Helpful Non-California Cases:
Selected Cases From Federal and Out-of-State Jurisdictions
Federal Courts (January 2007‑December 2007)
Supreme Court of Delaware
Supreme Court of Florida
Illinois Supreme Court
Illinois Court of Appeals
New York Court of Appeals
Texas Criminal Court of Appeals
Federal Courts (January 2007-December 2007)
Selected Decisions:
U.S. Supreme Court
Watson v. U.S. (12/10/2007, No. 06-571) ____ US ____ [169 LEd2d 472; 128 SCt 579]: In the context of criminal sentencing, a person who trades his drugs for a gun does not “use” a firearm “during and in relation to . . . [a] drug trafficking crime” within the meaning of 18 USC 924(c)(1)(A).
Kimbrough v. U.S. (12/10/2007, 06-6330) ____ US ____ [169 LEd2d 481; 128 SCt 558]: The federal court may depart from the guidelines based on the lack of support for the difference between crack and powder cocaine.
Panetti v. Quaterman (6/28/2007, No. 06-6407) ____ US ____ [168 LEd 2d 662: 127 SCt 2842]: The Constitution bars the government from executing truly crazy people. (Ford v. Wainwright (1986) 477 US 399.) The U.S. Supreme Court reverse the Texas courts here. The Texas courts found that the def. was aware of the state’s rationale for an execution. The USSC say that such an awareness isn’t the same as a rational understanding of it, and reverse for a ruling on that point.
Uttecht v. Brown (6/4/2007, No. 06-413) ____ US ____ [167 LEd2d 1014; 127 SCt 2218] The Ninth Circuit found Witherspoon/Witt error (see Witherspoon v. Illinois (68) 391 US 510; Wainwright v. Witt (85) 469 US 412) when a Washington trial court excused a juror for cause who said he would follow the law, but felt that the death penalty should be imposed sparingly, and gave the example that a defendant likely to be released and reviolate would be deserving of death. The Supremes say the Ninth should have been more deferential to the trial court’s determination. They also say that his example was the “equivalent to treating the risk of recidivism as the sole aggravating factor, rather than treating lack of future dangerousness as a possible mitigating consideration.” In an articulate dissent that hits the nail on the head over and over, Justice Stevens criticizes the majority opinion as “horribly backwards.” He says “[the majority] appears to be under the impression that trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot.
Fry v. Pliler (6/11/2007, No. 06-5247) ____ US ____ [168 LEd2d 16; 127 SCt 2321]: In 28 USC 2254 proceedings, a federal court must assess the prejudicial impact of constitutional error in a state-court criminal trial under Brecht’s “substantial and injurious effect” standard, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California, 386 US 18, 24.
Panetti v. Quarterman (6/28/2007, No. 06-6407) ____ US ____ [2007 U.S. LEXIS 8667]: After an execution date was set, the defendant claimed he was incompetent to be executed under Ford v. Wainwright (86) 477 US 399. Defendant claimed to understand that the State wanted to execute him for murder, but asserted that his mental problems resulted in the delusion that the stated reason was a sham, and that the State actually wanted to execute him to stop him from preaching. Texas denied the claim. The USSC overcomes AEDPA procedural hurdles and find that Texas failed to provide defendant an adequate hearing as required by Ford, and that the Fifth Circuit applied the wrong standard when it considered the defendant’s delusion irrelevant to the competency claim. The high court says that a defendant’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it, and that Ford does not foreclose inquiry into the latter. It sends the matter back to the Fifth Circuit for hearing under the proper standard.
Smith v. Texas (4/25/2007, No. 05-11304) ____ US ____ [127 SCt 1686; 167 LEd2d 632]; Brewer v. Quarterman (4/25/2007, No.05-11287) ____ US ____ [127 SCt 1706; 167 LEd2d 622]; Abdul-Kabir v. Quarterman (4/25/2007, No. 05-11284) ____ US ____ [127 SCt 1654; 167 LEd2d 585]: Texas death penalty law invalidated. Texas death penalty juries were told to make two determinations: (1) Whether the murder was deliberate; and (2) whether there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. If they answered both questions affirmatively, the defendant got death. The U.S. Supreme Court found that system unconstitutional, since it doesn’t allow for a life verdict based on mitigation. The Texas fix was to tell death juries that if mitigation justified life, they should answer “no” falsely to one of these questions. The U.S. Supreme Court struck that fix down as well. These three cases present various procedural issues in the wake of the fix being struck down.
Schriro v. Landrigan (5/14/2007, No. 05-1575) ____ US ____ [127 SCt 1933; 167 LEd2d 836]: Waiver of mitigation evidence.
James v. U.S. (4/18/2007, No. 05-9264) ____ US ____ [127 SCt 1586; 167 LEd2d 532]: Attempted burglary, as defined by Florida law, is a “violent felony” under the Armed Career Criminal Act (ACCA) for sentencing purposes.
Abdul-Kabir v. Quarterman (4/25/2007, No. 05-11284) 2007 U.S. LEXIS 4536: Death sentence reversed where there was a reasonable likelihood that a state trial court’s instructions prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence.
Brewer v. Quarterman (4/25/2007, No. 05-11287) 2007 U.S. LEXIS 4538: Texas capital sentencing statute impermissibly prevented defendant’s jury from giving meaningful consideration and effect to constitutionally relevant mitigating evidence.
Cunningham v. California (1/22/2007, No. 05-6551) ____ US ____ [2007 U.S. LEXIS 1324]: California’s Determinate Sentencing Law, which permits judges to impose aggravated (upper term) sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments as interpreted in Apprendi v. New Jersey (2000) 530 US 466 and Blakely v. Washington (2004) 542 US 296. Ginsburg J. delivered the opinion of the Court, in which Roberts, Stevens, Scalia, Souter and Thomas joined. Kennedy dissented, Breyer joining. Alito also dissented, and Kennedy and Breyer joined.
Gonzales v. Duenas-Alvarez (1/17/2007, No. 05–1629) ____ US ____ [166 LEd2d 683; 127 SCt 815]: In the context of 8 USC 1101(a)(43)(G), which provides for removal from the United States of an alien convicted of “a theft offense … for which the term of imprisonment [is] at least one year,” the term “theft offense” in the statute includes the crime of “aiding and abetting” a theft offense.
Burton v. Stewart (1/9/2007, No. 05-9222) ____ US ____ [166 LEd2d 628; 127 SCt 793]: Denial of a habeas petition challenging the constitutionality of petitioner’s sentence under Apprendi is vacated where petitioner failed to comply with the gate-keeping requirements of 28 USC 2244(b) and thus, the district court was deprived of jurisdiction to hear his claims in the first place. Consequently, the court did not answer the question on which it granted certiorari, specifically, whether the decision in Blakely v. Washington (2004) 542 US 296, announced a new rule and, if so, whether it applies retroactively on collateral review.
1st Circuit Court of Appeals
U.S. v. Azubike (1st Cir. 9/21/2007, No. 06-2255) 2007 U.S. App. LEXIS 22524: Possession of heroin conviction reversed due to prosecution misconduct in making misstatements.
U.S. v. Carpenter (7/18/2007, 1st Cir. No. 06-1373, 06-1374, 06-1488) 2007 U.S. App. LEXIS 17007: District court did not abuse its discretion in concluding that the government’s use of inflammatory language during its closing and rebuttal arguments prejudiced the jury and denied defendant a fair trial.
U.S. v. Parrilla (1st Cir. 5/9/2007, No. 05-1566) 485 F3d 185: District court erred by conflating the two steps of the analysis for an abuse of trust enhancement laid down in U.S. v. Reccko (1st Cir. 1998) 151 F3d 29.
U.S. v. Luisi (4/10/2007, No. 03-1470) 2007 U.S. App. LEXIS 8225: Supplemental instructions, which foreclosed the jury from considering the defendant’s superior’s role in the asserted government entrapment of defendant, were erroneous.
Owens v. U.S. (4/12/2007, No. 05-1784, No. 05-1785) 2007 U.S. App. LEXIS 8388: Denial of evidentiary hearing was an abuse of discretion since: 1) defendant’s allegations of ineffective assistance of counsel were not implausible; 2) closure of jury selection to the public for an entire day without meeting the strict Waller requirements would violate a defendant’s right to a public trial; 3) failure to object to such a closure might constitute ineffective assistance of counsel; and 4) denial of a public trial is structural error.
U.S. v. Tobin (1st Cir. 3/21/2007, No. 06-1883) 2007 U.S. App. LEXIS 6465: Conviction for telephone harassment reversed where a jury instruction inappropriately broadened the scope of definition of “intent to harass.” A reasonable jury could have convicted defendant based on the evidence unless it found that the statute required an explicit “purpose” of harassment, rather than a mere knowledge that harassment was likely to occur.
U.S. v. Segarra-Rivera (1st Cir. 1/11/2007, No. 05-1582) 2007 U.S. App. LEXIS 542: Evidentiary hearing required where defendant made a sufficient showing of an actual conflict of interest on the part of his attorney.
2nd Circuit Court of Appeals
U.S. v. Griffin (2nd Circuit, No. 05-4016, 12/21/2007) 2007 U.S. App. LEXIS 29540: Guilty plea to possession of child pornography after unlawfully downloading such images to a computer using a peer-to-peer file-sharing program is vacated where the government breached the plea agreement.
U.S. v. Shellef (11/8/2007, 2nd Cir., No. 06-1495, 06-1710) 2007 U.S. App. LEXIS 25974: Convictions and sentences for crimes related to wire fraud, money laundering, tax evasion, filing false tax returns, and conspiracy to defraud the IRS, are vacated where the indictment improperly: 1) joined certain tax counts with the other charges against the defendants; 2) joined the two defendants as co-defendants; and 3) the misjoinders were not harmless.
