Findlaw Case Summaries: Criminal Law and Procedure 41

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October 4-8, 2010.

United States First Circuit, 10/07/2010
US v. Figueroa-Gonzalez
Conviction of defendant for carjacking and firearm use during and in relation to a crime of violence is affirmed as there was no error, clear or otherwise, as the district court was presented with conflicting evidence and chose to conclude that the evidence was stronger in favor of competency to plead guilty.

United States First Circuit, 10/08/2010
Tevlin v. Spencer
District court’s denial of defendant’s request for habeas relief from his convictions for first-degree murder, armed robbery, and assault and battery by means of a dangerous weapon, is affirmed where: 1) defendant has failed to demonstrate the existence of ineffective assistance of counsel in any of his theories; and 2) the Massachusetts discovery procedures are not on their face unconstitutional and defendant has not established that their application here violated due process. .

United States Second Circuit, 10/06/2010
Matthews v. US
Defendant’s convictions for racketeering, drug-related murder, and the use of a firearm are affirmed where, while drug-related murder can be punishable by death if certain aggravating circumstances are specified in the charging instrument, no such aggravating factors were specified in the information. .

United States Second Circuit, 10/08/2010
Johnson v. US
Petitioner’s application for leave to file a successive 28 U.S.C. section 2255 motion is denied where petitioner’s proposed section 2255 motion would not be “second or successive” under 28 U.S.C. section 2255(h), because it was his first section 2255 motion challenging his amended judgment of conviction. ..

United States Third Circuit, 10/04/2010
Renchenski v. Piazza
In an inmate’s 42 U.S.C. section 1983 suit alleging that his forced participation in sex offender treatment therapy violates several constitutional rights, district court’s grant of summary judgment in favor of the defendants on the inmate’s procedural due process claim is reversed and remanded where, because the inmate was never charged with nor convicted of a sex offense, the procedure he was afforded during his trial and conviction for the 1982 murder cannot serve as the sufficient procedural safeguard for Fourteenth Amendment purposes.

United States Third Circuit, 10/04/2010
Kelly v. Carlisle
In plaintiff’s civil rights suit claiming that his First and Fourth Amendment rights were violated when he was arrested for filming a police officer during a traffic stop, district court’s grant of summary judgment in favor of the police officer and the Borough of Carlisle is affirmed in part, vacated in part and remanded where: 1) district court’s grant of summary judgment in granting qualified immunity to the officer on plaintiff’s Fourth Amendment claims is vacated and remanded because the district court did not consider the facts in the light most favorable to plaintiff, did not evaluate the objective reasonableness of the officer’s decision to rely on the prosecutor’s advice in light of those facts, and did not evaluate sufficiently the state of Pennsylvania law at the relevant time; 2) the right to videotape police officers during traffic stops was not clearly established and the officer was entitled to qualified immunity on plaintiff’s First Amendment claim; and 3) district court’s summary judgment in favor of the Borough of Carlisle is affirmed.

United States Fifth Circuit, 10/05/2010
Hunter v. Tamez
In a 28 U.S.C. section 2241 application challenging the decision of the Federal Bureau of Prisons (BOP) to deny petitioner credit, through a nunc pro tunc order, against his federal sentence for time served in Texas state custody on unrelated state convictions, the application is denied where: 1) the BOP need not give effect to the state sentencing court’s direction that petitioner’s term of imprisonment on his state conviction run concurrently with his already-imposed term of imprisonment on his federal conviction; and 2) the BOP’s order did not violate separation of powers. .

United States Fifth Circuit, 10/06/2010
US v. Jefferson
In the government’s appeal from the district court’s pretrial order excluding evidence of defendant’s prior convictions for purposes of impeachment in a RICO prosecution, the order is vacated where: 1) the court had jurisdiction to hear the appeal under 18 U.S.C. section 3731; and 2) judicial discretion granted with respect to the admissibility of other prior convictions was not applicable to those involving dishonesty or false statements, as defendant’s prior convictions did.

