Should the Law Prohibit Anti-Fat Discrimination?

SHERRY F. COLB

Cornell law professor Sherry F. Colb explores the problem of fat discrimination and considers what a law of anti-fat discrimination might look like, and why it could be important. Professor Colb explores the similarities and differences between legally protected characteristics and fatness and expresses optimism that a change in law could persuade some individuals to recognize fat people for the colleagues, students, friends, partners, and neighbors that they are.

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Members-Only Unionism is Lawful and Can Make Sense

SAMUEL ESTREICHER

NYU law professor Samuel Estreicher responds to an op-ed by Ron Holland criticizing the recent announcement of a members-only union of 300 Google workers. Professor Estreicher points out several errors and assumptions in Mr. Holland’s piece, and he argues that, in sum, there is no good public policy case for barring or restricting members-only unionism.

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Feliciano-Rodriguez v. United States

Court: US Court of Appeals for the First Circuit

Docket: 15-1964

Opinion Date: January 19, 2021

Judge: Casper

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

The First Circuit affirmed the district court's denial of Petitioner's petition under 28 U.S.C. 2255 to vacate his sentence on the basis that he received ineffective assistance of counsel regarding his rejection of a plea offer, holding that Petitioner failed to show prejudice from any deficient performance by counsel. After a jury trial, Petitioner was found guilty of several charges arising out of a drug enterprise operating in a public housing project. Acting pro se, Petitioner filed a timely petition for postconviction relief, claiming that he received ineffective assistance of counsel. The district court denied the petition. The First Circuit affirmed, holding (1) Petitioner's counsel's performance was deficient when counsel failed to give Petitioner sufficient time to consider a plea offer and failed to advise him of the exposure to a life sentence; but (2) Petitioner failed to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984).

New Hampshire Lottery Commission v. Rosen

Court: US Court of Appeals for the First Circuit

Docket: 19-1835

Opinion Date: January 20, 2021

Judge: William Joseph Kayatta, Jr.

Areas of Law: Criminal Law, Gaming Law

The First Circuit held that the Wire Act's prohibitions are limited to interstate wire communications related to bets or wagers on sporting events or contests, thus affirming the district court's grant of Plaintiffs' motions for summary judgment. In 2011, the Office of Legal Counsel (OLC) of the U.S. Department of Justice (DOJ) issued a legal opinion concluding that the Wire Act's prohibitions were uniformly limited to sports gambling. In 2018, the OLC issued an opinion, which was later adopted by the DOJ, that all prohibitions in the Wire Act, with one exception, applied to all forms of bets or waters. In 2019, the New Hampshire Lottery Commission and one of its vendors commenced this action seeking relief under the Administrative Procedure Act and the Declaratory Judgment Act. The district court granted relief, ruling that the Wire Act was limited to sports gambling. The First Circuit affirmed, holding (1) this controversy is justiciable; and (2) the Wire Act applies only to interstate wire communications related to sporting events or contests.

United States v. Abell

Court: US Court of Appeals for the First Circuit

Docket: 20-1120

Opinion Date: January 15, 2021

Judge: Sandra Lea Lynch

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

The First Circuit affirmed the district court's order granting the government's request to garnish Appellant's husband's 401(k) account and apply the proceeds to his nearly four million dollar criminal restitution obligations, holding that Appellant had no vested legal interest in her husband's account. Appellant's husband (Husband) pleaded guilty to eight counts of wire fraud, money laundering, and unlawful monetary transactions. The district court sentenced him to a term of incarceration and ordered him to pay $3,879,750 in restitution. The government later asked the district court for a writ of garnishment directed at Husband's 401(k) plan, which Husband held individually in his own name. The district court rejected Appellant's objections and issued a garnishment order. The First Circuit affirmed, holding (1) Massachusetts law did not give Appellant a vested legal interest in Husband's 401(k) account; and (2) it was not plain error for the district court to issue the writ of garnishment without compensating Appellant for her contingent death benefit under the policy.

United States v. Flores-Quinones

Court: US Court of Appeals for the First Circuit

Dockets: 18-2029, 18-2030

Opinion Date: January 15, 2021

Judge: Sandra Lea Lynch

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's sentences imposed in connection with his guilty plea to being a felon in possession of a firearm, holding that the sentences were procedurally and substantively reasonable. Defendant pleaded guilty to being a felon in possession of a firearm. Defendant was sentenced to sixty months' imprisonment for that offense and to eighteen months' imprisonment for violating the conditions of his supervised release. Defendant appealed, challenging both the procedural and substantive reasonableness of his sentences, which were above the United States Sentencing Guidelines range. The First Circuit affirmed, holding that Defendant's variant sentences were both procedurally and substantively reasonable.

Kotler v. Jubert

Court: US Court of Appeals for the Second Circuit

Docket: 16-4191

Opinion Date: January 19, 2021

Judge: William J. Nardini

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

Former inmate Kotler sued prison officials, claiming that they planted a weapon in his housing area in retaliation for his activities on an inmate grievance committee. He also alleged violations of his due process rights in a disciplinary hearing over the incident. After a second remand, the district court dismissed Kotler’s due process claim as abandoned during prior appeals, and dismissed the alleged linchpin defendant, now-deceased Superintendent Donelli, finding that no one timely moved for substitution of Donelli’s successor after his death. A jury returned a defense verdict on Kotler’s retaliation claims. The Second Circuit affirmed in part and vacated in part. The dismissal of Donelli was proper; under FRCP 25(a), the 90-day deadline for a plaintiff to move to substitute a defendant is triggered by service of a notice on the plaintiff of the defendant’s death, regardless of whether that notice was also served upon the decedent’s successor or representative. The district court gave Kotler a fair trial on his retaliation claim. The court asked witnesses questions, limited Kotler’s questioning of a witness, and told Kotler to hurry up numerous times but in light of the entire record, the court’s questions were attempts to clarify and organize information. A supplemental jury instruction did not constitute fundamental error. Kotler did not abandon his due process claim during his previous appeals, so the district court erred in dismissing it.

United States v. Gatto

Court: US Court of Appeals for the Second Circuit

Docket: 19-0783

Opinion Date: January 15, 2021

Judge: Chin

Areas of Law: Criminal Law, Entertainment & Sports Law

The Second Circuit affirmed defendants' convictions for wire fraud and conspiracy to commit wire fraud in violation of 18 U.S.C. 1343, 1349. Defendants' conviction stemmed from their involvement in a scheme to defraud universities of athletic-based financial aid when they made secret cash payments to the families of college basketball recruits, thereby rendering the recruits ineligible to play for the universities. The court held that the evidence was sufficient to sustain the wire fraud convictions where defendants have not shown that the government failed to present evidence for any rational trier of fact to find, beyond a reasonable doubt, that there was a scheme to defraud. Furthermore, the jury was also presented with enough evidence for a rational trier of fact to find that the Universities' athletic-based aid was "an object" of their scheme. In this case, the jury could have reasonably found that defendants deprived the Universities of property -- athletic-based aid that they could have awarded to students who were eligible to play -- by breaking NCAA rules and depriving the Universities of relevant information through fundamentally dishonest means. The court also held that the district court did not abuse its discretion in its evidentiary rulings and did not commit reversible error in its instructions to the jury.

