; 2) defendant’s argument that the government must necessarily show the defendant actively and subjectively desired that others would get images of child pornography from him and that ordinary general intent does not suffice is rejected; 3) district court did not err in concluding that defendant’s online conduct showed an “intent to traffic” under section 2G2.4(c)(2); and 4) defendant’s argument that agent’s testimony violated his Confrontation Clause rights because the grand jury testimony was never part of the record and because he had no chance to challenge that testimony during the sentencing hearing is rejected as without merit.

U.S. 2nd Circuit Court of Appeals, December 30, 2009 US v. MacPherson, No. 08-1829 Defendant’s drug distribution sentence following a guilty plea is affirmed where: 1) the agreement and the plea colloquy put the defendant on notice that the Pimentel drug quantity estimate was not binding on the prosecutor and that if the estimate was wrong, the plea could not be withdrawn; and 2) there was no authority that prevented a sentencing judge from using facts of the offense conduct both to determine the applicable Sentencing Guidelines range and to select a sentence within that range.

U.S. 4th Circuit Court of Appeals, December 28, 2009 Smith v. Smith, No. 08-7139 In an inmate’s 42 U.S.C. section 1983 suit against a prison nurse claiming deliberate indifference to his serious medical needs, district court’s judgment in favor of the defendant is reversed and remanded where: 1) the inmate made out a claim for a deliberate indifference and the district court erred in finding that he failed to state a claim under the Eighth Amendment; and 2) because the district court premised both the grant of the motion to dismiss and qualified immunity on its finding that plaintiff failed to allege deliberate indifference in his complaint, the immunity analysis was prematurely concluded on the erroneous basis that plaintiff did not plead facts sufficient to indicate defendant had deliberate indifference to his medical need.

U.S. 4th Circuit Court of Appeals, December 31, 2009 US v. Matthews, No. 09-4005 Conviction of defendant for conspiracy to distribute marijuana and related crimes is affirmed where: 1) because the police department’s policy authorizes the opening of closed containers encountered during an inventory search and the deputy adhered to that policy, the search falls within the inventory search exception, and thus, does not violate the Fourth Amendment; and 2) because the department’s policy properly curtails the discretion of searching officers and the deputy adhered to that policy, the search falls within the inventory exception. ..

U.S. 5th Circuit Court of Appeals, December 30, 2009 Hernandez v. Holder, No. 09-60261 In a petition for review of the BIA’s denial of petitioner’s application for cancellation of removal, the petition is denied where state felon in-possession offenses, such as Texas Penal Code section 46.04(a), need not have an interstate commerce element in order for the offense to be an offense “described in” 18 U.S.C. section 922(g)(1).

U.S. 5th Circuit Court of Appeals, December 31, 2009 US v. Sealed Appellant 1, No. 08-30284 In two juvenile defendants’ appeal from the district court’s order transferring them to adult status for trial, the order is affirmed in part where, given the risk factors involved, transferring one defendant to adult status was not an abuse of discretion. However, the order is reversed in part where one defendant could not be prosecuted as an adult for any charges arising from the carjackings that transpired before his fifteenth birthday.

U.S. 6th Circuit Court of Appeals, December 28, 2009 US v. Aaron, No. 08-2185 Defendant’s conviction for making and subscribing a false document when he provided a false Social Security number on at least 965 W-2Gs that were provided to him each time he won at least $1,200 at various Detroit-area casinos is affirmed where: 1) because defendant never claimed a good-faith belief that his true Social Security number was not legally required of him, Cheek v. US did not require that the district court give an instruction on good-faith belief; 2) defendant’s contention that district court erred by not instructing the jury on the definition of willfulness is without merit; and 3) the record is not sufficiently developed to warrant resolution of defendant’s ineffective-assistance claim on direct appeal.

U.S. 6th Circuit Court of Appeals, December 30, 2009 Hamblen v. US, No. 09-5025 District court’s denial of a 28 U.S.C. section 2255 motion to vacate a sentence for possession of machine guns and unregistered firearms by defendant, a volunteer with the Tennessee State Guard who had built nine machine guns in response to the events of September 11, is affirmed as the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns.

