Helpful Non-California Cases:
Selected Cases From Federal and Out-of-State Jurisdictions
Federal Courts (January 2006‑December 30, 2006)
Supreme Court Of Nebraska
Supreme Court of New York
New York Court of Appeals
Texas Criminal Court of Appeals
Federal Courts (January 2006-December 30, 2006)
Selected Decisions:
U.S. Supreme Court
Smith v. Texas CERT GTD (10/6/2006, No. 05-11304) ____ US ____ [166 LEd2d 265; 127 SCt 377]. On October 6, 2006, the USSC granted certiorari in this Texas case. The questions presented are:
(1) In Smith v. Texas (2004) 543 US 37 [160 LEd2d 303; 125 SCt 400], this Court summarily reversed the Texas Court of Criminal Appeals and found constitutional error under Penry v. Lynaugh (1989) 492 US 302 [106 LEd2d 256; 109 SCt 2934] (Penry I), and Penry v. Johnson (2001) 532 US 782 [150 LEd2d 9; 121 SCt 1910] (Penry II). Is it consistent with this Court’s remand in this case for the Texas Court of Criminal Appeals to deem the error in petitioner’s case harmless based on its view that jurors were in fact able to give adequate consideration and effect to petitioner’s mitigating evidence notwithstanding this Court’s conclusion to the contrary?
(2) Can the Texas Court of Criminal Appeals, based on a procedural determination that it declined to adopt in its original decision that this Court then summarily reversed, impose on remand a daunting standard of harm (“egregious harm”) to the constitutional violation found by this Court?
The case below is Ex parte Smith (Tex. Crim. App. 2006) 185 SW3d 455.
Abdul-Kabir (fka Cole) v. Quarterman CERT GTD (10/13/2006, No. 05-11284) ____ US ____ [166 LEd2d 307; 127 SCt 432]. On October 13, 2006, the USSC granted certiorari in this Fifth Circuit case. The questions presented are:
(1) Do the former Texas “special issue” capital sentencing jury instructions—which permit jurors to register only a “yes” or “no” answer to two questions, inquiring whether the defendant killed “deliberately” and probably would constitute a “continuing threat to society”—permit constitutionally adequate consideration of mitigating evidence about a defendant’s mental impairment and childhood mistreatment and deprivation, in light of this Court’s emphatic statement in Smith v. Texas (2004) 543 US 37, 48 [160 LEd2d 303; 125 SCt 400], that those same two questions “had little, if anything, to do with” Smith’s evidence of mental impairment and childhood mistreatment)?
(2) Do this Court’s recent opinions in Penry v. Johnson (2001) 532 US 782 [150 LEd2d 9; 121 SCt 1910] (“Penry II“) and Smith, both of which require instructions that permit jurors to give “full consideration and full effect” to a defendant’s mitigating evidence in choosing the appropriate sentence, preclude the Fifth Circuit from adhering to its prior decisions—antedating Penry II and Smith—that reject Penry error whenever the former special issues might have afforded some indirect consideration of the defendant’s mitigating evidence?
(3) Has the Fifth Circuit, in insisting that a defendant show as a predicate to relief under Penry that he suffers from a mental disorder that is severe, permanent or untreatable, simply resurrected the threshold test for “constitutional relevance” that this Court emphatically rejected in Tennard v. Dretke (2004) 542 US 274 [159 LEd2d 384; 124 SC. 2562]?
(4) Where the prosecution, as it did here, repeatedly implores jurors to “follow the law” and “do their duty” by answering the former Texas special issues on their own terms and abjuring any attempt to use their answers to effect an appropriate sentence, is it reasonably likely that jurors applied their instructions in a way that prevented them from fully considering and giving effect to the defendant’s mitigating evidence?
The case below: Cole v. Dretke (5th Cir. 2006) 443 F3d 441.
Ayers v. Belmontes (11/13/2006, No. 05-493) ____ US ____ [166 LEd2d 334; 127 SCt 469] 2006 U.S. LEXIS 8522: California’s factor (k) jury instruction, a general and catchall jury instruction used at the sentencing phase, is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings.
1st Circuit
U.S. v. Pacheco (1st Cir. 1/19/2006, No. 04-1882) 434 F3d 106: Improper for judge to vacate partial directed verdict in favor of defendant.
U.S. v. Hernandez-Rodriguez (1st Cir. 4/6/2006, No. 05-1121) 443 F3d 138: Abuse of discretion for failure to adequately consider new evidence on motion for new trial; remand to different judge.
Healy v. Spencer (1st Cir. 6/27/2006, No. 06-1269) 453 F3d 21: Brady violation was prejudicial.
2nd Circuit
Rodriguez v. Miller (2nd Cir. 2/17/2006, No. 04-6665) 439 F3d 68: Closure order excluding defendant’s mother and brother during the testimony of an undercover officer violated Sixth Amendment right to public trial.
U.S. v. Quattrone (2nd Cir. 3/20/2006, No. 04-5007) 441 F3d 153: (1) “While it may not always be erroneous to fail to give an instruction, a charge which is given must be correct. [Citation.]”]; (2) Instructions must require jury to find that the defendant knew his actions were “likely to affect the . . . proceeding.”
Hanson v. Phillips (2nd Cir. 3/30/2006, No. 04-0940) 442 F3d 789: Defendant did not intelligently and voluntarily plead guilty, as required under Boykin.
Smith v. Hollins (2nd Cir. 5/15/2006, No. 03-2250) 448 F3d 533: State court failed to make the requisite particularized findings necessary to justify the decision excluding defendant’s brother and sister during testimony of two undercover officers, unless they consented to sitting behind a screen.
U.S. v. Gaines (2nd Cir. 7/20/2006, No. 04-5616) 457 F3d 238: (1) Disapproving instructions that highlight a testifying defendant’s “deep personal interest” in the outcome of a trial and recommending that a witness’s interest in the outcome of the case be addressed in the court’s general charge concerning witness credibility; if the defendant has testified, the trial court should tell the jury to evaluate the defendant’s testimony in the same way it judges the testimony of other witnesses; (2) Informing jury that testifying defendant has a “motive to lie” dilutes the presumption of innocence because it is a “guilt-assuming hypothetical”; (3) Jury should be instructed to judge the testimony of the defendant in the same manner as any other witness.
U.S. v. Vitale (2nd Cir. 8/1/2006, No. 04-4703) 459 F3d 190: Conviction of five counts of bank fraud is remanded for hearing on issue of possible juror bias after revelation of a professional relationship between the juror, the juror’s husband, and the prosecutor’s husband.
Disimone v. Phillips (2nd Cir. 8/22/2006, No. 05-6893) 461 F3d 181: Matter remanded for Brady hearing.
U.S. v. Olmeda (2nd Cir. 8/29/2006, No. 05-4331) 461 F3d 271: New York federal indictment for unlawful ammunition possession is barred by double jeopardy where defendant earlier pleaded guilty to a North Carolina federal indictment for ammunition possession.
Taveras v. Smith (2nd Cir. 9/11/2006, No. 05-5579) 463 F3d 141: Indigent former fugitive returned to state custody was denied his constitutional right to counsel and right to trial transcripts.
