Circuit Snippets
A Virginia statute that criminalizes falsifying routing data in spam e-mail violates the First Amendment right to engage in anonymous speech, the Virginia Supreme Court held. Jaynes v. Commonwealth, No. 062388 (Va. S.Ct. 9/12/08) on rehearing 657 SE2d 478.
A fraud defendant's Sixth Amendment rights under Bruton were violated when the court admitted a codefendant's affidavit that included references to companies that were largely controlled by the defendant, the 11th Cir. held. After hearing all the evidence about how the defendant controlled the companies, jurors would not have been able to resist inferring a connection between the statements about the companies and the defendant himself. US v. Schwartz, No. 05-11715 (11th Cir. 9/5/08)
Disagreeing with, among others, the Tenth Circuit, the Third Circuit held that a defendant does not have to separately object to the adequacy of the sentencing court's explanation of the sentence to preserve an appellate claim that the court failed to properly consider statutory sentencing factors. US v. Sevilla, No. 07-1105 (3d Cir. 9/4/08)
The Second Circuit reversed the defendant's conviction for using a computer to send internet messages to entice someone he believed to be an underage girl to engage in illegal sex, contrary to 18 USC 2422(b) because the district court incorrectly instructed the jury that "the government only needs to show, beyond a reasonable doubt, that the defendant attempted to convince or influence the person he believed was a 13 year old girl to engage in a sexual act with him, or made the possibility of a sexual act with him more appealing." The "more appealing" part of the instruction was erroneous because it authorized a conviction even if the defendant did not intend to entice "Julie" into engaging in sex. US v. Joseph, No. 06-5911-cr (2d Cir. 9/9/08)
A cop's testimony concerning his "impressions" of "code words" in intercepted telephone conversations among drug conspirators was admissible as lay opinion testimony under FRE 701, the 7th Cir. held. US v. Rollins, No. 07-2649 (7th Cir. 9/15/08)
A capital defendant's Sixth Amendment rights under Crawford were not violated by the admission of maps to the victims' bodies that had been drawn by his codefendant girlfriend. She drew them at the suggestion of a fellow jail inmate who tricked her into thinking he would arrange for someone else to take the rap but he needed evidence to back up the "lifer's" claims. Although the inmate probably expected the maps would be used against the defendant, the girlfriend did not draw the maps for the purpose of proving some fact against the defendant and thus were more like a "casual remark to an acquaintance." US v. Honken, No. 05-3871 (8th Cir. 9/12/08)
The federal statute that criminalizes murder while engaging in drug-related offenses, 21 USC 848(e)(1)(A), applies to a defendant who committed murders at the behest of a Colombian drug boss but who did not himself engage in drug trafficking. The statute does not require that the defendant be actively engaged in drug trafficking, but only involved in a conspiracy to do so. US v. Santos, No. 06-0833-cr (2d Cir. 9/2/08)
Parties to a plea bargain can stipulate to a higher standard of proof at sentencing than that required by law, the 7th Cir. held. In this case, the plea agreement required the government to prove drug quantity beyond a reasonable doubt. Nonetheless, the court remanded because it could not determine how the sentencing court had determined the quantity. US v. Hernandez, No. 07-1134 (7th Cir. 9/12/08)
The BOP's regulations that allow a prisoner to be transferred to a halfway house only at the end of the prisoner's sentence conflict with statutory standards and are therefore invalid, the 9th Cir. held. Rodriguez v. Smith, No. 07-16014 (9th Cir. 9/4/08)
A court can order restitution based on a conspiracy conviction if the underlying conspiracy involves one of the enumerated offenses, the 5th Cir. held. It affirmed the district court's order of restitution based on injuries to a couple who were injured in a car accident caused by the defendant as he fled drug enforcement agents. US v. Gutierrez-Avascal, No. 07-40779 (5th Cir. 9/9/08)
Under the Fourth Amendment, officers executing a valid search warrant can search anyone who comes within a 50-foot "safety perimeter", even if the person doesn't step onto the property. US v. Jennings, No. 07-1818 (7th Cir. 9/15/08)
Using a telephone to facilitate a drug distribution conspiracy, 21 USC 843(b), is a drug trafficking offense for purposes of the reentry guideline, USSG 2L1.2, the 5th Cir. held. US v. Pillado-Chaparro, No. 08-30192 (5th Cir. 9/17/08)
The 7th Cir. held that the statute that criminalizes taking or attempting to take money from a bank "by force and violence, or by intimidation, 18 USC 2113(a), requires that a defendant charged with attempt have engaged in an actual act of intimidation. This position agrees with the Fifth Circuit and disagrees with the 2d, 4th, 6th and 9th Circuits. US v. Thornton, No. 07-2839 (7th Cir. 8/26/08)
