Findlaw Case Summaries: Criminal Law and Procedure 33

January 18, 2010 – January 1, 2010
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Supreme Court, January 19, 2010 Wellons v. Hall, No. 09–5731 In a capital habeas matter, the petition for certiorari is granted and the court of appeals’ order is vacated and remanded where the court of appeals incorrectly held that the habeas petition, which claimed that petitioner was denied discovery into the issue of whether there had been improper communications between the judge and jury, was procedurally barred based on an insufficient record, contrary to Cone v. Bell, 556 U.S. ___ (2009).

U.S. Supreme Court, January 20, 2010 Wood v. Allen, No. 08–9156 In capital habeas proceedings, a court of appeals’ reversal of a grant of petitioner’s petition is affirmed where a state court’s conclusion that defense counsel made a strategic decision not to pursue or present evidence of petitioner’s mental deficiencies was not an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

U.S. 1st Circuit Court of Appeals, January 20, 2010 Clements v. Clarke, No. 09-1629 In habeas proceedings of a defendant convicted of second-degree murder and sentenced to life imprisonment, district court’s conclusion that the state trial judge had impermissibly (though unintentionally) coerced a guilty verdict as a result of a series of voir dire examinations of individual jurors is reversed as the AEDPA’s deferential standard of review controls in this case, and the district court employed an insufficiently deferential standard of review.

U.S. 4th Circuit Court of Appeals, January 20, 2010 US v. Martinez-Melgar, No. 08-4569 Sentence on a defendant convicted of drug trafficking and firearm possession is vacated and remanded for resentencing as the district court clearly erred in concluding, on the basis of the record, that defendant’s admission of guilt occurred in a judicial proceeding in open court, and as such, certain criminal history points should not have been assessed.

U.S. 4th Circuit Court of Appeals, January 21, 2010 US v. Williams, No. 08-5000 Conviction for possession of an unregistered machine gun and an unregistered silencer, based on evidence seized from defendant’s home during execution of a search warrant issued in the investigation of threatening and sexually explicit emails concerning minor boys sent by the defendant, is affirmed where: 1) the search for and seizure of the child pornography fell within the scope of the warrant, or in the alternative, its seizure was justified under the plain-view exception to the warrant requirement; and 2) the seizure of the machine gun and the silencer was justified by the plain-view exception.

U.S. 4th Circuit Court of Appeals, January 21, 2010 US v. Fennell , No. 08-7238 District court’s imposition of a 96 months sentence on a defendant convicted of conspiracy to distribute and possess with the intent to distribute more than 50 grams of cocaine base is vacated and remanded for resentencing as the district court misapprehended the scope of its discretion at resentencing, as a sentencing court may use any reasonable method in calculating a downward departure during resentencing and is not limited by any specific method previously used. .

U.S. 5th Circuit Court of Appeals, January 22, 2010 US v. Pineda, No. 08-41301 The $100 special assessment portion of the district court’s order revoking defendant’s supervised release for illegal reentry into the U.S. is vacated where the district court erred in reimposing the unpaid assessment from defendant’s sentence for a prior offense, because neither 18 U.S.C. section 3013 nor 18 U.S.C. section 3583, which concerned supervised release, sanctioned the imposition of a section 3013 assessment for revocation of a term of supervised release.

U.S. 6th Circuit Court of Appeals, January 19, 2010 US v. Gillis, No. 07-3754 District court’s imposition of a sentence of 262 months’ imprisonment followed by six years of supervised release on a defendant convicted of possession and sale of crack cocaine within 1000 feet of a public school is affirmed in part and reversed in part and remanded where: 1) the government has not met its burden of showing that an error by the district court was harmless because it cannot be concluded that the court would have imposed the same sentence had it known that the career offender Guidelines were advisory; and 2) a denial of defendant’s motion for a reduced sentence is affirmed as his career offender status disqualified him from receiving a reduced sentence under Guidelines Amendment 706 for crack cocaine offenses under Guideline 2D1.1. ..

