| Munyenyezi v. United States |
| Court: US Court of Appeals for the First Circuit Docket: 19-2041 Opinion Date: March 3, 2021 Judge: William Joseph Kayatta, Jr. Areas of Law: Criminal Law |
| The First Circuit affirmed the judgment of the district court denying Defendant's petition for habeas corpus relief under 28 U.S.C. 2255(a), holding that Defendant was not actually prejudiced by instructions given to the jury in her case. Defendant was convicted of procuring naturalization based on false statements to immigration officials about her conduct during the Rwandan genocide and of procuring naturalization as an ineligible person. After the First Circuit affirmed the convictions, the Supreme Court decided Maslenjak v. United States, 137 S. Ct. 1918 (2017), which held that the government must show that an illegality played a role in the acquisition of citizenship to prove a violation of 18 U.S.C. 1425(a). Defendant filed a petition for writ of habeas corpus challenging the materiality instruction given in her case based on Maslenjak. The district court denied the petition. The First Circuit affirmed, holding that any assumed Maslenjak error in the challenged instruction did not substantially influence the jury's decision. |
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| United States v. Rodriguez-Rivera |
| Court: US Court of Appeals for the First Circuit Docket: 19-1529 Opinion Date: March 4, 2021 Judge: William Joseph Kayatta, Jr. Areas of Law: Criminal Law |
| The First Circuit held that a conviction under 21 U.S.C. 846 for conspiring to commit a controlled substance offense qualifies as a conviction for a controlled substance offense under U.S.S.G. 4B1.2(b), even though section 846 does not require proof of an overt act. Defendant pled guilty to unlawful possession of a firearm as a convicted felon and unlawful possession of a machine gun. In sentencing Defendant, the district court applied a controlled substance enhancement based on Defendant's previous drug distribution conspiracy conviction under 21 U.S.C. 846. On appeal, Defendant argued that his prior conviction did not qualify as a conspiracy offense for purposes of U.S.S.G. 2K2.1 because a conviction under section 846 does not have as an element the commission of an overt act. The First Circuit affirmed, holding that conspiring under section 846 is "conspiring" within the meaning of Application Note 1 to section 4B1.2(b). |
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| United States v. Stepanets |
| Court: US Court of Appeals for the First Circuit Dockets: 19-1471, 19-1600, 19-1595 Opinion Date: February 26, 2021 Judge: David J. Barron Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The First Circuit affirmed the convictions received by Defendants, three former employees of the New England Compounding Center (NECC), for a number of federal offenses related to aspects of NECC's operation that were identified in the course of a federal criminal investigation into NECC's medication, holding that there was no prejudicial error. In 2012, patients across the country began falling ill after having been injected with a contaminated medication compounded by NECC. After many of these patients died, a federal criminal investigation ensued. A jury found Stepanets, Svirskiy, and Leary each guilty of committing multiple federal crimes. The First Circuit affirmed Defendants' convictions and Stepanets' sentence, holding (1) there was sufficient evidence to support the convictions; (2) it was not clear or obvious error under the Eighth Amendment for the district court to impose the sentence that Stepanets received; (3) Svirskiy's challenges to his convictions were without merit; and (4) Leary's arguments on appeal were unavailing. |
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| Collier v. United States |
| Court: US Court of Appeals for the Second Circuit Docket: 17-2402 Opinion Date: March 1, 2021 Judge: Susan Laura Carney Areas of Law: Criminal Law |
| The Second Circuit affirmed the district court's denial of petitioner's 28 U.S.C. 2255 motion, seeking vacatur of his 1998 conviction for possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A). After holding the decision in this case pending disposition of other cases presenting related questions, the court concluded that attempted federal bank robbery under 18 U.S.C. 2113(a), which requires that the attempt be made "by force and violence, or by intimidation," is categorically a crime of violence for purposes of section 924(c)(1) pursuant to United States v. Hendricks, 921 F.3d 320 (2d Cir. 2019), cert. denied, 140 S. Ct. 870 (2020). Furthermore, in light of the court's recent decision in Nunez v. United States, 954 F.3d 465, 471 (2d Cir. 2020), the court found untimely and declined to reach the merits of defendant's additional arguments related to his sentencing under U.S.S.G. 4B1.2. In Nunez, the court held that the Supreme Court in Johnson v. United States, 576 U.S. 591 (2015), did not recognize a constitutional right not to be sentenced under the residual clause of the pre-Booker Career Offender Guideline. Therefore, the court concluded that defendant's petition is untimely insofar as it challenges his sentence under that pre-Booker Guideline: the right he now asserts has not yet been recognized by the Supreme Court. The court explained that no decision newly announced and now made retroactive excuses him from meeting the one-year time limitation set out in section 2255(f). |
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| United States v. Chestnut |
| Court: US Court of Appeals for the Second Circuit Docket: 20-3208 Opinion Date: March 2, 2021 Judge: Richard J. Sullivan Areas of Law: Criminal Law |
| The Second Circuit dismissed defendant's appeal of the district court's denial of his motion for compassionate release under 18 U.S.C. 3582(c)(1)(A) as moot. While this appeal was pending, defendant completed his federal prison sentence. The court explained that, although defendant is now on supervised release, he has neither requested that the district court reduce his term of supervision nor advanced any arguments to suggest that such a reduction is warranted. The court noted that dismissal will not result in hardship to defendant. If defendant believes that the arguments that he marshaled in favor of compassionate release would also merit a reduction in his term of supervised release, the court concluded that he is free to make such a motion under 18 U.S.C. 3583(e) and Federal Rule of Criminal Procedure 32.1(c). |
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| United States v. Scott |
| Court: US Court of Appeals for the Second Circuit Docket: 18-163 Opinion Date: March 2, 2021 Judge: Reena Raggi Areas of Law: Criminal Law |
| The United States appeals from the district court's amended judgment pursuant to 28 U.S.C. 2255, vacating defendant's 22-year sentence for Hobbs Act robbery and related firearms crimes and resentencing him to time served. The district court concluded that it had mistakenly applied the Armed Career Criminal Act (ACCA) and the Career Offender Guideline, USSG 4B1.1, in determining defendant's initial sentence because two prior convictions relied on as predicates for those enhancements were for New York first-degree manslaughter, which the district court ruled is not a categorical "violent felony" (ACCA) or "crime of violence" (Guideline). The Second Circuit, rehearing the case en banc, agreed with the United States that first-degree manslaughter is a categorical violent felony/crime of violence because a person can be guilty of that crime—whether by commission or omission—only if he (a) causes death, while (b) intending to cause at least serious bodily injury, and the Supreme Court, in United States v. Castleman, 572 U.S. 157, 169 (2014), stated that "the knowing or intentional causation of bodily injury necessarily involves the use of physical force." Accordingly, the court vacated the panel decision, reversed the district court's grant of the section 2255 motion, and remanded with directions to reinstate defendant's original sentence and judgment. |
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| United States v. Prophet |
| Court: US Court of Appeals for the Third Circuit Docket: 18-3776 Opinion Date: March 3, 2021 Judge: Rendell Areas of Law: Criminal Law |
| Prophet pleaded guilty to possessing child pornography, 18 U.S.C. 2252(a)(4) and 11 counts of receipt of child pornography, section 2252(a)(2). The court applied a two-level enhancement for distribution (U.S.S.G. 2G2.2(b)(3)(F)) based on Prophet’s use of LimeWire, a peer-to-peer file-sharing network. Prophet maintained that he did not know that LimeWire made his files available to other users. The court noted that “distribution” “is not restricted to acts with intent only,” and sentenced Prophet to 168 months’ imprisonment plus 15 years of supervised release. The Third Circuit affirmed. Prophet moved to vacate his sentence in 2015 based on a Third Circuit holding that the offense of distribution of child pornography under section 2252(a)(2) based on the use of a peer-to-peer network requires evidence that another person accessed the material. The Third Circuit affirmed the denial of the petition. Prophet subsequently challenged the application of a two-point Guidelines enhancement for distribution of child pornography, citing 2016’s U.S.S.G. Amendment 801, limiting the enhancement to those who “knowingly engaged in distribution.” The Third Circuit again denied relief. Amendment 801 is not a clarifying amendment that can be raised and retroactively applied under 28 U.S.C. 2255. The court noted that Prophet was released from prison in 2019 and is now serving supervised release. |
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| United States v. Seigler |
| Court: US Court of Appeals for the Fourth Circuit Docket: 19-4491 Opinion Date: March 3, 2021 Judge: G. Steven Agee Areas of Law: Criminal Law |
| The Fourth Circuit affirmed defendant's conviction and sentence for conspiracy to manufacture, distribute, or possess with the intent to distribute controlled substances or to use a communication facility in committing and causing the facilitation of any felony controlled substance offense. The court concluded that the evidence was sufficient to support defendant's convictions. The court also concluded that defendant has not demonstrated he is entitled to have his conviction vacated for a new trial because he has not shown error or prejudice. In this case, the court discerned no obvious problem with the verdict form despite the use of the "and/or" construction. Furthermore, because the conspiracy conviction can stand based on the first object of the conspiracy (drug distribution), the court need not consider defendant's challenge to the verdict form's wording of the second object of the conspiracy (use of a communication facility). The court further concluded that defendant has not met his initial burden of showing that he was entitled to a Franks hearing. Finally, the court concluded that the district court did not commit reversible error in holding defendant responsible for between four and eight pounds of methamphetamine in determining his base offense level, and the district court did not err by imposing a two-level sentencing enhancement for obstruction of justice under USSG 3C1.1. |
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| United States v. Shea |
| Court: US Court of Appeals for the Fourth Circuit Docket: 19-7692 Opinion Date: March 2, 2021 Judge: Niemeyer Areas of Law: Criminal Law |
| Respondent — who was civilly committed in 2015 to the custody of the Attorney General under the Adam Walsh Child Protection and Safety Act of 2006 as a sexually dangerous person — was properly released under government-proposed conditions that prescribe a "regimen of medical, psychiatric, or psychological care or treatment," 18 U.S.C. 4248(e)(2). The Fourth Circuit concluded that the district court did not clearly err in finding that respondent would be sexually dangerous to others without the conditions and that the district court did not procedurally err in imposing the conditions. Accordingly, the court affirmed the district court's judgment. |
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| United States v. Spruhan |
| Court: US Court of Appeals for the Fourth Circuit Docket: 19-7650 Opinion Date: March 2, 2021 Judge: Diana Jane Gribbon Motz Areas of Law: Criminal Law |
| The Fourth Circuit affirmed the district court's denial of defendant's motion to lower his Sentencing Guidelines range. The court concluded that the Sentencing Guidelines generally prohibit courts from reducing a defendant's sentence where, as here, the original term of imprisonment is "less than the minimum of the amended guideline range." In this case, defendant was sentenced to a 180-month term of imprisonment for conspiring to distribute methamphetamine. The court explained that defendant's original 180-month sentence is well below the 210-month minimum of the amended Guidelines range for his offense. The court also concluded that USSG 1B1.10(b)(2) does not irreconcilably conflict with 28 U.S.C. 991(b), and that section 1B1.10(b)(2) does not violate the Equal Protection Clause. |
