Findlaw Case Summaries: Criminal Law and Procedure 43

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November 8-12 2010.

United States Fourth Circuit, 11/12/2010
US v. Ide, No. 09-4833
District court’s grant of government’s petition to revoke defendant’s term of supervised release originally imposed in May 2002 as part of his sentence on a federal charge, claiming that defendant’s commission of an additional state offense, along with his failure to file monthly reports, violated the conditions of his supervised release, is affirmed as, under the circumstances, a defendant’s supervised release term is tolled under 18 U.S.C. section 3624(e) during the period that he spent in pretrial detention awaiting trial on the state charge for which he later was convicted. ..

United States Fifth Circuit, 11/09/2010
US v. Jackson, No. 09-10850
Defendant’s conviction and sentence, following a jury trial, for conspiring to possess with intent to distribute more than five kilograms of cocaine, are vacated where certain notebooks introduced into evidence were not sufficiently authenticated, the error violated defendant’s rights under the Confrontation Clause, and the error was not harmless.

United States Fifth Circuit, 11/09/2010
US v. Flores-Gallo, No. 09-40882
Defendant’s sentence for unlawful reentry into the U.S. is affirmed where the district court properly found that defendant’s prior Kansas aggravated battery offense was a “crime of violence” for sentencing purposes and imposed an enhancement accordingly.

United States Fifth Circuit, 11/09/2010
US v. Houston, No. 09-50347
Defendant’s sentence for brandishing a firearm during and in relation to a crime of violence is affirmed where defendant’s seven-year and 25-year sentences were for separate crimes, and thus were properly imposed. .

United States Fifth Circuit, 11/10/2010
US v. Bohuchot, No. 08-11090
Defendants’ convictions and sentences for bribery and money laundering are affirmed where: 1) it was at least debatable whether there was clearly or obviously a constructive amendment of the indictment, but in any event, neither the third nor fourth prongs of plain error review was satisfied in this case; 2) a rational juror could infer from the circumstantial evidence and the evidence regarding the contract at issue that defendant accepted or solicited remuneration as part of an ongoing scheme as alleged in the indictment; and 3) even if the prosecutor’s comments were improper, they were not sufficiently prejudicial to “cast serious doubt on the correctness of the jury’s verdict.”

United States Fifth Circuit, 11/11/2010
US v. Marquez, No. 09-50372
Defendant’s drug distribution sentence is affirmed where defendant’s prior conviction for possession of a deadly weapon by a prisoner was a crime of violence within the meaning of section 4B1.2(a)(2) of the Sentencing Guidelines. .

United States Sixth Circuit, 11/08/2010
US v. Holcomb, No. 08-6520
District court’s imposition of a 10-month sentence upon a defendant convicted for escaping from a federal prison camp is affirmed where: 1) the court’s decision was well reasoned and sufficiently detailed to easily pass muster as procedurally reasonable; and 2) defendant’s sentence was substantively reasonable as the district court properly calculated the applicable guidelines range and discussed the relevant section 3553(a) factors, evaluated the nature and circumstances of the offense and the need for the sentence imposed, in determining that a below-guidelines sentence would best differentiate between this case and other more serious escapes.

United States Sixth Circuit, 11/08/2010
US v. Monea Family Trust I, No. 09-3730
In a petition filed by a family trust and several other parties, seeking to amend a district court’s order of forfeiture regarding several items of personal property, including a diamond ring, used in a money-laundering scheme by a convicted beneficiary of the trust, district court’s denial of the petitions is affirmed as the district court did not err in finding that no gift had been made as the family trust has not shown by clear and convincing evidence that the beneficiary ever relinquished ownership, dominion, and control over the diamond.

