| United States v. Karani |
| Court: US Court of Appeals for the First Circuit Docket: 19-1031 Opinion Date: January 4, 2021 Judge: Kermit Victor Lipez Areas of Law: Criminal Law |
| The First Circuit affirmed Defendant's conviction of two counts of making false statements during the purchase of a firearm and one count of making a false statement in a record required to be kept by federal law, holding that there was no reversible error in the jury instructions. On appeal, Defendant argued that his convictions must be vacated because of prejudicial errors in the jury instructions. The First Circuit affirmed, holding (1) the district court properly and accurately instructed the jury on the legal meaning of he term "gift" and did not direct a verdict on any element of the offense or otherwise invade the province of the jury; (2) there was no error in the court's "actual purchaser" instruction; and (3) there was no reversible plain error in instructing the jury on the first count of making false statements during the purchase of a firearm. |
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| United States v. Delgado |
| Court: US Court of Appeals for the Fifth Circuit Docket: 19-20697 Opinion Date: January 5, 2021 Judge: Stephen Andrew Higginson Areas of Law: Criminal Law |
| The Fifth Circuit affirmed defendant's convictions for bribery-related offenses carried out in connection with his duties as a judge on the 93rd Judicial District in Hidalgo County, Texas. The court held that the evidence was sufficient to support defendant's conviction for federal program bribery (Counts Two through Four) and conspiracy (Count One). The court also held that the evidence was sufficient to support defendant's conviction for using a phone in connection with the charged federal program bribery offenses in violation of 18 U.S.C. 1952(a)(3) (Counts Five through Seven). Finally, sufficient evidence supports defendant's conviction for obstruction of justice (Count 8). The court rejected defendant's contention that the district court incorrectly calculated "the benefit received" in return for the bribe payments under USSG 2C1.1(b)(2) and 2B1.1(b)(1), and affirmed the district court's application of a six-level sentencing increase to defendant's Guidelines offense level. |
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| United States v. Hernandez-Zavala |
| Court: US Court of Appeals for the Fifth Circuit Docket: 18-40669 Opinion Date: January 7, 2021 Judge: Jerry E. Smith Areas of Law: Criminal Law |
| The Fifth Circuit affirmed the summary dismissal of defendant's pro se 28 U.S.C. 2255 motion, in which he challenged his sentence for revocation of supervised release that resulted in an 18-month prison sentence to run consecutively with his sentence for illegal reentry. Defendant claimed that he received ineffective assistance of counsel and that his due process rights were violated. The court held that a district court does not err in declining to offer sua sponte a section 2255 movant an opportunity to amend. In this case, defendant never moved for leave to amend, and United States v. Martinez, 181 F.3d 627 (5th Cir. 1999), does not establish a requirement to offer sua sponte a movant the opportunity to amend. Furthermore, defendant failed to state how he would cure his section 2255 motion if given the chance to amend. |
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| United States v. Morton |
| Court: US Court of Appeals for the Fifth Circuit Docket: 19-10842 Opinion Date: January 5, 2021 Judge: E. Grady Jolly Areas of Law: Criminal Law |
| The good faith exception to the Fourth Amendment's exclusionary rule does not allow officers to search the photographs on a defendant's cellphones for evidence of drug possession, when the affidavits supporting the search warrants were based only on evidence of personal drug possession and an officer's generalized allegations about the behavior of drug traffickers—not drug users. The Fifth Circuit held that the officers' affidavits do not provide probable cause to search the photographs stored on the defendant’s cellphones. Furthermore, the good faith exception does not apply because the officers' reliance on the defective warrants was objectively unreasonable. While respecting the "great deference" that the presiding judge is owed, the court further held that he did not have a substantial basis for his probable cause determination with regard to the photographs. Therefore, the digital images found in defendant's cellphones are inadmissible and the court vacated his conviction, remanding for further proceedings. |
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| United States v. Tanner |
| Court: US Court of Appeals for the Fifth Circuit Docket: 19-30833 Opinion Date: January 6, 2021 Judge: Jerry E. Smith Areas of Law: Criminal Law |
| The Fifth Circuit affirmed the written amount of restitution imposed after defendant pleaded guilty to one count of financial aid fraud. Defendant asserts that, at sentencing, the district court orally pronounced restitution of $63,221, but the written judgment mandates $106,744. The court concluded that, although the oral pronouncement was ambiguous, it does not conflict with the written judgment. In this case, the district court stated several times that the "correct" or "net" amount owed in restitution was $106,744—the amount it imposed in its written judgment. The court acknowledged that the district court could have been clearer, but that the record confirms that the district court intended to order restitution in the amount of the written judgment. |
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| United States v. Thompson |
| Court: US Court of Appeals for the Fifth Circuit Docket: 20-40381 Opinion Date: January 5, 2021 Judge: Jerry E. Smith Areas of Law: Criminal Law |
| The Fifth Circuit affirmed the district court's denial of defendant's request for compassionate release from prison on account of his underlying health issues and the COVID-19 pandemic. Defendant had pleaded guilty to conspiracy to distribute and to possess with intent to distribute methamphetamine. The court concluded that the district court did not abuse its discretion in finding that there were no extraordinary and compelling reasons to warrant compassionate release. The court acknowledged that defendant's chronic illnesses place him at a higher risk of severe symptoms should he contract COVID, but agreed with the district court that it is uncertain that defendant is at a significantly higher risk than is the general inmate population. In this case, defendant can point to no case in which a court, on account of the pandemic, has granted compassionate release to an otherwise healthy defendant with two, well-controlled, chronic medical conditions and who had completed less than half of his sentence. |
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| United States v. Elias |
