United States v. Carrasco

Court: US Court of Appeals for the First Circuit

Docket: 21-1396

Opinion Date: August 28, 2023

Judge: David J. Barron

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's conviction and sentence for violating 18 U.S.C. 666, holding that Defendant was not entitled to relief on his allegations of error.

Defendant was indicted on four counts of violating section 666(a)(1)(B) stemming from his role in the allegedly corrupt awarding of contracts by certain Puerto Rico municipalities. After a jury trial, Defendant was found guilty on all counts and sentenced to 120 months of imprisonment and three years' supervised release. The First Circuit affirmed, holding (1) there was sufficient evidence to support Defendant's convictions; (2) Defendant's two evidentiary challenges were unavailing; and (3) Defendant's 120-month prison sentence was neither procedurally nor substantively unreasonable.

United States v. Poliero

Court: US Court of Appeals for the First Circuit

Dockets: 22-1343, 22-1344

Opinion Date: August 30, 2023

Judge: Selya

Areas of Law: Criminal Law

The circuit court affirmed Defendant's sentence, imposed in connection with his drug-related offenses, holding that the district court did not err by adopting a four-level role-in-the-offense enhancement when formulating Defendant's guideline sentencing range.

After applying the relevant enhancements and reductions, the court imposed a downwardly variant sentence of 216 months' imprisonment on each count of conviction, to run concurrently. The First Circuit affirmed, holding that Defendant was not entitled to relief on his argument that his exercise of control in the underlying operation was of an insufficient duration to ground application of the four-level enhancement.

United States v. Reyes-Correa

Court: US Court of Appeals for the First Circuit

Docket: 21-1913

Opinion Date: August 31, 2023

Judge: Montecalvo

Areas of Law: Criminal Law

The First Circuit vacated Defendant's statutory maximum thirty-six-month sentence that the district court imposed following a revocation of supervised release, holding that the district court's failure adequately to justify the sentence was procedural error.

After a revocation hearing, the district court revoked Defendant's supervised release term for violations of the conditions of his release. The district court sentenced Defendant to thirty-six months' imprisonment, the statutory maximum for Defendant's violation. The First Circuit vacated the sentence and remanded the case for resentencing, holding that none of court's rationales explained why Defendant's case was so distinct from other such revocation cases that he deserved a 400 percent increase over the guidelines sentencing range.

United States v. Salvador Gutierrez

Court: US Court of Appeals for the First Circuit

Docket: 22-1157

Opinion Date: August 29, 2023

Judge: Montecalvo

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's sentence in his underlying criminal case, holding that the district court did not err in imposing a sentencing enhancement for the use or attempted use of a minor in the commission of the offense under the sentencing guidelines.

Defendant pleaded guilty to one count of RICO conspiracy in violation of 18 U.S.C. 1962(d) and, in doing so, admitted to two murders. After a sentencing hearing, the district court sentenced Defendant to life imprisonment. Defendant appealed, arguing that the district court erred in applying the guideline enhancement under U.S.S.G. 3B1.4 for Defendant's use or attempted use of a minor. The First Circuit affirmed, holding that Defendant was not entitled to relief on his allegations of error.

United States v. Vaquerano Canas

Court: US Court of Appeals for the First Circuit

Docket: 22-1202

Opinion Date: August 30, 2023

Judge: Montecalvo

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's 516-month sentence entered upon his guilty plea to one count of conspiracy to conduct enterprise affairs through a pattern of racketeering activity (RICO), holding that there was no error relating to Defendant's sentence.

On appeal, Defendant argued that the district court erroneously applied a sentencing enhancement for the use or attempted use of a minor in the commission of the offense under the United States Sentencing Guidelines and imposed a substantively unreasonable sentence. The First Circuit affirmed, holding (1) the minor-use enhancement was properly applied in this case; and (2) the sentence imposed by the district court was substantively reasonable.

Tavarez v. United States

Court: US Court of Appeals for the Second Circuit

Docket: 21-2685

Opinion Date: August 31, 2023

Judge: DEBRA ANN LIVINGSTON

Areas of Law: Constitutional Law, Criminal Law

Petitioner challenged his conviction for brandishing a firearm during and in relation to a crime of violence or drug trafficking crime. Petitioner argued that his firearms conviction cannot survive United States v. Barrett. Petitioner argued that (1) his plea allocutions did not connect the robbery conspiracy to the “separate” drug conspiracy, such that the latter cannot serve as a predicate for the Section 924(c) conviction; and (2) his arguable allocution to substantive robbery (an uncharged offense) likewise cannot predicate the gun count.
 
The Second Circuit affirmed. The court explained that a petitioner may seek collateral relief to challenge the constitutional validity of a guilty plea where a subsequent substantive constitutional or statutory holding creates “a significant risk that a defendant stands convicted of an act that the law does not make criminal.” The court wrote that because the government has not argued otherwise, it assumes without deciding that Petitioner has not procedurally defaulted his claim. On the merits, the court applied the new substantive rule the Supreme Court announced in Davis and that the court applied in Barrett, recognizing that a Section 924(c) conviction based on an invalid predicate is error. The court reasoned that when Petitioner admitted to brandishing a firearm in furtherance of one, he necessarily admitted to brandishing it in furtherance of the other. Accordingly, Petitioner is not entitled to collateral relief based on the fact that the Hobbs Act robbery conspiracy is no longer a valid predicate for a Section 924(c) charge.

United States v. Avenatti

Court: US Court of Appeals for the Second Circuit

Docket: 21-1778

Opinion Date: August 30, 2023

Judge: REENA RAGGI

Areas of Law: Constitutional Law, Criminal Law, Legal Ethics, Professional Malpractice & Ethics, White Collar Crime

Defendant, a California licensed attorney, challenged (1) the sufficiency of the evidence supporting his conviction for transmitting extortionate communications in interstate commerce to sportswear leader Nike, attempted Hobbs Act extortion of Nike, and honest-services wire fraud of the client whom Defendant was purportedly representing in negotiations with Nike. Defendant further challenged the trial court’s jury instruction as to honest-services fraud and the legality of a $259,800.50 restitution award to Nike.
 
The Second Circuit affirmed. The court explained that the trial evidence was sufficient to support Defendant’s conviction for the two charged extortion counts because a reasonable jury could find that Defendant’s threat to injure Nike’s reputation and financial position was wrongful in that the multi-million-dollar demand supported by the threat bore no nexus to any claim of right. Further, the court held that the trial evidence was sufficient to support Defendant’s conviction for honest-services fraud because a reasonable jury could find that Defendant solicited a bribe from Nike in the form of a quid pro quo whereby Nike would pay Defendant many millions of dollars in return for which Defendant would violate his fiduciary duty as an attorney. The court further explained that the district court did not exceed its authority under the MVRA by awarding restitution more than 90 days after initial sentencing, and Defendant has shown no prejudice from the delayed award. Finally, the court wrote that the MVRA applies in this case where Nike sustained a pecuniary loss directly attributable to those crimes as a result of incurring fees for its attorneys to attend the meeting demanded by Defendant at which he first communicated his extortionate threat.

United States v. Hagood

Court: US Court of Appeals for the Second Circuit

Docket: 22-588

Opinion Date: August 30, 2023

Judge: PARK

Areas of Law: Constitutional Law, Criminal Law

Around 1:00 a.m. on October 14, 2020, New York City Police Department (“NYPD”) officers drove by Defendant near a New York City Housing Authority (“NYCHA”) complex in the Bronx. Defendant was wearing a fanny pack across his chest and standing next to a double-parked car. According to the officers, Defendant was visibly nervous when he saw them, and one officer noticed that Defendant’s fanny pack appeared to contain a bulging object with a straight line on top—the same shape as a handgun. The officers stopped and frisked Defendant and found a loaded semiautomatic pistol in the fanny pack. Defendant was arrested and charged with a violation of 18 U.S.C. Sections 922(g)(1), 924(a)(2): possessing a firearm after having been convicted of a felony. He moved to suppress the firearm, and the district court denied the motion. Defendant appealed, arguing that the stop violated his Fourth Amendment rights because the officers lacked reasonable suspicion that he was engaged in criminal activity.

The Second Circuit affirmed. The court explained that the totality of circumstances in this case—including the officer’s observations of the fanny pack (as informed by his experience recovering firearms from fanny packs), Defendant’s unusual manner of wearing the fanny pack, his nervous appearance, and the late hour in a high-crime neighborhood—established reasonable suspicion.

United States v. McPartland, Spota

Court: US Court of Appeals for the Second Circuit

Docket: 21-1999

Opinion Date: August 25, 2023

Judge: DEBRA ANN LIVINGSTON

Areas of Law: Constitutional Law, Criminal Law

Defendants appealed from their judgments of conviction. Following a five-week jury trial, Defendants-Appellants were convicted on counts of conspiracy to tamper with witnesses and obstruct an official proceeding, substantive witness tampering and obstruction of an official proceeding, obstruction of justice, and being accessories after the fact to the deprivation of the civil rights of a victim. The district court sentenced Defendants, principally, to five years’ imprisonment each. On appeal, Defendants raised challenges to the district court’s admission of certain testimony at trial—in particular, testimony about subordinates’ fear of retaliation and testimony about bad acts that formed the basis for that fear of retaliation. Defendants also challenge the district court’s denial of their application to admit the government’s bill of particulars, and Defendant challenges the district court’s denial of his motion for an evidentiary hearing and new trial.
 
The Second Circuit affirmed. The court explained that the government specifically mentioned the demotion and the retirement party only once each, as examples of retaliation by the co-conspirator against an enemy. Discussion of the tasks performed by the detectives was similarly brief. These remarks by the government could have been made based only on the properly admitted testimony from other high-ranking members of the SCPD and, accordingly, could not have misled the jury. As a result, the court concluded that although the admission of cumulative evidence regarding the demotion and retirement party, and the tasks performed for the co-conspirator, was in error, it was ultimately harmless.