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| United States v. Young |
| Court: US Court of Appeals for the Fourth Circuit Dockets: 19-4149, 19-4222 Opinion Date: February 26, 2021 Judge: Albert Diaz Areas of Law: Criminal Law |
| Defendants Young and Volious were convicted of (1) a criminal conspiracy with several objectives; (2) aiding and abetting the transportation of an explosive in interstate commerce to kill an individual; (3) aiding and abetting the mailing of a non-mailable item with intent to kill; and (4) aiding and abetting the carrying of an explosive during the commission of a felony. Defendants' convictions stemmed from their plan to kill Young's ex-wife by mailing her a bomb. The Fourth Circuit concluded that, as a matter of law, an inert bomb that contains explosives qualifies as a nonmailable item under 18 U.S.C. 1716, and that sufficient evidence supported defendants' convictions for aiding and abetting the mailing of a nonmailable item. Furthermore, because mailing a nonmailable item with intent to kill under section 1716(j) was the predicate felony, the court upheld the jury's convictions for aiding and abetting the carrying of an explosive during the commission of a felony in violation of 18 U.S.C. 844(h). Finally, the court rejected Volious's challenges to the indictment, the jury instructions, and the district court's denial of his pre-trial motion to sever. |
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| United States v. Clark |
| Court: US Court of Appeals for the Fifth Circuit Docket: 19-10186 Opinion Date: March 4, 2021 Judge: Gregg Costa Areas of Law: Criminal Law |
| Defendant pleaded guilty to health care fraud after operating a chiropractic clinic that fraudulently billed insurance companies for services he performed without a license. Defendant was sentenced to 41 months' imprisonment and ordered to pay the defrauded insurance companies $514,576.29 under the Mandatory Victim Restitution Act (MVRA). The Act generally allows the government to garnish any of the defendant's property to satisfy a restitution order. The district court issued writs of garnishment for accounts defendant maintains with brokerage firms and life insurance companies. Applying de novo review, the Fifth Circuit agreed with the Sixth Circuit that the child-support exemption only applies to money akin to salary and wages—meaning amounts received directly for labor such as "bonuses, tips, commissions, and fees." Because this does not describe defendant's retirement accounts, the court affirmed the judgment garnishing those accounts. |
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| United States v. Diaz |
| Court: US Court of Appeals for the Fifth Circuit Docket: 19-11112 Opinion Date: March 1, 2021 Judge: Jerry Edwin Smith Areas of Law: Criminal Law |
| The Fifth Circuit affirmed defendant's conviction for conspiring to acquire a firearm from a licensed firearms dealer by false or fictitious statement. Defendant and her husband served as illegal straw-purchasers in a weapons-trafficking arrangement. The court concluded that the district court did not plainly err when it instructed defendant as to the elements of 18 U.S.C. 922(a)(6). The court rejected defendant's contention that the reasoning in Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) -- which held that, in a prosecution under 18 U.S.C. 922(g) and 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm -- extends to section 922(a)(6). Plaintiff argued that, to convict for conspiracy to violate section 922(a)(6), the government must prove not only that she knowingly made a false statement but also that she made such statement to a seller she knew to be a licensed dealer. However, the court explained that Rehaif does not compel such a conclusion and that Rehaif expressly limited its application in relation to other portions within subsection (g). The court concluded that, even if Rehaif compels the inclusion of the scienter requirement for which defendant advocates for prosecutions under sections 922(a)(6) and 924(a)(2), that is not the crime of which she pleaded guilty. Furthermore, section 371 does not contain the "knowingly" requirement included in section 924(a)(2). Even after Rehaif, and even for prosecutions under sections 922(a)(6) and 924(a)(2), the court has continued to adhere to its long-held view of what the government must prove under section 922(a)(6). The court also rejected defendant's claim for selective or vindictive prosecution based on her appeal waiver. Finally, the court dismissed defendant's claim of ineffective assistance of counsel. |
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| United States v. Johnson |
| Court: US Court of Appeals for the Fifth Circuit Docket: 19-30921 Opinion Date: March 3, 2021 Judge: James L. Dennis Areas of Law: Criminal Law |
| The Fifth Circuit affirmed Defendants Johnson and Goings' convictions and sentences for the armed robbery of two banks and one credit union and related firearms offenses. The court concluded that the evidence was sufficient to support Johnson's convictions for brandishing a firearm during the armed robbery of the credit union and his two convictions for being a felon in possession of a firearm; the evidence was sufficient to support Goings' convictions for armed robbery of the credit union and for brandishing a firearm during that robbery; the district court's response to a jury note did not violate Goings' right to due process where there is no reasonable likelihood that the district court's response influenced the jury; and the district court did not plainly err by applying a six-level sentencing enhancement to Johnson's sentence under USSG 3A1.2(c)(1) for assaulting a law enforcement officer in a manner creating a substantial risk of serious bodily injury during the offense or while fleeing. |
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| United States v. Lopez |
| Court: US Court of Appeals for the Fifth Circuit Docket: 17-50806 Opinion Date: February 26, 2021 Judge: Priscilla R. Owen Areas of Law: Criminal Law |
| The Fifth Circuit vacated defendant's sentence imposed after he pleaded guilty to one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine and one count of conspiracy to possess with intent to distribute more than fifty kilograms of marijuana. The court held that defendant's sentence is based on his initial guideline range because that range played a relevant part in the framework the sentencing judge used in imposing his sentence. The court also held that the guideline range applicable to defendant is his initial guideline range of 292 to 365 months. The court explained that Amendment 780 lowered the guideline range applicable to defendant from 292 to 365 months to 262 to 327 months. Therefore, the court remanded for the district court to determine whether a reduction of defendant's sentence is warranted. |
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| United States v. Trevino |
| Court: US Court of Appeals for the Fifth Circuit Docket: 20-40249 Opinion Date: March 3, 2021 Judge: Stuart Kyle Duncan Areas of Law: Criminal Law |
| The Fifth Circuit affirmed defendant's conviction for being a felon in possession of a firearm in violation of 18 U.S.C. 922(g). In this case, the district court instructed the jury that the Government had to prove: (1) defendant knowingly possessed a firearm; (2) he had been convicted previously of a felony; (3) at the time of possession, he knew he had a prior felony conviction; and (4) the firearm possessed traveled in interstate commerce. The court concluded that the jury instructions complied with the rule set forth in Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019). The court explained that the district court clearly instructed jurors as to the relevant principles of law and thus did not abuse its discretion in rejecting defendant's request for a jury instruction. |
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| Kendrick v. Parris |
| Court: US Court of Appeals for the Sixth Circuit Docket: 19-6226 Opinion Date: March 2, 2021 Judge: Larsen Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| In 1994, Kendrick fatally shot his wife outside a Chattanooga gas station. He insisted that his rifle had malfunctioned and fired without Kendrick pulling the trigger. Before trial, officer Miller accidentally shot himself in the foot while handling the rifle, A jury convicted Kendrick of first-degree murder. In his petition for state post-conviction relief, Kendrick raised 77 claims alleging either ineffective assistance of counsel (IAC) or prosecutorial misconduct. He succeeded in the Court of Criminal Appeals on two IAC claims. The Tennessee Supreme Court reversed as to both, holding that counsel’s decision not to adduce the testimony of a firearms expert was not constitutionally deficient performance nor was counsel’s failure to introduce Miller's favorable hearsay statements under the excited utterance exception. In federal habeas proceedings, the Sixth Circuit affirmed the denial of relief. The Tennessee Supreme Court did not unreasonably apply Supreme Court precedent. Kendrick’s counsel was not constitutionally deficient in failing to admit Miller’s “excited utterance” statements that he did not pull the trigger when he shot himself but “took great pains to inform the jury that the weapon apparently misfired’ for Miller. It was within the bounds of a reasonable judicial determination for the state court to conclude that defense counsel could follow a strategy that did not require the use of firearms experts. |
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| United States v. Riccardi |
| Court: US Court of Appeals for the Sixth Circuit Docket: 19-4232 Opinion Date: March 3, 2021 Judge: Murphy Areas of Law: Criminal Law |
| Riccardi, a postal employee, pleaded guilty to stealing 1,505 gift cards from the mail. The cards had an average value of about $35, a total value of about $47,000. The Sentencing Guidelines directed an increase in Riccardi’s guidelines range based on the amount of the “loss,” U.S.S.G. 2B1.1(b)(1) but does not define “loss.” The court used a $500 minimum loss amount for each gift card no matter its actual value or the victim’s actual harm, based on the Sentencing Commission’s commentary to section 2B1.1, providing that the loss “shall be not less than $500” for each “unauthorized access device." The calculation resulted in a loss amount of $752,500, and a guidelines range of 46-57 months’ imprisonment. The court imposed a 56-month sentence and ordered Riccardi to pay $89,102 in restitution, representing $42,102 in cash found at her home and the value of the gift cards. The Sixth Circuit reversed. Guidelines commentary may only interpret, not add to, the guidelines; even if there is some ambiguity in the use of the word “loss,” the commentary’s bright-line rule requiring a $500 loss amount for every gift card does not fall “within the zone of ambiguity.” This bright-line rule is not a reasonable interpretation of, as opposed to an improper expansion beyond, section 2B1.1’s text. |
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| Perry v. Sims |
| Court: US Court of Appeals for the Seventh Circuit Docket: 19-1497 Opinion Date: March 3, 2021 Judge: Scudder Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| Perry suffers from serious mental illness defined by two suicide attempts, severe depression, paranoid schizophrenia, and auditory hallucinations. He is serving a 70-year sentence for murdering his former wife during a fit of paranoia in 2013. In 2016, while housed in the Wabash Valley Correctional Facility in southern Indiana, Perry’s condition worsened. He refused all medication, stopped eating because he feared someone had poisoned his food, renewed his conspiracy claims against the Wabash medical staff, and threatened to kill himself if left in his cell any longer. A medical review and administrative hearing culminated in a decision to forcibly administer the antipsychotic medication Haldol. Injections continued for about six months. Perry later sued under 42 U.S.C. 1983, alleging that the forcible medication violated the Eighth Amendment’s prohibition on cruel and unusual punishment and the Due Process Clause. The district court denied Perry’s request to appoint counsel, finding that Perry understood his case and quite ably prosecuted it. The Seventh Circuit affirmed summary judgment for the defendants. The defendants attended carefully to Perry’s health and safety. The Facility’s Review Committee had enough evidence to demonstrate that Perry was a danger to himself or others so as to justify the involuntary administration of Haldol. |
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| United States v. Cervantes |
| Court: US Court of Appeals for the Seventh Circuit Dockets: 19-3405, 18-2538, 18-3088, 19-1335, 19-1591, 19-1612, 18-3405 Opinion Date: March 1, 2021 Judge: Brennan Areas of Law: Criminal Law |
