Interesting Cases from Other Circuits
Danger to Foreign Community: A district court may consider a defendant's danger to a foreign community when determining whether it can deny pretrial release under the Bail Reform Act, the 9th Circuit held. Defendant was charged with, inter alia, conspiring to provide and providing support to terrorists based on the defendant's sending money and supplies to his brother in Malaysia, an acknowledged member of a terrorist group. The district court denied bail because the defendant posed a threat to the people of the countries in which his brother operates and no conditions of release could reasonably assure the safety of that community. On appeal, the 9th Circuit held that "[w]here, as here, a defendant is charged with an offense that had a significant adverse effect on a community abroad, we see no justification for preventing a court, for bail purposes, from considering the continuing risk to that community that might be posed by the defendant's pre-trial release." US v. Hir, No. 07-10500 (9th Cir. 9/15/08)
Protective Sweep: The Fifth Circuit held that the search incident to arrest doctrine did not justify officers' warrantless search of an auto body shop based on the fact that they had arrested a group of drug smugglers just outside the gated fence surrounding the shop. However, the search was justified under the protective sweep doctrine because the officers knew a large quantity of drugs had been delivered to the shop and that people there kept watch for law enforcement. US v. Mata, No. 06-40957 (5th Cir. 2/11/08)
Aggravated ID Theft: A conviction for aggravated identity theft under 18 USC 1028A (unauthorized use of "a means of identification of another person") requires proof that the defendant knew the identification belonged to an actual real person, the D.C. Court of Appeals held. The court reasoned that Congress intended to increase penalties for persons who actually steal identities, rather than those who just use bogus documents. US v. Villanueva-Soto, No. 07-3055 (D.C. Cir. 2/15/08)
Adam Walsh Act: The 7th Circuit upheld the Adam Walsh Act's limitations on a defendant's pretrial access to the evidence of child pornography, including the requirement that it occur only in places under government control and forbidding reproduction of it. See 18 USC 3509(m). The Court held that there is no constitutional right to pretrial discovery, and accordingly it rejected the defendant's claims based on the Sixth Amendment's right to confrontation and cross-examination. However, the court was troubled by the fact that the government had provided a coy of the hard drive to its consulting expert, who was not a member of the government. The 7th Circuit thought that the pretrial discovery rules applied to the government as much as to the defense, and the defense expert should have received equal access. US v. Shrake, No. 07-1790 (7th Cir. 2/6/08)
Other Crimes Evidence Improperly Admitted: Great decision. The Sixth Circuit held that evidence of the drug-trafficking defendant's prior convictions for drug trafficking should not have been admitted at trial under FRE 404(b) to prove the defendant's intent or absence of mistake or accident. The defendant was arrested in a home he shared with several other people; quantities of marijuana and crack were found in the residence. There was circumstantial evidence of the defendant's guilt, but the defense presented evidence that disputed the defendant's ownership of the drugs. Defendant's old convictions for PWID marijuana and crack were introduced to show knowledge, intent, and lack of mistake or accident. The Court of Appeals reversed. It pointed out that the defendant was claiming it was a mistake for the police to think he possessed the drugs, not that he was mistaken about whether the substances were drugs. On the issue of intent, the Court concluded that, without more linkage, the mere fact that the defendant possessed with intent to distribute drugs in the past is not probative on his intent now. A dissenting judge thought the evidence was properly admitted. US v. Bell, No. 06-6248 (6th Cir. 2/14/08)
HC: Right to Appointed Appellate Counsel: The en banc Sixth Circuit held that the Supreme Court's decision in Halbert v. Mich., 545 US 605 (2005), concerning the right to appointed counsel in a discretionary appeal, was a "new" rule of criminal procedure under Teague v. Lane, 489 US 288, and therefore did not apply retroactively on federal habeas review. Simmons v. Kapture, No. 03-2609 (6th Cir. 2/15/08) (en banc), rehearing 474 F.3d 869.
Plea Bargains: Despite their increased Booker discretion, district courts continue to have a duty to abide by parties' agreements pursuant to Fed.R.Crim.P. 11(c)(1)(C), the 8th Circuit said, rejecting the defendant's argument that such agreements are unconstitutional post-Booker. US v. Kling, No. 07-1303 (8th Cir. 2/14/08).
