Helpful Non-California Cases:
Selected Cases From Federal and Out-of-State Jurisdictions
(January-December 2009)
Federal Courts
Supreme Court of Florida
New York Court of Appeals
Texas Criminal Court of Appeals
Supreme Court of Texas
Federal Courts (January-December 2009)
Selected Decisions:
U.S. Supreme Court
Bobby v. Bies (6/1/2009, No. 08-598) ___ US ___ [173 LEd2d 1173; 129 SCt 2145]: Death Penalty: Post-Trial Atkins Hearing: Double Jeopardy Clause did not bar the state court from conducting a full hearing on Defendant’s mental capacity after trial.
Yeager v. U.S. (6/18/2009, No. 08-67) ____ US ____ [174 LEd2d 78; 129 SCt 2360]: Double Jeopardy: Retrial precluded not withstanding apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts.
Flores-Figueroa v. U.S. (5/4/2009, No. 08-108) ____ US ____ [173 LEd2d 853: 129 SCt 1886]: Identity Theft: Knowledge Element: Defendant’s aggravated identity theft conviction is reversed where 18 USC 1028A(a)(1) requires the government to show that a defendant knew that the means of identification at issue belonged to another person.
Montejo v. Louisiana (5/26/2009, No. 07-1529) ____ US ____ [173 LEd2d 955; 129 SCt 2079]: Requiring an “initial invocation” of the right to counsel in order to trigger the Jackson presumption might work in states that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the states that appoint counsel without request from the defendant.
Abuelhawa v. United States (5/26/2009, No. 08-192) ____ US ____ [173 LEd2d 982; 129 SCt 2102]: Using Telephone To Make Misdemeanor Drug Purchase Does Not “Facilitate” Felony Drug Distribution: Using a telephone to make a misdemeanor drug purchase does not “facilitate” felony drug distribution in violation of 18 USC 843(b).
Corley v. U.S. (4/6/2009, No. 07-10441) ____ US ____ [173 LEd 2d 443; 129 SCt 1558]: Defendant’s bank robbery conviction is vacated, where the District Court erred by denying Defendant’s motion to suppress his confession under McNabb v. US (1943) 318 US 332, and Mallory v. US (1957) 354 US 449, based on the government’s delay in bringing him before a judge, where 18 USC 3501 modified McNabb–Mallory but did not supplant it.
Chambers v. U.S.. (1/13/2009, No. 06-11206) ____ US ____ [172 LEd2d 484; 129 SCt 687]: Illinois’ crime of “failure to report” for penal confinement is not a “violent felony” for purposes of the Armed Career Criminal Act’s (ACCA) 15-year mandatory prison term.
Oregon v. Ice (1/14/2009, No. 07-901) ____ US ____ [172 LEd2d 517; 129 SCt 711]: In the context of cases involving defendants who have been tried and convicted of multiple offenses, a state’s practice of constraining judges’ discretion by requiring them to find certain facts before imposing consecutive sentences, rather than concurrent sentences, does not violate the Sixth Amendment as construed in Apprendi v. New Jersey (2000) 530 US 466, 490, and Blakely v. Washington (2004) 542 US 296.
Waddington v. Sarausad (1/21/2009, No. 07-772) ____ US ____ [172 LEd2d 532; 129 SCt 823]: 1) Washington courts reasonably concluded that the trial court’s instruction to the jury regarding accomplice liability was not ambiguous; and 2) even were it ambiguous, the circuit court erred in finding the instruction so ambiguous as to cause a federal constitutional violation.
Van de Kamp v. Goldstein (1/26/2009, No. 07-854) ____ US ____ [172 LEd 2d 706; 129 SCt 855]: A prosecutor’s absolute immunity as to 42 USC 1983 civil rights suits extends to claims that the prosecution failed to disclose impeachment material due to failure to: 1) properly train prosecutors; 2) properly supervise prosecutors; or 3) establish an information system containing potential impeachment material about informants.
1st Circuit Court of Appeals
U.S. v. Villar (11/10/2009, 1st Cir. No. 08-1154) 586 F3d 76: Juror Misconduct: Constitutional Right To Inquiry: Although Rule of Evidence 606(b) limits inquiry into juror prejudice, a court has the discretion to conduct inquiry into juror misconduct under the Sixth Amendment and the Due Process Clause of the United States Constitution.
U.S. v. Cabrera-Rivera (9/25/2009, 1st Cir. No. 08-1702) 2009 U.S. App. LEXIS 21185: Confrontation – Hearsay: Defendant’s Confrontation Clause rights were violated by the admission of hearsay evidence.
U.S. v. Ayala-Garcia (7/24/2009, 1st Cir. Nos. 07-2129, 07-2130) 2009 U.S. App. LEXIS 16343: Possession Of Weapon With Obliterated Serial Number: (1) the evidence was sufficient for a rational jury to find beyond a reasonable doubt that one defendant was guilty of knowing possession of a firearm with an obliterated serial number; (2) Prosecutor Misconduct: Improper Statements: The prosecutor’s challenged statements constituted misconduct, and the improper comments so poisoned the well that the trial’s outcome was likely affected.
U.S. v. Boidi (6/3/2009, 1st Cir. No. 07-1527) 568 F3d 24: Simple Possession As Lesser Included OF Possession With Intent To Distribute: Court erroneously failed to give a requested lesser included offense instruction on simple possession where the facts did not necessarily compel the jury to find intent to distribute.
O’Laughlin v. O’Brien (6/10/2009, 1st Cir. No. 08-1010) 568 F3d 287: Sufficiency Of Evidence: Habeas relief granted where a rational jury could not find defendant’s guilt beyond a reasonable doubt.
U.S. v. Gonzalez-Melendez (6/19/2009, 1st Cir. No. 08-1497) 570 F3d 1: Response To Juror Notes: Conviction vacated where the record did not reflect that the court made any response to a jury note requesting copies of certain documents.
U.S. v. Melendez-Rivas (5/15/2009, 1st Cir. No. 07-1962) 566 F3d 41: Judge’s Questioning Of Defense Witness: The district court’s intervention in questioning a defense witness went beyond the appropriate limits and elicited inadmissible, prejudicial testimony that interfered with defendant’s fair trial rights.
U.S. v. Paret-Ruiz (5/19/2009, 1st Cir. No. 06-2709) 567 F3d 1: No Conspiracy With Government Agent: Evidence was insufficient for a reasonable jury to conclude that defendant had an agreement to import or possess cocaine with anyone other than a government agent.
U.S. v. Rivera‑Maldonado (3/12/2009, 1st Cir. No. 07‑1426) 2009 U.S. App. LEXIS 5160: Magistrate judge erroneously told defendant that the maximum possible period of supervised release was three years, and did not inform defendant that he could be sentenced to lifetime supervised release.
U.S. v. Rodriguez-Lozada (2/24/2009, 1st Cir. No. 06-1988) 2009 U.S. App. LEXIS 3580: Possession – Aiding & Abetting: Insufficient evidence to uphold convictions for possession of a firearm in furtherance of drug trafficking and aiding and abetting possession.
U.S. v. Tobin (1/7/2009, 1st Cir. No. 08-1340) 552 F3d 29: 47 USC 223(a)(1)(D)(2000) which criminalizes persistent telephone-ringing, requires a subjective purpose to harass.
