Latest 58 Cases This Week: United States v. Morales-Negron (1st Cir.), United States v. Fridman (2d Cir.), United States v. Smilowitz (2d Cir.)

Law and Non-Legal Entitlements: Kate Manne’s Entitled: How Male Privilege Hurts Women

LESLEY WEXLER

Illinois law professor Lesley Wexler comments on philosopher Kate Manne’s recent book, Entitled, in which Mann tackles “privileged men’s sense of entitlement” as a “pervasive social problem with often devastating consequences.” Wexler praises Manne’s work as “illuminating” and calls upon lawyers and law scholars to ask how such entitlements might best and safely be challenged and reallocated, and how new more egalitarian entitlements might be generated and enforced.

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United States v. Morales-Negron

Court: US Court of Appeals for the First Circuit

Dockets: 17-1181, 18-1047

Opinion Date: September 8, 2020

Judge: Jeffrey R. Howard

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's sentence for being a felon in possession of a firearm and ammunition and for unlawfully possessing a machine-gun but remanded for the district court to docket a sealed copy of the written statement of reasons (SOR) in order for Defendant to prepare his appeal, holding that there was no basis for withholding the SOR from Defendant. Specifically, the First Circuit held (1) the district court did not commit procedural error by unduly relying on conjecture to impose an upward variant sentence; (2) Defendant's sentence was substantively reasonable because it was within the "universe of reasonable sentences"; and (3) practice and policy required that defense counsel have access to the SOR.

United States v. Fridman

Court: US Court of Appeals for the Second Circuit

Docket: 18-3530

Opinion Date: September 9, 2020

Judge: Pooler

Areas of Law: Criminal Law, White Collar Crime

The Second Circuit affirmed the district court's grant on remand of the Government's petition to enforce two Internal Revenue Service summonses, one sent to defendant in his personal capacity and one sent to him in his capacity as a trustee, based on the foregone conclusion and collective entity exceptions to the Fifth Amendment's self-incrimination clause. Defendant's appeal stemmed from the IRS's efforts to investigate his use of offshore bank accounts to improperly conceal federally taxable income. The court agreed with the district court that the Government has shown with reasonable particularity the documents' existence, defendant's control of the documents, and an independent means of authenticating the documents such that the foregone conclusion doctrine applies. The court also agreed with the district court that, as a matter of first impression in this Circuit, a traditional trust is a collective entity subject to the collective entity doctrine.

United States v. Smilowitz

Court: US Court of Appeals for the Second Circuit

Docket: 19-361

Opinion Date: September 8, 2020

Judge: John M. Walker

Areas of Law: Criminal Law

The Second Circuit affirmed defendant's conviction for (1) conspiring to submit false voter registrations and buying voter registrations in violation of 18 U.S.C. 371 and 52 U.S.C. 10307(c) and (2) conspiring to violate the Travel Act by paying bribes for voter registrations and votes, in violation of 18 U.S.C. 371 and 1952. Defendant's convictions stemmed from his involvement in a criminal voting scheme to further a real estate development project. The court held that 52 U.S.C. 10307(c) applied to defendant's conduct because it exposed future federal elections to corruption. In this case, the prohibitions in section 10307(c) apply to any voter registration practices that expose federal elections – present or future – to corruption, regardless of whether any federal candidate is on the immediate ballot. The court explained that New York's registration process is unitary and thus defendant's fraudulent conduct has the potential to affect future federal elections. The court also held that defendant's payment to influence voter conduct fits within the generic definition of bribery and thus violated the Travel Act. The court explained that, because Travel Act bribery is construed broadly, the lack of a precise fit between New York Election Law 17-142 and the New York bribery statute does not matter.

Allen v. New Jersey State Police

Court: US Court of Appeals for the Third Circuit

Docket: 19-3138

Opinion Date: September 9, 2020

Judge: Greenaway

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

In 2008, State Trooper DiLillo stopped a car for speeding. Allen was the passenger. His uncle, Andrew, was driving. Allen had rented the vehicle. Each man was subject to an outstanding warrant. They were placed under arrest. Allen admitted that he had marijuana on his person. DiLillo discovered baggies of marijuana in Allen’s shoes. Trooper Nugnes arrived; DiLillo left with the men. When a tow truck arrived, the driver attempted to unlock the car and accidentally opened the trunk. Nugnes told the truck driver not to do anything and pulled out something wrapped in black plastic, which Nugnes correctly believed to be a bundle of heroin. The court denied Allen’s motion to suppress the heroin, finding that the evidence was in plain view. Allen pled guilty, admitting in court that: there was heroin in the car and that he intended to distribute it. On remand, the trial court heard testimony from the tow truck driver and Nugnes and was “not persuaded, by even the preponderance of the evidence, that the mannitol or the heroin was visible prior to the trooper’s incursion into the trunk.” The Supreme Court of New Jersey vacated Allen’s conviction because of Nugnes’s warrantless search. Allen filed a 42 U.S.C. 1983 suit. The Third Circuit affirmed summary judgment in favor of the defendants. Allen did not establish a malicious prosecution claim because he failed to show that his case was terminated in a way indicative of his innocence. With respect to claims against the state police, New Jersey has not waived its Eleventh Amendment immunity.

United States v. Jabateh

Court: US Court of Appeals for the Third Circuit

Docket: 18-1981

Opinion Date: September 8, 2020

Judge: Matey

Areas of Law: Criminal Law, Immigration Law, International Law

Jabateh was a rebel commander during the Liberian civil war. He later fled to the United States seeking asylum. His conduct in Liberia, characterized by brazen violence and wanton atrocities, made honest immigration application impossible. He concealed his crimes and portrayed himself as a persecuted victim. Jabateh’s fraud succeeded for almost 20 years. In 2016, Jabateh was charged with the fraud in his immigration documents, 18 U.S.C. 1546(a) and perjury, 18 U.S.C. 1621. The five-year limitations period for misconduct related to Jabateh's 2001 application for permanent residency had passed, leaving only Jabateh’s oral responses in a 2011 Interview affirming his answer of “no” to questions related to genocide and misrepresentations during his immigration applications. The district court noted “the force of the prosecution’s trial evidence,” establishing that Jabateh personally committed or ordered his troops to commit murder, enslavement, rape, and torture “because of race, religion, nationality, ethnic origin or political opinion.” The Third Circuit affirmed, rejecting challenges to the sufficiency of the evidence and to Jabateh’s 360-month sentence. The court acknowledged that section 1546(a) criminalizes fraud in immigration documents and that Jabateh was not charged with fraud in his immigration documents, only with orally lying about those documents. Jabateh, however, failed to raise this argument at trial. “Given the novelty of the interpretative question, and the lack of persuasive" guidance, the court declined to hold that this reading of section 1546(a) meets the stringent standards for “plain error” reversal.

United States v. Williams

Court: US Court of Appeals for the Third Circuit

Docket: 17-2111

Opinion Date: September 10, 2020

Judge: D. Michael Fisher

Areas of Law: Criminal Law

Twenty-one men from the South Side of York, Pennsylvania were charged on counts of racketeering conspiracy, drug-trafficking conspiracy, and drug trafficking. Four were also variously charged with federal firearms offenses related to the alleged trafficking. The indictment alleged that South Side had, since 2002, constituted the identity of a criminal enterprise associated with the Bloods, a national street gang, and ran an extensive drug-trafficking operation, conducted across a defined territory and nurtured by sporadic episodes of gang violence. Nine defendants pleaded guilty. Twelve proceeded to a joint trial, with more than 100 witnesses, including some of the original defendants. All 12 defendants were convicted of various charges and were sentenced to terms of imprisonment ranging from 60 months to life. The Third Circuit affirmed the convictions, rejecting arguments that the closure of the courtroom to the public during jury selection violated the Sixth Amendment right to a public trial and that the district court’s in camera disposition of a “Batson” challenge violated the defendants’ constitutional right to personal presence at all critical phases of their trial and was sufficiently prejudicial to warrant reversal. The court rejected challenges to the denial of motions to suppress evidence collected from the defendants’ residences pursuant to search warrants and to the admission and use of evidence at trial. The evidence was sufficient to support the verdicts. The court vacated certain sentences.