United States Sixth Circuit, 11/09/2010
Sykes v. Anderson, No. 08-2088
In plaintiffs’ 42 U.S.C. section 1983 actions against several police officers, asserting claims of false imprisonment, malicious prosecution, and denial of due process, and against the City of Detroit claiming that the city failed to respond to citizen complaints and that it failed to train and supervise its employees, following their overturned convictions for state crimes of “Larceny by Conversion” and “False Report of a Felony,” jury verdict in favor of the plaintiffs on their claims against two police officers and award of over $2.5 million in compensatory and punitive damages is affirmed in part and remanded in part where: 1) defendants’ qualified immunity claim is waived as their failure to make a pre-verdict motion for judgment as a matter of law under Rule 50(a) on the grounds of qualified immunity precluded them from making a post-verdict motion under Rule 50(b) on that ground; 2) district court’s judgment as to plaintiffs’ claim of false arrest is affirmed because probable cause was lacking at the time the officer submitted a warrant application; 3) judgment against the defendants as to the plaintiffs’ claims for malicious prosecution is affirmed as the record contains ample evidence that the officer influenced or participated in the ultimate decision to prosecute plaintiffs by way of his knowing misstatements to the prosecutor; 4) judgment against the defendants as to the plaintiffs’ due-process claims is affirmed; 5) district court did not abuse its discretion in denying defendants’ motion for a new trial; and 6) because the district court failed to articulate a basis for its denial of the defendants’ motion for remittitur, the matter is remanded for the sole purpose of having the district court explain its reasons for denying remittitur.

United States Sixth Circuit, 11/10/2010
US v. Gross, No. 08-2362
District court’s conviction of defendant for attempting to evade or defeat tax and related crimes and imposition of a 21-month sentence are affirmed where: 1) defendant committed an affirmative act of tax evasion when he submitted false W-4 forms to his employer and neither the IRS’s receipt of his employer’s W-2 forms nor the Paperwork Reduction Act excused defendant’s failure to file a tax return; 2) defendant’s argument concerning his supposed good-faith defense is meritless; and 3) the district court did not err in looking to defendant’s employer’s W-2 forms in determining defendant’s base offense level, and his sentence did not violate Apprendi. .

United States Sixth Circuit, 11/12/2010
Ellison v. Balinski, No. 09-2033
In plaintiff’s 42 U.S.C. section 1983 suit for violation of her Fourth Amendment rights against unreasonable searches and seizures, and a state law claim for libel and slander, a jury verdict in favor of the plaintiff on the Fourth Amendment claim and an award of $100,000 in compensatory damages is affirmed where: 1) the district court was correct to deny defendant’s motion for judgment as a matter of law, because a jury could reasonably determine that the affidavit – mentioning no specific crimes thought probably committed, making no link between plaintiff’s residence and any crime, yet seeking broad authority for a search of plaintiff’s entire residence for any document pertaining to plaintiff – was so lacking in indicia of probable cause to render defendant’s belief in its existence objectively unreasonable; 2) district court did not err in denying defendant’s motion for remittitur of the jury’s verdict; and 3) district court did not abuse its discretion in its award of attorney’s fees to plaintiff.

United States Sixth Circuit, 11/12/2010
Robertson v. Simpson, No. 07-6191
A denial of defendant’s petition for habeas relief filed one month beyond the one-year statute of limitations, holding that defendant failed to meet his burden of proving that he was entitled to equitable tolling, is remanded for a determination of whether defendant’s attorney’s cocaine use and possible misadvice constitute sufficient extraordinary circumstances to entitle defendant to equitable tolling.

United States Seventh Circuit, 11/10/2010
US v. Knox, No. 08-1571
In a prosecution of defendant for multiple counts of bank fraud, mail fraud, and money laundering, in connection with an extensive real estate scheme involving grossly inflated property appraisals and false loan applications, district court’s application of several enhancements to defendant’s offense level is affirmed where: 1) it is clear that defendant’s scheme qualifies as sophisticated for purposes of section 2B1.1; 2) district court’s application of a two-level enhancement based on the number of victims was proper as it is abundantly clear that at least one person in every transaction was a victim and that the number of transactions exceeds ten; 3) district court did not err in finding that it was more likely than not that defendant’s gross receipts totaled more than $1 million; 4) district court’s calculation of the number of participants in the scheme and its determination that defendant was an organizer were both proper; and 5) defendant has waived his right to challenge the loss calculation as he initially objected but later withdrew the objection.