United States Fifth Circuit, 10/06/2010
Gonzalez v. Thaler
In a murder prosecution, the denial of petitioner’s habeas petition is affirmed where the petition was time-barred under 28 U.S.C. section 2244(d)(1) because petitioner failed to file his petition within one year of the expiration of his time to appeal his intermediate state appellate court judgment to the Texas Court of Criminal Appeals.

United States Fifth Circuit, 10/08/2010
Brown v. Callahan
In an action by a decedent’s estate against a sheriff for failure to train and supervise the jail’s medical employees and for maintaining an unconstitutional policy of deliberate indifference to detainees’ serious medical needs, the denial of summary judgment to defendant-sheriff is reversed where there was insufficient evidence of deliberate indifference or objective unreasonableness. .

United States Fifth Circuit, 10/08/2010
US v. Schmidt
Defendant’s sentence for conspiracy to possess a pipe bomb is affirmed where defendant’s prior conviction for theft of a firearm from a licensed gun dealer, in violation of 18 U.S.C. section 922(u), was a violent felony for purposes of the ACCA.

United States Fifth Circuit, 10/08/2010
US v. Gomez
Defendant’s conviction for being a felon in possession of a firearm is affirmed where the district court did not err in finding that the responding officers were justified in stopping and searching defendant’s vehicle in keeping with the requirements of the Fourth Amendment. ..

United States Sixth Circuit, 10/05/2010
Ayers v. Hudson
District court’s denial of defendant’s petition for habeas relief from his murder conviction is reversed and remanded where, because the state intentionally created a situation likely to induce defendant to make incriminating statements without the assistance of counsel, defendant’s Sixth Amendment right to counsel was violated, and the Ohio Court of Appeals unreasonably ruled to the contrary.

United States Sixth Circuit, 10/05/2010
US v. Soto-Sanchez
In a prosecution of defendant for illegal reentry into the United States after deportation, district court’s application of a sixteen-level enhancement to defendant’s offense level under U.S.S.G. section 2L1.2 based on his prior conviction for attempted kidnapping is affirmed as the six offenses punished by Michigan’s former kidnapping statute either fall within the generic, contemporary meaning of kidnapping or have an element involving the use of force, and as such, under the categorical approach, the court cannot look beyond the statute as defendant was necessarily convicted of a crime of violence within the meaning of U.S.S.G. section 2L1.2(b)(1)(A) when he pled guilty to attempted kidnapping in Michigan state court.

United States Sixth Circuit, 10/07/2010
US v. Domenech
In a prosecution of defendants for multiple firearm and drug trafficking offenses, district court’s denial of defendants’ motions to suppress evidence found in their motel room during the course of a warrantless entry is reversed and remanded where: 1) defendants possessed a reasonable expectation of privacy in the motel room; and 2) because the trooper could not see through the frosted window, the district court correctly held that he lacked probable cause to believe that the defendant would destroy evidence of a drug crime, thus, without probable cause, the officers cannot rely on exigent circumstances.

United States Seventh Circuit, 10/07/2010
US v. Reyes-Hernandez
In convictions of defendants for illegally re-entering the United States after being removed following their convictions for aggravated felony crimes, district court’s refusal to consider imposing below-guidelines sentences and thereby refuting defendants’ claims that they should receive lesser sentences based on comparisons to sentences imposed on similarly situated individuals prosecuted in “fast-track” districts is vacated and remanded as section 5K3.1 should be treated as any other guideline, thereby affording district court judges the ability to consider the absence of a fast-track program in crafting an individual sentence. .

United States Seventh Circuit, 10/08/2010
US v. Albiola
Convictions of defendant for attempting to possess with intent to distribute methamphetamine and for knowingly and intentionally using a communication facility in the commission of a controlled substance offense are affirmed where: 1) the district court did not err by admitting evidence of other mailing labels unrelated to the charged offense, because the other mailing labels were admissible as evidence of absence of mistake under Rule 404(b), and any error in their admission was harmless; and 2) although defendant contends that the testimony of a law enforcement agent describing the methods and results of his investigation constituted impermissible hearsay, the testimony did not contain any out-of-court statements.

