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U.S. 1st Circuit Court of Appeals, October 08, 2008 US v. Jackson, No. 072510 Conviction for being a felon in possession of a firearm is vacated and remanded where defendant was subjected to custodial interrogation before being given his Miranda warnings.
U.S. 1st Circuit Court of Appeals, October 08, 2008 US v. Vasquez, No. 072796 Conviction for drug and gun offenses is affirmed over claims of error that: 1) the district court should have suppressed his statements acknowledging that the drugs were his, his admission that he possessed the gun and the gun itself; and 2) the evidence was insufficient to show that the gun defendant surrendered at his arrest was carried during and in relation to a drug trafficking crime. .
U.S. 1st Circuit Court of Appeals, October 08, 2008 Farley v. Bissonnette, No. 081094 In a conviction for first degree murder, denial of writ of habeas corpus is affirmed over claims that: 1) the trial judge’s instruction to the jury that the prosecution “does not have the burden of proving that no one else may have committed the murder” was an error that was contrary to clearly established Supreme Court precedent as stated in In re Winship; and 2) the trial court violated defendant’s Sixth Amendment Confrontation Clause right under Delaware v. Van Arsdall, by limiting her cross-examination of a witness.
U.S. 2nd Circuit Court of Appeals, October 06, 2008 U.S. v. Mejia, No. 052856, 056683, 061744 Convictions for conspiracy to commit assaults with a dangerous weapon in aid of racketeering activity, assault with a dangerous weapon in aid of racketeering activity, and discharge of a firearm during a crime of violence are vacated where: 1) the testimony of the Government expert witness violated the Federal Rules of Evidence and the Confrontation Clause of the Sixth Amendment; and 2) that error was not harmless.
U.S. 2nd Circuit Court of Appeals, October 07, 2008 US v. Ojeikere, No. 071970, 073127 Conviction and sentence for wire fraud and conspiracy to commit wire fraud are affirmed where: 1) the defendant managed and supervised his female criminal accomplice, and, therefore, a two-level enhancement is warranted under Section 17 3B1.1(c); and 2) restitution under the Mandatory Victims Restitution Act of 1996 (MVRA) may not be denied simply because the victim had greedy or dishonest motives, where those intentions were not in pari materia with those of the defendant.
U.S. 2nd Circuit Court of Appeals, October 07, 2008 US v. Matthews , No. 070699 Conviction and sentence for conspiracy to commit bank robbery and bank robbery are affirmed where: 1) shifting the burden to the defendant under section 3559(c)(3)(A) was constitutional; 2) because defendant did not prove by a preponderance of the evidence that his felonies were not serious, court refrained from addressing the constitutionality of the clear-and-convincing standard; 3) defendant’s Apprendi claim is foreclosed by our case law; and 4) the district court did not err in rejecting of defendant’s fair-trial due process claim as untimely.
U.S. 2nd Circuit Court of Appeals, October 08, 2008 US v. Worjloh, No. 063129 Conviction for conspiring to distribute cocaine base and possessing with intent to distribute is affirmed and sentence is vacated and remanded where: 1) federal prosecutors did not seek to offer any evidence obtained by state officials in violation of the Sixth Amendment; 2) district court did not abuse discretion in denying a suppression hearing to enable the court to conclude that contested issues of fact existed as to whether defendant’s initiation of conversation with the federal agents was “anything but voluntary”; 3) defendant did not demonstrate that the affiant knowingly misled the Judge; 4) it was highly unlikely that the challenged jury instruction improperly influenced the jury; and 5) district court has to determine whether it would impose a different sentence given its discretion to depart from the Guidelines for crack cocaine.
