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June 14 – 18, 2010.
U.S. Supreme Court, June 14, 2010 Dolan v. US, No. 09–367 In a prosecution for assault resulting in serious bodily injury, the Tenth Circuit’s affirmance of the district court’s untimely restitution order is affirmed where a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution, at least where, as here, that court made clear prior to the deadline’s expiration that it would order restitution, leaving open (for more than 90 days) only the amount.
U.S. Supreme Court, June 14, 2010 Holland v. Fla., No. 09–5327 In a capital habeas matter, the Eleventh Circuit’s affirmance of the denial of petitioner’s habeas petition is reversed and remanded where: 1) 28 U.S.C. section 2244(d), the AEDPA statute of limitations, is subject to equitable tolling in appropriate cases, and the per se standard employed by the Eleventh Circuit was too rigid; and 2) the district court incorrectly rested its ruling not on a lack of extraordinary circumstances (which may well be present), but on a lack of diligence. .
U.S. Supreme Court, June 14, 2010 Carachuri-Rosendo v. Holder, No. 09–60 The Fifth Circuit’s denial of petitioner’s petition for review of the BIA’s order holding that petitioner was not eligible for cancellation of removal is reversed where second or subsequent simple possession offenses are not aggravated felonies under 8 U.S.C. section 1101(a)(43) when, as in this case, the state conviction was not based on the fact of a prior conviction
U.S. Supreme Court, June 17, 2010 City of Ontario v. Quon, No. 08–1332 In an action by police officers against the city employing them, claiming that defendants violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of plaintiff-officer’s pager messages, the Ninth Circuit’s reversal of summary judgment for defendants is reversed where, because the city’s search of plaintiff’s text messages was reasonable, defendants did not violate plaintiffs’ Fourth Amendment rights.
U.S. Supreme Court, June 17, 2010 Dillon v. US, No. 09–6338 In defendant’s motion for a sentence reduction under 18 U.S.C. section 3582(c)(2), the Third Circuit’s affirmance of the denial of the motion is affirmed where Booker’s holdings did not apply to section 3582(c)(2) proceedings, and therefore did not require treating U.S.S.G. secton 1B1.10(b) as advisory.
U.S. 1st Circuit Court of Appeals, June 17, 2010 US v. Laurent, No. 09-1543 Defendant’s conviction and sentence for drug related crimes is affirmed over claims that the destruction of the surveillance videotape of defendant and failure by the prosecutor to disclose before trial the prior existence of the tape and the destruction violated his constitutional rights, as the tape was not exculpatory, but rather, it is more likely than not that the tape would have inculpated defendant.
U.S. 1st Circuit Court of Appeals, June 17, 2010 US v. Persichilli, No. 09-1799 A conviction for knowingly possessing a Social Security card with intent to alter it and aggravated identity theft is affirmed where: 1) the evidence was sufficient to demonstrate an intent to alter the card; 2) the court of appeals rejects a claim that defendant did not have either of the two statutory purposes that the government said supported his conviction on the alteration count; 3) contrary to defendant’s claim, the alternative purpose charged in this case under section 408 — “for any other purpose” — is not unconstitutionally vague; and 4) defendant’s conviction for intent to alter a Social Security card could serve as a predicate offense under the aggravated identity theft statute.
U.S. 1st Circuit Court of Appeals, June 18, 2010 US v. Crooker, No. 07-1964 Conviction of defendant for transporting a firearm in interstate commerce as a convicted felon and sentence to 262 months’ imprisonment is reversed and remanded for the entry of judgment of acquittal as, on the facts of this case, a silencer cannot qualify as a “firearm” within the meaning of the statutory definition.
U.S. 1st Circuit Court of Appeals, June 18, 2010 US v. Jackson, No. 09-1202 Denial of a motion to suppress in a prosecution for being a felon in possession of a firearm is affirmed as the district court’s judgment was neither unreasonable nor clear error as, under the applicable test, the lack of any pre-planned evasion of Miranda defeats defendant’s claim, and under the plurality decision’s fact sensitive approach, the most egregious elements of Seibert are absent.
