Findlaw Summaries: Criminal Law and Procedure October 20-24, 2008

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U.S. 1st Circuit Court of Appeals, October 22, 2008 US v. Boskic, No. 071188 Conviction of Bosnian citizen-defendant for two counts of making false statements in his applications for refugee status and permanent residency in the U.S. is affirmed over claims of error that: 1) the district court should have granted defendant’s motion to suppress statements made during an interview with government agents because those statements were secured in violation of his Fifth and Sixth Amendment rights; and 2) the court should have granted his motion for judgment of acquittal because the evidence was insufficient to support a finding of falsity in his two statements.

U.S. 1st Circuit Court of Appeals, October 22, 2008 US v. Anthony, No. 071670 Conviction and sentence for evading federal income tax are affirmed over claims of error that: 1) the district court’s willful blindness instruction was erroneous; and 2) the district court abused its discretion when it refused to admit into evidence legal materials on which defendant claimed to have relied in forming his good-faith belief that he did not have a duty to pay taxes.

U.S. 1st Circuit Court of Appeals, October 24, 2008 US v. Grullon, No. 071982 Conviction for conspiring to distribute cocaine is affirmed over claims of error that: 1) defendant’s motion for judgment of acquittal should have been granted because the evidence against him was insufficient; 2) a drug sale was not probative of the charged conspiracy and should not have been allowed in evidence; and 3) the district judge should have declared a mistrial because certain “extraneous” material, i.e., a joke printed from a website making fun of the legal profession, was found in the jury room after a verdict was returned.

U.S. 2nd Circuit Court of Appeals, October 20, 2008 US v. Gomez, No. 050236, 051113 Conviction for conspiracy to import ecstasy, importing ecstasy, conspiracy to distribute and possess with intent to distribute ecstasy, and possession with intent to distribute ecstasy is reversed and remanded where the evidence was insufficient to demonstrate the specific intent element of each of the offenses.

U.S. 2nd Circuit Court of Appeals, October 22, 2008 US v. Kapelioujnvy, No. 073353 Conviction for conspiracy to sell stolen property is reversed where: 1) the government failed to prove that the defendant believed that the stolen property was worth at least five thousand dollars; and 2) the government failed to prove the defendant was involved in a conspiracy involving goods that moved in interstate commerce.

U.S. 2nd Circuit Court of Appeals, October 23, 2008 US v. Oberoi, No. 044545 Conviction for mail fraud and health care fraud is affirmed over claims of error that defendant was denied a speedy trial in violation of the Speedy Trial Act on the grounds that: 1) the pre-indictment delay exceeded 30 days; and 2) the pretrial delay exceeded 70 days.

U.S. 5th Circuit Court of Appeals, October 21, 2008 US v. Gomez-Gomez, No. 05-41461 Sentence for illegally reentering the United States is affirmed by the court sitting en banc, where a prior sex offense committed using constructive, i.e. nonphysical, force qualified as a “forcible sex offense” for sentence-enhancement purposes.

U.S. 6th Circuit Court of Appeals, October 21, 2008 Franklin v. Bradshaw, No. 07-3497 Dismissal of a petition for writ of habeas corpus challenging convictions for murder and felonious assault, with firearm specifications, is affirmed where the district court correctly found that a state court’s rejection of a claim that petitioner’s post-arrest silence was improperly used against him at trial was not an unreasonable application of Supreme Court precedent. ..

U.S. 6th Circuit Court of Appeals, October 21, 2008 US v. Pruitt, No. 06-6002 Given the particular characteristics of North Carolina sentencing law, in light of recent United States Supreme Court precedent, in determining whether to apply the career offender provision of the United States Sentencing Guidelines, a federal court must take into account the defendant’s state criminal history (or lack thereof) at the time of his predicate North Carolina convictions.