U.S. v. Perazza-Mercado (1/21/2009, 1st Cir. No. 07-1511) 553 F3d 65: 1) the district court’s imposition of a total ban on home internet use during the fifteen-year supervised release period was an abuse of discretion; and 2) the district court committed plain error by failing to offer any explanation for a total ban on pornography, in the absence of a record containing any evidence regarding appellant’s use of pornography, its involvement in the offense at issue, or its relationship to the likelihood of recidivism.
U.S. v. King (1/29/2009, 1st Cir. No. 07-2084) 554 F3d 177: Multiplicity: One count of robbery of a credit union vacated where single offense was improperly charged as two.
2nd Circuit Court of Appeals
U.S. v. Frankel (12/21/2009, 2nd Cir. No. 06-1752) 2009 U.S. App. LEXIS 27927: Right To Counsel – Relieving appointed counsel as a sanction for defendant’s misconduct is improper where the order was not preceded by notice to defendant and an opportunity to respond.
U.S. v. Rodriguez (11/30/2009, 2nd Cir. Nos.08-2805-cr (L), 08-2880-cr (CON)) 2009 U.S. App. LEXIS 25921: Hostage Taking Act: Hostage Taking Act conviction is reversed because the Act does not apply to an extortion scheme that used brief confinement of a taxi passenger to obtain a somewhat above average taxi fare.
U.S. v. Shim (10/1/2009, 2nd Cir. No. 08-1834) 584 F3d 394: District court erred in failing to instruct the jury that defendant had to know that the women were transported in interstate commerce to be guilty of the offense.
U.S. v. Farmer (10/8/2009, 2nd Cir. No. 07-2729) 583 F3d 131: Prosecution Misconduct – Referring To Defendant By Prejudicial Nickname: Defendant’s murder conviction as to another victim is reversed where the prosecutorial misconduct resulted in prejudice.
U.S. v. Williams (10/27/2009, 2nd Cir. No. 08-5151) 585 F3d 703: Error to admit evidence that defendant had been in an apartment from which weapons and drugs were later recovered.
U.S. v. Daye (7/10/2009, 2nd Cir. No. 08-1012) 2009 U.S. App. LEXIS 15275: ACCA: Escape As A Violent Felony: The District Court must consider of remand whether defendant’s escape conviction constitutes a conviction for a violent felony.
U.S. v. Bah (7/31/2009, 2nd Cir. No. 07-4370) 2009 U.S. App. LEXIS 16915: Unlicensed Money Transmitting Business (18 USC 1960): Court erred in refusing to give defendant’s requested jury instruction on the scope of 18 USC 1960.
Wilson v. Mazzuca (6/24/2009, 2nd Cir. No. 03-2459) 2009 U.S. App. LEXIS 13523: IAC: AEDPA Standard: State court unreasonably applied clearly established federal law in concluding that defendant received effective assistance of counsel at his trial, as trial counsel’s performance was objectively unreasonable and there is a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different.
U.S. v. Ness (5/8/2009, 2nd Cir. No. 05-4401-cr) 565 F3d 73: Money Laundering (18 USC. 1957(a)): Insufficient Evidence: Conviction for conspiring to commit three money laundering offenses is reversed where: (1) A reasonable jury could not have found beyond a reasonable doubt that the purpose of defendant’s transportation of narcotics proceeds was to conceal the nature, location, or source of the narcotics proceeds; (2) the government failed to prove that a financial institution was involved.
U.S. v. Tureseo (5/14/2009, 2nd Cir. No. 07-2933-cr) 566 F3d 77: Defendant’s Right To Presence During Trial: Jury Instruction: “It is beyond dispute that a judge’s instructions to a jury constitute an integral part of the trial.” (United States v. Fontanez (2d Cir. 1989) 878 F2d 33, 35; see also U.S. v. Tureseo (5/14/2009, 2nd Cir. No. 07-2933-cr) 566 F3d 77, 83.)
U.S. v. Tureseo (5/14/2009, 2nd Cir. No. 07-2933) 566 F3d 77: (1) Instructing Jury In Defendant’s Absence; (2) Omission Of Essential Element Of Charge: Conviction and sentence for reentering the U.S. after deportation, making a false claim of U.S. citizenship, and aggravated identity theft is affirmed in part and vacated in part where: 1) the district court erred when it instructed the jury in defendant’s absence, but the error did not cause prejudice and was harmless beyond a reasonable doubt; but 2) the court committed reversible error by omitting an essential element of the offense in its jury instruction on the aggravated identity theft charge.
U.S. v. Hertular (4/6/2009, 2nd Cir. No. 07-1453) 562 F3d 433: Evidence was insufficient to support defendant’s conviction for forcibly impeding or intimidating a federal officer under 18 USC 111(a)(1) as the agents were not being threatened with immediate harm.
U.S. v. Polouizzi (4/24/2009, 2nd Cir. No. 08-1830-cr) 564 F3d 142: (1) Multiplicity: Court erred by entering multiple convictions instead of a single conviction for possession of a single collection of child pornography, and the error affected defendant’s substantial rights; (2) Instruction On Minimum Sentence: No Sixth Amendment right to an instruction on the applicable mandatory minimum sentence, although the court does have the discretion to do so in some circumstances.
U.S. v. Morales (3/18/2009, 2nd Cir. No. 07‑4202) 2009 U.S. App. LEXIS 5512: Government misled defendant as to the minimum penalty he would face after a jury’s conviction.
U.S. v. Draper (1/20/2009, 2nd Cir. No. 072301, 072366) 553 F3d 174: Jury was improperly charged on witness retaliation charges.
Drake v. Portuondo (1/23/2009, 2nd Cir. No. 061365) 553 F3d 230: Brady: Denial of habeas petition reversed where prosecutor failed to disclose expert witness’s false statements.
3rd Circuit Court of Appeals
U.S. v. Battis (12/14/2009, 3rd Cir. No. 08-2949) 2009 U.S. App. LEXIS 27097: Speedy Trial – Defendant’s right to a speedy trial was violated when forty-five months elapsed between his indictment and trial. Prejudice was presumed (rebuttably) even when it could be argued that only thirty-five months of delay was attributable to the government.
Wilson v. Beard (12/23/2009, 3rd Cir. No. 06-9004) 2009 U.S. App. LEXIS 28244: Brady – In light of the importance of the testimony of three witnesses and the significant impeachment value of the undisclosed information, defendant’s right to due process, as set forth in Brady, was violated by the Brady violation.
U.S. v. Rigas (10/21/2009, 3rd Cir. No. 08-3218) 584 F3d 594: Multiplicity – Fragmenting Single Conspiracy Into Multiple Counts: Defendants established a prima facie case that there was only one conspiratorial agreement.
Simmons v. Beard (9/11/2009, 3rd Cir. No. 05-9001) 2009 U.S. App. LEXIS 20289: Brady: Cumulative effect of the multiple Brady violations undermined confidence in the verdict.
U.S. v. Tann (8/24/2009, 3rd Cir. No. 08-2378) 577 F3d 533 – Multiplicity: Possession Of A Firearm And Ammunition: Defendant’s possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction under 18 USC 922(g)(1).