U.S. 2nd Circuit Court of Appeals, June 14, 2010 US v. Awan, No. 07-4315 Defendant’s conspiracy to commit murder sentence is vacated and remanded where the district court erred by denying the government’s request for imposition of a terrorism enhancement because the district court failed to consider application of the “intended to promote” prong of U.S.S.G. section 3A1.4 and also misconstrued the “involved” prong.
U.S. 2nd Circuit Court of Appeals, June 14, 2010 Urinyi v. US, No. 09-3398 In petitioner’s motion for leave to file a “second or successive” motion to vacate his conviction pursuant to 28 U.S.C. section 2255, the motion is denied where petitioner’s prior motion did not count when determining whether his proposed motion was “second or successive” under the Antiterrorism and Effective Death Penalty Act, and thus petitioner does not require leave of the circuit court to file the proposed motion in the district court.
U.S. 2nd Circuit Court of Appeals, June 15, 2010 SEC v. Byers, No. 09-0234 In nonparties’ appeal from the district court’s order holding that its jurisdiction in rem and its equitable powers provided it with sufficient authority to issue an injunction barring non-parties from filing involuntary bankruptcy petitions against any of the defendants, the order is affirmed where, while it should be sparsely exercised, district courts possess the authority and discretion to enter anti-litigation orders, including those that bar the filing of involuntary bankruptcy petitions absent the district court’s permission.
U.S. 2nd Circuit Court of Appeals, June 15, 2010 Padmore v. Holder, No. 09-0243 In a petition for review of an order of the BIA vacating the decision of an Immigration Judge granting petitioner’s application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, the petition is granted where the BIA impermissibly engaged in factfinding and relied on unproven and disputed allegations as a basis for its decision. .
U.S. 2nd Circuit Court of Appeals, June 18, 2010 US v. 777 Greene Ave., No. 08-5428 In a civil forfeiture proceeding, the motion to withdraw of defendant’s counsel is denied where such a motion will not be granted unless counsel satisfies the requirements established under Anders v. California, 386 U.S. 738 (1976), and its progeny. With regard to motions to withdraw filed by appellate counsel appointed pursuant to 18 U.S.C. section 983(b)(2)(A), the procedure established under Anders and its progeny is best suited to protect the right to counsel to which indigent litigants are entitled.
U.S. 2nd Circuit Court of Appeals, June 18, 2010 US v. Heras, No. 09-3150 In the government’s appeal from the district court’s grant of defendant’s motion for judgment of acquittal on charges of conspiracy to possess and aiding and abetting an attempt to possess with intent to distribute 500 grams or more of cocaine, the order is reversed where the evidence was sufficient to permit a jury to infer from defendant’s knowledge that a co-conspirator was a drug dealer seeking to take possession of a quantity of drugs, and defendant’s knowing effort to further and facilitate that possession, that defendant necessarily adopted the specific intent underlying the attempted possession, namely, distribution of any acquired drugs.
U.S. 3rd Circuit Court of Appeals, June 16, 2010 US v. Marcavage , No. 09-3573 Conviction of defendant for violating the terms of a permit and interfering with agency function, arising from his refusal to move his anti-abortion demonstration from the sidewalk in front of Liberty Bell to a nearby location, is vacated where: 1) the sidewalk at issue, as a thoroughfare sidewalk, seamlessly connected to public sidewalks at either end and intended for general public use, is a traditional public forum; 2) restrictions imposed on defendant were content-based as the park rangers’ actions were motivated by the content of defendant’s speech; and 3) defendant’s First Amendment right to free speech was impermissibly infringed because government’s exclusion of defendant from the sidewalk cannot withstand strict scrutiny as the exclusion was neither narrowly tailored to serve the government’s interests nor the least restrictive means of doing so.
U.S. 4th Circuit Court of Appeals, June 14, 2010 US v. Joshua, No. 10-6281 Dismissal of the government’s petition for civil commitment of respondent under 18 U.S.C. section 4248 after the attorney general certified him as “sexually dangerous” is affirmed where respondent (who was convicted and sentenced via military court-martial, but housed within a Bureau of Prisons (BOP) facility) was not “in the custody” of the BOP under section 4248 because the BOP did not have legal custody over him.
