Findlaw Case Summaries: Criminal Law and Procedure 40

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August 16-20, 2010.

United States First Circuit, 08/17/2010
US v. Donath
Defendant’s appeal of his conviction for his participation in a conspiracy to distribute cocaine and other drugs and a below-guidelines sentence of 90-months’ imprisonment is dismissed as defendant’s waiver of his right to appeal his plea or sentence if it did not exceed 120 months as part of his plea agreement is enforceable and his argument that district court’s error in calculating his sentence by mischaracterizing his prior crimes constituted a miscarriage of justice is meritless.

United States First Circuit, 08/17/2010
Grant v. Warden, Maine State Prison
District court’s denial of defendant’s request for habeas relief from his murder conviction of his mother-in-law is affirmed where: 1) the Maine Supreme Judicial Court’s (SJC) application of the general standard announced in Mosley to the particular facts of defendant’s case falls within the broad limits of reasonableness; and 2) regardless of whether the SJC described its analysis as a “totality of the circumstances” test or a four-factor test, its conclusion was not an unreasonable application of Mosley.

United States Second Circuit, 08/16/2010
Friedman v. Rehal
In a sexual abuse prosecution, the denial of petitioner’s habeas petition is affirmed where: 1) the fact that hypnosis may have been used to stimulate alleged victims’ memory recall and potentially induce false memories of abuse was a circumstance that would fit comfortably under the general understanding of impeachment evidence — evidence that “is offered to discredit a witness . . . to reduce the effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] or [her] testimony”; and 2) even if hypnosis evidence comes within Brady’s broader definition of exculpatory evidence, the petition would still have to be denied
United States Second Circuit, 08/17/2010
Chavis v. Chappius
A denial of plaintiff-inmate’s motion to proceed in forma pauperis is vacated where: 1) a complaint and a subsequent appeal therefrom qualified as separate “strikes” if both are dismissed for reasons listed in 28 U.S.C. section 1915(g); 2) the district court abused its discretion in denying plaintiff’s motion for leave to amend his complaint; and 3) a plaintiff who satisfies section 1915(g)’s “imminent danger” exception may proceed in forma pauperis on all claims in her complaint.

United States Third Circuit, 08/16/2010
Newman v. Beard
In an inmate’s pro se civil action under 42 U.S.C. section 1983 against various officials of the Pennsylvania Department of Corrections, claiming that the Parole Board violated his First Amendment right, his right to due process, and the Ex Post Facto Clause by using his refusal to admit his guilt to adversely affect his eligibility for parole, a dismissal of the complaint is affirmed where: 1) plaintiff’s First Amendment claim was properly dismissed as the prison may structure its treatment programs and pursue legitimate penological objectives from that standpoint; 2) plaintiff’s substantive due process claim was properly dismissed because the Parole Board’s alleged conduct was not arbitrary and did not shock the conscience; 3) plaintiff’s procedural due process claim was properly dismissed; and 4) district court properly dismissed plaintiff’s Ex Post Facto claim as he cannot show that the Parole Board’s alleged retroactive application of a statute, which provides that certain sex offenders shall attend and participate in a Department of Corrections program of counseling or therapy, created a significant risk of increasing his punishment.

United States Third Circuit, 08/16/2010
US v. Doe
District court’s sentence of 24 months’ imprisonment upon a defendant following revocation of his supervised release, with the objective of helping him recover from his cocaine addiction, is affirmed where: 1) because the plain language and operation of the statute governing post-revocation sentencing, 18 U.S.C. sections 3583(e) and (g), permits a district court to consider medical and rehabilitative needs in imposing a term of post-revocation imprisonment, the sentence is procedurally reasonable; and 2) district court’s sentence is substantively reasonable as defendant has failed to meet the burden of demonstrating that no reasonable sentencing court would have imposed the same sentence for the reasons the district court provided.

United States Third Circuit, 08/17/2010
US v. Allen
In a prosecution of defendant for being a felon in possession of a firearm, a denial of a motion to suppress evidence of a firearm and statements to the police as fruits of an illegal seizure is affirmed as defendant’s Fourth Amendment rights were not violated when the police briefly detained him during execution of the search warrant at a bar.