U.S. v. Cuevas-Reyes (7/10/2009, 3rd Cir. No. 08-3059) 2009 U.S. App. LEXIS 15276: Shielding Illegal Aliens (8 USC 1324): Defendant’s conduct did not meet the requirements of the test established in United States v. Ozcelik (3d Cir. 2008) 527 F3d 88.
U.S. v. Olhovsky (4/16/2009, 3rd Cir. No. 07-1642) 562 F3d 530: Unreasonable Sentence: Defendant’s sentence was substantively unreasonable, and the sentencing court erred as a matter of law in refusing to allow his treating psychologist to testify at the sentencing hearing.
Hummel v. Rosemeyer (4/29/2009, 3rd Cir. No. 06-2711) 564 F3d 290: IAC: Failure To Explore Competence Of Client: District court denial of plaintiff’s request for a writ of habeas corpus is reversed where: 1) plaintiff received ineffective assistance of counsel for counsel’s failure to deal appropriately with the likelihood that plaintiff was incompetent to stand trial; and 2) there was a reasonable probability that plaintiff was prejudiced by the ineffectiveness.
Siehl v. Grace (3/25/2009, 3rd Cir. No. 07‑1568) 2009 U.S. App. LEXIS 6392: Denial of habeas relief following conviction for first degree murder reversed where trial court’s application of Strickland to plaintiff’s ineffective assistance of counsel claim was not objectively reasonable.
Gov’t of the Virgin Islands v. Davis (3/27/2009, 3rd Cir. No. 07‑2136) 2009 U.S. App. LEXIS 6409: Doyle: Preferences to defendant’s post‑arrest, post‑Miranda silence violated his right to due process under Doyle.
U.S. v. Green (2/18/2009, 3rd Cir. No. 06-2468) 2009 U.S. App. LEXIS 3440: Evidence – Present-Sense Impression: District court erred in admitting the written statement of a confidential informant as a present-sense impression.
U.S. v. Berry (1/6/2009, No. 3rd Cir. 07-1251, 07-1276) 553 F3d 273: A bare arrest record alone does not justify an assumption that a defendant has committed other crimes and it cannot alone justify increasing a sentence.
4th Circuit Court of Appeals
Bostick v. Stevenson (12/17/2009, 4th Cir. No. 08-6331) 2009 U.S. App. LEXIS 27724: IAC – The performance of defendant’s trial counsel was constitutionally deficient because counsel did not consult with defendant about an appeal following his conviction.
U.S. v. Hawkins (12/18/2009, 4th Cir. No. 08-4576) 2009 U.S. App. LEXIS 27835: Severance – The district court erred in allowing joinder of the carjacking charges with the felon in possession charge because the charges were not of a same or similar character.
U.S. v. Bush (10/29/2009, 4th Cir. No. 08-6725) 585 F3d 806: Involuntary Medication Of Defendant: Record failed to establish that prosecution met its burden under Sell v. U.S. (2003) 539 US 166 (2003).
U.S. v. Ricks (7/20/2009, 4th Cir. No. 07-5127) 2009 U.S. App. LEXIS 15870: Self-Defense: Applicability To Firearm Possession: Court erred in denying defendant’s proposed justification instruction; a reasonable trier of fact could have found that defendant’s possession of firearm was justified as self-defense.
U.S. v. Madrigal-Valdez (4/1/2009, 4th Cir. No. 07-4681) 561 F3d 370: Unlawful Entry Into A Military Base (18 USC 1382): Insufficient that defendant had notice of the requirements for entry before he drove onto the military base access road.
U.S. v. Hatcher (3/13/2009, 4th Cir. No. 07‑4839) 2008 U.S. App. LEXIS 27430: Sex Offender Registration: Convictions for failing to register or update registration as sex offenders under the Sex Offender Registration and Notification Act (SORNA) reversed where SORNA’s registration requirements did not apply to Defendants at the time they committed the acts giving rise to their indictments.
U.S. v. Thompson‑Riviere (3/26/2009, 4th Cir. No. 07‑4793) 2009 U.S. App. LEXIS 6431: Brady: Motion to withdraw his guilty plea on the ground that newly discovered evidence showed that he was a citizen had merit because he credibly asserted his legal innocence.
U.S. v. Thornton (2/3/2009, 4th Cir. No. 08-4251) 554 F3d 443: Classification of defendant as armed career criminal under 18 USC 924(e) vacated where under Begay v. United States (2008) ____ US ____ [170 LEd2d 490; 128 SCt 1581]. The state’s carnal knowledge offense was not sufficiently similar to the enumerated crimes in kind or in degree of risk to constitute a violent felony.
U.S. v. Roseboro (1/5/2009, 4th Cir. No. 07-4348) 551 F3d 226: Because the relevant South Carolina statute proscribing failure to stop for a blue light allows conviction for both intentional and unintentional conduct, a conviction under that statute does not qualify as a violent felony under the Armed Career Criminal Act.
5th Circuit Court of Appeals
U.S. v. Molina-Solorio (7/27/2009, 5th Cir. No. 08-10167) 2009 U.S. App. LEXIS 16493: Speedy Trial: Presumed Prejudice: Lengthy delay, combined with the government’s negligence and defendant’s timely assertion of his rights, warranted a finding of presumed prejudice.
U.S. v. Armendariz-Moreno (6/15/2009, 5th Cir. No. 07-40225) 2009 U.S. App. LEXIS 13077: Crime Of Violence: ACCA (18 USC 924(e)): Unauthorized use of a motor vehicle is not a “crime of violence” under the Armed Career Criminal Act, because the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct.
U.S. v. Ruston (4/15/2009, 5th Cir. No. 07-10433) 565 F3d 892: Faretta: Defendant’s erratic behavior put judge on notice of need for hearing on defendant’s competency to proceed pro se.
U.S. v. Theagene (4/15/2009, 5th Cir. No. 08-50160) 565 F3d 911: Entrapment Instruction: Evidence that defendant lacked predisposition to bribe the official at issue and that the government induced him to do so required judge to give requested instruction on entrapment.
Richards v. Quarterman (4/27/2009, 5th Cir. No. 08-10934) 566 F3d 553: IAC: Failure to present exculpatory evidence justified finding that counsel was ineffective.
U.S. v. Long (3/5/2009, 5th Cir. No. 07‑31131) 2009 U.S. App. LEXIS 4544: Insanity: Defendant presented sufficient evidence to entitle him to insanity instruction.
U.S. v. Munoz‑Ortenza (3/18/2009, 5th Cir. No. 07‑51344) 2009 U.S. App. LEXIS 6166: Oral copulation of a minor per California PC 288(b)(1) prohibited conduct that would not have been criminalized under the generic meaning of sexual abuse of a minor and thus was not a “crime of violence.”
U.S. v. Severns (2/10/2009, 5th Cir. No. 07-40615) 2009 U.S. App. LEXIS 2636: Multiplicity – Use Of Arson To Commit Felony: Only one conviction and sentence enhancement for use of fire to commit a felony is permissible when a single fire was the basis for the enhancement.
U.S. v. Herrera (2/11/2009, 5th Cir. No. 08-50028) 2009 U.S. App. LEXIS 2635: Tax Evasion: New trial properly granted.
