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U.S. 1st Circuit Court of Appeals, December 11, 2008 Dutil v. Murphy, No. 06-2292 The text of the Massachusetts SDP statute, as interpreted by state courts, does not on its face violate the due process protections heretofore afforded sexually dangerous persons subject to civil commitment. Appellant’s due process rights are not violated by the statute’s failure to provide an unambiguous timeline for a redetermination of his sexual dangerousness.
U.S. 1st Circuit Court of Appeals, December 11, 2008 US v. Poellnitz, No. 07-2774 District court did not commit plain error in accepting Defendant’s allegedly involuntary guilty plea, and committed no error in failing to credit defendant for the value of the property that he returned to his victim. Conviction and sentence for wire fraud are affirmed..
U.S. 2nd Circuit Court of Appeals, December 08, 2008 US v. Chavez, No. 054679, 055401 Convictions for narcotics conspiracy and possession of a silencer-equipped firearm in furtherance of that conspiracy and imposing consecutive sentences for co-defendant’s two offenses are affirmed over claims of error that: 1) the evidence was insufficient to support their conviction; and 2) their sentences were unreasonable
U.S. 2nd Circuit Court of Appeals, December 08, 2008 Carrion v. Smith, No. 081394 In fifteen-year old conviction and sentence for offenses including criminal possession of a controlled substance in the first degree and attempted murder, grant of petition for writ of habeas corpus claiming ineffective assistance of counsel in connection to petitioner’s plea deal is vacated and remanded where: 1) district courts should normally conduct their own evidentiary hearings before reaching independent credibility determinations; 2) the district court erred in making its own credibility finding without its own evidentiary hearing; and 3) it is permissible for a court to rely on habit evidence of a lawyer’s usual practice in reconstructing events. Read more…
U.S. 3rd Circuit Court of Appeals, December 11, 2008 US v. Washington, No. 07-1523, 07-1884, 07-2541 Federal district courts lack the inherent power to vacate a sentence procured by fraud, any such power having been abrogated by the enactment of 18 U.S.C. section 3582(c) and the amendments to FRCP 35. Because the government moved to vacate defendant’s sentence well beyond the 7-day period provided for in Rule 35, the district court lacked jurisdiction to hear the motion or vacate the sentence.
U.S. 3rd Circuit Court of Appeals, December 11, 2008 US v. Grape, No. 07-3682 District Court order allowing the Government to forcibly medicate defendant, pursuant to 28 U.S.C. section 1291, is affirmed where the Government has presented sufficiently important interests to forcibly medicate defendant, an incarcerated paranoid schizophrenic charged with child sex offenses. The administration of antipsychotic medication is substantially likely to render him competent to stand trial, and unlikely to produce side effects that may prevent him from helping prepare for his trial.
U.S. 4th Circuit Court of Appeals, December 09, 2008 Masiss v. Mukasey, No. 051329, 051851 Petition to review decision by the Board of Immigration Appeals finding petitioner deportable as an aggravated felon is denied in part and dismissed over claims of error that: 1) petitioner had in ineffective counsel, based on his counsel’s decision to concede deportability for petitioner’s conviction for reckless endangerment; and 2) reckless endangerment is not a “crime of violence” and thus could not have formed the basis of petitioner’s deportation as an aggravated felon.
U.S. 4th Circuit Court of Appeals, December 12, 2008 US v. White, No. 07-4750 District court properly denied Defendant’s motion to suppress the evidence of cocaine seized from his car. Officers had reason to believe that their informant was truthful and that his tip was reliable where: 1) the informant was under arrest on a possessory offense and had every incentive to cooperate with the police; 2) he believed that his phone calls to arrange a drug deal with Defendant were being recorded; and 3) every bit of information that he provided was quickly borne out by actual events.
U.S. 5th Circuit Court of Appeals, December 08, 2008 De Hoyos v. Mukasey, No. 07-60740 Petition for review of a final order of removal is denied where: 1) a prior cancellation of removal did not erase petitioner’s conviction for possession of marijuana for immigration purposes, and that conviction was admissible in the removal proceeding; and 2) petitioner’s equal-protection challenge failed because he did not demonstrate that he was similarly situated to other aliens who were granted admission.
