Latest 63 Cases This Week: United States v. Lopez-Delgado (1st Cir.), United States v. Montijo-Maysonet (1st Cir.), Martin v. United States (2d Cir.)

Trump Swings His Wrecking Ball at Social Security

NEIL H. BUCHANAN

Neil H. Buchanan—UF law professor and economist—dispels some common misunderstandings about the future of Social Security but explains why President Trump’s recent comments are cause for concern. Buchanan explains why, contrary to claims by reporters and politicians, Social Security is not at the brink of insolvency, but points out that if Trump were to permanently eliminate payroll taxes, that would doom the program on which tens of millions of retirees depend.

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United States v. Lopez-Delgado

Court: US Court of Appeals for the First Circuit

Docket: 18-1952

Opinion Date: August 31, 2020

Judge: David J. Barron

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's sentence that he received for his conviction for possession of a machine gun, holding that the sentence was neither procedurally nor substantively unreasonable. After the district court concluded that Defendant was competent Defendant pleaded guilty to violating 18 U.S.C. 922(o) and 924(a)(2). After a sentencing hearing, the district court imposed a ninety-six-month prison sentence followed by three years of supervised release. The First Circuit affirmed, holding (1) even assuming that Defendant failed to preserve his procedural challenges, there was no clear error in the district court's fact-finding; and (2) under the totality of the circumstances, the district court's chosen sentence was not outside the "universe of reasonable sentences."

United States v. Montijo-Maysonet

Court: US Court of Appeals for the First Circuit

Docket: 18-1640

Opinion Date: September 1, 2020

Judge: Ojetta Rogeriee Thompson

Areas of Law: Criminal Law

The First Circuit affirmed Defendant's convictions and sentences for several sex crimes, including using a facility and means of interstate commerce to knowingly induce a thirteen-year-old female to engage in sexual activity, in violation of 18 U.S.C. 2422(b), and transporting minors in a commonwealth with the same illicit intent, in violation of 18 U.S.C. 2423(a), holding that there was no reversible error. Specifically, the First Circuit held (1) there was sufficient evidence to support each one of Defendant's convictions; (2) any error in letting a law enforcement officer testify about text messages taken off Defendant's cell phone and about an app without being qualified as an expert in "cell phone extractions or forensic analysis" was harmless; and (3) Defendant's sentence was both procedurally and substantively reasonable.

Martin v. United States

Court: US Court of Appeals for the Second Circuit

Docket: 19-1701

Opinion Date: September 3, 2020

Judge: Richard C. Wesley

Areas of Law: Criminal Law

After the district court granted defendant's motion for resentencing under the First Step Act, it vacated its order and denied his motion as moot when the district court learned that defendant had completed serving his term of imprisonment for his 2005 drug offense and remained imprisoned only because he continued to serve two consecutive sentences imposed for offenses committed while in prison that he did not mention in his original application for re-sentencing. The Second Circuit affirmed, holding that sentences are imposed separately for convictions on specific violations of criminal statutes and are aggregated only for administrative purposes. The court explained that, because sentences within judgments of conviction are otherwise final orders, they are modifiable only in limited circumstances. The court stated that the First Step Act permits such modification—a district court may "impose a reduced sentence" for a "covered offense." However, where an inmate, such as defendant in this case, has already served the term of imprisonment imposed for a "covered offense," the court held that the statute no longer permits relief. Therefore, defendant's motion is moot because the relief authorized by the First Step Act is no longer possible.

United States v. Villafane-Lozada

Court: US Court of Appeals for the Second Circuit

Docket: 19-2098

Opinion Date: September 3, 2020

Judge: Richard J. Sullivan

Areas of Law: Criminal Law

Defendant, while still in custody for possession of child pornography, challenges a condition of his supervised release requiring that he submit to verification testing designed to ensure that he is complying with the other conditions of his term of supervision. Defendant argues that the district court abused its discretion by permitting the probation officer to test him using computerized voice stress analysis – a technology that defendant claims is unreliable – and by giving the probation officer unwarranted discretion over which verification testing device to employ. The Second Circuit dismissed defendant's challenge to the computerized voice stress analysis, holding that the challenge is unripe because it turns on a speculative assessment of what the contested technology will look like in six years when he is released from his term of custody. The court affirmed the delegation of discretion to the probation officer, finding that permitting the probation officer to choose among verification testing tools is no more significant than allowing probation to select among different outpatient therapy options. The court dismissed defendant's challenges to other conditions of his supervised release in a summary order issued simultaneously with this opinion.

Free Speech Coalition, Inc. v. Attorney General United States

Court: US Court of Appeals for the Third Circuit

Docket: 18-3188

Opinion Date: September 1, 2020

Judge: Michael A. Chagares

Areas of Law: Constitutional Law, Criminal Law

The statutes, 18 U.S.C. 2257 and 2257A, require producers of pornography to verify the age and identity of each person portrayed, to keep records of the age verification, and to label each depiction with the location where law enforcement may obtain those records. In 2009, the plaintiffs filed suit. Their First Amendment challenges have resulted in three prior Third Circuit opinions. In 2016, the court remanded for the evaluation of those claims under strict scrutiny. The Third Circuit affirmed the resulting order in part. The two association plaintiffs lack standing to bring as-applied First Amendment claims on behalf of their members. The age verification, recordkeeping, and labeling requirements violate the First Amendment as applied to plaintiffs who are at least 30 years old. The government conceded that the requirements need not apply when sexually explicit depictions show performers who are at least 30 years old because, at that age, an adult performer could not reasonably appear to be a child. For these plaintiffs, the requirements are not the least restrictive way to protect children. The requirements are not facially invalid under the First Amendment overbreadth doctrine; the plaintiffs failed to prove that those provisions improperly restrict a substantial amount of protected speech relative to their plainly legitimate sweep. A nationwide injunction was broader than necessary to provide full relief to those plaintiffs who prevailed on their as-applied claims.

Harvard v. Cesnalis

Court: US Court of Appeals for the Third Circuit

Docket: 20-1012

Opinion Date: September 1, 2020

Judge: Rendell

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

Harvard gave Mazzetti (a stranger) a ride home because Mazzetti was afraid of her boyfriend (Sutton). Upon their arrival, Sutton made threats, tried to get Mazzetti out of the vehicle, and used racial slurs against Harvard, a Black male. Harvard called 911 and proceeded to leave with Mazzetti. Sutton jumped onto the hood of Harvard’s moving vehicle, making death threats. Harvard believed Sutton had a firearm and a knife. Harvard informed the 911 operator of the situation and drove onto the highway. The operator instructed Harvard to take a specific exit. At the police roadblock, Trooper Cesnalis did not respond to Harvard’s explanation, made no effort to locate the knife or the firearm, and asked Harvard to take a Breathalyzer test. Harvard agreed. After six tries, Harvard completed the test, which indicated that his blood alcohol content was below the legal limit. Cesnalis nonetheless inferred that Harvard was under the influence because he was sweaty, speaking rapidly, and not directly answering questions. Harvard was handcuffed and taken to the police station. Cesnalis was aware that Sutton had a criminal record but accepted Sutton’s explanation that Harvard had hit him with his vehicle. Sutton was not charged. Mazzetti corroborated Harvard’s statements. Despite negative results from additional testing, Cesnalis charged Harvard with DUI, recklessly endangering another person, reckless driving, simple assault, aggravated assault, and disorderly conduct, referring to Sutton as “the victim.” He omitted several exculpatory facts from the affidavit and referred to Harvard’s criminal history, although there was no evidence that Harvard had a criminal history. Harvard, exonerated, filed suit under 42 U.S.C. 1983. The Third Circuit reversed a grant of summary judgment for Cesnalis as to false arrest, false imprisonment, malicious prosecution, and Equal Protection but affirmed as to the remaining claims and as to another officer.

Porter v. Pennsylvania Department of Corrections

Court: US Court of Appeals for the Third Circuit

Docket: 18-3505

Opinion Date: September 1, 2020

Judge: Greenaway

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

Porter was convicted of murder and sentenced to death in 1986. Since then, he has been incarcerated in solitary confinement on death row. In 2003, the district court granted, in part, Porter’s 28 U.S.C. 2254 petition, determining that his penalty phase verdict form was unconstitutional. The order vacated Porter’s death sentence. Appeals from the order were held in abeyance pending the Pennsylvania courts' ruling on another petition and remain in abeyance. Porter then claimed violations of his Eighth and Fourteenth Amendments rights by continuing to confine him on death row even though his death sentence had been vacated. Porter alleged that his solitary confinement has caused “irreversible damage” to his mental health. The district court held that Porter does not have a procedural due process interest in avoiding solitary confinement because Porter’s death sentence remains active; Porter has not offered evidence of actual injury or deliberate indifference so he cannot succeed on an Eighth Amendment claim; and Porter cannot make a substantive due process claim based on the same allegations at issue in his Eighth Amendment claim. The Third Circuit reversed in part. The existence of the stay does not extinguish procedural due process rights. While 33 years of solitary confinement may violate the Eighth Amendment, the claimed Eighth Amendment right has not been clearly established so representatives of the Pennsylvania Department of Corrections are entitled to qualified immunity.

