United States v. Rivera-Ruiz

Court: US Court of Appeals for the First Circuit

Docket: 19-1992

Opinion Date: August 4, 2022

Judge: Jeffrey R. Howard

Areas of Law: Criminal Law

The First Circuit vacated Appellant's upwardly variant sentence of sixty months imposed in connection with his plea of guilty to one count of racketeering, holding that the sentencing court procedurally erred by basing Appellant's variant sentence, in part, upon certain evidence that lacked any indicia of reliability.

Appellant, a former police officer with the Puerto Rico Police Department (PRPD), was convicted for his involvement with a corrupt group of PRPD officers. On appeal, Appellant challenged, among other things, the procedural reasonableness of his sentence, contending that the district court erred by relying upon his record of unadjudicated administrative complaints filed against Appellant during his career as an officer. The First Circuit agreed and vacated the sentence, holding that the district court's reliance upon Defendant's record of administrative complaints was insufficiently supported, and the error was not harmless.

United States v. Staveley

Court: US Court of Appeals for the First Circuit

Docket: 21-1842

Opinion Date: August 2, 2022

Judge: Selya

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The First Circuit dismissed this appeal, in which Appellant sought to override an appeal waiver and to proceed with an appeal based on the alleged ineffective assistance of his counsel, holding that ineffective assistance of counsel claims not raised in the district court and not within an exception to United States v. Mala, 7 F.3d 1058 (1st Cir. 1993), are insufficient to overcome an appeal waiver.

Defendant agreed to plead guilty to conspiracy to commit bank fraud and to failure to appear in court pursuant to a plea agreement that contained a waiver-of-appeal provision. After sentencing, Defendant appealed, asserting for the first time that his counsel afforded him ineffective assistance both at the time he entered his plea and at sentencing. The First Circuit dismissed the appeal, holding that Defendant's ineffective assistance of counsel allegations fell within the Mala rule and could not surmount his waiver of appeal.

United States v. Jones

Court: US Court of Appeals for the Second Circuit

Docket: 20-3009

Opinion Date: August 1, 2022

Judge: DEBRA ANN LIVINGSTON

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Defendant was indicted for knowingly producing child pornography in violation of federal law. He moved to suppress evidence gathered from his electronic devices, arguing that the government’s search warrants lacked probable cause and therefore violated his Fourth Amendment rights. The district court denied the motion. Defendant then pleaded guilty but reserved the right to appeal the district court’s decision on his motion to suppress.
 
The Second Circuit affirmed the district court’s judgment explained that it disagrees with the district court that Defendant’s prior guilty plea to an earlier charge in Tennessee state court precludes him from challenging the search warrants in this case. But the court agreed that even assuming arguendo that the warrants are defective, the good-faith exception to the exclusionary rule applies.
 
The court explained that there was at least arguable probable cause for the Tennessee Warrants, therefore, the Detective acted based on an “'objectively reasonable good-faith belief’ that [his] conduct [was] lawful.” The court further wrote that the affidavits at issue here are not so devoid of factual support because they detail allegations from State Victim 1’s mother that support the common-sense inference that her daughter told her that Defendant took nude photographs of her.

Yoo v. United States

Court: US Court of Appeals for the Second Circuit

Docket: 21-2755

Opinion Date: August 1, 2022

Judge: Gerard E. Lynch

Areas of Law: Criminal Law, International Law

Petitioner appealed from a district court judgment denying his petition for writ of habeas corpus in connection with an extradition proceeding. Petitioner argued that the text of the relevant extradition treaty and its legislative history indicate that whether extradition is time-barred is a question for the extradition court, which cannot issue a certificate of extraditability if extradition is so barred.
 
The Second Circuit affirmed, concluding that the most natural reading of the relevant extradition treaty’s text is that the issue of timeliness is a matter for the relevant executive authority to decide in its discretion, not a question for the extradition court to decide as a matter of law. The court explained that based on the customary meaning of the word “may” and its particular use in Article 6 of the Treaty; the Senate Report’s Technical Analysis, the most authoritative item of legislative history cited by either party to this case; and the government’s consistent position as to the meaning of the provision, the court held that the plain meaning of the word “may” in that provision is discretionary, and not mandatory, in nature.
 
The court further explained that because Article 6's Lapse of Time provision is discretionary, the decision whether to deny extradition on the basis that the Requested State’s relevant statute of limitations would have barred prosecution had the relevant offense been committed within that State’s jurisdiction is a decision consigned to that State’s relevant executive authority, and is not a mandatory determination to be made by a federal court before issuing a certificate of extraditability.

USA v. Thomas Noble

Court: US Court of Appeals for the Third Circuit

Docket: 20-1599

Opinion Date: August 2, 2022

Judge: Michael A. Chagares

Areas of Law: Constitutional Law, Criminal Law

Defendant was indicted for various child pornography offenses in February 2018. Defendant expressed his intention to represent himself and the district court permitted him to do so, but appointed the Federal Public Defender's Office as standby counsel. However, subsequently, Defendant announced to the court he was invoking his Fifth Amendment right to remain silent and largely refused to participate in the proceedings. After holding a hearing, the district court held that Defendant waived and forfeited his right to represent himself and appointed the Federal Public Defender's Office as his attorney. Ultimately, Defendant was convicted and sentenced to 180 months of imprisonment.

On appeal, Defendant challenged the district court's determination that he waived and forfeited his right to represent himself. The court affirmed Defendant's conviction. The court explained "the right to represent oneself is not absolute, however; judges 'may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.'" Here, Defendant stopped communicating with the court, failed to open his legal mail and repeatedly violated court orders. Thus, the Third Circuit held that the district court did not err in concluding that "it would be impossible to conduct a fair trial with a pro se defendant who refused to cooperate or engage at all with the court."

USA v. Yu Xue

Court: US Court of Appeals for the Third Circuit

Docket: 21-2227

Opinion Date: August 2, 2022

Judge: Michael A. Chagares

Areas of Law: Criminal Law, White Collar Crime

Defendant, a former scientist employed by GlaxoSmithKline (GSK), pled guilty to a single count of conspiracy to steal trade
secrets, in violation of 18 U.S.C. 1832(a)(5) based on allegations he stole company documents. At sentencing, the government sought a sentencing enhancement based on the “loss” attributable to Defendant's conduct. However, the district court denied the government's request for an enhancement.

On appeal, the Third Circuit affirmed. The court noted that finding that under the commentary to U.S.S.G. 2B1.1, the definition of “loss” includes losses that the defendants intended. However, here, it was uncontested that GSK did not suffer any actual loss. Further, the court determined that the government failed to prove that Defendant purposely sought to inflict pecuniary harm on GSK.

US v. Antwan Heyward

Court: US Court of Appeals for the Fourth Circuit

Docket: 18-4819

Opinion Date: August 3, 2022

Judge: TOBY HEYTENS

Areas of Law: Criminal Law

Defendant pleaded guilty to “knowingly” possessing a firearm after being convicted of “a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. Sections 922(g)(1), 924(a)(2). Two years later, the Supreme Court held that the word 'knowingly’ applies both to the defendant’s conduct and to the defendant’s status. Defendant was was not advised of the second knowledge requirement before pleading guilty, and his lawyer made no objection to that omission.

The Fourth Circuit vacated Defendant’s conviction. The court held that Defendant s the rare defendant who can make the “difficult” showing that, had he been properly advised, “there is a reasonable probability that he would not have pled guilty,” Greer v. United States, 141 S. Ct. 2090 (2021).

The court explained that “satisfying all four prongs of the plain-error test is difficult,” and the ultimate decision to grant relief is always discretionary. Greer, 141 S. Ct. at 2096–97. Here, based on on all the facts and circumstances of this case, the court concluded it is appropriate to exercise our discretion to correct this particular Rehaif error. That error resulted in Defendant unknowingly agreeing that the government need not advance proof of the knowledge-of-status element, notwithstanding his persistent and contemporaneous assertions that he had not known of his legal status at the relevant time. Because these circumstances raise obvious—and troubling—questions about whether Defendant would have so agreed had he been fully and correctly informed, allowing the current plea to stand without further inquiry would seriously affect the fairness, integrity, and public reputation of judicial proceedings.