U.S. 4th Circuit Court of Appeals, June 15, 2010 US v. Novak, No. 08-5254 A conviction under 18 U.S.C. section 228(a)(3) for willfully failing to pay child support is affirmed over two challenges to the district court’s jury instructions on venue where: 1) the district court did not err when it defined “resided” as “the act or fact of living in a given place permanently or for an extended period of time,” and the evidence was sufficient, for purposes of venue, to establish that defendant resided in the Eastern District of Virginia during the time period alleged in the indictment; and 2) even assuming the district court’s instruction was erroneous, defendant could not show any harm.
U.S. 4th Circuit Court of Appeals, June 16, 2010 US v. Graham , No. 09-6013 In defendant’s motion for a certificate of innocence after his conviction for embezzlement of his employer was overturned, district court’s denial of the motion is affirmed as defendant has not demonstrated that the court abused its discretion in concluding that he failed to meet his burden under the second clause of section 2513(a)(2), that he did not, by misconduct or neglect, cause or bring about his own prosecution.
U.S. 4th Circuit Court of Appeals, June 17, 2010 US v. Peterson, No. 09-4166 In a prosecution of defendant for structuring transactions to evade reporting requirements set forth in 31 U.S.C. section 5313(a), district court’s imposition of a two-level enhancement pursuant to section 2S1.3(b)(2) of the sentencing guidelines to defendant’s sentence is affirmed as the district court did not err in determining that defendant’s structuring offense was committed as part of a pattern of unlawful activity involving more than $100,000 in a twelve-month period, and as a result, the safe harbor of section 2S1.3(b) did not apply.
U.S. 4th Circuit Court of Appeals, June 17, 2010 US v. Rendon, No. 09-4687 In a prosecution of defendant for child pornography, a denial of a motion to suppress evidence as the fruits of an unconstitutional search of defendant’s MP3 player conducted by the military while he was a private in the U.S. Army is affirmed as, because defendant’s MP3 player was inspected pursuant to a valid military inspection, contraband discovered during the course of that inspection could be seized and turned over to civilian authorities.
U.S. 5th Circuit Court of Appeals, June 17, 2010 US v. Davis, No. 05-31111 Defendant’s murder conviction and the death sentence imposed on him pursuant to the Federal Death Penalty Act are affirmed where: 1) a jury could have found the future dangerousness factor beyond a reasonable doubt; 2) the jury was aware — from the court’s detailed instructions before and after the selection and penalty phases — that defendant could only be sentenced to a life sentence without the possibility of release, or to death; and 3) a witness’s testimony was relevant to show that defendant was familiar with a co-conspirator’s criminal activities, maintained a relationship with him, and therefore was able to call upon him as an intermediary to execute the victim.
U.S. 6th Circuit Court of Appeals, June 14, 2010 US v. Williams, No. 09-5331 An order denying defendant’s motion to reduce his sentence for possession of with intent to distribute and for being a felon in possession of a firearm is affirmed where the career offender guidelines, and not crack cocaine guidelines, controlled his original sentence, and thus the district court lacked jurisdiction to resentence defendant under section 3582(c)(2).
U.S. 6th Circuit Court of Appeals, June 15, 2010 US v. Quesada, No. 08-2183 Defendant’s conviction and sentence on criminal charges revolving around a drug-distribution conspiracy is affirmed over a claim that the government breached the plea agreement by using defendant’s proffer statement to prove the applicability of certain sentencing enhancements where: 1) the plea agreement rendered the terms of an earlier proffer letter no longer binding on the parties; and 2) consequently, because the government made no promises concerning the use of defendant’s proffer in the plea agreement, the claim of breach is without merit.
U.S. 7th Circuit Court of Appeals, June 15, 2010 US v. Lewis, No. 09-3804 Defendant’s firearm possession conviction is affirmed where defendant voluntarily consented to the police’s entry into defendant’s girlfriend’s apartment, and thus the district court properly denied defendant’s motion to suppress the firearm at issue.
U.S. 7th Circuit Court of Appeals, June 16, 2010 US v. Parker, No. 09-4044 In proceedings arising from the conviction of defendant for conspiring to possess more than 5 kilograms of cocaine with intent to distribute, and the imposition of a 121-month sentence, defendant’s petition for habeas relief based on ineffective assistance is denied as he provided no reasons to suggest that his counsel’s erroneous advice, and not his own perjury, caused him to receive the sentence he received. Further, defendant’s sentence is affirmed as his contention that the district court should not have believed his statements made under oath is rejected.