| Court: US Court of Appeals for the Sixth Circuit Docket: 20-3654 Opinion Date: January 6, 2021 Judge: McKEAGUE Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| Elias pled guilty to drug possession and distribution conspiracy; in 2017, she was sentenced to 108 months' imprisonment. She is confined at FPC Alderson, with a projected release date of November 2024. Elias filed a pro se “Emergency Motion for Immediate Release Due to COVID-19” in April 2020. In June, with appointed counsel, she filed a supplemental motion for a reduction of her sentence under 18 U.S.C. 3582(c)(1)(A)(i), arguing that her hypertension exacerbated her risk of serious injury or death if she were to contract COVID-19. Elias requested that the warden file a compassionate-release motion and appealed the denial, satisfying the exhaustion requirements. The Sixth Circuit affirmed the denial of relief. U.S.S.G. 1B1.13 is not applicable to inmate-filed compassionate release motions under the First Step Act. In determining that there were not “extraordinary and compelling reasons,” the district court properly considered the CDC guidance, which then did not include hypertension; reviewed a scientific journal which stated that “there is as yet no evidence that hypertension is related to outcomes of COVID-19”; examined the BOP’s webpage and noted there were no reported cases at FPC Alderson; and concluded that speculation that COVID-19 could spread to FPC Alderson was insufficient to justify Elias’s release. |
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| United States v. Jackson |
| Court: US Court of Appeals for the Sixth Circuit Dockets: 18-5676, 18-6003 Opinion Date: January 5, 2021 Judge: Readler Areas of Law: Criminal Law |
| Jackson and Combs pleaded guilty to participating in a cocaine distribution ring. Both received elevated sentences. Jackson was sentenced to 192 months’ imprisonment due to his role as a leader in the drug-distribution conspiracy, U.S.S.G. 3B1.1(a).. Combs was sentenced to 188 months’ imprisonment due to his career-offender status, U.S.S.G. 4B1.1. The Sixth Circuit affirmed. Combs’s Kentucky trafficking offense categorically qualifies as a “controlled substance offense” under the Guidelines; U.S.S.G. 4B1.2 covers all the conduct under the Kentucky statute and the district court properly deemed Combs to be a career offender. The court rejected Combs’s argument that distribution requires a commercial aspect. Jackson recruited and supervised participants, he held a substantial amount of the cash proceeds, and the conspiracy involved seven individuals. The court also rejected Jackson's challenge to the mandatory-minimum 20-year sentence he received in accordance with 21 U.S.C. 841(b)(1)(A), due to his prior marijuana-trafficking conviction. |
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| Hope v. Commissioner of Indiana Department of Corrections |
| Court: US Court of Appeals for the Seventh Circuit Docket: 19-2523 Opinion Date: January 6, 2021 Judge: ROVNER Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The plaintiffs challenged Indiana’s Sex Offender Registration Act (SORA) as it applies to offenders who have relocated to Indiana from other states. A 2006 SORA amendment applied the statute’s requirements to any “person who is required to register as a sex offender in any jurisdiction.” Indiana does not require any person to register if the offense occurred prior to SORA, provided that person remains a resident of Indiana. Persons with pre-SORA convictions who relocate to Indiana from another state where registration was required must register in Indiana, even if Indiana would not have required them to register had they committed their offenses in Indiana and never left. The Seventh Circuit affirmed, finding that this application of SORA violates the plaintiffs’ right to travel. The amendment relies exclusively upon another state’s decision to require an offender to register and is necessarily using an offender’s travel as the trigger for its registration requirement. Indiana has created two classes of otherwise similarly-situated citizens based on whether they previously lived (or were otherwise present) in a state that required them to register. The distinction is purposeful; it expressly looks to what obligations have been imposed on a person elsewhere to determine what obligations he will now have in Indiana. The Privileges or Immunities Clause of the Fourteenth Amendment prohibits this differential treatment. |
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| Gonzalez v. Rosen |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2290 Opinion Date: January 4, 2021 Judge: Steven M. Colloton Areas of Law: Criminal Law, Immigration Law |
| Herrera's husband fraudulently used the identity of a lawful permanent U.S. resident (LPR) to become a citizen. Herrera obtained LPR status as the wife of a citizen and became a citizen. Herrera's four children are U.S. citizens. In 2011, Herrera was convicted of second-degree theft. The government discovered Herrera’s false statement. She pleaded guilty to naturalization fraud, 18 U.S.C. 1425(a). The district court revoked her citizenship and restored her to LPR status, 8 U.S.C. 1451(e). If an alien commits fraud or misrepresents a material fact to gain a benefit under the immigration laws, she may be deported, 8 U.S.C. 1182(a)(6)(C)(i); 1227(a)(1)(A). Herrera sought a waiver available to aliens who committed immigration fraud but are the parent of a citizen and separately sought cancellation of removal as an LPR. DHS added a charge of removability for convictions of crimes involving moral turpitude based on Herrera's theft conviction, then withdrew the charge of removability for immigration fraud. The BIA affirmed that she was ineligible for a fraud waiver because she was no longer charged under the fraud provision and was ineligible for cancellation of removal because she had obtained her LPR status by fraud. The Eighth Circuit denied relief, rejecting Herrera’s argument that DHS could not withdraw the fraud charge because it had already been sustained by the IJ. The government is permitted to adjust the charges against an alien during the immigration court case. |
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| Harris v. Wallace |
| Court: US Court of Appeals for the Eighth Circuit Docket: 18-3717 Opinion Date: January 5, 2021 Judge: Jane Louise Kelly Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| Harris pleaded guilty to first-degree assault. In 2012, the Circuit Court of Scott County, Missouri imposed a 15-year sentence, ordering that it run concurrently with Harris’s recently-imposed 25-year federal sentence, imposed after he pleaded guilty to interference with commerce by threat or violence, possession of a firearm in furtherance of a crime of violence, and being a convicted felon in possession of ammunition. His federal sentence, which was silent on whether it was to be served consecutively or concurrently, was later reduced to 183 months, in light of the Supreme Court’s Johnson decision. Harris is in state custody, receiving credit only against his state sentence. He will begin serving his federal sentence after he completes his state sentence and is transferred to the Bureau of Prisons. Despite the state court’s order, Harris will serve consecutive, not concurrent, sentences. Harris sought habeas relief, 28 U.S.C. 2254. The district court denied relief. The Eighth Circuit reversed. Harris alleged sufficient facts to apprise the court and the state of a distinct basis for his claim—that Plea Counsel advised that his 25-year federal sentence would “swallow” up any state sentence he would receive for pleading guilty to assault. On remand, the district court must determine whether Harris procedurally defaulted that claim. |