US v. Shelby Petties

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-4332

Opinion Date: August 1, 2022

Judge: PAMELA HARRIS

Areas of Law: Criminal Law

The appeal turns on a plea agreement between Defendant and the government. In that agreement, the government promised to dismiss two of the three counts on which Defendant had been indicted. In exchange, Defendant agreed to plead guilty to the remaining count: committing a crime of violence – kidnapping – while having failed to register as a sex offender. But under the parties’ conditional plea agreement, Defendant expressly reserved the right to appeal his conviction on the ground that kidnapping is not categorically a crime of violence. Defendant did appeal, and the government conceded that under intervening precedent, he was correct.
 
The Fourth Circuit, therefore, vacated the judgment against Defendant and remanded to the district court. The district court then entered the decision at issue on appeal: Over Defendant’s objection, the court allowed the government to proceed against Defendant on one of the charges previously dismissed under the plea agreement, for failure to register as a sex offender.
 
On appeal, Defendant challenges that decision and his resulting conviction, arguing that his plea agreement barred the government from pursuing the dismissed charges. Accordingly, the Fourth Circuit vacated Defendant’s conviction and sentence and remanded to the district court with instructions to order his release from federal custody. The court explained that the parties that Section 3296 is neither sufficient (the government) nor necessary (Defendant) to allow for prosecution on the dismissed charges after Defendant’s conviction was vacated on appeal; here, it is the plea agreement itself that controls. That is enough to dispose of this case.

Gonzalez v. Trevino

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-50276

Opinion Date: July 29, 2022

Judge: Engelhardt

Areas of Law: Constitutional Law, Criminal Law, Personal Injury

Appellee brought a retaliatory arrest claim against the Mayor and Chief of Police of Castle Hills, claiming that she was arrested for engaging in protected speech. However, Appellee acknowledges that there was probable cause for her arrest. Appellants asserted a qualified immunity defense. The district court denied Appellants' motion to dismiss.

On appeal, the Fifth Circuit reversed the district court's order denying Appellant's motion to dismiss, finding Appellee failed to establish a violation of her constitutional rights in her retaliatory arrest claim because the arresting officer had probable cause to arrest. While probable cause to arrest does not necessarily preclude a retaliatory arrest claim, Appellee failed to establish any of these exceptions.

USA v. Perez

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-50945

Opinion Date: August 3, 2022

Judge: Jerry E. Smith

Areas of Law: Constitutional Law, Criminal Law

Defendant made two social media posts indicating that he paid another man, who was positive for COVID-19, to lick every item at a local grocery store. Defendant did not actually pay the other man, but the posts "set off alarm bells" resulting in FBI agents being dispatched to the grocery store.

Defendant was indicted and ultimately convicted under 18 U.S.C. 1038(a)(1) for orchestrating a hoax that simulated another crime. Defendant claimed on appeal that the biological-weapons statute did not extend to conduct such as licking items in a grocery store and that the terrorist-hoax statute is an unconstitutional restriction on free speech. The Fifth Circuit rejected Defendant's challenges, finding that although the
biological-weapons statute does contain an implied exception for local crimes, Defendant's purported conduct was serious enough to place him within the purview of federal law enforcement, and threats like Defendant's are not protected by the First Amendment.

Gabrion, II v. United States

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-2382

Opinion Date: August 4, 2022

Judge: Batchelder

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Sixth Circuit affirmed the judgment of the district court denying Appellant's 28 U.S.C. 2255 motion for relief from his first-degree murder conviction, holding that there was no merit to any of Appellant's claims on appeal.

In his section 2255 petition, Appellant claimed that he was deprived of the effective assistance of trial counsel (IAC). The Sixth Circuit granted a certificate of appealability on Appellant's IAC claim concerning an alleged conflict of interest, a Brady claim, an IAC claim regarding the investigation at the guilt stage, and a final IAC claim regarding the presentation of mitigation evidence at the penalty phase. The district court denied the petition. The Sixth Circuit affirmed, holding that Appellant was not entitled to relief on any of his claims of error.

Rogers v. Mays

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-5427

Opinion Date: August 3, 2022

Judge: Karen Nelson Moore

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Sixth Circuit affirmed in part, reversed in part and vacated in part the district court's denial of Appellant's petition for a writ of habeas corpus, holding that, in Tennessee, ineffective assistance of post-conviction counsel can establish cause to excuse a defendant's procedural default of a substantive claim of ineffective assistance at the motion-for-a-new-trial stage of the proceedings.

Appellant was convicted of first-degree premeditated murder, first-degree felony murder, aggravated kidnapping, rape of a child, and criminal impersonation. The jury sentenced Appellant to death. The Tennessee Supreme Court affirmed. Appellant later filed a habeas petition, which the district court denied. The Sixth Circuit (1) affirmed the district court with respect to the guilt phase of Defendant's trial; (2) held that Appellant's counsel rendered ineffective assistance at the sentencing phase, requiring remand with instructions to grant habeas on this claim as to the penalty phase; and (3) vacated the district court's findings that Appellant failed to overcome his procedural default on certain claims; and (4) reversed the court's finding that the Martinez-Trevino exception to procedural default cannot excuse a procedural default when the underlying ineffective assistance occurred in a motion for a new trial.

United States v. Musaibli

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-1013

Opinion Date: August 2, 2022

Judge: Karen Nelson Moore

Areas of Law: Criminal Law

The Sixth Circuit reversed the judgment of the district court denying the government's motion to admit records documenting a terrorist group's organizational structure, logistics, and activities as statements of co-conspirators under Fed. R. Evid. 801(d)(2)(E), holding that the district court erred.

A grant jury indicted Defendant for his ISIS-related activities. Before trial, the government identified certain exhibits recovered from various ISIS facilities and moved to admit the documents as statements of co-conspirators admissible under Fed. R. Evid. 801(d)(2)(E). The district court denied the government's motion. The Sixth Circuit reversed, holding that the government adequately defined the scope of the conspiracy that it claimed existed, and the district court clearly erred in ruling otherwise.

Roberts v. LeJeune

Court: US Court of Appeals for the Seventh Circuit

Docket: 18-1092

Opinion Date: August 4, 2022

Judge: Diane Pamela Wood

Areas of Law: Criminal Law, White Collar Crime

The Seventh Circuit affirmed the judgment of the district court denying Petitioner's petition for a writ of habeas corpus under 28 U.S.C. 2241 challenging his money-laundering convictions, holding that Petitioner did not face the kind of "fundamental miscarriage of justice" that must exist to justify relief under section 2241.

After a jury trial, Petitioner was convicted of violations of the Mann Act, 18 U.S.C. 2421-24, the money-laundering statute, 18 U.S.C. 1956, and associated conspiracies and sentenced to a 432-month term of imprisonment. Petitioner later filed his habeas petition arguing that he was convicted on the money-laundering counts for conduct that was not a crime. The district court denied relief. The Seventh Circuit affirmed, holding that Petitioner failed to establish that he faced a "fundamental miscarriage of justice" necessary to justify relief under section 2241.

Smith v. Boughton

Court: US Court of Appeals for the Seventh Circuit

Docket: 17-2192

Opinion Date: August 4, 2022

Judge: Scudder

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Seventh Circuit affirmed the judgment of the district court denying Appellant's petition for a writ of habeas corpus, holding that the Wisconsin Supreme Court's decision affirming Defendant's conviction did not reflect an unreasonable application of clearly established law.

Defendant moved to suppress incriminating statements he made to a detective, arguing that his statement "I don't want to talk about this" expressed an unambiguous intention to cut off all further questioning and that the detective's continued questioning violated Miranda v. Arizona, 384 U.S. 436 (1966). The trial court denied the motion, after which Defendant pleaded guilty to armed robbery and first-degree reckless injury. The Wisconsin Supreme Court affirmed, holding that there was no abuse of Miranda. Thereafter, Appellant brought his habeas petition. The Seventh Circuit affirmed the district court's denial of the petition, holding that the Wisconsin Supreme Court's decision amounted to a reasonable application of the Supreme Court's Miranda line of cases.

United States v. Davis

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-1778

Opinion Date: August 4, 2022

Judge: Diane S. Sykes

Areas of Law: Criminal Law

The Seventh Circuit vacated Defendant's above-Guidelines sentence of eighty-four months in prison imposed in connection with his plea of guilty to possessing a firearm as a felon, holding that the sentencing decision rested on conflicting findings that could not be reconciled.

