United States v. Kramer

Court: US Court of Appeals for the Third Circuit

Docket: 22-1358

Opinion Date: August 1, 2023

Judge: Freeman

Areas of Law: Constitutional Law, Criminal Law

Kramer’s then-wife, Terry, found a document on her husband’s computer that led her to believe that Kramer had engaged in sexual conduct with a minor. Later, Terry found photographs on Kramer’s cellphone depicting the victim engaged in sexual acts. Terry met with police, described the sexually explicit photographs, and showed them the document; she emailed the photographs to the police. The victim reported that Kramer had sexually abused her for years and had used his cellphone to take pictures of her engaged in sexual conduct. Kramer admitted to having a sexual relationship with the victim and to taking the photographs. With a warrant, law enforcement searched Kramer’s cellphone and eventually found videos and photographs depicting sexual acts involving the victim.

Kramer was charged with sexual exploitation of children, 18 U.S.C. 2251(a). While in custody, he sent Terry a letter: “You crossed [the] line and it IS going to cost you,” repeatedly stating that he would have Terry arrested for her purported crimes. Kramer was then charged with attempted witness tampering, 18 U.S.C. 1512(b)(1). The Third Circuit affirmed Kramer’s convictions and 350-month sentence, upholding the denial of Kramer’s motion to suppress evidence. Terry conducted a private search of his cellphone and voluntarily provided the evidence to the government; the evidence was admissible without implicating the Fourth Amendment. The court properly denied Kramer’s motion to dismiss the attempted witness tampering charge.

United States v. Shaknitz

Court: US Court of Appeals for the Third Circuit

Docket: 23-1257

Opinion Date: August 2, 2023

Judge: Per Curiam

Areas of Law: Criminal Law

Shaknitz pleaded guilty to three counts of distribution and attempted distribution of child pornography, 18 U.S.C. 2252(a), and one count of possession of child pornography. Shaknitz was sentenced to a 170-month term of imprisonment and a five-year term of supervised release. During sentencing, the district court orally imposed a condition on Shaknitz’s incarceration, limiting his contact with his five-year-old son to telephone only. In its written judgment, the court did not include its previously-announced condition but recommended that the Bureau of Prisons (BOP) impose the telephone-only condition. The judgment did not state that the recommendation superseded the oral pronouncement.

The Third Circuit vacated, noting its prior holding that a sentencing court lacks “inherent authority to impose a no-contact order during [a defendant’s] incarceration term.” It is unclear whether the written judgment was intended to replace the mandate with a recommendation; sentencing courts have the authority to recommend to the BOP that defendants’ contact with others be limited where necessary and appropriate.

United States v. Stanford

Court: US Court of Appeals for the Third Circuit

Docket: 22-1272

Opinion Date: July 28, 2023

Judge: Hardiman

Areas of Law: Criminal Law

Following the armed robbery of a Winston-Salem, North Carolina convenience store, officers obtained a warrant for Stanford’s arrest and contacted Wilmington Detective Cannon for help apprehending Stanford, whom they believed had fled to Delaware. Cannon obtained a search warrant authorizing the use of a cell-site simulator to locate Stanford’s cell phone. Cannon alleged that Stanford was originally from Wilmington and had family members and associates who could assist him. Officers learned that Stanford was at a Wilmington Residence. While conducting surveillance, police approached a woman who exited the Residence and asked whether Stanford was there. She said Stanford and Gibson—Stanford’s brother, wanted on other charges—were inside. Officers knocked, announced, and entered the unlocked door. Stanford and Gibson were arrested. Cannon obtained a warrant to search the Residence for evidence of the North Carolina robbery. The Affidavit contained possible inaccuracies about the other suspects and Stanford's stay at the Residence. The subsequent search of the Residence yielded a loaded handgun beneath a cushion on the couch where Stanford was laying when he was arrested.

Stanford was charged with illegal firearm possession 18 U.S.C. 922(g)(1), 924(a)(2). The Third Circuit affirmed the denial of his motion to suppress, based on the good faith exception to the exclusionary rule, and his sentence. Delaware first- and second-degree robbery are U.S.S.G crimes of violence.

US v. Christopher Singletary

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-4351

Opinion Date: August 1, 2023

Judge: PAMELA HARRIS

Areas of Law: Constitutional Law, Criminal Law

Defendant received a 13-year sentence for Hobbs Act robbery and a related firearm offense. The Fourth Circuit vacated Defendant’s sentence on procedural grounds and remanded for resentencing. At resentencing, the district court increased Defendant’s sentence by six months and ran that term consecutively to an intervening state sentence on unrelated charges. Defendant argued that he was resentenced vindictively as punishment for successfully exercising his right to appeal.
 
The Fourth Circuit affirmed. The court explained that the district court expressly based its increased sentence on objective information post-dating Defendant’s initial sentencing – namely, Defendant’s new state convictions and his lengthy disciplinary record while incarcerated. The district court provided a careful explanation of its decision to increase Defendant’s sentence and run it consecutively to a newly imposed sentence. And it grounded this decision in objective developments post-dating Defendant’s initial sentencing. That suffices to dispel any presumption of vindictiveness that otherwise would arise.

US v. Danny Smith

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-6829

Opinion Date: August 3, 2023

Judge: DIAZ

Areas of Law: Constitutional Law, Criminal Law

Defendant is fifteen years into his twenty-year prison sentence for conspiring to distribute crack cocaine. A few years after he was sentenced, Congress passed the Fair Sentencing Act, which reduced the crack-to-powder cocaine disparity. If sentenced today, Smith’s mandatory minimum would be half his current sentence. Under the retroactivity provisions of the First Step Act, Defendant moved for a sentence reduction to time served. The district court denied his motion, determining that twenty years remained appropriate. Defendant appealed, claiming among other things that the district court miscalculated his Guidelines range and that our recent decision in United States v. Swain, 49 F.4th 398 (4th Cir. 2022), reveals substantive errors in the district court’s analysis.
 
The Fourth Circuit affirmed. The court explained that “The Fair Sentencing Act and First Step Act, together, are strong remedial statutes, meant to rectify disproportionate and racially disparate sentencing penalties.” The district court considered these remedial aims, as well as all other nonfrivolous arguments, before exercising its broad discretion to deny sentencing relief. Further, while the court recognized the disparity between Defendant’s new Guidelines range and his current sentence, the district court properly explained why it remained substantively reasonable.

US v. Ilana Bangiyeva

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-1066

Opinion Date: August 2, 2023

Judge: AGEE

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

Brothers pleaded guilty to conspiring to participate in a racketeering enterprise, in violation of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act. The district court ordered the forfeiture of various real properties and financial accounts linked to the RICO conspiracy. Several third parties came forward to claim an interest in one or more of the forfeited assets, including the brothers’ sister, Ilana Bangiyeva (“Bangiyeva”), and one brother’s wife, Irina Alishayeva (“Alishayeva”). The court rejected most of Bangiyeva’s claimed ownership interests. As to Alishayeva the court granted a life estate in and the exclusive use of one of the properties after finding that she owned a one-third interest in that property as a tenant in common with the Government, which owned the remaining two-thirds interest. Bangiyeva appealed.
 
The Fourth Circuit affirmed the final order of forfeiture in that respect. Additionally, the Government cross-appealed, asserting that the district court erred as a matter of law in granting Alishayeva a life estate in the relevant property at the expense of the Government’s majority ownership interest. The court agreed with the Government and vacated that part of the final order of forfeiture and remanded for further proceedings. The court explained that in granting Alishayeva full and exclusive use of the 110-37 69th Ave. property for the remainder of her life and marriage, the district court accorded the Government less than the full bundle of property rights that it would otherwise be entitled to as a tenant in common under New York state law. The district court was without legal authority to do so.

US v. Jeffrey Reed

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-4258

Opinion Date: July 31, 2023

Judge: RUSHING

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of two crimes arising out of an elaborate ploy to intimidate an Internal Revenue Service (IRS) agent into halting her efforts to collect his delinquent tax debt. On appeal, Defendant challenged the validity of both convictions along with three enhancements the district court imposed at sentencing.
 
The Fourth Circuit affirmed. The court wrote that it found no reversible error in the district court’s analysis. Although Section 2J1.2(b)(1)(B) requires any personal injury to be “physical,” the Guideline does not limit the term “property damage” in the same way. And the Guideline explicitly encompasses “threatening” to cause property damage. Thus, we will not disturb the district court’s determination that, by filing a lien against the property, because Defendant “caused or threatened to cause” damage to their property. Finally, Reed contends the district court erred by applying a two-level enhancement to Count 2 for conduct “otherwise extensive in scope, planning, or preparation.” The district court relied on Defendant’s efforts to convince Nelson not to garnish his wages, his numerous frivolous legal filings in multiple States, and his “campaign of serving notarized documents on the agent” purporting to show she “personally wronged him” and owed him “millions of dollars.”

US v. Quintin Davis

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-4433

Opinion Date: August 1, 2023

Judge: KING

Areas of Law: Constitutional Law, Criminal Law

Defendant appealed from the district court’s judgment sentencing as 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, as relevant here, 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 the “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 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.

USA v. Greenlaw

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-10511

Opinion Date: July 31, 2023

Judge: Carl E. Stewart

Areas of Law: Constitutional Law, Criminal Law

In January 2022, a jury convicted United Development Funding (“UDF”) executives (collectively “Appellants”) of conspiracy to commit wire fraud affecting a financial institution, conspiracy to commit securities fraud, and eight counts of aiding and abetting securities fraud.  Jurors heard evidence that Appellants were involved in what the Government deemed “a classic Ponzi-like scheme,” in which Appellants transferred money out of one fund to pay distributions to another fund’s investors without disclosing this information to their investors or the Securities Exchange Commission (“SEC”). Appellants each filed separate appeals, challenging their convictions on several grounds.
 
The Fifth Circuit affirmed. The court wrote that evidence strongly supports a finding that Appellants intended to conduct a scheme to deprive investors of their money. There is proof that they purposefully advertised a desired rate of return to brokers and continued to solicit investors to invest their money into UDF III despite knowing that UDF III did not have enough money to sustain its current investors. Evidence also shows that they purposefully did not invest UDF IV and UDF V investors’ money into the business or otherwise use the money to further fund developer’s projects. Further, the court held that the foremost scheme alleged here was for the Appellants to obtain money from investors, and the Government’s mountain of evidence supporting this theory is sufficient, regardless of the invalidity of its subsidiary theory. Here, the Appellants fail to highlight the multiple errors that they allege occurred throughout their trial.

USA v. Holdman

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-30357

Opinion Date: July 28, 2023

Judge: Leslie H. Southwick

Areas of Law: Constitutional Law, Criminal Law

Defendant, a deer farmer in Louisiana, was found guilty of aiding and abetting others in hunting over bait and hunting over a baited area, both in violation of the Migratory Bird Treaty Act. The district court affirmed the conviction, fine, and one-year term of probation. On appeal, Defendant principally argued that the MBTA and accompanying regulations allow him to use Mississippi’s Cooperative Extension Service guidance for the Southeast region, rather than the guidance issued by Louisiana’s Extension Service, to take advantage of the MBTA’s safe harbor provision.
 
