Sosa v. Mass. Dep't of Correction

Court: US Court of Appeals for the First Circuit

Docket: 20-2051

Opinion Date: August 14, 2023

Judge: Kermit Victor Lipez

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

The First Circuit affirmed the judgment of the district court denying Plaintiff's request for preliminary injunctive relief challenging the restraint procedures used by the Massachusetts Department of Correction (DOC) under the Eighth Amendment and Title II of the Americans with Disabilities Act of 1990 (ADA), holding that the district court did not err in denying relief.

Plaintiff, an inmate who suffered from severe arthritis in his shoulder joints, challenged the restraint procedures used on him by the DOC, including "rear cuffing" with a single standard handcuff, then later rear cuffing using "double cuffs," and still later using custom modified handcuffs. In this action, Plaintiff argued that the unnecessary pain caused by these restraint procedures violated his constitutional and statutory rights and sought an order requiring the DOC to adopt his own proposed restraint procedure. The district court denied Plaintiff's request for preliminary relief. The First Circuit affirmed, holding that the district court properly determined that DOC did not respondent with deliberate indifference to Plaintiff's medical needs and that Plaintiff was unlikely to prevail on the merits of his ADA claim.

United States v. McGlashan

Court: US Court of Appeals for the First Circuit

Docket: 21-1421

Opinion Date: August 14, 2023

Judge: Jeffrey R. Howard

Areas of Law: Criminal Law, White Collar Crime

The First Circuit affirmed the judgment of the district court convicting Defendant of wire fraud and honest services wire fraud, and aiding and abetting the same, in violation of 18 U.S.C. 1343, 1346, and 2 (count seven) for participating in a fraudulent scheme to obtain tests and test scores from ACT, Inc., holding that the district court did not err.

Defendant, along with fourteen other parents, was named in an indictment resulting from an investigation into alleged fraudulent schemes designed to secure the admission of the children of the defendants into national elite universities. Defendant was charged with several crimes stemming from his payment of $50,000 to have an ACT proctor change his son's test scores. Defendant moved to dismiss count seven on the grounds that ACT test scores do not constitute money or property under the wire fraud statute. The motion was denied, and Defendant conditionally pled guilty. The First Circuit affirmed, holding (1) the property interest alleged in the indictment was the object of Defendant's fraud; and (2) Defendant's remaining arguments were either waived or without merit.

United States v. Perez Soto

Court: US Court of Appeals for the First Circuit

Docket: 20-1018

Opinion Date: August 16, 2023

Judge: Jeffrey R. Howard

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's convictions, entered after a jury trial, for distribution of controlled substances and possession of controlled substances with intent to distribute, holding that Defendant was not entitled to relief on his allegations of error.

On appeal, Defendant argued that statements made by the prosecutor during closing argument were improper, depriving him of his right to a fair trial, and that the district court erred by denying his motion to suppress drug evidence obtained during a search, pursuant to a warrant, of his residence. The First Circuit affirmed, holding that (1) Defendant's substantial rights were not affected by the prosecutor's alleged improper comments; and (2) there was no error in the denial of Defendant's motion to suppress.

United States v. Sylvestre

Court: US Court of Appeals for the First Circuit

Docket: 22-1057

Opinion Date: August 15, 2023

Judge: William Joseph Kayatta, Jr.

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

The First Circuit affirmed the judgment of the district court convicting Defendant, following a jury trial, of various firearm and controlled substance offenses, holding that none of Defendant's challenges on appeal had merit.

Specifically, the First Circuit held (1) the district court correctly concluded that the search warrant leading to Defendant's arrest was clearly supported by probable cause, and therefore, there was no error in the denial of Defendant's motion to suppress; (2) the district court did not err in concluding that the evidence was sufficient to support Defendant's convictions on the firearm charges; and (3) the district court's seventy-two-month sentence on count one was substantively reasonable.

Farhane v. United States

Court: US Court of Appeals for the Second Circuit

Docket: 20-1666

Opinion Date: August 11, 2023

Judge: JOHN M. WALKER, JR.

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

Petitioner appealed the denial of his habeas petition to vacate his 2006 guilty plea, conviction, and sentence. Defendant asserted that he received ineffective assistance of counsel because his lawyer did not warn him of the risks of denaturalization and possible subsequent deportation arising from his guilty plea.
 
The Second Circuit affirmed. The court explained that the Sixth Amendment guarantees criminal defendants the effective assistance of counsel during plea negotiations. Effective assistance includes warning defendants of the “direct” consequences of pleading guilty, such as the offense’s maximum prison term and the likely sentence as set forth in a plea agreement. However, the court explained that it has long held that an attorney need not warn of every possible “collateral consequence of conviction. And such collateral consequences are “categorically removed from the scope of the Sixth Amendment.” Thus, a defendant can only establish an ineffective assistance claim as to a collateral consequence if his attorney affirmatively misadvises him. Failing to warn of the collateral risk alone is not enough. The court explained that the instant appeal is resolved by the straightforward application of this direct/collateral framework. Accordingly, the court held that the distinction remains valid, that it applies to civil denaturalization, and that such denaturalization is a collateral consequence of the conviction, and so is not covered by the Sixth Amendment’s right to effective assistance of counsel.

United States v. Henderson

Court: US Court of Appeals for the Third Circuit

Docket: 22-2613

Opinion Date: August 15, 2023

Judge: Patty Shwartz

Areas of Law: Criminal Law

Police stopped Henderson for a traffic violation, searched his vehicle, and found a loaded semiautomatic firearm with an obliterated serial number and 13 rounds of ammunition. Henderson pled guilty to possession of a firearm by a convicted felon, 18 U.S.C. 922(g)(1). He had a prior state robbery conviction under 18 Pa. Cons. Stat. 3701(a)(1)(ii).

The court applied the U.S.S.G. 2K2.1(a)(4) sentencing enhancement based on Henderson’s robbery conviction, reasoning that section 3701(a) is divisible and Henderson was convicted of violating subsection (ii), which qualified as a “crime of violence” under U.S.S.G. 4B1.2(a). Subsection (ii) provides that a person is guilty of robbery if he “threatens another with or intentionally puts him in fear of immediate serious bodily injury,” which means a violation of the subsection necessarily “requires the purposeful use or threat of physical force against another.” With an enhancement for possessing a firearm with an obliterated serial number, U.S.S.G. 2K2.1(b)(4)(B), and a reduction for acceptance of responsibility, U.S.S.G. 3E1.1, his Guideline range was 57-71 months’ imprisonment.

The Third Circuit affirmed Henderson’s 60-month sentence, applying the “modified categorical approach,” and concluding that subsection (ii) involves the requisite force and mens rea to qualify as a crime of violence under 4B1.2’s elements clause.

Berman Justus, Jr. v. Harold Clarke

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-6351

Opinion Date: August 15, 2023

Judge: GREGORY

Areas of Law: Constitutional Law, Criminal Law

In November 2003, Petitioner shot and killed his estranged wife in the front seat of her car while their four-year-old son sat in the back. As part of the same incident, Petitioner also shot and killed his wife’s boyfriend. Petitioner was charged with capital murder, among other charges. The trial court rejected Petitioner’s insanity defense but cited his “severe mental illness” as a mitigating factor in declining to impose the death penalty. Petitioner subsequently attempted to collaterally attack his 2007 convictions and sentence in state court. After his state habeas petitions were dismissed, Petitioner sought habeas relief in federal court. The district court dismissed Petitioner’s 2013 federal habeas petition as untimely. Petitioner moved for reconsideration of the petition’s dismissal pursuant to Federal Rule of Civil Procedure 60(b) on the ground that his “multiple mental health disabilities . . . had prevented him from effectively petitioning the court for habeas relief.” The district court dismissed Petitioner’s Rule 60(b) motion, and this appeal followed.
 
The Fourth Circuit reversed the district court’s order denying Petitioner’s Rule 60(b) motion and remand the case to the district court. The court reaffirmed that Petitioner’s Rule 60(b) motion was timely filed and found that he is entitled to an evidentiary hearing on whether his mental illness during the relevant period entitled him to relief under Rule 60(b)(6) and equitable tolling of the statute of limitations governing his habeas petition. The court explained that Petitioner suffers from a serious mental illness. He has sufficiently alleged and provided evidence supporting the severity and continuing nature of his mental illness to at least justify an inquiry into whether and for how long his illness may have prevented him from filing his habeas petition.

US v. Kelvin Brown

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-7752

Opinion Date: August 16, 2023

Judge: GREGORY

Areas of Law: Constitutional Law, Criminal Law

On July 30, 2014, a jury convicted Defendant on seven counts, including two counts of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. Section 924(c). At the time of Defendant’s sentencing, his two Section 924(c) convictions carried a five- and twenty-five-year mandatory minimum sentence, respectively. The district court thus sentenced Defendant to thirty years in prison for his Section 924(c) convictions and, together with his other five convictions, to fifty-seven years’ imprisonment total. In July 2020, Defendant moved for compassionate release pursuant to 18 U.S.C. Section 3582(c)(1)(A). Defendant primarily argued that his release was warranted because he was at risk of serious illness from COVID-19 and because, under the First Step Act’s amendment to Section 924(c) sentencing, he would only be subject to a combined ten-year mandatory minimum for his two Section 924(c) convictions if sentenced today. The district court twice denied Defendant’s motion, each time without addressing the disparity between his Section 924(c) sentence and the much shorter mandatory minimums the First Step Act now prescribes.
 
The Fourth Circuit reversed and remanded. The court held that the district court abused its discretion by denying Defendant’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the Section 3553(a) sentencing factors overwhelmingly favor a sentence reduction. The court explained that because Defendant was subject to a mandatory minimum sentence that is twenty years longer than it would be if he were sentenced today for the same conduct, a sentence reduction is necessary to mitigate the gross disparity between Brown and similarly situated defendants.

US v. Michael Draven

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-7171

Opinion Date: August 11, 2023

Judge: GREGORY

Areas of Law: Constitutional Law, Criminal Law

Following a jury trial, Defendant was convicted—and issued three concurrent life sentences—for conspiracy to commit murder for hire resulting in death and aiding and abetting carjacking resulting in death, and one count of 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 now appealed the district court’s denial of his 28 U.S.C. Section 2255 motion to vacate his conviction. He argued 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 under 18 U.S.C. Section 924(c)(3).
 
The Fourth Circuit affirmed. The court concluded that because aiding and abetting carjacking resulting in death remains a valid predicate offense under Section 924(c)(3)(A), Defendant’s 924(j) conviction must stand. The court wrote that that predicate, alone, is sufficient to support his Section 924(j) conviction. Moreover, the court concluded that post-Davis and Taylor, aiding and abetting carjacking resulting in death remains a crime of violence under either Sections 924(c)(3)(A)’s force or elements clause. Due to this, the court wrote, it need not reach the validity of Defendant’s conspiracy to commit murder for hire resulting in death predicate, and the court held that his Section 924(j) conviction stands irrespective of the ambiguity in the general verdict form.

US v. Patrick Mitchell

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-4284

Opinion Date: August 17, 2023

Judge: DEANDREA GIST BENJAMIN

Areas of Law: Constitutional Law, Criminal Law

Defendant pled guilty without a plea agreement to possession of a firearm by a convicted felon. At issue in this appeal is the district court’s application of two enhancements to Defendant’s Sentencing Guidelines offense level. First, the court applied a four-level enhancement for possession of a firearm in connection with another felony offense, specifically felony possession of drugs. Second, the court applied a six-level enhancement for the knowing creation of a substantial risk of serious bodily injury to a law enforcement officer.
 
