Helpful Non-California Cases:
Selected Cases From Federal and Out-of-State Jurisdictions
D.C. Circuit Court of Appeals
Supreme Court of Delaware
Supreme Court of Florida
New York Court of Appeals
Court of Criminal Appeals of Texas
Federal Courts (January-December 2010)
U.S. Supreme Court
Fraud: Honest Services Instruction. Black v. U.S. (6/24/2010, No. 08–876) ____ US ____ [____ LEd2d ____; 130 SCt 2963]: Federal mail-fraud statute, 18 USC 1346, criminalizes only schemes to defraud that involved bribes or kickbacks; honest-services instructions given in this case were incorrect.
Fraud: Honest Services. Skilling v. U.S. (6/24/2010, No. 08–1394) ____ US ____ [177 LEd2d 619; 130 SCt 2896]: 18 USC 1346, which proscribes fraudulent deprivations of “the intangible right of honest services,” applies only to bribery and kickback schemes.
Sex Offender Registration: Ex Post Facto. Carr v. U.S. (6/1/2010, No. 08–1301) ____ US ____ [176 LEd2d 1152; 130 SCt 2229]: Failure to register as a sex offender in Indiana under the Sex Offender Registration an d Notification Act [SORNA] is reversed where 18 USC 2250 does not apply to sex offenders whose interstate travel occurred before SORNA’s effective date
Animal Cruelty Videos Are Protected By The First Amendment. U.S. v. Stevens (4/20/2010, No. 08–769) ____ US ____ [176 LEd2d 435; 130 SCt 1577]: 18 USC 48 is substantially overbroad, and therefore invalid under the First Amendment.
ACCA. Johnson v. U.S. (3/2/2010, No. 08–6925) ____ US ____ [176 LEd2d 1; 130 SCt 1265]: Florida felony offense of battery by actually and intentionally touching another person does not have as an element the use of physical force against the person of another, and thus does not constitute a violent felony under 18 USC 924(e)(1).
Guilty Plea: Advice From Counsel Regarding Consequences – Risk Of Deportation. Padilla v. Kentucky (3/31/2010, No. 08–651) ____ US ____ [176 LEd2d 284; 130 SCt 1473]: Counsel must inform a client whether his plea carries a risk of deportation.
Right to Discovery Of Communications Between Judge And Jury. Wellons v. Hall (1/19/2010, No. 09–5731) ____ US ____ [175 LEd2d 684; 130 SCt 727]: Petition for certiorari is granted and the court of appeals’ order is vacated and remanded per Cone v. Bell (2009) 556 US ____ [173 LEd 2d 701; 129 SCt 1769.
1st Circuit Court of Appeals
Jurisdiction. U.S. v. Vargas-De Jesus (8/30/2010, 1st Cir. No. No. 09-1519) 2010 U.S. App. LEXIS 18112: District court lacked jurisdiction over the substantive drug charges.
Firearm Charge: “During And In Relation To” Requirement. U.S. v. De la Paz-Rentas (7/20/2010, 1st Cir. Nos. 08-1820, 08-1821, 09-1397, 09-1639) 2010 U.S. App. LEXIS 14853: Firearm charge under 18 USC 924(c)(1)(B) vacated in absence of proof that the gun was carried “during and in relation to” a drug trafficking crime.
Firearm Count Reversed Due To Insufficient Evidence Of Knowledge. U.S. v. Figueroa-Cartagena (7/16/2010, 1st Cir. No. 08-2110) 2010 U.S. App. LEXIS 14619: Insufficient evidence that defendant knowingly facilitated the use or carrying of the firearm.
Drug Transportation: Mental State. U.S. v. Perez-Melendez (3/17/2010, 1st Cir. No. 08-2225) 599 F3d 31: Insufficient evidence of defendants’ criminal scienter that they were transporting five kilograms or more of cocaine specifically or a controlled substance generally.
Right To Allocution. U.S. v. Gonzalez-Melendez (1/13/2010, 1st Cir. No. 08-1497) 594 F3d 28: Sentence vacated because defendant was not afforded his right of allocution.
2nd Circuit Court of Appeals
Miranda. U.S. v. Capers (12/1/2010, 2nd Cir. No. 07-1830) 627 F3d 470: Interrogation conducted by an investigator aware of the obvious need for a Miranda warning, followed 90 minutes later by a second, post-Miranda interrogation by the same investigator, on the same subject matter, under similar circumstances and with no explicit curative language amounted to a deliberate, two-step interrogation technique designed to undermine the defendant’s Miranda rights.
Conspiracy: Insufficient Evidence. U.S. v. Hickman (11/29/2010, 2nd Cir. No. 08-4764) 2010 U.S. App. LEXIS 24367: Evidence insufficient to establish beyond a reasonable doubt that defendant knowingly became a member of a conspiracy to distribute or to possess with the intent to distribute more than one kilogram of heroin.
Refusal To Hear IAC Claim. U.S. v. Brown (10/19/2010, amended 11/3/2010, 2nd Cir. No. 08-1207) 623 F3d 104: District court erred by refusing to hear defendant’s ineffective assistance of counsel claim.
Child Pornography. U.S. v. Broxmeyer (8/03/2010, 2nd Cir. No. No. 09-1457-cr) 2010 U.S. App. LEXIS 16032: (1) Prosecution failed to prove beyond a reasonable doubt that defendant persuaded, induced, or enticed the victim to take photos; (2) an 18 USC 2423(a) conviction cannot lie where the unlawful sexual act occurs before the crossing of state lines, and where there is no evidence of an intent to commit a sexual act when state lines were crossed.
Conspiracy: Knowledge. U.S. v. Torres (5/5/2010, 2nd Cir. No. 09-1771) 604 F3d 58: Insufficient evidence that defendant had knowledge that the purpose of the conspiracy of which he was found to be a member was the distribution of narcotics.
Drug Robberies: Interstate Commerce. U.S. v. Needham UNPUBLISHED (5/14/2010, 2nd Cir. No. 06-5652) 2010 U.S. App. LEXIS 9903: Government presented the jury with no evidence that the marijuana robberies at issue affected interstate commerce.
