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March 29, 2010 – April 2, 2010.
U.S. Supreme Court, March 30, 2010 Berghuis v. Smith, No. 08–1402 In habeas proceedings brought by an individual convicted of second degree murder by an all-white jury, the Sixth Circuit’s reversal of the denial of petitioner’s habeas petition is reversed where Duren v. Missouri, 439 U. S. 357 (1979), hardly established — much less “clearly” so — that petitioner was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community, because petitioner’s evidence gave the Michigan Supreme Court little reason to conclude that the county’s juror assignment order had any significant effect on the representation of African-Americans in the venire.
U.S. Supreme Court, March 31, 2010 Padilla v. Kentucky, No. 08–651 In postconviction proceedings arising from a drug distribution prosecution, after which petitioner faced deportation based on his guilty plea and claimed that his counsel failed to advise him of the consequences of the plea, denial of postconviction relief is reversed and remanded where, because counsel must inform a client whether his plea carries a risk of deportation, petitioner sufficiently alleged that his counsel was constitutionally deficient. ..
U.S. 1st Circuit Court of Appeals, April 01, 2010 US v. Charlton, No. 08-1797 Defendant’s conviction for being a felon in possession of a firearm and an enhanced sentence under the Armed Career Criminal Act are affirmed where: 1) defendant failed to establish that the government purposely discriminated against African-Americans in exercising its peremptory challenge against a juror and thus the district court committed no error – clear or plain – in permitting the government’s peremptory challenge against that prospective juror; and 2) the district court did not err in sentencing defendant as an armed career criminal. ..
U.S. 1st Circuit Court of Appeals, April 01, 2010 US v. Fernandez, No. 09-1058 In a prosecution of defendant for being a felon in possession of a firearm, district court’s denial of a motion to suppress a gun recovered from defendant following a traffic stop is affirmed as a police officer may request identifying information from passengers in a vehicle stopped for a traffic violation without particularized suspicion that the passengers pose a safety risk or are violating the law.
U.S. 2nd Circuit Court of Appeals, March 29, 2010 US v. Menendez, No. 08-2761 Defendant’s drug conspiracy sentence is affirmed where 1) the district court did not err in calculating the base offense level for defendant’s conviction in Count Two, conspiracy to launder money, by considering the amount of narcotics involved in his conviction for Count One, conspiracy to distribute heroin; and 2) the sentencing disparities between defendant and his co-defendants were not unwarranted in this case.
U.S. 2nd Circuit Court of Appeals, March 31, 2010 US v. Burden, No. 03-1727 Defendants’ convictions under the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Violent Crimes in Aid of Racketeering statute (VCAR) are affirmed where: 1) sufficient evidence existed to support the jury’s finding that the defendants’ organization constituted an enterprise for RICO purposes; 2) there was sufficient evidence that the predicate acts alleged in the racketeering counts formed a pattern of racketeering activity; and 3) the evidence supported a finding that the defendants engaged in violent acts because it was expected of them as a way of taking care of each other and as members of the organization. However, defendants’ sentences are remanded to give the district court an opportunity to indicate whether it would have imposed a non-Guidelines sentence knowing that it had discretion to deviate from the Guidelines. .
U.S. 2nd Circuit Court of Appeals, March 31, 2010 Besser v. Walsh, No. 05-4375 In habeas petitions filed by multiple petitioners sentenced under New York’s persistent offender statute, the orders granting the petitions are affirmed and the orders denying the petitions are vacated where the New York courts’ upholding of the constitutionality of the New York state persistent felony offender statute after the U.S. Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law. However, as to one petitioner whose conviction became final before Blakely, the denial of the petition is affirmed. .
U.S. 2nd Circuit Court of Appeals, April 02, 2010 US v. Kyles, No. 06-4196 In defendant’s appeal from a district court’s orders amending his restitution schedule while he was incarcerated, the orders are affirmed in part where, although the Victim and Witness Protection Act did not expressly confer such authority, it inhered in the authority that statute conferred on district courts to permit an award of restitution to be paid in periodic installments, rather than immediately. However, the orders are vacated in part insofar as they provided for increases in defendant’s restitution schedule in accordance with the Inmate Financial Responsibility Program, because that was an impermissible delegation of judicial power to the Bureau of Prisons. .
