Helpful Non-California Cases:
Selected Cases From Federal and Out-of-State Jurisdictions
(January-June 2013)
United States Supreme Court
Federal Courts
New York Court of Appeals
United States Supreme Court (January-June 2013)
Selected Decisions:
Double Jeopardy: Judicial Acquittal. Evans v. Michigan (2/20/2013, No. 11-1327) ____ US ____ [183 LEd2d 709; 133 SCt. 72]: A judicial acquittal premised upon an erroneous addition of an extraneous element to the charged offense is an acquittal on the merits that bars retrial.
Drunk Driving: Dissipation Of Alcohol In Blood Does Not Justify Involuntary Or Warrantless Blood Test. Missouri v. McNeely (4/17/2013, No. 11-1425) ___ US ___ [185 LEd2d 696; 133 SCt 1552]: In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream, alone, does not constitute a per se exigent circumstance that justifies taking a blood sample without a warrant or consent.
Procedural Default: Ineffective Counsel As Exception. Trevino v. Thaler (5/28/2013, No. 11-10189) ___ US ___ [___ LEd2d ___; 133 SCt 1911]: The exception to the procedural default rule laid out in Martinez v. Ryan (2012) 566 US 1 applies where a state’s procedural rules effectively prevent a defendant from raising ineffective assistance of counsel (IAC) claims on direct appeal.
AEDPA Statute Of Limitations: Actual Innocence Claim. McQuiggin v. Perkins (5/28/2013, No. 12-126) ___ US ___ [___ LEd2d ___; 133 SCt 1924]: Statute of limitations prescribed in the Antiterrorism and Effective Death Penalty Act (AEDPA) may be overcome by credible claim of actual innocence.
Apprendi: Mandatory Minimum Sentence. Alleyne v. U.S. (6/17/2013, No. 11-9335) ___ US ___ [___ LEd2d ___; 133 SCt 2151]: Any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Because the judge, rather than the jury, found brandishing, this increased the penalty to which defendant was subjected and violated his Sixth Amendment rights.
Armed Career Criminal Act: Burglary As Predicate. Descamps v. U.S. (6/20/2013, No. 11-9540) ___ US ___ [___ Led2d ___; 133 SCt 2276]: Because generic unlawful entry is not an element, or an alternative element of, burglary per PC 459, a conviction under that statute is never for generic burglary, and thus defendant’s ACCA enhancement was improper.
Hobbs Act: Obtaining Property From Another. Sekhar v. U.S. (6/26/2013, No. 12-357) ___ US ___ [___ LEd2d ___; 133 SCt 2720]: Attempting to compel a person to recommend that his employer approve an investment does not constitute “the obtaining of property from another” under the Hobbs Act.
Federal Courts (January-June 2013)
Selected Decisions:
1st Circuit Court of Appeals
Apprendi: Failure To Instruct On Element Of Charge. U.S. v. Wu (3/19/2013, 1st Cir. No. 11-1115) ____ F3d ____, 2013 WL 1137122: Failure to instruct on actus reus element of charge was reversible error under Neder v. U.S. (1999) 527 US 1, 17 [119 SCt 1827; 144 LEd2d 35].
Innocent Possession: Right To Defense Theory Instruction. U.S. v. Baird (4/5/2013, 1st Cir. No. 12-1565) 712 F3d 623: Conviction of possession of a stolen firearm is vacated and remanded where defendant was entitled to an innocent possession instruction.
Federal Bribery Statute: Does Not Apply To Gratuities. U.S. v. Bravo-Fernandez (6/26/2013, 1st Cir. No. 12-1289) ____ F3d ____, 2013 WL 3215461: Since 18 USC 666 does not criminalize gratuities, the instructions improperly permitted the jury to find guilt on the 18 USC 666 counts based on a gratuity theory.
2nd Circuit Court of Appeals
Identity Theft. U.S. v. Wilson (2/22/2013, 2nd Cir. No. 11-5057) 2013 WL 646154: Government failed to prove that Social Security numbers were assigned on the basis of false information. [NOTE: This case was not selected for publication in the Federal Reporter.]
