Guardado v. United States

Court: US Court of Appeals for the First Circuit

Docket: 21-1713

Opinion Date: August 7, 2023

Judge: Jeffrey R. Howard

Areas of Law: Criminal Law

The First Circuit affirmed the judgment of the district court denying Petitioner's petition filed pursuant to 28 U.S.C. 2255 seeking to vacate, set aside, or correct his sentence, holding that the district court did not err or abuse its discretion in denying the petition.

After Petitioner pleaded guilty to seven counts of being a felon in possession of ammunition and/or firearms in violation of 18 U.S.C. 922(g)(1) the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), which held that to convict a defendant of violating section 922(g) the government must prove that the defendant knew that he or she had a relevant prohibited statute when committing the underlying offense. Thereafter, Petitioner brought this petition arguing that he would have proceeded to trial had he been told of the mens rea requirement. The district court denied the petition. The First Circuit affirmed, holding that Petitioner failed to carry his burden of establishing that it was reasonably probable that he would not have pleaded guilty but for the Rehaif error in this case.

Miller v. United States

Court: US Court of Appeals for the First Circuit

Docket: 21-1348

Opinion Date: August 8, 2023

Judge: Selya

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

The First Circuit affirmed the judgment of the district court denying Appellant's petition for habeas review on the grounds that his trial counsel rendered ineffective assistance, holding that, although this Court's reasoning differs from that of the district court, there was no error in the denial of the habeas petition.

Petitioner pled guilty to transporting a minor with the intent to engage in criminal sexual activity. On appeal, Petitioner argued that his trial counsel provided ineffective assistance based on a claim centered on the applicable statute of limitations, which had changed from the time when Petitioner committed the offense of conviction to the time that he was indicted. The district court denied relief. The First Circuit affirmed, holding that Petitioner's trial counsel did not render ineffective assistance by failing to move to dismiss the charges against him on limitations grounds.

United States v. Diaz-Serrano

Court: US Court of Appeals for the First Circuit

Docket: 21-1884

Opinion Date: August 10, 2023

Judge: Montecalvo

Areas of Law: Criminal Law

The First Circuit affirmed the judgment of the district court sentencing Defendant to 240 months imprisonment - double the statutory minimum - in connection with his plea of guilty to one count of knowingly carrying, brandishing, or discharging one or more firearms during and in relation to a kidnapping resulting in a crime of violence, holding that there was no error.

Pursuant to his plea agreement, Defendant joined the government during sentencing to recommend a sentence of 210 months. The court rejected the recommendation and sentenced Defendant to 240 months - double the statutory minimum of 120 months. The First Circuit affirmed, holding that the district court's upwardly variant sentence was neither procedurally nor substantively unreasonable.

United States v. Gadson

Court: US Court of Appeals for the First Circuit

Docket: 22-1444

Opinion Date: August 9, 2023

Judge: William Joseph Kayatta, Jr.

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's prison sentence imposed in connection with his plea of guilty to crimes arising from his role in a bank fraud scheme and vacated in part the restitution order, holding that the district court should not have included a certain auto loan in the restitution order.

Defendant pleaded guilty to three crimes stemming from his involvement in a bank fraud conspiracy. The district court sentenced Defendant to 110 months' imprisonment and also ordered restitution in the amount of $256,537, an amount that included the auto loan at issue. The First Circuit vacated the judgment in part, holding (1) Defendant's prison sentence was procedurally reasonable; and (2) the district court erred by including the auto loan at issue in its restitution order, but the remainder of the restitution order was proper.

U.S. v. Starling

Court: US Court of Appeals for the Second Circuit

Docket: 22-659

Opinion Date: August 4, 2023

Judge: DENNIS JACOBS

Areas of Law: Civil Procedure, Criminal Law, Government & Administrative Law

Police officers seized just over $8,000 in a search of Appellant’s home carried out as part of a drug trafficking investigation into her then-boyfriend, K.B. The local police turned over the funds to the U.S. Drug Enforcement Administration, which initiated an administrative forfeiture procedure to claim the funds as proceeds from drug sales. Acting pro se, Appellant filed a claim to the assets, forcing the government to terminate its administrative seizure and open a judicial forfeiture proceeding in district court.  She failed to timely oppose the ensuing judicial proceeding, and the clerk of court entered default against the funds. Appellant, still acting pro se, then sent several letters to the district court and the U.S. Attorney’s Office seeking leave to file a belated claim to the seized assets. The district court held that Appellant had not shown excusable neglect, denied her an extension of time to file a claim, and entered final default judgment against the seized assets.


The Second Circuit vacated the grant of the motion to strike and the entry of default judgment and remanded for further proceedings. The court held that the district court erred in granting default judgment to the government. Appellant’s letters are properly viewed as seeking both to lift the entry of default and to be granted leave to file an untimely claim to the assets. So understood, Appellant’s motion should have been assessed under the more permissive good cause standard, as is any other motion to lift entry of default in a civil suit.

United States v. Francis

Court: US Court of Appeals for the Second Circuit

Docket: 22-1080

Opinion Date: August 8, 2023

Judge: JOHN M. WALKER, JR

Areas of Law: Constitutional Law, Criminal Law

Defendant appealed the district court’s judgment revoking his original, three-year term of supervised release and sentencing him to three months imprisonment followed by a new, one-year term of supervised release for violating certain conditions of his supervised release. Defendant contends that the district court erred in finding that he violated a condition of his supervised release by possessing marijuana on January 27, 2021, in violation of New York Penal Law Section 221.05. First, Defendant argued that the offense defined by Section 221.05 was simply a state “violation,” not a state “crime,” and therefore, his offense did not violate the mandatory condition of supervised release that he “not commit another federal, state or local crime.” Second, Defendant argued that even if the offense, as defined by Section 221.05, constituted a “crime” for purposes of a violation of supervised release, New York’s March 31, 2021 repeal of the statute operated retroactively, such that his pre-repeal conduct in contravention of it cannot serve as the basis for a violation of supervised release.
 
The Second Circuit affirmed. The court agreed with the district court’s conclusion that Defendant violated a condition of his supervised release based on his possession of marijuana. The court explained that irrespective of New York’s classification of the offense, Defendant’s underlying conduct constituted a “crime” under federal law. Because this holding disposes of Defendant’s appeal in its entirety, the court did not reach Defendant’s retroactivity argument.

United States v. Gaye

Court: US Court of Appeals for the Second Circuit

Docket: 22-251

Opinion Date: August 4, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

Defendant was twice sentenced for violating conditions of supervised release. The first time, he was sentenced to six months in prison plus four years of supervised release. The second time, he was sentenced to three years in prison plus five years of supervised release. The parties agreed that this most recent sentence of supervised release was longer than allowed by statute. The district court was authorized to impose a term of supervised release of no more than the statutory maximum of five years for the underlying offense, minus the aggregate amount of prison time imposed for violations of supervised release. The parties disagree on the remedy. Defendant sought de novo resentencing, but the government seeks only a limited remand to reduce the term of supervised release to eighteen months.
 
The Second Circuit remanded for resentencing. The court concluded that the district court should be afforded the opportunity to exercise its discretion as to how much time Defendant should spend in prison and how much time on supervised release. The court explained that under Section 3583(h), the maximum allowable term of supervised release upon revocation decreased in direct proportion to the term of imprisonment imposed. With a three-year prison sentence, Defendant faced at most eighteen months of supervised release. For every month above an eighteen-month term of supervised release, the court would have needed to shave a month off the three-year prison term. The court concluded that the sentencing calculation is best left to the informed discretion of the district court, so that it may decide in the first instance how to strike the right balance.

Clark v. United States

Court: US Court of Appeals for the Third Circuit

Docket: 21-2704

Opinion Date: August 4, 2023

Judge: Freeman

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

In 1985, Clark and Devose assaulted and kidnapped a postal worker at gunpoint, stripped him of his uniform, and restrained him in his truck. Disguised in the uniform, Devose gained entry to a banker’s home, where they held the banker’s 85-year-old mother-in-law and 19-year-old daughter at gunpoint and called the banker to demand ransom. Clark raped the girl. They saw police outside and fled. Devose pleaded guilty and agreed to testify against Clark.

In 1990, Clark was convicted of two conspiracy offenses, attempted extortion, assault of a postal worker, kidnapping, theft of a postal vehicle, and using a firearm during a crime of violence--kidnapping (18 U.S.C. 924(c)). Clark was sentenced to life imprisonment plus five years for the firearm count, to be served consecutively, as section 924 required. The Sentencing Guidelines did not then apply. Clark filed an unsuccessful appeal and numerous unsuccessful collateral attacks. In 2019, the Supreme Court held that part of section 924(c)’s definition of “crime of violence” is unconstitutionally vague.

In Clark’s successive 28 U.S.C. 2255 motion, the parties agreed that kidnapping does not qualify as a section 924(c) crime of violence. The district court vacated Clark’s 924 conviction but declined to conduct a full resentencing. The Third Circuit dismissed an appeal for lack of jurisdiction. As a matter of first impression, the court held that a certificate of appealability is required for a prisoner in federal custody to appeal a district court’s choice of remedy in a 28 U.S.C. 2255 proceeding.

Davis v. Wigen

Court: US Court of Appeals for the Third Circuit

Docket: 21-3162

Opinion Date: August 4, 2023

Judge: Smith

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

Davis, a non-citizen, and Beckford, a U.S. citizen, met when they were children. In 1993, Davis was sentenced to life in prison for nonviolent drug convictions. When his sentence was reduced to 30 years in 2008, the two decided to marry. viewing marriage as an expression of their Christian faith. In 2012, Davis was moved to Moshannon Valley, a private prison that houses low-security alien inmates. The prison’s written policy for allowing marriage had certain behavioral requirements; the prison psychologist and other officials had to approve the request. Davis unsuccessfully challenged the denial of his marriage request through the prison’s administrative process. The Administrator of the Bureau of Prisons Privatization Management Branch informed Davis that marriage requests remained exclusively within the province of Moshannon officials. Davis learned that Moshannon had not approved a single request to marry during its contractual relationship. Davis’s sentence was later reduced to 27 years. He was deported after his release. Although their marriage would not have allowed Davis to challenge his deportation, Davis alleges that marriage to a U.S. citizen could provide a basis for other inmates to challenge their removals. Davis alleged that federal officials directed Moshannon officials to deny all inmate marriage requests to ensure that marriage to a citizen would not interfere with deportations.

The district court dismissed claims under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb-1, under 42 U.S.C. 1985; and for intentional infliction of emotional distress. The Third Circuit vacated in part. Davis stated a RFRA claim.

United States v. Porat

Court: US Court of Appeals for the Third Circuit

Docket: 22-1560

Opinion Date: August 7, 2023

Judge: Chung

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

Porat, the Dean of the Fox School of Business at Temple University, was “almost obsessed with rankings.” To manipulate Fox’s U.S. New and World Report rankings, he submitted false information about students taking the Graduate Management Admission Test (GMAT), offers of admission, student debt, and average undergraduate GPA. Partly because of these deceptions, With Porat’s knowledge and involvement, Fox aggressively marketed its false high rankings. At trial, former students testified that they chose Fox because of its rankings or that they believed employers hire students from schools with the best “brand” and that Fox’s high rankings would help them “compete in the marketplace.” The government estimated that Fox gained nearly $40 million in tuition from the additional students who enrolled during 2014–2018. In 2018, Porat’s scheme was exposed. Fox administrators disclosed the false GMAT data to U.S. News, which announced Fox’s “misreported data.” As Fox’s rankings fell, its enrollment fell.

