Findlaw Case Summaries: Criminal Law and Procedure 28

November 23-27, 2009.

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U.S. 1st Circuit Court of Appeals, November 25, 2009 US v. Gonzalez-Velez, No. 07-2277 Defendant’s sentence of 135-months’ imprisonment after being convicted of participating in a conspiracy to distribute narcotics is affirmed where: 1) trial court’s reliance on witness’ testimony was not unreasonable; 2) district court did not err in attributing the full five kilograms of cocaine to defendant in calculating the base offense level of 32; 3) district court did not err in denying defendant’s request for a two-level reduction in his offense level for acceptance of responsibility.

U.S. 2nd Circuit Court of Appeals, November 25, 2009 Michtavi v. N.Y. Daily News, No. 08-2111 In an action for libel and intentional infliction of emotional distress based on news reports stating that plaintiff, a criminal defendant, was to cooperate with prosecutors, dismissal of the complaint is affirmed where the statement reporting that plaintiff planned to cooperate with authorities was not defamatory as a matter of law.

U.S. 4th Circuit Court of Appeals, November 24, 2009 US v. Phillips, No. 07-4230 Defendant’s conviction for securities fraud, mail fraud, and other related crimes is affirmed as a warrant’s inclusive language was reasonably read by the postal inspection agents to encompass the seized evidence and thus, the agents’ seizures were permissible.

U.S. 5th Circuit Court of Appeals, November 25, 2009 US v. Carey, No. 08-60961 Defendant’s aggravated sexual abuse of a minor conviction and sentence are affirmed where: 1) the admissibility of testimony accompanied by a Fed. R. Evid. 612 refreshment did not depend upon the source of the writing, the identity of the writing’s author, or the truth of the writing’s contents; 2) a victim-witness’s youth and nervousness could satisfy Rule 611’s necessity requirement; and 3) defendant’s sentence was not procedurally unreasonable because the district court examined the 18 U.S.C. section 3553 factors.

U.S. 6th Circuit Court of Appeals, November 23, 2009 US v. Simmons, No. 07-3449 Defendant’s sentence of 116 months’ imprisonment for possession of more than five grams of crack cocaine with intent to distribute and for being a previously convicted felon in possession of a firearm is affirmed and remanded where, although the district court’s sentencing was procedurally and substantively adequate, the Guidelines have since been revised to lower the range for certain crack offenses and defendant may be eligible for a sentencing reduction.

U.S. 6th Circuit Court of Appeals, November 23, 2009 US v. Petrus, No. 08-1706 Defendant’s sentence to 70 months’ imprisonment for conspiring to possess with intent to distribute illegal drugs is affirmed where: 1) the district court did not commit any significant procedural error in imposing defendant’s sentence and the sentence was procedurally reasonable; and 2) considering the totality of the circumstances, including the Guidelines, the section 3553(a) factors, the nature of the offense, defendant’s family situation, his immigration status, his lack of criminal history, and defendant’s asserted attempt to cooperate with the government, the 70 month sentence is substantively reasonable.

U.S. 6th Circuit Court of Appeals, November 25, 2009 US v. Gabbard , No. 08-5445 Defendants’ convictions and sentences for conspiracy to manufacture 100 or more marijuana plants, being a felon in possession of a firearm, and possession of firearms in furtherance of a drug trafficking offense is affirmed where: 1) any error in one defendant’s sentence did not result in prejudice to him; and 2) district court’s conclusion that the other defendant was not a minor participant in the conspiracy was not clearly erroneous.

U.S. 6th Circuit Court of Appeals, November 25, 2009 Cooey v. Strickland, No. 09-4300 District court’s order staying defendant’s execution, based on preexisting litigation related to challenges to Ohio’s method of execution including challenges stemming from the State’s use of a three-drug protocol and its difficulty accessing usable veins in prior executions, is vacated as any challenge to Ohio’s three-drug execution protocol is now moot because such procedure will not be utilized on defendant, and no basis exists for continuing the stay previously in effect.