U.S. 5th Circuit Court of Appeals, December 09, 2008 Williams v. Quarterman, No. 05-20350 Denial of federal habeas petition is reversed and remanded for a de novo hearing of appellant’s ineffective assistance of counsel claims, as the state habeas trial court’s findings do not survive review where the appellate court did not specify which facts it accepted and which it rejected in denying the petition. Read more…
U.S. 6th Circuit Court of Appeals, December 09, 2008 Owens v. Guida, No. 05-6105 In death penalty habeas proceedings in a case in which petitioner effectuated a murder-for-hire against her husband, denial of habeas relief is affirmed where: 1) state courts reasonably applied Strickland by concluding that petitioner sabotaged her own defense, as counsel’s performance is not deficient when counsel follows a client’s instructions; 2) state courts reasonably applied Brady because even if certain letters were favorable evidence, and were suppressed by the state, petitioner was not prejudiced because she could have presented other evidence of her husband’s affair but chose not to do so; and 3) state courts reasonably applied Lockett v. Ohio in refusing to admit testimony that she wanted to plead guilty in return for receiving a life sentence, because no court has held that failed plea negotiations may be admitted at a penalty-phase hearing.
U.S. 6th Circuit Court of Appeals, December 10, 2008 US v. Hall, No. 07-5918, 07-5919 One defendant’s conviction and sentence for conspiracy to commit money laundering, theft of government property, and money laundering, as well as another defendant’s conviction and sentence for aiding and abetting money laundering, are affirmed where the government adequately established both that the funds at issue were government property for the purpose of 18 U.S.C. section 641 and that a theft was committed.
U.S. 7th Circuit Court of Appeals, December 08, 2008 US v. Podhorn, No. 06-2139 Conviction of a licensed firearms dealer for making false statements, selling stolen firearms, and recordkeeping violations is affirmed, and sentence vacated, and remanded where: 1) evidence gathered in interviews of defendant and in searches of his home and business was not obtained in violation of Miranda; 2) there was no abuse of discretion in allowing one of the firearms to be displayed at trial; 3) a jury instruction on a lesser-included offense was not required; and 4) two sentencing enhancements were properly applied.
U.S. 7th Circuit Court of Appeals, December 08, 2008 US v. Colon, No. 07-3929 Conviction for possession with intent to sell cocaine and conspiracy is affirmed in part and reversed in part, and sentence vacated and remanded where: 1) the seizure of defendant was based on reasonable suspicion; but 2) defendant’s routine buyer-seller relationship with the participants in a drug conspiracy did not by itself make him a co-conspirator or an aider and abettor of the conspiracy.
U.S. 7th Circuit Court of Appeals, December 09, 2008 Simonson v. Hepp, No. 07-4079 In a prosecution for the sexual assault of a child, denial of a petition for habeas relief is affirmed where: 1) the state court’s denial of defendant’s request to present an alternative theory of the victim’s injuries was not objectively unreasonable; and 2) there was no evidence that the sentencing judge relied on inaccurate information. .
U.S. 7th Circuit Court of Appeals, December 09, 2008 Reynolds v. US, No. 08-1634 In a suit alleging malicious prosecution by the government arising out of the prosecution of plaintiff-federal employee for false reporting, dismissal for lack of subject-matter jurisdiction is vacated and cause remanded where: 1) the alleged misconduct of government investigators fell outside of the discretionary-function exception to the Federal Tort Claims Act; 2) the investigators were federal employees, not contractors; 3) no search, seizure, or arrest was necessary to trigger tort liability; and 4) plaintiff had stated a valid claim for relief under state tort law.
U.S. 8th Circuit Court of Appeals, December 08, 2008 US v. Aleman, No. 08-1079, 08-1173, 08-2115 Defendants’ convictions and sentences for conspiring to distribute methamphetamine are affirmed for the most part over claims of error regarding whether: 1) one defendant’s statement to police should have been suppressed; 2) the district court erred by denying a continuance and giving a willful blindness instruction; 3) the government failed to turn over materials to a defendant; 4) the government made prejudicial statements before the jury; and 5) the sentence were properly imposed. One defendant’s sentence is remanded for resentencing where the district court committed prejudicial procedural error by calculating his advisory guideline range incorrectly.