United States v. Vinales

Court: US Court of Appeals for the Second Circuit

Docket: 22-331

Opinion Date: August 29, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

Defendant challenged the district court’s application of a two-level enhancement under Section 2D1.1(b)(12) of the United States Sentencing Guidelines, which applies when a defendant has “maintained a premises for the purpose of manufacturing or distributing a controlled substance.” The principal question is whether the enhancement applies to defendants who use their residence to manufacture or distribute a controlled substance.
 
The Second Circuit affirmed. The court explained that here, Defendant maintained an apartment where he had at one point lived for the purpose of distributing controlled substances. The court reasoned that the commentary in the Guidelines manual confirms that the district court properly applied the drug-distribution premises enhancement using a “totality of the circumstances” test, which is appropriate given the fact-intensive nature of the inquiry. Further, Defendant challenged the district court’s failure to consider a downward departure from the Guidelines sentence in order to give effect to the parties’ plea bargain. He claimed that the court misunderstood its authority to do so under United States v. Fernandez. However, the court wrote that a district court’s silence concerning its refusal to depart downward generally does not support an inference that the district court misapprehended its scope of authority. The court, therefore, rejected Defendant’s argument that his sentence was procedurally unreasonable on this ground.

Rush v. City of Philadelphia

Court: US Court of Appeals for the Third Circuit

Docket: 21-1298

Opinion Date: August 30, 2023

Judge: Restrepo

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

Philadelphia Police obtained a search warrant for the house where Dennis resided, suspecting that it was being used for drug activity. Dennis was not home. Six officers performing surveillance were in plain clothes “to maintain an advantage.” They spotted Dennis driving near his house and decided to stop his car. The ensuing events were captured by a nearby surveillance camera. The plainclothes officers in unmarked police cars surrounded Dennis’s vehicle at an intersection. For 48 seconds, Dennis attempted to free his car, bumping into the police vehicles. When Dennis’s car appeared to have stopped, Officer Nicoletti shot Dennis, who was unarmed, three times through the driver’s window. Dennis died at the scene.

In the ensuing lawsuit (42 U.S.C. 1983), the court found open questions of fact concerning excessive force claims against Philadelphia and Nicoletti, regarding whether Dennis posed a threat to the officers or public safety. The court denied Nicoletti qualified immunity, reasoning that his conduct: “sho[oting] at an unarmed driver attempting to escape at slow speed who had hit a car,” and/or “using deadly force against an individual driving a car” when “the driver did not pose a threat to the safety of the officer or others,” violated clearly established law. The Third Circuit affirmed, declining to consider Nicoletti’s factual arguments and rejecting any arguments that could be construed as a legal challenge to the holding that his conduct violated clearly established law.

United States v. Mercado

Court: US Court of Appeals for the Third Circuit

Docket: 22-1947

Opinion Date: August 29, 2023

Judge: Krause

Areas of Law: Criminal Law

Mercado filed weekly fraudulent Pandemic Unemployment Assistance claims, collecting a total of $37,555 in benefits. He pleaded guilty to wire fraud, 18 U.S.C. 1343. His plea agreement endorsed the possibility of a downward adjustment (U.S.S.G. 3E1.1(a)) if Mercado could “adequately demonstrate recognition and affirmative acceptance of responsibility.” At the plea hearing, Mercado apologized. The court continued his bail pending sentencing, including several conditions, requiring that Mercado refrain from using narcotic drugs or other controlled substances, submit to substance abuse testing, complete substance abuse evaluation and treatment if deemed appropriate, and get medical and psychiatric treatment as directed by pretrial services.

On the day he pleaded guilty, Mercado tested positive for cocaine. Probation referred him for intensive outpatient treatment, but he never reported. Mercado subsequently admitted to using cocaine again, and two months later, refused to take a drug test. When he finally submitted to testing, he again tested positive. His PSR calculated a Guideline range of 10-16 months’ imprisonment. A two-point downward adjustment for acceptance of responsibility would have produced a Guideline range of 6-12 months but the PSR recommended against it. At sentencing, Mercado again expressed remorse. The court declined the two-point adjustment, citing his ongoing drug use, and imposed a 10-month sentence. The Third Circuit affirmed. U.S.S.G. 3E1.1(a) does not preclude consideration of post-plea conduct “unrelated” to the pled-out offense. The commentary to this provision lists “appropriate considerations,” several of which expressly reference post-plea conduct.

United States v. Montalvo-Flores

Court: US Court of Appeals for the Third Circuit

Docket: 22-1752

Opinion Date: August 28, 2023

Judge: Thomas L. Ambro

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

Officers swarmed a New Jersey hotel room to execute an arrest warrant for Montalvo-Flores in connection with his suspected involvement in a robbery. They found car keys during a search incident to arrest. Although Montalvo-Flores exclaimed that those were his car keys, he did not have a valid driver’s license. Upon locating the car in the parking lot, officers discovered that its registered owner was the Enterprise. Officers called Enterprise’s regional risk manager to obtain permission to search the car, stating that Montalvo-Flores was operating the vehicle while involved in criminal activity. The manager, noting Montalvo-Flores was not listed on the rental agreement (his girlfriend, Pisciotta, was) gave officers consent to search the vehicle. In that search, officers found 304 grams of cocaine inside the trunk.

Montalvo-Flores, charged with possession with intent to distribute cocaine 21 U.S.C. 841(a)(1), moved to suppress, arguing that he, with his girlfriend’s permission, lawfully possessed and controlled the car. The district court denied Montalvo-Flores’s motion, holding that he lacked standing because he failed to establish a reasonable expectation of privacy in the car. The Third Circuit reversed. Montalvo-Flores had dominion and control of the car with his girlfriend’s permission and had a reasonable expectation of privacy in the car.

US v. Daniel Critchfield

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-4063

Opinion Date: August 31, 2023

Judge: RUSHING

Areas of Law: Constitutional Law, Criminal Law

A federal grand jury indicted Defendant for possessing a firearm while being an unlawful user of a controlled substance. Defendant moved to suppress the firearm and other physical evidence, arguing that the officers lacked reasonable suspicion for the stop. After the district court denied his motion, Defendant entered a conditional guilty plea that preserved his right to appeal the suppression ruling.
 
The Fourth Circuit vacated Defendant’s conviction and remanded for further proceedings. The court held that the officers lacked reasonable suspicion of criminal activity when they first detained Defendant. The court explained that in considering the totality of the circumstances known to the officers when they stopped Defendant, it concludes the officers did not have objectively reasonable suspicion that Defendant was, or had been, engaged in theft. The court wrote that when the officers stopped Defendant, they knew he was a man with a weighed-down sweatshirt pocket who had walked through a residential neighborhood past an occasionally unoccupied home next to a commercial area in broad daylight and who had behaved evasively when a neighborhood resident watched and followed him. These circumstances, without more, do not give rise to reasonable suspicion of theft. As such, the court held that at bottom, the totality of the circumstances does not support a reasonable, articulable suspicion that Defendant had engaged, or was about to engage, in theft.

USA v. Armendariz

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-50647

Opinion Date: August 29, 2023

Judge: Jennifer Walker Elrod

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

Defendant, a lawful permanent resident of the United States, was charged with importation of a controlled substance in violation of 21 U.S.C. Section 952(a). Her lawyer told her that if she pleaded guilty, it was “very likely” that she would be deported. She nonetheless entered the plea. Defendant then learned that her offense did not just possibly make her deportable, it automatically did so. She then moved to withdraw her plea, alleging that if she had known the full scope of the immigration consequences of her plea, she would not have entered it. The district court denied Defendant’s motion and sentenced her. Defendant appealed. At issue is whether a lawyer’s warning of “very likely” deportation satisfies the right to effective assistance of counsel.
 
The Fifth Circuit affirmed. The court explained that when defense counsel tells an alien client that a conviction will have serious immigration consequences, including “very likely” deportation, that defendant has received sufficient advice to make an informed plea decision, as required by the Sixth Amendment. The court explained that there is some ambiguity about what specific words Defendant’s lawyer used when explaining to her the immigration consequences of the plea. But the district court’s factual finding—which is reviewed only for clear error—suggests the following bottom line: Defendant’s lawyer put her on notice of the risk of serious immigration consequences, including deportation. Accordingly, the court concluded that the district court therefore did not abuse its discretion in denying Defendant’s motion to withdraw her plea.

USA v. Caillier

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-30383

Opinion Date: August 30, 2023

Judge: Jennifer Walker Elrod

Areas of Law: Constitutional Law, Criminal Law

After pleading guilty to one count of receiving child pornography, Defendant was sentenced to a 168–month term of imprisonment followed by a 15–year term of supervised release. During Defendant’s term of supervised release, the district court modified a number of the special conditions imposed. Defendant appealed, challenging the district court’s jurisdiction to modify his supervised release conditions and contesting the substantive reasonableness of the conditions imposed.
 
The Fifth Circuit affirmed. The court explained that the district court has jurisdiction under 18 U.S.C. Section 3583(e)(2) to modify conditions of supervised release and that the district court did not abuse its discretion in fashioning these conditions. The court explained that a district court cannot modify an unlawful condition under Section 3583(e)(2) if the illegality of that condition is the basis for modification, regardless of whether it was the defendant or government who brought the motion challenging the conditions. In the case at hand, however, Defendant’s appeal fails because the government did not move for modification solely on the basis of illegality, and the district court did not premise its ruling on the illegality of the special condition.
 
Next, Defendant contended that even if the district court’s ruling was not based on the illegality of a condition, the district court still lacked authority to modify his conditions of supervised release because there was not a “change in circumstance” that precipitated the modification nor was there a “compelling cause” for the modification. The court explained that it has found no cases requiring a “change in circumstance” or “compelling cause” to modify a condition of supervised release.