United States Seventh Circuit, 11/10/2010
Cyrus v. Town of Mukwonago, No. 09-2331
In plaintiffs’ 42 U.S.C. section 1983 suit against a town, a lieutenant, and other defendants, claiming that their son’s death was caused by the use of excessive force in violation of the Fourth Amendment, district court’s grant of defendants’ motion for summary judgment is reversed as there are material facts in dispute about the extent to which the deceased attempted to evade the officers and the how many times the officer tasered the deceased to bring about his arrest. .

United States Eighth Circuit, 11/12/2010
US v. Freeman, No. 09-3640
Defendant’s conviction for possession of crack cocaine with intent to distribute is affirmed where: 1) the district court’s credibility finding was amply supported by the testimony at the suppression hearing, as well as the lack of a substantial showing by defendant to the contrary; and 2) defendant could not move to renew his suppression motion at or before the trial, the accepted way to urge a trial court to reconsider its denial of a pretrial motion, because his guilty plea ended the guilt-determination phase of the proceedings. .

United States Eighth Circuit, 11/12/2010
Schoelch v. Mitchell, No. 08-2776
In an action by an inmate claiming that defendant officers failed to protect him from another inmate, summary judgment for defendants is affirmed where plaintiff failed to present sufficient evidence to establish that he suffered an objectively serious deprivation. .

United States Eighth Circuit, 11/12/2010
Aaron v. Shelley, No. 09-3554
In an action based on plaintiff’s false arrest for impersonating a police officer, and for false imprisonment and terroristic threatening of suspected drug offenders, defendants’ appeal from the denial of summary judgment based on qualified immunity is dismissed where, in denying defendant-officers summary judgment based on qualified immunity, the district court carefully explained the material disputed facts which, when viewed most favorably to plaintiff, would permit a reasonable jury to find that the officers lacked objectively reasonable probable cause to arrest plaintiff on each of the three charges.

United States Eighth Circuit, 11/12/2010
US v. Mancini, No. 10-1178
Defendant’s conviction and sentence for wire fraud, for material misstatements made in a mortgage application, are affirmed where: 1) the loss to the victim flowed as directly from the fraud as the default on the loan which caused the lender’s loss; and 2) under the plain wording of the Mandatory Victim Restitution Act, the district court properly applied the restitution statute and did not abuse its discretion in ordering defendant to pay $44,200 in restitution to the victim.

United States Ninth Circuit, 11/08/2010
US v. Schafer, No. 08-10167
Defendants’ convictions and sentences arising from their operation of a medical marijuana growing operation and dispensary are affirmed where: 1) pursuant to Fed. R. Crim. P. 12, the district court could not resolve the parties’ suppression issues before trial, and therefore it did not abuse its discretion when it denied defendants’ request for an evidentiary hearing; 2) whether defendants were lulled into believing their marijuana operation was legal and done on the express authorization of agents who could bind the federal government necessitated a credibility determination that fell within the province of the jury; and 3) medical necessity was not a defense to manufacturing and distributing marijuana.

United States Ninth Circuit, 11/09/2010
US v. Diaz-Lopez, No. 09-50604
Defendant’s conviction for being a removed alien found in the U.S. is affirmed where: 1) a border patrol agent’s testimony laid a sufficient foundation for the evidence against defendant to be admissible; and 2) testimony that a search of a computer database revealed no record of a matter did not violate the best evidence rule when it was offered without the production of an “original” printout showing the search results.

United States Ninth Circuit, 11/09/2010
Dent v. Holder, No. 09-71987
In a petition for review of the BIA’s order affirming the IJ’s decision removing petitioner from the U.S., the petition is granted where, because petitioner was not provided with the documents in his A-file, he was denied an opportunity to fully and fairly litigate his removal and his defensive citizenship claim.