U.S. v. Razmilovic (10/17/2007, 2nd Cir., No. 06-4195) 498 F3d 136: Double Jeopardy Clause: the decision of the trial court that there was “manifest necessity” to declare a mistrial was an abuse of discretion; and a statement by counsel in support of a motion for mistrial, quickly reconsidered, does not preclude the defendant from claiming that the Double Jeopardy Clause bars retrial.
U.S. v. Rosa (10/31/2007, 2nd Cir, No. 05-3621) 2007 U.S. App. LEXIS 25362: Sentence vacated under Shepard v. U.S. (2005) 544 US 13, where guilty plea resulting in a predicate state conviction did not necessarily admit a conviction for a crime or act of juvenile delinquency involving the use or carrying of a firearm.
U.S. v. Becker (2nd Cir. 9/13/2007, No. 06-1274) 2007 U.S. App. LEXIS 21923: Crawford v. Washington (2004) 541 US 36 claim not procedurally barred.
U.S. v. Whitley (2nd Cir. 9/17/2007, No. 05-3359-cr, 06-4444-cr) 2007 U.S. App. LEXIS 22125: Appellate counsel’s motions to withdraw under Anders v. California (67) 386 US 738, denied where counsel’s Anders briefs fail to address adequately the reasonableness of defendants’ sentences.
U.S. v. Capoccia (2nd Cir. 9/19/2007, No. 06-0669) 2007 U.S. App. LEXIS 22333: Forfeiture order may not be based on uncharged offense which does not bear an adequate statutory nexus to the violations of which defendant was convicted.
U.S. v. Santiago (7/18/2007, 2nd Cir. No. 06-5136) 2007 U.S. App. LEXIS 16993: Motion of court-appointed defense counsel to withdraw on the ground that there is no non-frivolous basis for appeal for illiterate client is properly denied where: 1) the Anders notice documents alone did not suffice without some additional effort to ensure that their contents are communicated to the defendant orally; and 2) counsel did not show reasonable efforts to convey the required notice to the defendant orally in a language that he understands.
U.S. v. Rodriguez (7/24/2007, 2nd Cir. No. 05-3069) 2007 U.S. App. LEXIS 17508: Conviction for drug dealing in a multi-defendant trial is remanded to determine whether the prosecutor’s failure to disclose the substance of witness’s lies during police interviews, which lies were not recorded or memorialized, was material and prejudicial.
Von Hofe v. U.S. (2nd Cir. 6/27/2007, No. 05-2969) 2007 U.S. App. LEXIS 15239: Judgment ordering forfeiture of claimants’ residence to plaintiff is vacated as to claimant wife, as the Excessive Fines Clause of the Eighth Amendment precludes forfeiture of her entire one-half interest in the residence where the extent of the forfeiture bears no correlation either with the wife’s minimal culpability or any harm she purportedly caused.
U.S. v. Amico (2nd Cir. 5/23/2007, No. 03-1737) 2007 U.S. App. LEXIS 12022: Prior dealings by the government’s main cooperating witness concerning a mortgage application for the judge created an appearance of partiality and recusal was required.
U.S. v. Rigas (2nd Cir. 5/24/2007, No. 05-3577) 2007 U.S. App. LEXIS 12096: Evidence did not support a finding that any misrepresentations regarding the Olympus Facility (OCH) Co-Borrowing Agreement were material.
U.S. v. Kaplan (4/11/2007, No. 05-5531) 2007 U.S. App. LEXIS 8363: Judge erred in admitting lay opinion testimony regarding defendant’s and other’s knowledge of the fraud.
McKithen v. Queens County Dist. Attorney (2nd Cir. 3/13/2007, No. 03-0168) 2007 U.S. App. LEXIS 5763: In civil rights action seeking access to DNA testing that plaintiff claims may exonerate him of his conviction, dismissal of claim is vacated as: 1) the Rooker-Feldman doctrine, relied on by the district court, does not apply to plaintiff’s suit; 2) plaintiff’s suit is not barred by the rule of Preiser v. Rodriguez (1973) 411 US 475 [36 LEd2d 439; 93 SCt 1827] and Heck v. Humphrey (1994) 512 US 477 [129 LEd 2d 383; 114 SCt 2364]; and 3) defendant waived any possible defense of claim preclusion, and it would be inappropriate for the court of appeals to raise the defense sua sponte.
U.S. v. Giffen (2nd Cir. 1/22/2007, No. 05-5782) 2006 U.S. App. LEXIS 30367: Challenge to public authority defense denied as premature.
3rd Circuit Court of Appeals
U.S. v. Introcaso (10/25/2007, 3rd Cir., No. 05-4088) 2007 U.S. App. LEXIS 24945: National Firearms Act conviction for possessing an unregistered 19th century firearm (shotgun) reversed because the Firearms Act was ambiguous as to whether it required defendant to register the gun and the rule of lenity applied.
U.S. v. McKee (10/29/2007, 3rd Cir., No. 05-3297, 05-3469, 05-3357) 2007 U.S. App. LEXIS 25349: District court’s jury instruction constructively amended the indictment for purposes of convictions on tax evasion charges.
U.S. v. Otero (3rd Cir. 9/12/2007, No. 05-3739 2007 U.S. App. LEXIS 21819: Failure to object to an improper sentence enhancement constituted ineffective assistance of counsel.
U.S. v. Shedrick (7/19/2007, 3rd Cir. No. 04-2329) 2007 U.S. App. LEXIS 17154: Denial of habeas petition brought under 28 USC 2255 is reversed as to petitioner’s claim that his counsel was ineffective under Roe-Ortega for failing to assist him in his right to appeal where petitioner was prevented from timely appealing.
U.S. v. Ricks, (7/20/2007, 3rd Cir. Nos. 05-4832, 05-4833) 2007 U.S. App. LEXIS 17258: Sentences imposed on brothers based on their guilty pleas to drug-conspiracy-related charges are vacated where — based on prosecution’s appeal that district court’s use of 20-to-1 crack/powder cocaine drug quantity ratio was unreasonable — courts may not categorically reject the 100-to-1 ratio.
Nara v. Frank (3rd Cir. 5/8/2007, No. 05-4779) 2007 U.S. App. LEXIS 10871: Petitioner was incompetent when he pleaded guilty to murdering his wife and mother-in-law.
Davis Int’l, LLC v. New Start Group Corp. (3rd Cir. 5/23/2007, No. 06-2294, 06-2408) [Not listed on LEXIS]: Dismissal of the complaint is affirmed on direct estoppel grounds. However, denial of defendants’ motion for an anti-suit injunction is reversed and remanded for a determination as to whether injunctive relief is appropriate.
U.S. v. Korey (3rd Cir. 1/4/2007, No. 05-3840) 472 F3d 89: Jury instructions concerning conspiracy contained an impermissible mandatory presumption because they did not require the jury to find a unity of purpose.
U.S. v. Williams (3rd Cir. 1/4/2007, No. 05-4292) 472 F3d 81: Double jeopardy due to prosecutorial misconduct showing that the government had in fact intended to goad the defendant into requesting a mistrial.
4th Circuit Court of Appeals
U.S. v. Jordan (4th Circuit, No. 06-4258, 06-4264, 12/4/2007) 2007 U.S. App. LEXIS 27985: Convictions for murder while engaged in a drug trafficking offense, as well as drug and firearms-related offenses, are reversed as violation of plea agreement.
U.S. v. Mastrapa (4th Circuit, No. 06-4512, 12/12/2007) 2007 U.S. App. LEXIS 28684: Guilty plea to conspiracy to distribute methamphetamine is vacated where defendant did not admit the necessary mens rea before entering his plea.
U.S. v. Colonna (4th Circuit, No. 06-5237, 12/20/2007) 2007 U.S. App. LEXIS 29403: Trial court erred in denying defendant’s motion to suppress statements made without Miranda warnings, since coercive pressures existed from defendant’s interrogation taking place in a police dominated environment where the agents did everything to make defendant, or any reasonable man, believe that he was not free to leave.
U.S. v. Oscar-Torres (11/8/2007, 4th Cir. No. 06-5074) 2007 U.S. App. LEXIS 25988: Detentions for the sole purpose of obtaining fingerprints in a criminal investigation are subject to the constraints of the Fourth Amendment.
U.S. v. Mooney (8/6/2007, 4th Cir. No. 06-7565) 2007 U.S. App. LEXIS 18619: 1) defendant’s counsel provided ineffective assistance of counsel, and but for that assistance, defendant would not have pleaded guilty; and 2) if defendant were able to present the same facts at trial, the trial court would have been required to instruct on a justification defense.
Al-Marri v. Wright (4th Cir. 6/11/2007, No. 06-7427) 2007 U.S. App. LEXIS 13642: In a case where military authorities seized an alien lawfully residing in the U.S. more than four years ago and held him without criminal charge or process based on his designation as an “enemy combatant,” dismissal of petitioner’s habeas petition is reversed as: 1) the Military Commissions Act of 2006 (MCA) does not apply and the Court of Appeal has jurisdiction where there has been no determination by the U.S. that the initial detention was proper, as required by the MCA; and 2) the President lacks power to order the military to seize and indefinitely detain petitioner and the evidence offered by the Government does not afford a basis for treating petitioner as an enemy combatant, or as anything other than a civilian.
U.S. v. Midgett (4th Cir. 5/24/2007, No. 05-5263) 2007 U.S. App. LEXIS 12168: Bank robbery conviction vacated as LIO of putting-life-in-jeopardy conviction.
U.S. v. Stephens (4/3/2007, No. 05-4668) 2007 U.S. App. LEXIS 7617: Insufficient evidence to corroborate defendant’s statement and thereby establish his guilt.