U.S. 8th Circuit Court of Appeals, December 08, 2008 US v. Antelope, No. 08-2206 An appeal from a denial of defendant’s motion to withdraw his guilty plea to assault with a dangerous weapon with intent to do bodily harm is dismissed where enforcing the waiver provision in defendant’s plea agreement would not result in a miscarriage of justice because Supreme Court precedent barred defendant’s only argument.
U.S. 8th Circuit Court of Appeals, December 10, 2008 US v. Langley, No. 08-1508 A conviction for traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor, and using a means of interstate commerce to persuade, induce, entice, or coerce a minor to engage in sexual activity for which a person could be charged with a crime is affirmed over claims that: 1) the district court improperly admitted the eight photographs of an apparent minor; and 2) there was insufficient evidence to find him guilty on either count..
U.S. 9th Circuit Court of Appeals, December 08, 2008 Tennison v. City & County of San Francisco, No. 06-15426 In a 42 U.S.C. section 1983 action arising after plaintiffs served nearly thirteen years in state prison for a murder of which both were declared factually innocent by the courts, partial denial of defendants-homicide inspectors’ motion for summary judgment is affirmed where: 1) Brady imposes a duty on both prosecutors and police officers to disclose exculpatory evidence; 2) the district court properly rejected inspectors’ argument that bad faith is required to establish a Brady violation; 3) inspectors were not entitled to qualified immunity with respect to their failure to disclose certain exculpatory statements; 4) they also were not entitled to absolute or qualified immunity with respect to a confession; and 5) qualified immunity was properly denied with respect to a claim regarding a Secret Witness Program request.
U.S. 9th Circuit Court of Appeals, December 09, 2008 Chambers v. McDaniel, No. 07-15773 In a first degree murder case, denial of a petition for habeas relief is reversed where: 1) a Nevada Supreme Court order denying a petition for extraordinary writ was made on the merits and such denial satisfied the exhaustion requirement; 2) petitioner’s federal constitutional right to due process was violated because the instructions given at his trial permitted the jury to convict him of first-degree murder without a finding of the essential element of deliberation; and 3) the error was not harmless.
U.S. 9th Circuit Court of Appeals, December 12, 2008 Renteria-Morales v. Mukasey, No. 04-74742, 06-73283 In the context of immigration law, a conviction for failure to appear in court in violation of 18 U.S.C. section 3146 qualifies as the generic crime of “obstruction of justice” under 8 U.S.C. section 1101(a)(43)(S) but does not qualify as the generic crime of “failure to appear” under section 1101(a)(43)(T). Also, a petitioner’s prior conviction qualifies as an aggravated felony under section 1101(a)(43)(S) only if the petitioner has been sentenced to a term of imprisonment of “at least one year.”
U.S. 9th Circuit Court of Appeals, December 12, 2008 Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality etc. v. City of Seattle, No. 06-35597 Seattle’s parade ordinance, which gives its police chief, when issuing a parade permit, the discretion to require marchers to use the sidewalks instead of the city streets, is facially unconstitutional as the ordinance by its terms gives the police chief unbridled discretion to force marchers off the streets and onto the sidewalks, unchecked by any requirement to explain the reasons for doing so or to provide some forum for appealing the chief’s decision.
U.S. 10th Circuit Court of Appeals, December 05, 2008 US v. Rhodes, No. 08-2111 A modified sentence for defendant’s role in a conspiracy to possess with intent to distribute crack cocaine is affirmed over a claim that the district court erred in concluding that, in modifying his sentence pursuant to 18 U.S.C. section 3582(c)(2), it lacked the authority to impose a sentence less than the minimum of the amended guideline range. Booker does not apply to sentence modification proceedings under section 3582(c)(2).