U.S. 6th Circuit Court of Appeals, October 24, 2008 US v. Kuehne, No. 06-3668 A conviction for drug- and firearm-related offenses is affirmed where: 1) a claim that venue was improper in the Southern District of Ohio was without merit; 2) defendant’s bartering of firearms for drugs constituted “use” of a firearm within the meaning of 18 U.S.C. section 924(c)(1); 3) although the district court erred in its instructions to the jury regarding the burden of proof necessary to support a conviction for section 924(c), the error was harmless; 4) no constructive amendment or variance of the indictment occurred; 5) defendant did not demonstrate error regarding a prosecutor’s conduct during his trial; 6) a pro se motion for judgment of acquittal or a new trial was properly denied; 7) a claim regarding inaccuracies or alterations of the transcripts of proceedings was meritless; 8) police did not engage in improper interrogation tactics by jointly interviewing two co-conspirators; 9) the district court properly made findings regarding motion to suppress; 10) sent! encing facts were properly submitted to the jury; 11) the indictment was sufficient, as was the evidence supporting various counts; 12) a Brady claim was meritless; and 13) there was no plain error as to jury instructions regarding “Conspiracy” and “aiding and abetting”.

U.S. 8th Circuit Court of Appeals, October 20, 2008 US v. Pierson, No. 08-1335 A conviction and sentence for attempted production of child pornography and attempting to induce a child to engage in criminal sexual activities is affirmed where: 1) sufficient evidence supported the convictions; 2) there was no abuse of discretion in permitting the government to cross examine defendant at trial about his prior 20-year old conviction for indecent contact with a child; and 3) defendant’s prior conviction was a qualifying predicate offense for the purpose of applying both a U.S.S.G. section 4B1.5 enhancement for repeat and dangerous offenders, and the mandatory minimum sentence required under 18 U.S.C. section 2251(e) for offenders with a qualifying prior conviction under state law.

U.S. 8th Circuit Court of Appeals, October 22, 2008 US v. Foxx, No. 07-3928, 08-1009, 08-1010 In a case involving a conspiracy to distribute large quantities of marijuana in and around Springfield, Missouri, defendants’ convictions and sentences are affirmed where: 1) the evidence implicating one defendant in the conspiracy to distribute 1,000 or more kilograms of marijuana was overwhelming; and 2) although two other defendants played lesser roles in the conspiracy, the evidence clearly implicated them and provided a basis for a reasonable jury to conclude they could have reasonably foreseen that the conspiracy involved 1,000 kilograms or more of marijuana.

U.S. 8th Circuit Court of Appeals, October 24, 2008 Ausler v. US, No. 07-2709 Denial of a motion for post-conviction relief under 28 U.S.C. section 2255 from a conviction and sentence for possession with intent to distribute controlled substances is affirmed over claims of error regarding whether: 1) defendant was denied conflict-free counsel; and 2) Booker applies retroactively to cases on collateral review.

U.S. 9th Circuit Court of Appeals, October 20, 2008 US v. Schales, No. 07-10288 A child pornography case is remanded to the district court with order to vacate either the conviction for receiving child pornography in violations of 18 U.S.C. section 2252(a)(2), or the conviction for possessing child pornography in violation of 18 U.S.C. section 2252(a)(4)(B), due to violation of the Double Jeopardy Clause where: 1) possession of child pornography is a lesser included offense within receipt of child pornography; and 2) convictions on the two counts were based on the same conduct.

U.S. 9th Circuit Court of Appeals, October 20, 2008 Estrada-Espinoza v. Mukasey, No. 05-75850 In an immigration case challenging removal based on statutory rape convictions, petition for review is granted where: 1) federally defined “sexual abuse of a minor” within the meaning of 8 U.S.C. section 1101(a)(43) requires a knowing sexual act with someone between 12 and 16 years old and at least 4 years younger than the perpetrator; 2) the California statutes under which petitioner was convicted set the age of consent at 18 and minimum age difference at 3 years; 3) there were no allegations of abuse or violence; and 4) petitioner and the victim cohabitated with permission of both sets of parents and raised a child together.

