United States v. Andino-Morales

Court: US Court of Appeals for the First Circuit

Dockets: 19-2253, 20-1274, 19-2262

Opinion Date: July 11, 2023

Judge: David J. Barron

Areas of Law: Criminal Law

The First Circuit affirmed the convictions of the three appellants in this case - Jose R. Andino-Morales (Andino), Jose J. Folch-Colon (Folch), and Anibal Miranda-Montanez (Miranda), holding that the evidence was sufficient to support Appellants'' convictions and that the challenges brought by individual appellants were unavailing.

Appellants were convicted were convicted of conspiring to participate in La Asociacion NETA, an organization whose members allegedly trafficked contraband and carried out murders-for-hire throughout Puerto Rican prisons, through a pattern of racketeering activity (RICO), in violation of 18 U.S.C. 1962(d). In addition, Folch and Miranda were convicted of conspiracy to possess with intent to distribute controlled substances and of committing a violent crime in aid of racketeering. The First Circuit affirmed across the board, holding (1) there was sufficient evidence to support the convictions; (2) there was no error in the district court's jury instructions; (3) Folch was not entitled to relief on his argument that his RICO conspiracy conviction must be vacated due to an allegedly improper statement by the prosecutor during closing argument; (4) Andino's sentence was not procedurally unreasonable.

United States v. Ford

Court: US Court of Appeals for the First Circuit

Docket: 22-1276

Opinion Date: July 12, 2023

Judge: Carreno-Coll

Areas of Law: Criminal Law

The First Circuit affirmed the judgment of the district court sentencing Defendant to a downwardly variant sentence of twenty-four months' imprisonment in connection with her plea of guilty to conspiring to distribute and possess with intent to distribute illegal drugs, holding that there was no error.

On appeal, Defendant argued that the district court erroneously ruled against her on her factual disputes and erred in attributing to her a cache of fentanyl found in the home of her boyfriend. The First Circuit affirmed, holding (1) the judge necessarily resolved the factual disputes at issue against Defendant; and (2) any error as to the attribution of the drugs found in Defendant's boyfriend's home was harmless.

United States v. Antonius

Court: US Court of Appeals for the Second Circuit

Docket: 21-1083

Opinion Date: July 10, 2023

Judge: Guido Calabresi

Areas of Law: Constitutional Law, Criminal Law

Defendants were prosecuted under the Maritime Drug Law Enforcement Act (“MDLEA”) for conspiring to traffic drugs on the high seas using a stateless vessel. Before ultimately pleading guilty to the offense, Defendants filed a joint motion to dismiss their indictments on the ground that conspirators operating from a foreign country who were never physically on the high seas and who had no ties to the United States could not constitutionally be subject to prosecution under the MDLEA.

The district court denied Appellants’ motion to dismiss. On appeal, Defendants argued that their prosecution under the MDLEA violated due process because their conduct lacked a nexus with the United States and that, by applying the MDLEA to their conduct, Congress exceeded its Article I powers.

The Second Circuit affirmed the district court’s denial of Defendants’ motion to dismiss.

Mervilus v. Union County

Court: US Court of Appeals for the Third Circuit

Docket: 21-3185

Opinion Date: July 13, 2023

Judge: Thomas L. Ambro

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

In 2006, Mervilus, age 22, supported his mother, a cancer patient, and two younger siblings. Abreu accused Mervilus of robbing and stabbing him. Mervilus agreed to take a polygraph examination. Earlier that year, officers dismissed drug charges after a polygraph exam indicated he truthfully denied responsibility. New Jersey permitted polygraph results to be admitted at trial. The Union County Police Department’s only certified polygraph examiner, Kaminskas, conducted the exam. Kaminskas used the “Arther Method,” an “outlier in the polygraph world,” not accredited by the American Polygraph Association. The Method relies on subjective observations and assumptions, such as that certain ethnic groups do not experience any guilt when they lie. Kaminskas concluded Mervilus was deceptive. The only relevant question where Mervilus’s physiological responses signaled deception was a question for which Kaminskas insisted Mervilus change his answer. At trial Abreu failed to identify Mervilus, pointing to a different Black man. The court admitted the polygraph exam. Mervilus was convicted. In 2011, the conviction was overturned on the ground that Kaminskas’s testimony was improper and prejudicial.

Mervilus sued Kaminskas, Chief Vaniska, and Union County, 42 U.S.C. 1983. The Third Circuit reversed the summary judgment rejection of those claims. Mervilus introduced sufficient evidence to try his fabrication-of-evidence claim against Kaminskas. His Monell claim against Union County is viable even if Kaminskas did not fabricate evidence; a jury might not render an inconsistent verdict if it found the County liable but Kaminskas not culpable.

United States v. Carey

Court: US Court of Appeals for the Third Circuit

Docket: 21-1837

Opinion Date: July 7, 2023

Judge: Thomas L. Ambro

Areas of Law: Criminal Law

U.S. Marshals in Harrisburg, Pennsylvania staked out Carey’s residence to arrest him for violating his conditions of supervised release. Carey placed a bag in the trunk of his car and began to pull away, hitting a parked car. Officers searched his car and found Carey’s open bag, containing a shoe box with a large opening. It contained $79,320. From Carey’s residence, his girlfriend, Slone, heard the commotion and flushed cocaine and PCP down the toilet. The government’s expert estimated that the bags together contained around 112 grams of cocaine. Slone indicated there was marijuana and a loaded firearm in the house. Police obtained a search warrant and recovered approximately five pounds of marijuana and 310 grams of cocaine, five cellular phones, a money counter, a loaded handgun [registered to Slone], ammunition, a holster, digital scales, and other drug-related items.

After unsuccessful motions to suppress, Carey was charged with possessing with intent to distribute marijuana and 500 grams or more of cocaine, 21 U.S.C. 841(a); possessing a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. 924(c); and conspiring to possess with intent to distribute marijuana and 500 grams or more of cocaine hydrochloride, 21 U.S.C. 846. Slone testified against Carey. After rejecting challenges to evidentiary rulings and the calculation of Carey’s Guidelines range, the Third Circuit held that insufficient evidence supports Carey’s conviction for possession with intent to distribute 500 grams or more of cocaine and remanded for resentencing.

US v. Quintin Davis

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-4433

Opinion Date: July 7, 2023

Judge: KING

Areas of Law: Constitutional Law, Criminal Law

Defendant appealed from the judgment of conviction and sentence entered against him in August 2020. Two years earlier, in August 2018, Defendant was indicted in that court for possession with intent to distribute fentanyl and oxycodone, (the “distribution offense”), plus possession of a firearm in furtherance of a drug trafficking crime, (the “firearm offense”). In December 2018, a jury convicted Defendant on both those offenses. During the sentencing proceedings, the court found Defendant to be a “career offender” under Sentencing Guidelines section 4B1.1(a), in that Defendant had seven prior South Carolina felony convictions supportive of such an enhancement (including, four South Carolina felony convictions for distribution of cocaine base). The court then sentenced Defendant to 120 months in prison for the distribution offense — plus 60 consecutive months for the firearm offense — for an aggregate prison term totaling 180 months. On appeal, Defendant pursued four challenges to his convictions and sentence.
 
The Fourth Circuit affirmed. The court explained that he “distribution” offense of South Carolina Code section 44- 53-375(B) does not criminalize the attempt offense of “attempted distribution,” but rather the completed offense of “attempted transfer.” Accordingly, the court ruled today that a section 44-53-375(B) distribution offense is not categorically disqualified from being treated as a Guidelines “controlled substance offense.” As a result of that ruling, Defendant’s contention that four of his prior drug distribution convictions — as punished by section 44-53-375(B) of the South Carolina Code — is without merit. The district court thus did not err by deeming Defendant to be a Guidelines career offender.

Flores v. Lumpkin

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-20579

Opinion Date: July 7, 2023

Judge: King

Areas of Law: Constitutional Law, Criminal Law

A Texas jury found Petitioner guilty of aggravated sexual assault of a child under the age of six, and he was sentenced to forty-five years’ imprisonment. Petitioner challenged his conviction both on direct appeal and through state habeas proceedings, but the Texas courts denied his requests for relief. The district court denied his subsequent federal habeas petition and his request for a certificate of appealability. The Fifth Circuit granted Defendants’ application for a certificate of appealability on one issue: whether trial counsel rendered unconstitutionally ineffective assistance by failing to object to expert and lay opinion testimony regarding the truthfulness of G.P., the complainant.
 
The Fifth Circuit affirmed. The court explained that G.P. testified at trial and told multiple people—including his mother and his pediatrician—about the assaults well within one year of their taking place. The jury could have convicted Petitioner on this testimony alone, which is detrimental to Petitioner’s prejudice argument. The jury was presented with other evidence supporting Petitioner’s conviction as well. Ultimately, the court found that it was unconvinced that every reasonable jurist would believe it reasonably likely that Petitioner would have been acquitted absent the challenged testimony. AEDPA’s demanding standard of review thus requires us to defer to the TCCA’s decision.

USA v. Buendia

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-50285

Opinion Date: July 11, 2023

Judge: James E. Graves, Jr.