Bracey v. Superintendent Rockview SCI

Court: US Court of Appeals for the Third Circuit

Docket: 17-1064

Opinion Date: January 20, 2021

Judge: Krause

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

Bracey was convicted of murder in 1995. The prosecution relied heavily on the testimony of Plummer, an alleged eyewitness, and Bell, who claimed Bracey had confessed to him. At trial, both acknowledged that they had received favorable plea agreements in exchange for their testimony. Bracey's appeal and state habeas petitions were unsuccessful. In 2010, Bracey learned the Commonwealth had disclosed only some of the cases that were pending against Plummer and Bell. State courts rejected Bracey's petition under Pennsylvania’s Post Conviction Relief Act as time-barred; the factual basis of the claim could have “been ascertained [earlier] by the exercise of due diligence.” The district court dismissed Bracey's 2011 federal habeas petition as untimely under 28 U.S.C. 2244(d)(1)(D), reasoning that the plea agreements were public records; Brace filed his petition more than one year after the “factual predicate” for his Brady claim “could have been discovered through the exercise of due diligence.” The Third Circuit denied review. Three years later, the circuit held (Dennis) that a defendant has no burden to “scavenge for hints of undisclosed Brady material” even if the material part could be found in public records. The prosecution’s “duty to disclose under Brady is absolute.” Bracey moved for reconsideration under Rule 60(b). The Third Circuit vacated a summary denial. Dennis effected a material change in Circuit law. A defendant can reasonably expect—and is entitled to presume—that the government fulfilled its Brady obligations because the prosecution’s duty to disclose in no way hinges on defense efforts.

United States v. Alexander

Court: US Court of Appeals for the Third Circuit

Docket: 19-3423

Opinion Date: January 15, 2021

Judge: Michael A. Chagares

Areas of Law: Criminal Law

In September 2016, 10 co-defendants were charged with conspiracy to defraud the United States and theft of government property; nine were also charged with aggravated identity theft. They had filed false tax returns using stolen identities to obtain illegal refunds. One of the grand jurors was an alleged victim of defendant Liverpool. The juror’s full name was listed in the original indictment and in an exhibit presented to the grand jury. An IRS agent had interviewed the alleged victim eight months earlier. When the government identified Liverpool and the other defendants during the proceedings and asked whether the jurors knew any of the defendants, there were no positive responses. The alleged victim voted to return a true bill. The government learned of this in 2017. In September 2018, the government filed a superseding indictment, which was returned by a new grand jury weeks before trial, with only minor changes to the original indictment. The government disclosed the grand jury defect to three defendants who had pleaded guilty. Two defendants unsuccessfully moved to dismiss the indictments, arguing that the defect in the original grand jury violated the Fifth Amendment and that the superseding indictment was issued after the limitations period expired. The Third Circuit dismissed an appeal for lack of jurisdiction. The order is not a “final decision” of the district court, 28 U.S.C. 1291, and is not a “collateral” order subject to immediate review.

United States v. Lucas

Court: US Court of Appeals for the Third Circuit

Docket: 19-3427

Opinion Date: January 20, 2021

Judge: Hardiman

Areas of Law: Criminal Law, White Collar Crime

Lucas, a financial advisor, wanted to take over Burke Farm to obtain funding from a New Jersey program that paid property owners for easements to preserve farmland. Lucas submitted a fraudulent application to assume Burke Farm’s mortgage; obtained a $250,000 loan from a client under false pretenses; and forged a signature on the promissory note. The farm was owned by Diamond, LLC. Lucas, his wife, and his father used the proceeds of his fraud to acquire the LLC. Convicted of wire fraud, engaging in an illegal monetary transaction, loan application fraud, making false statements to the IRS, aggravated identity theft, obstructing a grand jury investigation, and falsifying records in a federal investigation, Lucas consented to the criminal forfeiture of Burke Farm in conjunction with his 60-month sentence. The LLC filed an unsuccessful objection, 21 U.S.C. 853(n)(6)(A), The Third Circuit reversed. The LLC acquired Burke Farm over five years before Lucas’s crimes and is a legitimate, separate legal entity from Lucas. The court noted that the government could have sought criminal forfeiture of Lucas’s interest in the LLC and civil forfeiture of his family’s interests. Although illicit proceeds were involved in the family’s acquisition of Diamond, the LLC acquired the farm legitimately years before. The government must turn square corners when it exercises its power to confiscate private property.

United States v. Bennett

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-4599

Opinion Date: January 21, 2021

Judge: Quattlebaum

Areas of Law: Criminal Law

The Fourth Circuit affirmed defendant's conviction for seventeen financial crimes and affirmed defendant's 240-month sentence. Defendant's conviction stemmed from her efforts to induce individuals to invest in her website and from her spending large sums of money on personal expenses unrelated to the website. The court held that the district court did not abuse its discretion by denying defendant's August 29, 2018 continuance motion where defendant had made multiple changes to her legal team and trial counsel stated that he would be prepared. The court upheld the criminal forfeiture order where any error regarding the securities fraud counts did not affect defendant's substantial rights; the district court did not plainly err in considering defendant's ability to pay the forfeiture judgment in addition to the restitution judgment; and the criminal forfeiture is not unconstitutionally excessive under the Eighth Amendment. Finally, the court held that defendant's sentence is procedurally and substantively reasonable. In this case, the totality of the sentencing transcript demonstrates that the district court carried out its statutory duty by listening to the positions advanced by both parties and making an individualized finding pursuant to the 18 U.S.C. 3553 factors. Furthermore, the district court thoroughly addressed the section 3553 factors, ultimately varying downward from the guidelines' range.

United States v. Lester

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-4310

Opinion Date: January 15, 2021

Judge: Richard E. Myers

Areas of Law: Criminal Law

The Fourth Circuit affirmed defendant's 360-month sentence imposed after he pleaded guilty to one count of sexual exploitation of a child. The court held that defendant's sentence is both procedurally and substantively reasonable. In this case, the district court did not err by failing to explain why it had rejected all of his non-frivolous arguments for a downward variance from the Guidelines range; the district court did not plainly err by applying a sentencing enhancement under USSG 2G2.1(b)(5) for violation 18 U.S.C. 2251(a) as "a parent, relative, or legal guardian of the minor involved in the offense;" and defendant's within-Guidelines sentence was substantively reasonable where the district court considered defendant's criminal history and his acceptance of responsibility, and did not impose an unreasonable sentence.

Brown v. Tarrant County

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-10594

Opinion Date: January 19, 2021

Judge: Duncan

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

In 1998, Brown was convicted of sexual assault and sentenced to 15 years’ imprisonment. Before Brown’s anticipated 2011 release, the state obtained a civil commitment order under the Texas Sexually Violent Predator Act. The Act required civilly committed persons to “reside in a Texas residential facility under contract with" OVSOM or another approved location and to participate in OVSOM-provided “treatment and supervision.” While confined at Fort Worth, Brown was indicted for violating his commitment terms and confined at the Tarrant County Jail as a pre-trial detainee. Brown posted bond and was transferred to the Cold Springs Jail, pursuant to a Memorandum of Understanding with OVSOM’s predecessor: Tarrant County (Sheriff Anderson) would provide “housing, meals, and other usual services” in the Work Release Program; OVSOM's predecessor had responsibility for “obtaining and paying for all programs" required for its clients. Brown, acquitted of violating his commitment terms, did not receive sex offender treatment at Cold Springs. Brown filed a 42 U.S.C. 1983 complaint, based on the 20-day confinement without sex offender treatment. The Fifth Circuit affirmed the dismissal of his claims against Tarrant County and Anderson. Anderson is entitled to qualified immunity and Brown states no claim against the county. At the time of the challenged conduct, there was a circuit split on whether sexually violent or dangerous offenders have a due process right to treatment. Anderson’s failure to provide Brown with sex offender treatment did not violate clearly established law.

