Findlaw Case Summaries: Criminal Law and Procedure 6

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Week of December 15-19, 2008.

U.S. 1st Circuit Court of Appeals, December 17, 2008 US v. Jones, No. 07-2052 Sentence is affirmed where defendant pled guilty to charges stemming from her role in a bank fraud conspiracy. Loss amount was properly calculated to include dollar amounts that she had not yet withdrawn, and her base offense level was properly increased where the physical act of popping small air bubbles on the laminated face of her fake ID constituted production of a counterfeit access device.

U.S. 1st Circuit Court of Appeals, December 17, 2008 US v. Martinez-Vega, No. 08-1083 Twenty-year sentence for possession of crack cocaine with intent to distribute is affirmed, despite the fact that the trial court had misinformed Defendant about the maximum possible sentence at the time he entered his guilty plea, where Defendant never sought to vacate his plea and go to trial. Any defect in the plea colloquy had no bearing on his ultimate sentence, and the trial court properly considered mitigating factors.

U.S. 1st Circuit Court of Appeals, December 18, 2008 US v. Cruz-Diaz, No. 07-1534, 07-1535 Armed bank-robbery convictions are affirmed, despite one bank teller’s doubt as to whether the gun was real, where eyewitness testimony, the bank’s surveillance video, and the discovery of a bullet casing in the getaway car were all consistent with the finding that the gun was real. Admission of an out-of-court statement made to authorities by one codefendant did not violate the other defendant’s Confrontation Clause rights, where the statement was not offered for its truth but rather to rebut an attempt to cast doubt on the integrity of the police’s investigatory efforts.

U.S. 2nd Circuit Court of Appeals, December 17, 2008 US v. Elgindy, No. 064081 In a case where racketeering conspiracists ran a subscription website recommending stock short-sales on the basis of misappropriated information: 1) venue was proper where seven site subscribers resided in the Eastern District of New York; 2) the misappropriated law enforcement reports were not public in any practical sense, even if some of the sources from which they were compiled could be accessed by the public; and 3) the district court properly included the subscribers’ stock trades when calculating the forfeiture amount and the appropriate offense level.

U.S. 2nd Circuit Court of Appeals, December 17, 2008 US v. Bullock, No. 07-3059 Conviction and sentence under the Armed Career Criminal Act are affirmed where: 1) none of defendant’s prior convictions (all from the 1970’s) has been expunged or pardoned, and his civil rights had not been restored at the time of the present offense; 2) his constructive possession of the ammunition found in his bedroom dresser was sufficiently evinced; and 3) given the nature of his prior robbery convictions, a sentence of 15 years is not so disproportionate as to violate the Eighth Amendment.

U.S. 2nd Circuit Court of Appeals, December 18, 2008 Martinez v. Mukasey, No. 07-3031 Where Petitioner’s state drug conviction could have been for nonremunerative transfer of as little as two grams of marijuana, his conviction is the equivalent of a federal misdemeanor under the Controlled Substances Act and therefore not an aggravated felony under the INA.

U.S. 3rd Circuit Court of Appeals, December 15, 2008 US v. Corso, No. 07-3901 Convicted mail thief is not permitted to appeal the court’s application of sentencing Guidelines, where the appellate-waiver provision of his plea agreement grants the district court broad discretion to determine the applicable Guidelines range. Though the court erred in failing to inform him of the terms of his appellate waiver per FRCP 11(b)(1)(N), that error was not particularly egregious.

U.S. 3rd Circuit Court of Appeals, December 19, 2008 Vazquez v. Wilson, No. 07-2162 Denial of a petition for habeas relief in a first degree murder case is reversed where the use of a non-testifying co-defendant’s statement at trial, even as redacted and subject to an instruction that the jury should not use it against defendant, was an unreasonable application of Bruton v. US, 391 U.S. 123, 88 S.Ct. 1620 (1968), and its progeny.

U.S. 3rd Circuit Court of Appeals, December 19, 2008 Evanson v. Attorney Gen. of the US, No. 07-2509 Petition for review of a BIA order finding petitioner removable for having committed an aggravated felony, contrary to an IJ’s finding and grant of cancellation of removal, is granted where the BIA erred in failing to apply the modified categorical approach set forth in applicable Supreme Court precedent, and thus it erred when it considered petitioner’s sentencing document to determine whether he had been convicted of an aggravated felony. .

