| United States v. Millan-Machuca |
| Court: US Court of Appeals for the First Circuit Dockets: 18-2175, 18-2195, 18-2179, 18-2189 Opinion Date: March 10, 2021 Judge: Kermit Victor Lipez Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The First Circuit affirmed the judgment of the trial court convicting Defendants - Rolando Millan-Machuca, Roberto Casado-Berrios, Miguel Rivera-Calcano, and Giordano Santana-Meledez - of racketeering and drug trafficking conspiracies, holding that Defendants' claims on appeal were unavailing. Specifically, the First Circuit held (1) the evidence was sufficient to support the convictions; (2) there was no merit to Defendants' claims of error in the admission of certain evidence; (3) Defendants' sentences were reasonable; and (4) Rivera-Calcano's claims of ineffective assistance of counsel at his sentencing hearing is dismissed without prejudice. |
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| United States v. Padilla-Galarza |
| Court: US Court of Appeals for the First Circuit Docket: 18-2078 Opinion Date: March 5, 2021 Judge: Selya Areas of Law: Criminal Law |
| The First Circuit affirmed the judgment of the district court convicting Defendant of conspiracy to commit bank robbery, armed bank robbery, conspiracy to commit Hobbs Act robbery, and other offenses, holding that there was no prejudicial error in the proceedings below. Specifically, the First Circuit held (1) the district court did not err in denying Defendant's pretrial motion for severance; (2) the district court did not abuse its discretion in granting a protective order relating to certain discovery materials; (3) the district court did not abuse its discretion by declining to order the government to produce notes taken by law enforcement agents who interviewed a cooperating witness; and (4) Defendant was not entitled to relief on his remaining claims of error. |
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| United States v. Pedro-Vidal |
| Court: US Court of Appeals for the First Circuit Docket: 19-1441 Opinion Date: March 10, 2021 Judge: Jeffrey R. Howard Areas of Law: Criminal Law |
| The First Circuit affirmed the judgment of the district court denying Defendant's motion to strike the federal government's notice of intent to seek the death penalty (Death Notice) that was untimely filed, holding that the district court did not err in denying Defendant's motions to strike the Death Notice. Under the Local Rules for the United States District Court for the District of Puerto Rico the federal government, if seeking the death penalty, must file a Death Notice within 180 days of an indictment containing a death-eligible offense. A Puerto Rico federal grand jury returned a five-count indictment charging Defendant with three offenses punishable by death. The government, however, did not file a Death Notice until after the 180-day deadline had expired. After Defendant unsuccessfully moved to strike the death penalty he appealed. The First Circuit affirmed, holding that the district court did not abuse its discretion by denying the motion to strike without an evidentiary hearing because the purpose of the Local Criminal Rule was satisfied and the untimely filed Death Notice did not prejudice Defendant. |
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| United States v. Counterman |
| Court: US Court of Appeals for the Third Circuit Docket: 19-2975 Opinion Date: March 10, 2021 Judge: Greenaway Areas of Law: Criminal Law |
| Counterman entered a plea of guilty to possession with intent to distribute in excess of 50 grams of methamphetamine, money laundering, and aiding and abetting. His contemporaneously-filed plea agreement stated that the possession charge carried a mandatory minimum period of imprisonment of 20 years. The government subsequently submitted an “Information of Prior Convictions” under 21 U.S.C. 851(a), which resulted in the imposition of an enhanced sentence of 144 months. The Third Circuit vacated. Under 21 U.S.C. 851(a)(1), no person convicted of Counterman's drug offense "shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court . . . stating in writing the previous convictions to be relied upon.” The court rejected arguments that Counterman received actual notice of the enhancement and that the sentence imposed falls within the pre-enhancement range contemplated by statute and the Sentencing Guidelines. The filing of a 21 U.S.C. 851(a)(1) information is mandatory. Counterman, without actual notice of the government’s intent to rely on a particular prior conviction for an enhancement and the attendant opportunity to contest it, waived his trial rights. The error affected Counterman’s substantial rights and the fundamental fairness of the proceeding. |
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| United States v. Walker |
| Court: US Court of Appeals for the Third Circuit Docket: 15-4062 Opinion Date: March 5, 2021 Judge: Jordan Areas of Law: Criminal Law |
| While Walker waited in a car, two of his accomplices robbed a house, one holding a 12-year-old boy at gunpoint. All of Walker’s codefendants pleaded guilty. A jury convicted Walker of conspiracy to commit Hobbs Act robbery, 18 U.S.C. 1951(a), attempted Hobbs Act robbery, and using and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. 924(c). Walker was sentenced to a combined 72 months’ imprisonment on the conspiracy and attempt counts and a consecutive term of 60 months for the section 924(c) count. On rehearing following the Supreme Court’s 2019 decision, United States v. Davis, the Third Circuit affirmed. Attempted Hobbs Act robbery is categorically a crime of violence under the “elements” clause of section 924(c). The court rejected Walker’s argument that his conviction must be vacated because a person can be convicted for attempted Hobbs Act robbery based on nothing more than an intent to complete the robbery and a non-violent substantial step, without actually committing a violent act and with only the intent to do so. |
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| United States v. Pressley |
| Court: US Court of Appeals for the Fourth Circuit Docket: 19-6222 Opinion Date: March 11, 2021 Judge: Barbara Milano Keenan Areas of Law: Criminal Law |
| Defendant appealed the district court's denial of his 28 U.S.C. 2255 motion, alleging that he repeatedly asked his trial counsel to file a motion to suppress certain incriminating statements he made to law enforcement officers before his arrest, and that counsel rendered ineffective assistance by failing to do so. Defendant was convicted by a jury of thirteen counts resulting from his participation in a cocaine distribution conspiracy and related financial crimes. The Fourth Circuit remanded for an evidentiary hearing, concluding that the record is unclear regarding what facts counsel knew before trial, and whether his decision not to file a suppression motion was an objectively reasonable choice based on trial strategy. Furthermore, the record contains disputed facts regarding whether defendant was subject to custodial interrogation, thereby triggering the Miranda protections. |
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| United States v. Emakoji |
| Court: US Court of Appeals for the Fifth Circuit Docket: 20-10363 Opinion Date: March 9, 2021 Judge: Jerry E. Smith Areas of Law: Criminal Law |
| Defendant was indicted for engaging in a monetary transaction in property derived from a specified unlawful activity. Although defendant entered a plea agreement, when it came time to plead guilty, he requested two continuances based on his fears about traveling to the courthouse during the COVID-19 pandemic. The district court declined and ordered defendant to obtain housing in the Northern District of Texas. Although the district court had previously allowed defendant to reside in Alabama, the court concluded that defendant's reluctance to appear calls into question his ability to comply with the district court's conditions. The Fifth Circuit concluded that defendant's claim regarding the in-person rearraignment is not an immediately appealable collateral order, and thus dismissed that portion of the appeal and did not address its merits. However, the court addressed the merits of the claim questioning the housing requirement and concluded that it did not violate defendant's Eighth Amendment right to be free from excessive bail. The court explained that, where a defendant expresses his reluctance to appear at such an in-person hearing, a district court can reasonably amend release conditions to ensure his appearance. The court also concluded that the district court's housing requirement did not violate procedural due process. The court rejected defendant's remaining arguments against the housing requirement and affirmed the housing condition. |
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| United States v. Fackrell |
| Court: US Court of Appeals for the Fifth Circuit Docket: 18-40598 Opinion Date: March 11, 2021 Judge: Carl E. Stewart Areas of Law: Criminal Law |
| The Fifth Circuit affirmed Defendants Fackrell and Cramer's convictions and death sentences for killing a fellow prison inmate. The court found no error in the district court's denial of defendants' motions to sever; there was no error, much less plain error, in the finding of the requisite mental states under 18 U.S.C. 3591(a)(2); claims of prosecutorial misconduct rejected; any error in the Government's statements that referred to mitigating evidence was harmless; any error stemming from the Government's statements regarding justice for the victim did not affect Fackrell's substantial rights; the Government's use of rebuttal testimony of BOP psychologists did not violate Fackrell's right against self-incrimination under the Fifth Amendment, Sixth Amendment right to counsel, and the psychotherapist-patient privilege; the use of mental health rebuttal witnesses did not violate Federal Rule of Criminal Procedure 12.2 and the Fifth and Sixth Amendments; the district court did not err in denying evidence from the victim's family's civil suit as irrelevant and likely to confuse the jury; the district court did not abuse its discretion in excluding evidence related to another murder; and there was no error in the Government's mention of Cramer's charge for the 2012 assault. The court rejected Fackrell's challenge to the district court's decision to reject the categorical approach. The court explained that, even assuming that the categorical approach applies and thus the 18 U.S.C. 3592(c)(2) and (c)(4) aggravators were invalid, the sentence can be affirmed if it would have been imposed without the invalid aggravators. Finally, the court rejected Fackrell's Hobbs Act claim; rejected challenges to the district court's penalty-phase jury instructions on mitigating evidence; concluded that the district court did not impermissibly marshal the evidence; upheld the district court's supplemental jury instruction to the sentencing jury; rejected defendants' challenge to the sufficiency of the record on appeal; and rejected claims of cumulative errors. |
