Helpful Non-California Cases:
Selected Cases From Federal and Out-of-State Jurisdictions
(January-December 2012)
United States Supreme Court
Federal Courts
New York Court of Appeals
United States Supreme Court (January-December 2012)
Selected Decisions:
Stolen Valor Act. U.S. v. Alvarez (6/28/2012, No. 11-210) ____ US ____ [183 LEd2d 574; 132 SCt 2537]: Stolen Valor Act, which makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved, 18 USC 704(b) and (c), violates the First Amendment.
Cruel And Unusual Punishment: LWOP For Juvenile. Miller v. Alabama (6/25/2012, No. 10-9646 and No. and 10-9647) ____ US ____ [183 LEd2d 407; 132 SCt 2455]: The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.
Apprendi: Applicability To Criminal Fines. Southern Union Co. v. U.S. (6/21/2012, No. 11-94) ____ US ____ [183 LEd2d 318; 132 SCt 2344]: Apprendi applies to the imposition of criminal fines.
Brady: Contradictory Statements. Smith v. Cain (1/10/2012, No. 10-8145) ___ US ___ [181 LEd2d 571; 132 SCt 627]: Prosecutor’s failure to disclose contradictory statements of the sole eyewitness, whose testimony formed the basis of defendant’s conviction prejudicially violated Brady v. Maryland (1963) 373 U.S. 83 [10 LEd2d 215; 83 SCt 1194].
Federal Courts (January-December 2012)
Selected Decisions:
1st Circuit Court of Appeals
Bankruptcy: Failure To Disclose Credit Card Debts. U.S. v. Marston (9/20/2012, 1st Cir. No. 11-2100) 694 F3d 131: The government failed to establish the element of falsity with regard to the charge for knowingly and fraudulently failing and refusing to disclose credit card debts.
Interfering With Operation Of Aircraft: Knowledge Element. U.S. v. Sasso (9/17/2012, 1st Cir. No. 11-1094) 695 F3d 25: Conviction on the 18 USC 32(a)(5) count is reversed because reasonable jurors could understand from the instructions that it would be enough to convict the defendant if they found that he deliberately pointed a laser in the helicopter’s direction and interference occurred as a natural and probable consequence of that action, regardless of whether the defendant knew that interference was a natural and probable effect of the action.
Multiplicity: 18 USC 2252(a)(4)(B) – Multiple Computer Images. U.S. v. Chiaradio (7/11/2012, 1st Cir. No. 11-1290) 684 F3d 265: One who simultaneously possesses a multitude of forbidden images at a single time and in a single place will have committed only a single offense. In this instance, the defendant may have possessed two “matters” (i.e., two computers) that collectively contained thousands of images, but his simultaneous possession of “one or more” matters transgressed the statute only once.
Hobbs Act: Conspiracy. U.S. v. Franco-Santiago (5/31/2012, 1st Cir. No. 10-2247) 681 F3d 1: Insufficient evidence of participation in broad conspiracy, and statute of limitations barred in specific conspiracy.
2nd Circuit Court of Appeals
Suggestive Lineup. Young v. Conway (10/16/2012, 2nd Cir. No. 11-830) 2012 U.S. App. LEXIS 21502: All six Wade factors weigh against a finding that the witness’s in-court identification could derive from a source other than the tainted lineup and the improper admission of the witness’s uncorroborated identification testimony at defendant’s trial had a substantial and injurious effect on the jury’s verdict.
Habeas Corpus: Change In The Law As “Cause” For Failure To Object At Trial. Gutierrez v. Smith (8/31/2012, 2nd Cir. No. 10-4478) 692 F3d 256: Because there was a fundamental shift in New York’s interpretation of its depraved indifference murder statute between the time of defendant’s trial in 2001 and the time his conviction became final in 2005, the legal basis for a sufficiency challenge was not reasonably available to counsel at the time of trial, thus establishing “cause” for the failure to object.
Evidence Of Government’s Charging Decisions. U.S. v. White (8/30/2012, 2nd Cir. No. 11-772) 692 F3d 235: District court erred in excluding evidence regarding the arrests and charging decisions of the other occupants in defendant’s vehicle, as district courts may not presumptively exclude evidence of the government’s charging decisions without an inquiry into its relevance and probative value to the respective case.
Resisting Arrest: Insufficient Evidence. U.S. v. Davis (8/24/2012, 2nd Cir. No. 10-4104) 690 F3d 127: The evidence adduced at trial did not permit a finding to support defendant’s conviction for resisting arrest.