U.S. 2nd Circuit Court of Appeals, April 02, 2010 Ramchair v. Conway, No. 08-2004 In the state’s appeal from a district court’s order granting a writ of habeas corpus to petitioner on the ground of ineffective assistance of state appellate counsel, and ordering a new trial, the order is affirmed where appellate counsel’s failure to raise petitioner’s mistrial claim was not a sound strategic decision, but a mistake based on counsel’s misunderstanding that the mistrial claim, which trial counsel explicitly made, had not been preserved. Read more…
U.S. 3rd Circuit Court of Appeals, March 29, 2010 Harshbarger v. Regan, No. 09-2243 In extradition proceedings of defendant for causing the death of her husband in the Canadian wilderness, district court’s denial of defendant’s petition for a writ of habeas corpus is affirmed as defendant’s argument that hearsay evidence was insufficient to support extradition is rejected as the federal statute that governs extradition proceedings explicitly allows for the use of hearsay at an extradition hearing. .
U.S. 4th Circuit Court of Appeals, April 01, 2010 US v. Johnson , No. 08-4042 District court’s conviction of defendant for various drug and firearm offenses is affirmed where: 1) the officer did not violate defendant’s Fourth Amendment rights by requiring him to open his hands in the brief period before he attempted to arrest defendant, and thus the evidence concerning the gelcap that defendant threw during that period was not subject to suppression; 2) since the arrest did not violate the Fourth Amendment, the district court was correct in in allowing evidence of money found on defendant obtained as a result; 3) district court did not err in refusing to suppress evidence concerning the drugs, drug paraphernalia, and handgun discovered in the car; and 4) defendant’s remaining claims of insufficient evidence to support his conviction and Sixth Amendment challenge to his sentence enhancement are rejected. .
U.S. 4th Circuit Court of Appeals, April 01, 2010 US v. Carter , No. 09-4451 In a prosecution of a defendant for possession with intent to distribute cocaine base, district court’s imposition of an enhanced sentence under guidelines section 3C1.2 is affirmed where the district court did not clearly err in applying the reckless endangerment enhancement to defendant’s sentence, as it is appropriate when a defendant, during flight from the police, enters the residence of another person without that person’s permission, regardless of whether that other person in present in the residence at time of the entry.
U.S. 4th Circuit Court of Appeals, April 02, 2010 US v. Centra Bank, Inc. , No. 08-5172 District court’s denial of government’s request for the forfeiture of $358,390.22 in criminal proceeds from the owner of a motel and participant in a conspiracy to violate the anti-prostitution provisions of the Mann Act is reversed and remanded as, although the forfeiture of criminal proceeds is punitive and thus subject to scrutiny under the Eight Amendment’s Excessive Fines Clause, because the defendant’s offense was serious and its individual culpability significant, it cannot meet its burden of showing that the forfeiture in this case would be “grossly disproportional” to the gravity of the offense. .
U.S. 5th Circuit Court of Appeals, March 29, 2010 US v. Montes, No. 08-10932 Defendants’ bank robbery convictions and sentences are affirmed where: 1) because defendant did not clearly invoke his right to counsel, as required, his post-arrest statements made after his ambiguous request for an attorney were admissible; 2) the district court’s jury instructions correctly stated the law and simply instructed the jury to convict on each and every firearm count that it found defendant guilty of in the corresponding odd-numbered bank robbery count; 3) the evidence presented by the government was more than ample to establish defendant’s identity as the culprit and therefore sufficient to sustain the verdict; and 4) the district court had no authority to impose a sentence below the statutory minimum on defendant’s 18 U.S.C. section 924(c) convictions.
U.S. 5th Circuit Court of Appeals, April 01, 2010 US v. Alexander, No. 09-50200 Defendant’s drug possession sentence is affirmed where: 1) obstruction of a state investigation based on the same facts as the eventual federal conviction qualifies for enhancement even if the obstructive conduct occurred before federal authorities commenced their investigation; and 2) defendant’s direction to hide the firearms was sufficiently related to his offense of conviction, possession of cocaine base.