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| United States v. Masha |
| Court: US Court of Appeals for the Fifth Circuit Docket: 19-20673 Opinion Date: March 8, 2021 Judge: Edith Hollan Jones Areas of Law: Criminal Law, White Collar Crime |
| Defendant was indicted in a second superseding indictment on eight charges of false use of a passport in violation of 18 U.S.C. 1543, and eight charges of misuse of a passport in violation of 18 U.S.C. 1544. The Government now agrees that the convictions under section 1544 must be vacated based on insufficient evidence. The Fifth Circuit affirmed defendant's conviction for false use of a passport and held that there was ample evidence, both direct and circumstantial, to conclude that defendant used fraudulent passports to open accounts at various banks in the Houston area. Because the court has determined that there is insufficient evidence to support defendant's section 1544 convictions for misuse of a passport, the court need not address defendant's argument that the district court erred in denying his motion to dismiss the indictment as to those charges. Finally, the court also held that defendant failed to show that the district court plainly erred in allowing certain lay opinion testimony and failed to demonstrate that the district court clearly erred in its loss calculation. Accordingly, the court vacated the section 1544 convictions and affirmed the section 1543 convictions. |
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| United States v. Vigil |
| Court: US Court of Appeals for the Fifth Circuit Docket: 20-50192 Opinion Date: March 5, 2021 Judge: Per Curiam Areas of Law: Criminal Law |
| The Fifth Circuit affirmed the district court's imposition of a "no alcohol" special condition after defendant pleaded guilty to one count of conspiracy to transport illegal aliens and one count of transporting an illegal alien. The court concluded that where, as here, the defendant has a history of substance abuse and drug-related arrests such that the court reasonably believes he is an "abuser" of drugs, it is within the district court's discretion to require substance abuse treatment and prohibit the use of intoxicating substances, including alcohol, as special conditions of supervised release—even when there is no evidence in the record of alcohol abuse specifically. |
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| Taylor v. Owens |
| Court: US Court of Appeals for the Sixth Circuit Docket: 20-5648 Opinion Date: March 9, 2021 Judge: Thapar Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| Taylor robbed a bank at gunpoint. He led the police on a high-speed chase, killed an innocent driver, shot another driver, and abducted a woman and her child. Taylor was convicted of killing a person while avoiding an arrest for bank robbery, 18 U.S.C. 2113(e); Taylor’s convictions were affirmed; the Sixth Circuit held that the government did not need to prove Taylor’s intent to kill. In 2005, Taylor moved to vacate his sentence, 28 U.S.C. 2255(a). The district court denied the motion as time-barred. In 2018, Taylor sought habeas corpus relief, 28 U.S.C. 2241, citing intervening case law to establish the inadequacy and ineffectiveness of section 2255 relief and to establish his eligibility for habeas relief under section 2241; arguing that these cases vindicated his earlier contention that proof of intent to kill was necessary for conviction. Taylor claimed actual innocence based on lack of intent. The Sixth Circuit remanded with instructions to dismiss the application for lack of subject-matter jurisdiction. If a prisoner can file a section 2255 motion but “fail[s]” to do so or is unsuccessful, a court “shall not . . . entertain” his application for a writ of habeas corpus under section 2241 unless it “appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” The "saving clause" is a limitation on subject-matter jurisdiction. Taylor’s claim of actual innocence has no basis in the cited precedent. |
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| United States v. Gissantaner |
| Court: US Court of Appeals for the Sixth Circuit Docket: 19-2305 Opinion Date: March 5, 2021 Judge: Jeffrey S. Sutton Areas of Law: Criminal Law |
| A neighbor called 911, telling the dispatcher that Gissantaner, a convicted felon, had a gun. Responding officers found a pistol in Gissantaner’s house, inside a chest belonging to Gissantaner’s roommate. When the government charged Gissantaner with possessing a firearm as a felon, it used DNA-sorting evidence, "STRmix," to link Gissantaner to the gun. Gissantaner moved to exclude the evidence as unreliable under Evidence Rule 702. Gissantaner and the government retained experts, who took competing positions. The district court appointed two experts of its own: One said that STRmix evidence is reliable in general and as applied to this case; the other said it is reliable in general but not as applied to this case. In an interlocutory appeal, the Sixth Circuit applied the “Daubert” factors and held that the evidence should be admitted. The record in this case provides a long proof that STRmix is testable and refutable. At the time of the Daubert hearing in the district court, more than 50 published peer-reviewed articles had addressed STRmix. According to one expert, STRmix is the “most tested and most . . . peer reviewed” probabilistic genotyping software available. STRmix has a low error rate and has garnered wide use in forensic laboratories across the country. |
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| United States v. Tomes |
| Court: US Court of Appeals for the Sixth Circuit Docket: 20-6056 Opinion Date: March 9, 2021 Judge: Nalbandian Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| In 2018, Tomes pleaded guilty to drug, firearm, and money laundering charges and was sentenced to 20 years’ imprisonment. In 2020, Tomes sought compassionate release, 18 U.S.C. 3582(c)(1)(A), arguing that COVID-19, coupled with his increased susceptibility to serious illness because of chronic asthma, constituted an “extraordinary and compelling reason” for release and that the law has changed since his sentencing, so he would receive a shorter sentence today. The district court denied the motion, reasoning that U.S.S.G. 1B1.13 “limits the 'extraordinary and compelling reasons’ for compassionate release” and Tomes had not “identified any medical ailments that are so severe they would justify release.” The Bureau of Prisons was taking precautionary measures to prevent an outbreak and Tomes did not show that the Bureau could not treat him if he got sick. The court also rejected his contention that his rehabilitation, strong family support, and apparently inequitable sentence were extraordinary and compelling reasons for release. The court “considered each of the 18 U.S.C. 3553(a) factors” and found that they did not favor release. The Sixth Circuit affirmed. even if a district court wrongly constrains itself to section 1B1.13 to define extraordinary and compelling reasons for release, its decision may be upheld if the court uses section 3553(a) as an independent reason to deny relief. The First Step Act provision cited by Tomes did not apply to his sentence. |
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| United States v. White |
| Court: US Court of Appeals for the Sixth Circuit Docket: 20-1633 Opinion Date: March 8, 2021 Judge: Jeffrey S. Sutton Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| Muskegon Detective Schmidt, an undercover agent, asked a suspected drug dealer, Conkle, to buy some cocaine. The two drove to a house that belonged to White. Schmidt watched Conkle walk into White’s house and reemerge, after which Conkle handed Schmidt three grams of cocaine. About 40 days later, Conkle again took Schmidt to White’s house. In a nearby alley. Schmidt handed Conkle pre-marked cash. Conkle drove by himself to White’s house. Another detective watched as Conkle entered the house, reemerged, and traveled back to Schmidt, where he completed the sale, Schmidt applied for a search warrant within 48 hours of Conkle’s second purchase, citing the two purchases, his training and experience of 17 years, and his confirmation that the home belonged to White. A Michigan state judge approved a “no-knock” warrant. The search uncovered over 20 grams of cocaine, over 30 grams of “crack” cocaine, a stolen semi-automatic handgun, an AR-style rifle, and over $2,500 in cash. The government charged White with being a felon in possession of a firearm, possessing a firearm to further drug trafficking, possessing with intent to distribute controlled substances, and brandishing a weapon to further drug trafficking. The Sixth Circuit reversed the district court’s order granting a motion to suppress. The issuing judge had a substantial basis for finding probable cause. The key remedy for unjustified no-knock entries is a section 1983 action for money damages, not the exclusion of the evidence. |
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| Coleman v. Neal |
| Court: US Court of Appeals for the Seventh Circuit Docket: 18-3264 Opinion Date: March 11, 2021 Judge: Per Curiam Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| Coleman is serving a 45-year sentence for attempting to murder Dye. He was tried twice. The first jury acquitted him of murdering Jackson during the same incident but could not reach a unanimous verdict on the charge of attempted murder. The events were captured by a surveillance camera. By the time Coleman shot Jackson, Dye was on the ground with two bullets in him and Jackson had opened fire at Coleman. Coleman cited the Double Jeopardy Clause, arguing that the first jury must have found that he acted in self-defense when killing Jackson and that this conclusion necessarily applies to Dye. Coleman also argued ineffective assistance at the second trial. The Seventh Circuit affirmed the denial of habeas relief. It does not require any deference to conclude that Coleman’s acquittal on the murder charge does not establish self-defense in Dye's shooting. Coleman shot Dye twice, including once after he was on the ground. Applying the “Strickland” standard, the court concluded that counsel’s overall performance was admirable. Dye testified at both trials. His testimony was subtly different; Coleman’s lawyer did not try to impeach Dye at the second trial. Counsel may have felt that pointing out such modest inconsistencies would have been nitpicky. That judgment call did not result in prejudice, in light of the video. |