U.S. 2nd Circuit Court of Appeals, October 08, 2008 Hartline v. Gallo, No. 065309 In claim for unconstitutional strip search in the absence of individualized suspicion that she was secreting contraband, grant of summary judgment in favor of defendants is vacated in part, affirmed in part, and remanded where: 1) defendant’s evidence demonstrated a violation of her Fourth Amendment right; 2) defendant was subjected to a strip search by the police, pursuant to departmental policy, in the absence of individualized suspicion that she was secreting contraband on her person; and 3) the district court erred in holding that defendant waived the alternative basis for her section 1983 claim, namely, that the officers violated her Fourth Amendment rights by telecasting her strip search through the 20 police station. .
U.S. 2nd Circuit Court of Appeals, October 09, 2008 US v. Kozeny, No. 073107 In charges of violations of the Foreign Corrupt Practices Act (FCPA), the Travel Act, money laundering, and making false statements to an FBI agent, judgment granting defendant’s motion to dismiss as to most of the counts on which he had been indicted is affirmed where the plain language of the provision, and the structure and content of the law by which it was enacted, required the government to apply for a suspension of the running of the statute of limitations before the limitations period expires. .
U.S. 2nd Circuit Court of Appeals, October 10, 2008 US v. DeFilippo, No. 071618 Conviction and sentence for conspiracy to racketeer, illegal gambling, and conspiracy to collect credit through extortionate means are affirmed over claims of error that: 1) the district court erred when it admitted testimony from a high-ranking member of the Bonanno Crime Family; 2) the murder of George Sciascia was not relevant conduct because it was not related to a conspiratorial object of which defendant was convicted; 3) the Government failed to rebut an alleged presumption that a person withdraws from a conspiracy when he is arrested; and 4) the district court erred in refusing to hold a hearing on that issue.
U.S. 5th Circuit Court of Appeals, October 06, 2008 US v. Constante, No. 07-41004 Sentence for possession of a firearm by a convicted felon is vacated and remanded where prior state convictions for burglary did not constitute violent felonies for sentence-enhancement purposes.
U.S. 5th Circuit Court of Appeals, October 08, 2008 US v. Hope, No. 07-60769 Conviction and sentence for two counts of being a felon in possession of a firearm are vacated and remanded where possession of the same gun when arrested and on the previous day in a robbery, absent evidence that the possession was interrupted, did not constitute two separate violations of the felon-in-possession statute.
U.S. 6th Circuit Court of Appeals, October 06, 2008 Newman v. Metrish, No. 07-1782 Grant of an application for a writ of habeas corpus based on the insufficiency of the evidence supporting his conviction for second-degree murder and felony firearm is affirmed where there was neither direct nor circumstantial evidence placing petitioner at the scene of the crime.
U.S. 6th Circuit Court of Appeals, October 07, 2008 US v. Castano, No. 06-1720 Convictions for being a felon-in-possession of a firearm and carrying a firearm during and in relation to a drug trafficking crime are reversed in part as to the latter conviction where: 1) jury instructions and verdict form for such conviction were infected by a number of errors which impermissibly authorized a conviction of a non-existent offense, which in this case was that of possessing a firearm simply during a drug trafficking offense; and 2) the errors were prejudicial and the district court plainly erred.
U.S. 6th Circuit Court of Appeals, October 07, 2008 US v. Alexander, No. 07-1758 A sentence for possessing crack cocaine with the intent to distribute is affirmed where: 1) the district court did not commit a plain error in designating defendant a career offender for sentencing purposes as he committed a prior crime of violence, and he otherwise satisfied the criteria necessary to be considered a career offender; and 2) the sentence was otherwise reasonable.
U.S. 6th Circuit Court of Appeals, October 09, 2008 US v. Lawson, No. 044480 Conviction for charges related to the Racketeer Influenced and Corrupt Organizations Act (RICO) and drug-related charges is affirmed, sentence is vacated, and case is remanded for sentencing where: 1) defendant was not entitled to a directed verdict on any of the charges of which he was convicted; 2) the evidence belies that Racketeering Acts 1A, 3, and 4 were sporadic, unrelated activities and there was sufficient evidence that they constituted a pattern of racketeering activity; 3) the RICO conspiracy conviction must be affirmed because defendant’s agreement to violate RICO can be inferred from his acts; and 4) there was insufficient evidence to support the RICO predicate act that was used to determine defendant’s sentencing range under the Sentencing Guidelines. .