U.S. 4th Circuit Court of Appeals, December 17, 2008 Moseley v. Branker, No. 07-17 Death row inmate’s Brady claim was properly rejected where compelling evidence showed that the two women were murdered by the same person, and implicated him as that person. Production of undisclosed evidence identifying other, initial crime suspects would not have changed the result of his trial. .

U.S. 4th Circuit Court of Appeals, December 18, 2008 US v. Whorley, No. 06-4288 Convictions for receipt of obscene cartoons depicting minors, receipt of actual child pornography, and receipt of obscene e-mails are unsuccessfully challenged on First Amendment grounds. Court holds that: 1) textual matter such as emails may be prohibited as “obscene” although not containing pictures; 2) statute could prohibit obscene cartoons of child pornography although cartoons did not depict real life children; 3) the interstate trafficking of obscene materials can be prohibited by law; and 4) the term “receives” is not unconstitutionally vague as applied to receipt of obscenity via computer.

U.S. 5th Circuit Court of Appeals, December 15, 2008 US v. Rodriguez, No. 06-20774 Convictions and sentences concerning participation in a single, broad conspiracy to transport many aliens to Houston are affirmed where: 1.) two appellants depended on the aliens’ transportation to Houston for their full payment, though they did not intend to take any aliens to Houston themselves; and 2.) third appellant knew that many aliens would be transported by trailer well past Robstown.

U.S. 5th Circuit Court of Appeals, December 15, 2008 Bryson v. US, No. 08-30041 Involuntary dismissal with prejudice of convicted money-launderer’s federal habeas petition is affirmed where Appellant is a repeat filer of facially deficient habeas petitions. .

U.S. 6th Circuit Court of Appeals, December 15, 2008 US v Haygood, No. 07-1771 A guilty plea conviction and sentence relating to defendant’s possession of marijuana and firearms that police found in his home during the execution of a search warrant is affirmed in part as to the conviction, but the sentence is vacated and remanded where the district court erred when defendant was deprived of the right of allocution at sentencing.

U.S. 6th Circuit Court of Appeals, December 16, 2008 US v. Shor, No. 07-2334 A sentence for conspiracy to distribute ecstasy is affirmed where the district court correctly calculated his sentence in adding a criminal history point pursuant to U.S.S.G. section 4A1.1(c) based on defendant’s prior sentence for an assault with a dangerous weapon that resulted in a two-year probationary sentence imposed under Michigan’s Holmes Youthful Trainee Act. .

U.S. 6th Circuit Court of Appeals, December 18, 2008 West v. Bell, No. 05-5132, 05-6219 Habeas petition was properly dismissed where: 1) State court applied an incorrect standard of proof in denying death row inmate’s ineffective assistance of counsel claim, but it reached the correct outcome; 2) the excluded testimony of a co-defendant was of a cumulative nature; and 3) the prosecutor committed harmless error in minimizing the jury’s role in determining the appropriateness of a death sentence. ..

U.S. 6th Circuit Court of Appeals, December 19, 2008 US v. Davis, No. 07-1964 A conviction for being a felon in possession of a firearm and possession of cocaine base with intent to distribute is affirmed where: 1) although a vehicular safety statute involving dangling ornaments that police relied upon to make the stop at issue was unconstitutionally vague; 2) nevertheless, the exclusionary rule did not apply as police were relying in good faith on a presumptively valid statute.

U.S. 7th Circuit Court of Appeals, December 19, 2008 US v. Poole, No. 08-2328 Denial of defendant’s motion to modify her sentence is affirmed where the district court lacked subject-matter jurisdiction to revisit defendant’s sentence because it was based on a statutory minimum sentence, not a range the Sentencing Commission has subsequently lowered.

U.S. 8th Circuit Court of Appeals, December 16, 2008 US v. Almeida-Perez, No. 07-2602, 07-2635 In a prosecution of two brothers for being illegal aliens in possession of firearms that had been transported in interstate commerce, denial of defendants’ motion to suppress evidence is affirmed over claims that the district court erred in: 1) finding that police reasonably relied on the real or apparent authority of defendants’ cousin to consent to police entry of their house; 2) finding that other occupants of their house consented to police entering defendants’ bedrooms; and 3) its credibility determinations, which allegedly rested on mutually inconsistent findings. However, the matter is remanded for clarification of findings at sentencing with regards to whether defendants possessed the firearms in connection with possession of cocaine.

U.S. 8th Circuit Court of Appeals, December 17, 2008 US v. Bueno, No. 06-4216 Where defendant’s wife’s mental and physical health issues were shown to be life-threatening and his role in her care was shown to be irreplaceable, the district court did not err in finding that a downward departure from the Guidelines range was warranted under Guidelines section 5H1.6, and the court did not abuse its discretion in sentencing the drug convict to five years of probation, the conditions of which included house arrest with electronic monitoring.

