Harper v. Rettig

Court: US Court of Appeals for the First Circuit

Docket: 21-1316

Opinion Date: August 18, 2022

Judge: Kermit Victor Lipez

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

The First Circuit vacated the judgment of the district court dismissing this complaint after concluding that it lacked subject matter jurisdiction over Appellant's suit under the Anti-Injunction Act of the Internal Revenue Code, 26 U.S.C. 7241, holding that the district court erred in dismissing the complaint.

Appellant brought a complaint against the Internal Revenue Service (IRS) and some of the IRS's agents alleging that Defendants violated the Fourth and Fifth Amendments and 26 U.S.C. 7609(f) by acquiring Appellant's personal financial information through a third-party summons process. The district court dismissed Appellant's claims for declaratory and injunctive relief for lack of subject matter jurisdiction, ruling that the Anti-Injunction Act of the Internal Revenue Code, 262 U.S.C. 7421, constituted an exception to the APA's waiver of sovereign immunity. The First Circuit vacated the judgment, holding that the Anti-Injunction Act did not bar Appellant's suit.

United States v. Candelario-Ramos

Court: US Court of Appeals for the First Circuit

Docket: 20-1988

Opinion Date: August 16, 2022

Judge: Jeffrey R. Howard

Areas of Law: Criminal Law

The First Circuit dismissed Appellant's appeal from his mandatory minimum sixty-month sentence, holding that Appellant knowingly and voluntarily agreed to an appeal waiver, barring this appeal.

Pursuant to a written agreement, Appellant pleaded guilty to one count of conspiracy to possess with intent to distribute cocaine. The sentencing court sentenced Defendant to sixty months' imprisonment and eight years of supervised release. Appellant appealed, stating that enforcing his appeal waive would work a miscarriage of justice. The First Circuit dismissed the appeal, holding that even if Appellant hadn't waived his argument on appeal, there was no miscarriage of justice.

United States v. Vazquez-Rosario

Court: US Court of Appeals for the First Circuit

Docket: 20-1087

Opinion Date: August 17, 2022

Judge: Gelpi

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's conviction of one count of false impersonation of an employee of the United States, holding that Defendant was not entitled to relief on his claims of error.

On appeal, Defendant primarily challenged the sufficiency of the evidence offered for the jury to convict him. The Supreme Court affirmed, holding (1) Defendant's argument that the "intent to defraud" remains an inherent part of an 18 U.S.C. 9212 violation which the government move prove despite Congress's removal of that language in 1948 was waived for inadequate briefing; and (2) the district court did not abuse its discretion in granting the government's motion to quash a request for testimony of federal officers to corroborate his claims that he was working as an FBI agent at the time of his arrest.

McCray v. Capra

Court: US Court of Appeals for the Second Circuit

Docket: 18-2336

Opinion Date: August 17, 2022

Judge: RICHARD J. SULLIVAN

Areas of Law: Constitutional Law, Criminal Law

Petitioner appealed the district court’s judgment denying his petition for a writ of habeas corpus under 28 U.S.C. Section 2254, following his conviction in New York state court for first-degree rape. Petitioner argued principally that the state trial court violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and the Sixth Amendment’s Confrontation Clause by denying him full access to the victim-witness’s mental health records.
 
The Second Circuit affirmed the district court’s denial of the petition. The court held the New York Court of Appeals’ application of Brady and its progeny was not unreasonable and that there is no binding Supreme Court precedent stating that a defendant’s right to confrontation extends to pretrial discovery. The court explained that Petitioner was given a wealth of information in pretrial disclosures; the victim testified about her various mental health issues in open court; and the victim was cross-examined vigorously on her mental illness, her erratic behavior, and – by extension – her reliability. The jury nonetheless credited her testimony and convicted Petitioner. Based on the entire record, the court could not say that no fair-minded jurists would agree with the New York Court of Appeals that Petitioner received a fair trial.
 
Further, the court concluded that the New York Court of Appeals’ decision concerning Petitioner’s confrontation rights was “contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States.” 28 U.S.C. Section 2254(d)(1).

United States v. Hoskins

Court: US Court of Appeals for the Second Circuit

Docket: 20-842

Opinion Date: August 12, 2022

Judge: POOLER

Areas of Law: Constitutional Law, Criminal Law, White Collar Crime

The American subsidiary of Alstom Power, Inc. (“API”), a global power and transportation services company, hired two consultants to bribe Indonesian officials to help secure a $118 million power contract. Defendant, who worked in Paris for API’s United Kingdom subsidiary, was allegedly responsible for approving the selection of the consultants and authorizing payments to them. For his role in the alleged bribery scheme, Defendant was charged in an American court with (among other things) violating the Foreign Corrupt Practices Act  (“FCPA”), which makes it unlawful for officers, directors, and agents “of a domestic concern” to use interstate commerce corruptly to bribe or attempt to bribe foreign officials. Defendant appealed. Defendant moved for acquittal, arguing he was not an agent within the meaning of the FCPA. The district court granted that motion; the government appealed and Defendant cross-appealed.

The Second Circuit affirmed the district court’s ruling holding that the district court properly acquitted Defendant under Rule 29 because there was no agency or employee relationship between Defendant and API. The court also affirmed on the cross‐appeal, finding no error in either the district court’s speedy trial analysis or its jury instructions.  
 
The court explained that while there is some evidence that Defendant supported API in his working relationship with the corporation, it is not sufficient to establish that API exercised control over the scope and duration of its relationship with Defendant. Further, the district court’s analysis of the Barker factors and dismissal of Defendant’s Sixth Amendment claim falls “within the range of permissible decisions.

Williams v. Superintendent Mahanoy SCI

Court: US Court of Appeals for the Third Circuit

Docket: 20-2999

Opinion Date: August 18, 2022

Judge: Porter

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

Granthon was shot dead on a Harrisburg, Pennsylvania street corner. A day earlier, Granton had purchased an ounce of crack cocaine from Burton. Granthon “was short a couple grams” and sought a refund. The evidence linking Burton to Granthon’s death was “overwhelming.” Burton was convicted of first-degree murder. Williams was also charged with first-degree murder, conspiracy, and reckless endangerment of another but the evidence was weaker. No witness recognized Williams and no cell phone records placed him near the scene that night. Williams claimed he spent the night at a casino, but offered conflicting alibi stories and never used his casino rewards card that night. Williams’s trial lawyer’s “defense theory” was that Williams was “not placed at the scene.” He did not call Rochon, a witness at Burton’s trial whose testimony allegedly indicated that Granthon also shot a gun, nor did he make the case for self-defense or voluntary manslaughter.

Williams was convicted and sentenced to life in prison. The Third Circuit affirmed the denial of his petition for habeas relief, rejecting claims of ineffective assistance of counsel. His trial attorney’s alleged negligence is not self-evident, as the attorney may have reasonably thought that self-defense arguments would detract from an alibi defense. To show his attorney was negligent, Williams would need to develop the record in district court but the Antiterrorism and Effective Death Penalty Act forbids federal courts from supplementing the state court record under these circumstances.

Marion Bowman, Jr. v. Bryan Stirling

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-12

Opinion Date: August 16, 2022

Judge: RUSHING

Areas of Law: Constitutional Law, Criminal Law

Petitioner was convicted of murder and sentenced to death. During his state post-conviction relief (PCR) and federal habeas proceedings, Petitioner argued that the State of South Carolina’s failure to produce three pieces of evidence violated his due process rights because he could have used that evidence to impeach prosecution witnesses. Considering the entire record and the overwhelming evidence of Petitioner’s guilt, every court to address this argument has deemed the undisclosed evidence not material.

The Fourth Circuit agreed and denied Petitioner’s petition for habeas corpus. The court explained that having granted every permissible assumption in Petitioner’s favor and having carefully considered all the undisclosed evidence in light of the entire record at trial, the court concluded that Petitioner has not carried his burden to prove a reasonable probability that, had he received the undisclosed evidence, the jury would not have convicted him of murder or recommended a sentence of death.

US v. Montana Barronette

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-4123

Opinion Date: August 18, 2022

Judge: FLOYD

Areas of Law: Constitutional Law, Criminal Law

Appellants operated for around seven years an enterprise known as “Trained to Go” (TTG) within one of West Baltimore’s neighborhoods. Appellants distributed drugs and engaged in countless acts of violence using firearms. They exercised their constitutional right to a jury trial and were convicted for their actions, including for conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO). They now bring numerous challenges to their convictions and sentences, including their right to a public trial, the evidence admitted at trial, and more.
 
The Fourth Circuit affirmed Appellants’ convictions and sentences on all fronts, save one. The court reversed one Appellant’s Section 922(g)(1) conviction, vacated the judgment as to him, and remanded for further proceedings consistent with our opinion. The court explained that Appellants contend that any RICO conspiracy was confined to a neighborhood in Baltimore. But the government must only prove a “de minimis” effect on interstate commerce. Appellants argue that the de minimis standard does not apply to their activity because it was purely intrastate activity. But the de minimis standard does in fact apply. In Gonzales v. Raich, the Supreme Court made clear that “when 'a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’” Construing all this evidence in the light most favorable to the government, the court found there is sufficient evidence that the conspiracy affected interstate commerce.

USA v. Crittenden

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-50635

Opinion Date: August 18, 2022

Judge: Gregg Costa

Areas of Law: Constitutional Law, Criminal Law

A grand jury charged Defendant and co-Defendant with three offenses: conspiracy to deal methamphetamine; possession with intent to distribute 500 grams or more of methamphetamine; and conspiracy to deal marijuana. Defendant filed a motion seeking an acquittal or, in the alternative, a new trial. The district court granted the second request, however, the order did not divulge the grounds for the new trial. The government had timely appealed the new trial grant. A divided panel of the Fifth Circuit held that the district court did not abuse its discretion in granting a new trial.
 
The Fifth Circuit reversed the order granting a new trial, reinstated as to Count Two and the jury’s verdict on that count (possession with intent to distribute methamphetamine). The court further remanded for sentencing on that conviction. The court explained this is not one of the “exceptional cases” in which a judge had the discretion to vacate the jury’s verdict by ordering a new trial. Far from being a case in which the evidence weighs heavily against the verdict, the great weight of the evidence supports this one. The court wrote, that the district court set aside the verdict because, in its view, little evidence showed that Defendant knowingly possessed an illegal substance. But a trinity of evidence supported the knowledge element. The court explained that it is true that the “district judge, unlike us, was there throughout the trial.” But because the jury’s verdict was not against the great weight of evidence, it was an abuse of discretion to erase it.

USA v. Harbarger

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-40332

Opinion Date: August 18, 2022

Judge: Edith H. Jones

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of illegally possessing an unregistered firearm, specifically a “destructive device,” under the National Firearms Act (“NFA”). Appealing his conviction, Defendant argues that the NFA is unconstitutionally vague as applied to his case and that the evidence is insufficient to support conviction.
 
The determinative issue on appeal was whether an explosive-containing device falls within the NFA when it is susceptible of both innocent and destructive uses and not clearly designed as a weapon. The Fifth Circuit reversed the district court’s judgment of conviction. The court explained that in this case, the government’s only evidence challenging Defendant’s testimony that his bamboo stick device was used to scare beavers and destroy their dams (and wasn’t very good even at that) was the conclusion testimony of an ATF expert. Thus, the court wrote, in light of the government’s wholly conclusory case that the bamboo device was designed as a weapon or that it had no benign or social value, the conviction cannot stand. The evidence was insufficient to prove that the bamboo stick was an illegal explosive device “designed” as a weapon.