United States v. McCain

Court: US Court of Appeals for the Fourth Circuit

Docket: 18-4723

Opinion Date: September 10, 2020

Judge: Allison J. Rushing

Areas of Law: Criminal Law, Juvenile Law

Six years after defendant received a mandatory sentence of life imprisonment without the possibility of parole for crimes he committed when he was 17 years old, he moved to vacate his sentence in light of the Supreme Court’s intervening decisions in Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). The district court resentenced defendant to life imprisonment without parole after concluding that he presents "one of those uncommon cases where sentencing a juvenile to the hardest possible penalty is appropriate." The Fourth Circuit affirmed and held that, even assuming the district court plainly erred in not vacating defendant's witness tampering by murder conviction, he has not shown that the error affected his substantial rights. The court also held that defendant's sentence of life imprisonment without parole is procedurally reasonable where the district court conducted a thorough resentencing and did not abuse its discretion in its consideration of defendant's age at the time of the offense or his postconviction diagnosis and conduct. Furthermore, the district court amply explained why it concluded that "the harshest possible penalty"—life imprisonment without parole—was appropriate. Finally, the court held that defendant's sentence was not substantively unreasonable where the district court did not abuse its discretion in determining that defendant's crimes, committed when he was 7-and-a-half months shy of his 18th birthday, reflected irreparable corruption rather than "the transient immaturity of youth."

United States v. Comstock

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-50979

Opinion Date: September 9, 2020

Judge: Andrew S. Oldham

Areas of Law: Criminal Law, White Collar Crime

The Fifth Circuit affirmed defendant's conviction and sentence for conspiracy to commit wire fraud and six counts of aiding and abetting wire fraud. The court held that the evidence was sufficient to provide a rational jury with more than sufficient grounds to conclude that defendant did not sincerely believe he had a legitimate, unwritten agreement with the City. The court also held that the district court did not err in declining defendant's requested jury instructions where the jury instructions substantially covered defendant's good-faith defense because they accurately described the intent requirements for the charges against him; defendant was allowed to argue at trial that he acted in good faith according to an unwritten agreement that abandoned hourly billing, and thus his ability to present his defense was not seriously impaired; and the district court did not abuse its discretion in refusing to give defendant's fill-in-the-blank instruction. Finally, the court rejected defendant's challenges to the district court's loss calculation, holding that the district court did not err in its application of USSG 2B1.1(b)(1) and that defendant must pay restitution under the Mandatory Victims Restitution Act.

United States v. Montgomery

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-30469

Opinion Date: September 10, 2020

Judge: Catharina Haynes

Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's conviction and sentence for two counts of felony possession of a firearm. Defendant was sentenced to the minimum fifteen years required by the Armed Career Criminal Act (ACCA), based on his prior Louisiana conviction of simple burglary of an inhabited dwelling. The court held that, although the district court committed a Rehaif error, defendant is not entitled to relief because he has not shown a reasonable probability that, but for the error, he would not have entered the plea. Therefore, defendant has not shown that the district court's error affected his substantial rights. The court also held that Louisiana simple burglary of an inhabited dwelling is not broader than generic burglary. Accordingly, defendant's conviction for Louisiana simple burglary of an inhabited dwelling qualified as a predicate offense subjecting defendant to the enhancement under the ACCA.

United States v. Reed

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-30591

Opinion Date: September 9, 2020

Judge: Patrick E. Higgenbotham

Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's conviction and sentence for possessing a firearm as a felon. The court held that, even assuming it was plain error under United States v. Rehaif not to require evidence of defendant's knowledge of his status as a felon, defendant has not shown that the error affected his substantial rights, much less that it undermined the fairness, integrity, or public reputation of judicial proceedings. In this case, defendant does not argue that he actually lacked knowledge of his status as a felon nor does he point to facts suggesting a possibility that he could have been unaware of his status; given the lengthy record of serious offenses that would have been introduced to the jury absent a stipulation, the court is confident that if Rehaif had been decided when his case went to trial, defendant would have stipulated to both the felon-status element and the knowledge-of-felon-status element to keep the jury ignorant of the inculpatory details otherwise required to prove knowledge of felon status; and, while the other evidence urged by the Government are not conclusive of defendant's knowledge, they do lend further support to the court's conclusion that there is no reasonable probability that a properly instructed jury viewing the evidence actually admitted at trial would have returned a different verdict.

Coleman v. Bradshaw

Court: US Court of Appeals for the Sixth Circuit

Docket: 15-3442

Opinion Date: September 4, 2020

Judge: Batchelder

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

In January 1996, Coleman killed Stevens to keep her from testifying against him at his trial on charges of drug trafficking. A jury convicted him for aggravated murder (with a capital-specification for his killing a witness and a firearm-specification) and of unlawful possession of a firearm. The Ohio trial court sentenced him to death and four-and-a-half years in prison. Coleman unsuccessfully sought relief on direct appeal, then unsuccessfully pursued state post0conviction relief. While Coleman’s first petition for post-conviction relief was pending, he returned to the trial court in 2002, with a motion for relief from judgment, a motion for a new trial, and a successive petition for postconviction relief, all raising claims of actual innocence and that the prosecution withheld exculpatory evidence in violation of “Brady.” The court dismissed the petition without a hearing, The Ohio appellate court affirmed. The Sixth Circuit affirmed the denial of his federal habeas petition. The decision of the Ohio court of appeals, that a purported confession by another inmate lacked credibility and was not “Brady” material, neither contravened nor unreasonably applied clearly established Supreme Court precedent. The state court evaluated the totality of the mitigation evidence and reweighed it against the evidence in aggravation to reasonably conclude that Coleman experienced no prejudice from his counsel’s conduct in failing to raise certain mitigation arguments.

Mitchell v. Genovese

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-6070

Opinion Date: September 4, 2020

Judge: Jane Branstetter Stranch

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

In 1986, Mitchell, a black man, was convicted by an all-white jury of raping two white women in Tennessee. It is undisputed that the prosecution’s decision to strike a black prospective juror violated the Supreme Court’s 1986 holding, Batson v. Kentucky. The district court granted relief on Batson grounds in 1995, but the Sixth Circuit reversed, holding that Mitchell had to first establish “cause and prejudice” for failing to develop the claim before the state court. Multiple remands left Mitchell in a “procedural thicket.” In 2012, the Supreme Court decided "Martinez," holding that when a state limits the consideration of ineffective assistance of trial counsel claims to collateral review, a habeas petitioner may establish cause for procedural default if state post-conviction counsel was ineffective under Strickland and the underlying claim has “some merit.” The holding changed prior law--that post-conviction counsel’s “ignorance or inadvertence in a post-conviction proceeding,” including failure to raise ineffective assistance of trial counsel claims, does not qualify as cause to excuse procedural default. The Sixth Circuit then granted Mitchell a conditional writ of habeas corpus, concluding that “Martinez” enables Mitchell to show the necessary “cause,” and authorizes him to raise his underlying ineffective assistance of counsel claim and to seek redress through a Rule 60(b) motion.

United States v. Duncan Burks

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-6010

Opinion Date: September 4, 2020

Judge: Jeffrey S. Sutton

Areas of Law: Criminal Law

Burks was a Gangster Disciple member with leadership and enforcement responsibility. On November 3, 2012, another member, Hardison, went to a Clarksville, Tennessee club, where members of the rival “Bloods” attacked him. Hardison called Burks. The Disciples found Wright, a Blood who had helped attack Hardison, partying without his crew. During the ensuing fight, someone shot Wright in the leg. He staggered toward the door and collapsed. Someone fired another shot into Wright’s abdomen. Wright collapsed and died. The government claims Burks shot Wright. At trial, prosecutors presented three informants to tie Burks to the killing. A jury convicted Burks on all charges. The court granted him a new trial on four counts, deeming the verdict for those counts against the manifest weight of the evidence. The government appealed. Months later, the government realized it had not disclosed two investigation reports. Burks unsuccessfully moved for a new trial on two counts not subject to the new trial order, claiming a "Brady" violation. The Sixth Circuit reversed. The court abused its discretion in ordering a new trial. It discounted one informant’s grand jury testimony without a valid reason and discredited the other informants’ trial testimony based on contested facts that are generally resolved by juries. The evidence did not weigh heavily against the verdict but set out a straightforward narrative that the jury could reasonably believe.