U.S. 6th Circuit Court of Appeals, October 10, 2008 Johnson v. Bagley, No. 063846, 063847 In a conviction for aggravated murder and sentence of death, petition for habeas corpus is granted where: 1) by failing to interview defendant’s mother, defendant’s attorneys failed to uncover two critical categories of information that established “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”; and 2) the failure to uncover those pieces of evidence, established prejudice.
U.S. 7th Circuit Court of Appeals, October 06, 2008 Moore v. Tuleja, No. 07-3137 In a 42 U.S.C. section 1983 suit alleging that police used excessive force and denied medical care to a prisoner who died in his jail cell, denial of plaintiffs’ motion for a new trial is affirmed where there was sufficient evidence to support the jury’s verdict.
U.S. 7th Circuit Court of Appeals, October 06, 2008 Manning v. US, No. 07-1120, 07-1427 In a suit alleging Bivens claims against FBI agents and a tort claim against the U.S. under the Federal Tort Claims Act (FTCA), vacatur of a judgment for plaintiff on his Bivens claims is affirmed where 28 U.S.C. section 2676 applied to bar any claim by plaintiff against individual government employees arising out of the same facts alleged in his FTCA action.
U.S. 7th Circuit Court of Appeals, October 06, 2008 Nunez v. US, No. 06-1014 Conviction on a drug offense is affirmed upon a collateral attack where: 1) defendant’s guilty plea was knowing and voluntary, and so his waiver of his right to appeal was valid; and 2) an attorney’s performance is not ineffective when, after his client has made a valid waiver of his right to appeal, the attorney ignores his client’s direction to file a notice of appeal.
U.S. 7th Circuit Court of Appeals, October 07, 2008 US v. Jackson, No. 07-3226 Sentence for a federal drug possession conviction imposed to run consecutively to a state sentence for violating the terms of defendant’s supervised release is vacated and remanded where: 1) the district court had discretion to impose a consecutive sentence; but 2) the decision to impose a consecutive sentence must be explained with reference to the factors enumerated in 18 U.S.C. section 3553(a).
U.S. 7th Circuit Court of Appeals, October 08, 2008 US v. Billings, No. 07-2307 Mandatory-minimum life sentence for possessing with the intent to distribute crack cocaine is affirmed where: 1) the government did not improperly withhold a substantial-assistance motion; and 2) the government was not required to inform defendant of the difficulty his incarceration would create in providing substantial assistance.
U.S. 7th Circuit Court of Appeals, October 09, 2008 US v. Banks, No. 07-3348 Order for a new trial after convictions on drug-related counts is affirmed where the trial court did not abuse its discretion by determining that information not disclosed by the government, which could have been used to impeach its expert witness, was material, and that defendant was prejudiced by the nondisclosure.
U.S. 8th Circuit Court of Appeals, October 08, 2008 Gingras v. Weber, No. 07-3114 Denial of habeas relief from a conviction for possession of marijuana with intent to distribute is affirmed over a claim of ineffective assistance of counsel in relation to an allegedly coerced confession by petitioner where: 1) the facts that were found supported a conclusion that both a Miranda waiver and petitioner’s admissions themselves were knowing and voluntary; 2) thus, his ineffective-assistance claim failed, because even if counsel had proceeded differently, there was no reasonable probability that a motion to suppress statements would have been granted; and 3) there was no error in denying his request for an evidentiary hearing at which he could develop his claim.