United States Eighth Circuit, 10/08/2010
US v. Paz
Defendant’s sentence for illegal reentry into the United States in violation of 8 U.S.C. section 1326(b) is affirmed where the district court properly applied the sentencing enhancement for illegal reentry into the U.S. after a prior crime of violence, namely sexual assault under Arkansas law. .

United States Eighth Circuit, 10/08/2010
US v. Clay
Defendant’s sentence for distributing cocaine base and being a felon in possession of a firearm is affirmed where: 1) the offense described in Iowa Code section 321.279(2) was a crime of violence for the same reasons the court held in Malloy that section 321.279(3) is a crime of violence; and 2) the court’s review of defendant’s sentence did not indicate that the district court abused its discretion.

United States Eighth Circuit, 10/08/2010
Marksmeier v. Davie
In a section 1983 action claiming that defendant-officers arrested plaintiff for sexual assault without probable cause, summary judgment for defendants is affirmed where: 1) the district court did not err in concluding that plaintiff’s constitutional rights were not violated by his arrest as there was probable cause to believe that plaintiff had committed a violation of Nebraska law; 2) plaintiff failed to identify a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters; and 3) the district court did not abuse its substantial discretion in granting a protective order.

United States Ninth Circuit, 10/04/2010
US v. Flores-Blanco
Defendant’s alien smuggling conviction is affirmed where: 1) the district court did not err either in its handling of a co-defendant’s invocation of the Fifth Amendment privilege against self-incrimination or in its admission of evidence of prior bad acts by defendant; and 2) there was sufficient evidence to uphold defendant’s conviction, as an aider and abettor, of bringing an unauthorized alien to the U.S., as well as his conspiracy conviction.

United States Ninth Circuit, 10/05/2010
Cortez-Guillen v. Holder
In a petition for review based on petitioner’s removal from the U.S. due to his commission of a “crime of violence,” the petition is granted where petitioner’s Alaska “coercion” conviction did not necessarily equate with a federal “crime of violence.”

United States Ninth Circuit, 10/06/2010
US v. Garcia-Jimenez
Defendant’s sentence following his guilty plea to one count of being an illegal alien found in the U.S. after deportation is affirmed where the district court properly: 1) calculated defendant’s criminal history category under the Sentencing Guidelines, adding two criminal history points under U.S.S.G. section 4A1.1(d), which requires additional points “if the defendant committed the instant offense while under any criminal justice sentence, including . . . parole”; and (2) added one criminal history point under U.S.S.G. section 4A1.1(e), which requires additional points “if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under [U.S.S.G. section 4A1.1](a).”

United States Ninth Circuit, 10/07/2010
Luchtel v. Hagemann
In an action claiming that defendant-officers lacked probable cause to arrest her, and that excessive force was used by the officers, summary judgment for defendants is affirmed where: 1) under the circumstances defendants were entitled to subdue plaintiff, to arrest her, and to get her to a hospital for assessment; and 2) there was no genuine dispute from the evidence that plaintiff posed a threat to herself, her neighbors, and the officers. .

United States Eleventh Circuit, 10/04/2010
US v. Gomes
Defendant’s cocaine base distribution sentence is affirmed where defendant failed to establish that the district court committed any error in sentencing him to the mandatory minimum, because the government did not file a substantial assistance motion under 18 U.S.C. section 3553(e), and he did not qualify for the safety-valve exception under section 3553(f). .

United States Eleventh Circuit, 10/07/2010
US v. Sistrunk
Defendant’s conviction for possession of a firearm by a convicted felon is affirmed where, although the trial court erred by ruling that the defense of entrapment was not available to defendant as a matter of law, the error was harmless.