3rd Circuit Court of Appeals
Ineffective Counsel: Failure To Impeach Key Prosecution Witness. Grant v. Lockett (3/7/2013, 3rd Cir. No. 10-3804) 709 F3d 224: Counsel failed to adequately investigate the criminal history of the prosecution’s key witness.
Multiplicity: Felon In Possession Of Firearm. U.S. v. Benjamin (3/26/2013, 3rd Cir. No. 11-2906) ____F3d ____, 2013 WL 1197767: Possession of a firearm by a felon is a single “continuing offense” which cannot be fragmented into multiple offenses.
Aranda/Bruton. Eley v. Erickson (4/9/2013, 3rd Cir. No. 10-4725) 712 F3d 837: Defendant’s Sixth Amendment confrontation right was violated when his non-testifying co-defendant’s confession was admitted against him at their joint trial and his motion to sever was denied.
4th Circuit Court of Appeals
Newly Discovered Evidence. U.S. v. Moore (3/1/2013, 4th Cir. No. 11-5095) 709 F3d 287: New trial required due to newly discovered evidence which, if admitted, would probably have resulted in an acquittal.
Statutory Rape: Not A Crime Of Violence. U.S. v. Rangel-Castaneda (3/7/2013, 4th Cir. No. 12-4408) 709 F3d 373: Because Tennessee’s statutory rape provision sets the age of consent at eighteen and is therefore significantly broader than the generic offense, a conviction thereunder does not categorically qualify for the crime-of-violence enhancement.
Anti-Sodomy Statute. MacDonald v. Moose (3/12/2013, 4th Cir. No. 11-7427) 710 F3d 154: Anti-sodomy provision facially violates the Due Process Clause of the Fourteenth Amendment.
Money Laundering. U.S. v. Abdulwahab (4/29/2013, 4th Cir. No. 11-5093): While payment of the commissions may have constituted evidence of the fraud underlying the money laundering charges, the payments did not constitute money laundering.
9th Circuit Court of Appeals
Honest Services: Skilling Instruction. U.S. v. Garrido (4/15/2013, 9th Cir. No. 06-50717) 713 F3d 985: Honest services fraud convictions reversed in light of Skilling v. U.S. because the jury instructions erroneously permitted convictions on the unconstitutional theory of a failure to disclose a conflict of interest.
Conspiracy: Insufficient Evidence. U.S. v. Ramirez (4/29/2013, 9th Cir. No. 11-50346) 714 F3d 1134: There was insufficient evidence of an agreement between the defendant and someone else to distribute methamphetamine.
Missing Witness: Error To Instruct Jurors Not To Consider When Witness Is Missing. U.S. v. Ramirez (4/29/2013, 9th Cir. No. 11-50346) 714 F3d 1134: District court erroneously instructed the jury not to speculate about the reasons for the witness’s absence.
Duplicity: Possession Of Cocaine With Intent To Distribute. U.S. v. Mancuso (5/1/2013, 9th Cir. No. 12-30174) ___ F3d ___, 2013 WL 1811276: Distribution count was duplicitous in that it joined two or more distinct and separate offenses into a single count.
Government’s Destruction Of Evidence Requires Remedial Instruction. U.S. v. Sivilla (5/7/2013, 9th Cir. No. 11-50484) 714 F3d 1168: Where there is no bad faith, government’s pretrial destruction of evidence does not warrant dismissal of the case, but court should have given remedial jury instruction. The trial court erred in holding that bad faith is required to obtain a remedial jury instruction regarding the destruction of evidence; whether such instruction should be given is determined based on a balancing test in which the court examines the nature and quality of any available secondary evidence.
Erroneous Exclusion Of Defense Evidence. U.S. v. Muniz-Jaquez (6/10/2013, 9th Cir. No. 12-50056) ___ F3d ___, 2013 WL 2462183: District Court erred in excluding potentially exculpatory evidence, namely certain U.S. Border Patrol dispatch tapes.
Defendant’s Competence: Right To Testify At Hearing. U.S. v. Gillenwater (6/17/2013, 9th Cir. No. 11-30363) ___F3d ___, 2013 WL 2930502: A defendant has a constitutional and statutory right to testify at his pretrial competency hearing, and only the defendant, not counsel, can waive this right.