USA v. Slape

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-41085

Opinion Date: August 12, 2022

Judge: Kurt D. Engelhardt

Areas of Law: Constitutional Law, Criminal Law

In exchange for Defendant’s guilty plea on the superseding indictment’s principal drug-dealing charge (“Count 1”), the Government dismissed all other charges. The parties stipulated to a recommended prison sentence of 240 months. The district court followed the parties’ sentencing recommendation and dismissed all remaining counts in the superseding indictment “on the motion of the United States. Some months later, the Government discovered the procedural snag at the heart of this case: the superseding indictment to which Defendant pleaded guilty had been returned by a grand jury whose term had expired. At a plea hearing in which Defendant indicated satisfaction with his trial counsel’s performance and familiarity with the “grand jury mess-up[]” that had occurred in his initial case, Defendant pleaded guilty in accordance with the new plea agreement. The district court then imposed the 144-month sentence the parties agreed to and noted for the record the key terms of the provision quoted above.
 
Without conducting a hearing, the district court accepted a magistrate’s recommendation that Defendant’s Section 2255 motion be denied. The Fifth Circuit affirmed, holding that the expired grand jury’s untimely superseding indictment in Defendant’s first criminal case was null and void when jeopardy would have otherwise attached at Defendant’s jury trial and, accordingly, could not have placed Defendant in actual legal jeopardy within the meaning of the Double Jeopardy Clause. Because the failure of Defendant’s trial counsel to advise Defendant of a meritless double jeopardy argument was neither deficient nor prejudicial, the district court was correct to deny Defendant’s habeas corpus petition.

Cincinnati Enquirer v. Department of Justice

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-3966

Opinion Date: August 15, 2022

Judge: Richard Allen Griffin

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

A DEA task force investigated Jacobs, a Kentucky drug dealer. Jacobs sold drugs to a couple who allegedly were “good friends” with the local Commonwealth Attorney (CA). After Jacobs' arrest on state drug-trafficking charges, the couple had extensive conversations with the CA. After one conversation, an assistant state prosecutor requested Jacobs’s cell phone records from the task force, alerting the DEA to the CA’s relationship with Jacobs’s customers. The CA became involved in the case in other ways, impeding Jacobs’ use as a cooperating witness in other federal investigations by opposing a bond reduction and refusing to seek a state search warrant for an unrelated case if the DEA agent from the Jacobs investigation was involved. The DEA began investigating the CA’s conduct, “Operation Speakeasy.” Evidence was presented to the U.S. Attorney, who refused to bring obstruction charges against the CA.

A Cincinnati Enquirer reporter filed a Freedom of Information Act, 5 U.S.C. 552 request with the DEA, seeking any document related to the Jacobs investigation or Operation Speakeasy. The DEA denied that request, citing an exception for “records or information compiled for law enforcement purposes,” disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The Sixth Circuit affirmed the dismissal of the Enquirer’s suit. The documents “only minimally advance[d] a public interest in shedding light on the decision” to not prosecute the CA and “significant privacy interests outweigh[ed] the proffered public interest.”

Meadows v. City of Walker, Michigan

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-1548

Opinion Date: August 18, 2022

Judge: John M. Rogers

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

Walker Officer Dumond began pursuing Meadows after he passed Dumond on the highway while traveling nearly 90 miles per hour. During the subsequent traffic stop, which was captured on dash-camera footage, Dumond instructed Meadows to keep his hands out of his vehicle and to open the door to his vehicle. Dumond and Meadows shouted back and forth as Meadows attempted to open his door. Once Meadows exited the vehicle, Dumond grabbed Meadows and slammed him to the ground. On the ground, Dumond kneed Meadows to try and roll him over, and Officer Wietfeldt punched Meadows multiple times. Wietfeldt fractured Meadows’s wrist while handcuffing him.

Meadows sued the officers and the city under 42 U.S.C. 1983. The officers appealed the denial of their summary judgment motions based on qualified immunity. The Sixth Circuit affirmed. The court stated that on interlocutory appeal, it is bound by the district court’s determination that a reasonable jury could conclude that Dumond and Wietfeldt did not perceive Meadows as refusing to comply or resisting arrest. The dash-camera footage does not “blatantly contradict” the factual issues identified by the district court.

United States v. Clark

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-6038

Opinion Date: August 18, 2022

Judge: Deborah L. Cook

Areas of Law: Criminal Law

Clark was arrested for obtaining and distributing controlled substances, including cocaine and heroin, and for selling heroin to undercover agents on three occasions, 21 U.S.C. 841(a) and 846. Clark had committed various felonies in the past, including two Tennessee convictions for possessing marijuana with the intent to sell or deliver. The Sentencing Guidelines provide for a sentencing enhancement if a defendant has “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. 4B1.1(a).

Clark pled guilty to the possession count. The PSR calculated Clark’s total offense level at 29, taking into account his career offender status. The Guidelines range was 151–188 months. Clark objected to his career offender designation, arguing that before Clark’s 2019 arrest, the Agriculture Improvement Act narrowed the federal definition of marijuana to exclude hemp, 21 U.S.C. 802(16). Tennessee narrowed its definition a few months later. The district court overruled Clark’s objections and sentenced Clark to 151 months of imprisonment. The Sixth Circuit affirmed. The Guidelines’ use of the term “controlled substance” in the career offender enhancement should be defined with reference to the drug schedules in place at the time of the prior convictions at issue.

United States v. Iossifov

Court: US Court of Appeals for the Sixth Circuit

Dockets: 21-5404, 21-5063, 21-5147

Opinion Date: August 12, 2022

Judge: Eric L. Clay

Areas of Law: Criminal Law, Internet Law, White Collar Crime

A Romanian organization, the Alexandria Online Auction Fraud Network (AOAF), used fraudulent online advertisements on websites like eBay, Craigslist, and Amazon to convince unknowing U.S. purchasers to send payments for high-value items that did not actually exist. After receiving the payments through vehicles like gift cards and prepaid debit cards, AOAF money launderers in the U.S., including Brown, converted the payments into Bitcoin currency, which was then transferred back to Romania. Foreign Bitcoin exchange businesses including RG, Iossifov’s Bulgaria-based business, then transferred the Bitcoin balances to cash on behalf of AOAF fraudsters. About 900 victims never received the items for which they paid. The government learned about the scheme in 2014 when it discovered that an American citizen living in Kentucky was laundering funds on behalf of an online fraud organization; the individual became a confidential source.

The Sixth Circuit affirmed Iossifov and Brown’s convictions and sentences under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(d), and Iossifov’s additional conviction for conspiring to launder money 18 U.S.C. 1956(h). The court rejected venue, jurisdiction, and Due Process claims, a contention that Bitcoin does not fall under the money laundering statute, and challenges to sentencing enhancements and evidentiary rulings.

United States v. Paulk

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-2722

Opinion Date: August 17, 2022

Judge: Richard Allen Griffin

Areas of Law: Criminal Law

Paulk pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. 922(g)(1), 921(a), and 924(e). The PSR concluded that three of Paulk’s prior convictions were “violent felon[ies]” as defined by the Armed Career Criminal Act, 18 U.S.C. 924(e) (ACCA). He did not object to that finding. The district court sentenced him as a career offender and imposed a sentence of 180 months’ imprisonment. ACCA imposes a mandatory minimum sentence of 15 years for a section 922(g) conviction if the defendant has three or more previous convictions for “violent felon[ies],” “serious drug offense[s],” or both.

Paulk challenged the conclusion that his 2011 conviction for Michigan third-degree home invasion constituted a “violent felony” under ACCA. Reviewing his challenge for plain error, the Sixth Circuit affirmed. The court applied the categorical approach and rejected Paulk’s argument that it is possible to imagine scenarios in which there is no intent to commit a crime, yet a defendant could be convicted of third-degree home invasion. “This creative legal imagination is insufficient.” Paulk demonstrated at best “a theoretical possibility[] that [Michigan] would apply its statute to conduct that falls outside the generic definition of [burglary].”

Dunn v. Neal

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-1169

Opinion Date: August 12, 2022

Judge: ROVNER

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

Dunn was convicted in Indiana state court for the Torres murder. The case against Dunn was based largely on the testimony of two pathologists. In a state court post-conviction proceeding, Dunn argued that his trial counsel was ineffective for failing to consult with any forensic pathologist. The Indiana Court of Appeals affirmed the post-conviction court’s denial of relief.

The Seventh Circuit affirmed a conditional writ of habeas corpus under 28 U.S.C. 2254 based on ineffective assistance of trial counsel. At a state court post-conviction hearing, a board-certified forensic pathologist, Dr. Sozio, testified that the autopsy was substandard, missed a great deal, and that Torres’s injuries were more consistent with a fall than with being bludgeoned by a blunt object. If the defense had presented Sozio's testimony, the jury would have been presented with conflicting expert testimony regarding whether the fall alone caused the injuries. The state conceded that blood evidence effectively ruled out the use of a bat; no other weapon was found. Two eyewitnesses testified consistently that Torres was not beaten after his fall. Sozio's testimony was critical in this case to create reasonable doubt because it countered the state's scientific evidence and gave the jury reason to doubt that Torres was beaten. Dunn demonstrated prejudice under Strickland.

United States v. Galvan

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-2771

Opinion Date: August 16, 2022

Judge: HAMILTON

Areas of Law: Criminal Law

Galvan, a citizen of Honduras, borrowed a van from his employer, Gomez. He drove to Gomez’s home to return the vehicle and shared a meal with Gomez's family. For unknown reasons, Galvan eventually pulled out a handgun, fired several shots, took the keys from Gomez, and drove away in the van. Gomez called the police. Less than two hours later, police received a report of a man with a gun at an apartment complex. Galvan had threatened men in the complex while brandishing a handgun. Police found Galvan leaning on Gomez’s van, arrested Galvan, and found a handgun in the driver’s seat. Galvan pled guilty to possessing that handgun as an alien unlawfully in the U.S., 18 U.S.C. 922(g)(5). A state court charge for armed robbery of Gomez’s van was dismissed.

The district court found that the sentencing guideline for robbery governed Galvan’s firearm-possession offense because he had used the same handgun when he robbed Gomez, U.S.S.G. 2B3.1(a) & 2K2.1(c)(1)(A) and that Galvan fired the handgun in connection with the robbery, increasing his offense level by seven. Galvan’s sentencing range was 63-78 months in prison. The district court sentenced Galvan to 70 months. The Seventh Circuit affirmed. Ample evidence supported the court’s finding that the same gun was involved in both episodes. A preponderance of the evidence established that Galvan discharged a firearm “during” the robbery under Indiana law.

United States v. Hernandez

Court: US Court of Appeals for the Seventh Circuit

Dockets: 21-1935, 21-1481

Opinion Date: August 17, 2022

Judge: Kirsch

Areas of Law: Criminal Law

Hernandez coerced hundreds of victims—mostly minors—to produce sexually explicit images and videos of themselves, then extorted the victims. He often posted the results online or sent them to the victims’ friends and families. He threatened to murder, rape, kidnap, and injure his victims and their friends and family and encouraged some victims to kill themselves. Hernandez used at least 169 different accounts under countless aliases. He used the Tor Network to make his geographic location virtually impossible to trace. A minor victim allowed officers to use the victim’s online identity to send a video to Hernandez containing embedded code that revealed his IP address.