U.S. 8th Circuit Court of Appeals, October 09, 2008 US v. Samuels , No. 073675 Conviction and sentence for distribution of cocaine base within 1000 feet of an elementary school are affirmed over claims that: 1) the district court erred in denying defendant’s pretrial ex parte request for authorization to pay a voice comparison expert more than the maximum allowed by statute; 2) the district court abused its discretion when it denied portions of defendant’s motion in limine; 3) the evidence of his state-court marijuana conviction should not have been admitted; 4) two jurors were removed from the venire because they were African-American, as is Samuels; 5) the district court erred in denying defendant’s motion for judgment of acquittal or, in the alternative, a new trial; 6) defendant’s “prior convictions for a felony drug offense,” were improperly used to enhance his sentence; 7) the convictions in question should be counted as a single offense; and 8) the state-law possession offenses would be misdemeanors, not felonies, under federal law and so cannot! be used to sentence him to a statutory mandatory life sentence.
U.S. 8th Circuit Court of Appeals, October 10, 2008 US v. Garate, No. 061667 Sentence of 30 months for traveling with the intent to engage in sexual conduct with a minor that was previously reversed and remanded as unreasonable, is now affirmed where in light of the deferential standard of review set forth in the intervening case of Gall v. US, the court could not say that the lower court abused its discretion in weighing the evidence as it did, where, as here the facts could legitimately be viewed from different perspectives.
U.S. 8th Circuit Court of Appeals, October 10, 2008 US v. Spikes, No. 081489 Sentence for conspiracy to distribute and to possess with intent to distribute methamphetamine is reversed and remanded where: 1) the district court did not articulate any alternative sentence, and there was no clear indication on the record that the district court would have imposed the same sentence if defendant’s legal argument had prevailed; 2) the district court did not state whether it would have chosen the same 160-month sentence if faced with a properly calculated advisory range of 135 to 168 months, and if the court had intended to impose “a sentence at the lower end” of the appropriately calculated range, defendant’s sentence would be significantly less than 160 months; and 3) thus, the court’s error of adding two extra criminal history points affected defendant’s substantial rights.
U.S. 9th Circuit Court of Appeals, October 07, 2008 US v. Delgado, No. 07-50238 In a case involving a commercial truck containing over forty kilograms of cocaine, conviction of possession of cocaine with intent to distribute is affirmed where: 1) a search under Missouri trucking regulations did not violate the 4th Amendment because commercial trucking is a pervasively regulated industry in which reasonable administrative searches do not require a search warrant or probable cause; and 2) direct proof of venue is not necessary where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid.
U.S. 9th Circuit Court of Appeals, October 08, 2008 Delgado v. Mukasey, No. 03-74442 Petition for review of denial of applications for asylum, withholding of removal, and withholding under the Convention Against Torture are dismissed in part and denied in part where: 1) the Board of Immigration Appeals may determine by adjudication that a crime is “particularly serious” without it being so classified by regulation; 2) the Court lacks jurisdiction to review the merits of such decisions; and 3) petitioner did not prove a likelihood of future torture if returned to El Salvador.
U.S. 9th Circuit Court of Appeals, October 09, 2008 US v. Lemoine, No. 06-50663, 07-50083, 07-35761 In a challenge to a victim restitution payment schedule by inmates participating in the Inmate Financial Responsibility Program (IFRP), denial of a motion to modify the payment schedule and a motion for reconsideration is affirmed where: 1) the district court properly sets a restitution repayment schedule as required under the Mandatory Victim Restitution Act; 2) the Bureau of Prisons (BOP) has the authority to encourage voluntary payments in excess of those required under the court’s judgment; and 3) the BOP can do so by conditioning the receipt of certain privileges during the term of imprisonment on the inmate’s participation in the IFRP.
U.S. 9th Circuit Court of Appeals, October 10, 2008 US v. Maes, No. 07-10495 In a case regarding which law should govern possession of marijuana and drug paraphernalia on Department of Veteran Affairs (VA) property, conviction under 21 U.S.C. section 844(a) is affirmed where prosecutors have latitude in choosing from applicable charges and 38 C.F.R. section 1.218(a)(7), a VA regulation forbidding introduction of drugs including marijuana onto VA property except when medically prescribed, does not repeal or supersede federal statute.