Inquiry Into Competence Based On Defendant’s Courtroom Behavior. U.S. v. Arenburg (5/25/2010, 2nd Cir. No. 08-5090) 2010 U.S. App. LEXIS 10551: Judge should have revisited the issue of defendant’s competence to stand trial based on defendant’s behavior in the courtroom.
Double Jeopardy – RICO. U.S. v. Basciano (3/23/2010, 2nd Cir. No. 09-0281) 599 F3d 184: Prosecution on a successive substantive racketeering charge, as pleaded in the pending indictment, was barred by double jeopardy.
3rd Circuit Court of Appeals
Fraud: Honest Services. U.S. v. Riley (9/16/2010, 3rd Cir. No. 08-3361) 2010 U.S. App. LEXIS 19310: Defendants’ honest services fraud convictions reversed due to failure to limit honest services fraud to “bribes and kickbacks.”
First Amendment: Content-Based Restriction Of Speech. U.S. v. Marcavage (6/16/2010, 3rd Cir. No. 09-3573) 609 F3d 264: Defendant’s First Amendment right to free speech was impermissibly infringed because government’s exclusion of defendant from the sidewalk cannot withstand strict scrutiny as the exclusion was neither narrowly tailored to serve the government’s interests nor the least restrictive means of doing so.
4th Circuit Court of Appeals
Heller: Illegal Possession Of Firearm Conviction Vacated. U.S. v. Chester (12/30/2010, 4th Cir. No. 09-4084) 628 F3d 673: In light of District of Columbia v. Heller (2008) 554 US 570 [171 LEd2d 637; 128 SCt 2783], it could not be concluded on the record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and 18 USC 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants.
Forced Medication Of Defendant. U.S. v. White (9/22/2010, 4th Cir. No. 09-7933) 2010 U.S. App. LEXIS 19707: Routine medication order reversed.
Controlled Substances: Inadmissible Evidence. U.S. v. Johnson (8/16/2010, 4th Cir. No. 08-5098) 2010 U.S. App. LEXIS 17087: (1) Court abused its discretion in admitting a DEA agent’s testimony as a lay witness under FRE 701; (2) court erred in admitting the testimony of a prior, alleged drug customer, under FRE 404(b), and limiting instruction did not cure the prejudice.
Possession Of Firearm After Having Been Convicted Of A Misdemeanor Crime Of Domestic Violence: U.S. v. White (6/1/2010, 4th Cir. No. 09-4114) 606 F3d 144: Defendant’s predicate conviction under Virginia law was not a misdemeanor crime of domestic violence as defined in 18 USC 921(a)(33)(A).
IAC: Failure To Object To Misdemeanor Conviction Used As Predicate For Violent Felony Conviction. U.S. v. Tucker (4/30/2010, 4th Cir. No. 08-6964) 2010 U.S. App. LEXIS 8999: Counsel’s failure to object to the use of defendant’s conviction, for the misdemeanor offense of common law assault and battery, as a predicate violent felony conviction was objectively unreasonable.
Contempt. In re Gates (3/26/2010, 4th Cir. No. 09-4125) 600 F3d 333: Court erred in imposing punishment in a summary proceeding without affording the defense attorney notice or a meaningful opportunity to respond to the charges against him.
ACCA. U.S. v. Rivers (1/25/2010, 4th Cir. No. 09-4336) 595 F3d 558: South Carolina’s blue light statute is not a violent felony under the ACCA per Chambers v. U.S. (2009) ____ US____ [172 LEd2d 484; 129 SCt 687].
Death Penalty: Mental Retardation (Atkins). Winston v. Kelly (1/27/2010. 4th Cir. No. 09-2) 592 F3d 535: Error for the district court to refuse to consider evidence of defendant’s mental retardation.
5th Circuit Court of Appeals
Multiplicity: Prosecution Failed To Rebut Prima Facie Showing Of Single Conspiracy. U.S. v. Rabhan (12/16/2010, 5th Cir. No. 09-60683) 628 F3d 200: Conspiracy conviction per 18 USC 1014 reversed because government failed to rebut defendant’s prima facie showing that the conspiracies charged in Georgia and Mississippi were a single conspiracy.
Evidence: Authentication – Confrontation. U.S. v. Jackson (11/8/2010, 5th Cir. No. 09-10850) 2010 U.S. App. LEXIS 23159: Failure to authenticate notebooks introduced into evidence violated defendant’s Confrontation rights.
Double Jeopardy: Consideration Of Reasonable Alternatives. U.S. v. Fisher (10/26/2010, 5th Cir. No.10-30424) 624 F3d 713: Double jeopardy claim should have been granted where district court failed to carefully consider reasonable alternatives before declaring a mistrial.
Instruction On Mitigation. Pierce v. Thaler (4/19/2020, 5th Cir. No. 08-70042) 2010 U.S. App. LEXIS 8031: Death Penalty: Additional instruction on mitigating evidence was required.
Counterfeit Pharmaceutical Drugs. U.S. v. Xu (3/4/2010, 5th Cir. No. 09-20074) 599 F3d 452: Rational juror could not have found beyond a reasonable doubt that the Zyprexa mark, allegedly misappropriated by defendant, was registered on the USPTO’s principal register.
Faretta: Physical Restraint Of Defendant – Shackling. U.S. v. Banegas (3/9/2010, 5th Cir. No. 08-10915) 600 F3d 342: Conviction is reversed where the trial court failed to state particularized reasons for requiring defendant to be shackled while defending himself pro se.
Confrontation: Recorded Statement Of Deceased Witness Violated Sixth Amendment. Jones v. Cain (3/15/2020, 5th Cir. No. 09-30174) 600 F3d 527: State court unreasonably applied clearly established federal law by holding that no Sixth Amendment violation occurred when a jury heard recorded testimony from a deceased witness to a murder.
Assault Of Federal Officer (18 USC 111(a)(1) ). U.S. v. Williams (3/24/2010, 5th Cir. No. 09-50059) 602 F3d 313: Physical contact with the officers is an element which must be charged in the indictment.
Plea Agreement. U.S. v. Self (2/3/2010, 5th Cir. No. 08-40624) 596 F3d 245: District court erroneously rejected the plea agreement and then re-imposed it on the parties with terms that the court found acceptable.