Areas of Law: Constitutional Law, Criminal Law

Defendant pled guilty to conspiring to transport and transporting undocumented immigrants resulting in serious bodily injury and death. He appealed a two-level sentencing enhancement under U.S.S.G. Section 2L1.1(b)(8)(A) for involuntarily detaining a migrant through threat or coercion.
 
The Fifth Circuit affirmed. The court explained that here Defendant did not continue to drive in order to prevent L.G.G.G. from escaping—he continued to drive in order to avoid apprehension. That Defendant’s continued driving was not for the purpose of detaining L.G.G.G. is buttressed by his prior instruction to L.G.G.G. and A.M.A. to exit the vehicle and run should they be pulled over by law enforcement. L.G.G.G. was involuntarily detained, but he was not involuntarily detained through threat or coercion. The district court erred by applying this enhancement to Defendant’s conduct. However, the court wrote that Defendant failed to show that the error was plain. Because Defendant’s claim of plain error failed the second prong of the relevant text, the court declined to examine the remaining prongs.

USA v. Nazerzadeh

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-20238

Opinion Date: July 11, 2023

Judge: Jennifer Walker Elrod

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to two counts of distribution of child pornography and one count of possession of child pornography involving the sexual exploitation of minors. He was sentenced to 60 months in prison on each count, to run concurrently. The district court also imposed a life term of supervised release. Defendant was released from prison in August 2010. And he successfully completed his sex offender treatment. Since his release, he has maintained a clean record and complied with his registration requirement. The government appeals the district court’s order granting Defendant’s request to terminate his obligation to register as a sex offender.
 
The Fifth Circuit reversed the district court’s order granting Defendant’s request. The court held that the unambiguous language of the Sex Offender Registration and Notification Act deems Defendant a tier II sex offender and that status demands that his registration continues. The court explained that because he was convicted of distribution of child pornography, Defendant’s crime falls under Section 20911(3)(B)(iii), and so he is a tier II sex offender. Consequently, he “shall” register for 25 years from the date of his release from prison. Furthermore, he is not entitled to any reduction of the required registration period under SORNA. 34 U.S.C. Section2 0915(b) (providing reduction for tier I and tier III sex offenders, but not tier II).

United States v. Miller

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-5624

Opinion Date: July 12, 2023

Judge: Ronald Lee Gilman

Areas of Law: Criminal Law

Kentucky State Police learned that a woman (Miller) had stolen a truck. State Trooper Couch located and stopped the truck, approached, and told Miller to exit the vehicle. According to Couch, Miller responded, “I’m not going back to fucking jail,” and refused to open the locked door. When Couch opened the door with a key code provided by the truck’s owner, Miller fired a single shot, hitting Couch in the shoulder at “point-blank” range. Couch and another trooper fired nearly 50 rounds at Miller, who was struck multiple times. Miller might have fired again during the exchange. More troopers arrived and forcibly removed Miller from the truck. In the truck, officers found a stolen revolver with three live rounds and two spent cartridges in the cylinder. Miller later claimed that she intended to scare Couch but hit him by mistake and that she had smoked methamphetamine that day. Couch and Miller survived.

Miller pleaded guilty to possession of a firearm by a convicted felon, 18 U.S.C. 922(g)(1), and possession of a stolen firearm, section 922(j). The PSR calculated Miller’s Guidelines range as 324-405 months. Under U.S.S.G. 5G1.1(a), 5G1.2(d), however, her recommended sentence was reduced to 240 months to match the maximum sentence that she could receive for the firearms offenses. The district court applied the cross-reference to attempted murder and sentenced her to the statutory maximum sentence. The Sixth Circuit affirmed the 240-month sentence as procedurally and substantively reasonable.

United States v. Stewart

Court: US Court of Appeals for the Sixth Circuit

Dockets: 22-3682, 22-3881

Opinion Date: July 10, 2023

Judge: Larsen

Areas of Law: Aerospace/Defense, Criminal Law, Government & Administrative Law

Stewart obtained his private pilot airman’s certificate in 1978. In 2013, he flew at altitudes and in weather conditions for which he was not authorized. The FAA notified Stewart that it planned to suspend his airman’s certificate. He could: surrender his certificate and begin the 180-day suspension; submit evidence that he had not violated the regulations; discuss the matter informally with an FAA attorney; or request an appeal to the NTSB. Stewart instead sent a letter stating that the agency lacked jurisdiction over private pilots. The FAA suspended Stewart’s certificate and assessed a $5,000 civil penalty for failure to turn in his certificate. Stewart kept flying. When he failed to properly deploy his plane’s landing gear, the FAA flagged his plane for inspection. Stewart did not comply. The FAA suspended the airworthiness certificate for his plane. Stewart kept flying and again landed his plane with the landing gear up. The FAA revoked Stewart’s airman’s certificate and again assessed a civil penalty. Stewart continued flying.

The Sixth Circuit affirmed Stewart's convictions for knowingly and willfully serving as an airman without an airman’s certificate authorizing the individual to serve in that capacity, 49 U.S.C. 46306(b)(7), rejecting Stewart’s argument that he was not “without” a certificate because he still had physical possession of his. The statute required Stewart to have FAA permission to fly at the time of the flights in question.

United States v. You

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-5442

Opinion Date: July 11, 2023

Judge: Danny Julian Boggs

Areas of Law: Business Law, Commercial Law, Criminal Law, International Law, White Collar Crime

You, a U.S. citizen of Chinese origin, worked as a chemist, testing the chemical coatings used in Coca-Cola’s beverage cans. You was one of only a few Coca-Cola employees with access to secret BPA-free formulas. You secretly planned to start a company in China to manufacture the BPA-free chemical and received business grants from the Chinese government, claiming that she had developed the world’s “most advanced” BPA-free coating technology. On her last night as a Coca-Cola employee, You transferred the formula files to her Google Drive account and then to a USB drive. You certified that she had not kept any confidential information. You then joined Eastman, where she copied company files to the same account and USB drive. Eastman fired You and became aware of her actions. Eastman retrieved the USB drive and reported You to the FBI.

You was convicted of conspiracy to commit theft of trade secrets, 18 U.S.C. 1832(a)(5), possessing stolen trade secrets, wire fraud, conspiracy to commit economic espionage, and economic espionage. The Sixth Circuit remanded for resentencing after rejecting You’s claims that the district court admitted racist testimony and gave jury instructions that mischaracterized the government’s burden of proof as to You’s knowledge of the trade secrets and their value to China. In calculating the intended loss, the court clearly erred by relying on market estimates that it deemed speculative and by confusing anticipated sales of You’s planned business with its anticipated profits.

Hogsett v. Lillard

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2182

Opinion Date: July 7, 2023

Judge: St. Eve

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

In 2007, Hogsett was convicted of crimes, including being a felon in possession of a firearm, 18 U.S.C. 922(g)(1). The court found that Hogsett was an armed career criminal, with three prior convictions for violent felonies, and sentenced him to 295 months. In 2021, the Supreme Court (Borden) interpreted “violent felony” in 924(e) to exclude crimes that can be committed with a mens rea of recklessness. Hogsett sought to challenge his sentence under Borden. To collaterally attack a conviction or sentence, a federal prisoner files a 28 U.S.C. 2255 motion, not a habeas petition, 28 U.S.C. 2241. Hogsett had filed a 2255 motion in 2010. A prisoner can only file another 2255 motion in two circumstances: newly discovered evidence sufficient to establish innocence or a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. Hogsett argued that he was eligible to file under 2255(e), the “saving clause,” which applies when “the remedy by motion is inadequate or ineffective to test the legality of his detention.”

The Seventh Circuit ordered the dismissal of Hogsett’s petition for lack of jurisdiction. The court cited the Supreme Court’s intervening Jones holding: “The inability of a prisoner with a statutory claim to satisfy” 2255(h)’s requirements “does not mean that he can bring his claim in a habeas petition under the saving clause … he cannot bring it at all.” Borden is a statutory interpretation decision.

Horton v. Lovett

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-1004

Opinion Date: July 7, 2023

Judge: Diane S. Sykes

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

In 2012, Horton was convicted of multiple drug trafficking and firearm crimes. Horton had been convicted of four prior state drug felonies. The court imposed three concurrent life sentences. Horton’s direct appeal and collateral relief motion under 28 U.S.C. 2255, failed. Under 2255(h) a successive motion is permitted only if it contains “newly discovered evidence” of innocence or is based on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” Horton filed a habeas petition under 28 U.S.C. 2241, citing the “saving clause,” 28 U.S.C. 2255(e); a 2241 motion “shall not be entertained” unless the remedy by motion under 2255 “is inadequate or ineffective to test the legality of his detention.”

The Seventh Circuit previously held (Davenport) that 2255 is “inadequate or ineffective”— and 2241 is available—when the limits on successive 2255 motions bar relief and the prisoner’s claim is based on a new interpretation of a criminal statute that was previously foreclosed by circuit precedent. Horton's Davenport claim challenged his sentences based on the Supreme Court’s 2016 Mathis decision.

In the interim, the Supreme Court decided Jones v. Hendrix, (2022): The inability of a prisoner with a statutory claim to satisfy 2255’s conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all." The Seventh Circuit affirmed the denial of relief, abrogating Davenport.