| The Roque drug trafficking organization moved more than 1,500 kilograms of cocaine and 100 kilograms of heroin from Mexico to Chicago for distribution and sale. The district judge stated that she had never seen “the level of drugs that were pumped into Chicago” by this criminal enterprise. The Seventh Circuit affirmed the sentences of seven Roque organization defendants, ranging from 150 to 420 months’ imprisonment. The court rejected arguments that the district court misinterpreted the need to avoid unwarranted sentencing disparities under 18 U.S.C. 3553(a)(6) and failed to adequately consider their arguments on that issue. The court upheld the imposition of enhancements for possession of a firearm in connection with a drug trafficking offense under U.S.S.G. 2D1.1(b)(1), for two defendants. The district court committed no error, properly avoided unwarranted sentencing disparities, correctly applied the Sentencing Guidelines, and appropriately imposed supervised release conditions, with one minor exception relating to a condition concerning the consumption of alcohol. |
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| United States v. Reedy |
| Court: US Court of Appeals for the Seventh Circuit Docket: 20-2444 Opinion Date: March 1, 2021 Judge: Scudder Areas of Law: Constitutional Law, Criminal Law |
| Police responded to a call that a homeless person was sleeping in a car behind a store and found Reedy wearing a bulletproof vest in the front passenger seat of a Kia. They saw an open knife, crowbar, and walkie-talkie on the car’s floorboard. Reedy said that his friend, Jason, was visiting someone nearby. Telling Reedy to stay put with one officer, another officer looked for Jason and found him in a backyard wearing dress clothes yet claiming to be doing lawn work. Searching Jason’s backpack, officers found methamphetamine, credit cards in others’ names, latex gloves, rocks, knives, bolt cutters, shotgun ammo, and a walkie-talkie tuned to the same channel as Reedy’s. A search of the Kia turned up a shotgun. Reedy faced a federal gun possession charge. The Seventh Circuit affirmed the denial of Reedy’s motion to suppress. Officers had ample authority to direct Reedy to step out of his car and to subject him to further questioning and investigation consistent with Terry; there was no unreasonable delay in the execution of the Terry stop. This same sequence of events supplied the probable cause necessary to arrest Reedy. Once the police returned Jason to the car, the initial Terry stop of Reedy effectively turned into an arrest supported by probable cause for, at minimum, possession of burglarious tools. |
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| United States v. Smith |
| Court: US Court of Appeals for the Seventh Circuit Docket: 20-1117 Opinion Date: March 3, 2021 Judge: Brennan Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| Illinois law enforcement agents received a tip from a confidential source claiming that Smith had been dealing methamphetamine in Mattoon. The agents conducted controlled buys between Smith and the source and requested that a patrol officer stop Smith’s vehicle. The officer stopped the vehicle for “extremely dark window tinting,” and learned that Smith’s license was suspended. There was a 10-minute wait for batteries for the device to measure the tint. The officer then searched the vehicle and found marijuana, a marijuana grinder, and a firearm. Represented by court-appointed counsel, Smith pleaded guilty to distributing methamphetamine and possessing a firearm as a felon. He then sought to retract his guilty plea, alleging ineffective assistance of counsel. The court denied Smith’s motion, rejected his request for an evidentiary hearing, and sentenced him to 214 months’ imprisonment. The Seventh Circuit affirmed. Smith cannot establish that he would have succeeded on a motion to suppress the firearm evidence and did not demonstrate a reasonable probability that, but for counsel’s pressure to accept a plea, he would not have pleaded guilty. There is no evidence that appointed counsel made a misrepresentation or that suggests his unfamiliarity with the case. The court correctly applied the career offender enhancement to Smith’s sentence. |
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| United States v. Cooper |
| Court: US Court of Appeals for the Eighth Circuit Docket: 20-1053 Opinion Date: March 2, 2021 Judge: Bobby E. Shepherd Areas of Law: Criminal Law |
| The Eighth Circuit affirmed defendant's conviction for distribution of a controlled substance resulting in serious bodily injury and conspiracy to distribute a controlled substance. The court concluded that the evidence was sufficient to support defendant's convictions; the district court did not abuse its discretion in admitting evidence of defendant's prior drug transactions under Federal Rule of Evidence 404(b); the district court committed harmless error by admitting evidence of a prior overdose resulting from his distribution; and the district court did not abuse its discretion by admitting evidence of his prior felony conviction for aggravated assault under Federal Rule of Evidence 609. |
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| United States v. Leal-Monroy |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2745 Opinion Date: February 26, 2021 Judge: Steven M. Colloton Areas of Law: Criminal Law |
| The Eighth Circuit reversed the district court's order dismissing an indictment charging defendant with illegal reentry to the United States. The court concluded that the district court erred in ruling that defendant made a sufficient showing to attack the deportation order that underlies the charge in this criminal case. In this case, defendant may not challenge in this criminal case the validity of the immigration court’s underlying deportation order from 1998. Accordingly, the court remanded for further proceedings. |
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| United States v. Mofle |
| Court: US Court of Appeals for the Eighth Circuit Docket: 20-1212 Opinion Date: March 2, 2021 Judge: Raymond W. Gruender Areas of Law: Criminal Law |
| The Eighth Circuit affirmed the district court's denial of defendant's motion for a sentence reduction under 18 U.S.C. 3582(c)(2). The court concluded that the district court correctly determined that defendant's 2019 motion for a sentence reduction under Guidelines Amendment 782 was untimely under Federal Rule of Appellate Procedure 4(b); the Government did not forfeit its right to invoke Rule 4(b) as a time bar to defendant's 2019 motion; and the district court did not violate Federal Rule of Criminal Procedure 57(b) by enforcing Rule 4(b) against defendant's 2019 motion. |
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| United States v. Wortham |
| Court: US Court of Appeals for the Eighth Circuit Dockets: 19-3334, 19-3431 Opinion Date: March 3, 2021 Judge: Arnold Areas of Law: Criminal Law |
| The Eighth Circuit affirmed Defendants Wortham and Williams' conviction for carjacking, distributing PCP, and possessing a short-barreled shotgun in furtherance of those offenses. The court concluded that defendants waived any arguments they may have had regarding the jury instructions. In this case, they and the government jointly proposed the instruction at issue and the district court did not modify the part of the instruction that defendants now complain about. The court also concluded that the evidence was sufficient to support Wortham's convictions for aiding and abetting carjacking and distributing PCP. |
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| United States v. Zam Mung |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2798 Opinion Date: March 1, 2021 Judge: Grasz Areas of Law: Criminal Law |
| Defendant was convicted of attempted commercial sex trafficking of a minor and sentenced to 120 months' imprisonment. The district court also imposed a $5,000 special assessment. The Eighth Circuit concluded that defendant did not raise his objection to the indictment in the district court proceedings and had failed to demonstrate good cause for his failure to timely object to the indictment. Even if he could show good cause, the court would review his argument under the same plain error standard with which the court reviewed his challenge to the jury instructions. In this case, defendant failed to show the district court obviously erred by applying the reckless-disregard standard. The court held that it was proper to use the reckless-disregard standard because defendant was convicted for attempting to recruit, entice, obtain, patronize, or solicit a minor for a commercial act. The court also held that the district court did not err by using the label "sex trafficking" when describing the charged crime to the jury in Instruction No. 4. Finally, the $5,000 special assessment was properly imposed where defendant failed to show he had the inability to pay the assessment. |
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| United States v. Zupnik |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-1916 Opinion Date: March 2, 2021 Judge: Melloy Areas of Law: Criminal Law |
| The Eighth Circuit affirmed defendant's conviction for attempted enticement of a minor using the internet, holding that the evidence was sufficient to support his conviction. The court also held that there was more than sufficient evidence that the jury could have relied upon in finding that defendant responded promptly to the opportunity to solicit a minor and was, therefore, not entrapped by the government. |
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| Lazo v. Wilkinson |
| Court: US Court of Appeals for the Ninth Circuit Docket: 14-73182 Opinion Date: February 26, 2021 Judge: Collins Areas of Law: Criminal Law, Immigration Law |
| The Ninth Circuit denied a petition for review of the BIA's decision holding that petitioner's 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code 11350 qualifies as a "controlled substance offense," thereby rendering him removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(B)(i). Although California Health and Safety Code 11350, by its terms, applies to a broader range of "controlled substance[s]" than the narrower federal definition that governs under section 237(a)(2)(B)(i), the panel agreed with the BIA that petitioner's conviction nonetheless qualifies under the so-called "modified categorical" approach to analyzing prior convictions. Applying this approach, the panel concluded that section 11350 is a "divisible" statute that defines multiple alternative offenses, depending upon which controlled substance was possessed. In this case, because petitioner's conviction under section 11350 was for possession of cocaine, and because cocaine qualifies as a "controlled substance" under the applicable federal definition, it follows that petitioner was convicted of an offense "relating to a controlled substance" within the meaning of section 237(a)(2)(B)(i). Therefore, the panel concluded that petitioner was properly ordered to be removed from the United States. |
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| United States v. Lucero |
| Court: US Court of Appeals for the Ninth Circuit Docket: 19-10074 Opinion Date: March 4, 2021 Judge: Patrick J. Bumatay Areas of Law: Criminal Law |
| The Ninth Circuit reversed defendant's conviction on three counts of knowingly discharging a pollutant in violation of the Clean Water Act. Defendant's conviction stemmed from his role in orchestrating a scheme charging construction companies to dump dirt and debris on lands near the San Francisco Bay, including "wetlands" and a "tributary." The panel concluded that the Act requires the government to prove a defendant knew he was discharging material "into water." In this case, the jury instructions failed to make this knowledge element clear, and the error was not harmless. Accordingly, the panel remanded for a new trial with jury instructions that make clear the government's burden to prove that the defendant knowingly discharged fill material "into water." The panel also concluded that the regulation defining "waters of the United States" at the time of defendant's trial is not unconstitutionally vague, and that a newly promulgated 2020 regulation that substantially narrowed the definition of "waters of the United States" represents a change in the law that does not apply retroactively. |
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| United States v. Rundo |
| Court: US Court of Appeals for the Ninth Circuit Docket: 19-50189 Opinion Date: March 4, 2021 Judge: Per Curiam Areas of Law: Criminal Law |
