November 10 – 14, 2008.
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U.S. 2nd Circuit Court of Appeals, November 10, 2008 US v. Lopez, No. 063730p.pdf Conviction for possession of cocaine with intent to distribute and possession of two firearms in furtherance of a drug trafficking crime is affirmed where: 1) the district court did not err in admitting evidence seized from the inventory search of defendant’s car; and 2) the district court did not err in admitting expert testimony by a narcotics detective that cocaine and cutting materials found in defendant’s car were evidence of distribution
U.S. 2nd Circuit Court of Appeals, November 13, 2008 Brinson v. Walker, No. 060618 In a conviction for robbery and unlawful possession of a weapon, grant of writ of habeas corpus is affirmed where: 1) Appellate Division’s ruling that there was no right of defendant to cross-examine on racial bias because it represented “general ill will” rather than “specific hostility towards defendant” constituted an unreasonable application of the Confrontation Clause; and 2) the error was not harmless.
U.S. 2nd Circuit Court of Appeals, November 13, 2008 US v. Buie, No. 070258 Sentence of fifteen years for being a felon in possession of a firearm is affirmed where: 1) because the maximum penalty for the offense to which defendant pleaded guilty was ten years or more under state statute, defendant’s state felony narcotics conviction qualified as a “serious drug offense” under the Armed Career Criminal Act (ACCA); and 2) defendant’s allegation that he was deprived of counsel at his plea hearing did not state a claim for error of Gideon v. Wainwright magnitude.
U.S. 2nd Circuit Court of Appeals, November 13, 2008 US v. Lopez, No. 081269 Conviction of possession of a firearm by a convicted felon is affirmed where: 1) U.S. marshals had no obligation to obtain defendant’s consent after defendant’s live-in girlfriend consented to the search; and 2) because defendant did not object, his girlfriend’s consent was valid and the search was reasonable.
U.S. 2nd Circuit Court of Appeals, November 14, 2008 Alsol v. Mukasey, No. 072068, 081942, 081112 Petitions for review of decisions canceling removal are granted and orders of the Board of Immigration Appeals are vacated where: 1) a second conviction for simple controlled substance possession under state law is not a felony under the Controlled Substances Act because the offense of conviction did not proscribe conduct punishable as a felony as it did not correspond in any meaningful way with the federal crime of recidivist possession even if it could have been prosecuted in state court as a recidivist offense; and 2) the decision in US v. Simpson did not hold to the contrary.
U.S. 4th Circuit Court of Appeals, November 12, 2008 US v. Jefferson, No. 084215 Indictment of defendant-state congressman for conspiracy and substantive offenses related to participation in multiple schemes is affirmed over claims of error that: 1) the grand jury was improperly presented with evidence of defendant’s legislative acts and that such evidence was relevant to its decision to indict; and 2) the indictment thus contravened the legislative immunity provided to defendant by the Speech or Debate Clause of the U.S. Constitution, art. I, section 6, cl. 1.
U.S. 6th Circuit Court of Appeals, November 12, 2008 Davie v. Mitchell, No. 03-4293 In a death penalty case, denial of a petition for a writ of habeas corpus is affirmed where the district court correctly rejected claims that: 1) petitioner’s Miranda rights had been violated by police actions in this case, which included four instances of questioning, each following a Miranda warning, over a six-hour period; 2) penalty phase jury instructions were constitutionally deficient; and 3) prosecutorial misconduct denied him due process. .
U.S. 6th Circuit Court of Appeals, November 13, 2008 US v. Davis, No. 05-2465 A conviction for distributing, and for conspiring to distribute, crack cocaine is reversed in part and remanded as to the conspiracy conviction where: 1) the jury was not instructed properly on how it could use certain testimony regarding a prior drug transaction; and 2) such error was not harmless with respect to the conspiracy conviction.
U.S. 6th Circuit Court of Appeals, November 13, 2008 US v. Walls, No. 06-2079 A life sentence resulting from convictions for conspiracy to possess with intent to distribute and to distribute cocaine, as well as conspiracy to launder money, is affirmed over claims that: 1) the district court erred when it imposed an enhancement under U.S.S.G. section 3B1.1 (2005) because it did not find that defendant controlled the actions of others; 2) the sentence was substantively unreasonable in light of a 360-month sentence imposed after his first trial, as well as various other circumstances; 3) the district court erred in finding that certain sentencing decisions were “the law of the case”; 4) it failed to make a proportionality review before imposing the sentence; 5) his convictions were void because Title 21 was never published in the Federal Register, as required by 44 U.S.C. section 1505; and 6) the district court could not legally sentence him for either conviction because both convictions were barred by the statute of limitations and the district judge pr! ejudicially instructed the jury that it had to find him guilty.