U.S. 6th Circuit Court of Appeals, March 29, 2010 Girts v. Yanai, No. 08-4592 In a prosecution of defendant for the murder of his wife, district court’s decision to grant an unconditional writ but not to bar retrial following two overturned convictions is affirmed where: 1) a district court sitting in habeas has jurisdiction to consider the circumstances that exist up until either the state complies with a conditional writ of the court issues an unconditional writ, but does not have jurisdiction to consider circumstances that unfold after the state complies with the writ; 2) the failure to try defendant within 180-day conditional grant does not rise to the level of “extraordinary circumstances” as the conditional writ clearly provides that the government could either retry or release defendant and he was released once the district court determined that the government was out of time; and 3) defendant’s remaining claims of constitutional violations are rejected.
U.S. 6th Circuit Court of Appeals, March 31, 2010 Sneed v. Johnson, No. 07-3349 District court’s denial of a death-row inmate’s petition for a writ of habeas corpus is affirmed where: 1) applying AEDPA deference, defendant has failed to demonstrate that the state court’s application of Strickland was objectionably unreasonable; 2) defendant may be correct on his assertion that the district court got the insanity-defense standard wrong, but his claim is nonetheless meritless because he is wholly unable to prove prejudice; and 3) jury instructions with respect to the “principal offender” did not make the trial fundamentally unfair.
U.S. 6th Circuit Court of Appeals, March 31, 2010 US v. Mardis, No. 09-5696 In a federal indictment of a defendant for civil rights murder of an enforcement officer and related offenses, district court’s denial of a motion to dismiss is affirmed where: 1) the facts of this case do not rise to the level of a “sham prosecution” so as to qualify for the exemption to the dual sovereignty doctrine; and 2) defendant’s argument that the dual sovereignty doctrine is against public policy is rejected.
U.S. 7th Circuit Court of Appeals, March 29, 2010 Santiago v. Walls, No. 07-1219 In a pro se action under 42 U.S.C. section 1983 against certain officers and employees of the Illinois correctional department alleging that they had violated plaintiff’s constitutional rights by failing to protect him from other inmates, failing to provide him with medical care and retaliating against him for speaking out against the department, dismissal and other rulings against plaintiff are affirmed in part, but reversed in part where the district court erred in dismissing one count of plaintiff’s complaint and abused its discretion by not recruiting counsel for plaintiff during discovery.
U.S. 7th Circuit Court of Appeals, March 30, 2010 Sandra T.E. v. S. Berwyn Sch. Dist. 100, No. 08-3344 In a law firm’s appeal from the district court’s order requiring it to produce documents it created in an internal investigation of a school district, the order is reversed where: 1) factual investigations performed by attorneys as attorneys fell comfortably within the protection of the attorney-client privilege; and 2) the work-product doctrine also protected the materials at issue from disclosure; and 3) to the extent some of the witnesses interviewed by the attorneys were not district employees, this was an independent rather than a duplicate source of protection.
U.S. 7th Circuit Court of Appeals, March 30, 2010 US v. Simmons, No. 08-3603 Defendant’s bank robbery conviction is affirmed where any possible error in admitting gloves and photos related to the robbery was harmless given the defendant’s own testimony, and the fact that the government’s evidence challenged by defendant merely supported defendant’s own theory of the case.
U.S. 7th Circuit Court of Appeals, March 30, 2010 Brown v. Chicago, No. 08-4265 In a 42 U.S.C. section 1983 action claiming that an officer used excessive force, summary judgment for defendant is affirmed where, because plaintiff had been convicted of aggravated assault, aggravated unlawful use of a weapon, and unlawful possession of a weapon by a felon based on his encounter with defendant-officer, plaintiff’s suit was barred by collateral estoppel.
U.S. 7th Circuit Court of Appeals, March 31, 2010 US v. Krumwiede, No. 08-4081 District court’s imposition of a 140-month sentence for stealing thirty-four firearms from a federally licensed firearms dealer and possessing a firearm by a convicted felon is affirmed as the district court committed no error by applying the four-level enhancement provided in section 2K2.1(b)(6) as, under the Application Note 14(B), section 2K2.1(b)(6) applies when a defendant during the course of a burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with that firearm.