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| Kuri v. City of Chicago |
| Court: US Court of Appeals for the Seventh Circuit Dockets: 19-2967, 19-3213 Opinion Date: March 11, 2021 Judge: Frank Hoover Easterbrook Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| In July 2009, two people approached a van and opened fire. Patel died; Fernandez was shot but recovered; Russell was not hit. Detectives swore that Russell and Fernandez named Kuri and Gomez as the assailants and that both witnesses had selected their pictures from a photo array. That was the basis of Kuri’s arrest, detention, and prosecution; police lacked any physical evidence such as fingerprints, DNA, or a link between Kuri and the gun. Russell and Fernandez testified at the criminal trial and at the subsequent civil trial that they had not identified Kuri as an assailant, even after the detectives directed them to do so, and that the detectives had made up that accusation. Russell and Fernandez contradicted themselves and changed their statements several times. Kuri spent three years in jail before and during the murder trial. After his acquittal, he sued the officers under 42 U.S.C. 1983. A jury returned a verdict of $4 million in compensatory damages plus $50,000 in punitive damages. The Seventh Circuit affirmed, rejecting an argument that only a violation of the Fourth Amendment could support relief, and that, as a matter of law, Kuri’s arrest and detention were supported by probable cause. Once the jury decided to believe the victims that the detectives were lying, that left his arrest and detention without support. A Fourth Amendment theory based on lack of probable cause survives a judicial decision holding a suspect in custody. |
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| Ruiz v. United States |
| Court: US Court of Appeals for the Seventh Circuit Docket: 18-1114 Opinion Date: March 10, 2021 Judge: Scudder Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| In 1997, for his participation (at age 18) in a deadly kidnapping scheme to collect drug debts, Ruiz was convicted of conspiracy to commit racketeering, conspiracy to commit kidnapping, kidnapping resulting in death, assaulting a federal officer, four counts of violating the Hostage Act, including one count resulting in death, and three counts of using a firearm during and in relation to a crime of violence (18 U.S.C. 924(c)). The indictment listed a different predicate offense for each section 924(c) count: the underlying conspiracy to commit kidnapping, kidnapping, and assault on a federal officer charges. The Seventh Circuit affirmed his seven concurrent life sentences plus a consecutive term of 45 years for using a firearm during the underlying crimes of violence. Ruiz made several unsuccessful attempts to challenge his sentence through 28 U.S.C. 2255 and 2241. After the Supreme Court invalided as unconstitutionally vague the residual clause of the Armed Career Criminal Act, one of the Act’s alternative definitions for a predicate “violent felony,” Ruiz obtained permission (28 U.S.C. 2244(b)(3_) to file a new collateral attack, contending that the residual clause of section 924(c)’s definition of “crime of violence” was unconstitutionally vague and that his predicate offenses otherwise did not count as crimes of violence under section 924(c)’s elements clause. The Seventh Circuit affirmed the dismissal of Ruiz’s petition on harmless error grounds; any error in his section 924(c) convictions would have no effect on Ruiz’s seven life sentences. |
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| United States v. Berrios |
| Court: US Court of Appeals for the Seventh Circuit Docket: 19-1871 Opinion Date: March 5, 2021 Judge: Diane Pamela Wood Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| In 2012, Berrios was charged with Hobbs Act robbery in connection with an armed robbery of a Chicago AT&T store. The next day, as Berrios and his associate were preparing to rob a currency exchange, the FBI conducted a traffic stop and arrested Berrios without a warrant. During a search incident to that arrest, the agents recovered a Samsung phone and other items including a BB gun that Berrios’ group had used in a series of robberies. The FBI conducted a warrantless search of the phone, downloading the contacts, call logs, text messages, and photographs. Some photos showed Berrios with his co-defendants. The government later admitted that the phone search was illegal but argued that the law at the time of the search did not prohibit it, so the "Davis" good-faith exception to the exclusionary rule applied. The other evidence at trial included co-defendant testimony, Berrios’s post-arrest statements, a recorded call that Berrios made from jail, surveillance videos, victim testimony, and the other items recovered from the car. A jury convicted Berrios on all counts; he was sentenced to a total term of 360 months. The Seventh Circuit affirmed the denial of a motion to suppress and the convictions. Stating that it “was a close call,” the court concluded that although there was no binding precedent that would have exempted this search from the exclusionary rule, the independent-source rule allowed the admission of the limited evidence the government used. |
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| United States v. Law |
| Court: US Court of Appeals for the Seventh Circuit Docket: 19-2345 Opinion Date: March 11, 2021 Judge: Brennan Areas of Law: Criminal Law |
| Law operated three Indiana massage spas that offered sex services. HV and XC were Law’s “employees.” HV was born in Vietnam, knew limited English, and knew no one else in this country. XC traveled from China to Chicago with few personal contacts, almost no money, and knowing little English, believing she would be providing non-sexual massages. HV testified she serviced six to nine men over a 15-hour workday. Law prevented the women from leaving the spa unaccompanied, declined to pay them hourly wages, provided only one meal each day, confiscated their passports, and monitored their activities using security cameras. Law did nothing in response to XC enduring violent treatment by a spa customer and forced HV to work hours after suffering a miscarriage. From information obtained in interviews of HV and XC after a sting operation, Hong Kong authorities arrested Law. The Seventh Circuit affirmed her convictions for trafficking XC and HV for involuntary servitude, 18 U.S.C. 1590(a) and 18 U.S.C. 2; transporting XC for the purpose of prostitution, 18 U.S.C. 2421 and 18 U.S.C. 2; and using an interstate facility to promote prostitution, 18 U.S.C. 1952(a)(3) and 18 U.S.C. 2, and her 360-month sentence. The court rejected hearsay arguments concerning the testimony of agents at Law’s trial, noting the judge’s limiting instruction, and upheld the admission of an affidavit signed by Law. |
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| United States v. Slone |
| Court: US Court of Appeals for the Seventh Circuit Docket: 20-2721 Opinion Date: March 10, 2021 Judge: Daniel Anthony Manion Areas of Law: Criminal Law |
| Informants reported that Slone was selling methamphetamine out of his basement apartment in Dillon's house. In that basement, agents found two guns, 80 grams of meth, and paperwork in Slone’s name. Dillon stated that Slone had recently moved out, leaving his possessions and that Slone sold meth. Agents later found Slone staying with a friend. A search revealed a small amount of meth and a scale in the apartment, and a revolver in the friend’s van, which she said Slone had borrowed. Slone admitted that he had dealt meth, stayed in Dillon’s basement, and had purchased the guns. Slone was charged with possession with intent to distribute the 80 grams of methamphetamine, and illegally possessing firearms as a felon (non-payment of child support), 18 U.S.C. 922(g)(1). A jury acquitted Slone on the drug charge but convicted him on the firearm charge. The court sentenced him to 41 months’ imprisonment, based on a guidelines range of 41–51 months, adding two offense levels for obstruction of justice, based on perjury, and a four-level enhancement, concluding that Slone possessed the firearms “in connection with” the felony offense of meth trafficking. The court found that the guns potentially facilitated distribution regardless of whether the 80 grams seized were Slone’s and stated that, even if the enhancement did not apply, it would impose the same 41-month sentence based on the 18 U.S.C. 3553(a) factors. The Seventh Circuit affirmed. The government did not need to show that Slone ever carried or brandished the gun during a sale; a gun that is available to protect a drug stash has the potential of facilitating drug trafficking. |
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| Gonzalez v. Wilkinson |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-3412 Opinion Date: March 9, 2021 Judge: Jane Louise Kelly Areas of Law: Criminal Law, Immigration Law |
| The Eighth Circuit held that the categorical approach does not require a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. Rather, the categorical approach requires a petitioner seeking cancellation of removal to demonstrate that the state offense he was convicted of is broader than the federal offense. In this case, the BIA erred in finding that petitioner was ineligible for cancellation of removal on the basis of his Florida conviction for possession of marijuana. The court explained that the Florida statute is unambiguously broader than the federal law referenced in 8 U.S.C. 1229b(b)(C), and this was all that petitioner was required to show under the categorical approach. Furthermore, because the BIA did not properly consider the IJ's alternative grounds for denying relief, those issues are not properly before the court. The court granted the petition for review, vacated, and remanded for further proceedings. |