Venue. U.S. v. Garza (1/6/2010, 5th Cir. No. 08-50186) 593 F3d 385: District court failed to provide the reasons why it sua sponte transferred the venue of the case.
6th Circuit Court of Appeals
Miranda: Police Admonition That Defendant Should “Cut A Deal.” Dixon v. Houk (12/9/2010, 6th Cir. No. 08-4019) 627 F3d 553: The Ohio Supreme Court’s ruling that defendant’s confession was voluntary resulted in a decision that was based on an unreasonable determination of facts presented in the state court proceeding, because the “admonition” that defendant should “cut a deal” was not simply “an admonition to tell the truth;” rather, it was part of the coercive strategy to get defendant to confess involuntarily.
Right To Counsel: State’s Inducement Of Incriminating Statements. Ayers v. Hudson (10/5/2010, 6th Cir. No. 08-3310) 623 F3d 301: Defendant’s Sixth Amendment right to counsel was violated because the state intentionally created a situation likely to induce defendant to make incriminating statements without the assistance of counsel.
Accomplice Liability. U.S. v. Sliwo (9/8/2010, 6th Cir. No. 09-1136) 2010 U.S. App. LEXIS 18735: Insufficient evidence that defendant knowingly and intentionally joined/aided and abetted conspiracy to procure marijuana.
Death Penalty: Death Deliberations Do Not Need To Be Completed Before Considering Life Sentence. Mitts v. Bagley (9/8/2010, 6th Cir. No. 05-4420) 2010 U.S. App. LEXIS 18736: Beck v. Alabama (1980) 447 US 625 requires jury instructions which make it clear that the jury does not have to complete its death deliberation before considering a life sentence.
Prior Bad Acts. U.S. v. Corsmeier (8/16/2010, 6th Cir. No. 08-3668) 2010 U.S. App. LEXIS 17068: In fraud and money laundering prosecution cocaine evidence should have been precluded under FRE 403.
Miranda. Simpson v. Jackson (7/13/2010, 6th Cir. No. 08-3224) 2010 U.S. App. LEXIS 14251: Agents unaffiliated with the prison isolated defendant and improperly questioned him about an unrelated incident without first giving Miranda warnings.
Confrontation: Crawford. Miller v. Stovall (6/22/2010, 6th Cir. No. 08-2267) 608 F3d 913: Defendant’s lover’s suicide note, implicating defendant in the crime, was testimonial under Crawford and its admission violated the Confrontation Clause.
Sex Offense: Evidence Of Victim’s Sexual Conduct. Gagne v. Booker (5/25/2010, 6th Cir. No. 07-1970) 2010 U.S. App. LEXIS 10582: Exclusion of evidence of the victim’s sexual conduct (i.e., incidents of group sexual activity and the victim’s solicitation of others to have sex) deprived defendant of his constitutional right to a meaningful opportunity to present a complete defense as articulated by the Supreme Court in Crane v. Kentucky, 476 US 683, 690, [90 LEd2d 636; 106 S. Ct. 2142] (1986).
Death Penalty: Allocution. Goff v. Bagley (4/6/2010, 6th Cir. No. 06-4669) 601 F3d 445: Appellate counsel was ineffective for failing to raise on direct appeal the issue of his right to allocution before sentencing.
Death Penalty: IAC. English v. Romanowski (4/15/2010, 6th Cir. No. 08-2611) 602 F3d 714: Trial counsel’s failure to adequately investigate the decision not to call the witness before trial was deficient.
SORNA: Ex Post Facto. U.S. v. Utesch (3/2/2010, 6th Cir. No. 08-5828) 596 F3d 302: SORNA: Interim regulation did not make SORNA effective against defendant or any other defendants convicted before SORNA’s enactment.
Apprendi/Blakely. Villagarcia v. Warden, Noble Corr. Inst. (3/25/2010, 6th Cir. No. 07-3619) 599 F3d 529: Sentence for child endangerment and felonious assault violated Blakely and Apprendi.
Admissibility Of Prior Convictions. U.S. v. Jenkins (2/9/2010, 6th Cir. No. 08-5203) 593 F3d 480: Drug and gun related convictions reversed where defendant’s prior conviction for an unrelated drug offense eight years earlier was substantially more prejudicial than probative.
Counsel: Conflict Of Interest. McElrath v. Simpson (2/12/2010, 6th Cir. No. 07-5505) 595 F3d 624: Counsel’s joint or dual representation of defendant and co-defendant resulted in an actual conflict that affected defendant’s representation in violation of his Sixth Amendment rights.
Right To Present A Defense. Gagne v. Booker (2/23/2010, 6th Cir. No. 07-1970) 596 F3d 335: Trial court’s decision to exclude evidence under Michigan’s rape-shield law deprived defendant of his constitutional right to a meaningful opportunity to present a complete defense as articulated by the Supreme Court.
Brady: Error Not To Disclose Witness’s Status as A Confidential Informer. Robinson v. Mills (1/28/2010, 6th Cir. No. 09-5243) 592 F3d 730.
7th Circuit Court of Appeals
New Evidence. Coleman v. Hardy (11/19/2010, 7th Cir. No. 08-3537) 2010 U.S. App. LEXIS 23797: New witness affidavits, combined with the available testimony of other witnesses fulfilled standard for post-trial hearing.
Double Jeopardy: Triggering Of Dismissal By Prosecution. U.S. v. Cornelius (10/15/2010, 7th Cir. No. 09-2584) 623 F3d 486: District court erred by not holding a double jeopardy evidentiary hearing before making a determination as to whether the prosecutor intentionally tried to trigger a mistrial.
Conspiracy To Commit Money Laundering: Insufficient Evidence. U.S. v. Adams (10/25/2010, 7th Cir. No. 08-4205) 2010 U.S. App. LEXIS 22894: Insufficient evidence to support indictment for conspiracy to engage in money laundering.
Honest Services Fraud. U.S. v. Black (10/29/2010, 7th Cir.Nos. 07-4080, 08-1030, 08-1072, 08-1106) 2010 U.S. App. LEXIS 22606: Honest-services fraud conviction reversed absent proof of a bribe or kickback.
IAC: Sentencing. Griffin v. Pierce (09/22/2010, 7th Cir. No. 09-3138) 2010 U.S. App. LEXIS 19670: Illinois Supreme Court’s determination that defendant was not prejudiced by his counsel’s deficient performance at sentencing was an unreasonable application of Strickland.