United States v. Flores

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-6011

Opinion Date: September 10, 2020

Judge: Readler

Areas of Law: Criminal Law

A fight broke out between federal penitentiary inmates. When another inmate attempted to intervene, Flores and another inmate attacked the intervenor, stabbing him at least six times with prison-made “shanks.” The victim was transported to a hospital to treat large lacerations on his back, two smaller cuts to his side, one large cut on his hand, and another on his calf. CT scans showed that the victim’s left shoulder blade was fractured by one of the punctures and revealed deep bruising caused by internal bleeding and air pockets introduced by the puncture wounds. Flores was charged with assault with a dangerous weapon, 18 U.S.C. 113(a)(3). The victim refused to cooperate and, at trial, testified for the defense, denying that Flores attacked him and characterizing his injuries as “minor” and his wounds “superficial.” He conceded during cross-examination that prisoners who testify for the government are at risk of being assaulted or killed. The jury convicted Flores. The district court imposed a five-level sentencing enhancement because the victim suffered “serious bodily injury,” and sentenced Flores to 110 months. The Sixth Circuit affirmed, finding the enhancement justified. The victim experienced “extreme pain” as a result of Flores’s assault and needed significant medical intervention.

United States v. Lee

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-2391

Opinion Date: September 4, 2020

Judge: Eric L. Clay

Areas of Law: Criminal Law

In 2003, Lee, age 21, was convicted of second-degree criminal sexual conduct after he pleaded guilty to engaging in sexual activity with a 14-year-old whom he met at a bar that required patrons to be at least 18 years old to enter. He completed his 12-month custodial sentence. From 2004-2018, Lee consistently violated the conditions of his parole, most often by failing to comply with sex offender registration laws and location monitoring. Lee was punished and incarcerated for each of those violations. In 2018, while on parole, Lee was a passenger in his girlfriend’s car. Law enforcement initiated a traffic stop and instructed Lee to exit the vehicle. Lee attempted to flee. Officers tackled him and discovered that he was in possession of an unregistered firearm. Lee pleaded guilty to possession of a stolen firearm, 18 U.S.C. 922(j) and was sentenced to 60 months’ imprisonment, reflecting an upward variance of almost two years from the high end of Lee’s 30-37 months guidelines range, purportedly due to Lee’s criminal history. The Sixth Circuit vacated. A court may vary upward from a defendant’s advisory guidelines range based on criminal history and a specific need for deterrence, 18 U.S.C. 3553(a). But here, nothing uniquely problematic about the defendant’s criminal history demonstrates a specific need for deterrence beyond that already captured in the guidelines range. Lee’s criminal history has little bearing on the instant offense; it does not justify the two-year upward variance.

Mays v. Dart

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1792

Opinion Date: September 8, 2020

Judge: St. Eve

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

Cook County Jail detainees filed suit after the Jail reported an outbreak of COVID-19, arguing that the Sheriff violated their due process rights by failing to provide them with reasonably safe living conditions. They sought an injunction requiring the Sheriff to implement procedures related to social distancing, sanitation, diagnostic testing, and personal protective equipment for the duration of the pandemic. The district court granted a temporary restraining order, requiring the Sheriff to provide hand sanitizer and soap to all detainees and face masks to detainees in quarantine, and prohibiting the use of a “bullpen” for new detainees. Dismissing the Sheriff’s contention that he faced feasibility limitations on further social distancing, the court later concluded that the detainees were reasonably likely to succeed on their contention that group housing and double-celling is objectively unreasonable, except in certain situations. The Seventh Circuit reversed in part. The district court erred in analyzing the issue of group housing and double-celling by failing to consider the Sheriff’s conduct in its totality, failing to afford proper deference to the Sheriff’s judgment in adopting policies necessary to ensure safety and security, and citing an incorrect legal standard when evaluating the likelihood that the claims will succeed on their merits. Regarding the remaining relief, the court made detailed factual findings, properly considered the Sheriff’s conduct in its totality, and closely tailored the relief to CDC guidelines.

Patrick v. City of Chicago

Court: US Court of Appeals for the Seventh Circuit

Docket: 18-2759

Opinion Date: September 8, 2020

Judge: Diane S. Sykes

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

Patrick was convicted of double murder in 1995 and sentenced to life in prison. The convictions were vacated in 2014. The Cook County Circuit Court issued a certificate of innocence. Patrick filed suit for wrongful conviction against seven Chicago police officers and two prosecutors, alleging several constitutional claims under 42 U.S.C. 1983 and state-law claims for malicious prosecution and civil conspiracy. Chicago, also a defendant, stipulated to liability if any of its officers were found responsible for violating Patrick’s rights. A jury exonerated the prosecutors and one officer but found six officers liable and awarded more than $13 million in compensatory damages plus punitive damages. The Seventh Circuit affirmed, rejecting an argument that the district judge should have dismissed the case as a sanction for Patrick’s acknowledged perjury during discovery. The judge’s ruling was a reasonable exercise of his discretion. Patrick’s lies concerned peripheral matters and were fully exposed during a rigorous attack on his credibility that emphasized his criminal history and gang affiliation. The admission of the certificate of innocence was not unfairly prejudicial, even in combination with closing argument statements by Patrick’s lawyer. The jury instructions, which failed to explain that Patrick had the burden to prove that the fabricated evidence was used against him at his criminal trial and was material, contained a harmless error.

United States v. Booker

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2402

Opinion Date: September 4, 2020

Judge: James B. Loken

Areas of Law: Criminal Law

The Eighth Circuit affirmed the district court's reduction of defendant's sentence to 277 months' imprisonment under the First Step Act. The court held that defendant's suggestion that the district court did not understand its First Step Act discretion is without merit where the district court expressly recognized and exercised its discretion to reduce his sentence. Furthermore, nothing in the record suggests that the district court did not understand the scope of its discretion under the First Step Act. In determining the extent of the reduction, the district court placed emphasis on a proportional reduction based on defendant's advisory range under the current guidelines. Thus, the district court had a reasoned basis for its decision and did not abuse its substantial discretion. The court rejected defendant's contention that the district court's summary procedure violated the "complete review" provision of Section 404(c) of the First Step Act and deprived defendant of Due Process. The court explained that defendant had notice of the district court's proposed action and an opportunity to respond before the district court issued an order adequately explaining the basis for its decision. There was no constitutional procedural obligation to do more.

United States v. Goodwin

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2778

Opinion Date: September 8, 2020

Judge: Grasz

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction of conspiracy to violate federal health care laws, as well as eleven substantive counts of health care fraud. The court held that the evidence was sufficient to support the verdict where defendant voluntarily and intentionally participated in a conspiracy with knowledge that it was unjustifiable and wrongful to receive kickbacks and defraud Medicare. In this case, viewed in the light most favorable to the government, the evidence of significant experience with federal health care program reimbursements, his attestation that he would comply with federal anti-kickback laws, and his collection of specimens without a doctor's orders, is collectively enough evidence to support a conclusion that he knew the arrangement with AMS was unjustifiable and wrongful when he voluntarily joined the conspiracy.

United States v. Harrison

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2234

Opinion Date: September 10, 2020

Judge: Stras

Areas of Law: Criminal Law

The Eighth Circuit vacated defendant's sentence and remanded for resentencing before a different judge. Defendant alleged that, absent the district court's advice, he likely would have accepted the government's offer and received a lighter sentence. The government concedes that the district court plainly crossed the line as soon as it suggested, with a plea deal still on the table, that defendant could do better if he went to trial. The court held that there is a reasonable probability that defendant would have pleaded guilty but for the district judge's comments at the plea proceedings. In light of the circumstances, the court determined that the remedy that best balances the competing objectives is vacating defendant's sentence and remanding for resentencing before a different judge.

United States v. Hoskins

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2401

Opinion Date: September 4, 2020

Judge: James B. Loken

Areas of Law: Criminal Law

The Eighth Circuit held that the district court did not abuse its discretion in denying defendant relief under the First Step Act. The court rejected defendant's contention that the district court violated his right to a complete review and held that the district court's conclusion that defendant's initial sentence was sufficient but not greater than necessary to address the essential sentencing considerations was sufficient to satisfy the court that the district court had considered the parties' arguments and had a reasoned basis for exercising its own decisionmaking authority. Finally, the court held that Section 404 of the First Step Act does not require district courts to analyze the 18 U.S.C. 3553(a) factors in making their decisions. In this case, there was no abuse of the district court's substantial sentencing discretion in denying defendant relief under the First Step Act.