United States Third Circuit, 08/17/2010
US v. Quiles
In a prosecution of defendants for money laundering and related crimes in connection with defendants’ check cashing business, a denial of defendants’ motions for a new trial is affirmed where: 1) the interest of justice does not require a new trial as the new evidence of defendants’ principal adverse witness’s indictment for child rape and other crimes is merely impeaching; 2) there was sufficient evidence to convict the daughter; 3) the father’s sentence is affirmed as the district court conducted a full sentencing hearing and then sufficiently explained why it was imposing a below-guideline sentence of 60 months imprisonment. .

United States Fourth Circuit, 08/16/2010
US v. Cooper
In a section 2255 proceeding, district court’s denial of defendant’s request that his sentence for his drug trafficking and firearms offenses be vacated on the ground that he received ineffective assistance of counsel is affirmed as, because defendant repeatedly expressed his desire to have the criminal proceeding concluded, received the best possible sentence he could have received under the agreement he entered into with the government, and had no nonfrivolous issues to appeal, defendant has not established that counsel was constitutionally ineffective for failing to consult with him about an appeal or that defendant was prejudiced by counsel’s failure to consult with him. .

United States Fourth Circuit, 08/16/2010
US v. Johnson
Conviction of defendant for conspiracy to possess with the intent to distribute cocaine is reversed and remanded where: 1) district court abused its discretion in admitting a DEA agent’s testimony as a lay witness under Rule 701, and this error was not harmless; and 2) district court erred in admitting the testimony of a prior, alleged drug customer, under Rule 404(b), and despite the district court’s limiting instruction, this error was not harmless.

United States Sixth Circuit, 08/16/2010
US v. Webb
In a prosecution of defendant for producing counterfeit bills and using the bills to purchase merchandise at several businesses, district court’s imposition of an above-Guidelines sentence of 37 months’ imprisonment is affirmed where: 1) the district court did not clearly err in refusing to apply the Application Note 4 exception for bills that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny; and 2) the record reflects that the district court carefully considered many of the section 3553(a) sentencing factors, gave appropriate weight to the most relevant factors, and ultimately reached a reasoned conclusion.

United States Sixth Circuit, 08/16/2010
US v. Corsmeier
Conviction of defendant for conspiracy to commit bank, wire and mail fraud, money laundering and other crimes is reversed and remanded as, whatever minimal probative value certain cocaine evidence may have, the evidence does not satisfy the requirements of Rule 403 that its probative value not be substantially outweighed by its prejudicial effect.

United States Sixth Circuit, 08/17/2010
McKenna v. Honsowetz
In plaintiff’s 42 U.S.C. section 1983 suit against two police officers who responded to a 911 report that plaintiff was having a medical seizure and and thereafter allegedly violated his Fourth Amendment rights, district court’s denial of defendants’ motions for summary judgment based on qualified immunity and reduction of an award for pain and suffering from $275,000 to $10,000 are affirmed where: 1) whether the officers were entitled to qualified immunity depends on whether they acted in a law-enforcement capacity or in an emergency-medical-response capacity when engaging in the conduct that plaintiff claimed violated the Fourth Amendment, and here, the view of the facts undoubtedly supports a finding that the officers acted in a law-enforcement capacity; 2) the record contained ample evidence to support the determination that the officers unreasonably searched the home and seized plaintiff; and 3) plaintiff’s appeal of the reduction in the award is denied as the Supreme Court has clearly stated that a plaintiff cannot appeal a remittitur after he has accepted it.

United States Seventh Circuit, 08/16/2010
US v. Brown
In a prosecution of defendant for possessing crack cocaine with the intent to distribute it, district court’s imposition of a sentence of 150 months’ imprisonment is reversed and remanded in light of US v. Corner as, although defendant received a sentence that was one month less than the low end of the advisory range for powder cocaine career offenders, it is not known how the district court would have sentenced defendant had it known it could disagree with the crack/powder disparity inherent in the career offender guideline.

United States Seventh Circuit, 08/17/2010
US v. Campbell
In a prosecution of defendant for being a felon in possession of a firearm, the imposition of a fifteen-year mandatory minimum sentence to run concurrently with defendant’s state sentence for an unrelated offense, without crediting defendant with the nine months already served for the state sentence, is vacated and remanded as, under section 5G1.3, district court had the discretion to adjust defendant’s sentence to account for the time he had served on his state conviction.

