Articles Posted in Criminal Law and Justice

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June 21-25, 2010.

U.S. Supreme Court, June 21, 2010 Holder v. Humanitarian Law Project, No. 08–1498 In a constitutional challenge to 18 U.S.C. section 2339B(a)(1), which prohibited knowingly providing material support or resources to a foreign terrorist organization, the Ninth Circuit’s affirmance of partial judgment for plaintiffs is reversed in part where the material support statute was constitutional as applied to the particular forms of support that plaintiffs sought to provide to foreign terrorist organizations. .

U.S. Supreme Court, June 24, 2010 Skilling v. US, No. 08–1394 The Fifth Circuit’s affirmance of defendant Jeffrey Skilling’s honest-services fraud conviction is affirmed in part where pretrial publicity and community prejudice did not prevent Skilling from obtaining a fair trial, and he did not establish that a presumption of juror prejudice arose or that actual bias infected the jury that tried him. However, the judgment is vacated in part where 18 U.S.C. section 1346, which proscribes fraudulent deprivations of “the intangible right of honest services,” was properly confined to cover only bribery and kickback schemes, and Skilling’s alleged misconduct entailed no bribe or kickback. .

U.S. Supreme Court, June 24, 2010 Black v. US, No. 08–876 The Seventh Circuit’s affirmance of defendants’ honest-services mail fraud convictions is vacated where: 1) per the ruling today in Skilling v. US, the honest-services component of the federal mail-fraud statute, 18 U.S.C. section 1346, criminalizes only schemes to defraud that involved bribes or kickbacks, and that holding renders the honest-services instructions given in this case incorrect; and 2) by properly objecting to the honest-services jury instructions at trial, defendants secured their right to challenge those instructions on appeal, and they did not forfeit that right by declining to acquiesce in the government-proposed special-verdict forms. Read more…
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Supreme Court Case Summaries: Professor Rory Little’s Perspective
A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

These summaries are written by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. They represent his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to members, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” — that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S.. Supreme Court Summaries – Criminal Cases June 24, 2010
Mail/Wire Fraud and “Honest Services” – Three cases:

Skilling v. United States, http://www.supremecourt.gov/opinions/09pdf/08-1394.pdf

Black v. United States, http://www.supremecourt.gov/opinions/09pdf/08-876.pdf

Weyhrauch v. United Sates, http://www.supremecourt.gov/opinions/09pdf/08-876.pdf

On June 24, the Court issued its long-awaited opinions in the trio of “honest services” mail and wire fraud cases. The Court (6-3) upheld the “honest services” statute, but limited it to schemes of “bribery and kickbacks.” Interestingly, in the lead case of former Enron CEO Jeff Skilling, the Court’s major effort was spent not on mail fraud, but on the pretrial-publicity juror bias claims that Skilling presented, and the Skilling opinion will stand more as a major decision in that constitutional area than on the statutory definition (which is changeable by Congress) of mail fraud. Each holding (due process and mail fraud) was a 6-3 vote, but different Justices were the dissenters on each. And, perhaps significantly or perhaps not, this is the first decision in which the two women on the Court disagreed in written opinions, Justice Ginsburg writing the majority and Justice Sotomayor dissenting on the due process-fair trial ruling.

The various Skilling opinions consume 114 pages. The Court also eclipses what probably was not a record of three days ago (the six-page syllabus in Humanitarian Law Prroject) with a nine-page syllabus here. Yes, there are a lot of pages here, but nine pages for an allegedly accessible “summary” of the opinion is, for the Court, pretty silly.

In Black, the Court applied its Skilling mail fraud ruling to hold that Conrad Black’s jury instructions were erroneous, and remanded for a harmless-error analysis (as it did in Skilling). The Court also reversed the Seventh Circuit’s ruling that Black had forfeited his jury instruction challenge by opposing the government’s more-precise special verdict form, and provides an important discourse on courts of appeal imposing sanctions that the Federal Rules of Criminal Procedure don’t specify, without notice.

Finally, in one sentence the Court simply vacated the Ninth Circuit’s ruling in Weyhrauch and remanded for further proceedings in light of Skilling.

Summaries of the various Justices’ opinions follow.
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To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw
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 Continue reading

Apparently prosecutors in Queens County New York think so. This month Queens prosecutors have charged two women with stealing more than $30,000 from three elderly men they had befriended separately. The women were charged with grand larceny as a hate crime.

This strategy of treating some hate crimes as larcenous behavior is considered a novel approach. Indeed Kathleen Hogan, president of the New York State District Attorneys Association and Scott Burns, executive director of the National District Attorneys’ Association have both said they had not heard of another jurisdiction using this Queens County approach to hate crimes.

According to a New York Times article by Anne Barnard, A Novel Twist for Prosecution of Hate Crimes, “the legal thinking behind the novel method is that New York’s hate crime statute does not require prosecutors to prove defendants ‘hate’ the group the victim belongs to, that they commit the crime because of some belief, correct or not, they hold about the group.”

Holder (Attorney General) v. Humanitarian Law Project et. al. 08-1498

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

This summary has been created by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

NOTE: This posting includes Professor Little’s perspective on City of Ontario v. Quon, the cfase whch includes interesting discussion about whether public employees have a reasonable expectation of privacy regarding text messages went on government owned equipment during working hours.

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

This summary has been created by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

On October 1, 2009 I posted an appalant brief for U.S.A v. Justin K. Dorvee on this blog. The Brief was prepared by Paul F. Angioletti, attorney for the defendant-appellant.

Mr. Angioletti has now informed me that the Court of Appeals Second Circuit issued an opinion on the Dorvee appeal on May 11, 2010. In this posting we are including a paragraph from the Second Circuit decision which summarizes the conclusion that the sentence imposed on Dorvee by the District Court was “substantively unreasonable”, therefore vacating the judgment and remanding the case to the District Court for resentencing.;

EXCERPT FROM OPINION:

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw
May 31 – June 4, 2010.

U.S. Supreme Court, June 01, 2010 Carr v. US, No. 08–1301 The Seventh Circuit’s affirmance of defendant’s conviction for failure to register as a sex offender in Indiana under the Sex Offender Registration and Notification Act is reversed where 18 U.S.C. section 2250 did not apply to sex offenders whose interstate travel occurred before SORNA’s effective date.

U.S. Supreme Court, June 01, 2010 Berghuis v. Thompkins, No. 08–1470 In a murder prosecution, the Sixth Circuit’s reversal of the district court’s denial of petitioner’s habeas petition is reversed where the state court’s decision rejecting petitioner’s Miranda claim was correct under de novo review and therefore necessarily reasonable under the Antiterrorism and Effective Death Penalty Act’s more deferential standard of review because petitioner’s silence during his interrogation did not invoke his right to remain silent.

U.S. 1st Circuit Court of Appeals, June 02, 2010 US v. Roa-Medina, No. 08-2490 District court’s denial of defendant’s motion to modify his sentence of 72-months for crack and other drug related offenses is affirmed where: 1) defendant was sentenced to a term of imprisonment that was “based on a sentencing range” of 120 months to 135 months, and his reduced sentence represented a 40% deviation from the bottom of that range; and 2) defendant’s sentencing range has not been “lowered” within the meaning of section 3582(c)(2).
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