U.S. 7th Circuit Court of Appeals, December 29, 2009 US v. Neighbors, No. 09-1113 Sentence and conviction of defendants for conspiracy to possess and distribute crack cocaine is affirmed where: 1) the district court did not err in denying defendants’ motion for a mistrial because, although the venire lacked any African-Americans, defendants did not show that systematic exclusion of African-Americans caused this void; 2) the district court did not abuse its discretion in allowing a detective to identify defendants’ voices on the wiretap tapes; 3) the district court did not abuse its discretion when it allowed the jury to take transcript books back to the deliberation room; 4) the district court did not abuse its discretion in excluding letters written by a witness, even under Rule 613; 5) there was no error in denying defendants’ motion for directed verdict based on the variance between the verdict and the indictment; and 6) there was no error in sentencing one of the defendants within the highest possible point in the Guidelines range.

U.S. 7th Circuit Court of Appeals, December 29, 2009 US v. Marion, No. 09-2525 District court’s decision denying defendant’s motion to reduce his sentence under 18 U.S.C. section 3582(c)(2) is remanded as the court’s written analysis on the order form with a single sentence of explanation is a bit too terse to allow meaningful review of its decision, and here, the problem arises from the fact that it is impossible to ensure that the district court did not abuse its discretion if the order shows only that the district court exercised its discretion rather than showing how its exercised that discretion.

U.S. 7th Circuit Court of Appeals, December 30, 2009 US v. Are, No. 07-3246 Conviction of defendants, known as the “Four Corner Hustlers” gang on the south side of Chicago, for drug conspiracy involving variety of illegal drugs and guns is affirmed as a review of the record leads to the conclusion that, by and large, the district court properly handled the case.

U.S. 7th Circuit Court of Appeals, December 31, 2009 Etherly v. Schwartz, No. 09-3535 In habeas proceedings of a defendant convicted of first degree murder when he was fifteen years old and sentenced to a forty-year term of imprisonment, state’s motion for a stay of release is granted as it is not likely that district court’s grant of habeas relief will be affirmed as traditional factors for a stay overcome the petitioner’s presumption in favor of release.

U.S. 8th Circuit Court of Appeals, December 28, 2009 US v. Howe, No. 08-1021 In a kidnapping prosecution, the denial of defendant’s motion to dismiss the indictment is affirmed where 1) the jury in a prior felony murder trial did not need to find that defendant did not kidnap the victim in order to acquit defendant; 2) defendant’s acquittal on the charge of carrying a firearm in furtherance of a crime of violence did not require the jury to determine that defendant did not commit kidnapping; and 3) in acquitting defendant’s co-defendant on all counts, the jury did not necessarily find that defendant did not commit kidnapping.

U.S. 8th Circuit Court of Appeals, December 29, 2009 US v. McCloud, No. 09-1520 Defendant’s child pornography conviction is affirmed where: 1) defendant’s own testimony supplied the allegedly “missing” element of whether he actually photographed one victim; 2) the district court’s preclusion of a reasonable-mistake-of-age defense did not violate defendant’s right to due process; and 3) sufficient evidence existed from which a jury could find that defendant produced child pornography with materials that had traveled in interstate commerce.

U.S. 8th Circuit Court of Appeals, December 30, 2009 US v. Williams, No. 08-3606 In defendant’s appeal from the district court’s order granting the government’s motion for a 12-month sentence reduction, the appeal is dismissed for lack of jurisdiction where, absent an unconstitutional motive, the extent to which a district court exercises its discretionary authority to depart downward was not subject to review.

U.S. 8th Circuit Court of Appeals, December 30, 2009 US v. Branch, No. 08-3683 Defendant’s mail and wire fraud convictions and sentence are affirmed where: 1) a witness’s outburst at defendant did not prejudice him given the strength of the evidence against him; 2) the prosecutor’s characterizations of defendant did not produce a miscarriage of justice; and 3) defendant showed no meaningful errors in the government’s evidence on loss amount.

U.S. 8th Circuit Court of Appeals, December 30, 2009 US v. Smith, No. 08-3903 Defendant’s sentence for conspiracy to engage in the unlicensed dealing of firearms is affirmed where: 1) because defendant did not object at the time of sentencing that the prosecutor’s remarks were in breach of the plea agreement, such a claim was not preserved for appeal; and 2) the terms of the plea agreement did not preclude the government from making a good faith argument that defendant did not satisfy one or more of the conditions entitling him to a downward departure recommendation.