U.S. v. Nicholson (4th Cir. 2/2/2007, No. 04-6092) 2007 U.S. App. LEXIS 2308: Defendant’s lawyer had an actual conflict of interest at sentencing.
5th Circuit Court of Appeals
U.S. v. Lopez-Valenzuela (5th Circuit, No. 05-61130, 12/19/2007) 2007 U.S. App. LEXIS 29387: For Speedy Trial Act purposes, the clock begins to run on the date of the indictment regardless of the plea date.
Reed v. Quarterman (10/9/2007, 5th Cir., No. 05-70046) 2007 U.S. App. LEXIS 23728: Petitioner was entitled to a COA in death penalty case on claims regarding: 1) a denial of a request for discovery of files regarding contact between the prosecution and an informant; 2) a Penry claim arguing that the former Texas capital sentencing scheme did not permit the sentencing jury to consider fully his mitigating evidence; and 3) a claim that his due process rights violated by a denial of a requested jury instruction on first-degree, non-capital murder as a lesser included offense.
Ruiz v. Quarterman (10/11/2007, 5th Cir., No. 07-70025) 2007 U.S. App. LEXIS 23920: Death penalty case remanded for consideration of petitioner’s ineffective assistance claim on the merits as: 1) the district court had jurisdiction to consider the Rule 60(b) motion, free of the jurisdictional constraints of AEDPA upon successive petitions; 2) petitioner’s Wiggins claim was properly before the federal district court; and 3) the district court erroneously concluded that the balance of the equities tipped away from petitioner.
Rivera v. Quarterman (10/18/2007, 5th Cir., No. 06-70022) 2007 U.S. App. LEXIS 24437: In a death penalty case, a grant of habeas relief pursuant to an Atkins claim affirmed.
U.S. v. Hollis (10/30/2007, 5th Cir., No. 06-50784) 2007 U.S. App. LEXIS 25410: (1) Insufficient evidence in the record to show that defendant was represented by counsel or validly waived his right to counsel in proceedings leading to a prior conviction on which the sentence under the ACCA was predicated; (2) conviction on the felon in possession count is vacated as multiplicitous.
U.S. v. Morganfield (5th Cir. 9/25/2007, No. 05-51395) 2007 U.S. App. LEXIS 22733: Insufficient evidence to find defendants guilty for conspiracy to utter a fictitious instrument and aiding and abetting the uttering of a fictitious instrument because a check, even if it is worthless, is not, as a matter of law, a “false or fictitious instrument.”
Coble v. Quarterman (8/14/2007, 5th Cir. No. 01-50010) 2007 U.S. App. LEXIS 19327: Death penalty reversed because the Texas special issues precluded the jury from giving meaningful consideration and effect to petitioner’s mitigating evidence.
Harrison v. Quarterman (8/14/2007, 5th Cir. No. 04-11188) 2007 U.S. App. LEXIS 19324: Trial counsel ineffective for failing to interview a key witness and call him as a witness at trial.
U.S. v. Buchanan (4/19/2007, No. 04-41364) 2007 U.S. App. LEXIS 9118: Multiplicity principles violated where defendant committed one act to receive the four images that were the basis of his multiple convictions under 18 USC 2252(a)(2).
U.S. v. Gunera (5th Cir. 2/13/2007, No. 05-20544) 479 F3d 373: Indictment for illegal presence in U.S. barred by the statute of limitations.
U.S. v. Lewis (5th Cir. 1/22/2007, No. 04-51183) 2007 U.S. App. LEXIS 1388: Continuing Criminal Enterprises (CCE): Insufficient evidence.
6th Circuit Court of Appeals
Morales v. Mitchell (11/2/2007, 6th Cir. No. 00-3694, 00-3787) 2007 U.S. App. LEXIS 25582: Ineffective assistance of counsel (IAC) at the penalty phase of capital trial for failing to adequately investigate and present mitigating evidence.
U.S. v. Garner (11/7/2007, 6th Cir. No. 06-3288) 2007 U.S. App. LEXIS 25852: Even if the late disclosure of the cell phone records did not amount to a Brady violation, denial of continuance to enable defense counsel to conduct a necessary investigation into the records was an abuse of discretion.
U.S. v. Conrad (11/9/2007, 6th Cir. No. 05-5319) 2007 U.S. App. LEXIS 26130: Reversible error to admit an individual’s out-of-court statement under the co-conspirator’s exception to the hearsay rule using the wrong legal standard and without finding that the elements of that exception had been proven by a preponderance of the evidence.
U.S. v. Malone (10/4/2007, 6th Cir., No. 06-2099) 503 F3d 481: A district court’s consideration of a defendant’s possible state court sentence as part of its sentencing calculus is improper and renders the resulting sentence unreasonable.
Stewart v. Erwin (10/9/2007, 6th Cir., No. 05-4635) 503 F3d 488: Although there is no clearly established federal constitutional right to full disclosure of all information used by a trial judge in determining a defendant’s sentence, there is a clearly established federal due process protection against a trial court’s reliance on materially false information at sentencing. Evidentiary hearing required where a portion of the materials used in determining the sentence were withheld from federal court review and the limited record suggested a reasonable possibility that at least some of the sentencing information might have been erroneous.
U.S. v. McGrattan (10/10/2007, 6th Cir., No. 06-3043) 2007 U.S. App. LEXIS 23727: Prior Ohio state misdemeanor offense did not categorically qualify as a prior offense under federal internet pornography law, and the government did not provide sufficient documentation of defendant’s actual conduct in that offense.
Parker v. Renico (10/17/2007, 6th Cir., No. 06-2419) 2007 U.S. App. LEXIS 24251: Habeas relief properly granted where petitioner demonstrated that the state courts unreasonably applied Jackson v. Virginia (1979) 443 US 307, for purposes of a challenge to the sufficiency of the evidence with regard to the possession element of each crime.
U.S. v. Grubbs (10/17/2007, 6th Cir., No. 04-5403) 2007 U.S. App. LEXIS 24252: Ex-felon in possession of a firearm conviction reversed due to insufficient evidence of possession.
Ferensic v. Birkett (6th Cir. 9/4/2007, No. 06-2342) 2007 U.S. App. LEXIS 21090: Exclusion of defense witnesses was denial of 6th Amendment right to present a defense.
Girts v. Yanai (6th Cir. 9/5/2007, No. 05-4023) 2007 U.S. App. LEXIS 21164: Statements by a prosecutor were misconduct and violated petitioner’s Fifth Amendment rights, and were sufficiently flagrant to warrant reversal of petitioner’s conviction despite trial counsel’s failure to object.
U.S. v. Brock (6th Cir. 9/6/2007, No. 05-6621, 05-6622, 05-6623, 05-6645) 2007 U.S. App. LEXIS 21276: The payor of a bribe to a state official may not conspire with that official to extort property from himself in violation of the Hobbs Act.
U.S. v. Hearn (6th Cir. 9/11/2007, No. 06-5854, 06-5855) 2007 U.S. App. LEXIS 21703: Prosecutor committed prejudicial misconduct by repeatedly soliciting testimony regarding confidential informants’ statements.
Garner v. Mitchell (6th Cir. 9/11/2007, No. 02-3552) 2007 U.S. App. LEXIS 21705: Defendant did not knowingly and intelligently waive his Miranda rights.
U.S. v. Jones (6th Cir. 9/11/2007, No. 05-6414) 2007 U.S. App. LEXIS 21707: Judgment of forfeiture reversed where the Government did not establish that there was a nexus between defendant’s criminal activity and the property after she acquired title.
U.S. v. Amos (8/9/2007, 6th Cir. No. 06-5032) 2007 U.S. App. LEXIS 18833: A defendant’s prior conviction for possession of a sawed-off shotgun does not serve as a predicate “violent felony” for purposes of a sentencing enhancement under the Armed Career Criminal Act (ACCA).
Richey v. Bradshaw (8/10/2007, 6th Cir. No. 01-3477) 2007 U.S. App. LEXIS 18983: Trial attorney did not function as counsel guaranteed by the Sixth and Fourteenth Amendments. the forfeiture constituted double billing.
Haliym v. Mitchell (7/13/2007, 6th Cir. No. 04-3207) 492 F3d 680: Death sentence reversed because petitioner was denied the effective assistance of counsel during the mitigation phase of his sentencing.
U.S. v. Hamad (7/19/2007, 6th Cir. No. 05-4196) 2007 U.S. App. LEXIS 17233: Sentence for weapons charges is vacated and remanded where, when a district court increases a sentence based on its own fact findings on the basis of evidence never fully disclosed to the defendant, the court must either disclose sufficient details about the evidence to give the defendant a reasonable opportunity to respond, or refrain from relying on the evidence.
U.S. v. Jones (7/23/2007, 6th Cir. No. 06-5328) 2007 U.S. App. LEXIS 17440: Court was required to hold a competency hearing.
Vasquez v. Jones (7/24/2007, 6th Cir. No. 04-2274) 2007 U.S. App. LEXIS 17507: 1) petitioner established that the state court violated his Confrontation Clause right to impeach a witness’ credibility with his criminal record; 2) the state court’s resolution of this claim represents an unreasonable application of Supreme Court Confrontation Clause jurisprudence; and 3) the error was not harmless under the Brecht standard.
U.S. v. Jones (6th Cir. 6/5/2007, No. 06-5551) 2007 U.S. App. LEXIS 12931: Drug and firearms convictions constituted multiple punishment in violation of the Double Jeopardy Clause.
Ramonez v. Berghuis (6th Cir. 6/18/2007, No. 06-1852) 2007 U.S. App. LEXIS 14296: IAC for failure to investigate and call three witnesses.