USA v. Pelayo-Zamarripa

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-40285

Opinion Date: August 30, 2023

Judge: Patrick E. Higginbotham

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

Defendant appealed the terms of his supervised release arguing that there is an impermissible conflict between the district court’s oral pronouncement and written judgment. In the presentence report, the probation officer recommended various mandatory and standard conditions of supervision. The probation officer also recommended a special condition, as Defendant was a legal alien permanent resident, but his arrest would have rendered him subject to deportation proceedings. The district court imposed a guidelines sentence of imprisonment for 95 months with three years of supervised release. The court orally adopted the special conditions recommended in the presentence report and orally informed Defendant that he must be legally authorized to reenter the country, as is reflected in the written judgment. Defendant appealed, arguing that the work-authorization condition in the written judgment conflicts with the oral pronouncement of his sentence and that the written judgment should be amended to conform to the oral pronouncement.
 
The Fifth Circuit affirmed. The court held that there is no conflict between the district court’s oral pronouncement of Defendant’s sentence and its written judgment. The work-authorization condition does not broaden the restrictions in Defendant’s supervised release already in place under the oral pronouncement. The court wrote that the purported “conflict” is then best described as an ambiguity— one that can be resolved by looking to entire record to determine the sentencing court’s intent in imposing the condition. The court explained that the record makes sufficient reference to Defendant’s immigration history to discern the district court’s efforts to ensure that Defendant complied with the relevant immigration laws.

In re: Hill

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-3863

Opinion Date: August 25, 2023

Judge: Nalbandian

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

Hill and Combs kidnapped 12-year-old Fife, beat Fife, raped him in multiple ways, strangled him, bit his genitals, sodomized him, and burned him. Fife’s father found him in a field. Fife died days later. Several witnesses testified that Hill was around the crime scene. The state introduced Hill’s confession that he had watched Combs beat and rape Fife. There was physical evidence. One witness testified that Hill had raped her in the same wooded area and another testified that Hill had raped her multiple times. Hill was sentenced to death in 1986. Ohio courts rejected Hill’s appeal and state habeas petition.

Hill’s 1996 federal habeas petition challenged the denial of expert assistance on bitemark evidence. While an appeal was pending, the Supreme Court decided “Atkins.” On remand, the state court determined that Hill was not intellectually disabled; his death sentence stood. Following a remand by the Supreme Court and various Sixth Circuit decisions, Hill sought a new trial based on “newly discovered evidence,” a report from the American Board of Forensic Odontology that suggested using bitemarks to identify a specific individual might not be reliable. Ohio courts held that there was “no probability” that a new trial would lead to a “different outcome” because the state had proffered so much other evidence of guilt.

Hill’s second federal habeas petition argued that the state trial court violated his due process rights by not properly conducting a materiality review of the bitemark evidence. The Sixth Circuit characterized Hill’s petition as “second or successive,” so Hill was required to meet the gatekeeping provisions of 28 U.S.C. 2244(b)(2). Under Hill's interpretation, "Hmost convictions involving forensic evidence would never be final."

Reed v. Campbell County, Kentucky

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-5751

Opinion Date: August 30, 2023

Judge: Karen Nelson Moore

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

A 911 call, reported that “the people that live behind me” were “yelling and what sounds like him hitting something.” Officers Curtis and Gray responded to the address, wearing activated body cameras. Not seeing or hearing anything amiss outside, they knocked. Reed answered the door. Gray asked, “Do you mind stepping out here and talking to me for a second?” Reed asked, “you got a warrant?” Gray replied, “nope,” explaining that “somebody called and said that somebody was fighting.” Reed said, “Wasn’t here.” After additional discussion, Gray stated they needed to talk to other adults in the house; “if not, then we can come in … exigent circumstances.” Reed closed his door. The officers kicked the door down. Curtis stepped inside, drew his firearm, pointed it at Reed’s head. then put the gun away, and pulled Reed outside. Gray pushed Reed against the car and patted him down. Other officers arrived and spoke with Reed’s family. Satisfied that everyone in Reed’s house was safe, the officers documented the damage to Reed’s door and left.

The district court dismissed 42 U.S.C. 1983 claims against Campbell County and against the officers in their official capacities; dismissed a Terry claim as “duplicative” of a false arrest claim; dismissed claims for intentional infliction of emotional distress; and declined to award the officers qualified immunity on the individual capacity unlawful-entry, excessive-force, and false-arrest claims. The Sixth Circuit affirmed. A reasonable jury could find that the officers violated clearly established constitutional rights.

United States v. Hofstetter

Court: US Court of Appeals for the Sixth Circuit

Dockets: 20-6245, 20-6426, 20-6427, 20-6428

Opinion Date: August 29, 2023

Judge: Siler

Areas of Law: Criminal Law

From 2009-2015, Hofstetter managed pain clinics in Florida and Tennessee. Hofstetter also co-owned and managed an additional clinic in Tennessee. Clemons, Newman, and Womack were employed as nurse practitioners at these clinics. All four defendants were convicted of maintaining drug-involved premises. Hofstetter was also convicted of conspiring to distribute controlled substances, distributing controlled substances, and money laundering. Hofstetter was sentenced to 400 months in prison, Clemons to 42 months, Newman to 40 months, and Womack to 30 months.
After the Sixth Circuit affirmed the convictions, the Supreme Court decided “Ruan” (2022), clarifying the applicable mens rea for an unlawful distribution charge, and remanded.

The Sixth Circuit again affirmed. Under Ruan, it is insufficient for the government to prove that a prescription was “in fact” not authorized; the government must prove the defendant subjectively knew or intended that the prescription was unauthorized. The district court’s instructions were not plainly erroneous regarding the drug-involved-premises and conspiracy-to-distribute-and-dispense charges. Taken as a whole, the jury instructions made clear that the jury had to find that the defendants knowingly opened the clinics for the purpose of illegally distributing Schedule II controlled substances.

United States v. Jones

Court: US Court of Appeals for the Sixth Circuit

Dockets: 22-1281, 12-1280

Opinion Date: August 29, 2023

Judge: Nalbandian

Areas of Law: Criminal Law

Jones, who was on supervised release, was arrested after he fired shots outside his house and fled inside. He pled guilty to possessing a stolen firearm. The district court imposed the agreed-upon 10-year sentence, which was above the 77-96 month Guidelines range but below the 15-year mandatory minimum that would have applied if he had been classified as an armed career criminal. The court rejected arguments that he should not receive a sentence enhancement for reckless endangerment during flight and challenging the use of his prior controlled substance offense under Michigan state law to increase his base offense level–claiming Michigan’s controlled-substance statute is broader than the federal definition of the relevant substances. Separately, Jones faced resentencing on his supervised release; the firearm offense violated his supervised release conditions. A different district court imposed a 24-month sentence—half to run concurrently with his firearm conviction and half to run consecutively.

The Third Circuit affirmed. The district courts properly calculated Jones’s Guidelines range for the firearm offense and imposed a reasonable sentence for the supervised-release violation.

United States v. Minter

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-5600

Opinion Date: August 31, 2023

Judge: John K. Bush

Areas of Law: Criminal Law

During a routine traffic stop of Moore and Saunders, the Ohio State Highway Patrol seized four vacuum-sealed packages, containing 431 grams of heroin. The couriers stated they had planned to deliver their load to Minter in West Virginia. The FBI Drug Task Force learned Minter had paid them in either cash or drugs, or both, to deliver money to Wright in Detroit and return with drugs for distribution by Minter. They had made similar journeys between Wright and Minter in the past. Moore explained that Wright was “in charge.” The FBI executed a search warrant for Minter’s residence and recovered traces of heroin, scales, and $18,000 in cash. A day later, the FBI executed a second warrant, based on information from a confidential informant, to search under the shared porch at Minter’s apartment building,.Officers recovered a charcoal bag containing 529 grams of heroin and 37 grams of crack cocaine. Underneath the steps, about eight feet away, officers recovered a stolen .357 Magnum.

Minter pleaded guilty to conspiring to distribute heroin; after remands, the district court applied a two-level enhancement for his role as a manager or supervisor and a two-level firearm-possession enhancement. The Sixth Circuit affirmed, finding the enhancements proper.

United States v. Rios-Velasquez

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-4106

Opinion Date: August 28, 2023

Judge: John M. Rogers

Areas of Law: Criminal Law

Velasquez was convicted of conspiracy to use interstate commerce to commit murder-for-hire, 18 U.S.C. 1958(a), and conspiracy to distribute cocaine, 21 U.S.C. 841. The district court increased Velasquez’s offense level by four levels to 37 because “the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder” U.S.S.G. 2A1.5(b), determined Velasquez to be a career offender, varied downward on criminal history, reached sentencing range of 262–327 months, and ordered Velasquez to serve a 120-month sentence on the murder-for-hire conviction (the statutory maximum) concurrent with a 262-month sentence on the cocaine-distribution conviction. The Sixth Circuit rejected challenges to the convictions and upheld the four-level increase, but agreed that Velasquez should not have been considered a “career offender.”

On remand, the district court denied a reduction under U.S.S.G 2X1.1(b)(2), which provides for a three-level decrease “unless the defendant or a co-conspirator completed [or was about to complete] all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense” and sentenced Velasquez to 120 months for Count 1 and 240 months for Count 2, to be served concurrently. The Third Circuit held that denial of the reduction was correct; a crossreference in U.S.S.G. 2X1.1(c) provides that when the “conspiracy is expressly covered by another offense guideline section, apply that guideline section.” The guideline that covers Velasquez’s case is U.S.S.G. 2A1.5, which expressly covers conspiracy to commit murder.

United States v. Thomas-Mathews

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-1824

Opinion Date: August 25, 2023

Judge: Eric L. Clay

Areas of Law: Criminal Law

Thomas-Mathews pleaded guilty to possession with intent to distribute controlled substances, 21 U.S.C. 841(a)(1), (b)(1)(C), and to two counts of possession of a firearm in furtherance of drug trafficking, 18 U.S.C. 924(c)(1)(A)(i). Thomas-Mathews objected to the PSR’s “weight attribution to cocaine base versus cocaine as an unwarranted disparity” and requested the use of a 1:1 ratio. Thomas-Mathews also alleged he experienced a challenging childhood, including food insecurity and physical and sexual abuse by his uncle. His juvenile convictions include criminal sexual conduct, larceny, and drug possession. His adult convictions include drug offenses, domestic violence, and perjury in connection with a murder investigation. While serving his sentences for these crimes, Thomas-Mathews appeared to have turned his life around when he got out of prison in 2017, becoming involved with his children and “getting a barbershop.” The pandemic hurt Thomas-Mathews’ career as a barber and he “got back into [his] old style of living.”