18 USC 844(h)(1): Cartridge Is Not An “Explosive.” U.S. v. Graham (8/15/2012, 2nd Cir. No. 09-2819) 691 F3d 153: The term “explosive” in 18 USC 844(h)(1) does not include a cartridge from a 9-millimeter semiautomatic pistol simply because it contains a small amount of gunpowder and can be fired from a gun.
Securities Fraud: Brady Error And Instructional Error. U.S. v. Mahaffy (4/11/2012, 2nd Cir. No. 11-1126) 676 F3d 71: 1) The source code the defendant appropriated did not constitute stolen “goods,” “wares,” or “merchandise” within the meaning of the NSPA; and 2) Goldman’s HFT system was neither “produced for” nor “placed in” interstate or foreign commerce, so the Economic Espionage Act of 1996 (EEA) was not applicable.
National Stolen Property Act (NSPA) Does Not Apply To Computer Source Code. U.S. v. Aleynikov (8/2/2012, 2nd Cir. No. 09-5349) 693 F3d 113: The government’s failure to disclose portions of the transcripts of depositions taken by the SEC prior to the first trial violated Brady v. Maryland. Further, the district court did not adequately instruct the jury that it had to find bribery in order to convict under an honest services fraud theory of conspiracy to commit securities fraud.
FRE 404(b). U.S. v. Scott (4/06/2012, 2nd Cir. No. 10-3978) 677 F3d 72: Convictions reversed where judge failed to conduct FRE 403 relevancy analysis before admitting FRE 404(b) evidence.
Illegal Money Transfer To Iran: Jury Instruction Error. U.S. v. Banki (2/21/2012, 2nd Cir. No. 10-3381) 660 F3d 665: Judge erroneously instructed jury by: (a) failing to instruct the jury that non-commercial remittances to Iran, including family remittances, are exempt from the Iranian Transactions Regulations’ service-export ban; and (b) failing to define “money transmitting business” as an enterprise (not a single transaction) that is conducted for a fee or profit.
Faretta: Self Representation. U.S. v. Culbertson (2/16/2012, 2nd Cir. No. 10-1766) 2012 U.S. App. LEXIS 2005: Judge erroneously required the defendant to proceed pro se after disagreements with his court-appointed counsel without apprising him of the consequences of proceeding pro se or assessing his capacity to make an informed choice.
RICO Conviction Reversed Due To Erroneous Instruction. U.S. v. Cain (1/31/2012, 2nd Cir. No. 09-0707) 2012 U.S. App. LEXIS 1772.
Defendant’s Right To Personal Presence: Ex Parte Communication With Juror. U.S. v. Collins (1/9/2012, 2nd Cir. No. 10-1048) 665 F3d 454: Judge improperly withheld the contents of a jury note and engaged in an ex parte colloquy with a juror accused of attempting to barter his vote, thus depriving the defendant of his right to be present at a critical stage of the trial.
Securities Fraud: District Stock-Price Data. U.S. v. Ferguson (12/19/2011, 2nd Cir. No. 08-6211, amended 1/10/2012) 2011 U.S. App. LEXIS 26115: Court abused its discretion by admitting prejudicial stock-price data to prove the materiality of misstatements to a reasonable investor.
3rd Circuit Court of Appeals
Apprendi. Garrus v. Sec’y of the Pennsylvania Dep’t of Corr. (9/21/2012, 3rd Cir. No. 09-3586) 694 F3d 394: State court unreasonably applied Apprendi by allowing defendant to be sentenced beyond the statutory maximum based on a judicial finding that he burglarized an occupied building when he was actually convicted of burglarizing an unoccupied building.
Evidence: Judge’s Duty To Weigh Probative Value Against Prejudicial Effect (FRE 404). U.S. v. Cunningham (9/18/2012, 3rd Cir. No. 10-4021) 694 F3d 372: Judge abused discretion by failing to review videos before admitting them and allowing them to be shown to the jury, because their highly inflammatory nature clearly and substantially outweighed their probative value.
Probable Cause To Arrest. U.S. v. Navedo (9/12/2012, 3rd Cir. No. 11-3413) 694 F3d 463: Police lacked probable cause to arrest defendant because an unprovoked flight, without more, is not probable cause to arrest.
Actual Innocence. Munchinski v. Wilson (9/11/2012, 3rd Cir. No. 11-3416) 694 F3d 308: Defendant has demonstrated his actual innocence by clear and convincing evidence.