United States v. Witherspoon

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-3094

Opinion Date: September 9, 2020

Judge: James B. Loken

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's sentence as an armed career criminal after he pleaded guilty to being a felon in possession of a firearm. The court held that the district court was entitled to treat the fact that defendant was convicted of the 1997 robbery offense as established where the government failed to produce the charging document. In this case, defendant did not object to the PSR's recitation that he was, in fact, convicted of the 1997 robbery offense. The court has held that a charging document can provide sufficient evidence to support a finding that the defendant was necessarily convicted of a violent felony offense, but no case has held that the government must produce the charging document to establish the fact of conviction. The court also held that precedent establishes that defendant's 1997 Missouri first degree robbery conviction categorically qualified as a violent felony under the Armed Career Criminal Act's elements clause. Therefore, the district court did not err in sentencing defendant as an armed career criminal.

United States v. Asuncion

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-30130

Opinion Date: September 4, 2020

Judge: Chhabria

Areas of Law: Criminal Law

In 2017, Asuncion was convicted of possession with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. 841(a) and (b)(1)(A)(viii). His record included three possession convictions in Washington state court in 2000 and 2004 and one distribution conviction in federal court in 2007. Under the federal drug laws, these prior convictions would trigger mandatory minimum sentences if the convictions were for “felony drug offenses,” 21 U.S.C. 802(44) The district court found that all four convictions counted as prior felony drug offenses. The prior federal conviction had resulted in a sentence longer than one year. The prior state convictions had each resulted in sentences of one year or less, but the Washington statute under which Asuncion was convicted set a maximum penalty of five years. The mandatory minimum sentence for defendants who had previously been convicted of two or more felony drug offenses was life in prison, and the district court sentenced Asuncion accordingly. The Ninth Circuit affirmed, agreeing that the state convictions constituted offenses “punishable by imprisonment for a term exceeding one year.” Section 401 of the First Step Act, 21 U.S.C. 841, which scaled back the mandatory minimum penalties for repeat drug offenders—does not apply to defendants who were sentenced before its enactment.

United States v. Garcia

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-10073

Opinion Date: September 10, 2020

Judge: Kim McLane Wardlaw

Areas of Law: Criminal Law

Defendant again appealed his conviction for possession with intent to distribute methamphetamine. In a prior appeal, the Ninth Circuit held that officers from the Salinas Police Department violated the Fourth Amendment when they entered defendant's home without a warrant, ostensibly to determine whether someone inside posed a threat to their safety or required emergency assistance. At issue in this appeal is whether, under the attenuation doctrine, the discovery of the suspicionless search condition after detaining and handcuffing defendant was an intervening circumstance that broke the causal chain between the initial unlawful entry and the discovery of the evidence supporting defendant's conviction in this case and the revocation of supervised release in the underlying case. The panel held that the evidence found in the search was not sufficiently attenuated from the constitutional violation. The panel balanced the three attenuation factors: 1) the temporal proximity between the unconstitutional conduct and the discovery of evidence; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct. The panel held that whatever role the officers' subjective good faith should play in the attenuation analysis, it is not enough to outweigh the other two factors. Under the totality of the circumstances, the panel concluded that even accepting the district court's finding that the officers acted in good faith, this fact alone is not enough to justify admission of the evidence. Therefore, the district court erred in denying defendant's motion to suppress and the panel reversed defendant's conviction.

United States v. Herrera

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-50181

Opinion Date: September 9, 2020

Judge: Danielle J. Hunsaker

Areas of Law: Criminal Law, White Collar Crime

The Ninth Circuit affirmed defendant's sentence for mail fraud stemming from his involvement in a lucrative unemployment-fraud scheme. The panel held that the evidence supported the district court's finding that the losses exceeded $3.5 million and losses exceeding $3.5 million merit an 18-level enhancement under USSG 2B1.1(b)(1)(J). In this case, although the district court cited the correct sentencing provision, it incorrectly stated that it was imposing a 16-level enhancement. However, despite this misstatement, the panel held that it was not error for the district court to apply the 18-level enhancement. The panel also held that the evidence supports the district court's imposition of a leadership-role enhancement under USSG 3B1.1(b) where defendant was a leader within the unemployment-fraud scheme, and he was properly treated as such at sentencing. Finally, the panel held that state government agencies who suffer losses that are included in the actual loss calculation under USSG 2B1.1(b)(1) are properly counted as victims for purposes of the number-of-victims enhancement in USSG 2B1.1(b)(2)(A)(I). Therefore, the panel held that the district court did not err in applying an enhancement for 10 or more victims because there can be no doubt that EDD suffered losses and because EDD is properly considered a victim under section 2B1.1(b)(2)(A)(i).

Mglej v. Garfield County

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-4015

Opinion Date: September 9, 2020

Judge: David M. Ebel

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

A Garfield County, Utah, sheriff’s deputy, defendant Raymond Gardner, challenged the district court’s decision to deny him qualified immunity from Plaintiff Matthew Mglej’s 42 U.S.C. § 1983 claims stemming from Gardner’s arresting Mglej in August 2011. Mglej was on a cross-country trip when his motorcycle broke down. Chuck Gurle, a mechanic in Boulder, let Mglej stay with him for a few days while Gurle waited for parts needed to repair the motorcycle. The deputy first met Mglej when he stopped Mglej for speeding on his motorcycle. A few days later, Gardner received a report from a local convenience store/gas station that $20 was missing from the store's register, and they suspected someone matching Mglej's description took the money. When the deputy asked about the missing money, Mglej denied taking it. Deputy Gardner explained to Mglej that, although Mglej denied taking the money, he still needed to complete a report, which would require some information from Mglej, the information usually contained on an ID or driver's license. When Mglej declined to give the deputy his ID before consulting with an attorney, Gardner arrested him. Deputy Gardner then handcuffed Mglej behind his back and placed him in the front seat of the deputy’s patrol car. Mglej complained that the handcuffs were too tight; when Gardner tried to loosen them, the handcuffs malfunctioned and the deputy could not loosen or remove them. Using tools from his garage, Deputy Gardner was eventually able to pry the handcuffs off Mglej’s wrists after twenty minutes of work, causing Mglej significant pain and injury in the process. Mglej was released on bail three days after he was arrested. He then had to hitchhike the ninety-five miles back to Boulder, where he found that his motorcycle had been vandalized and his possessions stolen. The charges against Mglej were later dropped. Mglej alleged that Gardner violated the Fourth Amendment when he arrested Mglej without probable cause, used excessive force in doing so, and then initiated a malicious prosecution against Mglej. After review, the Tenth Circuit concluded the district court did not err in denying Gardner qualified immunity on all of Mglej's claims.

United States v. Brown

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-7039

Opinion Date: September 9, 2020

Judge: Paul Joseph Kelly, Jr.

Areas of Law: Constitutional Law, Criminal Law

Defendant Dymond Brown appealed an amended judgment reducing his sentence pursuant to section 404 of the First Step Act of 2018, 132 Stat. 5194. At his original sentencing in 2007, the district court sentenced Brown as a career offender under the 2006 United States Sentencing Guidelines based on two predicate state convictions for crimes of violence: (1) feloniously pointing a firearm and (2) shooting with intent to kill. The district court did not differentiate between the elements clause, U.S.S.G. 4B1.2(a)(1), or the residual clause, U.S.S.G. 4B1.2(a)(2), in holding that these two convictions were crimes of violence under the Guidelines. On appeal, Brown argued that at his First Step Act sentencing, the district court should have used the Guidelines in effect when Congress passed the First Step Act, the 2018 Guidelines. Furthermore, he argued the district court should have revisited his career offender status. After Brown’s conviction, the Tenth Circuit interpreted the Armed Career Criminal Act (ACCA) and held that the feloniously pointing a firearm was not a violent felony as defined by the ACCA because it did not necessarily have “as an element the use, attempted use, or threatened use of physical force against the person of another[.]” The Court found the ACCA contained similar language to the elements clause of the 2006 Guideline definition of a crime of violence. Brown argued the district court erred by not considering his challenge to his career offender status at his First Step Act sentencing on this basis. The Tenth Circuit found the language of the First Step Act was narrow and did not authorize plenary resentencing. "But it allows a district court to at least consider Mr. Brown’s claim that sentencing him as a career offender would be error given subsequent decisional law that clarifies (not amends) the related career offender provision at issue." The Court therefore reversed Brown's sentence and remanded for further consideration and resentencing.