U.S. 7th Circuit Court of Appeals, June 17, 2010 Wilson v. Gaetz, No. 09-2111 District court’s denial of defendant’s petition for habeas relief from a conviction in state court of murder while mentally ill is vacated and remanded as, given the gravity of charge against defendant and the ample evidence that he was driven to kill the victim by an insane delusion, counsel’s assistance to defendant fell below the minimum professional level required of a lawyer representing a murder defendant, and as such, defendant is entitled to an evidentiary hearing on the issue of prejudice.
U.S. 7th Circuit Court of Appeals, June 17, 2010 US v. Hall, No. 09-2682 Defendants’ convictions for drug and firearm offenses related to an undercover sting to rob a “drug stash house” are affirmed where: 1) the district court did not err by refusing to give a jury instruction on entrapment as there is no evidence that defendant was not predisposed to join in the proposed robbery plan; and 2) co-defendant’s sentence is affirmed as he cannot show that his is that “rare case” in which a within guidelines sentence should be considered unreasonable.
U.S. 8th Circuit Court of Appeals, June 14, 2010 US v. Nguyen, No. 08-3940 Defendants’ convictions and sentences for conspiracy to distribute and possess with the intent to distribute ecstasy are affirmed where: 1) the parties’ plea agreement did not contain an agreement not to prosecute other offenses; 2) venue was appropriate because there was no dispute that defendant’s co-conspirator was in Iowa and committed acts in furtherance of the conspiracy there; 3) it was not clear error for the district court to find that defendant knowingly and voluntarily waived his rights and, as a result, the district court did not err when it denied a motion to suppress; and 4) in light of the evidence that the instant conspiracy involved a variety of pills, many of which were not available for chemical analysis, it was not error for the district court to use the Typical Weight Per Unit Table.
U.S. 9th Circuit Court of Appeals, June 14, 2010 US v. Villavicencio-Burruel, No. 09-50204 Defendant’s conviction for illegal reentry following deportation in violation of 8 U.S.C. section 1326, and for making false claims that he had U.S. citizenship in violation of 18 U.S.C. section 911, is affirmed where: 1) defendant did not comply with section 1326(d)(1)’s exhaustion requirement, and his waiver argument was inapposite and did not excuse the nonexhaustion; and 2) the admission of defendant’s warrant of removal did not violate his Confrontation Clause rights. However, defendant’s sentence is vacated on cross-appeal by the government where a conviction for making a criminal threat under Cal. Pen. Code section 422 was categorically a conviction for a crime of violence under U.S.S.G. section 2L1.2.
U.S. 9th Circuit Court of Appeals, June 14, 2010 US v. O’Donnell, No. 09-50296 In a prosecution for violating federal campaign finance laws, dismissal of the charges of contributing in the names of others in violation of 2 U.S.C. section 441f is reversed where section 441f prohibits a person from providing money to others to donate to a candidate for federal office in their own names, when in reality they were merely “straw donors.”
U.S. 9th Circuit Court of Appeals, June 15, 2010 Howard v. Clark, No. 08-55340 In a murder and attempted murder prosecution, a denial of petitioner’s habeas petition is affirmed in part where the district court correctly denied petitioner’s claim based on his trial counsel’s failure to call an expert witness on eyewitness identifications. However, the order is reversed in part where the record was not sufficiently developed to determine whether petitioner was entitled to relief based on his attorney’s allegedly inadequate investigation of the victim.
U.S. 9th Circuit Court of Appeals, June 15, 2010 US v. Gossi, No. 09-30202 In defendant’s appeal from a restitution order imposed pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. section 3663A, following defendant’s guilty plea to mail fraud, the order is affirmed where: 1) the district court’s valuation of the property at issue was within the discretion afforded district courts; and 2) the district court correctly ordered defendant to pay restitution based on losses proximately resulting from his criminal conduct.