U.S. 7th Circuit Court of Appeals, March 31, 2010 Wrightsell v. Cook County, No. 09-2634 In a former inmate’s 42 U.S.C. section 1983 suit against a county claiming that the failure to make more than a single dentist available to the jail’s 10,000 inmates was cruel and unusual punishment in violation of the Eight Amendment, defendant’s appeal from the district court’s denial of class certification is dismissed and another former inmate’s petition to intervene is denied where the plaintiff has no personal stake in having the class certified as he has settled his claim and has gotten all the relief that he sought, and the other plaintiff failed to ask the district court for permission to intervene in the case within the statutory deadline for filing a notice of appeal.
U.S. 7th Circuit Court of Appeals, April 01, 2010 US v. Jumah , No. 08-1931 Conviction of a defendant for knowing possession of a listed chemical, knowing or having reasonable cause to believe, that the chemical would be used to manufacture a controlled substance and a 151-month sentence is affirmed in part where defendant’s assertions of Brady and Giglio violations are unsupported. However the matter is reversed and remanded in part for resentencing to recalculate the guidelines based on the weight of the pure drugs within the pseudoephedrine tablets and for imposition of an appropriate sentence. .
U.S. 7th Circuit Court of Appeals, April 01, 2010 Ray v. Boatwright , No. 08-2825 District court’s denial of defendant’s petition for habeas relief is reversed as it was error for the trial court to admit co-actors’ statements through a police detective’s testimony at trial in violation of defendant’s right of confrontation. .
U.S. 7th Circuit Court of Appeals, April 02, 2010 Holmes v. Levenhagen, No. 04-3549 District court’s determination that a death-row inmate is competent to participate in the habeas proceeding is reversed and remanded with instructions to suspend the habeas corpus proceeding unless and until the state provides substantial evidence that defendant’s psychiatric illness has abated, or its symptoms are sufficiently controlled, to justify the resumption of the proceeding.
U.S. 7th Circuit Court of Appeals, April 02, 2010 US v. Doody, No. 09-3078 Conviction of defendant for possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. section 924(c), is affirmed as defendant’s argument that his conduct did not violate section 924(c) because he did not possess the firearm for protection, but rather as collateral to secure a drug debt, is rejected because defendant took possession of a firearm in manner that facilitated a drug transaction.
U.S. 8th Circuit Court of Appeals, March 29, 2010 US v. Ward, No. 09-1882 Defendant’s child pornography conviction is reversed where the district court excluded defendant from trial in violation of the Sixth Amendment, because a trial judge may control disruptive talking during a trial, but an absolute ban on the defendant talking to counsel was, in some circumstances, a violation of the defendant’s right to counsel.
U.S. 8th Circuit Court of Appeals, March 30, 2010 US v. Fenner, No. 08-3953 Defendants’ drug conspiracy convictions and sentences are affirmed where: 1) even if prosecutorial misconduct occurred at the grand jury hearing, it was well-established that a petit jury’s guilty verdict normally rendered errors in the grand jury proceedings harmless; 2) defendant was not prejudiced by the use of leading questions; 3) the court could not detect from the record an attempt to confuse the jury or a corresponding need to supply answers to faltering witnesses; 4) the mandatory minimums in 18 U.S.C. section 841(b)(1)(A) do not violate equal protection; and 5) although the sex-offender treatment imposed as part of defendant’s sentence did not relate to the drug offenses, it did relate to another offense the defendant previously committed.
U.S. 8th Circuit Court of Appeals, March 31, 2010 US v. Boesen, No. 08-3842 Defendant’s health care fraud convictions are affirmed where defendant’s Rule 33 motion for a new trial was untimely because defendant did not file a Rule 33 motion within seven days after the verdict, and did not ask the district court for an alternative determination about a new trial.
U.S. 8th Circuit Court of Appeals, April 01, 2010 Sinisterra v. US, No. 08-1925 In a capital murder prosecution, a denial of defendant’s motion to vacate, set aside, or correct his sentence under 28 U.S.C. section 2255 is affirmed in part where: 1) the prosecutor’s closing remarks did not have the effect of diverting the jury from its role in weighing defendant’s mitigation evidence; and 2) defendant failed to show that, had counsel objected to improper statements by the prosecutor, he would not have received the death sentence. However, the order is reversed in part where the record did not conclusively show that defendant’s attorneys acted within the range of competence demanded of attorneys in criminal cases.