The Fifth Circuit affirmed the application of the six-level enhancement. As to the four-level enhancement, because the court made no findings connecting Defendant’s possession of a firearm to his felony drug possession, the court vacated Defendant’s sentence and remanded for resentencing. The court reasoned that battery is a general intent crime that requires only the intentional performance of the unlawful act. With these principles in mind, the court concluded the evidence on this record establishes that Defendant’s conduct encompassed the requisite intent to satisfy Section 3A1.2(c)(1)’s assault requirement where Defendant did not simply throw one reflexive punch at Jones but threw repeated punches to his head and arms. Further, the court explained that without deciding whether the application of Section 2K2.1(b)(6)(B) is supported under the facts of the present case, the court restated that the district court must first evaluate whether evidence exists to support a finding that Defendant’s possession of the gun facilitated or had the potential to facilitate his possession of drugs.

Johnson v. Lumpkin

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-70005

Opinion Date: August 11, 2023

Judge: Per Curiam

Areas of Law: Criminal Law, Professional Malpractice & Ethics

Appellant Matthew Johnson filed a petition for a writ of habeas corpus and separately moved to recuse the district judge to whom that petition was assigned. On appeal, The Fifth Circuit denied Petitioner’s motion for a certificate of appealability, explaining that each of his arguments had already been considered and rejected by binding precedent. The court also affirmed the district court’s denial of Defendant’s motion to recuse.
 
The Fifth Circuit denied the petition. The court explained that Defendant petitioned for rehearing en banc, arguing that the panel opinion stands for the proposition that a district court has the power to shorten the one-year statute of limitations. The court explained that the opinion stands for no such thing. It holds only that the district court’s case-management order is not a ground for disqualification under 28 U.S.C. Section 455(a). Especially probative for that holding is the fact that the district court ultimately granted Johnson the extension he sought. The court explained that its conclusion that the district court was not required to recuse says nothing about the hypothetical issue of whether a district court would commit legal error if it did order a post-conviction habeas petitioner to file his petition before the deadline provided by the statute of limitations.

USA v. Alkheqani

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-10966

Opinion Date: August 17, 2023

Judge: John W. deGravelles

Areas of Law: Constitutional Law, Criminal Law

Defendant appealed the district court’s denial of his motion to suppress on two grounds: (1) that officers lacked reasonable suspicion to initiate a traffic stop of his vehicle, and (2) that Defendant did not voluntarily consent to the search of his home and truck during the stop. Defendant also appealed his sentencing, arguing that the district court erred in relying on the Pre-Sentence Investigation Report (“PSR”) to sentence him under the Armed Career Criminal Act (“ACCA”) rather than any evidence required by Shepard v. United States 544 U.S. 13 (2005).

The Fifth Circuit affirmed the denial of Defendant’s motion to suppress but reversed the district court’s application of the ACCA, vacated his sentence, and remanded for further proceedings. The court explained that the Shepard-documents do not conclusively show that Defendant’s predicate offenses occurred on three separate occasions. Thus, the district court’s error affected a substantial right, and the court wrote that it must vacate the sentence. Further, given the fact that Wooden was decided after the notice of appeal was filed, the court remanded the case for a full resentencing, at which time the Government may introduce any additional Shepard evidence into the record.

USA v. Brooks

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-30369

Opinion Date: August 11, 2023

Judge: Stephen A. Higginson

Areas of Law: Civil Procedure, Criminal Law

Defendant appealed the district court’s entry of an order of forfeiture as part of his criminal sentence for his drug and money laundering conspiracy offenses.
 
The Fifth Circuit affirmed. The court explained that there are two paths available to defendants who plead guilty pursuant to a plea agreement but who later seek to allege that ineffective lawyering caused a mistaken, involuntary, or unknowing guilty plea. Defendants can either file a collateral attack on the guilty plea under 28 U.S.C. Section 2255,3 or, before the imposition of sentence, move to withdraw the guilty plea under Rule 11. However, the court explained that but what a defendant “may not do is pick and choose which portions he wishes to abide by and which he wishes to appeal.” Thus, the court explained that if Defendant wishes to pursue relief from his sworn stipulation that his Florida condo and credit union money was forfeitable, he must do so through a Section 2255 motion challenging the entire guilty plea. The result, if successful, would be for all parties to start over.

USA v. Cuff

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-30694

Opinion Date: August 17, 2023

Judge: Edith H. Jones

Areas of Law: Constitutional Law, Criminal Law

Defendant a federal prisoner, appeals the denial of this 28 U.S.C. Section 2255 motion alleging breach of his plea agreement based on serious allegations against Assistant U.S. Attorneys and ineffective assistance of counsel.
 
The Fifth Circuit disagreed with the district court’s application of the procedural bar to the breach-of-plea agreement claim and reversed and remanded but affirmed its disposition of the ineffective assistance of counsel claim. The court explained that further factfinding is necessary to decide whether Defendant was prejudiced. To show prejudice, “the petition must show 'not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’” Here, the court explained that the government argues that Defendant cannot establish prejudice because the Louisiana USAO did not breach the plea agreement and because Defendant would have pled guilty even if he knew of the second indictment. The court reasoned that the district court is in the best position to determine the veracity of these claims. But the district court grounded its ruling on the cause and never addressed the arguments regarding prejudice. Therefore, the court remanded to the district court with instructions to determine (1) whether Defendant or his counsel knew or should have known of the Texas indictment before Defendant’s sentencing and (2), if not, whether Defendant was prejudiced.

USA v. Harris

Court: US Court of Appeals for the Fifth Circuit

Docket: 23-30030

Opinion Date: August 11, 2023

Judge: Per Curiam

Areas of Law: Civil Rights, Criminal Law

Defendant asserts that he is required by his religious faith to abstain from psychiatric medication. Because he is not competent to stand trial, though, the government requested to involuntarily medicate him, and the district court granted the motion.
 
The Fifth Circuit held that the district court did not err in concluding that the government had satisfied the conditions for involuntary medication set out in Sell v. United States, 539 U.S. 166, 180–81 (2003). However, the court wrote that the district court should also have analyzed whether any statutory religious-freedom protections apply to Defendant. The court vacated and remanded for the district court to consider that issue. The court held that the government psychiatrist’s medical opinion is sufficient evidence that involuntary medication will “significantly further” the government’s interest. And “whatever the strength of that evidence,” Defendant “provides no reason to question its accuracy.” Thus, the court agreed with the district court that the government has provided enough evidence to satisfy the second prong.

USA v. Massey

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-10478

Opinion Date: August 16, 2023

Judge: Edith H. Jones

Areas of Law: Constitutional Law, Criminal Law

Prisoner, DefendanDefendant, a prisoner, brought an ineffective-assistance-of-counsel claim under 28 U.S.C. Section 2255. His claims rest on the argument that his sentence for the latter offense should have been adjusted to reflect the 13 months he had already spent in prison for his first conviction. Defendant brought this 2255 petition in the Northern District of Texas, faulting his trial counsel for failing to adequately advocate for “back time” at sentencing and faulting his appellate counsel for not raising the issue on appeal. The magistrate judge recommended that relief be denied. The district judge (the same judge who sentenced Defendant in the Northern District) adopted the recommendation, dismissed the claims, and denied a certificate of appealability.
 
The Fifth Circuit granted a certificate of appealability and affirmed. The court explained that it is true that the Sentencing Guidelines call for credit for time served if there are two related offenses. Both parties agree the offenses are related here. Yet the Guidelines are not obligatory, and the judge in the Northern District of Texas instead sentenced Defendant under U.S.S.G. Section 5G1.3(d). Thus, Defendant’s sentences were treated as concurrent from the day of the second sentencing but did not account for the 13 months of back time. None of this means that Defendant’s lawyers were constitutionally deficient. Defendant’s trial counsel argued for the application of U.S.S.G. Section 5G1.3(b) in a memorandum and noted the argument in open court; he was not constitutionally obliged to do more. Defendant’s appellate counsel was not deficient for failing to raise the issue because the district court did not contravene any binding case law.

USA v. Powell

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-10544

Opinion Date: August 15, 2023

Judge: Patrick E. Higginbotham

Areas of Law: Constitutional Law, Criminal Law

Defendant’s sentence was enhanced by enhancement provisions in the Armed Career Criminal Act. Powell appeals, arguing that following the Supreme Court’s decision in United States v. Taylor, a conviction for Texas robbery-by-threat is no longer a predicate offense under that act. Defendant argued that Garrett cannot stand post-Taylor.
 
The Fifth Circuit affirmed. The court explained that attempted Hobbs Act robbery does not satisfy the elements cause. Taylor thus expressly addresses offenses that criminalize attempts that may be undertaken without a use or threat of force. The court explained that in other words, Taylor does not reach the crime at issue here and cannot be said to clearly overturn Garrett. Thus, Taylor does not undermine or contravene Garrett’s conclusion that Texas robbery-by-threat constitutes a violent felony.

USA v. Reinhart

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-10103

Opinion Date: August 16, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty, with a plea agreement, to one count of misprision of a felony, to wit: wire fraud. Because of the substantial assistance that he provided the government, the district court sentenced him below the guidelines range to six months of imprisonment. The district court also ordered Defendant to pay $40,254,297.72 in restitution, jointly and severally, with other defendants, pursuant to the Mandatory Victims Restitution Act (“MVRA”). Defendant appealed the district court’s restitution order. The government moved to dismiss the appeal as barred by Defendant’s appeal waiver; that motion was carried with the case, and the case was fully briefed on the merits.
 
The Fifth Circuit vacated the restitution order and remanded for the district court to conduct further fact-finding and to adjust the award if necessary. The court held that Defendant’s appeal fits within an exception to his appeal waiver. The court explained that Defendant’s argument that the district court awarded restitution for losses caused by conduct not encompassed by his offense of conviction or by conduct specified in his guilty plea and for losses that predate his involvement with RDAG is a statutory-maximum challenge. Further, the court left it to the district court on remand to make any additional factual findings necessary to determine the amount of restitution statutorily authorized by the MVRA and to enter a new restitution order in that amount.

USA v. Stanford

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-20388

Opinion Date: August 17, 2023

Judge: Jennifer Walker Elrod

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of thirteen financial crimes. Defendant filed a series of pro se motions for compassionate release. This appeal arises from Defendant's third such motion. Defendant asked to be released based on the dangers posed by the pandemic, his close confinement with other prisoners, his age, and his preexisting heart condition. He also states that his wire fraud conviction was wrongful because it was predicated on a purely intrastate wire transmission and that a wrongful conviction is an extraordinary and compelling reason justifying relief. The motion was denied in a brief order shortly after being filed.
 
The Fifth Circuit ordered a limited remand for the district court to explain its reasons. The court explained that the district court’s order does not tell us that the court based its decision on Section 3553(a) factors. It states only that the court “considered Defendant’s motion and the applicable law” and determined that the motion should be denied. The court explained that, therefore, it has no reliable indication of the reason for the court’s decision to deny relief.

Davis v. Jenkins

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-3404

Opinion Date: August 16, 2023

Judge: Karen Nelson Moore

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

Based on a 1983 murder, a three-judge panel convicted Von Clark Davis of aggravated murder and sentenced him to death. On direct appeal, Davis’s sentence was vacated, but on remand, the same three-judge panel again sentenced him to death. The Sixth Circuit subsequently vacated Davis’s death sentence on appeal of his first federal habeas petition. A different three-judge panel again sentenced Davis to death. Davis again petitioned for a writ of habeas corpus. The district court denied the petition.