Based largely on his finding that Defendant was an active participant in the shoot-out at issue rather than an innocent bystander, the sentencing judge imposed an above-guidelines sentence of eighty-four months in prison. On appeal, Defendant argued that the judge selected the sentence based on the clearly erroneous finding that he was an active participant in the shooting. The Seventh Circuit agreed and remanded the cause for resentencing, holding that the record reflected an "inscrutable inconsistency" in the factual findings on which the judge based his choice of sentence.

United States v. Dickerson

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-3093

Opinion Date: August 2, 2022

Judge: Kenneth Francis Ripple

Areas of Law: Criminal Law

The Seventh Circuit affirmed the judgment of the district court imposing an above-Guidelines sentence of eighty-four months after Defendant pleaded guilty to being a felon in possession of a firearm, holding that the sentence was procedurally and substantively reasonable.

The court ultimately calculated Defendant's new offense level to be seventeen, yielding an advisory Guidelines range of fifty-one to sixty-three months' imprisonment. The district court concluded that an upward variance from the advisory guidelines range was required to protect the public and sentenced Defendant to eighty-four months' imprisonment. The Seventh Circuit affirmed, holding that Defendant's sentence was both procedurally and substantively reasonable.

United States v. Fierro

Court: US Court of Appeals for the Seventh Circuit

Dockets: 21-2989, 21-2730

Opinion Date: August 2, 2022

Judge: Joel Martin Flaum

Areas of Law: Constitutional Law, Criminal Law

The Seventh Circuit affirmed Defendants' convictions for arson stemming from their participation in riots in Madison, Wisconsin following the shooting of a Black man by a police officer in Kenosha, Wisconsin, holding that the district court properly held that 18 U.S.C. 844(i) is constitutional.

Defendants Willie Johnson and Anessa Fierro moved to dismiss the indictment against them, arguing that the federal arson statute is facially unconstitutional because its enactment exceeded Congress's authority under the Commerce Clause. The district court denied the motion, after which Defendants entered into conditional plea agreements. The Seventh Circuit affirmed, holding that section 844(i) was validly enacted pursuant to Congress's authority under the Commerce Clause.

United States v. Norville

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-2493

Opinion Date: August 4, 2022

Judge: Jackson-Akiwumi

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Seventh Circuit affirmed the judgment of the district court denying Defendant's motion to suppress without holding an evidentiary hearing, holding that the district court did not abuse its discretion by denying an evidentiary hearing.

A law enforcement officer stopped Defendant while he was riding a motorized bicycle and arrested him under the theory that his bicycle was a motor vehicle requiring a license. During the arrest, police searched Defendant and found various drugs and drug paraphernalia. Defendant filed a motion to suppress, arguing that the government needed to establish probable cause that he was driving a motor vehicle on a revoked license. The district court summarily denied the motion. The Seventh Circuit affirmed, holding that the evidence established that the arresting officer had probable cause to believe that Defendant rolled past a stop sign, which independently supported Defendant's arrest.

United States v. Prado

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-1824

Opinion Date: July 29, 2022

Judge: ROVNER

Areas of Law: Criminal Law

Officers found nine firearms in Prado’s home: five were stolen and one had an obliterated serial number. Prado pled guilty to unlawful possession of a firearm as a felon, 18 U.S.C. 922(g)(1).

The district court calculated the initial base offense level as 20, which was lower than the base offense level of 22 recommended in the PSR because Prado’s prior conviction for mob action by force was not a crime of violence. The court applied a four-level enhancement (U.S.S.G. 2K2.1(b)(1)(B)) because the offense involved 8-24 firearms; a two-level enhancement (U.S.S.G. 2K2.1(b)(4)(A)) because Prado possessed a stolen firearm; and a four-level enhancement under subsection (B) because Prado possessed a firearm with an obliterated serial number. The PSR indicated that section 2K2.1(b)(4) allowed the application of only one of the enhancements in its subsections, not both. A “hanging paragraph” in 2K2.1(b) provided that the cumulative offense level from the application of 2K2.1(b)(1)–(4) may not exceed 29. Following the imposition of those enhancements, the court applied a four-level enhancement (2K2.1(b)(6)(B)) because Prado used or possessed the firearms in connection with another felony, and deducted three levels for Prado’s acceptance of responsibility. Despite a guideline range of 135-168 months, the statutory maximum was 120 months.

The Seventh Circuit affirmed Prado's 108-month sentence, rejecting an argument concerning Prado’s guideline range. Under any calculation, the applicable guideline range is the 120-month statutory maximum.

Clifton Odie v. United States

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2652

Opinion Date: August 2, 2022

Judge: SHEPHERD

Areas of Law: Constitutional Law, Criminal Law

Appellant filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Section 2255, asserting that his 2000 Illinois state conviction could not qualify as a prior felony drug offense under 21 U.S.C. Section 851. The district court denied Appellant the requested post-conviction relief because of his untimely filing, but it granted a certificate of appealability on the issue of whether Appellant’s Section 2255 motion is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

The Eighth Circuit affirmed finding that Appellant failed to demonstrate the diligence required for equitable tolling. The court concluded that Appellant’s Section 2255 motion is time-barred and equitable tolling is not appropriate because Appellant failed to allege facts showing that circumstances beyond his control at the prison prevented him from timely seeking relief. The court explained it need not address whether the motion is procedurally defaulted. The court also rejected Appellant’s argument that finding his motion time-barred under Section 2255(f) poses a problem under the Suspension Clause.

United States v. Anthony Sisco

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3132

Opinion Date: July 29, 2022

Judge: Per Curiam

Areas of Law: Criminal Law

Defendant pleaded guilty to possession with intent to distribute crack cocaine in 2006. While on bail awaiting sentencing, Defendant and his brother were involved in a bar fight, during which Defendant shot and killed one man and assaulted another. Defendant was charged with murder, assault, and armed criminal action in state court.

The following year Defendant was sentenced on the federal drug charges. The district court calculated a total offense level of 34 and a criminal history category II, resulting in a Sentencing Guidelines range of 168 to 210 months of imprisonment. The government moved for an upward departure under USSG Secs. 4A1.3 and 5K2.0(a)(2). The district court heard evidence about the bar fight, including a video of the altercation and testimony from a police detective, and granted the motion. The court sentenced Defendant to 480 months of imprisonment, the then-applicable statutory maximum. Defendant was subsequently acquitted of the charges related to the bar fight.

In 2013, Defendant moved for a sentencing reduction pursuant to 18 U.S.C. Sec 3582(c). The district court granted the motion, but only reduced Defendant's sentence to 240 months. The court denied Defendant's subsequent sentencing reduction under Section 404 of the First Step Act. Defendant appealed. The Eighth Circuit affirmed the district court's denial of Defendant's s motion, finding that the district court conducted a complete review of Defendant's motion and provided a reasonable basis for its decision.

United States v. Brian Floss

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-1870

Opinion Date: July 29, 2022

Judge: James B. Loken

Areas of Law: Criminal Law

Defendant was convicted of second-degree sexual assault in Arkansas state court in February 2003, an offense requiring him to register under the Arkansas Sex Offender Registration Act of 1997. One of Defendant's registration requirements was that he notify his probation officer of intended international travel 21 days in advance. However, after registering in 2020, Defendant left the country without informing his probation officer. Upon his return, Defendant was charged with knowingly failing to provide information and then engaging in intended travel in foreign commerce.

Defendant's guidelines were 18 to 24 months, but the government successfully sought an upward variance, resulting in a sentence of 36 months of imprisonment. The court also imposed a term of 15 years of supervised release with up to 36 months of home detention as a special condition of supervised release. Defendant appealed his sentence.

The Fifth Circuit affirmed Defendant's sentence, finding that any error by the district court did not affect Defendant's substantial rights because the court indicated it would have imposed the same term as an upward variance.

United States v. Earl McKee

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3347

Opinion Date: August 2, 2022

Judge: SHEPHERD

Areas of Law: Criminal Law

After a jury trial before the district court, Defendant was convicted of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. Sections 922(g)(1), 924(a)(2). Defendant appealed his conviction, arguing that there was insufficient evidence to support the jury’s finding that he knowingly possessed a firearm.
 