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| United States v. Brooks-Davis |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2876 Opinion Date: January 7, 2021 Judge: James B. Loken Areas of Law: Criminal Law |
| The Eighth Circuit affirmed defendant's conviction and sentence for two counts of aiding and abetting a felon in possession of a firearm. The court held that the evidence was sufficient to support defendant's conviction where the evidence showed he constructively possessed the Glock pistol in the Air Jordan bag and was in joint constructive possession of three other handguns. The court also held that there was no plain Rehaif error where defendant cannot show that the district court's failure to include a Rehaif instruction affected his substantial rights or seriously affected the fairness, integrity, or public reputation of the proceedings. Finally, the district court did not err by imposing a sentencing enhancement under USSG 2K2.1(b)(1) for possessing three to seven firearms. |
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| United States v. Stephen |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-1966 Opinion Date: January 4, 2021 Judge: Raymond W. Gruender Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| Ellison, remodeling Stephen’s house, noticed a USB drive on the toilet tank. Ellison had researched hidden recording devices following a break-in and recognized it as a hidden camera. Ellison took the USB home but did not view its contents. The next morning, Ellison returned to Stephen’s home and discovered a young boy asleep. Stephen, a youth basketball coach, arrived with another boy. Returning home, Ellison viewed the USB’s contents, finding multiple videos depicting children secretly recorded in various stages of undress. Ellison delivered the USB to the Monticello Police. The Iowa Division of Criminal Investigation took possession of the USB, obtained a warrant, and viewed its contents. A warranted search of Stephen’s homes uncovered more secret recording devices and a hard drive containing approximately 400 visual depictions of nude minor boys, including images of Stephen molesting unconscious victims. Indicted for sexually exploiting a child, 18 U.S.C. 2251(a), possessing child pornography, section 2252(a)(4)(B), and transporting child pornography, section 2252(a)(1), Stephen unsuccessfully moved to suppress the evidence. The Eighth Circuit affirmed the denial of the motion and Stephen’s 2,160-month sentence. The Fourth Amendment does not apply to private-citizen searches unless that private citizen acted as a government agent. Ellison was acting out of civic duty; even if Ellison intended to assist law enforcement, it would not be enough to establish he was a government agent. The police chief had probable cause to take the USB from Ellison. |
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| Wiseman v. Wachendorf |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2393 Opinion Date: January 5, 2021 Judge: Steven M. Colloton Areas of Law: Criminal Law |
| Under a prisoner transfer arrangement, petitioner is serving a thirty-year sentence imposed in Arkansas state court in 1996. After petitioner was sentenced in Arkansas, the federal government prosecuted him for offenses committed before his incarceration, and a federal court in New Mexico sentenced him in September 1997 to a term of 595 months' imprisonment. The federal government briefly assigned petitioner to a federal prison, but then concluded that he should have been returned to Arkansas and transferred him back there in October 1997. The Eighth Circuit affirmed the district court's denial of a petition for writ of habeas corpus based on petitioner's claim that time served since September 1997 on his Arkansas sentence should also be credited against his federal sentence. The court concluded that petitioner is not entitled to credit against his federal sentence where the district court did not clearly err in finding that Arkansas transferred custody to the United States pursuant to a writ of habeas corpus ad prosequendum; the federal government's mistaken retention of custody does not constitute an assumption of primary jurisdiction where the State never intended to relinquish jurisdiction and the error was quickly rectified; and a detainer does not alter the custody status of a prisoner. Finally, the court held that the district court did not err in denying petitioner's motion for appointment of counsel. |
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| United States v. Grimaldo |
| Court: US Court of Appeals for the Ninth Circuit Docket: 19-50151 Opinion Date: January 7, 2021 Judge: Kenneth K. Lee Areas of Law: Criminal Law |
| Defendant was arrested with nearly a quarter pound of methamphetamine and an inoperable pistol on his person. He was found guilty of simple possession of methamphetamine and pleaded guilty for being a felon-in-possession of a firearm. The district court sentenced defendant to 120-months in prison after applying a four-level sentencing enhancement for possession of a weapon in connection with another felony (simple possession) under USSG 2K2.1(b)(6)(B). After determining that defendant did not waive the issue, the Ninth Circuit held that the district court erred in concluding that defendant's pistol emboldened him to possess methamphetamine where the district court made no findings that defendant's firearm made his drug possession more likely. The panel vacated the 120-month sentence on the felon-in-possession count and remanded for further consideration. The panel also vacated the concurrent 36-month sentence for the possession count because the parties agree that the district court erred in exceeding the maximum applicable sentence. The panel remanded for further proceedings. Finally, the panel explained that nothing in the plain text of Fed. R. Crim. P. 32 requires excluding from a presentence report prior arrests for which there was no conviction. Therefore, the panel concluded that the district court did not abuse its discretion in denying defendant's motion to strike portions of his presentence report. |
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| United States v. Henry |
| Court: US Court of Appeals for the Ninth Circuit Docket: 19-50080 Opinion Date: January 6, 2021 Judge: Rosenthal Areas of Law: Criminal Law |
