Findlaw Case Summaries: Criminal Law and Procedure 42

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October 11-15 2010.

United States First Circuit, 10/11/2010
US v. Brown
Defendant’s conviction for possession of cocaine base with intent to distribute is affirmed where: 1) although the district court’s factual findings and the inferences made from those findings, which formed the basis of its conclusion that reasonable suspicion existed to stop a car, are not compelled by the record or by the facts, both are nonetheless reasonable and therefore pass constitutional muster; 2) the affirmance of the district court’s finding that the officers had reasonable suspicion to stop the car forecloses the need to address defendant’s challenge to the district court’s alternate conclusion that the car was not seized when the officers first approached; and 3) there was no abuse of discretion in the district court’s denial of defendant’s motion to suppress evidence without an evidentiary hearing.

United States First Circuit, 10/14/2010
US v. Kinsella
Conviction of defendant for conspiring to possess and distribute oxycodone, possessing oxycodone with intent to distribute, and willfully failing to appear in court as required, as well as a 97-month sentence, are affirmed where: 1) defendant’s claim of multiple instances of prosecutorial misconduct is rejected; and 2) the district judge did not clearly err in his drug-quantity calculations.

United States First Circuit, 10/15/2010
Statchen v. Palmer
In plaintiff’s 42 U.S.C. section 1983 suit against police officers, claiming that they used excessive force in arresting him for public intoxication and in transporting him from a station house to jail, district court’s grant of summary judgment in favor of defendants on the basis of qualified immunity is affirmed as the district court had no basis for sending the case to a jury because plaintiff’s own deposition provided no evidence to indicate that the force exerted was unnecessary, or that a reasonable police officer would have thought otherwise. .

United States Second Circuit, 10/12/2010
Amore v. Novarro
In a civil rights action alleging a false arrest, a denial of summary judgment based on qualified immunity is reversed where the district court erred in deciding that it would have been clear to a reasonable officer in defendant’s position that making the arrest was unlawful.

United States Second Circuit, 10/14/2010
Tracy v. Freshwater
In a civil rights action alleging excessive force by police, summary judgment for defendants is affirmed in part where a reasonable officer would have construed plaintiff’s conduct as intentional and threatening. However, the judgment is vacated in part where an issue of material fact remained in dispute with respect to plaintiff’s excessive force claim based on defendant’s use of pepper spray.

United States Third Circuit, 10/13/2010
Catwell v. Attorney General
Petition for review of a decision of the BIA that vacated an IJ’s decision granting cancellation of removal, and instead entered a final order of removal against petitioner to Guyana, is denied where: 1) petitioner possessed more than a small amount of marijuana in his 2003 Pennsylvania state law conviction for possession with intent to distribute 120.5 grams of marijuana, and thus, the BIA correctly concluded that petitioner was not eligible for cancellation of removal; 2) the BIA correctly deferred to the IJ’s findings of fact; and 3) petitioner’s constitutional challenge to former 8 U.S.C. section 1432 is without merit.

United States Third Circuit, 10/15/2010
US v. Christie
District court’s conviction of a defendant for various child pornography offenses and imposition of a sentence of 1,080-months’ imprisonment, arising from a two-year investigation into the website of the North America Man-Girl Love Association (NAMGLA), are affirmed where: 1) the district court did not abuse its discretion or otherwise commit error, let alone plain error, in admitting an investigator’s testimony concerning the confessions of other users of the website; 2) district court did not err in admitting into evidence two posts to the NAMGLA website; 3) the district court erred in admitting witness testimony regarding children’s toys found in defendant’s house, but the error was harmless given the truly overwhelming quantity of legitimate evidence against defendant; 3) district court did not abuse its discretion in refusing to exclude defendant’s composition notebooks under Rule 403; 4) district court did not abuse its discretion in questioning an investigator concerning the website; 5) defendant’s claim of cumulative effect of the alleged evidentiary errors is rejected; 6) assuming that the Confidential Guidelines apply to the government’s interactions with the informant, the alleged failures to abide by the Guidelines did not violate defendant’s due process rights; 7) district court properly denied defendant’s motion to suppress as he had no reasonable expectation of privacy in his IP address and cannot establish a Fourth Amendment violation; and 8) defendant’s sentence was within the bounds of reasonableness.