U.S. v. Rangolan (2nd Cir. 9/21/2006, No. 04-5126) 464 F3d 321: Criminal contempt judgment reversed because defendant’s misbehavior did not occur in, or sufficiently near, the court for 18 USC 401(1) to apply.
3rd Circuit
U.S. v. Jackson (3rd Cir. 4/5/2006, No. 05-1454) 443 F3d 293: Possession of a controlled substance with intent to distribute under 21 USC 841(a)(1) is a lesser-included offense of possession of a controlled substance with intent to distribute within 1,000 feet of a school 21 USC 860(a).
Rolan v. Vaughn (3rd Cir. 4/18/2006, No. 04-4322) 445 F3d 671: IAC for failure to investigate self-defense witnesses.
U.S. v. Jones (3rd Cir. 6/28/2006, No. 05-3001) 452 F3d 223: (1) Defendant did not express a clear and unequivocal desire to proceed pro se; (2) Waiver of right to counsel was not knowingly and intelligently waived.
Harrington v. Gillis (3rd Cir. 7/11/2006, No. 02-2419) 456 F3d 118: Counsel ineffective for failing to file notice of appeal.
U.S. v. Brownlee (3rd Cir. 7/18/2006, No. 04-4134) 454 F3d 131: (1) Error to exclude expert testimony regarding the reliability of the eyewitness identification evidence]; (2) Miranda violation.
U.S. v. Hull (3rd Cir. 7/28/2006, No. 05-2028) 456 F3d 133: Mere “possession” of a pipe bomb does not qualify as a “Federal crime of violence” under 18 USC 842(p)(2)(A).
U.S. v. Farnsworth (3rd Cir. 8/8/2006, No. 06-1425) 456 F3d 394: Circuit court lacked jurisdiction and a writ of mandamus was not appropriate to review an allegedly erroneous pre-trial oral ruling, in which a district court explained how it intended to instruct a jury with respect to the crime of attempted evasion of payment of a tax.
Conchatta Inc. v. Miller (3rd Cir. 8/15/2006, No. 05-1803) 458 F3d 258: A Pennsylvania Liquor Code statute and a regulation that prohibits “lewd” entertainment at any licensed establishment are facially invalid because they are substantially overbroad, punishing a significant amount of protected speech in relation to their legitimate scope.
U.S. v. Williams (3rd Cir. 8/18/2006, No. 05-3772) 458 F3d 312: Federal Rule of Evidence 404(b)’s prohibition against the introduction of bad acts evidence to show propensity applies regardless of whether the evidence is offered against the defendant or a third party.
U.S. v. Gunter (3rd Cir. 9/11/2006, No. 05-2952) 462 F3d 237: Sentence for possession with intent to distribute crack cocaine is vacated where court erroneously believed it could not sentence below the applicable Guidelines range for offenses involving crack cocaine.
Outten v. Kearney (3rd Cir. 9/28/2006, No. 04-9003) 464 F3d 401: Failure to conduct a reasonable investigation of defendant’s background in capital case was IAC.
U.S. v. Huggins (3rd Cir. 10/20/2006, No. 05-4054) 467 F3d 359: District court improperly enhanced defendant’s sentence per 21 USC 841(b)(1)(B) by considering a juvenile adjudication of delinquency under Pennsylvania law to be a “prior conviction.”
U.S. v. Jones (3rd Cir. 12/28/2006, No. 05-4898) 2006 U.S. App. LEXIS 31926: Health care fraud conviction reversed where the government did not establish any type of misrepresentation by defendant in connection with the delivery of, or payment for, health care benefits, items, or services as required by 18 USC 1347(2).
4th Circuit
U.S. v. Stitt (4th Cir. 3/24/2006, No. 05-10, 05-11) 441 F3d 297: (1) Counsel had actual conflict of interest that adversely affected representation of defendant during penalty phase; (2) Counsel failed to ask the court to appoint an expert qualified to testify about defendant’s propensity for future dangerousness.
U.S. v. Milam (4th Cir. 4/6/2006, No. 04-4224, 04-4225) 443 F3d 382: District court violated defendants’ Sixth Amendment rights when it relied on facts stated in the presentence report to enhance the defendants’ sentences beyond the statutory maximum.
Conaway v. Polk (4th Cir. 7/11/2006, No. 04-20) 453 F3d 567: Remanded for an evidentiary hearing on juror bias claim.
U.S. v. Bradley (4th Cir. 7/25/2006, No. 02-4390, 02-4393, 02-4402) 455 F3d 453: Judge impermissibly participated in plea negotiations and repeatedly encouraged defendants to plead guilty.
U.S. v. Hurwitz (4th Cir. 8/22/2006, No. 05-4474) 459 F3d 463: Good Faith Defense [18 USC 841]—Court erroneously failed to include a good-faith instruction in connection with the 21 USC 841 charges and by specifically instructing the jury that it could not consider defendant’s good faith as to any of the drug-trafficking charges.
5th Circuit
U.S. v. Hardin (5th Cir. 1/23/2006, No. 05-50312) 437 F3d 463: Error to deny defendant’s request for expert appointment under the Criminal Justice Act.
U.S. v. Cuellar (5th Cir. 2/22/2006, No. 05-10065) 441 F3d 329: Insufficient evidence of international money laundering (18 USC 1956(a)(2)(B)(I).
Tennard v. Dretke (5th Cir. 3/1/2006, No. 00-20915) 442 F3d 240: Defendant’s jury did not have an adequate vehicle during the capital sentencing phase to give mitigating effect to evidence of defendant’s low intelligence quotient.
Graves v. Dretke (5th Cir. 3/3/2006, No. 05-70011) 442 F3d 334: Brady violation.
U.S. v. Virgil (5th Cir. 3/28/2006, No. 05-60214) 444 F3d 447: Faretta violations at sentencing is reversible per se (structural error).
U.S. v. Ingles (5th Cir. 4/11/2006, No. 05-30155) 445 F3d 830: Insufficient evidence to support defendant’s mail fraud convictions.
Virgil v. Dretke (5th Cir. 4/18/2006, No. 03-21129) 446 F3d 598: IAC for failure to challenge certain jurors.
U.S. v. Elrawy (5th Cir. 4/26/2006, No. 04-20123) 448 F3d 309: Only aliens who were admitted to the U.S. on a non-immigrant visa and maintain lawful “nonimmigrant” status can be prosecuted under 18 USC 922(g)(5)(B), which criminalizes being an alien admitted under a nonimmigrant visa in possession of a firearm.
U.S. v. Williams (5th Cir. 5/10/2006, No. 05-20430) 449 F3d 635: District court erred when it entered a judgment when there was no verdict.
U.S. v. Alvarez (5th Cir. 6/1/2006, No. 04-51006) 451 F3d 320: The congressional definition of playground must be proven as an element of a 21 USC 860(a) offense involving drug activity “within 1000 feet of a playground.”
U.S. v. Brown (5th Cir. 8/1/2006, No. 05-20319) 459 F3d 509: Conspiracy and wire-fraud convictions reversed because the government’s theory of fraud relating to the deprivation of honest services was flawed.