The Sixth Circuit reversed in part and granted conditional relief on claims that the state violated Davis’s constitutional rights by enforcing his 1984 jury waiver against him at his third sentencing hearing in 2009 and that Davis’s trial counsel provided ineffective assistance at Davis’s 2009 sentencing hearing by failing to move to recuse a judge for bias and in failing to reasonably prepare and present mitigation evidence. The court rejected claims that Davis’s trial counsel provided ineffective assistance by failing adequately to advise him of the collateral consequences of a jury waiver and that Davis’s trial attorneys were constitutionally ineffective in failing to investigate and present mitigating evidence about the circumstances of Davis’s prior conviction, which provided the aggravating circumstance that made him eligible for the death penalty

Johnson v. Sootsman

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-1937

Opinion Date: August 16, 2023

Judge: Murphy

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

While serving a short sentence for domestic violence, Johnson caused a disturbance in a jail’s intake area. Officers were taking Johnson to his cell when he disobeyed orders to slow down. Another officer, Deputy Sootsman, stopped him. After a brief exchange, Johnson stepped in Sootsman’s general direction. Sootsman testified that he viewed this conduct as a threat. In response, he immediately grabbed Johnson’s neck, pushed him against the wall, and took him to the ground to be handcuffed. This force lasted about seven seconds. Investigators found that Sootsman’s actions violated jail policies. Sootsman pleaded guilty to a misdemeanor battery.

Johnson sued Sootsman, citing the Eighth Amendment. The Sixth Circuit affirmed the summary judgment rejection of the claim. Johnson failed to meet the demanding standard of proving that Sootsman used force “maliciously and sadistically for the very purpose of” inflicting pain. Johnson’s claim fails if Sootsman used force out of a belief—even an unreasonable belief—that the force was necessary to control Johnson. The states may impose stricter limits on officers than the Constitution demands, so Johnson may try to seek relief under state tort law.

Keith v. Hill

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-3948

Opinion Date: August 15, 2023

Judge: Raymond M. Kethledge

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

In 1994, Keith and his uncle were charged with cocaine trafficking based on information provided by Chatman, a confidential informant. Weeks later, someone shot six of Chatman’s relatives, killing three of them. A survivor identified Keith as his attacker. An Ohio jury convicted Keith of triple homicide and sentenced him to death.

Keith has filed four federal habeas petitions; three have claimed “Brady” violations. This petition was filed after Keith received the personnel file for Yezzo, a forensic expert who testified at Keith’s trial that she could confirm that the perpetrator’s car had left a partial license plate imprint of the numbers “043” in the snow, matching the license plate on an Oldsmobile driven by Keith’s girlfriend (Davison) and that the tire tracks matched the tires Davison’s grandfather had purchased for the Oldsmobile—though they did not match the tires actually installed on it when the car was found. Yezzo’s file showed that Yezzo’s supervisors, colleagues, and union representatives had expressed concerns about the reliability of her work, even stating that Yezzo would “stretch the truth.” Keith submitted a new forensic analysis that concluded that the snow impressions were not consistent with the Oldsmobile. Ohio state courts again denied relief.

The Sixth Circuit affirmed the denial of relief. Keith cannot show that no reasonable juror today would convict him in light of the “evidence as a whole.” The full record contains significant additional evidence of Keith’s guilt.

Sorrell v. United States

Court: US Court of Appeals for the Sixth Circuit

Dockets: 21-1779, 21-1768

Opinion Date: August 16, 2023

Judge: Nalbandian

Areas of Law: Criminal Law

Motorcycle gang members Nicholson and Sorrell were charged with conspiracy and aiding and abetting assault under the Violent Crimes in Aid of Racketeering (VICAR) statute. The district court instructed the jury that either of those two offenses could serve as a predicate offense for another count involving the use or carrying of a firearm during and in relation to a crime of violence, 18 U.S.C. 924(c). The jury convicted both men on those three counts and the convictions were affirmed. The jury did not explicitly answer which predicate offense met 924(c)’s crime-of-violence requirement

The Sixth Circuit affirmed the denial of their 28 U.S.C. 2255, motions to vacate their section 924(c) convictions. The 924(c) convictions rested on a valid predicate offense. While a VICAR conspiracy is not a crime of violence, a VICAR aiding-and-abetting assault with a dangerous weapon is because an element of the offense requires a finding of the use or threatened use of physical force. The jury was improperly instructed that it could base convictions for the 924(c) count solely on a conviction for VICAR] conspiracy but the error was harmless.

United States v. Chappelle

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-1969

Opinion Date: August 15, 2023

Judge: Karen Nelson Moore

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

In 1997-2009, Chappelle managed Terra and withheld federal income, Social Security, and Medicare taxes (trust fund taxes) from Terra’s employees’ wages, 26 U.S.C. 3102, 3402, 7501, but failed to remit them to the IRS in 2007-2009. The IRS imposed “trust fund recovery penalties” on Chappelle. To avoid paying, Chappelle misstated his income and assets. He used business funds to pay personal expenses. He purchased real estate in others’ names rather than his own. Chappelle repeated this cycle in 2009-2016 after he closed Terra and sequentially opened three more companies. Chappelle repeatedly moved assets.

In a 2016 IRS interview, Chappelle made false statements about his real estate purchases. Chappelle subsequently falsely claimed that the latest company did not have any employees and was entitled to a tax refund. Chappelle pleaded guilty to willfully attempting to evade the payment of the Trust Fund Recovery Penalties in 2008-2009. Chappelle’s PSR calculated a total tax loss of $1,636,228.28 and recommended increasing Chappelle’s offense level by two levels for his use of sophisticated means, U.S.S.G. 2T1.1(b). The district court overruled Chappelle’s objections, calculated his guideline range as 37-46 months, considered the 18 U.S.C. 3553(a) factors, and sentenced Chappelle to 38 months’ imprisonment. The Sixth Circuit affirmed, rejecting arguments that the court miscalculated the tax loss and erroneously found that his offense involved sophisticated means.

United States v. Jaffal

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-3552

Opinion Date: August 14, 2023

Judge: Ronald Lee Gilman

Areas of Law: Criminal Law

Jaffal was convicted of two counts of possessing controlled substances with the intent to distribute the drugs, 21 U.S.C. 841(a)(1). Count 1 involved 35.69 grams of a mixture containing heroin and carfentanil that was found in Jaffal’s pocket when police responded to a 911 call and found him unresponsive. Count 2 involved 27 pills containing fentanyl and 4-ANPP (a schedule II controlled substance) that were found in Jaffal’s pocket following a traffic stop weeks later. Jaffal was also convicted of using or carrying a firearm in relation to a drug-trafficking crime, 18 U.S.C. 924(c), and as a felon in possession of a firearm, section 922(g)(1).

The Sixth Circuit affirmed in part and remanded. The district court did not err in admitting recordings of his phone calls from jail to show Jaffal’s intent. Statements by the other speaker that referenced hiding evidence, financial struggles, and what the police found on Jaffal when he overdosed were properly admitted to provide context to Jaffal’s own statements. A detective did not improperly provide expert testimony about Jaffal’s state of mind; the detective never mentioned Jaffal’s intent but noted only that the evidence was consistent with distribution. However, because the element of intent is sufficiently in dispute, the district court abused its discretion in denying Jaffal’s request for a jury instruction on the lesser-included-offense instruction of simple drug possession.

United States v. Wilkes

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-1436

Opinion Date: August 11, 2023

Judge: Davis

Areas of Law: Criminal Law

Wilkes pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1), 921(a), 924(a).
His prior convictions included four Michigan convictions for the delivery/manufacture of cocaine from 1995, 2006, and 2007. The district court accepted Wilkes’s plea and applied the 15-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e).

Wilkes challenged the ACCA sentence, arguing that Michigan’s law includes ioflupane and federal law does not and that Michigan includes all the stereoisomers of cocaine, while federal law does not, so his prior convictions are not serious drug offenses. Wilkes also argued that the district court improperly overruled his objection to the inclusion of proffer-protected information in the PSR.

The Sixth Circuit affirmed a finding that federal law covers the same isomers of cocaine as Michigan law and the rejection of Wilkes’s objection to the inclusion of proffer-protected information as harmless error. The court retained jurisdiction over Wilkes’s challenge to his ACCA enhancement based on ioflupane, noting the Supreme Court’s 2023 grant of certiorari in “Jackson.” on the issue of “[w]hether the classification of a prior state conviction as a 'serious drug offense’ under the [ACCA] depends on the federal controlled-substance schedules in effect at the time of the defendant’s prior state crime, the time of the federal offense for which he is being sentenced, or the time of his federal sentencing.”

Coleman v. United States

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1678

Opinion Date: August 15, 2023

Judge: Lee

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

In 2013, Coleman was convicted of conspiring to distribute crack cocaine, 21 U.S.C. 841(a)(1), (b)(1)(A), 846. Coleman was sentenced to the then-mandatory term of life imprisonment based on having at least two prior convictions for a “felony drug offense,” section 841(b)(1)(A). The Seventh Circuit affirmed.

Coleman’s pro se motion to vacate his sentence, 28 U.S.C. 2255, asserted that his appointed counsel, Vaupel, was ineffective for failing to inform him of the government’s pretrial 21 U.S.C. 851 Notice of Enhancement, indicating its intention to seek life imprisonment based on his prior Illinois cocaine-related convictions. According to Coleman, had Vaupel shown him this notice, he never would have agreed to go to trial. Vaupel responded that he had repeatedly informed Coleman that he faced a mandatory life sentence and that the government was unwilling to waive the enhancement. Coleman moved to amend his petition to argue that Vaupel was ineffective by failing to argue that Coleman’s convictions did not qualify as “felony drug offenses” because Illinois defined “cocaine” more broadly than federal law. The district court denied Coleman’s section 2255 motion, and his motion to amend as not relating back to his initial pleading and untimely.

The Seventh Circuit reversed. The district court must determine whether Vaupel considered a possible categorical challenge to Coleman’s predicate offenses and, if he did consider it, his reasons for not raising it. Coleman has established that he was prejudiced by counsel’s purportedly deficient performance.

Nelson v. Town of Paris

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2435

Opinion Date: August 16, 2023

Judge: Lee

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Real Estate & Property Law

In 2008, Paris, a small, rural Kenosha County, Wisconsin community, enacted its “Sex Offender Residency Restrictions” ordinance, limiting where certain designated sex offenders could live within the town. The ordinance prohibits designated offenders from living within 6,500 feet of certain protected locations where children are known to congregate and prohibits designated offenders from living within 6,500 feet of any other designated offender. Nelson, a former Paris resident and designated offender, was cited for violating the ordinance’s designated offenders restriction. His suit under 42 U.S.C. 1983, argued that the ordinance—both facially and as applied—violated his constitutional right to substantive due process and Article I’s prohibition on ex post facto laws.

The Seventh Circuit affirmed, in part, summary judgment in favor of Paris, noting that Nelson conceded that the “protected locations” ordinance is rationally related to Paris’s legitimate interest in protecting children. Paris’s restriction prohibiting designated offenders from living within 6,500 feet of protected locations does not violate the Constitution’s Ex Post Facto Clause because it is not “so punitive either in purpose or effect” as to negate Paris’s nonpunitive intent for the restriction. The court remanded the question of Paris’s restriction prohibiting designated offenders from living within 6,500 feet of each other.

United States v. Alexander

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2802

Opinion Date: August 11, 2023

Judge: ROVNER

Areas of Law: Constitutional Law, Criminal Law

ShotSpotter devices alerted to possible gunshots on Chicago’s west side. Police officers began monitoring the area, using remote-controlled cameras, which had been positioned in high-crime locations. They saw a large group congregating on that block and a man handing a gun to Alexander. Alexander held the gun openly for several seconds before concealing it in his waistband. The officers who saw the hand-off went to the scene. When they arrived, Alexander turned away and stepped behind another man, then pushed against a fence that was blocking his way. Soon his arms were grabbed by the officers, who handcuffed and frisked him. One officer felt an L-shaped object in Alexander’s waistband and retrieved a loaded gun. Alexander was charged with possessing a firearm after being convicted of a felony, 18 U.S.C. 922(g)(1).

