Murillo Morocho v. Garland

Court: US Court of Appeals for the First Circuit

Docket: 22-1881

Opinion Date: August 21, 2023

Judge: Montecalvo

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

The First Circuit granted in part Petitioner's petition for review of an order of the Board of Immigration Appeals (BIA) affirming the denial of Petitioner's application for deferral of removal under the Convention Against Torture (CAT) and vacated the BIA's order denying Petitioner CAT relief as to Ecuador, holding that remand was required for further proceedings.

Petitioner was charged with removability for entering the country without admission or parole. Petitioner conceded removability and sought deferral of removal under CAT. An immigration judge (IJ) denied relief. The BIA affirmed. Petitioner petitioned for review and was subsequently removed to Ecuador. The First Circuit vacated the BIA's decision insofar as it denied Petitioner's CAT claim linked to the vernal violence in Ecuadorian prisons, holding that the BIA and IJ failed to apply the proper legal test in assessing whether the Ecuadorian government would consent or acquiesce to acts of torture by private actors in Ecuadorian prisons.

United States v. Andino-Rodriguez

Court: US Court of Appeals for the First Circuit

Dockets: 20-2129, 20-2183

Opinion Date: August 21, 2023

Judge: Ojetta Rogeriee Thompson

Areas of Law: Criminal Law

The First Circuit affirmed the judgment of the circuit court convicting Defendants of drug conspiracy crimes for their roles in a drug-trafficking case, holding that Defendants were not entitled to relief on their allegations of error.

After a joint jury trial, co-defendants Katerin Martinez-Alberto and Alexandria Andino-Rodriguez were convicted for their roles in an underlying trafficking venture. The First Circuit affirmed, holding (1) any error in the trial court's evidentiary rulings was harmless; (2) there was no plain error in the jury instructions; and (3) the trial court did not commit clear error in determining that Andino-Rodriguez did not carry her burden to demonstrate she was entitled to the downward adjustment she sought.

United States v. Coplin-Benjamin

Court: US Court of Appeals for the First Circuit

Docket: 21-1737

Opinion Date: August 21, 2023

Judge: Jeffrey R. Howard

Areas of Law: Criminal Law

The First Circuit affirmed the sentence imposed upon Defendant in connection with his conviction of conspiracy to possess with the intent to distribute a controlled substance and conspiracy to import a controlled substance into the United States, holding that the district court did not abuse its discretion in imposing a 262-month sentence.

On appeal, Defendant argued that the district court erred by applying a four-level leadership enhancement, failing properly to consider the factors set forth in 18 U.S.C. 3553 regarding his cooperation with the government, and imposing a much longer sentence than several co-defendants. The First Circuit affirmed, holding that Defendant's sentence of 252 months' imprisonment was both procedurally and substantively reasonable.

United States v. Daniells

Court: US Court of Appeals for the First Circuit

Docket: 19-2188

Opinion Date: August 22, 2023

Judge: David J. Barron

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

The First Circuit vacated Appellant's conviction for willfully violating 18 U.S.C. 922(n) - the federal prohibition on the receipt of a firearm by someone "under indictment for a crime punishable by imprisonment for a term exceeding one year" - and vacated Appellant's sentence, holding that an instructional error and the application of a "trafficking of firearms" enhancement were in error.

Appellant was convicted of violating 18 U.S.C. 922(n) and 18 U.S.C. 922(a)(1)(A), the federal prohibition on "dealing in firearms" without a license. The First Circuit vacated the judgment in part, holding (1) the trial court erred in instructing the jury as to the "willfully" element of the section 922(n) offense; (2) remand was required for an evidentiary hearing on Appellant's claim of actual conflict of defense counsel under the Sixth Amendment; and (3) the trial court erred in applying the "trafficking" enhancement, and the error was not harmless.

United States v. Falcon-Nieves

Court: US Court of Appeals for the First Circuit

Docket: 20-2189

Opinion Date: August 23, 2023

Judge: David J. Barron

Areas of Law: Criminal Law

The First Circuit vacated in part and reversed in part the judgment of the district court convicting Defendants, sisters Ivonne Falcon-Nieves and Marielis Falcon-Nieves, on various federal charges relating to the Commonwealth of Puerto Rico's alleged public corruption, holding that the evidence was insufficient to support some of Ivonne's convictions.

Specifically, the First Circuit held (1) the evidence was sufficient to support one of the counts of honest services wire fraud with which Ivonne was charged, Ivonne's convictions for conspiracy to commit honest services wire fraud or federal program bribery, and Marielis's conviction for aiding and abetting extortion; (2) the evidence was insufficient to support Ivonne's conviction for federal program bribery, her other two convictions for honest services wire fraud, and her aiding and abetting extortion conviction; (3) one of Ivonne's conspiracy convictions must be vacated due to a prejudicial variance; and (4) the remaining convictions must be vacated because the district court erred in denying the sisters' motions for severance of their trials.

United States v. Munoz-Martinez

Court: US Court of Appeals for the First Circuit

Docket: 20-1749

Opinion Date: August 22, 2023

Judge: Jeffrey R. Howard

Areas of Law: Criminal Law

The First Circuit reversed Defendant's single-count conviction under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(c), holding that no rational jury could have found Defendant guilty of extortion and extortion conspiracy, as those crimes are construed under Puerto Rio law.

Defendant and six others were charged with a RICO violation arising from activities as officers within the Caguas Drug Unit (CDU). The indictment alleged that Defendant committed two specific acts of racketeering - one act of extortion conspiracy and one act of extortion. Defendant was convicted by a jury of the charged RICO violation. The First Circuit reversed, holding that Defendant's conviction rested on insufficient evidence that he committed at least two predicate acts of racketeering.

United States v. Potter

Court: US Court of Appeals for the First Circuit

Docket: 22-1579

Opinion Date: August 22, 2023

Judge: Jeffrey R. Howard

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

In this interlocutory appeal the First Circuit affirmed the decision of the district court granting Defendant's motion to suppress items seized during a traffic stop, holding that the government was not entitled to relief on its allegations of error.

Defendant was stopped by a New Hampshire police officer for failing to use a turn signal on a road that narrowed from two lanes to one lane. After the officer discovered that Defendant had outstanding arrest warrants the officer arrested Defendant and seized a bag from him containing narcotics. Defendant moved to suppress the evidence on the grounds that New Hampshire law did not require use of a turn signal at the merge point on the roadway at issue. The district court agreed and granted the motion to suppress. The First Circuit affirmed, holding (1) it was not objectively reasonable for the officer to rely on a yield sign in the roadway to govern the factual situation he was encountering; and (2) it was not a reasonable mistake of law for the officer to believe that a turn signal was required at the merge point.

United States v. Williams

Court: US Court of Appeals for the First Circuit

Docket: 21-1493

Opinion Date: August 22, 2023

Judge: Jeffrey R. Howard

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's sentence that he received in connection with a robbery committed in Maine, holding that Defendant was not entitled to relief on his allegations of error.

On appeal, Defendant argued, among other things, that the trial court erred in finding that two of his earlier convictions under Massachusetts law and one under Maine law were crimes of violence under the sentencing guidelines. The First Circuit disagreed and affirmed, holding (1) Defendant's Massachusetts conviction for assault with a dangerous weapon qualified as a crime of violence under the guidelines; and (2) Defendant's Maine conviction for robbery with the use of a dangerous weapon was a crime of violence under the guidelines.

Horn v. Medical Marijuana, Inc.

Court: US Court of Appeals for the Second Circuit

Docket: 22-349

Opinion Date: August 21, 2023

Judge: GERARD E. LYNCH

Areas of Law: Criminal Law, White Collar Crime

Plaintiff-Appellant Douglas Horn appealed the district court’s order of the granting summary judgment to Defendants on his claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). On appeal, Appellant argues that the district court erroneously held that he lacks RICO 11 standing to sue for his lost earnings because those losses flowed from, or were derivative of, an antecedent personal injury.
 
The Second Circuit agreed and vacated the order granting summary judgment to Appellees on Appellant’s civil RICO claim and remanded to the district court. The court explained that
RICO’s civil-action provision, 18 U.S.C. Section 1964(c), authorizes a plaintiff to sue for injuries to 14 “business or property.” While that language implies that a plaintiff cannot sue for personal injuries, that negative implication does not bar a plaintiff from suing for injuries to business or property simply because a personal injury was antecedent to those injuries.