U.S. 6th Circuit Court of Appeals, January 19, 2010 Smith v. Bradshaw, No. 07-4305 A denial of a request for habeas relief by a defendant convicted and sentenced to death for raping and murdering a six-month-old baby is affirmed where: 1) defendant’s claim that the prosecutor improperly commented on his failure to testify during the guilt phase is procedurally defaulted and defendant cannot excuse the default through the ineffectiveness of counsel because he cannot show that counsel’s failure to object to this one comment — thereby drawing attention to it — was deficient; 2) defendant’s claim that the penalty instructions violated Caldwell v. Mississippi is procedurally defaulted; 3) defendant’s counsel was not ineffective for failing to object to the penalty instructions; and 4) a state court’s analysis under Beck was reasonable as it is well established that a lesser-included offense instruction is not required where the facts of a murder so strongly indicate intent to kill that the jury could not rationally have a reasonable doubt as to the defendant’! s intent.

U.S. 7th Circuit Court of Appeals, January 19, 2010 US v. Johnson, No. 09-1912 Defendant’s conviction for drug related crimes is vacated in part, affirmed in part and remanded where: 1) defendant’s conspiracy conviction is vacated as a drug purchaser does not enter into a conspiracy with his supplier by reselling the drugs to his own customers, as a conspiracy requires evidence that the buyer and seller entered into an agreement to commit a crime other than the crime that consists of the sale itself; 2) defendant’s remaining convictions are affirmed as there was sufficient evidence to affirm the jury’s verdict for possession of cocaine with intent to distribute and using a telephone to facilitate a drug felony; and 3) defendant’s 72-month sentence is vacated and remanded as it hinged largely on his conspiracy conviction.

U.S. 7th Circuit Court of Appeals, January 20, 2010 US v. Mann , No. 08-3041 Conviction of defendant for possessing child pornography, supported by evidence found while executing a warrant to search defendant’s computers and hard drives for the unrelated crime of voyeurism, is affirmed as, although an officer exceeded the scope of the warrant by opening certain files, those files are severable from the remaining files seized.

U.S. 7th Circuit Court of Appeals, January 20, 2010 US v. Mitten, No. 09-1758 Conviction and sentence of a defendant for possessing five grams or more of crack cocaine with intent to distribute and unlawful possession of a firearm in furtherance of a drug trafficking crime is affirmed where: 1) the affidavit was not so lacking in probable cause that the officer could not have believed the warrant was valid; 2) jury had sufficient evidence to conclude that the gun was possessed in furtherance of the drug trafficking crime; and 3) defendant’s argument, that the minimum ten-year sentence to which he was subject to on the underlying drug trafficking crime rendered him exempt from section 924(c)’s consecutive sentence scheme, is foreclosed by prior case law.

U.S. 7th Circuit Court of Appeals, January 21, 2010 Ray v. Boatwright, No. 08-2825 Denial of defendant’s petition for habeas relief is reversed and remanded where: 1) the detective testifying to the co-actors’ statements violated defendant’s right of confrontation; 2) the statements were inadmissible under Roberts as they neither fell within a firmly rooted hearsay exception nor did they contain particularized guarantees of trustworthiness; 3) the error in admitting statements by the nontestifying co-actors was plain and defendant’s substantial rights were affected; and 4) defendant’s petition is determined to be timely. Read more…

U.S. 7th Circuit Court of Appeals, January 21, 2010 Bennett v. Gaetz, No. 08-3262 Denial of a habeas petition from a conviction for possession of a stolen vehicle is affirmed as defendant failed to establish a prima facie case of racial discrimination under Batson.

U.S. 7th Circuit Court of Appeals, January 21, 2010 US v. Pappas, No. 09-1595 In a prosecution for possession of child pornography, grant of defendant’s motion to suppress evidence seized during a search of his home, as well as statements he made during the execution of the search warrant is reversed where: 1) even if probable cause did not support issuance of the warrant, the federal agent demonstrated a prima facie case of good faith by obtaining a warrant in the first instance; and 2) although there was some delay between the transmission of child pornography to defendant and the issuance of the warrant, the delay was not so great as to overcome the presumption of good faith, nor was there anything impermissible in including information related to the practices of child pornography “collectors” given that numerous images of child pornography were sent to defendant.