Martinez-Aguero v. Gonzales (5th Cir. 8/7/2006, No. 05-50472) 459 F3d 618: Aliens stopped at the border have a constitutional right to be free from false imprisonment and the use of excessive force by law enforcement personnel.
U.S. v. Chenowith (5th Cir. 8/8/2006, No. 05-20636) 459 F3d 635: Defendant’s conviction and sentence for being a felon in possession of a firearm is vacated pursuant to a claim that the district court erred in denying his motion to dismiss his indictment based on a claim that his state civil rights had been restored.
U.S. v. Jimenez (5th Cir. 9/12/2006, No. 04-51225) 464 F3d 555: Confrontation Clause violation for precluding defense from asking government witness, a narcotics officer, where specifically he was located when he allegedly observed the drug sale.
U.S. v. Hoover (5th Cir. 10/10/2006, No. 05-30564) 467 F3d 496: Trial court constructively amended defendant’s indictment by giving jury instructions allowing conviction based on false statement not alleged in the indictment.
U.S. v. Nolen (5th Cir. 12/12/2006, No. 05-40859) 2006 U.S. App. LEXIS 30521: The district court erred in failing to demonstrate on the record that, in revoking the pro hac vice admission of defendant’s retained counsel, it first balanced the Sixth Amendment rights of the defendant against the societal need for ethical practice and respect for the judicial system and the judges and courts thereof.
U.S. v. Penaloza-Duarte (5th Cir. 12/20/2006, No. 05-30881) 2006 U.S. App. LEXIS 31299: Conviction for aiding and abetting the possession of methamphetamine with the intent to distribute reversed where the circumstantial evidence was in a state of equipoise since it gave equal support to defendant’s theory that he was a trusted confidential informant, with no criminal convictions, who wanted to protect his cover and who found himself a passenger in an automobile very far from home with no affirmative association in the criminal venture.
6th Circuit
Franklin v. Anderson (6th Cir. 1/9/2006, No. 03-3636, 03-3697) 434 F3d 412: Appellate counsels’ failure to raise a biased juror issue on appeal was prejudicial.
U.S. v. DeCarlo (6th Cir. 1/17/2006, No. 04-5813) 434 F3d 447: Conviction of both greater and lesser included offense violates double jeopardy; traveling in interstate commerce for the purposes of engaging in illicit sexual conduct (18 USC 2423(b)) is a lesser included offense of traveling in interstate commerce with the intent to have sex with a child younger than 12 years old (18 USC 2241(c)).
U.S. v. Blood (6th Cir. 1/24/2006, No. 04-5101, 04-5261) 435 F3d 612 [18 USC 513(a), which prohibits possession of counterfeit and forged securities “with intent to deceive another,” requires intent to deceive the purported issuers of the fraudulent securities in question].
U.S. v. Foreman (6th Cir. 2/8/2006, No. 04-2450) 436 F3d 638: Crime of violence sentence enhancement requires a serious potential risk of physical injury to another (U.S. Sentencing Guidelines Manual §4B1.2(a).
Brown v. Palmer (6th Cir. 3/14/2006, No. 05-1320) 441 F3d 347: Insufficient evidence of aiding and abetting robbery and carjacking.
Van Hook v. Anderson (6th Cir. 4/18/2006, No. 03-4207) 444 F3d 830: Miranda violation after defendant requested counsel.
Fulcher v. Motley (6th Cir. 4/18/2006, No. 03-6216) 444 F3d 791: Admission of statements made by defendant’s girlfriend, who later became his wife, violated his rights under the Confrontation Clause of the Sixth Amendment.
U.S. v. Sanders (6th Cir. 6/29/2006, No. 04-4540) 452 F3d 572: Sentencing delay as violation of due process.
Dickerson v. Bagley (6th Cir. 7/7/2006, No. 04-4277) 453 F3d 690: IAC for failing to conduct an adequate mitigation investigation.
Pickering v. Gonzales (6th Cir. 7/17/2006, No. 03-3928) 454 F3d 525: INS did not prove by clear, unequivocal, and convincing evidence that petitioner’s conviction remained valid for immigration purposes.
U.S. v. Veach (6th Cir. 8/1/2006, No. 05-6268) 455 F3d 628: A conviction for resisting a federal law enforcement officer and threatening to assault and murder two federal law enforcement officers with intent to impede the performance of their official duties (18 USC 115(a)(1)(B)) reversed in part as to the counts for threatening officers where the district judge improperly restricted defendant’s ability to present a diminished capacity defense to a specific-intent crime.
Getsy v. Mitchell (6th Cir. 8/2/2006, No. 03-3200) 456 F3d 575: A death sentence violates Furman, Enmund, and Morrison in that its imposition was arbitrary and disproportionate and resulted in inconsistent verdicts.
U.S. v. Lopez-Medina (6th Cir. 8/25/2006, No. 05-5891) 461 F3d 724: Court erroneously admitted evidence of the criminal histories of defendant’s acquaintances, and permitted dual fact and expert witness testimony without a cautionary instruction to the jury.
Bell v. Bell (6th Cir. 8/25/2006, No. 04-5523) 460 F3d 739: Prosecution withheld material impeachment information regarding a witness in violation of Brady v. Maryland (1963) 373 U.S. 83.
Williams v. Anderson (6th Cir. 8/28/2006, No. 04-3515/3585) 460 F3d 789: Death sentence was imposed in violation of the constitution, as his trial attorney rendered ineffective assistance of counsel by failing to investigate and present mitigation evidence.
Dando v. Yukins (6th Cir. 8/30/2006, No. 04-1691) 461 F3d 791: Trial counsel was ineffective for failing to properly investigate a duress defense based on Battered Woman’s Syndrome.
U.S. v. Turner (6th Cir. 8/31/2006, No. 05-6326, 05-6339) 459 F3d 775: Defendant’s conduct, as alleged in the indictment, could not be prosecuted under the mail fraud statute using either the honest services theory or salary theory of prosecution.
U.S. v. Turner (6th Cir. 8/31/2006, Nos. 05-6326, 05-6339) 459 F3d 775: Mail fraud and conspiracy to commit mail fraud convictions are reversed because defendant’s conduct, as alleged in the indictment, could not be prosecuted under the mail fraud statute using either the honest services theory or salary theory of prosecution.
Williams v. Anderson (6th Cir. 8/28/2006, Nos. 04-3515 / 04-3585) 460 F3d 789: Death sentence violated 8th Amendment where trial attorney rendered ineffective assistance of counsel by failing to investigate and present mitigation evidence.
Dyer v. Bowlen (6th Cir. 8/30/2006, No. 04-5478) 465 F3d 280: Parole board’s retroactive application of new parole provisions violated the Ex Post Facto Clause of the constitution.
U.S. v. Harris (6th Cir. 9/15/2006, No. 05-3419) 2006 U.S. App. LEXIS 23456: Remand to consider breach of plea agreement by prosecutor.
U.S. v. Carter (6th Cir. 9/18/2006, No. 05-6129) 463 F3d 526: Improper to require sex-offender treatment unless it is reasonably related to the instant offense or defendant’s criminal history.