United States v. Harris

Court: US Court of Appeals for the Third Circuit

Docket: 20-1723

Opinion Date: August 31, 2020

Judge: Per Curiam

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

In February 2019, Harris filed a petition under 28 U.S.C. 2241, which was recharacterized as a motion for compassionate release. The district court concluded that Harris had failed to exhaust his administrative remedies. A prisoner may file a motion for compassionate release with the sentencing court “after [he or she] has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier,” 18 U.S.C. 3582(c)(1)(A). The court concluded that because the Warden denied Harris’s request within 30 days, he was required to completely exhaust the administrative remedy process. The Third Circuit vacated, noting that the government concedes that its argument regarding exhaustion was in error. The statute states that the defendant may file the motion 30 days after the warden receives his request.

United States v. Green

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-4348

Opinion Date: August 28, 2020

Judge: Roger L. Gregory

Areas of Law: Criminal Law

The Fourth Circuit vacated defendant's conviction for being a felon in possession of a firearm in light of United States v. Medley, ---F.3d--- (4th Cir. 2020). In Medley, the court held that the failure of an indictment to provide proper notice combined with an improper jury instruction that omits an element of a crime are substantial errors that ought to be corrected under plain error review. In this case, defendant argued that Rehaif v. United States, 139 S. Ct. 2191 (2019), renders his indictment and conviction invalid where neither the indictment nor the jury instructions included a crucial element of the offense—that he knew his relevant status when he possessed the firearm. Applying Medley, the court held that the errors in this case warrant correction where defendant's indictment failed to provide him with notice that the Government would attempt to prove that he knew his prohibited status; afterwards, his conviction was predicated on an indictment that failed to allege an essential element of an offense and a verdict by a jury that was informed the Government was not required to prove that defendant knew his prohibited status; and, at trial, there was little—if any—evidence presented that would support that defendant knew his prohibited status. Therefore, the errors occurred at the inception of the Government's case against defendant and continued throughout. The court remanded with instructions to the district court to enter judgment dismissing the count without prejudice.

United States v. Aguilar

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-40554

Opinion Date: September 2, 2020

Judge: E. Grady Jolly

Areas of Law: Criminal Law

The Fifth Circuit affirmed the district court's denial of defendant's motion to suppress the evidence found during the forensic search of his cell phone. After determining that it had jurisdiction to hear the merits of the appeal, the court held that the border agents had a good faith, reasonable belief that they could search defendant's phone without obtaining a warrant. In this case, the CBP agent knew defendant had attempted to cross the border with two women who were carrying four cans that physical inspection and x-rays revealed to be suspicious; a K-9 unit had alerted the agents to the presence of narcotics in the cans, and defendant had implicated himself as the purchaser of the cans' contents; and thus there was clearly a particularized and objective basis for suspecting defendant of criminal activity.

United States v. Beaulieu

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-30609

Opinion Date: August 31, 2020

Judge: Andrew S. Oldham

Areas of Law: Criminal Law

The Fifth Circuit vacated defendant's conviction for felony criminal contempt. The court first held that Federal Rule of Criminal Procedure 42(a)(3) does not apply to this case because the particular conduct that led to defendant's contempt charge was his refusal to testify, rather than an instance of "disrespect toward or criticism of" Chief Judge Brown. Therefore, the district court did not abuse its discretion in denying defendant's motion to recuse under 28 U.S.C. 455(a). In this case, the government concedes that an Assistant United States Attorney (AUSA) made numerous improper remarks, but contends that defendant failed to show that the prosecutorial misconduct prejudiced him. The court held, however, that the magnitude of the misconduct was overwhelming; the district judge did little to intervene or offer cautionary instructions; and it is impossible to separate the AUSA's misconduct from the other evidence against defendant. Therefore, defendant has shown a constitutional error and that he is entitled to relief under any standard of review.

United States v. Franco

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-60473

Opinion Date: September 3, 2020

Judge: Jennifer Walker Elrod

Areas of Law: Criminal Law

The Fifth Circuit affirmed the district court's denial of defendant's motion for reduction of sentence under the First Step Act. The court held that defendant is not excused from the statute's textual requirement that she file a request with the Bureau of Prisons before filing her motion in federal court. The court held that the statute's requirement that a defendant file a request with the BOP before filing a motion in federal court is a nonjurisdictional claim-processing rule. The court joined three other circuits in holding that the statutory requirement is mandatory. The court noted that defendant remains free to file, in the first instance, a request with the Bureau of Prisons.

United States v. Izaguirre

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-40586

Opinion Date: August 31, 2020

Judge: Priscilla Richman Owen

Areas of Law: Criminal Law

After defendant was convicted for a drug trafficking offense but failed to appear for sentencing, he was subsequently apprehended and convicted separately for failing to appear. The Fifth Circuit vacated defendant's 108 month sentence. The court held that the relevant amendments, including those to the commentary to Sentencing Guidelines Manual 2J1.6, make sufficiently clear that, though a failure-to-appear-for-sentencing offense is grouped with an underlying offense for purposes of sentencing, the failure-to-appear offense remains a separate offense, and an incremental, consecutive punishment for the failure to appear in court is applied under the Guidelines. In this case, the district court did not err by grouping the failure-to-appear offense with the underlying drug offense in accordance with USSG 3D1.2(c) and section 2J1.6. However, the district court erred in concluding that a second advisory sentencing range of 108 to 120 months applied separately to the conviction for failing to appear for sentencing. The court held that the error is clear in light of the Guidelines and affected defendant's substantial rights, seriously affecting the fairness, integrity, or public reputation of judicial proceedings. Therefore, the district court committed a plain procedural error in determining the sentence for defendant's failure-to-appear conviction. The court remanded for resentencing.

United States v. McDowell

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-50851

Opinion Date: August 31, 2020

Judge: Jerry Edwin Smith

Areas of Law: Criminal Law

After finding that defendant violated three conditions of his release by assaulting and robbing another with a firearm, the district judge revoked defendant's supervised release. Defendant argued that the district court erred in considering the victim's out-of-court statements without specifically finding good cause to contravene defendant's right to confrontation. The Fifth Circuit held that the district court's failure to make a specific good cause finding is not plain error because it is neither clear nor obvious that a court is required to make such a finding where the defendant makes no hearsay or confrontation objection. Furthermore, because of the nature of the particular hearsay at issue, defendant cannot show that the district court's omission—were it a clear error—affected his substantial rights.

United States v. Taylor

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-30222

Opinion Date: September 2, 2020

Judge: Jacques Loeb Wiener, Jr.

Areas of Law: Criminal Law

Taylor pleaded guilty as a felon in possession of firearms. The “offense conduct” section of the PSR includes information about Taylor’s involvement in shootings on August 12 and 13, 2017, and information regarding an August 15, 2017 traffic stop of a vehicle in which Taylor was a passenger during which officers found Taylor in possession of firearms. The PSR also listed four pending state charges, including weapons charges and attempted second-degree murder. The district court imposed a 120-month sentence. The Fifth Circuit remanded the sentence. The district court erred when it attempted to reduce the length of his sentence either by ordering that the sentence should commence on a particular date or by ordering that he be given credit for time served. The attempt was ineffectual; the district court must consider, and state on the record, whether that court would have imposed the same sentence regardless. The sentence was also impermissibly ambiguous because the pronouncement that it “run concurrently with any sentence imposed by state authorities” does not specify with which state sentence or sentences, corresponding to four pending state court charges, the federal sentence will run concurrently.

United States v. Valdez

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-40495

Opinion Date: September 1, 2020

Judge: Kurt D. Engelhardt

Areas of Law: Criminal Law

The Fifth Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 motion to set aside his conviction for being a felon in possession of a firearm. The court granted a certificate of appealability on defendant's claim that before he pleaded guilty, he received ineffective assistance of counsel because his trial attorney underestimated the range of imprisonment recommended by the Sentencing Guidelines. The court held that defendant failed to show prejudice where the evidence does not support defendant's assertion that there is a reasonable probability that he would not have pleaded guilty if he had been adequately counseled as to his actual Guidelines sentencing range. In this case, the record indicates that defendant's decision to plead guilty at the eleventh hour was logically motivated by the exposure of evidence which proved fatal to his affirmative defense, all but guaranteeing a conviction at trial, without any possible sentencing benefits he knew might be available with a plea of guilty.