United States v. Whitehead

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-11275

Opinion Date: January 21, 2021

Judge: Stephen Andrew Higginson

Areas of Law: Criminal Law

Defendant appealed the district court's denial of his motion for a sentence reduction under the First Step Act (FSA). On remand from the Fifth Circuit, the district court determined that defendant was not eligible for a sentence reduction and that, even if he were eligible, the district court would not reduce his sentence. The Fifth Circuit agreed with defendant that he is eligible for a sentence reduction because his indictment charged him with possession with intent to distribute more than 50 grams of crack cocaine. The court explained that section 404 of the FSA gives district courts the discretion to apply the Fair Sentencing Act of 2010 to reduce a prisoner's sentence for a "covered offense." In this case, section 2 of the FSA amended defendant's statute of conviction under 21 U.S.C. 841(b)(1)(A), by increasing the 50-gram threshold of cocaine base to 280 grams, and similarly amended section 841(b)(1)(B) by increasing the threshold quantity from five to 28 grams of cocaine base. Because defendant committed his section 841(b)(1)(A) offense in September 2005, and the statutory penalties for that offense were modified by the Fair Sentencing Act of 2010, the court concluded that defendant's offense is a "covered" one and thus he is eligible for a reduction in sentence under the FSA. However, the court held that defendant has not shown that the district court abused its discretion in denying his motion for a sentence reduction where the district court did not disregard the Fifth Circuit's mandate by denying a sentence reduction; the district court articulated its reasons and addressed the 18 U.S.C. 3553(a) sentencing factors; and the district court was not required to consider defendant's post-sentencing growth. Accordingly, the court affirmed the district court's judgment.

Lester v. Roberts

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-5011

Opinion Date: January 20, 2021

Judge: Murphy

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

In 2007, Hudson was shot and killed in his Louisville apartment. Detective Roberts sought DNA testing for items at the murder scene. DNA on a hat came back “consistent with a mixture” from Lester, Baker, and an unknown person. Lester and Baker had been implicated by a witness. The case went cold. In 2012, Roberts interviewed Sullivan, an inmate who had contacted the police years before about the murder. Sullivan had dated Hudson and had been friends with Jasmine (the woman living with Baker,). She stated that Jasmine had told her that Baker killed Hudson “over money.” Roberts then interviewed Jasmine, who stated that, on the day of the murder, she, Baker, and “Desean” went to Hudson’s apartment. The men emerged from the apartment with bandanas covering their faces. Baker confessed that he murdered Hudson. Jasmine could not recall “Desean’s” last name and pronounced his first name differently from how Lester pronounces it. She identified Lester’s photo array picture as “Desean.” At trial, Jasmine distanced herself from her identification of Lester. The jury acquitted Lester. Baker was convicted after a second trial. Lester had spent 20 months in jail and three months in home confinement. After his acquittal, he sued Roberts and the Louisville Metro Government. The Sixth Circuit affirmed the summary-judgment rejection of malicious-prosecution claims against Roberts. The Fourth Amendment and Kentucky law required only probable cause for Lester’s pretrial detention and prosecution. Jasmine’s earlier identification of Lester, combined with corroborating evidence like DNA, met that standard.

United States v. Hampton

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-3649

Opinion Date: January 19, 2021

Judge: Readler

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

Hampton pleaded guilty to conspiracy to distribute cocaine and aiding and abetting possession of a firearm in furtherance of the conspiracy. His 204-month sentence was eventually reduced to 180 months based on an amendment to the Sentencing Guidelines. Hampton sought a further reduction by way of compassionate release under 18 U.S.C. 3582(c)(1)(A). Hampton had to exhaust all administrative rights, or, alternatively, wait 30 days after the warden’s first “receipt of [his] request.” Hampton sought administrative relief but filed his motion with the district court before the warden’s 30-day response period had run. The court opted to hold the motion “until the 30-day window ran” and later denied Hampton’s motion “for the reasons stated” in the government’s brief, without further explanation. The Sixth Circuit remanded. Following enactment of the First Step Act, district courts facing defendant-filed motions seeking release under section 3582(c)(1)(A) should analyze whether extraordinary and compelling circumstances merit a sentence reduction and whether the applicable section 3553(a) factors warrant such a reduction. It is not clear whether the court denied Hampton’s motion based upon permissible grounds advanced by the government under section 3582(c)(1)(A)(i)—that Hampton failed to demonstrate extraordinary and compelling circumstances—or instead denied Hampton release due to a strict application of U.S.S.G. 1B1.13, which the government invoked, but which is no longer a mandatory step Hampton must satisfy.

United States v. Nelson

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-3154

Opinion Date: January 21, 2021

Judge: Per Curiam

Areas of Law: Criminal Law

Nelson pleaded guilty to distributing visual depictions of real minors engaged in sexually explicit conduct, 18 U.S.C. 2252(a)(2). At sentencing, the parties disputed whether Nelson’s prior Ohio conviction for attempted rape of a minor qualified as a predicate offense for a sentencing enhancement. The district court sentenced Nelson to the enhanced statutory minimum term of 180 months of imprisonment. The Sixth Circuit affirmed, rejecting Nelson’s argument that his attempted rape conviction under a statute that does not require that the defendant have physical contact with the victim, did not trigger the section 2252(b)(1) enhancement, which applies to prior convictions “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” Sexual abuse covers actions that “injure, hurt, or damage for the purpose of sexual or libidinal gratification.” Applying the categorical approach, the court examined the elements of the Ohio statute, not the specific facts underlying the conviction, and reasoned that the ordinary meaning of the phrase “relating to” is broad. An attempt conviction “clearly stands in some relation to or pertains to the crimes of aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor” and qualifies as a predicate offense for the enhancement.

Harden v. United States

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1154

Opinion Date: January 21, 2021

Judge: St. Eve

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

A jury found Harden guilty of conspiring to distribute heroin and found that Schnettler's death had “resulted from” the use of that heroin. He was sentenced to life in prison under 21 U.S.C. 841(b)(1)(B), which increases the maximum statutory term of imprisonment for a drug offense on a finding that “death or serious bodily injury result[ed] from the use of [the] substance.” After an unsuccessful appeal, Harden moved under 28 U.S.C. 2255 to vacate his sentence, asserting that his attorney was ineffective in agreeing to a jury instruction that repeated section 841(b)(1)(B) but did not elaborate that his heroin had to be the “but-for” cause of Schnettler’s death and failing to present expert testimony to rebut evidence that his heroin caused that death. The court denied his motion without an evidentiary hearing. The Seventh Circuit affirmed. In this case, the instruction was a correct statement of the law; no evidence would have led the jury to find that heroin was merely a “contributing” cause of death, so competent counsel would not suspect that the instruction might be confusing. Schnettler died from the toxicity of a single drug; the only issue concerned the timing of his use of the heroin and his death. Given the evidence that counsel did consult an expert, the decision not to call that expert “is a paradigmatic example of the type of strategic choice.”