The Fifth Circuit affirmed. The court explained that the safe harbor exemption found in Section 20.21(i)(1) is only applicable where feed has been distributed “solely as the result of a normal agricultural operation.” Defendant does not challenge the extraneous improvements evidence and, instead, argues only that the Government made its case based on outdated guidance from the expert witness and did not look to Mississippi’s extension service recommendations that Defendant’s planting allegedly followed. The court wrote that because it held that the Cooperative Extension Service and State Extension Specialists’ guidance is state-specific, the court found no error in the Government’s use of the LSU Extension’s recommendations. Further, the court reasoned that even if the Mississippi State guidance was applicable, it did not benefit Defendant because he did not follow the normally accepted practice of placing one inch of soil over the seeds.

USA v. Jones

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-30270

Opinion Date: July 28, 2023

Judge: Kurt D. Engelhardt

Areas of Law: Constitutional Law, Criminal Law

Without a plea agreement, Defendant pleaded guilty to carjacking resulting in serious bodily injury and discharging a firearm in furtherance of a crime of violence or a drug trafficking crime. The district court sentenced him to 30 years in prison. Defendant challenged the sufficiency of the factual basis to which he pleaded guilty and the reasonableness of his sentence.
 
The Fifth Circuit affirmed. The court held that the factual basis supports Defendant’s guilty plea, and the district court’s imposition of an upward variance was neither procedurally nor substantively unreasonable. The court concluded that the district court articulated the fact-specific reasons in support of a non-Guidelines sentence, committed no legal error in the procedure followed in arriving at the sentence, and gave appropriate reasons for its imposition. Accordingly, the sentencing court is owed “great deference,” and Defendant has not shown that his sentence is procedurally unreasonable.
 
The court further explained that Defendant did not show that the court’s analysis failed to take into account a factor that should have received significant weight, gave weight to an irrelevant or improper factor, or represented a clear error of judgment in balancing the sentencing factors and other relevant considerations. Thus, in applying a deferential standard of review to the district court’s consideration of the totality of the circumstances, as required, the court held that the district court’s upward-variance sentence was substantively reasonable.

Brown v. Knapp

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-1973

Opinion Date: July 28, 2023

Judge: Jane Branstetter Stranch

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

Michigan State Police (MSP) detectives, assigned to investigate the 2011 Bates killing, learned that on the night of her murder, Bates was in her home with Jones and both of their boyfriends. Reed, Jones’s boyfriend, was charged. Jones said she did not want to testify and that “they” would kill her if she did. An assistant prosecutor saw Brown (Reed’s mother) following Jones as Jones cried, yelling that she “couldn’t go testify and she better not go in there.” Brown was arrested for witness intimidation. Brown was in jail for approximately 96 hours and was not brought before a judge for a probable cause hearing. MSP never requested a warrant for her arrest or took any other action relating to her detention.

Brown sued the MSP defendants for violating her Fourth Amendment rights. The district court held that the defendants were not entitled to qualified immunity but, because of the “complicated factual scenario” did not determine at the summary judgment stage which defendants bore legal responsibility for violating her rights. The Sixth Circuit affirmed in part. Under the totality of the circumstances, there was probable cause to arrest Brown. The defendants are entitled to qualified immunity on that claim. It was clearly established at the time of Brown’s arrest that her arresting officers had a duty to take her before a magistrate for a probable cause hearing; they are not entitled to qualified immunity on that claim.

United States v. Liggins

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-1236

Opinion Date: August 3, 2023

Judge: Eric L. Clay

Areas of Law: Constitutional Law, Criminal Law

Liggins was charged with conspiracy to possess with intent to distribute and to distribute heroin, 21 U.S.C. 841(a)(1),846, and aiding and abetting the possession with intent to distribute heroin, sections 841 and 2. At a pretrial hearing, the district judge remarked that Liggins, a Black man, “look[ed] like a criminal to me” and that Liggins was doing “what criminals do.” Liggins unsuccessfully moved for the judge’s recusal based on these remarks, among others, such as "I’m tired of this case. I’m tired of this defendant."

The Sixth Circuit vacated Liggins's conviction and 127-month sentence and remanded to another district judge for a new trial. The judge's remarks could be understood to demonstrate clear prejudgment of Liggins’ guilt and could be understood to refer to Liggins's appearance rather than his behavior in insisting on a jury trial and changing attorneys. The judge also denied Liggins's requests to speak. "In this case, the risk of undermining the public’s confidence in the judicial process is significant."

United States v. Smith

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-1909

Opinion Date: July 31, 2023

Judge: Nalbandian

Areas of Law: Criminal Law

Smith was stopped in a car that contained about 103 grams of crystal methamphetamine. Smith was charged with possession with intent to distribute 50 grams or more of methamphetamine and conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine. The government indicated that it would seek an enhanced mandatory minimum of 180 months (21 U.S.C. 851) because of Smith’s prior drug trafficking conviction. Smith pleaded guilty to the conspiracy charge; the government dropped the possession charge. The PSR calculated a guidelines range of 180-188 months—a combination of his uncontested guidelines range and his 180-month statutory mandatory minimum. The government requested a downward departure of one level under 18 U.S.C. 3553(e) and U.S.S.G. 5K1.1 for Smith’s cooperation, indicating that Smith had lied but had supplied some helpful information. Smith argued that he “earned and deserve[d]” a four-level departure.

The district court determined that Smith’s range was 151-188 months and that Smith had a mandatory minimum of 180 months, then decided on a two-level departure, and arrived at a range of 135-168 months. The court explained that the guidelines are advisory, evaluated the 18 U.S.C. 3553(a) factors, and imposed a 158-month sentence. The Sixth Circuit affirmed the sentence as procedurally and substantively reasonable.

United States v. Wilson

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-3799

Opinion Date: July 28, 2023

Judge: Mathis

Areas of Law: Criminal Law

Around noon, officers responded to nine gunshots in a Cleveland neighborhood and located nine shell casings. A witness stated, and video surveillance confirmed, that he saw Wilson shooting out of a Ford truck as he chased a black Jeep. The victim (Wilson's relative) stated that Wilson got out of his truck and shot at his Jeep. The agents observed the victim’s wounds and images of the damaged Jeep. Wilson pleaded guilty to being a felon in possession of the ammunition used in the shooting. His PSR recommended a four-level enhancement, U.S.S.G. 2K2.1(b)(6)(B), for shooting at an occupied vehicle, a felonious assault under Ohio law. Wilson was not charged in state court. Wilson asserted that he acted in self-defense. The witness apparently saw someone shoot out of the Jeep at Wilson. The judge stated: You do not have the right to shoot back at someone simply because they have shot at you. … you can’t even possess a bullet. If a bullet is here ,,, you are in violation of federal law, … 2K2.1 only requires that you were doing something in violation of some law.

Wilson’s Guidelines range was 21-27 months; the court imposed a 46-month sentence. The Sixth Circuit vacated. The district court failed to make the requisite factual findings, rejecting Wilson’s self-defense claim based on its inaccurate belief that Wilson could not invoke self-defense because he did not lawfully possess the ammunition or firearm he used.

Doe v. Gray

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1501

Opinion Date: July 28, 2023

Judge: Brennan

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

Doe is a transgender male who was born female. He had breast-removal surgery but no other gender-altering procedure. Doe’s partner is A.B., the mother of R.M. and four other children. Starke County Detective Gray, and Purtee, a family case manager with the Indiana Department of Child Services, met with 17-year-old R.M. to investigate allegations that Doe and A.B. had abandoned him. Ultimately, Doe and A.B. were arrested for neglect of a dependent and nonsupport of a dependent child. During subsequent interviews and proceedings, it was divulged that Doe was born female.

After the charges were resolved with deferred prosecution agreements, Doe and A.B. sued the detective, the Sheriff’s Department, and Purtee under 42 U.S.C. 1983 alleging violations of Doe’s right to privacy in sexual preference under the Fourteenth Amendment and that they were arrested without probable cause contrary to the Fourth Amendment. They later sought to amend their complaint to clarify that Doe’s Fourteenth Amendment claim pertained to the disclosure of gender identity not sexual preference. The district court denied the motion to amend and entered summary judgment. The Seventh Circuit affirmed. The defendants are entitled to qualified immunity, as there is no clearly established right to privacy in one’s sexual preference or gender identity during a criminal or child welfare investigation. The totality of the circumstances provided probable cause for the arrests.

G.G. v. Salesforce.com, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2621

Opinion Date: August 3, 2023

Judge: HAMILTON

Areas of Law: Civil Procedure, Criminal Law

G.G. ran away from home at age 13 and fell into the hands of a sex trafficker who used the now-defunct Backpage.com to advertise her. G.G. sued under the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. 1595, which allows sex trafficking victims to recover damages from those who trafficked them and from anyone who “knowingly benefits … from participation in a venture which that person knew or should have known has engaged in” sex trafficking. She alleges that Salesforce should have known that Backpage.com was engaged in sex trafficking of minors. Salesforce had a close business relationship with Backpage—providing advice and custom-tailored software — and “knowingly benefited from its participation.”

The Seventh Circuit reversed the dismissal of the case, rejecting arguments that a “venture” must be primarily a sex-trafficking venture; that a participant must have had constructive knowledge of the specific victim; that “participation in a venture” requires direct participation in a “common undertaking or enterprise involving risk and potential profit”; and that to knowingly benefit requires that the sex trafficker provide the participant with a benefit because of the participant’s facilitation of a sex-trafficking venture and that the participant must have known that this was the reason for the benefit. Those theories seek to impose restrictions on the civil remedy that are inconsistent with the statutory language.

Jones v. Cromwell

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2084

Opinion Date: July 28, 2023

Judge: Jackson-Akiwumi

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

After a New Year’s Eve hit-and-run left one person dead and another injured, Jones became a suspect and turned himself in. During a recorded interrogation at 1:18 a.m., an officer read Jones his Miranda rights and fully explained those rights. Jones asked what penalty he was potentially facing. The officer refused to answer, asking multiple times if Jones wanted to proceed with questioning. The officer stated that others had placed him at the scene of the accident, police knew Jones fled because he was scared, Jones did the right thing coming in, and it was important for Jones to get his side of the story on record. After saying he felt horrible, Jones asked, “So y’all can get a public pretender right now?” After some laughter, a detective responded, “You said it right, pretender … they’re called public defenders.” After more chuckling, the detective said: “Obviously due to the time right now, we can’t.” At one point the detective stated that he believed the maximum punishment was 15 years. Jones then told the detectives what happened, implicating himself.

The Wisconsin trial court denied his motion to suppress, concluding that Jones's joking reference to a “public pretender” cannot constitute a genuine request. A state appellate court affirmed. The Seventh Circuit affirmed the denial of habeas relief. Jones’s question about a lawyer, whether earnest or in jest, was too ambiguous to invoke his right to counsel under Supreme Court law.

The Bail Project, Inc. v. Commissioner, Indiana Department of Insurance

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2183

Opinion Date: August 3, 2023

Judge: Kirsch

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

The Bail Project, a nonprofit organization, advocates for the abolition of cash bail and pays cash bail for thousands of individuals across the country to show that conditioning a pretrial defendant’s release upon the payment of money is not necessary to secure appearances at future court dates. Indiana House Enrolled Act 1300 requires charitable bail organizations to register with the state and limits for whom such organizations can pay cash bail.

The Project sought to enjoin Indiana’s Department of Insurance from enforcing the law, arguing that HEA 1300 (which had not yet gone into effect) would violate its First Amendment right to free speech and its Fourteenth Amendment right to equal protection. The district court held that The Project had not shown a likelihood of success on the merits. The Seventh Circuit affirmed. The payment of cash bail is not protected by the First Amendment. Although The Project pays bail with the intent to communicate its message and to further its advocacy, a reasonable observer would not understand the conduct itself as communicating any message without additional explanatory speech. HEA 1300 does not violate the Equal Protection Clause because it is rationally related to Indiana’s legitimate interest in regulating the pretrial detention of criminal defendants.