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| Jama v. Wilkinson |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2250 Opinion Date: March 11, 2021 Judge: Bobby E. Shepherd Areas of Law: Criminal Law, Immigration Law |
| The Eighth Circuit denied a petition for review of the BIA's order upholding the IJ's decision to deport and remove petitioner to Somalia and denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court concluded that the BIA did not err in determining that petitioner's second-degree felony assault conviction is a particularly serious crime that bars statutory withholding of removal. The court also concluded that the IJ and the BIA did not err in finding that the particularly serious crime bar foreclosed petitioner's relief for withholding of removal under the CAT. Finally, the court need not address the likelihood that petitioner will be tortured because substantial evidence supports the IJ and the BIA's finding that his torture would not be directed by or acquiesced to by the Somali government. |
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| United States v. Burns |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-3205 Opinion Date: March 8, 2021 Judge: Lavenski R. Smith Areas of Law: Criminal Law, White Collar Crime |
| The Eighth Circuit affirmed defendant's conviction for wire fraud under 18 U.S.C. 1343. Defendant's conviction stemmed from his involvement in a scheme to construct an aquaponics facility. The court concluded that the evidence was sufficient to support defendant's conviction; the district court did not abuse its discretion by instructing the jury on willful blindness; the district court did not err by giving a jury instruction that enabled a finding that only defendant committed wire fraud; the district court did not err by giving an explicit unanimity instruction where there was no genuine risk of the jury finding nonunanimously; and defendant waived his argument that the district court did not err by sua sponte individually polling the jury. |
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| United States v. Chappell |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2946 Opinion Date: March 10, 2021 Judge: Grasz Areas of Law: Criminal Law |
| The Eighth Circuit affirmed the district court's denial of defendant's request for a new trial based on newly discovered evidence, a related Brady challenge, and his request for a lighter sentence. In this case, a jury found defendant guilty of conspiring to launder money and conspiring to distribute and possess with intent to distribute a controlled substance. The court concluded that the district court did not abuse its discretion in denying a new trial where defendant cannot satisfy most, if not all, of the elements that he must to receive a new trial. The court explained that a review of the trial testimony -- which includes no question about a government witness's recent or near-trial drug or alcohol use -- disproves the argument that the witness lied on the stand about recent or near-trial drug or alcohol use. Furthermore, defendant cannot show that he is entitled to a new trial based on the witness's post-trial revelation that she testified while drunk and high. The court agreed with the district court that the evidence of guilt was overwhelming and compelling, and even if defendant had blocked the witness's testimony, an acquittal seems unlikely. The court also concluded that the district court did not abuse its discretion in deciding against a Brady violation where, even if the government concealed the witness's mental state, defendant cannot show that such evidence counts as material impeachment evidence. Finally, the court concluded that the district court did not abuse its discretion in denying a downward sentencing departure where the district court made an individualized assessment under the facts presented, considered the 18 U.S.C. 3553 factors, and gave a reasoned basis for exercising its judgment. |
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| United States v. Howard |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-3704 Opinion Date: March 10, 2021 Judge: Per Curiam Areas of Law: Criminal Law |
| The Eighth Circuit reversed the district court's denial of defendant's motion for reconsideration and remanded to the district court for further proceedings. In denying both defendant's pro se motion for a sentence reduction and his counseled motion for reconsideration, the district court did not specifically address whether he is eligible for relief under the First Step Act. Under these circumstances, the court concluded that it is unable to conduct meaningful appellate review of the district court's order. The court remanded for further proceedings. |
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| United States v. Johnson |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-1610 Opinion Date: March 9, 2021 Judge: Lavenski R. Smith Areas of Law: Criminal Law |
| The Eighth Circuit held that the Speedy Trial Act does not permit exclusion of days caused by the court's own scheduling conflicts resulting from a crowded docket. The court explained that this constitutes general congestion under the Act and is not a legitimate ground upon which to exclude days under the Act. In this case, because the district court's reason for delay was not excludable under the act, the court will permit the district court to determine in the first instance whether to dismiss the indictment with or without prejudice by applying the factors set forth in 18 U.S.C. 3162(a)(2). The court also weighed the Barker factors and affirmed the district court's denial of defendant's Sixth Amendment claim. The court assessed the prejudice to defendant and concluded that her anxiety alone was insufficient to demonstrate prejudice. |
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| United States v. Ross |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-3524 Opinion Date: March 8, 2021 Judge: Roger Leland Wollman Areas of Law: Criminal Law |
| The Eighth Circuit affirmed defendant's conviction for distribution of heroin, fentanyl, and furanyl fentanyl resulting in victim's death. The court concluded that a reasonable factfinder could find that defendant distributed the fentanyl that caused the victim's death. In this case, defendant, a known drug dealer, delivered the two grams in two packages and defendant was aware at the time he left the victim's motel room that the victim had overdosed and was unconscious. Moreover, that the trace amount of loose powder on the desk was pure fentanyl—and not the three-drug mixture of the unopened package—does not disprove that defendant distributed the drug to the victim. |
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| United States v. Smith |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-3068 Opinion Date: March 5, 2021 Judge: Jane Louise Kelly Areas of Law: Criminal Law |
| The Eighth Circuit affirmed defendant's conviction and sentence for possession with the intent to distribute five or more grams of actual methamphetamine and possession of a firearm in furtherance of a drug trafficking crime. The court held that the officers had probable cause to detain defendant based on the registration violation alone and, given his earlier flight in the Nissan, it was not unreasonable for the officers to effectuate the stop by blocking the car in, or for the officer to ask defendant to step out of the car with his hands raised. Furthermore, defendant's initial failure to comply with the officer's commands and his furtive gestures, together with the car's earlier flight, made it reasonable for the officers to handcuff him. The court also concluded that, based on the smell of marijuana emanating from the car and the marijuana cigarette found in the passenger's jacket, the officers also had probable cause to search the entire vehicle for drugs and drug paraphernalia. After an officer had lawfully initiated the traffic stop and detained defendant, another officer's action in shining his flashlight to illuminate the interior of the vehicle did not violate the Fourth Amendment. Finally, the district court did not err in denying defendant's request for a lesser-included instruction on simple possession of methamphetamine. |
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| United States v. Staten |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2812 Opinion Date: March 8, 2021 Judge: Per Curiam Areas of Law: Criminal Law |
| The Eighth Circuit affirmed the district court's revocation of defendant's supervised release, concluding that the government established by a preponderance of the evidence that defendant had violated the terms of his supervised release by committing a new offense. In this case, although the district court acknowledged that there was no one piece of information that was the proverbial smoking gun, it found that a combination of all of the pieces of evidence established that defendant had participated in one or more bank robberies. The court also concluded that the district court did not abuse its discretion by imposing defendant's sentence where the district court sufficiently considered the 18 U.S.C. 3553(a) factors and did not rely on an improper factor or commit a clear error of judgment. |
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| Birhanu v. Wilkinson |
| Court: US Court of Appeals for the Tenth Circuit Docket: 19-9599 Opinion Date: March 9, 2021 Judge: Mary Beck Briscoe Areas of Law: Criminal Law, Government & Administrative Law, Immigration Law |
| Ethiopian native, petitioner Thewodros Wolie Birhanu petitioned the Tenth Circuit Court of Appeals for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The BIA dismissed Birhanu’s appeal of the Immigration Judge's (“IJ”) decision finding him removable. The BIA and the IJ found: (1) Birhanu was removable as an alien convicted of two or more crimes involving moral turpitude (“CIMTs”) not arising out of a single scheme of criminal misconduct; (2) he was not entitled to asylum or withholding of removal because his convictions qualified as particularly serious crimes; and (3) he was not entitled to relief under the Convention Against Torture (“CAT”). The Tenth Circuit dismissed Birhanu's claims under Section 504 of the Rehabilitation Act as unexhausted, and denied the balance of his petition for review on the merits. |
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| Granda v. United States |