U.S. 6th Circuit Court of Appeals, November 14, 2008 US v. Kemp, No. 07-5837 A conviction for being a felon in possession of a firearm is affirmed where: 1) the district court’s admission of the names of defendant’s prior felonies was not so manifestly incorrect as to amount to plain error; and 2) it correctly refused to give a justification instruction as no reasonable jury could have found that all of the elements of the defense, or even more than one of them, were met in this case.
U.S. 7th Circuit Court of Appeals, November 13, 2008 US v. Perkins, No. 07-3383 Convictions for drug and firearms crimes are affirmed over defendant’s objection that evidence regarding his prior convictions for similar offenses, and testimony regarding a prior arrest, were improperly admitted.
U.S. 8th Circuit Court of Appeals, November 14, 2008 Cross v. Mokwa, No. 07-3110 In a 42 U.S.C. section 1983 suit brought by twenty-five protesters against St. Louis, its mayor, and various other officials and police officers, orders denying defendants qualified immunity on various claims are affirmed in part and reversed in part where: 1) denial of qualified immunity on Fourth Amendment claims was error as the actions of officers in entering a condemned building without a warrant to arrest the illegal occupants were not constitutionally unreasonable; 2) denial of qualified immunity on First Amendment claims based on a prior restraint theory was also error as plaintiffs were lawfully arrested for illegally occupying a condemned building, and their property was properly removed from that structure; 3) defendants failed to properly raise challenges to a denial of qualified immunity on strip search claims; and 4) denial of qualified immunity on another plaintiff’s claims was proper.
U.S. 9th Circuit Court of Appeals, November 13, 2008 Torres v. City of Los Angeles, No. 06-55817 In a civil rights action against the City of Los Angeles, the LAPD, and four detectives arising from plaintiff’s arrest on murder charges and 162 days of incarceration prior to his release, rulings in favor of defendants are affirmed in part and reversed in part where: 1) dismissal of plaintiffs’ case against one detective and of plaintiffs section 1983 claim against another detective was proper; but 2) judgment as a matter of law as to two detectives was error; and 3) the district court erred in part as to its denial of plaintiffs’ in limine motions. (Substituted opinion)
U.S. 9th Circuit Court of Appeals, November 13, 2008 In re: Gallaher, No. 07-74593 In a criminal appeal arising from a district court’s refusal to accept a conditional guilty plea, a petition for writ of mandamus challenging the refusal is denied but the matter is remanded for reassignment to a new judge to reconsider the conditional plea where: 1) under Fed. R. Crim. P. 11(a)(2) the district court had discretion to withhold its consent to the conditional guilty plea; 2) the district court exercised its discretion to reject the plea; but 3) the district court erred by reviewing the Presentence Report (PSR) before rejecting defendant’s conditional plea.
U.S. 10th Circuit Court of Appeals, November 12, 2008 US v. Kaufman, No. 06-3099, 06-3124, 06-3125, 07-3151 In a criminal matter involving defendants who had directed severely mentally ill residents of their treatment center to perform sexually explicit acts and farm labor in the nude, allegedly as psychotherapy, their convictions for forced labor and involuntary servitude are affirmed where: 1) even if the trial court plainly erred in ordering defendants to avoid eye contact with former residents who testified against them at trial, they failed to establish that the error affected their substantial rights; 2) there was no plain error in instructing the jury on the meaning of “labor” and “services” under statutes of conviction; and 3) the evidence was sufficient to support the convictions for involuntary servitude. However, on cross-appeal, defendant-wife’s sentence is remanded for resentencing where it was procedurally unreasonable because: 1) the evidence supported applying certain enhancements, and the district court failed to make findings sufficient to justify its refusal to ! apply them; and 2) an obstruction of justice enhancement was supported by the record as well.
U.S. 10th Circuit Court of Appeals, November 12, 2008 US v. Alapizco-Valenzuela, No. 07-3327 A sentence for transporting illegal aliens for private financial gain is affirmed over defendant’s challenges to: 1) the application of a two-level enhancement under U.S.S.G. section 2L1.1(b)(8) for detaining an alien involuntarily through coercion or threat, or in connection with a demand for payment; and 2) a decision to grant a motion for an upward departure and upward variance.
U.S. 10th Circuit Court of Appeals, November 12, 2008 US v. Thompson, No. 07-6238 A conviction for gun possession by a convicted felon is affirmed over a claim of erroneous denial of a motion to suppress evidence where: 1) defendant’s initial encounter with an officer was consensual; 2) once defendant said that he had a gun in his back pocket, the officer had probable cause to seize the gun and arrest him; and 3) it was irrelevant whether defendant continued to provide consent for this search, as the requisite level of suspicion existed to justify such a search and seizure.