U.S. v. Gardner (6th Cir. 5/25/2007, No. 05-6272) 2007 U.S. App. LEXIS 12203: For aiding-and-abetting liability to attach under 18 USC 922(g), the government must show that the defendant knew or had cause to know that the principal was a convicted felon.
Ege v. Yukins (4/24/2007, No. 05-2078) 2007 U.S. App. LEXIS 9287: Admission of bite-mark evidence at trial violated her due process right to a fair trial and petitioner demonstrated both “cause” and “prejudice” for her failure to comply with Michigan’s contemporaneous objection rule.
U.S. v. Barnwell (6th Cir. 2/27/2007, No. 04-2143) 477 F3d 844: Ex parte communications between the trial judge, prosecution, and government agents violated defendant’s constitutionally prescribed rights to due process, effective assistance of counsel, and trial by an impartial judge and jury.
Simmons v. Kapture (6th Cir. 1/26/2007, No. 03-2609) 2007 U.S. App. LEXIS 1704: Petitioner is entitled to a writ of habeas corpus on the ground that Michigan’s refusal to appoint him appellate counsel to challenge his guilty plea was unconstitutional. (See Halbert v. Michigan (2005) 545 US 605 [162 LEd2d 552; 125 S Ct 2582].)
Davis v. Coyle (6th Cir. 1/29/2007, No. 02-3227) 2007 U.S. App. LEXIS 1878: Denial of right to present additional evidence at death penalty sentencing trial per Skipper v. South Carolina (1986) 476 US 1.
7th Circuit Court of Appeals
U.S. v. Taylor (7th Circuit , No. 05-2007 & 05-2008, 12/7/2007) 2007 U.S. App. LEXIS 28288: Remand for supplemental factfinding because the district court did not put factual findings on the record regarding the credibility of the government’s reason for striking a certain juror.
U.S. v. Mannie (7th Circuit, No. 06-1353, 12/12/2007) 2007 U.S. App. LEXIS 28683: Co-defendant’s outbursts at trial presented an unacceptable risk of prejudicing the jury.
U.S. v. Abu-Shawish (11/1/2007, 7th Cir. No. 06-1459) 2007 U.S. App. LEXIS 25514: Conviction for federal program fraud is vacated and remanded where the indictment did not allege that defendant defrauded the organization for which he served as an agent.
Holmes v. Buss (10/30/2007, 7th Cir., No. 04-3549, 06-2905) 2007 U.S. App. LEXIS 25361: Habeas proceeding remanded for evidentiary hearing re: petitioner’s mental competence to assist his attorneys in his appeal.
U.S. v. Vasquez-Ruiz (7th Cir. 9/17/2007, No. 06-2180) 2007 U.S. App. LEXIS 22145: Presumption of prejudice from jury misconduct required new trial.
U.S. v. Spirk (7th Cir. 9/26/2007, No. 06-3534) 2007 U.S. App. LEXIS 22735: Evidence was insufficient to support fraud conviction.
U.S. v. Hi Bek (7/6/2007, 7th Cir. No. 05-4198) 2007 U.S. App. LEXIS 16011: Evidence was insufficient to support the drug conviction.
U.S. v. Luepke (7/24/2007, 7th Cir. No. 06-3285) 2007 U.S. App. LEXIS 17520: Sentence remanded where the district court did not afford defendant a meaningful opportunity to address the court prior to the imposition of sentence.
Julian v. Bartley (7/25/2007, 7th Cir. No. 05-3835) 2007 U.S. App. LEXIS 17629: The state court’s application of the Strickland analysis for ineffective assistance of counsel was objectively unreasonable, and defendant was able to show prejudice as a result of his attorney’s misinformation.
Stevens v. McBride (7th Cir. 6/18/2007, No. 05-1442) 2007 U.S. App. LEXIS 14312: Attorneys’ investigation and presentation of expert psychological testimony at his trial amounted to ineffective assistance of counsel.
Van Patten v. Endicott (7th Cir. 6/29/2007, No. 04-1276) 2007 U.S. App. LEXIS 13394: Actual or constructive absence of counsel at a critical stage requires new trial.
U.S. v. Malone (7th Cir. 4/30/2007, No. 06-2915) 484 F3d 916: Insufficient evidence to support a money-laundering charge.
U.S. v. Craft (7th Cir. 5/1/2007, No. 06-3524) 484 F3d 922: Arson: insufficient evidence to show that one of the burned buildings was used in an activity affecting interstate commerce.
U.S. v. Simpson (7th Cir. 3/13/2007, No. 05-2993) 479 F3d 492: Prosecution’s closing argument improperly appealed to defendant’s propensity to deal in crack cocaine.
Miller v. Vannatta (7th Cir. 3/15/2007, No. 05-3978) 2007 U.S. App. LEXIS 5936: Indiana Court of Appeals unreasonably applied federal law in concluding that defense counsel’s decision to stand mute at defendant’s sentencing hearing did not amount to ineffective assistance of counsel.
U.S. v. Rodomski (7th Cir. 1/9/2007, No. 05-3792) 2007 U.S. App. LEXIS 364: Insufficient evidence of conspiracy where there was no evidentiary basis for a finding of guilt beyond a reasonable doubt in the co-conspirator’s guilty plea and thus the plea could not be evidence in the defendant’s case.
Raygoza v. Hulick (7th Cir. 1/25/2007, No. 05-2340) 2007 U.S. App. LEXIS 1633: IAC: trial counsel ineffective for failure to investigate alibi, failure to call alibi witnesses at trial, and offer telephone records that would corroborate defense.
8th Circuit Court of Appeals
U.S. v. Bercier (11/1/2007, 8th Cir. No. 06-4125) 2007 U.S. App. LEXIS 25490: Error to admit hearsay testimony by an examining physician recounting what victim said in a hospital interview.
U.S. v. Jones (11/2/2007, 8th Cir. No. 06-3616) 2007 U.S. App. LEXIS 25566: Failure to consider the need to avoid unwarranted sentencing disparities was abuse of discretion.
U.S. v. Mosley (10/12/2007, 8th Cir., No. 06-3149) 2007 U.S. App. LEXIS 23925: Matter remanded for resentencing by a different judge where the government breached a plea agreement between the parties when it argued at sentencing that defendant failed to accept responsibility because of false statements she made to authorities prior to the plea agreement.
U.S. v. Johnson (7/30/2007, 8th Cir. No. 06-1001) 2007 U.S. App. LEXIS 18059: Convictions and capital sentences for aiding and abetting murder during a drug conspiracy reversed under multiplicity principles.
In re: Green Grand Jury Proceedings (7/6/2007, 8th Cir. No. 06-3938, 06-4030) 2007 U.S. App. LEXIS 16013 [Supplemental opinion filed 7/20/2007, 492 F3d 976]: An attorney who does not knowingly participate in the client’s crime or fraud may assert the work product privilege as to his opinion work product.
U.S. v. Icaza (7/10/2007, 8th Cir. No. 06-2882, 06-2883, 06-3003) 42 F.3d 967: Sentences for conspiracy to commit interstate transportation of stolen property and interstate transportation of stolen property, as well as illegal reentry, are vacated and remanded where, in circumstances in which the defendants shoplifted from 407 separate Walgreens drug stores, the district court erred in treating each store as a separate victim for purposes of a number-of-victims sentence enhancement.
Watson v. U.S. (7/18/2007, 8th Cir. No. 06-3104) 2007 U.S. App. LEXIS 16994: Matter remanded to provide defendant with a hearing on the issue of whether he asked his trial counsel to file a notice of appeal after he was sentenced.
U.S. v. Johnson (7/30/2007, 8th Cir. No. 06-1001) 2007 U.S. App. LEXIS 18059:Convictions and capital sentences for aiding and abetting murder during a drug conspiracy are vacated where the charges were multiplicitous.
Simpson v. Norris (8th Cir. 6/27/2007, No. 06-2823) 2007 U.S. App. LEXIS 15229: District court erred in holding that petitioner had defaulted an eighth amendment claim under Atkins that his mental retardation made him ineligible for the death penalty.
U.S. v. Abdul-Aziz (8th Cir. 5/29/2007, No. 06-3032) 486 F3d 471: Obstruction of justice enhancement based on perjury as the record did not establish with the required clarity that the court exercised its independent judgment in reaching the decision to impose the enhancement.
U.S. v. Kenyon (4/9/2007, No. 06-1693) 2007 U.S. App. LEXIS 8175: Aggravated sexual abuse of a child conviction reversed in part due to an erroneous jury instruction on one count and insufficient evidence on another.
U.S. v. Real Property Located at 3234 Washington Ave. N. (8th Cir. 3/22/2007, No. 06-1983) 2007 U.S. App. LEXIS 6601: Summary judgment for the government in forfeiture action reversed where conflicting evidence created genuine issues of material fact regarding the existence of a substantial connection between the property and alleged drug activity.
9th Circuit Court of Appeals
Smith v. Patrick (9th Circuit, No. 04-55831, 12/4/2007) 508 F3d 1256: On remand from the United States Supreme Court for reconsideration in light of Carey v. Musladin (2006) ____ US ____ [166 LEd2d 482; 127 SCt 649], the circuit court reaffirms its prior holding that no rational trier of fact could have found beyond a reasonable doubt that petitioner caused the child’s death, and that a state court’s affirmance of petitioner’s conviction for assault on a child resulting in death was an unreasonable application of Jackson v. Virginia (1979) 443 US 307.
U.S. v. Zalapa (9th Circuit, No. 06-50487, 12/5/2007) 2007 U.S. App. LEXIS 28007: A defendant who fails to object in the district court to multiplicitous convictions and sentences does not waive his or her right to raise a double jeopardy challenge on appeal.