Firearms: Double Jeopardy. U.S. v. Ellis (9/17/2010, 7th Cir. No. 08-2512) 2010 U.S. App. LEXIS 19458: 18 USC 922(g)(1) conviction in Indiana case reversed on double jeopardy grounds as it was based on defendant’s possession of the same guns for which he had already been convicted in the Illinois case.
Deliberations: Juror Safety Concerns. U.S. v. Blitch (9/3/2010, 7th Cir. No. 08-3511) 2010 U.S. App. LEXIS 18445: Judge erroneously failed to individually voir dire the panel regarding its safety concerns, and instructed the jurors to keep deliberating after the jury poll, after they had requested to leave for the day.
Miranda. U.S. v. Slaight (9/2/2010, 7th Cir. No. 10-1443) 2010 U.S. App. LEXIS 18326: Defendant’s motion to suppress incriminating statements that he had made when questioned by federal officers at a police station should have been granted as facts are incontrovertible and show that the average person in defendant’s position would have thought himself in custody.
LIO: CCE And Conspiracy. U.S. v. Rea (9/2/2010, 7th Cir. No. 09-2652) 2010 U.S. App. LEXIS 18380: Conspiracy is lesser included offense of Continuing Criminal Enterprise (CCE) charge predicated, inter alia, on that conspiracy.
Ostrich Instruction. U.S. v. Ciesiolka (7/26/2010, 7th Cir. No. 09-2787) 2010 U.S. App. LEXIS 15242: (1) District court improperly relieved the government of its burden by providing the jury with an ostrich instruction; 2) the district court failed to explain its ruling that the four-factor test for introducing evidence of prior acts under Rule 404(b) was satisfied.
IAC: Failure To Investigate Mental State Defense. Wilson v. Gaetz (6/17/2010, 7th Cir. No. 09-2111) 608 F3d 347: Given evidence that he was driven to kill the victim by an insane delusion, counsel’s failure to present mental state defense fell below the minimum professional level required of a lawyer representing a murder defendant.
Brady. Goudy v. Basinger (5/3/2010, 7th Cir. No. 08-3679) 2010 U.S. App. LEXIS 9060: Government suppression of eyewitness identification evidence was Brady error which denied defendant a fair trial.
IAC: Failure To Pursue Fourth Amendment Challenge. Johnson v. U.S. (5/14/2010, 7th Cir. No. 08-1777) 2010 U.S. App. LEXIS 9867: Trial counsel’s performance was deficient in deciding not to pursue the Fourth Amendment challenge in a motion to suppress.
Contempt: Conduct Outside The Judge’s Presence. Fed. Trade Comm’n v. Trudeau (5/20/2010, 7th Cir. No. 10-1383) 2010 U.S. App. LEXIS 10263: Judge’s summary punishment for contempt was an abuse of discretion as defendant’s conduct occurred outside the judge’s presence as required under FRCP Rule 42.
Admission of evidence showing defendant to be Dangerous And Odd/Improper Demonstration By Prosecutor During Argument. U.S. v. Klebig (4/8/2010, 7th Cir. No. 08-2589) 600 F3d 700: There were three errors in the trial. (1) The court should not have allowed the government to place into evidence the threatening sign and security system, which together with other irrelevant, prejudicial evidence had the effect of inviting the jury to convict Klebig based on their fear or dislike of him. (2) The court should have more carefully managed the introduction of evidence relating to Klebig’s extensive collection of legally owned guns, so that the presentation would have focused on the relevant issue of Klebig’s knowledge of and familiarity with firearms instead of on the sheer volume of fire power that Klebig possessed. (3) The court should not have allowed the two demonstrations to take place during closing arguments, but rather should have required the government to enter this evidence, if at all, through a witness who could be cross-examined. The effect of all of these errors was to cause the jury to see Klebig as an odd man and perhaps a dangerous one, and to decide the case on that basis rather than on the issue of Klebig’s knowledge and intent related to the sawed-off rifle and the oil filter taped to the barrel of the long gun. The errors, taken together, were not harmless.
Violation Of Right To Retain Attorney Of Choice: Structural Error. U.S. v. Turner (2/2/2010, 7th Cir. No. 08-2350) 594 F3d 946: District court committed structural error (reversible per se) by disqualifying defendant’s retained counsel because the attorney was also representing an alleged co-conspirator in sentencing proceedings.
Double Jeopardy: Conviction Of Both Bankruptcy Fraud (18 USC 152(6)) And Obstruction Of Justice (18 USC 1512(c)(2)). U.S. v. Peel (2/12/2010, 7th Cir. No. 07-3933) 595 F3d 763: Convictions for bankruptcy fraud and obstruction of justice reversed where either the bankruptcy fraud conviction or the obstruction of justice conviction must be vacated as the crimes committed in a bankruptcy proceeding are the same offense for purposes of double jeopardy.
IAC: Search And Seizure. Gentry v. Sevier (2/26/2010, 7th Cir. No. 08-3574) 597 F3d 838: Counsel was ineffective vis-a-vis admission of evidence from an illegal search.
Serious Bodily Injury: Erroneous Causation Instruction. U.S. v. Hatfield (1/14/2020, 7th Cir. No. 09-1705/09-1849) 591 F3d 945: Instruction regarding the term “results from” was an error.
Conspiracy: Buyer/Seller. U.S. v. Johnson (1/19/2010, 7th Cir. No. 09-1912) 592 F3d 749: Conspiracy requires evidence that the buyer and seller entered into an agreement to commit a crime other than the crime that consists of the sale itself.
Confrontation: Accomplice Statements. Ray v. Boatwright (1/21/2010, 7th Cir. No. 08-2825) 592 F3d 793: Testimony as to co-actors’ statements violated defendant’s right of confrontation.
8th Circuit Court of Appeals
Prosecutorial Misconduct: Vouching – Curative Instruction. U.S. v. Miller (9/9/2010, 8th Cir. No. 10-1187) 2010 U.S. App. LEXIS 18816: Prosecutor improperly vouched for an officer’s credibility and judge erroneously failed to file a curative instruction.