The Third Circuit affirmed Porat’s convictions for conspiracy to commit wire fraud, 18 U.S.C. 371, and wire fraud, section 1343. The government proved by sufficient evidence that he sought to deprive his victims of money, that he sought to personally obtain money, or that the party he deceived was the same party he defrauded of money (“convergence”

US v. Brandon Council

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-1

Opinion Date: August 9, 2023

Judge: TOBY HEYTENS

Areas of Law: Constitutional Law, Criminal Law

Defendant robbed the CresCom Bank in Conway, South Carolina. During the robbery, Council fatally shot the bank teller and the bank manager. Defendant was convicted of (1) bank robbery resulting in death (Count One); and (2) using and carrying a firearm during and in relation to a crime of violence in a manner causing death (Count Two). The government filed a notice of intent to seek the death penalty. The jury found Defendant guilty on both charges. The jury unanimously recommended a sentence of death on each count. On appeal, Defendant raised four challenges to the district court’s handling of the guilt phase.
 
The Fourth Circuit affirmed. First, the court held that the district court fulfilled its obligations under Sections 4241 and 4247. The court raised the issue of competency on its own initiative several times, including before and during a pretrial conference held roughly a year and a half before trial. Further, the court explained that Defendant’s arguments about his need for more time and the preferability of alternatives to denying his motion outright asked the court to second-guess the district court’s case-specific judgments in “areas where the district court’s comparative expertise is at its zenith and ours its nadir.” Thus, the court held district court made no reversible error in denying Defendant’s fifth continuance motion. Finally, the court explained that B at least one of Defendant’s current arguments—that the Federal Death Penalty Act makes an unconstitutional delegation of legislative authority by incorporating state law execution practices—was plainly available when Defendant filed his first Rule 33 motion.

US v. Michael Draven

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-7171

Opinion Date: August 10, 2023

Judge: Roger L. Gregory

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of conspiracy to commit murder for hire resulting in death, aiding and abetting carjacking resulting in death, and aiding and abetting murder with a firearm in relation to a crime of violence. The first two convictions served as the predicate offenses for Defendant's third conviction.

Defendant filed a motion to vacate, arguing that following the Supreme Court’s decisions in United States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Taylor, 142 S. Ct. 2015 (2022), his predicate offenses no longer qualify as crimes of violence.

The Fourth Circuit affirmed, finding that aiding and abetting carjacking resulting in death remains a valid predicate offense under
18 USC 924(c)(3)(A).

USA v. Daniels

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-60596

Opinion Date: August 9, 2023

Judge: Jerry E. Smith

Areas of Law: Constitutional Law, Criminal Law

Title 18 U.S.C. Section 922(g)(3) bars an individual from possessing a firearm if he is an “unlawful user” of a controlled substance. Patrick Daniels is one such “unlawful user”—he admitted to smoking marihuana multiple days per month. But the government presented no evidence that he was intoxicated at the time of arrest, nor did it identify when he last had used marihuana. Still, based on his confession to regular usage, a jury convicted Defendant of violating Section 922(g)(3). The question is whether Defendant’s conviction violates his right to bear arms. The answer depends on whether Section 922(g)(3) is consistent with the nation’s “historical tradition of firearm regulation.”
 
The Fifth Circuit reversed the judgment of conviction and render a dismissal of the indictment. The court explained that the nation’s history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users. Thus, the court held that as applied to Defendant, then, Section 922(g)(3) violates the Second Amendment.

USA v. Financial Times

Court: US Court of Appeals for the Fifth Circuit

Docket: 23-20097

Opinion Date: August 4, 2023

Judge: Jerry E. Smith

Areas of Law: Constitutional Law, Criminal Law

Brothers and energy consultant executives led an international bribery scheme implicating companies and individuals across the globe. They pleaded guilty to crimes related to their participation in the enterprise and their attempts to cover it up. Several press agencies intervened and successfully moved to unseal almost all the documents in the case up to that point. Not only were many of the documents filed under seal, but the district court also closed part of the sentencing hearing to the press and public. At the same time, media interest in the case remained high, and the intervening press organizations moved to unseal numerous documents related to the sentencing. The district court denied their motion. On appeal, the intervening organizations maintain that they have both a First Amendment and a common-law right to access at least some of the sealed information.
 
The Fifth Circuit affirmed the denial of intervenors’ motion to unseal documents related to Defendant’s sentencing. The court held that intervenors were not so deprived of a meaningful opportunity to be heard as to justify reversal. They had notice of the general reasons that the parties would likely proffer to keep the information under seal. The documents unsealed after the court granted intervenors’ 2020 motion contained passages identifying the interests that the parties viewed as compelling enough to justify sealing. The court explained that even if the court had unsealed the opposition brief as much as possible while still safeguarding the interests it identified in its ultimate order, the outcome would not have changed.

USA v. Northington

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-60431

Opinion Date: August 9, 2023

Judge: Jennifer Walker Elrod

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to the production of child pornography. On appeal, he challenged the district court’s application of a sentence enhancement pursuant to 18 U.S.C. Section 2251(e) based on his prior conviction for fondling a child, also referred to as lustful touching of a child.
 
The Fifth Circuit affirmed Defendant’s sentence. The court concluded that the Mississippi statute relates to “abusive sexual contact involving a minor or ward,” as defined under section 2251(e) because the statute proscribes conduct that: (1) involves a child; (2) is sexual in nature; (3) is abusive; and (4) involves physical contact. The Mississippi statute only criminalizes conduct involving a child under the age of 18, so the first element is met. Moreover, because the statute also proscribes conduct involving “handling, touching or rubbing,” it meets the generic definitions of “abuse” and “contact” as well. Accordingly, the court held that there is no ambiguity as to the enhancements’ application; the rule of lenity is inapplicable.

USA v. Sadeek

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-40332

Opinion Date: August 8, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of enticement of a minor, travel with intent to engage in illicit sexual conduct, and transfer of obscene material to a minor. A total offense level of 41 and a criminal history category of I yielded a guideline imprisonment range of 324 to 405 months. The district court adopted the Pre-Sentence Report and sentenced him to 405 months in prison, a life term of supervised release, a $300 special assessment ($100 for each count), and a $15,000 Justice for Victims of Trafficking Act special assessment ($5,000 for each count). Defendant appealed, raising multiple challenges to his sentence.
 
The Fifth Circuit affirmed the district court’s judgment as to Defendant’s conviction. However, the court vacated the district court’s judgment as to that special assessment. The court explained that Defendant does not identify any case law establishing that his conduct on two different days should constitute a single occasion of abuse or establishing that the prohibited sexual acts must continue for a certain period of time or occur on a certain number of occasions to constitute a pattern. Therefore, the court held that the commission of distinct sexual assaults constitutes “separate occasions,” whether on the same or different days, for purposes of Section 4B1.5(b)(1).

USA v. Teijeiro

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-10227

Opinion Date: August 10, 2023

Judge: Duncan

Areas of Law: Constitutional Law, Criminal Law

Defendant pled guilty to possessing child pornography. The district court sentenced him to 168 months in prison and ordered him to pay his victims $46,000 in restitution. On appeal, Defendant argued that he was not competent to enter the plea and challenged the court's restitution order.

The Fifth Circuit affirmed. Regarding competency, the court relied on Defendant's admission that he only began to exhibit competency concerns during the PSR interview. There is no authority to find that erratic statements made in a PSR interview can somehow retroactively
undermine Defendant's competency to plead guilty. Further, the district court did not commit reversible error in failing to hold a competency hearing sua sponte.

In terms of Defendant's restitution argument, the court held that he failed "to show that there is a reasonable probability that such error resulted in his accountability for damages he did not cause or that the district court would have imposed a lower restitution amount but for any error."

USA v. Willis

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-10384

Opinion Date: August 7, 2023

Judge: Andrew S. Oldham

Areas of Law: Constitutional Law, Criminal Law

Defendant pled guilty to three counts of possessing a firearm as a felon in violation of 18 U.S.C. Section 922(g)(1). He raised various issues on appeal.
 
The Fifth Circuit vacated and remanded. The court explained that the district court’s ambiguous sentence impacted the “outcome of the proceeding” in at least two ways. First, the Bureau of Prisons decided that the sentence was so ambiguous that it “could not be executed.” That obviously would never have happened save for the error. The court further explained that after it was made aware of the error, the district court attempted to impose a completely different sentence at the null-and-void July re-hearing. The court reasoned that rarely does it have such strong evidence “that, but for the error, the outcome of the proceeding would have been different.” Moreover, the court explained that the district court has already expressed its willingness to change Defendant’s sentence once. The court, therefore, left it to the district court on remand to exercise its jurisdiction and discretion to impose any sentence at or below the statutory maximum.

Kares v. Morrison

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-2845

Opinion Date: August 8, 2023

Judge: Eric L. Clay

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

In 2012, Kares was convicted of raping a 16-year-old girl. The judge found five “Offense Variables” that increased Kares’ sentencing range. While Kares’ case was on appeal, the U.S. Supreme Court held (Alleyne) that the Constitution requires any fact that increases the mandatory minimum penalty for a crime to be found by a jury beyond a reasonable doubt. Kares’ counsel failed to raise an Alleyne claim on appeal. The Michigan Supreme Court affirmed Kares’ conviction and sentence. Kares then began collateral review proceedings in Michigan state court. Seeking leave to appeal the denial of his motion for relief from judgment, Kares first cited Alleyne. Michigan courts rejected his arguments. In 2018, Kares unsuccessfully sought additional DNA testing under MCL 770.16.

Kares filed a 28 U.S.C. 2254 petition in December 2018. The Michigan Supreme Court denied Kares’ application for leave to appeal the denial of his motion for biological testing in April 2019. The district court permitted Kares to amend his petition to include claims related to that request; he filed his amended petition in May 2019.

The Sixth Circuit reversed an order denying as untimely Kares’s motion to vacate his sentence. Kares’ petition for DNA testing under MCL 770.16 tolls the limitations period; it was properly filed and calls for “postconviction or other collateral review” under 2244(d)(2). The court denied Kares’ motion to expand the certificate of appealability to include his merits “Alleyne” claim, which was procedurally defaulted.

McBride v. Skipper

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-1042

Opinion Date: August 4, 2023

Judge: Nalbandian

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

In 2015, McBride was charged with first-degree murder, assault with intent to commit murder, carrying a concealed weapon, and carrying a firearm during the commission of a felony. After two trials, a jury convicted McBride on all charges. The Michigan Court of Appeals rejected his argument that the court erred in failing to admit his full police interview, that the evidence could not support his convictions, and that his counsel was ineffective. While his appeal was pending, McBride filed unsuccessful motions requesting a “Ginther” hearing to present evidence of his counsel’s ineffectiveness.

In a brief to the Michigan Supreme Court, McBride first alleged that his due process rights were violated during his pretrial detention. That court returned this brief because McBride was represented by counsel. In a federal habeas claim, 28 U.S.C. 2244(d)(1), McBride alleged his due process and Miranda rights were violated during his arrest and detention; his trial counsel was ineffective; and the Michigan courts erred in various evidentiary rulings. The district court dismissed claims without prejudice, citing the unexhausted first claim. A year later, McBride moved for reconsideration, arguing for the first time that his exhausted claims should be allowed to proceed under the Supreme Court’s “Rhines” decision which gives courts facing both exhausted and unexhausted claims two options besides dismissal. The Seventh Circuit affirmed the denial of the motion, rejecting McBride’s argument that the district court should have sua sponte considered alternatives to dismissal.