U.S. 10th Circuit Court of Appeals, December 08, 2008 US v. Arreola, No. 07-2168 Defendant’s sentence for making a false statement, presenting a false claim, and embezzlement of public funds is affirmed where the district court did not err in concluding that defendant, who worked as a buyer, occupied a position of trust at Los Alamos National Laboratory and her sentence was procedurally reasonable.
U.S. 10th Circuit Court of Appeals, December 08, 2008 US v. Lawrance, No. 08-6034 Conviction for failing to register pursuant to the Sex Offender Registration and Notification Act (SORNA) is affirmed over claims that: 1) defendant’s prosecution under SORNA’s failure to register provisions violated the Ex Post Facto Clause; 2) SORNA and its failure to register provisions violate the Commerce Clause because they exceed the authority granted to Congress to regulate interstate commerce; and 3) the statute’s application to his conduct violated his due process rights.
U.S. 10th Circuit Court of Appeals, December 09, 2008 Buck v. City of Albuquerque, No. 07-2118 In a 42 U.S.C. section 1983 action against police officers and city arising from events that transpired during an antiwar rally at the University of New Mexico, denial of defendant-police captain’s motion for summary judgment is affirmed where: 1) the district court correctly found that defendant was not entitled to qualified immunity for directing the arrests of and authorizing the use of force against certain plaintiffs; 2) the rights underlying those claims were clearly established; 3) as to a First Amendment retaliation claim, defendant’s challenges failed because the right to peaceful assembly and freedom of speech is clearly established; and 4) the circuit court was without jurisdiction to consider factual disputes regarding the remainder of defendant’s challenges.
U.S. 10th Circuit Court of Appeals, December 09, 2008 US v. Hinckley, No. 07-7107 A conviction for failing to register pursuant to the Sex Offender Registration and Notification Act (SORNA) is affirmed over claims that: 1) the indictment was constitutionally defective because it sought to prosecute him for behavior that predated SORNA’s effective date; 2) the application of SORNA in his circumstances violates the Ex Post Facto Clause; 3) he was denied due process because he had no notice that he was required to register under SORNA; 4) Congress’s delegation to the Attorney General in section 16913(d) violated the Nondelegation Doctrine; and 5) SORNA violates the Commerce Clause by punishing activity that does not substantially affect interstate commerce.
U.S. 10th Circuit Court of Appeals, December 10, 2008 US v. West, No. 06-4284 A prior conviction under Utah law for failing to stop at an officer’s command qualifies as a violent felony under the Armed Career Criminal Act’s (ACCA) residual language. A sentence for being a previously-convicted felon in possession of a firearm is remanded for further proceedings where: 1) although a presentence report (PSR) contained facts supporting the application of various enhancements, defendant adequately disputed those facts at sentencing; 2) thus, the district court was obligated, under Fed. R. Crim. P. 32(i)(3)(B), either to rule on those disputes or explain why the disputed facts were not relevant to sentencing; and 3) the district court failed to meet its fact-finding obligation under Rule 32(i)(3)(B).
U.S. 10th Circuit Court of Appeals, December 11, 2008 US v. Ford, No. 07-1176 A conviction for illegally selling or possessing a machine gun is affirmed where, in light of all the evidence presented at trial, certain emails sent between defendant and an informant that the government failed to produce were not sufficiently material to cast doubt on the jury’s verdict, despite the fact that entrapment was the primary defense at trial.
U.S. 11th Circuit Court of Appeals, December 12, 2008 US v. Gonzalez, No. 08-10008 District court did not err by enhancing Defendant’s sentence for a “crime of violence” conviction per U.S.S.G. section 2L1.2(b)(1)(A)(ii), notwithstanding that her prior conviction for aiding and abetting a bank robbery does not meet the definition of “aggravated felony.” Her sentence, which is near the middle of her Guidelines range, is both procedurally and substantively reasonable.
Supreme Court of California, December 11, 2008 In re Raymond C., No. S149728 In a companion case to People v. Hernandez, __ Cal.4th __ (Dec. 12, 2008, S150038), the California Supreme Court rules that the officer in this DUI case acted with sufficient particularized suspicion to justify the traffic stop in circumstances where the officer saw that defendant’s car did not have license plates or a temporary permit in the rear window, and he could not see whether there was a temporary permit in the front window (which there was).
