Findlaw Case Summaries: Criminal Law and Procedure 36

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May 31 – June 4, 2010.

U.S. Supreme Court, June 01, 2010 Carr v. US, No. 08–1301 The Seventh Circuit’s affirmance of defendant’s conviction for failure to register as a sex offender in Indiana under the Sex Offender Registration and Notification Act is reversed where 18 U.S.C. section 2250 did not apply to sex offenders whose interstate travel occurred before SORNA’s effective date.

U.S. Supreme Court, June 01, 2010 Berghuis v. Thompkins, No. 08–1470 In a murder prosecution, the Sixth Circuit’s reversal of the district court’s denial of petitioner’s habeas petition is reversed where the state court’s decision rejecting petitioner’s Miranda claim was correct under de novo review and therefore necessarily reasonable under the Antiterrorism and Effective Death Penalty Act’s more deferential standard of review because petitioner’s silence during his interrogation did not invoke his right to remain silent.

U.S. 1st Circuit Court of Appeals, June 02, 2010 US v. Roa-Medina, No. 08-2490 District court’s denial of defendant’s motion to modify his sentence of 72-months for crack and other drug related offenses is affirmed where: 1) defendant was sentenced to a term of imprisonment that was “based on a sentencing range” of 120 months to 135 months, and his reduced sentence represented a 40% deviation from the bottom of that range; and 2) defendant’s sentencing range has not been “lowered” within the meaning of section 3582(c)(2).

U.S. 3rd Circuit Court of Appeals, June 03, 2010 Harris v. Ricci, No. 09-2562 In habeas proceedings arising from a conviction for murder and a sentence of death, a denial of defendant’s petition is affirmed as defendant has not shown that the New Jersey Supreme Court’s decision upholding the use of foreign jurors to ameliorate the effect of the pretrial publicity was contrary to law clearly established by the Supreme Court of the United States.

U.S. 4th Circuit Court of Appeals, June 01, 2010 US v. Ashley, No. 08-4015 Conviction of defendant on federal charges related to his efforts to have a government informant and witness murdered is affirmed where: 1) the evidence satisfied constitutional requirements; and 2) a district court does not constructively amend an indictment by giving a Pinkerton instruction when Pinkerton liability has not been charged by the grand jury.

U.S. 4th Circuit Court of Appeals, June 01, 2010 US v. White, No. 09-4114 District court’s conviction of defendant for being in possession of a firearm after having been convicted of a misdemeanor crime of domestic violence is reversed and the sentence vacated as defendant’s predicate conviction under Virginia law cannot be considered a misdemeanor crime of domestic violence as defined in 18 U.S.C. section 921(a)(33)(A).

U.S. 4th Circuit Court of Appeals, June 03, 2010 US v. Pettiford, No. 09-4119 In defendant’s petition for post-conviction relief from an enhanced sentence of 188 months’ imprisonment for his felonious firearm possession conviction, district court’s grant of the petition on the ground that two of the five convictions used to support his sentence were later vacated, is reversed and remanded where: 1) the district court erred in granting the relief because the court failed to hold defendant to his burden of showing that the vacated sentences rendered his federal sentence unlawful on one of the specified grounds; 2) defendant procedurally defaulted on his claim that the district court improperly enhanced his sentence under the ACCA because he failed to challenge his remaining predicate sentences at sentencing or on direct appeal; and 3) actual innocence applies in the context of habitual offender provisions only where the challenge to eligibility stems from actual innocence of the predicate crimes.

U.S. 4th Circuit Court of Appeals, June 04, 2010 US v. Knight , No. 09-4282 District court’s imposition of a 60 month sentence for a felonious possession conviction is affirmed where: 1) district court did not err in relying on defendant’s arson conviction to increase her base offense level to 20; 2) district court did not err in concluding that, in light of the obstruction-of-justice enhancement she received for absconding, defendant was not entitled to an acceptance of responsibility reduction; and 3) although the district court erred by applying the four-level enhancement for obliterated serial numbers found in the 2007 Guidelines manual, rather than the two-level enhancement contained in the 2005 manual, defendant has not shown that she was prejudiced by that error.