U.S. 9th Circuit Court of Appeals, June 17, 2010 Guy v. City of San Diego, No. 08-56024 In plaintiff’s appeal from the district court’s denial of his motion for a new trial on damages following a jury verdict reached in his 42 U.S.C. section 1983 action alleging excessive force by police, the order is affirmed in part where substantial evidence supported the jury’s finding that plaintiff suffered only nominal damages. However, the order is reversed in part where an attorney’s fee award would serve a purpose beneficial to society by encouraging the City of San Diego to ensure that all of its police officers were well trained to avoid the use of excessive force, even when they confronted a person whose conduct had generated the need for police assistance.
U.S. 9th Circuit Court of Appeals, June 17, 2010 Del Banjo v. Ayers, No. 08-56512 In a prosecution for kidnapping with the intent to commit rape and/or sodomy and one count of sodomy, a denial of petitioner’s habeas petition is affirmed where the statute of limitations applicable to the petition was not tolled because petitioner’s delay was not reasonable, nor was it consistent with the short periods of time permitted by most states and envisioned by the Supreme Court in reaching its decisions in Saffold and Chavis.
U.S. 9th Circuit Court of Appeals, June 18, 2010 Bryan v. MacPherson, No. 08-55622 In an action asserting excessive force in violation of the Fourth Amendment based on an officer’s use of a taser on plaintiff, a denial of summary judgment based on qualified immunity is affirmed in part where, viewing the circumstances in the light most favorable to plaintiff, defendant’s use of the taser was unconstitutionally excessive. However, the order is reversed in part where the violation of plaintiff’s constitutional rights was not clearly established at the time.
U.S. 10th Circuit Court of Appeals, June 14, 2010 US v. Silva, No. 09-2035 Defendant’s sentence for possession of a firearm and ammunition after conviction of a felony is affirmed where the district court correctly determined that defendant’s prior New Mexico convictions for burglary and aggravated assault qualified as violent felonies under the Armed Career Criminal Act.
U.S. 10th Circuit Court of Appeals, June 14, 2010 US v. Corrales, No. 09-3259 Defendant’s convictions for possession of cocaine with intent to distribute and conspiracy to possess cocaine with intent to distribute are affirmed where: 1) it was unnecessary to address a claim of instructional error as defendant did not challenge the sufficiency of the evidence to support a jury finding that he had actual knowledge of the presence of cocaine; and 2) defendant’s Confrontation Clause claim fails as he did not argue that the district court erred on the two occasions on which it sustained objections to defendant’s cross-examination of a witness, and he failed to show that this cross-examination was otherwise limited.
U.S. 10th Circuit Court of Appeals, June 15, 2010 US v. Sanchez, No. 09-2239 Defendant’s marijuana possession conviction is affirmed where defendant’s daughter had actual authority to consent to the police’s home visit and the officers properly relied on her consent, and thus the district court properly denied defendant’s motion to suppress.
U.S. 10th Circuit Court of Appeals, June 15, 2010 US v. Terrell, No. 09-3074 In defendant’s appeal from the district court’s denial of his motion for a reduction of sentence under 18 U.S.C. section 3582(c)(2) on the basis that his sentence was improperly enhanced as a result of double-counting, the order is affirmed where the number of weapons involved in the underlying offense to an 18 U.S.C. section 924(c) conviction was a separate type of offense conduct than that punished by section 924(c) itself.
U.S. 11th Circuit Court of Appeals, June 18, 2010 Hill v. Schofield, No. 08-15444 In a capital habeas matter, the denial of petitioner’s habeas petition is reversed where Georgia’s requirement of proof of mental retardation beyond a reasonable doubt necessarily would result in the execution of the mentally retarded, and thus the Georgia Supreme Court’s decision was contrary to the clearly established rule of Atkins.
U.S. 11th Circuit Court of Appeals, June 18, 2010 Guevara v. Repub. of Peru, No. 08-17213 In an action claiming that the Republic of Peru owed plaintiff $5 million in reward money for information that lead to the arrest of Peru’s former spy chief, Vladimiro Lenin Montesinos Torres, summary judgment for plaintiff is reversed where the district court should have recognized Peru’s sovereign immunity and therefore dismissed plaintiff’s claim for lack of subject matter jurisdiction.