Clements v. Honorable Deborah Bernini

Court: Arizona Supreme Court

Docket: CR-19-0140-PR

Opinion Date: September 9, 2020

Judge: Robert M. Brutinel

Areas of Law: Criminal Law

The Supreme Court vacated the order of the trial court appointing a special master to conduct an in camera review of recordings of jail phone calls between Defendant and a criminal defense attorney to determine whether the calls were privileged, holding that a court may not invade the attorney-client privilege to determine its existence, even in camera using a special master. Specifically, the Supreme Court held (1) a party claiming the attorney-client privilege must make a prima facie showing supporting that claim, and upon such a showing, the court may hold a hearing to determine whether the privilege applies; (2) once the privilege has been established, a party attempting to set it aside under the crime-fraud exception must demonstrate a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies, and only then may a special master review the privileged communications; and (3) because the State conceded that it cannot meet its burden, if the court determines that the privilege applies, the State may not review the recordings between Defendant and his attorney.

California v. Zaheer

Court: California Courts of Appeal

Docket: D074972(Fourth Appellate District)

Opinion Date: September 8, 2020

Judge: Dato

Areas of Law: Constitutional Law, Criminal Law

Defendant Hashmatullah Zaheer was tried twice for sexual battery by restraint. He denied any wrongdoing. The case hinged entirely on the credibility of the victim, Martha M. In the first trial, Zaheer was nearly acquitted of the two felonies with which he was charged, with the jury voting 11‒1 in his favor on both counts. In the second trial, however, he was convicted of both felonies. A key aspect of the defense attack on Martha’s credibility involved the condition of the electronic door lock system in Zaheer’s car. In both trials, Martha testified in some detail about how Zaheer locked her inside the car by pressing a button on the driver’s side door. The defense countered that with evidence that the electronic locking mechanism in Zaheer’s car had not worked in years. In the second trial, however, defense counsel simply failed to establish the necessary predicate fact that Martha was in Zaheer’s Honda on the night in question. And despite having knowledge to the contrary, the prosecutor seized on this oversight to suggest for the first time during her closing argument that Zaheer might have been driving a company car. In a case that hinged entirely on whether the jury believed Martha, and with a jury in the first trial that largely did not, the Court of Appeal felt compelled to conclude that defense counsel’s error, compounded by the prosecutor’s comment, was prejudicial. Judgment was therefore reversed and the case remanded for further proceedings.

In re J.E.

Court: California Courts of Appeal

Docket: A156839(First Appellate District)

Opinion Date: September 8, 2020

Judge: Tucher

Areas of Law: Criminal Law, Juvenile Law

Deputies responded to a domestic violence report. J.E. had left the house. J.E.'s Mother signed a citizen’s arrest form for battery. The deputies saw J.E. outside, went to J.E. in their marked patrol car, identified themselves, and told J.E. they needed to escort her home. J.E. ignored their commands. The deputies grabbed her arms. J.E. began “flailing,” spit at the deputies, and kicked another vehicle, causing a dent. The deputies placed J.E. in the patrol car. J.E. kicked an officer in the stomach. A juvenile wardship petition alleged misdemeanor battery upon a peace officer and misdemeanor resisting, obstructing, or delaying a peace officer. Mother reported that J.E. had previously hit her and threatened to kill her. School records showed J.E. was suspended twice for being physically aggressive and making threats toward staff and was disciplined several times for unexcused absences, disrupting class, using profanity, and being under the influence of marijuana. Mother testified that J.E. was 11 when she began living with Mother, having previously lived with her grandmother. Mother stated she never taught J.E. the difference between right and wrong and never taught J.E. to respect police commands. The court found that J.E. understood the wrongfulness of her conduct, sustained the wardship petition, and placed J.E. on probation. The court of appeal affirmed, finding sufficient evidence that J.E. appreciated the wrongfulness of her conduct, as required for minors under the age of 14. (Pen. Code 26).

In re K.W.

Court: California Courts of Appeal

Docket: E073894(Fourth Appellate District)

Opinion Date: September 9, 2020

Judge: Manuel A. Ramirez

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

Pursuant to a plea bargain, minor K.W. admitted one count of robbery; counts alleging kidnapping, brandishing, and vandalism were dismissed. After he completed probation, he moved to seal the record under Welfare and Institutions Code section 786. He was not eligible for sealing, because robbery was one of the crimes listed in section 707(b). The trial court reduced the adjudication to the lesser included offense of grand theft, which was not a section 707(b) offense. The court then granted the motion to seal. The State appealed, contending: (1) the juvenile court lacked the authority to reduce the adjudication; and (2) reducing the adjudication violated the plea bargain. The Court of Appeal determined the statutes the juvenile court cited did not give it authority to reduce the conviction. Further, the Court held Welfare and Institutions Code section 782, which would allow the juvenile court to “set aside the findings and dismiss the petition” in the interest of justice, did not authorize the juvenile court to reduce an adjudication, at least when doing so would violate a plea bargain, as it would have here. Judgment was therefore reversed.

People v. Chavez

Court: California Courts of Appeal

Docket: B303298(Second Appellate District)

Opinion Date: September 10, 2020

Judge: Arthur Gilbert

Areas of Law: Criminal Law

Penal Code section 1538.5 does not require the trial court to hold an evidentiary hearing when the defendant's stated issue to be decided is not relevant to the motion to suppress. After defendant was charged with misdemeanor resisting, obstructing, or delaying a peace officer in violation of Penal Code section 148, subdivision (a)(1), he moved to suppress all tangible and intangible evidence pursuant to section 1538.5 on the ground that his initial detention was unlawful. The Court of Appeal denied the motion to suppress, holding that defendant was not entitled to an evidentiary hearing.

Barton-Smith v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0941

Opinion Date: September 8, 2020

Judge: Keith R. Blackwell

Areas of Law: Constitutional Law, Criminal Law

Khaleil Barton-Smith was tried by jury and convicted of murder and other crimes in connection with the 2014 fatal shooting of Alexander Hunter. Barton-Smith appealed, contending that the trial court erred when it denied his request to charge the jury on voluntary manslaughter as a lesser offense and when it interrupted his lawyer’s cross-examination of a witness. Finding no reversible error, the Georgia Supreme Court affirmed.

Butler v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0870

Opinion Date: September 8, 2020

Judge: Boggs

Areas of Law: Constitutional Law, Criminal Law

Appellant Patrick Butler challenged his 2011 convictions for malice murder and two firearms offenses in connection with the shooting death of Darryl Walden. Appellant argued on appeal: (1) that the evidence presented at trial was legally insufficient to support his convictions; (2) the trial court made several evidentiary errors, and (3) that he was denied the effective assistance of counsel. After review, the Georgia Supreme Court determined the evidence presented at trial was legally sufficient to support his convictions. However, the trial court applied the wrong standard in admitting evidence of Appellant’s 2005 felony conviction for obstructing a law enforcement officer during the first stage of the bifurcated trial, and the Supreme Court could not say that the admission of the evidence was harmless. Accordingly, the Court vacated Appellant’s convictions, and remanded the case to the trial court to apply the correct standard and determine whether the prior felony conviction should have been admitted. The Court did not address Appellant’s other enumerations of error at this time.

Ellison v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0984

Opinion Date: September 8, 2020

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Johnathan Ellison was convicted of malice murder for the stabbing death of Antwane Hyatte. Ellison appealed, arguing the trial court erred in admitting DNA evidence obtained from a buccal swab performed on him without a warrant while he was in custody. He argued that the admission of that evidence violated his constitutional rights because he did not knowingly and voluntarily consent to the buccal swab, and he was not given any Miranda-type warning. The Georgia Supreme Court determined the DNA evidence obtained from Ellison’s buccal swab did not match any of the DNA found at the crime scene or inculpate him in any other way, thus its admission was harmless beyond a reasonable doubt. The Court therefore affirmed.

Fisher v. Georgia

Court: Supreme Court of Georgia

Docket: S20A1004

Opinion Date: September 8, 2020

Judge: David E. Nahmias

Areas of Law: Constitutional Law, Criminal Law

Upon retrial, appellant Ronald Fisher was found guilty of malice murder and related crimes in connection with the shooting death of Derek Cullins. In this appeal, Fisher contended the evidence presented at his retrial was insufficient to support his convictions because the only witness to identify him as the shooter, David Lewis, was an accomplice. Further, Fisher argued the trial court erred by allowing the lead detective to testify that Lewis was not an accomplice, and that his trial counsel provided ineffective assistance by failing to object to the prosecutor’s closing argument. Finding no reversible error, the Georgia Supreme Court affirmed.