United States v. Krivoi

Court: US Court of Appeals for the Second Circuit

Docket: 21-1439

Opinion Date: August 22, 2023

Judge: Dennis G. Jacobs

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of, among other things, kidnapping and kidnapping conspiracy in violation of 18 U.S.C. Section 1201. Defendant argued on appeal that the victim’s detention was too brief to constitute kidnapping under section 1201 because Defendant lacked the intent required to violate section 1201 and because the district court violated his constitutional rights by preventing him from cross-examining the victim about any connections that the victim’s family may have had to the Federal Bureau of Investigation.
 
The Second Circuit affirmed. The court agreed with Defendant that not all detentions satisfy section 1201(a)’s second element. However, the court explained that Defendant’s assertions to the contrary notwithstanding, Rodriguez does not compel the conclusion that the victim’s detention was not a kidnapping. The court concluded that Defendant’s conduct satisfied the federal kidnapping statute’s second element. While the victim’s 30-minute detention may be characterized as relatively brief, it was nonetheless “appreciable.” As noted, Defendant forced the victim into the vehicle under threat of violence, physically restrained the victim before walking him to a more secluded location, threatened the victim with a knife, beat the victim repeatedly, and included the victim’s family in their threats. The perilous nature of these conditions weighs heavily in favor of concluding that the victim’s detention was appreciable.

United States v. Titus

Court: US Court of Appeals for the Third Circuit

Docket: 22-1516

Opinion Date: August 22, 2023

Judge: Bibas

Areas of Law: Criminal Law, Drugs & Biotech, Professional Malpractice & Ethics, White Collar Crime

Titus’s solo medical practice, in its last 13 months, earned $1.1 million by distributing more than 20,000 prescriptions for Schedule II drugs. Titus often did only cursory physical examinations before prescribing opioids. He kept prescribing drugs despite signs that his patients were diverting or abusing them. At least two of Titus’s patients overdosed. Other doctors filed professional complaints. Titus closed his practice. Federal agents raided the homes of Titus and two of his employees and found thousands of patient files. Titus was indicted on 14 counts of unlawfully dispensing and distributing controlled substances (based on 14 prescriptions) and maintaining drug-involved premises, 21 U.S.C. 841(a)(1), (b)(1)(C), 856(a)(1).

The government's statistician, using the Prescription Monitoring Program, identified 1,142 patients for whom Titus had prescribed controlled drugs, drew a random sample of 300 patients, and extrapolated to conclude that Titus had provided 29,323 controlled substance prescriptions to 948 patients with at least one inconsistent drug test and 1,552 such prescriptions to 352 patients he had already discharged from his practice. The government’s medical expert reviewed 24 of those files and determined that Titus had written illegal prescriptions for 18 of the patients.

The district court held Titus responsible for at least 30,000 kilos, citing “general trial evidence” and extrapolating from the 24-file sample. The Third Circuit affirmed Titus’s convictions but vacated his 240-month sentence. The government failed to prove that extrapolating from a small sample satisfied its burden to prove the drug quantity by a preponderance of the evidence.

United States v. Washington

Court: US Court of Appeals for the Third Circuit

Docket: 21-3299

Opinion Date: August 24, 2023

Judge: Porter

Areas of Law: Criminal Law

Federal Protective Service, within DHS, hires Protective Service Officers for federal property and can secure contracts for private security. FPS contracted with a private security company, to provide security for the Philadelphia Social Security Administration (SSA) office. Smith and Bell were assigned to that office. In 2020, Washington was told that he could deliver certain paperwork to that office. He found the door locked. Bell explained that the office was open, with modified operations because of the coronavirus pandemic. Bell directed Washington to a drop box where he could deposit his paperwork. Washington insisted that he be allowed to visit the person with whom he spoke on the phone and forced his way into the building. Smith and Bell eventually subdued and handcuffed Washington.

Washington was charged with two violations of 18 U.S.C. 111. The indictment alleges that Washington “forcibly assaulted, resisted, opposed, impeded, intimidated and interfered with an officer of the United States, as designated in [18 U.S.C. 1114], that is, [the victim], a Protective Services Officer,” while the victim was performing official duties. Weeks before trial, the government stated that Smith and Bell were contract officers but contended that they were designated under section 1114 because they were assisting the FPS in securing the SSA office. The Third Circuit reversed Washington's conviction. The indictment was flawed. It alleged that Washington assaulted federal officers when his victims could be protected only if designated as persons assisting federal officers or employees. The government’s evidence did not prove that modification.

Darius Vitkus v. Antony Blinken

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-6901

Opinion Date: August 24, 2023

Judge: KING

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

Petitioner, a citizen of the Republic of Lithuania, challenged the district court’s denial of his request for a preliminary injunction (the “Injunction Denial”). Petitioner sought— in connection with his petition for habeas corpus relief under 28 U.S.C. Section 2241 — to prevent the defendant government officials from carrying out his extradition to Lithuania. The district court denied Petitioner’s request for injunctive relief, deeming him unlikely to succeed on the merits of his claim that his extradition to Lithuania would contravene the extradition treaty between that country and the United States. More specifically, Petitioner maintained that Lithuania’s 2015 extradition request fails to comply with the treaty’s mandate that Lithuania produce what is called “the charging document” (the “charging document contention”). The Injunction Denial ruled, however, that the documents produced by Lithuania comply with the extradition treaty, and that Petitioner is therefore not entitled to preliminary injunctive relief.
 
The Fourth Circuit reversed. The court explained that it is satisfied that Petitioner is likely to succeed on the merits of his claim that Lithuania’s 2015 extradition request does not satisfy the charging document mandate of the extradition treaty. The court wrote that Petitioner has demonstrated that Lithuania’s 2015 extradition request to return him to that country does not satisfy the Treaty’s requirements. And the public’s interest in the Secretary of State recognizing and fulfilling Treaty obligations outweighs any detrimental impact that the denial of an improper extradition request could have.

In re: Weldon Stewart, Jr.

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-278

Opinion Date: August 21, 2023

Judge: QUATTLEBAUM

Areas of Law: Constitutional Law, Criminal Law

A South Carolina jury convicted Petitioner of voluntary manslaughter concerning the death of his girlfriend. Almost 20 years later—following three rounds of collateral litigation in state court and one 28 U.S.C. Section 2254 habeas petition in federal court—Petitioner sought permission to file a second Section 2254 petition. In that application, Petitioner claims he now remembers that his girlfriend died by suicide. According to Petitioner, his memory was repressed at the time of his trial and his regained memory satisfies the rigorous newly discovered evidence requirements of 28 U.S.C. Section 2244(b)(2)(B), allowing him to file a second habeas petition.
 
 
The Fourth Circuit denied the petition. The court explained that one of those requirements is that Petitioner demonstrate, by clear and convincing evidence, that no reasonable factfinder, considering his alleged regained memory with the rest of the evidence, would find Petitioner guilty of manslaughter. Because Petitioner failed to meet this burden, the court denied his application to file a successive Section 2254 habeas petition

Neal v. Vannoy

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-70007

Opinion Date: August 23, 2023

Judge: Leslie H. Southwick

Areas of Law: Constitutional Law, Criminal Law

Louisiana challenged the district court’s grant of habeas relief to an inmate who had been convicted of first-degree murder and sentenced to death in 2009. The district court held that the ineffective assistance of trial counsel prejudiced the defense. The State argued that the district court applied the incorrect standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 and that the district court improperly granted habeas relief due to ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).
 
The Fifth Circuit affirmed. The court explained that in reviewing an ineffectiveness claim, the court must weigh the evidence that was unaffected by the alleged error, along with the evidence that was affected by the error and the degree to which it was affected, and then assess whether the petitioner “has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.”
 
Here, the State argued that because a jury might have found that Petitioner shot at law enforcement vehicles during the police chase, it would have imputed specific intent to kill the victim. The court wrote that it agreed with Petitioner that this theory is not supported by Louisiana law. Further, the court explained that the three key pieces of evidence, at the very least, create a “reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Accordingly, the court concluded that Petitioner has carried his burden of proving there is a reasonable probability that his convictions and death sentence were prejudiced as a result of his counsel’s deficient performance.

USA v. Bopp

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-10267

Opinion Date: August 23, 2023

Judge: Don R. Willett

Areas of Law: Constitutional Law, Criminal Law

Defendant was indicted for knowingly possessing “material”— a cell phone—that contained child pornography. Even though the phone had thousands of such images, the indictment specifically described only four. Defendant pleaded guilty under a plea agreement. After sentencing, the district court ordered Defendant to pay restitution to several individual victims whose likenesses appeared in some images from Defendant’s phone. But these images were among those that the indictment did not specifically describe. Defendant argued that restitution is available only to victims who appeared in the four images specified in the indictment.
 