The Eighth Circuit affirmed. The court held that the government presented sufficient evidence to prove that Defendant knowingly possessed the firearm in question. The court explained the government presented security camera footage showing a man retrieving a firearm from Apartment H6, running down the exterior staircase of the H building with the firearm and taking a firing stance, returning to Apartment H6 and depositing the firearm, and running to Apartment P4. Security camera footage showed that Defendant was the only person, besides the resident of the apartment, who entered Apartment P4 between the time of the shooting and the time officers were posted outside of the apartment, and it is inconsequential whether Defendant left Apartment P4 before the shooting. Thus, based on this evidence, a reasonable jury could have found that Defendant knowingly possessed the firearm found in Apartment H6 on August 30th.

United States v. Frank Sanchez

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3138

Opinion Date: August 3, 2022

Judge: ERICKSON

Areas of Law: Constitutional Law, Criminal Law, Native American Law

Defendant appealed after a jury convicted him of abusive sexual contact of a minor. Defendant contends the evidence was insufficient to establish the offense occurred in Indian Country, that the district court erred by admitting uncharged conduct as propensity evidence, and that the use of acquitted conduct to increase his sentence violated his constitutional rights.

The Eighth Circuit affirmed. The court explained Major Crimes Act gives the federal government exclusive jurisdiction over certain crimes committed by an Indian within Indian Country, including abusive sexual contact. Here, the deputy superintendent of the trust for the BIA’s Yankton Agency with nearly 32 years of experience, testified that the tract was part of the Yankton Sioux Reservation in 2006. Accordingly, the court held that it would not disturb the conviction because the deputy’s testimony provided a reasonable basis for the jury to find the offense occurred in Indian Country. Further, the court wrote that in affording great weight to the district court’s balancing, it found no abuse of discretion in admitting the evidence under Rules 413 and 414.

United States v. Jennifer Buford

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3100

Opinion Date: July 29, 2022

Judge: Bobby E. Shepherd

Areas of Law: Criminal Law

Defendant was indicted on charges of possession with intent to distribute methamphetamine and possession with intent to distribute marijuana. Pursuant to a written plea agreement, Defendant pled guilty to the charge of possession with intent to distribute marijuana and was sentenced to 80 months imprisonment plus 4 years supervised release. The government dropped the charges related to possession with intent to distribute methamphetamine.

The district court calculated Defendant's total offense level as 34 with a criminal history category of II, resulting in a Guidelines range of 168 to 210 months. The district court varied downward, sentencing Defendant to 80 months imprisonment to be followed by a term of 4 years supervised release.

Defendant appealed, claiming that the district court erred in using the methamphetamine to calculate her guideline sentence. The district court did not err in determining that quantities of methamphetamine were attributable to Defendant based on its credibility findings and the district court's credibility findings are virtually unassailable on appeal and were not clearly erroneous.

United States v. Kevin Doerr

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3216

Opinion Date: August 2, 2022

Judge: KOBES

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Defendant drove drunk through the White Earth Indian Reservation. Local residents tried to stop him, but he struck and pinned one of them, N.V., under his car. A jury convicted Defendant of assault with a dangerous weapon and assault resulting in serious bodily injury. The district court varied upward from the Guidelines and sentenced Defendant to 80 months on each count, to run consecutively.
 
Defendant appealed, arguing that: (1) he was too drunk to have the specific intent to assault N.V.; (2) he ran over N.V. in self-defense; (3) his convictions violate the Double Jeopardy clause; and (4) his sentence was substantively unreasonable. Because those arguments are meritless.
 
The Eighth Circuit affirmed. The court held that there was enough evidence for a reasonable factfinder to conclude that Defendant intended to assault N.V. The jury’s verdict was supported by evidence that: Defendant aimed his car at local residents; he attempted to jump the curb three times; he stomped on N.V.’s head after hitting him with his car, and police described his responses afterward as logical. Further, the court wrote that the jury had significant evidence that Defedenadnt was not acting in self-defense. Moreover, the court explained that Defendant’s Double Jeopardy clause argument is foreclosed by both Supreme Court and Eighth Circuit precedent. Finally, the court saw no abuse of discretion in the district court’s sentence.

United States v. Lamont White

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3076

Opinion Date: July 29, 2022

Judge: Kobes

Areas of Law: Constitutional Law, Criminal Law

Defendant was arrested and charged with firearm and drug charges after an officer claimed to see a bag of drugs in Defendant's car that was in plain view. In a motion to suppress, the officer testified inconsistently with the radio call. However, the district court found the officer credible and denied Defendant's motion. On appeal, Defendant claimed that the district court should not have credited the officer's testimony.

The Eighth Circuit affirmed the district court's denial of Defendant's motion to suppress, finding that the district court was entitled to credit the police officer's testimony over Defendant's. In finding that the drugs were in plain view, the district court implicitly credited the officer's testimony over his radio call. While the two statements were at odds, the court’s credibility determination did not amount to clear error.

United States v. Randy Dabney

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2111

Opinion Date: August 3, 2022

Judge: KOBES

Areas of Law: Criminal Law

Defendant conditionally pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine and was sentenced to 360 months in prison. He appealed, arguing that the district court erred by denying his motion to suppress evidence, as well as his request for leave to file a second suppression motion out of time. He also argued that his sentence is procedurally and substantively unreasonable.
 
The Eighth Circuit affirmed, holding that the relevant search was legal, and the district court did not abuse its discretion by denying Defendant’s leave to file a second, untimely suppression motion. The court explained that the officer had a reasonable suspicion that Defendant was armed and dangerous, and he never exceeded the lawful scope of his Terry frisk of Defendant’s truck. Accordingly, the district court was correct to deny Defendant’s first suppression motion.
 
Further, even if the district court had erred, any error would have been harmless. The evidence from Defendant’s second traffic stop related to Counts 3–5 of the second superseding indictment—counts that were dropped as part of Defendant’s plea deal. So the evidence didn’t affect Defendant’s conviction. And since the exclusionary rule doesn’t apply at sentencing, United States v. Tauil-Hernandez, 88 F.3d 576, 581 (8th Cir. 1996), the district court was free to consider this evidence when imposing Defendant’s 360-month sentence.

United States v. Shaun Farrington

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2974

Opinion Date: August 1, 2022

Judge: GRUENDER

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

A jury convicted Defendant of possession with intent to distribute methamphetamine and conspiracy to distribute methamphetamine in violation of 21 U.S.C. Sections  841(a)(1) and 846. He appealed the district court’s denials of his motion to suppress evidence, his motion to strike a juror for cause, and his motion to admit a portion of a video recording.
 
The Eighth Circuit affirmed Defendant’s convictions. Defendant argued that the seizure and detention of the lockboxes was unreasonable under United States v. Place, 462 U.S. 696 (1983). But “Place had nothing to do with the automobile exception and is inapposite.” See Acevedo, 500 U.S. at 578 (noting that the Supreme Court has consistently “explained that automobile searches differ from other searches” and has denied the applicability of cases that “do not concern automobiles or the automobile exception” to cases involving the automobile exception). Therefore, the district court did not err in denying Defendant’s motion to suppress. Further, the court wrote there was no abuse of discretion because the juror stated that she could remain fair and would listen to the detective’s testimony before deciding if she believed it.
Finally, Defendant claimed that the “partial recording and the Government’s characterization of it . . . gave a misleading and unfair understanding of the meaning of Defendant’s statement to the jury.” But he offers no explanation of how the recording was misleading.

United States v. Tiffany Bernard

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3874

Opinion Date: August 2, 2022

Judge: STRAS

Areas of Law: Criminal Law

The district court had strong views about what charges fit Defendant’s crimes. It rejected both her plea agreement and a motion by the government to dismiss four of the five counts in the indictment. The Eighth Circuit held that the latter ruling went too far, and reversed and remanded with instructions to grant the government’s motion.
 
The court explained that here, the district court merely “disagreed with the prosecutor’s assessment of what penalty the defendant ought to face.” Rather than addressing whether the prosecutor acted in bad faith, the court just listed the reasons it thought Defendant was getting off too easy: she was “very dangerous” and “by far the most culpable”; the victim suffered life-threatening injuries; and a “conviction for robbery alone strip[ped] the [c]ourt of any ability to sentence [her] to a just punishment.” These may be important factors to consider at sentencing, but they are not reasons to interfere with the government’s charging decisions, no matter how much the court may disagree with them.

JOHN SANSING V. CHARLES RYAN

Court: US Court of Appeals for the Ninth Circuit

Docket: 13-99001

Opinion Date: July 29, 2022

Judge: Watford

Areas of Law: Criminal Law

Petitioner pleaded guilty to first-degree murder and, in 1999, was sentenced to death by the State of Arizona. The district court granted a certificate of appealability as to five claims, and the Ninth Circuit later issued a certificate of appealability as to a sixth. The Ninth Circuit agreed with the district court that Petitioner has not shown an entitlement to relief on any of his claims.
 