Supreme Court of California, December 11, 2008 People v. Hernandez, No. S150038 An officer who sees a vehicle displaying a temporary operating permit in lieu of license plates may not stop the vehicle simply because he or she believes that such permits are often forged or otherwise invalid. To support a stop the officer must have a reasonable suspicion that the particular permit is invalid.
Supreme Court of Florida, December 11, 2008 Poole v. State of Florida, No. SC05-1770 Death sentence is vacated and a new penalty phase ordered where the prosecutor’s improper cross-examination of defense witnesses constituted inadmissible nonstatutory aggravation. The trial court erred in overruling defense counsel’s objection after the prosecutor asked questions regarding unproven prior arrests and the unproven content of a tattoo.
Supreme Court of Florida, December 11, 2008 Larimore v. State of Florida, No. SC06-139 In order for the circuit court to have jurisdiction, an individual must be in lawful custody when the State takes steps to initiate commitment proceedings pursuant to the Involuntary Civil Commitment of Sexually Violent Predators Act, commonly known as the Jimmy Ryce Act.
Supreme Court of Florida, December 11, 2008 Tennis v. State of Florida, No. SC06-730 First-degree felony murder conviction and death sentence are reversed and remanded where the trial court failed to hold a hearing to determine whether Defendant’s unequivocal request for self-representation was a knowing and intelligent waiver of his right to court-appointed counsel.
Supreme Court of Florida, December 11, 2008 In Re: Standard Jury Instructions in Criminal Cases — Report No. 2007-10, No. SC07-2324 The Court hereby authorizes modifications to Standard Jury Instruction 7.7 (Manslaughter).
Supreme Court of Delaware, December 09, 2008 Hardy v. State of Delaware, No. 126, 2008 Convictions for Rape First Degree, Unlawful Imprisonment First Degree, and Aggravated Menacing are reversed and remanded where the prosecutor vouched for the State’s case by commenting, in his closing remarks to the jury, that falsely reported rapes do not go to trial.
Supreme Court of Delaware, December 10, 2008 Jianniney v. State of Delaware, No. 350, 2007 Judgment of the Superior Court is affirmed, as the trial court erred in admitting Mapquest printouts under an exception to the hearsay rule for published compilations. The printouts were admitted for the truth of the website’s driving time estimates, but the State offered no evidence that those estimates are relied upon by the public or by professional drivers.
California Appellate Districts, December 08, 2008 People v. Hassan, No. B194141 In a prosecution involving marriage fraud for immigration purposes, a conviction for offering false or forged instrument for recording and offering false evidence is reversed in part and affirmed in part where: 1) there was undisputed evidence defendant did not live in the same dwelling as his alleged wife; 2) “living together” as written in section Penal Code section 115 means cohabitating; and 3) defendant was improperly convicted of offering false evidence. .
California Appellate Districts, December 09, 2008 In re C.R., No. B205565 Order finding defendant to be a ward of the juvenile court because he committed gang-related murder is affirmed where: 1) there was no need for the court to make a finding of degree of crime; and 2) there was sufficient evidence of first degree murder.
California Appellate Districts, December 11, 2008 In re Aguilar, No. B203595 Governor’s decision to reverse the Parole Board’s grant of parole is vacated and the parole release order is reinstated where overwhelming evidence supported the Board’s conclusion that petitioner is suitable for parole and does not pose a current danger to society.
California Appellate Districts, December 11, 2008 In re Z.R., No. F054835 Penal Code section 626.10 subdivision (a), which prohibits a student from bringing or possessing “a razor with an unguarded blade” on school grounds, thereby proscribes the possession of a box cutter with an exposed blade. .
Texas Court of Criminal Appeals, December 10, 2008 Segundo v. Texas, No. AP-75,604 On rehearing, conviction and death sentence are affirmed where boilerplate statements on the parole-revocation certificates admitted by the trial court are nontestimonial.