U.S. 8th Circuit Court of Appeals, April 02, 2010 US v. Nguyen, No. 08-3791 Defendants’ drug conspiracy convictions and sentences are affirmed where: 1) defendants’ plea agreement only permitted him to appeal an “unconstitutionally defective sentence,” and defendant did not appeal on those grounds; 2) the government presented sufficient evidence to show that defendant knowingly participated in a marijuana conspiracy; and 3) the district court erred when it instructed the jury that conspiracy may constitute a predicate offense for a continuing criminal enterprise (CCE). However, the district court’s forfeiture order is reversed in part where there was no sufficient facilitation nexus between defendant’s car and the CCE.
U.S. 8th Circuit Court of Appeals, April 02, 2010 US v. Burtton, No. 09-1380 Defendant’s drug possession conviction is affirmed where defendant’s commission of the “infraction” of possessing an open alcohol container in the presence of officers supplied the officers with probable cause to arrest defendant under the Fourth Amendment.
U.S. 8th Circuit Court of Appeals, April 02, 2010 US v. Rutherford, No. 09-1421 Defendant’s sentence for using interstate communications to transmit a threat is affirmed where: 1) U.S.S.G. section 5G1.2 was not controlling, but advisory, and the district court had discretion to impose either consecutive or concurrent sentences under 18 U.S.C. section 3584; and 2) the district court properly considered the 18 U.S.C. section 3553(a) factors and, given the evidence, the district court’s imposition of consecutive sentences was not an abuse of discretion.
U.S. 8th Circuit Court of Appeals, April 02, 2010 US v. Small, No. 09-2769 Defendant’s armed bank robbery sentence is affirmed where: 1) defendant’s flight from a law enforcement officer that recklessly created a substantial risk of death or serious bodily injury to other persons justified a sentencing enhancement; and 2) the district court’s denial of a downward departure was not reviewable. ..
U.S. 9th Circuit Court of Appeals, March 29, 2010 Ledezma-Garcia v. Holder, No. 03-73648 In a petition for review of the BIA’s order removing petitioner from the U.S. based on his commission of an aggravated felony of sexually molesting a minor, the petition is granted where: 1) the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18, 1988; and 2) neither Congress’s overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation.
U.S. 9th Circuit Court of Appeals, March 30, 2010 Thompson v. Frank, No. 08-16982 In the state’s appeal from a district court’s order staying a habeas petition filed by a Hawaii state prisoner, the appeal is dismissed where, because a district court’s conclusion about whether a habeas claim had been exhausted was addressable on appeal after final judgment, the requirements of the collateral order doctrine were not satisfied.
U.S. 9th Circuit Court of Appeals, March 31, 2010 Guerrero-Silva v. Holder, No. 05-77420 In a petition for review of the BIA’s order removing petitioner from the U.S., the petition is dismissed where petitioner’s drug conviction under California Health and Safety Code section 11361(b) qualified as a controlled substance offense under 8 U.S.C. section 1227(a)(2)(B)(i).
U.S. 9th Circuit Court of Appeals, March 31, 2010 National Meat Ass’n. v. Brown, No. 09-15483 In the State of California’s appeal from a preliminary injunction prohibiting the enforcement of California Penal Code section 599f, which banned the slaughter and inhumane handling of nonambulatory animals, against federally regulated swine slaughterhouses, the injunction is vacated where: 1) 21 U.S.C. section 678 preempted state regulation of the “premises, facilities and operations” of slaughterhouses, but section 599f dealt with none of these; 2) it was not physically impossible to comply with both section 599f and the Federal Meat Inspection Act; and 3) plaintiff failed to show a likelihood of irreparable injury or that the balance of the equities and the public interest tipped in its favor as to section 599f(e)’s humane handling provision.