United States Fifth Circuit, 10/15/2010
Hale v. King
In an action under the Americans with Disabilities Act (ADA) by disabled inmates who were denied access to prison educational and work programs, a dismissal of the action is affirmed where the ADA did not validly abrogate state sovereign immunity with respect to such claims. .

United States Fifth Circuit, 10/15/2010
US v. Mata
Defendant’s sentence for transporting an undocumented alien for financial gain is affirmed where: 1) the district court did not err by applying the reckless-endangerment enhancement under section 2L1.1(b)(6) of the Sentencing Guidelines; and 2) the district court did not commit plain error by impermissibly delegating to a probation officer its judicial authority to determine whether defendant should be required to participate in a mental-health program as a condition of her supervised release. ..

United States Sixth Circuit, 10/12/2010
US v. Knowles
Conviction of defendant for sexual exploitation of a minor and for possession of materials involving the sexual exploitation of a minor is affirmed as the district court did not err by admitting the second DVD copy into evidence, playing the FBI-created copy of the second DVD in court, or admitting into evidence a particular receipt from Wolf Camera. .

United States Sixth Circuit, 10/12/2010
US v. Wells
In a case arising from defendant’s solicitation and acceptance of about $40,000 in bribes as a water pipe repair supervisor of a city, defendant’s conviction for conspiracy to violate, as well as three counts of substantive violations of, the Hobbs Act, is affirmed where: 1) defendant’s claim of prosecutorial misconduct is rejected; and 2) defendant has not adequately explained why his ineffective assistance claims should be reviewed on appeal rather than through a habeas petition.

United States Seventh Circuit, 10/12/2010
US v. Fife
In a prosecution of a defendant for being a felon in possession of a firearm and ammunition, district court’s determination that defendant’s prior convictions did not satisfy the requirements of the Armed Career Criminal Act and therefore that he was not subject to the increased sentence under that Act is reversed and remanded as the Illinois armed violent conviction is a violent offense under the ACCA, and combined with the two other violent offenses in his criminal history, the armed violence conviction renders defendant an armed career criminal under the ACCA. ..

United States Seventh Circuit, 10/12/2010
US v. Shamah
Conviction of a former police officer for conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), and other offenses and a 232-month sentence are affirmed where: 1) defendant’s RICO conviction is affirmed as the evidence was more than sufficient to show that he played a daily role in directing the affairs of the police department and the conspiracy between him and his co-conspirator was to rob drug dealers; and 2) district court properly applied the sentencing guidelines and enhancements, and the disparity in sentencing was not substantively unreasonable.

United States Seventh Circuit, 10/13/2010
US v. Aviles-Solarzano
In a prosecution of defendant for reentering the United States after having been removed as an illegal alien, district court’s imposition of a 70-month sentence based on defendant’s prior conviction for aggravated battery is affirmed as the district court did not err in relying on a summary of the indictment in a presentence investigation report, because the defendant’s lawyer did not question the accuracy of the summary in the report and the judge could reasonably assume that the defendant’s lawyer was satisfied that the summary was accurate.

United States Seventh Circuit, 10/13/2010
US v. Saenz
Conviction of defendant for conspiracy to distribute more than 5 kilograms of cocaine, and imposition of a 293-month sentence is affirmed in part, vacated in part and remanded where: 1) defendant’s Sixth Amendment right to speedy trial was not violated as the length of the delay was not extreme for a complex multi-defendant conspiracy case; 2) there was no error in the district court’s decision to impose an obstruction of justice enhancement as defendant willfully lied at trial about his knowledge of the money’s nature; and 3) defendant’s sentence is vacated and remanded for the district court to determine whether the defendant should receive a minor participant reduction in light of the fact that the record supports that his involvement in the conspiracy was only on a single occasion.

United States Seventh Circuit, 10/14/2010
Taylor v. Watkins
In a prisoner’s 42 U.S.C. section 1983 suit against several officers and employees of the Illinois Department of Corrections, claiming that defendants violated his civil rights by contaminating his food, tampering with his mail, depriving him of his sleep, and assaulting him, district court’s denial of plaintiff’s motion to proceed in forma pauperis (IFP) on the ground that he has previously incurred three “strikes” in dismissing the case is affirmed and plaintiff’s request to proceed IFP on appeal is denied as plaintiff has not shown that he was in imminent danger. .

