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June 15-19, 2009.
U.S. Supreme Court, June 15, 2009 Nijhawan v. Holder, No. 08–495 Petitioner’s removal from the U.S. based on his commission of an “aggravated felony” is affirmed, where the $10,000 threshold in 8 U.S.C. section 1101(a)(43)(M)(i) refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion, rather than to an element of the fraud or deceit crime.
U.S. Supreme Court, June 18, 2009 District Atty.’s Offc. v. Osborne, No. 08–6 In a 42 U.S.C. section 1983 action seeking the evidence used to convict Defendant of sexual assault for the purposes of DNA testing, summary judgment for Plaintiff is reversed where, assuming Plaintiff’s claims could be pursued using Section 1983, he had no constitutional right to obtain post-conviction access to the State’s evidence for DNA testing.
U.S. Supreme Court, June 18, 2009 Yeager v. US, No. 08–67 In an appeal from the District Court’s order denying Defendant’s motion to dismiss his wire fraud indictment on Double Jeopardy grounds, the order is reversed where an apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals’ preclusive force under the Double Jeopardy Clause.
U.S. 1st Circuit Court of Appeals, June 18, 2009 US v. Correy, No. 06-2029 Defendants’ drug conspiracy sentences are vacated, where the Court of Appeals in a prior opinion instructed the District Court not to defer to the jury on credibility issues with respect to the drug quantity at issue for sentencing purposes, but the District Court nonetheless did so.
U.S. 1st Circuit Court of Appeals, June 18, 2009 US v. Flores-de-Jesus, No. 06-2670 Defendants’ drug convictions are affirmed, where the government improperly used a law enforcement officer as the first witness in a multi-defendant drug prosecution to provide an “overview” of the prosecution’s case, but it was highly probable that the testimony did not influence the verdict.
U.S. 1st Circuit Court of Appeals, June 19, 2009 US v. Gonzalez-Melendez, No. 08-1497 Defendant’s carjacking conviction is vacated where: 1) the District Court did not comply with its obligation to independently review the government’s compliance with the Jencks Act; and 2) the record did not reflect that the District Court made any response to a jury note requesting copies of certain documents.
U.S. 1st Circuit Court of Appeals, June 19, 2009 Waldron v. George Weston Bakeries Inc., No. 08-2554 In an action challenging the termination of Plaintiff bakery distributors’ routes, the District Court’s grant of a preliminary injunction is affirmed, where a voicemail “threat” by Plaintiffs’ counsel to inform authorities about Defendants’ treatment of its route-holders as employees did not constitute criminal extortion and thus did not violate the parties’ agreement.
U.S. 2nd Circuit Court of Appeals, June 16, 2009 US v. Jass, No. 06-4899-cr Defendants’ child pornography convictions and sentences are affirmed, where: 1) any Sixth Amendment error due to the introduction of Defendant’s redacted confession was harmless; and 2) the District Court applied an unwarranted sentencing enhancement for using a computer to solicit sexual activity with a minor, but the District Court stated that it would have imposed the same below-Guidelines sentence in any event.
U.S. 2nd Circuit Court of Appeals, June 19, 2009 US v. Lucky, No. 08-1939-cr Defendant’s firearm possession conviction is affirmed where, when police stopped Defendant’s car, they had reasonable suspicion in light of the fact that the automobile had the same license plate number and description as one used to flee from a shooting two days earlier.
U.S. 3rd Circuit Court of Appeals, June 16, 2009 US v. Styer, No. 08-2951 Defendant’s drug sentence is affirmed, where: 1) Defendant was not entitled to an evidentiary hearing on his 18 U.S.C. section 3582(c)(2) motion; and 2) the District Court did not abuse its discretion by concluding that Defendant continued to pose a threat to public safety.
U.S. 3rd Circuit Court of Appeals, June 19, 2009 Hagan v. Rogers, No. 07-1412 In an action by prisoners alleging that the prison failed to address a contagious skin disease, the dismissal of the complaint is reversed, where the Prisoner Litigation Reform Act did not remove prisoners from the definition of “Persons” permitted to join claims under Federal Rule of Civil Procedure 20.
U.S. 4th Circuit Court of Appeals, June 17, 2009 US v. Jeffers, No. 06-5289 Defendant’s drug and firearm convictions and sentence are affirmed, where 1) the lack of a reporter’s transcript of the charge conference and related proceedings did not violate Defendant’s due process rights and 2) the evidence linked Defendant to multiple firearms during the course of the conspiracy offense.