United States v. McGee

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-3312

Opinion Date: January 15, 2021

Judge: Daniel Anthony Manion

Areas of Law: Criminal Law

McGee, Frazier, and Glaspie, were transporting heroin from Chicago to Minneapolis. Police stopped their vehicle for speeding. None of the men had valid driver’s licenses. The vehicle was registered to McGee’s girlfriend. McGee consented to a canine “free air sniff.” The canine alerted to the presence of drugs. Officers found more than 100 grams of heroin and fentanyl inside the vehicle. McGee was charged with possession with intent to distribute, 21 U.S.C. 841(a)(1). Glaspie told police that McGee asked him to accompany McGee on the trip and that McGee had hidden the drugs. An inmate housed with McGee told investigators that McGee said that the heroin belonged to McGee and that McGee paid Frazier to drive. While in jail, McGee called McMillan, a drug dealer with whom he worked. McMillan scolded McGee for hiding the drugs badly and blamed McGee for failing to instruct Frazier to slow down McGee pleaded guilty. The district court applied a two-level enhancement for being an “organizer, leader, manager, or supervisor in the criminal activity” under USSG 3B1.1(c), calculated McGee’s Guidelines range as 92-115 months (without the leadership enhancement, 77-96 months), and sentenced McGee to 84 months’ imprisonment. The Seventh Circuit vacated. The court erred in imposing the leadership enhancement. The evidence suggests McGee was a “middleman.” The court miscalculated McGee’s criminal history points by erroneously considering a DUI conviction from 2007

United States v. Wehrle

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2853

Opinion Date: January 15, 2021

Judge: Brennan

Areas of Law: Criminal Law

Officer Wimmersberg detected an IP address requesting child pornography using a peer‐to‐peer file‐sharing network, Freenet. As a member of an FBI Task Force, she was certified to investigate on Freenet and had previously conducted more than 40 similar investigations. Wimmersberg determined that the IP address belonged to Wehrle. Wimmersberg and others executed a search warrant on his residence and found a photo album in Wehrle’s bedroom, The album contained a photograph depicting A.E. lying on a blanket with his penis exposed. The background matched Wehrle’s living room. Officers seized electronic devices and discovered over one million images and videos of child pornography, including additional pornographic images of A.E. Wehrle acknowledged he had downloaded child pornography using Freenet. Wehrle attempted to disqualify Wimmersberg as an expert witness, but the court found her to be "credible" and that her credentials and qualifications did not suggest that the evidence was not properly obtained or any problem with the investigation. The district court found Wehrle guilty and sentenced him to a below‐guidelines term of 40 years’ imprisonment. The Seventh Circuit affirmed. The district court did not abuse its discretion by failing to qualify Wimmersberg as an expert witness. The admission of trade inscriptions found on the seized devices did not violate the rule against hearsay and the Sixth Amendment Confrontation Clause; 18 U.S.C. 2251(a), which criminalizes the production of child pornography, does not violate the Commerce Clause. Wehrle’s sentence was not substantively unreasonable.

United States v. Campbell

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1127

Opinion Date: January 21, 2021

Judge: Bobby E. Shepherd

Areas of Law: Criminal Law

Defendants William, Junior, Carter, and Senior appealed their convictions on various drug trafficking charges. In regard to Defendant William's challenges, the Eighth Circuit concluded that the district court did not err by denying his motion to suppress the wiretap evidence; abuse its discretion in limiting the cross-examination, err in denying his request for a multiple conspiracies jury instruction, and err in applying witness intimidation and aggravated role enhancements. In regard to Defendant Junior's challenges, the court concluded that there was no error in the district court's suppression of the wiretap evidence; in granting the government's motion to sever; in determining that the evidence was sufficient to sustain his convictions; and in limiting cross-examination. In regard to Defendant Carter's challenges, the court concluded that the district court did not abuse its discretion in denying his request for a buyer-seller instruction; did not err in determining that the evidence was sufficient to sustain his convictions; and did not abuse its discretion in determining that defendant's sentence was substantively reasonable. Finally, in regard to Defendant Senior's challenges, the court concluded that the district court properly denied his multiple-conspiracy and buyer-seller instructions, and the evidence was sufficient to support his conviction for conspiracy and distribution of crack and cocaine. The court affirmed the district court's judgment in its entirety.

United States v. Sharron

Court: US Court of Appeals for the Eighth Circuit

Docket: 20-1427

Opinion Date: January 21, 2021

Judge: Erickson

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction for robbing an individual of personal property belonging to the United States. The court held that the district court did not err in denying defendant's request for instructions on duress or coercion and/or voluntariness as he failed to meet his burden of proving the existence of duress/coercion by a preponderance of the evidence. In this case, defendant's evidence amounts to a generalized and speculative fear of violence, and is insufficient to demonstrate the requisite showing of a present, imminent, and impending threat. Even if defendant had established a fear that was immediate and well-founded, the court explained that defendant's duress defense would still fail because he cannot show he had no reasonable, legal alternative to engaging in the robbery. Finally, upon careful review of the record, the court found that the court did not prohibit defendant from arguing his theory of defense.

United States v. Tobar

Court: US Court of Appeals for the Eighth Circuit

Docket: 20-1655

Opinion Date: January 20, 2021

Judge: William Duane Benton

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction for coercion and enticement of a minor. Applying de novo review, the court agreed with the district court that defendant's enticement of a minor was not induced by the government. Even if defendant could establish enticement, the court held that the evidence was sufficient to show that he had a predisposition to entice the minor.

Bean v. Matteucci

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-35119

Opinion Date: January 20, 2021

Judge: Paez

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

The Ninth Circuit reversed the district court's denial of a 28 U.S.C. 2241 habeas corpus petition where petitioner challenged an Oregon Circuit Court order under Sell v. United States, 539 U.S. 166 (2003), authorizing involuntary medication to restore petitioner's competency to stand trial for murder. The district court applied Younger abstention and concluded that intervention by a federal court would be inappropriate in light of the important state interests at stake in the pending criminal prosecution. The panel held that the district court had subject matter jurisdiction and the authority to rule on the petition. In this case, the state mischaracterized the cognizability issue as a subject matter jurisdiction issue. Furthermore, although the basic Younger criteria are satisfied in this case, the irreparable harm exception to Younger applies and the district court erred in abstaining. The panel remanded for the district court to consider the issue of the cognizability of petitioner's claim in habeas.

Tekoh v. County of Los Angeles

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-56414

Opinion Date: January 15, 2021

Judge: Kim McLane Wardlaw

Areas of Law: Criminal Law

In light of the Supreme Court's decision in Dickerson v. United States, 530 U.S. 428 (2000), which held that Miranda is a rule of constitutional law that could not be overruled by congressional action, the Ninth Circuit concluded that where the unMirandized statement has been used against the defendant in the prosecution's case in chief in a prior criminal proceeding, the defendant has been deprived of his Fifth Amendment right against self-incrimination, and he may assert a claim against the state official who deprived him of that right under 42 U.S.C. 1983. In this case, plaintiff alleged that his Fifth Amendment right against self-incrimination was violated when his un-Mirandized statement was used against him at his criminal trial. The panel concluded that plaintiff sufficiently demonstrated a Fifth Amendment violation caused by the officer under section 1983, such that the district court erred by failing to instruct the jury on this claim. The panel explained that there is no question that plaintiff's statement was introduced into evidence in the failed state criminal prosecution of him. Furthermore, there is no question that the officer "caused" the introduction of the statements at plaintiff's criminal trial even though the officer himself was not the prosecutor. The panel also concluded that the error was not harmless. Accordingly, the panel vacated the district court's judgment on the jury's verdict; reversed the district court's judgment as to plaintiff's requested jury instruction; and remanded for a new trial.

United States v. Gear

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-10353

Opinion Date: January 19, 2021

Judge: Per Curiam

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

Gear, a native of Australia, moved to Hawaii to work. Gear’s employer applied for, and Gear received, an “H-1B” nonimmigrant visa. Gear later returned from visiting Australia with a rifle. Gear was fired and needed a new visa. Gear created a new company and obtained a new H-1B visa. A DHS agent learned Gear was present on an H-1B visa and bragged about owning firearms, and obtained a search warrant. Before the search, Gear stated, “he couldn’t possess a firearm … because he was not a U.S. citizen.” Gear stated his ex-wife had shipped a rifle and gun safe to Hawaii but he claimed they had been discarded because “he couldn’t have it.” Gear eventually admitted that the gun and safe were in the garage. He was charged under 18 U.S.C. 922(g)(5)(B) for possessing a firearm while being an alien who had been admitted under a nonimmigrant visa. The jury was instructed the government had to prove Gear “knowingly possessed” the rifle, that had been transported in foreign commerce, and that Gear had been admitted under a nonimmigrant visa. Before Gear was sentenced, the Supreme Court decided Rehaif, holding that under section 922(g), the government must prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.” The Ninth Circuit affirmed Gear’s conviction. While the government must prove the defendant knew he had a nonimmigrant visa, the erroneous jury instructions did not affect Gear’s substantial rights because the record overwhelmingly indicates that he knew it was illegal for him to possess a firearm.