Dimora v. United States

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-4260

Opinion Date: August 31, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law, White Collar Crime

In 1998-2010, Dimora served as one of three Cuyahoga County Commissioners. An FBI investigation revealed that Dimora had received over $250,000 in gifts from individuals with business before the County, including home renovations, trips to Las Vegas, and encounters with prostitutes. Dimora had used his position to help with the awarding of County contracts, hiring, the results of at least one County election, and civil litigation outcomes. Dimora’s “influence” ranged from casting formal votes as Commissioner to pressuring other officials. Dimora was charged with Hobbs Act offenses, bribery concerning programs receiving federal funds, making false statements on tax returns, conspiracy to commit mail fraud and honest services mail fraud, conspiracy to commit bribery concerning programs receiving federal funds, conspiracy to commit wire fraud and honest services wire fraud, RICO conspiracy, mail fraud, conspiracy to obstruct justice and obstructing a federal investigation. A jury convicted Dimora on 33 counts. The Sixth Circuit upheld the jury instructions defining “official acts” as having “fairly trace[d] the line between permissible gifts and impermissible bribes.” A ruling that state ethics reports were inadmissible hearsay was harmless in light of “overwhelming evidence.” In its 2016 “McDonnell” decision, the Supreme Court gave a narrow construction to a key element included within several of Dimora’s offenses. The term “official acts” does not include “setting up a meeting, calling another public official, or hosting an event.” Official acts are limited to “formal exercise[s] of governmental power.” Dimora petitioned to vacate his convictions under 28 U.S.C. 2255. The Sixth Circuit vacated a denial of relief. The court declined to decide whether the instructional error was harmless with respect to most of the counts or whether the “cumulative effect” of instructional and evidentiary errors entitles Dimora to relief.

Hart v. Hillsdale County

Court: US Court of Appeals for the Sixth Circuit

Dockets: 18-1307, 18-1305

Opinion Date: September 3, 2020

Judge: Jane Branstetter Stranch

Areas of Law: Criminal Law

In 2011, Michigan narrowed the crimes covered by the Sex Offender Registration Act (SORA) making Hart, who had been a juvenile offender, no longer a “sex offender.” Local officials required him to continue registering as one. In 2013, Hart registered an incorrect address and, in January 2014, he failed to update his address. The defendants arrested Hart each time, using warrant requests incorrectly representing that he was required to register under SORA. The first time, Hart spent the night in jail; the second time, he served 19 months in prison. When prison officials realized the mistake, they released Hart and his convictions were vacated. Hart sued (42 U.S.C. 1983) for false arrest, malicious prosecution, and defamation. The court denied motions to dismiss by employees of the city police and county sheriff’s departments, citing qualified immunity. The Sixth Circuit affirmed with respect to false arrest, malicious prosecution, and Monell claims, as well as the defamation claim against registration officials; reversed regarding the defamation claim against three officers; and remanded. Taking the facts in the light most favorable to Hart, a reasonable officer could not believe that Hart was subject to SORA’s requirements based solely on his inclusion in the database. Without additional evidence, it is impossible to determine individual culpability.

United States v. Bailey

Court: US Court of Appeals for the Sixth Circuit

Dockets: 18-5903, 18-5607, 18-5901

Opinion Date: September 1, 2020

Judge: Gibbons

Areas of Law: Criminal Law, Government Contracts, Health Law, White Collar Crime

A jury convicted Sandra, Calvin, and their son Bryan Bailey of conspiring to commit healthcare fraud and other related crimes (18 U.S.C. 371, 1343, 1347; 42 U.S.C. 1320a-7b). The three, working for medical equipment companies, used fraud, forgery, and bribery to sell power wheelchairs and other equipment that was not medically necessary. The district court sentenced Sandra to 120 months’, Calvin to 45 months, and Bryan to 84 months’ imprisonment. The Sixth Circuit affirmed the convictions and the sentence imposed on Bryan. The court rejected challenges to the sufficiency of the evidence and to various evidentiary rulings and upheld the admission of certain out of court statements made in furtherance of the conspiracy. The district court miscalculated Sandra’s Guidelines-range sentence when it erroneously imposed a two-level increase in her offense level for using “mass marketing” in her scheme and incorrectly calculated the loss amount for which Calvin was responsible—and by extension, his Guidelines-range sentence—by holding him responsible for losses beyond those he agreed to jointly undertake.

United States v. Velasquez

Court: US Court of Appeals for the Sixth Circuit

Dockets: 19-3543, 19-3540

Opinion Date: September 3, 2020

Judge: John M. Rogers

Areas of Law: Criminal Law

Cordero and Velasquez, convicted of conspiring to commit murder for hire and conspiring to distribute one kilogram of cocaine, argued that their convictions were not supported by sufficient evidence and challenged the admission of other-acts evidence under Federal Rule of Evidence 404(b). They also raised sentencing claims. The Sixth Circuit affirmed, finding that the court did not plainly err in trying the defendants together. The record demonstrates a sufficient factual basis for their guilt on the charged offenses. The intent-to-murder, pecuniary-value, and conspiracy elements of murder for hire were met; the evidence was sufficient to convict the defendants of conspiring to distribute cocaine under 21 U.S.C. 846. The court correctly admitted the challenged bad-act evidence, as that evidence served permissible purposes under Rule 404(b) and was probative of contested issues in the case. The court accurately and succinctly conveyed the permissible purposes of Rule 404(b) evidence when it instructed the jury that it could consider evidence of defendants’ other crimes “only as it relates to the Government’s claim on Defendants’ intent, knowledge, or absence of mistake.” The court properly applied the Sentencing Guidelines to calculate Cordero’s base offense level. A limited remand is required; Velasquez, who was incorrectly sentenced as a career offender.

United States v. Carnell

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2207

Opinion Date: August 28, 2020

Judge: ROVNER

Areas of Law: Criminal Law

Carnell pled guilty to a conspiracy to distribute a mixture containing methamphetamine, 21 U.S.C. 841(a)(1), 841(b)(1)(B) and 846.. The Sentencing Guidelines distinguish between mixtures involving run-of-the-mill methamphetamine and methamphetamine that is at least 80% pure. U.S.S.G. 2D1.1, note C (ice). Ice sentences are substantially higher than those for non-ice methamphetamine. Carnell claims that the government failed to meet its burden of proving that the substance in which he dealt was ice methamphetamine. The Seventh Circuit reversed in part. Ice, unlike other drugs, is subject to lab tests and precise definitions, which eliminates the value of any evidence in the nomenclature category, such as “everyone referred to the drugs as ice.” In this case, the two methamphetamine samples that were tested by DEA laboratories and found to be 100% pure had no connection to the Carnell conspiracy. Courts cannot rely on the expertise of a drug user, dealer, or law enforcement officer alone to determine that methamphetamine is more than 80% pure as opposed to 79% pure. The court declined to address the question of whether all of the methamphetamine attributable to a defendant must be tested, and if not, what would constitute a reliably representative sample. In this case, none of the ice attributable to the conspiracy was tested.

United States v. Cates

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1806

Opinion Date: September 1, 2020

Judge: William Joseph Bauer

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

Officers Cates and Hannah responded to a call by Lemons. While Lemons was alone with Cates in her home, he sexually assaulted her. Lemons was arrested, then taken to a hospital. A nurse documented swelling on Lemons’ neck and her bloodshot eyes, as evidence that she had been choked. She did not show signs of vaginal trauma or injury. Cates initially denied having sex with Lemons but later admitted to having oral and vaginal sex with Lemons, claiming it was consensual. Cates was charged under 18 U.S.C. 242 (deprivation of rights under color of law) and 18 U.S.C. 942(c) (use of a weapon during a crime of violence). The jury found Cates guilty on the first count and not guilty on the firearm count. By special verdict, the jury found Cates committed aggravated sexual abuse but found Lemons did not suffer bodily injury. Cates was sentenced to 24 years' imprisonment. The Seventh Circuit granted habeas relief, holding that the district court had instructed the jury incorrectly on the elements of aggravated sexual abuse by defining “force” to include not just force, but also psychological coercion. Cates was then charged with violation of civil rights under color of law, which again alleged his actions constituted aggravated sexual abuse. The Seventh Circuit affirmed the denial of a “double jeopardy” motion to dismiss. Cates failed to show the jury decided he did not use force to cause Lemons to engage in sexual acts. A rational jury could conclude that Cates forcibly grabbed Lemons’ neck and continued to squeeze it during the assault without causing her bodily injury, consistent with the jury’s findings.