The Sixth Circuit vacated his sentence of 60 months for the drug count, and two 60-month consecutive sentences for each of the gun counts as procedurally unreasonable. The court did not acknowledge the scope of its discretion concerning the crack-to-powder ratio and did not address specifically that failing to use the 1:1 ratio would result in an excessive sentence for Thomas-Mathews. The court’s discussion of section 3553(a)'s factors was limited to Thomas-Mathews’ criminal history without addressing Thomas-Mathews’ personal history and characteristics.

Brown v. Fofana

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2458

Opinion Date: August 25, 2023

Judge: HAMILTON

Areas of Law: Civil Rights, Criminal Law, Personal Injury

Brown injured his knee when he fell at his former prison. He received medical care and was placed on “special needs,” which included being assigned a lower bunk, a wheelchair, and crutches. Weeks later, Brown was transferred. Over the first few months, he spent time in segregation. Brown repeatedly asked several times for medical care but received none. He was later moved to a shared cell where his cellmate, who was disabled, slept in the lower bunk. While climbing to his top bunk, Brown fell. Afterward, Brown saw a doctor who said that Brown needed surgery but that the prison would not provide it. Brown then asked the prison’s “special needs committee” to provide him “accommodations,” and he “filed an ADA reasonable accommodation request.” He also alleged violations of his Eighth Amendment rights. The district court dismissed.

The Seventh Circuit reversed, in part. Brown alleged a viable failure-to-accommodate claim, 42 U.S.C. 12132. Brown’s complaint did not need to identify any particular legal theory, nor did it need to allege all legal elements of a particular claim. Brown’s alleged knee injury renders him disabled under the ADA and he alleged failure to accommodate his disability. No rule of law required Brown to identify a particular accommodation in his complaint. The ADA “does not create a remedy for medical malpractice” but Brown’s claim is not about allegedly substandard medical care.

Patrick v. City of Chicago

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1425

Opinion Date: August 31, 2023

Judge: Pryor

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

Patrick was working near the home of an on-and-off girlfriend when gang affiliates of the girlfriend’s current boyfriend–Freeman—shot at him. Patrick escaped and drove to his mother’s house. Patrick left the house to secure his equipment. Freeman and another Gangster Disciple opened fire on Patrick. Patrick ran inside, grabbed a gun loaded with pellet bullets, and fired from the doorway. The bullets struck Freeman in the buttocks and behind the ear. The gang members ran away. Chicago police officers arrived and handcuffed Patrick, demanding that Patrick tell them where the gun was or they were going to tear Patrick’s mother’s home apart. They did not have a warrant. Feeling that he had no choice, Patrick stated that there was a gun in a safe. The officers seized ammunition and several guns. Arrested, Patrick was eventually charged with additional crimes, including attempted murder. He was detained for over five years before pleading guilty to aggravated discharge of a weapon. He received a sentence of time served.

Patrick’s suit under 42 U.S.C. 1983. alleged that the city and 23 officers violated his Fourth and Fourteenth Amendment rights by conspiring to conduct an unlawful arrest, execute a warrantless search, and detain him unlawfully. The Seventh Circuit reversed in part. Patrick is not collaterally estopped from pursuing his search and seizure claim based his previous false arrest litigation concerning the attempted murder charge. Because his detention was allotted to a lawful sentence, Patrick has no injury that a favorable decision may redress.

United States v. Russell

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1817

Opinion Date: August 31, 2023

Judge: Kirsch

Areas of Law: Criminal Law

Russell was convicted of distributing heroin and fentanyl, 21 U.S.C. 841(a)(1), and received a below-Guidelines sentence of 96 months’ imprisonment, followed by three years of supervised release. Russell challenged one special condition of his supervised release: that he undergo a sex-offender evaluation to determine whether sex-offender treatment is necessary. In imposing the condition, the district court relied on facts from a police report, summarized in the PSR–that Russell had been convicted in 2010 of an offense that involved the sexual assault of a girl who became his stepdaughter. Russell furnished no evidence to call the PSR into question, stressing only that his “sexual assault case” was only a misdemeanor, not a felony. He expressed concern that imposing the condition could cause problems for him in prison. The court found the facts in the PSR quite detailed for the type of offense and age of the victim and credible. The court explained that if treatment were recommended following the assessment and Russell objected, the court would then decide if treatment was necessary.

The Seventh Circuit affirmed. The condition does not delegate judicial authority to anyone and vests final decision-making with the judge alone. It was narrowly tailored and promoted the goals of the Sentencing Guidelines.

United States v. Jerome Goodhouse, Jr.

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3467

Opinion Date: August 28, 2023

Judge: KOBES

Areas of Law: Constitutional Law, Criminal Law

Defendant sexually abused C.M. and E.A.H. in his mother’s basement on separate occasions. L.M., the legal guardian of C.M. and E.A.H. and sister of Defendant’s mother, often brought the two children to the house for visits. At trial, the jury heard testimony from C.M., E.A.H., L.M., and a forensic examiner. The Government introduced evidence of Defendant’s prior conviction of abusive sexual contact of a person incapable of consent. Defendant moved for judgment of acquittal, which the district court denied, and was convicted of two counts of aggravated sexual abuse of a child and one count of witness tampering. The district court sentenced him to life in prison for each sexual abuse count and 20 years for witness tampering, running concurrently. On appeal, Defendant alleged insufficient evidence to support the verdict, improper joinder of charges, improper introduction of evidence of his prior conviction, and procedural and substantive sentencing errors.
 
The Eighth Circuit affirmed. The court explained that Defendant argued that because the sexual abuses of C.M. and E.A.H. involved different methods of penetration, victims of different ages, and different occurrences, the charges were improperly joined. However, the court explained that the victims do not have to be the same age. Further, the court wrote that joinder was proper because the offenses were of a similar character. “In applying the same or similar character standard, we have found joinder of offenses to be proper when the two counts refer to the same type of offenses occurring over a relatively short period of time, and the evidence as to each count overlaps.”

United States v. Samuel Sherman

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2063

Opinion Date: August 30, 2023

Judge: GRUENDER

Areas of Law: Constitutional Law, Criminal Law

A jury found Sherman and Smith guilty of conspiracy to commit witness tampering resulting in death. The jury also found Smith guilty of witness tampering, resulting in death, conspiracy to possess with intent to distribute methamphetamine, and aiding and abetting the use of a firearm in relation to a drug-trafficking crime.  The district court denied Defendants’ motions for judgment of acquittal on those counts and sentenced both men to life imprisonment.
 
The Eighth Circuit affirmed. First, the court considered whether the district court erred in denying Sherman’s repeated requests to be tried separately from Smith. The court explained that it was convinced that the district court’s repeated limiting instructions sufficiently cured whatever risk of prejudice existed. Accordingly, the district court did not abuse its discretion in denying the motions to sever.
 
Further, the court explained that Sherman and Smith argue that the Government failed to establish a nexus between their conduct and an official proceeding. However, the court held that sufficient evidence demonstrates a nexus between the murder and the upcoming revocation hearing, as well as a potential future federal prosecution for distributing drugs.
 
Moreover, Smith claimed that the evidence was insufficient to support his conviction for conspiracy to possess with intent to distribute methamphetamine and the related firearms charge. The court explained that because Smith’s challenge to his conviction on the firearms offense rests entirely on his argument that the evidence was not sufficient to prove a drug-distribution conspiracy, the court found the evidence sufficient to prove Smith’s guilt on the firearms offense as well.

ORLANDO BURGOS V. RAYMOND MADDEN

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-55816

Opinion Date: August 25, 2023

Judge: Milan D. Smith, Jr

Areas of Law: Constitutional Law, Criminal Law

Petitioner appealed the denial of his 28 U.S.C. Section 2254 habeas petition. Petitioner was convicted in California state court of making criminal threats and assault with a deadly weapon. The victim was not authorized to reside in the United States at the time of the crimes. Prior to testifying in Petitioner’s trial, the victim received a U-Visa, which provides immigration benefits for victims of certain crimes who cooperate with law enforcement. At trial, the court barred Petitioner from cross-examining the victim about his U-Visa status, which Petitioner asserted was relevant to the victim’s credibility.
 
The Ninth Circuit affirmed. The court explained that under the standard prescribed in Brecht v. Abrahamson, 507 U.S. 619 (1993), which requires a habeas petitioner to persuade the court that a constitutional error at trial had a “substantial and injurious effect or influence” on the verdict, the panel held that Petitioner is not entitled to habeas relief. The panel wrote that nothing in the record indicates that the victim had an eye toward immigration benefits when he made his initial statement implicating Petitioner; rather, the record suggests the opposite. The panel therefore did not harbor the requisite “grave doubt” that the jury would have convicted Burgos had it known about the victim’s immigration status.

USA V. ARNOLD TAYLOR

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-10203

Opinion Date: August 25, 2023

Judge: Christen

Areas of Law: Constitutional Law, Criminal Law

Defendant challenged the sentence he received after violating several conditions of his supervised release. Defendant first argued that the district court unlawfully delegated its judicial authority to his probation officer to determine the duration of his inpatient substance abuse treatment. His second argument is that the court erred because one year of inpatient treatment, plus the prison time he was sentenced to serve, exceeds the maximum recommended sentence for his offense, and the district court failed to explain what Defendant considers an upward variance.


The Ninth Circuit affirmed the special conditions of supervised release. The panel held that the district court, which ordered a specific time range for Defendant’s inpatient substance treatment with a hard upper limit of one year, did not unconstitutionally delegate its judicial authority by ordering the probation officer to supervise Defendant’s progress in inpatient treatment, and allowing the probation officer the discretion to reduce—but not increase—the duration of his inpatient treatment in consultation with Defendant’s care provider. The panel held that the district court’s imposition of Special Condition 2 in addition to a high-end Guidelines sentence did not constitute an upward variance.