United States v. Mora-Alcaraz

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-10323

Opinion Date: January 21, 2021

Judge: Mary Murphy Schroeder

Areas of Law: Criminal Law

The United States sought an interlocutory appeal of the district court's order suppressing evidence in a criminal prosecution. Defendant was indicted for being an alien in possession of a firearm, and the evidence suppressed resulted from a confrontation between police officers and defendant while he was with his seven-year-old son at a shopping mall. As a preliminary matter, the Ninth Circuit held that United States v. Healy, 376 U.S. 75 (1964), foreclosed defendant's contention that the appeal is untimely. The panel affirmed the district court's suppression of the statements because they were the product of a custodial interrogation conducted without the required Miranda warnings and thus inadmissible. However, the panel explained that a Miranda violation does not alone warrant suppression of the physical fruits of defendant's inculpatory statements. Furthermore, both parties agree that the appropriate inquiry is whether, looking at the totality of the circumstances, defendant's consent to the search of the trunk was voluntary. Therefore, the panel remanded for the district court to resolve the voluntariness issue in the first instance.

Lance v. Board of County Commissioners

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-7050

Opinion Date: January 19, 2021

Judge: Robert Edwin Bacharach

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

Dustin Lance was denied medical treatment for priapsm at a detention center in McAlester, Oklahoma. He ultimately sued the sheriff and four jail guards; summary judgment was entered in favor of all defendants. After review of his appeal, the Tenth Circuit affirmed in part, and reversed in part. Like the district court, the Court concluded that one of the jail guards, Edward Morgan, had qualified immunity because he didn’t violate Lance’s constitutional right to medical care. But the Court concluded that qualified immunity was unavailable to the three other jail guards: Mike Smead, Dakota Morgan, and Daniel Harper. And the sheriff, Chris Morris, was not entitled to summary judgment in his official capacity because the factfinder could reasonably determine that the county’s policies had violated Lance’s constitutional right to medical care.

United States v. Barrett

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-7049

Opinion Date: January 19, 2021

Judge: Scott Milne Matheson, Jr.

Areas of Law: Constitutional Law, Criminal Law

Kenneth Eugene Barrett moved under 28 U.S.C. 2255 to vacate his death sentence based on ineffective assistance of counsel in violation of the Sixth Amendment to the Constitution. Barrett’s death sentence was based on his intentionally killing a state trooper when drug task force officers attempted to execute a warrant at his home. The evidence at trial and at the sentencing hearing depicted him as having planned a lethal attack on police officers. In mitigation, defense counsel introduced testimony that he was a loved family member and good person who was sorry for his crime. But his counsel did not introduce evidence that he experienced abuse as a child; suffered from brain-damage, bipolar disorder, and post-traumatic stress disorder (“PTSD”); and struggled to exercise judgment in pressured situations. The jury recommended, and the court imposed, the death penalty. The district court denied Barrett's request to vacate his sentence. The matter was remanded for reconsideration of counsel's performance at sentencing; the district court found deficient performance but no prejudice, and again denied relief. The Tenth Circuit reversed and remanded for further proceedings. In reversing, the Court concluded that, viewing the totality of the evidence at trial, sentencing, and the postconviction hearing, there was a reasonable probability at least one juror would have recommended a life sentence. As noted, “[a] reasonable probability is less than a preponderance of the evidence” and need only “undermine confidence in the outcome.” Because Barrett’s postconviction evidence shifted the balance in favor of mitigation, the Tenth Circuit was not “confiden[t]” all twelve jurors would have recommended a death sentence had defense counsel introduced this evidence.

United States v. Chavez

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-2123

Opinion Date: January 20, 2021

Judge: Gregory Alan Phillips

Areas of Law: Constitutional Law, Criminal Law

Before the warrantless seizure of a firearm from a car, the driver, defendant Manuel Chavez, had driven the car at least a couple hundred feet up a private,d irt roadway and parked it outside his isolated trailer home. The district court approved just one of the government’s asserted justifications for the seizure of the firearm (a .38 special caliber Amadeo Rossi S.A.), ruling that the deputy’s seizure of the firearm was reasonable as part of an inventory of the car’s contents in preparation for impounding it. But during the inventory, a woman emerged from the trailer and satisfied the deputy that she owned the car. So the deputy left the car with her where it was parked, mere feet from her and defendant’s trailer, but the deputy kept the firearm. In denying an ensuing motion to suppress, the district court held that the deputy could lawfully seize and keep the firearm, even without admissible evidence that anyone had illegally possessed or used it. The court did not evaluate whether it mattered that the deputy never in fact impounded the car. The Tenth Circuit rejected the district court’s denying the motion to suppress on inventory-impoundment grounds. Further, the Court rejected all the government’s other asserted bases to validate the deputy’s seizing and keeping the firearm. The district court erred by denying the motion to suppress, so the Tenth Circuit reversed.

Wilson v. Alaska

Court: Alaska Supreme Court

Docket: S-17491

Opinion Date: January 15, 2021

Judge: Joel H. Bolger

Areas of Law: Constitutional Law, Criminal Law, Labor & Employment Law

The Alaska Department of Corrections investigated its employee David Wilson for potentially criminal misconduct. It ordered him to answer questions from investigators but assured him that his answers and any evidence derived from those answers could not be used against him criminally. Wilson was terminated for refusing to answer and claimed the State violated his constitutional privilege against self­ incrimination by failing to tell his lawyer that his answers to the investigator could not be used against him in a criminal proceeding. After review of his appeal, the Alaska Supreme Court concluded that by terminating Wilson for refusing to answer those questions, the State of Alaska did not violate his privilege against self-incrimination, under either the U.S. Constitution or the Alaska Constitution. The State did notify Wilson that his answers could not be used against him criminally, and Wilson not only confirmed at the time that he understood this notification, but also in the subsequent court proceedings introduced no evidence to the contrary.

People v. Carr

Court: California Courts of Appeal

Docket: A158637(First Appellate District)

Opinion Date: January 19, 2021

Judge: Siggins

Areas of Law: Criminal Law

While Carr was awaiting trial, the court found him incompetent to stand trial. In August 2015, the court ordered Carr committed to Porterville Developmental Center. Two months later, Carr remained in jail. The court ordered the facility to admit him within 21 days. Before a scheduled show-cause hearing, the parties were informed that Porterville was not a suitable placement because Carr required involuntary medication. The court continued the hearing to allow the state to determine appropriate placement. In March 2016, a Department of State Hospitals (DSH) psychiatrist certified that Carr was competent to stand trial. The court of appeal found the certificate of competency “adequate to initiate proceedings.” A hearing began in February 2018 (Penal Code 1372). In June 2018 the court found Carr incompetent and again ordered his placement at Porterville. Carr unsuccessfully moved for release, arguing he had completed the maximum authorized three-year commitment. The trial court reasoned that DSH’s March 2016 certification of competency tolled the commitment period. The superior court rejected that argument; the period between the March 2016 certificate of competency and the June 2018 ruling counted in calculating Carr's maximum commitment time. The court of appeal affirmed. The Penal Code vests the trial court with the responsibility to determine whether a defendant found incompetent to stand trial and committed for treatment has been restored to competency. That determination, not a health official’s certification of competency that initiates court proceedings, terminates the defendant’s commitment.