Raimey v. City of Niles, Ohio

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-3285

Opinion Date: August 10, 2023

Judge: Jane Branstetter Stranch

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

Burroughs went to the Niles Municipal Court to pay a traffic fine. The electronic docketing system alerted court officials that there was an active warrant for Burroughs’s arrest, relating to a recent domestic violence incident. Zickefoose, a probation officer, followed Burroughs outside, commanded him to stop, and told him to put his hands behind his back. When Zickefoose tried to grab Burroughs’s forearm, he pulled away and ran toward the parking lot. Zickefoose, injured as Burroughs drove away, reported the incident to the police. Four officers responded separately to Burroughs’s apartment complex, where they boxed in Burroughs’s car and yelled for Burroughs to “[s]hut the car off” and “[g]et out of the vehicle.” Officer Mannella fired three rounds into the windshield, which hit Burroughs in the chest, killing him. Officer Reppy fired an additional five shots that penetrated the car but did not hit Burroughs.

In a suit under 42 U.S.C. 1983, the district court determined that a reasonable jury could find that when Mannella opened fire, Burroughs was moving slowly or was stationary; Burroughs was complying with Mannella’s commands and was standing to the side of the car, not in the vehicle’s path. The court noted testimony and unrebutted forensic analysis. The Sixth Circuit affirmed the denial of qualified immunity to Mannella.

United States v. Campbell

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-5567

Opinion Date: August 10, 2023

Judge: Chad A. Readler

Areas of Law: Criminal Law

Campbell approached construction workers, performing road repairs, and asked who had voted for Trump in the recent presidential election. Following their responses, Campbell brandished a firearm and stated that he “had a bullet for each one.” Campbell then drove away, parking his truck near the construction site. When officers found the vehicle, Campbell was sitting inside with a semi-automatic pistol in his lap.

Campbell pled guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1), which typically carried a maximum penalty of ten years’ imprisonment. The Armed Career Criminal Act, however, mandates a 15-year minimum sentence for a defendant with “three previous convictions” for “a violent felony or a serious drug offense,” each committed on “occasions different from another” 18 U.S.C. 924(e)(1). Campbell had Tennessee convictions for a 1985 robbery, a 1987 aggravated assault, a 1992 drug trafficking offense, plus Virginia drug trafficking offenses from 1992 and 1993. Campbell argued that the drug offenses were not committed on different “occasions,” and that the different-occasion issue must be decided by a jury. Campbell also challenged a standard supervised release condition: if Campbell’s probation officer determined Campbell posed a “risk” to another, the officer could require Campbell to notify the person about the risk. The Sixth Circuit affirmed his 180-month sentence, finding that the robbery and drug offenses qualify as ACCA predicates. Campbell admitted that he committed those predicates on four different dates, separated by months or years.

United States v. Rudy Guerrero

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-6015

Opinion Date: August 7, 2023

Judge: McKEAGUE

Areas of Law: Criminal Law

Defendant One operated as a money broker for drug organizations that wanted to move money from the U.S. to Mexico. DEA agents infiltrated the operation. An undercover “coordinating agent” received from Defendant One a list of cities in which drug proceeds needed to be obtained and then coordinated with the DEA for a “receiving agent” to receive illicit funds. The coordinating agent provided a receiving agent’s phone number to Defendant One who shared it with his client. The money drop would be set up and executed, with the receiving agent obtaining illicit funds from a courier and depositing the funds in an undercover DEA bank account. The money was then transferred to Defendant One as cryptocurrency, then sent back to the client as cash.

Guerrero was involved as a courier in three separate money drops in Chicago in 2020. Defendant One, Guerrero, and several other couriers were charged with conspiracy to launder money. The Sixth Circuit affirmed Guerrero’s convictions and sentence. Any errors involving venue or evidentiary rulings were not prejudicial. The court also rejected a claim of “variance,” that the evidence failed to demonstrate an overarching conspiracy between Guerrero and each individual named in the indictment, but rather demonstrated only a smaller conspiracy between himself and Defendant One.

United States v. Whitson

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-5462

Opinion Date: August 10, 2023

Judge: Karen Nelson Moore

Areas of Law: Constitutional Law, Criminal Law

In 2011, Whitson participated in two Hobbs Act robberies. Both had victims who were threatened and physically injured; one was shot. Whitson was convicted of eight crimes at trial and sentenced to 1,252 months of incarceration. After several appeals, through which four of his convictions were vacated, he was resentenced in 2022 to 360 months of incarceration. Whitson argued that his sentence was procedurally and substantively unreasonable because the district court speculated that Whitson’s difficult upbringing made him more likely to re-offend, in spite of evidence to the contrary; failed to make an “individualized assessment” of Whitson’s background; impermissibly required Whitson to admit his guilt in order to consider fully evidence of his rehabilitation while incarcerated; and did not properly weigh the evidence of his rehabilitation.

The Sixth Circuit vacated. The district court committed plain error by requiring Whitson to admit his guilt in order to consider fully the evidence of his rehabilitation. “There is a fine line between consideration of a defendant’s acceptance of responsibility as relevant to [section] 3553 and penalizing a defendant for maintaining their right to avoid self-incrimination, and in this case, the district court fell on the wrong side of that line.”

Crowell, v. Sevier

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-2416

Opinion Date: August 8, 2023

Judge: HAMILTON

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

In 2015, Indiana charged Crowell with 13 felony counts: four counts of Class A felony child molesting, four counts of Class B felony sexual misconduct with a minor, two counts of Level 5 felony incest, and one count each of Class C felony incest, Class C felony child molesting, and Class C felony sexual misconduct with a minor. Unbeknownst to Crowell, the statute of limitations had run on the four counts of Class B felony sexual misconduct with a minor, Class C felony sexual misconduct with a minor, and Class C felony child molesting. Crowell’s appointed attorney failed to inform him or the prosecution that Crowell had a statute-of-limitations defense. Crowell pled guilty to three charges (including one that was time-barred) under a binding plea agreement.

Crowell sought federal habeas corpus relief, 28 U.S.C. 2254, claiming he was deprived of his Sixth Amendment right to effective assistance of counsel. The Indiana Court of Appeals had rejected Crowell’s claim because he had not shown that if he had been properly advised, he would have rejected the plea bargain and insisted on going to trial on the timely charges. The Seventh Circuit affirmed the denial of relief. The state court’s decision was not an unreasonable application of Supreme Court precedent.

Elion v. United States

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1725

Opinion Date: August 7, 2023

Judge: Brennan

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

In 2017, Elion pleaded guilty to three counts of distributing methamphetamine, 21 U.S.C. 841(a)(1) and (b)(1)(C). The Probation Office classified him as a career offender, U.S.S.G. 4B1.1(a), 4B1.2(b), yielding a heightened Guidelines range, 151–188 months, rather than 70-87 months. Elion’s attorney did not challenge the enhancement. Elion appealed his 167-month sentence, but his attorney moved to withdraw. Elion voluntarily dismissed his appeals. Months later, Elion filed a pro se motion to vacate, set aside, or correct his sentence, 28 U.S.C. 2255. Elion argued that had trial counsel objected to the career offender designation, he would have received a lower Guidelines range and a much-reduced sentence. Elion’s prior convictions were a 1999 Illinois conviction for unlawful delivery of a look-alike substance within 1,000 feet of public housing property, a 2000 Illinois conviction for unlawful delivery of a look-alike substance, and a 2006 federal conviction for distribution of a cocaine base.

The Seventh Circuit reversed the denial of Elion’s motion. The Illinois look-alike statute punishes conduct more broadly than the Guidelines controlled substance offense, and it is indivisible. Elion should not have been sentenced as a career offender. The district court must examine whether his attorney’s performance was deficient under the Strickland standard.

Gonzales v. Eplett

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2393

Opinion Date: August 9, 2023

Judge: Diane Pamela Wood

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

Gonzales had an altercation at a bar, then got into a car with Pedro (driving) and fired several shots from the car’s window toward the men, hitting one in the leg. Charged under state law with attempted first-degree intentional homicide, with a 40-year maximum sentence, and being a felon in possession of a firearm, Gonzales was offered an opportunity to plead guilty to recklessly endangering safety and unlawful possession of a firearm for a recommended ten-year sentence. After conferring with his attorney, Frost, Gonzales rejected the plea deal and requested a speedy trial. Frost predicted that the state would have trouble with its witnesses. One had absconded from probation; all had lengthy felony records, had been drunk, and gave inconsistent accounts.

All the state’s witnesses were located for trial and testified that Gonzales was the shooter. Frost continued to pursue acquittal rather than focusing on the reckless-endangerment count. The jury convicted Gonzales of the more serious crime. Gonzales received a 25-year sentence. In state post-conviction proceedings on the issue of ineffective assistance of counsel, Frost testified that it “never even crossed [her] mind” to argue for the lesser-included offense. The Wisconsin appellate court affirmed that Frost’s performance did not fall below the “constitutional line,” without reaching the issue of prejudice.

The Seventh Circuit affirmed the denial of his habeas corpus petition, 28 U.S.C. 2254, stating that it was “deeply troubled by the performance of defense counsel” but could not “say that the state appellate court unreasonably applied Strickland or relied on unreasonable determinations of fact.”

United States v. Castaneda

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-3010

Opinion Date: August 9, 2023

Judge: Jackson-Akiwumi

Areas of Law: Criminal Law

In 1997, Castaneda was arrested for his role in a large-scale heroin conspiracy. Once released on bond, Castaneda fled and lived as a fugitive in Mexico for more than 20 years. He returned to the United States in 2019 and was rearrested for his 1997 offense. Castaneda entered guilty pleas to attempt to possess with the intent to distribute more than a kilogram of heroin, and conspiracy to possess with the intent to distribute more than a kilogram of heroin. Penalties for both charges included a statutory mandatory minimum of 10 years’ imprisonment. Castaneda qualified for the “safety valve”—under which a court is obligated to impose a sentence pursuant to the sentencing guidelines without regard to any statutory minimums, 18 U.S.C. 3553(f). Safety valve relief is available if five requirements are met.

The court sentenced Castaneda to 12 years in prison. The Seventh Circuit vacated. The district court applied an incorrect guideline range and failed to provide any explanation for its rejection of Castaneda’s principal mitigation argument. The court appears not to have understood that if the safety valve applied, it was required to sentence Castaneda without regard to the mandatory minimum.

United States v. Coney

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1429

Opinion Date: August 4, 2023

Judge: HAMILTON

Areas of Law: Constitutional Law, Criminal Law

Coney was convicted on multiple charges of sex-trafficking minors, based on “the compelling and memorable testimony of the six minor victims.” Coney did not deny his involvement with these girls, nor did he deny posting prostitution advertisements featuring them on Backpage.com. He argued that, although the evidence made it look as if he had run a prostitution ring, he actually committed only violent robberies, using the girls to lure men to hotel rooms.

While the jury was deliberating, the parties and court realized that a computer containing the evidence for the jury to consider had too many files on it. The court ordered the computer removed from the jury room. Meanwhile, the jury reported that it had reached a verdict. That verdict was never examined by the court but was destroyed. After a weekend break for briefing the issue, a curative instruction, and more deliberation time, the jury returned its verdict of guilty on all counts. In rejecting Coney’s motion for a new trial, the district court carefully considered the inadvertently provided evidence and found no reasonable possibility that it affected the verdict. The Seventh Circuit affirmed, noting the overwhelming evidence of guilt, and the low likelihood that the jurors actually saw the challenged messages and photographs in the mass exhibits improperly provided to them for a few hours.