United States v. Jones

Court: US Court of Appeals for the Seventh Circuit

Dockets: 17-3449, 17‐1650, 17‐2854, 17‐2858, 17‐2877, 17‐2899, 17‐2917, 17‐2918, 17‐2931, 17‐3063

Opinion Date: August 28, 2020

Judge: Diane Pamela Wood

Areas of Law: Criminal Law

The Hobos street gang operated in Chicago, 2004-2013. Ten gang members were charged and convicted for violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. 1961-1968, among other crimes. The underlying crimes included drug trafficking, murder, attempted murder, and robbery. Three gang members pleaded guilty. The Seventh Circuit affirmed the convictions and sentences, remanding only the sentence imposed on the gang’s leader, Chester. The court rejected challenges to the sufficiency of the evidence, to evidentiary rulings concerning recorded conversations and tool mark analysis of firearms, to in-court identifications, and to sentencing contentions;

United States v. Pulliam

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2162

Opinion Date: September 3, 2020

Judge: KANNE

Areas of Law: Constitutional Law, Criminal Law

Pulliam was arrested after fleeing from two Chicago police officers. During the chase, both officers saw a gun in Pulliam’s hand. Pulliam had previously been convicted of multiple felonies, making it a federal crime for him to possess a gun. Pulliam was convicted of possessing a firearm as a felon, 18 U.S.C. 922(g)(1). After Pulliam was sentenced, the Supreme Court decided Rehaif (2019), which clarified the elements of section 922(g) convictions; in addition to proving that the defendant knew he possessed a firearm, the government must also prove the defendant knew he belonged to “the relevant category of persons barred from possessing a firearm.” This knowledge-of-status element was not mentioned in the jury instructions at Pulliam’s trial. The Seventh Circuit affirmed his conviction. The jury instructions, missing an essential element, constituted plain error, but the error did not seriously affect “the fairness, integrity, or public reputation of judicial proceedings.” The court noted that Pulliam stipulated to his prior felony conviction, has had many convictions, has served prison sentences of more than a year, and ran from police, indicating knowledge of his status. The only potential evidentiary error would be harmless.

United States v. Sparkman

Court: US Court of Appeals for the Seventh Circuit

Docket: 17-3318

Opinion Date: September 3, 2020

Judge: Barrett

Areas of Law: Criminal Law

Sparkman belonged to a gang that was responsible for murders, kidnappings, and robberies. Sparkman was directly involved in at least two kidnappings in which firearms were used to threaten the victims. He was convicted of federal offenses, including racketeering, drug crimes, and two counts of using a firearm to commit a kidnapping, 18 U.S.C. 924(c). In 2012, Sparkman was sentenced to the mandatory minimum--42 years' imprisonment. Before the First Step Act of 2018, the second violation of section 924(c) triggered a much higher 25‐year mandatory minimum, even if the two counts were asserted in a single indictment. The First Step Act amended section 924(c) so that only a second violation committed after a prior conviction for the same offense will trigger the 25‐year minimum. These amendments apply to an offense committed before enactment “if a sentence for the offense has not been imposed as of such date of enactment.” 18 U.S.C. 924 note). Sparkman’s sentence was pending on appeal on the date of enactment. The Seventh Circuit rejected his First Step Act petition; “a sentence is 'imposed’ in the district court, regardless of later appeals.”

United States v. Croghan

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-3709

Opinion Date: August 28, 2020

Judge: Lavenski R. Smith

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction and sentence for receipt or attempted receipt of child pornography. The court held that the district court did not plainly err in admitting images of a female minor relative defendant had uploaded under Federal Rule of Evidence 404(b); in striking an FBI agent's testimony regarding defendant's children; and by permitting the agent to explain why the FBI requested a no-knock warrant. The court also held that the evidence was sufficient to support the jury's verdict convicting him of the knowing receipt of child pornography, as opposed to the lesser included offense of knowing access of child pornography. Finally, the court held that defendant's below-Guidelines sentence of 110 months' imprisonment was not substantively unreasonable where the district court did not abuse its discretion in sentencing defendant.

United States v. Gant

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2366

Opinion Date: August 28, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

After defendant pleaded guilty to one count of being a felon in possession of a firearm, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). The Eighth Circuit affirmed the district court's denial of defendant's Rehaif claim and held that the error did not affect defendant's substantial rights under the third prong of plain error review. In this case, at the change-of-plea hearing, defendant previously admitted that he had been convicted of three prior felonies but said he did not remember the other two.

United States v. Golding

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1541

Opinion Date: August 28, 2020

Judge: Grasz

Areas of Law: Criminal Law, White Collar Crime

The Eighth Circuit affirmed defendant's conviction for one count of conspiracy to commit an offense against the United States and four counts of health care fraud. The court held that the evidence was sufficient to establish that defendant entered into an agreement with others to create a medical testing lab that made money through illegal kickbacks. The court also held that the evidence was sufficient to establish that members of the conspiracy committed substantive violations and defendant, as a co-conspirator, was properly held liable for these substantive crimes committed in furtherance of the scheme.

United States v. Howard

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-3239

Opinion Date: September 2, 2020

Judge: Kobes

Areas of Law: Criminal Law

The Eighth Circuit affirmed the district court's denial of defendant's motion for return of property under Federal Rule of Criminal Procedure 41(g). After defendant pleaded guilty to conspiring to distribute methamphetamine, he sought the return of three ATVs and video surveillance equipment seized by the sheriff's office. Two stolen ATVs were returned to their rightful owners; the sheriff's office held the third ATV for the requisite statutory period before auctioning it pursuant to state law; and the sheriff's office disposed of the video surveillance equipment. The court agreed with the district court that the uncontested record shows that the sheriff's office seized the ATVs for reasons unrelated to the federal prosecution, and thus the government did not constructively possess the ATVs. Furthermore, the surveillance systems were derivative contraband. Finally, the district court did not err by denying the motion without an evidentiary hearing.

United States v. Ralston

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1252

Opinion Date: September 3, 2020

Judge: Lavenski R. Smith

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's convictions and sentence for sexually abusing a minor on a United States military installation and transporting an individual across state lines to engage in sexual activity. The court rejected defendant's claims of prosecutorial misconduct where the cumulative effect of the alleged prosecutorial misdeeds did not violate defendant's right to a fair trial; the government presented testimony from 16 witnesses as well as other evidence against defendant; the district court provided curative instructions to the jury; and defendant's arguments simply do not establish the kind of cumulative and pervasive misconduct that has warranted reversal in other cases. The court also held that defendant waived his challenge as to one witness's unavailability and the district court did not plainly err in admitting her prior testimony; the district court did not plainly err by not requiring defendant's witness to testify; the district court did not abuse its discretion, much less plainly err, in allowing defendant's ex-wife to testify as to out-of-court statements made to her by their housekeepers when the couple lived in India; and the court declined to consider defendant's claims of ineffective assistance of trial counsel.

United States v. Moalin

Court: US Court of Appeals for the Ninth Circuit

Docket: 13-50572

Opinion Date: September 2, 2020

Judge: Marsha Siegel Berzon

Areas of Law: Aerospace/Defense, Civil Rights, Communications Law, Constitutional Law, Criminal Law

The defendants immigrated to the U.S. from Somalia years ago and lived in Southern California. They were convicted of sending or conspiring to send, $10,900 to Somalia to support a foreign terrorist organization, 18 U.S.C. 2339, and money laundering. The Ninth Circuit affirmed the convictions. The government may have violated the Fourth Amendment and did violate the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1861, when it collected the telephony metadata of millions of Americans, including at least one of the defendants, but suppression was not warranted in this case because the metadata collection did not taint the evidence introduced at trial. The court’s review of the classified record confirmed that the metadata did not and was not necessary to support the probable cause showing for the FISA warrant application. The Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities, but in this case, any lack of notice did not prejudice the defendants. Evidentiary rulings challenged by the defendants did not, individually or cumulatively, impermissibly prejudice the defense and sufficient evidence supported the convictions.

Emmett v. Armstrong

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-8078

Opinion Date: September 1, 2020

Judge: David M. Ebel

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

While responding to a report of a fight at an Elks Club in Greybull, Wyoming, Officer Shannon Armstrong arrested Morgan Emmett for interfering with a peace officer. To effectuate the arrest, Armstrong tackled Emmett then tased him. Emmett brought a 42 U.S.C. 1983 suit, claiming that Armstrong violated his Fourth Amendment rights by unreasonably seizing him when arresting him without probable cause and by using excessive force when using his taser to effectuate the arrest. Emmett also brought a failure-to-train claim against Police Chief Bill Brenner, in his official capacity. The district court granted summary judgment to Armstrong on the basis of qualified immunity on all claims and to the city for lack of a constitutional violation. Emmett’s unreasonable seizure claim was based entirely on Officer Armstrong’s failure verbally to identify himself as a police officer before seizing Emmett, thus precluding probable cause to believe Emmett knowingly interfered with a peace officer. The Tenth Circuit found that because there were significant indicia from the circumstances that Armstrong was a police officer, it was objectively reasonable for Armstrong to believe that Emmett knew he was a police officer. Thus, because the arrest was not a constitutional violation, Armstrong was entitled to qualified immunity. With regard to Emmett’s second claim of excessive force, the Tenth Circuit agreed with Emmett that a jury could have found tasing him after he was no longer actively resisting constituted excessive force. Armstrong was not entitled to qualified immunity on that claim. With regard to claims against Chief Brenner, because the Tenth Circuit reversed the district court’s finding that no constitutional violation occurred insofar as the excessive force claim was involved, it also reversed the district court’s grant of summary judgment on Emmett’s failure-to-train claim against Chief Brenner in his official capacity to the extent that it related to Armstrong’s use of force. Judgment was affirmed in part, reversed in part, and remanded for further proceedings.

