Findlaw Case Summaries: Criminal Law and Procedure 7

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December 29, 2008 – January 3, 2009
U.S. 1st Circuit Court of Appeals, December 31, 2008 US v. Andrade, No. 081175 In a prosecution for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. section 922(g)(1), denial of a motion to suppress the firearms and ammunition seized by police officer is affirmed where police officer’s actions were reasonable under the totality of circumstances.

U.S. 2nd Circuit Court of Appeals, December 31, 2008 US v. Spinelli, No. 99-1344, 99-1394 Conviction for conspiracy to commit murder and assault with a dangerous weapon, both for the purpose of increasing and maintaining a position in a racketeering enterprise, and related offenses are affirmed. Although the prosecutor erred by vouching to the jury that the government’s cooperating accomplices had never perjured themselves or falsely implicated anybody in a crime, her improper remarks did not justify disturbing the verdict.

U.S. 4th Circuit Court of Appeals, December 30, 2008 US v. Dews, No. 086458 In prosecutions for distribution and possession with intent to distribute cocaine base and money laundering, denial of defendants’ motions for reductions of sentence is reversed and remanded where: 1) defendants agreed to plead guilty if the district court would sentence them to a guidelines term of imprisonment of 168 months, and the district court did so; and 2) defendants did not agree that they would not seek relief under section 3582(c)(2) in the event the Sentencing Commission retroactively amended a relevant guideline.

U.S. 5th Circuit Court of Appeals, December 29, 2008 US v. Elashyi, No. 06-10176 Convictions of illegally exporting computer equipment, money laundering, dealing in property of a designated terrorist, and related offenses are affirmed for 4 of 5 co-defendants over their various unmeritorious challenges, including insufficiency of the evidence, improper admission of hearsay evidence, and improper jury instructions. One defendant’s conviction was reversed, however, on certain of the charges where the government’s prosecution of him breached an unambiguous plea agreement stemming from earlier charges involving the very same facts and circumstances.

U.S. 5th Circuit Court of Appeals, December 23, 2008 US v. Percel, No. 07-20236 Convictions arising from a conspiracy to possess and distribute five kilograms or more of cocaine are affirmed. Judge did not commit plain error by omitting the word “not” when reciting the requested “no-adverse-influence” instruction, given that the written jury instructions contained the correct wording. Testimony made by two witnesses pursuant to a plea agreement was properly admitted and was sufficient for the jury to convict, where the jury was properly instructed to weigh the credibility of these witnesses with great care. (Revised opinion) .

U.S. 6th Circuit Court of Appeals, December 30, 2008 Doe v., No. 07-4182 District court correctly dismissed this suit, brought against an online adult dating service by one of its subscribers. Plaintiff failed to state a claim in alleging that the service is at fault for his sexual relationship with a minor and the harm that resulted from his arrest, notwithstanding that the service requires each subscriber to promise that he or she is at least eighteen years old.

U.S. 6th Circuit Court of Appeals, December 31, 2008 Brown v. Smith, No. 06-2295 AEDPA deference does not apply with respect to convicted sex offender’s habeas claim because the counseling notes that formed the basis of his ineffective-assistance-of-counsel claim were not in the record before the state court and therefore this claim had not been “adjudicated on the merits in State court proceedings.” Conditional habeas relief is warranted because the absence of this evidence was error sufficient to undermine confidence in the trial’s outcome.

U.S. 7th Circuit Court of Appeals, December 29, 2008 US v. Wooden, No. 08-1600 District court did not err in concluding that an anonymous 911 call by a person claiming to have seen a gun drawn in public provided articulable suspicion for a Terry stop and frisk. Though Defendant and his girlfriend wer no longer quarreling when police arrived, the call implied a need for dispatch. .

U.S. 7th Circuit Court of Appeals, December 29, 2008 US v. Alldredge, No. 08-2076 District court erred in enhancing the sentence of a counterfeit currency-distributor under U.S.S.G. section 2B5.1(b)(5), even though the check-forging scheme in which she participated was international in scope, where: 1.) she was not charged with forging checks for a man overseas; 2.) she did not expect to be paid by him in phony bills; and 3.) she did not spend the money outside the US.

U.S. 7th Circuit Court of Appeals, December 30, 2008 US v. Turner, No. 07-1062 A false statement need not actually influence the agents to whom it is made in order to satisfy the materiality requirement for the offense of making false statements to the FBI; it need only have the possibility of influencing a reasonable agent under normal circumstances, and Appellant’s statements, denying that he provided supervisory cover for employees’ scheme to defraud the State of Illinois, satisfied this standard. The fact that some of the employees were paid their falsely inflated wages via direct deposit supplies the “use of the wires” element necessary to make this a federal wire fraud.