Confrontation: Confidential Informant. U.S. v. Holmes (9/2/2010, 8th Cir. No. 09-2789) 2010 U.S. App. LEXIS 18334: Conviction reversed because neither defendant nor his attorney made a clear and intentional waiver of defendant’s rights to confrontation vis-a-vis the confidential informant.
Controlled Substances: Intent To Distribute – Knowledge Requirement. U.S. v. Aponte (9/1/2010, 8th Cir. No. 09-3461) 2010 U.S. App. LEXIS 18243: Convictions for possession with intent to distribute reversed due to insufficient evidence of defendants’ knowledge that there were drugs inside the cooler in the back of their vehicle.
Controlled Substances: Knowledge. U.S. v. Wilson (9/1/2010, 8th Cir. No. 09-3338) 2010 U.S. App. LEXIS 18244: No evidence from which a reasonable jury could have found that defendant knew that there was cocaine in a co-defendant’s car.
LIO: Improper Conviction Of Both Greater And Lesser Included Offenses. U.S. v. Robertson (6/7/2010, 8th Cir. No. 09-1612) 606 F3d 943: Conviction reversed where abusive sexual contact (Count II) was a lesser-included offense of aggravated sexual abuse (Count I) and conviction on both Counts I and II violated the Fifth Amendment’s prohibition against double jeopardy.
Erroneous Self-Defense Instruction. U.S. v. Wisecarver (3/22/2010, 8th Cir. No. 09-1954) 598 F3d 982: Supplemental instruction was plainly erroneous because it instructed the jury to find defendant guilty if it found he used justifiable force to defend himself or his property.
Identity Theft. U.S. v. Ochoa-Gonzalez (3/25/2010, 8th Cir. No. 09-1231) 598 F3d 1033: Knowledge that the stolen ADIT number belonged to another person was an essential element of aggravated identity theft under 18 USC 1028A(a)(1).
Right To Presence At Trial/Counsel: Ban On Talking. U.S. v. Ward (3/29/2010, 8th Cir. No. 09-1882) 598 F3d 1054: Absolute ban on the defendant talking to counsel was a violation of the defendant’s right to counsel.
9th Circuit Court of Appeals
SORNA: Retroactive Prosecution Violated APA. U.S. v. Valverde (12/27/2010, 9th Cir. No. 09-10063) 628 F3d 1159: Applying SORNA’s registration requirements retroactively to sex offenders, such as defendant, who were convicted before the statute’s enactment – did not comply with the notice and comment procedures of the Administrative Procedure Act, and did not qualify for the “good cause” exemption under 5 U.S.C. 553(d)(3).
Securities Fraud: Insufficient Evidence. U.S. v. Goyal (12/103/2010, 9th Cir. No. 08-10436) 629 F3d 912: (1) Defendant’s jury had no competent evidence of materiality before it; (2) no evidence supported a finding that defendant knew that his company’s subsidiary’s commitments violated GAAP; and (3) there was no proof that defendant willfully concealed buy-in letters.
Child Pornography: Interstate Commerce. U.S. v. Wright (11/4/2010, 9th Cir. No. 08-10525) 2010 U.S. App. LEXIS 23038: Government to prove that the child pornography images actually crossed state lines per 18 USC 2252A(a)(1).
Brady: Benefits Received By Witness. Maxwell v. Roe (11/30/2010, 9th Cir. No. 06-56093) 2010 U.S. App. LEXIS 24432: Suppression of evidence relating to the deal the witness received from the state and his prior cooperation with law enforcement as an informant was material Brady violation that undermined confidence in the jury verdict.
Witnesses: Self-Incrimination. Earp v. Cullen (10/19/10, 9th Cir. No. 08-99005) 623 F3d 1065: Petitioner was denied right to full and fair opportunity to prove claim of prosecutorial misconduct when court accepted anticipatory Fifth Amendment invocation by witness, made on the basis of possible perjury prosecution for present testimony.
Death Penalty: Addiction As Mitigation. Williams v. Ryan (10/26/2010, 9th Cir. No. 07-99013) 623 F3d 1258: State court erroneously refused to consider defendant’s addiction as mitigation unless defendant proved the addiction was a factor in the crime.
Brady: Right To Hearing. Williams v. Ryan (10/26/2010, 9th Cir. No. 07-99013) 623 F3d 1258: Error to deny evidentiary hearing on Brady claim.
Assault Of Child: Insufficient Evidence. Smith v. Mitchell (10/29/2010, 9th Cir. No. 04-55831) 624 F3d 1235: No rational trier of fact could have found beyond a reasonable doubt that petitioner caused the child’s death, and the state court’s affirmance of the conviction was an unreasonable application of Jackson v. Virginia (1979) 443 US 307.
IAC: Failure To Investigate. Rossum v. Patrick (9/23/2010, 9th Cir. No. 09-55666) 2010 U.S. App. LEXIS 19811: Evidentiary hearing ordered due to anomalous medical and toxicological evidence, the ready availability of an alternative cause of death, the lapse in the chain of custody of the victim’s autopsy specimens, and the failure of petitioner’s attorneys to have a test conducted that could have conclusively contradicted the prosecution’s theory of the case.
First Amendment: Supplying Obscenity To Minors. Powell’s Books, Inc. v. Kroger (9/20/2010, 9th Cir. No. 09-35153) 2010 U.S. App. LEXIS 19520: Denial of a preliminary injunction for plaintiffs was reversed where the Oregon statutes on their face reached a significant amount of material that was not obscene as to minors.
Mail Fraud/Wire Fraud: Definition Of “Proceeds.” U.S. v. Moreland (9/20/2010, 9th Cir. No. 05-30541) 2010 U.S. App. LEXIS 19383: Judgment reversed because the jury instructions for certain counts should have defined proceeds as profits.
Evidence That Defendant Told Witness To “Tell The Truth.” U.S. v. Waters (9/15/2010, 9th Cir. No. 08-30222) 2010 U.S. App. LEXIS 19235: Arson convictions reversed due to admission of prejudicial prosecution evidence and exclusion of witness’s testimony that defendant told him to tell the truth.