The Seventh Circuit affirmed the denial of his motion to suppress. Because it was not obvious at which point Alexander was arrested, the court employed the probable cause standard. Probable cause exists when an objectively reasonable officer—with the same information known by the arresting officer—would believe there is a probability or substantial chance of criminal activity. Even if the officers did not know that Alexander had a felony conviction or lacked a concealed-carry license, they had probable cause to believe that he violated the Illinois Firearm Concealed Carry Act. Objectively reasonable officers could infer criminal activity from their knowledge that he possessed a gun and his furtive movements.

United States v. Gunter

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1546

Opinion Date: August 11, 2023

Judge: ROVNER

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

Gunter and Grommet participated in a conspiracy to deliver methamphetamine, including a controlled purchase of actual methamphetamine from Gunter by law enforcement agents. A September 17, 2019 indictment charged Gunter and Grommet of conspiring to distribute and possessing with intent to distribute at least 50 grams of methamphetamine, 21 U.S.C. 841(a)(1), (b)(1)(A), 846. Gunter was arrested on July 2, 2020. The court set an initial trial date of August 31, 2020. Over the next 23 months, the trial was repeatedly rescheduled. Gunter first requested continuances; later continuances were at the request of Grommet, who was evaluated for competency and whose lawyer subsequently died. When Gunter eventually (unsuccessfully) sought severance, he did not cite Speedy Trial Grounds.

Days before trial, Gunter unsuccessfully moved to dismiss the indictment alleging a violation of his Sixth Amendment speedy trial rights. The Seventh Circuit affirmed Gunter’s conviction after considering the length of and reasons for the delay, whether the defendant asserted his right to a speedy trial, and any prejudice the defendant suffered. Although Gunter first moved to dismiss the indictment on the basis of his right to a speedy trial immediately before trial, he opposed motions for continuances and asserted his desire for a speedy trial numerous times. The delays could not be attributed to the government. Gunter made no argument that he experienced any prejudice from the delay, and no strong showing of prejudice is obvious in the record.

Aarin Nygaard v. Tricia Taylor

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2277

Opinion Date: August 15, 2023

Judge: KELLY

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

Petitioner filed a petition for a writ of habeas corpus in the District of South Dakota challenging the Cheyenne River Sioux Tribal Court’s exercise of jurisdiction in a custody matter involving his minor daughter, C.S.N. Petitioner claimed that the Tribal Court’s refusal to recognize and enforce North Dakota state court orders awarding him custody of C.S.N. violated the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. Section 1738A. The district court granted summary judgment to the Tribal Court after concluding that the PKPA does not apply to Indian tribes. Petitioner appealed.
 
The Eighth Circuit affirmed. The court concluded that the PKPA does not apply to Indian tribes. As a result, the Cheyenne River Sioux Tribal Court is not obligated under that statute to enforce the North Dakota court orders awarding custody of C.S.N. to Petitioner. The district court properly granted summary judgment to the Tribal Court. The court further explained that its conclusion that the PKPA does not apply to Indian tribes is further supported by the fact that when Congress intends for tribes to be subject to statutory full-faith-and-credit requirements, it expressly says so.

Garfield Green v. Merrick B. Garland

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2335

Opinion Date: August 16, 2023

Judge: Per Curiam

Areas of Law: Criminal Law, Immigration Law

Petitioner initially entered the United States on a traveler’s visa, but he later became a permanent resident after marrying a United States citizen. Then, roughly a decade later, he and his accomplices robbed a delivery van belonging to “an ATM vendor.” Petitioner pleaded guilty to one count of Hobbs Act robbery and spent five years in prison. Once immigration officials found out about the conviction, they started removal proceedings. As relevant here, the government argued he was removable because Hobbs Act robbery is a crime of violence. The immigration judge and the Board agreed and refused to waive inadmissibility.
 
The Eighth Circuit affirmed. The court explained that Hobbs Act robbery requires proof of an “unlawful taking or obtaining of personal property from the person . . . of another, against his will, by means of actual or threatened force.” Thus, Petitioner is removable for having committed a “crime of violence.” Moreover, the court wrote that the decision in Taylor “does not change our position” that a completed Hobbs Act robbery is a crime of violence.

United States v. Adrian Weems

Court: US Court of Appeals for the Eighth Circuit

Docket: 23-1245

Opinion Date: August 11, 2023

Judge: LOKEN

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to conspiracy to distribute methamphetamine in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(A), and 846. He was sentenced to 120 months’ imprisonment followed by five years of supervised release. One special condition of supervised release required him to participate in a sex offender treatment program. At sentencing, the district court1 overruled Defendant’s objection to this special condition because the government advised that he “had just been released from prison in 2014 for violating the terms of his Sex Offender Registry.” Defendant appealed.
 
The Eighth Circuit affirmed and dismissed the appeal as moot. The court explained that the issue in the first revocation proceeding – Defendant’s refusal to attend sex offender treatment -- is behavior “capable of repetition” while “evading review.” Therefore, when the appeal in No. 23-1245 was filed, the court delayed ruling on the mootness issue, anticipating Defendant might challenge reimposition of this special condition in the second revocation sentence. But, the court wrote, he failed to do so. Additionally, neither brief in No. 23-1245 challenges the special conditions of supervised release reimposed in the second revocation sentence, including the sex offender treatment condition. The condition challenged in No. 22- 2610 was reimposed in the second revocation sentence and not challenged in the appeal of that sentence. Therefore, the court dismissed the appeal in No. 22-2610 as moot.

United States v. Alfonso McKenzie

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1954

Opinion Date: August 17, 2023

Judge: Melloy

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

Defendant was sentenced to 30 months of imprisonment after McKenzie pled guilty to failure to register as a sex offender in violation of 18 U.S.C. 2250(a). Defendant appealed, arguing the district court incorrectly applied U.S.S.G. 5G1.3(b) by failing to account for the time he had served in Florida for a related state offense.

Agreeing with Defendant, the Eighth Circuit reversed Defendant's sentence, finding that the district court did not reduce the sentence after finding the time served in Florida was for relevant conduct. Thus, the Eighth Circuit vacated Defendant's sentence and remanded for clarification.

United States v. Alfonso McKenzie

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1954

Opinion Date: August 17, 2023

Judge: Melloy

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

Defendant was sentenced to 30 months of imprisonment after McKenzie pled guilty to failure to register as a sex offender in violation of 18 U.S.C. 2250(a). Defendant appealed, arguing the district court incorrectly applied U.S.S.G. 5G1.3(b) by failing to account for the time he had served in Florida for a related state offense.

Agreeing with Defendant, the Eighth Circuit reversed Defendant's sentence, finding that the district court did not reduce the sentence after finding the time served in Florida was for relevant conduct. Thus, the Eighth Circuit vacated Defendant's sentence and remanded for clarification.

United States v. Casey Crow Ghost

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3447

Opinion Date: August 17, 2023

Judge: ERICKSON

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of first-degree murder and use of a firearm during a crime of violence that caused death. The district court sentenced Defendant to serve two concurrent life terms of imprisonment. Defendant appealed, asserting the district court committed four errors during trial: (1) when it allowed the government to present evidence under Federal Rule of Evidence 404(b) of Defendant’s jealous behavior toward two other men; (2) when it denied his motion for judgment of acquittal, finding the government had presented sufficient evidence of premeditation; (3) when it sua sponte failed to instruct the jury on imperfect self-defense; and (4) when it denied Defendant’s request to instruct the jury on involuntary manslaughter.
 
The Eighth Circuit affirmed. The court explained that evidence of the manner of killing also gives rise to a reasonable inference of premeditation. Although Defendant provided three different versions of what happened, in one accounting before the jury, Defendant told law enforcement that he aimed and fired at the victim, who was indisputably shot in the back of the head at a distance of at least three feet away. Further, Defendant retrieved that gun from his bedroom closet and shot the victim in the head as she tried to escape. Defendant’s actions after the shooting also point towards premeditation. Because there is ample evidence that supports the jury’s finding that the killing was premeditated, Defendant’s sufficiency of the evidence claim fails.

United States v. Cornell Williams

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3023

Opinion Date: August 16, 2023

Judge: STRAS

Areas of Law: Constitutional Law, Criminal Law

Defendant conditionally pleaded guilty to possessing a firearm as a felon. He argued the district court should have suppressed the gun and shell casing found in his apartment. He challenged the steps the officers took from the moment they entered his apartment.
 
The Eighth Circuit affirmed. The court explained that a suspect who has just illegally used a gun is on a different Fourth Amendment footing than someone who merely possesses one. Moreover, the court wrote that first, when the officers asked Defendant whether they could “look” around “to make sure there’s nobody else in the apartment,” he replied, “[y]es ma’am. You can do whatever you want.” Based on that reply, he consented to at least a protective sweep of the apartment. Second, after Defendant blurted out that there had been suspicious activity outside, it was reasonable for the officers to believe that Defendant had provided consent to look there. Third, consent extended to the retrieval of the gun itself after Defendant confessed to “firing the shot” and admitted that the gun was in a kitchen cabinet.

United States v. Deanah Cheboss

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2617

Opinion Date: August 11, 2023

Judge: James B. Loken

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

Defendant appealed her conviction for having knowingly procured her naturalization contrary to law in violation of 18 U.S.C. Section 1425(a). Defendant made several false statements in procuring her naturalization. The issues on appeal are whether the government met its burden to prove beyond a reasonable doubt that the false statements were material, as that element of the Section 1425(a) offense was defined in Maslenjak v. United States, 582 U.S. 335 (2017), and whether they were made “under oath.”


The Eighth Circuit affirmed. The court explained that Defendant argued that the false statements were immaterial because they did not necessarily establish she lacked good moral character. The court disagreed, reasoning that 8 U.S.C. Section 1101(f) provides that “no person shall be regarded as, or found to be, a person of good moral character who” gives false testimony to obtain an immigration benefit in violation of Section 1101(f)(6). Moreover, Defendant argued that “false testimony” is limited to false statements given verbally under oath. As the government failed to prove beyond a reasonable doubt that the false statements in her N-400 Application for Naturalization were given orally and under oath, the government failed to present sufficient evidence, and we “need not even address materiality.” The court explained that the district court t was free to find the testimony of a USCIS supervisory officer more credible than the contrary opinion of Defendant’s expert, who admitted she had never attended a naturalization interview in Des Moines. Accordingly, the court concluded that a reasonable factfinder could find she acted to obtain immigration benefits for her spouse.

United States v. Jaime Campos

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3677

Opinion Date: August 15, 2023

Judge: Kelly

Areas of Law: Constitutional Law, Criminal Law

Defendants pleaded guilty to federal controlled substance offenses, and all three appealed their sentences.
 
The Fourth Circuit vacated each defendant’s sentence and remanded for resentencing. The court explained that Texas case law indicates that a defendant can be convicted of “offering to sell a controlled substance” under Section 481.112(a) without having the intent to distribute or dispense drugs. An offer-to-sell conviction is thus categorically broader than an attempt to commit a “controlled substance offense” under the Guidelines. The court explained that the government bears the burden of proving “the facts necessary to establish a sentencing enhancement” by a preponderance of the evidence. Moreover, the court concluded that, once Defendant objected to the factual recitation in the PSR, the government failed to meet its burden as to both the obstruction-of-justice and the violent-threat enhancements.

United States v. Nora Guevara Triana

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1455

Opinion Date: August 15, 2023

Judge: ERICKSON

Areas of Law: Constitutional Law, Criminal Law

Defendant and co-Defendant were convicted in district court on charges arising out of the kidnapping of Defendant’s minor grandchildren. Defendant appealed her conviction for aiding and abetting kidnapping, and co-Defendant appealed his conviction for being a prohibited person in possession of firearms. Defendant appealed, asserting (1) the district court erred in refusing to admit the full recording of her interview with law enforcement; (2) the district court erred in instructing the jury and preparing the jury verdict form; and (3) the evidence was insufficient to sustain the conviction. Co-Defendant appealed, asserting the district court erred when it (1) declined to grant his motion to withdraw his plea; and (2) committed procedural error.
 