U.S. v. Shaw (6th Cir. 09/26/2006, No. 05-6110) 464 F3d 615: Defendant’s confessions were not sufficiently voluntary to eliminate the taint of the illegality of his arrest.
U.S. v. Turner (6th Cir. 10/17/2006, No. 05-6326, 05-6339) 459 F3d 775: Mail fraud charges reversed where defendant’s conduct, as alleged in the indictment, could not be prosecuted using either an “honest services” or “salary” theory of prosecution under the mail fraud statute (18 USC 1341).
Apanovitch v. Houk (6th Cir. 10/19/2006, No. 94-3117) 466 F3d 460: State’s apparent failure to provide potentially exculpatory materials to defendant including untested nature of certain DNA evidence was Brady violation.
Spisak v. Mitchell (6th Cir. 10/20/2006, No. 03-4034) 465 F3d 684: 1) Petitioner’s trial counsel rendered ineffective assistance during the mitigation phase of his trial; 2) Unanimity and “acquittal-first” jury instructions infringed petitioner’s constitutional rights.
Spisak v. Mitchell (6th Cir. 10/20/2006) 465 F3d 684: The trial court erred in instructing the jury that it had to determine first that the State failed to prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors before considering the two possible life imprisonment sentences. Additionally, the jury was not instructed that individual jurors could consider mitigating factors despite a lack of agreement among the jurors as to the presence of that factor. This error required penalty reversal under Mills v. Maryland and McKoy v. North Carolina.
Note: The trial judge seems to have mistakenly believed the penalty choice was analogous to a guilt phase in which the jury is instructed on lesser included offenses. At guilt phase, the prosecution is entitled to an instruction that the jury may not convict the defendant of a lesser included offense unless they unanimously acquit the defendant of the charged offense. (See, e.g., CALCRIM 640; CALJIC 8.75. Mills and McKoy preclude an analogy between mitigation and a lesser included offense.)
Stewart v. Wolfenbarger (6th Cir. 11/9/2006, No. 04-2419) 468 F3d 338: Ineffective assistance of trial counsel for failing to follow Michigan’s procedural rules in preparing the alibi notice, resulting in the exclusion of two of three alibi witnesses. Petitioner was prejudiced even though one alibi witness testified, because the excluded testimony was not cumulative. “Rather than one alibi witness who had been impeached, Petitioner would have had two more credible witnesses who would have supported that he could not have committed the murder.” Additionally, after the witnesses had been excluded, the prosecution emphasized the existence of two more potential witnesses in cross-examining the one alibi witness who testified. The jury would naturally wonder why these witnesses did not corroborate the alibi, and would likely find the alibi “dubious” as a result.
Stewart v. Wolfenbarger (6th Cir. 11/9/2006, No. 04-2419) 468 F3d 338: IAC for failure to contact potential alibi witnesses.
Joseph v. Coyle (6th Cir.11/9/2006, Nos. 05-3111 / 05-3113 ) 469 F3d 441: The Sixth Circuit grants habeas relief as to penalty based on insufficiency of the evidence to prove that petitioner personally inflicted the death blows, as required under Ohio law where a defendant and a coconspirator are both present at the time and place of the murder. In petitioner’s case, there was no evidence as to which participant inflicted the two fatal stab wounds; the prosecution conceded this point in argument to the jury.
Joseph v. Coyle (6th Cir.11/9/2006, Nos. 05-3111 / 05-3113 ) 469 F3d 441: Effective assistance requires an adequate factual investigation; “it can hardly be doubted that defense lawyers have a constitutional obligation to investigate and understand the law as well.”
U.S. v. Sandles (6th Cir. 11/27/2006, No. 02-2466, 02-2492) 469 F3d 508: A conviction for bank robbery (18 USC 2113) is reversed for failure to prove that the bank’s deposits were insured by the FDIC at the time of the robbery, a required element of the charge.
James v. Brigano (6th Cir. 11/30/2006, No. 05-4003) 470 F3d 636: Trial judge erroneously failed to inquire as to the reasons for defendant’s expressed dissatisfaction with counsel and improperly allowed defendant to waive right to appointed counsel.
Lyell v. Renico (6th Cir. 12/1/2006, No. 04-1106) 2006 U.S. App. LEXIS 29496: Trial judge’s conduct violated petitioner’s due-process right to a fair trial by coercing the jury into reaching a guilty verdict by improperly polling the jury and exhibited bias and partiality.
Eddleman v. McKee (6th Cir. 12/14/2006, No. 05-1493) 2006 U.S. App. LEXIS 30629: When a state court has found an error to be harmless, the standard of review on collateral review is whether the state court’s harmless-error decision was contrary to, or an unreasonable application of, the clearly established federal rule that a trial error is harmless only if it is harmless beyond a reasonable doubt.
7th Circuit
Van Patten v. Deppisch (7th Cir. 1/24/2006, No. 04-1276) 434 F3d 1038: Physical absence of defendant’s counsel at his plea hearing, which was conducted with his counsel via speakerphone, constituted a structural defect under Cronic.
U.S. v. Vallery (7th Cir. 2/7/2006, No. 05-2251) 437 F3d 626: Defendant’s sentence as a misdemeanant for an assault conviction is affirmed over the government’s contention that an indictment properly alleged a felony rather than a misdemeanor.
Adams v. Bertrand (7th Cir. 6/30/2006, No. 05-1573) 453 F3d 428: IAC for failing to locate and talk to potential defense witness.
Santos v. U.S. (7th Cir. 8/25/2006, No. 04-4221) 461 F3d 886: Court declined to overturn U.S. v. Scialabba (7th Cir. 2002) 282 F3d 475, which defined “proceeds” to mean net income, as opposed to gross income.
U.S. v. Cunningham (7th Cir. 8/29/2006, No. 05-1515) 462 F3d 708: Admission of irrelevant evidence had the effect of improperly bolstering the credibility of the government’s case in the eyes of the jury.
U.S. v. Cunningham (7th Cir. 8/29/2006, No. 05-1515) 462 F3d 708: Conspiracy conviction reversed due to admission of irrelevant evidence that bolstered the credibility of the government’s case in the eyes of the jury, and the error was not harmless.
Stanley v. Bartley (7th Cir. 10/17/2006, No. 06-2184) 465 F3d 810: IAC for failure to interview witnesses prior to trial.
U.S. v. Taylor (7th Cir. 12/20/1006, No. 05-3819) 2006 U.S. App. LEXIS 31303: Jury’s special finding that defendant possessed marijuana with the intent to manufacture more than 1000 marijuana plants was based solely on inadmissible hearsay.
8th Circuit
U.S. v. Staples (8th Cir. 1/23/2006, No. 03-3617) 435 F3d 860: Insufficient evidence to sustain the bank fraud convictions against defendants.
Weaver v. Bowersox (8th Cir. 2/16/2006, No. 03-2880, 03-2938) 438 F3d 832: Inflammatory remarks by prosecutor.
U.S. v. Thunder (8th Cir. 2/22/2006, No. 04-3780) 438 F3d 866: Denial of right to public trial to close the courtroom during the testimony of the child victims in the case.