Bank Fraud: “Financial Institution” Element. U.S. v. Bennett (9/10/2010, 9th Cir. No. 06-50580) 2010 U.S. App. LEXIS 18968: No rational juror could have found beyond a reasonable doubt that the funds at issue were “owned by, or under the custody or control of” a financial institution.
Miranda. Thompson v. Runnel (9/8/2010, 9th Cir. No. 08-16186) 2010 U.S. App. LEXIS 18750: Admission at trial of petitioner’s confession violated the privilege against self-incrimination, because the investigating officers deliberately withheld Miranda warnings until after he had confessed to the crime.
Immigration: Supplying Water To Undocumented Immigrants. U.S. v. Millis (9/2/2010, 9th Cir. No. 09-10134) 2010 U.S. App. LEXIS 18339: Defendant’s conviction under 50 C.F.R. section 27.94(a) for placing full, gallon-sized plastic bottles of water on trails in the Buenos Aires National Wildlife Refuge to help alleviate exposure deaths among undocumented immigrants crossing into the U.S. was reversed because the term “garbage” in the regulation is ambiguous.
Continuance. U.S. v. Kloehn (8/30/2010, 9th Cir. No. 06-50456) 2010 U.S. App. LEXIS 18109: Court abused its discretion and prejudiced defendant’s ability to present his defense when it refused to continue the trial for two days to allow him to see his dying son.
Money Laundering. U.S. v. Ali (8/25/2010, 9th Cir. No. 07-10529) 2010 U.S. App. LEXIS 17760: Convictions were reversed where there was insufficient evidence to support two defendants’ convictions for promotion money laundering.
Miranda/Doyle: Reenactment Of Crime. Hurd v. Terhune (8/23/2010, 9th Cir. No. 08-55162) 2010 U.S. App. LEXIS 17600: State trial court improperly admitted as evidence petitioner’s refusal to reenact the alleged shooting in violation of his Fifth Amendment rights as determined by the Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), and Doyle v. Ohio, 426 U.S. 610 (1976).
Threats By Mail. U.S. v. Havelock (8/23/2010, 9th Cir. No. 08-10472) 2010 U.S. App. LEXIS 17597: Six counts of mailing threatening communications per 18 USC 876(c) reversed because mailed item did not contain a threat to an individual person.
Substitution Of Appointed Counsel To Replace Retained Counsel. U.S. v. Rivera-Corona (8/18/2010, 9th Cir. No. 08-30286) 2010 U.S. App. LEXIS 17190: Court erred in summarily rejecting defendant’s request for appointed counsel to replace retained counsel simply because of the expense and the stage of the proceedings.
First Amendment. U.S. v. Alvarez (8/17/2010, 9th Cir. No. 08-50345) 2010 U.S. App. LEXIS 17135: Stolen Valor Act held to be unconstitutionally overbroad.
IAC: Duty To Investigate. Howard v. Clark (6/15/2020, 9th Cir. No. 08-55340) 608 F3d 563: Court was obligated to determine whether petitioner was entitled to relief based on his attorney’s allegedly inadequate investigation of the victim.
Money Laundering: Definition Of Proceeds As Profits. U.S. v. Moreland (5/3/2010, 9th Cir. No. 05-30541) 2010 U.S. App. LEXIS 9075: Money laundering jury instructions should have defined proceeds as profits.
Third Party Guilt. U.S. v. Stever (5/4/2010, 9th Cir. No. 09-30004) 603 F3d 747: Reversible error to preclude discovery and admission of evidence that a Mexican drug trafficking organization, not defendant, planted the marijuana at issue.
Competence. Maxwell v. Roe (5/20/2010, 9th Cir. No. 08-55534) 2010 U.S. App. LEXIS 10279: Judge’s finding of defendant’s competence was an unreasonable determination of the facts and an unreasonable application of Pate v. Robinson, 383 US 375 (1966) and Drope v. Missouri, 420 US 162 (1975).
Third Party Guilt. Lunbery v. Hornbeak (5/25/2010, 9th Cir. No. 08-17576) 2010 U.S. App. LEXIS 10554: Reversible error to exclude evidence of a witness’s admission that his partners had committed the murder, and of another witness’s drug-dealing.
Telling The Jury To Disregard Their Experience Is Wrong. Taylor v. Sisto (5/25/2010, 9th Cir. No. 09-15341) 2010 U.S. App. LEXIS 10556: The trial judge’s preinstruction to the jury that each juror disregard his or her own life experience deprived appellant of his Sixth and Fourteenth Amendment right to trial by an impartial jury.
Brady. Valdovinos v. McGrath (3/10/2010, 9th Cir. No. 08-15918) 598 F3d 568: Failure to disclose Brady material, which included evidence of prior photo lineups, the drugs and gun found in a government witness’s possession, and the favorable treatment the witness received for his testimony, could have altered the result of the trial.
IAC: Death Penalty. Stanley v. Schriro (3/11/2020, 9th Cir. No. 06-99009) 598 F3d 612: Failure to investigate and present readily available mitigating evidence was prejudicial.
Federal Jurisdiction: Indians. U.S. v. Maggi (3/16/2010, 9th Cir. Nos. 08-30223, 09-30052) 598 F3d 1073: No federal jurisdiction where there was no evidence that one defendant had any blood from a federally recognized Indian tribe and the other defendant lacked sufficient government or tribal recognition as an Indian.
ACCA. U.S. v. Rocha (3/18/2020, 9th Cir. No. 08-50175) 598 F3d 1144: The federal assault statute precluded application of California PC 245; and 2) the evidence presented to the jury that defendant used his bare hands to perpetrate the assault could not support a conviction under the federal assault statute for assault with a dangerous weapon.
Death Penalty: IAC. Robinson v. Schriro (2/22/2010, 9th Cir. No. 05-99007) 595 F3d 1086: 1) State courts arbitrarily found that petitioner committed the murder at issue in an especially cruel, heinous, or depraved manner in violation of the Eighth Amendment; 2) petitioner received ineffective assistance of counsel at sentencing in violation of the Sixth Amendment.
Miranda: Involuntary Confession. Doody v. Schriro (2/25/2010, 9th Cir. No. 06-17161) 596 F3d 620: 1) Miranda advisement provided to petitioner, which completely obfuscated the core precepts of Miranda, was inadequate; 2) nearly thirteen hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of petitioner, rendering his confession involuntary.