Georgia v. Abbott

Court: Supreme Court of Georgia

Docket: S20A0719

Opinion Date: September 8, 2020

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

In this case's previous trip before the Georgia Supreme Court, Dijon Abbott was indicted for the murder of Marques Eubanks and the assaults of Latrice Nelson and Jeremy Whitehead; the Supreme Court affirmed the suppression of custodial statements Abbott made before being given Miranda warnings. In that case, the Supreme Court clarified the legal standard for evaluating post-Miranda statements made after law enforcement used a “two-step interrogation technique”; and remanded the case for the trial court to apply that legal standard to Abbott’s post-Miranda statements. On remand, the trial court again suppressed the entirety of Abbott’s statements, concluding that Abbott had not knowingly and voluntarily waived his rights under Miranda. The State again appealed. Here, the Supreme Court vacated the trial court’s second suppression order and again remanded the case, holding that the trial court failed to adhere to the Supreme Court's remand instructions, which explicitly directed the trial court to determine the admissibility of Abbott’s post-Miranda statements under Justice Kennedy’s concurrence in Missouri v. Seibert, 542 U.S. 600 (2004), which was adopted in Georgia in Norwood v. Georgia, 810 SE2d 554 (2018) (the “Seibert/Norwood standard”). On remand, the trial court was re-directed to apply the Seibert/Norwood legal standard for the limited purpose of determining the admissibility of Abbott’s post-Miranda statements.

Harrison v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0856

Opinion Date: September 8, 2020

Judge: Boggs

Areas of Law: Constitutional Law, Criminal Law

In 2009, Appellant Richard “Paul” Harrison was tried on charges of murder and felony murder in connection with the shooting death of Dewey Johnson, but the trial ended in a mistrial when the jury was unable to reach a verdict. Appellant was retried in 2011 before another jury and found guilty of murder and felony murder. He was sentenced to life in prison; his amended motion for new trial was denied, and he appealed. Appellant asserted five enumerations of error: four claims of ineffective assistance of counsel and a merger error in sentencing. After review, the Georgia Supreme Court affirmed the judgment of conviction and sentence on the malice murder count. The felony murder conviction and sentence the trial court erroneously imposed and then purported to “merge” with the malice murder conviction were vacated as a matter of law.

Long v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0785

Opinion Date: September 8, 2020

Judge: David E. Nahmias

Areas of Law: Constitutional Law, Criminal Law

Appellant Jennifer Long was convicted of malice murder and first-degree child cruelty in connection with the death of her 18- month-old daughter, Alexis. After they could not conceive a child, Appellant and her husband, Timothy Long, worked with the Division of Family and Children Services (DFCS) to adopt a child. Alexis was born in June 2010, and came to live with the Longs in Columbus around June 2011, after her biological mother died and her biological father surrendered his parental rights. Between June and November, DFCS case managers visited the Longs’ home about every two weeks to check on Alexis, and the Longs took her for regular checkups by her pediatrician. The Longs adopted Alexis in November 2011. After that, DFCS stopped its visits, and the Longs missed Alexis’s scheduled 90-day pediatrician checkup in January 2012. One day after church, Alexis ate and played around the church. On the way home, Alexis became a little fussy. When they got home and Appellant took Alexis out of her car seat, Alexis had a tantrum, and Appellant took the child into the house to change her diaper. While he was at the car, Timothy heard a loud noise that sounded like furniture being moved; the noise seemed to come from the direction of Alexis’s room. Alexis was lying on the floor of her room, and it looked like she had vomit in her mouth. She was taken to the hospital and pronounced brain dead the next day, having suffered from blunt force trauma. On appeal, Appellant contended the evidence was insufficient to support her convictions and that her trial counsel provided ineffective assistance. Finding no reversible error, the Georgia Supreme Court affirmed Appellant's convictions.

Marshall v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0697

Opinion Date: September 8, 2020

Judge: Carla Wong McMillian

Areas of Law: Constitutional Law, Criminal Law

Terry Marshall appealed his convictions for the malice murder of Marshal Tucker, the attempted murder of Latonia Patterson, and other related crimes. Marshall contended on appeal that: (1) the trial court improperly sentenced him as a three-time recidivist; (2) the trial court plainly erred by relying on two of his out-of-state convictions in sentencing him as a recidivist; and (3) the trial court committed two merger errors at sentencing. Because the Georgia Supreme Court concluded that the trial court committed several merger errors, it vacated Marshall’s conviction for aggravated assault of one victim. Otherwise, the Court affirmed his convictions.

Parker v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0826

Opinion Date: September 8, 2020

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Vraimone Parker appealed his convictions for malice murder and other offenses, following the shooting death of his aunt’s boyfriend, Kwame Chubbs, and the non-fatal shooting of his aunt, Eva Robinson. At trial, the jury rejected Parker’s defense that he was not guilty by reason of insanity and also rejected the option of finding him guilty but mentally ill. Parker argued on appeal that: (1) the trial court erred by failing to grant a mistrial after a detective commented on Parker’s silence; (2) failing to grant a mistrial after the trial court’s own expert witness testified that Parker knew what he was doing at the time of the shooting; and (3) imposing a discovery sanction that precluded Parker’s expert witness from offering particular testimony. He also argued his trial counsel was ineffective in handling issues related to Parker’s status as a convicted felon. After review, the Georgia Supreme Court concluded the trial court did not abuse its discretion in denying the motions for mistrial; Parker did not show harmful error as a result of the discovery sanction; and Parker did not demonstrate that he was prejudiced by any deficient performance of counsel, even where counsel’s performance was considered along with the effect of the discovery sanction.

Perez v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0632

Opinion Date: September 8, 2020

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

Jesus Perez was convicted by jury of malice murder, armed robbery, and concealing the death of another in connection with the bludgeoning death of Boydrick Powell. On appeal, he contended the trial court erred in denying his motion for a new trial, and that the evidence was insufficient to support his convictions. Perez also contended the trial court erred in admitting into evidence his custodial statement and the pre-autopsy photographs of Powell’s injuries and in allowing the prosecutor to discuss the law of conspiracy during closing argument. Finding no reversible error, the Georgia Supreme Court affirmed.

Robinson v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0812

Opinion Date: September 8, 2020

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

James Robinson was convicted by jury of the felony murder of four-year-old Lalia Hawthorne and of other crimes committed against Lalia and her younger sister, N. H. Lalia was found unresponsive at her home. Taken to the hospital, doctors initially suspected that Lalia had been infected with meningococcemia. The medical examiner, who found extensive bruising on Lalia’s body, determined that the actual cause of her death was blunt force injury to the abdomen. At trial, the medical examiner testified that internal lacerations can cause a child to appear ill and lethargic and can lead to nausea, vomiting, and a fatal loss in blood pressure. On appeal, Robinson contended the evidence was insufficient to support his convictions. He also argued the trial court erred in admitting evidence that he committed a prior act of violence upon Summer Sanchez, his then-girlfriend and the mother of the two victims, and by allowing an expert witness to testify to an ultimate issue in the case. After review, the Georgia Supreme Court vacated Robinson’s conviction for Count 9, one of his convictions for cruelty to children in the first degree upon N. H., to correct a sentencing error, but the Court otherwise affirmed.

Russell v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0910

Opinion Date: September 8, 2020

Judge: Carla Wong McMillian

Areas of Law: Constitutional Law, Criminal Law

Michael Russell was convicted of malice murder and other crimes in connection with the death of his girlfriend, Christy Waller. Russell argued on appeal: (1) the trial court erred in denying his motion to suppress his statements to police; (2) the trial court erred in failing to properly instruct the jury in its preliminary jury charge; (3) he received constitutionally ineffective assistance of trial counsel when his counsel failed to object to that charge; and (4) the trial court erred in failing to merge his remaining aggravated assault conviction under Count 4 into his conviction for malice murder. Russell also noted his sentence contained a scrivener’s error, sentencing him under Count 5 for aggravated assault, when he was actually charged with aggravated battery. Although the Georgia Supreme Court agreed that the trial court committed sentencing errors and accordingly vacated Russell’s sentence under Count 4 and remanded for correction of the scrivener’s error in Count 5, the Supreme Court otherwise affirmed.