Byrd v. Lewis (9th Circuit, No. 06-15977, 12/11/2007) 2007 U.S. App. LEXIS 28628: State court’s application of harmless error review to the trial court’s jury instruction lowering the prosecution’s burden of proof was contrary to or an unreasonable application of clearly established Supreme Court precedent.
Bradley v. Henry (9th Circuit, No. 04-15919, 12/19/2007) 2007 U.S. App. LEXIS 29297: (1) Holding in-camera hearing regarding attorney-client breakdown without petitioner present denied her right to the assistance of counsel. 2) The court constitutionally erred in refusing to replace appointed counsel when the attorney-client relationship between him and petitioner had broken down.
U.S. v. Cohen
Medley v. Runnelss (11/1/2007, 9th Cir. No. 05-55295) 2007 U.S. App. LEXIS 25506: Trial courts may not create mandatory presumptions which relieve the prosecution of its burden to prove facts to the jury beyond a reasonable doubt. (Sandstrom v. Montana (79) 442 US 510.) Appellant was charged with murder and an enhancement for discharge of a firearm in commission of a felony. In the commission of the offense, appellant chased the victim, discharged a flare gun at him, without injuring him, but then caught up to him and stabbed him, inflicting four dozen stab wounds, and killing him. The court instructed the jury that as a matter of law a flare gun was a firearm. With this instruction, the court denied appellant due process by taking a critical issue of fact away from the jury in violation of clearly established constitutional law.
Parle v. Runnels (10/10/2007, 9th Cir., No. 06-16780) 2007 U.S. App. LEXIS 23734: Multiple state law errors in the admission and exclusion of evidence accumulated to deprive petitioner of his federal constitutional right to a fair trial.
U.S. v. Vidal
U.S. v. Richard (10/12/2007, 9th Cir., No. 06-10377, 06-10380) 2007 U.S. App. LEXIS 23930: District court abused its discretion by permitting the jury to rehear only a portion of a key witness’s testimony without taking necessary precautions to ensure the jury did not unduly emphasize the testimony.
U.S. v. Rodriguez-Guzman (10/22/2007, 9th Cir., No. 06-10585) 2007 U.S. App. LEXIS 24651: Although statutory rape qualifies as a per se “crime of violence” under the Sentencing Guidelines, California Penal Code section 261.5(c), which sets the age of consent at eighteen, is overly inclusive, exceeding the common and accepted definition of statutory rape, and so cannot be categorically applied to enhance a sentence under U.S.S.G. section 2L1.2(b)(1)(A)(ii).
U.S. v. Banks (10/25/2007, 9th Cir., No. 05-10053) 2007 U.S. App. LEXIS 24932: A conviction and sentence for violence in aid of a racketeering enterprise (VICAR), use of a firearm in a crime of violence, and possession of a firearm by a convicted felon reversed based on erroneous jury instruction allowing conviction under the VICAR statute if the jury found that any element of defendant’s motivation in assaulting a rival gang member was to maintain his membership in his gang.
U.S. v. Hernandez-Vasquez (10/31/2007, 9th Cir., No. 06-50198) 2007 U.S. App. LEXIS 25422: To pass muster under Sell v. U.S. (2003) 539 US 166, a medication order must identify: 1) the specific medication or range of medications that the treating physicians are permitted to use in their treatment of the defendant; 2) the maximum dosages that may be administered; and 3) the duration of time that involuntary treatment of the defendant may continue before the treating physicians must report back to the court on the defendant’s mental condition and progress.
Jordison v. Gonzales (9th Cir. 9/4/2007, No. 04-71026) 2007 U.S. App. LEXIS 21074: Conviction under California Penal Code section (PC) 452(c) for “recklessly set[ting] fire to . . . a structure or forest land” was is a “crime of violence” under 18 USC 16(b).
Polk v. Sandoval (9th Cir. 9/11/2007, No. 06-15735) 2007 U.S. App. LEXIS 21716: Defendant’s federal constitutional right to due process was violated because the instructions given at his trial permitted the jury to convict him of first-degree murder without a finding of the essential element of deliberation.
U.S. v. Sargent (9th Cir. 9/20/2007, No. 06-30498) 2007 U.S. App. LEXIS 22425: A mail technician’s conviction and sentence for theft of public property and theft of postal service property is reversed where: 1) the district court erred by holding that the government proved Postage Statements had “value” in excess of $1,000 within the meaning of 18 USC 641; and 2) the district court also erred by holding that the government proved the Postage Statements had “value” in excess of $1,000 within the meaning of 18 USC 1707.
U.S. v. Yida (8/16/2007, 9th Cir. No. 06-10460) 2007 U.S. App. LEXIS 19468: While the government acted in good faith, it did not use reasonable means to procure the witness’s attendance at defendant’s retrial; and thus, the government did not establish that the witness was unavailable under Federal Rule of Evidence FRE 804(a).
United States v. Garcia (9th Cir. 8/10/2007, No. 05-30596) 497 F3d 964 : Conspirator is not liable for offenses committed by coconspirators before he joined the conspiracy.
United States v. Jernigan (9th Cir. 7/9/2007, No. 05-10086) 492 F3d 1050: Failure to disclose that another bank robber resembled defendant violated Brady.
U.S. v. Forrester (7/6/2007, 9th Cir. No. 05-50410, 05-50493) 2007 U.S. App. LEXIS: Due to district court’s omission and misstatement with regard to the charge and potential prison term defendant’s waiver of his right to counsel was not knowing and intelligent, and that the Sixth Amendment was violated when he was allowed to proceed pro se.
U.S. v. Jernigan (7/9/2007, 9th Cir. No. 05-10086) 492 F3d 1050: Conviction reversed based on Brady claim that, while defendant was in custody, other nearby banks had been robbed by a Hispanic female with a physical resemblance to defendant.
U.S. v. Snellenberger (7/10/2007, 9th Cir. No. 06-50169) 2007 U.S. App. LEXIS 16257: In the context of criminal sentencing, a minute order is “not a judicial record that can be relied upon” to establish the nature of a prior conviction. (Amended opinion)
U.S. v. Horvath (7/10/2007, 9th Cir. No. 06-30447) 492 F3d 1075: In a prosecution for knowingly and willfully makes a materially false statement to the federal government, denial of defendant’s motion to dismiss the indictment is reversed as: 1) defendant’s false statement to a probation officer was submitted, as required by law, to the district court in a presentence report (PSR), in connection with a judicial proceeding to which he was a party; and 2) such statement fell within the exemption from criminal liability codified in 18 U.S.C. section 1001(b).
U.S. v. Jenkins (7/17/2007, 9th Cir. No. 06-50049) 2007 U.S. App. LEXIS 16938: Dismissal of defendant’s indictment for alien smuggling based on the appearance of vindictive prosecution is affirmed where: 1) because the government could have prosecuted defendant for alien smuggling well before she presented her theory of defense at a marijuana smuggling trial, the timing of the charges created the appearance of vindictiveness; and 2) an assertion that the government’s case against defendant was much stronger after her in-court admission of alien smuggling did not suffice to dispel the appearance of vindictiveness.
Winzer v. Hall (7/23/2007, 9th Cir. No. 06-55327) 2007 U.S. App. LEXIS 17462: State courts unreasonably applied federal law by declaring that a hearsay statement was a spontaneous declaration or excited utterance, and the admission of the statement prejudiced the jury.
U.S. v. Grisel (9th Cir. 6/5/2007, No. 05-30585) 2007 U.S. App. LEXIS 13001: Second-degree burglary under Oregon law is not a categorical burglary for purposes of the Armed Career Criminal Act (ACCA) because it encompasses crimes that fall outside the federal definition of generic burglary.
Gautt v. Lewis (9th Cir. 6/6/2007, No. 03-55534) 2007 U.S. App. LEXIS 13018: Defendant’s constitutional due process right to be informed of the charges against him was violated when he was charged with a sentencing enhancement under PC 12022.53(b), but had his sentence enhanced under a second, different statute.
Lopez v. Schriro (9th Cir. 6/20/2007, No. 06-99000) 2007 U.S. App. LEXIS 14470: Certificate of appealability is granted as to claim that petitioner’s counsel rendered ineffective assistance by failing to investigate and present all relevant mitigating evidence at sentencing.
U.S. v. Sine (9th Cir. 5/1/2007, No. 05-10575) 483 F3d 990: Government’s use of a judge’s statements from separate proceedings was highly improper, unfairly prejudiced defendant, and introduced impermissible hearsay into his criminal trial.
U.S. v. Lopez (9th Cir. 5/7/2007, No. 05-50415) 484 F3d 1186: The offense of bringing an alien to the United States in violation of 8 USC 1324(a)(2) is a continuing offense that terminates when the initial transporter who brings the alien to the United States drops off the alien at a location in this country. Any prior decisions adopting or suggesting a different rule are overruled.
U.S. v. Esquivel-Ortega (9th Cir. 5/8/2007, No. 05-30355) 484 F3d 1221: Convictions for conspiracy to distribute cocaine and heroin, and possession of cocaine with intent to distribute are reversed where the government presented no evidence that established defendant’s knowledge or possession of the cocaine, and no evidence of his participation in the conspiracy.
Lambright v. Schriro (9th Cir. 5/11/2007, No. 04-99010) 485 F3d 512 [amended at 2007 U.S. App. LEXIS 15750]: Habeas relief granted in a capital murder case where: 1) the district court erroneously applied a nexus requirement between mitigating evidence and the crime; 2) defense counsel’s performance at sentencing, with regard to his investigation and presentation of mitigating evidence, was deficient.
U.S. v. Curtin (9th Cir. 5/24/200, No. 04-10632) 2007 U.S. App. LEXIS 12110: District court abused its discretion in its FRE 403 review of certain lewd stories describing sexual acts between adults and children, which were in defendant’s immediate possession when he was arrested.