United States v. Donoho

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-2489

Opinion Date: August 4, 2023

Judge: Kenneth Francis Ripple

Areas of Law: Criminal Law

After downloading images of child pornography from an internet address associated with Donoho, officers executed a search warrant at his Wisconsin residence and recovered digital images of child pornography and evidence that he had produced child pornography. In closing arguments, Donoho insisted that the jury should consider whether the conduct depicted was sexually explicit under a “community standard,” The prosecution argued that the inquiry was whether the images were intended to arouse the viewer. The court explained that neither the Supreme Court nor the Seventh Circuit had determined which of the definitions controlled and urged the jury to “consider the aspects of the image itself, the setting, the pose assumed by the minor and any other persons depicted,” and the photographer’s state of mind; whether it was a sexually explicit image was left to it as “the lay conscience of society.” Donoho was convicted of possession of child pornography and production and attempted production of child pornography.

The Seventh Circuit affirmed. The district court did not err in instructing the jury that it could consider Donoho’s intent in determining whether the images were lascivious and whether the images were intended to arouse sexual desire. Based on the content, setting, and framing of the images and the steps Donoho took to capture them, a reasonable jury could find that he used or attempted to use minors to create visual depictions of lascivious exhibitions of their genitals, anus, or pubic areas.

United States v. Erlinger

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1926

Opinion Date: August 10, 2023

Judge: Jackson-Akiwumi

Areas of Law: Criminal Law

Erlinger pled guilty to being a felon in possession of a firearm, 18 U.S.C. 922(g)(1), and was given an enhanced 15-year sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), based on his 1991 Illinois conviction for residential burglary, 1991 Indiana conviction for burglary, and two 2003 Indiana convictions for dealing in methamphetamine. The court vacated Erlinger’s sentence after the Seventh Circuit held that Illinois residential burglary is not a violent felony and Indiana methamphetamine convictions are not serious drug offenses under ACCA. The government argued that Erlinger still qualified for an ACCA enhancement, citing other 1991 Indiana burglary convictions. The government supplied the plea and charging documents; each charged a different burglary at a different business, three on different dates within a week. Erlinger argued that Indiana’s definition of burglary is broader than the federal definition and does not trigger ACCA and these burglaries were not committed on separate occasions as ACCA requires, and a jury, not the judge, must make that factual determination.

The district court imposed an ACCA-enhanced 15-year sentence. The Seventh Circuit affirmed. The Indiana statute does not include language the Supreme Court deems overly broad. Erlinger has not cited any Indiana cases that interpret the statute in this manner. The government was not required to prove to a jury beyond a reasonable doubt that Erlinger committed the Indiana burglaries on separate occasions.

United States v. Freyermuth

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2814

Opinion Date: August 7, 2023

Judge: ROVNER

Areas of Law: Criminal Law

Freyermuth and five others were indicted for their involvement in a conspiracy to distribute large quantities of methamphetamine. Freyermuth pleaded guilty to conspiring to both distribute over 50 grams of methamphetamine and launder money. The PSR reported that Freyermuth—at his brother’s direction—received drug shipments, leased a storage unit to store the drugs, delivered the drugs to the regional dealers, collected money from the dealers, and sent that money to his brother The PSR concluded that Freyermuth was “integral” to the conspiracy, and a minor-role reduction was not warranted. Freyermuth argued that he was “essentially [his brother’s] drug mule,” uninvolved in decision-making and poorly compensated. Without the reduction, Freyermuth’s sentencing range was 262-327 months. A minor-role reduction would have lowered Freyermuth’s range to 135-68 months.

The district judge concluded that Freyermuth’s role was “multifaceted”: he stored the drugs “relatively independently,” maintained the inventory, delivered the drugs to the dealers and collected and laundered the conspiracy’s proceeds, which enhanced his knowledge of the conspiracy’s “scale.” The judge acknowledged that Freyermuth’s discretion was limited by his brother’s instructions but found that factor insufficient to justify a reduction. The Seventh Circuit affirmed his 102-month sentence. The judge adequately compared Freyermuth’s role to the average conspiracy member’s and applied the relevant guideline factors.

United States v. Gamez

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2278

Opinion Date: August 9, 2023

Judge: Scudder

Areas of Law: Criminal Law

Police responded to a 911 call from a gas station, and discovered Gamez, on probation for a robbery conviction, in possession of a Winchester rifle. Eight days earlier Gamez had removed his GPS-tracking ankle bracelet; a LaPorte County Community Corrections officer had filed charges for escape. Gamez pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). The government sought the 15-year minimum sentence mandated by the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e) for section 922(g)(1) offenders with three previous convictions “for a violent felony.” Gamez had three prior Indiana state convictions—two for robbery (2009, 2016) and one for aiding and abetting arson (2011)—and never disputed that his robbery convictions qualified as violent felonies. He argued that Indiana’s arson statute covered too broad a range of conduct to be considered a “violent felony.” The district court imposed the enhancement.

The Seventh Circuit certified to the Indiana Supreme Court the question: whether Indiana arson requires a fire or burning. By its terms, the state’s criminal code does not require fire or burning as an element of arson but there are indications that Indiana state courts have interpreted and applied the arson statute to require proof of burning to sustain an arson conviction. The issue has not been addressed by the Indiana Supreme Court. The state’s choice to charge Gamez as an aider-and-abettor of arson and not a principal does not independently preclude the ACCA enhancement.

United States v. Griffin

Court: US Court of Appeals for the Seventh Circuit

Dockets: 21-3326, 21-3352, 21-3361, 22-1012, 22-1075

Opinion Date: August 7, 2023

Judge: Kenneth Francis Ripple

Areas of Law: Criminal Law, Government Contracts, White Collar Crime

If a borrower defaults on a loan guaranteed by the Small Business Administration (SBA), the lender asks the SBA to purchase the outstanding balance of the defaulted loan. The SBA then decides whether to honor the guarantee after reviewing the paperwork to ensure that the loan complied with SBA requirements. A lender can retain a lending service provider (LSP) to package, originate, disburse, service, or liquidate SBA-guaranteed loans on the lender’s behalf. The five defendants worked at, or with, an LSP, and engaged in a scheme to obtain SBA guarantees for loans that did not meet the SBA’s guidelines and requirements. They made false statements on loan-guarantee applications and purchase requests sent to the SBA about matters such as borrowers’ eligibility to receive a loan and how loan proceeds would be disbursed.

The Seventh Circuit affirmed the defendants’ convictions for conspiracy to commit wire fraud affecting a financial institution, 18 U.S.C. 1349, and wire fraud affecting a financial institution, section 1343) and their sentences. The court rejected arguments concerning a constructive amendment to the indictment, that the government did not prove that the wire fraud scheme deprived the SBA of a protectable money or property interest, jury instructions, the sufficiency of the evidence, and loss calculation.

United States v. Lee

Court: US Court of Appeals for the Seventh Circuit

Dockets: 22-2138, 22-1293

Opinion Date: August 9, 2023

Judge: Diane Pamela Wood

Areas of Law: Criminal Law, White Collar Crime

Lee carried out a scheme to defraud the Chicago White Sox. With the help of two Sox employees, Lee obtained thousands of discounted and free game tickets and resold them online for a profit. He was eventually convicted of wire fraud, 18 U.S.C. 1343. The indictment expressly sought forfeiture of Lee’s ill-gotten gains and Lee did not object to that request. The parties disagreed on the amount. The court failed to enter a preliminary order of forfeiture specifying what would be due and what property was subject to forfeiture (Fed. R. Crim. P. 32.2(b)(2)) but did everything else necessary for forfeiture, including giving Lee notice and an opportunity to contest the amount the government was seeking and orally imposing forfeiture in the sentence, along with an 18-month prison term, restitution, and the required special assessment. The written judgment, however, omitted forfeiture. After some additional proceedings, the court concluded that it was too late to enter a proper forfeiture order, and refused to amend the written judgment to reflect its oral sentence

The Seventh Circuit rejected Lee’s challenges to the indictment, the court’s denial of his motion for acquittal, and his sentence but reversed and remanded for the district court to amend the judgment under Federal Rule of Criminal Procedure 36 to include forfeiture in the amount the court found–$455,229.23.

United States v. Maranto

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1358

Opinion Date: August 10, 2023

Judge: ROVNER

Areas of Law: Criminal Law

Maranto pled guilty to distribution of child pornography. In 2014, after his release from prison, Maranto began serving his lifetime term of supervised release in Wisconsin. Maranto subsequently committed a new crime, possession of child pornography, for which he was convicted in state court. He was sentenced to 10 years in prison followed by 10 years of supervised release. The Wisconsin conviction violated a condition of his federal supervised release, as did possession of an unapproved cell phone and of child pornography. The district court revoked his probation, then sentenced Maranto to 14 months in prison, concurrent with his state court sentence, followed by a lifetime of supervised release.

Maranto objected to two discretionary conditions of supervised release. Condition 13 requires that Maranto provide “all requested financial information, including copies of state and federal tax returns.” Condition 19 requires that Maranto, “[a]s approved by the supervising U.S. Probation Officer, undergo psychosexual evaluations which may involve use of polygraph examinations.” The judge cited the requirement to report place of employment under the Sex Offender Registration and Notification Act, 34 U.S.C. 20901, and Maranto’s history.

The Seventh Circuit affirmed. Although there are other ways to monitor Maranto’s employment and SORNA compliance, tax returns are helpful information, and are not difficult to produce. The district court gave thoughtful consideration to the benefits and detriments of polygraph testing and noted its usefulness with sex offenders in general and with Maranto in particular.

United States v. Newton

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-3270

Opinion Date: August 7, 2023

Judge: Jackson-Akiwumi

Areas of Law: Criminal Law, Government Contracts, White Collar Crime

From 2011-2017, Care Specialists provided care to homebound Medicare beneficiaries. At least part of its operation was fraudulent. Care Specialists would submit Medicare claims for health services, including skilled nursing services, provided to many patients who did not qualify for Medicare reimbursement. Newton, a quality assurance specialist and the owner’s secretary, helped implement the scheme. A former Care Specialists employee, Bolender, filed a whistleblower letter describing the scheme and met with federal investigators, directly implicating Newton as a key figure in the conspiracy. The owners pleaded guilty. Newton was convicted of conspiracy to commit both health care fraud and wire fraud, following testimony from multiple Care Specialists employees. Bolender avoided testifying by invoking her rights against self-incrimination under the Fifth Amendment. Newton unsuccessfully argued that the court wrongly accepted the invocation and that the government’s refusal to grant Bolender immunity violated her due process rights.

The Seventh Circuit affirmed Newton’s conviction. The government's actions did not distort the fact-finding process; Bolender’s testimony was just as likely, if not more likely, to inculpate Newton as it was to exculpate her. Bolender’s invocation of her rights under the Fifth Amendment had been proper because she potentially could have opened herself up to prosecution. The court vacated Newton’s sentence. The district court’s calculation of Medicare’s loss attributable to Newton was unreasonable.