People v. Delavega

Court: California Courts of Appeal

Docket: A154936(First Appellate District)

Opinion Date: January 15, 2021

Judge: Humes

Areas of Law: Criminal Law

Delavega was charged with murder with three firearm enhancements under Penal Code section 12022.53(b), (c), and (d). The subdivision (d) enhancement applies when a defendant is found to have personally and intentionally discharged a firearm causing death; subdivision (b) applies when a defendant is found to have personally used a firearm; subdivision (c) applies when a defendant is found to have intentionally discharged a firearm. The (b) and (c) enhancements are lesser included enhancements of the (d) enhancement. A defendant who violates subdivision (d) necessarily violates (b) and (c). The verdict forms did not reference the subdivisions (b) and (c). The jury made no finding as to either. The jury convicted Delavega of second-degree murder and found true the subdivision (d) enhancement. Delavega asked the court to exercise its discretion under Senate Bill 620 to strike the subdivision (d) enhancement, which carries a term of 25 years to life. The court declined and sentenced Delavega to 40 years to life in prison, stating that it had only “two choices, the 15 to life . . . or the 40 to life .... There’s no splitting the difference” and that it was not “justifiable” to strike the enhancement. The court of appeal affirmed. When a lesser enhancement was separately charged under section 12022.53 but was not determined to be true, the trial court lacks discretion to impose it upon striking a greater enhancement under the statute.

People v. Hill

Court: California Courts of Appeal

Docket: A157339(First Appellate District)

Opinion Date: January 21, 2021

Judge: Jackson

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

In 2016, Hill pleaded no contest to felony possession of a firearm by a convicted felon (case CR940896). The court suspended imposition of sentence and placed Hill on three years' felony probation. In 2019, a Clearlake police officer noticed Hill outside of a liquor store, approached, obtained Hill’s name, and conducted a records check, which revealed that Hill was on postrelease community supervision. As the officer returned, Hill “produced” a knife and placed it on a pole. Hill said he needed the knife “for protection” and that he had it shoved down his sleeve. Hill pleaded no contest to concealing a dirk or dagger (case CR953084) and admitted a probation violation in case CR940896. The plea was open with a maximum possible sentence of 32t months. The trial court revoked his probation in case CR940896 and sentenced Hill in both cases to an aggregate term of 32 months. The court of appeal affirmed, rejecting Hill’s argument that his attorney was ineffective for failing to request a hearing on his eligibility for mental health diversion under Penal Code section 1001.36. Because Hill’s appeal did not attack the validity of his plea but challenged the court’s sentencing discretion relating to section 1001.36, no certificate of probable cause was required. Hill's counsel was not deficient in failing to request an eligibility hearing nor was Hill prejudiced by counsel’s failure to do so.

People v. Kelly

Court: California Courts of Appeal

Docket: B301916(Second Appellate District)

Opinion Date: January 21, 2021

Judge: Arthur Gilbert

Areas of Law: Criminal Law

The Court of Appeal affirmed the trial court's order awarding restitution to defendant's crime victims following his conviction for false personation of another; unauthorized use of personal identifying information of another; and disobeying a court order. The court concluded that the trial court properly awarded restitution to defendant's victims for attorney fees and costs they incurred as a result of defendant's conduct. The court explained that, whether described as attorney fees or costs, they necessarily involved money spent and incurred because of defendant's unlawful conduct and thus constitute "an economic loss incurred as the result of a criminal act" under the Giordano standard.

People v. Montes

Court: California Courts of Appeal

Docket: F078357(Fifth Appellate District)

Opinion Date: January 15, 2021

Judge: Meehan

Areas of Law: Criminal Law

Defendant was convicted of thirteen crimes in connection to his driving a stolen semitruck and trailer to a wholesale tire business, breaking into the fence yard, stealing tires, leading police officers on a high-speed chase, and then fleeing on foot after crashing the semi into a wall. The Court of Appeal concluded that while the trial court erred when it instructed the jury on Vehicle Code section 10851, subdivision (a), and section 496d, subdivision (a), the error was harmless because defendant's conviction on count 12 may be construed as based on post-theft driving. The court rejected defendant's challenge to the sentence on count 10 for vandalism under section 654. However, with respect to defendant's Dueñas claim, the court concluded that defendant did not forfeit review of his claim and on this undeveloped record, it is appropriate to remand the matter for the limited purpose of allowing the parties to address the issues and make a record. Finally, in the event that there is no change to the judgment following proceedings on defendant's ability-to-pay claim, the court ordered the trial court, on its own motion, to correct the abstract of judgment to reflect imposition of a total court operations assessment of $520 under section 1465.8 and a total court facilities assessment of $390 under Government Code section 70373. (The opinion is certified for publication with the exception of parts I. and II. of the Discussion.)

People v. Moseley

Court: California Courts of Appeal

Docket: B303321(Second Appellate District)

Opinion Date: January 20, 2021

Judge: Victoria M. Chavez

Areas of Law: Criminal Law, Juvenile Law

A defendant who was sentenced to 66 years to life for violent sex offenses he committed at age 17 is not entitled to youth offender parole consideration under Penal Code section 3051 on federal and California constitutional equal protection grounds. The Court of Appeal found that a rational basis exists for treating one strike offenders such as defendant differently from other youthful offenders entitled to the benefit of the statute, applying the reasoning and analysis of the court in People v. Williams (2020) 47 Cal.App.5th 475, review granted July 22, 2020, S262229. In this case, defendant was convicted of four counts of forcible rape, one count of forcible oral copulation, and one count of first degree robbery. The court explained that defendant is not similarly situated to those who do not commit violent sex crimes, and his exclusion from youth offender parole consideration is rationally related to a legitimate penal interest.

Perez v. Colorado

Court: Colorado Supreme Court

Citation: 2021 CO 5

Opinion Date: January 19, 2021

Judge: Brian D. Boatright

Areas of Law: Constitutional Law, Criminal Law

As Marcus Perez was being arrested after a lengthy foot pursuit, the arresting officer found two live shotgun shells in Perez’s pocket. Without giving Perez Miranda warnings, the officer asked him, “Where’s the gun?” Perez answered that he had thrown the gun away. At a suppression hearing, Perez argued that his answer should have been suppressed because he was not Mirandized before the officer questioned him. The trial court disagreed, finding that the public safety exception to Miranda v. Arizona, 384 U.S. 436 (1966), applied. A jury convicted Perez of second-degree assault on a peace officer and four counts of possession of a dangerous weapon by a previous offender (“POWPO”). Perez appealed, contending that the public safety exception did not apply. The court of appeals agreed but deemed the error harmless beyond a reasonable doubt and affirmed the convictions. Under the facts of this case, the Colorado Supreme Court concluded the public safety exception applied, and the arresting officer was not required to give Miranda warnings before inquiring about the gun's location.

Wharton v. Delaware

Court: Delaware Supreme Court

Docket: 548, 2019

Opinion Date: January 19, 2021

Judge: Karen L. Valihura

Areas of Law: Constitutional Law, Criminal Law

Dai'yann Wharton was found guilty after a bench trial on several charges, led by a count of first-degree murder for the death of Yaseem Powell. Wharton appealed, contending her conviction should have been reversed because the State identified a group of highly incriminating text messages less than two weeks prior to trial, though the messages themselves had been contained in a digital discovery disclosure made by the State to Wharton more than a year earlier. Because of the State’s earlier disclosure, and because the Delaware Supreme Court rejected Wharton’s assertions that the State engaged in any discovery violations or other misconduct, it held the superior court was within its discretion to deny Wharton’s motion to exclude the text messages. Accordingly, Wharton's conviction and judgment of sentence were affirmed.