U.S. 7th Circuit Court of Appeals, November 25, 2009 US v. Harris, No. 07-4017 District court’s conviction of defendant for being a felon in possession of a firearm and of possessing a mixture containing crack cocaine with the intent to distribute is affirmed as the court did not err in admitting: 1) testimony concerning defendant’s prior drug sales as it was relevant to show that he intended to distribute the drugs he held; 2) testimony from defendant’s girlfriend concerning a statement he made to her about having guns, the admission of which was harmless in light of his admission to the officers that he had stored two guns in her apartment that very morning; and 3) testimony from a police sergeant, even though it might have suggested defendant’s membership in a gang, as the testimony helped establish that defendant had possessed the firearms.

U.S. 8th Circuit Court of Appeals, November 23, 2009 US v. Wood, No. 08-3998 Defendant’s sentence for sending threatening communications to a judge is affirmed where: 1) the district court reviewed defendant’s mental health history and specifically addressed his disparity claim, providing sufficient reasoning to support imposition of the sentence; and 2) it was reasonable to conclude that defendant’s threats would increase if he were not deterred by a Guidelines sentence.

U.S. 8th Circuit Court of Appeals, November 25, 2009 US v. Pena-Ponce, No. 09-1010 Defendant’s drug possession conviction is affirmed where: 1) because the police developed reasonable suspicion while conducting the normal tasks involved in stopping defendant’s car, the district court properly concluded that the scope of the stop was not unreasonably expanded; and 2) a reasonable officer would have believed that defendant orally consented to the search.

U.S. 9th Circuit Court of Appeals, November 24, 2009 US v. Tupuola, No. 08-10422 Defendants’ crack cocaine distribution sentences are affirmed where defendants’ sentences were not “based on a sentencing range that had subsequently been lowered by the Sentencing Commission” under 18 U.S.C. section 3582(c)(2).

U.S. 9th Circuit Court of Appeals, November 25, 2009 Hernandez-Aguilar v. Holder, No. 06-71945 In a petition for review of the BIA’s order removing petitioner from the U.S., the petition is denied where petitioner’s conviction for possessing a controlled substance under California Health and Safety Code section 11379(a) qualified as a basis for removability under 8 U.S.C. section 1182(a)(2)(A)(i)(II).

U.S. 9th Circuit Court of Appeals, November 25, 2009 US v. Mohsen, No. 07-10059 Defendant’s perjury and fraud convictions are affirmed where: 1) the district court correctly instructed the jury on the materiality element of the perjury and fraud charges; 2) there was no use of the Phase II counts or evidence in the Phase I proceedings of defendant’s trial, and thus the bifurcation process was not so manifestly prejudicial as to require reversal; and 3) the district court should have consulted the parties or counsel before responding to the jury’s request to see the indictment, but the error was harmless beyond a reasonable doubt.

Supreme Court of California, November 23, 2009 People v. Johnson, No. S166894 Court of appeal’s dismissal of criminal defendant’s appeal on the ground that a certificate of probable cause was required is affirmed as a defendant who desires to appeal from a criminal judgment on the ground that counsel rendered ineffective assistance regarding the defendant’s request to withdraw a guilty or no contest plea first must obtain a certificate of probable cause.

New York Court of Appeals, November 23, 2009 Walton v. N.Y. State Dept. of Corr. Servs., No. 149 In an action alleging that the portion of a telephone charge for collect calls from inmates that was allocated as a commission to the department of corrections violated the New York Constitution, dismissal of the complaint is affirmed where: 1) the collection of the commission did not constitute a tax; 2) the practice was not a “taking” in the absence of government compulsion; and 3) plaintiffs failed to establish that the commission bore no reasonable relationship to legitimate penological aims.

New York Court of Appeals, November 23, 2009 People v. Alemany, No. 150 Defendant’s attempted rape sentence is affirmed where a hearing court may assess risk factor points to a defendant under the Sex Offender Registration Act where there was clear and convincing evidence that the defendant was undomiciled and lacked any history of living in shelters or community ties.