U.S. v. Gamboa (8th Cir. 3/3/2006, No. 03-2196) 439 F3d 796: Firearm conviction violated Double Jeopardy Clause.
U.S. v. Johnson (8th Cir. 3/9/2006, No. 05-2146) 439 F3d 884: Child pornography: district court violated FRE 404(b) by admitting stories in defendant’s possession about the rape of two teenage girls.
U.S. v. Ollie (8th Cir. 3/31/2006, No. 05-2503) 442 F3d 1135: Miranda: prosecution must prove, by a preponderance of the evidence, that the officer’s failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda.
U.S. v. Lopez (8th Cir. 4/17/2006, No. 04-2254) 443 F3d 1026: Conspiracy: “slight evidence rule” rejected; government must prove defendant was a member of the conspiracy.
U.S. v. Lockwood (8th Cir. 5/4/2006, No. 05-3247) 446 F3d 825: Insufficient evidence that defendant was convicted of a prior sex offense (compare PC 288 and 18 USC 2246.
U.S. v. Helder (8th Cir. 6/26/2006, No. 05-3387) 452 F3d 751: Attempted violation of using a facility of interstate or foreign commerce to attempt to entice a minor to engage in illegal sexual activity (18 USC 2422(b)) is a lesser included offense if there is not actual minor victim.
U.S. v. Black Lance (8th Cir. 6/30/2006, No. 05-3117) 454 F3d 922: Double Jeopardy Clause precludes conviction after order of acquittal.
U.S. v. Scofield (8th Cir. 1/4/2006, 05-1576, No. 05-1577) 433 F3d 580: Evidence insufficient to support conviction for distribution of methamphetamine.
U.S. v. Cook (8th Cir. 7/31/2006, No. 05-3731) 454 F3d 938: Defendant’s four prior drug convictions properly excluded as too remote under Rule 404(b) of the Federal Rules of Evidence and unfairly prejudicial under Rule 403.
U.S. v. Cacioppo (8th Cir. 8/22/2006, No. 04-3587, 04-4149, 04-3588, 04-3713) 460 F3d 1012: The mens rea requirement for 18 USC 1027 requires proof that a defendant “conceal[ed], cover[ed] up, or fail[ed] to disclose” facts that they knew they were required to disclose, and that they knew that they were obliged to disclose them.
U.S. v. Francis (8th Cir. 9/8/2006, No. 05-3703) 462 F3d 810: A conviction for being a felon in possession of a firearm is reversed and remanded for resentencing where defendant, a lifelong gun enthusiast and renowned firearms expert, constructively possessed firearms in a preexisting family gun business’s vault, and thus, was subject to a ten-level enhancement pursuant to U.S.S.G. section 2K2.1(b)(1).
Rahn v. Hawkins (8th Cir. 9/22/2006, No. 05-3329) 464 F3d 813: Jury instructions that only discussed excessive force in a general way did not adequately inform the jury about when a police officer may use deadly force.
Niederstadt v. Nixon (8th Cir. 10/17/2006, No. 05-4329) 465 F3d 843: Missouri Supreme Court violated defendant’s right to due process as neither the plain language of the statute nor state law at the time of defendant’s conduct defined “forcible compulsion” as encompassing his acts.
9th Circuit
U.S. v. Alferahin (9th Cir. 1/11/2006, 04-10590) 433 F3d 1148: (1) Procuring naturalization contrary to law (18 USC 1425(a)): jury instructions must include materiality as an element; (2) Omission of element affects defendant’s substantial rights if the element is contested.
U.S. v. Williams (9th Cir. 1/30/2006, No. 04-50182) 435 F3d 1148: Miranda violation.
Smith v. Mitchell (9th Cir. 2/9/2006, No. 04-55831) 437 F3d 884: Assault on child causing death: insufficient evidence that defendant caused the child’s death.
U.S. v. Lopez-Perera (9th Cir. 2/21/2006, No. 05-50102) 438 F3d 932: An alien’s physical presence in a port of entry does not satisfy the element of the crime of being illegally or unlawfully in the United States in possession of firearm (18 USC 922(g)(5)(A)).
U.S. v. Bear (9th Cir. 2/24/2006, No. 04-50161) 439 F3d 565: (1) Plain error to not, sua sponte, give public authority defense instruction (see also United States v. Burt (9th Cir. 1998) 143 F3d 1215, 1218 (plain error to give an inaccurate jury instruction because prior case law established the instruction’s proper parameters); (2) Presence of instruction on a defense in the circuit’s model instructions as fact in requiring sua sponte instruction.
Landrigan v. Schriro (9th Cir. 3/8/2006, No. 00-99011) 441 F3d 638: IAC in capital trial.
U.S. v. Ogles (9th Cir. 3/10/2006, No. 03-10439, 04-10069) 440 F3d 1095: Judgment of acquittal is a ruling that the evidence was “legally insufficient to sustain a conviction,” and thus, the government’s appeal was barred by the Double Jeopardy Clause.
Clark v. Brown (9th Cir. 3/17/2006, No. 02-99007) 450 F3d 898: (1) Due Process Clause violated by faulty death eligibility special circumstance instruction on felony murder; (2) Due Process Clause violated by retroactive application of new interpretation of case law.
U.S. v. Ligon (9th Cir. 3/21/2006, No. 04-10495, 04-10524) 440 F3d 1182: Theft (18 USC 641): property taken must have “value.”
U.S. v. Williams (9th Cir. 3/21/2006, No. 05-30071) 441 F3d 716: Mail fraud (18 USC 1341 and 18 USC 1343: “intangible rights” theory applies to private-sector fraud, at least where the defendant has a fiduciary duty to the victim.
U.S. v. Simpson (9th Cir. 3/27/2006, No. 04-10363) 442 F3d 737: Restoration of civil rights as defense to charge of being a felon in possession of a firearm (18 USC 922(g)(1)).
U.S. v. Biggs (9th Cir. 3/31/2006, No. 04-50613) 441 F3d 1069: Self-defense: does not require showing of “no reasonable alternatives to the use of force.”
U.S. v. Piccolo (9th Cir. 4/3/2006, No. 04-10577) 441 F3d 1084: Escape is not necessarily a crime of violence.
Vasquez-Ramirez v. US Dist. Court for the S. Dist. of California (9th Cir. 4/6/2006, No. 04-75715) 443 F3d 692: FRCP 11 requires the judge to accept the defendant’s guilty plea even if the judge feels a prosecutor’s charging decision was too aggressive or too lenient.
Jones v. City of Los Angeles (9th Cir. 4/14/2006, No. 04-55324) 444 F3d 1118: The Eighth Amendment prohibits criminalization of involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the city.
U.S. v. Bahamonde (9th Cir. 4/25/2006, No. 04-50618) 445 F3d 1225: (1) Failure to provide reciprocal discovery; (2) Sixth Amendment: Excluding agent’s testimony without weighing countervailing interests.
U.S. v. Rosenthal (9th Cir. 4/26/2006, No. 03-10307, 03-10370) 445 F3d 1239: Juror misconduct: seeking advice from attorney.