U.S. 4th Circuit Court of Appeals, June 04, 2010 Lewis v. Wheeler , No. 09-4 In a conviction of defendant for capital murder for hire and related crimes for the murders of her husband and stepson, district court’s denial of defendant’s petition for habeas relief and an order granting a certificate of appealability is affirmed where: 1) the state court’s adjudication of defendant’s ineffective assistance of counsel claims is neither contrary to nor an unreasonable application of the applicable precedents; and 2) defendant has failed to demonstrate that counsel’s failure to preserve and advise her of a possible Apprendi/Ring challenge to the constitutionality of Va. Code Ann. section 19.2-257 rises to the level of constitutionally deficient representation and has also failed to show that she was prejudiced as a result of counsel’s alleged deficiencies.

U.S. 6th Circuit Court of Appeals, June 01, 2010 Phillips v. Bradshaw , No. 06-4418 In habeas proceedings arising from a conviction for rape and aggravated murder and a death sentence, denial of the petition is affirmed where: 1) defendant did not meet his burden of demonstrating a reasonable probability that, but for the alleged error of omitting certain mitigating evidence, he would not have been sentenced to death, and he also failed to show that the state court’s decision was contrary to or an unreasonable application of Strickland under the modified-AEDPA standard; 2) sufficient evidence supported defendant’s convictions; 3) defendant did not demonstrate any juror bias; and 4) the re-reading of identical jury instructions did not qualify as critical stages of trial, and defendant identified no prejudice stemming from his counsel’s absence during this event.

U.S. 6th Circuit Court of Appeals, June 02, 2010 US v. Harmon, No. 09-5006 District court’s decision ordering that defendant’s 46-month sentence for being a felon in possession of a firearm in violation of 18 U.S.C. section 922(g)(1) be served consecutively to an undischarged state sentence on an unrelated conviction for voluntary manslaughter is affirmed where: 1) although the district court did not mention U.S.S.G. section 5G1.3(c) by name, the totality of the record shows that the court considered each of the factors contained in application note 3(A) and thus committed no error, much less one that was obvious and clear; and 2) defendant failed to rebut the presumption of reasonableness given to his sentence at the bottom of the applicable Guidelines range.

U.S. 6th Circuit Court of Appeals, June 04, 2010 Swanson v. DeSantis , No. 09-1501 In habeas proceedings arising from a conviction for killing a pedestrian while driving under the influence, district court’s grant of the petition in part in determining that defendant had failed to exhaust her jury instruction claim but had exhausted her Blakely claim, is dismissed for lack of jurisdiction as the district court’s decision to grant or deny a stay of its own proceedings is not ordinarily a final decision for the purposes of section 1291.

U.S. 8th Circuit Court of Appeals, June 01, 2010 US v. Fronk, No. 09-2876 Defendant’s sentence for obtaining a controlled substance by fraud is affirmed where: 1) the district court was entitled to consider defendant’s post-plea attempted procurement of unauthorized medications and the content of her letter to the court in determining whether she had clearly demonstrated acceptance of responsibility; and 2) the district court was aware of, and considered, her lack of a criminal history, her medical conditions, her letters of support, and the 18 U.S.C. section 3553(a) sentencing goals.

U.S. 8th Circuit Court of Appeals, June 04, 2010 US v. Mashek, No. 09-2058 Defendant’s conviction and sentence for attempting to manufacture methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime, are affirmed where: 1) the district court’s findings of facts were not clearly erroneous and its determination that the affidavit in support of the search warrant at issue established probable cause for the issuance of the warrant was well-supported by the record; 2) the admission of certain pseudoephedrine logs did not violate defendant’s constitutional confrontation rights; 3) defendant did not demonstrate a reasonable probability that but for a challenged instruction the result of the proceeding would have been different; and 4) the district court’s determination that defendant committed perjury was not clearly erroneous.

U.S. 8th Circuit Court of Appeals, June 04, 2010 US v. Bryant, No. 09-2532 Defendant’s mail fraud conviction and sentence are affirmed where: 1) defendant’s misrepresentations influenced the intended victim, and were therefore material; 2) the district court recognized its authority to depart downward from defendant’s Guidelines sentence; 3) there was no indication in the record that the district court relied upon defendant’s socio-economic status during sentencing; and 4) the purpose of the Mandatory Victim Restitution Act was to restore the injured party, not to benefit the wrongdoer.