State v. Coble

Court: Kansas Supreme Court

Docket: 118382

Opinion Date: January 15, 2021

Judge: Dan Biles

Areas of Law: Civil Rights, Criminal Law

The Supreme Court reversed Defendant's conviction of one count of aggravated arson, holding that where the State charged three identical counts of aggravated arson and the jury instructions and verdict form failed to distinguish those counts, this Court was unable to reliably associate particular conduct with the count of conviction, frustrating appellate review and adversely implicating Defendant's due process rights. Defendant was charged with three counts of aggravated arson. All charges were alleged to have occurred at different times. The jury convicted Defendant of one count and acquitted him of the other two. The Supreme Court reversed the conviction and remanded the case for further proceedings, holding that because it was impossible to determine the jury's verdict as to which crime if found Defendant guilty of beyond a reasonable doubt, this Court's confidence in the propriety of Defendant's conviction for this criminal charge is undermined by concerns for Defendant's due process rights.

State v. Crosby

Court: Kansas Supreme Court

Docket: 119824

Opinion Date: January 15, 2021

Judge: Stegall

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

The Supreme Court reversed Defendant's conviction for distribution of a controlled substance and affirmed Defendant's remaining convictions, holding that there was insufficient evidence to support the distribution conviction. A jury found Defendant guilty of felony murder, distribution of a controlled substance, attempted aggravated robbery, criminal possession of a weapon, attempted murder in the second degree, criminal discharge of a firearm, aggravated battery, and aggravated burglary. The Supreme Court reversed one conviction and otherwise affirmed, holding (1) the district court did not abuse its discretion in consolidating Defendant's cases for trial; (2) the evidence was insufficient to convict Defendant of distribution; and (3) the jury instructions on Defendant's aggravated robbery, felony murder, and criminal possession of a firearm charges were not erroneous.

State v. Phillips

Court: Kansas Supreme Court

Docket: 121075

Opinion Date: January 15, 2021

Judge: Wall

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's convictions for first-degree murder and aggravated battery, holding that none of Defendant's allegations of error required reversal of his convictions. Specifically, the Supreme Court held (1) the district court erred in ruling on Defendant's motion for immunity under Kan. Stat. Ann. 21-5231, and the appropriate remedy was to review the record of the original hearing to determine whether the State satisfied its burden to show probable cause that Defendant's use of deadly force was not statutorily justified; (2) the State showed probable cause under the totality of the circumstances; (3) the district court properly denied Defendant's request for a lesser included offense instruction to the aggravated battery charge; and (4) the district court did not err in denying Defendant's motion for new trial.

State v. Leng

Court: Maine Supreme Judicial Court

Citation: 2021 ME 3

Opinion Date: January 14, 2021

Judge: Connors

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed Defendant's sentence imposed after he pled guilty to the intentional and knowing murder of his wife, holding that the sentencing court followed proper sentencing procedures and appropriately exercised its discretion in determining the sources and types of information to consider. After a sentencing hearing, the court sentenced Defendant to forty years in prison. Defendant appealed, arguing that the court misapplied the first step of the sentencing analysis required by Me. Rev. Stat. 17-A, 1252-C by failing to conduct a proper comparison of the circumstances of his crime to similar murders. The Supreme Judicial Court affirmed, holding (1) the court properly exercised its discretion in considering comparable sentences when imposing Defendant's sentence; and (2) the court thoughtfully considered the relevant facts and sentencing principles in determining Defendant's sentence.

Dinkins v. Massachusetts Parole Board

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12882

Opinion Date: January 19, 2021

Judge: Cypher

Areas of Law: Criminal Law, Juvenile Law

The Supreme Judicial Court held that 120 Code Mass. Regs. 200.08(3)(c) (regulation), which concerns parole eligibility for inmates sentenced to a prison term that runs consecutive to a life sentence, is contrary to the plain terms of the statutory framework governing parole and is thus invalid. Plaintiffs, two inmates who were serving life sentences for murders committed when they were juveniles, sought declaratory relief invalidating the regulation. The superior court granted summary judgment in favor of the parole board, finding the regulation to be valid. The Supreme Judicial Court reversed, holding that by exempting sentences consecutive to a life sentence from the process often referred to as the "aggregation rule," the regulation contravenes the plain meaning of Mass. Gen. Laws ch. 127, 130 and 133.

Hampton v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2019-KA-01304-SCT

Opinion Date: January 21, 2021

Judge: Beam

Areas of Law: Constitutional Law, Criminal Law

Kadedria Hampton appealed her convictions for two counts of felony child abuse for burning and starving a minor child. She claimed on appeal that there constitutional right to be present at every stage of her jury trial was violated, and that the evidence was constitutionally insufficient to support either of her convictions. After review, the Mississippi Supreme Court found no merit to Hampton's claim her right to be present at trial was violated. Nor did the Court find the State presented insufficient evidence to support a conviction for felonious starvation of a minor child. The Court did find, however, the State presented insufficient evidence to support Hampton's conviction of the felonious burning of a minor child. Accordingly, judgment was affirmed in part, reversed in part, and remanded for further proceedings.

Terry v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2019-CT-00623-SCT

Opinion Date: January 21, 2021

Judge: Josiah D. Coleman

Areas of Law: Constitutional Law, Criminal Law

Cephus Terry was charged with possession of cocaine with intent to sell, possession of methamphetamine, possession of Tramadol, and two counts of possession of a firearm by a felon. He was convicted on all five counts, and the circuit court sentenced him as a habitual offender to serve forty-six years in the custody of the Mississippi Department of Corrections. The trial court denied his motion for a new trial, and the Mississippi Court of Appeals affirmed. A majority of the Mississippi Supreme Court concluded the evidence presented at trial was sufficient to support the jury's verdict. Additionally, Terry’s argument that the trial judge erred by improperly instructing the jury as to the issue of constructive possession was subject to a procedural bar. Accordingly, judgment was affirmed.

State v. Bartel

Court: Nebraska Supreme Court

Citation: 308 Neb. 169

Opinion Date: January 15, 2021

Judge: Michael G. Heavican

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction of violating a domestic abuse protection order, holding that the district court did not err in affirming the county court's denial of Defendant's motion for new trial. In his motion for new trial, Defendant requested that the county court vacate his conviction because of a stipulated order in his separate domestic case that purported to render the original protection order void ab initio. The county court denied the motion. The district court affirmed, concluding that the order in the domestic relations case reflected the parties’ negotiations after trial based on then-existing circumstances and was not newly discovered evidence relevant to Defendant's criminal trial. The Supreme Court affirmed, holding that there was no merit to Defendant's contention that the order in his domestic relations case was newly discovered evidence sufficient to warrant a new trial in the criminal case.

State v. Melton

Court: Nebraska Supreme Court

Citation: 308 Neb. 159

Opinion Date: January 15, 2021

Judge: Stacy

Areas of Law: Criminal Law

In these consolidated criminal appeals, the Supreme Court declined to reach the merits of Appellant's arguments and dismissed the appeals for lack of jurisdiction, holding that Appellant's appeals were not perfected within thirty days after the entry of judgment. Pursuant to a plea agreement, Appellant entered no contest pleas to some charged counts relating to a string of motor vehicle thefts and high-speed police chases. The court ultimately found Appellant guilty of seven felonies. Appellant later filed a notice of appeal, challenging the overruling of his motions to modify his sentences and challenging the sentence imposed on one conviction. The Supreme Court dismissed the appeals, holding that appellate jurisdiction was not perfected within thirty days of the entry of the judgment, and therefore, this Court must dismiss Appellant's appeals.