| Court: US Court of Appeals for the Eleventh Circuit Docket: 17-15194 Opinion Date: March 11, 2021 Judge: Marcus Areas of Law: Criminal Law |
| The Eleventh Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 petition collaterally attacking his conviction for conspiracy to possess a firearm in furtherance of a crime of violence or drug-trafficking crime in violation of 18 U.S.C. 924(o). Defendant argued that conspiracy to commit Hobbs Act robbery no longer qualifies as a valid crime-of-violence predicate after United States v. Davis, 139 S. Ct. 2319, 2336 (2019), and Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019), and that his conviction must be vacated based on the possibility that the jury relied on an invalid predicate and thus convicted him of a non-existent crime. The court concluded that defendant cannot overcome the procedural default of his claim (which he raises for the first time on collateral attack), nor could he otherwise prevail on the merits. The court explained that all of the section 924(o) predicates are inextricably intertwined, arising out of the same cocaine robbery scheme. On this record, the jury could not have found that defendant conspired to possess a firearm in furtherance of a Hobbs Act conspiracy without also finding that he conspired to possess a firearm in furtherance of his attempted Hobbs Act robbery, as well as in furtherance of conspiring and attempting to possess cocaine with intent to distribute and in furtherance of attempting a carjacking. Each of these crimes remains a lawful predicate for the section 924(o) conviction. Therefore, the court concluded that defendant cannot show actual prejudice or actual innocence to excuse his procedural default. Furthermore, the overlapping factual relationship between the alternative predicate offenses renders any error in the jury instructions harmless. |
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| United States v. Knights |
| Court: US Court of Appeals for the Eleventh Circuit Docket: 19-10083 Opinion Date: March 10, 2021 Judge: William Holcombe Pryor, Jr. Areas of Law: Criminal Law |
| The Eleventh Circuit granted defendant's motion for panel rehearing, vacated the original opinion in this appeal, and substituted in its place the following opinion. The court affirmed the district court's denial of defendant's motion to suppress the evidence officers found in an investigatory stop and the statements he made to the officers. In this case, the officers saw defendant and another individual at 1:00 a.m. in a car that was parked in the front yard of a home; suspecting that the men might be trying to steal the car, the officers parked near it and approached defendant, who was in the driver's seat; when defendant opened the door, an officer immediately smelled marijuana; and an ensuing search of the car revealed ammunition and firearms. The court held that the officers did not violate defendant's right to be free from unreasonable seizures because defendant's interactions with the officers was an initially consensual encounter that did not implicate the Fourth Amendment. The court explained that a reasonable person in defendant's position would have felt free to leave. Here, the officers parked alongside the car with enough space for him to drive away. When the officers approached defendant to speak to him, they did not convey that defendant was required to comply. Defendant's other arguments to the contrary are unpersuasive. The court clarified that race may not be a factor in the threshold seizure inquiry. |
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| United States v. Rogers |
| Court: US Court of Appeals for the Eleventh Circuit Docket: 18-13532 Opinion Date: March 9, 2021 Judge: Branch Areas of Law: Criminal Law |
| The Eleventh Circuit affirmed defendant's 360-month sentence imposed after he pleaded guilty to two counts of production of child pornography and one count of distribution of child pornography. The court concluded that there was no error in applying a four-level sentencing enhancement under USSG 2G2.2(b)(4) for sadism/masochism for three separate images. The court also concluded that the application of USSG 2G2.2(b)(5) and 4B1.5 did not constitute impermissible double counting and there was no plain error; the district court did not abuse its discretion during the sentencing hearing in excluding evidence regarding the two pending state statutory rape cases involving one victim; and defendant's sentence is substantively reasonable. |
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| State v. Gomez |
| Court: Arizona Supreme Court Docket: CR-19-0292-PR Opinion Date: March 9, 2021 Judge: Bolick Areas of Law: Criminal Law |
| The Supreme Court vacated the decision of the court of appeals reversing Defendant's conviction of sexual assault, holding that the court of appeals improperly reversed the conviction on the ground that DNA evidence was improperly admitted. On appeal, the court of appeals held that the "minimal probative value" of the DNA evidence offered during trial was substantially outweighed by a danger of unfair prejudice and confusion and therefore was inadmissible under Ariz. R. Crim. P. 403. The court determined that the error was not harmless and reversed Defendant's conviction. The Supreme Court vacated the decision, holding that the evidence was neither unfairly prejudicial to Defendant nor confusing to the jury. The Court remanded this case to the court of appeals to consider an unresolved issue. |
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| Anderson v. Payne |
| Court: Arkansas Supreme Court Citation: 2021 Ark. 53 Opinion Date: March 11, 2021 Judge: Kemp Areas of Law: Criminal Law |
| The Supreme Court denied Petitioner's pro se motion to recall the mandate issued by the Supreme Court on direct appeal, his petition for a writ of habeas corpus, and his motion for joinder of claims, holding that Petitioner was not entitled to relief. Petitioner was convicted of capital murder and sentenced to a term of life imprisonment. The Supreme Court affirmed. In his motion to recall the mandate, Petitioner challenged the sufficiency of the evidence supporting his conviction and also brought a Brady claim. The Supreme Court denied relief, holding (1) Petitioner did not establish extraordinary circumstances sufficient to recall the mandate; (2) Petitioner must file his writ of habeas corpus in the circuit court; and (3) Petitioner did not establish that he was entitled to joinder of claims. |
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| Kolb v. State |
| Court: Arkansas Supreme Court Citation: 2021 Ark. 58 Opinion Date: March 11, 2021 Judge: Webb Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the circuit court denying Appellant's motion for a directed verdict, holding that the circuit court did not err in denying the motion. After a jury trial, Appellant was convicted of possession of methamphetamine and drug paraphernalia. On appeal, Appellant argued that the circuit court erred in denying her motion for a directed verdict because the State failed to prove that she possessed a "usable amount" of methamphetamine. The Supreme Court affirmed, holding that the circuit court properly denied Appellant's motion for a directed verdict. |
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| California v. Hawara |
| Court: California Courts of Appeal Docket: E074698(Fourth Appellate District) Opinion Date: March 8, 2021 Judge: Manuel A. Ramirez Areas of Law: Constitutional Law, Criminal Law |
| Defendant Munir Mtanews Hawara owned a liquor store. He hired Willis Simmons to burn down a rival liquor store, but Simmons failed. Simmons then subcontracted the job to Randy Ramirez. Ramirez tried to burn down the rival store three times, but he, too, failed. The scheme was exposed when Simmons’s sister contacted police. A jury found defendant guilty on four counts of arson of a structure. On all four counts, state of emergency enhancements were found true. On two counts, accelerant device enhancements were found true. Defendant was sentenced to 11 years 8 months in prison, along with fines, fees, and ancillary orders. On appeal, Defendant contended, among other things, that the prosecutor improperly cross- examined his character witnesses by asking them if it would change their opinion if they “knew” or “learned” about his commission of the crimes; he maintained that the only correct form for this type of cross-examination was to ask if it would have changed their opinion if they “heard” about his commission of the crimes. He also contended his trial counsel rendered ineffective assistance by failing to object to the improper cross-examination. In the published portion of its opinion, the Court of Appeal held a defense character witness who testifies based on his or her own opinion — rather than based solely on the defendant’s reputation — can be asked on cross-examination if he or she knows about the defendant’s bad acts. Alternatively, the Court held any error was harmless, because defendant’s commission of the crimes was amply shown by other evidence. In the unpublished portion of its opinion, the Court concluded that defendant did not show any other error. |
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| People v. Sommer |
| Court: California Courts of Appeal Docket: A158234(First Appellate District) Opinion Date: March 8, 2021 Judge: Petrou Areas of Law: Criminal Law, Professional Malpractice & Ethics |
| Sommer, a psychologist at a mental health clinic on a military base, sexually assaulted three patients under the guise of using “exposure therapy.” A jury convicted Sommer of several felonies, including sexual battery by fraudulent representation (Pen. Code, 243.4(c)). The trial court sentenced him to state prison. The court of appeal affirmed. Sufficient evidence supports the sexual battery by fraud conviction. Confusion is not surprising when a professional unexpectedly touches the sexual parts of the victim’s body during purported professional treatment. Confusion or doubt about the purpose of the touching does not preclude a conviction as long as the jury finds beyond a reasonable doubt that the victim allowed the touching to occur because of the defendant’s fraudulent misrepresentation of a professional purpose. The prosecutor did not misstate the law during his closing argument by saying: “Confusion is unconsciousness.” The court properly instructed the jury with CALCRIM No. 1191B, regarding consideration of charged sex offenses. The court did not err by refusing to release portions of the victims’ sealed mental health records; the undisclosed information “was not material to the defense.” |