U.S. 4th Circuit Court of Appeals, June 18, 2009 US v. Gould, No. 08-4302 Defendant’s conviction for failing to register as a sex offender is affirmed, where the Sex Offender Registration and Notification Act (SORNA) does not link the requirement imposed on individual sex offenders to register to the requirement imposed on the states to implement the registration standards mandated by SORNA.
U.S. 5th Circuit Court of Appeals, June 15, 2009 US v. Armendariz-Moreno, No. 07-40225 Defendant’s sentence is vacated, where Defendant’s prior state offense of unauthorized use of a motor vehicle was not a “crime of violence” under the Armed Career Criminal Act, because the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct.
U.S. 5th Circuit Court of Appeals, June 15, 2009 Garcia v. Quarterman, No. 08-70003 In a capital habeas matter, the dismissal of Petitioner’s second petition is affirmed, where Petitioner’s petition sought compliance with an International Court of Justice opinion requiring the suspension of state procedural default rules, but the Supreme Court held that compliance with that decision was not required.
U.S. 5th Circuit Court of Appeals, June 16, 2009 US v. Brown, No. 08-20038 In a wire fraud prosecution, the District Court’s denial of Defendants’ motion to dismiss the indictment on double jeopardy grounds is affirmed, where the Court of Appeals’ earlier reversal of the verdict was premised narrowly and solely on the failure of the honest services charge against Defendants, and did not preclude other theories.
U.S. 6th Circuit Court of Appeals, June 15, 2009 In re Simons, No. 09-3109 In an action seeking a writ of mandamus under the Crime Victims’ Rights Act (CVRA) requiring the unsealing of the record in a criminal case, the writ is granted where the CVRA required a ruling on a motion to unseal to be made “forthwith,” and the District Court had inexplicably delayed for three months in making a decision.
U.S. 7th Circuit Court of Appeals, June 15, 2009 US v. Pulungan, No. 08-3000 Defendant’s conviction for attempting to acquire and export riflescopes to Indonesia without a license, under 22 U.S.C. section 2778, is reversed where the evidence was insufficient to show, beyond a reasonable doubt, that Defendant knew that the scopes required export licenses.
U.S. 7th Circuit Court of Appeals, June 17, 2009 US v. Turner, No. 08-2413 Defendant’s drug sentence is affirmed, where: 1) there were no examples of extraordinary inducement or unrelenting pressure placed on Defendant that would indicate sentencing entrapment; and 2) Defendant’s complaints about the conditions of his confinement did not rise to a level warranting sentencing relief. .
U.S. 7th Circuit Court of Appeals, June 17, 2009 US v. Douglas, No. 08-2655 Defendant’s drug sentence is affirmed, where Defendant’s challenge to his sentencing enhancements failed because the District Court applied the statutory minimum, and thus any error in sentencing Defendant was harmless.
U.S. 8th Circuit Court of Appeals, June 18, 2009 US v. Ruiz, No. 08-3360 In a drug possession prosecution, the denial of Defendant’s motion to dismiss the indictment is affirmed, where: 1) warrantless inspections of commercial trucks advance a substantial governmental interest and are necessary; and 2) the Arkansas Motor Carrier Act provides a permissible warrant substitute.
U.S. 9th Circuit Court of Appeals, June 15, 2009 Cousins v. Lockyer, No. 07-17216 In a 42 U.S.C. section 1983 action alleging that Defendant officials breached their duty to monitor whether Plaintiff’s sentence was void and take steps to effectuate his release, the dismissal of the complaint is affirmed in part, where Plaintiff’s federal claims were barred by prosecutorial immunity; but reversed in part, where Plaintiff’s state law claims were not subject to an immunity defense.
U.S. 9th Circuit Court of Appeals, June 16, 2009 Holley v. Yarborough, No. 08-15104 In a habeas matter involving a prosecution for lewd and lascivious acts on a child, the denial of the petition is reversed where the trial court erred in prohibiting Petitioner from introducing evidence that the victim had made prior claims of her own sexual appeal, because such evidence was clearly relevant to impeach the victim.
U.S. 9th Circuit Court of Appeals, June 18, 2009 US v. Overton, No. 08-30075 Defendant’s child pornography conviction and sentence are affirmed, where 1) the evidence was sufficient to allow the District Court to find that the photographs at issue depicted sexually explicit conduct; and 2) Defendant’s conviction complied with the Double Jeopardy Clause because 18 U.S.C. sections 2251(a) and (b) constitute separate offenses. .