U.S. v. Arreola (9th Cir. 4/26/2006, No. 04-10504) 446 F3d 926: 18 USC 924(c)(1)(A), criminalizing the use of a firearm during the commission of a drug trafficking crime, defines a single offense.
U.S. v. Rios (9th Cir. 6/2/2006, No. 05-50000) 449 F3d 1009: Expert testimony that drug traffickers generally use firearms to further their drug crimes, standing alone, is not sufficient to establish that a firearm was possessed in furtherance of a particular drug crime (18 USC 924(c)(1)(A)).
Boyd v. Newland (9th Cir. 6/26/2006, No. 03-17098) 455 F3d 897: In light of plausible Batson claim, defendant has right to complete voir dire transcript and a full comparative analysis of the venire.
Hoffman v. Arave (9th Cir. 7/5/2006, No. 02-99004) 455 F3d 926: IAC during the plea bargaining phase.
United States v. Beng-Salazar (9th Cir. 7/6/2006, No. 04-50518) 452 F3d 1088: Defendant’s timely Sixth Amendment objections, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), were sufficient to preserve United States v. Booker (2005) 543 U.S. 220 challenge to the court’s imposition of sentence using the formerly mandatory Guidelines.
In re Kenna (9th Cir. 7/6/2006, No. 06-73352) 453 F3d 1136: Crime victim failed to show that he was entitled to disclosure under the Crime Victims Rights Act (18 USC 3771) to defendant’s entire presentence report, which is confidential under the traditional “ends of justice” test. See United States v. Anzalone (9th Cir. 1989) 886 F2d 229, 233.
In re Mikhel (9th Cir. 7/7/2006, No. 06-73376) 453 F3d 1137: Victim-witness may only attend trial under Victim’s Rights Act if judge finds that his/her testimony would not be “materially altered.”
Roy v. Lampert (9th Cir. 7/12/2006, No. 04-35514) 455 F3d 945: Petitioners entitled to evidentiary hearing regarding claim that statute of limitations should be equitably tolled because they were transferred to a prison that, they alleged, had a “woefully deficient law library.”
United States v. Estrada (9th Cir. 7/14/2006, No. 05-10500) 453 F3d 1208: 21 USC 841(c) requires the government to prove (1) that the defendant knew he possessed a substance with knowledge or reasonable cause to believe that the substance would be used to manufacture a controlled substance, and (2) that the substance was in fact a listed chemical. The section does not require the government to prove that the defendant knew that he possessed a certain chemical.
United States v. Lyons (9th Cir. 7/19/2006, No. 04-50157) 454 F3d 968: Court erred in treating Sentencing Guidelines as mandatory and in imposing upward adjustment based on facts (amount of loss) not proven to jury.
United States v. Feingold (9th Cir. 7/21/2006, No. 05-10037) 454 F3d 1001: Improper to instruct jurors to convict licensed practitioner under 21 USC 841(a) based solely on a finding of malpractice, intentional or otherwise.
United States v. Cortez-Rivera (9th Cir. 7/24/2006, No. 05-50207) 454 F3d 1038: Instruction that tells grand jury that “when deciding whether or not to indict, you should not be concerned about punishment in the event of conviction; judges alone determine punishment,” did not violate grand jury’s independence because term “should” makes the instruction permissive rather than mandatory.
Lara v. Ryan (9th Cir. 8/1/2006, No. 05-16055) 455 F3d 1080: Improper implied-malice instruction on attempted murder (People v. Lee (1987) 738 P2d 752, 754 [only a finding of express malice will support a jury verdict for attempted murder]) did not prejudice petitioner where court could determine with “absolute certainty” that jury convicted under proper theory.
Stark v. Hickman (9th Cir. 8/1/2006, No. 03-17241) 455 F3d 1070: Federal due process violated at California state trial for murder when trial court instructed jury during guilt phase of bifurcated NG/NGI trial that defendant was to be presumed “conclusively sane.” Here the defendant had put his mental state at issue during the guilt phase, and judge’s instruction lowered prosecution’s burden of proof, violating Sandstrom v. Montana (1979) 442 U.S. 510, and Francis v. Franklin (1985) 471 U.S. 307.
Alberni v. McDaniel (9th Cir. 8/9/2006, No. 05-15570) 458 F3d 860: Matter remanded for an evidentiary hearing to determine whether defendant’s right to conflict-free counsel was violated by his trial counsel’s cross-examination of a prosecution witness who had been his client.
Hovey v. Ayers (9th Cir. 8/11/2006, No. 03-99001) 458 F3d 892: District court erred in concluding that a deficient performance of counsel in the penalty phase did not prejudice petitioner.
Hovey v. Woodward (Ayers) (9th Cir. 8/11/2006, No. 03-99001) 458 F3d 892: Counsel’s failure to investigate petitioner’s mental condition at the time of the murder and to adequately prepare his penalty-phase expert witness sufficiently undermined confidence in death verdict so as to require reversal of penalty phase. Counsel failed to provide crucial psychiatric records to his testifying expert, and failed to give him information regarding an unrelated kidnapping, which made the expert look “ill-prepared and foolish.”
United States v. Hartz (9th Cir. 8/17/2006, No. 05-30134) 458 F3d 1011: Jury instructions did not constructively amend indictment, thus allowing the jury to convict him of crimes that the grand jury did not charge. The instructions were not a constructive amendment, but simply a variance.
United States v. Johnson (9th Cir. 8/29/2006, No. 05-10708) 459 F3d 990: There is no “innocent possession” defense that would excuse a defendant for being a felon in possession of a firearm if he obtained it innocently and his possession was transitory.
United States v. Ruiz (9th Cir. 8/30/2006, No. 04-10308) 462 F3d 1082: Evidence insufficient to prove possession of firearms in furtherance of drug trafficking crime where firearms were found in loft area, in main part of residence, in garage and in stairwell of main part of the residence and no fingerprint evidence linked either defendant to the firearms. Not even the co-conspirators were linked to the weapons. Government’s argument that “somebody in that laboratory must have possessed the firearms” was not enough to “leap to that conclusion absent proof of possession of the firearms by at least one of the co-conspirators.” Note that the defendants were not residents, though they had access to the house.
Reynoso v. Giurbino (9th Cir. 9/6/2006, No. 05-55695) 462 F3d 1099: IAC for failure to elicit through cross-examination evidence from the State’s witnesses that they knew about a reward and expected to receive reward money in exchange for their testimony.
Kesser v. Cambra (9th Cir. 9/11/2006, No. 02-15475) 465 F3d 351: Denial of Batson claim reversed in light of Miller-El v. Dretke, (2005) 545 US 231.
Comer v. Schriro (9th Cir. 9/13/2006, No. 98-99003) 463 F3d 934: Death judgment reversed based on violation of defendant’s due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted.
Frierson v. Woodford (9th Cir. 9/14/2006, No. 04-99002) 463 F3d 982: Trial counsel provided ineffective assistance in failing to investigate and present important mitigation evidence at the penalty phase of capital trial, and in failing to review juvenile court records and to challenge a key mitigation witness’s assertion of his privilege against self-incrimination at the penalty trial.