| The Ninth Circuit affirmed defendant's conviction and sentence for one count of conspiracy to commit bank robbery under 18 U.S.C. 371; five counts of armed bank robbery under 18 U.S.C. 2113(a) and (d); two counts of bank robbery under section 2113(a); and three counts of brandishing a firearm during the bank robberies under 18 U.S.C. 924(c)(1)(A)(ii). The panel held that defendant's assertion of his rights and pretrial motion to dismiss for Speedy Trial Act violations preserved the issue for appeal; the district court made sufficient findings to support its three ends-of-justice continuances under 18 U.S.C. 3161(h)(7); and the delay of 315 days was not prejudicial where each continuance was supported by detailed information and it was reasonable to allow the codefendants and defendant additional time to adequately prepare. The panel rejected defendant's claim that United States v. Davis, 139 S. Ct. 2319 (2019), and Honeycutt v. United States, 137 S. Ct. 1626 (2017), prohibit using section 2113(d) convictions based on a Pinkerton theory of liability as predicates for section 924(c) convictions. Although defendant did not waive this claim, the panel concluded that it need not decide which liability theory the jury used to convict, because defendant's convictions are valid under either. The panel also rejected defendant's claim that his section 924(c) convictions should be vacated because the jury instructions and verdict form for the predicate section 2113(d) convictions only required the jury to find a conspiracy to commit generic bank robbery. The panel concluded that the district court instructions on aiding-and-abetting liability were not plainly erroneous, and defendant's conviction on either a Pinkerton or an aiding-and-abetting theory was amply supported. Finally, the panel concluded that defendant preserved the claim that the indictment failed to allege the necessary elements of armed bank robbery under section 2113(d). The panel explained that although the failure to include the "use of a weapon" element in the verdict form for armed robbery was incorrect, there is no basis for reversal where the district court correctly instructed the jury on the use of a dangerous weapon. |
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| United States v. Kushmaul |
| Court: US Court of Appeals for the Eleventh Circuit Docket: 20-10924 Opinion Date: January 6, 2021 Judge: Per Curiam Areas of Law: Criminal Law |
| A tip came in that a Kik app user was distributing child pornography. The tip included the user's IP address and Gmail account, which was tied to Kushmaul, who had been convicted of “Promoting the Sexual Performance of a Child” in Florida in 2016. Officers went to Kushmaul’s address, which was listed in the Florida Sex Offender Registry. Kushmaul handed over his cell phone. The officers discovered a Snapchat3 account that was not listed on Kushmaul’s sex offender registry. Kushmaul went to the Bay County Sheriff’s Office, where he was advised of his Miranda rights. He subsequently admitted to viewing child pornography. Kushmaul signed a “consent to search form,” and an officer downloaded Kushmaul’s cell phone, revealing 20 images of “child sexual abuse material.” He pled guilty under 18 U.S.C. 2252A(a)(2), (b)(1) and 2252A(a)(5)(b), (b)(2), for distribution and possession of child pornography. Although the statutory minimum sentence under section 2252A(a)(2) is only five years, that minimum increases to 15 years if the offender “has a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Kushmaul was sentenced to the 180-month mandatory minimum. The Eleventh Circuit affirmed, rejecting Kushmaul’s claims that his Florida offense does not qualify for sentencing enhancement because the Florida offense is broader than its federal counterpart. |
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| United States v. Driscoll |
| Court: US Court of Appeals for the District of Columbia Circuit Docket: 19-3074 Opinion Date: January 5, 2021 Judge: Wilkins Areas of Law: Criminal Law, White Collar Crime |
| ESPN published an article about Driscoll, the former president of a nonprofit organization, indicating that a former employee planned to file an IRS whistleblower complaint that might lead to charges of embezzlement and fraud against Driscoll. The following month, Driscoll participated in a child custody hearing against her ex-husband. Valdini, an IRS criminal investigator, watched testimony by a cousin of Driscoll’s ex-husband who was also the IRS whistleblower, and from Driscoll, telling Driscoll that he was a member of the public. Valdini had lunch with Driscoll’s ex-husband, who offered to aid in the criminal investigation. Driscoll was indicted for fraud and tax evasion. Defense counsel asked the court to authorize discovery on whether the government had used a civil “audit” process to gather information for Driscoll’s criminal case. In reply to the government's opposition, Driscoll raised the custody hearing for the first time. The court denied her motion. At trial, Valdini’s conduct at the child-custody hearing was revealed. Government counsel, previously unaware of Valdini’s lunch outing, disclosed Valdini’s actions to the court, which held an evidentiary hearing. Driscoll unsuccessfully moved for a mistrial or dismissal, arguing that Valdini’s presence at the child-custody hearing violated her right against self-incrimination and that the government violated Brady by failing to disclose Valdini’s conduct. The D.C. Circuit vacated Driscoll’s convictions, finding that the court’s anti-deadlock jury instructions likely coerced a unanimous verdict. The court found no prejudice on the Brady claim and did not address Driscoll’s pretrial discovery or Fifth Amendment arguments. |
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| California v. Windfield |
| Court: California Courts of Appeal Docket: E055062C(Fourth Appellate District) Opinion Date: January 4, 2021 Judge: Manuel A. Ramirez Areas of Law: Constitutional Law, Criminal Law, Juvenile Law |