United States Ninth Circuit, 11/10/2010
US v. Grob, No. 09-30262
Defendant’s sentence for cyberstalking his ex-girlfriend is vacated where defendant’s prior Montana criminal mischief conviction should not have been counted under the applicable sentencing guideline, U.S.S.G. section 4A1.2(c).

United States Eleventh Circuit, 11/09/2010
Pourmoghani-Esfahani v. Gee, No. 10-10020
In a 42 U.S.C. section 1983 case alleging that defendant applied excessive force to plaintiff and was deliberately indifferent to her serious medical needs while plaintiff was detained at the Hillsborough County Jail in Tampa, Florida, the denial of summary judgment based on qualified immunity for defendants is affirmed in part where the force defendant used was obviously–in the light of the preexisting law–beyond what the Constitution would allow under the circumstances. However, the judgment is reversed in part where the medical treatment that plaintiff received would support no conclusion of deliberate indifference by defendant.

California Court of Appeal, 11/08/2010
In re Hare, No. B222061
Superior court’s grant of a petition for a writ of habeas corpus, finding the Governor’s reversal of Board of Parole Hearings (Board) grant of defendant parole was untimely and not supported by “some evidence” that defendant posed an unreasonable risk of danger to society if released, is reversed where: 1) the Governor’s reversal of the Board’s decision was timely; and 2) the Governor’s decision to reverse the Board’s grant of parole is supported by “some evidence” defendant continues to pose a threat to public safety.

California Court of Appeal, 11/08/2010
People v. Smith, No. C061805
Trial court’s conviction of defendant for rape of an intoxicated woman and related crimes, is affirmed where: 1) defendant’s claim that the trial court gave misleading and incomplete instructions on rape of an intoxicated woman that require reversal of both rape convictions is rejected; and 2) there was sufficient evidence to support defendant’s conviction of misdemeanor sexual battery.

California Court of Appeal, 11/08/2010
People v. Nordberg, No. B218891
Conviction of defendant for gross vehicular manslaughter while intoxicated and jury’s finding true the special enhancement allegation that she fled the scene of the crime are affirmed as, although the jury was not instructed on the knowledge requirements, as it should have been, the error was harmless beyond a reasonable doubt, as both the prosecution’s evidence and defendant’s own testimony unequivocally established that defendant knew the accident was of such a nature that it was probable another person had been injured, and there is no rational basis on which the instructional error could have affected the jury’s verdict.

California Court of Appeal, 11/08/2010
People v. Lexington Nat’l Ins. Co., No. B221639
Trial court’s grant of a surety’s motion to exonerate bail under Penal Code section 1305(f), on the basis that the surety had done all it could by finding the defendant in Chechnya, is reversed as the absence of an extradition treaty with Chechnya precludes relief from forfeiture under section 1305(f), and the trial court abused its discretion in granting relief based on consideration of the equities present in this case.

California Court of Appeal, 11/09/2010
People v. Rasmussen, No. A125942
Trial court’s sentence and conviction of defendant for resisting an executive officer, exhibiting a deadly weapon, assaulting a peace officer, and resisting or obstructing a peace officer, are affirmed where: 1) trial court correctly instructed the jury that the second type of offense within section 69, resisting an executive officer, is a general intent crime; and 2) defendant is entitled to the benefits of the 2009 amendments to section 4019 as, and as such, defendant is entitled to an additional 142 days under the amendments to section 4019 for a total of 662 days. …

California Court of Appeal, 11/09/2010
In re Macias, No. H033605
In defendant’s petition for habeas relief, claiming that the Board of Parole Hearings’ decision finding him unsuitable for parole for the fifth time denied him due process, superior court’s grant of the petition is reversed as defendant’s decision before the Board, electing to waive his right to a determination of suitability and stipulation to a period of unsuitability, renders the trial court’s order moot. However, if a “lack of insight” is invoked as a reason to deny parole, that finding must be based on a factually identifiable deficiency manifested by the inmate concerning a matter of probative significance on the issue of current dangerousness.