Hernandez pled guilty, without an agreement, to 41 counts: production of child pornography; coercion and enticement of minors; distribution and receipt of child pornography; threatening to use explosive devices; extortion; threats to kill, kidnap, and injure other persons; witness tampering; obstruction of justice; and retaliation. A PSR disclosed that the government would seek $10,000 in restitution each for eight minor victims, mandatory under 18 U.S.C. 2259(b)(2)(B), (c)(3). Hernandez objected to an offense-level enhancement but said nothing about restitution.

Hernandez was sentenced to 75 years’ imprisonment plus payment of $10,000 for each of 11 victims—three were added in an amended judgment. Hernandez argued that the government did not prove his victims’ losses or, alternatively that the judgment was not properly amended. The Seventh Circuit affirmed without reaching the merits. Hernandez failed to raise the issues with the district court; the omission was part of Hernandez’s sentencing strategy, so he waived the arguments.

United States v. Muhammad

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-1441

Opinion Date: August 15, 2022

Judge: Jackson-Akiwumi

Areas of Law: Criminal Law

In 2001, a jury convicted Muhammad of being a felon in possession of a firearm and stealing firearms from a federally licensed firearms dealer. Muhammad was sentenced as an armed career criminal and ordered to pay $10,421.66 in restitution to the firearms dealer and its insurer under the Mandatory Victims Restitution Act. The Seventh Circuit affirmed.

On collateral review, the district court vacated Muhammad’s sentence, 28 U.S.C. 2241, finding that he was improperly sentenced as an armed career criminal. Muhammad was resentenced to time served plus supervised release. Relying on the restitution amount in the revised PSR and the parties’ statements that Muhammad had not made any restitution payments, the court also ordered Muhammad to pay $10,421.66 in restitution. While an appeal was pending, the parties learned that Muhammad paid $433.32 toward his restitution judgment while incarcerated. The district court updated the record on appeal to reflect that Muhammad now owes $7,993.63 in restitution. The $2,228.03 reduction included $433.32 Muhammad paid, $200 his codefendant paid, and $1,794.71 from a Treasury Department offset. The Seventh Circuit affirmed. The court declined to correct any error, given that Muhammad concedes that he originally owed $10,421.66 in restitution and that there is no disagreement that he should receive credit for his payments.

United States v. Rogers

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-2638

Opinion Date: August 12, 2022

Judge: Kenneth Francis Ripple

Areas of Law: Criminal Law

Rogers, with a friend, A.W., went to a Rural King store where the video surveillance system recorded Rogers as he handled firearms, including a Mossberg shotgun. Minutes later, A.W. provided her ID, filled out Form 4473, and paid for the shotgun. A week later, Rogers and A.W. went to another Rural King: Rogers approached the counter alone and inspected several firearms, including a Sig Sauer rifle. A.W. later purchased the rifle. Law enforcement received a tip that Rogers and A.W. were purchasing firearms with fraudulently-obtained gift cards. Officers reviewed the Rural King security footage and concluded that A.W. was purchasing the firearms for Rogers. During an interview, A.W. denied knowing the location of the Sig Sauer. Rogers, interviewed by the same officer, stated that the rifle was under the couch in A.W.’s home. Rogers was charged with two counts of being a felon in possession of a firearm.

At trial, it became evident that two Mossberg shotguns were involved, one that Rogers handled, and another retrieved by the manager from storage and sold to A.W. The defense argued impossible to ascertain whether the grand jury intended to accuse Rogers of possessing the gun that he had handled at the counter or the gun purchased by A.W. The prosecution proceeded on a theory of joint possession of the purchased Mossberg. The Seventh Circuit affirmed his conviction and 70-month sentence.

Williams v. Rajoli

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1963

Opinion Date: August 17, 2022

Judge: Diane S. Sykes

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

Williams, an inmate, suffers from chronic tendinitis and has been prescribed pain medication. After injuring his finger, Williams was seen by a doctor. Williams’s finger did not require further treatment, but in an apparent error, Williams was removed from his pain medication. The next day Williams filed a “Request for Health Care” form, indicating that he was still experiencing pain and was no longer receiving his medication. Williams was seen by a nurse, who allegedly caused him further knee pain by making him do exercises while shackled. His medication was not reinstated and Williams continued to experience pain in his knee. As required by state grievance policies, Williams tried to informally resolve his complaints but Indiana’s policy requires that formal grievances be filed within 10 business days of the incident. Williams did not meet that deadline, believing that prison officials needed to respond to his informal grievance attempts before he could file a formal grievance. After Williams received a response he filed a formal grievance, but it was untimely.

In Williams's suit under 42 U.S.C. 1983, the district court granted the defendants summary judgment. The Seventh Circuit affirmed. The Prison Litigation Reform Act requires a prisoner to exhaust all available remedies in the prison’s administrative-review system before filing suit in federal court. Williams did not do so and his argument that he had good cause for his failure to timely file a formal grievance is unexhausted and waived.

Stacey Johnson v. Asa Hutchinson

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-1965

Opinion Date: August 16, 2022

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Plaintiff and other death-row prisoners in Arkansas sued the governor and a corrections official, arguing that Arkansas’s three-drug execution protocol violates the Eighth Amendment. After a bench trial, the district court found that the prisoners failed to establish a violation, and denied a motion for new trial.
 
The prisoners argue that the district court clearly erred in finding that they failed to demonstrate that the Arkansas execution protocol creates a substantial risk of severe pain. The Eighth Circuit affirmed. The prisoners cite expert testimony from Dr. Craig Stevens and Dr. Gail Van Norman that midazolam has a ceiling effect that occurs at a dose between 0.2 to 0.4 mg/kg. These experts relied on two medical studies, which are known by the names of their principal authors as the Inagaki study and the Miyake study. The court wrote that with no scientific consensus and a paucity of reliable scientific evidence concerning the effect of large doses of midazolam on humans, the district court did not clearly err in finding that the prisoners failed to demonstrate that the Arkansas execution protocol is sure or very likely to cause severe pain. Accordingly, the district court properly dismissed the claim under the Eighth Amendment.
 
Further, the prisoners failed to establish that the State’s existing method was sure or very likely to cause needless suffering, so the State was not required to consider alternative methods. The district court did not abuse its discretion in denying the motion.

United States v. Angela Garges

Court: US Court of Appeals for the Eighth Circuit

Docket: 20-3687

Opinion Date: August 15, 2022

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Defendant entered a conditional guilty plea to a charge of conspiracy to distribute methamphetamine. She reserved her right to appeal an order of the district court denying her motion to suppress evidence that police seized after conducting a protective sweep of a hotel room in which she was staying. See Fed. R. Crim. P. 11(a)(2).

The Eighth Circuit affirmed, concluding that the officers permissibly entered and searched the hotel room. On appeal, Defendant argues that the district court erred in denying the motion to suppress because the police lacked specific and articulable facts suggesting that a person posing a danger to the officers was located inside the hotel room. She maintains that the officers violated her rights under the Fourth Amendment by entering the hotel room without a warrant and that all evidence seized as a result of the entry should be suppressed.

The court explained that a protective sweep of the hotel room was justified here as an inspection of spaces immediately adjoining the place of arrest from which an attack could be immediately launched. It is undisputed that officers were positioned in the doorway to effect the arrest, and that police crossed the threshold into the room under the authority of the warrant. Accordingly, the court held that the officers observed evidence of unlawful drug activity in plain view while conducting the protective sweep did not violate Defendant’s rights under the Fourth Amendment.

United States v. Brandon Hayes

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2769

Opinion Date: August 17, 2022

Judge: SMITH

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted by a jury of possession of a firearm by a prohibited person, in violation of 18 U.S.C. Section 922(g)(9), and possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. Section 922(k). The district court sentenced him to 125 months’ imprisonment. On appeal, Defendant makes several arguments: first, that the district court erred in denying his request for an entrapment instruction; second, he raises a Brady claim; and third, he argues ineffective assistance of counsel.
 
The Eighth Circuit affirmed. The court explained that factual record establishes law enforcement and its informant merely provided Defendant an opportunity to make a sale, which revealed Defendant’s unlawful possession of the firearm that he sold to the agent.  As there is no evidence of inducement, the court was not required to give entrapment instruction.
 
Further, Defendant’s assertions are too speculative to support a Brady claim. The jury heard the relevant testimony and was thus aware of the conflicting recollections of the agent and the confidential informant about the events leading to the sale. Furthermore, considering the weight of evidence against Defendant on the two counts of conviction, the failure to disclose the identity of the informant’s brother did not prejudice him. Finally, the court declined to hear Defendant’s ineffective-assistance claim. The court held that it only reviews such claims on direct appeal in “exceptional cases”, and this case is not such an instance.

United States v. Christopher Golden

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2684

Opinion Date: August 17, 2022

Judge: GRUENDER

Areas of Law: Criminal Law

After a bench trial, the district court convicted Defendant on one count each of receipt and possession of child pornography under 18 U.S.C. Section 2252A(a)(2)(A) and (5)(B) and sentenced him to 97 months imprisonment. Defendant challenges the sufficiency of the evidence to support his convictions and the district court’s application of the sentencing guidelines.

The Eighth Circuit affirmed. According to Defendant, a rational jury could not have found that the evidence proved beyond a reasonable doubt that he knowingly received or possessed the child pornography found on his devices. The court explained that first, the thumbnails in Exhibits 1 to 4 support the district court’s finding that Defendant knowingly received and possessed those images or their originals. The examiner testified that a thumbnail indicates that the original of that image was in the phone’s gallery application at some point. Second, circumstantial evidence surrounding Exhibits 5, 6, and 8 to 13 supports the district court’s finding that Defendant knowingly possessed and received at least one of the images in these exhibits. Third, other evidence supports these inferences. Defendant’s devices contained thirteen child-pornography files, several suspected child-pornography files, and hundreds of other images of children—many erotic and some watermarked with child-pornography-related terms. Further, because the district court would have imposed the same sentence under Section 3553(a) factors as it did under the guidelines, any error in its application of the guidelines was harmless.

United States v. Christopher Perez

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2130

Opinion Date: August 18, 2022

Judge: KELLY

Areas of Law: Criminal Law

Defendant appealed the denial of his motion to suppress, having preserved the right to do so pursuant to his conditional plea of guilty. He also appeals his sentence, challenging his classification as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), and in the alternative, the calculation of his Guidelines range on other grounds.


The Eighth Circuit affirmed the denial of the motion to suppress. The court vacated his sentence and remand for resentencing, however, because Defendant does not have three prior qualifying convictions under the ACCA. The court explained that was reasonable for the officers to rely on our then-applicable precedent that dog sniffs at an interior apartment door are permissible.
 
Moreover, the court wrote that to be subject to higher statutory penalties under the ACCA, an individual who violates 18 U.S.C. 922(g) must have three or more prior convictions for offenses -6- that are “violent felon[ies]” or “serious drug offense[s].” 18 U.S.C. 924(e)(1). As relevant here, a serious drug offense is defined as: “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law. Accordingly, the court found that Defendant’s prior offenses are not serious drug offenses under the ACCA, and the district court erred by sentencing Defendant as an armed career criminal.