The Fifth Circuit affirmed. The court explained that the indictment charged Defendant with a crime, but Defendant has identified no rule or statute that would require the indictment to also include descriptions of all the images or all the victims. The court explained that, on the contrary, the indictment tracks the statute’s language: “Specifically, Defendant possessed one Motorola Moto G Stylus android cellular phone that contained the following described image files visually depicting a prepubescent minor engaged in sexually explicit conduct . . . .” The object of the possession in the indictment is clearly the “Motorola Moto G Stylus,” not any of the images. The court wrote that the statute criminalizes possession of material containing child pornography. The phone was that “material,” no matter whether it contained one image or twenty thousand. Thus, the court concluded that there was no error with the district court’s finding and amount of restitution.

Soto v. Siefker

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-4229

Opinion Date: August 21, 2023

Judge: Raymond M. Kethledge

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

In 2006, Soto’s wife reported the death of their two-year-old son. Soto admitted that the child’s death was his fault but described it as an accident: he said he had been driving an ATV around his property and had run over the toddler by mistake. Soto agreed to plead guilty to child endangerment in exchange for the dismissal of a manslaughter charge. Soto served his five-year sentence and left prison in 2011. In 2016, Soto went to the Putnam County Sheriff’s Office and confessed that he had actually beaten his son to death and had staged the ATV accident to cover up his crime. Soto was charged with aggravated murder, murder, felonious assault, kidnapping, and tampering with evidence.

Soto claimed double jeopardy in a habeas petition under 28 U.S.C. 2241. The Sixth Circuit affirmed the denial of relief. Jeopardy attaches to an “offence” under the Double Jeopardy Clause, only when a court or jury has the power to determine the defendant’s guilt or innocence as to that “offence.” During Soto’s 2006 plea hearing, jeopardy attached to the child-endangerment charge once the court accepted Soto’s guilty plea for that charge; the court lacked power to determine Soto’s guilt or innocence of the manslaughter charge. Jeopardy never attached to that charge.

United States v. Hoskins

Court: US Court of Appeals for the Sixth Circuit

Dockets: 22-1552, 22-1506

Opinion Date: August 23, 2023

Judge: Batchelder

Areas of Law: Criminal Law

In 2019-2020, Cedrid, Smith, and Hoskins defrauded 20 different banks and their customers by purchasing identification information that hackers stole from financial institutions, then accessing the victim’s bank online. A conspirator would call the victim, “spoofing” the bank's phone number, and pretend to be concerned about suspicious activity, then tell the victim they would send an identification code to verify the victim’s identity. The co-conspirator would then trigger the “forgot my password” function to send a code to the victim. When the victim provided that code to the conspirator, the conspirator could change the password and gain full access to the victim’s account.to withdraw funds. The three were charged with bank fraud conspiracy and aggravated identity theft, 18 U.S.C. 1349 and 18 U.S.C. 1028A.

The PSRs determined an actual loss of $1,171,673.97 and an Intended loss of $2,158,297.80. The district court overruled Smith’s objection to some of the conduct included in her offense level because she was not directly involved with several of the banks. The court sentenced Smith to 36 months for the conspiracy charge and to a consecutive 24 months for aggravated identity theft. Hoskins was sentenced to 48 months for the conspiracy charge. The Sixth Circuit affirmed, rejecting arguments that the district court erred by attributing to each defendant the conduct of others involved in the conspiracy, by including intended-loss amounts in Hoskins’s offense level, and in ordering Smith to pay all the restitution in full.

United States v. Jamison

Court: US Court of Appeals for the Sixth Circuit

Dockets: 21-4013, 21-3979

Opinion Date: August 18, 2023

Judge: Nalbandian

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

Johnson was the councilman in Cleveland’s Buckeye-Shaker neighborhood for 41 years. Jamison was his executive assistant. For years, Johnson used his position to fraudulently claim federal reimbursements for payments he never made. He also secured employment for his children in federally funded programs, although they were not legally eligible to work in such positions. Johnson deposited their earnings into his own account. In addition, Johnson fraudulently claimed a series of tax deductions. He encouraged and assisted his son Elijah in submitting falsified records for Elijah’s grand-jury testimony. Jamison assisted Johnson in these crimes. Johnson and Jamison were convicted on 15 charges, including federal program theft under 18 U.S.C. 371, 666(a)(1)(A) and (2); tax fraud, 26 U.S.C. 7206(2); and obstruction of justice, 18 U.S.C. 1512(b) and 1519. Johnson was sentenced to 72 months in prison. Jamison was sentenced to 60 months.

The Sixth Circuit affirmed, rejecting challenges to the district court’s loss calculations and to sentencing enhancements for being an organizer or leader of a criminal activity involving five or more participants, for using a minor, and for obstructing justice. The district court properly admitted “other acts” evidence of prior misuse of campaign funds. Any other errors in evidentiary rulings were harmless.

United States v. Pembrook

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-1503

Opinion Date: August 21, 2023

Judge: Batchelder

Areas of Law: Criminal Law

Pembrook, Johnson, and two others robbed two stores at gunpoint. Each was convicted of Hobbs Act robbery and conspiracy to commit Hobbs Act robbery, 18 U.S.C. 1951(a), possession of a firearm by a felon, 922(g), and two counts of brandishing a firearm during and in relation to a crime of violence, 924(c). The 924(c) counts carried a combined 32-year additional mandatory-minimum sentence: seven years for the first count and an additional 25 years for the second.

The court granted a downward variance and sentenced each defendant to 33 years: one year each for the first three counts, to run concurrently, plus the mandatory 32 years. The Supreme Court remanded in light of “Davis” (2019), which found 924(c)(3)(B) unconstitutionally vague. The parties stipulated that new PSRs would exclude the 25-year additional sentence for the second 924(c) count, and revise the defendants’ personal information, including their conduct during incarceration. The court added a five-level enhancement for brandishing a firearm, which applied only after the second 924(c) charge was excluded, U.S.S.G. 2B3.1(b)(2)(C), and a two-level enhancement for physical restraint of the victims, 2B3.1(b)(4)(b), then resentenced Pembrook to 156 months in prison and Johnson to 168 months.

The Sixth Circuit affirmed. This case involved a general remand for a de novo resentencing; the parties were entitled to raise new issues at resentencing, even issues previously waived or forfeited. The district court properly determined that the facts of the robbery satisfy that enhancement.

United States v. Pennington

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-5181

Opinion Date: August 21, 2023

Judge: Karen Nelson Moore

Areas of Law: Criminal Law

While facing charges for conspiracy to engage in human trafficking, 18 U.S.C. 1594(c), Pennington improperly communicated with witnesses in the case and was charged with witness tampering, 18 U.S.C. 1512(b)(1). The 1594(c) conspiracy charge was dismissed when Pennington pleaded guilty to the witness-tampering charge. The district court applied the U.S. Sentencing Guideline that corresponds with his witness-tampering conviction, which prompted cross-references to other guidelines, including U.S.S.G. 2G1.1, which applies to certain human-trafficking offenses and supplies two possible base-offense levels. Subsection (a)(1) provides a base-offense level of “34, if the offense of conviction is 18 U.S.C. 1591(b)(1)”; subsection (a)(2) provides a base-offense level of “14, otherwise.” Although Pennington had not been convicted under 1591(b)(1), the district court used subsection (a)(1)’s base-offense level of 34 as its starting point and imposed a 29-month sentence.

The Sixth Circuit vacated his sentence. Pennington is currently serving his term of supervised release. The district court plainly erred by misinterpreting and miscalculating the Guidelines. Pennington has not been convicted of violating 18 U.S.C. 1591(b)(1) and no guideline permits us to treat him as if he had been; U.S.S.G. 2G1.1(a)(2) provides his base-offense level, 14.

Garcia v. Posewitz

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1124

Opinion Date: August 22, 2023

Judge: Per Curiam

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

Cichocki called the police to report that her 15-year-old daughter, G.C., had been sexually assaulted by Garcia days earlier at a resort where the families were vacationing. Cichocki told Detective Posewitz that G.C. had reported that, while G.C. and the other children were in the pool, Garcia purposely touched her breasts and “down there.” Both families stayed at the resort until the next afternoon. Cichocki suggested that G.C. could not remember all the details of the incident and had expressed fear that the video would contradict her report. Posewitz interviewed G.C., who described the incidents. Surveillance footage of the pool area was poor quality and inconclusive. Although the area was crowded, there were apparently no witnesses. ADA Spoentgen drafted a criminal complaint, which ADA Hoffman reviewed. It did not refer to the surveillance footage or Cichoki's statements. The Court Commissioner found probable cause for Garcia’s arrest. The court found probable cause to proceed to trial. After Hoffman’s opening statement, the judge declared a mistrial because Hoffman mentioned that G.C. had a learning disability, which had not been disclosed to the defense.

