Crminal Law and Procedure: Case Summaries Update for September 25, 2008

Source: Pace and Schmidt

For personal use only. Not for commercial distribution.,

[09/25] US v. Kerley
Conviction for failure to pay a child support obligation is vacated and remanded where: 1) the district court did not err in its rulings as to the good faith defense; 2) the rule of lenity required the court to vacate the conviction on the second count of the offense; and 3) although the district court correctly applied the loss amount and obstruction of justice enhancements under the Sentencing Guidelines, the court erred in concluding that the vulnerable victim enhancement was applicable.

[09/25] Gertsenshteyn v. Mukasey
Petition for review of decision ordering Ukranian citizen-petitioner to be removed for conviction of an aggravated felony is granted and the Board of Immigration Appeals (BIA) decision is vacated and remanded where: 1) the BIA decision departed, with insufficient reason, from the legal framework that the court has long used to decide whether an alien charged with removability under 8 U.S.C. section 1227(a)(2)(A)(iii) has been convicted of an aggravated felony; and 2) it was unclear what result the BIA would reach under the proper framework.

[09/25] US v. Triumph Capital Group, Inc.
Conviction and sentence for charges related to racketeering and obstruction of justice are affirmed in part, reversed in part, and remanded where: 1) the evidence was sufficient to sustain the jury’s verdicts; 2) the racketeering, racketeering conspiracy, bribery, and wire fraud counts were reversed on the grounds that the government suppressed material exculpatory and impeaching evidence; 3) the court properly instructed the jury on the obstruction of justice charge; and 4) because the court cannot be certain that the 36-month concurrent sentence on Count 24 was not affected by the convictions that were reversed, the sentence on Count 24 is vacated and remanded.

[09/25] US v. Falso
Conviction for crimes relating to child pornography and traveling with the intent to engage in illicit sexual conduct with minors is affirmed where: 1) though the district court’s finding of probable cause was not supported by a substantial basis, the district court nevertheless properly denied defendant’s motion to suppress physical evidence seized from his home under the good-faith exception to the exclusionary rule; 2) the district court was not knowingly or recklessly misled; and 3) the affidavit was not “so lacking in indicia of probable cause”.

[09/25] US v. Douglas
Sentence of seventeen and twenty-seven months imprisonment for conspiring to distribute and possess with intent to distribute marijuana, and possession with intent to distribute marijuana within one thousand feet of a public elementary school is affirmed where: 1) section 860(a) applies to a defendant who possesses a controlled substance within one thousand feet of a public school with the intent to distribute that controlled substance regardless of whether the defendant specifically intended that the distribution be within a one-thousand-foot radius of a school; 2) schoolyard statute in its present form remains a strict liability offense for which a defendant may be convicted regardless of his knowledge of the proximity of a school; and 3) the district court properly instructed the jury in this case.

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