United States v. Bailey

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-5069

Opinion Date: August 28, 2020

Judge: Baldock

Areas of Law: Constitutional Law, Criminal Law

A federal grand jury indicted Defendant Melvin Bailey, III, on four counts of Hobbs Act robbery, four counts of brandishing a firearm during and in relation to a crime of violence, and one count of Hobbs Act conspiracy. At trial, the jury acquitted Defendant on one count of Hobbs Act robbery and one count of brandishing a firearm. The jury convicted Defendant on the remaining seven counts, which stemmed from three robberies of a Walgreens in Tulsa, Oklahoma. Of these three robberies, the parties agreed Defendant personally committed two of them (those that occurred on April 28, 2015, and July 20, 2017). Based on these robberies, Defendant was convicted of two counts of Hobbs Act robbery and two counts of brandishing a firearm during a crime of violence. Those convictions were not at issue in this appeal. With respect to the third robbery on January 6, 2018, the parties agreed Defendant did not personally commit the offense. Rather, Defendant enlisted the help of a juvenile accomplice. For his part, Defendant instructed the juvenile on the execution of the robbery, provided him with a firearm and a mask, and acted as the getaway driver. The parties agreed Defendant’s participation made him an aider and abettor. In relation to this robbery, Defendant was convicted of Hobbs Act conspiracy, Hobbs Act robbery, and brandishing a firearm during a crime of violence. Before the Tenth Circuit, Defendant argued the evidence presented at trial was insufficient to convict him of brandishing a firearm during the 2018 robbery. Specifically, Defendant contended this conviction had to be vacated because the evidence showed he did not personally commit the charged offense. The Tenth Circuit found this argument "unavailing," and affirmed conviction.

United States v. Channon (Brandi)

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-2028

Opinion Date: September 1, 2020

Judge: Carson

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

Defendants, a married couple, opened numerous rewards accounts at OfficeMax using fictitious names and addresses. They fraudulently claimed other customers’ purchases as their own to generate undeserved rewards through OfficeMax’s customer loyalty program. As part of the scheme, Defendants also violated the terms of the reward program by using various accounts to sell more than 27,000 used ink cartridges to OfficeMax in exchange for OfficeMax rewards. In 21 months' time, they redeemed $105,191 in OfficeMax rewards. A jury convicted Defendants of wire fraud and conspiracy to commit wire fraud relating to their scheme to defraud OfficeMax. At sentencing, the district court ordered Defendants to pay $96,278 in restitution to OfficeMax and entered a separate forfeiture money judgment jointly and severally against Defendants in the amount of $105,191. In Defendants' first appeal, they argued the district court erred when it entered a forfeiture money judgment without proving the $105,191 constituted, or was derived from, proceeds traceable to the wire fraud. The government contended it proved Defendants fraudulently acquired OfficeMax rewards with a face value of $105,191, and that Defendants exchanged that credit for $105,191 in actual merchandise. At first glance, the Tenth Circuit surmised a district court’s order of forfeiture and its order of restitution appeared to be a double punishment, particularly when the district court ordered defendants to pay forfeiture and restitution in the same amount. Restitution exists to make victims whole; forfeiture punishes those who commit crimes. In some cases, a defendant either does not resell fraudulently obtained merchandise or does so at a discount and thus has no profit above the value of the merchandise. To address that scenario, the Tenth Circuit held here that a district court could base a judgment’s forfeiture amount on the value of the fraudulently obtained merchandise at the time a defendant acquired it. Furthermore, a district court may not reduce or eliminate criminal forfeiture because of restitution. Finally, the Court reaffirmed its holding that in personam money judgments representing the amount of unlawful proceeds are appropriate under the criminal forfeiture statutes.

Hoffer v. Secretary, Florida Department Corrections

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-11921

Opinion Date: August 31, 2020

Judge: Newsom

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

Hepatitis C (HCV) is a bloodborne virus. Only about 1% of the general population suffers from HCV; its prevalence among prison inmates is much higher. HCV primarily attacks the liver, causing scarring, or “fibrosis,” which is measured from F0 (no fibrosis) to F4 (cirrhosis). Many people “spontaneously clear” HCV without treatment. HCV patients were previously prescribed weekly injections of Interferon, which caused unpleasant side effects, and succeeded in eradicating HCV only about 30% of the time. In 2013, a new HCV treatment became available—direct-acting antiviral (DAA) pills, with few side effects and a 95% cure rate. DAAs are very expensive. Chronic-HCV inmates incarcerated in Florida prisons filed a class action under 42 U.S.C. 1983, alleging deliberate indifference to inmates’ serious medical needs. Florida then hired Dr. Dewsnup, who had developed and implemented an HCV-treatment plan for the Oregon prison system. Florida adopted Dewsnup's proposal of providing DAAs for all inmates at level F2 and above and monitoring F0- and F1-level inmates and treating them with DAAs under certain circumstances. Ultimately, the court ordered DAA treatment of all F0s and F1s within two years of their initial staging. The Eleventh Circuit reversed. The state’s plan to monitor all HCV-positive inmates, including those who have not exhibited serious symptoms, and provide DAAs to anyone with an exacerbating condition, showing signs of rapid progression, or developing even moderate fibrosis, satisfies constitutional requirements.

In re: Flynn

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 20-5143

Opinion Date: August 31, 2020

Judge: Per Curiam

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

Michael Flynn pleaded guilty to making false statements to FBI agents, 18 U.S.C. 1001. In May 2020, before sentencing, the government moved to dismiss all charges with prejudice. Flynn consented to that motion and moved to withdraw his pending motions, including a motion to withdraw his guilty plea. The district court appointed an amicus curiae to present arguments in opposition to the government’s motion and to address whether the court should issue an Order to Show Cause why Flynn should not be held in criminal contempt for perjury. Flynn filed an emergency mandamus petition. A panel of the D.C. Circuit issued the writ to compel the district court to immediately grant the government’s motion. On rehearing, en banc, the D.C. Circuit denied Flynn’s requests to compel the immediate grant of the government’s motion and to vacate the district court’s appointment of amicus. Flynn has not established that he has “no other adequate means to attain the relief he desires.” The court also declined to mandate that the case be reassigned to a different district judge; Flynn has not established a clear and indisputable right to reassignment. The court noted the interest in allowing the district court to decide a pending motion in the first instance; that Flynn is not in custody; and that “it is simply not the case that the Executive will be irreparably harmed by the procedures."

State v. Arevalo

Court: Arizona Supreme Court

Docket: CR-19-0156-PR

Opinion Date: September 1, 2020

Judge: Lopez

Areas of Law: Criminal Law

The Supreme Court held that Ariz. Rev. Stat. 13-1202(B)(2), which enhances the sentence for threatening or intimidating if the defendant is a criminal street gang member, is unconstitutional because it increases the defendant's sentence based solely upon gang status, in violation of substantive due process. Defendant was arrested and charged with two counts of threatening or intimidating, in violation of section 13-1202(B)(2). The trial court dismissed all threatening or intimidating charges, holding that section 13-1202(B)(2) is unconstitutional because it violates due process by punishing a defendant for mere gang membership or association. The Supreme Court affirmed, holding that section 13-1202(B)(2) violates due process because it enhances criminal penalties based solely on gang status without a sufficient nexus between gang membership and the underlying crime of threatening or intimidating.

California v. Flores

Court: California Courts of Appeal

Docket: G058486(Fourth Appellate District)

Opinion Date: September 3, 2020

Judge: Moore

Areas of Law: Constitutional Law, Criminal Law

In this case, a trial court summarily denied defendant Alberto Flores' postjudgment petition for resentencing under Penal Code section 1170.95. Appointed counsel found no arguable issues to raise on appeal, filing a "Wende brief" asserting the Court of Appeal had to independently review the record. Defendant did not file a brief on his own behalf. The Court determined this case was not not defendant’s first appeal as a matter of right; therefore, the Court was not required to independently review the record. However, the Court found no legal authority that prohibited it from conducting such an independent review in the interests of justice. Reviewing the entire record on appeal, the Court found no arguable issues. Thus, it affirmed the order denying defendant’s section 1170.95 petition.

California v. Hartland

Court: California Courts of Appeal

Docket: E071218(Fourth Appellate District)

Opinion Date: August 31, 2020

Judge: Menetrez

Areas of Law: Constitutional Law, Criminal Law

Mark Hartland was convicted by jury of one count each of kidnapping, assault by means likely to produce great bodily injury, and domestic violence resulting in a traumatic condition. In a bifurcated proceeding, the trial court found a prior conviction allegation true as both a prior strike, ad a prior serious felony. Hartland received a 21 year sentence in state prison. Relying on California v. Oliver, 55 Cal.2d 761 (1961) and In re Michele D.,29 Cal.4th 600 (2002), Hartland argued the trial court prejudicially erred by failing to instruct the jury that if the kidnapping victim was so intoxicated as to lack the capacity to consent, then Hartland could not be found guilty of kidnapping unless he acted with illegal purpose or illegal intent. In the published portion of its opinion, the Court of Appeal rejected Hartland’s argument because the Court declined to extend the doctrine of Oliver and Michele D. to the kidnapping of an intoxicated, resisting, adult victim. In the unpublished portion of its opinion, the Court addressed issues concerning sentencing and custody credits. The matter was remanded for the trial court to exercise its newly gained discretion to dismiss or strike the prior serious felony conviction. Furthermore, the Court ordered the correction of clerical errors in the abstract of judgment and the sentencing minute order. Otherwise, judgment was affirmed.