United States v. Darvill Bragg

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2096

Opinion Date: August 15, 2022

Judge: LOKEN

Areas of Law: Criminal Law

A jury convicted Defendant of being a felon in possession of a firearm. Defendant appealed, arguing that evidence from his iPhone should have been suppressed because the government delayed unreasonably before seeking a search warrant, and that prior firearm convictions were improperly admitted under Federal Rule of Evidence 404(b). He also appealed his sentence, arguing that neither his Iowa willful injury conviction nor his two Illinois armed robbery convictions qualifies as “violent felonies” under Section 924(e). He further argued the Illinois robbery convictions were not “committed on occasions different from one another,” Section 924(e)(1), and thus constitute only one prior violent felony conviction.

The Eighth Circuit affirmed. The court explained that although significantly longer delays have been upheld as not unreasonable, without question the twenty-four-day delay at issue is of concern. The court reasoned that because smartphones “retain data for long periods of time,” delay between the time a cell phone is seized and when it is searched is not likely to cause stored personal data to be lost, or data of potential evidentiary relevance to become stale. More important to the private interests at stake, Defendant was in police custody for the entire twenty-four-day period, and there is no evidence that either Defendant or anyone acting on his behalf made a request or demand for its return, or even inquired about it. Thus, the district court did not err in denying Defendant’s motion to suppress. Further, the court held that the district court properly determined that Defendant’s Section 708.4(1) willful injury conviction is an ACCA predicate violent felony.

United States v. Jeff Harris

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3130

Opinion Date: August 12, 2022

Judge: LOKEN

Areas of Law: Criminal Law

Defendant sold capsules of heroin that contained fentanyl to a confidential source in the St. Louis metro area. A superseding indictment charged Defendant with conspiracy to distribute heroin and fentanyl between June 2017 and May 2019, possession with intent to distribute heroin, and distribution of fentanyl in August 2019 resulting in death. Defendant pleaded guilty to conspiracy to distribute and possess with intent to distribute fentanyl.

At sentencing, adopting the presentence investigation report (PSR) without objection, the district court1 determined an advisory guidelines sentencing range of 15-21 months’ imprisonment, granted the government’s motion for an upward departure, and sentenced Defendant to 70 months imprisonment. Defendant appeals, arguing the court erred in granting an upward departure based primarily on Defendant’s role in the August 2019 fentanyl overdose death.

The Eighth Circuit affirmed. The court explained that the district court did not abuse its discretion in concluding that the agent’s testimony, to the extent it included hearsay, bore sufficient indicia of reliability to support its use in sentencing Defendant. Accordingly, the court did not clearly err in finding that the government proved by a preponderance of the evidence that a death resulted from Defendant’s conduct and then granting the government’s motion for an upward departure. Departing upward, the court imposed a sentence of 70 months imprisonment. This sentence is consistent with upward departures the court has approved under Section 5K2.1 for drug distribution conduct that resulted in an overdose death.

United States v. Kenneth Barbee, Jr.

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2413

Opinion Date: August 18, 2022

Judge: KOBES

Areas of Law: Criminal Law

A jury convicted Defendant of being a felon in possession of a firearm. Defendant challenged the admission of his prior felony firearm conviction under Federal Rule of Evidence 404(b). He also appealed the procedural and substantive reasonableness of his sentence.
 
The Eighth Circuit affirmed. Defendant first challenged the admission of his 2008 conviction as improper propensity evidence. The court explained that even assuming for the sake of argument that evidence of the prior crime was inadmissible, any error was harmless. The Government asked the witness only two vague questions about the prior conviction and mentioned it in passing during the closing argument. The district court gave a limiting instruction when the evidence was introduced, telling the jury that it could only be used to show knowledge, intent, or absence of mistake, and not as evidence of guilt. The prosecutor repeated the limiting guidance in her closing argument. And the jury had ample evidence to support its verdict even without the evidence—including a recording from the post-arrest interview in which Defendant admitted that he handled the guns.
 
Defendant further argued that hat the district court did not give enough consideration to Section 3553(a) factors when deciding his sentence. The court explained that based on the record as a whole, particularly the court’s engagement with each side’s arguments at sentencing, the court is satisfied that the district court was aware of and adequately considered the Section 3553(a) factors. Finally, in considering that a within-Guidelines sentence is presumptively reasonable, the court held that Defendant failed to overcome this presumption of reasonableness.

United States v. Lamark Combs, Jr.

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3448

Opinion Date: August 12, 2022

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

Facing five child-pornography counts and one for enticing a minor, Defendant decided to enter into a plea agreement with the government. Of the six counts, he pleaded guilty to three of them: two for receiving child pornography, each from a separate victim. When the presentence investigation report said he was responsible for receiving pornographic images from two others, Minor Victim 3 and H.P., he filed a written objection. At sentencing, the fact dispute never came up. Defendant did not renew his objection, the government did not present evidence that he had received sexually explicit material from Minor Victim 3 or H.P., and the district court never made any findings. Without ever resolving the factual dispute that the presentence investigation report had flagged, the court sentenced him to 210 months in prison.

The Eighth Circuit vacated Defendant’s sentence and remanded for resentencing. The court explained that agrees that Defendant specifically objected to receiving sexually explicit images from Minor Victim 3 and H.P., meaning that the district court could not rely on those facts unless the government proved them by a preponderance of the evidence. The government never did so, yet the district court sentenced Defendant as if it had. The government does not dispute that the error here was “clear or obvious.” Instead, the focus is on the next step in the plain-error analysis: whether the procedural error affected Defendant’s substantial rights. The court vacated the sentence explaining that a failure to correct the error will also seriously affect the fairness, integrity, and public reputation of judicial proceedings.

United States v. Ramon Simpson

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2463

Opinion Date: August 15, 2022

Judge: Steven M. Colloton

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of kidnapping resulting in death and conspiracy to commit kidnapping. On appeal, Defendant challenges several rulings of the district court* and the sufficiency of the evidence in support of the convictions.

The Eighth Circuit affirmed. Defendant’s first argument on appeal is that the district court erred by denying his motion to suppress statements from the interviews on November 8 and 21, 2018. He contends that investigators subjected him to custodial interrogations without advising him of his rights under Miranda v. Arizona. The court concluded that there was no custodial interrogation of Defendant on November 8. Defendant responded to the FBI agent’s request for a conversation and agreed to let the agent come to his house for the meeting. The agent did not display a weapon or restrain Defendant in any way. The agent was dressed in plain clothes and allowed Defendant’s wife to sit nearby for the interview. Further, the court held that there is no indication that Defendant is particularly susceptible to undue influence: he is an adult of average intelligence who has earned an associate’s degree and is familiar with the protections afforded by the legal system due to an extensive criminal history.

Moreover, the court held that the district court did not abuse its discretion by concluding that the probative value of the evidence was not substantially outweighed by a danger of unfair prejudice. Further, the court concluded that there was no error in declining to instruct the jury that the government must prove that Defendant knew in advance that death would result from the kidnapping.

United States v. Reynaldo Sanchez

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2415

Opinion Date: August 15, 2022

Judge: LOKEN

Areas of Law: Criminal Law

Defendant pleaded guilty to transportation of child pornography in violation of 18 U.S.C. Sections 2252A(a)(1) and (b)(1). At sentencing, the district court determined an advisory guidelines sentencing range of 108 to 135 months in prison, considered the 18 U.S.C. Section 3553(a) sentencing factors, and imposed a sentence of 96 months imprisonment and 20 years of supervised release. The court imposed seven special conditions of supervised release.

Defendant appealed his sentence, presenting as the issue for review whether the district court abused its discretion in requiring Defendant to submit to periodic polygraph testing at the discretion of the U.S. Probation Office.

The Eighth Circuit affirmed. The court explained that here, the district court did not procedurally err. It conducted a thorough individualized analysis of the sentence it was imposing. The seven special conditions of supervised release require that Defendant (5) “participate in a sex offense-specific treatment program,” and (6) “submit to periodic polygraph testing . . . to ensure that he is in compliance with the requirements of his supervision or treatment program.” In response to Defendant’s timely objection, the court carefully explained why the sentence would include this polygraph testing special condition. Moreover, the court held that Defendant has not met his burden to establish that a special condition is unreasonable.

United States v. Seth Huntington

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3399

Opinion Date: August 12, 2022

Judge: Per Curiam

Areas of Law: Criminal Law

Defendant pleaded guilty to possessing a firearm as a felon. 18 U.S.C. Section 922(g)(1). The district court imposed a fifteen-year mandatory-minimum sentence under the Armed Career Criminal Act after concluding that Defendant had three prior violent felonies: two for third-degree assault; and another for first-degree burglary with assault. Defendant argued that none of these convictions were violent felonies, however, the Eighth Circuit affirmed the district court’s judgment.

The court explained that there are two ways for a prior conviction to count. One is through the “enumerated-offenses clause,” which lists offenses that qualify. The other is if the offense “has as an element the use, attempted use, or threatened use of physical force against the person of another,” otherwise known as the “force clause.” Defendant’s final conviction was for first-degree burglary, which is a “divisible” crime. The particular version he committed was first-degree burglary with assault, which as the name suggests, required him to commit an assault during the course of a burglary. This crime uses the same definition of “assault” as the others, which means it is a “violent felony” too. Defendant argues that Borden v. United States, 141 S. Ct. 1817 (2021) suggests that an assault can never qualify as a violent felony. However, n Minnesota, assault requires intentional conduct, and Borden only “excludes crimes that can be committed recklessly.”

United States v. Zachary Anderson Wailes

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3336

Opinion Date: August 12, 2022

Judge: LOKEN

Areas of Law: Criminal Law

Defendant pleaded guilty to bank robbery. The presentence investigation report (PSR) recommended applying a five-level sentencing enhancement for possessing or brandishing a firearm during the robbery. Overruling Defendant’s objection, the district court found the Government proved there was a firearm involved by a preponderance of the evidence. The five-level firearm enhancement resulted in an advisory guidelines sentencing range of 100 to 125 months’ imprisonment. The court after considering the 18 U.S.C. Section 3553(a) sentencing factors imposed a 100-month sentence. Defendant appealed, arguing the district court committed clear error when it imposed the five-level firearm enhancement because the government, by relying on “uncorroborated, unreliable hearsay statements,” failed to prove that Defendant possessed a firearm during the bank robbery.

The Eighth Circuit affirmed. The court concluded that the district court did not abuse its discretion in considering the tellers’ interview testimony after concluding that the “statements, though hearsay, were made under circumstances indicating sufficient. Nor did the court clearly err in finding by a preponderance of the evidence that Defendant brandished or possessed a firearm during the robbery. The tellers’ testimony was strong but not necessarily conclusive evidence on this issue, and the security video did not eliminate uncertainty as to the presence of a firearm.

USA V. CLEMENTE HERNANDEZ-GARCIA

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-50228

Opinion Date: August 17, 2022

Judge: Lee

Areas of Law: Constitutional Law, Criminal Law

Defendant argued that the Marine Corps surveillance violated the Posse Comitatus Act, which codified the longstanding prohibition against military enforcement of civilian law. Rejecting that argument, the Ninth Circuit explained that the military may still assist civilian law enforcement agencies if Congress expressly authorized it, and here, the 2016 National Defense Authorization Act directed the U.S. Secretary of Defense to offer military assistance to Border Patrol in hopes of securing the southern land border. The court concluded that the district court therefore properly denied Defendant’s suppression motion based on the alleged violation of the Posse Comitatus Act. The court also denied Defendant’s Batson challenge to the prosecution’s striking two Asian jurors from the venire, concluding that Defendant failed to rebut the prosecution’s race-neutral reasons for doing so.