| The Ninth Circuit reversed the district court's dismissal of an indictment charging defendants with conspiracy to violate the Anti-Riot Act and three of those defendants with substantively violating the Act. The district court held that the Act was unconstitutional on the basis of facial overbreadth under the First Amendment. The panel applied Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), and concluded that most of the provisions of the Act are reasonably construed as constitutional, and defects are severable from the remainder of the Act. In this case, there was no violation of the First Amendment in the Act's overt act provisions; its definition of a riot; or in subparagraphs (1), (2), and (4) of 18 U.S.C. 2101(a), except insofar as subparagraph (2) prohibits speech tending to "organize," "promote," or "encourage" a riot, and 18 U.S.C. 2102(b) expands the prohibition to "urging" a riot and to mere advocacy. The panel explained that the Act prohibits unprotected speech that instigates (incites, participates in, or carries on) an imminent riot, unprotected conduct such as committing acts of violence in furtherance of a riot, and aiding and abetting of that speech or conduct. Once the offending language is severed from the Act, the panel concluded that the Act is not unconstitutional on its face and remanded for further proceedings. |
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| United States v. Thompson |
| Court: US Court of Appeals for the Ninth Circuit Dockets: 18-30206, 18-30208 Opinion Date: March 3, 2021 Judge: Kleinfeld Areas of Law: Criminal Law |
| Defendants Thompson and Fincher appealed their convictions and forfeiture provisions of their sentences for charges related to their involvement in an "advance pay" scheme with a third coconspirator. The Ninth Circuit concluded that there was no constructive amendment of the indictment where the indictment alleged all of the elements of conspiracy to commit wire fraud in violation of 18 U.S.C. 1343 and 1349. In this case, defendants were tried and convicted of the crime charged, and there was no reason to include in the jury instructions the surplusage relating to the 18 U.S.C. 371 crime that was not charged. The panel also concluded that because the forfeiture judgment against defendants amounted to joint and several liability contrary to Honeycutt v. United States, 137 S. Ct. 1626 (2017), the panel must vacate and remand it. In Honeycutt, the Supreme Court held that, in a conspiracy, a defendant may not, for purposes of forfeiture, be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. On remand, the district court should make findings denoting approximately how much of the proceeds of the crime came to rest with each of the three conspirators. The panel explained that though no forfeiture judgment was issued against the third coconspirator, neither Thompson nor Fincher can be subjected to forfeiture of amounts that came to rest with the third coconspirator, since those amounts were not proceeds that came to rest with them. The panel concluded that the forfeiture judgments must be separate, for the approximate separate amounts that came to rest with each of them after the proceeds were divided among them. |
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| United States v. Foust |
| Court: US Court of Appeals for the Tenth Circuit Docket: 19-6161 Opinion Date: March 2, 2021 Judge: Paul Joseph Kelly, Jr. Areas of Law: Constitutional Law, Criminal Law, White Collar Crime |
| Defendant-Appellant Justin Foust appealed his conviction on six counts of wire fraud, and one count each of aggravated identity theft and money laundering. He was sentenced to 121 months’ imprisonment and three years’ supervised release. Foust’s company, Platinum Express, LLC, submitted false and fraudulent invoices to its customer, Chesapeake Energy Corporation (“Chesapeake”). Chesapeake identified more than $4.5 million that it had paid out on these invoices. Foust did not deny that the invoices were improper and that Platinum Express had not performed the work. But he denied that he had forged the signatures and employee identification numbers of Chesapeake employees. A handwriting expert testified otherwise regarding invoices associated with Chesapeake employee Bobby Gene Putman. The jury convicted Foust on the wire-fraud and aggravated-identity-theft counts associated with these invoices. On appeal, Foust argued the district court abused its discretion by allowing the handwriting expert to testify at trial. He contended: (1) the government did not adequately show that the expert’s methodology was reliable; and (2) the handwriting expert used unreliable data in reaching his opinion. Finding no abuse of discretion, the Tenth Circuit affirmed the district court judgment. |
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| United States v. Mercado-Gracia |
| Court: US Court of Appeals for the Tenth Circuit Docket: 19-2153 Opinion Date: March 2, 2021 Judge: David M. Ebel Areas of Law: Constitutional Law, Criminal Law |
| Defendant Aaron Mercado-Gracia challenged his three convictions for drug trafficking, conspiring to traffic drugs, and using a firearm in relation to a drug-trafficking offense. In upholding his convictions, the Tenth Circuit found the district court did not err in denying Mercado-Gracia’s motion to suppress evidence discovered as the result of a traffic stop. The traffic stop evolved into a consensual encounter during which the police officer developed reasonable suspicion to believe Mercado-Gracia was involved in drug trafficking. That reasonable suspicion justified a brief investigative detention, during which the officer deployed his drug-sniffing dog, which alerted, leading to the discovery of a gun and two kilograms of heroin in the car Mercado-Gracia was driving. Furthermore, the district court did not abuse its discretion in denying Mercado-Gracia’s request to play during voir dire a video to educate prospective jurors on implicit bias. Thus, finding no reversible error, the Tenth Circuit affirmed Mercado-Gracia's convictions. |
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| United States v. Goldstein |
| Court: US Court of Appeals for the Eleventh Circuit Docket: 18-13321 Opinion Date: February 26, 2021 Judge: Julie Carnes Areas of Law: Criminal Law, White Collar Crime |
| The Eleventh Circuit affirmed Defendants Goldstein and Bercoon's convictions for charges related to their involvement in a market-manipulation scheme involving shares of MedCareers Group, Inc. (MCGI) and a scheme to defraud investors in Find.com Acquisition, Inc. (Find.com). The court concluded that the magistrate judge did not err in concluding that there was probable cause to support the wiretap affidavit and satisfied the necessity requirement. Furthermore, defendants have not shown that the district court erred in concluding that the wiretap evidence was admissible under the good-faith exception to the exclusionary rule, even assuming there was some deficiency in the necessity or probable cause showing. The court also concluded that, because defendants did not make a substantial preliminary showing that the law enforcement agent deliberately or recklessly omitted material information from his wiretap affidavit, the district court did not abuse its discretion in denying their motions for a Franks hearing; any variance in the indictment did not cause prejudice warranting relief; defendants' claims of prosecutorial misconduct failed; the district court did not err in suppressing Goldstein's statements to an SEC attorney; the district court did not abuse its discretion in denying Goldstein's request for an evidentiary hearing; the district court did not err in imposing joint and several liability; and the court found no basis to dismiss Bercoon's indictment. |
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| United States v. Harris |
| Court: US Court of Appeals for the Eleventh Circuit Docket: 20-12023 Opinion Date: February 26, 2021 Judge: Edward Earl Carnes Areas of Law: Criminal Law |
| The Eleventh Circuit affirmed the district court's denial of defendant's 18 U.S.C. 3582(c)(1)(A) motion for compassionate release based on her medical conditions of lupus, scleroderma, hypertension, glaucoma, and past cases of bronchitis and sinus infections, which she argued put her at an increased risk of contracting COVID-19. The court concluded that the district court did not abuse its discretion in deciding that defendant's medical conditions were not "extraordinary and compelling reasons" to grant compassionate release. Furthermore, the district court considered the 18 U.S.C. 3553(a) factors and section 1B1.13 n.1, which further contributes to the court's holding that the district court did not abuse its discretion. The court explained that regardless of whether the district court was required to consider USSG 1B1.13 n.1, it did so. In this case, the district court's order makes clear that it independently considered whether defendant's reasons were "extraordinary and compelling" under section 3582(c)(1)(A), and then separately and "[m]oreover" considered and rejected her reasons in light of section 1B1.13 n.1. |
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| United States v. Harris |
| Court: US Court of Appeals for the Eleventh Circuit Docket: 20-12023 Opinion Date: March 2, 2021 Judge: Edward Earl Carnes Areas of Law: Criminal Law |
| The Eleventh Circuit vacated its previously issued opinion and substituted this one in its place. The court affirmed the district court's denial of defendant's 18 U.S.C. 3582(c)(1)(A) motion for compassionate release. The court explained that the district court was permitted to reduce defendant's sentence if it found, among other things, that extraordinary compelling reasons warrant it. In this case, the district court concluded that defendant's medical conditions did not. The court reasoned that, of the conditions defendant argued to the district court, only hypertension appears on the CDC's list of conditions, and it appears only as one that means an adult with it "might be at an increased risk." Furthermore, the district court considered the 18 U.S.C. 3553(a) factors and section 1B1.13 n.1, which further contributes to the court's holding that the district court did not abuse its discretion. The court explained that regardless of whether the district court was required to consider USSG 1B1.13 n.1, it did so. In this case, the district court's order makes clear that it independently considered whether defendant's reasons were "extraordinary and compelling" under section 3582(c)(1)(A), and then separately and "[m]oreover" considered and rejected her reasons in light of section 1B1.13 n.1. |
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| Anderson v. Payne |
| Court: Arkansas Supreme Court Citation: 2021 Ark. 44 Opinion Date: March 4, 2021 Judge: Wood Areas of Law: Criminal Law |
| The Supreme Court affirmed the circuit court's denial of Appellant's petition for writ of habeas corpus, holding that the circuit court did not err in denying the petition and in finding of an abuse of the writ. Appellant filed multiple postconviction actions challenging his sentence. Less than thirty days after the Supreme Court affirmed the order of the circuit court denying Appellant's second pro se petition for writ of habeas corpus Appellant filed the instant pro se petition for writ of habeas corpus. The circuit court dismissed the petition and found an abuse of the writ. The Supreme Court affirmed, holding that the circuit court did not clearly err when it denied and dismissed Appellant's habeas petition. |
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| Collins v. State |
| Court: Arkansas Supreme Court Citation: 2021 Ark. 35 Opinion Date: March 4, 2021 Judge: Kemp Areas of Law: Criminal Law |
| The Supreme Court affirmed the order of the circuit court convicting Appellant of first-degree murder, attempted first-degree murder, aggravated assault, and committing first-degree murder in the presence of a child, holding that substantial evidence supported the convictions. On appeal, Defendant challenged the sufficiency of the evidence supporting his first-degree murder and attempted first-degree murder convictions. The Supreme Court affirmed, holding (1) the State presented substantial evidence of the requisite mental state for first-degree murder; (2) substantial evidence supported Defendant's conviction for attempted first-degree murder; and (3) after examining the record, no prejudicial error has been found. |
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| Commons v. Kelley |
| Court: Arkansas Supreme Court Citation: 2021 Ark. 47 Opinion Date: March 4, 2021 Judge: Womack Areas of Law: Criminal Law |
| The Supreme Court affirmed the order of the circuit court denying Appellant's petition to proceed in forma paupers in connection with a petition for a writ of habeas corpus, holding that the circuit court correctly determined that Appellant failed to state a colorable cause of action. Appellant was convicted of three counts of unlawful discharge of a vehicle and was sentenced as a habitual offender to seventy-two years' imprisonment. Appellant filed a petition for a writ of habeas corpus seeking relief based on insufficient evidence supporting a firearm enhancement and an alleged double jeopardy violation. The circuit court denied the petition. The Supreme Court affirmed, holding that the petition clearly failed to allege a colorable cause of action. |
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| Dirickson v. State |