Juror Bias: Close Relatives Of The Parties. U.S. v. Mitchell (8/7/2012, 3rd Cir. No. 11-2420) 690 F3d 137: The law presumes bias in jurors who are close relatives of the parties in a case. Remand ordered because the district court did not elicit sufficient information on the nature of the relationship between the prosecutor and a juror.
Anders Procedures: Application To Habeas Corpus. Simon v. Government of the Virgin Islands (5/9/2012, 3rd Cir. No. 09-3616) 679 F3d 109: Lower court erred by relying on defense counsel’s Anders brief as a basis for finding the appeal frivolous.
Actual Innocence: Discovery. Lee v. Glunt (1/27/2012, 3rd Cir. No. 10-4133) 667 F3d 397: Newly developed scientific evidence established that the expert testimony was fundamentally unreliable, in violation of due process, and that the defendant was actually innocent and discovery was essential to the development of his federal claims.
Health Services Fraud. U.S. v. Wright (1/4/2012, 3rd Cir. No. 09-3467) 665 F3d 560: Skilling v. U.S. (2010) ___ US ___ [177 LEd2d 619; 130 SCt 2896] required a new trial on the honest services fraud convictions and prejudicial spillover tainted defendants’ mail fraud convictions.
4th Circuit Court of Appeals
Due Process: Notice – Constructive Amendment. U.S. v. Whitfield (8/22/2012, 4th Cir. No. 10-5217) 2012 U.S. App. LEXIS 17762: Uncharged death results offense was either a constructive amendment or an indictment error.
Death Penalty: Innocence Claim. Teleguz v. Pearson (8/2/2012, 4th Cir. No. 11-9) 689 F3d 322: District court abused its discretion in failing to conduct an analysis of defendant’s Schlup gateway innocence claim as required by Wolfe v. Johnson (4th Cir. 2009) 565 F3d 140, 163.
Guilty Plea: IAC – Failure To Advise As To Consequences. U.S. v. Akinsade (7/25/2012, 4th Cir. No. 09-7554) 686 F3d 248: Counsel’s affirmative misrepresentations that the crime was non-deportable were IAC under Strickland standard.
Death Penalty. Winston v. Pearson (6/26/2012, 4th Cir. No. 11-4) 683 F3d 489: Atkins counsel were ineffective for failing to raise the claim under Atkins v. Virginia (2002) 536 US 304.
Restitution For Services Of Court Appointed Attorneys. U.S. v. Cloud (5/31/2012, 4th Cir. No. 10-4057) 680 F3d 396: District court erred when it ordered the defendant to reimburse the government for the services of his court-appointed attorneys.
FRE 404(b). U.S. v. McBride (4/23/2012, 4th Cir. No. 10-5162) 676 F3d 385: Two of the three counts reversed where the admission of prior “bad act” evidence was prejudicial error.
Juror Misconduct. U.S. v. Lawson (2/3/2012, 4th Cir. No. 10-52920) 668 F3d 119: It was plain error to convict and sentence the defendant on two separate counts for the simultaneous possession of a firearm and ammunition under section 18 USC 922(g)(8).
Multiplicity: Convictions For Possessing Both Gun And Ammunition. U.S. v. Mahin (2/3/2012, 4th Cir. No. 10-52920) 668 F3d 119: It was plain error to convict and sentence the defendant on two separate counts for the simultaneous possession of a firearm and ammunition under section 18 USC 922(g)(8).
Honest Services Wire Fraud Conviction Reversed Due To Erroneous Jury Instruction. U.S. v. Hornsby (1/25/2012, 4th Cir. No. 08-5267) 666 F3d 296.
Second Amendment Challenge To Charge Of Possessing A Firearm While Using Marijuana (18 USC 922(g)(3)). U.S. v. Carter (1/23/2012, 4th Cir. No. 09-5074) 2012 U.S. App. LEXIS 1243: Conviction reversed under Second Amendment because government did not present sufficient evidence to substantiate the fit between its objective and the means of serving that objective.
9th Circuit Court of Appeals
Death Penalty: IAC For Failure To Present Available Mitigation. Stankewitz v. Wong (10/29/2012, 9th Cir. No. 10-99001) 2012 U.S. App. LEXIS 22329.
Discovery. U.S. v. Budziak (10/5/2012, 9th Cir. No. 11-10223) 2012 U.S. App. LEXIS 20814: Defendant made a sufficient showing that discovery of software used by the FBI was material to preparing his defense.