6th Circuit Court of Appeals
Jensen v. Romanowski (12/9/2009, 6th Cir. No. 08-1758) 2009 U.S. App. LEXIS 26758: Confrontation – A Confrontation Clause violation occurred via an officer’s testimony regarding a prior complainant.
Earhart v. Konteh (12/18/2009, 6th Cir. No. 07-4127) 2009 U.S. App. LEXIS 27755: Confrontation – Admission of a videotape deposition without a proper finding that the witness was constitutionally unavailable violated defendant’s right to confrontation under the Sixth Amendment.
Johnson v. Mitchell (11/4/2009, 6th Cir. No. 00-3350) 585 F3d 923: IAC At Penalty Trial: Trial counsel failed to meaningfully investigate and to present any mitigation evidence.
Johnson v. Sherry (11/13/2009, 6th Cir. No. 08-1322) 586 F3d 439: Public Trial – IAC For Failing To Object To Closing Of Courtroom: Remanded for evidentiary hearing to determine whether trial counsel was constitutionally ineffective for failing to object to the closure.
U.S. v. Cain (10/13/2009, 6th Cir. No. 07-4535) 583 F3d 408: Sex Offender Registration – Applicability To Persons Convicted Prior To The Effective Date Of The Statute: Conviction reversed because prosecution failed to specify the applicability of the Sexual Offenders Registration and Notification Act (SORNA) to persons convicted prior to the effective date of the Act.
U.S. v. Adams (10/14/2009, 6th Cir. No. 08-5372) 583 F3d 457: Instruction Required: Corroboration Of Confession: Court’s failure to instruct the jury that corroboration of the defendant’s confession was necessary substantially impaired the defense.
U.S. v. Tinklenberg (9/3/2009, 6th Cir. No. 06-2646) 2009 U.S. App. LEXIS 19800: Post-Indictment Delay: Delay between defendant’s indictment and prosecution violated the Speedy Trial Act, and a reprosecution would be contrary to the administration of justice because defendant had already served the entirety of his sentence.
Montgomery v. Bagley (9/29/2009, 6th Cir. No. 07-3882) 2009 U.S. App. LEXIS 21314: Brady: Conviction vacated because prosecution withheld exculpatory pretrial report.
Bigelow v. Haviland (8/6/2009, 6th Cir. No. 07-3340) 576 F3d 284 – IAC: Failure To Investigate: Defense counsel did not reasonably investigate petitioner’s alibi defense, and the evidence against petitioner was based solely on the testimony of two eyewitnesses with obscured views.
U.S. v. Moncier (7/8/2009, 6th Cir. No. 07-6053) 2009 U.S. App. LEXIS 14953: Contempt: Different Judge: Defendant’s conviction for contempt of court vacated because the judge before whom defendant engaged in the allegedly contemptuous conduct should not have presided over the trial of the charges.
U.S. v. Hunter (3/9/2009, 6th Cir. No. 07‑3698) 2009 U.S. App. LEXIS 4450: Instruction On Non-Existent Charge: District Court incorrectly instructed the jury on a nonexistent “possession of a firearm during a drug offense” charge.
Awkal v. Mitchell (3/16/2009, 6th Cir. No. 01‑4278) 2009 U.S. App. LEXIS 5357: IAC B Calling Expert Witness Who Contradicted The Defense: Petitioner’s counsel provided ineffective assistance at the guilt phase of Petitioner’s trial by calling an expert witness who testified that Petitioner was sane at the time of the murders, an opinion that contradicted Petitioner’s only defense.
U.S. v. Baker (3/16/2009, 6th Cir. No. 07‑5412) 2009 U.S. App. LEXIS 5351: Reckless Endangerment As Crime Of Violence: Insufficient evidence that Defendant’s prior reckless endangerment conviction was a “crime of violence.”
U.S. v. Bailey (1/20/2009, 6th Cir. No. 06-5576) 553 F3d 940: Appellant opinion amended because it mistakenly relied on evidence that wasn’t available to the jury.
U.S. v. Gagnon (1/29/2009, 6th Cir. No. 07-2133) 553 F3d 1021: 18 USC 111 prohibits more conduct than merely the commission of common-law assault.
U.S. v. Walker (1/26/2009, 6th Cir. No. 06-3137 555 F3d 716: Auto theft and temporary auto theft are not violent felonies under the Armed Career Criminal Act.
7th Circuit Court of Appeals
U.S. v. Skoien (11/18/2009, 7th Cir. No. 08-3770) 2009 U.S. App. LEXIS 25375: Possession Of Firearm – Second Amendment: Conviction reversed under 2nd Amendment.
U.S. v. Miller (11/19/2009, 7th Cir. No. 09-2256) 2009 U.S. App. LEXIS 25461: Forfeiture – Untimely Prosecution.
U.S. v. Katz (9/22/2009, 7thCir. No. 08-2341) 2009 U.S. App. LEXIS 20927: Possession Of Firearm By A Felon (18 USC 922(g)): Insufficient Evidence.
U.S. v. Williams (8/4/2009, 7th Cir. No. 08-1470) 576 F3d 385 – Denial Of Continuance As Reversible Error: District court abused its discretion in denying defendants’ motion for a continuance as the record shows no reason to deny a continuance and several compelling reasons to grant one.
U.S. v. Dooley (8/20/2009, 7th Cir. No. 08-4131) 2009 U.S. App. LEXIS 18719: Wire Fraud (18 USC 1343): Failure To Prove Transmission Of Wire Communication: The government failed to prove an element of the wire fraud charge: that the defendant transmitted or caused to be transmitted a wire communication.
U.S. v. Salem (8/25/2009, 7th Cir. No. 08-2034) 2009 U.S. App. LEXIS 19088: Brady: Right To Make Showing That Undisclosed Evidence Was Material: Defendant never had a sufficient opportunity to make a showing of whether Brady evidence was material.
U.S. v. Pulungan (6/15/2009, 7th Cir. No. 08-3000) 569 F3d 326: Exporting Rifle Scopes Without A License (22 USC 2778): Knowledge Element: Conviction reversed where the evidence was insufficient that defendant knew that an export license was required.
U.S. v. Heron (5/5/2009 ,7th Cir. No. 07-3726) 564 F3d 879: Denial Of Continuance: The court erred when it refused to grant a continuance after defendant’s partner changed his testimony at the last minute.
U.S. v. Mannava (5/15/2009, 7th Cir. No. 07-3748) 565 F3d 412: Duplicity: Coercing Minor To Engage In Prostitution: The court erred in allowing the jury to convict without a unanimous determination that the defendant violated one or both of the Indiana statutes.
U.S. v. Lee(3/11/2009, 7th Cir. No. 06‑3029) 2009 U.S. App. LEXIS 4937: Evidence was insufficient to support a conviction of money laundering because the disputed costs were essential regular expenses that did not constitute proceeds within the meaning of the statute and the jury received inadequate instructions.
U.S. v. Hodge (3/11/2009, 7th Cir. No. 06‑3458) 2009 U.S. App. LEXIS 5131: Money laundering conviction reversed where the evidence was insufficient to show what defendant did with the business’s net revenues and the jury received erroneous instructions.
