Circuit Snippets
The Supreme Court broadly interpreted the definition of "misdemeanor offense of domestic violence," as used in 18 USC 922(g)(9) (prohibiting firearms possession by persons with such convictions) as requiring the government to prove beyond a reasonable doubt that the victim of the prior offense was in a domestic relationship with the offender, but the prior statute of conviction did not need to include the domestic relationship as an element. US v. Hayes, No. 07-608 (S.Ct. 2/24/09)
Although the 9th Circuit said it would have found that a defendant was deprived of counsel when the trial court failed to consult with defense counsel before directing jurors to refer back to the original jury instructions, it declined to order habeas relief for a state petitioner because the state courts did not unreasonably apply federal law when they concluded prejudice had to be shown. Musladin v. Lamarque, No. 03-16653 (9th cir. 2/12/09)
Defendant goes on a bank robbing spree. In one, a police officer is shot. The defendant is charged in federal court with numerous offenses, including two that are death-penalty eligible: an attempted robbery that resulted in death, and use of a firearm to commit an attempted armed bank robbery and murder. The jury found on a special verdict form the same two aggravating factors and the same 47 mitigating factors as to each offense, yet returned a verdict of death only as to the gun count. Relying on US v. Johnson, 223 F.3d 665 (7th Cir. 2000), the trial court concluded that different verdicts based on weighing the exact same aggravating and mitigating factors indicated the verdicts were arbitrary, so it ordered a new sentencing hearing on the gun count. The Sixth Circuit concluded that the verdicts were not inconsistent, and reached this conclusion by tallying up how many jurors found each mitigating factor on each of the special verdict forms. More jurors found more mitigating factors on the robbery count (for a total of 338 mitigating factor findings v. 304 mitigating factor findings on the gun count). Voila! The verdicts are actually consistent and rational (even though it was the same defendant, the same attempted robbery, and the same victim). As a preamble, the Court had to find that it had jurisdiction over the government's interlocutory appeal under 18 USC 3731 and, obviously, concluded that it did. US v. Lawrence, No. 06-4105 (6th Cir. 2/11/09)
The 9th Circuit held that it will apply an abuse of discretion standard of review -- rather than plain error -- to a party's contention that a sentence is substantively unreasonable, even if the issue was not raised in the district court . US v. Autery, No. 07-30424 (9th Cir. 2/13/09)
Hubby escapes from prison. Defendant wifey gives gun to hubby. Hubby shoots at cop. Defendant convicted of illegally transferring a firearm. USSG 2K2.1(c)(1) cross-references to 2X1.1, which governs attempts, when the gun was transferred with the knowledge of intent it would be used in connection with another offense. So the district court applies the attempted murder guideline. The Fifth Circuit rejected the government's argument that the gun facilitated the other offense. It remanded for resentencing, because the judge had to find that the defendant transferred the gun "with knowledge or intent" that it would be used to commit another offense. US v. Johnston, No. 08-10120 (5th Cir. 2/10/09)
In a case of first impression, the Third Circuit had to decide which of two guidelines applied to the defendant's offense of illegally retaining classified national defense documents in violation of 18 USC 793(e). The trial court picked USSG 2M3.2, the option with the higher offense level that applies when the defendant knew or should have known the documents could be used to threaten national security or aid a foreign power. Defendant admitted to having the proscribed mens rea. However, the Third Circuit focused on conduct, and decided that USSG 2M3.3 was more appropriate. Section 2M3.2 applied to active conduct, like communication, while 3M3.3 applied to more passive conduct, like simple retention. US v. Aquino, No. 07-3202 (3d Cir. 2/6/09)
Well, apparently, if the drug-sniffing dog arrives before the traffic stop is concluded, then it's ok for the cop to just continue with the narcotics investigation. So, there was no fourth amendment violation when the trooper ordered the defendant to step out of his car during the traffic stop for the sole purpose of allowing the dog to sniff the car. Defendant was driving a rental car and was not an authorized driver. The court rejected the defendant's argument that the officer did not diligently pursue the purpose of the stop (speeding), instead emphasizing that the dog arrived while the trooper was still conducting the background check and the sniffing occurred while the warning ticket was being written. US v. Bell, No. 06-4413 (6th Cir. 1/20/09)