United States v. Arroyo

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2008

Opinion Date: July 28, 2023

Judge: Kirsch

Areas of Law: Criminal Law, Government & Administrative Law, White Collar Crime

Arroyo served in the Illinois House of Representatives from 2006-2019, while also managing a lobbying firm. In 2018-2019, Arroyo’s firm received $32,500 in checks from Weiss’s sweepstakes-gaming company in exchange for his official support for the sweepstakes industry in the General Assembly. Despite never previously expressing a view on sweepstakes gaming, Arroyo began pushing for sweepstakes-friendly legislation and encouraging other legislators and executive-branch officials to support the same. Arroyo concealed his financial arrangement with Weiss.

When the government uncovered the bribery scheme, Arroyo pleaded guilty to wire fraud, 18 U.S.C. 666(a)(2). The court sentenced him to 57 months’ imprisonment and ordered that he forfeit $32,500 in bribe money. The Seventh Circuit affirmed, rejecting Arroyo’s contention that the judge erred by finding his 57-month sentence necessary to deter public corruption. District judges need not marshal empirical data on deterrent effects before considering whether a sentence adequately deters criminal conduct. The judge presumed that public officials are rational actors who pay attention when one of their own is sentenced. That presumption that sentences influence behavior at the margins was reasonable. The court also rejected arguments that the judge erred by deeming several of his allocution statements aggravating and ordering him to forfeit too much money.

Wilson v. United States

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2087

Opinion Date: August 1, 2023

Judge: Jackson-Akiwumi

Areas of Law: Criminal Law, Real Estate & Property Law

Wilson was traveling at O’Hare airport with $33,783 in cash. The Drug Enforcement Administration seized the money, suspecting that the proceeds were from illegal drug activity. DEA notified Wilson that it would declare the seized cash as government property by administrative forfeiture. Under the Civil Asset Forfeiture Reform Act (CAFRA), 18 U.S.C. 983(a)(1)(A), Wilson had to file a “claim” with DEA by September 25, 2020. She received the required notice that failure to file a timely claim would waive her right to contest the forfeiture. On September 18, 2020, Wilson’s attorney mistakenly filed the wrong form, a “petition for remission,” which seeks to reduce the amount of seized money subject to forfeiture. Wilson’s attorney realized the mistake about five months later and sent a letter. DEA declined to correct the error.

The Seventh Circuit affirmed the dismissal of Wilson’s Motion to Recover Seized Property under Federal Rule of Criminal Procedure 41(g), which “is properly invoked to request the return of seized property before forfeiture proceedings have been initiated.” CAFRA is “the exclusive remedy for seeking to set aside a declaration of forfeiture.” Wilson did not assert any challenge to the notice she received from the DEA; her argument amounted to a request for equitable relief. Apart from challenges based on notice, “Congress has authorized no other means for challenging a declaration of forfeiture” in federal court.

United States v. Jerell Haynie

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3654

Opinion Date: August 2, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of a conspiracy under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. Section 1962(d), based on his involvement with the Crips street gang. The Eighth Circuit court affirmed Defendant’s conviction but remanded for resentencing. On remand, the district court imposed a sentence of 71 months imprisonment. Defendant appealed the sentence. The principal dispute on appeal concerns whether the district court erred by failing to account for a term of imprisonment that Defendant served in Nebraska for state drug offenses that were committed in the course of the RICO conspiracy.
 
The Eighth Circuit affirmed. The court explained that the court originally sentenced Defendant to 84 months’ imprisonment but effectively gave Defendant“credit” for the eleven-month period from July 2018 through May 2019, when he was serving federal and state sentences concurrently. The incremental punishment for the federal offense originally was 73 months imprisonment. On remand, the state sentence had been discharged, and the court imposed only 71 months imprisonment for the federal offense. Defendant thus received a lesser net punishment after the remand, and he did not lose any “credit” for time served in state custody.

United States v. Kimo Little Bird, Sr.

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2176

Opinion Date: August 3, 2023

Judge: KELLY

Areas of Law: Constitutional Law, Criminal Law

A jury found Defendant guilty on three counts: (1) Aggravated Sexual Abuse of a Child, (2) Committing a Felony Sex Offense Against a Minor While Required to Register as a Sex Offender, and (3) Tampering with a Witness. After the verdict, Defendant filed a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29. The district court denied the motion and subsequently sentenced Defendant to life plus 120 months in prison. On appeal, Defendant argued that the district court erred when it denied his motion for judgment of acquittal because there was insufficient evidence to convict on the aggravated sexual abuse and witness tampering charges. Defendant also challenged his sentence.
 
The Eighth Circuit affirmed. The court wrote that here, the evidence at trial presented “two conflicting hypotheses” about Defendant’s motivation in making these phone calls. The jury found more credible the government’s explanation. And while there was no direct evidence that Defendant attempted to corruptly persuade his mother, there was sufficient circumstantial evidence to support the jury’s conclusion that he did. Given that all reasonable inferences must be construed in favor of upholding the verdict, this court will not disturb the jury’s decision on this count.

United States v. Marcus Burrage

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2439

Opinion Date: August 2, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of assaulting a person assisting a federal officer, and a second jury convicted Defendant of drug offenses. On appeal, Defendant raised several challenges to his convictions.
 
The Eighth Circuit affirmed. The court explained that Defendant complains that the district judge was unaware that the clerk collected data on the race of potential jurors. But whether or not the district judge was familiar with the information gathered by the clerk, the relevant reports were available to Defendant on request. Defendant could have inquired about information on the racial composition of jury pools before the pre-trial motion deadlines. The district court did not abuse its discretion in denying Defendant’s motions as untimely. Moreover, evidence of drug activity by a conspirator during the conspiracy is relevant evidence of the existence of the conspiracy. The evidence here was prejudicial in the sense that it tended to prove the existence of the conspiracy, but it was not unfairly prejudicial because it was directly relevant to the charged offense. The district court did not abuse its discretion in admitting the evidence.

United States v. Matthew Robbins

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3360

Opinion Date: August 2, 2023

Judge: KOBES

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of robbery affecting interstate commerce, conspiracy to commit robbery affecting interstate commerce, and using, carrying, and brandishing a firearm during a crime of violence resulting in murder. Basically, the Government’s theory was that a drug dealer was robbed and killed, and his body was tossed into a burn pit behind Defendant’s house. The district court denied Defendant’s motions for acquittal and a new trial.
 
The Eighth Circuit affirmed. The court explained that sufficient evidence supported the findings that the robbery involved methamphetamine and drug proceeds. The evidence at trial showed that the victim was a drug dealer who sold methamphetamine and had no source of legitimate income. The court explained that while Defendant highlights some facts, he suggests pointing the opposite way; the court wrote it was not convinced. The district court didn’t err in denying acquittal. Further, Defendant’s concerns speak to the weight of the evidence, not its admissibility. The evidence was admissible because it advanced the Government’s theory of the case—that the victim was killed during a robbery, and his body was destroyed in a backyard burn pit. It also wasn’t unfairly prejudicial, considering the evidence suggesting that the victim was murdered.

United States v. Melchizedek Hayes

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3247

Opinion Date: July 31, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to unlawful possession of a firearm as a prohibited person. He argued that the district court erred when it denied his motion to suppress evidence seized during a search of his home.
 
The Eighth Circuit affirmed, concluding that there was no error in admitting the evidence. The court explained that officers may seize an effect without a warrant under the “plain view doctrine” if they are lawfully present in a place to view the object, the incriminating character of the object is immediately apparent, and the officers have a lawful right of access to the object. Here, once the officers were lawfully present in Defendant’s house based on his stepfather’s apparent authority to consent, the officers permissibly seized the Molotov cocktails as objects in plain view in the bathroom and kitchen.
 
Defendant suggests that even if the police officers were lawfully present in his home and the incriminating character of the explosive devices was immediately apparent, the officers were required to obtain a warrant before making a seizure. But “where the elements of the plain view doctrine are met, the fact that the officers could have left and obtained a warrant does not invalidate the justification for seizing the property.” Accordingly, the district court did not err when it concluded that the officers lawfully seized the items from Defendant’s bathroom and kitchen.

United States v. Phillip Ridings

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1586

Opinion Date: July 28, 2023

Judge: ERICKSON

Areas of Law: Constitutional Law, Criminal Law

Defendants appealed their convictions for conspiracy to commit wire fraud; wire fraud and aiding and abetting wire fraud and money laundering; and money laundering and aiding and abetting money laundering.  On appeal, Defendants claimed the district court erred when it admitted a redacted plea agreement that Ridings signed but which did not ultimately result in a guilty plea. By the terms of the plea agreement, one Defendant waived his rights under Rule 410 of the Federal Rules of Evidence. That Defendant also appealed his sentence, asserting that the district court imposed a sentence above the Sentencing Guidelines range based on his religious beliefs in violation of the First Amendment.
 
The Eighth Circuit affirmed. The court explained that there was an overwhelming quantum of evidence received at trial that was consistent with Defendant’s statement, rendering admission of the factual statement, even if it was error, harmless beyond a reasonable doubt. Further, the court explained that here, the district court specifically stated that its sentence was not based on Defendant’s faith, but rather, the district court considered that Defendant used faith to manipulate people who were susceptible to such manipulation and lull people into a false sense of security. The court explained that it has upheld sentences where the district court took into account a defendant’s abuse of a religious connection. Here, the district court did not abuse its discretion by considering Defendant’s abuse of others’ faith, nor is the sentence it imposed substantively unreasonable.

United States v. Ricky Pulley

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2858

Opinion Date: August 1, 2023

Judge: GRASZ

Areas of Law: Constitutional Law, Criminal Law

Defendant pled guilty to unlawfully possessing a firearm in violation of 18 U.S.C. Sections 922(g)(1) and 924(a)(2). The district court ultimately sentenced Defendant to 87 months of imprisonment. On appeal, Defendant challenged the district court’s calculation of the advisory sentencing range under the United States Sentencing Guidelines Manual (“Guidelines”). Specifically, Defendant argued the district court erroneously decided Defendant’s past conviction for aggravated vehicular hijacking in violation of 720 Illinois Compiled Statutes Section 5/18-4(a)(3) was a crime of violence. Thus it should not enhance his offense level under Section 2K2.1 of the Guidelines.
 
The Eighth Circuit affirmed. The court explained that the issue is whether, under the pre-2012 version of the Illinois statute, Defendant could have been convicted for reckless vehicular hijacking. The court concluded that the answer was no. The court wrote that there is neither a precedential case nor a realistic situation in which vehicular hijacking would not be considered a crime of violence as it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Therefore, the court held Defendant’s vehicular hijacking conviction constitutes a crime of violence under the force clause.