United States v. Nichols

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2266

Opinion Date: August 8, 2023

Judge: Kirsch

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

Nichols, charged with sex trafficking, faced a life sentence. Two attorneys with extensive experience were appointed as defense counsel. Months later, Nichols filed a pro se motion, challenging their representation. The judge warned Nichols about the perils of self-representation and stated: I am not giving you another lawyer. After an extended conversation, the attorneys were appointed standby counsel. Nichols objected, stating: “Courts are forcing me to go pro se.” At Nichols's request, the court ordered a competency evaluation. Dr. Goldstein spent 14 hours with Nichols and found Nichols competent to stand trial and to proceed pro se, indicating that his disorders are behavioral, not mental. Nichols twice refused to appear. The court repeatedly reviewed why Nichols should not represent himself but held that Nichols had constructively waived the right to counsel. A second expert, Dr. Fields, was unable to complete any test because of Nichols’s obstreperous behavior and relied on an interview with Nichols to conclude that Nichols’s competency was “not diminished by a severe emotional disorder.” It was Fields’s “clinical sense” that Nichols’s “lack of willingness to work” with counsel rendered him incompetent. At a competency hearing, the government introduced recorded jail calls in which Nichols indicated that he was delaying the proceedings. The court found Nichols competent. Nichols stated, “I’m not working with anybody.”

Nichols was convicted and accepted the assistance of counsel before sentencing. A third competency evaluation concluded that Nichols was competent. The court imposed a within-Guidelines life sentence. The Seventh Circuit affirmed, stating: “District courts are not permitted to foist counsel upon competent defendants.”

United States v. Page

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-3221

Opinion Date: August 4, 2023

Judge: Jackson-Akiwumi

Areas of Law: Criminal Law

A grand jury returned a 34-count indictment against 12 defendants involved in selling heroin. Page was charged in just two counts, and not with conspiracy. Based on wiretap investigations and a search of Page’s apartment, among other evidence, prosecutors alleged Hamlin purchased heroin from Harris and distributed those drugs to purported mid-level distributors like Page. Two years later, a superseding indictment charged Page, Harris, Hamlin, and others, with a drug-trafficking conspiracy involving over 100 grams of heroin. Page was charged with 12 counts of attempting to distribute and possession with intent to distribute heroin.

Page was the only defendant who did not plead guilty. The jury instructions included Seventh Circuit pattern instruction on “Membership in Conspiracy." Page’s counsel did not propose a jury instruction that would have highlighted the difference between a drug conspiracy and a conventional buyer-seller relationship. Convicted on all counts, Page received a below-guidelines 90-month sentence. The Seventh Circuit reversed, rejecting a challenge to the sufficiency of the evidence but holding that the district court committed plain error by failing to instruct the jury on the difference between a buyer-seller relationship. Page characterizes his connection to the top drug dealer as a buyer-seller relationship, not a conspiracy, where two parties share some joint purpose in building a drug business together.

United States v. Simmons

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1321

Opinion Date: August 7, 2023

Judge: Kirsch

Areas of Law: Criminal Law

Simmons used another person’s Social Security number and falsified employment information to open a savings account and apply for multiple loans and credit cards at a credit union. Convicted of bank fraud, 18 U.S.C. 1344, and aggravated identity theft, section 1028A, Simmons argued that the government had not proved that he knew the Social Security number belonged to another person and, at sentencing, objected to the PSR’s calculation of the intended loss amount. The PSR calculated Simmons’s total intended loss amount at $176,326. That included a cashier’s check Simmons had cashed plus each loan and credit card amount for which he had applied—some of which had been denied. Simmons argued that he only intended to obtain one credit card and one auto loan and that if he had succeeded in obtaining a credit card and car loan on January 23, he would have stopped. Excluding two additional applications would have brought the loss amount under $150,000, resulting in an enhancement of only eight levels instead of ten.

The district court adopted the PSR’s loss amount, and, with a Guidelines range of 30-37 months, sentenced Simmons to 46 months on the bank fraud counts, followed by a mandatory consecutive sentence of 24 months on the aggravated identity theft count. The Seventh Circuit affirmed. Sufficient evidence supported Simmons’s aggravated identity theft conviction, and the loss amount finding was not clearly erroneous.

United States v. Xiao

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2758

Opinion Date: August 8, 2023

Judge: HAMILTON

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

Dr. Xiao taught mathematics for many years at Southern Illinois University. He also did academic work based in China, for which he received more than $100,000 in payments. An investigation of Xiao's grant applications led FBI agents to examine his finances. Xiao was charged with wire fraud, making a false statement, failing to disclose his foreign bank account on his income tax returns, and failing to file a required report with the Department of the Treasury. Xiao was acquitted of wire fraud and making a false statement, but convicted of filing false tax returns and failing to file a report of a foreign bank account, 31 U.S.C. 5314(a).

The Seventh Circuit affirmed, rejecting arguments that the evidence was insufficient, primarily on the question of willfulness, that the tax return question was ambiguous, and that the foreign-account reporting regulation is invalid. The evidence permitted the jury to find beyond a reasonable doubt that Xiao acted willfully in choosing not to disclose his foreign bank account. The tax return form was not ambiguous as applied to Xiao’s situation. The government proved beyond a reasonable doubt that he engaged in reportable transactions. In 2019 he received deposits to the Chinese account and made withdrawals and investments using that account.

Whitfield v. Cowan

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1747

Opinion Date: August 7, 2023

Judge: Diane Pamela Wood

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

Whitfield was scheduled for discharge from Menard Correctional Center in January 2010, to begin a term of mandatory supervised release. On that day, prison officials handed Whitfield only the signature page of a document called the “Electronic Detention Program Agreement.” That page stated that “the following conditions of the Program apply only to sex offender cases.” Whitfield was not a sex offender and objected to signing the Agreement without an explanation from a prison official clarifying why he, a non-sex offender, had to sign a form designed exclusively for sex offenders. Whitfield’s objections were rejected. Four times, clinical services supervisor Spiller directed Whitfield to sign the form. After his continued refusal, she issued a disciplinary ticket for failure to follow a direct order. Whitfield was transferred to disciplinary segregation; the Illinois Prisoner Review Board held a hearing and found he had violated the terms of his supervised release. His eligibility for supervised release was revoked. Whitfield remained in custody for another 18 months.

Whitfield sued Spiller, other Menard officials, and Board members, alleging constitutional violations under 42 U.S.C. 1983. The case has narrowed to Whitfield’s claims against Spiller and then-warden Gaetz for First and Eighth Amendment violations. The Seventh Circuit held that the district court correctly granted the defendants summary judgment on some claims, but that Whitfield has sufficient evidence that Spiller’s conduct violated his First Amendment rights.

Brandee Buschmann v. Kansas City Police Department

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2815

Opinion Date: August 10, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Two dog owners sued a police officer and the Kansas City Board of Police Commissioners after the officer shot a dog during an encounter at a residence. The dog owners alleged that the officer violated their rights under the Fourth and Fourteenth Amendments by unreasonably “seizing” the dog. They also asserted that the Board’s policies and customs caused the officer to commit the alleged violation. The district court granted summary judgment for the officer and the Board.
 
The Eighth Circuit affirmed. The court explained that given the behavior of the dog, and the failure of the owner to control the animal at the doorway, a reasonable officer could have perceived the dog as an imminent threat. Thus, the officer’s s firing of a first shot was reasonable. The court further wrote that the circumstances in LeMay are readily distinguishable from the officer’s doorway encounter with a growling dog who suddenly rushed at him and then turned in the direction of his fellow officer.

United States v. Austin Nichols

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2055

Opinion Date: August 9, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

These consolidated appeals arise from a multi-defendant criminal case involving the Lowriders street gang in Davenport, Iowa. All five Appellants pleaded guilty to a charge of racketeering conspiracy and other charges related to their activities with the Lowriders. The district court sentenced them to various terms of imprisonment. The appeals concern only the sentences imposed.
 
The Eighth Circuit affirmed the judgments for four appellants and vacated the sentence of one appellant and remanded his case for resentencing. Regarding the vacated sentence, the court explained that the evidence is insufficient to support the district court’s finding that Appellant aided and abetted attempted first-degree murder. The court explained that he was a backseat passenger in the vehicle from which shots were fired. The government contends that Appellant aided and abetted attempted first-degree murder because he “got in a car with a gun and went looking for Latin Kings.” But a defendant’s presence at the scene of a crime or association with persons engaged in illegal activity is not sufficient to establish that he aided and abetted the crime. Rather, the defendant must affirmatively act in a manner “which at least encourages the perpetrator.” There is insufficient evidence here that Appellant’s act of riding in the back seat of a vehicle to the scene of the crime facilitated the offense.

United States v. Darnell Dunn

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2539

Opinion Date: August 9, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of unlawful possession of a firearm as a felon. The district court determined that Defendant had three prior convictions for a “violent felony” and sentenced him to the statutory minimum sentence of 180 months imprisonment. Defendant asserted error during the trial and at sentencing.
 
The Eighth Circuit affirmed. The court explained that the district court did not err, however, in concluding that Defendant’s witness’s statements lacked the “sufficient guarantees of trustworthiness” required by the rule. The court wrote that the statements were not supported by corroborating circumstances indicating their trustworthiness, and there were sound reasons to doubt his credibility. Accordingly, the court held that the court properly declined to admit the evidence under Rule 807. Further, the court explained that the district court properly determined that the disputed gang evidence was intrinsic to the crime charged and thus not governed by Rule 404(b).
 
Moreover, the court wrote that the district court also properly declined to exclude the gang evidence under Rule 403 after concluding that the probative value of the evidence was not substantially outweighed by a danger of unfair prejudice. Evidence of Defendant’s gang membership was relevant to a disputed issue; its primary effect was not to prejudice Defendant unfairly by showing association with unsavory characters. Additionally, Defendant argued that the assault was an “act of juvenile delinquency” under Section 924(e) because he committed the offense as a juvenile. The record shows, however, that Defendant was convicted of third-degree assault in Minnesota state court as an adult.

United States v. Jesse Cody

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2602

Opinion Date: August 9, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of four charges related to sex trafficking. Defendant raised several challenges to his convictions. Defendant first argues that the government violated his due process right to the disclosure of exculpatory or impeachment material under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by failing to disclose one of the victim’s (J.R.) juvenile court records.
 
The Eighth Circuit affirmed. The court explained that to establish a violation of the Brady/Giglio rule, Defendant must demonstrate that the government suppressed evidence that was favorable to him and material to the outcome of the trial. See United States v. Garrett, 898 F.3d 811, 816 (8th Cir. 2018). There was no violation here because Defendant learned of the records during the trial and had an opportunity to use them in cross-examining the witness. United States v. Almendares, 397 F.3d 653, 664 (8th Cir. 2005). The court explained that  If Defendant needed more time to make use of the information, then he could have moved to continue the trial or sought other relief, but he did not do so. Moreover, the court explained that the district court did not abuse its discretion in refusing to order a new trial. The allegation that the federal agent communicated with J.R. about impeachment material was speculative and controverted by the agent. In any event, whether J.R. lived with her foster parents for one week or two months was immaterial to the charged offenses.

United States v. Joshua Duggar

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2178

Opinion Date: August 7, 2023

Judge: STRAS

Areas of Law: Constitutional Law, Criminal Law

Defendant challenged his conviction for receiving child pornography. Defendant asserts that the district court’s decision to stop him from asking about the employee’s prior sex-offense conviction deprived him of his right to present a complete defense.
 
The Eighth Circuit affirmed. The court reasoned that the Fifth and Sixth Amendments “guarantee criminal defendants a meaningful opportunity to present a complete defense.” The court wrote that the district court, for its part, tried to strike a balance too. It recognized that Duggar should have an opportunity “to create reasonable doubt” by “calling” the former employee to testify and asking whether he was “present on the car lot” when the downloads occurred. But he could not impeach him with a prior sex crime or introduce “speculative” testimony. Here, the district court had “unquestionably constitutional” discretion to exclude the conviction under Federal Rule of Evidence 403.
 