The Eighth Circuit affirmed. The court explained that co-Defendant has not offered a fair and just reason for withdrawing his plea. The district court did not abuse its discretion in denying his motion to withdraw his guilty plea. Moreover, the court wrote that the children’s mother testified that she did not give consent to co-Defendant to take the children and that Defendant told her that co-Defendant was going to take the children because the mother did not love them, did not deserve to be their mother, and was not going to be able to see them ever again. The court found that the record contains more than sufficient evidence for a reasonable jury to find Defendant guilty of aiding and abetting kidnapping.

United States v. Romelle Smith

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2912

Opinion Date: August 11, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to unlawful possession of a firearm as a felon. The district court sentenced Smith to 180 months imprisonment as an armed career criminal under 18 U.S.C. Section 924(e). Defendant appealed an order denying his motion to suppress evidence and challenges his sentence. At issue on appeal is whether the seizure was nonetheless reasonable, and whether evidence discovered in the course of the seizure was admissible in Defendant’s prosecution.
 
The Eighth Circuit affirmed. The court explained that the totality of the circumstances provided the officers with a reasonable, articulable basis to believe that the suspect they were looking for was in the car that they stopped. Here, the Officers had reasonable suspicion that the suspect used a particular cellular telephone. One of the officers received the telephone number from a known informant. The informant had proved reliable by providing accurate information about the suspect’s possession of guns and drugs in the past. The informant reported recently speaking with the suspect at the specified phone number. Officers were armed with a judicial warrant based on a finding of probable cause that the suspect used the target phone number. When officers then determined that the man traveled the same route as the telephone associated with the suspect a reasonable officer could have believed, mistakenly, that the man under surveillance was the suspect. Accordingly, the stop did not violate Defendant’s rights under the Fourth Amendment, and the district court properly denied the motion to suppress.

DEVAUGHN DORSEY V. USA

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-35030

Opinion Date: August 11, 2023

Judge: Graber

Areas of Law: Constitutional Law, Criminal Law

Defendant appealed the district court’s denial of leave to amend his motion to vacate his convictions under 28 U.S.C. Section 2255. He argued that neither witness tampering by attempting to kill a witness nor witness tampering by use of force is a crime of violence as defined by 18 U.S.C. Section 924(c)(3)(A).
 
The Ninth Circuit affirmed. Applying the categorical approach, the panel held that Section 1512, as a whole, is not categorically a crime of violence because it criminalizes conduct that does not necessarily require physical force. The panel then applied the modified categorical approach because Section 1512 contains several, alternative elements of functionally separate crimes that carry different penalties, and the statute therefore is “divisible.” The panel held that Dorsey was convicted under a divisible part of the witness-tampering statute that qualifies as a crime of violence under Section 924(c)’s elements clause: either attempted killing in violation of Section 1512(a)(1) or use of force in violation of 1512(a)(2). The panel also held that the use of physical force in violation of Section 1512(a)(2) is a categorical match with Section 924(c)’s elements clause because it requires proving that the defendant intentionally used physical force against another.

GLOBAL MASTER INTL GROUP, INC., ET AL V. ESMOND NATURAL, INC., ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-55809

Opinion Date: August 11, 2023

Judge: R. Nelson

Areas of Law: Criminal Law

Global Master Corporation and its sister company Global Master International Group, Inc., located and headquartered in California (collectively, Global Master) imported nutritional supplements from the United States and marketed them to consumers in China. Global Master alleged that Esmond Natural used lower strength or entirely different supplements to fill orders. The district court held that Global Master failed to satisfy statutory standing because it lacked a domestic injury as its alleged harm was felt in China, and civil claims brought under RICO do not allow recovery for foreign injuries.
 
The Ninth Circuit reversed in part the district court’s summary judgment, based on a lack of statutory standing, in an action brought by Global Master Corporation, a Chinese company seeking relief under the Racketeer Influenced and Corrupt Organizations Act for allegedly defective products purchased from California-based Esmond Natural, Inc. The panel held that under Yegiazaryan v. Smagin, 143 S. Ct. 1900 (2023), the district court applied the wrong legal standard. The panel held that, under this test, Global Master suffered a domestic injury because, pursuant to the parties’ contracts, Global Master took all deliveries of the supplements in Los Angeles. Thus, Esmond Natural’s fraud injured Global Master’s property in California. The panel remanded to the district court for further proceedings. In a concurrently filed memorandum disposition, the panel affirmed on other issues.

ROGER PARKER V. COUNTY OF RIVERSIDE, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-55614

Opinion Date: August 15, 2023

Judge: Per Curiam

Areas of Law: Civil Rights, Criminal Law

Plaintiff was arrested for murder and held for almost four years before the charges against him were dismissed, months after another person confessed to the crime. Years later, Plaintiff then sued the County of Riverside and various County officials under 42 U.S.C. Section 1983, claiming that they had violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by suppressing the separate confession. The district court denied a motion for judgment on the pleadings on the Brady claim.
 
The Ninth Circuit reversed and remanded, without prejudice to Parker, asserting a different due process claim. A Brady violation requires that the withheld evidence have a reasonable probability of affecting a judicial proceeding, and no such proceeding was affected here. The panel held that Plaintiff could not show prejudice from the nondisclosure of the confession. A Brady violation requires that the withheld evidence have a reasonable probability of affecting a judicial proceeding. Plaintiff did not state a Brady claim because he did not assert the nondisclosure would have changed the result of any proceeding in his criminal case. The panel rejected Plaintiff’s contention that the prejudice inquiry should be whether the withheld evidence had a reasonable probability of affecting counsel’s strategy. The panel noted that no court has adopted Plaintiff’s proposed rule, and most other courts require a conviction to establish prejudice. Moreover, here, the cause of Plaintiff’s continued detention was not the suppression of the confession, but the District Attorney’s continued prosecution even after receiving the confession.

USA V. JASON SADLER

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-30277

Opinion Date: August 15, 2023

Judge: Collins

Areas of Law: Constitutional Law, Criminal Law

After pleading guilty to a single count of possession of a firearm by a convicted felon in violation of 18 U.S.C. Section 922(g)(1), Defendant argued at his sentencing that the district court should not consider certain prior convictions in determining his sentencing range under the U.S. Sentencing Guidelines. According to Defendant, subsequent case authority made clear that the guilty plea that produced those prior convictions was not knowing and voluntary, thereby rendering those convictions constitutionally invalid. Defendant argued that the district court should not consider his prior 2004 federal convictions in determining his sentencing range under the U.S. Sentencing Guidelines because the subsequent authority in Rehaif v. United States, 139 S. Ct. 2191 (2019), made clear that the guilty plea that produced those prior convictions was not knowing and voluntary, thereby rendering those convictions constitutionally invalid.
 
The Ninth Circuit affirmed. The panel held that, under Custis v. United States, 511 U.S. 485 (1994), neither the Constitution nor any federal statute granted Sadler a right to collaterally challenge the validity of his 2004 convictions in connection with their use in enhancing his sentence in this Section 922(g) prosecution. The panel also held that the Guidelines’ provisions and commentary did not create any such right. Defendant argued that the commentary accompanying Guidelines Section 2K2.1 requires that any conviction that is disregarded for criminal history purposes must also be disregarded in applying Section 2K2.1(a)(4)(A)’s enhanced base offense level for a felon-in-possession offense that follows a conviction for a crime of violence or drug-trafficking crime.

USA V. LEON ECKFORD

Court: US Court of Appeals for the Ninth Circuit

Docket: 17-50167

Opinion Date: August 15, 2023

Judge: Bybee

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to aiding and abetting the robbery of two jewelry stores in violation of the Hobbs Act, 18 U.S.C. Section 1951(a). For his crimes, he was sentenced to 11 years imprisonment, including a mandatory minimum sentence for the use of a firearm during a “crime of violence.” On appeal, Defendant argued that aiding and abetting Hobbs Act robbery is not a crime of violence and, therefore, cannot serve as a predicate for his Section 924(c) conviction and mandatory minimum sentence.
 
The Ninth Circuit disagreed and affirmed the judgment of the district court. The court explained that under the “elements clause” of Section 924(c), the phrase “crime of violence” is defined as “an offense that is a felony and . . . has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The phrase “physical force” means violent force or force capable of causing physical pain or injury to another person. The panel applied the “categorical approach,” asking whether the federal felony at issue always requires the government to prove the use, attempted use, or threatened use of force. The panel held that under United States v. Dominguez, completed Hobbs Act robbery is a crime of violence for purposes of Section 924(c). The panel concluded that, even if it were not bound by Dominguez II, it would still find that Dominguez I’s analysis of the completed Hobbs Act robbery was not clearly irreconcilable with Taylor.

Frederick v. Quick

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-6131

Opinion Date: August 14, 2023

Judge: Scott Milne Matheson, Jr.

Areas of Law: Constitutional Law, Criminal Law

An Oklahoma state court jury convicted Darrell Frederick of first-degree murder, attempted assault with a dangerous weapon, and domestic abuse. Based on the jury’s recommendation, the court sentenced Frederick to death for the murder. After his direct appeal and state post-conviction proceedings were unsuccessful, Frederick filed a habeas corpus application in federal court under 28 U.S.C. § 2254. The district court denied relief. The Tenth Circuit Court of Appeals granted a certificate of appealability (“COA”) on his claims that appellate counsel provided ineffective assistance and that there was cumulative error. Finding no reversible errors, the Tenth Circuit affirmed the denial of habeas relief.

United States v. Old Rock

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-4047

Opinion Date: August 11, 2023

Judge: Michael R. Murphy

Areas of Law: Constitutional Law, Criminal Law

In 2017, defendant-appellant Winter Rose Old Rock pleaded guilty to voluntary manslaughter. After completing her prison sentence, she began serving a three-year term of supervised release. Fourteen months later, she committed several violations of the terms of her release. Pursuant to 18 U.S.C. § 3583(e)(3) and (h), the district court revoked her supervision and sentenced her to time served and thirty-one months of post-release supervision. Relying on the Supreme Court’s decision in Apprendi v. New Jersey, Old Rock objected to the new term of supervised release, arguing the term unconstitutionally exceeded the thirty-six-month maximum set out in § 3583 when combined with the post-release supervision she already served. The district court rejected this argument, citing a lack of precedent supporting the application of Apprendi to standard supervised release revocations. To this, the Tenth Circuit agreed: “Our caselaw illustrates that § 3583 authorizes terms of supervision upon revocation that cumulatively surpass the statutory maximum when combined with the defendant’s prior time served on supervision.” The Court therefore affirmed the district court’s judgment. The Court also determined that despite Old Rock’s failure to timely file a notice of appeal, the government forfeited its request for dismissal by not complying with 10th Cir. R. 27.3.

United States v. Warrington

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-7003

Opinion Date: August 11, 2023

Judge: Stephanie Kulp Seymour

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

Defendant-appellant Edmond Warrington was charged in Oklahoma state court after he engaged in sexual activity with his mentally disabled, 18-year-old adopted niece. When the U.S. Supreme Court decided McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the federal government took over prosecution for the alleged sexual abuse. The district court denied a motion to suppress inculpatory statements Warrington made to federal agents during transport from state to federal custody. Warrington proceeded to trial, where he was convicted by a jury of three counts of sexual abuse in Indian Country and sentenced to 144 months’ imprisonment on each count, to run concurrently. The court also imposed a $15,000 special assessment under the Justice for Victims of Trafficking Act of 2015 (“JVTA”), a penalty of $5,000 for each count of conviction. On appeal, Warrington argued: (1) the district court erred in denying his suppression motion because the agents questioned him in violation of the Sixth Amendment; and (2) the court plainly erred in imposing the JVTA assessment on a per count basis instead of imposing one $5,000 penalty in the case. The Tenth Circuit concluded the Sixth Amendment right to counsel had not yet attached in the federal proceeding and, in any event, Warrington voluntarily waived his right to counsel after receiving a Miranda warning, therefore, the district court did not err in denying the motion to suppress. Warrington’s second issue raised was an issue of first impression for the Tenth Circuit, and the Court concluded the trial court did not commit plain error.