U.S. 8th Circuit Court of Appeals, December 19, 2008 US v. Steele, No. 08-1607 A conviction and sentence for first degree burglary, assault resulting in serious bodily injury, assaulting a federal officer, and assault with a dangerous weapon is affirmed over claims that the district court erred by: 1) denying motions for judgment of acquittal and for severance of the charge for assaulting a federal officer; 2) admitting evidence of his prior acts and conviction; 3) its instruction on the definition of bodily injury; and 4) applying bodily injury enhancements to his sentence.

U.S. 10th Circuit Court of Appeals, December 16, 2008 US v. Parker, No. 07-3364 Conviction and sentence for using a cell phone to convey false bomb threats are affirmed where: 1) minimal familiarity with defendant’s voice was sufficient to offer an identification of the voice on the 911 tapes; and 2) defendant was reasonably found to have targeted multiple victims, in that he mentioned “school,” “schools” and “City Hall” in a county with 4 city halls and 39 public schools.

U.S. 10th Circuit Court of Appeals, December 16, 2008 Young v. Sirmons, No. 07-5130 Denial of death row inmate’s habeas petition is affirmed where: 1) the victim-impact evidence’s references to conversations, hymns, and future goals simply provided a “quick glimpse” into the lives of his victims, and thus did not violate his due process rights; and 2) his attorney’s failure to adequately investigate mitigation evidence was nonprejudicial.

U.S. 10th Circuit Court of Appeals, December 18, 2008 US v. Hahn, No. 07-5117 A sentence for the misapplication of financial institution funds is affirmed over defendant’s challenges to the calculation of loss, restitution order, consecutive sentence, and application of special sex offender conditions. A court is not prohibited from imposing sex offender special conditions where the underlying offense was not a sex crime. .

U.S. 11th Circuit Court of Appeals, December 18, 2008 McClain v. Hall, No. 07-13487 State court reasonably denied death row inmate’s habeas petition for failure to prove ineffective assistance of counsel in the investigation of mitigating evidence regarding his criminal history, childhood abuse, substance abuse, neurological disorder, and good character.

U.S. 11th Circuit Court of Appeals, December 18, 2008 Galvez v. Bruce, No. 08-10531 Sheriff’s Deputy is not entitled to qualified immunity at the summary judgment stage from a suit alleging the use of excessive force in the course of arrest. It should have been clear to the Deputy that repeatedly slamming a fully secured and compliant misdemeanor arrestee against the corner of a concrete wall, with force sufficient to break his ribs and cause a leaking aneurysm, was unlawful.

U.S. 11th Circuit Court of Appeals, December 19, 2008 US v. Horsefall, No. 0810739 In a per curiam decision, sentence of 327 months for receiving child pornography is affirmed over claims that: 1) the government breached the plea agreement by recommending an upward departure; 2) the court erred by imposing an upward departure under the Sentencing Guidelines; and 3) the court violated defendant’s Eighth Amendment rights by considering victim impact evidence at sentencing.

New York Court of Appeals, December 16, 2008 People v. Buss, No. 211 For purposes of the Sex Offender Registration Act, a prisoner serving multiple sentences is subject to all the sentences, whether concurrent or consecutive, that make up the merged or aggregate sentence he is serving.

New York Court of Appeals, December 16, 2008 People v. Diggins, No. 214 Persistent violent felony offender was properly denied an adjournment to gather further evidence in support of his allegation that one of his predicate felony convictions was secured in violation of his right to counsel, where trial in absentia implied that the attorney’s non-participation was a protest strategy that would not support a claim of ineffective assistance. .

New York Court of Appeals, December 17, 2008 People v. Mills, No. 207, 208 In order to qualify for resentencing under the Drug Law Reform Act of 2005, class A-II felony drug offenders must not be eligible for parole within three years of their resentencing applications. Once a defendant has been released to parole supervision for a class A-II drug felony conviction, he no longer qualifies for resentencing for that particular conviction under the Act.

Supreme Court of Delaware, December 17, 2008 Brown v. State of Delaware, No. 485, 2006 In a case wherein an accused sought to suppress his confessions of murder made after an unconstitutional police interrogation, judgment on evidentiary admissions is remanded in part where the trial judge failed to consider whether the police “deliberately elicited” defendant’s statements in violation of Sixth Amendment jurisprudence.