Death Penalty: Mistrial. Harrison v. Gillespie (1/5/2010, 9th Cir. No. 08-16602): In a capital habeas matter, a denial of petitioner’s habeas petition is reversed where the state sought to retry petitioner and seek the death penalty following a mistrial, but there was no manifest necessity for the trial court to have declared a mistrial without first polling the jury to determine whether petitioner had been acquitted of the death penalty.
10th Circuit Court of Appeals
Withdrawal Of No Contest Plea. Mendoza v. Hatch (10/12/2010, 10th Cir. No. 09-2145) 620 F3d 1261: No contest plea was the product of misrepresentations by defendant’s counsel so significant as to make plea constitutionally inadequate.
LIO: Second Degree Murder. Phillips v. Workman (5/12/2010,10th Cir. No. 08-7043) 2010 U.S. App. LEXIS 9679: Reversible error to not instruct on second degree murder where jury could rationally conclude that the victim’s death was perpetrated by an act imminently dangerous without a premeditated design to effect death.
Death Penalty: Allen Charge – Coercion Of Deliberating Jurors. Hooks v. Workman (5/25/2010, 10th Cir. No. 07-6152) 2010 U.S. App. LEXIS 10564: The Allen charge given by the trial court in the midst of penalty-phase deliberations, when considered in the context of all surrounding circumstances, coerced the jury into returning death sentences. The Oklahoma Court of Criminal Appeals’ decision was an unreasonable application of Lowenfield v. Phelps, 484 U.S. 231 (1988).
Right To Counsel: Competency. U.S. v. Bergman (3/25/2010, 10th Cir. No. 08-1472) 599 F3d 1142: Matter remanded where defendant was not represented by counsel when the court declared her competent to stand trial.
Double Jeopardy:Felony Murder And Kidnapping. U.S. v. Headman (2/4/2010, 10th Cir. No. 09-1033) 594 F3d 1179: Government conceded that either the felony-murder or kidnapping conviction should be vacated on remand.
Securities Fraud (15 USC 77q(a)(1)) And Wire Fraud (18 USC 1343): Knowledge Elements. U.S. v. Lewis (2/12/2010, 10th Cir. No. 08-1170) 594 F3d 1270: Government conceded that it had no evidence that defendant knew that his agent’s sales pitch was fraudulent, and it failed to point to any evidence supporting the theory that defendant caused the agent to make any of her false statements.
Speedy Trial: Waiting For State Prosecution Does Not Justify Delay In Federal Prosecution. U.S. v. Seltzer (2/17/2010, 10th Cir. No. 08-1469) 595 F3d 1170: Defendant’s Sixth Amendment right to a speedy trial was violated because the delay of more than a year suffered by defendant was sufficiently lengthy, and awaiting the completion of a state prosecution of defendant did not justify the delay.
11th Circuit Court of Appeals
District Court Must Not Reject Magistrate’s Credibility Determination Without Holding A New Hearing. U.S. v. Powell (12/27/2010, 11th Cir. No. 09-11612) 628 F3d 1254: District court erred by rejecting the magistrate judge’s credibility determinations without first holding a new hearing to observe the witnesses in person.
Tax Fraud: Right To Accountant-Reliance Jury Instruction. U.S. v. Kottwitz (12/23/2010, 11th Cir. No. 08-13740) 627 F3d 1383: Judge erroneously denied defendants’ accountant-reliance jury instruction in light of evidence that the defendants relied on the advice of their accountant.
Multiplicity: Child Exploitation Enterprise And Conspiracy. U.S. v. Wayerski (10/26/2010, 11th Cir. No. 09-11379) 624 F3d 1342: Convictions for both engaging in a child exploitation enterprise and for a conspiracy premised on the same acts were impermissible.
IAC: Failure To Advise About Potential For Civil Commitment. Bauder v. Dep’t. of Corrs. (9/13/2010, 11th Cir. No. 10-10657) 2010 U.S. App. LEXIS 19053: Based on counsel’s testimony, the court could not say that the district court’s factual finding that counsel misadvised petitioner was clearly erroneous.
IAC. Bellizia v. U.S. (08/23/2010, 11th Cir. No. 09-13838) 2010 U.S. App. LEXIS 17416: Counsel ineffective for failing to argue that the weight of the heroin allegedly possessed by petitioner was illegally calculated.
Death Penalty: Atkins. Hill v. Schofield (6/18/2010, 11th Cir. No. 08-15444) 608 F3d 1272: Georgia’s requirement of proof of mental retardation beyond a reasonable doubt necessarily would unconstitutionally result in the execution of the mentally retarded.
Confrontation: Motive For Changing Testimony. Childers v. Floyd (6/8/2010, 11th Cir. No. 08-15590) 608 F3d 776: Judge’s failure to permit cross-examination of a witness’s motive for changing his testimony deprived petitioner of a full opportunity to probe and expose the witness’s testimonial infirmities.
Coerced Confession: Improper Promises. U.S. v. Lall (6/1/2010, 11th Cir. No. 09-10794) 607 F3d 1277: Confession was product of improper promises of non-prosecution and thus not voluntary.
Statute Of Limitations: Conspiracy – Overt Acts. U.S. v. McNair (5/12/2010, 11th Cir. No. 07-11476) 2010 U.S. App. LEXIS 9687: Conspiracy conviction reversed where overt acts which satisfied statute of limitations were held to be invalid.
Aggravated Sodomy – Sufficiency Of Evidence. Green v. Nelson (2/4/2010, 11th Cir. No. 08-11212) 595 F3d 1245: Evidence was insufficient to support the charge of aggravated sodomy.
Bailiff-Jury Communication. Ward v. Hall (1/4/2010, 11th Cir. No. 07-11360) 592 F3d 1144: Death sentence is reversed where an improper bailiff-jury communication during the penalty phase violated petitioner’s constitutional right to a fair trial and a reliable sentence.
D.C. Circuit Court of Appeals
Multiplicity: Drug Sales. U.S. v. Battle (7/20/2010, DC Cir. No. 08-3060) 2010 U.S. App. LEXIS 14805: Improper to convict defendant of both distributing crack cocaine and of distributing the same drugs within 1000 feet of a school.