United States v. Sergio Jimenez

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2670

Opinion Date: July 28, 2023

Judge: SHEPHERD

Areas of Law: Constitutional Law, Criminal Law

Defendant was charged with possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. Section 841(a)(1) and (b)(1), after law enforcement found more than 1,500 grams of methamphetamine concealed in a vest on his person. He filed a motion to suppress, arguing that his detention and frisk were not supported by reasonable suspicion. The district court denied the motion. Defendant entered a conditional plea, reserving his right to appeal the suppression ruling. On appeal, Defendant conceded that his first two encounters with the Drug Enforcement Administration Task Force Officer (TFO) were consensual and that his third encounter involving both TFOs began consensually. He argued only that his detention and subsequent frisk during this third encounter were neither consensual nor supported by reasonable suspicion, and, thus, the evidence obtained thereafter must be suppressed as fruit of the poisonous tree
 
The Eighth Circuit reversed. The court explained that initially, it is questionable whether the TFOs would have even been justified in conducting a pat down, as the facts do not lend much credence to the claim that Jimenez may have been “armed and presently dangerous.” The court explained that even if it were to assume that the TFOs would have been justified in conducting a pat down of Defendant based on his efforts to keep his blanket on his person and his potential involvement in drug trafficking, the TFOs far exceeded the scope of these permissible bounds when they immediately leaped to the substantially more intrusive action of forcibly removing his blanket.

GREGORY BROWN V. M. ATCHLEY

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-16290

Opinion Date: August 3, 2023

Judge: Ikuta

Areas of Law: Constitutional Law, Criminal Law

Petitioner was convicted in California state court of one count of conspiracy to commit murder and one count of attempted murder on an aiding and abetting theory and sentenced to 56 years to life. His conviction and sentence were affirmed on appeal. The district court denied his first federal habeas petition on the merits and declined to grant a certificate of appealability (COA); this court also declined to grant a COA. The district court dismissed as second or successive Petitioner’s second federal habeas petition, and the Ninth Circuit court affirmed the dismissal.
 
In consolidated appeals, the Ninth Circuit reversed the district court’s judgments dismissing, as second or successive under 28 U.S.C. Section 2244(b), Petitioner’s third and fourth federal habeas corpus petitions, and remanded. The panel held that Petitioner’s due process, ineffective assistance of counsel, and equal protection claims did not become ripe until his application for resentencing was denied, which occurred well after the district court denied his first and dismissed his second habeas petitions. Because Petitioner could not have raised these claims in his first or second petition, his failure to do so is not an abuse of the writ. Applying Panetti v. Quarterman, 551 U.S. 930 (2007), the panel concluded that the third and fourth habeas petitions were, accordingly, not second or successive under Section 2244(b).

USA V. JOSHUA SCHEU

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-10044

Opinion Date: August 2, 2023

Judge: Hawkins

Areas of Law: Constitutional Law, Criminal Law

Defendant appealed his sentence following a guilty plea to two counts of aggravated sexual abuse of a child in violation of 18 U.S.C. Sections 2241(c), 2246(2) & 1152. He contends that the district court misapplied a sentencing enhancement for abduction and thus improperly added four levels to his sentencing range.


The Ninth Circuit affirmed. The panel wrote that whether it evaluates the plain meaning of the term “abducted” as it appears in the Guideline itself or considers “abducted” to be ambiguous and looks to the definition in the Guidelines’ commentary, it would reach the same conclusion: the victim was “abducted” when the defendant forced her from the roadside where he encountered her into a nearby cornfield to perpetrate the sexual assault.

USA V. OLE HOUGEN

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-10369

Opinion Date: August 1, 2023

Judge: Gould

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted after a jury trial of one count of attempting to commit racially motivated violence. On appeal, Defendant argued that he is entitled to a new trial because the district court held his trial in violation of the public trial right under United States v. Allen, 34 F.4th 789 (9th Cir. 2022). Defendant also contended that his prosecution was unconstitutional because 18 U.S.C. Section 249(a)(1) exceeds Congress’ authority under Section Two of the Thirteenth Amendment.
 
The Ninth Circuit affirmed. The panel held that Defendant forfeited his claim, that plain error review applies, and that the balance of costs in this case counsels against reversal. Applying the deferential test set forth in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the panel wrote that the rationality of concluding that violence (or attempted violence) perpetrated against victims on account of the victims’ race is a badge or incident of slavery is well established. The panel rejected Defendant’s contention that Section 249(a)(1) is subject to heightened scrutiny apart from the Jones test.

Brandon Washington v. Attorney General of the State of Alabama, et al

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-13756

Opinion Date: July 28, 2023

Judge: WILSON

Areas of Law: Constitutional Law, Criminal Law

Petitioner an Alabama prisoner, appeals the district court’s denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. Section 2254. The district judge granted a Certificate of Appealability (COA) on whether trial counsel provided ineffective assistance for failing to convey to Petitioner a favorable plea offer of thirty years’ imprisonment during his capital murder trial.
 
The Eleventh Circuit vacated the district court’s denial of Petitioner’s habeas petition and remanded for an evidentiary hearing. The court found that Petitioner has shown by clear and convincing evidence that the state habeas court’s determinations that Petitioner would not have accepted the plea offer and that the state trial court would not have accepted an agreement between Petitioner and the District Attorney were unreasonable. The court also found that the Alabama Court of Criminal Appeal’s (ACCA’s) determination that Petitioner received the plea offer was unreasonable. Because the court found that the state habeas court’s factual determinations were unreasonable, it held that Petitioner has cleared the hurdle created by AEDPA. Accordingly, because Petitioner cleared the AEDPA hurdle, the court found it best for the district court to conduct an evidentiary hearing on Petitioner’s claim.

Megan Garcia, et al v. Pamela Casey, et al

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-13632

Opinion Date: July 28, 2023

Judge: BRASHER

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

Plaintiffs were arrested by Sheriff’s deputies for stashing their client’s cell phone in a bag only minutes before the police executed a search warrant for child pornography on that phone.  Plaintiffs alleged that District Attorney and Assistant District Attorney ordered the arrest. Following the arrest, the DA, in a statement to the press, and ADA, on the courthouse steps, publicly accused Plaintiffs of concealing evidence of a crime and knowingly possessing child pornography. After Plaintiffs were acquitted they filed this federal lawsuit for unlawful arrest. The district court entered judgment against the Deputies and denied the DA’s and ADA’s motion for summary judgment on the false arrest claim. The district court also denied the district attorneys’ motion for summary judgment on Plaintiffs’ defamation claims.
 
The Eleventh Circuit affirmed in part and reversed in part and remanded to the district court with instructions to enter judgment for Defendants on Plaintiffs’ false arrest claims. The court wrote that on remand, the district court should determine whether to exercise pendent jurisdiction over the defamation claims. The court held that Defendants are entitled to qualified immunity because they had arguable probable cause to arrest Plaintiffs. The court explained it believes “a reasonable officer, looking at the entire legal landscape at the time of the arrests, could have interpreted the law as permitting the arrests here.” However, even if Defendants made their allegedly defamatory statements as part of their official duties, the Supreme Court of Alabama has held that state-agent immunity does not protect against intentional defamation.

USA v. Christopher E. Miles

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-12609

Opinion Date: July 31, 2023

Judge: BRASHER

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g)(1). ACCA imposes a fifteen-year mandatory minimum sentence on violators of Section 922(g)(1) if they have three previous qualifying felonies. Because Defendant has two other qualifying felonies, Defendant’s eligibility for ACCA’s mandatory minimum turns on whether his Florida conviction for unlawful possession of a listed chemical is a “serious drug offense” because it “involves manufacturing . . . a controlled substance.” The district court counted the Florida conviction and sentenced Defendant to the mandatory minimum sentence.
 
The Eleventh Circuit vacated Defendant’s sentence and remanded this case for resentencing. The court held that a conviction under Florida Statutes Section 893.149(1) for possessing a listed chemical with reasonable cause to believe it will be used to manufacture a controlled substance is not a “serious drug offense” under ACCA. The court explained that possessing one ingredient to make a controlled substance with “reasonable cause to believe” that some person will use it to manufacture a controlled substance is too far removed from the conduct of manufacturing itself to satisfy the “necessarily entails” standard.

USA v. Jesus Rodriguez

Court: US Court of Appeals for the Eleventh Circuit

Docket: 20-13534

Opinion Date: August 1, 2023

Judge: JILL PRYOR

Areas of Law: Constitutional Law, Criminal Law

Defendant appeals his sentence for possession with intent to distribute 100 grams or more of heroin and 50 grams or more of methamphetamine. There are four issues on appeal: whether (1) the district court erred in imposing a two-level enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance, under Section 2D1.1(b)(12) of the Sentencing Guidelines, (2) Defendant’s sentence is procedurally and substantively unreasonable, (3) technical malfunctions during Defendant’s sentencing hearing conducted remotely via videoconference violated his Sixth Amendment right to counsel at a critical stage of criminal proceedings, and (4) the district court erred by imposing conditions of supervised release in the written judgment that were not orally pronounced at the sentencing hearing.
 
The Eleventh Circuit affirmed Defendant’s sentence in part, vacated in part, and remanded for limited resentencing as to the conditions of supervised release. The court held that the district court properly applied the enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. Further, the court held that the district court did not impose a sentence that was procedurally or substantively unreasonable. Moreover, the court held that Defendant is not entitled to resentencing because of the videoconference malfunctions. Finally, the district court erred by imposing conditions of supervised release not included in Defendant’s oral sentence. The court explained that the district court’s pronouncement here failed to reference the administrative order or otherwise indicate that the court was adopting conditions of supervised release beyond those mandated by statute.

USA v. Eleanor Milligan

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

Docket: 21-3075

Opinion Date: August 1, 2023

Judge: SRINIVASAN

Areas of Law: Constitutional Law, Criminal Law

Appellant was convicted of wire fraud and other offenses for embezzling over one million dollars from her former employer, Global Management Systems, Inc. On appeal, Appellant sought to set aside both her convictions and her sentence. Appellant contends that the district court erred in admitting evidence of her embezzling from a different employer to prove her intent and lack of mistake concerning the offenses charged in this case. With respect to her sentence, Appellant challenged the district court’s application of a sentencing enhancement for her use of sophisticated means to conceal her scheme, and she submits that her eight-year sentence of imprisonment is unreasonable.
 
The DC Circuit rejected Appellant’s arguments and affirmed her convictions and sentence. The court wrote that Appellant insists that a sophisticated means enhancement was inappropriate because the “most unsophisticated offender” could set up an email address or obtain a mailbox. The court explained that it does not assess the sophistication of a defendant’s concealment actions piecemeal.
 
Here, Appellant did not just set up an email address or a mailbox. Rather, she took those actions as part of an overall scheme to impersonate a former employee so as to enable concealing her offense from GMSI: she set up an email address in the employee’s name and used that account to author and send several emails to GMSI that purported to be from employee, and she obtained a mailbox in the name of a fictitious entity bearing the employee’s name so that she could then obtain checks listing that address for her use in writing checks that appeared to come from employee’s business.

USA v. Johnnie Gamble

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

Docket: 22-3017

Opinion Date: August 1, 2023

Judge: SRINIVASAN

Areas of Law: Constitutional Law, Criminal Law

Appellant was charged with unlawful possession of a firearm by a person who has been convicted of a felony in violation of 18 U.S.C. Section 922(g)(1). He moved to suppress the firearm, contending that it was the fruit of an unlawful seizure. The district court denied the motion, reasoning that Appellant had not been seized until the second time he was told to show his waistband, by which time, in the court’s view, reasonable suspicion supported the seizure.
 
The DC Circuit vacated the denial. The court concluded that Appellant had been seized the first time the officer told Gamble to show his waistband, a statement the district court viewed to be a “demand” or “command” by the officer. The government neither contests that characterization nor attempts to show that there was reasonable suspicion for a seizure at that time. The court noted that while the government “believe that this case presents an opportunity for this Court to re-examine the wisdom of Brodie,”, a panel of the court is bound by Brodie in materially indistinguishable circumstances like those in this case.