USA v. Antarious Caldwell, et al

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-15024

Opinion Date: August 16, 2023

Judge: WILLIAM PRYOR

Areas of Law: Constitutional Law, Criminal Law

This appeal arises from a multiple-count indictment against dozens of members of the Gangster Disciples. Five of them, Alonzo Walton, Kevin Clayton, Donald Glass, Antarious Caldwell, and Vancito Gumbs, appeal their convictions and sentences following a joint trial. Some argue that the district court should have suppressed wiretap evidence against them. Some argue that their enhanced sentences under the Racketeer Influenced and Corrupt Organizations Act violate the Sixth Amendment because the jury failed to find that the conspiracy involved murder. Several argued that the district court abused its discretion when it refused to play a video about unconscious bias, excluded a professor of social work’s expert opinion testimony, secured the defendants with ankle restraints at trial, allowed the prosecution to store evidentiary firearms in the courtroom, and questioned a witness. And they also brought individual procedural and sentencing challenges.
 
The Eleventh Circuit vacated one of Caldwell’s convictions and his sentence due to an intervening precedent but otherwise affirmed the convictions and sentences. The court explained that Count 17 of the indictment contemplated that the offense of attempted Hobbs Act robbery is a “crime of violence” within the meaning of the Armed Career Criminal Act. But the Supreme Court recently held in Taylor that attempted Hobbs Act robbery is not a “crime of violence” under section 924(c).  Thus, the court held that it must vacate Caldwell’s conviction. The court remanded or the district court to resentence Caldwell for his remaining counts of conviction.

USA v. Hannibal Moore

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-12291

Opinion Date: August 11, 2023

Judge: ED CARNES

Areas of Law: Constitutional Law, Criminal Law

Defendant was charged with one count of being a felon in possession of a firearm. He had a two-day trial at which he testified, asserting a justification defense. The jury rejected that defense, finding him guilty. The district court denied his motion for a judgment of acquittal or a new trial. After calculating a guidelines range of 100 to 120 months, the court sentenced him to 80 months imprisonment. He challenged his conviction and his sentence.
 
The Eleventh Circuit affirmed. The court explained that the district court did not clearly err in finding that Defendant had not established self-defense as a justification for shooting the victim. The court explained that the evidence showed that Defendant escalated the situation and interposed himself when his girlfriend was attempting to handle it. He claimed his actions were justified because he had to defend himself, but it was Defendant who had insisted that his girlfriend get her gun when she did not want to; she wanted to see who was outside and resolve the situation herself. The court reasoned that Defendant also could have called 911 and asked that law enforcement officers be sent to the house. It wasn’t clear error for the district court to find that Defendant, a convicted felon, had possessed a firearm in connection with another felony offense.

USA v. John Gladden, et al

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-11621

Opinion Date: August 17, 2023

Judge: COVINGTON

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

Defendants Gladden and Linton were convicted of conspiracy to commit health care fraud and mail fraud, and the substantive offenses of health care fraud, mail fraud, and aggravated identity theft, for their roles in a multi-year scheme to defraud insurance companies. The government alleged Defendants received inflated reimbursement payments by billing for medically unnecessary and fraudulent prescriptions.

The Eleventh Circuit found that the evidence presented at trial was sufficient to support the jury’s verdict as to all of Linton’s convictions and as to Gladden’s convictions for conspiracy, health care fraud, and mail fraud. In addition, the Eleventh Circuit found that the district court did not clearly err in calculating Gladden’s restitution and forfeiture amounts. The Court also vacated Galdden's conviction for aggravated identity theft and remanded for further proceedings consistent with this opinion.

USA v. Zachary Bird

Court: US Court of Appeals for the Eleventh Circuit

Docket: 22-10947

Opinion Date: August 17, 2023

Judge: Charles R. Wilson

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

A jury convicted Defendant of illegally structuring two separate land-sale contract payments of around $270,000 each. On appeal, Defendant argued that there was insufficient evidence to support his convictions. Defendant asserts that the court should vacate his conviction due to a plainly erroneous jury instruction.
 
The Eleventh Circuit affirmed. The court wrote that in reviewing the record to determine how a jury might reasonably conclude that he structured deposits to avoid the $10,000 reporting requirement, it appears that Defendant made 22 cash deposits below $10,000 over seven days to satisfy the first payment. Then, Defendant made 38 cash deposits under $10,000 over the course of around seven and a half months to satisfy the second payment. there is sufficient evidence to support Defendant’s convictions. The court explained that viewing the evidence in the light most favorable to the verdict, it concludes that a “reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt.”
 
Further, the court concluded that the instructions properly listed the statutory elements for structuring in violation of 31 U.S.C. Section 5324(a)(3), and the jury concluded that the government satisfied its burden of proof on these points. That the government could not prove Bird intended to evade Form 4789 specifically does not undermine the soundness of the verdict. Finally, the court explained that Defendant and the government jointly proposed the jury instructions that the district court ultimately used. By supplying the instructions, Defendant invited any purported error. Consequently, the court declined to review his challenge to the jury's instructions.

People v. Gray

Court: Supreme Court of California

Docket: S269237

Opinion Date: August 14, 2023

Judge: Guerrero

Areas of Law: Criminal Law

The Supreme Court reversed the judgment of the court of appeal concluding that because certain statements fell within an exception to the hearsay requirement they automatically qualified for admission into evidence, holding that the court of appeals erred in concluding that it was not necessary to balance Defendant's confrontation interests against any countervailing government interests.

Defendant was charged with inflicting corporate injury upon a person in a dating relationship and residential burglary. The prosecution moved to revoke Defendant's probation based on the same incident. At the criminal trial, the prosecution sought to admit the complaining witness's (N.S.) statements as recorded on a body-worn camera video, but the trial court ruled that the statements were inadmissible under the Confrontation Clause. The court subsequently dismissed the criminal proceeding. At the subsequent probation revocation the court ruled that statements within the first portion of the video qualified as spontaneous statements under Cal. R. Evid. 1240 and admitted N.S.'s statements without making an express finding of good cause for not securing N.S.'s live testimony. The court of appeal affirmed the order revoking Defendant's probation. The Supreme Court reversed, holding that the court of appeals erred in concluding that the statements automatically satisfied the minimum due process requirements necessary for their admission into evidence.

People v. Mumin

Court: Supreme Court of California

Docket: S271049

Opinion Date: August 17, 2023

Judge: Carol Corrigan

Areas of Law: Criminal Law

The Supreme Court affirmed in part and reversed in part the judgment of the court of appeal affirming Defendant's convictions for, among other crimes, first degree murder and two counts of attempted, premeditated murder of a police officer and his sentence of life without the possibility of parole, holding that the trial court's erroneous concurrent intent instruction was prejudicial as to one attempted murder count.

At issue was the proper standard of review when a defendant challenges a court's decision to instruct on a concurrent intent - or kill zone - theory as applied to an allegation of attempted murder. The Supreme Court reversed the court of appeals to the extent it affirmed one of Defendant's attempted murder convictions based on the concurrent intent theory, holding (1) the substantial evidence standard applies to giving or reviewing a concurrent intent instruction; (2) a concurrent intent instruction was not supported by substantial evidence; and (3) the error was prejudicial as to one of the attempted murder counts.

People v. Schuller

Court: Supreme Court of California

Docket: S272237

Opinion Date: August 17, 2023

Judge: Groban

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

The Supreme Court reversed the decision of the court of appeal affirming Defendant's conviction of first-degree murder, holding that when the record contains substantial evidence of imperfect self defense, the trial court's failure to instruct on that theory amounts to constitutional error and is subject to review under the federal Chapman standard. See Chapman v. California, 386 U.S. 18 (1967).

On appeal, Defendant argued that the trial court committed harmful error in denying his request for an instruction on imperfect self-defense. The court of appeals affirmed, concluding that the trial court erred but that the error was subject to the "reasonable probability" standard for evaluating prejudice set forth in People v. Watson, 46 Cal.2d 818 (1956) and that Defendant suffered no prejudice. The Supreme Court reversed, holding (1) the form of misconstruction in this case precluded the jury from making a finding on a factual issue necessary to establish the element of malice, thus qualifying as a federal error; and (2) the court of appeal's harmless error analysis did not comport with the standards for evaluating prejudice under Chapman.

In re Harris

Court: California Courts of Appeal

Docket: B322152(Second Appellate District)

Opinion Date: August 16, 2023

Judge: WILEY

Areas of Law: Civil Rights, Criminal Law, Government & Administrative Law, Native American Law

Petitioner applied to the trial court in March 2022 to change his name. On the ground that Petitioner has “outstanding warrant(s),” the trial court denied Harris’s petition.
 
The Second Appellate District affirmed because there was no abuse of discretion. The court explained that by statute, it was proper for the trial court to check law enforcement records when considering Petitioner’s petition to change his name. The California Legislature has directed courts to use the California Law Enforcement Telecommunications System (CLETS) and Criminal Justice Information System (CJIS) to determine whether a name change applicant must register as a sex offender.

P. v. Meza

Court: California Courts of Appeal

Docket: B318310S(Second Appellate District)

Opinion Date: August 17, 2023

Judge: PERLUSS

Areas of Law: Constitutional Law, Criminal Law

Defendants were identified as suspects of murder after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of his murder. After their motions to quash and suppress evidence were denied, Defendant pleaded guilty to first-degree murder; and co-Defendant pleaded no contest to second-degree murder. On appeal, Defendants contend the trial court erred in denying their motion to suppress, arguing the geofence warrant violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and did not comply with the California Electronic Communications Privacy Act of 2016 (CalECPA).
 
The Second Appellate District explained that although the geofence warrant satisfied the requirements of CalECPA, the court agrees it lacked the particularity required by the Fourth Amendment and was impermissibly overbroad. Nonetheless, the court affirmed the convictions under the good faith exception to the exclusionary rule established by United States v. Leon (1984) 468 U.S. 897 (Leon). The court explained that given the dearth of authority directly on point and the novelty of the particular surveillance technique at issue, the officers were not objectively unreasonable in believing the warrant was valid, even if the issue, upon close legal examination, is not a particularly close one.

P. v. Super. Ct. (Mitchell)

Court: California Courts of Appeal

Docket: B326653(Second Appellate District)

Opinion Date: August 16, 2023

Judge: Yegan

Areas of Law: Constitutional Law, Criminal Law

In People v. Bartholomew (2022) 85 Cal.App.5th 775, 778, the Second Appellate District Court’s majority opinion acknowledged, “'No provision of section 17, subdivision (b), authorizes the superior court judge to [determine a wobbler to be a misdemeanor] prior to judgment or a grant of probation.’” But the majority opinion held that “the People have no authority to appeal” the superior court’s pretrial order reducing a felony wobbler to a misdemeanor. The majority rejected the People’s claim that section 1238, subdivision (a)(6) authorizes such an appeal. The People did not raise the issue of whether an appeal is authorized under section 1238, subdivisions (a)(1) and (a)(8).
 
The Second Appellate District disapproved of the holding in Bartholomew. Here, the People petitioned for a writ of mandate directing the superior court to vacate its post-preliminary hearing, pretrial order reducing a felony wobbler to a misdemeanor. The People also filed an appeal. Because the superior court’s order is both unauthorized and appealable, the court issued the requested writ. The court directed the Superior Court of Ventura County to vacate its order reducing the felony wobbler to a misdemeanor and to reinstate the felony charge.

Torres v. Super. Ct.