U.S. 7th Circuit Court of Appeals, December 30, 2008 US v. Busara, No. 07-3857 In finding that Defendant delivered the fatal blow against one kidnapping victim, district court did not err in crediting his conspirator’s presumptively unreliable statement, which bore sufficient indicia of reliability to override this presumption. The forty-year sentence is affirmed because it falls within the Guideline range and was reasonably deemed appropriate in light of the 18 U.S.C. section 3553(a) factors.

U.S. 7th Circuit Court of Appeals, December 31, 2008 US v. Vargas, No. 07-2026 Conviction for possession of cocaine with intent to distribute is affirmed. District court did not err in allowing evidence of defendant’s prior drug trafficking activities under Federal Rule of Evidence 404(b) because it was relevant to show Defendant’s knowledge and criminal intent, and the minimal risk of unfair prejudice did not outweigh the probative value of the evidence.

U.S. 7th Circuit Court of Appeals, December 31, 2008 Corcoran v. Buss, No. 07-2093, 07-2182 District court’s grant of death row inmate’s habeas petition is reversed because prosecutor’s offer to forego seeking the death penalty if defendant would agree to a bench trial did not penalize defendant for exercising his constitutional right to a jury trial. State supreme court properly examined and rejected defendant’s claim that he was incompetent to waive post-conviction proceedings.

U.S. 7th Circuit Court of Appeals, December 31, 2008 US v. Hill, No. 07-3341 Conviction for bank robbery is affirmed where the district court committed harmless error in admitting evidence that defendant bought a luxury car shortly after the bank robbery. Defendant’s challenge to the impartiality of his jury is also rejected because the court’s method of questioning potential jurors was sufficient to assure that any prejudice would have been discovered and, in any event, defendant had failed to use all his peremptory challenges.

U.S. 7th Circuit Court of Appeals, December 31, 2008 US v. House, No. 07-4043 Defendant’s sentence of 188 months for distribution of crack cocaine is affirmed where the district court: 1) properly adjusted base offense level due to defendant’s obstruction of justice in asking defense witness not to testify; 2) did not abuse its discretion in declining to reduce sentence based on the disparity in the sentencing guidelines for powder cocaine versus crack cocaine; and 3) properly considered all the requisite factors under sentencing law. .

U.S. 8th Circuit Court of Appeals, December 29, 2008 US v. Bauer, No. 08-1043, 08-1209 Convictions for bankruptcy fraud and money laundering are affirmed where: 1.) defendants were not prejudiced by the admission of hortatory statements from the bankruptcy judge; 2.) the admission of defiant and nonsensical affidavits by one defendant did not prejudice her ex-husband; and 3.) substantial evidence showed that the defendants knew the true value of their home when they submitted their original bankruptcy schedules, that they were aware of their obligation to disclose their IRA balances, that they expressly refused to cooperate with bankruptcy court orders, and that they converted estate funds into cash and spent or buried the proceeds.

U.S. 8th Circuit Court of Appeals, December 30, 2008 US v. Davidson, No. 07-1788 Appellant’s sentence for unlawful possession of a firearm as a felon is vacated and remanded because the offense of tampering with an automobile by operation in Missouri is not a “crime of violence” for purposes of U.S.S.G. section 4B1.2(a).

U.S. 9th Circuit Court of Appeals, October 15, 2008 US v. Armstead, No. 06-30550 A sentence for bank fraud is vacated and case remanded for resentencing where the district court: 1) miscalculated the number of victims under United States Sentencing Guidelines (U.S.S.G.) section 2B1.1(b)(2); and 2) erred by failing to apply U.S.S.G. section 5G1.3(b)(1) for time served. (Amended opinion)

U.S. 9th Circuit Court of Appeals, December 30, 2008 Gonzalez v. Duncan, No. 06-56523 A sentence of 28 years to life imprisonment under California’s “Three Strikes” law violates the Eighth Amendment where: 1) the offense was Petitioner’s failure to update his annual sex offender registration within five working days of his birthday; and 2) he was living at his registered address throughout the relevant time period. Habeas relief is warranted because the state court’s application of the gross disproportionality principle was objectively unreasonable.