U.S. 7th Circuit Court of Appeals, January 22, 2010 Doe-2 v. McLean County Unit Dist. No. 5, No. 09-1936 In plaintiff’s action against a county school district under Title IX of the Education Amendments of 1972, 20 U.S.C. section 1681(a), alleging that defendants knew that an elementary school teacher sexually harassed students at another county but allowed him to obtain a teaching job at another school, district court’s dismissal of the complaint is affirmed where: 1) at the time the teacher abused the plaintiff, the defendants lacked the requisite control over him to establish deliberate indifference liability under Title IX; and 2) defendants did not owe a duty to plaintiff enforceable under Illinois tort law.

U.S. 8th Circuit Court of Appeals, January 20, 2010 US v. Rill, No. 09-1262 Defendant’s sentence for attempted escape from federal custody is affirmed where the district court did not clearly err in finding that defendant was about to complete all of the acts necessary for the escape but for discovery of the escape attempt by corrections officers, and thus defendant was not entitled to a three-level reduction in his base offense level under U.S.S.G. section 2X1.1(b)(1).

U.S. 8th Circuit Court of Appeals, January 21, 2010 US v. Spencer, No. 09-1196 Defendants’ cocaine distribution convictions and sentences are affirmed where: 1) the indictment was not duplicitous because the evidence, viewed most favorably to the verdict, sufficiently established a single conspiracy between defendants; 2) to meet its burden, the government needed to show only that each defendant conspired with others within the limitations period; and 3) a reasonable juror would not naturally and necessarily interpret a codefendant’s opening statement as commenting on defendants’ failure to testify.

U.S. 9th Circuit Court of Appeals, January 19, 2010 US v. Aguirre-Ganceda, No. 08-35696 In an appeal from a denial of defendant’s motion to correct his sentence as untimely, the order is affirmed where: 1) the district court properly determined that defendant’s judgment of conviction became final upon the Supreme Court’s denial of certiorari; and 2) extraordinary circumstances justifying equitable tolling did not include defendant’s lawyer’s miscalculation of a limitation period.

U.S. 9th Circuit Court of Appeals, January 19, 2010 US v. Palos-Marquez, No. 08-50498 Defendant’s conviction for transportation of illegal aliens is affirmed where an in-person tip by an unidentified informant provided reasonable suspicion to support border patrol agents’ investigatory stop of defendant’s vehicle.

U.S. 9th Circuit Court of Appeals, January 22, 2010 US v. Green, No. 08-10149 Defendant’s wire fraud and bid rigging convictions are affirmed where: 1) defendant’s conduct did not need to violate a rule or regulation of the E-Rate educational funding program in order to be fraudulent; 2) even accepting that her ultimate motives were laudable, defendant concealed material facts from the federal government in an attempt to induce it to fund her projects; and 3) the evidence at trial easily supported the jury’s finding that defendant participated in multiple bid-rigging conspiracies.

U.S. 10th Circuit Court of Appeals, January 22, 2010 US v. James, No. 08-1115 Defendant’s wire fraud and money laundering sentence is affirmed in part where the district court did not clearly err in finding that defendant was an organizer of the fraudulent scheme. However, the sentence is remanded where the record included no evidence to support an inference that the foreclosure sales prices at issue were appropriate estimates of what the original lenders received when they sold the loans to the successor lenders.

U.S. 10th Circuit Court of Appeals, January 22, 2010 US v. Brown, No. 09-6079 Defendant’s attempted armed robbery conviction is affirmed where the government’s summary of an expert’s proposed testimony stated that she would testify that the latent fingerprint on a job application left at the scene of the crime was defendant’s, as did her own report, and thus the summary substantially complied with Fed. R. Crim. P. 16.