California Court of Appeal, 11/10/2010
People v. Cortez, No. G042891
In a prosecution of defendant for six counts of committing lewd acts upon a child, trial court’s imposition of a $30 “court facilities” fee on each of his six convictions is affirmed where: 1) because the scope of section 70373 can be logically construed in only one way – as applying to all criminal convictions, including traffic offenses under the Vehicle Code – the trial court did not err in concluding it applied to defendant’s convictions for sex offenses; and 2) because section 70373 is not a punitive statute, either in intent or operation, the imposition of the court facilities fee mandated therein could not constitute a violation of ex post facto principles in this case.

California Court of Appeal, 11/10/2010
Doe v. Roman Catholic Bishop of Sacramento, No. C061842
In plaintiff’s suit against a Diocese, claiming that she suffered damages as a result of priests’ molestation of her sons, trial court’s judgment sustaining the Diocese’s demurrer to the complaint because, among other reasons, plaintiff’s action was barred by the statute of limitations is affirmed as plaintiff’s causes of action, even assuming without deciding that they have substantive merit, accrued almost 20 years ago and are barred by the statute of limitations as plaintiff had a duty of inquiry, under the circumstances as alleged in her complaint, when the priests fled the country.

Supreme Court of Florida, 11/10/2010
Tasker v. State of Florida, No. SC09-1281
In defendant’s challenge to forty victim injury points included for sexual contact on his Criminal Punishment Code (CPC) scoresheet, the Fist District Court of Appeal’s ruling that the issue was not preserved is quashed and remanded as a claim of scoresheet error pertaining to victim injury points that are included on the scoresheet filed in the initial sentencing proceeding in which the defendant is placed on probation may be raised for the first time in a rule 3.800(b)(2) motion during the appeal from revocation of probation, and the issue is thereby preserved for appellate review. ..

Supreme Court of Florida, 11/10/2010
McGirth v. State of Florida, No. SC08-976
Conviction of defendant for first-degree murder and sentence of death area affirmed where: 1) competent, substantial evidence exists to support each of defendant’s convictions; 2) trial court did not abuse its discretion in admitting evidence concerning the nature of the defendant’s relationship with the victim’s daughter; 3) trial court did not err in its response to the jury’s question regarding the conscious intent component of the principals jury instruction; 4) because the prosecutor’s remark during the penalty phase was made in the context of mitigation and the isolated reference was not so prejudicial as to vitiate the trial’s result, the trial court did not abuse its discretion in denying defendant’s request for mistrial; 5) defendant has not identified reversible error committed by the trial court in the admission of victim impact evidence; 6) competent, substantial evidence supports the trial court’s finding the avoid arrest aggravating factor; 7) legally sufficient evidence exists to support a finding of each element of the cold, calculated, and premeditated (CCP) aggravator; 8) competent, substantial evidence supports the trial court’s finding of the heinous, atrocious, or cruel aggravator; 9) defendant’s sentence does not violate Apprendi; and 10) the death sentence in this case is proportionate. .

Court of Criminal Appeals of Texas, 11/10/2010
State of Texas v. Wilson, No. PD-0008-09
Court of appeals’ affirmance of trial court’s grant of defendant’s request for habeas relief from his 1987 conviction for driving while intoxicated is affirmed where: 1) the use of the 1983 enhancement to elevate defendant’s misdemeanor offense to a felony was improper, as a prior conviction may not be used as an enhancement if the conviction was not final and, until January 1, 1084, a DWI conviction on which the sentence was probated and the probation was never revoked, was not deemed final; and 2) the court of appeals correctly explained that defendant is not estopped from challenging the evidence pertaining to the prior DWI convictions that were used to enhance the misdemeanor offense to a felony.