A fraud defendant's Sixth Amendment rights under Bruton were violated when the court admitted a codefendant's affidavit that included references to companies that were largely controlled by the defendant, the 11th Cir. held. After hearing all the evidence about how the defendant controlled the companies, jurors would not have been able to resist inferring a connection between the statements about the companies and the defendant himself. US v. Schwartz, No. 05-11715 (11th Cir. 9/5/08)
Disagreeing with, among others, the Tenth Circuit, the Third Circuit held that a defendant does not have to separately object to the adequacy of the sentencing court's explanation of the sentence to preserve an appellate claim that the court failed to properly consider statutory sentencing factors. US v. Sevilla, No. 07-1105 (3d Cir. 9/4/08)
The Second Circuit reversed the defendant's conviction for using a computer to send internet messages to entice someone he believed to be an underage girl to engage in illegal sex, contrary to 18 USC 2422(b) because the district court incorrectly instructed the jury that "the government only needs to show, beyond a reasonable doubt, that the defendant attempted to convince or influence the person he believed was a 13 year old girl to engage in a sexual act with him, or made the possibility of a sexual act with him more appealing." The "more appealing" part of the instruction was erroneous because it authorized a conviction even if the defendant did not intend to entice "Julie" into engaging in sex. US v. Joseph, No. 06-5911-cr (2d Cir. 9/9/08)
A cop's testimony concerning his "impressions" of "code words" in intercepted telephone conversations among drug conspirators was admissible as lay opinion testimony under FRE 701, the 7th Cir. held. US v. Rollins, No. 07-2649 (7th Cir. 9/15/08)
A capital defendant's Sixth Amendment rights under Crawford were not violated by the admission of maps to the victims' bodies that had been drawn by his codefendant girlfriend. She drew them at the suggestion of a fellow jail inmate who tricked her into thinking he would arrange for someone else to take the rap but he needed evidence to back up the "lifer's" claims. Although the inmate probably expected the maps would be used against the defendant, the girlfriend did not draw the maps for the purpose of proving some fact against the defendant and thus were more like a "casual remark to an acquaintance." US v. Honken, No. 05-3871 (8th Cir. 9/12/08)
The federal statute that criminalizes murder while engaging in drug-related offenses, 21 USC 848(e)(1)(A), applies to a defendant who committed murders at the behest of a Colombian drug boss but who did not himself engage in drug trafficking. The statute does not require that the defendant be actively engaged in drug trafficking, but only involved in a conspiracy to do so. US v. Santos, No. 06-0833-cr (2d Cir. 9/2/08)
Parties to a plea bargain can stipulate to a higher standard of proof at sentencing than that required by law, the 7th Cir. held. In this case, the plea agreement required the government to prove drug quantity beyond a reasonable doubt. Nonetheless, the court remanded because it could not determine how the sentencing court had determined the quantity. US v. Hernandez, No. 07-1134 (7th Cir. 9/12/08)
The BOP's regulations that allow a prisoner to be transferred to a halfway house only at the end of the prisoner's sentence conflict with statutory standards and are therefore invalid, the 9th Cir. held. Rodriguez v. Smith, No. 07-16014 (9th Cir. 9/4/08)
A court can order restitution based on a conspiracy conviction if the underlying conspiracy involves one of the enumerated offenses, the 5th Cir. held. It affirmed the district court's order of restitution based on injuries to a couple who were injured in a car accident caused by the defendant as he fled drug enforcement agents. US v. Gutierrez-Avascal, No. 07-40779 (5th Cir. 9/9/08)
Under the Fourth Amendment, officers executing a valid search warrant can search anyone who comes within a 50-foot "safety perimeter", even if the person doesn't step onto the property. US v. Jennings, No. 07-1818 (7th Cir. 9/15/08)
Using a telephone to facilitate a drug distribution conspiracy, 21 USC 843(b), is a drug trafficking offense for purposes of the reentry guideline, USSG 2L1.2, the 5th Cir. held. US v. Pillado-Chaparro, No. 08-30192 (5th Cir. 9/17/08)
The 7th Cir. held that the statute that criminalizes taking or attempting to take money from a bank "by force and violence, or by intimidation, 18 USC 2113(a), requires that a defendant charged with attempt have engaged in an actual act of intimidation. This position agrees with the Fifth Circuit and disagrees with the 2d, 4th, 6th and 9th Circuits. US v. Thornton, No. 07-2839 (7th Cir. 8/26/08)
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