U.S. 11th Circuit Court of Appeals, January 22, 2010 US v. Marquez, No. 08-12588 Defendant’s RICO conspiracy conviction is affirmed where: 1) defendant failed to raise objections to his extradition from Spain in a timely manner; and 2) the district court did not abuse its discretion in denying defendant’s other post-trial motions, for the reasons stated by the district court.

U.S. D.C. Circuit Court of Appeals, January 22, 2010 US v. Love, No. 07-3140 Defendant’s sentence for transporting child pornography is affirmed in part where: 1) the district court based its application of the U.S.S.G. section 2G2.2 sentencing enhancement on defendant’s distribution of child pornography, and thus committed no error; 2) nothing in the Guidelines supported defendant’s argument that section 2G2.2(b)(3)(E) applied only to distribution of child pornography “directly” to a minor; and 3) because the district court made treatment a mandatory condition of defendant’s supervised release, there was no vagueness in the order regarding who was to decide whether treatment is necessary. However, the sentence is vacated in part where the district court needed to conform the condition in the written judgment relating to possession of sexual materials to the corresponding condition imposed orally at the sentencing hearing.

Supreme Court of California, January 21, 2010 In re Freeman, No. S150984 Court of appeals’ reversal of defendant’s conviction for child endangerment and related crimes is reversed and remanded as, while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient, and in light of Caperton v. A.T. Massey Coal Co., Inc., __ U.S. __ (2009), this case does not present the “extreme facts” that require judicial disqualification on due process grounds.

Supreme Court of California, January 21, 2010 People v. Kelly, No. S164830 In an action arising from a conviction of a defendant for possessing more than 28.5 grams of marijuana, court of appeals judgment determining the validity of Health & Safety Code section 11362.77 which prescribes the amount of marijuana that a qualified patient may possess or cultivate is affirmed in part and reversed in part where: 1) insofar as section 11362.77 burdens a defense under the CUA to a criminal charge of possessing or cultivating marijuana, it impermissibly amends the Compassionate Use Act (CUA) and in that respect is invalid under California Constitution article II, section 10(c); and 2) the Court of Appeals erred in concluding that section 11362.77 must be severed from the Medical Marijuana Program (MMP) and hence voided.

Supreme Court of Florida, January 21, 2010 Johnston v. State of Florida, No. SC09-839 Denial of defendant’s request for postconviction relief, following his conviction for first-degree murder and death sentence, is affirmed where: 1) trial court applied the correct newly discovered evidence standard and determined, in light of all the now available and admissible evidence, that the newly discovered evidence would not exonerate defendant; 2) a a report in a scientific journal presented by defendant does not constitute newly discovered evidence; 3) postconviction court did not err in denying production of the fingerprints and shoeprint evidence for additional testing, and that denial of the motion did not deprive defendant of due process; 4) no specific procedures are mandates in the clemency process and defendant has been provided with the clemency proceedings to which he is entitled; 5) defendant’s claim of mental illness was procedurally barred, and even if the claim were not procedurally barred, it is without merit; 6) defendant’s claim that execution after! an inordinate length of time on death row is unconstitutional is without merit; and 7) defendant’s claim that he is entitled to relief due to the leg shackles, when he insisted on wearing more noticeable belt restraints, is without merit.

California Appellate Districts, January 21, 2010 People v. Sok, No. B213467 Trial court’s imposition of 84 year sentence on a defendant convicted of attempted murder and related crimes is reversed and remanded where: 1) trial court erred in calculating defendant’s sentence for the attempted murder count; 2) trial court erred in applying the criminal street gang enhancement to defendant’s sentence for shooting at an occupied vehicle; 3) absent different discretionary sentencing choices by the trial court, on remand the court should impose the aggregate sentence for shooting at an occupied vehicle, while staying the sentences attempted murder charges pursuant to section 654; and 4) trial court improperly sentenced defendant on the unlawful gun possession and ammunition counts.

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