Further, Defendant wanted his incriminating statements during the search at the car dealership suppressed on the ground that the agents violated his right to counsel, which he tried to invoke by mentioning a lawyer and then attempting to call one. The court explained that viewed through Griffin’s lens, we conclude that a reasonable person in Defendant's position would not have thought “his freedom of movement” was “restricted.”

United States v. Juan Colbert

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2120

Opinion Date: August 9, 2023

Judge: KOBES

Areas of Law: Constitutional Law, Criminal Law

After pleading guilty to being a felon in possession of a firearm, Defendant learned that the detective who testified at his suppression hearing had been indicted for crimes related to an on-duty shooting. The district court denied Defendant’s motion to withdraw his plea based on this discovery. Defendant argued that the Government’s failure to disclose the information about the detective at the suppression stage rendered his plea involuntary and, separately, constituted a fair and just reason for withdrawal.
 
The Eighth Circuit affirmed. The court explained that Supreme Court precedent forecloses Defendant’s involuntariness argument. Second, the district court did not abuse its discretion when it concluded that Defendant lacked a fair and just reason for withdrawal. Further, the court explained that the information Defendant discovered about the detective would have, as the district court suggested, only marginally improved Defendant’s chances of winning his suppression motion. The material was only indirectly related to his case, amounting to weak propensity evidence that the detective, as in prior situations, violated Defendant’s  rights here.

United States v. Montgomery Lebeau

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2604

Opinion Date: August 10, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted by a jury of unlawful possession of a firearm as a felon. The district court sentenced him to sixty months’ imprisonment. Defendant appealed the court’s evidentiary rulings at trial and the determination of his sentence. The parties dispute whether Defendant’s term of imprisonment for the state assault offense was “anticipated.” Defendant says the state sentence was anticipated because the state assault charge was pending in state court. The government counters that any state sentence was speculative and not “anticipated” because Defendant had not been convicted of any state offense.
 
The Eighth Circuit concluded that there is no reversible error and therefore affirmed the judgment. The court concluded that there is no plain error warranting relief because it is not obvious under current law that Defendant’s state term of imprisonment was “anticipated.” Section 5G1.3(c) does not define “anticipated,” and Defendant cites no authority from the Eighth Circuit. The court explained that given the absence of a definition in the guidelines, and the limited authority on the issue, the court wrote, it is at least subject to reasonable dispute whether the filing of a state charge, by itself, makes a future state sentence “anticipated” within the meaning of Section 5G1.3(c). Further, the court concluded that the district court made an individualized assessment based on the facts presented and acted within the wide latitude available to a sentencing judge who weighs the relevant factors.

United States v. Remberto Rivera

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1295

Opinion Date: August 10, 2023

Judge: ERICKSON

Areas of Law: Constitutional Law, Criminal Law

Defendant pled guilty to possession of methamphetamine with intent to distribute. The district court sentenced him as a career offender to 168 months imprisonment. Defendant appealed, claiming the district court committed three reversible errors: (1) designating him as a career offender; (2) applying a two-level enhancement for possession of a dangerous weapon; and (3) applying a two-level enhancement for reckless endangerment in the course of fleeing from law enforcement.
 
The Eighth Circuit affirmed. The court explained that the dangerous weapon enhancement is applicable if the firearm is found during “relevant conduct,” as defined in U.S.S.G. Section 1B1.3(a)(2) and is not limited to the offense of conviction. both instances involved drug trafficking-related conduct, with the only difference being the seizure of a distributable quantity of methamphetamine in March, while there was no seizure of drugs but evidence of drug trafficking at the time of Defendant’s arrest in May. Specifically, the district court noted the discovery of two scales, one with methamphetamine residue, a pipe with residue, baggies, and two firearms. Notably, Defendant was out on bond for the March possession offense when he was observed at a known drug house, and his companion acknowledged that she and Defendant had met with a known drug trafficker. On this record, the district court did not clearly err in finding the events surrounding the May arrest and seizure of evidence were relevant conduct under the Guidelines because they were part of Defendant’s course of conduct—his ongoing drug trafficking activities—during these three months.

United States v. Tou Thao

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2708

Opinion Date: August 4, 2023

Judge: KOBES

Areas of Law: Constitutional Law, Criminal Law

Defendant is one of four former Minneapolis Police Department (MPD) officers involved in the death of George Floyd. Defendant was convicted of two counts of deprivation of rights under color of law resulting in bodily injury and death. He appealed the district court’s denial of his motions for acquittal and a mistrial. On appeal, Defendant argued that there was insufficient evidence to convict him and that prosecutorial misconduct deprived him of his right to a fair trial.
 
The Eighth Circuit affirmed. The court explained that Defendant specifically argued that no reasonable jury could have found that he had the requisite mens rea to commit the crimes. The court wrote that to prove Defendant acted willfully, the Government produced evidence that Defendant knew from his training that (1) Chauvin’s use of force on Floyd was unreasonable and (2) he had a duty to intervene in another officer’s use of unreasonable force. The court concluded that viewing the evidence in the light most favorable to the Government, there was sufficient evidence that Defendant acted willfully on this charge.
 
In regards to Defendant’s second charge: his deliberate indifference to Floyd’s serious medical needs, the court held that it agreed with the district court that the evidence on this count is “not overwhelming,” but nonetheless, a reasonable jury could find that Defendant acted willfully. Ultimately, the court concluded that there was sufficient evidence for the jury to find that Defendant acted willfully on both Section 242 counts and that any prosecutorial conduct did not deprive Defendant of his right to a fair trial.

United States v. Zerak Brown

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1900

Opinion Date: August 10, 2023

Judge: GRUENDER

Areas of Law: Constitutional Law, Criminal Law

Defendant was indicted for two counts of assaulting a federal officer and one count of using a firearm to further a crime of violence. The first assault count was based on Defendant’s altercation with Officer Johnson, the second on Defendant’s pointing his rifle at Troopers Shipley and Wakefield and Sheriff Medley. The third count, using a firearm to further a crime of violence, was based on the second assault count. At trial, Defendant moved for judgment of acquittal, challenging the sufficiency of the evidence for all counts. The district court denied both motions. Defendant was convicted of all three counts, and the district court denied his subsequent motion for reconsideration of the denial of his judgment of acquittal. He appealed his convictions.
 
The Eighth Circuit affirmed. The court explained that Officer Johnson testified that when he went to the house the first time, it was in the back of his mind to look for possible firearms violations. His concern about the possible access to weapons is the reason he did not let Defendant go back inside the house. Thus, the jury could have concluded that Officer Johnson was fulfilling the mission of the ATF to enforce federal firearms statutes when he went to the home. To be sure, he was also conducting a state investigation, but an officer can be “engaged in the performance of official [federal] duties” while simultaneously fulfilling state duties.
Further, the court wrote that there is sufficient evidence that Troopers Shipley and Wakefield and Sheriff Medley were assisting Officer Johnson “in the performance of official duties” when they were assaulted.

USA V. AHMED ALAHMEDALABDALOKLAH

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-10435

Opinion Date: August 9, 2023

Judge: Christen

Areas of Law: Constitutional Law, Criminal Law, International Law

Defendant, a Syrian national, appealed his conviction after a jury trial for participating in a conspiracy that targeted U.S. military personnel and property in Iraq. The jury delivered a mixed verdict on the six-count indictment. It convicted Defendant for conspiring to use a weapon of mass destruction (Count One), conspiring to damage U.S. government property (Count Two), and conspiring to possess a destructive device in furtherance of a crime of violence and aiding and abetting the same (Counts Three and Four). The jury acquitted Defendant of conspiring to murder Americans (Count Five) and providing material support to terrorists (Count Six).
 
The Ninth Circuit affirmed in part and reversed in part the conviction. Reversing in part, the panel agreed with the parties that Defendant’s convictions on Counts Three and Four, for conspiring to possess a destructive device in furtherance of a crime of violence and aiding and abetting the same, could not stand after the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). On those counts, the panel remanded with direction to the district court to vacate the convictions. The panel affirmed Defendant’s convictions on Counts One and Two for conspiring to use a weapon of mass destruction and conspiring to damage U.S. Government property by means of an explosive. As to Count Two, the panel held that 18 U.S.C. Section 844(f) and (n) applied to Defendant’s extraterritorial conduct. The panel held that the presumption against extraterritoriality applies to criminal statutes as well as to civil statutes.

USA V. ARTUR AYVAZYAN

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-50302

Opinion Date: August 7, 2023

Judge: Milan D. Smith, Jr

Areas of Law: Constitutional Law, Criminal Law

Defendants were convicted of various offenses stemming from an eight-person conspiracy to fraudulently obtain and launder millions of dollars in federal Covid-relief funds that were intended to assist businesses impacted by the pandemic. On appeal, Defendants challenged their restitution obligations on both legal and factual grounds.
 
The Ninth Circuit affirmed Defendants’ restitution obligations, except that the court vacated and remanded for one Defendant’s judgment and commitment order to be amended to specify that, as all parties agree, his restitution obligation runs jointly and severally with those of his trial co-defendants. The panel held that, under the Mandatory Victims Restitution Act (MVRA), the district court properly imposed restitution in the full amount of the loss caused by the conspiracy instead of just the loss caused by the fraudulent loan applications Defendants personally played a role in submitting. In separately filed memorandum dispositions, the panel affirmed Defendants’ jury convictions, affirmed the district court’s application of the Sentencing Guidelines to one defendant, and vacated and remanded for that defendant’s resentencing.

United States v. Akers

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-3226

Opinion Date: August 4, 2023

Judge: Murphy

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Montgomery Akers appealed a district court order imposing upon him a $40,000 punitive sanction for advancing frivolous arguments and assertions in a request for release pending appeal (the “Motion”). “Akers is a chronic abuser of the federal court system.” Although he pleaded guilty in 2005 to one count of wire fraud and entered into a plea agreement that contained a waiver of his right to appeal or collaterally attack his sentence, he filed a number of appeals to the Tenth Circuit. Akers claims the district court erred in imposing any sanction given its determination the Motion was not wholly frivolous. Alternatively, he argued the district court erred when it failed to consider the reasonableness of the amount of the sanction. Finding only that the district court’s findings were insufficient with respect to the reasonableness of the sanction, the Tenth Circuit remanded for further proceedings.

United States v. Budder

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-7027

Opinion Date: August 7, 2023

Judge: Harris L. Hartz

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

Defendant Jeriah Budder, an enrolled member of the Cherokee Nation, killed David Jumper in Indian Country. He was charged by the State of Oklahoma with first-degree manslaughter. THe charges were dismissed for lack of subject-matter jurisdiction in the wake of McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). A federal grand jury then indicted Defendant on three charges: (1) first-degree murder in Indian country; (2) carrying, using, brandishing and discharging a firearm during and in relation to a crime of violence; and (3) causing the death of another in the course of (2). On appeal, defendant argued he was denied the due process of law guaranteed by the federal constitution because the retroactive application of McGirt v. Oklahoma, 140 S.Ct. 2452 (2020) deprived him of Oklahoma’s law of self-defense, which he argued was broader than the defense available to him under federal law. The Tenth Circuit held that the application of McGirt did not constitute an impermissible retroactive application of a judicial decision. Further, the Court rejected defendant’s argument that his sentence was substantively unreasonable.