California Court of Appeal, 10/04/2010
People v. Camino
Conviction of defendant for second degree murder of a fellow gang member, and jury’s finding that defendant vicariously discharged a firearm within the meaning of section 12022.53(c) and (e)(1) are affirmed in part, reversed in part and remanded where: 1) trial court did not err by admitting into evidence defendant’s statements made in his second police interview; 2) substantial evidence supports the trial court’s factual finding the police did not use a deliberate two-step strategy to violate Miranda; 3) defense counsel did not render ineffective assistance; and 4) there is insufficient evidence to support the jury’s finding defendant vicariously discharged a gun in the murder, because the victim, as the lone shooter in defendant’s group, could not be a principal in his own murder.

California Court of Appeal, 10/05/2010
People v. Phillips
Conviction of defendant for indecent exposure and annoying or molesting a child under the age of 18 is affirmed as Penal Code section 646.7(a)(1) criminalized the offensive conduct, whether or not a particular child was the perpetrator’s target, and to conclude otherwise, that a defendant can annoy or molest any child simply because he has not focused his actions on any particular child, makes no sense and would undermine the purpose of the statute to protect all children from sexual predators.

California Court of Appeal, 10/05/2010
In re Kler
Defendant’s petition for habeas relief challenging the Governor’s reversal of the Parole Board’s finding him suitable for parole from his 1989 second-degree murder conviction is granted as this case presents an “extraordinary” situation justifying the exercise of the court’s constitutional prerogative as no court is better suited to first consider this petition and no court is more familiar with the intricate details of the case, and as such, this is one of the rare cases where the directive that “a habeas corpus petition challenging a decision of the parole board should be filed in the superior court” does not apply.

California Court of Appeal, 10/06/2010
People v. Aranda
Conviction of defendant for voluntary manslaughter and for actively participating in a criminal street gang is affirmed in part, reversed in part and remanded where: 1) as to the voluntary manslaughter count, there were adequate jury instructions contained within the original instructions for murder, and lesser included manslaughter, and the trial court’s instructional error was harmless beyond a reasonable doubt; 2) as to count 3, there was no cure for the trial court’s error included in the “active participation in a street gang” jury instructions, and this error was not harmless beyond a reasonable doubt; and 3) the trial court correctly denied defendant’s motion to grant use immunity to a defense witness.

California Court of Appeal, 10/06/2010
In re J.G.
In a conviction of a defendant for possessing a deadly weapon with the intent to assault, trial court’s denial of his motion to suppress is affirmed as, although the court does not hold that defendant in fact intended to assault another human being, it was reasonable for the police to so suspect, and under the circumstances of this case, the officers acted reasonably and the arrest was supported by probable cause.

California Court of Appeal, 10/07/2010
In re Powell
The determination of the Board of Parole Hearings (Board), finding defendant unsuitable for parole from his 1982 second-degree murder conviction because he poses a present risk of danger to society or a threat to public safety if release, is reversed and remanded where: 1) the commitment offense and defendant’s unstable history are too remote to remain valid predictors of his conduct if released; 2) defendant’s insight and acceptance of responsibility do not support the parole denial decision; 3) the Board’s concerns about defendant’s parole plans are not sufficient to support the parole denial decision; and 4) the appropriate disposition of the matter is to remand the case to the Board to conduct a prompt rehearing consistent with the court’s opinion, rather than to instruct the Board to set a parole-release date within 30 days of the order. .

California Court of Appeal, 10/07/2010
People v. Jason K.
Trial court’s denial of defendant’s request for relief from an order precluding him from possessing firearms for five years after his release from a facility at which he was detained for psychiatric evaluation under Welfare and Institutions Code section 5150 is affirmed where: 1) the record contains substantial evidence supporting the court’s denial of defendant’s petition; and 2) section 8103(f)’s preponderance of the evidence standard preserves fundamental fairness and properly allocates the risk of an erroneous judgment pertaining to firearm use between the government and an individual who was hospitalized after a finding that he or she presented a danger to himself or others.