Allen v. Buss (3/11/2009, 7th Cir. No. 07‑2486) 2009 U.S. App. LEXIS 5132: Death Penalty Atkins: Ruling that defendant could not relitigate his claims in light of the Supreme Court ruling in Atkins, which categorically banned the execution of the mentally retarded, because the lower courts had already considered evidence of defendant’s mental retardation as a mitigating factor, was contrary to the holding in Atkins recognizing that there is a difference between using mental retardation as a mitigating factor and excluding mentally retarded persons from the death penalty altogether.
U.S. v. Farinella (3/12/2009, 7th Cir. No. 08‑1839) 2009 U.S. App. LEXIS 5105: Misbranding Foods: Convictions for introducing misbranded food into interstate commerce with intent to defraud and wire fraud are reversed where the government presented insufficient evidence that the defendant engaged in misbranding food.
U.S. v. Shah (3/18/2009, 7th Cir. No. 07‑1306) 2009 U.S. App. LEXIS 6095: Conviction for multiple counts of fraud is reversed where the evidence did not support defendant’s conviction under 18 USC 2314.
U.S. v. Osborne (1/5/2009, 7th Cir. No. 08-1176) 551 F3d 718: A state conviction is not necessarily a crime of sexual “abuse” warranting an enhanced penalty under 18 USC 2252. Sexual behavior is “abusive” only if it is similar to one of the crimes denominated as a form of “abuse” elsewhere in Title 18.
U.S. v. Williams (1/9/2009, No. 07-2841) 552 F3d 592: Revocation of drunk driver’s license exceeded the district court’s power because it was not limited to federal enclaves.
8th Circuit Court of Appeals
Burns v. Prudden (12/16/2009, 8th Cir. No. 09-1704) 2009 U.S. App. LEXIS 27431: Habeas Corpus Statute Of Limitations – Intervening decision in Riddle v. Kemna (8th Cir. 2008) 523 F.3d 850, overruling a previous decision regarding the calculation of the statute of limitations for habeas petitions from Missouri, satisfied the “extraordinary circumstance” requirement for equitable tolling.
U.S. v. Espinosa (10/26/2009, 8th Cir. No. 08-3354) 585 F3d 418: Sexual Assault – Proof Of Victim’s Age: Conviction is reversed in part where insufficient evidence existed as to the victim’s age at the time of the offense conduct.
U.S. v. Dooley (9/1/2009, 8th Cir. No. 08-3523) 2009 U.S. App. LEXIS 19627: Felon In Possession Of A Firearm (18 USC 922(g)(1)): Instruction On Constructive Possession: Ambiguity in a jury instruction that defendant was in constructive possession of the firearm was reversible error.
U.S. v. Espinosa (9/18/2009, 8th Cir. No. 08-3354) 2009 U.S. App. LEXIS 20763: Aggravated Sexual Abuse: Insufficient Evidence Of Victim’s Age.U.S. v. Hayes (8/3/2009, 8th Cir. No. 08-2245) 574 F3d 460: Health Care Fraud: Evidence Insufficient To Prove False Statement.
U.S. v. Rush-Richardson (8/4/2009, 8th Cir. No. 08-2414) 574 F3d 906: Conviction for drug crimes and firearms possession is reversed where a jury instruction defining the elements of the offense under 18 USC 924(c)(1)(A) was erroneous and affected defendant’s substantial rights as it allowed defendant to be convicted on a lower standard.
Bobadilla v. Carlson (8/6/2009, 8th Cir. No. 08-3010) 575 F3d 785: Crawford: Statements Of Victim To Social Worker In Presence Of Detective: Minnesota Supreme Court unreasonably applied Crawford v. Washington when it found petitioner’s Sixth Amendment Confrontation Clause rights were not violated by the admission of statements the victim made to a social worker in the presence of a detective, as the statements were testimonial in nature.
U.S. v. Foster (8/14/2009, 8th Cir. No. 08-2344) 575 F3d 861: Due Process/Notice At Sentencing: Procedure employed by the court with respect to the motion for reduction of sentence was an abuse of discretion as the defendant was not provided with a copy of the probation office’s memorandum regarding defendant’s motion for reduction of sentence and was unable to answer the negative information in the memo.
Possession Of Firearm In Furtherance Of Drug Trafficking Crime: Improper To Define “In Furtherance” In Terms Of Facilitation (U.S. v. Rush-Richardson (8/4/2009, 8th Cir. No. 08-2414) 574 F3d 906, see also United States v. Kent (8th Cir. 2008) 531 F3d 642, 654-5.)
18 USC 924 describes two separate crimes: (1) carrying or using a firearm during and in relation to a crime of violence or drug trafficking crime; and (2) possessing a firearm in furtherance of a crime of violence or drug trafficking crime. (United States v. Gill (8th Cir. 2008) 513 F3d 836, 850; United States v. Gamboa (8th Cir. 2006) 439 F3d 796, 810.)
The USSC has defined the “in relation to” crime in terms of facilitation of the underlying crime.
In Smith v. United States (1993) 508 US 223, the Supreme Court stated:
“in relation to” thus, at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident of coincidence. As one court has observed, the “in relation to” language “allay[s] explicitly the concern that a person could be” punished under § 924(c)(1) for committing a drug trafficking offense “while in possession of a firearm” even though the firearm’s presence is coincidental or entirely “unrelated” to the crime. Instead, the gun at least must “faciliat[e], or hav[ve] the potential of facilitating,” the drug trafficking offense.” (Smith, 508 US 223, 238 [124 LEd 2d 138; 113 SCt 2050] [citations omitted].)
Therefore, “in furtherance of” should not be defined in terms of facilitation because “in furtherance of” is a slightly higher level of participation than “during and in relation to.” See Gamboa, 439 F.3d at 810; Kent at 655.
Instead, “in furtherance” should be given its plain meaning, “the act of furthering, advancing, or helping forward.” (United States v. Hamilton (8th Cir. 2003) 332 F3d 1144, 1149, quoting United States v. Lomax (4th Cir. 2002) 293 F3d 701, 705.) “In furtherance of” is not a factual requirement that the firearm advance the crime, but rather a requirement that the person possess the gun with the intent of advancing the crime. (See Hamilton, 332 F3d at 1149 [“The evidence tended to show that Hamilton’s shooting at his customers was intended to frighten them into returning approximately four ounces of cocaine that he believed one of them had stolen.”].)U.S. v. Rush-Richardson (7/9/2009, 8th Cir. No. 08-2414) 2009 U.S. App. LEXIS 15122: Possession Of Firearm In Furtherance Of Drug Trafficking (18 USC 924(c)): In Relation To Drug Crime As Lesser Included: Court erred in its jury instruction on possession of a firearm in furtherance of a drug crime as the instruction allowed the jury to convict on a lesser finding.
U.S. v. Oronia-Vera (5/18/2009, 8th Cir. No. 08-1338) 565 F3d 1074: Identity Theft – Knowledge Element: Conviction for aggravated identity theft reversed in light of the Supreme Court’s holding in U.S. v. Flores-Figueroa, that convictions under 18 USC 1028A(a) require the Government to show that the defendant knew that the means of identification at issue belonged to another person.