United States v. Canada

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-3202

Opinion Date: August 8, 2023

Judge: Carson

Areas of Law: Constitutional Law, Criminal Law

Wichita Police were conducting a proactive patrol in a high-crime area. After officers pulled over Defendant John Canada for failing to engage his turn signal, one officer saw Defendant “strenuously arching his hips, reaching his right arm under the rear of his seat. Officers also believed Defendant delayed bringing his vehicle to a stop, which caused them concern. Defendant claimed the officers lacked reasonable suspicion to engage in a protective sweep. To this, the Tenth Circuit disagreed: the officers here could not have been sure that Defendant was dangerous or had a weapon present. But the furtive movement and slow roll provided enough for the officers to reasonably suspect that Defendant was both dangerous and had access to a weapon.”

USA v. Lisette Lopez

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-12709

Opinion Date: August 7, 2023

Judge: WILLIAM PRYOR

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

Defendant filed an Application for Naturalization (Form N-400), on which she certified under penalty of perjury that she had never “committed a crime or offense for which she was NOT arrested.” Defendant was charged in 2012 with healthcare fraud and conspiracy crimes. In 2012, Lopez pleaded guilty to conspiracy to commit money laundering. In 2021, the United States filed a complaint in the district court to revoke Defendant’s naturalization. The complaint alleged   had illegally procured her naturalization on the ground that she had failed to meet the requirement of “good moral character.” The government moved for judgment on the pleadings on the ground that Defendant had illegally procured her naturalization because she had committed a crime of moral turpitude during the statutory period. The district court granted that motion. It concluded that the conspiracy crime to which Defendant pleaded guilty overlapped with the statutory “good moral character.”
 
The Eleventh Circuit reversed and remanded. The court explained that structuring a transaction to avoid a reporting requirement, as defined by 18 U.S.C. section 1956(a)(1)(B)(ii), is also not a crime categorically involving moral turpitude. The offense does not necessarily involve fraud. And, although the crime arguably involves deceit, it does not necessarily involve an activity that is “inherently base, vile, or depraved.” Thus, the court held that a violation of section 1956(a)(1)(B) is not categorically a crime of moral turpitude.

In re: Sealed Case (AMENDED REDACTED OPINION)

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

Docket: 23-5044

Opinion Date: August 9, 2023

Judge: PAN

Areas of Law: Communications Law, Constitutional Law, Criminal Law, Internet Law

The district court issued a search warrant in a criminal case, directing appellant Twitter, Inc. ("Twitter") to produce information to the government related to the Twitter account "@realDonaldTrump." The search warrant was served along with a nondisclosure order that prohibited Twitter from notifying anyone about the existence or contents of the warrant. Although Twitter ultimately complied with the warrant, the company did not fully produce the requested information until three days after a court-ordered deadline. The district court held Twitter in contempt and imposed a $350,000 sanction for its delay. On appeal, Twitter argued that the nondisclosure order violated the First Amendment and the Stored Communications Act, that the district court should have stayed its enforcement of the search warrant, and that the district court abused its discretion by holding Twitter in contempt and imposing the sanction.
 
The DC Circuit affirmed. The court held that it affirmed the district court's rulings in all respects. The court wrote that the district court properly rejected Twitter's First Amendment challenge to the nondisclosure order. Moreover, the district court acted within the bounds of its discretion to manage its docket when it declined to stay its enforcement of the warrant while the First Amendment claim was litigated. Finally, the district court followed the appropriate procedures before finding Twitter in contempt of court - including giving Twitter an opportunity to be heard and a chance to purge its contempt to avoid sanctions. Under the circumstances, the court did not abuse its discretion when it ultimately held Twitter in contempt and imposed a $350,000 sanction.

State v. Honorable Chambers

Court: Arizona Supreme Court

Docket: CR-21-0388-PR

Opinion Date: August 7, 2023

Judge: Montgomery

Areas of Law: Criminal Law

The Supreme Court held that a county attorney's prior representation of Defendant, who was charged with the crime of possession of methamphetamine for sale, did not create an appearance of impropriety in the current prosecution warranting disqualification of the entire county attorney's office.

While still in private practice, Attorney represented Defendant in a marriage annulment matter, and Attorney eventually obtained a default annulment. Attorney was subsequently elected county attorney. The county attorney's office later charged Defendant with a drug-related crime. Defendant moved to disqualify the county attorney's office based upon an appearance of impropriety. The trial court granted the motion. The Supreme Court vacated the order disqualifying the county attorney's office, holding that there was no appearance of impropriety in the current prosecution because there was no substantial relationship between the annulment matter and the current matter upon which to conclude that Defendant would be prejudiced by the county attorney's office's continued prosecution.

California v. Vance

Court: California Courts of Appeal

Docket: E079750(Fourth Appellate District)

Opinion Date: August 7, 2023

Judge: Ramirez

Areas of Law: Constitutional Law, Criminal Law

Petitioner Gregory Vance, Jr., his girlfriend (and codefendant) Katherine Schumann, and the victim were operating a fraudulent check-cashing scheme. Vance and Schumann suspected the victim of taking more than his share of the proceeds. Armed with knives, they went to the victim’s home. By the time they left, the victim had been fatally stabbed. According to the prosecution’s evidence, it was Vance who stabbed the victim; according to petitioner, it was Schumann. Vance was convicted of (among other things) first degree murder, on a felony murder theory, and sentenced to 56 years to life in prison. The trial court denied Vance’s petition under Penal Code section 1172.61 to vacate his murder conviction. He appealed, arguing the trial court erred by: (1) considering only the facts as stated in the Court of Appeal’s opinion in Vance’s direct appeal, rather than the facts as shown by the record of conviction; and (2) applying an erroneously low burden of proof. After review, the Court of Appeal found Vance’s counsel forfeited the trial court’s erroneous reliance on the Court’s prior opinion by failing to object, and that in the absence of any objection, that prior opinion constituted substantial evidence. The Court also held that, in a section 1172.6 proceeding, the trial court’s erroneous application of an unduly low burden of proof was not reversible per se. “Rather, the appellant has the burden of showing that it is reasonably probable that, in the absence of the error, he or she would have enjoyed a more favorable outcome. As Vance has not even tried to meet this burden, we cannot say the error was prejudicial.”

People v. Vaesau

Court: California Courts of Appeal

Docket: A165925(First Appellate District)

Opinion Date: August 4, 2023

Judge: Humes

Areas of Law: Criminal Law

Based on events that occurred in 1991, when he was a minor, Vaesau was convicted of three counts of attempted premeditated murder and three counts of assault with a firearm, all six of which were accompanied by allegations of personal use of a firearm and personal infliction of great bodily injury, plus a separate. assault The court sentenced him to two consecutive life terms, plus 14 years.

Thirty years later, San Francisco’s then-District Attorney, Boudin, filed a request to resentence Vaesau under former Penal Code section 1170.03, now 1172.1, which authorizes a trial court, “at any time upon the recommendation of ... the district attorney,” to recall the sentence and resentence a defendant convicted of a felony. Weeks later, Boudin was recalled, and the new District Attorney moved to withdraw the request without offering a substantive reason for doing so. After briefing and a hearing, the trial court granted the motion without ruling on the merits. The court of appeal vacated. A trial court has discretion but is not required, to terminate a section 1172.1 proceeding when a district attorney identifies a legitimate basis for withdrawing the resentencing request and moves to withdraw before the court rules on the merits. Here, the district attorney here did not offer any such reason.

Maia v. Commissioner of Correction

Court: Connecticut Supreme Court

Docket: SC20786

Opinion Date: August 8, 2023

Judge: D’Auria

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

The Supreme Court reversed the judgment of the habeas court granting Petitioner's petition for a writ of habeas corpus, holding that the habeas court erred when it determined that trial counsel for Petitioner rendered deficient performance under Strickland v. Washington, 466 U.S. 668 (1984).

Petitioner was convicted of murder and sentenced to sixty-years' imprisonment. Petitioner later brought his habeas petition, claiming ineffective assistance of trial counsel. The habeas court determined that trial counsel rendered ineffective assistance by failing to recommend that Petitioner accept the court's pretrial offer of a forty-five-year sentence of incarceration. The Supreme Court reversed, holding that, under the circumstances of this case, counsel's representation of Petitioner did not amount to ineffective representation.

Watson v. Delaware

Court: Delaware Supreme Court

Docket: 410, 2022

Opinion Date: August 8, 2023

Judge: Traynor

Areas of Law: Constitutional Law, Criminal Law

The issue in this appeal was the prosecution’s use of Khalif Watson’s prior felony
convictions during cross-examination and in closing argument. The admissibility of the convictions was not at issue. Instead, Watson contended his conviction on weapons and resisting-arrest charges could not stand because the prosecutor asked him questions about his prior convictions that he had already answered on direct examination and then argued those convictions showed his propensity to possess weapons. Both of those tactics, appellant argued, were not only objectionable (though the appellant did not object in real time), but also amounted to prosecutorial misconduct so clearly prejudicial to his substantial rights that the Delaware Supreme Court should reverse his convictions. After review, the Supreme Court affirmed. “The questions the prosecutor asked on cross-examination, while arguably objectionable as cumulative, did not amount to prosecutorial misconduct. And even if we were to accept Watson’s characterization of the prosecution’s use of his prior convictions, he has failed to persuade us that the ensuing error was so clearly prejudicial of his rights as to compromise the fairness and integrity of his trial.”

State v. Larsen

Court: Kansas Supreme Court

Docket: 122660

Opinion Date: August 4, 2023

Judge: Marla J. Luckert

Areas of Law: Criminal Law

The Supreme Court overruled the holding in State v. Watson, 885 P.2d 1226 (1994) that the State can convict a defendant for attempted aggravated burglary without proving the defendant intended to enter an occupied dwelling, concluding that this holding is contrary to Kan. Stat. Ann. 21-5301(a).

On appeal from his conviction, Defendant argued that Watson's holding was contrary to section 21-5301(a), which imposes a specific intent requirement for all elements of the crime of attempted burglary. The Supreme Court agreed and overruled Watson's holding but, at the same time, affirmed Defendant's conviction for attempted aggravated burglary, holding that the State presented sufficient evidence that Defendant intended to enter a dwelling that was occupied at the time he committed an overt act.

Ardaneh v. Commonwealth

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13368

Opinion Date: August 8, 2023

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the judgment of a single justice of the court denying Petitioner's petitions filed pursuant to Mass. Gen. Laws ch. 211, 3 and associated motions, holding that Petitioner was not entitled to extraordinary relief to correct errors that may be reviewed in the ordinary process of trial and appeal.

Petitioner, who was indicted for rape and other charges and found incompetent to stand trial, was later determined to be competent to stand trial, and the proceedings were ongoing. In the petitions at issue, Petitioner made very general claims. The single justice declined to reach the merits of the petitions and denied relief. The Supreme Judicial Court affirmed, holding (1) the single justice did not err in denying the petitions; and (2) because this is the third time Petitioner sought extraordinary relief arising from the same criminal proceedings, Petitioner was on notice that further attempts to obtain such relief may result in the imposition of sanctions.

Kifor v. Commonwealth

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13427

Opinion Date: August 8, 2023

Judge: Per Curiam

Areas of Law: Criminal Law

In this action arising from litigation between Petitioner and the mothers of his children the Supreme Judicial Court affirmed the judgment of the single justice treating the underlying petition seeking relief in the nature of certiorari as a petition under Mass. Gen. Laws ch. 211, 3 and denying the petition without holding an evidentiary hearing, holding that extraordinary relief was not warranted.