| Defendants Harquan Johnson and KeAndre Windfield were each convicted of one count of murder and one count of attempted murder, and assault with a semi-automatic firearm, along with gun discharge and gang enhancement allegations as to the murder and attempted murder counts. The charges arose from the shooting of two members of their own gang, the Ramona Blocc Hustlas, resulting in the death of one of them. Both defendants were sentenced to prison for 90 years to life. They appealed raising various claims. In the original opinion, filed August 2014, the Court of Appeal affirmed both defendants' convictions, but reversed Johnson’s sentence pursuant to California v. Gutierrez, 58 Cal.4th 1354 (2014), because, as a juvenile at the time of the crime, his sentence of 90 years to life was the functional equivalent of a term of life without possibility of parole and we directed other modifications of the sentence and abstracts of judgment. In November 2014, the California Supreme Court denied both defendants’ petitions for review, but, on its own motion, issued a grant-and-hold of review as to defendant Johnson, for consideration pending review in In re Alatriste, S214652, In re Bonilla, S214960, and California v. Franklin, S217699. In May 2016, the Supreme Court issued its decision in Franklin (63 Cal.4th 261 (2016)), and retransferred his case to the Court of Appeal with directions reconsider Johnson’s sentence. The appellate court issued a second opinion in September 2016, affirming those portions of the original opinion pertaining to issues not subject to the grant and hold, and reconsidered Johnson's sentence. Defendants again successfully petitioned for review; the Supreme Court retransferred the cases to the Court of Appeal with directions to reconsider the case in light of California v Canizales, 7 Cal.5th 591 (2019), and California v. Perez, 3 Cal.App.5th 612 (2016). Judgment was modified per direction, and defendants again appealed. In April 2020, the Supreme Court again transferred this matter to the appellate court to reconsider in light of Senate Bill 620 (Stats. 2017, ch. 682). After reconsideration, the Court of Appeal affirmed both defendants' convictions. As to Windfield, a hearing was warranted for both defendant and the State to make an accurate record of defendant’s characteristics and circumstances at the time of the offense, and to amend his abstract of judgment fix a date error. As to Johnson, the case was remanded for the limited purpose of a fitness hearing: if not fit, Johnson's convictions were to be reinstated; if the juvenile court found it would not have transferred Johnson to be tried as an adult, it should treat his convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion. In addition, the court could exercise its discretion whether to strike or dismiss any of the firearm enhancements within the meaning of Senate Bill No. 620. |
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| In re Morse |
| Court: California Courts of Appeal Docket: D077483(Fourth Appellate District) Opinion Date: January 5, 2021 Judge: Patricia D. Benke Areas of Law: Constitutional Law, Criminal Law |
| William Morse petitioned for habeas relief from a superior court order which found under the Sexually Violent Predators Act (SVPA), there was probable cause to believe petitioner was likely to engage in sexually violent predatory behavior without treatment or custody. The court sustained petitioner’s objection based on California v. Sanchez, 63 Cal.4th 665 (2016) to portions of the experts’ psychological evaluations, but nonetheless found the remaining evidence was sufficient to support a finding that petitioner met the criteria of a sexually violent predator (SVP). Petitioner argued the court correctly found Sanchez applied at the probable cause hearing; that, after sustaining his hearsay objection to the experts’ evaluations, there was insufficient evidence to support the court’s probable cause finding; and that the State “waived” their right to assert Welfare & Institutions Code section 6602 was an implied exception to the hearsay rule by failing to raise this specific ground at the hearing. Therefore, petitioner argues the petition had to be dismissed. After review, the Court of Appeal determined the court erred in sustaining petitioner’s hearsay objection at the section 6602 hearing. The Court found the SVPA as a whole, and section 6602 in particular, evinced a legislative intent to allow a court to consider hearsay in the experts’ evaluations when making a probable cause determination. "In our view, requiring an evaluator to rely on nonhearsay only in preparing his or her evaluation of a person, or requiring the People to produce at an interim probable cause hearing independent foundational evidence to support the historical information relied on by evaluators, would undermine the purpose of such a hearing and the SVPA in general. . . . At an SVP trial, the People must still proffer nonhearsay evidence in proving beyond a reasonable doubt that a person is an SVP subject to civil commitment." The Court concluded there was ample evidence in the record to support the court’s probable cause finding. Petitioner's writ petition was denied. |
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| People v. Choi |
| Court: California Courts of Appeal Docket: B301093(Second Appellate District) Opinion Date: January 7, 2021 Judge: Tricia A. Bigelow Areas of Law: Criminal Law |
| Defendant was convicted of three counts of stalking and two counts of criminal threats, and sentenced to seven years, which included two one-year prior prison enhancements under Penal Code section 667.5, subdivision (b). Defendant's conviction stemmed from his erratic and threatening behavior towards other students in his paralegal studies program. The Court of Appeal held that the evidence was sufficient to support the criminal threats counts; the trial court properly excluded one defense witness; and, despite the trial court's initial statement, the record reflects that it did exercise its discretion to deny defendant's request for advisory counsel based upon the characteristics of this defendant and this case. The court remanded for the trial court to strike the two one-year enhancements under Senate Bill No. 136 and to resentence defendant. The court also ordered a correction to the criminal conviction assessment in the abstract of judgment. The court affirmed in all other respects. |
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| People v. Cook |
| Court: California Courts of Appeal Docket: B301970(Second Appellate District) Opinion Date: January 5, 2021 Judge: Tricia A. Bigelow Areas of Law: Criminal Law |
| The Court of Appeal affirmed defendant's conviction for dissuading a witness from reporting a crime. The court held that the evidence was sufficient to support defendant's conviction where defendant was convicted of violating Penal Code section 136.1, subdivision (b)(1); he was not charged with or convicted of violating section 136.1, subdivision (c). Therefore, the prosecutor, was not required to prove defendant acted knowingly and maliciously. In this case, while defendant's mother tried to call 911 to report that defendant was fighting with his brother, he ripped the phone off the wall and threw it to the ground, which broke the phone and disconnected the call. The court concluded that substantial evidence supported the jury's verdict. |
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| People v. Gonzalez |
| Court: California Courts of Appeal Docket: B297509(Second Appellate District) Opinion Date: January 6, 2021 Judge: Wiley Areas of Law: Criminal Law |