U.S. 10th Circuit Court of Appeals, November 12, 2008 US v. Benally, No. 08-4009 Grant of a motion for a new trial from a conviction for forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon is reversed and the conviction reinstated where: 1) the district court erred in admitting both a juror’s testimony about racial bias and juror testimony about sending a message under Federal Rule of Evidence 606(b); and 2) this was the only evidence that defendant presented to challenge the verdict. .
U.S. 10th Circuit Court of Appeals, November 12, 2008 US v. Fay, No. 08-5009 Revocation of defendant’s supervised release and a denial of his request to serve his revocation sentence concurrently with a previously discharged state sentence is affirmed where: 1) the totality of the circumstances showed that defendant admitted the allegations in the petition, which established that he had violated the terms of his supervised release; and 2) the district court correctly read 18 U.S.C. section 3584(a) and did not err in concluding that it lacked the authority to impose a sentence to be served concurrently with defendant’s discharged state sentence.
U.S. 11th Circuit Court of Appeals, November 10, 2008 US v. Steed, No. 0810557 In a per curiam decision, conviction and sentence for possession with intent to distribute marijuana is affirmed where: 1) the district court did not err by denying co-defendant’s motion to suppress; 2) the district court did not abuse its discretion in connection with co-defendant’s expert testimony; 3) the district court did not commit reversible error by instructing the jury on a theory of deliberate ignorance; and 4) the district court did not violate co-defendant’s Sixth Amendment rights at sentencing.
U.S. 11th Circuit Court of Appeals, November 12, 2008 US v. James, No. 08-12067 A life sentence for a felony count involving a crack cocaine and powder cocaine offense is affirmed over claims of error that: 1) Amendment 706 to the sentencing guidelines lowered his base offense level by two levels and, as a result, lowered his guidelines range; and 2) the district court should recalculate the drug quantities for which he is accountable in light of US v. Booker and Kimbrough v. U.S.
U.S. 11th Circuit Court of Appeals, November 14, 2008 Melson v. Allen, No. 0614047 Death sentence for three robbery-murder convictions is affirmed where: 1) criminal petitioner’s federal habeas petition is untimely under two sections of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); 2) neither triggering date was tolled by petitioner’s Rule 32 proceedings; 3) petitioner also failed to show that the AEDPA’s one-year statute of limitation should have been equitably tolled based on the conduct of his state post-conviction attorneys or his claims of actual innocence; and 4) there were no legal grounds excusing the untimeliness of his federal habeas petition.
U.S. D.C. Circuit Court of Appeals, November 14, 2008 US v. Walker, No. 06-3143 Conviction for being a felon in possession of a firearm and possessing an unregistered firearm is affirmed in part and reversed in part where: 1) the Speedy Trial Act required reversing the unregistered-firearm charge; but 2) the felon-in-possession charge was not required to be joined with the unregistered-firearm charge for double jeopardy purposes.
U.S. D.C. Circuit Court of Appeals, November 14, 2008 US v. Anderson, No. 07-3045, 07-3053 Sentence for tax evasion and fraud is affirmed in part and reversed in part where: 1) there was no ex post facto violation in the sentencing of defendant using a later version of the sentencing guidelines, since the sentence would have been the same even had he been sentenced under prior guidelines; 2) the term of imprisonment imposed was reasonable; and 3) the district court incorrectly ruled that it lacked authority to order restitution to the federal government.
U.S. D.C. Circuit Court of Appeals, November 14, 2008 US v. Gardellini, No. 07-3089 Sentence for filing a false tax return is affirmed, despite falling below the guideline range, where the sentencing court properly considered all of the sentencing factors and imposed a substantively reasonable sentence.
Supreme Court of Florida, November 13, 2008 State of Florida v. Pearce, No. SC07-201 Conviction for first-degree murder is affirmed, and death sentence vacated and remanded for resentencing, where: 1) the alleged ineffectiveness of defendant’s guilt-phase counsel did not prejudice defendant, and he was not entitled to a new trial on that basis; but 2) penalty-phase counsel was ineffective for failing to properly investigate possible mitigating evidence, and defendant was prejudiced by this failure.
California Appellate Districts, November 10, 2008 People v. Anderson, No. H031106 Conviction for committing a lewd or lascivious act on a child of 14 or 15 years by a person at least 10 years older than that child is affirmed where: 1) error was committed at the beginning of opening argument when the prosecutor misstated the law concerning the element of intent for the charged crimes; however, 2) the prosecutorial error did not warrant reversal of the judgment; and 3) a constitutional challenge to a requirement that defendant register as a sex offender is rejected