In his petition, Petitioner sought correction of alleged errors in judicial proceedings, including rulings that he characterized as "gatekeeper" orders, claiming that he was precluded from seeking review of the orders because one or more of them was not timely entered on the docket of the probate and family court. The single justice denied relief. The Supreme Judicial Court affirmed, holding that Petitioner failed to carry his burden of demonstrating that adequate alternative remedies were not available to him.

State v. Buchan

Court: Minnesota Supreme Court

Docket: A22-0868

Opinion Date: August 2, 2023

Judge: Hudson

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

The Supreme Court affirmed Defendant's conviction of first-degree premeditated murder and his sentence of life in prison without the possibility of release, holding that Defendant was not entitled to relief on his allegations of error.

Specifically, the Supreme Court held (1) the district court did not violate Defendant's Sixth Amendment right to confrontation when it admitted the victim's dying declarations into evidence during the jury trial, and this Court reaffirms that dying declarations are an exception to the Confrontation Clause; (2) the district court did not violate Defendant's Fifth Amendment right to counsel by denying Defendant's motion to suppress his statements to police officers because Defendant validly waived his invoked right to counsel; and (3) there was no reasonable possibility that the admission of Spreigl evidence related to a prior assault charge into evidence significantly affected the verdict.

Lawrence v. Pasha

Court: Montana Supreme Court

Citation: 2023 MT 150

Opinion Date: August 8, 2023

Judge: Laurie McKinnon

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

The Supreme Court affirmed the order of the district court determining that there was no genuine dispute of material fact that a routine clothed body search did not violate Appellant's Eighth Amendment rights, holding that there was no error.

Appellant, an inmate, filed an amended complaint alleging that Sergeant Larry Pasha's performance of a routine clothed body search of Appellant violated his Eighth Amendment rights. The district court granted summary judgment to Appellees on all claims. The Supreme Court affirmed, holding that there was no genuine dispute of material fact that Sergeant Pasha's search of Appellant was routine and did not violate Appellant's Eighth Amendment rights.

State v. Worthan

Court: Montana Supreme Court

Citation: 2023 MT 151

Opinion Date: August 8, 2023

Judge: Laurie McKinnon

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the trial court denying Appellant's second petition for postconviction relief (PCR) relating to his convictions for two counts of sexual intercourse without consent, two counts of incest, and one count of tampering with a witness, holding that Appellant's second petition was time barred.

Based on a victim's affidavit, Appellant brought his second successive petition for PCR arguing that he had newly discovered evidence that the State had coached the victim. The district court dismissed the claims without ordering the State to respond. The Supreme Court affirmed, holding that Appellant's petition was time barred.

State v. Ezell

Court: Nebraska Supreme Court

Citation: 314 Neb. 825

Opinion Date: August 4, 2023

Judge: Michael G. Heavican

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the district court overruling Appellant's motion for disqualification and his criminal sentences imposed in connection with no contest pleas to four felony charges in relation to a law enforcement officer-involved shooting, holding that Appellant identified no error requiring reversal.

After the information against him was filed and the matter was assigned to the district court Appellant timely filed a motion to disqualify the trial judge, arguing that the reasonable person viewing the circumstances would question the court's impartiality. The trial court overruled the motion. Appellant later pleaded no contest to four felony charges, and the court sentenced him to consecutive terms of incarceration for a total of ninety-six to 116 years' imprisonment. The Supreme Court affirmed, holding that the district court did not err in overruling Appellant's motion for disqualification and did not abuse its discretion in fashioning an appropriate sentence.

New Jersey v. O’Donnell

Court: Supreme Court of New Jersey

Docket: A-17-22

Opinion Date: August 7, 2023

Judge: Stuart Rabner

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

Defendant Jason O’Donnell was a candidate for mayor of Bayonne, New Jersey in 2018. During the campaign, he allegedly accepted $10,000 in cash in a paper Baskin- Robbins bag from an individual. The State argued that in exchange for the money, defendant promised to appoint the individual as tax counsel for the city. The State charged defendant under the bribery statute. Defendant did not win the election. He contended the applicable statute did not apply to him because it did not cover candidates who accepted improper payments but were not elected. The trial court dismissed the indictment, finding that N.J.S.A. 2C:27-2(d) did not apply to defendant. The Appellate Division reversed. The New Jersey Supreme Court affirmed: the bribery statute applied to any “person” who accepts an improper benefit -- incumbents, candidates who win, and candidates who lose. The statute also expressly states that it is no defense to a prosecution if a person “was not qualified to act.”

New Jersey v. Zadroga

Court: Supreme Court of New Jersey

Docket: A-22-22

Opinion Date: August 9, 2023

Judge: Wainer Apter

Areas of Law: Constitutional Law, Criminal Law

In November 2017, Defendant Stephen Zadroga was driving over the speed limit when he was involved in a head-on collision with another vehicle. Defendant’s passenger, and best friend, died in the crash. Pursuant to a warrant, the State seized and tested what they thought was Defendant’s blood. The blood alcohol content (BAC) came back as 0.376%, more than four times the legal limit. Relying on that evidence, the grand jury charged Defendant with aggravated manslaughter, death by auto, and three counts of driving while intoxicated. After the nurse who drew defendant’s blood testified for the State at trial, the State realized that the blood they believed to be Defendant’s had actually come from a person who had died seven months before the accident. After the State discovered the error, Defendant moved to dismiss the indictment with prejudice because the grand jury had relied on false testimony to indict him. The trial court granted Defendant’s motion as to the counts of driving while intoxicated but denied the motion as to counts one and two, aggravated manslaughter and death by auto. The court found that allowing Defendant to be retried on the counts unrelated to intoxication would not violate his rights under the Double Jeopardy Clause both because he consented to the trial’s termination and because there was a manifest necessity to terminate the trial. The Appellate Division affirmed on manifest necessity grounds, adding that while the State could present counts one and two to a new grand jury, it could not present any evidence that defendant was under the influence of alcohol at the time of the collision. Defendant appealed, arguing that a retrial, even on the counts unrelated to intoxication, was barred by both the New Jersey and federal constitutions. Finding no constitutional violation, the New Jersey Supreme Court affirmed.

Oregon v. Benton

Court: Oregon Supreme Court

Docket: S069454

Opinion Date: August 10, 2023

Judge: Thomas A. Balmer

Areas of Law: Constitutional Law, Criminal Law

While being held pending trial for aggravated murder, Defendant Lynn Benton lived in the same unit as another adult in custody, Layman. Layman hoped to be an informant for the State and to pass on information about Defendant in exchange for a benefit in his own cases. Layman spoke with Defendant about his case and learned incriminating information. Layman ultimately signed a cooperation agreement to testify against Defendant. Before trial, Defendant moved to suppress Layman’s testimony, arguing that Layman acted as a state agent in questioning Defendant, thereby violating Defendant’s right to counsel. The trial court denied the suppression motion, citing insufficient evidence that Layman acted as a state agent. Layman testified; a jury ultimately convicted Defendant of aggravated murder. The Court of Appeals reversed, finding Layman was indeed a state agent by the time of his second proffer meeting because, by that point, the State’s involvement in Layman’s questioning of Defendant was sufficient to bring into effect constitutional protections. To this, the Oregon Supreme Court agreed: Defendant’s admissions to Layman made after a second proffer meeting should have been excluded. Defendant’s convictions were reversed and the matter remanded for a new trial.

John Doe v. Keel

Court: South Carolina Supreme Court

Docket: 28170

Opinion Date: August 9, 2023

Judge: James

Areas of Law: Criminal Law, Government & Administrative Law

The United States District Court for the District of South Carolina certified a question of law to the South Carolina Supreme Court. Plaintiff John Doe was a convicted sex offender who moved from South Carolina to Georgia in 2015. He filed suit in South Carolina in federal court against the Chief of the South Carolina Law Enforcement Division (SLED) Mark Keel, contending in part that because he no longer resided in South Carolina, SLED should be prohibited from continuing to publish his name and information on the South Carolina Sex Offender Registry. The question certified to the Supreme Court involved whether South Carolina’s Sex Offender Registry Act (SORA) permitted the publication of out-of-state offenders on the state’s public sex offender registry. The Supreme Court answered the question in the affirmative.

South Carolina v. Nelson

Court: South Carolina Supreme Court

Docket: 28171

Opinion Date: August 9, 2023

Judge: Kaye Gorenflo Hearn

Areas of Law: Constitutional Law, Criminal Law

A jury found Petitioner Carmie Nelson ("Carmie") guilty of murdering her roommate, and the trial court sentenced her to life imprisonment. Carmie appealed, arguing, among other things, that the trial court erred in admitting gruesome autopsy photos in contravention of Rule 403, SCRE. The court of appeals, finding no error, affirmed in an unpublished opinion. The South Carolina Supreme Court granted Carmie's petition for a writ of certiorari, and reversed: “the photos admitted here surpassed 'the outer limits of what our law permits a jury to consider.’”

State v. Kwai

Court: South Dakota Supreme Court

Citation: 2023 S.D. 42

Opinion Date: August 9, 2023

Judge: Devaney

Areas of Law: Criminal Law

The Supreme Court held that S.D. Codified Laws 32-34-5, which punishes defendants for their failure to stop and comply with the requirements of S.D. Codified Laws 32-34-3, applies regardless of whether the defendant's acts were intentional and that the evidence was sufficient to support Defendant's conviction under section 32-34-5.

After a jury trial, Defendant was found guilty of aggravated assault and felony hit and run. Defendant appealed. Appellate counsel then submitted a Korth briefing setting forth the issues Defendant wished to raise on appeal. The Supreme Court addressed only the brief's arguably meritorious issue, namely, whether the felony hit and run statute applies to intentional conduct. The Court then affirmed, holding that the felony hit and run statute applies regardless of whether the defendant's acts were intentional.

In re Pers. Restraint of Ansell

Court: Washington Supreme Court

Docket: 100,753-1

Opinion Date: August 10, 2023

Judge: Montoya-Lewis

Areas of Law: Constitutional Law, Criminal Law

Respondent Peter Ansell was serving an indeterminate life sentence in community custody. The Indeterminate Sentencing Review Board (ISRB) sought review of a Court of Appeals decision invalidating certain community custody conditions. After review, the Washington Supreme Court concluded the conditions relating to sexually explicit materials, dating, and relationships were not unconstitutionally vague. However, the Court determined the ISRB exceeded its authority in imposing the cannabis condition, to which the ISRB conceded was not related to Ansell’s crimes.

Veatch v. State

Court: Wyoming Supreme Court

Citation: 2023 WY 79

Opinion Date: August 10, 2023

Judge: Boomgaarden

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the trial court denying Appellant's pro se motion to correct an illegal sentence, holding that the district court did not abuse its discretion in denying the motion.

In his motion to correct an illegal sentence, Appellant argued that his two sentences for delivery of a controlled substance should be concurrent because the charges appeared in the same charging document, arose from the same arrest, and were tried under the same district court docket number. The district court denied the motion. The Supreme Court affirmed, holding (1) the two charges for delivery of methamphetamine were separate offenses arising from different transactions; and (2) the trial court did not violate double jeopardy protections by entering consecutive sentences for the two offenses.

Justia Legal Guides: Small Business Center

Chris Skelton

Starting a business is exciting but also risky. A business owner must account for many legal and practical concerns en route to realizing their vision. The Small Business Legal Center at Justia points out some issues to keep in mind.

Read More