Circuit Snippets
Defendants have a right to cross-examine analysts who conduct and write reports on forensic laboratory tests, the Supreme Court held. The sworn reports are "clearly testimonial." Melendez-Diaz v. Mass., No. 07-591 (U.S. 6/25/09)
A school administrator violated a 13-year-old girl's fourth amendment rights when he ordered that she be strip searched on suspicion that she possessed ibuprofen, but the asst. principal received qualified immunity in the civil rights lawsuit because the law was not sufficiently clear at the time of the search. There was sufficient suspicion to justify a search of the student's outer clothing and backpack. Safford v. Unified Sch. Dist. # 1 v. Redding, No. 08-479 (U.S. 6/25/09)
The 8th Circuit upheld federal convictions for bribery, wire fraud, mail fraud and conspiracy based on "honest services fraud" even though the indictment, jury instructions, nor the government didn't mention that theory or reference the statute that authorizes that basis for guilt, 18 U.S.C. 1346. Defendant ran a truck driving school, and bribed an instructor at another school (that was certified) to pass defendant's students even if they did not complete the required the testing. It was not necessary to cite 1346 in the indictment because that statute merely defined a term in 1341 and 1343, which were included. The jury instructions were adequate because they correctly laid out the elements of mail fraud. Although the prosecutor never talked about "honest services fraud," the government had consistently argued that the state was injured by the instructor's practice of administering inadequate tests -- in other words, the court reasoned, withholding the honest service he owed the state. US v. Redzic, No. 08-2418 (8th Cir. 6/22/09)
The 7th Circuit held that, even though 18 USC 371, the general conspiracy statute, required prosecutors to prove at least one co-conspirator committed an overt act in furtherance of the conspiracy, jurors are not required to unanimously agree on which overt act was committed. All that is required is that they agree that something was done. US v. Griggs, No. 06-4211 (7th Cir. 6/24/09)
The Sixth Circuit found that a defendant's pro se filings, no matter how obnoxious, could not support an upward enhancement at sentencing under USSG 5K2.0.
US v. O'Georgia, No. 05-2598 (6th Cir. 6/24/09)
A defendant who defrauded winning bidders through internet auction websites properly had his sentence enhanced for perpetrating his crime through "mass marketing," USSG 2B1.1(b)(2)(A)(ii), even though the ultimate number of victims was small. The enhancement was designed to reach defendants who solicit large numbers of potential victims. US v. Heckel, No. 07-3514 (7th Cir. 6/22/09)
Forcibly extracting a DNA sample from a pretrial detainee without a warrant or any basis to suspect the detainee has committed a particular crime under investigation clearly violates established Fourth Amendment law, the 9th Circuit held in denying a prosecutor and a police detective qualified immunity in a civil rights case. Friedman v. Boucher, No. 05-15675 (9th Cir. 6/23/09)
When defendants who are on supervised release and spend time in jail in connection with new charges for which they are later convicted, their terms of supervised release are tolled during the pretrial detention period, the 5th Cir. held. US v. Molina-GazcaI, No. 08-50620 (5th Cir. 6/11/09)
A judge can rely on a PSR's description of a prior arrest to find that a defendant's criminal history score is underrepresentative and should be increased; USSG 4A1.3(a)(1) prohibits only that a district court can not rely on the mere fact the defendant has prior arrests in enhancing a sentence. US v. Robertson, No. 08-3126 (10th Cir. 6/19/09)
A school administrator violated a 13-year-old girl's fourth amendment rights when he ordered that she be strip searched on suspicion that she possessed ibuprofen, but the asst. principal received qualified immunity in the civil rights lawsuit because the law was not sufficiently clear at the time of the search. There was sufficient suspicion to justify a search of the student's outer clothing and backpack. Safford v. Unified Sch. Dist. # 1 v. Redding, No. 08-479 (U.S. 6/25/09)
The 8th Circuit upheld federal convictions for bribery, wire fraud, mail fraud and conspiracy based on "honest services fraud" even though the indictment, jury instructions, nor the government didn't mention that theory or reference the statute that authorizes that basis for guilt, 18 U.S.C. 1346. Defendant ran a truck driving school, and bribed an instructor at another school (that was certified) to pass defendant's students even if they did not complete the required the testing. It was not necessary to cite 1346 in the indictment because that statute merely defined a term in 1341 and 1343, which were included. The jury instructions were adequate because they correctly laid out the elements of mail fraud. Although the prosecutor never talked about "honest services fraud," the government had consistently argued that the state was injured by the instructor's practice of administering inadequate tests -- in other words, the court reasoned, withholding the honest service he owed the state. US v. Redzic, No. 08-2418 (8th Cir. 6/22/09)
The 7th Circuit held that, even though 18 USC 371, the general conspiracy statute, required prosecutors to prove at least one co-conspirator committed an overt act in furtherance of the conspiracy, jurors are not required to unanimously agree on which overt act was committed. All that is required is that they agree that something was done. US v. Griggs, No. 06-4211 (7th Cir. 6/24/09)
The Sixth Circuit found that a defendant's pro se filings, no matter how obnoxious, could not support an upward enhancement at sentencing under USSG 5K2.0.
US v. O'Georgia, No. 05-2598 (6th Cir. 6/24/09)
A defendant who defrauded winning bidders through internet auction websites properly had his sentence enhanced for perpetrating his crime through "mass marketing," USSG 2B1.1(b)(2)(A)(ii), even though the ultimate number of victims was small. The enhancement was designed to reach defendants who solicit large numbers of potential victims. US v. Heckel, No. 07-3514 (7th Cir. 6/22/09)
Forcibly extracting a DNA sample from a pretrial detainee without a warrant or any basis to suspect the detainee has committed a particular crime under investigation clearly violates established Fourth Amendment law, the 9th Circuit held in denying a prosecutor and a police detective qualified immunity in a civil rights case. Friedman v. Boucher, No. 05-15675 (9th Cir. 6/23/09)
When defendants who are on supervised release and spend time in jail in connection with new charges for which they are later convicted, their terms of supervised release are tolled during the pretrial detention period, the 5th Cir. held. US v. Molina-GazcaI, No. 08-50620 (5th Cir. 6/11/09)
A judge can rely on a PSR's description of a prior arrest to find that a defendant's criminal history score is underrepresentative and should be increased; USSG 4A1.3(a)(1) prohibits only that a district court can not rely on the mere fact the defendant has prior arrests in enhancing a sentence. US v. Robertson, No. 08-3126 (10th Cir. 6/19/09)
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