United States Seventh Circuit, 10/14/2010
Turley v. Gaetz
In a prisoner’s pro se lawsuit under 42 U.S.C. section 1983,claiming that a warden, guards and other employees at a correctional center retaliated against him for litigation previously filed regarding his conditions of confinement, district court’s denial of the plaintiff’s motion to proceed in forma pauperis (IFP) in dismissing the complaint is reversed and remanded as plaintiff has not accumulated three strikes and remains eligible for IFP status because, consistent with the plain language of the Prison Litigation Reform Act, the dismissal of an action, in part for failure to exhaust and in part as frivolous, malicious or for failure to state a claim, does not constitute a strike under section 1915(g).

United States Seventh Circuit, 10/15/2010
US v. Cornelius
In a prosecution of defendant for possession with intent to distribute more than five grams of crack cocaine, district court’s denial of defendant’ motion to dismiss his indictment on constitutional speedy trial and double jeopardy grounds, while granting his motion under the Speedy Trial Act, is vacated and remanded where: 1) defendant’s constitutional and statutory speedy trial claims are dismissed for lack of subject matter jurisdiction because his prosecution is ongoing, as neither ruling is currently a final decision appealable under 28 U.S.C. section 1291, nor does either fit within the collateral order doctrine; and 2) district court’s ruling on the double jeopardy issue is vacated as the district court erred by not holding a evidentiary hearing before making a determination as to whether the prosecutor intentionally tried to trigger a mistrial, and the matter is remanded so that such a hearing can occur. ..

United States Eighth Circuit, 10/14/2010
US v. Amratiel
Defendant’s conviction for possession of an unregistered destructive device is affirmed where: 1) possession of a key is not the sole factor whether a third party has authority over a locked space for Fourth Amendment purposes; and 2) when officers obtain valid third-party consent, they are not also required to seek consent from a defendant, even if detained nearby.

United States Eighth Circuit, 10/15/2010
US v. Haas
Defendant’s conviction and sentence for aiding and abetting burglary of a building used in part as a bank are affirmed where: 1) the unambiguous language of 18 U.S.C. section 2113(a) applied to a defendant who took federally insured deposits from a bank-owned and operated ATM located within a store; 2) the district court did not abuse its discretion by excluding evidence about the bank’s FDIC insurance; and 3) defendant’s earlier burglary conviction was a crime of violence. ..

United States Ninth Circuit, 10/13/2010
Graves v. Arpaio
In Maricopa County, Arizona sheriff Joe Arpaio’s appeal from the district court’s order requiring him to take affirmative measures to address conditions in Maricopa County jails that violated the Eighth and Fourteenth Amendments, the order is affirmed where: 1) it was not an abuse of discretion for the district court to hear evidence on both rights and remedies at one hearing; 2) the district court did not clearly err in finding that air temperatures above 85° F greatly increased the risk of heat-related illnesses for individuals who took psychotropic medications; and 3) there was no error in ordering prospective relief to address inadequate food.

United States Tenth Circuit, 10/12/2010
Mendoza v. Hatch
In a prosecution for kidnapping and sexual assault, a denial of petitioner’s habeas petition is reversed and remanded with instructions to conditionally grant the petition, subject to the State of New Mexico allowing petitioner to withdraw his no contest plea and proceed on the criminal charges against him, where petitioner’s no contest plea was the product of misrepresentations by his counsel so significant as to make his no contest plea a constitutionally inadequate basis for his imprisonment.

California Court of Appeal, 10/12/2010
People v. Valdez
Trial court’s conviction of defendant for being an unlicensed driver and fleeing the scene of an injury accident, and the jury’s finding that defendant personally inflicted great bodily injury in the commission of a felony is reversed in part and remanded as, because the defendant in this case was not committing or attempting to commit a felony at the time of the accident, the injury suffered during the accident was not inflicted in the course of the commission of a felony or attempted felony within the meaning of Penal Code section 12022.7.