| Court: Arkansas Supreme Court Citation: 2021 Ark. 36 Opinion Date: March 4, 2021 Judge: Karen R. Baker Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the circuit court denying Appellant's pro se petition to correct an illegal sentence pursuant to Ark. Code Ann. 16-90-111, holding that the circuit court correctly denied the petition as timely. Appellant was convicted of three counts of capital murder, one count of attempted rape, and one count of residential burglary. The circuit court sentenced Appellant to 140 years' imprisonment. Appellant later filed a petition to correct an illegal sentence, which was denied. The Supreme Court affirmed, holding that the circuit court did not clearly err by denying Appellant's petition as untimely under Ark. R. Crim. P. 37.2(c). |
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| Flow v. State |
| Court: Arkansas Supreme Court Citation: 2021 Ark. 48 Opinion Date: March 4, 2021 Judge: Webb Areas of Law: Criminal Law |
| The Supreme Court affirmed the order of the circuit court denying Appellant's pro se petition to correct an illegal sentence pursuant to Ark. Code Ann. 16-90-111, holding that the circuit court did not err in denying the petition. Appellant pled guilty to two counts of second-degree sexual assault and sentenced to 300 months' imprisonment. Appellant filed a motion to correct an illegal sentence, arguing that the sentencing order was illegal on its face because the prosecutor made a notation that Appellant was not eligible for parole pursuant to Ark. Code Ann. 16-93-609. The circuit court denied the motion. The Supreme Court affirmed, holding that section 16-93-609 applied to Appellant's conviction and that Appellant failed to demonstrate that his sentence were illegal. |
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| Hill v. State |
| Court: Arkansas Supreme Court Citation: 2021 Ark. 41 Opinion Date: March 4, 2021 Judge: Rhonda K. Wood Areas of Law: Criminal Law |
| The Supreme Court affirmed the circuit court's dismissal of Appellant's petition for ineffective assistance of counsel filed under Ark. R. Crim. P. 37, holding that Appellant was not entitled to relief. Appellant was convicted of aggravated residential burglary and sentenced to life in prison. In his Rule 37 postconviction petition, Appellant claimed that his trial counsel was ineffective on ten grounds. The circuit court denied the petition after holding a hearing. The Supreme Court affirmed, holding that Appellant was provided constitutionally effective assistance of counsel, and therefore, his petition for postconviction relief failed. |
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| Hussey v. State |
| Court: Arkansas Supreme Court Citation: 2021 Ark. 45 Opinion Date: March 4, 2021 Judge: Wynne Areas of Law: Criminal Law |
| The Supreme Court affirmed the order of the circuit court dismissing Appellant's pro se petition for writ of habeas corpus seeking scientific testing of evidence from his 1996 criminal case, holding that the circuit court did not err. In 1996, Appellant was convicted of capital murder and sentenced to life imprisonment. In 2012, Defendant filed a pro se petition for writ of habeas corpus pursuant to Act 1780, asserting that he was actually innocent of the murder and seeking DNA testing on a red shirt. The circuit court denied the petition. In 2020, Appellant filed a motion to file a second or successive petition for good cause seeking scientific testing pursuant o 16-112-201 through 16-112-208. The circuit court denied the petition as successive. The Supreme Court affirmed, holding that Appellant failed to establish that additional testing would significantly advance his claim of innocence. |
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| Jones v. Payne |
| Court: Arkansas Supreme Court Citation: 2021 Ark. 37 Opinion Date: March 4, 2021 Judge: Hudson Areas of Law: Criminal Law |
| The Supreme Court affirmed the decision of the circuit court denying and dismissing Appellant's petition for writ of habeas corpus filed pursuant Ark. Code Ann. 16-112-101 to -123, holding that the circuit court did not err. Appellant was convicted of four counts of rape and sentenced to 480 months' imprisonment. Appellant later filed the pro se petition for writ of habeas corpus that was the subject of this appeal, making several claims. The circuit court denied relief. The Supreme Court affirmed, holding that Appellant failed to demonstrate probable cause for the writ to issue. |
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| California v. Cummings |
| Court: California Courts of Appeal Docket: C084505(Third Appellate District) Opinion Date: March 3, 2021 Judge: Murray Areas of Law: Constitutional Law, Criminal Law |
| After entering a plea of no contest to attempted driving with a blood alcohol-level of 0.08 percent or more within 10 years of a felony conviction for driving under the influence (DUI) and admitting two prior DUI convictions, defendant Tanya Cummings was granted five years of formal probation. She appealed, contending that : (1) attempted DUI, even with two prior felony DUI convictions, was a misdemeanor under the plain terms of Penal Code section 23550.5; and (2) the trial court erred by ordering her to pay for the cost of her court appointed counsel without a finding of ability to pay or a showing of the actual costs incurred. Finding no reversible error, the Court of Appeal affirmed. |
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| California v. Williams |
| Court: California Courts of Appeal Docket: D077174(Fourth Appellate District) Opinion Date: March 4, 2021 Judge: Aaron Areas of Law: Constitutional Law, Criminal Law, Legal Ethics |
| A trial court denied defendant-appellant Anthony Williams’s motion to substitute retained counsel for his appointed counsel. After the jury found Williams guilty of first degree murder, and found true a special allegation, the trial court sentenced him to life without the possibility of parole. On appeal, Williams claimed the trial court violated his constitutional right to counsel by denying his request to be represented by counsel of his choice and that this error requires reversal without regard to prejudice. To this, the Court of Appeal agreed, and reversed the trial court's judgment. |
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| People v. Byers |
| Court: California Courts of Appeal Docket: B302061(Second Appellate District) Opinion Date: March 1, 2021 Judge: Tangeman Areas of Law: Criminal Law |
| The Court of Appeal affirmed defendant's conviction of kidnapping to commit rape, oral copulation, or sodomy, sodomy by use of force, and two counts of commercial burglary. The court concluded that the district court did not abuse its discretion when it admitted evidence that defendant watched pornography shortly before committing the assault; the trial court did not err in refusing to reopen voir dire to inquire into the jurors' views of pornography; there was sufficient evidence to warrant a jury instruction regarding evaluation of a witness with a mental or communication impairment; and counsel did not render ineffective assistance by failing to object to evidence that he refused to answer questions by the nurse. The court rejected defendant's claim of cumulative errors. However, the court modified the conviction by striking the five-year great bodily injury enhancement and replacing it with a three-year enhancement. The court directed the trial court to prepare an amended abstract of judgment reflecting the modification and to forward the amended abstract to the Department of Corrections and Rehabilitation. The court affirmed in all other respects. |
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| People v. Foster |
| Court: California Courts of Appeal Docket: B296856(Second Appellate District) Opinion Date: March 1, 2021 Judge: Federman Areas of Law: Criminal Law |
| Defendant was convicted by a jury of one count of first degree premeditated murder, and five counts of premeditated attempted murder. The jury found true allegations that the crimes were gang related and that defendant personally discharged a firearm. Defendant was sentenced to a total term of 90 years to life in state prison. In the published portion of this opinion, the Court of Appeal held that the evidence was sufficient to support all five counts of attempted murder. In this case, there was no indication defendant had a primary target; during his jailhouse conversation with the Perkins agent, defendant gave no indication he sought to target a specific individual; defendant fired a semi-automatic weapon from a distance of 40 to 50 feet at a group containing at least six males standing so closely to one another that they fit within the frame of the metal door of the barbershop; and the fact that no one other than one certain victim was struck or injured does not negate an intent to kill. The court explained that firing a gun at the group, under such circumstances, was substantial evidence from which the jury could find a specific intent to kill, and at least one direct but ineffective step towards killing the five victims who survived the shooting. |
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| Ventura County Deputy Sheriffs' Ass'n. v. County of Ventura |
| Court: California Courts of Appeal Docket: B300006(Second Appellate District) Opinion Date: March 3, 2021 Judge: Steven Z. Perren Areas of Law: Criminal Law, Government & Administrative Law |
| Senate Bill No. 1421 amended Penal Code section 832.7 to allow disclosure under the California Public Records Act (CPRA) of records relating to officer-involved shootings, serious use of force and sustained findings of sexual assault or serious dishonesty. VCDSA filed suit against defendants to enjoin section 832.7’s application to records involving peace officer conduct and incidents occurring before January 1, 2019, the statute's effective date. The trial court issued a preliminary injunction. In the meantime, the First District issued Walnut Creek Police Officers' Ass'n v. City of Walnut Creek (2019) 33 Cal.App.5th 940, which rejected the assertion "that applying the 2019 amendments to compel disclosure of records created prior to 2019 constitutes an improper retroactive application of the new law." In the absence of a reason to depart from Walnut Creek, and for reasons stated in Becerra v. Superior Court (2020) 44 Cal.App.5th 897, the Court of Appeal reversed the judgment and dissolved the permanent injunction. The court agreed with Walnut Creek that section 832.7 does not attach new legal consequences to or increase a peace officer's liability for conduct that occurred before the statute's effective date. The court explained that because the statute merely broadens the public's right to access records regarding that conduct, it applies retroactively. |
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| State v. Joseph A. |
| Court: Connecticut Supreme Court Docket: SC20125 Opinion Date: March 9, 2021 Judge: Mullins Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the Appellate Court affirming Defendant's conviction of one count of assault of a disabled person in the third degree and one count of disorderly conduct, holding that any error in the proceedings below was harmless. Specifically, the Supreme Court held (1) the Appellate Court correctly concluded that Defendant knowingly, intelligently and voluntarily waived his right to counsel during the pretrial stage of the proceedings, and the trial court's canvass was sufficient; and (2) even assuming arguendo that had Defendant not waived the claim that he was denied the right to counsel at arraignment and during plea negotiations and that the trial court erred in failing to canvass him, any error was harmless. |
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| Hines v. Delaware |
| Court: Delaware Supreme Court Docket: 562, 2019 Opinion Date: February 17, 2021 Judge: Karen L. Valihura Areas of Law: Constitutional Law, Criminal Law |
| Walter Hines appealed his conviction and sentence for second-degree assault, possession of a deadly weapon during the commission of a felony (“PDWDCF”), and two counts of endangering the welfare of a child (“EWC”). Hines’s issue on appeal related to an incident that occurred on September 27, 2018. At that time, Hines lived with Valeah Lewis, her mother Juliann Congo, and Lewis’s children D.L. and T.L. Michael Gibbs was Lewis’s ex-boyfriend and was D.L.’s father. As Lewis and Hines were leaving for work, Gibbs and his girlfriend, Putrice Barnes, arrived at the Lewis residence to pick up D.L. After a verbal exchange, Hines and Lewis drove a short way down the street then stopped. Barnes testified that she “flipped the bird” as Lewis drove past. Hines, Lewis, Barnes, and Gibbs all agree that an altercation ensued shortly thereafter, but their accounts differ regarding the key details. Lewis asserted that Gibbs swung a tire iron at Hines, while Hines asserted Gibbs did not take the tire iron from Barnes but instead tried to punch him. Both Hines and Lewis agreed Hines retrieved a baseball bat from the back seat and used it defensively against Gibbs in response to Barnes’s and Gibbs’s aggression. On appeal, Hines claimed the Superior Court committed plain error when it permitted the State’s final cross-examination question about his prior convictions for Possession with Intent to Deliver a Controlled Substance (“PWID”) and Possession of a Firearm by a Person Prohibited (“PFBPP”). Finding no reversible error, the Delaware Supreme Court affirmed Hines' convictions. |