USA V. MICHAEL PEPE

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-50024

Opinion Date: August 28, 2023

Judge: VanDyke

Areas of Law: Constitutional Law, Criminal Law

Defendant moved from the United States to Cambodia in the spring of 2003. Between June 2005 and June 2006, he sexually abused young girls. The government presented evidence at trial from which a jury could infer that one of Defendant’s primary activities in Cambodia was molesting children. A jury convicted Defendant of two counts of violating 18 U.S.C. Section 2423(b) by traveling in foreign commerce with the purpose of committing illicit sexual acts and two counts of violating 18 U.S.C. Section 2241(c) by crossing a state line with intent to sexually abuse a child under 12 and then so doing. Defendant appealed the sufficiency of the evidence for each of these convictions, as well as the district court’s instructions to the jury.
 
The Ninth Circuit affirmed. The panel wrote that Mortensen does not remove from the jury’s province its ability to rationally find that a person embarked on a trip with an innocent purpose but returned home with a motivating purpose of illicit conduct. The panel held that a jury could rationally find that the sexual abuse of children was one of Defendant’s primary motivations for returning from the United States to Cambodia, which is sufficient to uphold his convictions under Section 2423(b) (Counts 1 and 2). Noting that Section 2241(c) (Counts 3 and 4) requires the jury to find a slightly more specific motivating purpose, the panel held that a rational trier of fact could have found that Defendant’s charged victims were, in fact, under 12, and that Pepe crossed state lines with a motivating purpose of sexually abusing girls under 12.

USA V. PRAXEDIS PORTILLO-GONZALEZ

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-10260

Opinion Date: August 31, 2023

Judge: Collins

Areas of Law: Criminal Law, Immigration Law

Defendant appealed from his conviction after a conditional plea of guilty to a single count of unlawful reentry by a previously removed alien. Defendant contended that his indictment should have been dismissed on the ground that the 2000 removal order underlying his prior removals was invalid due to an error by the immigration judge (“IJ”), at his removal hearing, as to whether he was eligible for voluntary departure.
 
The Ninth Circuit affirmed. The panel held that, in the respects relevant here, Palomar-Santiago abrogated that caselaw as well. Even assuming arguendo that the IJ’s incorrect statement about Defendant’s eligibility for voluntary departure violated due process and rendered his removal proceedings “fundamentally unfair,” that would not automatically or “effectively” satisfy the requirement in 8 U.S.C. Section 1326(d)(1) that the alien exhausted available administrative remedies, or the requirement in 8 U.S.C. Section 1326(d)(2) that the deportation proceedings improperly deprived the alien of an opportunity for judicial review. The panel therefore concluded that Defendant remains subject to Section 1326(d)’s general rule that he may not challenge the validity of his predicate removal order.

USA V. URBANO TORRES-GILES

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-50112

Opinion Date: August 31, 2023

Judge: Sanchez

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

Defendant appealed his sentence of twenty-seven months’ imprisonment followed by three years’ supervised release for attempted reentry following removal. Defendant had been deported from the United States six times, most recently about a month before his arrest. The same district court judge who sentenced Defendant in this case had presided over his prior sentencing hearing for illegal reentry. On appeal, Defendant raised two challenges to the court’s sentence.
 
The Ninth Circuit affirmed Defendant’s sentence. The panel held that so long as Defendant is apprised of the consequences of entering into a Type B plea agreement and accedes to them voluntarily, he has no right to withdraw from the agreement on the ground that the court does not accept the sentencing recommendation or request. Accordingly, the district court’s use of the word “reject” in the context of a Type B plea agreement can have no legal effect. The panel wrote that the record establishes that Defendant was aware of the consequences of entering into a Type B plea agreement, and concluded that the district court therefore did not abuse its discretion under the circumstances.
 
Defendant argued that the district court committed procedural error when it used Defendant’s alleged promise at his prior sentencing hearing not to return to the United States as a sentencing factor. Reviewing for plain error, the panel held that the district court’s factual finding that Defendant had assured the court at the prior sentencing hearing that he would not return to the United States is supported by the record.

Cortez-Lazcano v. Whitten

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-5031

Opinion Date: August 25, 2023

Judge: Moritz

Areas of Law: Constitutional Law, Criminal Law

Petitioner-appellant Daniel Cortez-Lazcano was convicted by jury of child sexual abuse. After unsuccessfully appealing his conviction to the Oklahoma Court of Criminal Appeals (OCCA), Cortez-Lazcano sought habeas relief under 28 U.S.C. § 2254 in federal court. He argued, among other things: (1) the prosecution used its peremptory strikes to remove prospective jurors based on their race, in violation of his Fourteenth Amendment rights under Batson v. Kentucky, 476 U.S. 79 (1986); and (2) that defense counsel provided ineffective assistance by failing to notify him of a favorable plea offer, in violation of his Sixth Amendment rights under Strickland v. Washington, 466 U.S. 668 (1984). Applying the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, the district court denied habeas relief but granted Cortez-Lazcano a certificate of appealability (COA) on his Batson and Strickland claims. Because the OCCA’s decision did not involve an unreasonable application of federal law or rest on an unreasonable determination of the facts, the Tenth Circuit Court of Appeals affirmed.

Tryon v. Quick

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-6097

Opinion Date: August 30, 2023

Judge: Carolyn Baldwin McHugh

Areas of Law: Constitutional Law, Criminal Law

Petitioner-appellant Isaiah Tryon accosted Tia Bloomer, his estranged girlfriend and the mother of his son, in a bus station and stabbed her seven times, resulting in her death. A jury convicted Tryon of first-degree murder. At sentencing, the State of Oklahoma (“State”) presented evidence of Tryon’s lengthy criminal history and impulsively violent behavior, including testimony about him physically abusing Bloomer on other occasions, discharging a firearm at a crowd of fleeing people, and fighting while in custody in 2009 and 2013. In a mitigation effort, Tryon highlighted his difficult upbringing, his parents’ substance abuse, his history of depression, several head injuries, and his low Intelligence Quotient (“IQ”). Tryon also presented expert testimony from John Fabian, a neuropsychologist who testified that Tryon was not intellectually disabled, and conceded that while an IQ score of 68 was low, it did not reflect Tryon’s full intellectual capacity. A jury sentenced Tryon to death. On direct appeal, appellate counsel raised twenty claims of error, none of which involved ineffective assistance of trial counsel. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Tryon’s conviction and sentence. In an application for state post-conviction relief, Tryon argued appellate counsel was ineffective for not arguing that trial counsel was ineffective for: (1) not presenting an intellectual disability defense; (2) not obtaining neuroimaging of Tryon’s brain; and (3) not countering the 2009 jail fight evidence. The OCCA rejected these claims and affirmed the sentence. Tryon next sought federal habeas relief, while also filing a successive application for post-conviction relief with the OCCA. As to the successive application for post-conviction relief, the OCCA concluded all of Tryon’s claims of ineffective assistance of appellate counsel were procedurally barred because he could have raised them in his original application for post-conviction relief. The federal court also denied relief on thel habeas petition. The issues Tryon's petition presented for the Tenth Circuit Court of Appeals centered on: (1) appellate counsel's decision not to present an intellectual disability defense; (2) whether appellate counsel was ineffective for not arguing trial counsel was ineffective for not obtaining and presenting neuroimages; (3) whether appellate counsel was ineffective for not arguing trial counsel was ineffective for not countering the 2009 jail fight evidence; and (4) cumulative error based on ineffective assistance of appellate counsel. Having considered each of these issues, the Court found no reversible errors and affirmed Tryon's sentence.

United States v. Britt

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-7012

Opinion Date: August 31, 2023

Judge: Mary Beck Briscoe

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

Defendant Diamond Britt was convicted of first-degree murder in Indian Country, for which he was sentenced to life imprisonment. Britt appealed, arguing, in pertinent part, that the district court erred by refusing his counsel’s request to instruct the jury on the theory of imperfect self-defense. After review of the trial court record, the Tenth Circuit Court of Appeals agreed with Britt that the district court erred in this regard. Consequently, the Court remanded the case to the district court with directions to vacate the judgment and conduct a new trial.

USA v. Tyvonne Wiley

Court: US Court of Appeals for the Eleventh Circuit

Docket: 22-10179

Opinion Date: August 29, 2023

Judge: JILL PRYOR

Areas of Law: Constitutional Law, Criminal Law

Defendant appealed his convictions for conspiracy to commit Hobbs Act robbery, Hobbs Act robbery, and brandishing a firearm during a crime of violence. He made three arguments on appeal: (1) the district court abused its discretion by striking a juror for cause because of her religious beliefs, (2) the district court plainly erred by allowing law enforcement officers to identify Defendant in surveillance footage, and (3) his convictions for using, carrying, and brandishing a firearm during a crime of violence should be vacated because aiding and abetting Hobbs Act robbery is not a predicate crime of violence under 18 U.S.C. Section 924(c).
 
The Eleventh Circuit affirmed. The court explained that in Taylor, the Supreme Court held that the attempted Hobbs Act is not a crime of violence under Section 924(c)(3)(A). The court explained that the Supreme Court distinguished between the completed offense and an attempt to complete that offense. To obtain a conviction for completed Hobbs Act robbery, the government must prove “that the defendant engaged in the 'unlawful taking or obtaining of personal property from the person of another, against his will, by means of actual or threatened force.’” By contrast, to obtain a conviction for attempted Hobbs Act robbery, the government need only show that the defendant intended to complete the offense and performed a “substantial step” toward that end. The court wrote Taylor did not disturb the court’s holding that completed Hobbs Act robbery is a crime of violence, and aiding and abetting a completed Hobbs Act robbery also qualifies as a crime of violence under Section 924(c)(3)(A).

USA v. William Raymond Beach

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-11342

Opinion Date: August 30, 2023

Judge: TJOFLAT

Areas of Law: Constitutional Law, Criminal Law

Defendant was indicted and convicted of tampering with a witness. Defendant appealed his conviction on the ground that the evidence was insufficient to convict him of the offense in three respects: (1) the alleged threat of physical force only related to a criminal investigation, not an “official proceeding”; (2) the evidence failed to establish that he intended to prevent his girlfriend from testifying in an official proceeding; and (3) the evidence failed to establish that he was the person who threatened his girlfriend.
 