Pulido v. Chrones (9th Cir. 5/30/2007, No. 05-15916) 2007 U.S. App. LEXIS 12437: Murder conviction overturned where: 1) jury instructions left open the possibility that the jury convicted defendant on a legally impermissible theory, namely, that the defendant joined the robbery only after an individual was killed; and 2) the court could not be “absolutely certain” that the jury found that defendant’s crime of robbery was committed contemporaneously with the murder.
U.S. v. Kayser (9th Cir. 5/31/2007, No. 06-50178) 2007 U.S. App. LEXIS 12529: A conviction for tax evasion is reversed where the district court erred in declining to instruct the jury on defendant’s theory of defense, that certain deductions he initially reported on his corporate tax return in 2000 should be applied to eliminate the deficiency on his personal return for that year, because the requested jury instruction was supported by law and had sufficient foundation in the evidence.
U.S. v. Heredia (4/2/2007, No. 03-10585) 2007 U.S. App. LEXIS 7558: District judges are owed the usual degree of deference in deciding when a deliberate ignorance instruction [see U.S. v. Jewell (9th Cir. 1976) 532 F2d 697] is warranted.
U.S. v. Moran (4/2/2007, No. 05-30215, 05-30226) 2007 U.S. App. LEXIS 7560: District court erroneously excluded testimony as to defendants’ good faith defense as hearsay and did not provide a reasoned basis for excluding it under Federal Rule of Evidence 403.
U.S. v. Snellenberger (4/3/2007, No. 06-50169) 480 F3d 1187: In the context of criminal sentencing, a minute order is “not a judicial record that can be relied upon” to establish the nature of a prior conviction.
Brazzel v. State of Washington (4/12/2007, No. 05-36145) 2007 U.S. App. LEXIS 8385: After first jury remained silent on attempted murder charge and convicted defendant of a lesser alternative offense, retrial violated double jeopardy/former jeopardy.
Sarausad v. Porter (9th Cir. 3/7/2007, No. 05-35062, 05-35192) 479 F3d 671: Ambiguous jury instructions on accomplice liability, in combination with other factors, unconstitutionally relieved the state of its burden of proof of an element of the crimes with which he was charged.
US v. Latu (9th Cir. 3/19/2007, No. 05-10815) 2007 U.S. App. LEXIS 6296: Conviction for violating 18 USC 922(g)(5)(B) is reversed pursuant to the government’s confession of error.
US v. Rendon-Duarte (9th Cir. 3/21/2007, No. 06-30200) 2007 U.S. App. LEXIS 6458: District court erred in admitting “prior bad acts.”
Barajas v. Wise (9th Cir. 3/23/2007, No. 06-15494) 2007 U.S. App. LEXIS 6796: Prosecution failed to provide reasons specific to the case to justify nondisclosure of name and address of informant.
U.S. v. Milwitt (9th Cir. 2/5/2007, No. 05-10344) 475 F3d 1150: The crime of bankruptcy fraud under 18 USC 157 requires a specific intent to defraud an identifiable victim or class of victims of the identified fraudulent scheme.
U.S. v. Hernandez (9th Cir. 2/14/2007, No. 05-50920) 476 F3d 791: Reversible error to not provide a lesser included jury instruction on simple possession in prosecution for possession of methamphetamine with intent to distribute.
U.S. v. Castillo-Basa (9th Cir. 2/26/2007, No. 05-50768) 478 F3d 1025: The Double Jeopardy Clause barred the government from trying a second time to attempt to show that defendant was afforded a deportation hearing and that his testimony to the contrary was untruthful.
U.S. v. Jiang (9th Cir. 1/10/2007, No. 05-10671) 472 F3d 1162: Conviction for intentionally making a materially false statement to a federal agent is reversed due to insufficient evidentiary basis upon which to conclude beyond a reasonable doubt that he intentionally made a materially false statement.
U.S. v. Ressam (9th Cir. 1/16/2007, No. 05-30422, 05-30441) 2007 U.S. App. LEXIS 867: Carrying an explosive during the commission of a felony requires a relationship between the underlying crime and the act of carrying an explosive; omission of this element was reversible error.
Benitez v. Garcia (9th Cir. 1/22/2007, No. 04-56231) 2007 U.S. App. LEXIS 1338: State court’s decision not to enforce Venezuela’s expectation, that upon extradition defendant would not be sentenced to a potential life sentence, was objectively unreasonable.
U.S. v. Arnt (9th Cir. 1/25/2007, No. 05-50124, 05-50292) 2007 U.S. App. LEXIS 1640: Reversible error to refuse involuntary manslaughter instruction as lesser included (LIO) of voluntary manslaughter.
10th Circuit Court of Appeals
U.S. v. Fell (10th Circuit, No. 06-1438, 12/18/2007) 2007 U.S. App. LEXIS 29304: Defendant’s prior Colorado state conviction for conspiracy to commit second degree burglary was not a violent felony conviction for purposes of sentencing him as an armed career criminal per James v. U.S. (2007) ____ US ____ [167 LEd2d 532; 127 SCt 1586].
U.S. v. Williams (10th Circuit, No. 06-5036, 12/20/2007) 2007 U.S. App. LEXIS 29534: Indictment required dismissal due to a failure to comply with the requirements of the Speedy Trial Act.
U.S. v. Revels (10th Circuit, No. 06-5223, 12/20/2007) 2007 U.S. App. LEXIS 29524: Order suppressing incriminating statements made by defendant per Miranda is affirmed where a reasonable person in defendant’s position would have considered her freedom of movement to be restricted to a degree consistent with formal arrest.
U.S. v. Schaefer (10th Cir. 9/5/2007, No. 06-3080) 2007 U.S. App. LEXIS 21200: Government failed to establish the requisite jurisdictional nexus of a movement across state lines, or movement in interstate commerce. The government’s evidence concerning defendant’s use of the Internet, standing alone, was not sufficient to establish that the child-pornography images at issue moved across state lines.
U.S. v. Flanders (7/3/2007, 10th Cir. No. 05-6379) 491 F3d 1197: Bank CEO and supermajority shareholder’s conviction and sentence for willful misapplication of bank funds, scheming to defraud a bank, and related counts is reversed in part and remanded for resentencing where: 1) insufficient evidence supported defendant’s conviction for willful misapplication in connection with an automobile loan; 2) the district court incorrectly applied a 2-level sentencing enhancement for violating an administrative order; and 3) the district court failed to adequately notify defendant of its intention to vary upward.
U.S. v. VanDam (7/10/2007, 10th Cir. No. 06-4104) 2007 U.S. App. LEXIS 16271: A sentence for a drug trafficking offense is vacated and remanded where: 1) the government breached its duty under defendant’s plea agreement by failing to recommend a term of imprisonment at the bottom of the applicable range under the sentencing guidelines; 2) under applicable precedent, it was inappropriate to apply a harmless-error analysis; and 3) defendant was entitled to specific performance before the same judge.
U.S. v. Holly (10th Cir. 6/12/2007, No. 05-7130) 2007 U.S. App. LEXIS 13727: District court erroneously instructed the jury on the definition of aggravated sexual abuse by suggesting the victim need only be placed in fear of “some bodily harm.”
U.S. v. Velarde (10th Cir. 5/2/2007, No. 06-2126) 485 F3d 553: District court erred in holding that suppressed Brady evidence was immaterial without first either resolving a disputed question regarding whether the government suppressed information regarding the victim’s supposed false accusations at school or allowing discovery to determine the nature and veracity of her supposed accusations against her teacher and vice principal.
Fleming v. Evans (4/3/2007, No. 06-6110) 2007 U.S. App. LEXIS 7620: Sufficiently egregious misconduct on the part of a habeas petitioner’s counsel may justify equitable tolling of the Antiterrorism and Effective Death Penalty Act (AEDPA) limitations period.
Trammell v. McKune (4/12/2007, No. 06-3316) 2007 U.S. App. LEXIS 8394: Prosecution’s failure to disclose physical evidence linking third party to the crime violated defendant’s due process rights under Brady.
US v. Valenzuela-Puentes (10th Cir. 3/15/2007, No. 04-2283) 2007 U.S. App. LEXIS 6045: Grant of government’s motion to allow for involuntary medication so as to render him competent to stand trial is reversed where: 1) record did not contain sufficient evidence that defendant could be rendered competent through medication despite his exceptionally low IQ; and 2) it was unclear whether the district court applied the appropriate burden of proof.
Anderson v. Sirmons (10th Cir. 2/21/2007, No. 04-6397) 476 F3d 1131: Defendant received constitutionally ineffective assistance of counsel during the penalty phase of his capital trial.
Walck v. Edmondson (10th Cir. 1/4/2007, No. 05-6273) 472 F3d 1227: Double Jeopardy: witness’s absence did not give rise to manifest necessity for the mistrial.
U.S. v. Hall (10th Cir. 1/23/2007, No. 05-1205, 05-1251) 2007 U.S. App. LEXIS 1456: Insufficient evidence of possession and distribution of crack-cocaine.
U.S. v. Sinks (10th Cir. 1/23/2007, No. 05-2170) 2007 U.S. App. LEXIS 1406: Appellants challenging their indictments for failure to charge an offense do not waive their claims by failing to object before trial, but such appellants receive only plain error review when they raise the argument for the first time on appeal.
11th Circuit Court of Appeals
U.S. v. Jones (10/22/2007, 11th Cir., No. 06-15203) 2007 U.S. App. LEXIS 24653: Coercive deadlock instructions: instructions given in response to the jury’s announcement of deadlock constituted a plainly incorrect statement of law.