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| Swan v. Delaware |
| Court: Delaware Supreme Court Docket: 150, 2020 Opinion Date: March 1, 2021 Judge: Montgomery-Reeves Areas of Law: Constitutional Law, Criminal Law |
| In 1996, two masked and camouflaged men crashed through the glass patio door of Kenneth Warren’s home. Warren was fatally shot in front of his wife and child during the subsequent struggle. Tina Warren, Kenneth’s wife, observed one assailant appeared to have been shot in the shoulder. The investigation went cold until Bridget Phillips, ex-wife of co-defendant Adam Norcross, contacted Delaware State Police in 1999. She explained that Norcross and appellant Ralph Swan had planned to rob a house, but found it occupied. Phillips added that the victim fired a shot and died because he tried to play hero. Police arrested Norcross and Swan in 2000. Both were indicted on three counts of first degree murder; one count of first degree robbery; one count of first degree burlgary; one count of second degree conspiracy; and multiple counts of possession of a deadly weapon during the commission of a felony. Swan was ultimately convicted on all charges, for which he was sentenced to death. Swan obtained new counsel and first filed for postconviction relief under Superior Court Criminal Rule 61 in 2006. He lodged several additional post-conviction motions, including applying for habeas relief. Final memoranda were filed in 2020; on February 21, 2020, the Superior Court denied Swan's motion for postconviction relief. The Delaware Supreme Court concluded, after review of the procedural history of this case, that the Superior Court did not abuse its discretion by denying Swan's motion for postconviction relief, nor did it err in denying a motion for the Superior Court judge to recuse. Thus, the Court affirmed the Superior Court's judgment. |
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| Butler v. Georgia |
| Court: Supreme Court of Georgia Dockets: S20A1297, S20A1298 Opinion Date: March 1, 2021 Judge: LaGrua Areas of Law: Constitutional Law, Criminal Law |
| Demarco Butler and Antonio Avery were tried jointly by jury and convicted of murder and other crimes in connection with a shooting incident that killed Jordan Collins and wounded his brother, Chad. Butler appealed, contending the evidence was insufficient to support his convictions, and that the trial court erred when it admitted expert testimony about gang activity and about Butler’s participation in a gang. In his separate appeal, Avery contended the evidence was insufficient to sustain his convictions, and that the trial court erred when it admitted a certain part of a recorded police interview. Finding no error in any of these enumerations, the Georgia Supreme Court affirmed the trial court's judgments in both cases. |
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| Finney v. Georgia |
| Court: Supreme Court of Georgia Docket: S20A1469 Opinion Date: March 1, 2021 Judge: David E. Nahmias Areas of Law: Constitutional Law, Criminal Law |
| Appellant Benjamin Finney was convicted of felony murder and two firearm crimes based on the 2008 fatal shooting Gwendolyn Cole, the mother of one of Appellant’s rivals. On appeal, Appellant argued, among other things, that the trial court erred: (1) by admitting hearsay from an accomplice; (2) by failing to give a jury instruction on the accomplice-corroboration requirement; and (3) by admitting evidence of Appellant’s involvement in two prior shootings. After review, the Georgia Supreme Court agreed the trial court erred in these ways, and because the cumulative effect of the errors likely affected the outcome of Appellant’s trial, his convictions were reversed. |
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| Gaddy v. Georgia |
| Court: Supreme Court of Georgia Docket: S21A0334 Opinion Date: March 1, 2021 Judge: Carla Wong McMillian Areas of Law: Constitutional Law, Criminal Law |
| William Gaddy was convicted of felony murder and related crimes in connection with the death of Addisyn Sanders, the two- year-old daughter of Gaddy’s girlfriend, Tiffany Harris. Gaddy generally watched Addisyn while Harris was at work during the day. Gaddy, Harris, and Addisyn moved in with Gaddy’s grandmother. Gaddy’s ten-year-old brother, C. F., who often visited, was playing video games in one of the home’s bedrooms while Gaddy and Addisyn watched television in the living room. C. F. heard Addisyn crying while she said “no” and “stop” just before there were three thumps that sounded like a head banging against a wall. Then, C. F. saw Gaddy carry Addisyn’s limp body to another bedroom and leave her there. On appeal, Gaddy argued the trial court erred in denying his motion to suppress his custodial statement. After review of the trial court record, the Georgia Supreme Court found no reversible error and affirmed Gaddy's convictions. |
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| Gialenios v. Georgia |
| Court: Supreme Court of Georgia Docket: S20A1196 Opinion Date: March 1, 2021 Judge: Boggs Areas of Law: Constitutional Law, Criminal Law |
| Robert Gialenios was convicted by jury in 2019 of malice murder and possession of a firearm during the commission of a felony arising out of the shooting death of Bryan Overseth, the husband of Gialenios’ mistress. His amended motion for new trial was denied, and he appealed, asserting seven enumerations of error. Finding no reversible error, the Georgia Supreme Court affirmed Gialenios' convictions. |
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| Harrison v. Georgia |
| Court: Supreme Court of Georgia Docket: S20A1104 Opinion Date: March 1, 2021 Judge: LaGrua Areas of Law: Constitutional Law, Criminal Law |
| Kevin Harrison was convicted by jury of murder and other crimes in connection with the shooting death of his wife, Heather Harrison. In the months leading up to the shooting, Heather had confided in multiple friends and family members that she was unhappy in her marriage; that Harrison was jealous, possessive, and controlling; and that she intended to move out of the couple’s home and seek a divorce. During that time, Harrison, who was aware of Heather’s intentions, contacted many of these same people to ask for advice on how to prevent Heather from leaving him. These witnesses described Harrison as being “broken-hearted” and “in a panic” about the prospect of Heather’s leaving; one witness testified that Harrison would call or text him for advice up to 30 times a day. Several witnesses testified that, on February 27, Heather planned to tell Harrison she was ending the relationship. In the early morning hours between February 27 and February 28, a concerned friend who spoke to Heather on the phone, arrived at the Harrison home to find police had cordoned off the Harrison home; Heather died at the hospital. On appeal, Harrison contended the State failed to carry its burden to disprove that the shooting was accidental, and that the trial court erred in refusing to give a requested jury instruction and in admitting certain other-acts evidence. Finding no reversible error, the Georgia Supreme Court affirmed Harrison's convictions. |
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| Jones v. Georgia |
| Court: Supreme Court of Georgia Docket: S20A1245 Opinion Date: March 1, 2021 Judge: LaGrua Areas of Law: Constitutional Law, Criminal Law |
| Delaljujuan Jones was tried by jury and convicted of murder and other crimes in connection with a shooting that killed Stanley Hill and wounded three others. Jones appealed, contending: (1) the evidence presented at his trial was insufficient to sustain three of his convictions; (2) the trial court erred when it denied his request to charge the jury on the defense of justification; and (3) that he was denied the effective assistance of counsel when his trial counsel failed to present evidence that Hill and others at the scene of the shooting were members of a gang. Finding no reversible error, the Georgia Supreme Court affirmed Jones' convictions. |
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| McKelvey v. Georgia |
| Court: Supreme Court of Georgia Docket: S20A1548 Opinion Date: March 1, 2021 Judge: LaGrua Areas of Law: Constitutional Law, Criminal Law |
| Appellant Sacorey McKelvey was convicted of murder and other crimes in connection with the shooting death of Corey Owens. On appeal, McKelvey contended: (1) the evidence presented at trial was insufficient to support his convictions; (2) the trial court erred by admitting into evidence his 2009 convictions for terroristic threats; (3) the trial court erred in striking two potential jurors for cause; and (4) that his trial counsel rendered constitutionally ineffective assistance by failing to call two alibi witnesses. Finding no reversible error, the Georgia Supreme Court affirmed McKelvey's convictions. |
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| Pearson v. Georgia |
| Court: Supreme Court of Georgia Docket: S20A1539 Opinion Date: March 1, 2021 Judge: David E. Nahmias Areas of Law: Constitutional Law, Criminal Law |
| Appellant Gregory Pearson was convicted by jury on: five counts of armed robbery; two counts of burglary; one count of aggravated assault; and six counts of possession of a firearm during the commission of a felony in connection with robberies in two motel rooms in Valdosta, Georgia. He appealed, arguing: (1) his trial counsel provided ineffective assistance by failing to object to evidence of three witnesses’ identification of Appellant at a roadside “showup;” (2) the trial court erred and his counsel was ineffective relating to the admission into evidence a surveillance video, because the video was authenticated by his accomplice, LaQuita Frazier, and Frazier identified him on the video; and (3) the lack of a transcript of voir dire, opening statements, and closing arguments violated his constitutional right to due process. Finding no merit to any of these claims, the Georgia Supreme Court affirmed his convictions. |
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| Strickland v. Georgia |
| Court: Supreme Court of Georgia Docket: S20A1476 Opinion Date: March 1, 2021 Judge: Ellington Areas of Law: Constitutional Law, Criminal Law |
| Jesse Strickland was convicted by jury of malice murder and armed robbery in connection with the death of Arthur Westberry. On appeal, Strickland contended: (1) the evidence was insufficient to support the jury’s verdicts; and (2) the trial court erred in denying his motion for a new trial because a juror lied during voir dire about her knowledge of the parties, facts, and witnesses to the case. Finding no reversible error, the Georgia Supreme Court affirmed Strickland's convictions. |
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| Swinson v. Georgia |
| Court: Supreme Court of Georgia Docket: S21A0396 Opinion Date: March 1, 2021 Judge: Carla Wong McMillian Areas of Law: Constitutional Law, Criminal Law |
| Dan Toni Swinson appealed his convictions on two counts of malice murder in connection with the shooting deaths of Heber Jettie Bennett, Jr., and Eliace Marie Smith. On appeal, Swinson contended: (1) the evidence was insufficient to support his convictions; (2) the trial court erred in denying his motion to suppress evidence obtained from a search warrant for his cell phone records, which was based, in part, on a warrantless request for cell site information under the Stored Communications Act; and (3) that the trial court erred in denying his motion for a mistrial after a witness testified about his incarceration on an unrelated charge. Swinson also claimed he received ineffective assistance of counsel on a number of grounds. Finding no reversible error, the Georgia Supreme Court affirmed Swinson's convictions. |
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| Volkova v. Georgia |
| Court: Supreme Court of Georgia Docket: S21A0006 Opinion Date: March 1, 2021 Judge: Harold D. Melton Areas of Law: Constitutional Law, Criminal Law |
| Liubov Volkova appealed her conviction for the murder of her husband, Jordan Whitson. Volkova called police to inform them her husband had been shot. When police arrived, Volkova led them to Whitson’s body, which was lying at the bottom of a set of stairs. One shell casing was found near the body, and there was blood on Whitson’s hands and blood spatter up the stairs. Whitson had been shot through his right cheek, and the bullet lodged in his head, leading to his death. The handgun that caused Whitson’s death was found on a table in the master bedroom, where Volkova had placed it. On appeal, Volkova contended the trial court erred by failing to properly instruct the jury on how to consider a particular statement she made to police and that her trial counsel provided constitutionally ineffective assistance. Finding no reversible error, the Georgia Supreme Court affirmed Volkova's conviction. |