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| People v. Washington |
| Court: California Courts of Appeal Docket: B296437(Second Appellate District) Opinion Date: March 9, 2021 Judge: Nora M. Manella Areas of Law: Criminal Law |
| Appellant appealed his conviction and sentence for possession of three controlled substances while armed with a firearm, possession of the three controlled substances for sale, possession of a firearm as a felon, and possession of ammunition as a felon. The Court of Appeal held that the trial court did not abuse its discretion in admitting evidence of appellant's prior conviction for possession for sale of cocaine base; nor did Evidence Code section 352 compel exclusion of the evidence; the evidence was sufficient to prove that appellant had knowledge of the narcotics found in the garage; and, having reviewed the sealed portion of the search warrant affidavit, the court found no error in the trial court's denial of appellant's motions to unseal, quash, and traverse the search warrant and to suppress all evidence found during the search of the garage. However, defendant's sentence violates Penal Code section 654's proscription against multiple punishments for a single act. The court explained that, under People v. Jones (2012) 54 Cal.4th 350, and its progeny, appellant's single possession of each item of contraband (methamphetamine, cocaine, cocaine base, and the firearm) constituted a single act, subject to only one punishment. Therefore, appellant's unstayed sentences for possessing controlled substances while armed imposed additional punishment for the same acts punished by his sentences for possession of the substances for sale and the possession of a firearm by a felon. Accordingly, appellant's sentence was unauthorized and the court vacated it, remanding for resentencing. The court otherwise affirmed. |
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| Colorado v. Peluso |
| Court: Colorado Supreme Court Citation: 2021 CO 16 Opinion Date: March 8, 2021 Judge: Hart Areas of Law: Constitutional Law, Criminal Law |
| In 2019, several parole officers approached a home that they believed was the residence of Susan Damico. Damico was a parolee whose parole agreement allowed officers to search “her person, residence, and/or vehicle” without a warrant as a condition of parole. When the officers arrived at the home, they found Damico in the front yard getting into her car. The officers identified themselves, informed Damico that they were conducting a parole visit, obtained a house key from her, and asked whether there was anyone inside the home. Damico told the officers that defendant-appellant Aaron Peluso was inside in bed. While the other officers entered the home, Damico's parole officer, Brook Hathaway, remained outside with Damico for several minutes. The officers who first entered the home found Peluso in bed and informed him of the purpose of their visit. After Peluso got dressed and out of bed, officers searched the room and found methamphetamine, THC, glass pipes, rolling papers, and a digital scale. Officers arrested Peluso and then searched his wallet, which contained additional methamphetamine. During the drive to jail, Peluso told officers that he had been using methamphetamine. Peluso was subsequently charged with possession of a controlled substance and possession of drug paraphernalia. He moved to suppress both the evidence recovered from his home and the statements he made after his arrest, arguing that the warrantless search of his home violated his Fourth Amendment rights. At the hearing, the trial court granted the motion to suppress, concluding that Damico did not actually live at Peluso's home at the time of the search, and Hathaway could have done more to verify Damico's address. The court further found that there was insufficient evidence to determine whether Peluso might have objected to the search once the officers entered his home. The State moved for reconsideration, arguing that the court incorrectly analyzed Damico’s actual, not apparent, authority to consent to the search. The Colorado Supreme Court concluded the trial court erred in suppressing the evidence and reversed the order. "Because parole officers reasonably believed Damico had authority to consent to a search of Peluso’s residence, her apparent authority was sufficient to validate the warrantless search, and Peluso’s motion to suppress should have been denied." |
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| State v. Kwong |
| Court: Supreme Court of Hawaii Docket: SCWC-19-0000334 Opinion Date: March 4, 2021 Judge: Mark E. Recktenwald Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the intermediate court of appeals (ICA) affirming Defendant's conviction of operating a vehicle under the influence of an intoxicant (OVUII), Haw. Rev. Stat. 291E-61(a)(1), holding that any error not taking judicial notice that thirty mph was equivalent to forty-four feet per second was harmless. During trial, Defendant's attorney asked the district court to take judicial notice that sixty miles per hour was equivalent to eighty-eight feet per second as a matter that is generally known. The court appeared to conclude that it could not take judicial notice of the conversion and that Defendant would have to present expert testimony. The Supreme Court affirmed, holding that trial courts are required to take judicial notice of equivalent measurements unless provided with the mathematical equation for conversion, but the error in this case was harmless. |
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| State v. Swift |
| Court: Iowa Supreme Court Docket: 18-2197 Opinion Date: March 5, 2021 Judge: McDermott Areas of Law: Criminal Law |
| The Supreme Court affirmed the decision of the court of appeals and the judgment of the district court convicting Defendant of attempted murder and related crimes, holding that any error that occurred in the proceedings below was harmless. Specifically, the Supreme Court held (1) whether Defendant's counsel breached an essential duty in failing to object to certain questions, any error was harmless; and (2) the district court did not abuse its discretion in admitting into evidence a policy body-cam video taken immediately after the shooting, a recorded call, or a recording of a police interview with the victim taken five days after the shooting. |
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| State v. Warren |
| Court: Iowa Supreme Court Docket: 19-0267 Opinion Date: March 5, 2021 Judge: Christensen Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed Defendant's conviction of driving while intoxicated (OWI), holding that defense counsel was not ineffective in declining to seek suppression of certain evidence on the basis that Defendant was subjected to an unconstitutional seizure. An officer observed Defendant illegally park her vehicle and stopped her to enforce the parking violation. Upon smelling marijuana and observing signs of Defendant's intoxication the officer inquired about her intoxication. The officer asked Defendant for her registration and insurance and discovered that her driver's license was revoked. Defendant was convicted of second-offense OWI and driving while license was revoked. The Supreme Court affirmed, holding (1) there was sufficient evidence to support Defendant's OWI conviction; and (2) Defendant's counsel was not ineffective in failing to seek suppression of the evidence because the officer had probable cause to seize Defendant based upon his observation of her traffic violation. |
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| Ellie v. State |
| Court: Kansas Supreme Court Docket: 120030 Opinion Date: March 5, 2021 Judge: Marla J. Luckert Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed the judgment of the district court reversing Defendant's conviction of aggravated battery, rape, and aggravated kidnapping on the grounds that a conflict of interest existed between Defendant and his counsel that adversely affected the representation. In his Kan. Stat. Ann. 60-1507 motion for relief from his convictions Defendant argued that his counsel had a personal and financial conflict of interest that adversely affected his performance in Defendant's case. The district court agreed and set aside Defendant's convictions without determining whether prejudice resulted from the conflict of interest. The Supreme Court affirmed, holding that Defendant's convictions must be reversed based on the financial conflict of interest of his trial counsel. |
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| In re Care & Treatment of Quillen |
| Court: Kansas Supreme Court Docket: 120184 Opinion Date: March 5, 2021 Judge: Wall Areas of Law: Constitutional Law, Criminal Law, Health Law |
| The Supreme Court affirmed the judgment of the district court denying Richard Quillen's petition to be placed in transitional release from his civil commitment as a sexually violent predator under the Kansas Sexually Violent Predator Act (KSVPA), holding that the jury instructions given at Quillen's transitional release hearing were constitutionally adequate. After a jury trial, the court found that Quillen's mental abnormality or personality disorder remainder such that he was not safe to be placed in transitional release. On appeal, Quillen argued that the district court erred when it denied his request for an instruction that the jury must find Quillen had serious difficulty controlling his behavior. The Supreme Court affirmed, holding (1) at a transitional release hearing, substantive due process requirements are satisfied when the jury instructions as a whole require the jury to necessarily and implicitly find the respondent continues to have serious difficulty controlling his dangerous behavior; and (2) the jury instructions in Quillen's case were constitutionally adequate under this standard. |
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| State v. Hayes |
| Court: Kansas Supreme Court Docket: 121881 Opinion Date: March 5, 2021 Judge: Marla J. Luckert Areas of Law: Criminal Law |