Love v. Vanihel

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-2406

Opinion Date: July 7, 2023

Judge: Brennan

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

While serving a 55-year sentence for murder, Love assaulted a correctional officer, resulting in state convictions for felony battery. The Indiana Department of Correction also found Love guilty of violating prison rules and imposed sanctions including revocation of 5,700 days of his accrued good time credit, which extended Love’s release date by more than 15 years. Love unsuccessfully pursued prison appeals. The district court denied his 28 U.S.C. 2254 petition. The Seventh Circuit affirmed. Love procedurally defaulted his constitutional claims and forfeited them by failing to present them in administrative proceedings or the district court.

One argument concerned Executive Directive 17-09, under which the Department must revoke all accrued good time credit from inmates found guilty of qualifying offenses. There is no additional hearing; the inmate is not provided an opportunity to argue why revocation of less time is appropriate. Love argued that the Department cannot, consistent with due process, predetermine how it will use its discretionary power over sanctions without first considering arguments in mitigation. Love also argued that Directive 17-09 is facially arbitrary in tying punishment to the amount of good time credit an inmate has rather than the severity of his misconduct. Love offered two examples where other inmates presumably should have been punished in accordance with the Directive but were allegedly shown leniency instead.

Marvin v. Holcomb

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2757

Opinion Date: July 11, 2023

Judge: St. Eve

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

Marvin’s mother called the police to perform a wellness check; she thought Marvin, age 21, was suicidal. St. Joseph County Sheriff’s Deputies arrived at Marvin’s home and found his mother in the driveway with a bleeding lip. She stated that Marvin had hit her with a chair. The officers approached the house to speak with Marvin, who declined to exit the house. During the confrontation, the deputies saw Marvin’s father remove a box cutter from Marvin’s pocket. They pulled him from the doorway and wrestled him to the ground. While he resisted, they tased him twice and struck him several times. Marvin sued the deputies for unlawful entry and excessive force. Marvin admitted that he was uncooperative but claimed he was not threatening or violent and that he suffered a concussion and a broken toe.

Marvin brought claims under 42 U.S.C. 1983 against the deputies for unlawful entry and excessive force, in violation of his Fourth Amendment rights. The Seventh Circuit affirmed the dismissal of the unlawful entry claims against Officer Corban, who had not helped pull Marvin from his house, and the excessive force claims against Officer Lawson-Rulli, who was not involved in tasing or hitting Marvin. Corban and Holcomb’s use of force was reasonable as a matter of law. The court also affirmed a defense verdict on Marvin’s unlawful entry claims against Holcomb and Lawson-Rulli.

Sanders v. Joseph

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2504

Opinion Date: July 7, 2023

Judge: Diane S. Sykes

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

Sanders was convicted in 2006 of firearms offenses. The court imposed an enhanced sentence under the Armed Career Criminal Act, based on three prior convictions, including one for Illinois residential burglary. His direct appeal and 28 U.S.C. 2255 motion for collateral relief failed. Sanders has three times unsuccessfully sought permission to file a successive 2255 motion. A successive motion is permitted only if it contains “newly discovered evidence” of innocence or is based on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.”

Sanders filed a 28 U.S.C. 2241 habeas petition, citing the “saving clause.” 28 U.S.C. 2255(e); A federal prisoner’s 2241 motion “shall not be entertained” unless the remedy by motion under 2255 “is inadequate or ineffective to test the legality of his detention.” Seventh Circuit precedent (Davenport) applied the saving-clause gateway to habeas claims premised on a new interpretation of a criminal statute that was previously foreclosed by circuit precedent. Sanders’s Davenport claim challenged his ACCA-enhanced sentence based on the Supreme Court’s 2016 Mathis decision.

The district judge denied relief. The Supreme Court held, in Jones v. Hendrix, (2022): The inability of a prisoner with a statutory claim to satisfy the 2255 conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all. The Seventh Circuit affirmed the denial of relief, abrogating Davenport.

United States v. Hartleroad

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1156

Opinion Date: July 11, 2023

Judge: Brennan

Areas of Law: Criminal Law

Hartleroad responded to an online post soliciting persons interested in participating in sexual conduct with minors. The author (McCarty, an FBI agent) claimed to be engaged in sexual relations with his 14-year-old stepdaughter. Hartleroad agreed to a Skype meeting, during which Hartleroad would view McCarty engaging in sexual conduct with the minor. McCarty suggested that Hartleroad direct the sexual conduct. Hartleroad sent McCarty a photograph of a child on which he had ejaculated, drafted a script of sexual conduct he expected, and sent it to McCarty. McCarty reminded Hartleroad that the fictitious minor was under age. Hartleroad responded, “It’s cool” and joined the Skype call. McCarty then claimed his wife had returned. McCarty later posted similar messages. Hartleroad reinitiated contact, admitting he knew she was a minor but “would still love to do Skype” and “direct.”

Hartleroad was charged with attempting to sexually exploit a child, 18 U.S.C. 2251, for “attempting to employ, use, persuade, induce, entice, and coerce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction, or a live visual depiction.” The jury received a similar instruction but was told Hartleroad must have acted for the purpose of transmitting a live visual depiction of such conduct. The court of appeal affirmed Hartleroad’s conviction, rejecting challenges to the sufficiency of the evidence, that the jury instructions constructively amended the indictment, and that the indictment charged conduct not prohibited under section 2251(a).

United States v. McClure

Court: US Court of Appeals for the Seventh Circuit

Dockets: 21-2689, 21-1521, 21-2618

Opinion Date: July 10, 2023

Judge: Kirsch

Areas of Law: Criminal Law

An investigation of an Indianapolis drug trafficking organization led by Trice led to the indictments of Trice and many of his associates, including McClure and Payne. Officers intercepted a call between McClure and Trice during which they spoke in coded language suggestive of a drug deal. Officers later observed the two men meeting with Trice and pursued Payne in a high-speed chase during which he threw a sock containing 214.2 grams of methamphetamine out of his car window. Payne and McClure later discussed these events in detail on a recorded jail call.

Both were convicted of purchasing 50 grams or more of methamphetamine from Trice for distribution, 21 U.S.C. 846, 841(a)(1), 841(b)(1)(A)(viii). The Seventh Circuit affirmed, rejecting "Batson" arguments that the government impermissibly struck a Black potential juror and that the government’s explanation, that the potential juror had a brother with a drug dealing conviction, was pretext because some white jurors who were not stricken also had relatives who had been involved with drugs. The court upheld the district court’s decision to permit Detective Hart to offer both expert and lay opinions at trial, rejecting an argument that the court failed to adequately instruct the jury as to his dual-role testimony. The evidence supporting their convictions was legally sufficient.

United States v. Outland

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1485

Opinion Date: July 11, 2023

Judge: Kenneth Francis Ripple

Areas of Law: Constitutional Law, Criminal Law

Springfield Officer Weiss obtained a warrant to search Outland’s person and residence for heroin and drug paraphernalia. Another officer conducted a traffic stop and search, discovered drug paraphernalia, read Outland his Miranda rights, and began transporting him to a DEA facility. Outland collapsed; his face and coat were covered in a white substance (heroin). The officer drove Outland to the emergency room. He was unresponsive when triaged at 10:46 a.m. Hospital staff began administering medications. Around 11:30 a.m., Outland passed swallowing tests. Although he continued to appear drowsy and had apneic episodes, he was generally alert and oriented; his “mentation” was “improved significantly.” He was placed on a Narcan drip, awaiting an ICU bed. At regular intervals, staff described Outland as alert, awake, and oriented. Weiss arrived around 1:00 p.m. The officer assigned to Outland stated that Outland had asked to speak with Weiss. Outland stated his name and date of birth. Weiss read him his Miranda rights and confirmed that he understood his rights. Outland made several incriminating statements about trafficking in heroin.

Outland was charged with distributing and conspiring to distribute 100 grams or more of heroin, 21 U.S.C. 841(a)(1), 841(b)(1)(B)–(C), 846. On remand, the district court rejected his arguments that he was so intoxicated as to render his statement involuntary and was unable to voluntarily and knowingly waive his Miranda rights because of the medications. The Seventh Circuit affirmed the denial of his motion to suppress.

United States v. Sorensen

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1801

Opinion Date: July 11, 2023

Judge: Kenneth Francis Ripple

Areas of Law: Constitutional Law, Criminal Law

Sorensen's friend Berg told Sorensen to drive a Suburu and follow him. Sorensen drove the Subaru but got lost and slept in the Subaru, waking up the next day. Sorensen then picked up Charles and subsequently noticed a handgun in the driver-side door. He and Charles both had felony records. He drove to a Goodwill parking lot, thinking that there was a drop box for disposing of illegal items without police involvement. He exited the car with the gun. In the meantime, police had received a report that the Subaru was stolen, containing a loaded revolver and ammunition. Officers discovered the Subaru and arrested Charles. Sorensen heard Charles talking to the officers, panicked, and hid the gun on a shelf in the Goodwill store. A Goodwill employee notified officers that a man (Sorensen) had been hiding in a maintenance closet and ran out of the store upon being discovered. Officers arrested Sorensen with the Subaru keys on his person. Sorensen showed them the location of the gun. Officers found the loaded firearm; there were many people, including children, in the store.