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| State v. Johnson |
| Court: Supreme Court of Missouri Docket: SC98303 Opinion Date: March 2, 2021 Judge: Zel M. Fischer Areas of Law: Criminal Law |
| The Supreme Court dismissed the appeal of the dismissal of a motion for a new trial filed decades after a criminal conviction became final, holding that Appellant was dismissing an order dismissing a motion the circuit court had no authority to sustain. In 1995, Appellant was convicted of murder. In 2019, City of St. Louis Circuit Attorney Kimberly Gardner filed a motion for new trial claiming that there was newly discovered evidence showing Appellant's innocence. The court then concluded that it lacked authority to entertain the motion because the State was not permitted to file the motion and because it was untimely. The Supreme Court affirmed, holding that there was no statutory authority for the right to appeal in this case. |
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| State v. Hill |
| Court: Nebraska Supreme Court Citation: 308 Neb. 511 Opinion Date: February 26, 2021 Judge: Lindsey Miller-Lerman Areas of Law: Criminal Law |
| The Supreme Court affirmed the order of the district court dismissing Defendant's motion for a new trial based on newly discovered evidence, holding that the district court did not err in dismissing the motion pursuant to Neb. Rev. Stat. 29-2102(2). Defendant was convicted of first degree murder and two counts of possession of a deadly weapon by a prohibited person. The Supreme Court affirmed Defendant's convictions and sentences. Defendant later filed a pro se motion for new trial. The district court dismissed the motion. Defendant appealed, arguing, among other things, that the district court erred when it failed to treat his motion as a postconviction motion and to consider his claims. The Supreme Court affirmed, holding that the district court (1) did not err when it considered Defendant's motion as a motion for new trial rather than considering it as a motion for postconviction relief; and (2) properly dismissed the motion without an evidentiary hearing. |
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| State v. Lowman |
| Court: Nebraska Supreme Court Citation: 308 Neb. 482 Opinion Date: February 26, 2021 Judge: William B. Cassel Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed the judgment of the district court convicting Defendant of possession of a controlled substance and two counts of carrying a concealed weapon, holding that there was no merit to Defendant's claims on appeal. On appeal, Defendant contended that the district court erred in overruling his motion to suppress, that he received ineffective assistance of counsel, and that the evidence was insufficient to convict him of carrying a concealed weapon. The Supreme Court affirmed, holding (1) because there was no Fourth Amendment violation the court properly overruled Defendant's motion to suppress; (2) there was sufficient evidence to support the verdict; and (3) trial counsel did not perform deficiently. |
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| State v. Russell |
| Court: Nebraska Supreme Court Citation: 308 Neb. 499 Opinion Date: February 26, 2021 Judge: Freudenberg Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed the judgment of the district court denying Defendant's motion for postconviction relief after an evidentiary hearing, holding that the district court did not err in finding that trial counsel was effective. In his motion for postconviction relief, Defendant argued that trial counsel provided ineffective assistance by failing to file a direct appeal at Defendant's direction. The district court denied the motion after holding an evidentiary hearing. The Supreme Court affirmed, holding that the district court did not clearly err in finding that Defendant did not direct trial counsel to file a direct appeal, and therefore, trial counsel was not deficient in allegedly not filing the appeal. |
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| State v. Starks |
| Court: Nebraska Supreme Court Citation: 308 Neb. 527 Opinion Date: February 26, 2021 Judge: Michael G. Heavican Areas of Law: Criminal Law |
| The Supreme Court affirmed in part and vacated in part the sentences imposed upon Defendant for his plea-based convictions for one Class IIA felony and three Class IV felonies, holding that Defendant's three sentences for Class IV felonies were plain error. Defendant was sentenced to consecutive terms of eight to sixteen years' imprisonment for the Class IIA felony and two years' imprisonment for each Class IV felony. On appeal, Defendant argued that the terms of his total sentence were excessive. The Supreme Court affirmed the sentence for Defendant's Class IIA felony but vacated the sentences imposed for his Class IV felonies and remanded the cause for resentencing, holding (1) Defendant's sentences were not excessive; but (2) the district court erred in rendering determinate sentences for each of Defendant's Class IV felonies. |
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| State v. Fourth Judicial District Court |
| Court: Supreme Court of Nevada Citation: 137 Nev. Adv. Op. No. 4 Opinion Date: February 25, 2021 Judge: Kristina Pickering Areas of Law: Criminal Law |
| The Supreme Court held that the State properly charges a defendant with only a single violation of Nev. Rev. Stat. 202.360(1)(b) when it alleges, without more, that the defendant is a felon who possessed "any firearms" - or, one or more firearms - at one time and place. Anthony Martinez shot two individuals. The police recovered five firearms at the scene - four from Martinez's car and the fifth from beside the car. The State charged Martinez with five counts of violating Nev. Rev. Stat. 202.360(1)(b) - possession of a firearm by a person previously convicted of a felony offense - one count per firearm. The district court granted Martinez's motion to consolidate the five felon-in-possession counts into a single count, concluding that Martinez committed, at most, a single violation of section 202.360(1)(b). The State filed a pretrial petition for extraordinary relief, arguing that the court wrongly interpreted the statute. The Supreme Court affirmed, holding that the State properly charges a defendant with only a single violation of section 202.360(1)(b) when it alleges, without more, that the defendant is a felon who possessed "any firearms" - i.e., one or more firearms - at one time and place. |
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| Appeal of Andrew Panaggio |
| Court: New Hampshire Supreme Court Docket: 2019-0685 Opinion Date: March 2, 2021 Judge: Gary E. Hicks Areas of Law: Criminal Law, Government & Administrative Law, Health Law, Insurance Law |
| Petitioner Andrew Panaggio appealed a New Hampshire Compensation Appeals Board (Board) determination that respondent, CNA Insurance Company (the insurer), could not be ordered to reimburse him for his purchase of medical marijuana because such reimbursement would have constituted aiding and abetting his commission of a federal crime under the federal Controlled Substances Act (CSA). When Panaggio appealed the insurer’s denial to the New Hampshire Department of Labor, a hearing officer agreed with the insurer. Panaggio appealed the hearing officer’s decision to the Board, which unanimously found that his use of medical marijuana was reasonable and medically necessary. Nonetheless, the Board upheld the insurer’s refusal to reimburse Panaggio, concluding that “the carrier is not able to provide medical marijuana because such reimbursement is not legal under state or federal law.” The New Hampshire Supreme Court surmised the issue on appeal raised a question of federal preemption, "which is essentially a matter of statutory interpretation and construction." Although it was an issue of first impression for the New Hampshire Court, other courts considered whether the CSA preempted a state order requiring reimbursement of an employee’s purchase of medical marijuana. Panaggio reasoned that “[b]ecause New Hampshire law unambiguously requires the insurer to pay for the claimant’s medically related treatment,” an insurer that reimburses a claimant for the purchase of medical marijuana acts without the volition required by the federal aiding and abetting statute. The insurer asserted Panaggio’s argument leads to an absurd result, observing that “[c]onflict preemption applies because state law requires what federal law forbids.” The New Hampshire Supreme Court ultimately concluded the CSA did not make it illegal for an insurer to reimburse an employee for his or her purchase of medical marijuana. "[A] Board order to reimburse Panaggio does not interfere with the federal government’s ability to enforce the CSA. Regardless of whether the insurer is ordered to reimburse Panaggio for his medical marijuana purchase, the federal government is free to prosecute him for simple possession of marijuana under the CSA." Under these circumstances, the Court concluded the “high threshold” for preemption “is not met here.” The Board's decision was reversed and the matter remanded for further proceedings. |
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| Friesz v. North Dakota |
| Court: North Dakota Supreme Court Citation: 2021 ND 37 Opinion Date: March 3, 2021 Judge: Jon J. Jensen Areas of Law: Constitutional Law, Criminal Law |
| Rodney Friesz appealed a district court order denying his application for post-conviction relief. In 2016, Friesz was convicted by jury of manslaughter and arson, both class B felony offenses. Friesz appealed the case, asserting insufficient evidence to support the conviction, and the court erred denying his motion to suppress. The North Dakota Supreme Court affirmed the conviction and remanded with instructions for the district court to correct a clerical error in the criminal judgment. In 2018, Friesz filed his first application for post-conviction relief, arguing: (1) his conviction was based on a coerced confession; (2) the evidence admitted was obtained by an unlawful search and seizure; his arrest was unlawful; (3) he was denied the right to call witnesses to testify on his behalf; (4) the State failed to disclose certain evidence; (5) he was denied effective assistance of counsel; and (6) he was denied his right to appeal. The district court denied his application and the Supreme Court summarily affirmed the denial of the application. In 2020, Friesz filed a second application for post-conviction relief, alleging: (1) ineffective assistance of trial counsel; (2) denial of effective assistance of counsel on his post-conviction appeal with appellate counsel; (3) insufficiency of evidence to sustain a conviction; (4) denial of his fourth amendment rights regarding the warrantless search of the residence, the seizure of a firearm, and the failure of the court to grant his motion to suppress; and (5) failure to disclose evidence by the prosecution. The district court dismissed Friesz’s application after finding the two-year statute of limitations in N.D.C.C. 29-32.1-01(2) barred the relief requested, and the application did not state any exceptions to the limitations period listed in N.D.C.C. 29-32.1-01(3). The court found all grounds for relief asserted by Friesz had been or could have been raised in his direct appeal from his conviction or in his previous application for post-conviction relief. Here, Friesz argued in part that the district court acted prematurely in dismissing his application two days after the State requested dismissal, and prior to receiving a response from him. To this, the Supreme Court concurred--the district court erred in its premature ruling. The ruling was reversed and the matter remanded for further proceedings. |
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| Oregon v. Aguirre-Rodriguez |
| Court: Oregon Supreme Court Docket: S067446 Opinion Date: March 4, 2021 Judge: Nelson Areas of Law: Constitutional Law, Criminal Law |
| Defendant Alex Aguirre-Rodriguez pleaded guilty to several crimes that resulted in damage to the victim’s truck. After the state presented evidence of a repair bill paid by the victim’s insurer, the trial court ordered defendant to pay restitution for the full amount of that bill, pursuant to ORS 137.106. Defendant appealed, arguing that the restitution award was not supported by sufficient evidence to prove that the amount charged had been reasonable. The Court of Appeals agreed with defendant and reversed. The Oregon Supreme Court concluded the state presented sufficient evidence to support the trial court’s finding that the amount that the victim’s insurer paid for repairs was reasonable. The trial court therefore did not err in entering the restitution award. |
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| Oregon v. Link |