Right To Present A Defense. Cudjo v. Ayers (9/28/2012, 9th Cir. No. 08-99028) 2012 U.S. App. LEXIS 20345: Conviction is reversed because Chambers v. Mississippi clearly established that the exclusion of trustworthy and necessary exculpatory testimony at trial violates a defendant’s due process right to present a defense. This clearly established federal law applied at the time the California Supreme Court decided defendant’s case in 1993.
Guilty Plea: IAC – Three Strikes. Miles v. Martel (9/28/2012, 9th Cir. No. 10-15633) 2012 U.S. App. LEXIS 20346: Counsel was ineffective by advising defendant to reject a plea offer of six years’ imprisonment without informing him that he was being charged with a crime that would qualify as a “third strike” under California law.
Right To Present Evidence: Deportation Of Exculpatory Witness. U.S v. Leal-Del Carmen (9/14/2012, 9th Cir. No. 11-50094) 2012 U.S. App. LEXIS 19330: The prosecution undermined defendant’s opportunity to present a complete defense by deporting a witness it knew could provide exculpatory evidence.
Escape: Leaving Residential Reentry Center. U.S. v. Burke (9/13/2012, 9th Cir. No. 11-30140) 694 F3d 1062: Indictment was properly dismissed because defendant was not in “custody” within the meaning of 18 USC 751(a) when he left the residential reentry center where he was residing as a condition of his supervised release.
Batson. Ayala v. Wong (8/29/2012, 9th Cir. No. 09-99005) 693 F3d 945: Exclusion of defense counsel during Batson hearing was prejudicial error.
Miranda. Sessoms v. Runnels (8/16/2012, 9th Cir. No. 08-17790) 691 F3d 1054: Defendant invoked his right to counsel, and any reasonable police officer would have understood that defendant expressed his desire to have a lawyer present at his interrogation. The California Court of Appeal unreasonably applied clearly established Supreme Court precedent.
Confrontation: Former Testimony – Motive To Cross Examine At Suppression Hearing. U.S. v. Duenas (8/16/2012, 9th Cir. No. 09-10492) 691 F3d 1070: District court abused its discretion in admitting the former testimony of an officer under FRE 804(b)(1) because it incorrectly concluded that defense counsel had similar motive to cross examine the officer when it questioned him at the suppression hearing as it would have had at the trial.
Assault On Federal Officer: Reasonable Apprehension Of Harm – Erroneous Model Instruction. U.S. v. Acosta-Sierra (8/15/2012, 9th Cir. No. 10-50575) 690 F3d 1111: District court erred in its application of the “reasonable apprehension of harm” prong of common law assault in reliance on an erroneous model jury instruction.
Confrontation. U.S. v. Bustamante (8/7/2012, 9th Cir. No. 11-50075) 687 F3d 1190: Admission of a document appearing to be a transcription of defendant’s birth certificate from the Philippines violated his rights under the Confrontation Clause under the Sixth Amendment.
Right To Present A Defense. Jackson v. State of Nevada (8/6/2012, 9th Cir. No. 09-17239) 688 F3d 1091: Exclusion of the police witness testimony violated defendant’s right to present a complete defense; Nevada Supreme Court decision holding otherwise was an unreasonable application of clearly established U.S. Supreme Court precedent.
Review Of Magistrate Judge’s Credibility Determination. U.S. v. Thoms (6/29/2012, 9th Cir. No. 11-30120) 684 F3d 893: Where the district judge finds that the magistrate judge’s credibility determinations had no legally sufficient evidentiary basis, the credibility determination is not binding.
Public Trial: Exclusion Of Defendant’s Wife And Son. U.S. v. Rivera (6/22/2012, 9th Cir. No. 10-50426) 682 F3d 1223: Defendant’s Sixth Amendment right to a public trail was violated when the judge excluded defendant’s wife and son from the sentencing proceedings.
Forfeiture: Consideration Of Uncharged Criminal Conduct. U.S. v. Ferro (6/11/2012, 9th Cir. No. 10-55734) 681 F3d 1105: Forfeiture of instrumentalities of a crime are subject to excessiveness analysis under the Eighth Amendment’s Excessive Fines Clause; but excessiveness review must consider the individualized culpability of the property’s owner, and it must focus only on the conduct that actually gave rise to the forfeiture of the property at issue, not other criminal conduct by the property owner.
Right To Counsel: Reassertion After Waiver. Rodgers v. Marshall (5/17/2012, 9th Cir. No. 10-55816) 678 F3d 1149: Defendant’s Sixth Amendment right to counsel was violated when the state trial court denied his timely request for representation for a new trial motion based on the erroneous notion that once waived, the right to counsel cannot be reasserted. The denial of counsel was reversible per se.