U.S. 10th Circuit Court of Appeals, March 29, 2010 US v. Ferrel, No. 09-1002 Defendant’s drug conspiracy conviction and sentence are affirmed where: 1) nothing in the record indicated that defendant would not have pleaded guilty and would have instead exercised his right to trial had the district court properly informed him of the quantity of drugs with which he was charged; 2) defendant failed to show that he would not have pleaded guilty had he correctly been informed of the statutory minimum and maximum sentence; and 3) defendant had no right to plead guilty to some elements of an offense but have a jury decide others.
U.S. 10th Circuit Court of Appeals, March 30, 2010 US v. De La Torre, No. 09-3029 Defendant’s drug possession conviction is affirmed where: 1) 18 U.S.C. section 841(a)(1) did not require the government to prove a defendant knew the precise nature of the controlled substance he possessed, so long as he knew he did in fact possess a controlled substance; and 2) the inadmissibility of statements made to Pretrial Services as to the issue of guilt did not restrict the government from using such statements to impeach a defendant’s trial testimony. However, his sentence is vacated where, while defendant did not produce any evidence at the sentencing hearing below, the district court did not permit him the opportunity to do so, instead concluding that trial testimony could not, under any circumstances, satisfy U.S.S.G. section 5C1.2(a)(5).
U.S. 10th Circuit Court of Appeals, April 02, 2010 Abdulhaseeb v. Calbone, No. 08-6092 In an action under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and 42 U.S.C. section 1983, setting forth claims concerning plaintiff’s conditions of incarceration, summary judgment for defendants is affirmed in part where the prison administrative process was not inadequate and thus plaintiff failed to exhaust certain claims. However, the judgment is vacated in part where: 1) plaintiff remained incarcerated in the Oklahoma Department of Correction’s (ODOC) custody, subject to ODOC policies, and a judgment in his favor could require ODOC to modify those policies, and thus his claims were not moot; and 2) there was no evidence in this record that plaintiff did not sincerely hold his expressed beliefs that he should eat a halal diet that includes meats, even though other Muslims may find a vegetarian or non-pork diet sufficient to satisfy Islam. .
U.S. 11th Circuit Court of Appeals, March 30, 2010 Townsend v. Jefferson Cty., No. 08-15583 In a 42 U.S.C. section 1983 action claiming that two deputies at a county jail were deliberately indifferent to the serious medical need of plaintiff, a pregnant detainee who had used crack cocaine daily, a denial of summary judgment based on qualified immunity is reversed where plaintiff failed to present sufficient evidence that defendants disregarded a risk of serious harm by conduct that was more than gross negligence.
U.S. 11th Circuit Court of Appeals, March 31, 2010 US v. Suarez, No. 08-13675 Defendants’ alien smuggling convictions and sentences are affirmed where: 1) there was no reasonable basis to believe that the testimony of the aliens defendant was alleged to have smuggled would be material and favorable to him; 2) an agent’s testimony regarding the contents of the affidavit in support of a wiretap provided ample support; 3) an excluded statement by a witness was made after the fact, not at the time of the incident, and thus was not an expression of state of mind; and 4) the evidence supported the district court’s sentencing enhancements for special skills and substantial risk of death.
U.S. 11th Circuit Court of Appeals, April 02, 2010 US v. Santiago, No. 09-10466 Defendant’s firearm possession sentence, which the government appealed, is vacated where a guilty plea followed by a sentence of probation and a withholding of adjudication qualified under Florida law as a predicate conviction for the purpose of enhancing defendant’s sentence under the Armed Career Criminal Act.
U.S. D.C. Circuit Court of Appeals, March 30, 2010 US v. Mahdi, No. 03-3154 Defendant’s drug conspiracy and related convictions, and his sentence, are affirmed in part where: 1) Congress intended to impose for a Violent Crimes in Aid of Racketeering (VICAR) violation a cumulative penalty separate from and in addition to what was authorized by a particular law of a state or the U.S., based upon the showing of an additional statutory element — in the case of VICAR, that the underlying violent offense bore a certain relationship to racketeering activity; 2) no Fed. R. Evid. 404(b) notice was required for evidence of an “intrinsic act,” that is, an act that was part of the crime charged; 3) the excluded testimony about which defendant complained would at best have contradicted minor points made by two government witnesses; 4) VICAR, by regulating conduct within the District of Columbia, did not exceed congressional authority under the Commerce Clause. However, some of defendant’s convictions are vacated in part where a limited resentencing remand was ! appropriate because six convictions for simple drug distribution merged into the analogous convictions for distribution of drugs within 1,000 feet of a school.