U.S. 10th Circuit Court of Appeals, October 07, 2008 US v. Sharkey, No. 08-3115 Denial of defendant’s motion to reduce his sentence pursuant to 18 U.S.C. section 3582, following a plea to distribution of crack cocaine within one thousand feet of a school, is affirmed where: 1) Guidelines Amendment 706, enacted after defendant was sentenced, had no effect on the career offender guidelines in U.S.S.G. section 4B1.1, which were the guidelines used in sentencing him; 2) thus, “a reduction” in his term of imprisonment “is not consistent with” the policy statement in section 1B1.10 and therefore was not authorized under section 3582(c)(2).
U.S. 11th Circuit Court of Appeals, October 07, 2008 US v. Jackson, No. 0713374 Conviction and sentences for felony drug offenses are affirmed in part, vacated in part, and remanded for resentencing where: 1) jurisdiction existed over the section 851 notice issue; 2) the district court erred in striking the government’s section 851 notice; 3) the district court did not err in denying a judgment of acquittal due to insufficiency of the evidence and/or any alleged material variance between the type of drugs charged in the indictment and the trial evidence; 4) defendant’s related argument that the alleged errors in the drug quantity finding resulted in a sentence above the statutory maximum is rejected; and 5) defendant’s speedy trial arguments were also unfounded.
U.S. 11th Circuit Court of Appeals, October 09, 2008 US v. Valladares, No. 0714592 For charges related to conspiracy, defrauding the U.S. by impairing the functioning and administration of the Medicare Program, submitting false claims to the Department of Health and Human Services, and knowingly soliciting and receiving cash kickbacks involving a federal health care program, convictions and sentences are affirmed over claims that the district court erred by: 1) denying defendant’s motions to continue the trial; 2) miscalculating defendant’s applicable guideline range by using the commercial bribery guideline in United States Sentencing Guidelines section 2B4.1 (Nov. 2006) to calculate her base offense level, applying an 18-level enhancement under U.S.S.G. section 2B4.1(b)(1)(B), and applying a four-level aggravating-role enhancement under U.S.S.G. section 3B1.1(a); 3) improperly calculating the amount of restitution; and 4) improperly ordering forfeiture.
Supreme Court of Florida, October 08, 2008 Price v. Florida, No. SC06-2045 A habeas petition seeking relief from a conviction for sexual battery on a physically incapacitated person is denied where: 1) the information was not fatally defective for failing to allege an essential element of the crime; 2) the claim that the information was defective was therefore required to have been raised on direct appeal; and 3) the district court properly dismissed defendant’s direct appeal upon his pro se motion, even though he was technically still represented by counsel.
Supreme Court of Florida, October 08, 2008 In re: Amendments to Fla. R. Crim. P. 3.112–Minimum Standards for Attorneys in Capital Cases, No. SC08-1292 Upon the recommendation of the Supreme Court Criminal Steering Committee, the court adopts amendments to Fla. R. Crim. P. 3112 to bring the rule into conformity with its stated objective that all attorneys representing capital defendants, including court-appointed counsel, meet certain minimum standards of competency.
Supreme Court of Florida, October 08, 2008 Williamson v. Florida, No. SC07-564, SC07-1787 In a first-degree murder case, denial of motion for postconviction relief is affirmed in part and remanded in part, and petition for habeas relief is granted in part and denied in part where: 1) remand was necessary to determine whether trial counsel was ineffective for failing to voir dire an expert witness, or for failing to request a curative instruction on that witnesses testimony; 2) appellate counsel was ineffective for failing to raise a claim regarding attempted felony murder, although defendant did not suffer prejudice based on this failure; and 3) a number of other ineffective-assistance claims failed.