| The Court of Appeal affirmed defendant's conviction for robbing three people, but struck the gang enhancements for lack of substantial support. In this case, defendant snatched necklaces from three people. The court concluded that the gang expert had no logical basis for his opinion that defendant was "assisting his gang in having a feared reputation." The court explained that this claim made no sense when nothing linked these crimes to a gang. Furthermore, the expert conceded that no evidence showed defendant shared robbery booty with the gang. Finally, the court concluded that there was no instructional error, and that defendant forfeited his various challenges to the fines and fees assessed against him by failing to object. |
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| People v. Mackreth |
| Court: California Courts of Appeal Docket: H046266M(Sixth Appellate District) Opinion Date: January 5, 2021 Judge: Franklin D. Elia Areas of Law: Criminal Law |
| Officer Meyer, wearing a uniform and badge, responded to a 911 call. Outside a store, a bystander said: "The guy ran in the store and was stuffing all kinds of shit down his pants" and identified Makreth behind the counter. Meyer was concerned that Makreth might have a weapon and that a robbery was planned. Mackreth ran into the storeroom. Meyer called for backup with lights and sirens. Mackreth emerged with “something” in his hands. Meyer drew his taser and yelled, “Get on the ground.” Mackreth looked “puzzled.” Eventually, he got on the ground but “popped up.” Meyer fired his taser. Mackreth ran around, despite efforts to stop him. More officers arrived. Several struggles ensued, during which officers were injured. Mackreth was under the influence of methamphetamine at an “abuse level.” Methamphetamine was found in his car. Mackreth was placed on probation after he was convicted of misdemeanor resisting arrest, vandalism, and being under the influence of methamphetamine. The court of appeal affirmed, upholding a jury instruction that he could be convicted of resisting arrest if he knew or “should have known” that the person he resisted was a police officer. The court subsequently remanded. Mackreth may be entitled to relief under Assembly Bill 1950, effective on January 1, 2021, which amended Penal Code section 1203a to limit to one year the length of probation for a misdemeanor conviction. One court has held that this amendment is retroactive to all non-final cases. |
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| People v. Skiff |
| Court: California Courts of Appeal Docket: B296037(Second Appellate District) Opinion Date: January 4, 2021 Judge: Tangeman Areas of Law: Criminal Law |
| The Manse, a Residential Care Facility for the Elderly (RCFE) admitted a resident diagnosed with dementia in violation of the conditions of the facility’s license. When an RCFE admits a resident with dementia, it must file a dementia care plan with state regulators addressing, physical plant requirements (including door alarms) and staff training. The Manse did not have an operable dementia care plan. Despite growing evidence of his confusion, the resident was allowed to wander through the community unsupervised. When the resident ran in front of a car on a busy highway, Skiff, the CEO of the RCFE was found criminally responsible for his death. The court of appeal affirmed Skiff’s convictions for elder abuse (Pen. Code 368(b)(1)) and involuntary manslaughter (Pen. Code 192(b)) with findings that the victim suffered great bodily injury and that elder abuse proximately caused the victim’s death. The court rejected Skiff’s arguments that he lacked the intent required for involuntary manslaughter and elder abuse and that laws applicable to RCFEs prohibited him from imposing restrictions sufficient to prevent the fatal accident. The Manse had been repeatedly cited for violations related to residents with dementia or cognitive impairments. There was testimony that Skiff told a nurse to get the doctor to change the resident’s diagnosis. |
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| Gordon v. Delaware |
| Court: Delaware Supreme Court Docket: 461, 2019 Opinion Date: January 6, 2021 Judge: Traynor Areas of Law: Constitutional Law, Criminal Law |
| As Delaware State Police (“DSP”) Trooper Brian Holl was on patrol in Kent County, he received a call from DSP Detective Thomas Macauley, a member of a “drug task force” in New Castle County. Detective Macauley’s and his brother Detective Michael Macauley’s were involved in a wiretap investigation known as “Operation Cutthroat.” Detective Thomas Macauley told Trooper Holl that the task force had been surveilling a blue Mazda that was, at the time of the call, southbound on Delaware State Route 1 heading towards Kent County. Detective Macauley shared with Detective Holl the reason for the surveillance of the Mazda: the surveilling officers had just “watched a drug transaction” between the occupants of the car and one of Operation Cutthroat’s targets. Because the Macauleys wished to maintain the secrecy of the ongoing wiretap investigation, they enlisted Trooper Holl’s assistance in the apprehension of the blue Mazda’s occupants. Detective Macauley’s instructions to Trooper Holl were: "To keep the integrity of the investigation of the wiretap investigation, I need a traffic stop. That means you need to . . . develop your own probable cause and go from there. Nothing about the wiretap can be revealed, obviously, for the integrity of the investigation." Trooper Holl believed he found one: according to his Affidavit of Probable Cause, the Mazda’s headlights were not activated despite “inclement weather.” Because of the perceived headlight infraction, Trooper Holl initiated a motor vehicle stop by activating his emergency lights. The stop lead to defendant Thomas Gordon's arrest, ultimately on drug trafficking-related charges. The issues this case presented for the Delaware Supreme Court's review centered on the "collective knowledge" doctrine, and whether the trial court’s consideration of the lawfulness of a warrantless detention and arrest was constrained by the facts alleged in a later filed arrest-warrant affidavit. The Supreme Court held that the trial court applied the correct legal standard when it determined that based on the collective knowledge of the officers involved, Trooper Holl had a reasonable suspicion the car in which defendant was traveling contained contraband, and was therefore subject to detention. In making this determination, the court did not err by considering facts extraneous to the subsequently filed arrest-warrant affidavit. |
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| Jackson v. State |
| Court: Florida Supreme Court Docket: SC20-1098 Opinion Date: December 31, 2020 Judge: Per Curiam Areas of Law: Criminal Law |
| The Supreme Court imposed sanctions upon Defendant, holding that, based on his persistent history of filing pro se petitions that were meritless or otherwise inappropriate for the Supreme Court's review, Defendant abused the judicial process and burdened the Court's limited judicial resources. This case was before the Supreme Court on Defendant's petition for a writ of mandamus. The Supreme Court denied the petition and, concurrently with the denial, expressly retained jurisdiction to pursue possible sanctions. The Court directed Defendant to show cause why he should not be barred from filing any further requests for relief. The Court held that Defendant's response failed to show cause why sanctions should not be imposed. |