U.S. 9th Circuit Court of Appeals, June 01, 2010 In re: Jordan, No. 09-72379 In a petition for a writ of mandamus ordering the district court to direct the government to return motorcycles seized in connection with a criminal investigation, the petition is denied where the district court did not clear err in determining that, when the government has failed to provide notice of a seizure in accordance with 18 U.S.C. section 983(a)(1)(A), section 983(a)(1)(F) does not compel the government to return seized property before initiating a judicial forfeiture proceeding.

U.S. 9th Circuit Court of Appeals, June 02, 2010 Mendoza v. Holder, No. 08-71007 In a petition for review of the BIA’s decision reversing an order of an Immigration Judge (IJ) and dismissing petitioner’s appeal of the IJ’s subsequent order of removal, the petition is denied where: 1) res judicata did not bar the government from using petitioner’s 2003 shoplifting conviction because it did not bring it up in its first removal proceedings; and 2) the vacatur of petitioner’s conviction for shoplifting in Arizona was for rehabilitative purposes and therefore, the government could use this conviction in his subsequent removal proceeding.

U.S. 10th Circuit Court of Appeals, June 03, 2010 US v. Smith, No. 09-2040 Defendant’s conviction and sentence for sexual assault are affirmed where: 1) nothing suggested that defendant was intoxicated or otherwise incapable of sufficient comprehension, when the police advised him of his Miranda rights or when he signed the form acknowledging that he had been apprised of, understood, and waived those rights; 2) the presentment rule did not support suppressing defendant’s confession; 3) the victim’s statement that she had been raped constituted an excited utterance; and 4) the conditions of defendant’s supervised release were linked to the offense and no broader than necessary to rehabilitate the defendant and protect the public.

U.S. 10th Circuit Court of Appeals, June 04, 2010 Thomas v. Durastanti, No. 07-3343 In an action claiming that a BATF agent violated plaintiff’s Fourth Amendment right to be free from unreasonable seizures when the agent shot plaintiff, the denial of summary judgment based on qualified immunity is reversed where a reasonable officer would have had probable cause to believe that there was a threat of serious physical harm to himself or others in the situation presented.

U.S. 10th Circuit Court of Appeals, June 04, 2010 US v. Adame-Orozco, No. 09-3296 Defendant’s conviction for illegally reentering the U.S. after a prior deportation is affirmed where defendant was never improperly deprived of the opportunity for judicial review in his federal deportation proceedings, because 8 U.S.C. section 1326(d) did not guarantee judicial review in state court of defendant’s underlying state felony convictions.

U.S. 11th Circuit Court of Appeals, June 01, 2010 US v. Lall, No. 09-10794 Defendant’s convictions for conspiracy to commit credit card fraud, possession of device-making equipment with intent to defraud, and aggravated identity theft are reversed where: 1) defendant did not make a “voluntary, knowing and intelligent waiver of his privilege against self-incrimination and his right to counsel”; 2) in obtaining defendant’s confession, an officer explicitly assured defendant that anything he said would not be used to prosecute him; and 3) defendant’s subsequent confession was similarly the product of improper promises of non-prosecution and thus not voluntary.

U.S. 11th Circuit Court of Appeals, June 02, 2010 Jones v. Sec’y., Dept. of Corrs., No. 10-11497 In a capital habeas matter, a denial of petitioner’s application for a certificate of appealability is affirmed where: 1) the record supported a finding that petitioner’s attorneys made the tactical decision described by the Florida Supreme Court, and it was not debatable that the ruling of that court was a reasonable application of clearly established federal law; 2) the record supports the description of the evidence by the Florida Supreme Court; 3) petitioner did not explain how the introduction of this evidence violated his constitutional rights; and 4) petitioner’s attorneys investigated his mental health, and they presented expert testimony regarding his mental functioning and drug addiction.

U.S. 11th Circuit Court of Appeals, June 03, 2010 US v. Farley, No. 08-15882 Defendant’s conviction and sentence for knowingly crossing “a State line” with intent to engage in a sexual act with a person under the age of twelve is affirmed where: 1) the First Amendment did not protect his sexually explicit conversations with an undercover officer who pretended to be offering her daughter for sex; 2) defendant’s conviction turned on the criminal intent with which he acted, not on the existence of an actual child; 3) even if the FBI did trick defendant into thinking their investigation was about terrorism, there was no evidence they made any promise that questioning would be limited to that subject, or gave him any assurance that statements relating to other crimes would not be used against him; and 4) there was evidence sufficient for a reasonable factfinder to find guilt beyond a reasonable doubt. However, defendant’s sentence is vacated where the thirty-year statutory mandatory minimum sentence imposed on defendant was not constitutionally dispropor! tionate.