U.S. 9th Circuit Court of Appeals, June 18, 2009 US v. Leniear, No. 08-30199 Defendant’s drug distribution sentence is affirmed, where Defendant was not eligible for a sentence reduction under Amendment 706 to the Sentencing Guidelines because, in light of the grouping rules under U.S.S.G. section 3D1.4, Amendment 706 did not lower the applicable guideline range.
U.S. 10th Circuit Court of Appeals, June 15, 2009 Allen v. Zavaras, No. 07-1501 The dismissal of Petitioner’s habeas petition is affirmed, where the District Court was not required to seek a response to the petition from the government before dismissing the action for failure to exhaust state remedies.
U.S. 10th Circuit Court of Appeals, June 16, 2009 McGee v. Higgins, No. 07-6243 In a habeas matter involving drug distribution, the denial of Petitioner’s petition is affirmed, where Petitioner failed to show prejudice based on his counsel’s allegedly ineffective performance, because there was no reasonable probability that the state court would have imposed a sentence of less than twenty years had counsel not made his alleged errors.
U.S. 10th Circuit Court of Appeals, June 16, 2009 US v. Hernandez, No. 08-6190 Defendant’s firearm possession sentence is affirmed where Defendant’s prior conviction under Texas Penal Code section 22.05(b)(1) for firing a gun at or in the direction of another person constituted a violent felony under the Armed Career Criminal Act because it involved the use, attempted use or threatened use of physical force against another person.
U.S. 10th Circuit Court of Appeals, June 17, 2009 Cordova v. Aragon, No. 08-1222 In a 42 U.S.C. section 1983 action alleging excessive force by Defendant officers, summary judgment for Defendants based on qualified immunity is affirmed in part, where there was no genuine issue of material fact as to whether a policy of the city was the moving force behind any violation; but reversed in part where, when an officer employs such a level of force that death is nearly certain, he must do so based on more than the general dangers posed by reckless driving.
U.S. 10th Circuit Court of Appeals, June 17, 2009 US v. Barwig, No. 08-3062 Defendant’s sentence for violating the terms of her supervised release is reversed, where the District Court’s oral pronouncement of Defendant’s sentence at an earlier sentence hearing unambiguously imposed a term of supervised release, and thus the court erred by sentencing Defendant to five years’ imprisonment when it revoked that earlier sentence.
U.S. 10th Circuit Court of Appeals, June 18, 2009 US v. Smith, No. 08-8019 Defendant’s tax evasion conviction is affirmed, where the delay prior to the District Court’s hearing on his motion to dismiss the indictment did not violate the Speedy Trial Act, as the Act did not require the dismissal of an indictment whenever the defendant files a pre-trial motion and retracts it at a hearing held more than seventy days later.
U.S. 10th Circuit Court of Appeals, June 19, 2009 Gardner v. Galetka, No. 07-4104 In a capital habeas matter, the denial of Petitioner’s petition is affirmed where: 1) defense counsel made an objectively reasonable strategic decision in not investigating further or presenting psychological evidence at trial; and 2) a post-trial examination of the gun Petitioner used did not indicate it was faulty in any material way that would have caused it to accidentally discharge.
U.S. 10th Circuit Court of Appeals, June 19, 2009 US v. Robertson, No. 08-3126 Defendant’s firearm possession sentence is affirmed where: 1) Defendant’s unconvicted conduct provided the District Court with an appropriate ground for departure under U.S.S.G. section 4A1.3(a)(2)(E), and 2) Defendant’s criminal history and propensity to recidivate placed him outside the heartland of typical cases considered in drafting the Guidelines.
U.S. 11th Circuit Court of Appeals, June 15, 2009 US v. Docampo, No. 08-10698 Defendant’s drug conspiracy sentence is affirmed where the District Court did not err in imposing an above-Guidelines sentence, because the other conspirators either pleaded guilty and agreed to cooperate or were not prosecuted in federal court, and thus they were not similarly situated to Defendant.
U.S. 11th Circuit Court of Appeals, June 16, 2009 US v. Sarras, No. 08-11757 Defendant’s child pornography conviction and sentence are affirmed, where: 1) the District Court properly excluded a defense expert’s testimony because no record evidence explained the expert’s methodology; and 2) government witnesses testified that child pornography cases usually involve multiple images of multiple children and Defendant had no such images, so additional testimony to that effect from Defendant’s expert would have been cumulative.