Supreme Court of Florida, October 09, 2008 Lugo v. Florida, No. SC06-1532 In a first-degree murder case in which defendant was sentenced to death, denial of postconviction relief is affirmed over claims of: 1) ineffective assistance of counsel during both the guilt and penalty phases; 2) a juror’s failure to disclose that he had been the victim of a violent crime; 3) Vienna convention violations arising from defendant’s arrest in the Bahamas; 4) Brady and Giglio violations; and 5) the denial of a request to amend the postconviction motion by adding four new claims.
Supreme Court of Delaware, October 06, 2008 Hoover v. State of Delaware, No. 408, 2007 Upon certification of two questions of law by the Superior Court, the court answers that: 1) section 4176A of the Delaware Code, making it a misdemeanor to cause the death of another by operation of a motor vehicle in violation of the vehicle code, was not unconstitutionally vague, nor did it require a state-of-mind element; and 2) the general liability provisions of title 11, section 251(b) of the Delaware Code did not apply to section 4176A.
Supreme Court of Delaware, October 06, 2008 Brown v. Delaware, No. 617, 2007; 611, 2007 Convictions of two defendants for felony murder, manslaughter, robbery, and conspiracy are reversed and remanded where defendants had presented some credible evidence supporting their alibi defense and, upon their request, an alibi instruction was therefore required. ..
Supreme Court of Delaware, October 06, 2008 Sierra v. Delaware, No. 582, 2007 A probationer’s convictions on drug and weapons charges are reversed and remanded where, under the totality of the circumstances, a tip from a confidential informant did not provide reasonable suspicion to support a search of defendant’s home.
Supreme Court of Delaware, October 08, 2008 Claudio v. State of Delaware, No. 213, 2008; 206, 2008 Denials of postconviction motions in a first-degree murder case are affirmed where the trial judge’s instruction on the “in furtherance of the commission of a felony” element of felony murder was legally sufficient.
California Appellate Districts, October 08, 2008 People v. Miralrio, No. C056930 Conviction for six counts of sex offenses with minors and one count of battery is affirmed over claims of error that: 1) the trial court improperly allowed the prosecution to amend the information during trial; and 2) the trial court misadvised defendant of the sentencing consequences of going to trial.
California Appellate Districts, October 08, 2008 People v. Guiffre, No. C057127 In a conviction for passing a forged check, imposition of a second restitution fine under section 1202.4(b) is affirmed where the trial court minutes were corrected to reflect that the $200 fine imposed on defendant was a probation revocation fine pursuant to section 1202.44 rather than a state restitution fine under section 1202.4(b).
California Appellate Districts, October 09, 2008 People v. Briones , No. B195452 Sentence of 50 years to life in prison under the Three Strikes Law for possession of drugs for sale and conspiracy to possess drugs for sale is reversed in part and affirmed in part where: 1) defendant may be convicted for only one act of conspiracy to possess drugs for sale; and 2) because the conspiracy and drug convictions were based on the same set of operative facts, defendant may not be punished for both the substantive offenses and the conspiracy. .
California Appellate Districts, October 09, 2008 People v. DeFrance, No. C055878 Conviction and sentence for first degree murder with a robbery special circumstances and a deadly weapon enhancement, robbery, and vehicle theft are affirmed in part and reversed in part where: 1) there was sufficient evidence of robbery; 2) there was sufficient evidence from which the jury could conclude victim had a special relationship with her son to support a finding she had control over his property; 3) while the jury instruction provided little assistance in determining the issue of control, the omission was harmless in this case; and 4) the parole revocation fine must be stricken because defendant was sentenced to life without the possibility of parole.
Texas Court of Criminal Appeals, October 08, 2008 Landrian v. State of Texas, No. PD-1561-07 Conviction for aggravated assault is affirmed where: 1) the gravamen of the offense was “causing bodily injury”; 2) whether the bodily injury was “serious,” and whether appellant used a deadly weapon, were mere elements describing two means by which the offense could be committed; and 3) the jury did not have to be unanimous on which aggravating element applied, but could convict if it was unanimously agreed that defendant had committed an assault and that one or the other of the aggravating factors applied. ..