Supreme Court of Delaware, December 18, 2008 Smith v. State of Delaware, No. 339, 2008 A conviction for attempted robbery in the first degree, assault in the second degree, and conspiracy in the second degree is affirmed over meritless claims that the superior court abused its discretion when it denied defendant’s request for a mistrial following a witness’s references to defendant’s criminal history and to plea negotiations between the state and defendant.

California Appellate Districts, December 15, 2008 Lewis v. Superior Court of Santa Clara County, No. H032621 In a prosecution for oral copulation with a minor under the age of 18, petition for writ of mandate requesting relief from requirement that petitioner register as a sex offender under either Penal Code section 290 or 290.006 is granted where the moving and responding papers established that neither petitioner’s 1987 conviction nor his subsequent criminal history could support an order requiring him to register as a sex offender.

California Appellate Districts, December 16, 2008 People v. Felix , No. A115717 In prosecution for multiple counts of false imprisonment, oral copulation, rape, and assault with the intent to commit rape against a sixth victim, indeterminate term of commitment as a sexually violent predator (SVP) imposed on October 20, 2006 and dismissal of a 2006 petition extending defendant’s commitment as an SVP are affirmed where the totality of the evidence demonstrated sufficient dangerousness to involuntarily commit defendant as an SVP.

California Appellate Districts, December 16, 2008 People v Martinez, No. B194836 Convictions for two counts of murder and one count of attempted murder are reversed where: 1) the trial court erred in its jury instruction because the record did not contain substantial evidence that the murders and the attempted murder were natural and probable consequences of the alleged breach of the peace or the alleged misdemeanor assault; and 2) it was reasonably probable that defendants would have obtained a more favorable result were it not for the trial court’s error.

California Appellate Districts, December 16, 2008 In re Noelle, No. C056780 Order declaring defendant-minor ward of the court and committing her to the Department of Juvenile Justice based upon her admission of two counts of involuntary manslaughter, one count of conspiracy to sell methadone, and five counts of selling methadone is affirmed as modified where: 1) sentencing defendant to consecutive terms for each of the five sales counts was not prohibited by Penal Code section 654; and 2) by parity of reasoning with People v. Perez, minor’s claim that her sole objective was to sell the pills to other juveniles at a football game was too broad for purposes of section 654 because her culpability increased with each illegal act of selling the methadone pills. .

California Appellate Districts, December 17, 2008 People v. Anderson, No. A118000 In a prosecution for first degree murder, denial of defendant’s renewed motion to suppress her statements to police, admission of hearsay statements, and jury instruction are affirmed where: 1) defendant’s new evidence did not raise material factual or legal issues not considered by the original trial judge or create the realistic possibility that the factual findings of that judge were in error; and 2) defendant was not entitled to a de novo hearing. ..

California Appellate Districts, December 17, 2008 People v. Yarbrough, No. A120721 Conviction and sentence for carrying a concealed firearm and carrying a loaded firearm in a public place are affirmed where: 1) the conviction for possession of a concealed weapon did not contravene defendant’s Second Amendment rights as interpreted by recent Supreme Court precedent; 2) the court properly instructed the jury on carrying a loaded firearm in a public place; and 3) no prejudicial sentencing error occurred.

California Appellate Districts, December 17, 2008 City of Tulare v. Superior Court of Tulare County, No. F055535 In a juvenile delinquency matter in which minor was charged with assault on a peace officer and eluding a peace officer, petition for writ of mandate seeking a noticed hearing before any information in addition to information already released related to complaints against police officers was disclosed is granted where petitioner-city was entitled to a properly noticed motion entitling it to the right to be heard at a meaningful time and in a meaningful manner.

California Appellate Districts, December 17, 2008 In re Franklin, No. F055684 Petition for writ of habeas corpus to require dismissal with prejudice of pending petition for petitioner’s civil commitment as a sexually violent predator (SVP) and to require petitioner’s release from custody is granted where: 1) according to In re Smith, SVP proceedings cannot proceed against a person after reversal on appeal of the felony conviction that was the basis of the person’s custody at the time of the initiation of those proceedings; and 2) reversal of defendant’s felony conviction in the jail door case was final before the SVP petition at issue was filed against him.

Texas Court of Criminal Appeals, December 17, 2008 Ex Parte Reed, No. AP-75,693 Death row inmate’s habeas petition is denied where he fails to establish that the state suppressed evidence at his trial, and also fails to establish that it was more likely than not that no reasonable juror would have convicted him in light of reliable evidence, both old and new, not presented at trial.

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