U.S. D.C. Circuit Court of Appeals, March 30, 2010 US v. Mejia, No. 08-3097 Defendant’s drug conspiracy conviction and sentence are affirmed where: 1) even if admitting a list of names found in defendant’s possession was error, it was harmless in light of its limited importance and the strength of the other evidence against defendant; 2) defendant failed to identify any unfair prejudice associated with the admission of a firearm permit possessed by defendant’s associate or the testimony about defendant’s driver’s guns; 3) challenged jury instructions allowed a permissive inference rather than requiring a presumption of criminal intent; and 4) defendant’s sentence did not violate Apprendi because it was less than the statutory maximum.
U.S. D.C. Circuit Court of Appeals, April 02, 2010 US v. Russell, No. 08-3120 In a prosecution for travel with intent to engage in illicit sexual conduct, the district court’s order of supervised release is affirmed in part where the court’s analysis of defendant’s term of supervised release under the 18 U.S.C. section 3553(a) factors made applicable by section 3583(c) did not rebut the presumption established by the within Guidelines sentence. However, the order is vacated in part where the 30-year prohibition on the possession and use of computers – a prohibition not subject to modification by the probation office – was substantively unreasonable.
Supreme Court of California, April 01, 2010 People v. Cogswell, No. S158898 Court of appeal’s reversal of defendant’s conviction for sexual assault on the ground that the trial court erred in declaring the sexual victim unavailable as a witness and in allowing the prosecution to use at defendant’s trial the victim’s preliminary hearing testimony is reversed as the prosecution did use reasonable diligence in obtaining the witness’s presence, and the prosecution’s resort to the Uniform Act’s custody-and-delivery provision to ensure the victim’s presence at the trial would have been an action far more extreme than the fine at issue in People v. Smith.
New York Court of Appeals, March 30, 2010 People v. Assi, No. 34 Defendant’s convictions for arson and criminal mischief as hate crimes are affirmed where: 1) the congregation that owned the synagogue vandalized by defendant fell under the category of an association of individuals or a religious corporation, and therefore, it qualified as a “person” within the meaning of Penal Law section 10.00(7); and 2) defendant’s criminal conduct occurred several hours after the hate crimes statute at issue took effect.
New York Court of Appeals, March 30, 2010 People v. Tolentino, No. 37 Defendant’s conviction for aggravated unlicensed operation of a motor vehicle is affirmed where the officers who stopped defendant’s car learned defendant’s identity when they stopped the car and that knowledge permitted the police to run a computer check that led to the retrieval of defendant’s DMV records, and thus the trial court did not err in refusing to suppress those records.
New York Court of Appeals, March 30, 2010 People v. Zephrin, No. 40 The appellate division’s reversal of defendant’s sentence for violating his probation is affirmed where defendant was entitled to jail-time credit toward his term of probation and, as a result, such term had expired prior to the filing of the declaration of delinquency.
New York Court of Appeals, April 01, 2010 People v. Caban, No. 42 Defendant’s criminally negligent homicide conviction is affirmed where the trial court properly admitted the fact of defendant’s license suspension because the license suspension was relevant to the issue of her criminal negligence.
New York Court of Appeals, April 01, 2010 People v. Mothersell, No. 43 Defendant’s drug possession conviction is reversed where there was not a sufficient predicate for issuance of the search warrant pursuant to which the drugs were found and, even if properly issued, the warrant did not authorize the strip search performed on defendant.
Supreme Court of Florida, April 02, 2010 Coicou v. State of Florida, No. SC04-637 In a prosecution of defendant for first-degree felony murder, the Third District’s judgment instructing the trial court to enter a judgment of conviction for attempted second-degree murder is quashed and remanded where: 1) a case-by-case determination is needed when deciding whether attempted second-degree murder is a permissive lesser-included offense of attempted first-degree felony murder; and 2) section 924.34 did not apply to this case because the allegations in the charging document and the proof at trial did not support the element of a depraved mind without regard for human life, and the jury did not determine all of the elements of the lesser offense.