U.S. v. Parks (4/7/2009, 8th Cir. No. 06-4051) 561 F3d 795: Escape vs. Failure To Return: Record was not sufficiently developed to determine whether defendant’s prior conviction for his walkway escape under Mo. Rev. Stat. sec. 575.210 constituted a career-offender-qualifying escape from custody or a non-qualifying failure to return or report to custody, for purposes of the career offender provisions.
U.S. v. Garcia (4/15/2009, 8th Cir. No. 08-2170) 562 F3d 947: Brady/Giglio: Matter remanded for in camera review of Brady/Giglio claim.
U.S. v. Pereyra-Gabino (4/16/2009, 8th Cir. No. 08-2869) 563 F3d 322: Shielding Illegal Aliens (8 USC1324(a)(1)(A)(iii)): Instructions – Jury instructions erroneously failed to require the jury to find that each individual the defendant shielded from detection was in the U.S. illegally and that defendant knew or was in reckless disregard of the fact but instead permitted the jury to “mix and match” the alleged illegal aliens.
U.S. v. Boaz (3/16/2009, 8th Cir. No. 07‑3918) 2009 U.S. App. LEXIS 5349: (1) Arizona conviction for conspiring to commit auto theft is not a predicate violent felony. 2) Hearing necessary as to whether defendant’s prior Arizona conviction for exhibiting a deadly weapon qualified as a predicate violent felony.
U.S. v. Clinkscale (3/17/2009, 8th Cir. No. 08‑1163) 2009 U.S. App. LEXIS 5818: Conviction for motor vehicle theft is not a violent felony, making defendant’s mandatory minimum sentence for three prior violent felony convictions in error.
U.S. v. Brown (3/20/2009, 8th Cir. No. 08‑1378) 2009 U.S. App. LEXIS 5820: Instruction On Possession OF Firearm: Conviction reversed due to erroneous jury instructions concerning possession of a firearm in furtherance of a drug trafficking crime.
U.S. v. Erenas‑Luna (3/23/2009, No. 08‑1855) 2009 U.S. App. LEXIS 6091: Speedy Trial B Post Indictment Delay: District court erred in failing to apply a presumption in defendant’s favor when it analyzed whether defendant suffered any prejudice as a result of the delay.
U.S. v. Gentry (2/9/2009, 8th Cir. No. 07-3361) 555 F3d 659: Doyle Error/Instruction On Possession Of Controlled Substance: 1) Defendant’s post-arrest silence was not a proper subject of examination. 2) Defendant was entitled to a jury instruction of possession of a controlled substance under 21 USC 844.
U.S. v. Gordon (2/24/2009, 8th Cir. No. 08-1734) 2009 U.S. App. LEXIS 3528: Conviction for endangering the welfare of a child is not a “violent felony” within the meaning of the Armed Career Criminal Act (ACCA) 18 USC 924(e)(1).
Sasser v. Norris (1/23/2009, 8th Cir. No. 07-2385) 553 F3d 1121: 1) District court should have granted petitioner’s request for an evidentiary hearing on his mental retardation claim since Atkins v. Virginia (2002) 536 US 304 created a new federal claim not in existence at the time of the proceedings in state court; 2) the existence of a similar claim under state law is irrelevant.
U.S. v. Smiley (1/26/2009, 8th Cir. No. 07-3205) 553 F3d 1137: “Fraud upon the court” which is required to vacate in order to resentence the defendant.
9th Circuit Court of Appeals
Pinholster v. Ayers (12/9/2009, 9th Cir. No. 03-99003) 2009 U.S. App. LEXIS 26850: IAC: Failure To Present Brain Damage To Explain The Defendant’s Behavior – Counsel’s failure to present evidence of petitioner’s brain injury, and its profound effect on his behavior which could have altered the jury’s impressions of his detrimental guilt phase testimony and of his boastful, disrespectful demeanor by indicating an organic basis for his inappropriate expressions and for his tendency to exaggerate his past.
U.S. v. Liera (11/4/2009, 9th Cir. No. 07-50546) 585 F3d 1237: Speedy Arraignment: Police unreasonably delayed defendant’s arraignment before a magistrate judge to conduct a second interrogation in violation of 18 USC 3501(c).
Jones v. Ryan (10/2/2009, 9th Cir. No. 07-99000) 583 F3d 626: Right To A Partisan Defense Expert: |
The Ninth Circuit finds IAC for failure to get a “partisan expert,” that is, an expert confidential to the defense, with an obligation to further the interests of the defense, and who would assist in the evaluation, preparation, and presentation of the defense. There’s an excellent discussion here of the right to such an expert, which may be used to get the needed experts in all our cases, not just death penalty cases.
Libberton v. Ryan (10/2/2009, 9th Cir. No. 07-99024) 583 F3d 1147: IAC: Penalty Phase – Third Party Guilt: Death penalty reversed because counsel failed to call a sufficient number of mitigating witnesses and to pursue evidence of another perpetrator’s primary responsibility for the crime.
U.S. v. Van Alstyne (10/22/3009, 9th Cir. No. 07-50105) 584 F3d 803: Defendant’s mail fraud and money laundering convictions were reversed in part where a transaction that fully refunded one investor’s outlay could not be regarded as a crucial element of the “scheme to defraud.”
Hamilton v. Ayers (9/18/2009, 9th Cir. No. 06-990080 2009 U.S. App. LEXIS 21107: IAC: Death Penalty – Failure To Investigate Mitigation: Trial counsel was constitutionally ineffective for failing to investigate and present to the jury the wealth of classic mitigating evidence that was available to him.
Richter v. Hickman (8/10/2009, 9th Cir. No. 06-15614) 2009 U.S. App. LEXIS 17821: IAC: Failure To Consult Forensic Expert.
U.S. v. Reyes (8/18/2009, 9th Cir. No. 08-10047) 2009 U.S. App. LEXIS 18426: Prosecutorial Misconduct in Making a False Assertion of Material Fact to the Jury in Closing Argument.
U.S. v. Hector (8/18/2009, 9th Cir. No. 08-30271) 2009 U.S. App. LEXIS 18413: Multiplicity: Possession And Receipt Of Pornography: Court erroneously failed to exercise its discretion in determining whether to vacate defendant’s receipt conviction or his possession conviction to avoid double jeopardy concerns.
U.S. v. Harrison (8/19/2009, 9th Cir. No. 08-10391) 2009 U.S. App. LEXIS 18600: Assault (18 USC 111): Definition Of Force: Jury instruction erroneously defined “force” by equating it with physical intimidation.
Holley v. Yarborough (6/16/2009, 9th Cir. No. 08-15104) 568 F3d 1091: Confrontation: Victim’s Prior Claims: Court erred in prohibiting petitioner from introducing evidence that the victim had made prior claims of her own sexual appeal, because such evidence was clearly relevant to impeach the victim.
United States v. Tran (6/24/2009, 9th Cir. No. 07-30270) 568 F3d 1156: Possession To Distribute: Sufficiency Of Evidence: Government failed to prove that Defendant participated in the conspiracy to possess marijuana for distribution.
U.S. v. Osazuwa (5/7/2009, 9th Cir. No. 08-50244) 564 F3d 1169: Underlying Facts Of Prior Conviction Not Admissible Per FRE 608: Defendant’s conviction for assaulting a prison guard reversed, where the District Court erred in admitting evidence of Defendant’s unrelated bank fraud conviction, where the evidence was not admissible under FRE 608, because that rule does not permit the admission of the underlying facts of a prior conviction.