The Ninth Circuit filed an order (1) stating that the opinion filed May 17, 2021, is amended by a concurrently filed opinion, and that Judge Berzon’s dissent is amended by a concurrently filed dissent; (2) denying a petition for panel rehearing; and (3) denying on behalf of the court a petition for rehearing en banc, in a case in which the district court denied Petitioner’s federal petition for a writ of habeas corpus, which is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

LINO CHAVEZ V. MARK BRNOVICH

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-15454

Opinion Date: August 1, 2022

Judge: Bennett

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Petitioner challenged his conviction and sentence through the PCR proceeding because pleading defendants in noncapital cases in Arizona are prohibited from taking a direct appeal. The district court found that the Arizona Court of Appeals had incorrectly determined that Anders v. California, 386 U.S. 738 (1967), did not apply to Arizona’s of-right PCR proceedings. The district court also determined, on de novo review, that Arizona’s PCR procedure was deficient under Anders.
 
The Ninth Circuit reversed the district court’s grant of conditional habeas relief to Petitioner. The panel first explained that it was clearly established that Anders and its progeny apply to Arizona’s of-right PCR proceedings. Because the Arizona Court of Appeals’ decision can be construed as finding Anders applicable and nothing clearly suggests otherwise, and a federal habeas court must give the state court of appeals the benefit of the doubt and presume that it followed the law, the panel found that the Arizona Court of Appeals correctly found Anders applies to of-right PCR proceedings. The court, therefore, reversed the district court’s contrary determination. The court held that the district court also erred in reviewing de novo whether Arizona’s of-right PCR procedure is constitutionally adequate under Anders, and should have applied the required deference under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

USA V. JOEL WRIGHT

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-50361

Opinion Date: July 29, 2022

Judge: Bennett

Areas of Law: Criminal Law

Defendant contended that the district court abused its discretion by denying his motion based on the dangerousness finding imposed by U.S.S.G. Section 1B1.13. In United States v. Aruda, the Ninth Circuit held that the current version of Section 1B1.13 is not an applicable policy statement for Section 3582(c)(1)(A)(i) motions filed by a defendant. Following Aruda, while the Sentencing Commission’s statements in Section 1B1.13 may inform a district court’s discretion for Section 3582(c)(1)(A)(i) motions filed by a defendant, they cannot be treated as binding constraints on the court’s analysis. Here the Ninth Circuit wrote that the district court did precisely what Aruda proscribes: it denied Defendant’s motion by holding that he failed to demonstrate that he is “not a danger to others or [to] the community” pursuant to Section 1B1.13. The court wrote that this holding is an abuse of discretion.

USA V. MARQUIS BROWN

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-50313

Opinion Date: August 2, 2022

Judge: Daniels

Areas of Law: Criminal Law

Defendant contended that the district court committed a procedural error because it improperly enhanced his sentence in violation of the First Step Act of 2018. Despite the district court imposing a sentence that is below his guidelines range, Defendant argued that the court ran afoul of this proscription when it relied on information from his safety valve proffer to deny him a further sentence reduction.
 
The Ninth Circuit affirmed a sentence imposed following Defendant’s guilty plea to importing methamphetamine under 21 U.S.C. Sections 952 & 960. The court held that the district court did not impose an improper sentence “enhancement” of a sentence under 18 U.S.C. Section 3553(f)(5). The court wrote that the district court’s imposition of a sentence not just below the mandatory minimum, but also below the low end of Defendant’s guidelines range, after considering a host of aggravating mitigating factors, does not constitute an enhancement; and that the failure to reduce a sentence is not an enhancement. The court also held that the sentence is substantively reasonable, rejecting Defendant’s arguments concerning a disparity with similarly situated offenders and the district court’s application and weighing of the 18 U.S.C. Section 3553(a) factors.

Bradley Hester v. Matthew Gentry, et al.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-13894

Opinion Date: July 29, 2022

Judge: Logoa

Areas of Law: Constitutional Law, Criminal Law

In this action brought by a group of pre-trial detainees challenging the constitutionality of the Cullman County bail system, the court reversed the district court's finding that the system discriminated against indigent defendants and deprived pretrial detainees of procedural due process.

USA v. Rodney Davis

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 19-3060

Opinion Date: July 29, 2022

Judge: Rao

Areas of Law: Constitutional Law, Criminal Law

Defendant entered a guilty plea to travelling across state lines to sexually abuse a child. Defendant was arrested when after he communicated with an undercover officer purporting to be a man who was offering their child for illicit sexual activities. At sentencing, the district court applied an enhancement under U.S.S.G. Sec. 2A3.1(b)(2)(A) because “the victim had not attained the age of twelve years.” Rather than challenge the applicability of the enhancement, trial counsel asked for a downward variance to recognize that the “victim was not real. The court declined counsel's request and Defendant was sentenced to 108 months of imprisonment and 120 months of supervised release.

Defendant appealed his sentence, claiming that counsel was ineffective for failing to challenge the applicability of the U.S.S.G. Sec. 2A3.1(b)(2)(A) enhancement. The court determined that, because Defendant intended to sexually assault a young child, the sentencing enhancement applied. Thus, counsel was not ineffective for failing to object to its application.

State v. Agueda

Court: Arizona Supreme Court

Docket: CR-21-0097-PR

Opinion Date: August 4, 2022

Judge: Beene

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction of two counts of sexual conduct with a minor under age fifteen and other charges, holding that contributing to the delinquency of a minor, Ariz. Rev. Stat. 13-3613, is not a lesser-included offense of sexual conduct with a minor, Ariz. Rev. Stat. 13-1405.

The court of appeals vacated Defendant's conviction of committing sexual conduct with a minor under age fifteen, holding that contributing to the delinquency of a minor is a lesser-included offense of sexual conduct with a minor under age fifteen. The Supreme Court vacated the court of appeals' opinion and remanded to the court of appeals for further proceedings, holding that contributing to the delinquency of a minor is not a lesser-included offense of sexual conduct with a minor.

People v. Henson

Court: Supreme Court of California

Docket: S252702

Opinion Date: August 1, 2022

Judge: Jenkins

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeal reversing the trial court's order dismissing counts one through four of the combined information in this criminal case, holding that Cal. Penal Code 954's joinder clause permits a district attorney to file a single information in the circumstances presented in this case.

At issue before the Supreme Court was whether, and under which circumstances, a trial court may consider more than one preliminary hearing record in its ruling on a motion brought under Cal. Penal Code 995 to set aside the information for lack of probable cause. Specifically at issue was the correct interpretation of section 954. The court of appeals ruled that section 954's consolidation clause provided the district court with the authority to file a single information combining related offenses that were the subject of separate preliminary injunctions. The Supreme Court affirmed, holding (1) the statute permits a history attorney to file a single information when the applicable time constraints are satisfied; and (2) when related offenses are properly joined by the district attorney and in ruling on a section 995 motion, a trial court is permitted to consider more than one preliminary hearing record.

P. v. Lopez

Court: California Courts of Appeal

Docket: F076295A(Fifth Appellate District)

Opinion Date: August 4, 2022

Judge: Rosendo Peña, Jr.

Areas of Law: Criminal Law

Defendant was convicted of unlawful possession of a firearm and ammunition; attempted robbery; conspiracy to commit robbery; and a violation of the gang conspiracy statute. After his conviction, the California Legislature passed Assembly Bill 333 (AB 333). This legislation
amended multiple parts of section 186.22 and added a new statute, section 1109. Section 1109 provides for bifurcated trial procedures in cases involving gang charges under section 186.22, subdivisions (a), (b), and/or (d).

On appeal, Defendant argued the recent amendments to section 186.22 apply retroactively and, because the gang conspiracy statute incorporates provisions of section 186.22 to define the elements of the offense, Defendant contends AB 333 requires reversal of the gang enhancements and his conviction under section 182.5 (gang conspiracy).

The Fifth Appellate District affirmed in part and reversed in part. The Fifth Circuit reversed Defendant's gang enhancements under 186.22. However, the court affirmed Defendant's substantive gang conspiracy conviction, determining that any trial court error in failing to bifurcate Defendant's substantive offenses from his gang enhancement was non-prejudicial.