New York Court of Appeals, November 23, 2009 People v. Brown, No. 152 Defendant’s rape conviction is affirmed where defendant’s Sixth Amendment right to confrontation was not violated by the introduction of a DNA report processed by a subcontractor laboratory to the Office of the Chief Medical Examiner (OCME) through the testimony of a forensic biologist from OCME, because the report was not testimonial and therefore was not hearsay.

New York Court of Appeals, November 23, 2009 People v. Colon, No. 162 In an appeal from a denial of defendants’ motion under Criminal Procedure Law section 440.10 to vacate their murder convictions, the order is reversed where the prosecutor failed to correct a witness’s misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation, and there was a reasonable probability that this affected the jury’s verdict.

New York Court of Appeals, November 23, 2009 People v. Gillyard, No. 168 Defendant’s criminal impersonation conviction is affirmed where the trial court erred in admitting evidence of a handcuff key to show familiarity and access to the tools of the charged crime, but the evidence of defendant’s guilt was overwhelming.

New York Court of Appeals, November 24, 2009 People v. Samandarov, No. 164 Defendant’s attempted murder conviction is affirmed where: 1) defendant did not submit enough proof of juror misconduct to warrant a hearing; and 2) the trial court did not abuse its discretion in denying a hearing regarding allegedly suppressed evidence because the sole basis for the hearing was handwritten notes that everyone present at the interviews at issue said never existed.

New York Court of Appeals, November 24, 2009 People v. Davis, No. 172 Defendant’s conviction for sale of a controlled substance is affirmed where criminal possession was not a lesser included offense of criminal sale of a controlled substance, because it was possible to commit the sale crime without committing the possession crime.

California Appellate Districts, November 23, 2009 People v. Zielesch , No. C059872 Conviction of defendant for first degree murder of a CHP officer, conspiracy to commit murder of his wife’s boyfriend, and other crimes is affirmed where: 1) defendant’s claim that his murder conviction must be reversed because the shooting of the officer was not in furtherance of the conspiracy to kill his wife’s boyfriend and “was both unforeseen and unforeseeable” fails as the jury’s finding of both the conspiracy and murder is supported by substantial evidence; and 2) defendant’s claim that the entire judgment must be reversed because he was denied his right to a fair trial when the judge allowed courtroom spectators to wear buttons displaying a color photograph of the officer for six days at the start of the trial are rejected also fails, as the wearing of the buttons presented no probability of deleterious effects on defendant’s right to a fair trial.

California Appellate Districts, November 23, 2009 People v. Freitas, No. C060280 Defendant’s conviction for grand theft is affirmed but the probation order prohibiting defendant from “possessing stolen property” is modified to state as probation conditions that defendant “not knowingly possess property he knows is stolen” and “not knowingly own, possess or have custody or control of any firearms or ammunition.”

California Appellate Districts, November 23, 2009 Jameson v. Desta, No. D053089 In plaintiff’s medical malpractice suit against defendant-doctor who treated plaintiff while he was incarcerated at a correctional facility, dismissal of the suit is reversed as the trial court erred in dismissing the action on the ground that plaintiff failed to appear telephonically at a case management conference and a at a subsequent hearing on an order to show case, as the record clearly indicates that plaintiff notified the trial court on numerous occasions that prison personnel were not allowing him to communicate telephonically with the court, yet the record does not indicate that the trial court made any inquiry into plaintiff’s contentions.

California Appellate Districts, November 23, 2009 People v. Sanchez, No. E046099 Defendant’s sentence for second degree robbery and the substantive offense of gang participation is affirmed, but modified to bring the judgment into compliance as Penal Code section 654 precludes multiple punishment for both: 1) gang participation, one element of which requires that the defendant have willfully promoted, furthered, or assisted in any felonious criminal conduct by members of the gang; and 2) the underlying felony that is used to satisfy this element of gang participation.

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