U.S. v. Price (5/21/2009, 9th Cir. No. 05-30323) 566 F3d 900: Brady: Prosecutor Responsible For Oversights Of Investigator: Prosecutor failed to turn over all evidence of a government witness’s criminal history to defense counsel, as required by Brady v. Maryland (1963) 373 US 83, and the prosecutor was responsible for oversights by his criminal investigator.
U.S. v. McFall (3/9/2009, 9thCir. No. 07‑10034) 2009 U.S. App. LEXIS 5448: Hobbs Act: Decreasing a competitor’s chance of winning a contract does not amount to obtaining a transferable asset for oneself within the meaning of the Hobbs Act.
U.S. v. Christensen (3/23/2009, 9thCir. No. 06‑30402) 2009 U.S. App. LEXIS 6480: ACCA: Statutory rape is not a “violent felony” under the Armed Career Criminal Act, because that offense may involve consensual sexual intercourse.
U.S. v. Ferguson (3/27/2009, 9thCir. No. 07‑50096) 2009 U.S. App. LEXIS 6860: Child pornography conviction vacated due to Supreme Court decision [Indiana v. Edwards (2008) 128 SCt 2379] which prescribed a different standard for evaluating a defendant’s mental competency than the one used by the district court.
U.S. v. Cruz (2/10/2009, 9th Cir. No. 07-30384) Jurisdiction For “Indian Country” Prosecutions: Evidence insufficient for prosecution by the federal government under 18 USC 1153.
10th Circuit Court of Appeals
U.S. v. Shipp (12/16/2009, 10th Cir. No. 08-5157) 2009 U.S. App. LEXIS 27439: Retroactivity – Chambers v. United States (2009) ____ US ____ [172 LEd2d 484; 129 SCt 687], applies retroactively on collateral review to convictions that were final at the time the case was decided by the Supreme Court.
U.S. v. Livingston (11/16/2009, 10th Cir. No. 09-6077) 586 F3d 819: Stipulation To Facts – Effect On Appeal: Matter remanded to determine whether, by stipulating to the facts that supported his convictions, defendant voluntarily entered into the stipulation knowing of the likely consequences his stipulation would have upon his appeal.
U.S. v. Robinson (10/20/2009, 10th Cir. No. 08-3120) 583 F3d 1265: Confrontation Of Confidential Informants: Refusal to provide defendant access to a confidential informant’s medical records contravened due process and limitations on cross-examination of the informant violated the Sixth Amendment.
U.S. v. Commanche (8/24/2009,10th Cir. No. 08-2257) 2009 U.S. App. LEXIS 18986: Assault: Improper To Admit Prior Battery Conviction: Because the prior battery convictions bore on defendant’s his intent only if a jury first inferred that he was prone to violence, and the district court abused its discretion by allowing testimony as to the facts underlying the battery convictions.
U.S. v. Hutchinson (7/27/2009, 10th Cir. No. 07-1204) 2009 U.S. App. LEXIS 16776: RICO Instructions: Court’s RICO instructions were adequate because they required that the members of the alleged RICO enterprise shared a common purpose, that they interacted or associated in some way to advance this shared purpose, and that the members of the enterprise so functioned long enough to complete a pattern of racketeering activity.
U.S. v. Hutchinson (7/27/2009, 10th Cir. No. 07-1204) 2009 U.S. App. LEXIS 16776: Multiplicity/Double Jeopardy: Drug Conspiracy And CCE Prosecution: Prosecutions for both drug conspiracy and for participating in a continuing criminal enterprise amounted to double jeopardy.
U.S. v. Torres (6/30/2009, 10th Cir. No. 07-2158) 2009 U.S. App. LEXIS 14473: Brady: Defendant’s drug distribution conviction is reversed where the government failed to disclose evidence of a confidential informant’s work as a DEA informant prior to the drug transaction at issue, and that evidence would have been material to the impeachment of the witness.
U.S. v. Serafin (4/14/2009, 10th Cir. No. 07-8086) 562 F3d 1105: Possession Of Weapon Is Not “Crime Of Violence” (18 USC 924(c)(1)): Possession of an unregistered short-barreled rifle does not constitute a “crime of violence” because mere possession did not create a substantial risk of harm.
Douglas v. Workman (3/26/2009, 10th Cir. No. 01‑6094) 2009 U.S. App. LEXIS 6602: Brady; Davis v. Alaska: Federal habeas petition granted where there was a reasonable probability that the outcome of Petitioner’s trial would have been different had the prosecution not suppressed evidence of a deal made with a prosecution witness.
Taylor v. Workman (1/30/2009, 10th Cir. No. 07-7030) 554 F3d 879:Lesser Included Offenses (LIO): Habeas relief granted based on failure to correctly instruct on lesser-included offense of second-degree murder in first-degree murder prosecution.
U.S. v. Hooks (1/9/2009, 10th Cir. No. 08-7021) 551 F3d 1205: Possession re: vehicles: Even assuming that the defendant’s mere presence in a pickup with four other passengers established proximity, the government failed to show that he had knowledge of or dominion or control over a firearm found on the side of a road which could have been discarded by the passengers in the back of the pickup.
Taylor v. Workman (1/30/2009, 10th Cir. No. 07-7030) 554 F3d 879: Lesser Included Offenses (LIO): Instruction on the lesser-included offense of second-degree murder in state court warranted federal habeas relief.
11th Circuit Court of Appeals
U.S. v. Lee (10/26/2009, 11th Cir. No. 08-14724) 586 F3d 859: Armed Career Criminal – “Walkaway” Escape: A non-violent “walkaway” escape is not a violent felony for purposes of the Armed Career Criminal Act.
U.S. v. Velez (10/26/2009, 11th Cir. No. 09-10199) 586 F3d 875: Money Laundering – Transaction Used To Hire Counsel: Monetary transactions made for the purpose of securing legal representation are exempt from criminal penalties under 18 USC 1957(f)(1).
U.S. v. Bonilla (8/18/2009, 11th Cir. No. 08-12127) 2009 U.S. App. LEXIS 18431: Multiplicity: Wire Fraud: Wire fraud counts of the indictment were multiplicitous and violative of the Double Jeopardy clause.
U.S. v. McIntosh (8/27/2009, 11th Cir. No. 08-15449) 2009 U.S. App. LEXIS 19204: Double Jeopardy: Dismissal After Plea Of Guilty: Defendant may not be indicted again for the same offenses without violating the Double Jeopardy Clause when the government obtained a dismissal of the original indictment after the defendant pleaded guilty to it.
U.S. v. Gomez (8/28/2009, 11th Cir. No. 09-11031) 2009 U.S. App. LEXIS 19330: Identity Theft: Knowledge That Identification Belonged To Actual Person: Court erred by failing to instruct the jury that the word “knowingly” in 18 USC 1028A(a)(1) requires proof that he knew the means of identification belonged to an actual person.
U.S. v. Canty (6/11/2009, 11th Cir. No. 08-10659) 2009 U.S. App. LEXIS 12525: ACCA (18 USC 924(e)): Carrying Concealed Firearm: Carrying a concealed firearm is not a violent felony under the Armed Career Criminal Act (ACCA).