U.S. 11th Circuit Court of Appeals, June 19, 2009 US v. Elso, No. 06-14954 The denial of Defendant’s motion to reconsider his money laundering conviction is affirmed, where the District Court lacked authority to hear Defendant’s Fed. R. Crim. P. 12(b)(3)(B) motion because it was untimely, as Defendant’s petition for a writ of certiorari did not toll the time for moving to reconsider.
Supreme Court of California, June 15, 2009 People v. Avila, No. S078664 In a capital murder matter, Defendant’s conviction is affirmed where: 1) because defense counsel did not request Keenan counsel, the trial court did not fail to rule on such a request; and 2) Defendant pointed to no particular characteristic of the participants in the photo lineups at issue that made the lineups impermissibly suggestive.
Supreme Court of California, June 15, 2009 People v. Dykes, No. S050851 In a capital murder matter, Defendant’s conviction is affirmed where: 1) the trial court’s credibility determinations regarding the voluntariness of Defendant’s conviction were amply supported by the evidence; and 2) Defendant failed to object to the alleged bolstering of a prosecution witness’s credibility.
Supreme Court of California, June 18, 2009 People v. Butler, No. S055501 Defendant’s capital murder conviction is affirmed where: 1) the trial court did not abuse its discretion in finding that joining Defendant’s case with an unrelated jailhouse murder charge against Defendant would create unnecessary complexity; and 2) there was no merit in Defendant’s complaint that the jury would be surprised if it learned about the jailhouse killing at the penalty phase.
Supreme Court of Delaware, June 15, 2009 Maddrey v. State, No. 533 Defendant’s firearm possession conviction is affirmed, where the evidence was sufficient for a jury to reasonably infer that the handguns at issue were available and accessible during the course of Defendant’s continuing felonies.
California Appellate Districts, June 15, 2009 P. v. Meredith, No. C057232 Defendant’s burglary conviction is affirmed where: 1) the trial court’s requirement that Defendant wear jail clothing was harmless error; and 2) the burglary instruction given by the trial court did not prevent the jury from grasping Defendant’s theory of defense.
California Appellate Districts, June 16, 2009 P. v. Dillon, No. A117853 Defendants’ sexual assault convictions are affirmed where: 1) the challenged jury instruction properly specified the required elements of the assault offense; and 2) a Mayberry instruction is not required in every case in which a defendant charged with a sexual offense offers consent as a defense.
California Appellate Districts, June 16, 2009 People v. Cortes, No. B206770 Defendant’s murder conviction is affirmed where substantial evidence supported the jury’s finding that Defendant’s gang met the definition of a “criminal street gang” set forth in Cal. Penal Code section 186.22(f), because murder was a “primary activity” of the gang.
California Appellate Districts, June 16, 2009 P. v. Mirenda, No. D053261 The dismissal of the attempted murder indictment against Defendant is affirmed, where 26 years passed between the time the criminal charges were filed and the time when the prosecution actually started, despite Defendant’s 1982 arrest, and thus Defendant was denied his right to a speedy trial.
California Appellate Districts, June 18, 2009 P. v. Shetty, No. B205061 Defendant’s home equity sales fraud conviction is affirmed where the warrant issued for Defendant’s arrest was timely, as the applicable statute of limitations was four years because the Civil Code section 1695.8 violation at issue was an offense involving fraud.
California Appellate Districts, June 18, 2009 P. v. M.B., No. F055289 The grant of the state’s petition to make Defendant a ward of the state is affirmed where Welfare and Institutions Code section 7331 allows a juvenile court to commit a ward to the Division of Juvenile Facilities (DJF) for a violation of probation: 1) if the offense for which the ward received the probation is a DJF-eligible offense; and 2) no petition alleging a more recent non-DJF-eligible offense has been sustained.
Texas Court of Criminal Appeals, June 17, 2009 Gonzales v. State, No. AP-75,540 Defendant’s capital murder conviction is affirmed where there was ample independent corroborative evidence rendering it more probable than it would have been otherwise that the victim’s death was caused by the criminal act of another, and thus Defendant was not convicted solely on the basis of his confession.
Texas Court of Criminal Appeals, June 17, 2009 Johnson v. State, No. PD-1187-07 Defendant’s indecency with a child sentence is vacated where the trial court lacked discretion to impose jail time as a condition of community supervision immediately after he heard unsworn, un-crossexamined victim-allocution statements that they wanted Defendant to go to jail