USA V. JESUS RODRIGUEZ

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-50108

Opinion Date: August 17, 2022

Judge: Milan D. Smith, Jr.

Areas of Law: Criminal Law

Defendant was convicted of importing methamphetamine into the United States. He argued that the court should vacate his sentence and remand for resentencing because the district court erred in denying him a minor-role adjustment at sentencing and by erroneously concluding that he was not eligible for safety-valve relief. The Ninth Circuit held that the district court erred in analyzing whether to apply the minor role adjustment. Accordingly, the court vacated Defendant’s sentence and remanded for resentencing.
 
The court started by correcting two legal errors that appear to have infected all of the district court’s analysis. First, the district court incorrectly held that Defendant’s recruiter’s culpability was not relevant to the minor-role analysis. Second, the district court appeared to treat each factor in the mitigating-role analysis as presenting a binary choice, but the commentary to Section 3B1.2 instructs courts to analyze the degree to which each factor applies to the defendant. Because the court vacated the sentence and remanded for resentencing, the court did not need to reach Defendant’s argument that the district court erred in concluding that he was not eligible for safety-valve relief.

USA V. SHAKARA CARTER

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-10411

Opinion Date: August 17, 2022

Judge: Bea

Areas of Law: Criminal Law

Defendant appealed a district court order granting in part and denying in part his motion to be resentenced under the First Step Act of 2018. The Ninth Circuit vacated the district court’s order granting in part and denying in part Defendant’s motion to be resentenced under the First Step Act of 2018 and remanded.
 
The court wrote that Concepcion v. United States, 142 S. Ct. 2389 (2022), has three holdings relevant here: (1) that the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence; (2) that because district courts must consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them; and (3) that district courts ruling on First Step Act motions bear the standard obligation to explain their decisions, and accordingly must give a brief statement of reasons to demonstrate that they considered the parties’ arguments— including arguments pertaining to intervening changes in law or fact.
 
Applying Concepcion’s principles, the court held that the district court erred by granting in part and denying in part Defendant’s resentencing motion with no explanation whatsoever, where Defendant raised intervening legal and factual changes to support the sentence reduction that he requested.

United States v. Gladney

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-1159

Opinion Date: August 15, 2022

Judge: Mary Beck Briscoe

Areas of Law: Constitutional Law, Criminal Law

Defendant William Gladney was convicted in 2007 on three criminal counts: violating the Racketeer Influenced and Corrupt Organizations (RICO) Act; conspiracy to distribute more than 50 grams of cocaine base; and using, carrying, or possessing a firearm in relation to a drug trafficking crime. Gladney was sentenced to concurrent life sentences on the RICO and drug conspiracy convictions, followed by a ten-year consecutive sentence on the firearms conviction. In 2020, Gladney filed a motion to reduce his sentence in light of changes that Congress implemented to the sentencing scheme for offenses involving cocaine base. Gladney also sought funds to hire an investigator to gather evidence to support his motion for reduction of sentence. The district court denied without prejudice Gladney’s request for funds. It then denied Gladney’s motion for reduction of sentence. Gladney appealed those rulings, arguing that the district court erred in finding him ineligible for a reduction of sentence under the First Step Act. The Tenth Circuit concluded Gladney’s arguments were largely foreclosed by its decision in United States v. Mannie, 971 F.3d 1145 (10th Cir. 2020). Because of Mannie, any reduction the district court could have made to the sentence on Gladney's covered offense under the First Step Act "would not actually reduce the length of [Gladney's] incarceration. The Tenth Circuit therefore concluded the district court could not redress Gladney's injury, and in turn, Gladney's motion for reduction of sentence under the First Step act "does not present a live controversy." The Court thus dismissed Gladney's appeal for lack of standing.

United States v. Gross

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-6175

Opinion Date: August 18, 2022

Judge: Carson

Areas of Law: Constitutional Law, Criminal Law

Defendant Martavious Gross was convicted for crimes relating to a road rage drive-by shooting. Defendant sat in the passenger seat of a car driving on an Oklahoma highway when A.A. cut the car off, allegedly almost hitting it. The car sped up to pull beside A.A.’s car so that Defendant could yell at and flip off A.A. The car caught up to A.A. again, and this time Defendant fired a gun at A.A.’s vehicle. The car took off afterward, and Defendant gave the gun to his brother to hide in the trunk. A.A. then followed the car to collect its description and license-plate number, along with a description of Defendant, to report to the police. The sentencing court varied upward from the Guidelines range and sentenced Defendant to the statutory maximum. He appealed, challenging the sentence’s procedural and substantive reasonableness. But the waiver in his plea agreement prohibited procedural appeals. “Defendant tried to take a detour around his appeal waiver” by suggesting the Tenth Circuit Court of Appeals evaluate how the court calculated the Guidelines range as part of its substantive analysis. But a defendant cannot transform procedural arguments into a substantive challenge to avoid an appeal waiver’s plain language. For this reason, the Court enforced the waiver and dismised his appeal insofar as Defendant’s arguments bore solely upon the procedural reasonableness of his sentence.

United States v. Piette

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-7008

Opinion Date: August 18, 2022

Judge: Eid

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Henri Piette was convicted by jury in Oklahoma of kidnapping and traveling with intent to engage in sexual relations with a juvenile. The district court sentenced Piette to life imprisonment on the former conviction, and 360 months’ imprisonment on the latter. He sought to have his convictions overturned or his sentence reversed. After review, the Tenth Circuit held that the district court did not err by admitting evidence of Piette’s uncharged acts of molestation, and that statutes extending the unexpired charging period for the traveling-with-intent charge did not have an impermissible retroactive effect. However, the Court concluded the district court plainly erred by misallocating the burden of proof once Piette disputed the timing of the kidnapping by arguing that the victim, Rosalynn McGinnis, consented. The Court reversed Piette’s kidnapping conviction because the Tenth Circuit found there was a difference between what happened here—Piette failing to prove by a preponderance of the evidence that McGinnis ever consented—and what the Constitution required: the government proving beyond a reasonable doubt that she never consented at a time that would cause a statute of limitations problem. Finally, the Court rejected Piette’s argument that he was denied his Sixth Amendment right to self-representation at sentencing.

United States v. Price

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-7050

Opinion Date: August 17, 2022

Judge: Timothy M. Tymkovich

Areas of Law: Constitutional Law, Criminal Law

Petitioner Joshua Price Jr. appealed the district court’s dismissal of his motion for a sentence reduction pursuant to the First Step Act of 2018. The parties agreed that Price was eligible for a sentence modification because he was convicted of a covered offense: distribution of cocaine base under 21 U.S.C. § 841. But the parties disagreed about whether Price had standing to request a First Step Act sentence modification. Tenth Circuit precedent held that if the length of a prisoner’s sentence was determined by a concurrent non-covered offense, and that sentence exceeded the length of the covered offense, then the prisoner did not have constitutional standing for a sentence modification. The question presented here was whether the district court could modify Price’s sentence in light of the First Step Act. To this the Tenth Circuit Court of Appeals concluded the district court has discretion to reduce Price’s overall sentence. Since Price’s sentence was entirely driven by the drug offenses, the Court held he was eligible for a sentence modification. "And nothing prevents the district court from reviewing the murder cross reference in considering his sentence under the now-advisory Sentencing Guidelines. Since no statutory mandatory minimum applies for the murder cross reference, during sentence modification the court is entitled to apply the traditional sentencing factors under 18 U.S.C. § 3553(a)."

Fabio Ochoa v. USA

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-10755

Opinion Date: August 18, 2022

Judge: BRASHER

Areas of Law: Constitutional Law, Criminal Law

Petitioner, a Colombian native, was arrested in Colombia on drug trafficking charges and ultimately convicted in federal court. Petitioner now appeals the denial of both his amended 28 U.S.C. Section 2255 motion to vacate his convictions and sentence and his subsequent motion to alter or amend the judgment. He claims that one of his pre-extradition attorneys was ineffective due to a conflict of interest. According to Petitioner, his attorney tried to convince him to pay a thirty-million-dollar bribe or kickback as part of a plea agreement, which would redound to the benefit of one of Petitioner’s other clients. But Petitioner was represented by other attorneys, and he does not allege that they were conflicted or otherwise deficient in pursuing legitimate plea agreements on Petitioner’s behalf. The district court held that the allegations in Petitioner’s motion would not establish a Sixth Amendment violation even if true.
 
The Eleventh Circuit affirmed. The court explained that even assuming a conflict of interest existed, Petitioner’s claim ultimately fails because he does not sufficiently allege that the “conflict adversely affected his representation.” Although Petitioner criticizes his attorney, he does not allege that his other attorneys suffered under a conflict of interest. The Sixth Amendment ensures the right to effective assistance of “an attorney.” The Sixth Amendment does not include the right to receive good advice from every lawyer a criminal defendant consults about his case. Further, the court wrote, that because it concluded that Petitioner’s claim fails on the merits, it cannot say the district court abused its discretion in denying his request for an evidentiary hearing.

Miguel Alvarado-Linares v. USA

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-14994

Opinion Date: August 16, 2022

Judge: BRASHER

Areas of Law: Constitutional Law, Criminal Law

Petitioner participated in several shootings as a member of MS-13, a violent gang. He was convicted of one count of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO). He was also convicted of four counts under the Violent Crimes in Aid of Racketeering Act (VICAR), 18 U.S.C. Section 1959(a). Because he used a gun in committing those offenses, he was also convicted of four corresponding counts of using a firearm in relation to each “crime of violence” under 18 U.S.C. Section 924(c). For these nine convictions, he is serving three concurrent life sentences plus eighty-five years. His eighty-five-year sentence is based exclusively on the four firearms convictions.
 
Petitioner filed a 28 U.S.C. Section 2255 motion to vacate his firearms convictions and his eighty-five-year sentence. The district court denied the motion. At issue on appeal is whether his four firearms convictions are unconstitutional in light of the Supreme Court’s decision in United States v. Davis, 588 U.S.
 
The Eleventh Circuit affirmed the district court. The court held that Petitioner’s VICAR convictions (Counts Two, Four, Eight, and Ten), predicated on his commission of murder and attempted murder, qualify as crimes of violence under Section 924(c)’s elements clause. That means that his corresponding firearms convictions (Counts Three, Five, Nine, and Eleven) are still valid after Davis’s holding that the residual clause is unconstitutional. And that means that, after Petitioner completes his three concurrent life sentences, he will still have a consecutive eighty-five-year sentence left to serve.

USA v. Amistad Veney

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

Docket: 20-3081

Opinion Date: August 12, 2022

Judge: WALKER

Areas of Law: Constitutional Law, Criminal Law

Appellant was convicted of unlawfully possessing a loaded firearm. He does not dispute that the bulge of that gun in his waistband gave an arresting officer the reasonable suspicion required to conduct a stop-and-frisk that uncovered the gun. But Appellant argues he submitted to an illegal show of authority several seconds before then when the officer did not yet have a close view of the bulge in Appellant’s waistband.

The DC Circuit affirmed the finding that Appellant did not submit to a show of authority. The court explained that Appellant has not described submission to a show of authority. Because the officer’s statement (“No.”) followed Appellant’s declaration that he was “going to walk off,” Appellant could not submit while he “continued moving forward.” One cannot submit to an order not to “walk off” by walking off. Moreover, even when a show of authority does not expressly prohibit flight, it can do so implicitly. Accordingly, at no point did Appellant voluntarily submit to a show of authority. He, therefore, was not seized until the officer blocked his path. By then, the officer could see the bulge of Appellant’s gun in his waistband, and Appellant does not dispute that the bulge gave the officer the reasonable suspicion required for the stop and frisk that followed.