Ferguson v. Delaware

Court: Delaware Supreme Court

Docket: 223, 2021

Opinion Date: August 3, 2022

Judge: Vaughn

Areas of Law: Constitutional Law, Criminal Law

Appellant DeJoynay Ferguson pled guilty to one count of Murder by Abuse or Neglect in the First Degree, six counts of Child Abuse in the First Degree, and two counts of Child Abuse in the Second Degree. The plea was made pursuant to a plea agreement under which the State entered a nolle prosequi as to other remaining charges. The sentencing judge imposed a sentence of life in prison. He also sentenced her to ten years at Level V on each of the Child Abuse in the First Degree charges, suspended after two years on each. He sentenced her to probation on the two counts of Child Abuse in the Second Degree. Ferguson appealed her sentences, contending the sentencing judge sentenced her for the sole purpose of retribution; that he sentenced her with a closed mind; that he was unwilling to consider the mitigation evidence and arguments she presented; and that her sentence violated her right to due process. Finding no reversible error, the Delaware Supreme Court affirmed the Superior Court.

State v. Ishimine

Court: Supreme Court of Hawaii

Docket: SCWC-18-0000691

Opinion Date: August 4, 2022

Judge: Sabrina S. McKenna

Areas of Law: Criminal Law

The Supreme Court vacated the judgment of the intermediate court of appeals (ICA) affirming Defendant's kidnapping conviction, holding that the circuit court erred in failing to instruct the jury in accordance with State v. Sheffield, 456 P.3d 122 (Haw. 2020), and the error was not harmless beyond a reasonable doubt.

After a jury trial, Defendant was convicted of kidnapping as a class A felony and sentenced to twenty years' imprisonment. The ICA affirmed. At issue on appeal was whether the circuit court plainly erred in failing to give the jury a Sheffield instruction in this case. The Supreme Court answered the question in the affirmative, holding that the circuit court erred in failing to so instruct the jury, and the error was not harmless beyond a reasonable doubt.

State v. Bates

Court: Kansas Supreme Court

Docket: 122128

Opinion Date: July 29, 2022

Judge: Marla J. Luckert

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the decision of the court of appeals affirming the judgment of the district court denying Defendant's motion to suppress evidence obtained during a search that led to the State charging Defendant with possession of drugs and drug paraphernalia with the intent to distribute, holding that the district court properly denied the suppression motion.

This appeal arose after police officers detained Defendant while he sat in a minivan in an alleyway. Defendant filed a motion to suppress the evidence obtained during the search, arguing that the seizure of the minivan violated his constitutional rights. The district court concluded that the detention was reasonable and justified under the public safety exception to the warrant requirement. The court of appeals affirmed. The Supreme Court affirmed, holding that the seizure of the minivan was reasonable under the Fourth Amendment and section 15 of the Kansas Constitution Bill of Rights.

State v. Betts

Court: Kansas Supreme Court

Docket: 122268

Opinion Date: July 29, 2022

Judge: Dan Biles

Areas of Law: Criminal Law

The Supreme Court reversed the judgment of the district court dismissing this case on the grounds that state law immunized Whichita Police Officer Dexter Betts's use of deadly force in self-defense, holding that Kan. Stat. Ann. 21-5231(a) does not extend its immunity to a defendant's reckless acts while engaged in self-defense that result in unintended injury to an innocent bystander.

Betts fired two gunshots at a fast-approaching dog he thought was attacking him and instead injured a young girl sitting nearby. After the State charged Betts with reckless aggravated battery Betts moved to dismiss the charge, arguing that state law immunized his use of deadly force in self-defense even if he did act recklessly. The district court decided a defendant can assert self-defense immunity when charged with a recklessness crime. The Supreme Court reversed, holding that the self-defense privilege does not extend to reckless conduct injuring an innocent bystander who was not reasonably perceived as an attacker.

State v. Brown

Court: Kansas Supreme Court

Docket: 121269

Opinion Date: July 29, 2022

Judge: Marla J. Luckert

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's convictions of first-degree murder and other crimes, holding that an assumed error and a prosecutorial error occurred in the proceedings below, but those errors did not require a reversal of Defendant's convictions.

After a jury trial, Defendant was found guilty of murder in the first degree, attempted murder in the first degree, conspiracy to commit murder in the first degree, criminal solicitation to commit murder in the first degree, and other crimes. Defendant received a hard twenty-five life sentence for the first-degree murder. The Supreme Court affirmed, holding (1) presuming that the trial court erred in admitting a certain exhibit, there was no reasonable probability that the admission of the exhibit affected the outcome of Defendant's trial; and (2) the prosecutor made improper statements during closing argument, but the prosecutorial error was individually and cumulatively harmless.

State v. Genson

Court: Kansas Supreme Court

Docket: 124014

Opinion Date: July 29, 2022

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court affirmed the decision of the court of appeals affirming the judgment of the district court convicting Defendant of violating the Kansas Offender Registration Act (KORA) by failing to register, holding that the Legislature's decision to make the crime of failure to register a strict liability felony did not violate Defendant's substantive due process rights.

On appeal, Defendant argued that Kan. Stat. Ann. 21-5203(e) violated his substantive due process rights by making a KORA violation a strict liability crime. The court of appeals affirmed. The Supreme Court affirmed, holding that Defendant failed to show that section 21-5203(e)'s strict liability criminalization of KORA registration violations did not violate Defendant's substantive due process rights.

Commonwealth v. Moreau

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13168

Opinion Date: July 29, 2022

Judge: Cypher

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Judicial Court reversed the decision of the trial court convicting Defendant of operating a motor vehicle while under the influence of alcohol (OUI) and negligent operation of a motor vehicle, holding that the trial court erred in denying Defendant's motion to suppress.

Defendant moved to suppress the results of a blood alcohol content (BAC) analysis conducted by a crime lab after the police obtained and executed a search warrant for Defendant's blood, arguing that he did not consent to having his blood tested. The trial judge denied the motion. The Supreme Judicial Court reversed, holding that, in a prosecution under 24(1)(a), where the Commonwealth wishes to have admitted BAC evidence arising from testing or analysis of a defendant's blood done "by or at the direction of" police, police must first obtain the defendant's consent to the "chemical test or analysis" of his blood that may result from such evidence, regardless of whomever first drew the blood.

Michigan v. Boykin

Court: Michigan Supreme Court

Dockets: 157738, 158695

Opinion Date: July 28, 2022

Judge: Bernstein

Areas of Law: Constitutional Law, Criminal Law

In case no. 157738, Demariol Boykin was convicted by a jury of first-degree murder and possession of a firearm during the commission of a felony (felony- firearm). He was initially sentenced to a mandatory term of life without the possibility of parole for first-degree murder, to be served consecutively to a two-year term for felony-firearm. Subsequently, the United States Supreme Court decided Miller v Alabama, 567 US 460 (2012), which held that sentencing an individual to mandatory life without the possibility of parole for a crime they committed before the age of 18 (a juvenile offender) violated the Eighth Amendment’s ban on cruel and unusual punishments and that trial courts are required to consider the attributes of youth when sentencing a juvenile offender to life without parole. In Montgomery v Louisiana, 577 US 190 (2016), the Supreme Court held that Miller was a substantive constitutional rule that was retroactive on state collateral review. The Michigan Legislature accounted for these changes by enacting MCL 769.25 and MCL 769.25a, which eliminated sentences of mandatory life imprisonment without the possibility of parole for all individuals who were convicted of specific crimes, including first-degree murder, for acts committed while they were juveniles. At resentencing, the prosecution did not move to seek a sentence of life without parole but instead sought a sentence of 40 to 60 years’ imprisonment, which the trial court imposed. Boykin appealed this sentence by right. In case no. 158695, Tyler Tate was convicted by a jury of first-degree premeditated murder, making a false report of a felony to police, and lying to a police officer in a criminal investigation. He was sentenced under MCL 769.25, which had already become law at the time of his sentence. As with Boykin, the prosecution did not move to seek a sentence of life without the possibility of parole but instead sought the imposition of a 40- to 60-year sentence, which the trial court imposed. The Michigan Supreme Court concluded that because it was unclear whether the trial courts properly considered youth to be mitigating in either of these consolidated cases, yet the Court of Appeals affirmed the trial courts’ sentencing decisions, the portions of both Court of Appeals opinions discussing defendants’ sentencing challenges were vacated and the cases were remanded to the Court of Appeals for further consideration.