Garcia sued Posewitz, Hoffman, and Spoentgen under 42 U.S.C. 1983. The Seventh Circuit affirmed summary judgment for the defendants, citing qualified immunity. No reasonable jury could find that it would have been clear to a reasonable officer that the information omitted from the complaint would have negated probable cause. G.C.’s and Cichocki’s accounts were largely consistent; the defendants lacked any indication that either had a motive to lie.

United States v. Garcia

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-2434

Opinion Date: August 24, 2023

Judge: Jackson-Akiwumi

Areas of Law: Criminal Law

Garcia provided logistical assistance while another man unloaded items from a secret compartment on an empty bus. The items were controlled substances. Based on his involvement in the affair, Garcia was convicted of possession with the intent to distribute controlled substances, and conspiracy to do the same. The court rejected his argument that, although he may have known the bus contained unspecified contraband, the government failed to prove that he knew about drugs specifically, and that notes that jurors submitted to the court during trial suggested that jurors were deliberating prematurely and otherwise not following the court’s instructions.

The Seventh Circuit affirmed. When viewed in the light most favorable to the government, there was evidence that Garcia knew the bus contained controlled substances. Garcia knew the object of the conspiracy was drugs, as opposed to some general illicit end. The court noted a conversation about needing “more time because he had not been able to remove the drugs” and a second conversation in which Garcia explicitly mentioned drugs. Although the juror notes show something strange was happening with the jury, the district court did not abuse its discretion concluding that it did not rise to the level of misconduct. Courts presume the jury followed the instructions not to deliberate prematurely; there is no “overwhelming” evidence to overcome the presumption.

United States v. Jones

Court: US Court of Appeals for the Seventh Circuit

Dockets: 21-1482, 21-1672

Opinion Date: August 18, 2023

Judge: Scudder

Areas of Law: Criminal Law

The FBI surveilled Jones and Schimenti, members of the same mosque, based on their pro-ISIS, violent social media posts. After several months, the FBI found no evidence of criminal activity but initiated contact between Jones and an undercover agent, “Omar.” Jones, not the agents, pursued subsequent conversations about radical Islam. Omar introduced Jones to “Bilal,” another undercover agent. Omar, Bilal, Jones, and Schimenti met. After Schimenti left, Jones explained that Schimenti worried that Bilal and Omar were federal agents. Jones continued to initiate pro-ISIS messages and built other ISIS connections, including Omar 2, another undercover FBI agent. Jones organized a meeting between himself, Bilal, and Omar 2, after which Omar 2 purportedly traveled to Syria with Bilal’s help. The FBI reestablished contact with Schimenti through a new confidential informant, “Muhamed,” who expressed his desire to join his brother in the ISIS army in Syria. Schimenti offered help. In 2017 Jones and Shimenti gave Muhamed nine phones and drove Muhamed to O’Hare airport. They believed he would be traveling to Syria to use the cell phones as makeshift bombs as an ISIS fighter. The FBI arrested Jones and Schimenti. Based on the provision of cell phones for use as IEDs by ISIS, they were convicted of providing material support to a terrorist organization, 18 U.S.C. 2339B(a)(1).

The Seventh Circuit affirmed. The court properly instructed the jury on the elements of entrapment; its ultimate determination is entitled to meaningful deference. The court upheld the denial of a motion for a new trial based on a revelation regarding a substantial payment the government made to a confidential source shortly after the convictions. It is impossible to conclude that earlier disclosure of a contemplated post-trial payment would have resulted in acquittals.

United States v. Kamkarian

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2366

Opinion Date: August 23, 2023

Judge: HAMILTON

Areas of Law: Criminal Law

FBI agents executing a search warrant at Kamkarian’s home seized computers, containing 12 videos and more than 46,000 images of child pornography. Kamkarian was released on bond and was required to participate in mental health treatment. Kamkarian attended counseling but refused to submit to a psychiatric evaluation. Kamkarian mentioned the possibility of suicide and was admitted to a hospital. During that hospital stay, Kamkarian was transported to court, Kamkarian, under oath, proceeded with a plea colloquy. The court confirmed that Kamkarian could read, write, and understand English; was able to think clearly and understand the proceedings; was fully satisfied with his counsel’s advice; had not been forced to plead guilty; and was pleading guilty freely and voluntarily. The court accepted his plea.

With new counsel, Kamkarian moved to withdraw his plea, arguing that at the time he pled guilty, he was receiving in-patient treatment for depression. He was granted a psychological evaluation but denied an interpreter. A forensic psychologist interviewed Kamkarian, reviewed his treatment records, and opined that Kamkarian had Major Depressive Disorder that did not render him incompetent to plead guilty and that he had no difficulty communicating in English. The district judge denied his motion, explaining that she recalled Kamkarian’s hearing and that he had not appeared distressed, confused, or under duress. She discredited his testimony and sentenced Kamkarian to 87 months. The Seventh Circuit affirmed. The district court’s factual findings are not clearly erroneous; the court did not abuse its discretion.

United States v. Long

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2275

Opinion Date: August 22, 2023

Judge: HAMILTON

Areas of Law: Criminal Law

Long was arrested for domestic battery. Police discovered a stolen firearm in his waistband and cocaine in plain view. Long pled guilty under 18 U.S.C. 922(g)(1) to possessing a firearm as a convicted felon. His guideline range was 33-41 months. The court explained it intended to impose a 51-month sentence, followed by three years of supervised release with conditions of drug testing and treatment. The court noted that Long had four felony convictions and several other convictions and that the guideline calculation understated his criminal history. Long’s history of domestic violence, was “very concerning” and Long had been “afforded the opportunity for rehabilitation by probation, parole, supervision, community corrections, jail sentences, and even a prison sentence.” The court noted that Long admitted he was addicted to drugs and requested treatment, that Long owed approximately $80,000 in child support and had limited employment history, then referred to “a long enough time that the defendant can participate in prison industries, as well as learn some job skills.” Neither party objected.

Long argued that the court plainly erred by imposing a sentence in part to rehabilitate him, contrary to 18 U.S.C. 3582(a) as construed in by the Supreme Court in “Tapia” (2011). The Seventh Circuit affirmed. Rehabilitation is an important consideration in most sentences. Tapia permits a judge to discuss rehabilitation so long as she does not make rehabilitation a primary consideration. This record does not show a plain error under Tapia.

United States v. Skaggs

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2424

Opinion Date: August 23, 2023

Judge: Per Curiam

Areas of Law: Criminal Law

Skaggs was convicted in 2020 of producing and possessing child pornography. The indictment had included notice that the government intended to seek forfeiture of Skaggs’s property that was seized during the investigation. Skaggs proceeded pro se with the assistance of standby counsel and was convicted. When Skaggs objected to forfeiture on the ground that some of the property sought did not relate to his crimes. The court replied that, after sentencing, it would ask the government to itemize the property and give Skaggs a chance to object. The court sentenced Skaggs to life imprisonment. The judgment included a forfeiture provision that duplicated language from the notice in the indictment: “The defendant shall forfeit all images of child pornography … and all property seized during the searches of the defendant[], his residence, and [his] laundry room.” The Seventh Circuit affirmed his conviction and sentence.

About 30 months later, well outside the 14-day period (Federal Rule of Criminal Procedure 35(a)) for correcting a sentence, at the government’s request, the court entered a preliminary forfeiture order, Itemizing each piece of property that Skaggs had forfeited, without giving Skaggs the promised chance to object. The Seventh Circuit vacated. Any forfeiture ordered at sentencing is part of the final judgment. The district court lacked the authority to amend that judgment years after its entry.

Chantelle Robbertse v. Merrick B. Garland

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1739

Opinion Date: August 21, 2023

Judge: Melloy

Areas of Law: Criminal Law, Immigration Law

Petitioner, a citizen of Africa who became a lawful permanent resident of the United States in 2012, pleaded guilty to aggravated identity theft predicated on wire fraud. In the plea agreement, Petitioner admitted that she “aided and abetted” her mother in the mother’s scheme of “defrauding” the State of California of $475,350.28.