USA v. Mark Russell

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

Docket: 20-3080

Opinion Date: August 16, 2022

Judge: WALKER

Areas of Law: Criminal Law

Appellant has been convicted of two child-sex crimes. After his second conviction, the district court revoked Appellant’s supervised release for his first conviction and sentenced him to three years in prison — to run consecutive to his Maryland sentence — followed by a new term of supervised release.

First, Appellant says that the district court erred when it required GPS monitoring for the first two years of his new term. Because that requirement falls within the district court’s wide discretion to impose conditions on supervised release, we will not disturb it. Second, regarding the length of Appellant’s new term of supervised release, Russell sees a contradiction between the district court’s oral pronouncement and its written judgment.

The DC Circuit affirmed the district court’s decision to require GPS monitoring for the first two years of Appellant’s new term of supervised release and remanded for the district court to clarify the length of that term. The court held that the district court did not abuse its wide discretion when it concluded that two years of GPS monitoring was “reasonably necessary.” The court explained that GPS monitoring’s potential to protect children — from a serial child-sex predator who will otherwise be better able to sexually assault children — outweighs the effect of that monitoring on Appellant’s liberty.

However, the court remanded for clarification about Appellant’s new term, explaining that the district court’s oral pronouncement of a sentence controls over a written judgment, and the district court’s aside at the revocation hearing created ambiguity about the length of Appellant’s new term of supervised release.

Willis v. Honorable Bernini

Court: Arizona Supreme Court

Docket: CR-21-0258-PR

Opinion Date: August 18, 2022

Judge: Montgomery

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

The Supreme Court reversed the judgment of the trial court denying Defendant's motion seeking remand to the grand jury for a redetermination of probable cause pursuant to Ariz. R. Crim. P. 12.9, holding that the trial court did not err in denying Defendant's Rule 12.9 motion.

A grand jury indicted Defendant for attempted second degree murder and other crimes. Defendant subsequently filed the motion at issue, arguing that the State withheld clearly exculpatory evidence of a justification defense that it was obligated to present despite the evidence not being requested by the defense. The trial court denied the motion. The Supreme Court reversed, holding (1) the Arizona Constitution guarantees a person under grand jury investigation a due process right to a fair and impartial presentation of clearly exculpatory evidence, and a prosecutor has a duty to present such evidence to a grand jury even in the absence of a specific request; (2) where there is evidence relevant to a justification defense that would deter a grand jury from finding probable cause the prosecutor has an obligation to present such evidence; and (3) the State failed to present clearly exculpatory evidence in this case, denying Defendant a substantial procedural right.

California v. Gregor

Court: California Courts of Appeal

Docket: C090171(Third Appellate District)

Opinion Date: August 12, 2022

Judge: Duarte

Areas of Law: Constitutional Law, Criminal Law, Immigration Law

Defendant Andrew Gregor, a naturalized citizen from Australia, pleaded guilty to a felony sex offense that was later reduced to a misdemeanor and dismissed after early termination of probation. After he was informed he was not able to sponsor his father for a family visa due to this conviction, defendant filed a motion pursuant to Penal Code section 1473.7 and sought to withdraw his plea claiming he was unable to meaningfully understand, defend against, or knowingly accept the adverse immigration consequences of his conviction. The trial court denied the motion; defendant appealed. Finding no reversible error in that judgment, the Court of Appeal affirmed.

California v. Orosco

Court: California Courts of Appeal

Docket: D079723(Fourth Appellate District)

Opinion Date: August 17, 2022

Judge: Buchanan

Areas of Law: Constitutional Law, Criminal Law

Appellant Jesse Orosco appeals his conviction for one count of assault on a peace officer by means of force likely to produce great bodily injury. He argued: (1) there was no substantial evidence the victim was a peace officer; (2) the trial court erroneously denied his request to represent himself under Faretta v. California 422 U.S. 806 (1975); (3) the trial court erroneously instructed the jury on the definition of a peace officer and his duties; and (4) the abstract of judgment should be corrected. The Court of Appeal found as a matter of law based on the undisputed evidence that the victim was working as a peace officer at the time of the incident. The Court concluded, however, that the trial court violated Orosco’s Sixth Amendment rights by denying his Faretta request for self-representation based on a finding that he was “unable to sufficiently represent himself.” There was no substantial evidence that Orosco was mentally incompetent to represent himself under the applicable legal standard. Because the error was reversible per se, the Court reversed the judgment and did not decide the other issues raised.

California v. Salgado

Court: California Courts of Appeal

Docket: G060656(Fourth Appellate District)

Opinion Date: August 18, 2022

Judge: William W. Bedsworth

Areas of Law: Constitutional Law, Criminal Law

Victor Salgado appealed a recall and resentencing under former Penal Code section 1170 (d)(1). After Salgado shot at a rival gang member but killed another, he was charged with: one count of first degree murder; one count of attempted premeditated murder; two counts of assault with a semiautomatic firearm; one count of possession of a firearm while on probation; and one count of street terrorism (active gang participation). Salgado argued the trial court erred in imposing a one-year determinate sentence on a gang enhancement, improperly calculated his custody credit, and requests this court correct clerical errors in the sentencing minute order and the abstract of judgment. The Attorney General conceded these errors, but argued the sentencing court should have imposed higher, statutorily prescribed terms on the enhancements. While this appeal was pending, Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 3) came into effect on January 1, 2022. Assem. Bill 333 “amended section 186.22 to impose new substantive and procedural requirements for gang allegations.” Additionally, on the same day, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, §§ 1-7) came into effect, and moved the recall and resentencing provisions of former section 1170(d), to new section 1170.03. Assem. Bill 1540 also clarified the Legislature’s intent that the resentencing court would “apply ameliorative laws . . . that reduce sentences or provide for judicial discretion, regardless of the date of the offense of conviction.” The Court of Appeal concluded Salgado was entitled to the benefit of Assem. Bill 333 because his criminal judgment was no longer final following the recall and resentencing. Accordingly, the Court reversed the gang offense conviction and vacated the jury’s true findings on the gang enhancement allegations. The Court remanded the matter to afford the prosecution an opportunity to retry the gang crime and related enhancements.

People v. Guillory

Court: California Courts of Appeal

Docket: A161952(First Appellate District)

Opinion Date: August 17, 2022

Judge: Burns

Areas of Law: Criminal Law

Guillory, convicted in 2004 of kidnapping, carjacking, robbing, and murdering Curtis, claimed she qualified for resentencing under Penal Code section 1172.6(d) (effective January 1, 2019) because the jury rejected a special circumstances allegation that Guillory committed the murder during the course of a kidnapping. The new law eliminated the natural and probable consequences doctrine as to murder and narrowed the felony murder exception to the malice requirement and requires that the perpetrator of felony murder was either the actual killer; aided and abetted the killer with the intent to kill; or was a major participant in the underlying felony and acted with reckless indifference to human life. Guillory argued that vacatur of a sentence is required “[i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony.”

The court of appeal affirmed the denial of relief. There were viable bases for murder liability independent of the rejected special circumstances allegation. In such circumstances, section 1172.6,(d)(2) cannot plausibly be read to mandate automatic vacatur of the murder conviction and resentencing. The court also rejected Guillory’s claim that Proposition 57 applies retroactively to her case.

Diaz v. Commissioner of Correction

Court: Connecticut Supreme Court

Docket: SC20536

Opinion Date: August 16, 2022

Judge: Mullins

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

The Supreme Court reversed the judgment of the appellate court dismissing Petitioner's appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus, holding that Petitioner failed to prove his claim that his counsel labored under an actual conflict of interest.

At issue was whether the habeas court abused its discretion in denying Petitioner's petition for certification to appeal with respect to his claim that his defense counsel rendered ineffective assistance during his second criminal trial by simultaneously working as defense counsel and as an active duty police officer in a different city, which Petitioner claimed was a conflict of interest. The Supreme Court affirmed, holding that defense counsel's actions did not rise to the level of an actual conflict of interest for purposes of the Sixth Amendment.

State v. Qayyum

Court: Connecticut Supreme Court

Docket: SC20552

Opinion Date: August 16, 2022

Judge: Mullins

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the appellate court affirming Defendant's conviction of one count of conspiracy to sell narcotics and two counts of possession of narcotics with intent to sell, holding that Defendant was not entitled to reversal on his claims of error.

On appeal, Defendant argued that the trial court erred in admitting expert testimony regarding his intent to sell narcotics and in admitting evidence that he had no reportage wages on record with the Connecticut Department of Labor in 2016 and 2017. The Supreme Court affirmed, holding (1) Defendant failed to preserve his first evidentiary claim; and (2) assuming, without deciding, that the trial court improperly admitted evidence regarding Defendant's lack of reportable wages, Defendant failed to demonstrate that the error substantially swayed the verdict.

State v. Rogers

Court: Connecticut Supreme Court

Docket: SC20469

Opinion Date: August 16, 2022

Judge: D’Auria

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction of murder, conspiracy to commit murder, and first degree assault, holding that the reversal of a codefendant's conviction does not necessitate the reversal of a defendant's conviction, despite the defendant's failure to preserve the issue at trial when the codefendant and defendant were jointly tried and the codefendant properly preserved the issue.

Defendant's codefendant was granted a new trial premised on his objection to the State's untimely disclosure of an expert witness. Even though Defendant did not join in on his codefendant's objection to the untimely disclosed expert Defendant argued in this appeal that the Supreme Court should exercise its supervisory authority to reverse his conviction in the interest of justice. The Supreme Court affirmed, holding (1) fairness and justice do not require reversal of Defendant's conviction; and (2) this Court declines to overrule its decision in State v. Turner, 224 A.3d 129 (Conn. 2020), to review the merits of Defendant's unpreserved claim under State v. Edwards, 156 A.3d 506 (Conn. 2017).

Idaho v. Hall

Court: Idaho Supreme Court - Criminal

Docket: 48860

Opinion Date: August 12, 2022

Judge: Bevan

Areas of Law: Constitutional Law, Criminal Law

Melanie Hall appealed a district court’s modification of a no contact order. In 2015, the State of Idaho charged Hall with felony stalking of her ex-husband, and aggravated assault. Based on the charges, the district court entered a no contact order and set it to expire in 2017. In January 2016, a jury found her guilty of felony stalking, but returned a verdict of not guilty on the aggravated assault count. In March 2016, the district court entered a judgment of conviction, sentencing Hall to a five year unified sentence with the first two fixed. The court also entered an amended no contact order prohibiting Hall from contacting her ex-husband and their two minor children. The new no contact order was sent to expire on March 28, 2021. Hall moved to amend the no contact order twice: once to allow written communication, and another to allow Hall to send Christmas presents to the children. Two days before the order was set to expire, the State moved to extend the order, explaining that Hall’s victims were concerned with the order’s expiration, and that a new charge of violating the no contact order was pending before the district court. An extension was ultimately granted, and Hall appealed, arguing the district court lacked subject matter jurisdiction to modify the order because it had expired by the time the district court entered its order. The Idaho Supreme Court determined the district court had the authority to amend the no contact order because the State’s motion to extend the expiration date was timely filed. Accordingly, the extension was affirmed.