Restitution Order Reversed: The 8th Circuit reversed a restitution order imposed on a defendant who was convicted of misdemeanor copyright infringement. BMG Columbia House sells CDs and DVDs by mail order, and, rather than paying for the return of undeliverable discs, had the post office toss them in the trash. Defendant, a janitor, took the discarded discs and sold them to used record stores for $78,818. He was ordered to pay restitution to BMG. The Court reversed, concluding that the district court erred in finding that BMG suffered an actual loss from the defendant's offense. US v. Chalupnik, No. 07-1355 (8th Cir. 2/1/08)
Law of the Case: The previous, pre-Booker appellate decision holding that the district court improperly imposed an above-guideline sentence on the money-laundering defendant did not prohibit the district court from considering the same factors and imposing the same above-guidelines sentence on the defendant at the new sentencing hearing held post-Booker. Under a recognized exception the law of the case doctrine, the Booker decision was an intervening change in controlling law. Sentence affirmed. US v. Williams, No. 06-30010 (5th Cir. 2/18/08)
Prior Drug Offense: USSG 2D1.1(a)(1), which sets a high minimum base level when a defendant convicted of certain drug-trafficking crimes has a prior conviction for a similar crime, does not include an explicit time limit on the age of the prior, the Sixth Circuit held. Thus, the district court could consider the defendant's more-than-20-year-old prior conviction in setting the base offense level. US v. King, No. 07-1012 (6th Cir. 2/14/08)
Protective Sweep: The Fifth Circuit held that the search incident to arrest doctrine did not justify officers' warrantless search of an auto body shop based on the fact that they had arrested a group of drug smugglers just outside the gated fence surrounding the shop. However, the search was justified under the protective sweep doctrine because the officers knew a large quantity of drugs had been delivered to the shop and that people there kept watch for law enforcement. US v. Mata, No. 06-40957 (5th Cir. 2/11/08)
Aggravated ID Theft: A conviction for aggravated identity theft under 18 USC 1028A (unauthorized use of "a means of identification of another person") requires proof that the defendant knew the identification belonged to an actual real person, the D.C. Court of Appeals held. The court reasoned that Congress intended to increase penalties for persons who actually steal identities, rather than those who just use bogus documents. US v. Villanueva-Soto, No. 07-3055 (D.C. Cir. 2/15/08)
Adam Walsh Act: The 7th Circuit upheld the Adam Walsh Act's limitations on a defendant's pretrial access to the evidence of child pornography, including the requirement that it occur only in places under government control and forbidding reproduction of it. See 18 USC 3509(m). The Court held that there is no constitutional right to pretrial discovery, and accordingly it rejected the defendant's claims based on the Sixth Amendment's right to confrontation and cross-examination. However, the court was troubled by the fact that the government had provided a coy of the hard drive to its consulting expert, who was not a member of the government. The 7th Circuit thought that the pretrial discovery rules applied to the government as much as to the defense, and the defense expert should have received equal access. US v. Shrake, No. 07-1790 (7th Cir. 2/6/08)
Other Crimes Evidence Improperly Admitted: Great decision. The Sixth Circuit held that evidence of the drug-trafficking defendant's prior convictions for drug trafficking should not have been admitted at trial under FRE 404(b) to prove the defendant's intent or absence of mistake or accident. The defendant was arrested in a home he shared with several other people; quantities of marijuana and crack were found in the residence. There was circumstantial evidence of the defendant's guilt, but the defense presented evidence that disputed the defendant's ownership of the drugs. Defendant's old convictions for PWID marijuana and crack were introduced to show knowledge, intent, and lack of mistake or accident. The Court of Appeals reversed. It pointed out that the defendant was claiming it was a mistake for the police to think he possessed the drugs, not that he was mistaken about whether the substances were drugs. On the issue of intent, the Court concluded that, without more linkage, the mere fact that the defendant possessed with intent to distribute drugs in the past is not probative on his intent now. A dissenting judge thought the evidence was properly admitted. US v. Bell, No. 06-6248 (6th Cir. 2/14/08)
HC: Right to Appointed Appellate Counsel: The en banc Sixth Circuit held that the Supreme Court's decision in Halbert v. Mich., 545 US 605 (2005), concerning the right to appointed counsel in a discretionary appeal, was a "new" rule of criminal procedure under Teague v. Lane, 489 US 288, and therefore did not apply retroactively on federal habeas review. Simmons v. Kapture, No. 03-2609 (6th Cir. 2/15/08) (en banc), rehearing 474 F.3d 869.
Plea Bargains: Despite their increased Booker discretion, district courts continue to have a duty to abide by parties' agreements pursuant to Fed.R.Crim.P. 11(c)(1)(C), the 8th Circuit said, rejecting the defendant's argument that such agreements are unconstitutional post-Booker. US v. Kling, No. 07-1303 (8th Cir. 2/14/08).
Restitution Order Reversed: The 8th Circuit reversed a restitution order imposed on a defendant who was convicted of misdemeanor copyright infringement. BMG Columbia House sells CDs and DVDs by mail order, and, rather than paying for the return of undeliverable discs, had the post office toss them in the trash. Defendant, a janitor, took the discarded discs and sold them to used record stores for $78,818. He was ordered to pay restitution to BMG. The Court reversed, concluding that the district court erred in finding that BMG suffered an actual loss from the defendant's offense. US v. Chalupnik, No. 07-1355 (8th Cir. 2/1/08)
Law of the Case: The previous, pre-Booker appellate decision holding that the district court improperly imposed an above-guideline sentence on the money-laundering defendant did not prohibit the district court from considering the same factors and imposing the same above-guidelines sentence on the defendant at the new sentencing hearing held post-Booker. Under a recognized exception the law of the case doctrine, the Booker decision was an intervening change in controlling law. Sentence affirmed. US v. Williams, No. 06-30010 (5th Cir. 2/18/08)
Prior Drug Offense: USSG 2D1.1(a)(1), which sets a high minimum base level when a defendant convicted of certain drug-trafficking crimes has a prior conviction for a similar crime, does not include an explicit time limit on the age of the prior, the Sixth Circuit held. Thus, the district court could consider the defendant's more-than-20-year-old prior conviction in setting the base offense level. US v. King, No. 07-1012 (6th Cir. 2/14/08)
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