The Eleventh Circuit affirmed. The court wrote that it was not persuaded by any of Defendant’s arguments. The court wrote that Defendant’s girlfriend was preparing to testify as a witness in an upcoming grand jury proceedings and possible trial against her crack supplier. The evidence in the record can reasonably support the conclusion that Defendant threatened his girlfriend in relation to those upcoming proceedings and that Defendant possessed the requisite intent to obstruct an official proceeding. Furthermore, a reasonable jury could have concluded that Defendant was the caller who threatened his girlfriend.

Camacho v. Superior Court

Court: Supreme Court of California

Docket: S273391

Opinion Date: August 31, 2023

Judge: Kruger

Areas of Law: Criminal Law, Health Law

The Supreme Court held that persons facing involuntary commitment under the Sexually Violent Predator Act (SVP Act), Cal. Welf. & Inst. Code 6600 et seq., have a due process right to a timely trial but that whether pretrial delay violates that right depends in the first instance on the reasons for the delay. See Barker v. Wingo (1972), 407 U.S. 514, 531.

In 2005, Petitioner was determined to be an SVP and committed to the state hospital for two years. The next year, the applicable statute was amended to provide for indefinite commitment instead of renewable two-year terms. Before Petitioner's term ended, the State filed a recommitment petition seeking indefinite commitment under the new version of the statute. Petitioner later filed a motion to dismiss the petition to extend commitment, arguing that the "excessive delay" in his case violated his due process right to a timely trial. The trial court denied the motion to dismiss, after which Petitioner filed an original petition for a writ of mandate. The court of appeal denied the writ petition. The Supreme Court affirmed, holding that Petitioner failed to establish a violation of his due process rights.

California Department of Corrections & Rehabilitation v. Superior Court of Alameda County

Court: California Courts of Appeal

Docket: A166559(First Appellate District)

Opinion Date: August 25, 2023

Judge: Tucher

Areas of Law: Criminal Law

In 1996, Escobedo was convicted of second-degree murder and was sentenced to an aggregate prison term of 19 years to life. In 2016, Escobedo was released from prison and placed on lifetime parole. If a court determines that a lifetime parolee has committed a violation of law or violated his conditions of parole, the person “shall be remanded to the custody” of the Department of Corrections (CDCR) (Penal Code 3000.08(h).) In 2020, the Alameda County DA charged Escobedo with forcible oral copulation and making criminal threats and sought revocation of Escobedo’s parole. The petition did not reflect that Escobedo was on lifetime parole. CDCR filed a petition for revocation of Escobedo’s parole, which did reflect Escobedo was on lifetime parole, with a report alleging additional criminal conduct and violations of his parole and documenting Escobedo’s criminal history, which predated his murder conviction.

At a hearing, the DA explained a negotiated disposition, under which Escobedo would be placed on three years of felony probation. A CDCR supervisor explained by email that a different process was required because Escobedo is a “lifer parolee.” The court nonetheless accepted the plea agreement with no mention of Escobedo's lifetime parole.

The court of appeal granted CDCR’s mandate petition. Because Escobedo was on lifetime parole, the court lacked the authority to release him on probation after finding that he committed a new criminal offense; it was required to remand him to the custody of CDCR.

California v. Ceja

Court: California Courts of Appeal

Docket: G061609(Fourth Appellate District)

Opinion Date: August 30, 2023

Judge: Moore

Areas of Law: Constitutional Law, Criminal Law

Defendant Edward Ceja was convicted by jury of being a felon in possession of ammunition and other charges. On appeal, Ceja’s sole claim was that the felon in possession of ammunition statute facially violated the Second Amendment to the United States Constitution: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Another Court of Appeal recently held that California’s laws prohibiting felons from possessing firearms and ammunition did not violate the Constitution because “only law-abiding citizens are included among 'the people’ whose right to bear arms is protected by the Second Amendment.” To this, the Court of Appeal agreed and affirmed the judgment.

California v. Doron

Court: California Courts of Appeal

Docket: D079799(Fourth Appellate District)

Opinion Date: August 31, 2023

Judge: O'Rourke

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Karl Doron appealed after his guilty plea to nine counts of robbery, two counts of attempted robbery, and allegations he was armed with a firearm during the commission of the robberies. Before entering into his plea, Doron unsuccessfully requested pretrial mental health diversion under Penal Code section 1001.36. The court sentenced Doron to a prison sentence of 10 years four months in accordance with his plea. In his initial appellate briefing, Doron contended the trial court abused its discretion by ruling he had not made a prima facie showing he was entitled to mental health diversion. After the State filed its respondent’s brief, the Legislature amended section 1001.36 to revise the eligibility test for pretrial diversion (Stats. 2022, ch. 735, § 1, eff. Jan. 1, 2023), and the parties submitted supplemental briefing on the issue. Doron then contended under the amended statute, which applied retroactively to his case, the trial court was required to find his mental disorder was a substantial factor in the commission of his crimes absent clear and convincing evidence to the contrary. He maintained there was no substantial evidence to rebut this presumption, and thus he was both eligible and suitable for pretrial mental health diversion. Doron alternatively asked the Court of Appeal remand his matter for an evidentiary hearing governed by section 1001.36’s new principles. The State conceded, and the Court of Appeal agreed, that amended section 1001.36 applied retroactively to Doron’s nonfinal judgment. The State argued, however, the proper remedy was not for the Court to engage in factfinding so as to decide whether Doron met the criteria for diversion, but to remand the matter for a new prima facie evidentiary hearing consistent with section 1001.36’s amendments. To this the Court concurred, and remanded the case with directions that the trial court consider Doron’s request for mental health diversion under amended section 1001.36.

California v. Njoku

Court: California Courts of Appeal

Docket: C093672(Third Appellate District)

Opinion Date: August 31, 2023

Judge: Robie

Areas of Law: Criminal Law

A trial court denied defendant Monica Njoku’s petition for resentencing pursuant to Penal Code section 1172.6. Defendant owned a house in Sacramento of which she rented rooms to short term tenants, primarily single mothers with children. She also rented a room to Edward W., the victim and a single father with a two-year-old son. Other tenants in the house during the relevant period included Jasmine M., a single mother with an eleven-month-old daughter, and Amanda F., a single mother with a five-or six-year-old son. At the time of the events detailed below, Edward had been living in the house for two weeks, Jasmine for three weeks, and Amanda for three months. Defendant and Jasmine had a disagreement several days before the murder. On November 14, 2014, defendant appeared at the house unannounced and learned Jasmine had violated house rules by allowing her sister to spend the night. Defendant came back to the house two days later, confronting Jasmine again, and demanding she leave. Edward, standing nearby, interjected. This disagreement between Defendant and her tenants would end with Defendant calling her brother and his wife for help evicting her tenants, tempers flaring, all three tenants making multiple calls to 911, and Edward ultimately being stabbed and stomped where he later died an hour after he placed his last call to 911 from loss of blood from his wounds. On appeal, defendant argued insufficient evidence supports the trial court’s finding she aided and abetted implied malice murder. Defendant also argued any factual disputes should have been resolved in her favor because the prosecution did not introduce live testimony at the evidentiary hearing to resolve the factual disputes as it was required to do pursuant to the Fifth and Fourteenth Amendments to the United States Constitution. Finding no reversible error, the Court of Appeal affirmed.

Finley v. Superior Court

Court: California Courts of Appeal

Docket: A167311(First Appellate District)

Opinion Date: August 31, 2023

Judge: Brown

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

San Francisco Officer Gunn testified that he observed a Buick parked in a “known high-crime area” and ran a license plate check, which came back as belonging to an Acura. Finley, who is Black, stepped out of the vehicle with his wife. Finley stated that they had recently purchased the vehicle and provided title and registration information, establishing the car was not stolen. After obtaining Finley’s driver’s license, Gunn learned that Finley was on federal probation with a search clause. Gunn searched the vehicle and retrieved a backpack, containing a loaded handgun without a serial number.

Finley alleged a violation of the Racial Justice Act (Penal Code 745(a)(1)). The prosecution noted that the Supreme Court has stated that an area’s reputation for criminal activity is an appropriate consideration in determining the reasonableness of investigative detention and that it is “common practice” for an officer to run a query of a person’s name. The trial court concluded that Finley did not establish a prima facie violation of the Racial Justice Act under the totality of the circumstances, noting that the officer was courteous.

The court of appeal ordered a rehearing. The trial court’s review of Finley’s motion went beyond the confines of determining whether it stated a prima facie case. The focus at this stage of the proceedings should be on Finley’s allegations and supporting evidence, not evidence supporting the prosecution’s argument.

People v. Castaneda-Prado

Court: California Courts of Appeal

Docket: A164897(First Appellate District)

Opinion Date: August 30, 2023

Judge: Streeter

Areas of Law: Constitutional Law, Criminal Law

Castaneda-Prado was convicted of five counts of committing a lewd act on a child under age 14, with allegations that the charges involved multiple victims and substantial sexual conduct. Castaneda-Prado was sentenced to 125 years to life; five consecutive prison terms of 25 years to life. Castaneda-Prado argued the court erred by excluding evidence that one of the children believed that, by accusing Castaneda-Prado of sexual molestation, she was helping her mother obtain a “U visa,” which can provide legal status for victims of certain crimes who assist in the investigation of those crimes.

The court of appeal reversed his convictions. The exclusion of this evidence violated Castaneda-Prado’s right to confront a witness against him under the federal and state constitutions. On the record cannot be considered harmless beyond a reasonable doubt. The jury’s guilty verdicts turned almost entirely on the credibility of the girls. There was no physical evidence of the alleged sexual offenses. The court noted that it was irrelevant whether a U visa was possible or whether the mother actually sought a visa; what mattered was the girl’s belief. In addition, the prosecutor highlighted the absence of any proven basis to question the motives of either witness.