Scope Of Plea Agreement: Actual Innocence Trumps Procedural Default. U.S. v. Avery (6/18/2013, 9th Cir. No. 12-35209) ___ F3d ___, 2013 WL 2995806: Because defendant pled guilty only to honest services fraud, he could not be deemed to have been convicted or sentenced based on a broader charge. Because the crime to which defendant pled guilty and for which he was incarcerated is no longer a criminal offense, petitioner’s actual innocence overcomes the procedural default of his claim challenging his conviction.
New York Court of Appeals
Disorderly Conduct. People v. Baker (2/7/2013, No. 16) ____ NE2d ____, 20 NY3d 354: Disorderly conduct no probable cause for arrest.
Severance: Co-Defendant’s Testimony Improperly Admitted Against Defendant. People v. Warren (2/12/2013, No. 13) ____ NE2d ____, 20 NY3d 393: Judge improperly allowed said co-defendant to testify in front of the jury deciding defendant’s case.
IAC: Failure To Raise Available Defense. People v. Nesbitt (3/26/2013, No. 28)____ NE2d ____, 2013 WL 1195696: Counsel’s error in overlooking the issue that defendant had a defense to the charge of first degree assault, and not addressing it at trial, rendered his assistance to defendant ineffective.
Sexual Conduct Against A Child: Error To Exclude Evidence That Child Made Previous Accusations. People v. Diaz (3/26/2013, No. 52) ____ NE2d ____, 2013 WL 1195638: Excluding the proffered testimony of a witness whom complainant had allegedly previously accused of sexual abuse because it went to a material issue of defendant’s defense, namely, whether the complainant had a history of making false allegations of sexual abuse by family members.
Destruction Of Evidence By Prosecution: Adverse Inference Instruction. People v. Handy (3/28/2013, No. 35) ____ NE2d ____, 2013 WL 1234819: When a defendant in a criminal case, acting with due diligence, demands evidence that is reasonably likely to be of material importance, and that evidence has been destroyed by the State, the defendant is entitled to an adverse inference charge.
Agency Defense Instruction. People v. Johnson (4/30/2013, NY No. 59, 60, 61) ___ NE2d ___, 21 NY3d 1, 989 NE2d 9, 2013 WL 1798583: New trial required based on an erroneous jury charge on the agency defense, where there was a reasonable view of the evidence that defendant was acting as the undercover officer’s agent.
IAC. People v. Oathout (5/2/2013, NY, No. 81) ___ NE2d ___, 21 NY3d 127, 2013 WL 1829825: Defense counsel’s failures were so significant that his representation, viewed in its totality, was not meaningful.
Appellate Counsel Conflict. People v. Prescott (5/7/2013, NY No. 80) ___ NE2d ___, 21 N.Y.3d 925, 2013 WL 1875299: Defendant’s appellate counsel also represented his co-defendant Martin at Martin’s sentencing hearing; appellate counsel argued at Martin’s sentencing and defendant neither knew nor had the opportunity to waive any conflict arising from appellate counsel’s representation of defendant and Martin.
IAC: No Waiver By Defendant’s Absence. People v. Diggins (5/30/2013, NY No. 96) ___ NE2d ___, 21 NY3d 935, 2013 WL 2338420: Defendant may not, by his absence alone, waive his right to effective assistance of counsel and defense counsel’s lack of participation during the jury trial amounted to the ineffective assistance of counsel.
IAC: Inadequate Investigation. People v. Oliveras (6/6/2013, NY No. 105) ___ NE2d ___, 2013 WL 2435065: Defendant did not receive adequate assistance where trial counsel failed to conduct an appropriate investigation of records critical to the defense.
Attorney Conflict. People v. Mitchell and Deliser (6/11/2013, NY Nos. 116, 117) ___ NE2d ___, 2013 WL 2475861: Discretion in not assigning new counsel to defendant, once defense counsel took a position contrary to the one taken by his client on the motion to withdraw the guilty plea.