California Court of Appeal, 10/12/2010
People v. Kelly
In a prosecution of defendants for their involvement in connection with selling counterfeit compact discs, trial court’s order requiring them to pay $14,606.66 in restitution to the Recording Industry Association of America (RIAA) is vacated as the RIAA is not a direct victim because it was not the object of defendants’ crimes and it cannot claim lost profits or other losses caused by defendants’ crimes, and thus, under the circumstances of this case, the trial court erred by relying on the Ortiz court for the proposition that RIAA can “stand in the shoes” of its members, who are not identified or known, and may obtain restitution when the specific damage to the anonymous members has not been established.

California Court of Appeal, 10/13/2010
People v. Yang
In a prosecution of defendant for voluntary manslaughter and for participating in a criminal street gang, jury’s finding true a firearm enhancement on the voluntary manslaughter conviction in sentencing him to 25-years-to-life is stricken and, instead, a previously stayed 10-year enhancement for a gang-committed violent felony is imposed as the enhancement for firearm discharge by a co-principal that caused death in a gang-committed felony does not apply to him because defendant was not convicted of one of the qualifying offenses enumerated in section 12022.53(d) & (e)(1).

Supreme Court of Florida, 10/14/2010
Jones v. Florida Parole Comm’n
The Fourth District’s affirmance of a dismissal of an inmate’s petition for a writ of habeas corpus challenging the parole commission’s determination that he violated the terms and conditions of his parole is quashed as the application of section 95.11(5)(f) to petitions for writs of habeas corpus is unconstitutional, and as such, the question of whether the inmate’s habeas petition was untimely under that section is moot.

Supreme Court of Florida, 10/14/2010
Florida v. Spaziano
District court’s judgment reversing the circuit court’s order imposing a lien on defendant’s inmate trust account is affirmed as an action challenging the Florida Parole Commission’s determination of an inmate’s presumptive parole release date is a collateral criminal proceeding for the purposes of section 57.085(10), which exempts such proceedings from the fee and lien provisions of section 57.085.

Supreme Court of Florida, 10/14/2010
Everett v. State of Florida
Circuit court’s order denying defendant’s motion to vacate his conviction of first degree murder and sentence of death is affirmed over claims of: 1) guilty-phase claims of ineffective assistance of counsel; 2) penalty-phase claims of ineffective assistance of counsel; 3) cumulative error; 4) constitutionality of Florida’s death penalty laws and procedures; and 5) the use of lethal injection as a method of carrying out the death penalty is cruel and unusual punishment in violation of the Eighth Amendment. Furthermore, defendant’s petition for a writ of habeas corpus is denied.

Court of Appeals of New York, 10/14/2010
People v. McKinnon
Defendant’s first-degree assault conviction is reversed where the evidence was insufficient to support the conviction because it did not show that the victim of the assault was “seriously” disfigured.

Court of Appeals of New York, 10/14/2010
People v. Syville
In an application for coram nobis relief from defendant’s attorney’s failure to file a timely notice of appeal of defendant’s conviction, the appellate division’s denial of the writ is reversed where a defendant must be provided with an opportunity to assert a claim that the right to appeal has been lost due solely to the unconstitutionally deficient performance of counsel in failing to file a timely notice of appeal. .

Court of Criminal Appeals of Texas, 10/13/2010
Ex Parte Amador
The court of appeals’ affirmance of a trial court’s denial of defendant’s request for habeas relief from his 2007 indictment for third-degree felony offense of indecency with a child by exposure, arising from the same incident that resulted in defendant’s 2006 misdemeanor conviction for indecent exposure, is reversed and remanded as double jeopardy prohibits the state from obtaining a conviction for an offense if the defendant has previously been convicted of a lesser-included offense of that offense. Here, the court of appeals erred in failing to apply the holding in Briceno, that indecent exposure is a lesser-included offense of indecency with a child by exposure, to the present case. ..

Court of Criminal Appeals of Texas, 10/13/2010
Coble v. State of Texas
Defendant’s 1990 conviction for capital murder of his wife’s mother, father and brother, and sentence to death are affirmed over challenges regarding: 1) the sufficiency of the evidence to prove future dangerousness; 2) admissibility of an expert testimony concerning future dangerousness; 3) admissibility of an investigator’s testimony; 4) trial court’s denial of defendant’s motion for a mistrial for emotional outbursts by two witnesses; 5) admission of the hearsay statement by a witness’s sister; 6) trial court’s limitation of voir dire questions; 7) mitigating instruction; and 8) constitutionality of the Texas death penalty statute.

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