Court: California Courts of Appeal

Docket: C097144(Third Appellate District)

Opinion Date: August 15, 2023

Judge: Elena J. Duarte

Areas of Law: Constitutional Law, Criminal Law

After the Court of Appeal reversed the summary denial of her request for resentencing, Petitioner Elvira Torres sought on remand to peremptorily challenge the judge who had originally denied her request for resentencing, when he was again assigned to hear the request. Petitioner’s challenge was essentially denied as untimely, and she asked the Court of Appeal for a writ of mandate or prohibition. The Court found remand for further resentencing proceedings held pursuant to Penal Code section 1172.6 did not constitute remand for a “new trial” as contemplated by Code of Civil Procedure section 170.6(a)(2); thus, petitioner’s challenge to the trial judge pursuant to that section was properly denied as untimely.

Idaho v. Bell

Court: Idaho Supreme Court - Criminal

Docket: 49099

Opinion Date: August 15, 2023

Judge: Bevan

Areas of Law: Constitutional Law, Criminal Law

In 2019, Officer Pallas was off duty and not in uniform when he noticed defendant-respondent Jonathan Bell at an Albertsons grocery store in Hailey, Idaho. Bell appeared to be unsteady on his feet, was having difficulty walking, and appeared confused. As Pallas watched Bell get into the driver’s seat of his vehicle and begin to drive, he called Officer Murphy, who was Pallas’ training officer and on duty, to report Bell as possibly driving under the influence. Murphy told Pallas to call dispatch, which he did. Pallas gave dispatch a description of the vehicle, the license plate number, and reported that the driver appeared to be intoxicated. The issue this case presented for the Idaho Supreme Court's review centered on the scope of its holding in Idaho v. Clarke, 446 P.3d 451 (2019). There, the Court held that an individual could not be arrested without a warrant for a misdemeanor that was completed outside the arresting officer’s presence. The State of Idaho argued that the “in the presence of the arresting officer” requirement under Clarke could be satisfied by the collective knowledge of more than one officer to establish probable cause. Thus, though the arresting officer here did not witness Bell’s driving pattern for the DUI, the State argued he had sufficient “collective knowledge” from others to carry out the arrest. The magistrate court agreed with this position below and denied Bell’s motion to suppress. However, Bell appealed to the district court, which reversed the magistrate court’s decision, concluding that the Idaho Constitution prohibited a police officer from making a warrantless arrest for a DUI committed outside the officer’s presence, even if the officer had probable cause for that offense through his collective knowledge from another officer. Finding no reversible error in that decision, the Supreme Court affirmed the district court’s decision.

State v. Butler

Court: Kansas Supreme Court

Docket: 123742

Opinion Date: August 11, 2023

Judge: Wall

Areas of Law: Criminal Law

The Supreme Court reversed the decision of a panel of the court of appeals vacating Defendant's conviction for aggravated kidnapping, thus reaffirming that the three-part test fashioned in State v. Buggs, 547 P.2d 720 (Kan. 1976), to ensure that a defendant is not convicted of two crimes for identical conduct when a person confines someone with the intent to facilitate the commission of another crime, did not apply to circumstances such as those presented in this case.

Under the Buggs test, a kidnapping conviction cannot stand if the confinement was "incidental to" or "inherent in the nature of" the other crime or if the confinement did not make commission of the other crime "substantially easier." The court of appeals concluded that the test applied to kidnappings, like Defendant's, committed with the intent to inflict bodily harm to terrorize a person. The court of appeals panel concluded that, under the Buggs test, insufficient evidence supported Defendant's aggravated kidnapping conviction. The Supreme Court reversed, holding that the Buggs test did not apply to this case, where Defendant had confined the victim with the intent to inflict bodily harm or terrorize her.

State v. Couch

Court: Kansas Supreme Court

Docket: 122156

Opinion Date: August 11, 2023

Judge: Wall

Areas of Law: Criminal Law

The Supreme Court reversed Defendant's conviction for aggravated kidnapping and vacated his sentence for that conviction but affirmed the remainder of his convictions, holding that the State did not present sufficient evidence to sustain Defendant's aggravated kidnapping conviction.

Defendant appealed his convictions to the court of appeals, which affirmed the trial court's judgment. The Supreme Court reversed in part, holding (1) Defendant's disruptive pretrial behavior provided a lawful basis for the district court to deny Defendant's request to represent himself at trial; (2) Defendant's aggravated kidnapping conviction was supported by insufficient evidence; (3) the jury instructions on the lesser-included offenses of aggravated battery were not factually appropriate, but the instructional error did not warrant reversal of Defendant's aggravated battery conviction; and (4) the cumulative effect of the trial errors did not require reversal.

Smith v. City of Sanford

Court: Maine Supreme Judicial Court

Citation: 2023 ME 48

Opinion Date: August 15, 2023

Judge: Stanfill

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the judgment of the superior court in favor of the City of Sanford following a jury trial on Plaintiff's complaint alleging that the City discriminated against him because of his disability, in violation of the Maine Human Rights Act (MHRA), Me. Rev. Stat. 5, 4553-A(1)(A)(C)-(D), holding that there was no error in the proceedings below.

On appeal, Plaintiff argued that the superior court erred in excluding his proposed jury instruction that "it is illegal as a matter of law for any employer to impose a 100% healed or 100% fit policy on any applicants for employment or any employees." The Supreme Court disagreed and affirmed, holding (1) Plaintiff properly preserved his objection to the court's instructions; and (2) the trial court did not err by rejecting Plaintiff's proposed instruction because it was sufficiently covered in the court's instructions.

State v. Brackett

Court: Maine Supreme Judicial Court

Citation: 2023 ME 51

Opinion Date: August 15, 2023

Judge: Douglas

Areas of Law: Criminal Law

The Supreme Judicial Court vacated the judgment of the trial court acquitting Defendant of eluding an officer after a jury found him guilty of that offense and two misdemeanors, holding that the evidence rationally supported the jury's verdict.

The jury returned a verdict finding Defendant guilty of all three charges for which he was indicted. Defendant moved for judgment of acquittal on the charge of eluding an officer, arguing that his speed was not reckless under the circumstances. The court granted the motion. The Supreme Judicial Court vacated the judgment of acquittal, holding that the jury could rationally find that Defendant operated at a "reckless rate of speed" - a required element of eluding an officer.

State v. Footman

Court: Maine Supreme Judicial Court

Citation: 2023 ME 52

Opinion Date: August 15, 2023

Judge: Andrew M. Mead

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

The Supreme Judicial Court affirmed Defendant's conviction on charges of domestic violence aggravated assault and domestic violence assault and the trial court's finding of guilty on a charge of violating a condition of release, holding that there was no error or abuse of discretion in the proceedings below.

On appeal, Defendant argued, among other things, that the trial court violated his constitutional right to a representative jury by using the absolute disparity test to determine the racial makeup of the jury venire. The Supreme Judicial Court disagreed and affirmed, holding that the trial court (1) appropriately determined the 1.01% absolute disparity in Defendant's jury venire was insufficient to show underrepresentation; and (2) did not abuse its discretion in denying Defendant's motion to subpoena the grand jurors.

State v. Warner

Court: Maine Supreme Judicial Court

Citation: 2023 ME 55

Opinion Date: August 17, 2023

Judge: Lawrence

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the trial court's judgment of conviction of unlawful sexual contact entered after a jury trial, holding that Appellant was not entitled to relief on his allegations of error.

Specifically, the Supreme Judicial Court held (1) the prosecutor did not err in making statements during closing arguments stating that consideration of motive was important; (2) the trial court did not commit obvious error in instructing the jury regarding motive, the State's burden of proof, or the presumption of Appellant's innocence; and (3) the trial court did not commit obvious error in the way it handled the process of allowing the jurors to decide when to proceed with the trial after a potential COVID-19 exposure.

Jackson v. State

Court: Maryland Supreme Court

Docket: 34/22

Opinion Date: August 14, 2023

Judge: Booth

Areas of Law: Criminal Law

In this case involving the criminal trial of two co-defendants whose cases had been consolidated and was initially scheduled for a date beyond the appropriate date under the "Hicks rule" and the trial court made no finding of "good cause," the Supreme Court held that the dismissal of Defendants' indictments as a remedy for the Hicks violation was inappropriate.

The circuit court granted Defendants' motions to dismiss their respective indictments because of the Hicks rule violations. The appellate court affirmed in the case of Garrick Powell on the grounds that Powell's attorney did not expressly consent to a trial date beyond the Hicks date but reversed in the case of Lateekqua Jackson, determining that Jackson expressly consented a trial date beyond the Hicks date. The Supreme Court reversed in part and reversed in part, holding (1) through his conduct, Powell's counsel sought a trial date that exceeded the Hicks date, thus precluding dismissal of the indictment against him due to the Hicks violation; and (2) through her conduct, Jackson's attorney sought a trial date that exceeded the Hicks date, thereby precluding dismissal of the indictment as a remedy for the Hicks violation.

Commonwealth v. Brum

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13383

Opinion Date: August 10, 2023

Judge: Georges

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

The Supreme Judicial Court affirmed Defendant's conviction of assault and battery by means of a dangerous weapon, holding that portions of the victim's then-girlfriend's grand jury testimony were properly admitted in accordance with the hearsay exemption for prior inconsistent statements.

Prior to trial, the victim's then-girlfriend Shyla Bizarro identified Defendant as the victim's attacker from surveillance video footage and testified to her identification before the grand jury. Prior to her testimony, however, Bizarro revealed that she wished to recant her statements to police and her grand jury testimony. The trial judge admitted substantively the recanted portions of Bizarro's grand jury testimony, including her prior statements of identification. The Supreme Judicial Court affirmed the conviction, holding (1) the portions of Bizarro's grand jury testimony were properly admitted as prior inconsistent statements; (2) portions of Bizarro's grand jury testimony identifying Defendant in the video independently satisfied the hearsay exemption for statements of identification; and (3) there was no merit to Defendant's remaining arguments.

Commonwealth v. Gibson

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12649

Opinion Date: August 10, 2023

Judge: Gaziano

Areas of Law: Criminal Law

The Supreme Judicial Court vacated Defendant's firearm-related convictions but affirmed his convictions for murder in the first degree based on a theory of felony-murder, home invasion and armed assault with intent to rob, holding that the firearm-related convictions must be vacated in light of Commonwealth v. Guardado, 491 Mass. 666 (2023).

Specifically, the Supreme Judicial Court held (1) trial counsel was not ineffective for failing to introduce certain categories of telephone calls; (2) there was no error in the denial of Defendant's motion for a new trial; (3) Defendant's convictions of unlawful possession of a firearm and unlawful possession of a loaded firearm must be vacated in light of this Court's precedent decision in Guardado; and (4) there was no reason for this Court to exercise its extraordinary authority pursuant to Mass. Gen. Laws ch. 278, 33E to grant Defendant a new trial or reduce the murder conviction to a lesser degree of guilt.

Commonwealth v. Smith

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13231

Opinion Date: August 10, 2023

Judge: Kafker

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed Defendant's conviction of two counts of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder on a theory of joint venture and other crimes, holding that Defendant was not entitled to relief on her allegations of error.

Specifically, the Supreme Judicial Court held (1) the trial judge did not err in denying Defendant's motion for change of venue, and Defendant failed to show any actual juror prejudice from the denial or that she was tried by anything but a fair and impartial jury; (2) the evidence was sufficient to prove Defendant's guilt as a joint venturer of murder in the first degree of the first victim; (3) there was also sufficient evidence to support Defendant's conviction of the first victim on the basis of felony murder; and (4) there was ample evidence to prove Defendant's guilt as a joint venturer of murder in the first degree on the basis of deliberate premeditation of the second victim.