People v. Moyer

Court: California Courts of Appeal

Docket: H049408(Sixth Appellate District)

Opinion Date: August 25, 2023

Judge: Bromberg

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

The Penal Code authorizes but does not require, county sheriffs to issue licenses to carry concealed weapons. The Santa Clara County Sheriff’s Office rarely issued CCW licenses; the office would not even process a CCW application absent a special instruction Sung, who apparently ran Sheriff Smith’s 2018 re-election campaign and subsequently became the undersheriff, could issue such instructions and could place applications on hold even after licenses were signed by the sheriff. Sung abused that authority to extract favors.

Apple executives, concerned about serious threats, met with Sung, who asked whether they would support Sheriff Smith’s re-election. Apple would not give anything of value in exchange for CCW licenses but two executives personally donated $1,000, the maximum allowable amount, to Smith’s campaign. After the election, the applicants were fingerprinted and completed their firearm range qualification tests. Sheriff Smith signed the CCW licenses but they were not handed over. Although Apple had no program for donating products to law enforcement agencies, after a meeting with Sung, an Apple executive (Moyer) emailed an inquiry about donating iPads or computers to the sheriff’s office's “new training facility,” not mentioning Apple’s pending CCW applications. The Office was not setting up a new training center but asked for 200 iPads, worth $50,0000-$80,000. Apple’s team then received their CCW licenses, Apple terminated the promised donation.

The court of appeal reversed the dismissal of a bribery charge against Moyer. A public official may be bribed with a promise to donate to the official’s office.

State v. James K.

Court: Connecticut Supreme Court

Docket: SC20693

Opinion Date: August 29, 2023

Judge: Mullins

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the appellate court affirming Defendant's conviction of risk of injury to a child, holding that Defendant was not entitled to relief on his allegations of error.

On appeal, Defendant argued, among other things, that the trial court abused its discretion in precluding defense counsel from asking potential jurors about their views on parents kissing their children on their lips. The Supreme Court affirmed, holding (1) even if the trial court improperly limited defense counsel's questions to potential jurors, any error did not result in harmful prejudice; and (2) the trial court did not abuse its discretion by admitting into evidence a video recording of a forensic interview of the victim concerning the crimes at issue.

Burroughs v. Delaware

Court: Delaware Supreme Court

Docket: 144, 2022 / 130, 2022

Opinion Date: August 30, 2023

Judge: Traynor

Areas of Law: Constitutional Law, Criminal Law

In 2019, Tyrese Burroughs was convicted of felony drug dealing. As one consequence of that conviction, Burroughs was, from then on, prohibited from possessing a firearm or ammunition. According to an affidavit of probable cause, on November 25, 2020, police caught Burroughs engaging in a hand-to-hand drug transaction while in possession of a “Smith and Wesson Walther .380 firearm loaded with seven live rounds.” Burroughs was arrested and charged with six felonies, relevant here: possession of a firearm during the commission of a felony, possession of a firearm by a person prohibited, possession of ammunition by a person prohibited, two counts of drug dealing, carrying a concealed deadly weapon. Together, these charges carried a minimum-mandatory of eight years and a statutory maximum of 77 years in prison. Burroughs filed a “Motion for Modification of Bail,” in which he requested, “[d]ue to his inability to post bail, . . . that his bail be converted to an unsecured or lower secured amount.” The State argued his financial conditions of release should be maintained because, in its view, there was strong evidence supporting his conviction and ample facts demonstrating that he posed a serious safety risk to the public. Burroughs filed a “Motion for Review of Commissioner’s Order,” arguing that the Commissioner erred by failing to test his motion under the strict-scrutiny standard of review on the grounds that he either fell into a suspect class by virtue of his indigency or that his pretrial detention deprived him of his fundamental liberty right under substantive-due-process principles. If the Commissioner had properly conducted a strict-scrutiny review, Burroughs contended, then the State would have had to prove by clear and convincing evidence that “no other non-monetary conditions of release [could] accomplish” its “compelling interest in preventing crime.” The Delaware Supreme Court was asked to decide whether, in light of Delaware's constitutional right to bail, it was permissible to attach unaffordable financial conditions to a dangerous defendant’s pretrial release on bail and, if it was, what procedural protections had to be observed when such bail is considered. The Court responded: (1) strict scrutiny, answering in the affirmative; and (2) the determination to set cash bail had to be supported by clear and convincing evidence that: the defendant is a flight risk or poses a substantial risk to the community and nonmonetary conditions of release would not alleviate that risk. Because these answers were consistent with, and yielded the same result as, the Superior Court’s decision on appeal, the Supreme Court affirmed.

Idaho v. Head

Court: Idaho Supreme Court - Criminal

Docket: 49029

Opinion Date: August 30, 2023

Judge: Bevan

Areas of Law: Constitutional Law, Criminal Law

An Idaho district court denied Jared Head’s motion to strike certain evidence supporting a restitution order. Jared and his wife, Teresa, worked as onsite managers at the Village Inn Motel in Malad City, Idaho. Following an investigation by the Oneida County Sheriff’s Office, Jared and Teresa were separately charged with grand theft. After pleading guilty to grand theft, Jared was ordered to pay $24,535.23 in restitution for allowing people to stay at the motel without paying, and for accepting rent payments that he did not relinquish to the motel owners. Relevant to this appeal, some of the State’s evidence supporting the restitution amount related to a specific hotel guest, S.G. Just before resting its case at the restitution hearing, the State disclosed that S.G. had been found incompetent to stand trial in an unrelated criminal case several months earlier. Jared then sought to strike any testimony, exhibits, and statements related to S.G., arguing the State withheld exculpatory evidence in violation of his due process rights under Brady v. Maryland, 373 U.S. 83 (1963) and in violation of his Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004). The district court denied Jared’s motion after concluding that his due process claim was moot because Brady did not apply to restitution hearings, which the district court couched as civil proceedings. Jared appealed, arguing the district court erred in applying an incorrect legal standard to deny his motion to strike. Finding no reversible error in the district court's judgment, the Idaho Supreme Court affirmed.

State v. Norris

Court: Maine Supreme Judicial Court

Citation: 2023 ME 60

Opinion Date: August 31, 2023

Judge: Connors

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

The Supreme Judicial Court affirmed the judgment of the trial court convicting Defendant of two counts of aggravated trafficking of scheduled drugs and one count of unlawful trafficking in scheduled drugs and finding that $1,500 was subject to criminal forfeiture, holding that Defendant was not entitled to relief on his allegations of error.

Specifically, the Supreme Judicial Court held (1) Defendant's claim that his right to a speedy trial was violation under the Maine Constitution failed because he did not adequately assert his right, and his speedy trial claim under the United States Constitution failed under obvious error review; (2) Defendant's claim under the Maine Constitution that evidence obtained pursuant to the execution of a search warrant was inadmissible was unpreserved, and his claim under the United States Constitution that the warrants were not supported by probable cause failed; and (3) Defendant's last argument on appeal was unavailing.

Blake v. State

Court: Maryland Supreme Court

Docket: 2m/22

Opinion Date: August 29, 2023

Judge: Booth

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the post-conviction court denying Petitioner's pro se petition for post-conviction relief, holding that the post-conviction court did not err in denying the petition.

Petitioner was convicted of distribution of heroin and sentencing him to eight years in prison. In his post-conviction motion, Petitioner argued that his trial counsel rendered ineffective assistance during trial and that the State had violated its Brady obligations. The post-conviction court denied relief. The appellate court certified questions of law to the Supreme Court. The Supreme Court answered (1) Defendant failed to establish that trial counsel rendered ineffective assistance by failing to move to compel production of Internal Affairs Division files; and (2) assuming, without deciding, that the State was required to disclose impeachment evidence prior to the suppression hearing, Petitioner failed to establish the Brady materiality standard.

Blake v. State

Court: Maryland Supreme Court

Docket: 2m/22

Opinion Date: August 28, 2023

Judge: Booth

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

The Supreme Court affirmed the decision of the post-conviction court denying Defendant's petition for post-conviction relief, holding that the post-conviction court did not err in ruling that trial counsel had not rendered ineffective assistance and that the State had not violated its Brady obligations during the underlying proceedings, holding that there was no error.

After a jury trial, Defendant was convicted of distribution of heroin and sentenced to eight years' imprisonment. The appellate court affirmed. Defendant later filed a pro se petition for post-conviction relief, which the post-conviction court denied. On appeal, the appellate court certified questions of law to the Supreme Court. The Supreme Court answered (1) the post-conviction court did not err in ruling that trial counsel had not rendered ineffective assistance by failing to move production of certain evidence; and (2) assuming, without deciding, that the State was required to disclose challenged impeachment evidence prior to the hearing on Defendant's motion to suppress, Defendant failed to establish the Brady materiality standard.

Clark v. State

Court: Maryland Supreme Court

Docket: 25/22

Opinion Date: August 31, 2023

Judge: Shirley M. Watts

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

The Supreme Court upheld the judgment of the circuit court on postconviction review ordering a new trial for Petitioner, holding that Petitioner was provided ineffective assistance of counsel due to trial counsel's failure to object to the trial court's order prohibiting any consultation about the case (a no-communication order) between Petitioner and trial counsel under the circumstances of this case.

At issue was a no-communication order entered into between Petitioner and trial counsel during an overnight recess prior to the final day of testimony in Petitioner's murder trial and trial counsel's failure to object to the order. The circuit court ruled that the no-communication order, and trial counsel's failure to object, deprived Petitioner of the assistance of counsel, in violation of the Sixth Amendment, and presumed prejudice, thus ordering a new trial. The appellate court reversed, concluding that Petitioner could not show prejudice. The Supreme Court reversed, holding (1) trial counsel's conduct in this case resulted in the actual denial of the assistance of counsel, and prejudice was presumed; and (2) therefore, the circuit court properly ordered a new trial for Petitioner.

State ex rel. Wishom v. Honorable Bryant

Court: Supreme Court of Missouri

Docket: SC99949

Opinion Date: August 29, 2023

Judge: Powell

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

The Supreme Court granted a writ of prohibition barring the circuit court from taking any further action in Petitioner's criminal case other than dismissing the pending charges against him, holding that the Interstate Agreement on Detainers (IAD) mandated dismissal of Petitioner's case.