Jerome v. Commonwealth

Court: Kentucky Supreme Court

Docket: 2021-SC-0306-MR

Opinion Date: August 18, 2022

Judge: Michelle M. Keller

Areas of Law: Criminal Law

The Supreme Court affirmed in part and vacated in part the judgment of the trial court convicting Defendant of burglary in the first degree, rape in the first degree, kidnapping, violation of an EPO/DVO, and terroristic threatening, holding that the trial court erred in imposing Defendant's sentence.

During penalty phase deliberations, Juror 8 informed the bailiff that she no longer wanted to deliberate. The judge excused the juror and told Defendant he could either waive his right to a twelve-person jury and allow an eleven-person jury to decide his sentence or allow the judge to make the sentencing decision. Defendant objected to eleven jurors, and so the judge decided the sentence. The Supreme Court affirmed Defendant's convictions but vacated his sentence, holding the trial court erred by failing to conduct a sufficiently searching inquiry to determine Juror 8's potential inability to be fair or impartial and then by excusing the juror. The Court remanded the case for a new penalty phase.

Primal Vantage Co. v. O'Bryan

Court: Kentucky Supreme Court

Dockets: 2020-SC-0247-DG, 2021-SC-0064-DG, 2021-SC-0065-DG

Opinion Date: August 18, 2022

Judge: John D. Minton, Jr.

Areas of Law: Criminal Law

The Supreme Court affirmed in part and reversed in part the opinion of the court of appeals affirming the judgment of the trial court finding Primal Vantage Company, Inc. liable for failure to warn and to instruct of the dangers associated with certain polypropylene straps and awarding substantial damages to Kevin and Sante O'Bryan, holding that the trial court abused its discretion.

While Kevin was using a ladder stand manufactured by Primal Vantage that must be affixed to a tree to be used for hunting, the polypropylene straps securing the stand to the tree broke. The stand fell, resulting in Kevin sustaining serious injuries. A jury found Primal Vantage liable and awarded both Kevin and his wife damages. The Supreme Court reversed in part, holding that the trial court erred by abandoning its role as evidentiary gatekeeper and allowing the jury to hear substantial evidence regarding other injuries and accidents involving ladderstands, then declaring the evidence inadmissible, and failing to admonish the jury not to consider the inadmissible other-incidents evidence.

Violett v. Honorable Grise

Court: Kentucky Supreme Court

Docket: 2021-SC-0425-MR

Opinion Date: August 18, 2022

Judge: Vanmeter

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeals denying Appellant's motion for a writ of mandamus against the circuit court, holding that the court of appeals properly dismissed the appeal.

In 1993, Defendant was convicted of 141 counts of first-degree sexual abuse and five counts of first-degree rape and sentenced to 754 years' imprisonment. The current matter arose from the trial court's denial of Defendant's pro se "Notice to Submit Documents to Support Motion for New Trial." Defendant requested a writ of mandamus challenging the denial. The court of appeals dismissed the petition as frivolous. The Supreme Court affirmed, holding that because Defendant did not timely appeal the denial of his motion for a new trial dismissal was the prescribed sanction.

Smith v. State

Court: Maryland Court of Appeals

Docket: 26/21

Opinion Date: August 15, 2022

Judge: Getty

Areas of Law: Criminal Law, White Collar Crime

The Court of Appeals affirmed the judgment of the court of special appeals affirming the judgment of the circuit court denying Petitioner's petition for a writ of error coram nobis, holding that the circuit court did not abuse its discretion in denying Petitioner's coram nobis petition.

Petitioner had twenty-year old convictions for forgery and fraud/identity theft, which rendered her ineligible to receive the license required to work as a mortgage loan originator under Maryland law. After three appeals, the intermediate appellate court affirmed. The Court of Appeals affirmed, holding that, considering the legislative purpose of the Maryland mortgage loan originator license statute and the circumstances of this case, the circuit court did not abuse its discretion in denying Petitioner's petition for a writ of coram nobis.

State v. Jordan

Court: Maryland Court of Appeals

Docket: 23/21

Opinion Date: August 15, 2022

Judge: Gould

Areas of Law: Civil Rights, Criminal Law

The Court of Appeals reversed the decision of the court of special appeals reversing Defendant's conviction of one count of second-degree assault, holding that it was harmless error to fail to propound a voir dire question regarding Defendant's right to remain silent and not testify where Defendant actually testified.

During trial, Defendant requested a voir dire question on her right not to testify, but the trial court declined to ask the question. During trial, Defendant testified in her defense. In reversing, the court of special appeals determined that the trial court erred under Kazadi v. State, 467 Md. 1 (2020), and that the error was not harmless. The Court of Appeals reversed, holding (1) the Kazadi error in this case was subject to the harmless error doctrine; and (2) the Kazadi error was harmless.

Commonwealth v. Escobar

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13252

Opinion Date: August 12, 2022

Judge: Gaziano

Areas of Law: Criminal Law

The Supreme Judicial Court held that because both offenses may be committed recklessly, manslaughter and assault and battery by means of a dangerous weapon causing serious bodily injury are not predicate offenses under the force clause of Mass. Gen. Laws ch. 276, 58A(1).

While he was driving, Defendant struck several parked and moving vehicles, as well as a pedestrian who died as a result of the collision. Defendant was charged with crimes arising to that incident. The Commonwealth moved for pretrial detention pursuant to Mass. Gen. Laws ch. 276, 58A, the dangerousness statute. At issue was whether the "force clause" of the statute includes the crimes of manslaughter and assault and battery by means of a dangerous weapon causing serious bodily injury. The Supreme Judicial Court affirmed Defendant's convictions, holding that a crime that may be committed with a mens rea of recklessness does not fall within the ambit of the force clause in Mass. Gen. Laws ch. 276, 58A(1).

Michigan v. Hinton

Court: Michigan Supreme Court

Dockets: 162374, 162355, 162354

Opinion Date: August 16, 2022

Judge: Bridget Mary McCormack

Areas of Law: Constitutional Law, Criminal Law

Kino Christian, Joshun Edwards, and C’Quan Hinton were convicted by jury of murder in 2007 and sentenced to life in prison. Defendants’ direct appeals were unsuccessful. In 2014, Edwards’s family filed a request under the Michigan Freedom of Information Act for documents related to the case. Among the documents provided in response to the request was a transcript of the first interview with the prosecution’s main witness, Jarylle Murphy, which the prosecution had not provided to defendants. Defendants moved for relief from judgment under MCR 6.508, arguing in part that because there were inconsistencies in the interview transcript that could have been used to impeach Murphy’s testimony at trial, the prosecution’s suppression of the transcript violated their constitutional right to exculpatory evidence under Brady v. Maryland, 373 US 83 (1963). The court denied the motions, ruling that although the prosecution had failed to disclose favorable evidence to defendants before trial, the evidence was not material and, therefore, reversal was not required. The Court of Appeals affirmed in an unpublished per curiam opinion. The Michigan Supreme Court reversed, finding the interview transcript that the prosecution suppressed was both favorable and material to the defense. Having established both good cause for failing to raise the issue on direct appeal and actual prejudice for purposes of MCR 6.508, defendants were entitled to a new trial.

Garrett v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2021-KA-00754-SCT

Opinion Date: August 11, 2022

Judge: Beam

Areas of Law: Constitutional Law, Criminal Law

Ladarius Garrett was convicted by jury of burglary of a hotel room. He claimed his convictions as not supported by sufficient evidence, and that the jury’s verdict was contrary to the overwhelming weight of the evidence. Finding no merit to either claim, the Mississippi Supreme Court affirmed Garrett’s conviction.

Green v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2021-KA-00617-SCT

Opinion Date: August 11, 2022

Judge: Maxwell

Areas of Law: Constitutional Law, Criminal Law

A probation officer improperly induced L.J. Green III to give a statement that led to the discovery of the linchpin evidence used against Green at his robbery trial. While the trial judge suppressed Green’s statement, the judge still admitted evidence that Green possessed the victim’s car keys - evidence wholly derived from Green’s excluded statement. This evidence was admitted over Green’s objection; a jury convicted Green. On appeal, both Green and the State agreed the trial judge wrongly admitted the tainted evidence. Though the State argued the error was harmless, the Mississippi Supreme Court concluded the evidence strongly contributed to Green’s guilty verdicts. “So its admission was not harmless error.” Judgment was therefore reversed and the matter remanded for a new trial.

State v. Hansen

Court: Montana Supreme Court

Citation: 2022 MT 163

Opinion Date: August 16, 2022

Judge: Shea

Areas of Law: Criminal Law

The Supreme Court affirmed the sentencing order and judgment following Defendant's conviction of incest, holding that the district court did not err in excluding evidence of the complaining witness's prior statements regarding an alleged "false accusation" of sexual assault.

After a jury trial, Defendant was convicted of incest and sentenced to imprisonment for a 100-year sentence. On appeal, Defendant argued that the district court erred when it excluded evidence of prior statements regarding an alleged "false accusation" of sexual assault made by K.O., the complaining witness. The Supreme Court affirmed, holding that the district court did not abuse its discretion by excluding evidence of K.O.'s statements regarding the prior statements at issue.

State v. Cerros

Court: Nebraska Supreme Court

Citation: 312 Neb. 230

Opinion Date: August 12, 2022

Judge: Lindsey Miller-Lerman

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction for manslaughter, with reckless driving as the predicate unlawful act, holding that Defendant's claims on appeal were without merit.

Specifically, the Supreme Court held (1) the district court did not abuse its discretion when it allowed testimony from a sheriff's deputy who was dispatched to the scene of the accident that driving on the wrong side of the road could be a sign of reckless driving; (2) there was sufficient evidence to support Defendant's conviction for manslaughter; and (3) the district court did not err when it did not give a lesser-included offense instruction on careless driving as a lesser-included offense because that instruction was not requested.

New Hampshire v. Bell

Court: New Hampshire Supreme Court

Docket: 2019-0047

Opinion Date: August 16, 2022

Judge: Gary E. Hicks

Areas of Law: Constitutional Law, Criminal Law, White Collar Crime

Defendant Brim Bell was convicted by jury on four class A felony counts of theft by deception. Defendant ran a business at several New Hampshire locations restoring primarily Volkswagen vehicles. Between January 1, 2011 and November 17, 2015, each of the victims, A.M., J.M., J.K., and J.T., hired defendant to restore a vehicle. During the time defendant had their vehicles, he repeatedly asked each of the victims to send him more money, ostensibly for parts or other expenses related to the restoration of their vehicles. Each victim made a series of payments to defendant, but none of the victims received a restored car back from defendant. Defendant testified to a series of events that negatively affected his business during 2010 and 2011 and increased his debt. As a result, at the end of 2011, defendant started gambling at casinos. He testified that his “plan was to save the business.” Defendant admitted that he gambled with some of his customers’ money and that none of them gave him permission to do so. Following a jury trial, defendant was convicted on four counts and acquitted on two. He argued on appeal that the evidence was insufficient to convict him and that the trial court erred in granting the State’s motion for joinder. Finding no reversible error, the New Hampshire Supreme Court affirmed defendant's convictions.

New Hampshire v. Donovan

Court: New Hampshire Supreme Court

Docket: 2020-0404

Opinion Date: August 12, 2022

Judge: Gary E. Hicks

Areas of Law: Constitutional Law, Criminal Law

Defendant Corey Donovan appealed his conviction on a single felony count of possession of a controlled substance. He argued on appeal the trial court erred in denying his motion to suppress evidence. “All of these circumstances objectively communicated to the defendant that his compliance with the officers’ requests was compelled.” The New Hampshire Supreme Court concluded defendant was seized, and that his seizure was unconstitutional, therefore the trial court erred in denying his motion to suppress. Judgment was reversed and the matter remanded for further proceedings.