Charged under 18 U.S.C. 922(g)(1), Sorenson sought to present an innocent possession defense. The Seventh Circuit affirmed his conviction, noting that circuit precedent does not recognize an innocent possession defense to section 922(g)(1) and that, even under a broad interpretation of that defense, Sorenson would not qualify. He did not take reasonable steps to turn over the firearm to law enforcement directly or through a third party.

United States v. Andrew Pierson

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1918

Opinion Date: July 11, 2023

Judge: SMITH

Areas of Law: Constitutional Law, Criminal Law

The United States indicted Defendant for illegal exportation of firearm parts from the United States to Mexico. Mexican authorities apprehended Defendant while he was living in Mexico. In conjunction with his arrest, Mexican authorities searched both his vehicle and his Mexican residence. They returned Defendant to the United States border, allowing him to cross the border into the United States, where he was arrested by United States authorities. Defendant filed a motion to suppress the evidence found in the searches. He also filed a motion to dismiss the indictment based on an alleged violation of his due process rights premised on his treatment by Mexican authorities. The district court denied both motions. The district court imposed an upward variance and sentenced him to 144 months imprisonment. Defendant appealed the denial of his suppression and dismissal motions, as well as the substantive reasonableness of his sentence.
 
The Eighth Circuit affirmed. The court wrote that the record reflects Defendant made his Miranda waiver “voluntarily, knowingly, and intelligently.” Further, Defendant’s that the district court clearly erred in concluding he self-surrendered is merely an additional attempt to show a joint venture. In this case, the district court explained that it was going above the Guidelines range in order to serve as a deterrent to people going to Mexico to assist cartels. The resulting sentence, while significantly above the Guidelines range, was well below the statutory maximum of 240 months and based on applicable Section 3553(a) factors. Defendant has not shown the sentence imposed was an abuse of discretion.

United States v. Christopher Cungtion, Jr.

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1675

Opinion Date: July 10, 2023

Judge: STRAS

Areas of Law: Constitutional Law, Criminal Law

Defendant received a 63-month sentence for possessing a firearm as a felon. The question for us is whether a prior conviction for “intentionally” causing “bodily injury,” Iowa Code Section 708.4(2), qualifies as a “crime of violence” under U.S.S.G. Section 4B1.2(a).
 
The Eighth Circuit affirmed. The court held that committing willful injury in Iowa requires an unjustified “act” that is “intended to cause serious injury.” The fact that the statute requires an intent to cause harm to another person necessarily means that anyone who violates it has used “physical force against the person of another.”

United States v. Ira Alan Arias

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-1090

Opinion Date: July 13, 2023

Judge: ERICKSON

Areas of Law: Constitutional Law, Criminal Law

On April 18, 2018, a jury convicted Defendant of three counts of aggravated sexual abuse of a child in violation of 18 U.S.C. Sections 1153 and 2241(c). The court imposed concurrent terms of imprisonment of 30 years on each count. Defendant appealed, and the Eighth Circuit affirmed the district court on two issues and remanded for in-camera review on a single issue—that is, whether the refusal to allow defense counsel access to the victim’s mental health records was harmless in light of the victim’s testimony at trial that she was diagnosed with post-traumatic stress disorder (“PTSD”) after the alleged sexual assault by Defendant. The district court reviewed the records and concluded that not ordering the disclosure of the victim’s mental health records was harmless, finding she received a PTSD diagnosis for the first time after Defendant sexually assaulted her, and her trial testimony was truthful.
 
The Eighth Circuit, upon de novo review of the claimed constitutional violation, reversed, vacated the convictions, and remanded for a new trial. The court concluded that the district court’s refusal to require the production of K.P.’s mental health records and its limitations on cross-examination after the government opened the door about K.P.’s mental health diagnoses was not harmless beyond a reasonable doubt.

United States v. John Juneau

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2780

Opinion Date: July 13, 2023

Judge: SHEPHERD

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted by a jury on multiple counts of possessing methamphetamine and firearms. Juneau appealed his conviction, arguing that the district court erred by denying his motions to suppress evidence seized during searches of two residences in Columbia Heights and Coon Rapids, Minnesota.
 
The Eighth Circuit affirmed. The court explained that the firearms were found in the garage near Defendant’s motorcycle, and, as the warrant explained, Defendant’s truck had been observed at the Coon Rapids residence. Thus, the officers had probable cause to believe the firearms belonged to Defendant. Because the firearms fit comfortably within the plain-view exception to the warrant requirement, the district court did not err in denying Defendant’s motion to suppress.

United States v. Cates

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-8038

Opinion Date: July 10, 2023

Judge: Mary Beck Briscoe

Areas of Law: Constitutional Law, Criminal Law

Defendant Nathan Russell Cates appeals the denial of his motion to suppress evidence following his entry of a conditional guilty plea. Cates was initially indicted on one count of possession with intent to distribute methamphetamine (Count 1), and one count of possession with intent to distribute tetrahydrocannabinol (Count 2). These charges arose from a traffic stop by a Wyoming Highway Patrol (WHP) Trooper, which was followed by a drug-detection dog alerting to the presence of drugs in Cates’s rental vehicle. After the district court denied his motions, Cates pleaded guilty to Count 1 of the indictment. Under the terms of his conditional plea agreement, Cates reserved the right to appeal the district court’s denial of his motion to suppress. The Tenth Circuit rejected Cates' arguments made on appeal and affirmed the denial of Carts' motion to suppress.

United States v. Redbird

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-6055

Opinion Date: July 10, 2023

Judge: Moritz

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

Defendant-appellant Isaiah Redbird, a member of the Kiowa Nation, was convicted by jury of first-degree murder and assault resulting in serious bodily injury. On appeal. he argued the district court improperly admitted character evidence about his propensity for violence under Federal Rule of Evidence 404(a)(2)(B). The Tenth Circuit found Redbird did not raise that specific objection at trial. Because Redbird did not argue plain error on appeal, the Tenth Circuit concluded he waived his evidentiary challenge and therefore affirm his convictions.

Jean-Daniel Perkins v. USA

Court: US Court of Appeals for the Eleventh Circuit

Docket: 20-14781

Opinion Date: July 10, 2023

Judge: BRANCH

Areas of Law: Constitutional Law, Criminal Law

After perpetrating elaborate bank and credit card fraud, Petitioner “embarked upon a new scheme . . . to ensnarl the proceedings against him” through obstructionist and disruptive behaviors “so that he might avoid trial altogether.” His scheme, however, did not end at trial or even when the jury issued its guilty verdict. Rather, it continued through sentencing. Now, on a motion to vacate his sentence pursuant to 28 U.S.C. Section 2255, Petitioner advances two claims: a substantive competency due process claim, contending that he was not competent at the time of sentencing, and an ineffective-assistance-of-counsel claim. The district court denied his Section 2255 motion.
 
The Eleventh Circuit affirmed. The court explained that Petitioner’s substantive due process rights were not violated when the district court denied his motion for a competency hearing. Nor did Petitioner receive constitutionally deficient performance from court-appointed counsel when they failed to request his medical records or request a mental health evaluation. Even if such failures constituted deficient performance, Petitioner has not demonstrated that he was prejudiced as a result. Thus, the district court did not err in denying Perkins’s Section 2255 motion.

Marcus Bernard Williams v. State of Alabama

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-13734

Opinion Date: July 11, 2023

Judge: WILSON

Areas of Law: Constitutional Law, Criminal Law

Petitioner was convicted of capital murder by an Alabama jury. The jury recommended death by execution, and the trial judge imposed the death penalty. Petitioner filed a petition for habeas corpus relief in the Northern District of Alabama, alleging—as relevant to this appeal—that trial counsel was ineffective during the penalty phase of his trial for failing to investigate and present mitigating evidence. The district court initially denied habeas relief on all claims, and Petitioner appealed. The Eleventh Circuit vacated the district court’s order and remanded to the district court to determine whether Petitioner was entitled to an evidentiary hearing and to reconsider his failure-to-investigate claims de novo. After conducting an evidentiary hearing, the district court granted habeas relief. The State of Alabama (State) appealed.
 
The Eleventh Circuit affirmed. The court explained that here, the district court conducted an evidentiary hearing on the failure-to-investigate claims, made extensive factual findings based on evidence that had not been presented during Petitioner’s penalty phase, and concluded that Petitioner was entitled to habeas relief. The court concluded that Petitioner has established Strickland prejudice. Thus, Petitioner “has met the burden of showing that the decision reached [at the penalty phase] would reasonably likely have been different absent the errors.”

Sean Garrison v. USA

Court: US Court of Appeals for the Eleventh Circuit

Docket: 20-13260

Opinion Date: July 13, 2023

Judge: BRANCH

Areas of Law: Constitutional Law, Criminal Law

Defendant, together with three others, conspired to rob a cocaine stash house. They did not know that the conspiracy was part of a reverse sting operation administrated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). Before Defendant and his co-conspirators could carry out the robbery, ATF apprehended them, confiscating a firearm from Garrison in the process. A jury convicted Defendant of conspiring to use and use a firearm during the commission of a crime of violence or drug trafficking crime, in violation of 18 U.S.C. Section 924(c), among other crimes. At issue is whether the district court erred in denying Defendant’s Section 2255 motion.
 