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| Stanley v. State |
| Court: Supreme Court of Hawaii Docket: SCWC-18-0000141 Opinion Date: January 5, 2021 Judge: Sabrina S. McKenna Areas of Law: Criminal Law |
| The Supreme Court vacated the judgment of the intermediate court of appeals (ICA) affirming the circuit court's denial of Defendant's second Haw. R. Penal. P. 40 petition for post-conviction relief, holding that the ICA erred in affirming the circuit court's ruling that Defendant failed to state a colorable claim that he was convicted of attempted reckless manslaughter in his second petition. Defendant's second petition arose from a 1988 conviction for two counts of attempted first degree murder, one count of attempted first degree murder, one count of attempted manslaughter, and one count of place to keep firearm. In his second Rule 40 petition, Defendant argued that his conviction of attempted manslaughter was based on reckless conduct and therefore, his sentence was illegal. The circuit court denied the petition, and the ICA affirmed. The Supreme Court vacated the ICA's judgment and Defendant's 1988 conviction for attempted manslaughter, holding (1) Defendant was convicted of attempted reckless manslaughter and was therefore subject to an illegal sentence for a non-existent crime; and (2) the presumptively harmful erroneous attempted reckless manslaughter jury instruction was not harmless beyond a reasonable doubt. |
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| Rahim v. District Attorney for the Suffolk District |
| Court: Massachusetts Supreme Judicial Court Docket: SJC-12884 Opinion Date: December 31, 2020 Judge: Lowy Areas of Law: Communications Law, Criminal Law |
| The Supreme Judicial Court held that certain materials requested and received by the office of the district attorney for the Suffolk district from the Federal Bureau of Investigation (FBI) related to a fatal shooting by federal and state law enforcement officials were exempt from disclosure under Mass. Gen. Laws ch. 4, 7(f). After Usaamah Rahim was killed, the district attorney opened an investigation into his death, aided by various materials provided by the FBI. Plaintiff later filed a public records request seeking documents related to Rahim's death. When the district attorney refused to provide access to the FBI materials Plaintiff sued the district attorney seeking a declaration that the FBI records were public records that must be produced under Mass. Gen. Laws ch. 66, 10. The judge granted summary judgment for the district attorney, concluding that the FBI materials were not public records. The Supreme Judicial Court held (1) the FBI materials qualified as public records under the public records law; (2) the materials were not exempt from disclosure under Mass. Gen. Laws ch. 4, 7(a) but some materials qualified for exemption under Mass. Gen. Laws ch. 4, 7(f); and (3) the remainder of the materials must be remanded to determine whether exemption (f) applies. |
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| State v. Casillas |
| Court: Minnesota Supreme Court Docket: A19-0576 Opinion Date: December 30, 2020 Judge: Hudson Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court reversed the decision of the court of appeals reversing the judgment of the district court finding that Minn. Stat. 617.261 was unconstitutional under the First Amendment, holding that the statute does not violate the First Amendment because it survives strict scrutiny. Defendant was charged with a felony-level violation of Minn. Stat. 617.261, the statute that criminalizes the nonconsensual dissemination of private sexual images. Defendant moved to dismiss the charge on constitutional grounds. The district court denied the motion, concluding that the conduct regulated by the statute is entirely unprotected obscene speech and that any degree of overbreadth was insubstantial. The court of appeals reversed, concluding that the statute is unconstitutionally overbroad because it criminalizes a substantial amount of protected speech. The Supreme Court reversed, holding (1) section 617.261 prohibits more than obscenity; but (2) the restriction does not violate the First Amendment because it is justified by a compelling government interest and is narrowly tailored to serve that interest. |
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| City of Missoula v. Pope |
| Court: Montana Supreme Court Citation: 2021 MT 4 Opinion Date: January 5, 2021 Judge: Beth Baker Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the district court affirming the order of the City of Missoula Municipal Court denying Appellant's motion to dismiss a petition to revoke sentence, holding that the district court correctly affirmed the municipal court's revocation of Appellant's suspended sentence. In 2017, the City filed a petition to revoke Appellant's sentence for Appellant's compliance violations. Appellant moved to dismiss the petition, arguing that the amendment to Mont. Code Ann. 46-18-2013 removed the municipal court's authority to revoke suspended sentences for compliance violations without first showing the probation office had exhausted all statutory alternatives. The municipal court denied the motion and revoked and reimposed Appellant's twelve-month suspended sentence, concluding that the 2017 changes to the statute do not apply to misdemeanors. The district court affirmed, holding (1) the 2017 amendments to section 46-18-2013 certain only to revocation of felony probation and parole; and (2) the municipal court acted within its authority when it revoked Appellant's suspended sentence for violating its terms and conditions. |
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| In re D.A.D. |
| Court: Montana Supreme Court Citation: 2021 MT 2 Opinion Date: January 5, 2021 Judge: Gustafson Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed the district court's findings of fact, conclusions of law, and order terminating Mother's parental rights to her three children, holding that Mother's attorney did not provide ineffective assistance of counsel. At issue was whether counsel provided constitutionally ineffective assistance when he stipulated to the request of the Department of Public Health and Human Services, Child and Family Services Division that no reunification services be provided to Mother. The Supreme Court affirmed the district court's termination of Mother's parental rights, holding (1) Mother was not prejudiced by any alleged failure on her attorney's part to object to the Department's request not to provide reunification services; (2) the district court had grounds to terminate Mother's parental rights and made the findings necessary to support termination; and (3) the district court did not err in finding that termination would be in the children's best interests. |