U.S. v. Robison (10/24/2007, 11th Cir., No. 05-17019) 2007 U.S. App. LEXIS 24825: Clean Water Act : Convictions for CWAct conspiracy and for substantive violations of the CWA vacated due to erroneous definition of “navigable waters” in the jury instruction per Rapanos v. U.S. (2006) ____ US ____ [165 LEd2d 159; 126 SCt 2208]. Prosecution did not meet its burden of showing error was harmless.
Jones v. Walker (8/22/2007, 11th Cir. No. 04-13562) 2007 U.S. App. LEXIS 19908: Trial court erroneously deprived petitioner of his Sixth Amendment right to counsel.
U.S. v. Lopez-Vanegas (7/26/2007, 11th Cir. No. 05-15021) 2007 U.S. App. LEXIS 17792: Because 21 USC 841 and 21 USC 846 do not apply extraterritorially to discussions occurring in the United States related to possession of controlled substances outside of the United States do not violate those statutes.
Ogle v. Johnson (11th Cir. 6/15/2007, No. 06-11074) 2007 U.S. App. LEXIS 14022: Pro se petitioner fairly presented his claim to a state habeas court by making a bare allegation of ineffective assistance of appellate counsel in his state habeas petition and then describing in briefs and testimony in later proceedings several instances of alleged ineffective assistance.
U.S. v. Garey (4/11/2007, No. 05-14631) 2007 U.S. App. LEXIS 8273: Erroneous finding that defendant voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel.
U.S. v. Orisnord (4/11/2007, No. 05-14659) 2007 U.S. App. LEXIS 8287: Insufficient evidence to sustain firearm conviction.
U.S. v. Ohayon (4/12/2007, No. 05-17045) 2007 U.S. App. LEXIS 8390: Defendant’s acquittal on a charge of an attempted drug offense required dismissal of a charge of a drug conspiracy on which the jury was unable to reach a verdict, as the prosecution was collaterally estopped from retrying defendant for conspiracy to possess with intent to distribute drugs.
U.S. v. Garcia-Jaimes (4/19/2007, No. 05-14475) 2007 U.S. App. LEXIS 8963: Gun conviction reversed.
Thompson v. U.S. (11th Cir. 3/14/2007, No. 05-16970) 2007 U.S. App. LEXIS 6410: Guilty plea must be vacated because counsel did not adequately consult with defendant on his right to appeal and defendant was prejudiced from such failure.
Spottsville v. Terry (11th Cir. 2/1/2007, No. 05-12656) 2007 U.S. App. LEXIS 2144: Dismissal of habeas petition as untimely is reversed where petitioner is entitled to equitable tolling for having been misled by the written order of the court that denied his state petition.
D.C. Circuit Court of Appeals
U.S. v. Adefehinti (D.C. Circuit, No. 04-3080, 12/18/2007) 2007 U.S. App. LEXIS 29215: Money laundering conviction reversed where the evidence was insufficient to show defendant intended to conceal funds.
U.S. v. Powell (10/5/2007, DC, No. 05-3202) 503 F3d 147: Conviction for violating 21 USC 860(a), which enhances a sentence for drug offenses occurring within 1000 feet of a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, vacated due to lack of evidence.
U.S. v. Weathers (7/17/2007, No. 06-3022) 2007 U.S. App. LEXIS 16919: Trial counsel provided constitutionally inadequate assistance by failing to challenge two counts of the indictment related to defendant’s threats to injure the prosecutor as multiplicitous and in violation of the Double Jeopardy Clause.
U.S. v. Littlejohn (D.C. Cir. 6/19/2007, No. 05-3081) 2007 U.S. App. LEXIS 14358: District court’s use of compound voir dire questions deprived defendant of his Sixth Amendment right to an impartial jury.
In re: Grand Jury (D.C. Cir. 6/22/2007, No. 06-3078) 2007 U.S. App. LEXIS 14809: Grand jury witnesses are entitled to review the transcripts of their own testimony in private.
Supreme Court of Delaware
Watson v. State (9/11/2007, No. 72-2007) 2007 Del. LEXIS 403: Judge abused her discretion when she failed to recuse herself because defendant’s rape trial immediately followed an earlier trial in which she had found the same defendant guilty of robbery in the second degree.
Bentley v. State of Delaware (6/11/2007, No. 387, 2006) 2007 Del. LEXIS 267: Trial court’s limitation of defendant’s cross examination of a witness pursuant to her assertion of her Fifth Amendment privilege created at least a substantial danger of prejudice to his right to a fair trial.
Dolan v. State of Delaware (5/10/2007, No. 345, 2006, 368, 2006) 2007 Del. LEXIS 214: To be convicted of second degree burglary, a person must form the intent to commit a crime inside the dwelling before or at the time he enters the dwelling.
Dahl v. State of Delaware (5/15/2007, No. 422, 2006) 2007 Del. LEXIS 220: A conviction of loitering by a sex offender within 500 feet of a school is reversed where the state presented insufficient evidence at trial to prove beyond a reasonable doubt that a dance academy was a “school.”
Supreme Court of Florida
Barnes v. State of Florida (11/29/2007, No. SC06-662) 2007 Fla. LEXIS 2203: When prior testimony has been read to a jury during a trial proceeding as testimonial evidence, a written transcript of that testimony is not and should not be admitted into evidence as an exhibit and provided to the jury during deliberations pursuant to Florida Rule of Criminal Procedure 3.400(a)(4).
Green v. State of Florida (10/11/2007, No. SC05-2265, SC06-1533) 2007 Fla. LEXIS 1898: IAC at Sentencing Phase of Death Penalty Case: counsel was prejudicially ineffective in failing to investigate the case file in defendant’s prior New York case.
State of Florida v. Sigler (10/11/2007, No. SC04-1934) 2007 Fla. LEXIS 1893: LIO Per Order Of Appellate Court: Florida Statutes section 924.34 is unconstitutional to the extent that it can be read to allow the appellate court to direct entry of judgment for a lesser-included offense when all of the elements of the lesser-included offense have not been found by a jury beyond a reasonable doubt.
Insko v. State of Florida (9/20/2007, No. SC06-1619) 2007 Fla. LEXIS 1676: For purposes of a statute outlawing lewd or lascivious conduct, the defendant’s age is an element of the crime, as opposed to a potential sentencing enhancement, and thus must be alleged in the indictment or information, proved at trial, and found by the jury.
Polite v. State of Florida (9/27/2007, No. SC06-1401) 2007 Fla. LEXIS 1789: Knowledge that a victim is a law enforcement officer is an essential element of the offense of resisting an officer with violence under Florida Statutes section 843.01.
Cuervo v. State of Florida (7/12/2007, No. SC06-1156) 2007 Fla. LEXIS 1229: If a suspect indicates in any manner that he or she does not want to be interrogated, interrogation must immediately stop. Once a suspect has invoked the right against self-incrimination, a potentially misleading elaboration of the right by police renders a resulting waiver invalid.
Jones v. State of Florida (7/12/2007, No. SC04-2231) 2007 Fla. LEXIS 1232: Death sentence reversed where: 1) there was insufficient evidence to maintain an avoid arrest aggravator as the proof was lacking that the dominant or only motive for the killing was to avoid arrest; and 2) the imposition of the death sentence would not be proportionate based on the existence of the single aggravator that remained.
Sims v. State of Florida (7/12/2007, No. SC04-18790) 2007 Fla. LEXIS 1226: Trial counsel was ineffective for failing to properly challenge a detective’s canine-alert evidence, and he was prejudiced by the deficient performance.
Brown v. State of Florida (6/14/2007, No. SC06-628) 2007 Fla. LEXIS 1051: Felony murder conviction and conviction for the lesser included misdemeanor of the separately charged underlying felony are inconsistent verdicts.
Williams v. State of Florida (5/10/2007, No. SC06-594) 2007 Fla. LEXIS 842: Under Florida law, lewd or lascivious battery is a permissive lesser included offense of a sexual battery.
Offord v. State of Florida (5/24/2007, No. SC05-1611) 2007 Fla. LEXIS 951: Death sentence reduced to life without parole because under the totality of the circumstances of this case compared to other capital cases, death was a disproportionate punishment.
Kopsho v. State of Florida (5/24/2007, No. SC05-763) 2007 Fla. LEXIS 953: Defendant’s conviction and death sentence for the murder of his wife is reversed where the trial court committed reversible error in the denial of a challenge for cause of a potential juror on the basis of his stated views regarding a defendant’s right to remain silent.
Mendoza v. State of Florida (5/24/2007, No. SC04-1881, SC05-2143) 2007 Fla. LEXIS 952: Denial of petitioner’s his motion to vacate his conviction of first-degree murder and sentence of death is reversed and remanded where the circuit court’s order effectively summarily denied postconviction relief, and a remand was required for a new evidentiary hearing on ineffective assistance of counsel claims.
Illinois Supreme Court
People v. Ortiz (No. 1-06-1314, 12/17/2007) 2007 Ill. App. LEXIS 1290: First degree murder conviction reversed based on newly discovered evidence.
People v. Johnson (11/5/2007, Nos. 5-05-0461 & 5-05-0620) 2007 Ill. App. LEXIS 1163: Dismissal of defendant’s postconviction petition was error where defendant’s petition presented the gist of a constitutional claim.
People v. McKown (9/20/2007, No. 102372) 2007 Ill. LEXIS 1163: Trial court and the appellate court erred in taking judicial notice of the general acceptance of the reliability of the HGN (Horizontal Gaze Nystagmus) test as an indicator of alcohol impairment without conducting a Frye hearing.
People v. Houston (8/2/2007, No. 102225) 2007 Ill. LEXIS 1147: Cause remanded with directions to hold a hearing to reconstruct the record of voir dire proceedings where no record was made of the voir dire process, and thus the court is unable to determine whether the defendant has been prejudiced by trial counsel’s failure to raise a Batson claim.