As a basis for the writ, Petitioner claimed that the circuit court violated the IAD by continuing his criminal case and failing to conduct a trial within 180 days of his request to dispose of his pending charges of rape, sodomy, and sexual abuse. The Supreme Court agreed and granted the writ, holding (1) the IAD applied to the disposition of the state charges pending against Petitioner resulting in a detainer being lodged with the federal penitentiary where he was serving a federal sentence; (2) the State waived any post hoc objection as to the sufficiency of Petitioner's request to dispose of his pending charges; (3) good cause did not exist under the IAD warranting continuing Petitioner's trial; and (4) Petitioner's actions did not waive, toll or otherwise justify extending the timeline mandated by the IAD.

State v. Johnson

Court: Montana Supreme Court

Citation: 2023 MT 167

Opinion Date: August 31, 2023

Judge: Laurie McKinnon

Areas of Law: Criminal Law, Juvenile Law

The Supreme Court reversed the judgment of the district court denying Appellant's motion to transfer his criminal case to youth court, holding that the district court abused its discretion by failing to consider Appellant's mitigating and unrequited evidence supporting transfer.

Defendant had turned seventeen years old one month before the incident leading to his charges of sexual intercourse without consent, sexual abuse of children, and sexual assault. After a hearing to determine if the case should be transferred to youth court, the district court concluded that transferring the case would be in Defendant's best interests and would serve the interests of community protection but that the transfer should be denied based on the severity of the offense. The Supreme Court reversed, holding that the district court misapprehended the evidence presented by Defendant suggesting that the nature of the offense did not warrant district court prosecution and, instead, impermissibly reached its conclusion based solely on the egregious facts of the offense.

State v. Buol

Court: Nebraska Supreme Court

Citation: 314 Neb. 976

Opinion Date: August 25, 2023

Judge: Michael G. Heavican

Areas of Law: Criminal Law

The Supreme Court affirmed the order of the district court affirming Defendant's convictions and sentences for driving under the influence (DUI), possession of an open alcoholic beverage container, and careless driving, holding that the evidence was sufficient to sustain the convictions.

After a bench trial, the county court adjudged Defendant guilty of DUI, possession of an open alcoholic beverage container, and careless driving. The district court affirmed, concluding that no abuse of discretion or error was shown in the record and that sufficient evidence supported the convictions. The Supreme Court affirmed, holding that the State presented sufficient evidence to sustain Defendant's DUI conviction.

State v. Mabior

Court: Nebraska Supreme Court

Citation: 314 Neb. 932

Opinion Date: August 25, 2023

Judge: Funke

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

The Supreme Court affirmed as modified Defendant's convictions for two counts of first degree murder and two counts of use of a firearm to commit a felony, holding that the record was insufficient to address certain claims, and there was otherwise no merit to his arguments on direct appeal.

Specifically, the Supreme Court held (1) there was no plain error in the admission of evidence regarding a prior shooting; (2) there was no plain error in the prosecution's remarks; (3) the record was insufficient to address several of Defendant's numerous claims of ineffective assistance of trial counsel, and there was no merit to Defendant's remaining ineffective assistance of counsel claims; and (4) the sentencing order must be modified to reflect a sentence of life imprisonment for each of Defendant's convictions for first degree murder.

Alfaro v. State

Court: Supreme Court of Nevada

Citation: 139 Nev. Adv. Op. No. 24

Opinion Date: August 24, 2023

Judge: Kristina Pickering

Areas of Law: Criminal Law

The Supreme Court reversed Defendant's conviction on one lewdness count as redundant to sexual assault involving the same episode but otherwise affirmed his convictions, holding that the two other errors identified by Defendant on appeal were harmless.

Following a jury trial, Defendant was convicted of seven counts of sexual assault against a child under fourteen and three counts of lewdness with a child under fourteen. The district court imposed the maximum sentence allowed by law for an aggregate total of 275 years to life imprisonment. The Supreme Court reversed in part and affirmed in part, holding (1) the lewdness convictions must be reversed as redundant to a sexual assault involving the same episode; (2) the district court erred in admitting two uncharged bad acts, but the error was harmless; (3) the district court erred in issuing a jury instruction defining "lewdness" separate from the statutory definition provided by Nev. Rev. Stat. 201.230, but the error was harmless; (4) the sentence imposed was within statutory limits and was not constitutionally disproportionate; and (5) Defendant was not entitled to relief on his cumulative error claim.

In re Search Warrants re Seizure of Documents

Court: Supreme Court of Nevada

Citation: 139 Nev. Adv. Op. No. 23

Opinion Date: August 24, 2023

Judge: Westbrook

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

The Supreme Court affirmed in part and reversed in part the judgment of the district court denying Appellants' return-of-property motion and Appellants' request to quash and unseal search warrants, holding that Nevada's return-of-property statute, Nev. Rev. Stat. 179.085, allows a property owner to seek the return of privileged materials that were seized pursuant to a valid search warrant even when the government has an ongoing investigation.

Appellants moved under section 179.085 for the return of the various documents and electronic devices seized at Appellants' business establishments on the basis that the property contained privileged materials. Appellant also sought to quash and unseal the warrants. The district court denied the motion, determining that it was not unreasonable for LVMPD to retain the property during an ongoing investigation and that the search protocol proposed by LVMPD was a reasonable resolution of the privilege issue. The Supreme Court reversed in part, holding that the district court (1) properly denied Appellants' request to quash and unseal the warrants; (2) erred when it denied Appellants' return-of-property motion without giving Appellants an opportunity to demonstrate privilege; and (3) erred by adopting LVMPD's proposed search protocol.

State ex rel. Barr v. Wesson

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3028

Opinion Date: August 31, 2023

Judge: Per Curiam

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

The Supreme Court granted Harry Barr a limited writ of mandamus, holding that Barr was entitled to relief on his request for certain inmate records predating State ex rel. Mobley v. Ohio Dep't of Rehabilitation & Correction, 201 N.E.3d 853 (Ohio 2022).

Barr, an inmate, sought certain documents from James Wesson, the institutional public information officer at Grafton Correctional Institution (GCI), pursuant to Ohio's Public Records Act, Ohio Rev. Code 149.43. Wesson produced some records and, as to the remaining, claimed that Barr failed sufficiently to specify which records he wanted and that Barr's requests predated Mobley, thus rendering them unenforceable. The Supreme Court granted Barr a limited writ of mandamus as to prison-kite logs predating Mobley, ordered Wesson to produce the email messages that Barr requested if they exist, denied the writ as to Barr's request for a list of cross-gender employees, dismissed his complaint for a temporary restraining order and preliminary injunction, and denied his motion to strike a certain affidavit, holding that Barr demonstrated that he had a clear legal right to access the prison-kite logs and specified email messages if they existed.

State v. Schilling

Court: Supreme Court of Ohio

Citation: 2023-Ohio-3027

Opinion Date: August 31, 2023

Judge: Stewart

Areas of Law: Criminal Law

The Supreme Court affirmed in part and reversed in part the decision of the court of appeals in this case involving Ohio's sex-offender registration and reporting laws, holding that Appellant had completed his Ohio sex-offender registration and reporting obligations.

Specifically, the Court held (1) the holding in State v. Henderson, 162 N.E.3d 776 (Ohio 2020), that when a court has jurisdiction to act, any errors in the court's judgment are voidable and subject to res judicata if they are not timely appealed, does not apply to a trial court's erroneous classification of a defendant as a Tier I sex offender subject to the registration and reporting requirements of Ohio's Adam Walsh Act (AWA), 2007 Am.Sub.S.B. No. 10, when the date on which the defendant committed the offense rendered the defendant subject to the registration and reporting requirements of Ohio's Megan's Law, Am.Sub.H.B. No. 180, and Ohio's sex-offender registration and reporting scheme that predated the AWA, Am.Sub.S.B. No. 5; and (2) a person's obligation to register and report as a sex offender in Ohio for a specific duration is not tolled when the person was convicted of a sexually-oriented offense in Ohio but resides in a different state and reports as a sex offender regarding the out-of-state offense.

South Carolina v. Wallace

Court: South Carolina Supreme Court

Docket: 28175

Opinion Date: August 30, 2023

Judge: Few

Areas of Law: Constitutional Law, Criminal Law

Tyrone Wallace Jr. appealed his convictions for murder and kidnapping, challenging the trial court's ruling that a witness who placed Wallace's phone near the two crime scenes based on cell site location information (CSLI) was "qualified as an expert by knowledge, skill, experience, training, or education" under Rule 702 of the South Carolina Rules of Evidence. The court of appeals affirmed. The South Carolina Supreme Court granted Wallace's petition for a writ of certiorari to address only this issue. The Court found the trial court acted within its discretion, and affirmed the judgment.

Martinson v. State

Court: Wyoming Supreme Court

Citation: 2023 WY 88

Opinion Date: August 30, 2023

Judge: Kate M. Fox

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's sentence and the order of the district court denying Defendant's motion for a sentence reduction and correction, holding that there was no error.

Defendant was convicted of six counts of aggravated child abuse and sentenced to concurrent prison terms of four to eight years on each count. In his motion for a sentence reduction and correction Defendant argued that his sentence was illegal on several grounds. The district court denied the motion. On appeal, Defendant argued, among other things, that the court failed adequately to consider probation and that his sentence was further illegal on several grounds. The Supreme Court affirmed, holding (1) the record did not support Defendant's claim that the district court failed to consider a sentence of probation; (2) the presentence investigation report's lack of a recommendation on probation did not render Defendant's sentence illegal; and (3) Defendant's sentence was not cruel or unusual.

Justia Legal Guides: Insurance Law Center

Chris Skelton

As a driver, a homeowner, or a patient, a consumer may want to get various forms of insurance. Unfortunately, this industry can be as confusing as it is critical. The Insurance Law Center at Justia aims to shed some light on its rules.

Read More