IAC: Failure To Present Third Party Guilt Witnesses. Thomas v. Chappell (5/10/2012, 9th Cir. No. 09-99024) 678 F3d 1086: Failure to present third party guilt witnesses warranted habeas relief because: 1) the case was close, and a reasonable jury would have struggled with the question whether third party guilt evidence created a reasonable doubt as to the petitioner’s guilt; and 2) the testimony would have been helpful in corroborating the testimony of key defense witness.
Death Penalty: IAC At Penalty Trial. Detrich v. Ryan (5/2/2012, 9th Cir. No. 08-99001) 677 F3d 958: The Arizona post-conviction court unreasonably applied the clearly established federal law of Strickland when it concluded that the defendant’s sentencing counsel’s performance was not deficient. The death judgment was reversed in light of the reasonable probability that the sentencing judge would have imposed a sentence less than death had counsel obtained and presented an expert evaluation of the defendant’s neuropsychological functioning.
Computer Fraud And Abuse Act (CFAA). U.S. v. Nosal (4/10/2012, 9th Cir. No. 10-10038) 676 F3d 854: 1) The phrase “exceeds authorized access” in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use. 2) Because the defendant’s accomplices had permission to access the company database and obtain the information contained within, the element of “without authorization, or exceeds authorized access” under the CFAA was not proved.
IAC: Plea Agreement. U.S. v. Manzo (4/5/2012, 9th Cir. No. 10-35848) 675 F3d 1204: Defense counsel’s failure to anticipate that the offenses would be grouped for sentencing purposes and then advise the defendant to move to withdraw his agreement to plead guilty was constitutionally deficient.
Use Of Expired Credit Card Numbers. U.S. v. Onyesoh (4/4/2012, 9th Cir. No. 10-50480) 674 F3d 1157: 1) For purposes of access device fraud under 18 USC 1029, unauthorized “access devices” must be usable. 2) The government did not provide any evidence of usability of the expired credit card numbers.
Threatening Communications (18 USC 876(c)). U.S. v. Havelock (1/6/2012, 9th Cir. No. 08-10472) 664 F3d 1284: §876(c) does not apply to threatening letters to media outlets and websites.
New York Court of Appeals
Lawyer’s Conflict Of Interest: Representation Of Police Officer Who Took Defendant’s Confession. People v. Solomon (10/30/2012, NY, No. 153) 2012 N.Y. LEXIS 3262: Conviction reversed due to defense counsel’s conflict of interest in simultaneously representing, in an unrelated matter, a police officer who testified for the People that defendant had confessed to one of the charged crimes.
Public Trial: Exclusion Of Defendant’s Family. People v. Alvarez (10/30/2012, NY, No. 168) 2012 N.Y. LEXIS 3266: Conviction reversed due to exclusion of defendant’s family from the courtroom over his objection.
LIO Instruction: Strategic Decision Controlled By Defense Counsel. People v. Colville (10/23/2012, NY, No. 161) 2012 N.Y. LEXIS 2737: The decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel and not with the accused.
Double Jeopardy: Implied Acquittal. People v. Gause (6/5/2012, NY No. 90) 2012 N.Y. LEXIS 1279: Because the first jury had a full opportunity to return a verdict on two inconsistent charges, conviction on one charge was implied acquittal of the other.
Depraved Indifference To Human Life: Failing To Seek Medical Assistance For Child. People v. Matos (5/31/2012, NY No. 86) 2012 N.Y. LEXIS 1243: The evidence was not sufficient to show that the defendant possessed the culpable mental state of depraved indifference to human life by failing to seek medical attention for a child.
Downloading Child Pornography: Cached Web Page. People v. Kent (5/8/2012, NY No. 70) 19 NY3d 290: Convictions with respect to a web page are reversed, where the prosecution did not prove that the defendant knew that the page had been cached.
IAC: Failure To Object To Prosecutorial Misconduct. People v. Fisher (4/3/2012, NY No. 56) 18 NY3d 964; 967 NE2d 676: Defense counsel rendered ineffective assistance of counsel by failing to object to the prosecutor’s egregiously improper argument to the jury.
DUI/DWI: Refusal Of Blood Alcohol Test. People v. Smith (2/16/2012, NY No. 28) 2012 N.Y. LEXIS 267: Judge erroneously admitted evidence that the defendant purportedly refused to take a blood alcohol test. This evidence should not have been admitted, since the defendant was not adequately warned that his conduct would constitute a refusal.