People v. Cooper

Court: California Courts of Appeal

Docket: A156880(First Appellate District)

Opinion Date: September 1, 2020

Judge: Jim Humes

Areas of Law: Criminal Law

In 1994, Cooper raped Whitten, then pregnant, while Mitchell, kicked her in the face. Mitchell repeatedly jumped onto Whitten’s head. Both men threw a cinder block on her head. Cooper cut Whitten’s throat, possibly after she was dead. Cooper was charged with two counts of murder. Cooper pleaded no contest to one count of second-degree murder. At the plea hearing, Cooper’s attorney stated, “The district attorney indicated that he would write in his letter to the Board of Prison Terms that the evidence supports the theory that the defendant is not a direct actor here but an aider and abettor.” The prosecutor agreed. Cooper was sentenced to 15 years to life in prison Years later, Senate Bill 1437 altered liability for murder under the theories of felony murder and natural and probable consequences. Under Penal Code section 1170.95, eligible defendants may petition for resentencing. Cooper sought relief, alleging he pleaded no contest to murder because he believed he could have been convicted under the felony murder rule or the natural and probable consequences doctrine. The trial court denied the petition without appointing counsel. The court of appeal reversed. In 2020, the California Supreme Court granted review, in Lewis, to decide when the right to counsel arises under section 1170.95(c) Pending the Lewis decision, the court concluded that the right to counsel attaches upon the filing of a facially sufficient petition. Even if an error in not appointing counsel may be harmless in some situations, such as when the petitioner is not entitled to relief as a matter of law, the error was prejudicial here.

People v. DelRio

Court: California Courts of Appeal

Docket: B298637(Second Appellate District)

Opinion Date: August 31, 2020

Judge: Wiley

Areas of Law: Criminal Law

DelRio and his cousin Prieto drew on each other in front of a house on a cul-de-sac. Prieto shot 15 times but missed every time. DelRio fired twice, killing Prieto. Del Rio later testified that he did not drink or take drugs before the incident and was (illegally) carrying the pistol because he planned “a transaction” later in the day. He claims that a conversation with Prieto became hostile. Prieto drew a semiautomatic handgun, racked a round, and lifted the gun, stepping toward DelRio. DelRio claims he was “in fear of [his] life” and acted on impulse. Two weeks after the shootout, a deputy stopped DelRio while driving in a car with bullet holes. The same gun had fired the bullet found in DelRio’s car and the bullet found at the scene. Data from DelRio’s phone placed it near the scene at the time of the shootout. A jury convicted DelRio of second-degree murder and found firearm enhancement allegations true. The court of appeal reversed. The court erroneously excluded violent victim evidence about Prieto, including a shooting Prieto allegedly committed 10 days earlier; domestic violence; prior firearm possession convictions; schizophrenia linked with violent outbursts; and methamphetamine in Prieto’s blood the night of the shooting. The error was prejudicial. DelRio need not have known about Prieto’s past bad acts.

People v. Martinez

Court: California Courts of Appeal

Docket: B303086(Second Appellate District)

Opinion Date: August 31, 2020

Judge: Tangeman

Areas of Law: Criminal Law

Martinez pled guilty to unlawfully driving or taking a vehicle, identity theft, grand theft, and providing a police officer with false information and admitted to prior prison terms. The court imposed a split sentence of 56 months, two years of which was based on the two prison priors. Martinez was to serve the first two years in county jail, and the remaining 32 months on mandatory supervision. After a second violation of his terms of supervision, the trial court revoked supervision and ordered Marinez to serve the remainder of his sentence in county jail. Senate Bill No. 136, effective January 1, 2020, limited the applicability of prior prison term sentence enhancements to terms served for sexually violent offenses. Martinez argued he is entitled to have the two one-year prison priors stricken from his sentence. The court of appeal held that Martinez is entitled to request such relief from the trial court, and remanded. A split sentence consisting of a county jail term followed by mandatory supervision does not automatically become a final judgment of conviction for purposes of retroactivity when the time to appeal from the imposition of that sentence expires. If the trial court subsequently revokes supervision and the Legislature enacts an ameliorative statute before or during the pendency of an appeal from the revocation order, the defendant is entitled to seek relief under the new law.

People v. Murillo

Court: California Courts of Appeal

Docket: B297546(Second Appellate District)

Opinion Date: September 1, 2020

Judge: Frances Rothschild

Areas of Law: Criminal Law

The Court of Appeal affirmed the trial court's denial of defendant's petition under Penal Code section 1170.95 for resentencing on his murder conviction. A jury convicted defendant of murder on the basis of his participation in a burglary in which a cohort shot and killed a victim, and found true a felony-murder special circumstance. The court held that the proper procedure for collaterally challenging a special circumstance finding is a petition for habeas corpus, not a petition under section 1170.95. The court also held that the record of conviction shows as a matter of law that the special circumstance finding is valid even under People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, which clarified the meaning of "major participant" and "reckless indifference to human life." In this case, the record of conviction establishes as a matter of law that defendant was a major participant who acted with reckless indifference to human life when he instructed a cohort to fire the gun at the victim. Furthermore, other factors support the conclusion that defendant was a major participant in the burglary and that he acted with reckless indifference to human life.

People v. Triplett

Court: California Courts of Appeal

Docket: B298914S(Second Appellate District)

Opinion Date: August 31, 2020

Judge: Rothschild

Areas of Law: Criminal Law

Young testified that she left the house where Johnson's boyfriend lived, Johnson got out of a vehicle and stabbed Young in the head with a knife. Young “fought back” and Johnson stabbed Young repeatedly and began to choke Young. Johnson got in Young’s car and drove forward and backward, causing Young to hit the ground, then drove away. Young was hospitalized for a week. At trial, the court denied the jury’s request for a transcript of certain testimony. A jury convicted Johnson of assault with a deadly weapon, carjacking, and attempted murder. The court sentenced Johnson to 140 months' imprisonment. The court of appeal affirmed the conviction. The trial court erred in denying a defense request to inform the jurors that they could have certain testimony read back to them but the error was harmless. The record does not reveal what prompted the jury’s request for transcripts and there is no reason to believe that any juror was unable to hear or understand the testimony; in denying the request for transcripts, the court informed the jurors that they could ask specific questions about witness testimony. The court rejected Johnson’s contentions that the trial court erred in denying a Wheeler/Batson motion during jury selection and a challenge to the sufficiency of the evidence.

People v. York

Court: California Courts of Appeal

Docket: B298635(Second Appellate District)

Opinion Date: September 3, 2020

Judge: Moor

Areas of Law: Criminal Law

The trial court agreed with the parties that Penal Code section 1170.95 and Senate Bill 1437 are not unconstitutional. In the published portion of the opinion, the court held that trial counsel was required to appoint counsel to defendant before ruling on his petition. In this case, the record provides no basis for determining that defendant was precluded from showing that he was not a major participant in the robbery and did not act with reckless indifference to human life. The court held that the jury's special circumstance finding, affirmed in 1996, approximately two decades before People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, were decided, does not preclude defendant from relief as a matter of law. The court explained that a pre-Banks and Clark special circumstance finding cannot preclude eligibility for relief under section 1170.95 as a matter of law, because the factual issues that the jury was asked to resolve in a trial that occurred before Banks and Clark were decided are not the same factual issues the Supreme Court has since identified as controlling. Furthermore, the court did not find recent authority to the contrary persuasive. Accordingly, the trial court reversed the order denying defendant's resentencing petition and remanded.

Brown v. State

Court: Florida Supreme Court

Dockets: SC19-704, SC19-1419

Opinion Date: August 27, 2020

Judge: Per Curiam

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

The Supreme Court affirmed the decision of the circuit court denying Tina Lasonya Brown's motion to vacate her conviction of first-degree murder and sentence of death under Fla. R. Crim. P. 3.851 and denied Brown's petition for a writ of habeas corpus, holding that Brown was not entitled to relief. As to Brown's postconviction appeal, the Supreme Court held (1) the circuit court did not err in denying Brown's allegations of ineffective assistance of counsel in some respects but erred in denying Brown's allegations of ineffective assistance of counsel in other respects; (2) there was no reasonable probability that bur for trial counsel's deficiencies, individually or cumulatively, the outcome would have been different; (3) the circuit court did not err in denying Brown's claim of newly discovered evidence; and (4) the circuit court did not err in summarily denying Brown's claim that she was not entitled to relief from her death sentence under Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). As to Brown's habeas petition, the Supreme Court held that appellate counsel was not ineffective on direct appeal.