The Board of Immigration Appeals ("BIA") charged Petitioner as removable, characterizing her conviction as a conviction for an offense involving “fraud or deceit” with a loss to the victim exceeding $10,000, thus qualifying as an “aggravated felony” under 8 U.S.C. 1101(a)(43)(M)(i). In so holding, the BIA determined that the elements of the identity theft offense included a reference in the alternative to several qualifying felony offenses, and required as an element that the identity theft be committed “during and in relation to” one of the other qualifying felonies.

Petitioner appealed, arguing her conviction did not qualify under the categorical approach as an offense involving fraud or deceit. She also sought relief under the Convention Against Torture ("CAT"). An immigration judge rejected Petitioner's arguments, as did the BIA. Petitioner appealed.

On appeal, the Eighth Circuit held that the BIA appeals did not err in concluding that Petitioner's conviction was a qualifying aggravated felony based on her express admission that she had aided and abetted a scheme to defraud a victim of more than $475,000. Further, the Eighth Circuit found that the BIA did not apply the wrong legal standard in finding Petitioner ineligible for withholding of removal and did not err in denying CAT relief.

United States v. Darren Lasley

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1248

Opinion Date: August 23, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted by a jury of enticing a minor to engage in sexual activity. The charge arose from Defendant’s response to an online advertisement and his dialogue with an undercover detective who posed as a fourteen-year-old girl. At trial, the district court declined Defendant’s request to instruct the jury on the affirmative defense of entrapment, and Defendant appealed that decision.
 
The Eighth Circuit affirmed the judgment. The court concluded that the evidence was insufficient to warrant the requested instruction. The court explained that the evidence here shows that the government presented Defendant with an opportunity to entice an arguably sexually precocious minor whose appearance was arguably more mature than average. Defendant responded to an advertisement, and broached the topic of unlawful sexual activity with a fourteen-year-old girl. The detective posing as a minor carried on a lengthy dialogue with Defendant, but did not employ the tactics most likely to warrant an entrapment instruction: pressure, assurances that a person is not doing anything wrong, persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy, or friendship. Without more, there was not sufficient evidence from which a reasonable jury could find that the government impermissibly induced Defendant to commit the offense.

United States v. Rufus Dennis

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1759

Opinion Date: August 24, 2023

Judge: KOBES

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of attempted Hobbs Act robbery and three firearm charges, including possession of a firearm in furtherance of a crime of violence, 18 U.S.C. Section 924(c). Defendant argued that there is insufficient evidence to support his attempted Hobbs Act robbery conviction and that his Section 924(c) conviction should be vacated in light of United States v. Taylor, 142 S. Ct. 2015 (2022). He also challenged his sentence’s substantive reasonableness.
 
The Eighth Circuit affirmed his attempted Hobbs Act robbery conviction but vacated his Section 924(c) conviction under Taylor. The court also vacated Defendant’s sentence and remanded for resentencing. The court explained that here Defendant repeatedly surveilled L.B.’s home. He donned a disguise and scripted his false entry. He had a rifle and planned to neutralize, if necessary, those he found inside. But he preferred to wield a handgun and told his fake accomplice he wouldn’t rob the house without one. Just before the trade, he was arrested. All told, the district court did not clearly err by finding the circumstances showed Defendant was about to complete all the acts he believed necessary to complete the Hobbs Act robbery but for the police’s intervention. The court explained that after Defendant’s trial, the Supreme Court decided United States v. Taylor and held that “attempted Hobbs Act robbery does not satisfy the elements clause” of Section 924(c). This means that Defendant’s attempted Hobbs Act robbery conviction no longer qualifies as a predicate crime of violence for his Section 924(c) conviction. Thus the court vacated his Section 924(c) conviction in accordance with Taylor.

USA V. CARLOS ESTRADA

Court: US Court of Appeals for the Ninth Circuit

Docket: 23-50012

Opinion Date: August 24, 2023

Judge: Tashima

Areas of Law: Constitutional Law, Criminal Law

Defendant challenged the district court’s judgment on the third revocation of his supervised release. He contends that the district court lacked jurisdiction because, at the time of his third violation, he was serving a term of supervised release that exceeded the applicable statutory maximum.
 
The Ninth Circuit affirmed. Applying the rationale of United States v. Castro Verdugo, 750 F.3d 1065 (9th Cir. 2014), which involved the same issue in the context of probation revocation, the panel held that because Defendant was serving a term of supervised release when he committed the instant violation, the district court had jurisdiction to revoke his supervised release and impose an additional term of imprisonment, regardless of any error in the sentence imposed on the second revocation. The panel declined to reach Defendant’s argument that the term of supervised release imposed on his second revocation exceeded the statutory maximum. Consistent with Castro Verdugo and earlier precedent, the panel held that an appeal challenging a supervised release revocation is not the proper avenue through which to attack the validity of the underlying sentence.

United States v. Morrow

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-5060

Opinion Date: August 21, 2023

Judge: Harris L. Hartz

Areas of Law: Constitutional Law, Criminal Law

Defendant Earl Hardy Morrow appeals his convictions for distribution, receipt, and possession of child pornography. On appeal, defendant argued the district court erred in: (1) permitting the government to present evidence that his electronic devices contained pornographic anime, contrary to the restrictions on the use of other-act evidence under Fed. R. Evid. 403 and 404(b); (2) preventing him from offering statements against interest by his brother Kory under Fed. R. Evid. 804(b)(3); and (3) failing to correct the government’s statement at closing argument that Kory had not yet been prosecuted when charges against him had in fact been dropped. Defendant also argued the cumulative effect of these errors required reversal of his conviction. The Tenth Circuit affirmed: the district court did not abuse its discretion in admitting the government’s other-act evidence or in excluding Kory’s statements against interest, nor did it commit reversible error in failing to correct the government’s misstatement during closing argument. "There being at most one error, Mr. Morrow’s cumulative-error argument also fails."

USA v. James Little

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

Docket: 22-3018

Opinion Date: August 18, 2023

Judge: WALKER

Areas of Law: Constitutional Law, Criminal Law

Defendant committed a petty offense. The district court sentenced him to prison, followed by probation. The only question on appeal is whether that sentence is authorized by statute.
 
The DC Circuit vacated Defendant’s sentence and remanded for resentencing. The court held that probation and imprisonment are alternative sentences that cannot generally be combined. So the district court could not impose both for Defendant’s petty offense. The court explained that the government’s reading conflicts with the statutory scheme of Section 3561. Congress made probation and imprisonment separate options for separate offenses, length of post-confinement monitoring to the severity of an offense. The Government’s reading subverts those choices.

People v. Martinez

Court: Supreme Court of California

Docket: S267138

Opinion Date: August 24, 2023

Judge: Kruger

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

The Supreme Court reversed the judgment of the court of appeal that a Department of Insurance regulation prohibiting bail bond agents from entering into agreements with jail inmates to be notified when individuals have recently been arrested and thus may be in need of bail bond services was facially invalid under the First Amendment, holding that the court of appeal erred in holding that the regulation was unconstitutional on its face.

In declaring the regulation constitutionally invalid the court of appeal concluded that the regulation imposed burdens on the free speech rights of bail bond agents that were not adequately justified by the State's interests in deterring abusive bail solicitation practices. The Supreme Court reversed, holding that the regulation burdened a protected speech right, that intermediate scrutiny applied, and that the regulation passed constitutional muster.

California v. Miller

Court: California Courts of Appeal

Docket: C097229(Third Appellate District)

Opinion Date: August 24, 2023

Judge: Renner

Areas of Law: Constitutional Law, Criminal Law

In 2022, the Sacramento County District Attorney charged defendant Stephanie Miller with carrying a concealed firearm in a vehicle under her control. Penal Code section 25400(a)(1) did not apply to individuals, unlike Miller, who were licensed to carry concealed firearms under California law. Later that year, Miller filed a demurrer asserting her concealed firearm charge was unconstitutional under New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022) which held the “proper cause” requirement in New York’s public carry licensing regime violated the Second and Fourteenth Amendments. The trial court sustained Miller’s demurrer and dismissed the charge against her. On appeal, the State argued Miller lacked standing to raise her constitutional challenge because she never attempted to apply for a license and could not show she would satisfy any valid conditions California places on receiving one. The State argued Bruen only invalidated the “good cause” requirement in California’s firearm licensing statutes and they remained otherwise constitutional pursuant to the severability doctrine. The State further argued the trial court’s interpretation of Bruen was overly broad and the criminal charge of having a concealed firearm under section 25400 remained valid post-Bruen. After review, the Court of Appeal concluded that, to the extent Miller had standing, her assertions were ultimately unavailing because section 25400 did not violate the Second Amendment regardless of the constitutionality of California’s firearm licensing statutes. The Court therefore reversed the superior court’s order sustaining Miller’s demurrer and dismissing the charge against her.