The Eleventh Circuit affirmed. The court explained that although Defendant’s Section 924(c) conviction had three possible predicate offenses—one of which is now invalid in light of Davis— he is not entitled to relief. The predicate offenses are so inextricably intertwined that the jury could not have based the Section 924(c) conviction on the invalid predicate without having also based it on the valid drug trafficking predicate offenses. In other words, the Stromberg error that occurred below was harmless, and thus Defendant is not entitled to relief.

USA v. Edward Walker

Court: US Court of Appeals for the Eleventh Circuit

Dockets: 22-10164, 22-10782

Opinion Date: July 13, 2023

Judge: HULL

Areas of Law: Constitutional Law, Criminal Law

Defendant, a pimp, transported three young women from Connecticut to Miami, Florida, for his prostitution business shortly before Super Bowl LIV. Following a jury trial, Walker was convicted of three sex-trafficking-related crimes: (1) sex trafficking of an adult by coercion (Count 1); (2) sex trafficking of a person (A.H.) who is a minor and alternatively of a person (A.H.) by coercion (Count 2); and (3) transporting a person to engage in sexual activity (Count 3). In a special verdict form as to A.H., the jury found Defendant guilty on Count 2 on both of the alternative liability theories: minor status and coercion. On appeal, Defendant challenged his convictions on Counts 1 and 2 but not on Count 3.
 
The Eleventh Circuit affirmed. The court concluded (1) there was ample evidence to support Defendant’s coercion conviction in Count 1, and (2) as to Count 2, Defendant did not challenge the government’s amended notice of its expert testimony in the district court, plain error review thus applies, and Defendant has not shown any alleged error in the notice prejudiced him on the coercion conviction. The court explained that a reasonable jury could conclude from the evidence that (1) A.H.’s young, runaway background and dependent circumstances made her particularly susceptible to sex trafficking and (2) A.H. feared that stopping the prostitution would result in serious harm in the form of losing Walker’s emotional, psychological, and financial support.

USA v. Sebastian Ahmed

Court: US Court of Appeals for the Eleventh Circuit

Docket: 20-14264

Opinion Date: July 13, 2023

Judge: BRASHER

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of healthcare fraud, wire fraud, and money laundering in a trial that took place during the initial days of the coronavirus pandemic. Defendant appealed his conviction, raising a number of constitutional, evidentiary, and procedural challenges. Defendant argued that he was deprived of his Fifth and Sixth Amendment rights because, among other things, his lawyer, fearing coronavirus exposure, refused to visit him in jail throughout the trial. He also posits that the government committed prosecutorial misconduct by improperly questioning one of his witnesses. On top of all that, Defendant contends that the district court abused its discretion and violated his right to present a defense by making erroneous evidentiary rulings. Defendant believes the district court’s cumulative errors denied him a fundamentally fair trial.
 
The Eleventh Circuit affirmed. The court explained that there is no evidence on this record that Defendant’s lawyer “actually intended to confer” with his client during the overnight recess, irrespective of the pandemic concerns. For instance, Defendant’s lawyer also told the district court that he did not have time to visit the jail. The court noted that the district court went to great lengths to facilitate communication between Defendant and his lawyer. It allowed them to communicate in writing during the trial and while Defendant was incarcerated at the county jail. And nothing precluded Defendant’s lawyer from attempting to communicate electronically or via telephone with his client. Finally, the court noted that Defendant has not established a single error, let alone the aggregation of many errors. Thus, his cumulative error claim lacks merit.

USA v. Theodore Douglas

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

Docket: 21-3032

Opinion Date: July 7, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

The D.C. Circuit affirmed the district court's order denying Defendant's motion to suppress evidence, finding that officer had reasonable suspicion to stop the Defendant.

In dissent, Judge Wilkins would have granted Defendant's motion to suppress, finding that police officers acted on a hunch rather than articulable facts supporting a finding of reasonable suspicion.

Judges Randolph and Rodgers each wrote concurring opinions.

Cruz v. Honorable Blair

Court: Arizona Supreme Court

Docket: CR-22-0123-PR

Opinion Date: July 11, 2023

Judge: King

Areas of Law: Criminal Law

The Supreme Court affirmed the pre-trial orders of the trial court precluding Defendant from presenting at trial expert and lay witness testimony about his intellectual disability, holding that the trial court properly precluded the evidence but that Defendant could introduce admissible "behavioral-tendency evidence" through expert and lay witness testimony.

Defendant was charged with child abuse, kidnapping, and first-degree felony murder for his daughter's death in the course of committing child abuse. Defendant was originally found incompetent to stand trial but, after restoration treatment, was determined competent to stand trial. At issue was certain pre-trial rulings made by the trial court. The Supreme Court held (1) the trial court properly precluded Defendant's proffered expert and lay witness testimony about his intellectual disability; (2) Defendant, however, may introduce what is sometimes referred to as "observation evidence" through expert and lay witness testimony; and (3) the trial court did not abuse its discretion in reducing Defendant's proposed list of lay witnesses from eleven to two.

California v. Superior Ct. (Tapia)

Court: California Courts of Appeal

Docket: E080076(Fourth Appellate District)

Opinion Date: July 11, 2023

Judge: Codrington

Areas of Law: Constitutional Law, Criminal Law

In 2010, the California Supreme Court upheld a superior court's dismissal of a felony case under Penal Code section 1382 because there was no available judge or courtroom to hear the case. The Supreme Court held, without qualification, that “the state’s failure, over a considerable period of time, to provide a number of judges sufficient to meet the needs of Riverside County’s rapidly growing population and caseload” did not provide good cause to extend section 1382’s deadline. More recently, Courts of Appeal in other parts of California have held that delay and docket congestion caused by the COVID-19 pandemic constitutes good cause to extend section 1382’s deadline. In October 2022, about two years and seven months after the pandemic began, the Superior Court granted Jose Tapia’s motion to dismiss his felony case because there was no available judge or courtroom to try the case by the time the section 1382 deadline expired. In doing so, the Superior Court found that there was no good cause to extend section 1382’s deadline. The Riverside District Attorney sought writ review of that decision. Finding that the superior court did not err, the Court of Appeal affirmed dismissal.

California v. Zemek

Court: California Courts of Appeal

Docket: D080917(Fourth Appellate District)

Opinion Date: July 11, 2023

Judge: Huffman

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Marilyn Joy Zemek was convicted by jury of first degree murder (count 1); elder abuse (count 2); two counts of grand theft (counts 3 and 5); identity theft (count 4); and perjury (count 6). Regarding count 2, the jury found true that Zemek caused the death of the victim who was then over 65 years and under 70 years of age within the meaning of Penal Code section 368 (b)(3)(A). Also, concerning counts 3 and 5, the jury found true that Zemek committed two or more related felonies involving fraud with the taking of more than $100,000 within the meaning of Penal Code section 186.11 (a)(1). The court sentenced Zemek to prison for an indeterminate term of 25 years to life on count 1, plus a total determinate term of five years, comprised of eight-month terms (one-third the middle term) on each of counts 3, 4, and 5, and the middle term of three years on count 6. Zemek appealed, contending: (1) she was denied her right to a public trial; (2) the trial court erred by failing to sufficiently investigate and then dismiss a juror for misconduct; (3) insufficient evidence supports her murder conviction; (4) the trial court erred in denying her request for a pinpoint jury instruction; and (5) the trial court erred in permitting evidence of her prior thefts. The Court of Appeal concluded none of these arguments has merit, and affirmed the judgment.

P. v. Arnold

Court: California Courts of Appeal

Docket: B321031(Second Appellate District)

Opinion Date: July 11, 2023

Judge: ASHMANN-GERST

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of second-degree murder in the stabbing death of a man during a street brawl. The jury in Defendant’s case also found a sentencing enhancement alleging that he personally used a knife to be not true. Defendant appealed for a third time, arguing, among other things, that substantial evidence did not support the trial court’s ruling he could still be convicted of murder as the actual killer.
 
The Second Appellate District reversed the trial court’s summary denial of that petition and remanded the matter for an evidentiary hearing per section 1172.6. The court agreed that the court erred in finding that Defendant stabbed the victim to death after the jury found not true an allegation that Defendant personally used a knife. The court explained that it is appropriate to remand the matter for a new hearing to determine whether the prosecution proved, beyond a reasonable doubt, that Defendant is guilty under a permissible theory of murder. The court directed that in doing so, the court shall not make any finding or rely on any evidence which contradicts the jury’s finding that the personal use of a knife sentencing enhancement was not true.

P. v. Garcia

Court: California Courts of Appeal

Docket: B317896(Second Appellate District)

Opinion Date: July 11, 2023

Judge: COLLINS

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of second-degree murder; the jury rejected the special circumstance allegation that the murder occurred during the course of a robbery. In 2019, Defendant filed a petition for resentencing under Penal Code section 1172.6. Following an evidentiary hearing, the trial court denied Defendant’s petition on the grounds that Defendant was ineligible for resentencing because he aided and abetted the murder and acted with malice. On appeal, Defendant does not challenge the trial court’s findings but argued he should have been resentenced without a hearing under the streamlined procedure described in section 1172.6, subdivision (d)(2), which applies when “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.” He asserted that the jury’s rejection of the special circumstance constitutes such a finding, regardless of any other viable grounds for his conviction.