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| In re Dickey |
| Court: Montana Supreme Court Citation: 2021 MT 3 Opinion Date: January 5, 2021 Judge: Mike McGrath Areas of Law: Civil Procedure, Criminal Law |
| The Supreme Court affirmed the order of the district court vacating its prior order to expunge Justin Dickey's misdemeanor records, holding that the Montana Rules of Civil Procedure apply to proceedings brought under the Misdemeanor Expungement Clarification Act and that the district court properly determined that venue was not proper under Mont. Code Ann. 46-18-1105. Dickey filed a petition for expungement of his misdemeanor criminal records, referred only to "misdemeanor criminal record(s)" generally. The district court granted the petition. On reconsideration, the district court vacated its prior expungement order and dismissed the matter, determining that venue was improper. The Supreme Court affirmed, holding (1) the Rules of Civil Procedure apply to a proceeding brought under the Expungement Act; and (2) the district court did not err in determining that Dickey's prior speeding violation in Kalispell was insufficient to establish proper venue in the Eleventh Judicial District for expungement of misdemeanors under section 46-18-1105. |
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| State v. Felde |
| Court: Montana Supreme Court Citation: 2021 MT 1 Opinion Date: January 5, 2021 Judge: Beth Baker Areas of Law: Criminal Law |
| The Supreme Court affirmed Defendant's three convictions for sexual abuse of children (possession of child pornography), holding that Mont. Code Ann. 46-11-410(2)(a) does not prohibit multiple convictions for possession of child pornography when the images were discovered on a single day on a single device. Defendant admitted to downloading several photos and videos depicting child pornography and pled guilty to four counts, reserving his right to appeal the district court's denial of his motion to dismiss as to three of the counts. The Supreme Court affirmed, holding that the district court properly concluded that Mont. Code Ann. 45-5-625(1)(e) allows conviction for each image of child pornography that Defendant possessed. |
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| State v. Gideon |
| Court: Supreme Court of Ohio Citation: 2020-Ohio-6961 Opinion Date: December 31, 2020 Judge: Stewart Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law |
| The Supreme Court reversed the court of appeals' decision reversing Defendant-doctor's convictions on the ground that the trial court should have granted Defendant's motion to suppress incriminating answers he gave during a medical board investigation, holding that the State may use incriminating answers given by a doctor during a medical board investigation in a subsequent criminal prosecution of the doctor. Defendant was convicted of three third-degree misdemeanor counts of sexual imposition. The court of appeals reversed the denial of Defendant's motion to suppress statements he had made to the medical board investigator as having been illegally compelled in violation of the Fifth Amendment. The Supreme Court reversed, holding (1) a medical license is a property right, the threatened loss of which is a form of coercion that can compromise the constitutional privilege against self-incrimination; (2) for coercion to be sufficient to warrant the suppression of statements made during a medical board investigative interview, the person making the statements must subjectively believe that asserting the privilege against self-incrimination could cause the loss of the person's medical license, and that belief must be objectively reasonable; and (3) Defendant's belief that he could lose his medical license if he refused to truthfully answer questions posed by the medical-board investigator was not objectively reasonable. |
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| State v. Seidel |
| Court: South Dakota Supreme Court Citation: 2020 S.D. 73 Opinion Date: December 30, 2020 Judge: Devaney Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed Defendant's convictions and sentences for kidnapping, rape, aggravated assault, and commission of a felony with a firearm, holding that there was no error or abuse of discretion. Specifically, the Supreme Court held (1) the circuit court did not abuse its discretion when it granted the State's motion in limine regarding erotic asphyxiation; (2) Defendant's prosecutorial misconduct claims were unfounded; (3) the circuit court did not err in denying Defendant's motion for judgment of acquittal on all counts on which Defendant was convicted; and (4) Defendant's seventy-five-year sentence was not grossly disproportionate in violation of the Eighth Amendment. |
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| Hicks v. State |
| Court: Wyoming Supreme Court Citation: 2021 WY 2 Opinion Date: January 6, 2021 Judge: Kautz Areas of Law: Criminal Law |
| The Supreme Court affirmed Defendant's conviction of third-degree sexual abuse of a minor, TM, holding that the district court did not commit plain error by admitting evidence of TM's out-of-court statements about the abuse. On appeal, Defendant argued that the district court erred by admitting into evidence TM's prior consistent out-of-court statements and by allowing the jury to review, during deliberations, a clip of a muted video of Defendant and a police officer walking through the bedroom where the abuse occurred. The Supreme Court affirmed, holding (1) the district court's admission of TM's out-of-court statements about the abuse was proper; and (2) Defendant failed to demonstrate that there was a reasonable probability the verdict would have been more favorable to him if the district court had refused the jury's request to view the contested video. |
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| Stroble v. State |
| Court: Wyoming Supreme Court Citation: 2020 WY 158 Opinion Date: December 31, 2020 Judge: Kate M. Fox Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the district court revoking Defendant's probation, holding that the State presented sufficient evidence to prove that Defendant violated the terms of his probation, and the district court did not abuse its discretion by ordering the revocation. Defendant pleaded guilty to several burglaries and was sentenced to a term of imprisonment, suspended in favor of probation. The State later moved to revoke Defendant's probation not he grounds that he violated the terms by committing the crime of attempted burglary. The district court revoked Defendant's probation. The Supreme Court affirmed, holding that the district court did not abuse its discretion when it determined that the State had proved that Defendant violated his probation by a preponderance of the evidence. |
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