In re T.F.-G.

Court: California Courts of Appeal

Docket: H050112(Sixth Appellate District)

Opinion Date: August 24, 2023

Judge: Lie

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

In the midst of a group contacted by officers for smoking cannabis on the street, 16-year-old T.F.-G. witnessed first one and then another of his companions be restrained, searched, and made to sit on the curb as the officers worked their way through the group. T.F.-G. ran. Chased, tackled, and punched, he was arrested for resisting or delaying a peace officer (Pen. Code 148(a)). In a search incident to that arrest, the police found a loaded handgun in his pocket, which T.F.-G. was not licensed to carry.

The court of appeal affirmed his convictions. The totality of the circumstances, establishing the existence of probable cause for his arrest for resisting or delaying a peace officer—the asserted basis for the eventual search that revealed his possession of a loaded handgun in public–indicated that a reasonable person in T.F.-G.’s position would have understood he was not free to leave. The court also rejected a Second Amendment facial challenge to the prohibition on the unlicensed public carrying of loaded firearms. Although California’s “good cause” licensing requirement is undisputedly unconstitutional under the Supreme Court’s 2022 “Bruen” decision, the unconstitutionality of a discrete licensing requirement does not render section 25850 facially unconstitutional.

P. v. The North River Insurance Co.

Court: California Courts of Appeal

Docket: B322752A(Second Appellate District)

Opinion Date: August 18, 2023

Judge: WILEY

Areas of Law: Civil Procedure, Criminal Law

North River Insurance Company and its bail agent (collectively, North River) asked for its bail money back. The court said no: the prosecution had not decided whether to extradite the fugitive from Mexico. North River sought a continuance, to give the prosecution enough time to decide. The court refused that as well. Because prosecutors would not decide, and because prosecutors would not agree to a delay to allow themselves to decide, North River had to forfeit its bail money, said the trial court.
 
The Second Appellate District reversed. The court explained that where the bail company has complied with its obligations, government prosecutors should not be able to use their own indecision to allow the government to keep bail money. The bond is a contract between the bail company and the government. Section 1305 governs that contract. The bail company performed its end of the bargain. The trial court vitiated the bargain by allowing the government to escape all obligations simply by proclaiming irresolution.

Tomlinson v. State

Court: Florida Supreme Court

Docket: SC2021-1204

Opinion Date: August 24, 2023

Judge: Couriel

Areas of Law: Criminal Law

The Supreme Court approved the decision of the Third District Court of Appeal concluding that Florida's extortion law, Fla. Stat. 836.05, requires the State to prove that the defendant made a threat "intentionally and without a lawful justification," holding that the lower court properly interpreted the statute.

At issue was whether the State must prove that Defendant, who threatened to ruin the reputation of two fellow real estate brokers unless they paid him, made this threat with hatred for the complainants under section 836.05. While the Third District answered in the negative, the Fifth District Court of Appeal concluded that "maliciously" in section 836.05 required proof that Defendant acted with ill will or hatred. The Supreme Court approved the Third District's decision and disapproved the Fifth District's decision, holding that the trial court and court of appeal each decided correctly that the term "maliciously," as used in the statute, means "intentionally and without any lawful justification."

Annunziata v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0715

Opinion Date: August 21, 2023

Judge: LaGrua

Areas of Law: Constitutional Law, Criminal Law

Appellant Robert Annunziata was convicted by jury of malice murder and other crimes in connection with a 2019 shooting that took place outside of a nightclub that resulted in the death of John Price and injuries to Washington Young and Andrew Darling. On appeal, Appellant contended the trial court erred in refusing to instruct the jury on voluntary manslaughter. Finding no reversible error, the Georgia Supreme Court affirmed.

Beltran-Gonzales v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0710

Opinion Date: August 21, 2023

Judge: Colvin

Areas of Law: Constitutional Law, Criminal Law

Appellant Ricardo Beltran-Gonzales appealed his conviction for malice murder in connection with a 2013 stabbing at Hays State Prison, which resulted in the death of fellow inmate Nathaniel Reynolds. On appeal, Appellant contended the trial court abused its discretion in recharging the jury on malice murder without also recharging the jury on Appellant’s defenses. Appellant also argued his trial counsel was ineffective for failing to object to the State jointly trying Appellant with another inmate, Leonardo Ramos Rodrigues, who was separately charged with committing the same fatal stabbing. Finding no reversible error, the Georgia Supreme Court affirmed.

DeMuro v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0647

Opinion Date: August 21, 2023

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

Joshua DeMuro was convicted by jury of murder in the 2018 shooting death of Kevin Gilman. DeMuro challenged the sufficiency of the evidence and contended the State failed to prove beyond a reasonable doubt that the fatal shooting was not justified. DeMuro also argued the trial court gave incomplete jury instructions on witness credibility, impeachment, and justification and that the trial court erred in refusing to send written jury instructions out with the jury. Finding no reversible error, the Georgia Supreme Court affirmed.

Hatcher v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0465

Opinion Date: August 21, 2023

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

Perry Lee Hatcher, Jr., was convicted by jury of felony murder and cruelty to children in the third degree in connection with the shooting death of his wife, Dashea Hatcher, in the presence of their son, M. H. Hatcher contended his attorney was ineffective for failing to object to the qualifications of the State’s expert witness and to rebut the expert’s opinion concerning fibers found on the murder weapon. Because Hatcher failed to carry his burden of showing ineffective assistance of counsel, The Georgia Supreme Court affirmed the trial court’s order denying his motion for a new trial.

Henderson v. Georgia

Court: Supreme Court of Georgia

Dockets: S23A0720, S23A0559

Opinion Date: August 21, 2023

Judge: Pinson

Areas of Law: Constitutional Law, Criminal Law

After a joint trial, Demetre Mason and Frankland Henderson were convicted of malice murder and other crimes in connection with the 2014 shooting deaths of Sonia Williams and Shaniqua Camacho. On appeal, Mason contended the evidence was not sufficient to support his convictions for malice murder, and that the trial court should have held a hearing to determine whether evidence that, a month before the murders, Mason stole a handgun that was used in the shootings was admissible under Rule 403. In a separate appeal, Henderson raised six claims: (1) the admission at trial of Mason’s out-of-court statement to police violated Henderson’s rights under the Confrontation Clause of the Sixth Amendment; (2) the trial court should have given an instruction limiting how the jury could consider Mason’s out-of-court statement; (3) the testimony of one witness for the prosecution, who he claimed was an accomplice, was insufficiently corroborated; (4) the trial court should have excluded as hearsay testimony about statements from an associate of Henderson and Mason, because there was insufficient evidence to show that the statements were made in furtherance of a conspiracy so as to fall within a hearsay exception; (5) the trial court abused its discretion in denying Henderson’s motion to sever his case; and (6) the trial court abused its discretion in admitting photos of Henderson making gang signs without proper authentication.The Georgia Supreme Court found no reversible errors in either case and affirmed the convictions.

In the Interest of A.H.

Court: Supreme Court of Georgia

Docket: S22G1035

Opinion Date: August 21, 2023

Judge: Colvin

Areas of Law: Criminal Law, Juvenile Law

After adjudicating A. H. delinquent, but finding that he was not in need of treatment, rehabilitation, or supervision, the juvenile court in this case entered an order dismissing the delinquency proceedings under OCGA § 15-11-600 (d) and sealing the record under OCGA § 15-11-701. The State appealed the juvenile court’s decision to seal the record, but the Court of Appeals dismissed the appeal, concluding that neither OCGA § 5-7-1(a)(1) nor OCGA § 5-7-1(a)(6) authorized the State to appeal the juvenile court’s order. The Georgia Supreme Court granted certiorari to determine whether “the Court of Appeals err[ed] in concluding that the State was not permitted to appeal under OCGA § 5-7-1(a).” The Supreme Court found with respect to subsection (a)(6), the issue was neither fully litigated below nor briefed by the parties in significant depth to the Supreme Court. "Thus, although this issue is properly before us in a narrow sense, it is not presented in a form that would allow us to clarify the law or otherwise provide meaningful guidance." Accordingly, the writ was vacated, and the petition for certiorari in Case No. S22C1035 was denied.