United States Seventh Circuit, 08/17/2010
Issaq v. Holder
An Iraqi citizen’s petition for review of of BIA’s denial of petitioner’s application for withholding of removal and other findings is denied where: 1) a Report is not enough on its own to support a finding that any persecution petitioner, as an Assyrian Christian, would face would occur at the hands of government agents, or would otherwise be condoned by the government; 2) petitioner’s residential burglary crime led to an aggregate of more than five years’ imprisonment and was a “particularly serious” felony for purposes of section 1231(b)(3)(B); and 3) although the IJ erred in overlooking certain evidence in the Report, petitioner has not shown he was prejudiced by the error, and nothing in the record suggests that he was seeking a deferral of removal under the CAT.

United States Seventh Circuit, 08/18/2010
US v. LaFaive
Conviction of defendant on two counts of bank fraud and two counts of aggravated identity theft for assuming the identity of her deceased sister and opening checking accounts in her name and using counterfeited checks is affirmed where: 1) district court did not plainly err in entering the jury’s conviction of defendant for violating 18 U.S.C. section 1028A(a)(1) as the statute criminalizes the misuse of another person’s identity, whether that other person is living or deceased; and 2) the district court did not plainly err in calculating or imposing defendant’s sentence.

United States Ninth Circuit, 08/17/2010
US v. Dotson
Defendants’ convictions for furnishing liquor to minors on an Air Force base are affirmed where assimilation of Washington state law under the Assimilative Crimes Act (ACA) was proper because: 1) 50 U.S.C. app. section 473 and AFI 34-219 contained no generally applicable prohibitions, and thus did not establish federal policy against which a state statute must be measured for conflict or inconsistency; and 2) the specific statute at issue, Wash. Rev. Stat. section 66.44.270, was the type of prohibitory law the court had previously deemed properly assimilated under the ACA.

United States Ninth Circuit, 08/17/2010
US v. Alvarez
Defendant’s conviction for falsely verbally claiming to have received the Congressional Medal of Honor is reversed where the Stolen Valor Act lacked the elements that would make it analogous to the other restrictions on false speech previously held to be proscribable without constitutional problem, and thus the Act was not narrowly drawn to achieve a compelling governmental interest, and was unconstitutional.

United States Ninth Circuit, 08/18/2010
US v. Rivera-Corona
Defendant’s conviction for carrying a firearm in relation to a drug trafficking crime is vacated where the district court erred in summarily rejecting defendant’s request for appointed counsel to replace retained counsel simply because of the expense and the stage of the proceedings.

United States Tenth Circuit, 08/17/2010
US v. Hood
Defendant’s conviction for possession with intent to distribute fifty grams or more of actual methamphetamine is affirmed where: 1) defendant failed to show bad faith on the part of the police in failing to preserve evidence; 2) the district court did not clearly err in rejecting defendant’s claim that his due process rights had been violated under Trombetta and Youngblood; and 3) defendant was not prejudiced by an error in the Enhancement Information.

United States Tenth Circuit, 08/17/2010
Lundstrom v. Romero
In a civil rights action claiming a prolonged detention of plaintiffs, summary judgment for defendant-officers is reversed in part where plaintiffs alleged facts sufficient to demonstrate the officers violated their clearly established constitutional rights because, while the circumstances the officers confronted initially supported a brief investigatory detention, objectively reasonable officers would not have prolonged the detention and searched the home on the facts before them.

United States Eleventh Circuit, 08/17/2010
US v. Newman
Defendant’s sentence for violating the International Parental Kidnapping Crime Act is reversed where the district court clearly erred in finding that the offense was “otherwise extensive in scope, planning, or preparation” and thus enhancing the sentence
United States DC Circuit, 08/17/2010
Sigmund v. Starwood Urban Retail VI, LLC
In an action against the owners of a parking garage where plaintiff was injured by a car bombing, summary judgment for defendants is affirmed where the accidental victim of a car bomb that plaintiff’s half-brother intended for their father could not recover from the third-party defendants he sued unless his half-brother’s crime was foreseeable. .

Supreme Court of Delaware, 08/16/2010
Guy v. State
In a first-degree murder prosecution, the Superior Court’s denial of defendant’s Rule 61 motion for post-conviction relief is affirmed where: 1) defendant made no effort to show why or how the Superior Court abused its discretion in holding that his Batson claim was procedurally barred; 2) defendant offered no evidence that overcame the strong presumption that counsel’s actions should be considered sound trial strategy; and 3) defendant failed to show how different instructions would either have confused the jury or were erroneous as a matter of law