| The Supreme Court affirmed the district court's summary dismissal of Defendant's motion to correct an illegal sentence, holding that the district court did not err. Defendant was convicted of first-degree murder, aggravated robbery, and conspiracy to commit robbery. Upon sentencing, the sentencing judge granted the State's request for an upward departure without the use of a jury. The Supreme Court affirmed the convictions on direct appeal, and the mandate issued on January 9, 1996. In his latest postconviction motion, Defendant argued that his upward departure sentence violated his due process rights under Apprendi v. New Jersey, 530 U.S. 466 (2000) and State v. Gould, 23 P.3d 801 (2001). The district court summarily dismissed Defendant's motion. The Supreme Court affirmed, holding that several factors precluded Defendant from pursuing relief through a motion for illegal sentence, including the fact that a motion for illegal sentence cannot serve as a vehicle for raising constitutional claims such as Defendant's Apprendi claim. |
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| State v. Thornton |
| Court: Kansas Supreme Court Docket: 120028 Opinion Date: March 5, 2021 Judge: Dan Biles Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed Defendant's convictions for possession of marijuana, methamphetamine, and drug paraphernalia, holding that the trial court erred in admitting evidence that a syringe was found by police during a search that violated Defendant's Fourth Amendment rights but that the error was harmless. On appeal, the State conceded that the district court should have granted Defendant's motion to suppress on the syringe, admitting that the search incident to arrest exception for a warrantless search did not apply to this particular search. The court of appeals affirmed, accepting the State's concession that the syringe discovery was the product of an illegal search but without determining whether the evidence was harmless beyond a reasonable doubt. The Supreme Court affirmed, holding the court's admission of the syringe evidence was harmless beyond a reasonable doubt. |
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| Oquendo v. Commonwealth |
| Court: Massachusetts Supreme Judicial Court Docket: SJC-12944 & SJC 12963 Opinion Date: March 10, 2021 Judge: Per Curiam Areas of Law: Criminal Law |
| The Supreme Judicial Court affirmed the two judgments of a single justice of the court denying Petitioner's petitions for extraordinary relief pursuant to Mass. Gen. Laws ch. 211, 3, by which Petitioner sought pretrial release or a reduction in bail, holding that the single justice properly denied relief. Petitioner was charged with rape and indecent assault and battery on a person age fourteen or older. Bail was set at $75,000, an amount Petitioner was unable to post bail in this amount. Petitioner moved for immediate release based on the dangers of the coronavirus pandemic. The superior court denied relief. Upon further bail hearing, the judge reduced Petitioner's bail to $25,000. Petitioner was unable to post bail in this amount. Petitioner petitioned a single justice for relief from the two orders, but the justice denied relief. The Supreme Judicial Court affirmed, holding that the single justice did not err or abuse her discretion in denying relief. |
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| State v. Lehman |
| Court: Supreme Court of Missouri Docket: SC98844 Opinion Date: March 8, 2021 Judge: Laura Denvir Stith Areas of Law: Criminal Law |
| The Supreme Court reversed Defendant's conviction for the class E felony of loitering within 500 feet of a public park, in violation of Mo. Rev. Stat. 566.150, holding that there was insufficient evidence to support the conviction. On appeal, Defendant argued (1) the evidence was insufficient to support the conviction because it failed to show that he was knowingly within 500 feet of a public park or that he was loitering, and (2) section 556.150 is constitutionally invalid because it is vague and overbroad. The Supreme Court agreed with Defendant's first argument, holding that the State failed to introduce evidence from which a fact-finder reasonably could conclude that Defendant was within 500 feet of a public park. |
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| State v. Combs |
| Court: Nebraska Supreme Court Citation: 308 Neb. 587 Opinion Date: March 5, 2021 Judge: Michael G. Heavican Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed the order of the district court denying Defendant's motion for postconviction relief, holding that the district court did not err in dismissing the motion for postconviction relief. Defendant was convicted of one count of theft by unlawful taking, one count of attempted theft by unlawful taking, and one count of abuse of a vulnerable adult. In his postconviction motion, Defendant alleged that his counsel was ineffective for failing to file a direct appeal when he was directed to do so. The district court denied the motion following a hearing. The Supreme Court affirmed, holding that the district court correctly found that Defendant was not deficient in failing to file a direct appeal. |
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| Sewall v. District Court |
| Court: Supreme Court of Nevada Citation: 137 Nev. Adv. Op. No. 9 Opinion Date: March 4, 2021 Judge: Cadish Areas of Law: Criminal Law |
| The Supreme Court granted a petition for a writ of mandamus sought by Petitioner arguing that the district court was required to grant his release on bail under Nev. Const. art. I, 7, holding that the State's evidence was insufficient to defeat Petitioner's right to reasonable bail. Petitioner was charged by indictment with first-degree murder with the use of a deadly weapon. Petitioner filed motion to suppress his confession to the murder, which the district court granted. Thereafter, Petitioner moved to set reasonable bail on the basis that the State's proof was not evident, nor was the presumption great, that he committed the crime. The district court denied bail. The Supreme Court reversed, holding that the State failed to rebut the presumption in favor of bail under Article 1, Section 7 and, therefore, the district court's denial of Petitioner's request for release on reasonable bail was contrary to law. |
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| Farley v. Wainwright |
| Court: Supreme Court of Ohio Citation: 2021-Ohio-670 Opinion Date: March 11, 2021 Judge: Per Curiam Areas of Law: Criminal Law |
| The Supreme Court affirmed Appellant's petition for a writ of habeas corpus alleging that he was entitled to immediate release from prison because the Bureau of Sentence Computation (BSC) and the Department of Rehabilitation and Correction (DRC) failed to update their records after Appellant was resentenced in 2000, holding that Appellant failed to state a claim upon which relief can be granted. In dismissing the petition, the Third District held that Appellant had failed to attach all applicable commitment papers to his petition, as required under Ohio Rev. Code 2725.04(D), and that Appellant had not alleged facts showing that he was entitled to immediate release from prison. The Supreme Court affirmed, holding (1) Appellant provided his commitment papers with his petition; and (2) Appellant was not entitled to immediate release. |
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| State ex rel. Sands v. Coulson |
| Court: Supreme Court of Ohio Citation: 2021-Ohio-671 Opinion Date: March 11, 2021 Judge: Per Curiam Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the court of appeals dismissing Appellant's complaint for a writ of mandamus against Lake County Prosecuting Attorney Charles Coulson, holding that Appellant was not entitled to the writ. Appellant was convicted of three counts of conspiracy to commit aggravated murder, two counts of conspiracy to commit aggravated arson, and one count of engaging in a pattern of corrupt activity. In his action for a writ of mandamus, Appellant alleged that his convictions were based on perjured testimony and that Coulson had a constitutional duty to provide him a fair trial. The court of appeals granted Coulson's motion to dismiss. The Supreme Court affirmed, holding that the court of appeals correctly dismissed the complaint for failure to state a claim upon which relief can be granted because Coulson was not under a clear legal duty to perform an action that he had no legal authority to undertake. |
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| State ex rel. Thomas v. Nestor |
| Court: Supreme Court of Ohio Citation: 2021-Ohio-672 Opinion Date: March 11, 2021 Judge: Per Curiam Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the court of appeals dismissing Appellant's petition for a writ of procedendo and/or mandamus seeking to compel the trial court's compliance with Civ.R. 58(B), holding that, although the court of appeals' judgment dismissing the petition was correct. Appellant, an inmate, sought the writ to compel Hamilton County Court of Common Pleas Judge Steven Martin to serve upon Appellant a judgment entry in which Appellant's motion to correct his sentencing entry was denied. The court of appeals dismissed the motion. The Supreme Court affirmed, holding that granting Appellant his requested writ of mandamus was of no benefit to him because Appellant could still timely file a notice of appeal from the judgment entry. |
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| Ibrahim v. Department Of Public Safety |
| Court: South Dakota Supreme Court Citation: 2021 S.D. 17 Opinion Date: March 10, 2021 Judge: Jensen Areas of Law: Criminal Law, Government & Administrative Law |
| The Supreme Court reversed the judgment of the circuit court reversing the judgment of the Department of Public Safety ordering Appellee's commercial driving privileges to be disqualified for one year, holding that commercial driver's license (CDL) disqualification under S.D. Codified Laws 32-12A-36(4) applies when a vehicle is used as a means to possess a felony quantity of marijuana. The Department disqualified Appellee's commercial driving privileges for one year pursuant to 32-12A-36(4) because he had been convicted of a felony committed in a vehicle by a CDL holder. The circuit court reversed Appellee's CDL disqualification, holding that the statute requires that a vehicle was an "instrumentality" of the felony. The Supreme Court reversed and reinstated the Department's decision, holding (1) possession of a felony quantity of marijuana in a vehicle is "using a...vehicle in the commission of any felony" under section 13-21A-36(4); (2) the circuit court erred by holding that section 13-21A-36(4) was unconstitutionally vague; and (3) there was sufficient evidence to support the Department's disqualification of Appellee's CDL privileges. |