Money Laundering. U.S. v. Hall (7/16/2010, DC Cir. No. 07-3036) 2010 U.S. App. LEXIS 14651: Money laundering conviction is reversed where the evidence was insufficient to support his money laundering conviction because the alleged money laundering activity was part and parcel of the underlying bank fraud.
VICAR: Multiplicity. U.S. v. Mahdi 3/30/2010, DC Cir. No. 03-3154) 598 F3d 883: Convictions for simple drug distribution merged into the analogous convictions for distribution of drugs within 1,000 feet of a school.
Defendant’s Offer Of Settlement Is Inadmissible Under FRE 408. U.S. v. Davis (2/26/2010, DC Cir. No. 07-3100) 596 F3d 852: District court abused its discretion under FRE 408 in permitting a witness to testify regarding defendant’s offer of settlement and the statements that followed.
Supreme Court of Delaware
Evidence. Blake v. State of Delaware (8/3/2010, No. 206, 2009) 2010 Del. LEXIS 351: Court committed reversible error by admitting the prior statements of five witnesses into evidence without a proper foundation.
Witness Tampering. Vincent v. State (6/1/2010, No. 582, 2009) 996 A2d 777: Defendant’s conviction for witness tampering is reversed where the car defendant damaged was not the property of a witness to an earlier crime.
Accomplice Corroboration. Washington v. State (6/8/2010, No. 384, 2009) 2010 Del. LEXIS 272: Defendant’s robbery conviction is reversed where the victim flatly denied that defendant was present, and there was no corroboration for the accomplice’s contrary testimony.
Defendant Did Not “Tamper With Evidence” By Putting A Marijuana Bag In His Mouth Immediately Before Arrest. Harris v. State (4/6/2010, DE No. 270, 2009) 991 A2d 1135: Conviction for tampering with evidence is reversed where the police immediately retrieved the marijuana baggie defendant placed in his mouth.
Supreme Court of Florida
Drug Quantity Enhancement: Insufficient Evidence. Hernandez v. State of Florida (12/9/2010, Fla. No. SC08-2321) 2010 Fla. LEXIS 2083: There was no evidence from which the jury could reasonably infer that defendant intended to participate in a transaction involving at least 28 grams of cocaine.
Improper Conviction Upon Uncharged Elements. Jaimes v. State of Florida (12/9/2010, Fla. No. SC09-1694) 51 So 3d 445: In a conviction of defendant for simple battery, aggravated battery with a deadly weapon, and aggravated battery by causing great bodily harm, because the defendant was specifically convicted of an offense based on elements that were never charged.
Instruction Precluding Readback Of Testimony Was Reversible Error. Johnson v. State of Florida (10/7/2010, No. SC09-966) 2010 Fla. LEXIS 1642: Instruction that cannot have testimony read back was per se reversible error.
Failure To Appear: Must Be Willful. State of Florida v. Blair (6/3/2010, No. SC09-1407) 2010 Fla. LEXIS 858: Insufficient evidence to prove that defendant willfully failed to appear and the trial court did not find the failure to appear to be willful.
Manslaughter: Intent To Kill. State v. Montgomery (4/8/2010, FL No. SC09-332) 2010 Fla. LEXIS 474: Fundamental error to give standard jury instruction on manslaughter, which required proof that defendant intended to kill the victim.
New York Court of Appeals
“Depraved Indifference” Murder. People v. Taylor (12/2/2010, NY, No. 183) 15 NY3d 518: Evidence insufficient to establish depraved indifference murder because the prosecution did not establish “torture or a brutal, prolonged” course of conduct.
First Degree Assault: Insufficient Evidence That Victim Was “Seriously” Disfigured. People v. McKinnon (10/14/2010, No. 163) 15 NY3d 311: First-degree assault conviction reversed where the evidence was insufficient to support the conviction.
IAC: Notice Of Appeal. People v. Syville (10/14/2010, No. 153) 2010 N.Y. LEXIS 2900: Defendant must be provided with an opportunity to assert a claim that the right to appeal has been lost due solely to the unconstitutionally deficient performance of counsel in failing to file a timely notice of appeal.
Refusal Of Jury’s Tendered Partial Verdict. People v. Rivera (5/6/2010, NY No. 72) 2010 N.Y. LEXIS 630: Judge may not refuse to accept jury’s partial verdict under New York criminal procedural rules.
Theft: Claim Of Right. People v. Zona (5/6/2010, NY No. 73) 2010 N.Y. LEXIS 629: Judge should have instructed jury on claim of right defense based on evidence of defendant’s good-faith claim of right defense concerning property he removed from a sheriff’s department warehouse.
Showing Jurors Unadmitted Exhibit. People v. Cruz (4/6/2010, NY No. 52) 2010 N.Y. LEXIS 343: Jury was erroneously allowed to see an unadmitted exhibit that contradicted defendant’s misidentification defense.
Speedy Trial. People v. Price (2/11/2010, NY, No. 7) 14 NY3d 61; 923 NE2d 1107: Prosecution failed to show good cause for not being reading for trial within the six-month statutory requirement.
Improper Joinder/Consolidation. People v. Pierce (2/16/2010, NY, No. 27) 2010 N.Y. LEXIS 23: Indictment did not properly join the criminal possession charge with the grand larceny charge.
Withdrawal Of Guilty Plea: Duress. People v. Brown (2/18/2010, NY, No. 28) Defendant’s motion to withdraw his guilty plea is reversed where defendant provided detailed allegations explaining the duress that he experienced, at the time he entered his plea. Trial court had duty to hold a hearing on the issue.
Court of Criminal Appeals of Texas
Jury Selection: Consideration Of Minimum Punishment. Cardenas v. State of Texas (11/10/2010, No. PD-1846-09) 2010 Tex. Crim. App. LEXIS 1391: Judge improperly denied defendant’s cause challenge of jurors who unequivocally stated that they could not consider the minimum punishment.
Identification: Dog-Scent Lineup. Winfrey v. State of Texas (9/22/2010, PD-0987-09) 2010 Tex. Crim. App. LEXIS 1167: Dog-scent lineup evidence may raise a strong suspicion of defendant’s guilt, standing alone, this evidence is insufficient to establish a person’s guilt beyond a reasonable doubt.