U.S. 10th Circuit Court of Appeals, December 30, 2008 Smith v. Workman, No. 05-6206 Death row inmate’s habeas petition was properly denied where: 1) his attorney’s failure to request a mental health expert at the trial’s mitigation phase did not constitute ineffective assistance; 2) the trial court’s failure to provide such an expert at the guilt/innocence phase was not wrongful; 3) counsel’s performance at the mitigation phase was objectively reasonable given that his investigation attempts were thwarted by his client; and 4) a due process challenge was procedurally barred.

U.S. 10th Circuit Court of Appeals, December 30, 2008 US v. Montgomery, No. 06-4300 Sentence of fifty-seven months for possession of firearms and ammunition by a convicted felon is affirmed. District court did not err in applying an upward departure under U.S.S.G. section 5K2.1 where the suicide of defendant’s wife was a reasonably foreseeable result of his unlawful possession of firearms.

U.S. 10th Circuit Court of Appeals, December 30, 2008 US v. Algarate-Valencia, No. 08-2022 District court did not commit plain error when it gave defendant’s counsel only thirty seconds to speak at his sentencing hearing, and its explanation of the sentence was adequate. The forty-six month sentence for illegal re-entry of a removed alien, which reflected a downward departure and fell at the bottom of the resulting Guidelines range, was substantively reasonable.

U.S. 10th Circuit Court of Appeals, December 30, 2008 US v. Barraza-Ramos, No. 08-3027 Sentence for unlawful reentry by a deported alien previously convicted of an aggravated felony is reversed and remanded. The district court incorrectly applied an upward departure for a felony “crime of violence” where defendant’s previous offense of felony aggravated battery is not categorically a crime of violence.

U.S. 10th Circuit Court of Appeals, December 31, 2009 US v. Cook, No. 07-1487 A guilty plea sentence for being a felon in possession of a firearm is affirmed over defendant’s challenges to: 1) the district court’s decision to apply a four-level increase to his base offense level for felony menacing under U.S.S.G. section 2K2.1(b)(6), which was based on various hearsay statements before it; and 2) the adequacy of the district court’s explanation for such enhancement under Federal Rule of Criminal Procedure 32(i)(3)(B).

U.S. 11th Circuit Court of Appeals, December 31, 2008 Singh v. US Attorney Gen., No. 08-10780 Petitioner was properly deemed deportable as an alien convicted of an aggravated felony (burglary) for which a sentence of at least one year was imposed. A conviction in adult court is a conviction for immigration purposes, no matter how old the alien was at the time of the offense.

U.S. D.C. Circuit Court of Appeals, December 30, 2008 Kaemmerling v. Lappin, No. 07-5065 The Prison Litigation Reform Act does not require convicted felon to exhaust administrative remedies on his Constitutional challenge to the DNA Analysis Backlog Elimination Act because the Federal Bureau of Prisons has no discretion not to collect his DNA, and hence there is no administrative process to exhaust. Dismissal is affirmed for failure to state a claim for relief, since extraction and storage of appellant’s DNA does not burden his religious exercise.

Supreme Court of California, December 29, 2009 People v. Olguin, No. S149303 A condition of probation requiring a defendant to notify his probation officer of the presence of any pets at the defendant’s place of residence is valid as: 1) such a condition facilitates the effective supervision of probationers and, as such, is reasonably related to deterring future criminality; and 2) no fundamental or constitutional rights are implicated by the challenged term of probation.

Supreme Court of California, January 02, 2009 People v. Galland, No. S149890 A sealed search warrant affidavit, like search warrant affidavits generally, should ordinarily be part of the court record that is maintained at the court. In this case, the California Supreme Court sets forth a five-requirement test for when a sealed search warrant affidavit may be retained by the law enforcement agency.

California Appellate Districts, December 29, 2008 People v. Bradford, No. A116899 Following a conviction for second degree murder and other offenses, admission of defendant’s confession is reversed where: 1) because detectives failed to give defendant one of the four required Miranda warnings, his confession was inadmissible in the prosecution’s case-in-chief; and 2) admission of defendant’s confession was not harmless error.

California Appellate Districts, December 30, 2008 People v. Adams, No. F053355 Conviction for premeditated murder by means of arson is affirmed over claims of error that defendant’s convictions for attempted premeditated murder of three other people who were at the site of the arson fire should have been vacated because defendant did not know they were present.

California Appellate Districts, December 30, 2008 In re Grunau, No. H015871 In action for recall of remittitur on the ground that the 1997 dismissal of defendant’s appeal from conviction for sexual abuse of a minor resulted from neglect and misconduct by appellant attorney, petition for writ of habeas corpus is granted and remittitur is recalled and appeal is reinstated where: 1) defendant showed good cause to recall the remittitur; and 2) defendant was entitled to relief he sought

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