Correll v. Schriro (9th Cir. 10/2/2006, No. 03-99006) 465 F3d 1006: Death penalty reversed because defendant did not have an opportunity to offer mitigating evidence.
U.S. v. Nguyen (9th Cir. 10/18/2006, No. 06-30011) 465 F3d 1128: Evidence insufficient to convict defendant of willful failure to comply with a term of release under supervision per 8 USC 1253(b).
Lankford v. Arave (9th Cir. 11/7/2006) 468 F3d 578: Trial counsel erred in proposing accomplice instructions based on federal law, which did not require corroboration of accomplice testimony, whereas Idaho law requires corroboration before an accomplice’s testimony can be considered. The Ninth Circuit concludes that there is a reasonable probability that a jury would not have found the accomplice’s testimony sufficiently corroborated; without the accomplice’s testimony, the prosecution’s case against petitioner was circumstantial and weak. Corroborative evidence cited by the prosecution implicated both petitioner and the accomplice; no evidence pointed specifically to petitioner alone. Petitioner was prejudiced by the instructional error.
Note: The panel’s discussion of prejudice may be useful in alleging prejudice as to other types of instructional errors as well. The panel reverses based on the likelihood that jurors would read the instruction in a way that a person with legal training would recognize as erroneous.
U.S. v. Zepeda-Martinez (9th Cir. 12/13/2006, No. 05-50562) 470 F3d 909: Apprendi errors are reviewed for harmlessness using the framework of Neder v. US (1999) 527 US 1, under which an error is harmless if the court finds beyond a reasonable doubt that the result “would have been the same absent the error.”
U.S. v. Sandoval-Mendoza (9th Cir. 12/27/2006, No. 04-10118) 2006 U.S. App. LEXIS 31815: Trial courts may prohibit all communication between a defendant and his lawyer during a brief recess before or during cross-examination, but may not, under the Sixth Amendment, restrict communications during an overnight recess.
U.S. v. Sandoval-Mendoza (9th Cir. 12/27/2006, No. 04-10118) 2006 U.S. App. LEXIS 31815: A conviction for conspiracy to sell methamphetamine is reversed where the district court abused its discretion in excluding expert testimony about the defendant’s subnormal intelligence in the context of an entrapment defense.
U.S. v. Anderson (9th Cir. 12/28/2006, No. 05-30211) 2006 U.S. App. LEXIS 31920: Matter is remanded for a determination of whether convictions on certain money laundering counts should be vacated due to the principles of dual criminality and/or specialty.
U.S. v. Nobriga (9th Cir. 12/29/2006, No. 04-10169) 2006 U.S. App. LEXIS 32040: Possessing a firearm with prior conviction for “misdemeanor crime of domestic violence” not authorized where predicate conviction involved nothing more than recklessness and thus did not involve the “violent use of force” required under 18 USC 921(a)(33)(A)(ii).
10th Circuit
Lopez v. Gonzales (12/5/2006) ____US ____ [166 LEd2d 462 ; 127 SCt 625]: “. . . [A] state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” (See also U.S. v. Martinez-Macias (10th Cir. 1/3/2007, No. 05-3243) 472 F3d 1216.)
U.S. v. Atencio (10th Cir. 1/23/2006, No. 04-2325, 05-2022) 435 F3d 1222: (1) Conspiracy (21 USC 846) is a lesser included offense of a continuing criminal enterprise (21 USC 848); (2) Double Jeopardy Clause violated by conviction of both greater and lesser included offense (LIO).
U.S. v. Lopez (10th Cir. 2/21/2006, No. 04-1223) 437 F3d 1059: Involuntary confession: police coercion.
U.S. v. Zunie (10th Cir. 4/19/2006, No. 04-2256) 444 F3d 1230: Assault resulting in serious bodily injury (18 USC 113(a)(6) and 1153): requires purpose, knowledge, or recklessness.
U.S. v. Allen (10th Cir. 6/5/2006, No. 05-7000) 449 F3d 1121: Reversible error to preclude insanity defense.
U.S. v. Tucker (10th Cir. 6/28/2006, No. 05-3259) 451 F3d 1176: Error to deny self-representation (Faretta) during voir dire.
U.S. v. Ingle (10th Cir. 7/5/2006, No. 06-5091) 454 F3d 1082: Being a felon in possession of a firearm (18 USC 922(g)(1)) is not a crime of violence.
U.S. v. Scott (10th Cir. 8/1/2006, No. 05-6082) 455 F3d 1188: Government breached the plea agreement at issue by arguing for additional sentence enhancements.
U.S. v. Hunt (10th Cir. 8/10/2006, No. 05-6023) 456 F3d 1255: Defendant did not utter “forged” securities within the meaning of 18 USC 513(a), the statute under which he was charged, as he signed the checks at issue using his own true name, and the instruments explicitly and accurately identified him as an “authorized agent” of his employer.
Torres v. Lytle (10th Cir. 9/12/2006, No. 05-2103) 461 F3d 1303: Evidence insufficient to establish that defendant’s threatening letter was retaliation for the witness’s providing information relating to a felony per New Mexico statute.
Stevens v. Ortiz (10th Cir. 10/18/2006, No. 05-1250) 465 F3d 1229: Admission of a non-testifying accomplice’s confession, which also inculpated petitioner in a murder-for-hire, violated the Confrontation Clause.
U.S. v. Jones (10th Cir. 11/8/2006, No. 06-8003) 468 F3d 704: An incorrect oral instruction—a “slip of the tongue”—without more is not plain error when a jury had correct written instructions available during deliberations. A conviction and sentence for conspiracy to manufacture, distribute, and use cocaine base is affirmed over various claims of due process violations, notably prosecutorial misconduct, in addition to improper jury instructions and sentencing violations.
U.S. v. Smith (10th Cir. 12/20/2006, No. 05-3474) 2006 U.S. App. LEXIS 31306: The government is at liberty to inform jurors of a stipulation to elemental facts via jury instruction, so long as the instruction is clear and accurately reports the facts admitted by the defendant.
11th Circuit
U.S. v. Johnson (11th Cir. 2/27/2006, No. 04-10514) 440 F3d 1286: Insufficient evidence of conspiracy (18 USC 1956) and money laundering (18 USC 1957).
U.S. v. Arbane (11th Cir. 4/21/2006, No. 04-15727) 446 F3d 1223: No conspiracy where only the person involved is governmental informant.
U.S. v. Ingram (11th Cir. 4/25/2006, No. 05-10866) 446 F3d 1332: Two year delay between indictment and trial deprived defendant of his Sixth Amendment right to a speedy trial.
U.S. v. Johnson (11th Cir. 9/7/2006, No. 03-11905, 03-12620, 04-10882) 463 F3d 1218: Firearms enhancement (U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)) not proved where the government failed to meet its burden in proving a connection between guns found in defendant’s home and his alleged drug activity, and never addressed the possibility that the weapons belonged to any of the other adults residing in his home.
U.S. District of Columbia Circuit Court of Appeals
U.S. v. Ginyard (D.C. Cir. 4/7/2006, No. 05-3003, 05-3004, 05-3025, 05-3035) 444 F3d 648: Failure of judge to conduct adequate inquiry before dismissing a holdout juror.