Draper v. Honorable Gentry

Court: Arizona Supreme Court

Docket: CR-22-0175-PR

Opinion Date: July 31, 2023

Judge: Per Curiam

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

In this murder case, the Supreme Court established a standard a defendant must satisfy to compel extraction of GPS data by a defendant's third-party agent from a crime victim's automobile for the trial court's in camera inspection and held that remand was required in the instant case.

Defendant was charged with the second-degree murder of Grant Draper, making his brother Lane Draper a victim by virtue of Ariz. Rev. Stat. 13-4401(12), a statute that implements the Arizona Constitution's Victims' Bill of Rights. During plea negotiations and without notice to Lane, Defendant obtained a court order to access GPS data to support his third-party defense identifying Lane as the possible killer and for cross-examination regarding the time Defendant argued he was asleep. The trial court allowed the data to be extracted for a limited in camera interview. Lane filed a petition for special action, which the court of appeals denied. The Supreme Court held (1) a defendant is entitled to discovery from a victim if the defendant seeks evidence of a constitutional dimension and the defendant establishes that the requested discovery is very likely to contain such evidence; and (2) remand was required in this case.

California v. Del Rio

Court: California Courts of Appeal

Docket: D080369(Fourth Appellate District)

Opinion Date: August 2, 2023

Judge: Huffman

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Ramon Del Rio appealed a the trial court’s decision to redesignate robbery as the basis for his conviction after granting Del Rio’s petition to vacate his two first degree murder convictions under Penal Code section 1172.6 (formerly section 1170.95). Del Rio contended the trial court violated his due process rights because he had no notice the court might take this action. He further argued the robbery conviction was not supported by substantial evidence in the record. After review of the trial court record, the Court of Appeal agreed the lack of notice and substantial evidence supporting the robbery conviction warranted reversal. The Court therefore remanded the case for further proceedings.

California v. Suggs

Court: California Courts of Appeal

Docket: C096555(Third Appellate District)

Opinion Date: July 31, 2023

Judge: Stacy E. Boulware Eurie

Areas of Law: Constitutional Law, Criminal Law

Defendant Anterion Suggs appeals a judgment following entry of a plea of no contest to misdemeanor possession of a concealed firearm after the trial court denied his motion to suppress evidence of the firearm and methamphetamine found in his vehicle. On appeal, Defendant contended the trial court erred in denying his motion to suppress, because the detention was unlawfully prolonged. Specifically, defendant claimed that once the arresting officer noticed the proper documentation attached to his vehicle’s rear window and thus learned that the reason he had stopped defendant was invalid, any further detention was unlawful. After review of the trial court record, the Court of Appeal concurred: the detention became unlawful when: (1) the purpose of the stop completely dissipated (when the officer saw the documents in the window and thus realized that defendant had not committed the Vehicle Code violation that was the purpose of the stop); and (2) the officer then made inquiries aimed at finding evidence of ordinary criminal wrongdoing. The judgment was reversed, the conviction was vacated, and the matter was remanded for the trial court to enter a new order granting that motion.

California v. Valle

Court: California Courts of Appeal

Docket: C097090(Third Appellate District)

Opinion Date: July 28, 2023

Judge: Mesiwala

Areas of Law: Constitutional Law, Criminal Law

Defendant Jason Valle appealed restitution order regarding an undamaged cell phone. Valle and his girlfriend M. got into an argument at defendant’s home. The argument turned physical when defendant headbutted M. in the face, causing bleeding and a nasal fracture. M. was able to quickly get out, but she left her purse and new phone behind. Later that month, defendant pled no contest to battery in a dating relationship. On April 19, 2022, defendant returned the phone to M. at his sentencing hearing. A few weeks later at the victim restitution hearing, M. sought $629.99 for her phone. She testified she had intended to get a refund for the phone in that amount, but the refund period had lapsed by the time defendant returned the phone to her. The court awarded her the purchase price of the phone and allowed her to keep the phone. The Court of Appeal concluded the trial court abused its discretion because it overcompensated the victim, and reversed and remanded with one of two options: (1) if the victim has not sold the phone, the court shall hold a hearing on the difference in value of the phone between the day the victim purchased the phone and the day the defendant gave it back to her; or (2) if the victim has sold the phone, the court shall hold a hearing on the difference between the purchase price and the amount for which she sold it. The defendant shall then be ordered to pay that difference.

Carpenter v. Super. Ct.

Court: California Courts of Appeal

Docket: D081640(Fourth Appellate District)

Opinion Date: July 28, 2023

Judge: Buchanan

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

Kelsey Carpenter gave birth to a baby girl at home, alone, after deciding that she would not risk having her child removed from her custody as had happened with her two older children when they tested positive for drugs after being delivered at the hospital. She again used drugs during her pregnancy. After Carpenter’s daughter was born, the baby struggled to breathe, and Carpenter attempted to provide her with CPR. Carpenter also cut the baby’s umbilical cord but did not clamp it, and the umbilical stump continued to bleed. Carpenter bathed, diapered, clothed, and attempted to breastfeed the baby before seemingly passing out. When she woke up, her newborn daughter was dead. Before Health & Saf. Code, § 123467(a) was effective, the State charged Carpenter with implied malice murder and felony child endangerment, contending that Carpenter intentionally chose an unattended at-home delivery, despite being warned of the dangers, in an effort to evade child welfare services and at the risk of her daughter’s life. According to the State, Carpenter’s acts and omissions, including her failure to seek medical assistance after realizing her baby was in distress, caused the baby to bleed to death. Carpenter challenged the superior court’s order denying her motion to set aside the information for lack of probable cause under Penal Code section 995. She contended she was immune from prosecution based on the new law, which went into effect after the preliminary hearing, but before the superior court ruled on her section 995 motion. While the Court of Appeal agreed that Carpenter could not be prosecuted for her decision to have an unattended home birth or any effect that her alleged drug use or lack of prenatal care during pregnancy may have had on her baby, the law did not preclude the State's prosecution for her acts and omissions after her daughter was born alive. The Court therefore denied Carpenter's petition.

In re A.B.

Court: California Courts of Appeal

Docket: A165499(First Appellate District)

Opinion Date: August 3, 2023

Judge: Burns

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

In 2009, A.B., 13 years old, pled no contest to charges and was declared a ward of the juvenile court. The juvenile court successfully terminated his probation and wardship in 2014. Eight years later, A.B. and the County Probation Department filed an unopposed petition to have his juvenile court and public agency records sealed, Welfare and Institutions Code section 781. Since his juvenile adjudication, A.B. had not sustained any criminal convictions, had married and had a child, and had remained steadily employed.

The court granted the petition, finding that A.B. had been rehabilitated and that A.B.’s offenses were not listed in section 707(b). In addition to sealing its own records, the court ordered the five government agencies listed in the petition to seal and ultimately destroy any of A.B.’s juvenile records in their custody. Three months later, A.B. discovered that several public agencies not subject to the original sealing order had retained and could access his juvenile records. A.B. petitioned to seal these additional records, again unopposed. The juvenile court concluded that it lacked the authority to seal additional records after the initial sealing order, acknowledging that, had the additional agencies been listed in A.B.’s first petition, they would have been ordered to seal their records. The court of appeal reversed. Section 781.1 allows a court to grant a petition to seal documents not addressed in an earlier petition.

In re J.P.

Court: California Courts of Appeal

Docket: E080284(Fourth Appellate District)

Opinion Date: August 3, 2023

Judge: Raphael

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

The San Bernardino County District Attorney filed a petition against defendant-appellant J.P. alleging he committed second degree robbery, assault with a firearm and carrying a loaded firearm not registered to him in a vehicle. A court found all three allegations true and sustained the petition. On appeal, J.P. argued Welfare and Institutions Code section 875 precluded commitment to a secure youth treatment facility (SYTF) unless the juvenile’s most recent offense was listed under Welfare and Institutions Code section 707(b), and J.P.’s most recent offense, the gun possession, was not such an offense. The State moved to dismiss the gun possession offense, to which J.P. objected, arguing that the court only had the power to strike the entre petition, not any single allegation. The court granted the State’s motion, dismissed the gun offense, and committed J.P. to an SYTF. Finding no reversible error in the trial court’s judgment, the Court of Appeal affirmed.

P. v. Escobedo

Court: California Courts of Appeal

Docket: B322608(Second Appellate District)

Opinion Date: July 27, 2023

Judge: YEGAN

Areas of Law: Constitutional Law, Criminal Law

The Second Appellate District dismissed two Appellants’ appeals of the trial court’s post-judgment orders. One Appellant purported to appeal from the trial court’s post-judgment order denying his petition to strike two prior prison term enhancements imposed pursuant to former Penal Code 2 section 667.5, subdivision (b) (667.5(b)). In a separate proceeding, the other Appellant purported to appeal from a similar post-judgment order.
 
The Second Appellate District dismissed both appeals, holding that the orders appealed from are non-appealable because the trial court lacked jurisdiction to adjudicate the petitions. The court explained that Appellants’ prior prison terms had been served for offenses that were not sexually violent. After the imposition of the prior prison term enhancements, former section 667.5(b) was amended to limit its application to prison terms served for sexually violent offenses. Appellants contend the trial court erroneously denied their petitions to strike the now invalid prior prison term enhancements. But, the court explained that the Legislature has not authorized their appeals from the trial court’s order. “'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’”

People v. Gruis

Court: California Courts of Appeal

Docket: A165298(First Appellate District)

Opinion Date: August 1, 2023

Judge: Fujisaki

Areas of Law: Criminal Law

Menlo Park police officers responded to a domestic disturbance call from M.O., who stated she was dating Gruis and had discovered nude pictures of her 13-year-old daughter, C.V., on one of his electronic devices. Officers obtained a search warrant and seized several of Gruis’s devices. One USB drive contained 60 images and three video recordings of C.V. in various states of undress. The laptop’s hard drive contained “over 500 still images and videos of [C.V.] or [C.V.’s] mother or her sister in their home, in the bedroom, and the bathroom, throughout the house in various stages of dress or undress.”

Gruis pleaded no contest to felony possession of child pornography in exchange for dismissal of a charge of disabling a telephone line and a maximum sentence of one year in county jail. The trial court suspended the imposition of sentence, placed Gruis on two years’ probation, and ordered him to serve one year in county jail. As a condition of probation, Gruis was ordered: “You may not possess any pornographic magazines, videos, pictures or written material or images unless prescribed by a therapist during the course of your treatment.” The court of appeal remanded, finding the term “pornographic” unconstitutionally vague.

Abruquah v. State

Court: Maryland Supreme Court

Docket: 10/22

Opinion Date: July 14, 2023

Judge: Fader

Areas of Law: Criminal Law

The Court of Appeals reversed the judgment of the circuit court convicting Defendant of first-degree murder and related handgun offenses, holding that the circuit court abused its discretion in permitting a firearms examiner to testify, without qualification, that bullets left at a murder scene were filed from a gun Defendant had acknowledged was his, and the error was not harmless.

On appeal, Defendant argued that the circuit court abused its discretion in admitting the firearms identification testimony based on testimony, reports, and studies that called into question the reliability of firearms identification analysis. The Court of Appeals agreed and reversed the case for a new trial, holding that the circuit court (1) did not abuse its discretion in ruling that the firearms examiner could testify about firearms identification generally and other information; but (2) erred in permitting the examiner to opine without qualification that the crime scene bullets were fired from Defendant's firearm.