Michigan v. Parks

Court: Michigan Supreme Court

Docket: 162086

Opinion Date: July 28, 2022

Judge: Elizabeth M. Welch

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

Kemo Parks was convicted by jury for first-degree premeditated-murder. Parks was 18 years old when he aided and abetted in the murder. Parks argued that his sentence was cruel and/or unusual punishment under both the United States and Michigan Constitutions. Under current United States Supreme Court precedent, the Michigan Supreme Court concluded Parks’s Eighth Amendment argument failed. However, the Court held his sentence of mandatory life without parole violated the Michigan Constitution’s ban on “cruel or unusual” punishment. Specifically, his sentence lacked proportionality because it failed to take into account the mitigating characteristics of youth, specifically late-adolescent brain development. Therefore, the Supreme Court reversed the portion of the judgment of the Court of Appeals affirming Parks’s sentence, vacated Parks’s life-without-parole sentence, and remanded this case to the Circuit Court for resentencing proceedings.

Michigan v. Stovall

Court: Michigan Supreme Court

Docket: 162425

Opinion Date: July 28, 2022

Judge: Bridget Mary McCormack

Areas of Law: Constitutional Law, Criminal Law

Montez Stovall was convicted by jury for second-degree murder, a crime committed when he was a juvenile. Stovall argued that his sentence was cruel and/or unusual punishment under both the United States and Michigan Constitutions. Under current United States Supreme Court precedent, the Michigan Supreme Court concluded Stovall’s Eighth Amendment argument failed. However, the Court held his sentence of mandatory life without parole violated the Michigan Constitution’s ban on “cruel or unusual” punishment. Specifically, his sentence lacked proportionality because it failed to take into account the mitigating characteristics of youth, specifically late-adolescent brain development. Therefore, the Supreme Court reversed the portion of the judgment of the Court of Appeals affirming Stovall’s sentence, vacated Stovall’s life-without-parole sentence, and remanded this case to the Circuit Court for resentencing proceedings.

Michigan v. Taylor

Court: Michigan Supreme Court

Docket: 154994

Opinion Date: July 28, 2022

Judge: Michael F. Cavanagh

Areas of Law: Constitutional Law, Criminal Law

Robert Taylor was convicted by jury of first degree felony murder, carjacking, conspiracy to commit carjacking, kidnapping conspiracy to commit kidnapping, and possession of a firearm during the commission of a felony. In 2009, defendant and his codefendant, Ihab Masalmani, abducted Matt Landry from outside a sandwich shop. Defendant acted as the lookout while Masalmani forced Landry into Landry’s car. The two then drove Landry away at gunpoint. Defendant and Masalmani held Landry against his will for several hours and stole money from his bank account during that time; Landry was later killed by a gunshot wound to the head. Defendant was sentenced to a mandatory term of life in prison without the possibility of parole (LWOP). The issue this case presented for the Michigan Supreme Court’s review provided an opportunity for the Court to provide “much-needed” guidance to criminal defendants, prosecutors, and trial courts on the proper procedure for conducting MCL 769.25 sentencing hearings when a prosecutor seeks to impose a sentence of life without parole (LWOP) for a crime committed when the defendant was a juvenile. The Court held that, as the moving party at a Miller hearing, the prosecutor bears the burden to rebut a presumption that LWOP is a disproportionate sentence under the clear and convincing standard. In this case, the trial court was not operating within the framework the Supreme Court set forth here. Defendant was therefore entitled to resentencing. Because the Court of Appeals failed to address a separate constitutional issue that could be dispositive, however, the Supreme Court remanded this case to the Court of Appeals to consider that issue in the first instance before any resentencing can take place.

Wilson v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2021-KA-00473-SCT

Opinion Date: July 28, 2022

Judge: Griffis

Areas of Law: Constitutional Law, Criminal Law

A grand jury indicted Dwayne Wilson on one count of aggravated assault. The indictment charges that Wilson “unlawfully, willfully, purposely and feloniously attempt[ed] to cause or knowingly caused bodily injury to . . . Stacy Pierce[] by striking him multiple times in the ribs and mouth with a bat, a means likely to produce death or serious bodily harm[.]” Wilson pled not guilty, but he was ultimately convicted on that charge when his first trial ended in a mistrial. On appeal, Wilson contended the second trial violated his constitutional protection against double jeopardy. Additionally, Wilson claimed the verdict was against the overwhelming weight of the evidence. The Mississippi Supreme Court concluded that although the protections against double jeopardy had attached, the trial court did not abuse its discretion by finding manifest necessity to grant a mistrial. Further, the Court found the verdict in the second trial was not against the overwhelming weight of the evidence presented. Accordingly, judgment and conviction were affirmed.

State v. Abligo

Court: Nebraska Supreme Court

Citation: 312 Neb. 74

Opinion Date: July 29, 2022

Judge: Michael G. Heavican

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction of one count of first degree sexual assault and sentence of four to ten years' imprisonment, holding that each of Defendant's assignments of error was without merit.

On appeal, Defendant argued that the district court abused its discretion in certain evidentiary rulings, by denying his motion to continue, and in imposing an excessive sentence. The Supreme Court affirmed, holding (1) the district court did not abuse its discretion in its challenged evidentiary rulings; (2) there was no abuse of discretion in the denial of Defendant's motion to continue; and (3) the court did not abuse its discretion in imposing a sentence of four to ten years' imprisonment on Defendant.

State v. Warner

Court: Nebraska Supreme Court

Citation: 312 Neb. 116

Opinion Date: July 29, 2022

Judge: Papik

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the judgment of the district court denying Defendant's motion to withdraw his no contest pleas to six felony charges, holding that there was no error.

After the district court accepted Defendant's no contest pleas, Defendant filed a motion to withdraw his pleas, claiming that he wanted to withdraw his pleas so that he could obtain a second opinion as to his sanity at the time of the charged offenses. The district court denied the motion to withdraw. The Supreme Court affirmed, holding (1) the district court did not abuse its discretion by overruling Defendant's motion to withdraw his pleas; and (2) the record was insufficient to review Defendant's claim of ineffective assistance of counsel on direct appeal.

New Jersey v. F.E.D.

Court: Supreme Court of New Jersey

Docket: A-12-21

Opinion Date: August 3, 2022

Judge: Anne M. Patterson

Areas of Law: Criminal Law, Government & Administrative Law, Health Law

Petitioner F.E.D., seventy-three years old, was convicted of three counts of first-degree murder and would not be eligible for parole until 2040. In February 2021, the Managing Physician of the New Jersey Department of Corrections submitted to the Commissioner of Corrections a Request for Compassionate Release on behalf of F.E.D. Based on the diagnoses provided by the attesting physicians, the Managing Physician found that F.E.D. “meets the medical conditions established” by N.J.S.A. 30:4-123.51e. Pursuant to N.J.S.A. 30:4-123.51e(d)(1), the Commissioner issued a Certificate of Eligibility for Compassionate Release. A trial court held an evidentiary hearing on the motion. With regard to whether F.E.D. suffered from a “permanent physical incapacity” as defined in N.J.S.A. 30:4-123.51e(1), the trial court relied on the list of “activities of daily living” enumerated in the administration of New Jersey’s Medicaid program, which the court identified to be bathing, dressing, toileting, locomotion, transfers, eating and bed mobility. Applying that standard to the medical diagnoses presented in F.E.D.’s petition for compassionate release, the trial court observed that the attesting physicians had found a diminished ability in instrumental activities of daily living but not an inability to perform activities of basic daily living. The court accordingly found that F.E.D. had not presented clear and convincing evidence that he suffered from a “permanent physical incapacity” within the meaning of N.J.S.A. 30:4-123.51e(d)(1). The Appellate Division found that the Certificate of Eligibility for compassionate release that the Department issued to F.E.D. was invalid based on its view that the Compassionate Release Statute applied only to inmates whose medical conditions rendered them unable to perform any of the activities of basic daily living, and to be inapplicable to any inmate who could conduct one or more of those activities. The New Jersey Supreme Court found that the Compassionate Release Statute did not require that an inmate prove that he is unable to perform any activity of basic daily living in order to establish a “permanent physical incapacity” under N.J.S.A. 30:4-123.51e(l). Rather, the statute required clear and convincing evidence that the inmate’s condition rendered him permanently unable to perform two or more activities of basic daily living, necessitating twenty-four-hour care. Assessing F.E.D.’s proofs in accordance with the statutory standard, the Supreme Court found he did not present clear and convincing evidence that his medical condition gave rise to a permanent physical incapacity under N.J.S.A. 30:4-123.51e(f)(1).