People v. Wheeler (6/21/2007, No. 102550) 2007 Ill. LEXIS 1146: Statements made by the prosecutor during closing arguments warranted a new trial.
Illinois Court of Appeals
People v. Powers (9/24/2007, No. 2-06-1246, 2-07-0093cons.) 2007 Ill. App. LEXIS 1023: Any party, whether represented by counsel or not, has the power to withdraw an appeal by any means and the court cannot conclude that a defendant must proceed with an appeal simply because counsel has already filed a notice of appeal.
People v. Allen (8//7/2007, No. 3-06-0783) 2007 Ill. App. LEXIS 856: Conviction for drug-related driving under the influence reversed where the State failed to prove defendant had at least some cannabis or THC “in his breath, urine, or blood.”
New York Court of Appeals
People v. Danielson (No. 170, 171, 12/13/2007) 9 N.Y.3d 342: Appellate affirmance overturned where reviewing court limited its weight of the evidence review to credibility issues and failed to weigh the conflicting testimony and conflicting inferences in light of the elements as charged at trial.
People v. Jones (11/20/2007, No. 145) 2007 N.Y. LEXIS 3278: Conviction based on guilty plea to disorderly conduct is vacated where the factual allegations in the accusatory instrument failed to establish a prima facie case.
People v. Taylor (10/23/2007, No. 123) 2007 N.Y. LEXIS 2916: Coercive Deadlock Instructions: As New York’s jury deadlock instruction under CPL 400.27 was held, in People v LaValle (2004) 3 NY3d 88, to violate the State Constitution, an earlier attempt by a trial court to minimize the coercive effect of the flawed jury deadlock instruction in a death penalty case requires vacating defendant’s death sentence under the doctrine of stare decisis.
People v. Sedlock.(6/5/2007, No. 77) 8 NY3d 535: Information did not properly give defendant notice of the charge so that he could adequately prepare a defense.
State of New York ex rel. Harkavy v. Consilvio (6/5/2007, No. 70) 2007 N.Y. LEXIS 1272: State improperly used the involuntary civil commitment procedures to transfer offenders directly from prison to mental health facilities.
People v. Dukes (5/1/2007, No. 63) 8 N.Y.3d 952: Dismissal of a sworn juror over defendant’s objection was error because the court failed to determine that the juror was unqualified.
People v. Castillo (5/3/2007, No. 65) 8 N.Y.3d 959: Possession of a controlled substance and robbery guilty plea vacated where the plea was jurisdictionally defective as defendant was not charged with robbery.
People v. Havrish (4/3/2007, No. 31) 2007 N.Y. LEXIS 609: Denial of motion to suppress is reversed where defendant’s surrender of the handgun was privileged under the Fifth Amendment privilege against self-incrimination.
Texas Criminal Court of Appeals
Hicks v. State of Texas (No. PD-0154-06, 12/12/2007) 2007 Tex. Crim. App. LEXIS 1749: Error to substitute the word “possession” for the definition of “care, custody, or control” in Texas statute punishing injury to a disabled person by omission. (Texas Penal Code § 22.04(d).)
Ex Parte Van Alstyne (11/14/2007, No. AP-75,795) 2007 Tex. Crim. App. LEXIS 1631: Sentence properly reduced from death to life based on Atkins mental retardation claim.
Ex parte Knipp (10/3/2007, No. AP-75,624) 2007 Tex. Crim. App. LEXIS 1265: Double Jeopardy: Habeas petition is granted pursuant to a meritorious double-jeopardy claim.
Williams v. State of Texas (10/3/2007, No. PD-0446-06) 235 SW3d 742: Insufficient Evidence: A conviction for injury to a child after defendant’s two children died in an accidental house fire while her boyfriend was babysitting them is reversed as the evidence of a criminally reckless mens rea and causation were legally insufficient to sustain the conviction.
Michael v. State of Texas (10/3/2007, No. PD-1611-05) 235 SW3d 723: Prosecutor’s Vouching For Witness Credibility: Reviewing court used an improper standard in rejecting a claim that the trial court erred by permitting the state to bolster the credibility of its essential witness, although her character for truthfulness had not been attacked.
Ex parte Zapata (10/10/2007, No. AP-75,784) 235 SW3d 794: Withdrawal Of Guilty Plea – Recanting Witnesses: Habeas relief granted because at the time applicant moved to withdraw his plea, he was unable to produce the recantation testimony, through no fault of his own.
Cannon v. State of Texas (10/17/2007, No. PD-1084-05) 2007 Tex. Crim. App. LEXIS 1455: IAC: Abandoning Role As Advocate: Defense counsel’s behavior, considered as a whole, constructively denied appellant his Sixth Amendment right to the effective assistance of counsel. Defense counsel, although physically present in the courtroom at all the requisite times, effectively boycotted the trial proceedings and entirely failed to subject the prosecution’s case to meaningful adversarial testing. In so doing, he abandoned his role as advocate for the defense and caused the trial to lose its character as a confrontation between adversaries, and prejudice to the defense is legally presumed.
Stewart v. State of Texas (10/31/2007, No. PD-0255-07) 2007 Tex. Crim. App. LEXIS 1475: Tampering With Evidence/Insufficient Evidence: Police officer’s conviction for tampering with physical evidence is reversed because the evidence was legally insufficient to show that defendant had the conscious objective or desire to impair the availability of the marijuana as evidence.
Shaw v. State of Texas (10/31/2007, No. PD-0211-06) 2007 Tex. Crim. App. LEXIS 1479: Instruction On “Good Samaritan” Defense: To obtain an instruction on the “Good Samaritan” defense embodied in Section 22.04(k) of the Texas Penal Code, an appellant must show that the record contains evidence sufficient to support a rational finding that she in fact harbored the requisite mental state, but nevertheless engaged in the conduct under emergency circumstances, in good faith, and with reasonable care.
Rubio v. State of Texas (9/12/2007, No. AP-74,852) 2007 Tex. Crim. App. LEXIS 1125: The trial court erred in admitting the statements made to the police by defendant’s common-law wife and alleged accomplice in the murders.
Ex Parte Martinez (9/12/2007, No. AP-75,364) 2007 Tex. Crim. App. LEXIS 1121: Death penalty verdict reversed where the trial jury did not have a vehicle to meaningfully consider applicant’s mitigating evidence.
Villanueva v. State of Texas (6/27/2007, No. PD-0718-06, PD-0719-06) 2007 Tex. Crim. App. LEXIS 866: Punishing defendant in the same proceeding for injury to a child by act and injury to a child by omission violated double-jeopardy protection.
Thompson v. State of Texas (6/27/2007, No. PD-0044-06) 2007 Tex. Crim. App. LEXIS 871: Transferred intent – mistake of fact may be raised as a defense.
Hall v. State of Texas (5/9/2007, No. PD-1594-02) 2007 Tex. Crim. App. LEXIS 625: The determination of whether the allegation of a greater offense includes a lesser offense should be made by comparing the elements of the greater offense, as the state pled it in the indictment, with the elements in the statute that defines the lesser offense.
Flores v. State of Texas (5/23/2007, No. PD-0904-06) 2007 Tex. Crim. App. LEXIS 656: Reviewing court applied the wrong harmless-error standard in finding that a charge to the jury, which erroneously limited the jury’s consideration of the defense of self-defense by including an instruction on the law of provocation, constituted harmless error.
Mixon v. State of Texas (5/23/2007, No. PD-0018-06) 2007 Tex. Crim. App. LEXIS 654: An attorney-client privilege is established when a person consults with a lawyer with a view to obtaining professional legal services from him, even if the lawyer declines to represent that person at the end of the consultation.
Jones v. State of Texas (4/4/2007, No. PD-0230-06) 2007 Tex. Crim. App. LEXIS 391: Refusal to permit defense counsel to ask a proper question during voir dire violated the Texas Constitution.
LaPointe v. State of Texas (4/25/2007, No. 1100-06) 2007 Tex. Crim. App. LEXIS 505: The “hearing” before determining whether to admit evidence of an alleged victim’s past sexual history must be an adversarial proceeding.
Ex parte Masonheimer (Tex. Crim. App. 3/21/2007, No. PD-521-05) 2007 Tex. Crim. App. LEXIS 373: Prosecution was jeopardy-barred under state and federal constitutions because defendant’s mistrial motions, which resulted in termination of two earlier proceedings prior to verdict, were provoked by the state’s intentional failure to disclose exculpatory evidence with the specific intent to avoid an acquittal at the earlier proceeding.
Ex parte Roemer (Tex. Crim. App. 2/28/2007, No. AP-75,104) 215 SW3d 887: A prior conviction for involuntary manslaughter was improperly used to enhance defendant’s sentence to a felony.
Ex parte Lewis (1/10/2007, No. PD-0577-05) 2007 Tex. Crim. App. LEXIS 33: Under Oregon v. Kennedy (1982) 456 US 667, the Double Jeopardy bars retrial after a defendant successfully moves for mistrial only when it is shown that the prosecutor engaged in conduct that was intended to provoke the defendant into moving for a mistrial. (See Ex parte Lewis 2007 Tex. Crim. App. LEXIS 33 [overruling Bauder v. State (Tex. Crim. App. 1996) 921 SW2d 696, 699].)
Stuhler v. State of Texas (1/24/2007, No. PD-1723-05) 2007 Tex. Crim. App. LEXIS 62: Injury to child conviction reversed because (1) child’s constipation is not “serious bodily injury” and (2) disjunctive application paragraph violated appellant’s right to a unanimous jury verdict.
Fletcher v. State of Texas (1/31/2007, No. PD-1809-05, PD-1810-05) 2007 Tex. Crim. App. LEXIS 97: Judicial notice that enhancement conviction was final relieves state of its burden of proving finality of the conviction.