Scott v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0880

Opinion Date: September 8, 2020

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Jonathan Scott appealed his convictions for malice murder and other offenses in relation to the 2016 shooting death of Gerald Daniels. Daniels sold drugs out of his apartment; Scott, a convicted felon, also lived in the same apartment complex. Scott went to Daniels’s apartment and purchased 3.5 grams of marijuana. Scott returned sometime later, complaining that Daniels had shorted him on the weight. Scott asked for more marijuana to make up for the alleged shortage on weight, and Daniels agreed. Daniels wrapped the marijuana in two small sacks and handed Scott the sacks along with some money. Scott dropped one of the sacks and asked Daniels to pick it up. When Daniels bent down to pick up the sack, Scott pulled out a gun; seconds later, Scott shot Daniels multiple times. Scott argued on appeal the evidence was insufficient to support his convictions and that there was a fatal variance between the indictment charging him with attempt to purchase marijuana and the evidence presented at trial. Scott also argued his trial counsel was ineffective. After review, the Georgia Supreme Court affirmed because it found the trial evidence was sufficient to establish Scott’s guilt, and Scott did not establish that he was affected by any variance or that his trial counsel was ineffective.

Snipes v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0934

Opinion Date: September 8, 2020

Judge: Carla Wong McMillian

Areas of Law: Constitutional Law, Criminal Law

Chiquita Snipes was convicted of the malice murder of Ty’Qwan Edge, a two-year-old child in her care. She appealed her conviction, arguing: the trial court erred in denying her motion for a new trial; the evidence presented against her was insufficient to sustain her conviction; and her trial counsel rendered insufficient assistance. When 911 was called, Snipes testified she heard "a loud bump," allegedly from the child falling from the toilet and striking his head on the bathtub. The medical examiner opined at trial that the injuries to the child were not consistent with a single fall in a bathroom, and that there was no indication of natural disease. An internal examination revealed ten areas of hemorrhaging under the child's scalp, some older and some recent. His brain was significantly swollen with minor areas of bleeding on the surface and other denser areas of bleeding and blood clots. There was also hemorrhaging in and around the optic nerves of both eyes, indicating severe trauma to the head. The Georgia Supreme Court found no reversible error in the trial court's judgment, and affirmed Snipes' conviction.

Subar v. Georgia

Court: Supreme Court of Georgia

Docket: S20A0942

Opinion Date: September 8, 2020

Judge: Harold D. Melton

Areas of Law: Constitutional Law, Criminal Law

Desean Subar was convicted by jury of various offenses, including malice murder, in connection with crimes he committed against Justin Bryant, Bettie Stoddart, and Gary Kimber at a 2016 house party. Subar appealed, arguing he was denied constitutionally effective assistance of counsel and that the trial court erred by admitting improper character evidence. Finding no reversible error, the Georgia Supreme Court affirmed Subar's convictions.

Wallace v. Georgia

Court: Supreme Court of Georgia

Docket: S20A1186

Opinion Date: September 8, 2020

Judge: Keith R. Blackwell

Areas of Law: Construction Law, Criminal Law

Antonio Wallace was tried by a jury and convicted of the murder of Leroy O’Hara. Wallace appealed, claiming: (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred when it denied his motion for new trial on the general grounds; and (3) that he was denied the effective assistance of counsel. The Georgia Supreme Court found no merit in these claims, and affirmed.

Idaho v. Haws

Court: Idaho Supreme Court - Criminal

Docket: 47800

Opinion Date: September 9, 2020

Judge: Stegner

Areas of Law: Constitutional Law, Criminal Law

Darius Haws appealed after he pled guilty to delivery of a controlled substance and battery on a police officer pursuant to plea agreements in which he waived his right to appeal his convictions or sentences. The district court sentenced Haws to two years fixed, with four years indeterminate, for the delivery charge; and one year fixed, with three years indeterminate, for the battery charge. The sentences were ordered to run consecutively. Additionally, the district court retained jurisdiction over Haws. However, after Haws performed poorly during the period of retained jurisdiction, the district court relinquished jurisdiction over Haws and ordered that the original sentences be served by Haws. Haws appealed, arguing that the district court abused its discretion in relinquishing jurisdiction and that his sentences were excessive. In response, the State sought to have Haws’ appeal dismissed because Haws expressly waived his right to appeal his sentences in the plea agreements he signed. The Court of Appeals dismissed Haws' challenge to his sentences and affirmed the district court's decision to relinquish jurisdiction. Haws appealed to the Idaho Supreme Court, arguing the appellate court erred in finding he forfeited his right to address the validity of his plea agreements. Haws contended that it was the State’s obligation to assert the applicability of the appellate waiver, and that he should have had the opportunity to respond in his reply brief. Additionally, Haws contended his appellate waiver was not made knowingly, intelligently, and voluntarily because the district court made a statement that conflicted with the written plea agreements by noting that Haws had the right to appeal his sentences. Finding no reversible error in the appellate's or trial court's decisions, the Supreme Court affirmed.

D.P. v. State

Court: Supreme Court of Indiana

Docket: 20S-JV-443

Opinion Date: September 8, 2020

Judge: Loretta H. Rush

Areas of Law: Criminal Law, Juvenile Law

In these consolidated appeals, the Supreme Court held that under the clear and unambiguous language of several relevant statutes, a juvenile court did not have subject matter jurisdiction to waive two individuals into adult criminal court because neither fit the definition of a "child" at the time their respective delinquency petitions were filed. The State filed juvenile delinquency petitions against D.P. and N.B. for committing, when they were under the age of eighteen, what would be felony child molesting if committed by an adult. Both individuals were twenty-one or older at the time the delinquency petitions were filed. The State requested that D.P. and N.B. be waived into adult criminal court, and D.P. and N.B. moved to dismiss their respective cases for lack of subject matter jurisdiction. The motion to dismiss was denied in D.P.'s case and was granted in N.B.'s case. The Supreme Court affirmed the juvenile court's dismissal in N.B. and reversed in D.P. and remanded with instructions to grant the motion to dismiss, holding that a juvenile court does not have subject matter jurisdiction to waive an alleged delinquent offender into adult criminal court if the individual is no longer a "child."

Louisiana v. Kennon

Court: Louisiana Supreme Court

Docket: 2019-KO-00998

Opinion Date: September 9, 2020

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

Defendant Keddrick Kennon was convicted by jury of distribution of cocaine and possession of cocaine. The district court sentenced defendant to serve two terms of imprisonment at hard labor: 30 years and five years, to run consecutively. The court of appeal affirmed the convictions and sentences (as amended to reflect that the first two years of the 30-year sentence for distribution of cocaine were to be served without parole eligibility). Thereafter, the State filed a habitual offender bill of information, alleging that defendant was a fourth-felony offender with predicate felony convictions for distribution of cocaine, possession of cocaine, and attempted possession of cocaine with intent to distribute. Defendant admitted he was a second-felony offender (based on the attempted possession of cocaine with intent to distribute predicate) and received an agreed-upon sentence of 60 years imprisonment at hard labor. The district court, however, had vacated both sentences before it imposed the 60-year sentence. Defendant filed a motion to correct an illegal sentence, which the district court denied. Because defendant received a single 60-year sentence despite being convicted of two crimes, the court of appeal granted defendant’s application for supervisory writs. The court of appeal then vacated the habitual offender sentence and remanded for resentencing. On remand, the trial court reimposed the originally agreed-upon sentence of 60 years imprisonment at hard labor as a second-felony offender for distribution of cocaine. The district court also sentenced defendant to a concurrent term of five years imprisonment at hard labor for the possession of cocaine conviction. The court of appeal affirmed the sentences. On appeal to the Louisiana Supreme Court, defendant argued his 60-year habitual offender sentence was reviewable despite it being imposed originally pursuant to a plea agreement, and that it was excessive in violation of the prohibition against cruel, excessive, or unusual punishment contained in La. Const. Art. 1, section 20. The Supreme Court found the 60-year sentence was both reviewable and excessive, and therefore set it aside. However, because the sentence was negotiated as part of a plea agreement in which defendant admitted his status as a second-felony offender, the Court also set aside the habitual offender adjudication, restored the parties to the status quo ante by reinstating the unenhanced sentences (30 years and 5 years, to run consecutively) that were affirmed as amended in Kennon-1, and remanded the case back to the district court for further proceedings.