North Dakota v. Netterville

Court: North Dakota Supreme Court

Citation: 2022 ND 153

Opinion Date: August 4, 2022

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Milford Netterville appealed the revocation of his probation, and his resentencing to two years’ imprisonment. In 2020, Netterville pled guilty to domestic violence, for which he was originally sentenced to 366 days’ imprisonment with credit for 99, and 18 months of supervised probation. In 2021, the State petitioned to revoke probation when Netterville failed to report to his probation officer in October and November 2021. He argued the district court entered an illegal order because the court failed to give him credit for time served and there was ambiguity in the court’s sentence. After review, the North Dakota Supreme Court concluded the revocation did not take into account the credit for time served. Judgment was reversed and the matter remanded with instructions for resentencing.

North Dakota v. Pendleton

Court: North Dakota Supreme Court

Citation: 2022 ND 149

Opinion Date: August 4, 2022

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Salamah Pendleton was convicted by jury on two counts of murder, two counts of attempted murder, terrorizing, reckless endangerment, and possession with intent to deliver marijuana. Pendleton argued on appeal: (1) his constitutional right to a public trial was violated; (2) his right to be physically present at trial was violated; (3) he was convicted of a non-cognizable offense; (4) juror misconduct occurred that violated his right to confrontation and an impartial jury; and (5) the court erred by not applying the ameliorating legislation of N.D.C.C. § 19.03.1-23, reducing possession with intent to deliver marijuana to a Class C felony. Finding only that the trial court miscalculated Pendleton’s sentence, the North Dakota affirmed in part, reversed in part, and remanded for resentencing.

North Dakota v. Pulkrabek

Court: North Dakota Supreme Court

Citation: 2022 ND 157

Opinion Date: August 4, 2022

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

In October 2018, Robert Pulkrabek was charged with driving under the influence, resisting arrest, and driving under suspension. In July 2020, he was charged with driving under suspension and failure to transfer title. In November 2020, he was charged with three counts of issuing checks without sufficient funds. In March 2021, he was charged with two counts of terrorizing. On June 1, 2021, Pulkrabek filed a request for final disposition of the pending charges within 90 days under the Uniform Mandatory Disposition of Detainers Act, N.D.C.C. ch. 29-33. If not waived or extended, the 90 day deadline expired on August 30, 2021. At the first status conference in June 2021, the district court allowed Pulkrabek’s attorney to withdraw. The court then discussed the timeline for trials with Pulkrabek and told Pulkrabek he would be assigned new counsel. The court advised Pulkrabek he was entitled to trials within 90 days but asked if he was comfortable with the trial dates already scheduled in three of the cases. Pulkrabek responded “yes” and stated “I’m comfortable with those dates.” Trials were set for October 6 and 8, 2021. A second attorney was appointed a week after the first withdrew; a continuance was granted. Due to transportation problems, Pulkrabek was unable to attend the preliminary hearing, so it was rescheduled for October 7, 2021. Pulkrabek’s second attorney moved to withdraw from the representation on September 27, 2021. At an October 2021 status conference, the district court granted the withdrawal and stated the trials and preliminary hearing would be rescheduled due to a third attorney assignment. The court advised Pulkrabek that would be the final time trials were continued. Pulkrabek told the court he was filing a motion to dismiss his pending cases. Days later, a third attorney was appointed to represent Pulkrabek. On October 15, Pulkrabek moved to dismiss the charges against me for expiration of the 90 day deadline. When that was denied, Pulkrabek subsequently entered into a global plea agreement covering all cases and pleaded guilty to the charges. On appeal of his convictions Pulkrabek argued district court committed a structural error by violating his right to counsel when asking Pulkrabek whether he agreed to trial dates outside the 90 day window in the Uniform Mandatory Disposition of Detainers Act. Finding no reversible error, the North Dakota Supreme Court affirmed.

Oregon v. Carlisle

Court: Oregon Supreme Court

Docket: S067880

Opinion Date: August 4, 2022

Areas of Law: Constitutional Law, Criminal Law

Defendant Zachary Carlisle challenged his conviction for misdemeanor third-degree sexual abuse, which required the state to prove that he “subject[ed] another person to sexual contact” and that “[t]he victim d[id] not consent to the sexual contact.” The question this case raised for the Oregon Supreme Court's review was which culpable mental state applied to the “victim does not consent” element of the offense. The trial court instructed the jury that the State needed to prove that defendant “knowingly” subjected the victim to sexual contact and that defendant was “criminally negligent” with respect to the fact that the victim did not consent to the sexual contact. According to defendant, the trial court erred in refusing to instruct the jury that both elements required proof of a “knowing” mental state. The Supreme Court concluded, however, that the legislature did not intend that a conviction under ORS 163.415 would require proof that the defendant knew that the victim did not consent to the sexual contact. Accordingly, the trial court did not err, and defendant's convictions were affirmed.

McCoy v. McCallum

Court: South Dakota Supreme Court

Citation: 2022 S.D. 42

Opinion Date: July 27, 2022

Judge: Myren

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the circuit court determining that an offer from Dakota Legends Properties, LLP (DLP) was a bona fide offer that triggered Plaintiffs' right of first refusal to purchase the property, that Plaintiffs had been offered the right of first refusal, and that Plaintiffs did not exercise that right, holding that there was no error.

Defendant entered into a lease agreement with Plaintiffs that gave Plaintiffs a right of first refusal to purchase the leased property at the same price and terms of any bona fide offer. After receiving an offer from DLP, Defendant notified Plaintiffs of the offer. Plaintiffs made two offers on the property, which Defendant rejected in favor of DLP's offer. Litigation followed, and the parties filed cross-motions for partial summary judgment about whether DLP's offer was "bona fide." The circuit court granted summary judgment in favor of Defendant, concluding that DLP's offer was a bona fide offer and that Plaintiff had not exercised her right of first refusal. The Supreme Court affirmed, holding that the circuit court's conclusions of law were without error.

State v. Randolph

Court: Utah Supreme Court

Citation: 2022 UT 34

Opinion Date: August 4, 2022

Judge: Pearce

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the district court granting the State's motion for pretrial detention after charging Defendant with four first-degree felonies connected to an alleged sexual assault, holding that the district court did not err when it denied Defendant bail.

In its pretrial motion filed pursuant to Utah Code 77-20-1 the State argued that there was substantial evidence to support the charges against Defendant and clear and convincing evidence that Defendant was a substantial danger to the public and likely to flee if released on bail. The district court granted the motion. The Supreme Court affirmed, holding that there was no error in the district court's determinations.

Commonwealth v. Kilpatrick

Court: Supreme Court of Virginia

Docket: 210530

Opinion Date: August 4, 2022

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court reversed the judgment of the court of appeals reversing Defendant's conviction of three counts of computer solicitation of a minor, first offense, and two counts of computer solicitation of a minor, second offense, holding that any presumed error in excluding certain expert testimony was harmless.

In his appeal, Defendant argued that the trial court erred by excluding the testimony of Dr. Maurice Fisher, which Defendant intended to use in support of his entrapment defense. The court of appeals affirmed, holding that the testimony did not express an opinion on the ultimate issue of Defendant's mental state at the time of the alleged offense. The Supreme Court reversed, holding that the evidence of Defendant's prurient interest was overwhelming, and therefore, the testimony would not have influenced the jury or would have had but slight effect.

JP v. State

Court: Wyoming Supreme Court

Citation: 2022 WY 94

Opinion Date: August 2, 2022

Judge: Fenn

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the order of the district court adjudicating JP delinquent and the corresponding order of disposition, holding that Defendant did not receive ineffective assistance of counsel when his attorney failed timely to demand a jury trial.

The State filed a delinquency petition alleging that seventeen-year-old JP inflicted sexual intrusion on a thirteen-year-old girl. After a hearing, the juvenile court found that JP committed a delinquent act and sentenced him to one year of juvenile probation. On appeal, JP argued that he was prejudiced by his counsel's failure to timely demand a jury trial. The Supreme Court affirmed, holding that JP failed to show the outcome of his case would have been different if it had been tried to a jury.

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