The Second Appellate District affirmed. The court explained that Section 1172.6, subdivision (d)(2) does not mandate vacatur of a murder conviction and resentencing when there are viable bases for murder liability independent of a rejected special circumstances allegation. Section 1172.6, subdivision (d)(2) provides a mechanism to streamline the process of resentencing only if it is clear the petitioner is otherwise eligible for resentencing under section 1172.6.

People v. Wadleigh

Court: California Courts of Appeal

Docket: A165017(First Appellate District)

Opinion Date: July 12, 2023

Judge: Goldman

Areas of Law: Constitutional Law, Criminal Law

The National Center on Missing and Exploited Children reported a tip that username “mrwadleigh@sbcglobal.net” had uploaded 23 images of child pornography to an Adobe account, associated with an AT&T account. Detective DeRespini prepared a warrant application, identifying four images as child pornography and describing the images and why he believed the subjects were children. DeRespini did not attach the images. With a warrant, DeRespini learned the address of Wadleigh’s likely residence and that the Adobe and AT&T accounts were his. The search yielded 41 more images. DeRespini conducted social media searches and surveillance, confirmed Wadleigh’s residence and vehicle, and prepared a second warrant application to search Wadleigh’s person, vehicle, and residence; to search for and seize his electronic devices and stored digital media; and to conduct a forensic examination of seized items. DeRespini restated his experience and training and repeated the description of the original four images but did not include actual images. With the second warrant, officers seized items that contained additional child pornography.

Wadleigh unsuccessfully moved to suppress the evidence. The court of appeal affirmed. The warrant applications contained sufficient factual detail to establish probable cause. DeRespini misdescribed one of the images and testified that he was taught not to include images of suspected child pornography in warrant applications; the court noted that the preferable course is to include the actual images purporting to establish probable cause.

State v. Lanier

Court: Connecticut Supreme Court

Docket: SC20620

Opinion Date: July 11, 2023

Judge: Alexander

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

The Supreme Court affirmed the judgment of the appellate court affirming Defendant's conviction of burglary in the second degree, holding that Defendant was not entitled to relief on his allegations of error.

Specifically, the Supreme Court held (1) Defendant's constitutional rights to confrontation, to present a defense, and to a fair trial under the Sixth and Fourteenth Amendments to the federal constitution were not violated during the underlying proceedings; and (2) assuming, without deciding, that the trial court abused its discretion when it limited defense counsel's cross-examination of the victim on the ground that the proffered line of questioning was speculative, Defendant failed to satisfy his burden of proving harm.

State v. Massaro

Court: Connecticut Supreme Court

Docket: SC20653

Opinion Date: July 11, 2023

Judge: Mullins

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the appellate court affirming Defendant's conviction for the sale of a narcotic substance in violation of Conn. Gen. Stat. 21a-277(a), holding that Defendant was not entitled to relief on his allegations of error.

On appeal to the appellate court, Defendant argued, as relevant to this appeal, that the trial court erred in imposing a discovery sanction precluding the admission of a written memorandum containing the inconsistent statement of a key state witness and in permitting the prosecutor to elicit expert opinion testimony on cross-examination of defense counsel's private investigator. The appellate court affirmed, holding (1) the discovery sanction was improper, but the error was harmless; and (2) even if the cross-examination at issue was improper, it was harmless. The Supreme Court affirmed, holding that the appellate court properly found that any error was harmless.

Owens v. Delaware

Court: Delaware Supreme Court

Docket: 6, 2022

Opinion Date: July 13, 2023

Judge: Traynor

Areas of Law: Constitutional Law, Criminal Law

After defendant-appellant Roderick Owens was convicted of possession of a firearm by a person prohibited and, separately, of possession of ammunition by a person prohibited, and the Delaware Supreme Court affirmed those convictions on direct appeal, Owens moved for postconviction relief under Superior Court Criminal Rule 61. Owens claimed the proceedings leading to his convictions were unfair in a way that was not remediable on direct appeal. Owens also complained that his trial counsel failed to investigate and present friendly witnesses at a hearing on a motion to suppress. These deficiencies, according to Owens, amounted to ineffective assistance of trial counsel, and that his case would have been resolved more favorably had his counsel more ably assisted him. The superior court rejected Owens’s bid to have his convictions set aside on those grounds. To this, the Supreme Court concurred: Owens’s trial counsel conveyed all plea offers to Owens is supported by trial counsel’s affidavit and entitled to our deference, and Owens’s trial counsel’s analysis of the relevance of the potential witnesses’ testimony and his decision not to call them was reasonable.

Idaho v. Lankford

Court: Idaho Supreme Court - Criminal

Docket: 47522

Opinion Date: July 12, 2023

Judge: Moeller

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Mark Lankford appealed for the third time his 1983 convictions for the first-degree murders of Robert and Cheryl Bravence near Grangeville, Idaho. Errors in Lankford’s first two trials in 1984 and 2008 resulted in those convictions being vacated. Lankford was retried in 2019 and was again convicted of first-degree murder. Lankford appealed his third conviction, arguing: (1) the district court abused its discretion when it allowed the State to question Lankford’s brother about statements Lankford made on a late-disclosed prison phone recording; (2) the evidence was insufficient to support his conviction when the “law of the case doctrine” is applied to his case; and (3) the district court erred in denying Lankford’s motion to dismiss for a speedy trial violation. Finding no reversible error, the Idaho Supreme Court affirmed.

State v. McDonnell

Court: Maryland Court of Appeals

Docket: 36/22

Opinion Date: July 7, 2023

Judge: Shirley M. Watts

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

The Court of Appeals affirmed the judgment of the appellate court reversing the decision of the circuit circuit court that examination of data contained on Defendant's hard drive was not a search in violation of the Fourth Amendment, holding that the government violated Defendant's Fourth Amendment rights in this case.

Defendant voluntarily consented to government agents seizing his laptop computer, creating a copy of its hard drive, and searching the data on it. After the copy was made but before the government examined the data Defendant withdrew his consent. Defendant moved to suppress the evidence from the forensic examination of the copy of his laptop's hard drive. The circuit court denied the motion. On appeal, Defendant asserted that he had a legitimate expectation of privacy in the mirror-image copy of his laptop hard drive. The appellate court agreed and reversed. The Court of Appeals affirmed, holding (1) Defendant had a reasonable expectation of privacy in the data contained on his hard drive; (2) because the government did not examine the data before Defendant withdrew his consent Defendant did not lose his reasonable expectation of privacy in the data; and (3) the government conducted an unreasonable search by examining the data without any authority to do so.

Commonwealth v. Acevedo

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13131

Opinion Date: July 12, 2023

Judge: Gaziano

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed Defendant's conviction of deliberately premeditated murder in the first degree and unlawful possession of a firearm and declined to exercise its extraordinary authority pursuant to Mass. Gen. Laws ch. 278, 33E to grant his a new trial or to reduce his first-degree murder conviction to a lesser degree of guilt, holding that there was no error or reason to disturb the verdicts.

Together with his codefendant, Defendant was convicted of murder in the first degree on a theory of deliberate premeditation. Defendant, who was also convicted of unlawful possession of a firearm, appealed, arguing, among other things, that the trial judge erroneously excluded evidence that supported a third-party culprit defense. The Supreme Judicial Court affirmed, holding (1) the trial judge's exclusion of certain evidence did not deprive the defense "of the plausible alternative theory that rival drug dealers were responsible for the murder"; (2) there was no abuse of discretion in allowing introduction of testimony that the codefendant possessed a firearm eight months before the shooting; and (3) there was no reason to order a new trial or to reduce the degree of guilt as to the conviction of murder in the first degree.

Commonwealth v. Bookman

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13132

Opinion Date: July 12, 2023

Judge: Gaziano

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

The Supreme Judicial Court affirmed Defendant's convictions for deliberately premeditated murder in the first degree and unlawful possession of a firearm and declined to exercise its authority to grant extraordinary relief, holding that Defendant was not entitled to relief on his allegations of error.

On appeal, Defendant argued that the trial judge erred in excluding evidence that law enforcement officers found illegal narcotics in a vehicle occupied by the victim and in the victim's clothing and that the judge's ruling "deprived the defense of the plausible alternative theory that rival drug dealers committed the murder." The Supreme Judicial Court disagreed and affirmed, holding (1) there was no evidentiary error in the proceedings below; (2) as to the firearm conviction, the trial court's failure to instruct the jury on licensure requirements was harmless beyond a reasonable doubt; and (3) the verdict of murder in the first degree was consonant with justice and should stand.

Mitchell v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2021-KA-00589-SCT

Opinion Date: July 6, 2023

Judge: Leslie D. King

Areas of Law: Constitutional Law, Criminal Law

Aaron Mitchell shot and killed Marty Moore. Evidence indicated Moore was the initial aggressor, and Mitchell argued that he shot Moore in self-defense. Mitchell moved for the State to produce the autopsy report for Moore’s body. When it became clear that an autopsy report was not forthcoming because an autopsy had not been completed, Mitchell moved for an autopsy to be conducted, but the trial court denied his motion. The State’s representations on whether a partial or preliminary autopsy was performed were unclear and contradictory. Mitchell argued that the lack of autopsy violated his due process right to present a complete defense. Because the record did not contain sufficient information for it to make a determination that reversible error was committed, the Mississippi Supreme Court affirmed Mitchell’s conviction.