Jackson v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0628

Opinion Date: August 21, 2023

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Joseph Jackson appealed his malice murder conviction for the 2018 stabbing death of Claudine Hargrove. Jackson argued: (1) the trial court erred in failing to take curative action after the prosecutor commented on his post-arrest silence by questioning him about why he waited until trial to assert that he acted in self-defense; (2) trial counsel was ineffective for failing to move for a mistrial after this questioning; and (3) the cumulative harm from these errors warranted a new trial. Given the overwhelming evidence of guilt, the Georgia Supreme Court concluded any error by the trial court in failing to take some corrective action was harmless, trial counsel was not deficient in failing to move for a mistrial because such a motion would have been futile, and there were not multiple errors to assess cumulatively. Therefore, judgment of conviction was affirmed.

Jackson v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0595

Opinion Date: August 21, 2023

Judge: LaGrua

Areas of Law: Constitutional Law, Criminal Law

Appellant Quentin Jackson was convicted of malice murder and related charges in connection with the shooting death of Darian Brewster. On appeal, Jackson argued: (1) the evidence was insufficient; (2) his trial counsel provided constitutionally ineffective assistance in several respects; and (3) the trial court erred by failing to instruct the jury on accomplice corroboration. The Georgia Supreme Court found no reversible errors and affirmed the convictions.

Locklear v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0601

Opinion Date: August 21, 2023

Judge: Bethel

Areas of Law: Constitutional Law, Criminal Law

Tony Locklear was convicted by jury of the malice murder of William Long, concealing a death, and related charges. On appeal, Locklear challenged the sufficiency of the evidence supporting his convictions. He also argued that the trial court erred by: (1) failing to suppress statements made during his custodial interview; (2) denying his motion to suppress certain physical evidence; (3) providing a confusing verdict form to the jury; and (4) refusing to grant a mistrial after the prosecutor made improper comments during closing arguments. Because the evidence was clearly sufficient to support Locklear’s convictions and because the trial court committed no reversible error with respect to Locklear’s other enumerations of error, the Georgia Supreme Court affirmed.

Mitchell v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0599

Opinion Date: August 21, 2023

Judge: Peterson

Areas of Law: Construction Law, Criminal Law

Scean Mitchell appealed his convictions for malice murder and other offenses in connection with the 2017 shooting death of Calvin Clark, Jr. Mitchell argued the trial court abused its discretion in admitting evidence of other acts under OCGA § 24-4-404 (b). He also argued his trial counsel was ineffective for failing to object when the trial court instructed the jury to disregard evidence of self-defense and for failing to request a jury instruction on self-defense. The Georgia Supreme Court rejected both claims: there was no abuse of discretion in admitting the Rule 404 (b) evidence because it was relevant to the issue of intent and its probative value was not substantially outweighed by its unfairly prejudicial effect; and trial counsel was not ineffective because the self-defense claim was not supported by strong evidence and was inconsistent with the defense theory counsel had reasonably pursued instead.

Morris v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0588

Opinion Date: August 21, 2023

Judge: Colvin

Areas of Law: Constitutional Law, Criminal Law

Appellant Jerrontae Morris was convicted of malice murder and related crimes in connection with the November 2015 shooting of a vehicle occupied by Anthony Lundy and Demeco Person, which fatally wounded Lundy. On appeal, Appellant contended the evidence was insufficient as a matter of constitutional due process to sustain his conviction for malice murder because the State failed to prove that Appellant proximately caused the victim’s death and did not prove that Appellant either conspired with his co-defendants to commit the crime or was a party to the crime. Appellant also contends that the evidence was insufficient as a matter of Georgia statutory law to sustain his conviction for malice murder because the trial evidence was circumstantial and the State failed to exclude every reasonable hypothesis other than his guilt. The Georgia Supreme Court found no reversible errors and affirmed the convictions.

Moulder v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0508

Opinion Date: August 21, 2023

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

Joshua Moulder was convicted of malice murder, armed robbery, and possession of a firearm during the commission of a felony in connection with the July 2006 shooting death of Anthony Rudolph and was also convicted of influencing a witness in 2014. He appealed, arguing the evidence was not sufficient to support his convictions related to the 2006 shooting and that counsel provided ineffective assistance by: not arguing that the State failed to prove the statute of limitation tolling provision alleged for the non-murder crimes committed in 2006; failing to raise a hearsay and Confrontation Clause objection to certain testimony given by the lead detective; failing to correctly advise Moulder about whether his prior convictions could be used to impeach him if he testified; inaccurately describing the reasonable-doubt standard in closing argument; and failing to object to a jury charge about statements made during formal court proceedings. Because the evidence was sufficient to support Moulder’s convictions and he has failed to prove his claims of ineffective assistance of counsel, the Georgia Supreme Court affirmed.

Owens v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0607

Opinion Date: August 21, 2023

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

Norris Owens was convicted by jury of felony murder based on possession of a firearm by a first-offender probationer and other crimes in connection with the shooting death of Randolph Williamson. On appeal, Owens argued the trial court erred by not merging the count for felony murder based on unlawful possession of a firearm by a first-offender probationer into the voluntary manslaughter verdict. Seeing no error, the Georgia Supreme Court affirmed.

Randolph v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0636

Opinion Date: August 21, 2023

Judge: Carla Wong McMillian

Areas of Law: Constitutional Law, Criminal Law

James Randolph was convicted by jury of malice murder, armed robbery, and other crimes in connection with the 2000 armed robbery of Carlos Torres and Dennis Dixon and the shooting death of Rodney Castlin. On appeal, Randolph argued the evidence was insufficient to support his convictions because the State failed to corroborate the testimony of an accomplice and that the trial court erred in admitting evidence of two other acts under OCGA § 24-4-404 (b). Because the Georgia Supreme Court concluded that the accomplice’s testimony was sufficiently corroborated by other evidence admitted at trial, that the trial court did not err in admitting one prior incident of armed robbery, and that any error in admitting the other incident (a home burglary) was harmless, the judgment of conviction was affirmed.

Reese v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0550

Opinion Date: August 21, 2023

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

Larry Reese was convicted by jury of the 2015 malice murder of Claynesia Ringer, possession of a firearm during the commission of a felony based on shooting Ringer, and possession of marijuana with intent to distribute. Reese argued on appeal: (1) the trial court plainly erred by failing to instruct the jury on justification, no duty to retreat, and the State’s burden to disprove affirmative defenses; (2) the trial court plainly erred by not giving an accomplice corroboration charge; and (3) Reese received constitutionally ineffective assistance of counsel. Seeing no error, the Georgia Supreme Court affirmed.

Whittaker v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0613

Opinion Date: August 21, 2023

Judge: Pinson

Areas of Law: Constitutional Law, Criminal Law

Appellant Steven Whittaker was convicted of malice murder and related crimes in connection with the 2018 stabbing death of LeBron Hankins. On appeal, Whittaker contended: (1) the evidence was insufficient to sustain his convictions for malice and felony murder; (2) the trial court committed plain error by failing to instruct the jury that Whittaker had no duty to retreat; (3) trial counsel gave constitutionally ineffective assistance in a number of ways; and (4) the trial court erred by failing to enter an order vacating the sentence for felony murder. The Georgia Supreme Court found, after review of the trial court record, the evidence was sufficient to support his malice-murder conviction, and his sufficiency challenge as to his felony-murder conviction was moot because he was not sentenced on that count. The Court also found the trial court did not err by failing to instruct the jury that Whittaker had no duty to retreat because retreat was not placed at issue. Whittaker’s counsel did not perform deficiently in any of the ways Whittaker asserts. And although the felony-murder count should have been vacated by operation of law, there was no sentencing error to correct because the error would have no actual effect on Whittaker’s sentence. So the Supreme Court affirmed Whittaker’s convictions and sentence.

Young v. Georgia

Court: Supreme Court of Georgia

Docket: S23A0518

Opinion Date: August 21, 2023

Judge: Carla Wong McMillian

Areas of Law: Constitutional Law, Criminal Law

Tomarkus Young was convicted by jury of felony murder and other charges in connection with the 2018 shooting death of Richard Anderson. On appeal, Young argued the evidence was constitutionally insufficient to support his convictions; that the trial court erred in denying his motion to strike a potential juror; that he received ineffective assistance of counsel; and that cumulative errors require the grant of a new trial. Finding these assertions lacked merit, the Georgia Supreme Court affirmed.