Petition of State of New Hampshire

Court: New Hampshire Supreme Court

Docket: 2021-0609

Opinion Date: August 12, 2022

Judge: Donovan

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

In August 2019, the State of New Hampshire filed three juvenile delinquency petitions against Respondent in the family division, charging him with one count of pattern aggravated felonious sexual assault (AFSA), one count of felonious sexual assault, and one count of indecent exposure. The AFSA petition alleged that the acts comprising the pattern offense occurred on four specific dates: June 22, 2018; August 24, 2018; September 15, 2018; and May 27, 2019. When the petitions were filed, the alleged victim was six years old and Respondent was seventeen years old. Respondent turned eighteen in November 2019 and at the time of this appeal was twenty years old. After filing the petitions, the State, pursuant to RSA 169-B:24, petitioned to certify Respondent as an adult and transfer the case to superior court. This petition was denied and the New Hampshire Supreme Court accepted the State’s Rule 11 petition to determine whether the superior court erred in denying the State’s petition to certify Respondent as an adult. Finding the superior court so erred, the Supreme Court reversed and remanded.

New Jersey v. A.L.A.

Court: Supreme Court of New Jersey

Docket: A-3-21

Opinion Date: August 18, 2022

Judge: Pierre-Louis

Areas of Law: Constitutional Law, Criminal Law, Family Law

Defendant A.L.A. was the legal guardian of her four grandchildren, who ranged in age from three to seventeen years old. In August 2016, the oldest grandchild reported that defendant physically abused them. After an investigation, the New Jersey Division of Child Protection & Permanency initiated an emergency removal of all four grandchildren. Defendant was tried for multiple counts of endangering the welfare of a child. The parties agreed that the court would instruct the jury on second-degree endangering, and what the parties termed a lesser included disorderly persons offense of simple assault. The issue this case presented for the New Jersey Supreme Court’s review centered on whether the jury could have understood the affirmative defense of reasonable corporal punishment applied to both the child endangerment charge and the simple assault chard, where the reasonable corporal punishment instruction was provided only in the instructions for the child endangerment charge. The Supreme Court determined after review that the jury could not have understood the language in the instruction applied to both charges. Therefore, the Supreme Court held the trial court erred in failing to instruct the jury, in the context of the simple assault charge, that reasonable corporal punishment was not prohibited. Because that error in instructions could have led the jury to an unjust result, the conviction was vacated and the matter remanded for further proceedings.

North Dakota v. Lyman

Court: North Dakota Supreme Court

Citation: 2022 ND 160

Opinion Date: August 18, 2022

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

Dustin Lyman was convicted by jury of driving while under the influence of an intoxicating liquor. On appeal, Lyman argued the district court erred in denying his motion for a mistrial, claiming the State’s opening statement constituted prosecutorial misconduct and violated his rights to a fair trial. Finding no such misconduct, the North Dakota Supreme Court affirmed the district court judgment.

Vogt v. North Dakota

Court: North Dakota Supreme Court

Citation: 2022 ND 163

Opinion Date: August 18, 2022

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

Jason Vogt appealed the dismissal of his application for post-conviction relief. He pled guilty to gross sexual imposition. Here, Vogt claimed he was innocent and his counsel rendered ineffective assistance. Further, he contended his guilty plea was made involuntarily, and his confession was coerced. Vogt presented a psychological assessment that he claimed was newly discovered evidence. The assessment was prepared after his application for relief was filed, and opined Vogt may have involuntarily waived his rights and falsely confessed. Appealing the dismissal to the North Dakota Supreme Court, Vogt argued the State waived its affirmative defenses and its motion for dismissal was untimely. Finding no reversible error, however, the Supreme Court affirmed dismissal of Vogt’s application for relief.

State ex rel. Anderson v. Chambers-Smith

Court: Supreme Court of Ohio

Citation: 2022-Ohio-2844

Opinion Date: August 18, 2022

Judge: Per Curiam

Areas of Law: Criminal Law, Government & Administrative Law

The Supreme Court affirmed the judgment of the court of appeals denying a writ of mandamus against the Ohio Department of Rehabilitation and Correction, Annette Chambers-Smith, the Ohio Adult Parole Authority, and the Ohio Bureau of Sentencing Computation (collectively, DRC), holding that there was no error.

Appellant, an inmate, filed an original action in the court of appeal seeking a writ of mandamus to compel DRC to correct what he alleged were inaccurate records pertaining to him and alleging that he had a right to be released from custody under Ohio Rev. Code 2967.15(B). The court of appeals denied the writ. The Supreme Court affirmed, holding that Appellant failed to show error, let alone plain error, in the judgment of the court of appeals.

State ex rel. Davis v. Sheldon

Court: Supreme Court of Ohio

Citation: 2022-Ohio-2789

Opinion Date: August 16, 2022

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeals dismissing Appellant's petition for a writ of habeas corpus against Warden Ed Sheldon of the Allen-Oakwood Correctional Institution, holding that the court of appeals properly dismissed the petition.

Appellant, an inmate, filed a petition for a writ of habeas corpus alleging that he had served his entire prison sentence. The court of appeals dismissed the habeas corpus petition for failure to comply with Ohio Rev. Code 2725.04(D), which requires a habeas petition to contain a copy of the commitment or cause of detention. The Supreme Court affirmed, holding that where Appellant failed to attach all sentencing records to his habeas corpus petition, the court of appeals properly dismissed the petition.

State v. Stutler

Court: Supreme Court of Ohio

Citation: 2022-Ohio-2792

Opinion Date: August 16, 2022

Judge: Stewart

Areas of Law: Criminal Law, Health Law

The Supreme Court held that a trial court lacks discretion to deny a request for a recommended change in the commitment conditions of a mentally ill person subject to court-ordered commitment to a mental health facility when the state has failed to present clear and convincing evidence that the change represents a threat to public safety or any person.

Appellant was found not guilty by reason of insanity of murder, tampering with evidence, and abuse of a corpse. The trial court ordered Appellant committed to a mental health facility. The chief clinical officer at the facility later filed a request with the trial court asking that Appellant be allowed to leave the facility to go on trips (Level IV community movement). The trial court denied the request, and the appellate court affirmed. The Supreme Court reversed, holding that the appellate court erred in concluding that the trial court had discretion to deny the requested change in Appellant's commitment level even if the state failed to meet its burden of proof.

State v. Whitaker

Court: Supreme Court of Ohio

Citation: 2022-Ohio-2840

Opinion Date: August 18, 2022

Judge: Fischer

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

The Supreme Court vacated Defendant's conviction for aggravated burglary, vacated the finding of guilt on count three charging Defendant with felony murder during an aggravated battery, and dismissed the death penalty specifications predicated on aggravated burglary but affirmed Defendant's remaining convictions and his death sentence, holding that there was insufficient evidence to convict Defendant of burglary.

After a trial, a jury found Defendant guilty of aggravated murder and three accompanying death-penalty specifications. The trial court sentenced Defendant to death. The Supreme Court largely affirmed, holding (1) contrary to Defendant's argument on appeal, the indictment in this case was not defective; (2) there was insufficient evidence to convict Defendant of aggravated burglary; (3) no plain error occurred during the prosecutor's trial-phase closing argument; and (4) there were constitutional violations in this case.

Pennsylvania v. Lopez

Court: Supreme Court of Pennsylvania

Docket: 27 EAP 2021

Opinion Date: August 16, 2022

Judge: Dougherty

Areas of Law: Constitutional Law, Criminal Law

The Pennsylvania Supreme Court granted discretionary review to consider whether Pennsylvania Rule of Criminal Procedure 706(C) required a trial court to consider a defendant’s ability to pay prior to imposing mandatory court costs at sentencing. In 2015, appellant Alexis Lopez entered a negotiated guilty plea to possession with intent to deliver a controlled substance. The trial court sentenced him to eleven and one-half to twenty-three months’ imprisonment, followed by three years’ probation. Six months later, the trial court granted Lopez’s motion for early release on parole. Thereafter, Lopez violated the terms of his supervision three times. Prior to resentencing for his third violation, Lopez filed a “Motion for Ability-to-Pay Hearing at Sentencing to Waive Costs.” His motion contended “Pennsylvania statutes and the Rules of Criminal Procedure require that this [c]ourt consider [his] ability to pay and waive court costs due to his indigence and the burden the costs would impose on him.” The Supreme Court found that Rule 706(C) did not have a requirement as Lopez suggested, and affirmed the Superior Court.

Pennsylvania v. Reid

Court: Supreme Court of Pennsylvania

Docket: 784 CAP

Opinion Date: August 16, 2022

Judge: Max Baer

Areas of Law: Constitutional Law, Criminal Law

Appellant Albert Reid was convicted by jury on two counts of first-degree murder for the killings of his estranged wife, Carla Reid, and her fourteen-year-old daughter, D.M. He received two death sentences, and the Pennsylvania Supreme Court affirmed the judgment of sentence. Appellant subsequently filed a petition pursuant to the Post Conviction Relief Act (“PCRA”). The PCRA court denied the petition, and Appellant appealed to the Supreme Court, which affirmed in part the PCRA court’s order but remanded, while retaining jurisdiction, directing the PCRA court to provide a supplemental opinion addressing: why it denied relief on the whether appellant was incompetent to proceed to trial and represent himself; and whether prior counsel was ineffective for failing to investigate and effectively this issue before trial and for failing to raise it on appeal. Upon return from the PCRA court to the Supreme Court, the Supreme Court found the PCRA court erred in the manner in which it assessed Appellant’s claim that he was incompetent to stand trial, as the court’s reasoning, inter alia, failed to account for new, post-conviction evidence that potentially demonstrated that Appellant was incompetent to stand trial. Accordingly, the Court vacated in part the PCRA court’s order and remanded for further proceedings.

Sena v. State

Court: Wyoming Supreme Court

Citation: 2022 WY 98

Opinion Date: August 17, 2022

Judge: Fenn

Areas of Law: Criminal Law

The Supreme Court affirmed the decision of the district court denying Appellant's post-sentence motions to withdraw his no contest pleas in two separate dockets, holding that the district court did not abuse its discretion in denying Appellant's motions to withdraw his no contest pleas.

In one docket, Appellant was charged with one count of burglary. In the other docket, Appellant was charged with one count each of attempted murder and aggravated assault. Pursuant to a plea agreement, Appellant entered a plea of no contest to attempted voluntary manslaughter and burglary. After the sentence was imposed, Appellant unsuccessfully filed motions to withdraw substitution of counsel in both dockets, motions requesting to withdraw his pleas of no contest, and motions in arguing ineffective assistance of counsel. The Supreme Court affirmed the denial of Appellant's motions to withdraw his no contest pleas, holding that there was no abuse of discretion.

Trump’s Recent Calls to Execute Drug Traffickers Should Be a Wake-Up Call to the Biden Administration

AUSTIN SARAT

Amherst professor Austin Sarat comments on Donald Trump’s recently repeated calls to apply the death penalty to drug dealers. Professor Sarat points out that in 2020, only 30 people were executed worldwide for drug offenses (down from 116 in 2019), and they all occurred in China, Iran, and Saudi Arabia—hardly the kind of examples that any nation committed to respecting human rights should want to emulate.

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