PennDOT Bureau of Driver Lic. v. Middaugh

Court: Supreme Court of Pennsylvania

Docket: 45 MAP 2019

Opinion Date: January 20, 2021

Judge: Thomas G. Saylor

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

The Pennsylvania Supreme Court granted certiorari review in this matter to determine whether the Department of Transportation (PennDOT) was precluded from suspending an individual’s driving privileges based on a DUI conviction, where there was a lengthy delay between the conviction and the time the driver was notified of the suspension. Under the facts of this case, the Court concluded the trial court’s finding – that Appellee would suffer prejudice if the suspension were to be imposed at this juncture – was supported by competent evidence of record, and moreover, it demonstrated that prejudice would follow from the fact of the delay itself. Additionally, there was no dispute that Appellee did not accrue any additional Vehicle Code violations after his predicate DUI conviction. The Court therefore agreed with the Commonwealth Court majority that a suspension at this late date will have lost much of its effectiveness with regard to its underlying legislative purposes, result in prejudice which can be attributed to the delay, and ultimately deny fundamental fairness.

Pennsylvania v. Cochran II

Court: Supreme Court of Pennsylvania

Docket: 77 MAP 2018

Opinion Date: January 20, 2021

Judge: Mundy

Areas of Law: Constitutional Law, Criminal Law

The issue presented for the Pennsylvania Supreme Court's review centered on whether a line of superior court cases changed the procedural requirements of Section 1106 of the Pennsylvania Judicial Code requiring restitution be set at the time of sentencing. Appellant Steven Cochran, II, briefly stayed at a vacation home owned by his grandparents. In late 2016, Appellant’s grandparents visited the home and found Appellant intoxicated. An altercation ensued, during which Appellant threatened and assaulted his grandmother, and deliberately destroyed various items of personal property. Also during the altercation, a fire was ignited, causing additional damage to the premises and personal property. Appellant was arrested and charged with terroristic threats, simple assault, two counts of criminal mischief, and three counts of harassment. At the beginning of the plea hearing, both counsel informed the trial court that the total restitution claimed exceeded $65,000.00, but that Appellant disputed whether he was responsible for that total amount because some of the destroyed or damaged property had belonged to him. Appellant entered a plea of guilty to one count each of terroristic threats, simple assault, and criminal mischief. In the non-restitution proceedings on June 29, 2017, the trial court sentenced Appellant to an aggregate terms of three to 23 months' incarceration, minus time served. A restitution hearing was set for August 28, 2017. Appealing the eventual amount of restitution ordered, Appellant objected to the trial court's jurisdiction, arguing more than 30 days had passed since the June 2017 order, and that the Commonwealth failed “to make a recommendation for restitution and the trial court failed to set restitution at the time of sentencing on June 29, 2017, as required by 18 Pa.C.S. 1106(c)(2).” A panel of the superior court agreed the trial court erred in failing to set restitution at the time of sentencing, reversed, and remanded fur resentencing. The Supreme Court determined that the superior court erroneously presumed that the “time of sentencing” for the purpose of section 1106 occurred solely on June 29, 2017. Because the final complete sentencing order was entered on September 15, 2017, the Supreme Court concluded Appellant had no basis to challenge the sentencing court’s jurisdiction under Section 1106 (c)(2).

Pennsylvania v. Montalvo

Court: Supreme Court of Pennsylvania

Docket: 776 CAP

Opinion Date: January 20, 2021

Judge: Debra McCloskey Todd

Areas of Law: Constitutional Law, Criminal Law

A court of common pleas granted Appellant Noel Montalvo's petition for post-conviction relief by granting a new guilt-phase trial. The Commonwealth appealed the PCRA court’s grant of a new guilt-phase trial; it did not challenge the PCRA court’s grant of a new penalty-phase trial. Appellant cross-appealed to challenge the trial court's rejection of "a myriad of additional bases for granting him a new guilt-phase trial." Appellant was accused of killing, or acting as an accomplice to the killing of his brother's estranged common law wife and the man she may have briefly dated. Appellant's brother was convicted on two counts of first-degree murder and one count of burglary, for which he was sentenced to death. Appellant would be convicted by jury on first-degree murder charges for the death of his brother's wife, the second-degree murder of her companion, conspiracy to commit murder and burglary. The jury determined the aggravating circumstances outweighed the mitigating circumstances in Appellant's case, and recommended a sentence of death. The PCRA court granted appellant's petition for relief on grounds of ineffective assistance of trial counsel. After review, the Pennsylvania Supreme Court agreed with the PCRA court that appellant established his ineffectiveness claim, and therefore, a new guilt-phase trial was warranted. In light of this conclusion, the Court did not address the issues raised by appellant in his cross-appeal.

South Carolina v. Harrison

Court: South Carolina Supreme Court

Docket: 28005

Opinion Date: January 20, 2021

Judge: John W. Kittredge

Areas of Law: Constitutional Law, Criminal Law

Appellant James Harrison, a former state legislator, was convicted and sentenced to eighteen months' imprisonment in a public corruption probe. The case was prosecuted by David Pascoe, Solicitor of the First Judicial Circuit, who was serving as the acting Attorney General. As recognized in prior case law, Solicitor Pascoe's authority to pursue the corruption probe was bestowed on him by South Carolina's then-current Attorney General, Alan Wilson. Appellant contended Solicitor Pascoe's authority did not grant the solicitor the power to investigate or prosecute Appellant. Conversely, Solicitor Pascoe dismissed any suggestion that his authority was limited, contending he had the authority to prosecute public corruption wherever the investigation led. The South Carolina Supreme Court determined Solicitor Pascoe had the authority to prosecute Appellant for perjury, but did not have the authority to prosecute Appellant for misconduct in office. Consequently, the Court affirmed Appellant's conviction and eighteen-month sentence for perjury, but reversed the statutory and common law misconduct in office charges, and remanded to the presiding judge of the State Grand Jury for further proceedings.

State v. Allison

Court: Tennessee Supreme Court

Docket: M2017-02367-SC-R11-CD

Opinion Date: January 14, 2021

Judge: Bivins

Areas of Law: Criminal Law

The Supreme Court affirmed in part and reversed in part the decision of the court of criminal appeals affirming Defendant's convictions for two counts of delivering marijuana and two counts of money laundering, holding that the evidence was insufficient to support one of the money laundering convictions. Specifically, the Supreme Court held (1) the evidence supporting the first money laundering conviction was legally sufficient; (2) the evidence was insufficient with respect to the second money laundering conviction; (3) Defendant's punishment for both delivery of marijuana and money laundering does not violate double jeopardy protections; and (4) the money laundering statute is not unconstitutionally vague by virtue of its use of the undefined phrase "carrying on."

State v. Mercado

Court: Wisconsin Supreme Court

Docket: 2018AP002419-CR

Opinion Date: January 20, 2021

Judge: Patience D. Roggensack

Areas of Law: Criminal Law

The Supreme Court reversed the decision of the court of appeals reversing the denial of Defendant's motion for postconviction relief on the basis that the video-recorded forensic interviews of Defendant's victims were inadmissible, holding that the circuit court did not abuse its discretion when it admitted the three video-recorded forensic interviews during Defendant's trial. Defendant was charged with sexually abusing three victims, who were ages four through seven at the time of the assaults. Before trial, the State informed Defendant and the circuit court of its intent to introduce the video recordings of the victims' forensic interviews into evidence. The court allowed the State to introduce the video recordings. The jury returned a guilty verdict on all counts. The trial court later denied Defendant's motion for postconviction relief. The court of appeals reversed, concluding that the video recordings were not admissible. The Supreme Court reversed, holding (1) Defendant forfeited several of his objections to the admissibility of the forensic interviews; and (2) the circuit court did not abuse its discretion when it admitted the three video-recorded forensic interviews during Defendant's trial.