U.S. v. Ponds (D.C. Cir. 7/14/2006, No. 03-3134) 454 F3d 313:Production of documents under immunity agreement as violation of 5th Amendment privilege against self-incrimination.
U.S. v. Brown (D.C. Cir. 9/5/2006, No. 04-3159) 449 F3d 154: Recklessness associated with defendant’s commission of bank robbery, and his carrying and brandishing of the weapon in the course of the robbery insufficient to prove the requisite intent to discharge under 18 USC 924(c)(1)(A)(iii).
U.S. v. Lawrence (D.C. Cir. 12/1/2006, No. 05-3022) 2006 U.S. App. LEXIS 29495: Conviction of possession with intent to distribute cocaine base and firearms related charges are reversed as the prosecution did not prove that he constructively possessed the drugs or the guns.
Supreme Court Of Nebraska
State v. Barfield (Supr.Ct.Neb., 11/3/2006) 723 NW2d 303: Plain error for prosecutor to accuse defense counsel of lying.
Supreme Court Of New York
People v. Aguilar (Supr.Ct.N.Y., 11/2/2006 No. 570451/04) 2006 NY Slip Op 26442: The cumulative effect of the prosecutor’s improper remarks closing argument deprived defendant of his right to a fair trial. “The prosecutor exceeded the bounds of legitimate advocacy when he persistently attempted to improperly shift the burden of proof by (1) stating that he had an ‘ethical obligation to proceed only against the defendant[s] who are guilty;’ (2) implying that defendant has an obligation to introduce evidence when he argued to the jury ‘don’t allow the defendant to come in here and shift the blame, he’s the one on trial;’ and (3) commenting on defendant’s pretrial silence.” The prosecutor also vouched for the credibility of his witnesses, made references to matters not in evidence, and tried to distract the jury by drawing “irrelevant and inflammatory conclusions” that tended to prejudice the jury. Defendant objected to over 30 comments and moved for a mistrial, adequately preserving the issue for appeal.
New York Court of Appeals
People v. Miller (2/16/2006, Nos. 131, 132) 6 N.Y.3d 295; 845 N.E.2d 451; 812 N.Y.S.2d 20: Improper to convict defendant of both first and second degree murder.
People v. Boyer (3/28/2006, No. 36) 6 N.Y.3d 427; 846 N.E.2d 461; 813 N.Y.S.2d 31: Suggestive ID: Officer’s identification of defendant.
People v. Pacer (3/28/2006, No 45) 6 N.Y.3d 504; 847 N.E.2d 1149; 814 N.Y.S.2d 575: Admission of out-of-court affidavit violated Sixth Amendment Confrontation Clause.
People v. Van Deusen (6/29/2006, No. 100) 7 N.Y.3d 744; 853 N.E.2d 223; 819 N.Y.S.2d 854: Guilty plea vacated where defendant was not told that she would be subject to mandatory postrelease supervision.
People v. Petty (7/5/2006, No. 95) 7 N.Y.3d 277; 852 N.E.2d 1155; 819 N.Y.S.2d 684: Self-defense: judge has duty to instruct that prior threats made by the deceased victim against the defendant may be considered in deciding whether the defendant was the initial aggressor.
People v. Feingold (7/5/2006, No. 96) 7 N.Y.3d 288; 852 N.E.2d 1163; 819 N.Y.S.2d 691: Reckless endangerment in the first degree reduced to reckless endangerment in the second degree.
People v. Atkinson (7/5/2006, No. 97) 7 N.Y.3d 765; 853 N.E.2d 227; 819 N.Y.S.2d 858: Request for lesser included instruction does not waive right to challenge the sufficiency of a conviction.
People v. Mancini (7/5/2006, No. 98) 7 N.Y.3d 767; 853 N.E.2d 224; 819 N.Y.S.2d 855: Defendant did not commit depraved indifference murder; conviction reduced to manslaughter.
People v. Swinton (7/6/2006, No. 159 SSM 12, 158 SSM 13) 7 N.Y.3d 776; 853 N.E.2d 1105; 820 N.Y.S.2d 537: Assault in the first degree reduced to assault in the third degree because defendants didn’t have the culpable mental state of depraved indifference.
Gorghan v. DeAngelis (10/19/2006, No. 109) 7 N.Y.3d 470; 2006 N.Y. LEXIS 3197: Prosecutor’s misconduct was motivated by an intent to secure a conviction, not to provoke a mistrial motion, and thus defendant was entitled only to a new, fair trial—and not dismissal of the indictment.
Texas Criminal Court of Appeals
Barnett v. State of Texas (3/8/2006, No. PD-0397-05) 189 SW3d 272: Failure to object to earlier improper polling does not waive claim that court gave coercive oral Allen charge.
Robertson v. State of Texas (3/22/2006, No. PD-325-05) 187 SW3d 475: IAC to have defendant testify that he was already incarcerated on two convictions that were pending on appeal.
Rodgers v. State of Texas (5/3/2006, No. PD-0645-05) 2006 Tex. Crim. App. LEXIS 852: A motion to strike an expert witness’s testimony based on his lack of qualifications, which is made after the witness has testified, can serve as a renewed objection to a trial court’s earlier ruling that the witness was qualified.
Qualley v. State of Texas (5/24/2006, Nos. PD-1976-04, PD-1971-04) 2006 Tex. Crim. App. LEXIS 1007: Severance required if defendant shows a serious risk that a specific trial right would be compromised by a joint trial, or that a joint trial would prevent the jury from making a reliable judgment about guilt or innocence, and that the problem could not be adequately addressed by lesser curative measures, such as a limiting instruction.
Phillips v. State of Texas (6/7/2006, No. PD-499-04) 193 SW3d 904: Duplicity/Unanimity: prosecution must elect among multiple incidents if requested by defense.
Martin v. State of Texas (6/28/2006, No. PD-1940-05) 200 SW3d 635: (1) Jury must be instructed on element of the charge even if defendant stipulates to it; (2) Instruction must explain legal effect of stipulation.
Bufkin v. State of Texas (11/1/2006, No. PD-0012-06) 2006 Tex. Crim. App. LEXIS 2111: Defendant’s testimony that a bite was consensual was sufficient to raise the defense of consent as to a biting allegation and consequently, defendant was entitled to the consent instruction as to that allegation.
Renteria v. State (Tex. Crim. App., 10/04/2006, No. AP-74,829) 2006 Tex. Crim. App. LEXIS 1919: The trial court erred in refusing to permit appellant to present evidence of his statement made after his arrest expressing his remorse for the crime. “The State’s claim that appellant made no out-of-court statement of remorse was not an insignificant portion of its punishment case against appellant.” Accordingly, the appellate court reversed the penalty verdict and remands to the trial court for a new hearing.
Sanchez v. State of Texas (12/13/2006, No. PD-1754-05) 2006 Tex. Crim. App. LEXIS 2382: Conviction reversed where instructions failed to require the jury to find, as a prerequisite to convicting the defendant, that he committed each and every element of sexual harassment as required by the court’s construction of the relevant statute.