California Appellate Districts, March 30, 2010 People v. Johnson, No. C055139 Defendants’ murder and robbery convictions and sentences are affirmed where 1) the procedures used to obtain the pretrial identifications of defendants were not unduly suggestive; 2) the trial court properly considered defendant’s prior excluded confession for the purpose of weighing evidence under Cal. Evid. Code section 352; 3) the court reasonably determined that defendant’s admissions and his exculpatory statements to a third party were made at different times, and thus the latter was not admissible under section 356; and 4) defendant was properly informed of her Miranda rights.
California Appellate Districts, March 30, 2010 People v. Escudero, No. C060342 Defendant’s conviction for committing a lewd and lascivious act on a child under the age of 14 is affirmed where the trial court properly admitted evidence of defendant’s prior sex crimes against adults because it was highly probative of his intent to touch the victim for sexual gratification, thus dispelling any notion that the touching was the result of accident or mistake.
California Appellate Districts, March 30, 2010 People v. Hall, No. C060359 Defendant’s robbery and related convictions are affirmed in part where: 1) defendant did not show that the admission of evidence of a prior carjacking had any prejudicial effect on the jury; 2) defendants did not point to anything about a field showup here that was unduly suggestive; and 3) a person who carries a concealed, loaded firearm that was not registered to him in a private place may be guilty of violating Cal. Penal Code section 12025 without violating section 12031. However, defendants’ convictions are reversed in part where they could not be convicted of both counts of receiving stolen property because receipt/possession of more than one item of stolen property at the same time constituted a single offense.
California Appellate Districts, March 30, 2010 People v. Bojorquez, No. G040702 Defendant’s conviction for consensual sexual activity with a confined adult based on his conduct while supervising community work release participants at a county animal shelter is affirmed where the shelter constituted a “detention facility” under Cal. Penal Code section 289.6.
California Appellate Districts, March 30, 2010 G.C. v. Superior Court, No. H034808 In a petition for a writ of mandamus seeking to vacate a restitution order issued against a minor for felony vandalism by graffiti, the writ is granted where Welf. & Inst. Code section 742.16, which required the court to consider ability to pay when ordering restitution for graffiti abatement, applied in the deferred entry of judgment context.
California Appellate Districts, April 01, 2010 People v. Turnage, No. C059887 Sentence of a defendant for maliciously placing a false or facsimile bomb with the intent to cause others to fear for their safety is remanded as a violation of section 148.1(d) is punishable only as a misdemeanor as defendant is similarly situated to someone convicted of the misdemeanor of placing a false WMD that did not cause sustained fear, and the legislative history of the latter provision shows that no reason exists to treat the two offenses differently for purposes of punishment.
California Appellate Districts, April 02, 2010 People v. Nakai, No. E046559 Conviction of defendant for attempting to send harmful matter to a minor with the intent to seduce the minor and sentence to three years of probation with the conditions that the defendant serve 270 days in custody of a sheriff on weekends and register as a sex offender are affirmed where: 1) trial court did not err in instructing the jury on section 313.1(a) as there was no substantial evidence that defendant committed only the lesser offense and not the greater; 2) because the critical element between the lesser offense and the greater offense was not disputed, it is not reasonably probable that the jury would have found defendant guilty of only the lesser offense; and 3) trial court did not err in denying defendant’s motion to suppress the evidence related to the Yahoo! chat dialogues because the communications were not “confidential communications” and therefore not protected by section 632. .
California Appellate Districts, April 02, 2010 Melton v. Boustred, No. H033148 In plaintiffs’ suit against a host of a party for being attacked, beaten, and stabbed by a group of unknown individuals, trial court’s order sustaining a demurrer without leave to amend is affirmed where: 1) plaintiffs’ negligence claims fail because defendant did not owe plaintiffs a duty of care; 2) plaintiffs’ nuisance claim fails as it merely restates their negligence claims; and 3) amendment cannot cure defects in plaintiffs’ complaint.