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May 17-21, 2010
U.S. 1st Circuit Court of Appeals, May 17, 2010 Parsley v. US, No. 09-1690 District court’s denial of defendant’s motion under 28 U.S.C. section 2255 motion to vacate his sentence for his drug related conviction is affirmed as the district court’s conclusion that trial counsel did not render ineffective assistance are largely uncontested and not clearly erroneous. .
U.S. 2nd Circuit Court of Appeals, May 21, 2010 US v. Oluwanisola, No. 08-4442 Defendant’s convictions for conspiring to import heroin into the U.S., conspiring to possess with intent to distribute heroin, and possessing heroin with intent to distribute are vacated where the district court erred in applying United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), to whether certain evidence elicited at trial would open the door to the admission of proffer statements.
U.S. 2nd Circuit Court of Appeals, May 21, 2010 Johnston v. Maha, No. 08-6048 In a civil rights action regarding the conditions of plaintiff-inmate’s confinement, plaintiff’s motion for appointment of counsel in his appeal of a grant of defendants’ motion for summary judgment is granted where plaintiff’s claims met the threshold standard of likely merit and presented issues of substantial complexity such that appointment of counsel would be of significant benefit to the court.
U.S. 5th Circuit Court of Appeals, May 18, 2010 US v. Loftis, No. 09-10482 In defendant’s appeal from the district court’s order of garnishment, which set aside a community property partition agreement entered into between defendant and her husband, the order is affirmed where: 1) the partition agreement was clearly voidable as a fraudulent transfer under 28 U.S.C. section 3304(b)(1)(B)(ii); and 2) the district court was correct to treat the couple’s assets as jointly managed property.
U.S. 5th Circuit Court of Appeals, May 21, 2010 Meza v. Livingston, No. 09-50367 In a civil rights action for violations of plaintiff’s right to due process after defendants attached sex offender conditions to plaintiff’s mandatory supervision, judgment for plaintiff is affirmed in part where: 1) the Texas procedure for providing parolees with their Coleman notice did not meet the constitutional requirements for procedural due process; and 2) on the spectrum of due process rights afforded by the Supreme Court in analogous cases, requiring a parolee who has not been convicted of a sex offense to register as a sex offender or participate in sex offender therapy required more process than was provided to the inmate in Wolff, but less process than was provided in Vitek. However, the order is vacated in part where the due process clause did not entitle plaintiff to counsel in Coleman notice proceedings.
U.S. 6th Circuit Court of Appeals, May 17, 2010 Johnson v. Bell, No. 05-6925 Denial of defendant’s motions for equitable relief, following his conviction of murdering his wife and sentence to death, is affirmed in part and dismissed in part where: 1) district court’s denial of defendant’s Rule 60(b) motion is affirmed as defendant has not come forward with clear and convincing evidence that the prosecution presented intentionally false material to the the district court; and 2) defendant’s second Rule 60(b) is dismissed as he failed to first obtain leave from the court to file a successive application. .
U.S. 6th Circuit Court of Appeals, May 17, 2010 US v. Aguire, No. 08-5477 Conviction of defendant for possession with intent to distribute cocaine, and for possession of firearms in furtherance of a drug trafficking offense are affirmed as: 1) if a defendant has disclosed truthful information to demonstrate financial inability and obtain counsel under the Sixth Amendment, that information may not thereafter be admitted against him at trial on the issue of guilt; 2) in this case, the information disclosed by defendant in his financial affidavit was disclosed in order to obtain counsel, and the admission of the affidavit was error; but 3) the error was not plain and reversal was not required.
U.S. 6th Circuit Court of Appeals, May 18, 2010 US v. Munoz , No. 09-5357 District court’s grant of defendant’s untimely Rule 33 motion for a new trial following his conviction for drug related offenses, but before sentencing after obtaining a new counsel, is reversed as, although the district court did not abuse its discretion in determining that defendant’s untimely filing of his Rule 33 motion was the result of excusable neglect, defendant’s former trial counsel’s assistance more than met the minimum standard required by the Sixth Amendment.
U.S. 6th Circuit Court of Appeals, May 19, 2010 US v. Curry , No. 08-1732 In defendant’s motion to modify or reduce his sentence below the bottom of the sentencing guidelines range of 73 months’ imprisonment, pursuant to 18 U.S.C. section 3582(c)(2), following his conviction for being a felon in possession of a firearm, district court’s denial of the motion is affirmed where: 1) the district court applied the correct legal standard when it concluded that it had the discretion to entertain defendant’s motion on the merits; and 2) under the circumstances, the district court did not abuse its discretion in denying the defendant’s motion for further modification of his sentence. .