U.S. D.C. Circuit Court of Appeals, June 18, 2010 US v. Celis, No. 07-3075 Defendants’ convictions for conspiring to import cocaine and to manufacture and distribute cocaine for import into the United States are affirmed where, in issuing and managing a protective order, the district court accommodated the government’s law enforcement interests in a manner that did not impermissibly intrude upon appellants’ Sixth Amendment rights and did not result in prejudice that would require reversal of their convictions.
U.S. D.C. Circuit Court of Appeals, June 18, 2010 Obaydullah v. Obama, No. 09-5328 In a habeas petition challenging the lawfulness of petitioner’s detention at the Naval Station at Guantanamo Bay, Cuba, the district court’s order staying the petition is reversed where the prolonged delay in adjudicating petitioner’s petition was inconsistent with the Supreme Court’s teaching in Boumediene v. Bush that a detainee at Guantanamo Bay was entitled to a prompt habeas corpus hearing.
New York Court of Appeals, June 15, 2010 People v. Dreyden, No. 102 Defendant’s conviction for unlawful possession of marihuana and criminal possession of a weapon in the fourth degree is reversed where the misdemeanor complaint, insofar as it described the arresting officer’s conclusion that defendant had a gravity knife, failed to give any support or explanation whatsoever for the officer’s belief.
New York Court of Appeals, June 15, 2010 People v. Mitchell, No. 114 In defendant’s motion pursuant to Criminal Procedure Law sections 440.10 and 440.20 in Essex County Court, seeking to set aside his felony conviction and sentence for driving while intoxicated, the appellate division’s affirmance of the denial of the motion is reversed where the amendments to Crim. P. Law 410.80(2) were meant to transfer from sentencing courts to receiving courts the full range of powers and duties necessary for the judiciary to carry out its responsibilities to enforce the terms and conditions of probationers, and to deal with relief from forfeitures and disabilities. ..
New York Court of Appeals, June 15, 2010 People v. Superintendent of Southport Corr. Facility, No. 95 In habeas petitions seeking to overturn orders finding defendants to be “sex offenders requiring civil management” and be held in custody past their scheduled release dates, the appellate division’s reversal of the trial court’s denial of the petitions is reversed where Article 10 of the Mental Hygiene Law, which provided that certain imprisoned sex offenders may be transferred to mental hospitals, rather than being released when their prison terms expired, applied to offenders actually imprisoned, even if the procedure that led to their imprisonment was flawed.
New York Court of Appeals, June 17, 2010 People v. Reome, No. 112 Defendant’s rape and conspiracy to rape convictions are affirmed where one of defendant’s alleged accomplices was the only witness to identify him, but the witness’s testimony was corroborated as N.Y. Crim. Proc. Law 60.22(1) required because the victim’s detailed account, and the DNA identifications of the three other rapists, gave strong reason to believe that the witness’s description of events was very largely true.
California Appellate Districts, June 15, 2010 People v. Riley, No. D054660 Defendant’s conviction for possessing marijuana in a prison facility is affirmed where 1) there was nothing to suggest that the prosecutor failed to present evidence regarding drug quantity in its case-in-chief in an attempt to gain an advantage, or because the prosecutor could not have presented the evidence earlier; and 2) the trial court did not abuse its discretion in allowing an expert witness to testify on the question of the usability of the quantity of marijuana found in defendant’s coin purse.
California Appellate Districts, June 15, 2010 People v. Benner, No. G042127 Defendant’s conviction for driving under the influence of methamphetamine is affirmed where 1) the jury could reasonably conclude that methamphetamine is a drug that could impair a person‟s ability to drive a vehicle in a reasonably prudent manner; and 2) the evidence readily suggested that defendant’s driving ability was appreciably impaired. However, defendant’s sentence is modified where 1) the trial court erred by conditioning defendant’s probation on the payment of certain fees and costs; and 2) defendant’s alcohol abuse education fee was not authorized under Penal Code section 1463.25.
California Appellate Districts, June 17, 2010 People v. Datt, No. H033079 Conviction and sentence of defendant for reckless evading, being under the influence of a controlled substance, resisting an officer, and other crimes, are affirmed where: 1) trial court’s instruction regarding the lack of need for unanimity was not erroneous; and 2) defendant has not shown that his trial counsel was deficient in failing to present expert eyewitness identification testimony.