Supreme Court of Florida, 10/07/2010
Dessaure v. State of Florida
Trial court’s denial of defendant’s motion to vacate his first-degree murder conviction and sentence of death is affirmed and a petition for a writ of habeas corpus denied where: 1) trial court’s denial of relief is affirmed as defendant has failed to prove that his counsel’s performance was deficient or that the deficient performance prejudiced him; and 2) defendant is not entitled to habeas relief as he has not shown that his appellate counsel was ineffective under the standards of Lowe v. State, 2 So. 3d 21, (Fla. 2008).

Supreme Court of Florida, 10/07/2010
State of Florida v. McFadden
In a prosecution of defendant for armed robbery-related offenses, the Fourth District’s conclusion that the trial court should have conducted a Richardson hearing to determine the effect of the state’s discovery violation in granting a new trial is quashed and remanded as there was no discovery violation in this case as, pursuant to Evans, rule 3.220(b)(1)(B) does not apply to an oral, unrecorded witness statement if that statement does not materially change a prior recorded statement previously provided to the defendant by the state, and as such, there was no need for the trial court to conduct a Richardson hearing.

Supreme Court of Florida, 10/07/2010
Ransone v. State of Florida
In a prosecution of defendant for grand theft in one county, involving a later conviction for several unrelated charges in another county, the Fourth District’s determination that defendant was not entitled to additional credit because the first county’s sentence was consecutive to the second county’s sentences, is affirmed as a defendant is not entitled to presentence jail-time credit on both sentences if the sentence for the unrelated charge is to be served consecutively.

Supreme Court of Florida, 10/07/2010
Johnson v. State of Florida
In a prosecution of defendant for fleeing a police officer, the Third District’s determination that the trial court erred by discouraging the jury from requesting any read-back of testimony but that the error was harmless based upon its conclusion that the evidence against defendant was “overwhelming,” is quashed and remanded as it is per se reversible error when a trial judge preemptively instructs a jury that it cannot have testimony read back and the erroneous instruction is properly preserved for appellate review. .

Supreme Court of Florida, 10/07/2010
Abdool v. State of Florida
Conviction of defendant for first-degree murder and a sentence of death are affirmed where: 1) there is competent substantial evidence to support that the murder was premeditated here; 2) defendant’s claim that admitting a detective’s comments was error because they offered an opinion as to his guilt and that he was unfairly prejudiced by the testimony is rejected; 3) trial court did not abuse its discretion in allowing the victim’s father’s testimony as the testimony was relevant, and its probative value outweighed any prejudice to defendant; 4) trial court did not err in ordering the defense to turn over to the prosecution raw data from the defense’s mental health expert prior to the penalty phase; 5) defendant has not shown how certain challenged testimony affected his sentencing; 6) defendant’s claim that portions of the victim’s father’s victim impact statement should not have been read to the jury is rejected; 7) CCP aggravating circumstance was supported by competent substantial evidence, and the trial court did not abuse its discretion when applying weight to the mitigating circumstances in this case; 8) defendant’s sentence is proportionate and the trial court did not err in imposing the death sentence; 9) defendant’s Ring claim is rejected; and 10) the evidence is sufficient to support the convictions.

Court of Criminal Appeals of Texas, 10/06/2010
Brooks v. State of Texas
In a conviction of defendant for possessing with intent to deliver more than four but less than 200 grams of crack cocaine, the judgment of the court of appeals is reversed as, because there is no meaningful distinction between a Clewis factual-sufficiency standard and a Jackson v. Virginia legal-sufficiency standard, the case is remanded to the court of appeals to reconsider the sufficiency of the evidence to support defendant’s conviction under a proper application of the Jackson v. Virginia standard.