U.S. 6th Circuit Court of Appeals, May 19, 2010 US v. Anderson , No. 08-6152 In a conviction of an owner of a long-term healthcare facility for Medicaid fraud, district court’s denial of defendant’s motion to dismiss the indictment for duplicity, refusal to instruct the jury with instructions to cure the duplicity and post-trial motion to dismiss the indictment are affirmed where: 1) the district court did not err in denying plaintiff’s post-trial motion to dismiss the indictment for failure to state an offense as the indictment satisfied both of Hamling’s requirements; 2) defendant’s claim that 42 U.S.C. section 1320a-7(b) violates due process by failing to give fair notice of what it prohibits is without merit; and 3) defendant’s claim that the indictment is duplicitous is without merit, and thus the district court acted within in discretion in denying the jury instructions requested by defendant to cure the alleged duplicity. .
U.S. 6th Circuit Court of Appeals, May 19, 2010 US v. Lewis , No. 09-1162 Conviction of defendant for transporting a visual depiction of a minor engaged in sexually explicit conduct and sentenced to 151 months’ imprisonment are affirmed where: 1) defendant’s ineffective assistance of counsel claim is dismissed as facts are not sufficiently developed in the record for proper review; 2) district court’s denial of defendant’s motion for a second ends of justice continuance as his motion to suppress the evidence seized pursuant to the authorized search is without merit, and thus, defendant cannot show that he was prejudiced by the denial of continuance so that he could file his suppression motion; and 3) district court’s application of a two-level sentence enhancement for his use of a computer to transmit the illicit images is affirmed.
U.S. 6th Circuit Court of Appeals, May 20, 2010 US v. Jimenez , No. 08-6435 District court’s imposition of a 30 month sentence upon a defendant convicted of illegally re-entering the U.S. after having previously been deported following an aggravated felony conviction is affirmed where: 1) district court did not commit procedural error by relying on evidence of prior convictions in assessing criminal history points; 2) defendant’s claim that the district court’s finding that she re-entered the U.S. in December 1997 and remained here continuously thereafter is not supported by a preponderance of the evidence; and 3) defendant’s sentence, at the low end of the advisory sentencing guidelines range, is not substantively unreasonable.
U.S. 7th Circuit Court of Appeals, May 17, 2010 US v. Maiden, No. 09-3747 District court’s application of a two-level bodily injury enhancement to defendant’s sentence for bank robbery and carrying a firearm during a crime of violence is affirmed as there was sufficient evidence to determine that defendant inflicted bodily injury during the commission of his crime and the court properly applied the two-point enhancement.
U.S. 7th Circuit Court of Appeals, May 20, 2010 Fed. Trade Comm’n v. Trudeau, No. 10-1383 District court’s summary disposition, sentencing defendant to thirty days for direct criminal contempt of court for directing his fans to send emails on his behalf directly to the court during civil contempt proceedings (for violating the terms of a consent order barring him from misrepresenting the content of any of his books on TV), is vacated and remanded as the district court’s summary punishment was an abuse of discretion as defendant’s conduct occurred outside the judge’s presence as required under Rule 42.
U.S. 7th Circuit Court of Appeals, May 21, 2010 Carmichael v. Village of Palatine, No. 09-1010 In plaintiffs’ 42 U.S.C. section 1983 suit against police officers and their employer claiming unreasonable search and seizure, false arrest and excessive force, as well as other state law claims, district court’s grant of summary judgment in favor of the defendants is affirmed in part and reversed in part where: 1) district court erred in finding that probable cause supported the initial stop of plaintiffs; 2) district court’s judgment with respect to plaintiff’s claim that he was searched in a manner violative of his rights under the Fourth Amendment is reversed; and 3) district court correctly concluded that all of plaintiffs’ pendent state law claims had been waived.
U.S. 7th Circuit Court of Appeals, May 21, 2010 US v. Ramirez, No. 09-1815 District court’s conviction of defendant for possessing more than two tons of marijuana with intent to distribute and imposition of a 300 month sentence as a career offender are affirmed as, on plain-error review, the burden of demonstrating both error and prejudice is on the defendant, and here, defendant not only has not demonstrated that the PSR’s statements are incorrect but has not even argued that they could not be supported by allowable sources. ..
U.S. 8th Circuit Court of Appeals, May 17, 2010 White v. McKinley, No. 09-1945 In a civil rights action challenging plaintiff’s prosecution, conviction, re-prosecution, and eventual acquittal for the alleged molestation of his adopted daughter, judgment for plaintiff is affirmed where: 1) defendant was not permitted to relitigate the issue of qualified immunity; 2) defendant failed to offer any actual evidence — expert or otherwise — that plaintiff, a convicted child molester, would have been released on bond pending his re-trial; 3) the district court did not abuse its discretion in prohibiting defendant from eliciting testimony from the prosecutor in plaintiff’s case as to whether defendant had testified correctly during his deposition, as the jury heard defendant’s own testimony that he believed that he had testified correctly; and 4) the punitive damages award amounted to approximately seven percent of the actual damages, and thus there was no plain error in the punitive damages award.