U.S. 8th Circuit Court of Appeals, December 31, 2009 US v. Adler, No. 09-1775 In a marijuana possession prosecution, grant of defendant’s motion to suppress is reversed where Neb. Rev. Stat. section 60-6.161(2) required defendant to have signaled her turn 100 feet in advance, and thus an officer had probable cause to stop her vehicle for the traffic violation he observed.

U.S. 9th Circuit Court of Appeals, December 29, 2009 Bryan v. McPherson, No. 08-55622 In a 42 U.S.C. section 1983 action based on defendant-officer’s use of a taser on plaintiff at a traffic stop, denial of summary judgment based on qualified immunity is affirmed where, viewing the circumstances in the light most favorable to plaintiff, defendant’s use of the taser was unconstitutionally excessive and a violation of plaintiff’s clearly established rights. .

U.S. 9th Circuit Court of Appeals, December 30, 2009 Ford v. Hubbard, No. 06-56092 In a murder prosecution, a grant of petitioner’s habeas petition is reversed where petitioner failed to establish that the limitations period should be equitably tolled because he did not show that the district court gave him inaccurate instructions regarding the filing of the petition.

U.S. 9th Circuit Court of Appeals, December 30, 2009 US v. No Runner, No. 08-30449 In defendant’s appeal from a pretrial order finding her competent to stand trial, the appeal is dismissed where a pretrial competency determination was a non-final order and the collateral order doctrine did not apply.

U.S. 9th Circuit Court of Appeals, December 30, 2009 US v. Anchrum, No. 09-30013 Defendant’s drug and firearm convictions and sentence are affirmed where: 1) the district court’s erroneous jury instruction omitting the dangerous or deadly weapon element of 18 U.S.C. section 111 was harmless error that did not affect defendant’s substantial rights; 2) the district court clearly separated an officer’s testimony into a first “phase” consisting of his percipient observations, and a second “phase” consisting of his credentials in the field of drug trafficking and expert testimony regarding the modus operandi of drug traffickers; and 3) the district court did not abuse its discretion in applying a six-level official victim sentencing enhancement under U.S.S.G. section 3A1.2 or fail to make the necessary findings of fact when defendant objected to the enhancement in the Presentence Report.

U.S. 10th Circuit Court of Appeals, December 29, 2009 US v. Rivera-Oros, No. 08-2035 Defendant’s sentence for reentering the United States after having been previously deported following a felony conviction is affirmed where defendant’s prior burglary conviction was a “crime of violence” supporting a sixteen-level increase to his offense level under U.S.S.G. section 2L1.2(b).

U.S. 10th Circuit Court of Appeals, December 29, 2009 US v. Caldwell, No. 08-6143 Defendant’s drug conspiracy conviction is affirmed where: 1) sharing a common supplier, without more, did not demonstrate that two drug dealers were acting together for their shared mutual benefit; and 2) the mere introduction of a common supplier, made by one drug dealer to another, was not sufficient to create a single conspiracy among all the dealers, but these errors did not affect defendant’s substantial rights. However, defendant’s sentence is vacated where the jury’s determination of drug quantity was clearly erroneous because it was based on an unsupported tripartite conspiracy.

U.S. 10th Circuit Court of Appeals, December 29, 2009 US v. Villa, No. 08-8100 Defendant’s drug and firearm possession convictions and sentence are affirmed where: 1) absent a display of a weapon or some other type of show of authority, defendant voluntarily consented to further questioning by the officer who stopped her vehicle; 2) sufficient evidence supported defendant’s conviction for possessing a firearm in furtherance of her methamphetamine trafficking; and 3) the most natural reading of 18 U.S.C. section 924(c) was that its prefatory clause referred only to a minimum sentence provided by section 924(c) or any other statutory provision that proscribed the conduct set forth in section 924(c).