Court of Criminal Appeals of Texas, 10/06/2010
Martinez v. State of Texas
In a conviction of defendant for violating provisions of a temporary injunction prohibiting defendant and other gang members from engaging in various activities, judgment of the court of appeals is affirmed where: 1) the court of appeals did not err in holding that Texas Civil Practice & Remedies Code section 125.065(a)(2), which permits a judge to impose reasonable requirements when enjoining criminal street gang activity, a violation of which is punishable under Penal Code section 71.021, does not violate the separation of powers doctrine; and 2) the court of appeals correctly determined that the provision of the injunction prohibiting defendant form making gang hand signs and wearing gang clothing did not violate the First Amendment and was not unconstitutionally vague.

Court of Criminal Appeals of Texas, 10/06/2010
Mercier v. State of Texas
Court of appeals’ reversal of a trial court’s conviction of defendant for conspiracy to commit barratry is reversed and remanded as the court of appeals erred in failing to conduct a harm analysis under Rule of Appellate Procedure 44.2(b), as it is necessary when an indictment is defective due to the lack of a tolling provision.

Court of Criminal Appeals of Texas, 10/06/2010
Sanchez v. State of Texas
The court of appeals’ reversal of defendant’s murder conviction of his girlfriend is reversed where: 1) the two-pronged rule in Hicks is overruled and instead, where the state has alleged “unknown” manner and means in the indictment and/or jury charges, the defendant may challenge the propriety of the “unknown” allegation before trial and at the conclusion of evidence, but before the charge is submitted to the jury; and 2) although the jury charge was erroneous because the indictment contained an allegation of “manner and means to the grand jury unknown,” when the manner and means were not truly unknown, the charge error was harmless in nature as the evidence was sufficient to convict based on one of the alternate theories in the jury charge other than “unknown” manner and means.

Court of Criminal Appeals of Texas, 10/06/2010
Woodard v. State of Texas
In a prosecution of defendant for murder and for an unindicted conspiracy to commit aggravated robbery offense, court of appeals’ reversal of defendant’s convictions is reversed and remanded as defendant may not be heard to complain for the first time on appeal that the trial court erred in instructing the jury on the unindicted conspiracy to commit aggravated robbery offense, because the record fairly reflects that at the very least, defendant had some responsibility for the jury instruction on the unindicted conspiracy offense.

Court of Criminal Appeals of Texas, 10/06/2010
Scott v. State of Texas
In a prosecution of defendant for harassment, court of appeals’ reversal of the conviction in holding that two subsections of a harassment statute, Texas Penal Code section 42.07 were unconstitutionally vague on their face, is reversed and remanded as, because section 42.07(a)(4) does not implicate the free-speech guarantee of the First Amendment, defendant, in making his vagueness challenge to that statutory subsection, was required to show that it was unduly vague as applied to his own conduct, which defendant has not done.

Court of Criminal Appeals of Texas, 10/06/2010
Padilla v. State of Texas
Court of appeals’ affirmance of defendant’s conviction for capital murder is affirmed as the jury’s verdict is rationally supported by common sense, logical references from the circumstantial evidence, and legally sufficient evidence, and it was not a verdict based on a “mere modicum” of incriminating evidence.

Court of Criminal Appeals of Texas, 10/06/2010
Mason v. State of Texas
In a conviction of defendant for capital murder, court of appeals’ reversal of the conviction on the ground that the state’s unauthorized questioning of defendant’s cousin before the grand jury caused harmful error is reversed and remanded as it cannot be said that the violation substantially influenced the grand jury’s decision to indict defendant, nor is there grave doubt as to whether it had such effect. .

Court of Criminal Appeals of Texas, 10/06/2010
Isassi v. State of Texas
State’s petition for discretionary review of a court of appeals’ reversal of a former county attorney’s conviction of misdemeanor offense of “improper influence,” for unsuccessfully attempting to cut short a criminal prosecution of his aunt, is granted and the judgment of the court of appeals reversed and remanded as the jury reasonably and rationally concluded beyond a reasonable doubt that defendant had the intent to improperly influence the outcome of his aunt’s criminal case on a basis not authorized by law