New York Court of Appeals, June 03, 2010 People v. Correa, No. 115 In challenges to the rules promulgated by the Chief Judge and Chief Administrative Judge that created either the Bronx Criminal Division or Integrated Domestic Violence parts in Supreme Court, which resulted in the transfer of defendants’ misdemeanor prosecutions from local criminal courts to Supreme Court for trial, defendants’ convictions for their respective offenses are affirmed where the administrators of the unified court system were empowered under the New York state constitution and the Judiciary Law to adopt these rules and Supreme Court — a court of general, concurrent jurisdiction — had the power to adjudicate these misdemeanor cases.

Supreme Court of Florida, June 03, 2010 Banks v. State of Florida, No. SC08-1741 Defendant’s conviction for first-degree murder and sentence of death are affirmed as none of defendant’s claims, including claims that the trial court erred in denying a cause challenge to a prospective juror and in allowing the state to strike two African-American prospective jurors, warrant relief.

Supreme Court of Florida, June 03, 2010 Miller v. State of Florida, No. SC08-287 Defendant’s convictions for first degree murder, attempted first-degree murder, burglary and attempted robbery and a death sentence are affirmed in its entirety as, inter alia: 1) the trial court did not abuse its discretion in excusing a prospective juror for cause; 2) the trial court did not err when it instructed the jury that it could consider the avoid arrest aggravating circumstance; 3) the trial court properly denied a motion to suppress because defendant was fully informed of his right to have counsel appointed; and 4) defendant’s claim that Apprendi requires that a unanimous twelve-person jury make the findings of fact to determine eligibility for the death penalty is rejected.

Supreme Court of Florida, June 03, 2010 State of Florida v. Blair , No. SC09-1407 The decision of the Fourth District Court of Appeal in Blair v. State is approved and the Fifth District’s contrary holding disapproved as pretrial detention may not be ordered based on a failure to appear unless the court finds that the failure to appear was willful, and here, the record is devoid of evidence to suggest that defendant willfully failed to appear and the trial court did not find the failure to appear to be willful.

Supreme Court of Delaware, June 03, 2010 Miller v. State, No. 655, 2009 Defendant’s convictions for driving under the influence of alcohol and for following a motor vehicle too closely are affirmed where the totality of the circumstances created probable cause for the police to administer an intoxilizer test to defendant.

California Appellate Districts, June 02, 2010 People v. Chikosi, No. G041014 Conviction of defendant for driving under the influence of alcohol, driving with a blood-alcohol level of .08% or more, and evading the police, is affirmed as the trial court did not err in allowing witnesses to rely on statements contained in accuracy records in forming their opinions, as the statements contained in the accuracy records were nontestimonial in nature. However, the sentence is modified to stay defendant’s sentence on a count for driving with a blood alcohol level of .08 percent or more.

California Appellate Districts, June 02, 2010 People v. Duarte, No. G041195 Conviction of defendant for firearm and gang related offenses is affirmed but modified as, where the underlying felony is a necessary element of the street terrorism charge, section 654 bars separate punishment, and here, the evidence demonstrated that defendant fired a weapon on one occasion. Therefore, section 654 bars punishment for the firearm offense and a separate punishment for the street terrorism substantive offense for the same conduct.

California Appellate Districts, June 03, 2010 In re D.J. , No. A125867 Juvenile court’s judgment committing minor-defendant to the Division of Juvenile Justice (DJJ) is affirmed as the last petition alleging a DJJ-eligible offense against defendant was an April 2007 petition, which alleged both robbery and assault with a weapon by means of force likely to produce great bodily injury, and here, defendant admitted the robbery count, which is listed in section 707(c) as a DJJ-eligible offense. ..

California Appellate Districts, June 03, 2010 People v. Chung, No. B212210 In a conviction of defendant for animal cruelty, trial court’s denial of motion to suppress evidence of an injured dog on the patio of defendant’s residence and a dead dog in the freezer is affirmed as exigent circumstances permitted warrantless entry of defendant’s residence to aid a live animal police officers reasonably believed was being abused in violation of section 597(a),

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