U.S. 8th Circuit Court of Appeals, May 20, 2010 US v. Colbert, No. 08-3243 Defendant’s possession of child pornography conviction is affirmed where: 1) although the search warrant affidavit was not a model of detailed police work, it set forth a number of specific facts and explains the investigation that took place; 2) the state court judge could reasonably have concluded that the facts in the affidavit established a fair probability that child pornography would be found in defendant’s apartment; and 3) there is no indication that the state court judge failed to perform his proper judicial function or that the officers in this case acted other than in good faith when they carried out the search.
U.S. 8th Circuit Court of Appeals, May 20, 2010 US v. Williams, No. 09-1939 Defendant’s conviction and sentence for conspiracy to possess with the intent to distribute MDMA and money laundering are affirmed where: 1) there was sufficient evidence that defendant wanted not only to shield himself from reporting requirements but also to actively conceal the nature or source of the funds; 2) the district court did not abuse its discretion by providing the jury with an instruction that did not define “proceeds” as the profits of the drug trafficking operation; 3) there was no clear error in the district court’s calculation of drug quantity attributable to defendant; and 4) the district court made an individualized assessment in sentencing based on all facts presented, addressing defendant’s proffered information in its considerations of the 18 U.S.C. section 3553(a) factors.
U.S. 8th Circuit Court of Appeals, May 21, 2010 US v. Rainey, No. 07-3775 Defendant’s sentence for conspiracy to distribute cocaine base, distribution of cocaine base, and possession with intent to distribute cocaine base, is affirmed where, because there was no showing that the U.S. Attorney’s Office knew of an address change for defendant, the U.S. Attorney properly served defendant by mailing notice to the jail where defendant was incarcerated.
U.S. 8th Circuit Court of Appeals, May 21, 2010 US v. Marquez, No. 09-1743 Defendant’s conviction and sentence for conspiracy to distribute marijuana are affirmed where: 1) there was no reason to conclude that defendant lacked the capacity to waive his Miranda rights, or that his waiver was anything but knowingly, voluntarily, and intelligently given; 2) a person traveling via automobile on public streets had no reasonable expectation of privacy in his movements from one locale to another; 3) defendant failed to demonstrate that admission of a firearm was unfairly prejudicial; and 4) the record contained substantial evidence that it was reasonably foreseeable to defendant that the conspiracy would transport at least 1,000 kilograms of marijuana.
U.S. 9th Circuit Court of Appeals, May 17, 2010 Peterson v. Cal., No. 09-15633 In an action claiming that California Proposition 115 (Prop. 115), the Crime Victims Justice Reform Act, violated plaintiff’s constitutional rights under the Fourth, Sixth, and Fourteenth Amendments, judgment on the pleadings for defendant is affirmed where: 1) the admission of hearsay statements at a preliminary hearing does not violate the Confrontation Clause, and thus Prop. 115 does not violate the Sixth Amendment; and 2) the preliminary hearing was not required to include the right of confrontation in order to satisfy the requirements of due process.
U.S. 9th Circuit Court of Appeals, May 19, 2010 US v. Gallaher, No. 09-30193 In a capital murder prosecution, the denial of defendant’s motion to dismiss his superseding indictment is affirmed where the plain text of 18 U.S.C. section 1111(b) mandated that the court of appeals continue to categorize first degree murder as a crime punishable by death.
U.S. 9th Circuit Court of Appeals, May 20, 2010 Rivera-Cuartas v. Holder, No. 07-74999 In a petition for review of the BIA’s order removing petitioner from the U.S., the petition is granted where Arizona Revised Statutes section 13-1405, which criminalizes sexual conduct with a minor under eighteen years of age, did not constitute an aggravated felony for the purposes of immigration law. ..
U.S. 9th Circuit Court of Appeals, May 20, 2010 Maxwell v. Roe, No. 08-55534 In a murder prosecution, a denial of petitioner’s habeas petition is reversed where the trial court’s holding that petitioner was competent to stand trial, in light of the evidence before the trial court at the time of petitioner’s 1998 trial, was an unreasonable determination of the facts and an unreasonable application of the Supreme Court’s clearly established law in Pate and Drope.
U.S. 10th Circuit Court of Appeals, May 17, 2010 Lewis v. Tripp, No. 09-6105 In an action by a chiropractor whose license had been revoked claiming that an administrative search of his office was carried out in violation of his Fourth Amendment rights, a denial of summary judgment to defendant (the president of the Oklahoma Board of Chiropractic Examiners) is reversed where defendant was entitled to qualified immunity because there was no evidence in the record to suggest that defendant was personally involved in the Fourth Amendment violation plaintiff alleged.