U.S. 11th Circuit Court of Appeals, December 28, 2009 Randolph v. McNeil, No. 08-12854 In a capital habeas matter, denial of petitioner’s habeas petition is affirmed where: 1) given the overwhelming aggravating evidence, the state courts’ conclusion that no reasonable probability had been shown that, but for petitioner’s lawyer’s alleged lack of investigation, the trial court would have failed to sentence petitioner to death, was a reasonable application of clearly established federal law; 2) the trial court did not clearly err in determining that a juror was credible in testifying that she would apply the law fairly; and 3) a question that potentially injected a non-statutory aggravating factor into petitioner’s case was harmless.

U.S. 11th Circuit Court of Appeals, December 28, 2009 US v. Lopez, No. 08-13605 Defendant’s convictions for encouraging or inducing aliens to enter the U.S. is affirmed where: 1) the district court did not err in including “to help” in the definition of “encourage” in the jury instructions; 2) the trial evidence established that defendant was more than a mere passive boat driver; 3) 18 U.S.C. section 1327 required only that defendant knew the alien he aided or assisted was inadmissible at some point before the alien sought to enter the U.S. .

U.S. 11th Circuit Court of Appeals, December 30, 2009 US v. Roberson, No. 09-10519 Defendant’s robbery sentence is vacated where defendant’s prior Georgia conviction for a walkaway escape did not constitute a predicate “crime of violence” qualifying him for sentencing as a career offender under the Sentencing Guidelines.

California Appellate Districts, December 28, 2009 People v. Moret, No. A123591 In a prosecution for possession of a concealed firearm, trial court’s imposition of several conditions on defendant’s probation, specifically a condition requiring non-use of marijuana and the surrender of his medical marijuana card, is affirmed where: 1) the combination of provisions of Health and Safety Code section 11357 and 11362.795 and cited authorities make it clear that there was nothing in the slightest unlawful or unconstitutional about the probation conditions imposed on, and explicitly agreed to, by defendant; 2) court did not abuse its discretion when it gave the defendant the choice to accept among several conditions, including drug testing and jail time; and 3) there were no improper or unlawful choice being forced on defendant.

California Appellate Districts, December 28, 2009 People v. Frausto, No. B212054 Conviction of defendant for first degree murder and attempted premeditated murder is affirmed but the judgment is modified where: 1) substantial evidence supported the gun-use enhancements; 2) the trial court erred in imposing more than one 5 year enhancement pursuant to Pen. Code section 667(a)(1) as separate enhancements were improperly imposed for three prior convictions; and 3) defendant is entitled to credit for 466 days of presentence custody as his presentence custody credit was miscalculated.

California Appellate Districts, December 28, 2009 People v. Murphy, No. E046742 Defendant’s conviction for procuring or offering false information for filing and insurance fraud, arising from a stolen vehicle report filed by defendant, is affirmed where: 1) defendant’s conviction under Penal Code section 115 was not preempted by Vehicle Code section 20 or 10501; and 2) CALCRIM No. 2000 more than adequately conveyed to the jury that it was required to find that defendant made a fraudulent insurance claim, payment of which she was not entitled to receive.

California Appellate Districts, December 28, 2009 People v. Pham, No. G040848 Conviction of defendant-chiropractor of sexual battery by fraud for touching the intimate body parts of his patients while purporting to examine them is affirmed as there is substantial evidence to support the jury’s finding that defendant committed sexual battery by fraud because there is sufficient evidence from which the jury could find that the patients were unconscious of defendant’s sexual intentions at the time of their treatment, and because the evidence also shows the victims’ unconsciousness was attributable to defendant’s fraudulent representations – both implied and actual.

California Appellate Districts, December 29, 2009 People v. Thompson, No. D054037 Conviction of defendant for vehicular manslaughter while intoxicated and driving under the influence of alcohol or drugs is affirmed but modified where the judgment with the sentence of 26 years four months is affirmed as the correct sentence is reflected in the court’s minutes and the abstract of judgment, not in the court’s oral pronouncement of sentence as stated in the reporter’s transcript.

California Appellate Districts, December 30, 2009 Kemps v. Beshwate, No. F056377 In an action arising from plaintiff’s arrest on a bench warrant involving her alleged failure to appear as a subpoenaed witness in a murder trial, trial court’s order striking plaintiff’s complaint upon the granting of an anti-SLAPP motion is affirmed as plaintiff’s tort claims against the defendants are barred by Civil Code section 47(b) and she has failed to demonstrate she probably would prevail in the present action

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