Barrett v. Commonwealth

Court: Kentucky Supreme Court

Docket: 2022-SC-0068-MR

Opinion Date: August 24, 2023

Judge: Michelle M. Keller

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the circuit court convicting Defendant on nine counts of first-degree sexual abuse for actions perpetrated against K.V., a minor at the time of the abuse, and sentencing him to twenty years in prison, holding that there was no error.

Specifically, the Supreme Court held (1) the prosecutor's closing argument was improper, but it did not constitute flagrant prosecutorial misconduct; (2) the trial court did not err in allowing K.V. to read the printed screenshots of her diary entries from her iPad; (3) the trial court did not commit palpable error in allowing the Commonwealth to question Defendant about K.V.'s credibility; (4) the jury instructions did not violate Defendant's right to a unanimous verdict; and (5) there was no cumulative error.

Commonwealth v. Bembury

Court: Kentucky Supreme Court

Docket: 2022-SC-0018-DG

Opinion Date: August 24, 2023

Judge: Lambert

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

The Supreme Court reversed the judgment of the court of appeals reversing Defendant's conviction of one count of possession of synthetic drugs, holding that the circuit court did not err in denying Defendant's motion to suppress evidence recovered from his backpack.

In his motion to suppress, Defendant argued that the warrantless search of his backpack violated the Fourth Amendment of the federal constitution and section ten of the state constitution. The circuit court denied the motion, finding that the search of Defendant's backpack was lawful as a search incident to his lawful arrest. The court of appeals reversed, holding that the underlying search was unconstitutional. The Supreme Court reversed, holding that the trial court properly concluded that the search was a lawful search incident to Defendant's arrest.

Robertson v. Kentucky

Court: Kentucky Supreme Court

Dockets: 2021-SC-0485-MR, 2022-SC-0004-DG

Opinion Date: August 24, 2023

Judge: Michelle M. Keller

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the circuit court convicting Defendant of two counts of rape in the first degree and sentencing him to twenty years' imprisonment, holding that Defendant was not entitled to relief on his allegations of error.

After a jury trial, Defendant was found guilty of two counts of rape in the first degree and sentenced to twenty years in prison. The Supreme Court affirmed, holding (1) the trial court did not misapply Marsy's Law; (2) the trial court did not err by allowing the Commonwealth to refer to A.C. as the "victim" during trial or by admitting certain testimony; (3) the Commonwealth's attorney did not improperly insert himself as a witness; and (4) there was no cumulative error.

Stuart v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2022-KA-00585-SCT

Opinion Date: August 17, 2023

Judge: Griffis

Areas of Law: Constitutional Law, Criminal Law

Larry Stuart was convicted of felony filming a person without her knowledge when she had an expectation of privacy. He was sentenced to serve five years, day for day, in the custody of the Mississippi Department of Corrections, and he was ordered to register as a sex offender. He appealed. Finding no reversible error, the Mississippi Supreme Court affirmed Stuart's conviction.

State v. Pulst

Court: Montana Supreme Court

Citation: 2023 MT 162

Opinion Date: August 22, 2023

Judge: Gustafson

Areas of Law: Criminal Law

The Supreme Court reversed the order of the district court revoking Defendant's suspended sentences, holding that the district court had no authority to revoke Defendant's sentence and impose on a new sentence on the basis that it did.

On appeal, Defendant argued that the district court erred in revoking the suspended portions of his sentences for failing to enroll or complete treatment prior to his release from prison. At issue was whether Defendant would be in immediate violation of his probation conditions upon release to the suspended portion of his sentence. The Supreme Court vacated the sentence imposed upon Defendant, holding that the district court lacked the authority to revoke Defendant's sentence and impose a new sentence on the basis that Defendant did not have sex offender treatment arranged prior to release to the suspended portion of his sentence because no such requirement was contained in his probation conditions.

Pennsylvania v. Towles

Court: Supreme Court of Pennsylvania

Docket: 796 CAP

Opinion Date: August 22, 2023

Judge: Brobson

Areas of Law: Constitutional Law, Criminal Law

Appellant Jakeem Towles appealed the dismissal of his second petition for post conviction relief (PCRA). Towles was convicted for the 2010 homicide of Cornell Stewart, Jr. and the attempted homicide of John Wright following an altercation at a rap performance in Columbia, Pennsylvania. The Court of Common Pleas of Lancaster County (PCRA court) concluded that Towles’ petition was untimely filed and, alternatively, without merit. Towles claimed that the Commonwealth had made threats and promises to a witness to induce him to testify against Towles at trial. In apparent recognition of the facial untimeliness of his second PCRA petition, Towles asserted that his petition met the so-called “governmental interference” and “newly discovered facts” timeliness exceptions in the Post Conviction Relief Act. Towles further claimed that he acted with due diligence in asserting his claim within the one-year time limit. The Pennsylvania Supreme Court concurred with the PCRA court's finding that Towles' petition was untimely, and affirmed dismissal.

State v. Ortiz-Martinez

Court: South Dakota Supreme Court

Citation: 2023 S.D. 46

Opinion Date: August 23, 2023

Judge: Salter

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's convictions of two counts of rape in the first degree and his sentence of two consecutive twenty-five-year prison terms, holding that the circuit court did not err in denying Defendant's motion for a mistrial or in instructing the jury.

During trial, defense counsel cross-examined the victim at issue in order to demonstrate what counsel believed were inconsistencies between the victim's testimony and a prior incident. Based on the belief that counsel's questions had prompted the victim about uncharged events involving Defendant, the prosecutor asked the victim about this other conduct. Defendant later moved for a mistrial on the grounds that he had not received notice of the State's intent to introduce other acts evidence,The circuit court denied the motion and convicted Defendant. The Supreme Court affirmed, holding that the circuit court did not abuse its discretion when it denied Defendant's motion for mistrial or in failing to include Defendant's proposed instruction regarding other acts of rape.

Vermont v. Menize

Court: Vermont Supreme Court

Citation: 2023 VT 48

Opinion Date: August 18, 2023

Judge: Carroll

Areas of Law: Constitutional Law, Criminal Law

Defendant James Menize was convicted by jury on one count of aggravated sexual assault of a victim under the age of thirteen, and one count of lewd and lascivious conduct with a child. Defendant raised multiple arguments on appeal: (1) the trial court abused its discretion in admitting prior bad-act evidence, not curing J.M.’s trial testimony which characterized the bad acts as each occurring on more than once occasion, and providing a jury instruction that failed to cabin the resulting prejudice; (2) the court should have suppressed all the inculpatory statements he made during a March 3, 2010, interview as either unconstitutionally elicited during a custodial interrogation without Miranda warnings or as involuntary; (3) the timing of the amended information prejudiced his ability to put on an effective defense because the new charge contained a different mental state for which he did not have time to adequately prepare; and (4) the court erred in overruling his objection to the state's expert witness testimony regarding another expert's testimony. Finding no reversible error, the Vermont Supreme Court affirmed defendant's conviction.

Adams v. State

Court: Wyoming Supreme Court

Citation: 2023 WY 85

Opinion Date: August 24, 2023

Judge: Boomgaarden

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's convictions of attempted murder, aggravated assault and battery, and other charges arising from a high-speed car purist and shootout with law enforcement officers, holding that the State did not commit prosecutorial misconduct.

On appeal, Defendant argued that the State committed prosecutorial misconduct by presenting certain statements and information obtained from psychologists who conducted his competency and mental illness or deficiency evaluations. The Supreme Court disagreed and affirmed, holding that the record disclosed no gross prosecutorial impropriety that deprived Defendant of his right to a fair trial or attempt to persuade the trial court wrongly to convict him.

Hiltner v. State

Court: Wyoming Supreme Court

Citation: 2023 WY 82

Opinion Date: August 23, 2023

Judge: Gray

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the district court denying Defendant's motion to correct illegal sentence, holding that the district court did not err by not awarding sentencing credit for time spent on probation and for time spent in substance abuse treatment as a condition of probation.

Defendant pled guilty to felony driving under the influence. The district court suspended Defendant's suspended in favor of probation. The court later revoked Defendant's probation for violations of conditions of probation. Less than one year later, the court again revoked Defendant's probation. Defendant subsequently filed a letter that the district court construed as a motion to correct an illegal sentence, requesting credit for time spent in an inpatient treatment facility. The district court denied the request. The Supreme Court affirmed, holding that, under established precedent, the district court did not err in finding that Defendant was not entitled to credit for the time he participated in his treatment program.