Smith v. Sec’y, Dept. of Corr. (6/30/2009, 11th Cir. No. 07-14173) 2009 U.S. App. LEXIS 14226: Brady: Prosecution did not disclose in the later trial that a witness told the prosecutor that in exchange for testifying again, he wanted help with charges he faced.
U.S. v. Gari (6/30/2009, 11th Cir. No. 08-10014) 2009 U.S. App. LEXIS 14224: Alien Smuggling (8 USC 1324(a)(2)(B)(iii)): Insufficient evidence that defendants lacked prior authorization to enter the United States.
U.S.v. Sienders.(3/6/2009, 11th Cir. No. 07‑13163) 2009 U.S. App. LEXIS 5369: (1) The jury was properly instructed that a quid pro quo was required to convict Defendants of bribery and mail fraud. (2) There was insufficient evidence that one Defendant agreed to the alleged mail fraud scheme.
U.S. v. Harrison (2/19/2009, 11th Cir. No. 08-12636) 2009 U.S. App. LEXIS 3014: ACCA – Willful Fleeing Not A Violent Felony: Willful fleeing is not a “violent felony” under the Armed Career Criminal Act (ACCA) 18 USC 924(e)(1).
Holladay v. Allen (1/30/2009, 11th Cir. No. 06-16026) 2009 U.S. App. LEXIS 2126: Atkins: District court did not clearly err in finding that petitioner had shown he was mentally retarded under the test utilized by the state courts.
D.C. Circuit Court of Appeals
U.S. v. Mouling (3/6/2009, DC Cir. No. 05‑3206) 2009 U.S. App. LEXIS 4535: IAC B Failure To Advise Defendant Of Plea Offer: Counsel Ineffective for failing to advise defendant of the government’s plea offer.
U.S. v. Coleman (1/16/2009, DC Cir. No. 05-3182) 552 F3d 853: Redacting Charging Document: District court plainly erred in reading the unredacted indictment to the jury since it revealed defendant’s prior felony convictions for crimes of violence.
Supreme Court of Florida
Hurst v. State of Florida (9/17/2009, No. SC07-1798) 2009 Fla. LEXIS 1558: IAC: Death Penalty – Failure To Investigate Mitigation.
Parker v. State of Florida (1/22/2009, Fla No. SC06-2176) 2009 Fla. LEXIS 39: IAC/Death Penalty Trial: Counsel failed to fully investigate and present mitigating evidence regarding appellant’s childhood and mental health.
New York Court of Appeals
People v. Colon (11/19/2009, NY No. 162) 2009 NY Slip Op 8477; 2009 N.Y. LEXIS 4048: Prosecutor’s Use Of False Or Misleading Testimony: The prosecutor prejudicially failed to correct a witness’s misleading testimony and compounded these errors by repeating and emphasizing the misinformation during summation
People v. Abney (10/28/2009, NY No. 139-140) 2009 NY Slip Op 7668; 2009 N.Y. LEXIS 3999: Eyewitness Expert – Frye Hearing Required: Judge should have conducted a Frye hearing before making a decision on admissibility.
People v. Bailey (6/11/2009, NY No. 97) 2009 N.Y. LEXIS 1848: Forgery: Knowing Possession Not Sufficient: Defendant’s knowledge that the bills he was carrying were counterfeit was not alone sufficient to hold him criminally liable for possessing a forged instrument, because the government was required to prove his intent to use them.
People v. Almeter (6/24/2009, NY No. 84) 2009 N.Y. LEXIS 2471: Joint Trial Of Felony And Misdemeanor: Notice re: Different Fact Finders: In a joint trial of a misdemeanor and felony it may be that the judge will issue a verdict on the misdemeanor and the jury on the felony. In such a situation the defense should be given notice of this prior to trial.
People v. Buchanan (6/30/2009, NY No. 101) 2009 N.Y. LEXIS 2574: Courtroom Security: Stun Belt: Murder conviction reversed where court required defendant to wear a stun belt during trial without a finding of specific facts justifying the use of such a restraint.
People v. Bauman (3/26/2009, NY No. 38) 2009 N.Y. LEXIS 41: The dismissal of an indictment for depraved indifference assault affirmed, where indictment violated New York statutory requirement that each count of an indictment charge only one offense.
People v. Romeo (2/11/2009, NY No. 7) 2009 N.Y. LEXIS 6: Speedy Trial – Post-Indictment Delay: Lengthy post-indictment delay by prosecution in favor of a Canadian prosecution violated defendant’s constitutional right to a speedy trial.
People v. Rouse (2/11/2009, NY No. 8) 2009 N.Y. LEXIS 7: Speedy Trial: Indictment dismissed where the People did not satisfy their statutory readiness obligation.
People v. Moye (2/19/2009, NY No. 24) 2009 N.Y. LEXIS 24: Prosecution Misconduct – Vouching – Curative Instruction Inadequate: Prosecutor improperly made himself an unsworn witness by vouching remarks in summation which were not excused as fair response to defense provocation. The judges’ limiting instruction failed to eliminate the prejudice.
Texas Criminal Court of Appeals
Hammer v. State (4/8/2009, TX No. PD-0786-08) 2009 Tex. Crim. App. LEXIS 513: Confrontation: Cross-Examination Of Victim – Court abused its discretion by preventing defendant from cross-examining the victim about her alleged prior false rape accusation.
Ex Parte Reedy (4/29/2009, TX No. AP-75,862) 282 SW3d 492: IAC: Waiver: Defendant did not waive his claim of ineffective assistance of counsel.
Layton v. The State of Texas (2/4/2009, Tex No. PD-408-07) 2009 Tex. Crim. App. LEXIS 149: Expert Testimony – Foundation – Use of Prescription Medication In Drunk Driving Prosecution: Without expert testimony to provide the foundation required to admit scientific evidence, the testimony regarding drunk driving defendant’s use of prescription medications was not relevant.
Pollard v. The State of Texas (2/11/2009, Tex No. PD-0363-08) 2009 Tex. Crim. App. LEXIS 233: Witness Retaliation By Threat – Prior Murder Not Relevant: Murder conviction was inadmissible in retaliation-by-threat prosecution to show appellant’s motive because, standing alone, the prior murder did not make any material fact more or less probable.
State of Texas v. Gobert (1/28/2009, Tex No. PD-0202-08) 2009 Tex. Crim. App. LEXIS 138: Miranda: Questioning must stop if suspect conditions talking on the presence of counsel and continued interrogation resulting in a confession, violates the suspects’ Fifth Amendment right to the presence of counsel during custodial interrogation.
Rivas v. The State of Texas (1/28/2009, Tex No. PD-1113-07) 2009 Tex. Crim. App. LEXIS 98: Evidence/Hearsay/Bolstering: Questions to the sexual assault nurse examiner regarding minor victim’s declarations during the SANE exam was improper bolstering.
Supreme Court of Texas
Schmidt v. State (3/11/2009, TX No. PD‑0076‑08) 2009 Tex. Crim. App. LEXIS 320: Assault Offenses As LIO=s Of Retaliation By Threat Charge: Retaliation by threat conviction reversed due to erroneous failure to instruct the jury on the lesser included offenses of assault causing bodily injury and assault by threatening to cause imminent bodily injury.