Commonwealth v. Souza

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13357

Opinion Date: August 14, 2023

Judge: Lowy

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed Defendant's convictions of murder in the second degree and assault and battery by discharge of a firearm but vacated his convictions for carrying a firearm without a license and carrying a loaded firearm without a license, holding that the trial judge's failure to instruct the jury that the Commonwealth was required to prove an absence of a valid license created a substantial risk of a miscarriage of justice.

At trial, Defendant sought to introduce Adjutant evidence or evidence of specific incidents of violence allegedly initiated by the victim. The trial judge allowed Defendant to introduce limited evidence of violent incidents initiated by the victim. The Supreme Judicial Court vacated Defendant's convictions in part, holding (1) the judge's ruling excluding additional testimony about the violent instances initiated by the victim exceeded the cope and purpose of Adjutant evidence, but there was no prejudice from its exclusion; (2) the trial judge did not err in the instruction regarding the jury's consideration of Adjutant evidence; and (3) pursuant to this Court's decision in Commonwealth v. Guardado, 491 Mass. 666 (2023), Defendant's firearm convictions must be vacated because the judge's failure to properly instruct the jury that Defendant did not have a license to carry a firearm was not harmless.

State v. LaRue

Court: Supreme Court of Missouri

Dockets: SC99719, SC99823

Opinion Date: August 15, 2023

Judge: Ransom

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

The Supreme Court affirmed the judgment of the circuit court convicting Caitlyn Williams and Tamara LaRue (together, Parents) of failing to cause their children to attend school on a regular basis in violation of Missouri's compulsory attendance law, holding that Mo. Rev. Stat. 167.031.1 was not unconstitutionally vague as applied in this case.

On appeal, Parents argued, among other things, that the State failed to prove beyond a reasonable doubt both that their conduct was a purposeful or knowing violation of Mo. Rev. Stat. 167.031.1 and that the children's attendance was not sufficiently "regular" to constitute a statutory violation. The Supreme Court affirmed, holding (1) section 167.031.1 was not unconstitutionally vague as applied to the facts of this case; and (2) there sufficient evidence to find that Parents knowingly failed to cause their children to attend school on a regular basis after their children were enrolled.

State v. Price

Court: Montana Supreme Court

Citation: 2023 MT 154

Opinion Date: August 15, 2023

Judge: Gustafson

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

The Supreme Court reversed the judgment of the district court denying Defendant's motion to suppress and dismiss, holding that Defendant's warrantless arrest was unlawful, and therefore, it was error for the district court not to suppress and exclude the evidence discovered as a result of the unlawful search.

Defendant pled guilty to criminal possession of dangerous drugs, reserving his right to appeal the denial of his motion to suppress and dismiss. On appeal, Defendant argued that the underlying arrest was illegal and led directly to the discovery of the incriminating evidence. The Supreme Court agreed and reversed, holding that the district court erred by not suppressing and excluding the evidence at issue.

New Jersey v. Juracan-Juracan

Court: Supreme Court of New Jersey

Docket: A-32-22

Opinion Date: August 15, 2023

Judge: Pierre-Louis

Areas of Law: Constitutional Law, Criminal Law

In a matter of first impression, the New Jersey Supreme Court addressed whether a criminal defendant must be provided in-person interpreting services, rather than video remote interpreting (VRI) services, at his jury trial. In response to the COVID-19 pandemic, the Court announced amendments to the New Jersey Judiciary’s Language Access Plan (LAP) and expanded the circumstances in which remote interpreting services may be used. Prior to the update, VRI was allowed only for “emergent matters” or “short non-emergent matters of 30 minutes or less.” The 2022 LAP now allows VRI for both “emergent and routine proceedings,” subject to judicial discretion. In 2019, defendant Oscar R. Juracan-Juracan, a native speaker of Kaqchikel -- a language spoken by approximately 450,000 people worldwide -- was charged with several offenses related to an alleged sexual assault. During pre-trial proceedings, he requested a Kaqchikel interpreter and one was provided. The interpreter, however, resided on the West Coast, so he appeared remotely. Additionally, the Kaqchikel interpreter did not speak English, only Kaqchikel and Spanish, so a second interpreter was required to translate to and from Spanish and English. After the court advised counsel that the Kaqchikel interpreter would continue to participate virtually during the jury trial, defendant moved for in-person interpretation services. During the motion hearing, the Kaqchikel interpreter expressed concerns about his ability to provide interpretation services remotely during the trial. The trial court denied defendant’s motion, advising the Kaqchikel interpreter that the court would give him “as much time as you need, understanding the complexities, not only of interpretations, interpreting through two individuals, and also virtually.” The trial court reasoned that proceeding with VRI during the trial was “what’s financially feasible, what’s fair, what’s just.” The Appellate Division denied defendant’s motion for leave to appeal in light of the VRI policy change. The Supreme Court reversed and remanded. "In a criminal jury trial, there is a presumption that foreign language interpretation services will be provided in person, which is consistent with the New Jersey Judiciary’s longstanding practice." The Court set forth guidelines and factors to assist trial courts in deciding whether VRI should be used during criminal jury trials, and it remanded this matter for the trial court to reconsider whether VRI was appropriate in this case after assessing those factors.

Black Elk v. North Dakota

Court: North Dakota Supreme Court

Citation: 2023 ND 150

Opinion Date: August 17, 2023

Judge: Jensen

Areas of Law: Constitutional Law, Criminal Law

The State appeals from a district court’s judgment granting post-conviction relief to Cassandra Black Elk. The State argues the court erred by relying on hearsay testimony and in finding defense counsel’s conduct fell below an objective standard of reasonableness when counsel advised Black Elk she could deal with the not yet disclosed results of an autopsy after her guilty plea had been entered and accepted. The court also determined Black Elk would not have pled guilty but for this improper advice from counsel. The North Dakota Supreme Court found the State failed to object and assert Black Elk’s testimony regarding the statements of her counsel were hearsay and it declined to review the issue on appeal. The district court’s finding of ineffective assistance of counsel met the factual and legal requirements under Strickland. The court’s judgment granting post-conviction relief and vacating Black Elk’s conviction was affirmed.

North Dakota v. Kollie

Court: North Dakota Supreme Court

Citation: 2023 ND 152

Opinion Date: August 17, 2023

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Arthur Kollie was convicted by jury of murder, robbery, and aggravated assault. In June 2021, Jane Doe was walking from her father’s home to her mother’s home in south Fargo when she was attacked in an alley. A truck driver driving through the alley saw Doe lying on the ground, unconscious, with Kollie beside her with one hand on her throat and the other hand pinching her nose. Both Doe and Kollie were covered in bloodstains. The truck driver called 911 and approached Kollie. After the truck driver told Kollie that he “need[ed] to wait for the cops,” Kollie “took off,” fleeing the scene. The medical examiner testified that Doe was stabbed 25 times then strangled. She died three days later. The autopsy report listed the cause of death as asphyxia by strangulation, complicated by multiple sharp force injuries. Kollie argued his constitutional rights to a public trial were violated when the district court held several bench conferences within view of the public, but outside the hearing of the public and without an adequate record being made available. In addition, Kollie argued the district court erred in instructing the jury on the murder count. Finding no reversible error, the North Dakota Supreme Court affirmed.

North Dakota v. Petersen

Court: North Dakota Supreme Court

Citation: 2023 ND 155

Opinion Date: August 17, 2023

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Jered Petersen appealed a criminal judgment entered on a conditional plea of guilty to actual physical control of a vehicle while under the influence of alcohol, reserving the right to appeal the order denying his motion to suppress evidence. He argued law enforcement unlawfully trespassed into his vehicle, violating his right to be free from unreasonable searches and seizures. After review, the North Dakota Supreme Court reversed, concluding law enforcement unlawfully searched Petersen’s vehicle, and remanded for further proceedings.

Wootan v. North Dakota

Court: North Dakota Supreme Court

Citation: 2023 ND 151

Opinion Date: August 17, 2023

Judge: Jensen

Areas of Law: Constitutional Law, Criminal Law

Ronald Wootan appealed a district court’s order granting summary judgment in favor of the State. Wootan was initially charged with murder, attempted murder, terrorizing, reckless endangerment, and preventing arrest or discharge of other duties. As part of a plea agreement, the State moved to amend the murder charge to manslaughter. Wootan applied for post-conviction relief, asserting he was entitled to withdraw his guilty plea due to ineffective assistance of counsel. The State moved for summary judgment. At the scheduled evidentiary hearing the district court determined the motion for summary judgment was untimely. The court exercised its discretion to allow the motion and provided Wootan the appropriate time to respond. Wootan responded to the motion and the court issued an order dismissing Wootan’s post-conviction application finding Wootan had failed to identify a material fact at issue. The North Dakota Supreme Court determined Wootan clearly asserted that, but for counsel’s misinformation about his sentences running concurrently, he would not have entered a guilty plea and instead would have insisted on going to trial. While Wootan did not provide an affidavit after the State moved for summary judgment, Wootan’s verified application for post-conviction relief could be treated as an affidavit to provide evidence to resist summary judgment. The Supreme Court concluded the district court did not err in granting summary judgment on Wootan’s claim asserting his attorney provided ineffective assistance of counsel by failing to reduce the terms of the plea agreement to writing. However, the district court erred in granting summary judgment on Wootan’s claim asserting his attorney provided ineffective assistance of counsel by stating Wootan’s sentences would run concurrently, because Wootan raised a genuine issue as to a material fact. The case was therefore remanded for the district court to hold an evidentiary hearing.

South Carolina v. Dent

Court: South Carolina Supreme Court

Docket: 28172

Opinion Date: August 16, 2023

Judge: John W. Kittredge

Areas of Law: Constitutional Law, Criminal Law

Charles Dent was convicted and sentenced on one count of first-degree criminal sexual conduct (CSC) with a minor and two counts of disseminating obscene material to a minor. Dent appealed, and a divided court of appeals' panel reversed and remanded for a new trial, finding the trial court erred in failing to give the requested circumstantial evidence charge the South Carolina Supreme Court articulated in State v. Logan, 747 S.E.2d 444 (2013). Because this ruling was dispositive, the court of appeals did not reach Dent's other assignments of error. The Supreme Court granted the State's petition for a writ of certiorari and then reversed: while the Court agreed with the court of appeals' finding of error in the trial court's failure to charge circumstantial evidence pursuant to Logan, the error was harmless. The Court reversed and remanded to the court of appeals for consideration of Dent's remaining issues on appeal.

State v. Carter

Court: Utah Supreme Court

Citation: 2023 UT 18

Opinion Date: August 17, 2023

Judge: Pearce

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

The Supreme Court affirmed the decision of the court of appeals affirming Defendant's conviction of aggravated arson, holding that the court of appeals did not err in concluding that Defendant's counsel did not render ineffective assistance.

On appeal, Defendant argued that his counsel provided ineffective assistance by failing to move for a directed verdict and by failing to object to the testimony of an expert who opined that the structure Defendant had set fire to was habitable. A divided court of appeals affirmed. The Supreme Court affirmed, holding (1) reasonable counsel could have decided to forgot a motion for directed verdict; and (2) the court of appeals correctly concluded that Defendant was not deprived of the Sixth Amendment guarantees.

Freer v. Wyoming

Court: Wyoming Supreme Court

Citation: 2023 WY 80

Opinion Date: August 15, 2023

Judge: Boomgaarden

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

The Supreme Court affirmed Defendant's conviction on twenty-one counts related to his sexual abuse of his daughter AF, holding that Defendant was not entitled to relief on his allegations of error.

At issue was whether the district court abused its discretion in admitting a sexually explicit photograph of AF's mother, Mrs. Freer, and a pornographic father-daughter incest video under Wyo. R. Evid. 404(b). The Supreme Court affirmed, holding (1) the district court did not abuse its discretion in admitting the sexually explicit photograph of Mrs. Freer and the pornographic incest video; (2) Defendant failed to demonstrate that alleged prosecutorial misconduct denied him his right to a fair trial.