Davis v. State

Court: Florida Supreme Court

Docket: SC19-1207

Opinion Date: August 27, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court affirmed the circuit court's order summarily denying Defendant's successive emotion for postconviction relief filed under Fla. R. Crim. P. 3.851, holding that the circuit court properly denied Defendant's claims. Defendant was convicted of first-degree felony murder, aggravated child abuse, and sexual battery and sentenced to death for first-degree felony murder. Defendant later filed a successive postconviction motion claiming that the State committed Giglio and Brady violations. The circuit court summarily denied the motion. The Supreme Court affirmed, holding that the circuit court did not err in summarily denying Defendant's Giglio claim and properly denied Defendant's Brady claim.

Dillbeck v. State

Court: Florida Supreme Court

Docket: SC20-178

Opinion Date: September 3, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court affirmed the order of the circuit court dismissing Petitioner's third successive motion for postconviction relief filed under Fla. R. Crim. P. 3.851, holding that the circuit court did not err in dismissing the motion as untimely. Petitioner was convicted of first-degree murder, armed robbery, and armed burglary. Petitioner was sentenced to death. The Supreme Court affirmed the convictions and sentence. Petitioner later filed a third successive motion for postconviction relief, raising a claim of newly discovered evidence. The trial court dismissed the motion as untimely. The Supreme Court affirmed, holding that because Petitioner and his counsel failed to exercise diligence in pursuing the facts on which the claim was predicated, the trial court did not err in dismissing the motion.

James v. Fox

Court: Florida Supreme Court

Docket: SC20-355

Opinion Date: August 27, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Court concluded that Petitioner's quo warranto petition filed in this case was a frivolous proceeding brought before the Supreme Court by a state prisoner and instructed the Clerk of Court to reject any future filings submitted by Petitioner that are related to two criminal cases unless such filings are signed by a member in good standing of The Florida Bar. Petitioner was convicted in two separate cases of drug-related offenses. Petitioner since filed thirty-four petitions or notices, the majority of which were related to his convictions and sentences in the aforementioned criminal cases. All of the filings were denied, dismissed, or transferred. In this quo warranto petition, Petitioner claimed that the State Attorney for the Twentieth Judicial Circuit failed to acknowledge a habeas petition that he had mailed to her office. The Supreme Court dismissed the petition and concluded that sanctions should be imposed because Petitioner has abused the judicial process and burdened the Supreme Court's limited judicial resources.

State v. Hosaka

Court: Supreme Court of Hawaii

Docket: SCWC-16-0000716

Opinion Date: August 28, 2020

Judge: Mark E. Recktenwald

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

The Supreme Court held that, under the totality of the circumstances in this case, the results of Defendant's breath test were admissible because Defendant validly consented to the breath test. After police arrested Defendant for habitually operating a vehicle under the influence of intoxicants an officer read Defendant the Honolulu Police Department's (HPD) implied consent form. Defendant signed and initialed the form consenting to the breath test. Defendant filed a motion to suppress the results of the breath test, arguing that his consent was not knowing, intelligent, and voluntary because the form did not comply with the implied consent statutory scheme and was, therefore, inaccurate. The circuit court suppressed Defendant's breath test results. The intermediate court of appeals (ICA) vacated the circuit court's order, concluding that suppression of Defendant's breath test was not the proper remedy for non-compliance with Haw. Rev. Stat. Chapter 291E procedures. The Supreme Court affirmed, holding (1) the implied consent form here complied with Chapter 291E and was not inaccurate or misleading; and (2) only inaccuracies in implied consent forms that are reasonably likely to influence an arrestee to consent will require suppression.

Idaho v. Gomez-Alas

Court: Idaho Supreme Court - Criminal

Docket: 46724

Opinion Date: September 2, 2020

Judge: Bevan

Areas of Law: Constitutional Law, Criminal Law

In December 2017, Klaus Nico Gomez-Alas was charged with two felony counts: rape and infamous crime against nature. At trial, he was acquitted of rape, but convicted of simple battery as an included offense. On the second count, the jury found Gomez-Alas guilty of an infamous crime against nature. After the verdict, Gomez-Alas moved the district court for a new trial pursuant to Idaho Criminal Rule (I.C.R.) 34, arguing the district court misled the jury by giving an improper “dynamite” instruction. Gomez-Alas also moved the district court for judgment of acquittal on the second count pursuant to I.C.R. 29, arguing there was insufficient evidence to support a conviction for the infamous crime against nature charge. The district court denied both post-trial motions. Gomez-Alas argued on appeal to the Idaho Supreme Court: (1) the act of cunnilingus does not constitute an infamous crime against nature under Idaho Code sections 18-6605 and 18-6606; (2) there was insufficient evidence to support a conviction for the infamous crime against nature charge; and (3) the district court misled the jury by providing an improper dynamite instruction. Finding no reversible error, the Supreme Court affirmed.

State v. Juarez

Court: Kansas Supreme Court

Docket: 118543

Opinion Date: August 28, 2020

Judge: Wilson

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

The Supreme Court affirmed the decision of the court of appeals affirming the judgment of the district court ordering Defendant to register as a violent offender under the Kansas Offender Registration Act (KORA), Kan. Stat. Ann. 22-4901 et seq., holding that the district court's notice to Defendant concerning his obligation to register did not violate Defendant's right to due process. Defendant was convicted and sentenced for aggravated burglary. The district court ordered Defendant to register as a violent offender under KORA. On appeal, Defendant argued that the district court's failure to notify him of his registration obligation at the time of his plea and conviction violated his right to procedural due process under the Fourteenth Amendment. The Supreme Court disagreed, holding that the notice provided to Defendant was constitutionally sound and that Defendant was not deprived of his opportunity to be heard.

State v. Lindemuth

Court: Kansas Supreme Court

Docket: 116937

Opinion Date: August 28, 2020

Judge: Per Curiam

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

The Supreme Court affirmed the judgment of the court of appeals reversing Defendant's conviction of one count of criminal threat under Kan. Stat. Ann. 21-5415(a)(1), holding that there was no basis for this Court to discern whether the jury concluded the State had proved beyond a reasonable doubt that Defendant committed criminal threat intentionally. On appeal, the court of appeals concluded that the trial court erred by rejecting defense counsel's proposed jury instruction on workplace defense. The State sought review. While review was pending, the Supreme Court held in State v. Johnson, 450 P.3d 790 (Kan. 2019), that the provision in section 21-5415(a)(1) allowing conviction if a threat of violence was made in reckless disregard for causing fear was unconstitutionally overbroad. The Supreme Court affirmed the court of appeals' judgment as right for the wrong reason, holding that, based on Johnson, Defendant's conviction cannot stand.

Ware v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2019-KA-00866-SCT

Opinion Date: September 3, 2020

Judge: Griffis

Areas of Law: Constitutional Law, Criminal Law

Dontorius Ware was indicted, charged and convicted for the murder of Roy Lee Washington. He appealed, challenging the sufficiency of the evidence presented against him at trial. Because the Mississippi Supreme Court determined sufficient evidence supported the verdict, because the verdict was not against the overwhelming weight of the evidence, and because Ware did not receive ineffective assistance of counsel, it affirmed the conviction and sentence.

State v. Carpenter

Court: Supreme Court of Missouri

Docket: SC98088

Opinion Date: September 1, 2020

Judge: Paul C. Wilson

Areas of Law: Civil Rights, Criminal Law

The Supreme Court vacated the judgment of the circuit court convicting Defendant of one count of robbery in the first degree, holding that the circuit court erred in excluding expert witness testimony regarding various factors that can impact the reliability of eyewitness identification. The case against Defendant was largely based on the identification provided by the victim at a "show up" that occurred minutes after the crime occurred. After the state rested its case, Defendant's counsel sought to have an expert witness testify about he factors that can impact the reliability of eyewitness identifications generally. The trial court excluded the expert testimony. On appeal, arguing that the circuit court erred in excluding the testimony. The Supreme Court agreed, holding (1) the exclusion of the expert testimony deprived Defendant of his opportunity to present expert evidence about the most important issue the jury had to decide - whether the victim's identification of Defendant was mistaken; and (2) the likelihood that the expert testimony would have altered the outcome was too high to affirm Defendant's conviction.

State v. Thomas

Court: Montana Supreme Court

Citation: 2020 MT 222

Opinion Date: September 1, 2020

Judge: Gustafson

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

The Supreme Court reversed the decision of the district court denying Defendant's motion to suppress evidence found during a probation search of the room Defendant rented from a person on probation, holding that Defendant had a legitimate expectation of privacy in his residence. Defendant rented a room from Parischere Hughes (Paris), who was on misdemeanor probation and subject to probation searches. During a probation search of Paris's residence, law enforcement officers searched Defendant's residence and found drugs and drug paraphernalia. Defendant was charged criminal possession of dangerous drugs, a felony. Defendant filed a motion to suppress, arguing that the search exceeded the scope of any lawful probation search of Paris's residence. The district court denied the motion. The Supreme Court reversed, holding that Defendant's rights to privacy in his person and residence were not diminished by Paris's probationary status.