Although the 9th Circuit said it would have found that a defendant was deprived of counsel when the trial court failed to consult with defense counsel before directing jurors to refer back to the original jury instructions, it declined to order habeas relief for a state petitioner because the state courts did not unreasonably apply federal law when they concluded prejudice had to be shown. Musladin v. Lamarque, No. 03-16653 (9th cir. 2/12/09)
Defendant goes on a bank robbing spree. In one, a police officer is shot. The defendant is charged in federal court with numerous offenses, including two that are death-penalty eligible: an attempted robbery that resulted in death, and use of a firearm to commit an attempted armed bank robbery and murder. The jury found on a special verdict form the same two aggravating factors and the same 47 mitigating factors as to each offense, yet returned a verdict of death only as to the gun count. Relying on US v. Johnson, 223 F.3d 665 (7th Cir. 2000), the trial court concluded that different verdicts based on weighing the exact same aggravating and mitigating factors indicated the verdicts were arbitrary, so it ordered a new sentencing hearing on the gun count. The Sixth Circuit concluded that the verdicts were not inconsistent, and reached this conclusion by tallying up how many jurors found each mitigating factor on each of the special verdict forms. More jurors found more mitigating factors on the robbery count (for a total of 338 mitigating factor findings v. 304 mitigating factor findings on the gun count). Voila! The verdicts are actually consistent and rational (even though it was the same defendant, the same attempted robbery, and the same victim). As a preamble, the Court had to find that it had jurisdiction over the government's interlocutory appeal under 18 USC 3731 and, obviously, concluded that it did. US v. Lawrence, No. 06-4105 (6th Cir. 2/11/09)
The 9th Circuit held that it will apply an abuse of discretion standard of review -- rather than plain error -- to a party's contention that a sentence is substantively unreasonable, even if the issue was not raised in the district court . US v. Autery, No. 07-30424 (9th Cir. 2/13/09)
Hubby escapes from prison. Defendant wifey gives gun to hubby. Hubby shoots at cop. Defendant convicted of illegally transferring a firearm. USSG 2K2.1(c)(1) cross-references to 2X1.1, which governs attempts, when the gun was transferred with the knowledge of intent it would be used in connection with another offense. So the district court applies the attempted murder guideline. The Fifth Circuit rejected the government's argument that the gun facilitated the other offense. It remanded for resentencing, because the judge had to find that the defendant transferred the gun "with knowledge or intent" that it would be used to commit another offense. US v. Johnston, No. 08-10120 (5th Cir. 2/10/09)
In a case of first impression, the Third Circuit had to decide which of two guidelines applied to the defendant's offense of illegally retaining classified national defense documents in violation of 18 USC 793(e). The trial court picked USSG 2M3.2, the option with the higher offense level that applies when the defendant knew or should have known the documents could be used to threaten national security or aid a foreign power. Defendant admitted to having the proscribed mens rea. However, the Third Circuit focused on conduct, and decided that USSG 2M3.3 was more appropriate. Section 2M3.2 applied to active conduct, like communication, while 3M3.3 applied to more passive conduct, like simple retention. US v. Aquino, No. 07-3202 (3d Cir. 2/6/09)
Well, apparently, if the drug-sniffing dog arrives before the traffic stop is concluded, then it's ok for the cop to just continue with the narcotics investigation. So, there was no fourth amendment violation when the trooper ordered the defendant to step out of his car during the traffic stop for the sole purpose of allowing the dog to sniff the car. Defendant was driving a rental car and was not an authorized driver. The court rejected the defendant's argument that the officer did not diligently pursue the purpose of the stop (speeding), instead emphasizing that the dog arrived while the trooper was still conducting the background check and the sniffing occurred while the warning ticket was being written. US v. Bell, No. 06-4413 (6th Cir. 1/20/09)
posted by Anonymous at 5:16 PM
<< Home