U.S. 9th Circuit Court of Appeals, October 21, 2008 US v. McTiernan, No. 07-50430 In a case involving an alleged former client of notorius Hollywood private investigator Anthony Pellicano, conviction for making a false statement to an FBI agent is vacated and the case remanded where: 1) a defendant can show fair and just reason to allow withdrawal of a guilty plea by showing that proper legal advice on the suppressibility of evidence could plausibly have motivated a reasonable person not to have pled guilty; 2) defendant’s plea was elicited by a recording previously made by Pellicano which contradicted defendant’s statements to the FBI; and 3) recordings made with the intent to violate state or federal law are suppressible under 18 U.S.C. section 2511.

U.S. 9th Circuit Court of Appeals, October 23, 2008 US v. Seljan, No. 05-50236 In a case regarding sexual exploitation of children in the Philippines, convictions are affirmed on counts of travel with intent to engage in illicit sexual conduct, use of an interstate facility to entice a minor to engage in sex acts, and production of child pornography where: 1) the search of defendant’s outgoing packages at a FedEx regional sort facility, from which all subsequent evidence derived, was the functional equivalent of a border search; 2) the search was also an authorized customs inspection under 31 U.S.C. section 5317(b); and 3) the search of defendant’s personal correspondence was not unduly intrusive in scope or manner.

U.S. 9th Circuit Court of Appeals, October 23, 2008 US v. Fiander, No. 07-30251 In a contraband cigarette trafficking case, dismissal of a conviction for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO) is reversed where: 1) under the Yakama Treaty of 1855 which secured Yakama tribe members the right to travel the public highways, Yakama members cannot be convicted for violating RICO or Washington state law forbidding traffic in contraband cigarettes; but 2) the government can state a claim against a Yakama member for violating RICO by alleging agreement to facilitate the underlying offense.

U.S. 9th Circuit Court of Appeals, October 23, 2008 Styers v. Schriro, No. 07-99003 In a death row inmate’s habeas corpus case, the district court’s denial of relief is vacated and reversed in part where the Arizona Supreme Court failed to properly review all aggravating and mitigating evidence required after finding one of the aggravating factors used in sentencing to be invalid.

U.S. 10th Circuit Court of Appeals, October 21, 2008 Weigel v. Broad, No. 05-8094, 05-8102 In an action against defendants-Wyoming highway patrol officers and their supervisor claiming failure to train and excessive force under 42 U.S.C. section 1983 and state negligence law, summary judgment for defendants on the section 1983 claims is reversed where defendants were not entitled to qualified immunity as: 1) there was evidence that for three minutes troopers subjected decedent to force that they knew was unnecessary to restrain him and that a reasonable officer would have known presented a significant danger of asphyxiation and death, constituting unreasonable use of force under the Fourth Amendment; and 2) the law they violated was clearly established at the time of the incident.

U.S. 10th Circuit Court of Appeals, October 21, 2008 US v. Martinez-Barragan, No. 06-2333 A sentence for illegal reentry by a deported alien after having been previously convicted of an aggravated felony is affirmed where: 1) claims that the sentence was procedurally unreasonable failed; and 2) under the circumstances, defendant failed to demonstrate that his criminal history and family circumstances, when viewed in light of 18 U.S.C. section 3553(a), rendered a bottom of the Guidelines sentence an abuse of discretion.

U.S. 11th Circuit Court of Appeals, October 23, 2008 US v. Thomas, No. 0811492 Sentence enhancement for possession with intent to distribute crack cocaine and being a felon in possession of a firearm is affirmed where: 1) the reduction of base offense levels in relation to crack cocaine quantities under U.S.S.G. section 2D1.1(c) had no effect on defendant’s sentencing range; and 2) as in the case of US v. Moore, defendant would have been subject to exactly the same guidelines range if the provisions of Amendment 706 had been in effect at the time he was originally sentenced because his sentence was based on the guidelines range applicable to armed career criminals under U.S.S.G. section 4B1.4.