Louisiana v. Quinn

Court: Louisiana Supreme Court

Docket: 2019-K-00647

Opinion Date: September 9, 2020

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

In 2015, fishermen in Cocodrie, Louisiana noticed a large Rubbermaid tote floating near a dock. The next day, they called the police after they spotted clothing and a human arm sticking out of it. Inside the tote, police found a decomposing body, which was later identified as Robbie Coulon, the victim and a lifelong friend of defendant Simon Quinn. The victim lived in defendant’s Houma apartment, in apparent violation of the rental agreement. Friction between the two developed as the victim repeatedly ignored defendant’s instructions to refrain from doing anything that could draw the attention of the property manager to the victim’s unauthorized presence. In addition, the victim pawned some of defendant’s belongings, including an Xbox belonging to defendant’s son. Defendant would ultimately be indicted for the second degree murder of Coulon, and for obstruction of justice by tampering with evidence of Coulon’s murder. A jury found defendant guilty as charged; he was sentenced to life imprisonment at hard labor without eligibility for parole (for murder), and a consecutive term to 50 years imprisonment for second-felony offender obstruction of justice. A divided court of appeal reversed the conviction for second degree murder and affirmed the conviction for obstruction. Defendant appealed, but finding no reversible error, the Louisiana Supreme Court affirmed the ruling of the court of appeal, which reversed defendant’s conviction for second degree murder, and affirmed defendant’s conviction for obstruction of justice, his habitual offender adjudication, and his sentence for obstruction.

Lousiana v. Bartie

Court: Louisiana Supreme Court

Docket: 2019-KK-01727

Opinion Date: September 9, 2020

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

In 2006, defendant Dennis Bartie stabbed his former girlfriend more than 20 times in front of eyewitnesses in Baton Rouge and then stole her friend’s car, which he drove to Lake Charles and abandoned. He was found guilty of attempted second degree murder, and sentenced to 40 years imprisonment at hard labor. He was serving that sentence at Allen Correctional Center in 2016 when DNA testing connected him to the victim of an unsolved murder committed in 1998. In 1998, Rose Born was murdered at her donut shop in Lake Charles. She was stabbed more than 30 times. Her car was stolen and then abandoned about 4 miles away. Defendant was 17 years old at the time and lived in Lake Charles. Defendant was interviewed at the correctional center for the 1998 murder; he would have been categorically exempt from capital punishment because he was 17 years old at the time of that crime. Investigators informed defendant the law had changed and a special sentencing hearing was required before a person who commits second degree murder as a juvenile can be sentenced to life imprisonment without parole eligibility. Defendant thereafter confessed to the 1998 murder. When charged with the murder, defendant sought to suppress his statements to investigators. In its brief, the State characterized falsely informing defendant he would receive the death penalty if he did not satisfactorily confess as permissible tactical deception, and argued that, regardless of whether the deception was permissible, it did not render defendant’s confession involuntary because he was hardened, experienced in the legal system, and "unaffected by the toothless threats." The district court denied defendant's motion, finding that the totality of the circumstances indicated defendant’s statements during the recorded interview were free and voluntary. The court of appeal determined defendant repeatedly invoked his right to remain silent, but that police ignored the invocation. The Louisiana Supreme Court found defendant’s statements during the police interview from roughly the 48-minute mark onward were made in violation of Miranda, were not free and voluntary, and therefore not admissible for any purpose including impeachment at the trial. The Court reinstated the district court’s ruling that the first 48 minutes were admissible to the extent authorized by the rules of evidence. The matter was remanded to the district court for further consideration of whether defendant's statements during the police interview following the 48-minute mark were not free and voluntary.

Commonwealth v. Rosa-Roman

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12504

Opinion Date: September 8, 2020

Judge: Cypher

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

The Supreme Judicial Court affirmed Defendant's conviction for murder in the first degree and declined to grant extraordinary relief pursuant to Mass. Gen. Laws ch. 278, 33E, holding that there was no basis to set aside or reduce the verdict of murder in the first degree or to order a new trial. Specifically, the Supreme Judicial Court held that the trial judge did not err by (1) refusing to suppress Defendant's statements to police; (2) ruling against Defendant on two juror challenges pursuant to Commonwealth v. Soares, 377 Mass. 461 (1979); (3) excluding third-party culprit evidence; and (4) declining to instruct the jury in accordance with Commonwealth v. Reid, 29 Mass. App. Ct. 537 (1990).

In re Grand Jury Investigation

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12869

Opinion Date: September 8, 2020

Judge: Ralph D. Gants

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the order of the trial judge authorizing the disclosure to defense counsel of a discovery letter written by a district attorney describing misconduct by Petitioners, two police officers, that the district attorney obtained through immunized grand jury testimony, holding that the district attorney had a Brady obligation to disclose the exculpatory information to certain unrelated criminal defendants. The district attorney learned through a witness's immunized grand jury testimony that Petitioners knowingly made false statements in police reports that concealed the unlawful use of force by a fellow officer against an arrestee and supported a fake criminal charge of resisting arrest against the arrestee. The district attorney prepared a discovery letter describing Petitioners' misconduct and asked a superior court judge to authorize its disclosure to defense counsel as potentially exculpatory information in unrelated criminal cases where Petitioners might be witnesses. The superior court judge authorized the disclosure. The Supreme Judicial Court affirmed, holding that the prosecutors had a Brady obligation to disclose the exculpatory information to unrelated criminal defendants in cases where a petitioner is a potential witness or prepared a report in the criminal investigation even though that information was obtained in immunized grand jury testimony.

Walsh v. Commonwealth

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12648

Opinion Date: September 2, 2020

Judge: Lowy

Areas of Law: Criminal Law

In these consolidated cases, the Supreme Judicial Court held that a delay in providing counsel to Defendants did not entitle them to release from pretrial detention under Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228 (2004). At Defendants' arraignments, the Commonwealth moved for both of them to be detained before trial pursuant to Mass. Gen. Laws ch. 276, 58A. Both defendants were entitled to appointed counsel for their section 58A hearings because they were found to be indigent. However, due to a shortage of available defense attorneys, there was a delay in the assignment of counsel for Defendants, and their section 58A hearings were continued. When the hearings took place, the judge set bail. Because neither defendant was able to post the required amount both were held in lieu of bail. Defendants filed petitions pursuant to Mass. Gen. Laws ch. 211, 3, arguing that they were entitled to release because their pretrial detention without counsel for more than seven days violated the standards established for timely appointment of defense counsel for indigent criminal defendants in Lavallee. The Supreme Judicial Court denied relief, holding that Lavallee did not create an automatic right to release from pretrial detention for any indigent defendant held more than seven days without counsel.

Robinson v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2019-KA-00740-SCT

Opinion Date: September 10, 2020

Judge: Ishee

Areas of Law: Constitutional Law, Criminal Law

Cynthia Robinson was convicted of conspiracy and possession with intent to distribute hydrocodone after being intercepted by police on her way to meet a confidential informant. On appeal, Robinson contended the trial court erred by denying her motion for a mental evaluation. Robinson’s counsel asserted that Robinson was not effectively assisting in her own defense and pointed to Robinson’s YouTube videos espousing conspiracy theories and to her prior diagnosis of a drug-induced psychotic disorder. Robinson personally asked the court to deny the motion, which it ultimately did: the trial judge cited his prior experience with Robinson and his prior findings that she was “reasonable and rational” and had “presented herself well . . . before the Court.” Robinson testified in her own defense, and she appeared fully aware of the allegations against her and presented a coherent theory of her defense. The Mississippi Supreme Court affirmed Robinson’s convictions and sentences.

State ex rel. Hill v. Navarre

Court: Supreme Court of Ohio

Citation: 2020-Ohio-4274

Opinion Date: September 3, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeals denying Appellant's petition for a writ of mandamus and declared Appellant to be a vexatious litigator under S.Ct.Prac.R. 4.03(B), holding that the court of appeals was correct in denying the writ and that Appellant was a vexatious litigator. Appellant was convicted of three counts of aggravated robbery with firearm specifications and sentenced to more than thirty years in prison. Appellant later filed a petition for writ of mandamus seeking to compel Judge Lindsay Navarre to resentence him. The court of appeals concluded that Appellant had an adequate remedy in the ordinary course of law and denied the writ. The Supreme Court affirmed, holding (1) Appellant had an adequate remedy in the ordinary course of law; and (2) Appellant's raising of repetitive and unmeritorious arguments that this Court had already rejected was frivolous conduct under S.Ct.Prac.R. 4.03(A) and (B).