| Court: Oregon Supreme Court Docket: S066824 Opinion Date: March 4, 2021 Judge: Garrett Areas of Law: Constitutional Law, Criminal Law, Juvenile Law |
| Defendant Justin Link committed aggravated murder as a juvenile in 2001. He was sentenced to a term of life imprisonment, which, as defined by statute at the relevant time, required him to serve “a minimum of 30 years without possibility of parole.” After serving that minimum term of confinement, defendant could petition to convert his sentence to life imprisonment with the possibility of parole. In this case, defendant argued the statute under which he was sentenced violated the Eighth Amendment to the United States Constitution. The Court of Appeals agreed. The Oregon Supreme Court allowed the state’s petition for review, and reversed, finding defendant did not establish that the statutory scheme applicable here denied him a meaningful opportunity for release. "Therefore, the sentence that defendant received is not the functional equivalent of life without parole. It follows that defendant has failed to establish that Miller’s individualized-sentencing requirement applies to a sentence of 'life imprisonment' under ORS 163.105(1)(c) (2001)." The circuit court's order was affirmed. |
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| Oregon v. Phillips |
| Court: Oregon Supreme Court Docket: S067088 Opinion Date: March 4, 2021 Judge: Flynn Areas of Law: Constitutional Law, Criminal Law |
| The Oregon Supreme Court allowed review in this criminal case to consider whether the trial court correctly allowed the state to impeach defendant’s testimony with evidence that defendant previously had been convicted of second-degree assault. Defendant Frank Phillips was originally convicted on that crime in 1994, as well as other, more serious crimes arising out of an incident in 1993. In 2007, while still serving his prison sentence for the 1994 convictions, defendant successfully challenged those convictions through a petition for post-conviction relief. The post-conviction court vacated all of defendant’s 1994 convictions and remanded the case for a new trial, at which point the Department of Corrections released him from confinement. On retrial, in 2008, defendant again was convicted of second-degree assault, for which he was sentenced to a period of 36 months’ incarceration. But defendant was acquitted on retrial of the more serious charges that had been the basis for his lengthy original prison sentence. As a result, the judgment of conviction following retrial specified that defendant’s 36-month sentence for the second-degree assault “is served,” and the Department of Corrections issued a certificate specifying that defendant had an “Adjusted Calculated Release Date” of May 1996. In this case, defendant was charged with assault and strangulation arising out of an altercation with a neighbor. At the start of defendant’s trial, he advised the court that he planned to testify, and he urged the court to rule that evidence of his prior second-degree assault conviction would not be admissible under OEC 609. Defendant argued the operative date of his prior conviction was 1994, and that the operative date of his release from confinement for that conviction was 1996, meaning that the conviction should have been excluded because both dates fell outside of the OEC 609(3)(a) window of admissibility. The trial court disagreed and ruled that the state could offer evidence of the conviction as impeachment. The Court of Appeals concluded the date of defendant’s conviction on retrial supplied “the date of the conviction” for purposes of OEC 609’s 15-year window of admissibility and, accordingly, that the trial court correctly allowed evidence of that conviction to impeach defendant’s testimony. The Oregon Supreme Court agreed with the Court of Appeals and affirmed. |
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| State v. Depina |
| Court: Rhode Island Supreme Court Docket: 19-136 Opinion Date: March 3, 2021 Judge: William P. Robinson, III Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed the judgment of conviction and commitment entered in the superior court reflecting the fact that Defendant was found guilty of second-degree murder, holding that the trial justice did not err when she denied Defendant's motion to suppress. Before trial, Defendant filed a motion to videos located on a digital camera, arguing that the detectives who seized the camera improperly expended the scope of the judicially-approved warrant. The trial justice denied the motion. After a jury trial, Defendant was found guilty of second-degree murder and sentenced to life imprisonment. The Supreme Court affirmed, holding that the trial justice did not clearly err in denying the motion to suppress because, in seizing the camera, the police did not exceed the scope of the warrant. |
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| State v. Rus |
| Court: South Dakota Supreme Court Citation: 2021 S.D. 14 Opinion Date: March 3, 2021 Judge: David Gilbertson Areas of Law: Criminal Law |
| The Supreme Court reversed Defendant's conviction of driving under the influence of an alcoholic beverage (DUI), holding that the circuit court erred in denying Defendant a preliminary hearing. The State charged Defendant with driving a motor vehicle while under the influence of an alcoholic beverage. Defendant moved for a preliminary hearing. The circuit court denied the motion. The State then filed a supplemental information alleging that Defendant had been convicted of two prior DUIs, thereby charging him with DUI third offense, a Class 6 felony. The plain language of S.D. Codified Laws 23A-4-3 entitles a defendant to a preliminary hearing if he is charged with an offense "punishable as a felony." The Supreme Court reversed Defendant's conviction and remanded the case for further proceedings, holding that because Defendant faced a potential felony conviction he was entitled to a preliminary hearing. |
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| State v. Schumacher |
| Court: South Dakota Supreme Court Citation: 2021 S.D. 16 Opinion Date: March 3, 2021 Judge: Salter Areas of Law: Criminal Law |
| The Supreme Court affirmed Defendant's conviction of two counts of aggravated assault and one count of simple assault against a law enforcement officer, holding that there was no error. On appeal, Defendant claimed, among other things, that her conviction of aggravated assault was unlawful because the gun she was holding at the time of the incident giving rise to her convictions was inoperable. The Supreme Court affirmed, holding that the circuit court (1) did not err by denying Defendant's motion to suppress evidence of Defendant's conduct giving rise to the simple assault charge; (2) did not err, under the circumstances, by not instructing the jury on the definition of a firearm and by prohibiting Defendant's argument regarding firearm operability; and (3) did not err by denying Defendant's motion for judgment of acquittal. |
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| State v. Weems |
| Court: Tennessee Supreme Court Docket: M2018-02288-SC-R11-CD Opinion Date: March 1, 2021 Judge: Bivins Areas of Law: Criminal Law |
| The Supreme Court reversed the judgment of the court of criminal appeals and vacated the decision of the trial court to grant Defendant's motion for judgment of acquittal as to an aggravated child neglect charge, holding that a reasonable jury could have found the necessary elements of the crime of aggravated child neglect. Following the death of her infant child, Defendant was convicted of reckless homicide and aggravated child neglect. The trial court granted Defendant's motion for judgment of acquittal as to the aggravated child neglect charge. The court of criminal appeals affirmed, concluding that the evidence was insufficient to prove that Defendant knowingly neglected her child. The Supreme Court reversed, holding that a reasonable jury could have concluded that Defendant knowingly neglected her child by not feeding her and her child died as a result. |
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| Brown v. Texas |
| Court: Texas Court of Criminal Appeals Docket: PD-1292-19 Opinion Date: March 3, 2021 Judge: Sharon Keller Areas of Law: Constitutional Law, Criminal Law |
| When the alleged victim of a family-violence assault failed to show up for trial, the State sought to introduce her prior out-of-court statements about the assault. Appellant Frederick Brown objected on the basis of his constitutional right to confrontation. The State claimed that the evidence was admissible under the doctrine of forfeiture by wrongdoing. The State produced evidence that Appellant had told an investigator that he did not know the alleged victim’s whereabouts, but the investigator was later able to locate her before trial. Aside from that evidence, the State offered evidence that Appellant lived with the victim shortly before or at the time of trial, that he committed the instant family violence assault offense, and that he had previously committed such an offense against the same victim. After review, the Texas Court of Criminal Appeals concluded this evidence was not sufficient to show that an action by the defendant caused the victim’s absence. Consequently, the Court held the doctrine of forfeiture by wrongdoing did not apply in this case. The court of appeals' judgment was reversed and the matter remanded for further proceedings. |
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| In re Texas ex. rel. Ogg |
| Court: Texas Court of Criminal Appeals Docket: WR-91,936-01 Opinion Date: March 3, 2021 Judge: Sharon Keller Areas of Law: Constitutional Law, Criminal Law |
| Defendant Kim Ogg sought to waive his right to a jury trial and have a bench trial. By statute, the State had the authority to refuse to consent to such a waiver, and the State refused to consent here. The trial court concluded that it had the power, under the Texas Supreme Court’s Emergency Order in response to COVID-19, to suspend that statutory provision and conduct a bench trial despite the State’s refusal to consent. The State then sought a writ of mandamus or a writ of prohibition from the court of appeals, but that court declined to grant relief. The State sought mandamus relief against the court of appeals, which the Texas Court of Criminal Appeals conditionally granted: "It is clear and indisputable that the Emergency Order did not confer upon the trial court the authority to conduct a bench trial without the State’s consent. . . . The writ of mandamus will issue only in the event that the court of appeals fails to comply with this opinion." |
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| Najar v. Texas |
| Court: Texas Court of Criminal Appeals Docket: PD-1049-19 Opinion Date: March 3, 2021 Judge: Keel Areas of Law: Constitutional Law, Criminal Law |
| Appellant Zaid Najar was convicted of evading arrest in a motor vehicle. In his motion for new trial, he presented affidavits citing a conversation with a juror who stated that during deliberations the jurors heard a siren from outside, they made assumptions about the case based on that siren, and it affected their deliberations. The trial court denied the motion for new trial, but the court of appeals reversed, holding that the jurors received other evidence in violation of Rule 21.3(f), which mandated a new trial. The Texas Court of Criminal Appeals held the trial court was not required to believe the affidavits and that the siren was not “other evidence” under Rule 21.3(f). Therefore, the Court reversed the court of appeals and remanded the case for consideration of Appellant’s remaining point of error. |
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| Watkins v. Texas |
| Court: Texas Court of Criminal Appeals Docket: PD-1015-18 Opinion Date: March 3, 2021 Judge: Newell Areas of Law: Constitutional Law, Criminal Law |
| This case concerned the admission of 33 of 34 exhibits during the punishment phase of Appellant Ralph Watkins’ trial for possession with intent to deliver a controlled substance. The exhibits were a collection of booking records, pen packets, and judgments of prior convictions that were used to prove two prior convictions for enhancement and other extraneous offenses that Appellant had committed. Prior to trial, Appellant’s attorney timely requested disclosure of “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case” pursuant to Article 39.14 of the Texas Code of Criminal Procedure. The prosecutor provided notice of the State’s intent to introduce evidence of these prior convictions and extraneous offenses at punishment, but the prosecutor didn’t disclose copies of the exhibits themselves until it was time to introduce them. The Texas Court of Criminal Appeals determined the exhibits at issue were “material” because they had a logical connection to subsidiary punishment facts. It therefore reversed the court of appeals and remanded the case so that the court of appeals could analyze whether Appellant was harmed by the lack of disclosure. |
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