U.S. 10th Circuit Court of Appeals, May 19, 2010 US v. McConnell, No. 09-3036 Defendant’s sentence for possessing a firearm after conviction of a felony is affirmed where defendant’s prior Kansas state conviction for eluding a law enforcement officer constituted a “crime of violence” under U.S.S.G. section 2K2.1(a)(4)(A). .
U.S. 11th Circuit Court of Appeals, May 17, 2010 US v. Frazier, No. 08-11655 Defendants’ convictions for making false statements to a firearms dealer in connection with the acquisition of firearms, exporting firearms and money laundering are affirmed where: 1) defendant’s identity was material to the lawfulness of the firearms sales at issue; 2) because defendant stipulated that he did not have a license to export firearms to Canada, the jury reasonably determined that he had violated 18 U.S.C. section 554(a) beyond a reasonable doubt and the district court did not err in denying his motion for judgment of acquittal; and 3) a reasonable jury would be able to infer that a wire transaction was the proceeds of unlawful activity that defendant had knowledge of. However, one defendant’s sentence is reversed where a miscalculated Sentencing Guidelines offense level affected defendant’s substantial rights.
U.S. 11th Circuit Court of Appeals, May 19, 2010 US v. Martinez, No. 08-13846 In a petition for rehearing of the court of appeal’s prior decision, which permitted the government to introduce new evidence on remand to support a claimed leadership sentencing enhancement in a criminal matter, the petition is denied where 28 U.S.C. section 2106 granted the courts of appeal broad discretion to fashion mandates to allow appropriate proceedings on remand in a criminal case, and Eleventh Circuit precedent had long held that an appellate panel may in an appropriate case permit the government to introduce new evidence on a remand for resentencing.
U.S. D.C. Circuit Court of Appeals, May 18, 2010 Diamen v. US, No. 09-5177 Denial of a motion for a “certificate of innocence” in order to pursue a damages claim in the Court of Federal Claims for unjust conviction and imprisonment pursuant to 28 U.S.C. section 1495 is affirmed where the district court had declined to issue a habeas corpus writ setting aside petitioner’s conviction, and was thus unable in the subsequent 28 U.S.C. section 2513 proceeding to certify the statute’s first requisite fact — that petitioner’s conviction had been reversed or set aside — for the simple reason that it had not been.
Supreme Court of California, May 17, 2010 People v. Ceja, No. S157932 In an appeal arising after defendant was convicted by a jury for both petty theft and receiving the property he had stolen, court of appeals’ reversal of the petty theft conviction on the ground that the “greater” felony offense of receiving stolen property took precedence over the “lesser” misdemeanor theft offense is reversed as the rule against dual convictions (which was in effect long before its codification in 1992) is based on the premise that a theft conviction operates as a bar to a receiving conviction, and the Legislature gave no indication it meant to change this established practice.
California Appellate Districts, May 17, 2010 People v. Vang, No. C059700 Conviction of defendant for firearm and drug related offenses are affirmed where, because the offenses involve distinct dangers, separate acts, and separate intents, substantial evidence supports the court’s conclusion that a felon in possession of a firearm was a separate offense from possession of methamphetamine while armed.
California Appellate Districts, May 18, 2010 People v. Cropsey , No. C061053 Trial court’s order “reimposing” a $200 restitution fine and a $200 probation revocation restitution fine and an order adding a $200 restitution fine suspended unless parole is revoked, for defendant’s violations of probation following her conviction for assault with a deadly weapon and driving with 0.08 percent or more of alcohol, is affirmed as defendant has not identified legal error. However, the trial court’s words, “reimpose the restitution amounts,” are inconsistent with the principles upon which Chamber was decided, and here, the survival of the $200 restitution fine and $200 probation revocation fine made it unnecessary to “reimpose” those still extant “restitution amounts.”
California Appellate Districts, May 20, 2010 People v. Nguyen, No. G040600 Conviction of defendant for forcible rape, committing lewd act on a child under age 14, and other crimes is affirmed where: 1) section 784.7(a) permits the joinder of any combination of its listed sex crimes, but requires the court to hold a section 954 joinder hearing at which the court may exercise discretion to deny joinder “in the interest of justice and for good cause shown,” and here, the court did not abuse its discretion in permitting a San Bernardino offense to be joined with an Orange County offense for trial in Orange County; 2) although the trial court erroneously admitted evidence of uncharged non-sexual conduct under the purported authority of Evidence Code section 1108, the error was harmless; and 3) defendant’s claims of ineffective assistance of counsel and cumulative error are rejected.