Walker v. State

Court: Maryland Supreme Court

Docket: 19/22

Opinion Date: July 28, 2023

Judge: Eaves

Areas of Law: Criminal Law

The Supreme Court remanded this case for additional fact-finding, holding that this Court declines to reach the merits of the questions for which the Court granted certiorari because additional fact-finding was required as to the origin of a DNA sample collected pursuant to a search warrant.

During an investigation in another homicide case the State collected a DNA sample from Petitioner pursuant to a search warrant and developed a DNA profile of Petitioner. The State later charged Petitioner in connection with the homicide but later nol prossed the charges. A DNA profile developed from evidence collected at the crime scene in the instant case matched Petitioner's DNA profile from previous case, and Petitioner was charged with attempted first-degree murder. Petitioner filed a motion to suppress, arguing that his previously-taken DNA sample should have been expunged under section 2-511 of the Public Safety Article. The circuit court denied the motion, concluding that section 2-511 only applies to "arrestee and convicted-offender DNA samples" and not samples gathered pursuant to a search warrant. The Supreme Court held that remand was required because the record was unclear as to whether the circuit court determined that the DNA sample was recovered pursuant to a search warrant or was a so-called arrestee sample or forensic sample.

Commonwealth v. Duguay

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13312

Opinion Date: July 28, 2023

Judge: Cypher

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

The Supreme Judicial Court affirmed the judgment of the superior court denying Defendant's motion for a new trial following his successful motion for postconviction forensic and deoxyribonucleic acid (DNA) analysis pursuant to Mass. Gen. Laws ch. 278A, 2, holding that there was no error in the denial of Defendant's motion for a new trial.

A jury convicted Defendant of murder in the first degree on a theory of extreme cruelty or atrocity, and the Supreme Court affirmed. Following multiple pro se motions, Defendant filed the instant motion for postconviction DNA analysis, which the court allowed. Defendant then filed a motion for a new trial. The motion judge denied the motion, concluding that the new evidence did not case real doubt on the justice of Defendant's conviction. Defendant then filed a petition pursuant to Mass. Gen. Laws ch. 278, 33E for leave to appeal. A single justice granted the petition. The Supreme Judicial Court affirmed the denial of Defendant's motion for a new trial, holding that Defendant was not entitled to relief on his allegations of error.

Commonwealth v. Pond

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13309

Opinion Date: July 31, 2023

Judge: Budd

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the order of a single justice of the court denying the Commonwealth's petition asking that the single justice reverse a superior court judge's order granting Defendant limited access to the alleged victim's apartment in order to prepare for trial, holding that there was no error.

Defendant was charged with attempted murder and other crimes stemming from allegations that he strangled and beat the alleged victim in their shared apartment. After Defendant was provided with preliminary discovery including photographs of the alleged victim's apartment Defendant moved for access to the crime scene for defense counsel to capture additional details. The superior court judge allowed the motion, but the alleged victim denied access to certain rooms. Thereafter, the motion judge granted Defendant access to all rooms of the apartment under certain conditions. The Commonwealth then filed a petition under Mass. Gen. Laws ch. 211, 3 seeking reversal of the grant of Defendant's second motion. The single justice denied the petition. The Supreme Judicial Court affirmed, holding that there was no abuse of discretion or error of law in the denial of the Commonwealth's petition.

Michigan v. King

Court: Michigan Supreme Court

Docket: 162327

Opinion Date: July 28, 2023

Judge: Bolden

Areas of Law: Constitutional Law, Criminal Law

Frank King was charged as a fourth-offense habitual offender with breaking and entering. Before trial, defendant moved to proceed in propria persona and to terminate his relationship with his appointed counsel. The trial court granted defendant’s motion but kept appointed counsel to serve as defendant’s advisory counsel. On the first day of trial, defendant pleaded no contest in exchange for an agreement pursuant to Michigan v. Cobbs, 443 Mich 276 (1993), capping his minimum sentence at 72 months, to be served concurrently with a sentence defendant was already serving in an unrelated case. Defendant’s advisory counsel apparently handled details of the plea negotiations, and advisory counsel indicated during sentencing that he had worked out the Cobbs agreement with the prosecution. Defendant was sentenced in accordance with the Cobbs agreement, but he later filed a delayed application for leave to appeal in the Court of Appeals. Defendant argued that his conviction should have been reversed because he was denied the right to counsel at critical stages of the proceeding because his waiver of counsel was invalid. The Court of Appeals affirmed in an unpublished per curiam opinion. The Michigan Supreme Court concluded defendant’s waiver of his right to counsel was indeed invalid, and he was deprived of counsel during critical stages of the proceedings, requiring automatic reversal.

Michigan v. Posey

Court: Michigan Supreme Court

Docket: 162373

Opinion Date: July 31, 2023

Judge: Bolden

Areas of Law: Constitutional Law, Criminal Law

Defendant Dametrius Posey and a codefendant were tried jointly before a jury on multiple counts of assault with intent to murder; assault with intent to commit great bodily harm less than murder; carrying a weapon with unlawful intent; being a felon in possession of a firearm; and possessing a firearm during the commission of a felony. While the appeal was pending, defendant and the prosecution moved jointly to remand for resentencing because of several errors during the sentencing hearing. The Court of Appeals granted the motion and remanded for resentencing. The trial court ultimately imposed the same minimum sentence as defendant’s original sentence, 264 months, which was within the revised guidelines range. The Court of Appeals then affirmed defendant’s convictions and sentence. The Michigan Supreme Court found this case "unique: Unlike in prior cases, the witness who identified defendant at trial did not identify defendant before trial; the witness’s first recorded identification of defendant as an assailant occurred at trial. In fact, the witness identified different individuals as possible assailants before trial. The Court of Appeals concluded that the reliability criteria could not be applied given that there was no improper law-enforcement activity and no pretrial identification of defendant obtained through an unnecessarily suggestive pretrial process." The Supreme Court disagreed with the appellate court on that point and vacated that portion of its opinion. However, the Court nonetheless affirmed defendant’s convictions because he has not shown plain error affecting his substantial rights. The Court opined on defendant's request for review of his sentence: challenges to within-guidelines sentences may be reviewed for reasonableness. The case was remanded to the appellate court for such reasonableness review. "n all other respects, leave to appeal is denied because we are not persuaded that the questions presented should be reviewed by this Court."

Michigan v. Stewart

Court: Michigan Supreme Court

Docket: 162497

Opinion Date: July 31, 2023

Judge: Clement

Areas of Law: Constitutional Law, Criminal Law

Joshua L-J Stewart was convicted by jury on three counts of armed robbery; assault with intent to commit murder; receiving and concealing stolen property valued between $1,000 and $20,000; and possession of a firearm during the commission of a felony. Defendant allegedly aided and abetted two other individuals in two armed robberies by serving as the getaway driver. Two of the victims were shot by the perpetrators during the robberies, and one of the victims died as a result of his injuries. Defendant was arrested and questioned after he drove one of the perpetrators to the hospital in the vehicle used in the robberies. Before trial, defendant moved to suppress statements he made during his police interview, arguing that the statements were involuntary because of coercive interview techniques and promises of leniency by the interrogating officers. The Michigan Supreme Court reversed the trial court's denial of defendant's motion to suppress evidence given in the police interview. The totality of the circumstances of defendant’s interrogation, including his age, the timing of the interview, the officers’ references to leniency, the officers’ use of falsehoods, and the officers’ overall tone and use of language, created an environment in which defendant’s free will was overborne and the statements he gave were involuntary. "The use of these statements at trial violated defendant’s constitutional rights, and he was entitled to a new trial."

Michigan v. Yeager

Court: Michigan Supreme Court

Docket: 164055

Opinion Date: July 27, 2023

Judge: Bernstein

Areas of Law: Constitutional Law, Criminal Law

Defendant Menayetta Yeager was convicted by jury of first-degree murder, and carrying a firearm during the commission of a felony in connection with the shooting death of her boyfriend, Jonte Brooks. In 2017, Brooks punched defendant in the face with a gun when defendant informed him, while they were sitting in defendant’s minivan, that she no longer wanted to be in a relationship with him. Brooks then pulled defendant out of the van by her hair and repeatedly hit her, after which he got back into defendant’s van and used it to chase after her, attempting to run her over before eventually driving away. A neighbor, who witnessed some of the encounter, went over to defendant and agreed to take her to try to retrieve her van. While defendant was talking on her cellphone with Brooks to make those arrangements, Brooks repeatedly threatened to kill both defendant and the neighbor. Ultimately, Brooks pulled into a gas station behind the neighbor’s vehicle, defendant got out of the neighbor’s vehicle during the continued argument with Brooks, and defendant pulled out a gun and shot at Brooks multiple times. Brooks ultimately died from a bullet wound to his chest. After appealing her conviction, the Court of Appeals remanded to the trial court for a Ginther hearing to determine whether trial counsel’s failure to request an instruction on voluntary manslaughter as a lesser included offense to murder constituted ineffective assistance of counsel. On remand, trial counsel testified that he did not request a voluntary manslaughter instruction because he believed that instruction to be mutually exclusive of the self-defense theory asserted at trial. The court then concluded that trial counsel erred by not requesting the voluntary manslaughter instruction because, had the instruction been requested, a reasonable juror could have found defendant was guilty of voluntary manslaughter rather than first-degree murder. For that reason, the trial court granted a new trial. After remand, the prosecution cross-appealed the trial court order, arguing that trial counsel was not ineffective, and that even if he was, defendant had not been prejudiced. Finding no reversible error in the appellate court's judgment, the Michigan Supreme Court affirmed the grant of a new trial.

State v. Bell

Court: Minnesota Supreme Court

Docket: A20-1638

Opinion Date: July 26, 2023

Judge: Thissen

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

The Supreme Court reversed the judgment of the court of appeals denying Defendant's motion for a new trial, holding that the record was insufficient to determine whether Defendant's right to a public trial was violated due to restrictions put in place by the district court arising from the COVID-19 pandemic.

In December 2019, Defendant was charged with first-degree aggravated robbery. Because of the restrictions placed on trials due to the pandemic the county submitted a trial plan that excluded all spectators from the courtroom but included a one-way video feed that would broadcast the trial in an adjacent courtroom. The trial court overruled Defendant's objection, and the trial proceeded. After Defendant was convicted he moved for a new trial. The court of appeals denied the motion. The Supreme Court reversed, holding that additional findings were required on the decision to close the courtroom before it could be determined whether Defendant's public trial right was violated.

State v. Tapper

Court: Minnesota Supreme Court

Docket: A22-0161

Opinion Date: July 26, 2023

Judge: G. Barry Anderson

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

In this interlocutory appeal, the Supreme Court affirmed the decision of the court of appeals affirming the judgment of the district court granting Defendant's motion to suppress statements recorded on a body-worn camera, holding that the district court did not abuse its discretion in determining that the statements should be suppressed.

In response to a domestic disturbance 911 call law enforcement officers found A.H. locked out of her apartment while Defendant was inside, and A.H. told the officers that Defendant had assaulted her both in the present and in the past. These statements were recorded by an officer's body-worn camera. Defendant was subsequently charged with one count of misdemeanor domestic assault. The district court granted Defendant's motion to suppress the body-worn camera recording on the grounds that their admission would violate Defendant's constitutional right to confrontation. The court of appeals affirmed. The Supreme Court affirmed, holding that the district court (1) did not abuse its discretion in determining that A.H.'s statements did not qualify as excited utterances under Minn. R. Evid. 802(2); and (2) properly suppressed the statements as inadmissible hearsay.