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| Ortiz v. Texas |
| Court: Texas Court of Criminal Appeals Dockets: PD-1061-19, PD-1362-18 Opinion Date: March 10, 2021 Judge: Keel Areas of Law: Constitutional Law, Criminal Law |
| The appellants in consolidated cases were charged with occlusion assault under Texas Penal Code Section 22.01(b)(2)(B). At their respective trials, they each requested an instruction on bodily-injury assault as a lesser-included offense of occlusion. Their requests were denied, and they were convicted of occlusion assault. On appeal their cases diverged: The court of appeals in Orlando Ortiz's case held the trial court erred in refusing to instruct the jury on bodily-injury assault, but Dewey Barrett's held that there was no error in refusing the instruction. The Texas Court of Criminal Appeals granted review to decide whether appellants were entitled to an instruction on bodily-injury assault as a lesser included of occlusion. The Court also granted review in Barrett's case to consider whether Irving v. Texas, 176 S.W.3d 842 (Tex. Crim. App. 2005), should have been overruled, and whether multiple injuries from a single attack constituted separate prosecutable assaults. The Court held that bodily-injury assault was not a lesser-included offense of occlusion assault when the disputed element is the injury because the statutorily specified injury of impeding normal breathing or blood circulation is exclusive of other bodily injuries. Consequently, the judgment of the court of appeals in Ortiz was reversed, and the judgment in Barrett was affirmed. Furthermore, the Court held that overruling Irving would have made no difference in Barrett’s case because Irving was inapplicable here. And because the Court could resolve Barrett without addressing whether multiple injuries inflicted in a single attack could be separately prosecuted, it did not reach that ground for review. |
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| Vermont v. Blanchard |
| Court: Vermont Supreme Court Citation: 2021 VT 13 Opinion Date: March 5, 2021 Judge: Beth Robinson Areas of Law: Constitutional Law, Criminal Law |
| Defendant Jospeh Blanchard was convicted by jury for criminal threatening and impeding a public officer. The charges arose after a dark and rainy night in April 2018, when a police officer pulled defendant's car over with a burned-out passenger-side headlight. Defendant asked the officer why he was pulled over, and whether he was suspected of a crime. After some back and forth in which defendant asserted that there was no reason to stop him, defendant gave the officer his license, insurance and car registration papers. Upon reviewing the registration and insurance documents, the officer observed both were out-of-date, with the registration expiring in 2016. Defendant told the officer he did not have to have registration or insurance and that it was his constitutional right to travel, and he asked to speak with the officer's supervisor. Upon the supervisor's arrival, and after speaking with defendant for approximately thirty-seven minutes, both officers informed defendant they were going to ground his vehicle in the parking lot because of his defective equipment and outdated registration and insurance. Defendant resisted, stating he would defend himself, and claimed he had an AR-15 rifle in the car. The supervisor testified defendant did not appear to be joking and that he believed he was in jeopardy. After several more minutes of the supervisor telling defendant that he could not drive the car and defendant responding that he could and that he had not committed a crime, defendant attempted to open the driver’s-side door to his car. The supervisor pushed the door closed before defendant could get back in. In this time, two other officers arrived at the scene. Defendant again attempted to open the door; the supervisor pushed the door shut and placed defendant under arrest for impeding an officer. On appeal, defendant argued insufficient evidence was presented to support his conviction, and that the jury instructions in impeding an officer were impermissibly vague and overbroad and failed to guarantee unanimity. Finding no reversible error, the Vermont Supreme Court affirmed defendant's conviction. |
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| In re Pers. Restraint of Monschke |
| Court: Washington Supreme Court Docket: 96772-5 Opinion Date: March 11, 2021 Judge: Sheryl Gordon McCloud Areas of Law: Constitutional Law, Criminal Law, Juvenile Law |
| Petitioners Dwayne Bartholomew and Kurtis Monschke were each convicted of aggravated first degree murder and sentenced to life in prison without possibility of parole - a mandatory, nondiscretionary sentence under Washington’s aggravated murder statute. Bartholomew was 20 years old; Monschke was 19. Many years after their convictions, each filed a personal restraint petition (PRP) asking the Washington Supreme Court to consider whether article I, section 14 of the state constitution or the Eighth Amendment to the United States Constitution permitted a mandatory life without parole (LWOP) sentence for youthful defendants like themselves. "[W]hen it comes to mandatory LWOP sentences, [Miller v. United States, 567 U.S. 460 (2012)]'s constitutional guarantee of an individualized sentence - one that considers the mitigating qualities of youth - must apply to defendants at least as old as these defendants were at the time of their crimes." Accordingly, the Supreme Court granted both PRPs and ordered that Bartholomew and Monschke each receive a new sentencing hearing. |
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| State v. Jendusa |
| Court: Wisconsin Supreme Court Docket: 2018AP002357-LV Opinion Date: March 10, 2021 Judge: Dallet Areas of Law: Criminal Law, Government & Administrative Law |
| The Supreme Court affirmed the order of the court of appeals denying the State's petition for leave to file an interlocutory appeal of an order of the circuit court granting Defendant's discovery request, holding that the circuit court did not err in granting the request. In 2016, the State filed a petition seeking to commit Defendant was a sexually violent person. The circuit court found probable cause to believe that Defendant was a sexually violent person and bound him over for trial. Thereafter, Defendant moved the circuit court to order the Wisconsin Department of Corrections (DOC) to disclose its database so he could have an expert analyze the Wisconsin-specific base rate. Defendant asserted that the DOC's Wisconsin-specific data provided a more relevant basis upon which to calculate his risk of engaging in future acts of sexual violence and that the database was discoverable. The circuit court ordered the DOC to transmit the full, unredacted database to Defendant. The court of appeals denied the State's petition for leave to appeal the non-final order. The Supreme Court affirmed, holding that the circuit court permissibly ordered the disclosure of the DOC database. |
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| Elmore v. State |
| Court: Wyoming Supreme Court Citation: 2021 WY 41 Opinion Date: March 9, 2021 Judge: Michael K. Davis Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed Defendant's conviction for possession of a controlled substance, holding that the district court did not err in denying Defendant's motion to suppress under the Fourth Amendment to the United States Constitution and Wyo. Const. art. I, 4. A highway patrol trooper stopped Defendant when he twice observed Defendant's vehicle cross the dotted center white line separating the two lanes of traffic. Marijuana was found in a free-air K-9 sniff during the stop. In his motion to suppress, Defendant argued that his failure to maintain a single lane of travel on the two occasions did not create reasonable suspicion justifying the stop of his vehicle. The district court denied the motion to suppress. The Supreme Court affirmed, holding that the district court did not err in concluding that reasonable suspicion supported the initial stop. |
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| Harrison v. State |
| Court: Wyoming Supreme Court Citation: 2021 WY 40 Opinion Date: March 8, 2021 Judge: Fox Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the district court concluding that Defendant was eligible to petition for relief from the duty to register as a sex offender only if he had been registered for twenty-five years, holding that the district court did not err. Thirteen years after his conviction of four-degree sexual assault, now codified as third-degree sexual assault, Defendant began registering as a sex offender when he learned he was obligated to do so by a change in the statute. Twenty-five years after his conviction, Defendant filed a petition seeking to be relieved of the duty to register. The district court granted the petition. When the Division of Criminal Investigation moved for relief from the judgment the district court. The district court granted the motion, holding that Defendant was eligible for relief only after he had been registered for twenty-five years. The Supreme Court affirmed, holding (1) the district court did not err when it interpreted the Wyoming Sex Offender Registration Act (WSORA); (2) the WSORA is not an ex post facto punishment; and (3) Defendant failed to raise a timely or cogent claim that the WSORA violated his constitutional right to protection. |
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| Neidlinger v. State |
| Court: Wyoming Supreme Court Citation: 2021 WY 39 Opinion Date: March 8, 2021 Judge: Michael K. Davis Areas of Law: Criminal Law |
| The Supreme Court affirmed Defendant's conviction of first-degree sexual assault, holding that there was no error in the proceedings below but that remand was required for correction of a clerical error contained in the judgment and sentence. Specifically, the Supreme Court held (1) the district court did not err in denying Defendant's motion for a new trial because Defendant failed to show that trial counsel was constitutionally ineffective; (2) there was sufficient evidence to support a conviction of sexual assault in the first degree; and (3) the district court did not abuse its discretion in using a special verdict form that required the jury to answer questions related to the charged offense before it was required to make a finding of guilt. |
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