Stewart v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2022-KA-00479-SCT

Opinion Date: July 6, 2023

Judge: Chamberlin

Areas of Law: Constitutional Law, Criminal Law

Amondo Stewart was convicted of “possession of methamphetamine, a schedule II controlled substance.” On appeal, Stewart argued the trial court erred in admitting evidence that was obtained in violation of his Fourth Amendment and Miranda rights. The Mississippi Supreme Court found that Stewart failed to raise these arguments at trial court and was now barred from bringing them on appeal. Although, under the doctrine of plain error, the Court found it may evaluate whether a defendant’s substantive or fundamental rights have been affected, Stewart failed to ask the Court for such consideration until his reply brief, after which the State had already raised a waiver argument. Therefore, the Court found that although his arguments were barred, no error plainly appeared in the trial court record. Stewart’s conviction and sentence were thus affirmed.

State v. Hardin

Court: Montana Supreme Court

Citation: 2023 MT 132

Opinion Date: July 11, 2023

Judge: Laurie McKinnon

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction for threats and other improper influence in official and political matters but remanded for the district court to strike its imposition of pretrial supervision costs, holding that the court erred in imposing pretrial supervision costs without considering Defendant's ability to pay.
Specifically, the Supreme Court held (1) considering the probative value of the evidence and the limited risk of unfair prejudice, the district court did not abuse its discretion Under Iowa R. Evid. 403 by admitting evidence of Defendant's prior sex offense; and (2) the district court erred by imposing pretrial supervision costs without considering whether Defendant had the ability to pay the costs.

State v. Zitnik

Court: Montana Supreme Court

Citation: 2023 MT 131

Opinion Date: July 11, 2023

Judge: Laurie McKinnon

Areas of Law: Criminal Law

The Supreme Court reversed Defendant's convictions and sentence for negligent vehicular assault, resisting arrest, and disorderly conduct, holding that the district court committed reversible error by responding to the jury's questions about the definition and timing of "arrest" without first consulting Defendant and counsel on record.

On appeal, Defendant argued that his right to be present was violated during a point at trial "where the jury made a substantive inquiry about the law pertaining to the charge of resisting arrest" under the facts of this case. The Supreme Court agreed and reversed as to Defendant's conviction for resisting arrest, holding that when the district court responded to questions from the deliberating jury outside of Defendant's presence, it constituted reversible error because it was during a critical stage of the proceedings.

State v. Applehans

Court: Nebraska Supreme Court

Citation: 314 Neb. 653

Opinion Date: July 7, 2023

Judge: William B. Cassel

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the district court imposing both imprisonment and post-release supervision in a criminal case, holding that there was no merit to Appellant's claims on appeal.

Appellant pleaded no contest to a Class IIIA felony and a Class I misdemeanor. The district court sentenced Appellant to a term of imprisonment and to one year of post-release supervision. The Supreme Court affirmed, holding (1) any alleged error regarding Appellant's purported failure to be advised of the conditions of her post-release supervision did not prejudicially affect Appellant's substantial rights; (2) the district court did not impose excessive sentences; and (3) Appellant's last assignment of error was moot.

Interest of Gehlhoff

Court: North Dakota Supreme Court

Citation: 2023 ND 126

Opinion Date: July 7, 2023

Judge: Jerod E. Tufte

Areas of Law: Criminal Law

William Gehlhoff appealed a district court order denying his application for discharge from civil commitment as a sexually dangerous individual. On appeal, Gehlhoff argued the district court erred in finding by clear and convincing evidence that he has “serious difficulty controlling behavior.” Finding no reversible error, the North Dakota Supreme Court affirmed.

North Dakota v. Brame

Court: North Dakota Supreme Court

Citation: 2023 ND 121

Opinion Date: July 7, 2023

Judge: Jensen

Areas of Law: Constitutional Law, Criminal Law

Charles Brame appealed his conviction on two counts of sexual assault. Brame argued the district court failed to abide by Rule 11 of the North Dakota Rules of Criminal Procedure and was biased in sentencing him. The North Dakota Supreme Court retained jurisdiction and remanded to provide the State an opportunity to file any relevant transcripts which might show the district court substantially complied with Rule 11.

North Dakota v. Graff

Court: North Dakota Supreme Court

Citation: 2023 ND 127

Opinion Date: July 7, 2023

Judge: Jensen

Areas of Law: Constitutional Law, Criminal Law

The State appealed a district court’s criminal judgment dismissing with prejudice a charge of gross sexual imposition against Bradley Graff. Because the district court did not provide adequate findings to support a dismissal of the charge with prejudice, the North Dakota Supreme Court reversed the district court’s judgment and remanded.

North Dakota v. Sullivan

Court: North Dakota Supreme Court

Citation: 2023 ND 125

Opinion Date: July 7, 2023

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Bret Sullivan appealed a corrected criminal judgment after he pled guilty to driving under the influence. Corporal Harold Rochester stopped Sullivan’s vehicle because it was speeding and failed to remain in its lane. Corporal Justin Hoag was called to assist. Hoag decided to arrest Sullivan because of the information Rochester told him and because Sullivan’s vehicle emitted an alcoholic odor, Sullivan had glossy and bloodshot eyes, and he admitted to having consumed alcohol. Sullivan moved to suppress the evidence resulting from the arrest, and the court denied his motion. On appeal, Sullivan argues the court erred in finding that he received a sufficient advisement regarding the cause of his arrest under N.D.C.C. § 29-06-17 and in finding that the officers had probable cause to arrest him. Finding no reversible error, the North Dakota Supreme Court affirmed.

State ex rel. Missimer v. Forshey

Court: Supreme Court of Ohio

Citation: 2023-Ohio-2355

Opinion Date: July 13, 2023

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 Jay Forshey, holding that the court of appeals did not err granting Forshey's motion to dismiss.

Appellant, an inmate, filed a petition for a writ of habeas corpus seeking his immediate release from prison, arguing that his maximum sentence had expired. The court of appeals granted Forshey's motion to dismiss on the grounds that Appellant did not comply with Ohio Rev. Code 2725.04(D). The Supreme Court affirmed, holding that the court of appeals was correct in finding that Appellant did not comply with the requirements of section 2725.04(D) and that this defect alone was a valid basis to dismiss Appellant's petition.

State ex rel. Russell v. Yost

Court: Supreme Court of Ohio

Citation: 2023-Ohio-2356

Opinion Date: July 13, 2023

Judge: Per Curiam

Areas of Law: Civil Rights, Criminal Law

The Supreme Court affirmed the decision of the court of appeals dismissing this action in mandamus brought by Appellant, an inmate at the London Correctional Institution, against Ohio Attorney General Dave Yost asking Yost to provide him with names of Ohio Department of Rehabilitation and Correction (ODRC) employees who worked on a case Appellant had previously filed against the ODRC, holding that there was no error.

In 2016, Appellant filed a pro se lawsuit alleging excessive force during an altercation with ODRC staff. After the parties settled, Appellant unsuccessfully requested from the attorney general's (AG) office the name of the ODRC employee who communicated with the attorney general's office during settlement negotiations. Appellant then filed the current action requesting an order requiring the AG to provide the ODRC employees' who made decisions regarding his settlement. The attorney general dismissed the action for failure to state a claim. The Supreme Court affirmed, holding that Appellant failed to show that he had a clear legal right to the requested information or that the AG had a clear legal duty to provide that information.

State ex rel. Woods v. Heekin

Court: Supreme Court of Ohio

Citation: 2023-Ohio-2334

Opinion Date: July 11, 2023

Judge: Per Curiam

Areas of Law: Civil Rights, Criminal Law

The Supreme Court reversed the judgment of the court of appeals dismissing Appellant's petition for a writ of mandamus against Hamilton County Common Pleas Court Judge Tom Heekin for failure to file an affidavit of prior civil actions as required by Ohio Rev. Code 2969.25(A), holding that Appellant filed the required affidavit.

Appellant, an inmate, filed a petition for a writ of mandamus seeking an order compelling Judge Heekin to vacate a judgment entry dismissing a malpractice case Appellant had filed against his criminal defense attorney. The court of appeals sua sponte dismissed the petition based on Appellant's purported failure to comply with section 2969.25(A). The Supreme Court reversed, holding that the affidavit Appellant filed with his petition supported his claim that he complied with section 2969.25(A).

State ex rel. Woods v. Jenkins

Court: Supreme Court of Ohio

Citation: 2023-Ohio-2333

Opinion Date: July 11, 2023

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court reversed the judgment of the court of appeals dismissing Appellant's petition for a writ of mandamus for noncompliance with Ohio Rev. Code 2969.25(A) and remanded this case, holding that the record contained the required affidavit.

Appellant, an inmate imprisoned for rape and other offenses, filed a petition for a writ of mandamus seeking an order compelling him to vacate the judgment of conviction because it was unsigned. The court of appeals dismissed the action based on Appellant's purported failure to file an affidavit of prior actions, as required by section 2969.25(A). The Supreme Court reversed, holding that the affidavit Appellant filed with his petition supported his argument that he complied with section 2969.25(A).