Redd v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2022-KA-00175-SCT

Opinion Date: July 27, 2023

Judge: beam

Areas of Law: Constitutional Law, Criminal Law

Daryl Redd was indicted on two counts of aggravated assault. A jury found Redd guilty of the first count—aggravated assault, causing bodily injury to April Stevenson by shooting her in the leg with a deadly weapon. The jury found Redd not guilty of the second count—aggravated assault, attempting to cause bodily injury to Jordan Gaston by shooting at him with a deadly weapon. Finding no reversible error in the trial court judgments, the Mississippi Supreme Court affirmed Redd's convictions and sentence.

Young v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2021-KA-00940-SCT

Opinion Date: July 27, 2023

Judge: Chamberlin

Areas of Law: Constitutional Law, Criminal Law

Earl Young was indicted for gratification of lust and was sentenced to fifteen years without the possibility of parole as a habitual offender. The trial court held a sentencing hearing; prior to the hearing, a “Pre-Post Sentence Investigation” report was submitted to the court, containing a section detailing Young’s prior criminal record. The report did not contain any information regarding the length of Young’s prior sentences for these felony convictions or the dates on which the incidents took place. Based on the report, the court found that Young had been convicted of two prior felonies and, therefore, sentenced Young as a habitual offender. On appeal, Young challenged the sufficiency of both the indictment and the evidence presented at sentencing used as grounds for his sentence. The Mississippi Supreme Court found Young's indictment argument was not preserved for appeal: because the indictment was defective as to its form and could have been amended in the trial court, Young’s failure to object at trial waived the issue, and Young was barred from raising it for the first time on appeal. The Court found that the pre-post sentence investigation report only included generalities regarding Young’s alleged prior convictions. It did not specify the statutes under which Young was convicted, the term of any sentences or whether the convictions clearly arose out of separate incidents at different times. "In fact, that information is completely absent from the record in this case." Because the State failed to prove that Young had at least two prior felony convictions that were brought and arose out of separate incidents at different times and that Young was sentenced to separate terms of at least one year for the prior convictions, Young was improperly sentenced as a habitual offender. Therefore, the Court reversed Young’s habitual offender sentence and remanded the case for his resentencing as a nonhabitual offender.

State v. Mountain Chief

Court: Montana Supreme Court

Citation: 2023 MT 147

Opinion Date: August 1, 2023

Judge: Gustafson

Areas of Law: Criminal Law

The Supreme Court affirmed the jury verdict and subsequent judgment of conviction and sentencing order issued by the district court convicting Defendant of sexual abuse of children and sentencing her to 100 years at the Montana Women's Prison with fifty years suspended for knowingly selling her four-year-old daughter, J.L.D., to a man for sex, holding that there was no error.

Specifically, the Supreme Court held that the district court (1) did not err in excluding evidence pursuant to the Rape Shield statute that J.L.D. was abused by other men; (2) did not abuse its discretion in admitting evidence of other uncharged bad acts; (3) did not violate Defendant's right to a fair trial by soliciting testimony from an investigating detective; (4) did not violate Defendant's constitutional right to confrontation by requiring that litigants, witnesses, and jurors wear masks or face shields during trial; (5) did not abuse its discretion in limiting voir dire as it did; and (6) did not abuse its discretion by denying Defendant's motion for a mistrial based on the State's failure to disclose an investigative note.

State v. Pehringer

Court: Montana Supreme Court

Citation: 2023 MT 146

Opinion Date: August 1, 2023

Judge: James A. Rice

Areas of Law: Criminal Law

The Supreme Court affirmed in part and reversed in part the judgment of the district court adjudging Defendant guilty of five offenses, holding that the district court lacked jurisdiction over counts one, four, and five, and therefore, Defendant's convictions on those counts were improper.

Defendant was adjudged guilty of misdemeanor assault (count one), felony assault on a peace officer or judicial officer (count two) and three counts of misdemeanor assault with a bodily fluid (counts three, four, and five). Defendant pled guilty to the misdemeanor charges and was found guilty by a jury on the felony charge. The Supreme Court reversed in part, holding (1) the district court erred by retaining jurisdiction over counts one, four and five; and (2) remand was required for the district court to amend the charge imposed with the sentence for count two from $200 to $20 and for count three from $20 to $15.

State v. Brennauer

Court: Nebraska Supreme Court

Citation: 314 Neb. 782

Opinion Date: July 28, 2023

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court vacated Defendant's convictions and sentences on four felony charges after a jury trial during which Defendant raised a defense of not responsible by reason of insanity, holding that there was plain error in the jury instructions, requiring reversal.

After a jury trial, Defendant was found guilty of possession of a deadly weapon by a prohibited person, second degree assault on an officer, first degree attempted assault on an officer, and use of a deadly weapon to commit a felony and sentenced to not less than fifty-seven nor more than seventy-nine years' imprisonment. The Supreme Court vacated the convictions and remanded the case, holding (1) Neb. Rev. Stat. 29-2203(4) does not affect this Court's precedent regarding settled insanity; and (2) the jury was not properly instructed as to settled insanity, and the jury instructions prejudicially affected Defendant's substantial rights, requiring reversal.

New Jersey v. Allen

Court: Supreme Court of New Jersey

Docket: A-55-21

Opinion Date: August 2, 2023

Judge: Anne M. Patterson

Areas of Law: Constitutional Law, Criminal Law

At issue in this appeal before the New Jersey Supreme Court was whether defendant Dante Allen was denied a fair trial because the trial court permitted a detective to present lay opinion testimony in which he narrated a video recording. According to defendant’s trial testimony, he was carrying a handgun he had recently acquired after a confrontation with a gang member made him fear for his safety. Officer Terrence McGhee suspected defendant had a weapon based on his behavior when McGhee passed in a patrol car, approached defendant and asked to speak. According to McGhee, defendant ran into a vacant lot, turned around, raised his gun, and fired at McGhee. McGhee testified that he then fired at and wounded defendant. Defendant was ultimately arrested and taken to a hospital. Shortly thereafter, Detective Michael Campanella, the lead forensic detective in the case, arrived at the scene. He inspected the gun and reviewed two surveillance videos from nearby buildings. During defendant’s trial, McGhee testified, in part narrating the videos as they were played for the jury. Campanella testified later, describing the steps taken in the investigation. After the State indicated its intent to replay the surveillance videos that the jury had already viewed during McGhee’s testimony, defense counsel objected. The State countered that Campanella would explain how the video “led him [to find] evidence, such as the shell casings and the bullets.” The trial court overruled the objection. The jury convicted defendant of attempted murder and other offenses. The Appellate Division found that the trial court had abused its discretion when it permitted Campanella to narrate the surveillance video but held that the error was harmless and affirmed. The Supreme Court disagreed with the Appellate Division’s conclusion that the trial court should have excluded all the detective’s narration of the surveillance video. The Supreme Court found the trial court properly permitted the detective to testify about the manner in which he used the surveillance video to guide his investigation. But the detective’s testimony opining that the video showed defendant turning and firing his weapon should have been excluded from evidence. However, the Court found that error was harmless given the strength of the State’s evidence.

New Jersey v. Burney

Court: Supreme Court of New Jersey

Docket: A-14-22

Opinion Date: August 2, 2023

Judge: Pierre-Louis

Areas of Law: Constitutional Law, Criminal Law

Rosette Martinez was home with her daughter and her daughter's friend on Christmas Day in 2015 when she heard footsteps coming up the stairs. A man opened the door and stated, “I’m here for your dad, George,” leading her to believe he was there to fix something at the house. Martinez believed she recognized the intruder as someone who had recently done contracting work on their house. He then pulled out a “long gun,” instructed the women to lay face down, tied their hands behind their backs, and began to rifle through possessions. At some point during the robbery, the women heard the intruder’s phone ring and announce a “[c]all from” a name. The daughter testified that she heard the intruder’s phone announce an “incoming text” message from a name she did not recognize, but the message was not read aloud. All three women testified that they heard clicking noises that indicated to them that the intruder was taking pictures with his phone. After the intruder left, the women untied themselves and called 911. In this appeal, the issue presented for the New Jersey Supreme Court was whether it was cumulative error for the trial court to admit two pieces of evidence: expert testimony that defendant Roberson Burney’s cell phone was likely near a crime scene based on a “rule of thumb” approximation for cell tower ranges in the area, and a first-time in-court identification of defendant by a witness who had previously identified another person as the perpetrator in a photo lineup. After review of the trial court record, the Supreme Court concluded the trial court erred in admitting both the testimony placing defendant’s phone at or near the crime scene and the first-time in-court identification. Those errors, in combination, deprived defendant of a fair trial.

New Jersey v. Watson

Court: Supreme Court of New Jersey

Dockets: A-2/3-22, A-23-22

Opinion Date: August 2, 2023

Judge: Stuart Rabner

Areas of Law: Constitutional Law, Criminal Law

In January 2017, an individual wearing a baseball cap and gloves robbed a bank in North Brunswick, New Jersey. Bank surveillance footage captured the entire 57-second robbery. In November 2017, defendant was charged in three other robberies after his former girlfriend, “Joan,” identified him in a wanted photo from one of those robberies. After the office investigating the other robberies notified police about defendant, he became a suspect in the North Brunswick robbery as well. In September 2018, a detective showed the teller six photos, one at a time, and asked if he could identify the person who robbed the bank. The teller picked a photo of someone other than defendant and said at trial that he was 75-90 percent sure of the identification. At trial, the prosecutor asked the teller if he could identify the robber in court. The teller identified defendant, who was seated in between his lawyers at counsel table. The teller said he was “maybe like . . . 80 percent” sure. The prosecution did not provide advance notice of the in-court identification, and defense counsel did not object to it. During cross-examination, the teller revealed that he had met with the prosecutor prior to trial and that the prosecutor had “informed [him] that the individual who was accused of committing this robbery is in court seated at the defense table.” Joan also testified at trial. She was shown two still photos from the bank surveillance video and testified she was 100 percent positive that each depicted defendant. A police sergeant testified about the investigation, in which he was asked a series of questions while the video was played for the jury. The more open-ended questions invited and led to more open-ended narrative responses. A jury found defendant guilty of robbery. The Appellate Division affirmed his conviction. The New Jersey Supreme Court reversed, finding: (1) the inherently suggestive nature of first-time in-court identifications, conducted in front of a jury, risks depriving defendants of their due process rights; and (2) narration evidence, or "running commentary" on video evidence by someone who has merely studied a recording, violated defendant's right to confrontation. Judgment was reversed and the matter remanded for a new trial.