New York Court of Appeals, October 21, 2008 People v. Lucas, No. 148 Conviction for first-degree murder is affirmed over a claim that the indictment was legally insufficient because it “double-counted” the death of the victim by asserting that defendant had killed him in the course of committing a first-degree kidnapping
New York Court of Appeals, October 23, 2008 People v. Jenkins, No. 161 In a prosecution for criminal sale of a controlled substance, NY Supreme Court was not compelled to grant defendant specific performance of a plea agreement providing for dismissal of an indictment upon his alleged successful completion of a drug treatment program.

California Appellate Districts, October 20, 2008 Sabatasso v. Superior Court of Orange County, No. G039906 Petition for writ of mandate to recover release allowance provided for by Penal Code section 2713.1 is granted where state code which would prohibit payment of the $200 allowance owed to a prisoner upon release is void to the extent it bans payment to parolees held or detained by local law enforcement for initiation of proceedings as a sexually violent predator under the Welfare and Institutions Code section 6600 (SVPA).

California Appellate Districts, October 21, 2008 In re N.D. , No. F053397 Juvenile petitioner’s commitment to Division of Juvenile Facilities (DJF) for a maximum period of confinement for burglary and battery is affirmed where: 1) amendments to Welfare and Institutions Code sections 731 and 733 did not apply to a disposition that occurred before September 1, 2007; 2) the common-law rule requiring application of statutes that mitigate punishment to all cases not yet final on their effective dates was inapplicable; 3) the amendments did not mitigate punishment but only limited the places in which a ward could be defined; and 4) since the juvenile court committed minor-defendant to the DJF before September 1, 2007, he was not entitled to reversal of the commitment.

California Appellate Districts, October 21, 2008 People v. Bartsch, No. A120182 Denial of defendant’s petition for restoration to sanity pursuant to Penal Code section 102562.2 is affirmed where: 1) the court did not abuse its discretion when it denied the petition; and 2) defendant failed to establish his eligibility for transfer to outpatient status.

California Appellate Districts, October 21, 2008 D’Amato v. Superior Court of Orange County, No. G037836 Petition for writ of prohibition barring district attorney from prosecuting criminal action against petitioner is granted where: 1) a substantial portion of the indictment’s allegations challenged acts petitioner undertook in support of legislative activity; 2) because the legislature did not intend to criminalize legislative acts taken by public officials who hold no personal financial interest in a contract made in violation of section 1090, petitioner’s legislative activity may not serve as a basis for the indictment; and 3) the remainder of the indictment’s allegations lacked the requisite supporting evidence.

California Appellate Districts, October 22, 2008 El Dorado County Dept. of Child Support Svcs. v. Nutt, No. C056534 Judgment finding that incarcerated defendant owed a duty of child support is affirmed where: 1) it is not impossible that defendant will have the ability or opportunity in the future to generate an income with which he may provide some support or health insurance for his child; and 2) the court did not err in finding that he had an obligation to do so, even if that obligation could not presently be satisfied.

California Appellate Districts, October 22, 2008 People v. Williams , No. F052218 Conviction for murder involving the personal use of a deadly weapon and committed by an active participant in a criminal street gang to further the activities of that gang, as well as active participation in a criminal street gang, is affirmed in part and reversed in part where: 1) something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang; and 2) only the Small Town Peckerwoods, and not some larger Peckerwood group, may be considered in assessing appellant’s claims of evidentiary insufficiency.

California Appellate Districts, October 23, 2008 People v. Caesar, No. D050387 Conviction and sentence for one count of second degree murder, one count of premeditated attempted murder, and three counts of unpremeditated attempted murder is affirmed in part and reversed in part where: 1) defendant’s conviction on count 2 must be reduced to attempted unpremeditated murder; and 2) the trial court did not err in imposing consecutive sentences on co-defendants. .

California Appellate Districts, October 23, 2008 People v. Slattery, No. C055413 Sentence of time in state prison and payment of restitution to the hospital that treated defendant’s mother, for elder abuse, is stricken where the hospital is not a direct victim of the offense, as required by section 1202.4(k)(2).

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