State v. Stalder

Court: Supreme Court of Ohio

Citation: 2023-Ohio-2359

Opinion Date: July 13, 2023

Judge: Sharon L. Kennedy

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

In this case regarding the removal of a prospective juror based solely on his or her gender the Supreme Court held that when a party objecting to a peremptory challenge offers a bare allegation of gender discrimination without offering other relevant circumstances to support an inference of gender discrimination, that party fails to establish a prima facie case of purposeful gender discrimination.

After a jury trial, Defendant was found guilty of the crime of sexual imposition. On appeal, Defendant argued that the prosecutor sought to exclude male jurors because they would tend to sympathize with him. The court of appeals reversed, holding that Defendant established a prima facie case of purposeful discrimination when the state exercised its peremptory challenge on a prospective juror and did not provide a gender-neutral explanation for its challenge. The Supreme Court reversed, holding that the trial court erred when it failed to recognize that Batson v. Kentucky, 476 U.S. 79 (1986), applied to Defendant's objections to the state's peremptory challenges, but the error was immaterial because Defendant failed to establish a prima facie case of discrimination.

Oregon v. Lee

Court: Oregon Supreme Court

Docket: S069654

Opinion Date: June 28, 2023

Judge: James

Areas of Law: Constitutional Law, Criminal Law

An informant told law enforcement that a person named “Tom Collins” was dealing heroin from a residence in Albany, Oregon. Detectives planned to utilize the informant in executing a controlled buy at the residence. However, rather than relying on the observations and results from that controlled buy to subsequently apply for an "anticipatory warrant" to search the residence that anticipated that controlled buy. Before trial, defendant Aaron Lee moved to suppress evidence derived from the search warrant, relying on ORS 133.545 as well as the state and federal constitutions. The Oregon Supreme Court declined to reach the constitutional question that the parties presented, because the Court concluded that Oregon’s statutory warrant requirements, including ORS 133.555(2) and ORS 133.545(6), permitted it us to resolve this case without reaching that question. The Court found the affidavit in support of the warrant here failed to comply with the requirements of ORS 133.545(6). As a result, the warrant issued in defendant’s case did not comply with ORS 133.555(2), and the trial court erred in denying defendant’s motion to suppress, pursuant to ORS 133.673(1). Accordingly, the decision of the Court of Appeals was reversed. The judgment of the circuit court was reversed, and this case was remanded to the circuit court for further proceedings.

State v. Gamache

Court: Rhode Island Supreme Court

Docket: 20-288

Opinion Date: July 10, 2023

Judge: William P. Robinson, III

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the superior court denying Defendant's motion for entry of a judgment of acquittal and convicting him on thirteen counts stemming from his alleged misuse of his position as detective commander in the Middletown Police Department, holding that Defendant's argument on appeal was waived.

Defendant was convicted of several counts for assisting an individual to attain a house choice voucher from the Newport Housing Authority. Defendant appealed the denial of his motion for judgment of acquittal on the basis of his contention that "[a]ny rules governing the user's behavior within the system are irrelevant and cannot contribute to the sufficiency of the state's case in a [Sup. Ct. R. Crim. P. 29] motion...." The Supreme Court affirmed, holding that Defendant's argument was waived because it was not the same argument he made below.

State v. Robinson

Court: Rhode Island Supreme Court

Docket: 21-93

Opinion Date: July 13, 2023

Judge: William P. Robinson, III

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

The Supreme Court affirmed the judgment of the superior court convicting Defendant of three counts of first-degree sexual assault, following a jury trial, holding that Defendant was not entitled to relief on his allegations of error.

Specifically, the Supreme eCourt held that the trial justice (1) did not violate Defendant's constitutional right to present a defense by excluding the proposed expert testimony of Dr. Patricia R. Recupero as not relevant under Rule 401 of the Rhode Island Rules of Evidence; (2) did not err in instructing the jury that there was no need for certain testimony to be corroborated in order to support a guilty verdict; and (3) did not abuse his discretion in limiting the redirect examination of Defendant about his preparation for trial.

State v. Smith

Court: South Dakota Supreme Court

Citation: 2023 S.D. 32

Opinion Date: July 12, 2023

Judge: Jensen

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the circuit court convicting and sentencing Defendant for second-degree murder and three counts of aggravated assault, holding that Defendant was not entitled to relief on his allegations of error.

On appeal, Defendant argued, among other things, that the circuit court erred in denying his motion to dismiss based on statutory immunity under S.D. Codified Laws 22-18-4.8, a statute that became effective during the pendency of his case. The Supreme Court disagreed and affirmed, holding (1) Defendant was not entitled to a pretrial determination of statutory immunity under section 22-18-4.8 because the statute was substantive and not retroactive; (2) the circuit court's erroneous admission of certain testimony was not prejudicial; (3) there was sufficient evidence to sustain the verdict, and therefore, the circuit court properly denied Defendant's motions for judgment of acquittal; and (2) the circuit court did not abuse its discretion in denying Defendant's motion for mistrial.

Dotson v. State

Court: Tennessee Supreme Court

Docket: W2019-01059-SC-R11-PD

Opinion Date: July 7, 2023

Judge: Lee

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the post-conviction court denying Petitioner's petition for post-conviction relief, holding that the provisions of Tenn. Sup. Ct. R. 13 are constitutional as applied, that Petitioner was not unconstitutionally denied appellate review of the denial of his request for expert funds, and that Petitioner was not deprived of a full and fair post-conviction hearing.

Petitioner requested funds under Rule 13 to hire expert witnesses to assist in his post-conviction proceedings and, as to the four instances at issue on appeal, the post-conviction court authorized the funds. The Director of the Administrative Office of the Courts and the Chief Justice, however, either reduced the requested amount or denied approval of the funds. Petitioner continued without assistance of the witnesses, and was denied post-conviction relief. The court of criminal appeals affirmed. The Supreme Court affirmed, holding (1) the provisions of Rule 13 for prior approval review are constitutional as applied; (2) Petitioner was not unconstitutionally denied appellate review of the post-conviction court's denial of his expert funds request; and (3) Petitioner was not deprived of a fair post-conviction hearing due to the denial of expert funds.

Vermont v. Labrecque

Court: Vermont Supreme Court

Citation: 2023 VT 36

Opinion Date: July 7, 2023

Judge: Eaton

Areas of Law: Constitutional Law, Criminal Law

In 2018, the State charged defendant Larry Labrecque with multiple counts of sexual assault, including the aggravated sexual assault of a child. He remained held without bail through his trial, which commenced on May 9, 2022. A total of approximately 45.5 months passed between charging and trial. In that time, the parties engaged in ample motion practice, "and a global pandemic occurred." At a May 12, 2020 status conference, defense counsel argued that due process required defendant’s release, citing to his nearly 2-year detention pending trial and “the judiciary’s inability to honor [his] speedy-trial rights.” On October 20, 2020, defendant moved to dismiss for lack of a speedy trial, which was denied on December 7. The criminal division determined that the length of delay, approximately 28 months at the time, was sufficient to trigger full consideration of the balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972), but that the factors together did not weigh in favor of finding a speedy-trial violation. Defendant would file multiple motions for bail review in 2021; no due-process violations were found, and his pretrial detention continued. In November 2021, the criminal division scheduled a jury draw for January 10, 2022. On January 4, 2022, the criminal division granted defendant’s unopposed motion to continue the trial and rescheduled the trial to start on February 8, 2022. On February 8, the criminal division continued the trial because a necessary State witness was unavailable. Defendant declined to waive his Confrontation Clause rights to allow the witness to testify remotely. A jury was drawn on May 5, 2022 and the trial was held from May 9 to May 13. The jury returned a guilty verdict on the lesser-included charge of sexual assault. On August 5, defendant moved for judgment of acquittal in which his sole argument was that his speedy-trial right had been violated. The criminal division concluded that defendant’s right to a speedy trial was violated and dismissed the case against him with prejudice. Considering all the Barker factors, the Vermont Supreme Court concluded that defendant was not deprived of his right to a speedy trial and reversed the criminal division's dismissal.

Vermont v. White

Court: Vermont Supreme Court

Citation: 2023 VT 38

Opinion Date: July 7, 2023

Judge: Cohen

Areas of Law: Constitutional Law, Criminal Law

Defendant Austin White appealed the suspension of his driver’s license. He argued that the trial court abused its discretion in admitting the results of an evidentiary blood-alcohol test because the State did not offer sufficient evidence to demonstrate that defendant’s blood sample was collected and analyzed in compliance with Department of Public Safety (DPS) rules. The Vermont Supreme Court concluded there was indeed an insufficient foundation to allow admission of the test result. The Court therefore reversed and remanded for entry of judgment for defendant.

Explore This Year’s Key Decisions From the United States Supreme Court

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After an eventful Supreme Court term, there is plenty to talk about! Lawyers, you’re invited to join Justia Webinars for a free presentation in which Illinois Law Dean and Professor Vikram Amar and Cornell Law Professor Michael Dorf discuss some of the most important (and interesting) decisions this term. Keep reading for more details.

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