Williams v. New Jersey State Parole Board

Court: Supreme Court of New Jersey

Docket: A-26-22

Opinion Date: August 3, 2023

Judge: Douglas M. Fasciale

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

Leander Williams pled guilty to non-violent third- and fourth-degree drug offenses. His primary parole eligibility date was approximately eight months after the New Jersey Earn Your Way Out Act (EYWO Act) became effective. During his prison sentence, Williams successfully completed multiple alcohol and drug rehabilitation programs, including an 87-day Alcoholics Anonymous program and a residential program in the "Bo Robinson" for 187 days. After the Bo Robinson program and while remaining in the custody of the Department of Corrections, Williams resided at the Harbor Residential Community Release Program for 90 days for further rehabilitation. Approximately one month before his primary parole eligibility date, a panel of the Parole Board certified that Williams met the “criteria for administrative parole release” under the EYWO Act, which entitled him to automatic administrative parole release. The panel imposed 21 general parole conditions and the “special” condition that Williams participate in an RTP for a minimum term of 180 days. Williams administratively appealed to the Parole Board, arguing that N.J.S.A. 30:4-123.59 precluded the panel from requiring an RTP as a condition of his administrative parole release under the EYWO Act. The panel upheld the imposition of residential treatment but recommended that the Board reduce his mandated “term” of 180 days to 90 days. Williams appealed, and the Appellate Division affirmed the Parole Board’s determination. The New Jersey Supreme Court reversed, finding that the Parole Board could not mandate participation in an RTP for inmates administratively paroled under the EYWO Act. "Although N.J.S.A. 30:4-123.59 generally authorizes the Parole Board to impose parole conditions on adult inmates who have been administratively released under the EYWO Act, an RTP is not among the conditions that can be imposed in that setting."

New Mexico v. Lopez

Court: New Mexico Supreme Court

Citation: 2023-NMSC-011

Opinion Date: March 30, 2023

Judge: Zamora

Areas of Law: Constitutional Law, Criminal Law

The New Mexico Supreme Court addressed whether the tolling provision contained in Rule 7-506.1(D) NMRA of the Rules of Criminal Procedure for the Metropolitan Courts applied to cases dismissed without prejudice by the court in addition to cases voluntarily dismissed by the prosecution. In 2018, Defendant Tito Lope was arraigned in the metropolitan court on charges including aggravated driving while intoxicated (DWI) and reckless driving. Rule 7-506(B) required Defendant’s trial to commence within 182 days of arraignment (July 20, 2018), assuming that no extensions of time were granted under Rule 7-506(C) and that no tolling was warranted under Rule 7-506.1(D). The case was initially set for trial on April 30, 2018, but continued to June 4, 2018. The arresting officer did not appear on June 4, and the State could not explain his absence. The State requested a continuance; Defendant moved to dismiss. The metropolitan court dismissed the case without prejudice because the State was not prepared for trial. On June 14, 2018, the State filed a notice of refiling of the dismissed complaint. Several days later, the metropolitan court sent a notice setting trial for July 18, 2018, but on the following day issued sua sponte a new notice to the parties resetting trial for July 24, 2018. One day before the scheduled trial date, Defendant filed a motion to dismiss with prejudice for failure to prosecute under Rule 7-506(B), arguing that the State’s deadline to try Defendant was July 20. At the July 24 trial setting, Defendant arguing the tolling provision of Rule 7-506.1(D) applied only to voluntary dismissals, and that to apply the tolling provision in circumstances where the court dismisses a case as a sanction against the State would allow the State to benefit from its own mistake. The metropolitan court agreed with the State and concluded that the 182-day rule was tolled for ten days under Rule 7-506.1(D), extending deadline to bring Defendant to trial to July 30, 2018. After review, the Supreme Court held the tolling provision applied with equal force to cases dismissed by the court and to cases voluntarily dismissed by the prosecution and conclude that, with the benefit of the tolling provision here, the time for the State to bring Defendant to trial did not expire before Defendant entered into his conditional plea agreement. The Court therefore affirmed Defendant’s conviction.

New Mexico v. Rodriguez

Court: New Mexico Supreme Court

Citation: 2023-NMSC-004

Opinion Date: February 27, 2023

Judge: Barbara J. Vigil

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

Defendant Christopher Rodriguez pleaded guilty to felony offenses committed when he was sixteen years old under a plea and disposition agreement, and following an amenability hearing, the district court imposed an adult sentence. Defendant appealed the amenability determination, and on its own motion, the Court of Appeals held that under the plea and disposition agreement, Defendant waived his right to appeal. The New Mexico Supreme Court granted certiorari to determine whether a juvenile waives the right to appeal an amenability determination by entering into a plea and disposition agreement. To this, the Court held that the right was not waived, reversed the Court of Appeals, and remanded the case to the Court of Appeals to decide Defendant’s appeal on the merits.

DOCR v. Louser, et al.

Court: North Dakota Supreme Court

Citation: 2023 ND 143

Opinion Date: August 2, 2023

Judge: Jensen

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

The Department of Corrections and Rehabilitation (“DOCR”) petitioned the North Dakota Supreme Court to exercise its original supervisory jurisdiction to direct the Honorable Judge Stacy Louser (hereinafter “district court”) to amend a portion of a criminal judgment imposing probation as part of a sentence for a class B misdemeanor and requiring the DOCR to supervise the probation. The DOCR argued it does not have statutory authority to supervise probation when the underlying charge was a class B misdemeanor. The DOCR requested the criminal judgment be amended to relieve the DOCR from the obligation to supervise the probation. Without deciding whether the district court has the authority to require a defendant to be supervised by the DOCR as part of a sentence imposed for a class B misdemeanor, the Supreme Court concluded the DOCR did have the authority to provide the supervision and declined to exercise supervisory jurisdiction.

North Dakota v. Larsen

Court: North Dakota Supreme Court

Citation: 2023 ND 144

Opinion Date: August 2, 2023

Judge: Douglas A. Bahr

Areas of Law: Constitutional Law, Criminal Law

Nicholas Larsen appealed orders revoking probation entered in three criminal cases. Larsen argued the district court imposed illegal sentences. In November 2020, the district court entered judgment in criminal case no. 18-2019-CR-02518 on four C felony-controlled substance violations, sentencing Larsen to 36 months’ imprisonment, all suspended except 224 days, on each count and placing him on two years of supervised probation. The same day, the court entered judgment in criminal case no. 18-2019-CR-02733 on two C felony-controlled substance violations, sentencing Larsen to 360 days’ imprisonment, all suspended except 224 days, on each count and placing him on two years of supervised probation. Again on the same day, the court entered judgment in criminal case no. 18-2020-CR-00676 on two C felony-controlled substance violations, sentencing Larsen to 36 months’ imprisonment, with all suspended except 184 days, on each count and placing him on two years of supervised probation. The State filed the underlying petitions for revocation on April 20, 2022 in all three cases, alleging violations occurred beginning in November 2021 through April 2022. In November 2022, the district court held a revocation hearing and Larsen admitted to all six allegations in the petitions. Upon revocation, the court resentenced Larsen to 36 months’ imprisonment with credit for the respective time served. The sentences were concurrent on the three cases on appeal, but consecutive to a newly filed case, case no. 09-2022-CR-02257, a Cass County controlled substance possession with intent conspiracy conviction. The North Dakota Supreme Court determined Larsen’s criminal convictions and sentencing occurred prior to a August 2021 amendment to the law under which he was charged. Applying the new version of the statute to Larsen’s November 23, 2022 revocations and resentencing would be a retroactive application of the August 2021 amendment to resentence Larsen to a greater penalty than he could have been resentenced to before the statute’s amendment. The Court affirmed the orders for revocation in criminal case nos. 18-2019-CR- 02518 and 18-2020-CR-00676. The Court reversed and remanded for resentencing in criminal case no. 18-2019-CR-02733.

State ex rel. Sands v. Lake County Common Pleas

Court: Supreme Court of Ohio

Citation: 2023-Ohio-2599

Opinion Date: August 2, 2023

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the of the court of appeals dismissing Appellant's petition for a writ of habeas corpus, holding that Appellant did not comply with Ohio Rev. Code 2969.25(C).

Defendant was found guilty on multiple felony counts and sentenced to twenty years in prison. While incarcerated, Defendant filed a petition for a writ of habeas corpus. The court of appeals granted the warden's motion to dismiss on the grounds that, among other things, Defendant's claim failed to comply with Ohio Rev. Code 2969.25(C). The Supreme Court affirmed, holding that the court of appeals did not err in finding Defendant's noncompliance with section 2969.25(C) to be a basis for dismissal.

State v. Pretty Weasel

Court: South Dakota Supreme Court

Citation: 2023 S.D. 41

Opinion Date: August 2, 2023

Judge: Myren

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction of ten counts of sexual contact with a child under age sixteen and one count of first-degree rape, holding that the State's failure to notify Defendant that Debra Hughes, a mental health practitioner who had served as the victim's counselor, would give expert testimony did not prejudice Defendant.

Specifically, the Supreme Court held (1) Defendant preserved expert witness issues for appellate review; (2) Hughes' testimony constituted an expert testimony requiring advance notice; (3) the circuit court abused its discretion by allowing the State to present expert witness testimony in violation of its pretrial order, but the admission of that testimony did not constitute prejudice; and (4) Hughes' testimony did not constitute improper bolstering of the victim's testimony.

Washington v. Rivers

Court: Washington Supreme Court

Docket: 100,922-4

Opinion Date: August 3, 2023

Judge: Debra Stephens

Areas of Law: Constitutional Law, Criminal Law

Petitioner Paul Rivers, a Black man, was convicted on two criminal charges in King County, Washington by a jury drawn from a panel that lacked any Black potential jurors. Rivers argued this venire, as well as certain aspects of the King County jury selection system that produced this venire, violated his state and federal fair cross section rights. “No one in this case disputes that jury diversity is lacking in Washington and that more can and must be done to promote juror diversity statewide.” Because Rivers did not show that the Washington Constitution required the heightened test he proposed for assessing fair cross section claims, the Court analyzed his claim using the existing Sixth Amendment framework, and that Rivers’ venire and King County’s jury selection system satisfied constitutional minimums. The case was remanded for resentencing, because the Court found Rivers was entitled to the benefit of RCW 9.94A.647, which no longer allowed a persistent offender life sentence based on prior second-degree robbery convictions.

Berry v. State

Court: Wyoming Supreme Court

Citation: 2023 WY 75

Opinion Date: July 28, 2023

Judge: Fenn

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

The Supreme Court affirmed Defendant's conviction of one count of aggravated cruelty to animals, holding that Defendant was not entitled to relief on his allegations of error.

Specifically, the Supreme Court held (1) Defendant abandoned his argument that the district court erred when it allowed his wife to invoke spousal privilege in the presence of the jury; (2) the district court did not abuse its discretion when it admitted testimony and evidence from a witness who was not disclosed pretrial; (3) Defendant was not prejudiced by prosecutorial misconduct; and (4) Defendant failed to satisfy the plain error test as to his argument that the district court violated his right against self-incrimination under the Federal and Wyoming Constitutions when it ordered him to participate in the preparation of a presentence investigation as a condition of his bond.

Mills v. State

Court: Wyoming Supreme Court

Citation: 2023 WY 76

Opinion Date: July 31, 2023

Judge: Kautz

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

The Supreme Court affirmed Defendant's conviction of ten sex crimes against two sisters, A.S. and T.S., holding that Defendant was not entitled to relief on his allegations of error.

The State charged Defendant with a total of twenty-two crimes against A.S. and T.S. The jury convicted him of ten of the charges, and the district court sentenced him to seventy-one to eighty-five years in prison. The Supreme Court affirmed, holding (1) Defendant failed to establish that the State violated his right to due process of law under Brady or Giglio; (2) Defendant did not show that his counsel performed deficiently or that his defense was prejudiced by counsel's actions at trial; and (3) the State presented sufficient evidence to support Defendant's convictions for the first-degree sexual assault against T.S.