Court of Criminal Appeals of Texas, 11/10/2010
Cardenas v. State of Texas, No. PD-1846-09
In a prosecution of defendant for aggravated sexual assault of a child, judgment of the court of appeals is affirmed where: 1) defendant properly preserved for review his denied challenge for cause; and 2) the court of appeals was correct in concluding that the trial court abused its discretion by denying defendant’s challenges for cause to jurors who unequivocally stated that they could not consider the minimum punishment, as a commitment question may include any or all of the statutory elements and statutory manners and means contained in the indictment, but the inclusion of evidentiary facts or non-statutory manners and means remains improper under the Standefer test.

Court of Criminal Appeals of Texas, 11/10/2010
McKithan v. State of Texas, No. PD-0969-09
In a consolidated appeal of two cases involving a conviction of one defendant for the third-degree felony of bodily-injury assault and the conviction of another defendant for an aggravated sexual-assault offense, the court of appeals did not err in holding that the trial court properly refused defendants’ requested jury instructions where: 1) the offensive-contact assault is not lesser-included offense of the charged offense of bodily-injury assault in an indictment alleging bodily injury by “kicking” the complainant; and 2) bodily-injury assault is not a lesser-included offense of the charged offense of aggravated sexual assault in an indictment alleging that the complainant was compelled to submit and participate by the use of “physical force and violence.”

Supreme Court of Delaware, 11/11/2010
Johnson v. State, No. 618, 2009
Defendant’s convictions for Second Degree Burglary and Possession of a Firearm During the Commission of a Felony statutes are affirmed where: 1) because the Delaware General Assembly clearly intended to punish defendant twice for two offenses arising from the same facts, his multiple convictions did not violate the Double Jeopardy Clause; and 2) the trial judge acted within his discretion when he denied the rejoinder motion, because that decision prevented the potential prejudice defendant’s counsel initially asserted. .

Supreme Court of Delaware, 11/11/2010
Russell v. State, No. 688, 2009
Defendant’s child sexual abuse conviction is affirmed where the defendant never fairly presented his argument against the admission of a pretrial out of court statement the victim made to her mother and a videotaped interview with the victim.

Supreme Court of Delaware, 11/12/2010
Turner v. State, No. 194, 2010
Defendant’s convictions for assault second degree, possession of a firearm during the commission of a felony, and possession of a firearm by a person prohibited, are affirmed where: 1) it was not apparent on the face of the record that the Superior Court Judge left the bench during counsel’s closing argument; and 2) the state established the foundational requirements that the court recently reaffirmed in Woodlin.

Supreme Court of Delaware, 11/12/2010
Scott v. State, No. 342, 2009
Defendant’s murder conviction is affirmed where: 1) defendant made conclusory assertions that his defense counsel acted unreasonably, but provided no support for those assertions, or explained why his counsel’s performance was deficient; 2) the trial court properly admitted the victims’ medical records into evidence as hearsay exceptions under Delaware Uniform Rules of Evidence 803(4) and 803(6); and 3) under Franks v. Delaware, suppression was an appropriate remedy only if the false statement was knowingly and intentionally included in the affidavit, and the false statement was necessary to the finding of probable cause.

Supreme Court of Delaware, 11/12/2010
Sahin v. State, No. 475, 2009
Defendant’s convictions for Rape in the First Degree, nine counts of Possession of a Deadly Weapon During the Commission of a Felony, and one count of Aggravated Menacing are affirmed where the court does not consider claims of ineffective assistance of counsel in a direct appeal.

Supreme Court of Delaware, 11/12/2010
Rivera v. State, No. 111, 2010
Defendant’s conviction for first-degree murder is affirmed where: 1) the trial judge expressly and correctly found that the search warrant affidavit’s “four corners” contained sufficient facts to warrant a finding of probable cause; and 2) the omitted exculpatory facts did not undermine or contradict the facts in the “original” affidavit that showed a fair probability of recovering evidence of the crime from defendant’s vehicle.

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