New Mexico v. Montano

Court: New Mexico Supreme Court

Citation: 2020-NMSC-009

Opinion Date: June 11, 2020

Judge: Barbara J. Vigil

Areas of Law: Constitutional Law, Criminal Law

Cases consolidated for the New Mexico Supreme Court's review shared a common issue and an opportunity to define “uniformed law enforcement officer” and “appropriately marked law enforcement vehicle” under NMSA 1978, Section 30-22-1.1(A) (2003), which defined the crime of aggravated fleeing from a law enforcement officer. The Court granted certiorari (1) in New Mexico v. Montano, 423 P.3d 1 (2018), to review the reasoning of Montano and consider whether the law enforcement officer was “uniformed” under Section 30-22-1.1(A); and (2) in New Mexico v. Martinez, A-1-CA-35111, mem. op. (May 14, 2018) (nonprecedential), to review the Montano reasoning and consider whether the law enforcement officers in Martinez and Montano were each in an “appropriately marked law enforcement vehicle” under Section 30-22-1.1(A). The Court affirmed the Court of Appeals' determination of what constituted a “uniformed law enforcement officer” and rejected its determination of what constituted an “appropriately marked law enforcement vehicle.” Therefore, the Court concluded the officer in Montano was not a “uniformed law enforcement officer” and that neither the officer in Montano nor the officer in Martinez was in an “appropriately marked law enforcement vehicle.”

People v. Hinshaw

Court: New York Court of Appeals

Citation: 2020 NY Slip Op 04816

Opinion Date: September 1, 2020

Judge: Wilson

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

The Court of Appeals held that the automobile stop in this case was unlawful and clarified the law of New York as it is presently understood by all four Appellate Division departments, holding that the Appellate Courts are unanimous in employing the elevated probable cause standard set forth in People v. Robinson, 97 NY2d 341 (2001), required for an officer to validly stop a vehicle for a Vehicle and Traffic violation. Defendant was charged with firearms-related and drug-related offenses. Defendant filed a motion to suppress, arguing that the trooper who stopped his vehicle lacked reasonable suspicion to do so. County Court denied suppression of the physical evidence, and the Appellate Division affirmed. The Court of Appeals reversed and ordered that Defendant's motion to suppress be granted in its entirety, holding that the trooper in this case lacked probable cause to believe that Defendant had committed a traffic violation and identified no credible facts establishing reasonable cause to believe that Defendant had violated a law.

State v. Reed

Court: Supreme Court of Ohio

Citation: 2020-Ohio-4255

Opinion Date: September 1, 2020

Judge: Sharon L. Kennedy

Areas of Law: Criminal Law

The Supreme Court reversed the judgment of the court of appeals reversing the trial court's judgment denying jail-time credit for the days Defendant was on postconviction house arrest and postconviction electronic monitoring, holding that Defendant was not entitled to jail-time credit for these days. Defendant pled guilty to a charge involving criminal gang activity and was sentenced to community-control sanctions. Defendant was later placed on house arrest after he violated terms of his community control and was then placed on electronic monitoring after new charges were brought against him. During a hearing, Defendant filed a motion asserting that he was entitled to jail-time credit for the time he was on standard house arrest and electronic monitoring. The trial court denied the motion and imposed a sentence. The appellate court reversed, concluding that Defendant was entitled to jail-time credit for the time he was on house arrest and electronic monitoring. The Supreme Court reversed, holding that Ohio Rev. Code 2969.191(A) is plain and unambiguous, limits a jail-time credit to specific types of confinement, and does not provide for a reduction in sentence for a term of postconviction house arrest or electronic monitoring imposed for violating community-control sanctions.

Oregon v. Haltom

Court: Oregon Supreme Court

Docket: S066955

Opinion Date: August 28, 2020

Judge: Nelson

Areas of Law: Constitutional Law, Criminal Law

Defendant Austin Haltom was convicted of second-degree sexual abuse, defined in ORS 163.425(1)(a). In Oregon v. Simonov, 368 P3d 11 (2016), in the context of analyzing ORS 164.135(1)(a), the statute criminalized using a vehicle “without consent of the owner;” the Oregon Supreme Court held that the “without consent” element of that offense was part of the “essential character” of the conduct that the statute proscribed, and therefore had to be treated as a “conduct” element for purposes of determining the minimum mental state that attaches to the element when the statute fails to specify a mental state. Relying on the fact that general provisions in the Criminal Code appear to contemplate at least a knowing mental state for any “conduct” element of a crime, the Supreme Court held that the state was required to prove that a defendant charged under ORS 164.135(1)(a) knew that the vehicle’s owner had not consented to its use at the relevant time. The Court rejected the state’s argument that the “without consent” element was a “circumstance” element to which a minimum mental state of “criminal negligence” would attach. In Haltom's case, he contended that the "does not consent" element in ORS 163.425(1)(a) played a similar role to that of the “without consent” element in the unauthorized use of a vehicle statute at issue in Simonov, and that, insofar as ORS 163.425(1)(a) did not specify a mental state that attaches to the “does not consent” element, both the analysis and ultimate conclusion in Simonov applied and established that “knowingly” was the minimum mental state that attached to the “does not consent” element. Thus, he argued that, to convict him under ORS 163.425(1)(a), the state was required to prove that he had engaged in sexual intercourse with the victim knowing that she did not consent and that the trial court therefore erred when it denied his request for an instruction to that effect and entered a judgment of conviction based on a jury finding that he had merely been reckless with respect to the victim’s consent.After review, the Supreme Court concluded the trial court erred and that the judgment of the trial court, and the Court of Appeals decision affirming that judgment, had to be reversed.

Oregon v. Weaver

Court: Oregon Supreme Court

Docket: S066636

Opinion Date: September 3, 2020

Judge: Thomas A. Balmer

Areas of Law: Constitutional Law, Criminal Law

While defendant Francis Weaver was awaiting trial for murder, the state entered into a plea agreement with one of his codefendants, Michael Orren - a potential witness in defendant’s case. The plea agreement required Orren, if called by defendant as a witness, to invoke his privilege against self-incrimination and not to testify on defendant’s behalf. If Orren complied with the agreement, the state would seek a life sentence with the possibility of parole after 30 years. However, if Orren testified for defendant, even truthfully, the state could seek a death sentence or a sentence of life without parole - two sentencing options that were otherwise taken off the table by Orren’s plea agreement. Defendant attempted to call Orren as a witness, and Orren invoked privilege. Defendant sought to at least place Orren’s plea agreement before the jury, but the trial court ruled that he could not. The jury found defendant guilty of murder and other crimes, and the Court of Appeals affirmed. On appeal, defendant argued the state's conduct interfered with his right to call witnesses under Article I, section 11, and the Sixth Amendment. To this, the Oregon Supreme Court concurred, finding defendant's right to compulsory process was violated. Defendant's convictions were reversed and the matter remanded for further proceedings.

Sanders v. So. Carolina Dept. Motor Veh.

Court: South Carolina Supreme Court

Docket: 27990

Opinion Date: September 2, 2020

Judge: Donald W. Beatty

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

The South Carolina Department of Motor Vehicles (DMV) suspended Bradley Sanders' driver's license pursuant to South Carolina's implied consent statute after he refused to take a blood-alcohol test following his arrest for driving under the influence (DUI). The suspension was upheld by the Office of Motor Vehicles and Hearings (OMVH), the Administrative Law Court (ALC), and the court of appeals. Sanders argued on appeal to the South Carolina Supreme Court that the decision of the court of appeals should have been reversed due to a lack of substantial evidence in the record to support the suspension. Specifically, Sanders argued the court of appeals erred in: (1) determining there was substantial evidence that a nurse, who was working in the emergency room at the time Sanders was admitted, qualified as licensed medical personnel; and (2) holding the statements used to establish his alleged inability to submit to a breath test were not hearsay. Finding no reversible error, the Supreme Court affirmed the suspension.

South Carolina v. Washington

Court: South Carolina Supreme Court

Docket: 27992

Opinion Date: September 2, 2020

Judge: James

Areas of Law: Constitutional Law, Criminal Law

Petitioner Sha'quille Washington was indicted for the murder of Herman Manigault and was convicted of the lesser included offense of voluntary manslaughter. The court of appeals affirmed Petitioner's conviction. The South Carolina Supreme Court granted petitioner's petition for certiorari review of the appellate court's judgment. After such review, the Supreme Court determined the trial court erred in giving an accomplice liability instruction, and held petitioner was prejudiced by this error. Therefore, the Court affirmed in part, vacated in part, and reversed in part, and remanded to the circuit court for a new trial on the charge of voluntary manslaughter.