Circuit Snippets
US v. Lanham, No. 08-6504 (6th Cir. 8/24/10): Even though the guidelines are now advisory, ex post facto concerns support applying the guidelines in effect at the time of the offense rather than at the time of sentencing if the later guidelines are harsher, the Sixth Circuit said. There is a circuit split on this issue. The D.C. Circuit and the 4th Circuit have also held that ex post facto concerns are still applicable, but the 7th Circuit in US v. Demaree, 459 F.3d 791 (7th Cir. 2006), held that the advisory nature of the guidelines and the district court's ability to vary means that amendments do not create a "significant risk of increased punishment."
US v. Rains, No. 09-50724 (5th Cir. 8/23/10): A prior 924(c) conviction for possession of a firearm in furtherance of a drug-trafficking crime or crime of violence is a "felony drug offense" supporting imposition of a mandatory minimum life sentence under 21 USC 841 if the record establishes that the prior conviction involved drug trafficking.
US v. Wahid, No. 09-50036 (9th Cir. 8/10/10): Federal law (18 USC 1028A) requires a two-year prison term for aggravated identity theft. The statute also prohibits running the sentence concurrently with another sentence or otherwise reducing it. The First Circuit, in US v. Vidal-Reyes, 562 F.3d 43 (1st Cir. 2009), held that this prohibition applied only to counts that charged predicates to the aggravated identity theft and that district courts have discretion to reduce the sentence for a nonpredicate felony to offset the consecutive sentence. The Ninth Circuit agreed with the First Circuit, but rejected the defendant's argument that the district court was unaware of his discretion and affirmed the consecutive sentences.
US v. Dvorak, No. 09-3463 (8th Cir. 8/20/10): Sufficient evidence supported the defendant chiropractor's convictions for money laundering where he repeatedly deposited fraudulently obtained Medicaid reimbursements into his own checking account and then quickly withdrew the entire amount in cash. Such activity proved his intent to conceal the location of the proceeds.
US v. Havelock, 9th Cir. No. 08-10472 (9th Cir. 8/23/10): The 9th Circuit gave 18 USC 876(c), which criminalizes mailing threatening communications, a narrow construction. The statute applies only if the address on the face of the package is that of a natural person. The Tenth Circuit's position in US v. Williams, 376 F.3d 1048 (10th Cir. 2004), is that both the envelope and the salutation can be considered.
US v. Allen, No. 09-2747 (3d Cir. 8/17/10): Defendant was charged with felon in possession after a shakedown in a bar. He challenged the search. Police officers did not violate the fourth amendment where they used a SWAT team to detain everyone on the premises of a bar where the officers had a valid warrant to seize information in the custody of the business (the police wanted the video surveillance tapes for purposes of a homicide investigation unrelated to the bar). The court focused on the facts that the officers were executing a warrant for evidence at a bar located in a high crime area, where patrons were known to carry firearms, and where gun-related crimes had recently been committed. Also, there were several people present so the police were justified in securing the premises to ensure others weren't in danger.
Thomas v. Bryant, No. 09-11658 (11th Cir. 8/20/10): The Florida Department of Corrections can't just willy-nilly pepper spray inmates who may be mentally ill and unable to control their behavior, the 11th Cir. said. Doing so is cruel and unusual punishment. The corrections officers must consult with mental health professionals before resorting to such tactics.
US v. Dotson, No. 09-30149 (9th Cir. 8/17/10): The Assimilative Crimes Act assimilates Washington state's law against furnishing liquor to minors.
US v. Pineda-Doval, No. 08-10240 (9th Cir. 8/10/10): The trial court's refusal to let a defendant charged with transporting illegal aliens resulting in death present evidence concerning the Border Patrol's policies on the use of spike strips to stop fleeing vehicles violated the defendant's right to present a complete defense. The accident that caused the death of 10 passengers occurred when the defendant swerved to avoid such a strip and rolled the SUV he was driving. Defendant sought to show that the agents did not comply with relevant policies. The Court agreed that he was denied his only defense. However, the error was harmless because no reasonable jury would conclude that the agents' negligence, if there was any, was so extraordinary that it would be unfair to hold the defendant responsible.
US v. Holstein, No. 09-2822 (7th Cir. 8/18/10): A lawyer was guilty of bankruptcy fraud and false statements based on his firm's efforts to conceal its representation of supposedly pro se bankruptcy filers. The clients didn't know they were pro se, and the lawyer didn't tell them he was about to suspended from the practice of law, he misrepresented to the bankruptcy court that the filers were pro se, and he did it all to conceal the fact he was practicing without a license. The court rejected the lawyer's attempts to blame it all on his paralegal.
Riva v. Ficco, No. 08-1998 (1st Cir. 8/5/10): A petitioner's mental illness can be a basis for equitably tolling the AEDPA's onerous deadline.
Price v. Pierce, No. 08-1402 (7th Cir. 8/13/10): but a motion seeking post-conviction DNA testing under state law is not "collateral review" sufficient to toll the AEDPA deadline for filing a federal habeas petition.
US v. Green, No. 08-5548 (2d Cir. 8/13/10): A condition of supervised release prohibiting the defendant from wearing any colors commonly displayed by criminal street gangs was unconstitutionally vague. The Court notes one law enforcement agency says that gang colors can range from white t-shirts to blue, black, red, green, brown or purple clothes. So what can a poor supervisee wear? Pink? Plaid?
US v. Rains, No. 09-50724 (5th Cir. 8/23/10): A prior 924(c) conviction for possession of a firearm in furtherance of a drug-trafficking crime or crime of violence is a "felony drug offense" supporting imposition of a mandatory minimum life sentence under 21 USC 841 if the record establishes that the prior conviction involved drug trafficking.
US v. Wahid, No. 09-50036 (9th Cir. 8/10/10): Federal law (18 USC 1028A) requires a two-year prison term for aggravated identity theft. The statute also prohibits running the sentence concurrently with another sentence or otherwise reducing it. The First Circuit, in US v. Vidal-Reyes, 562 F.3d 43 (1st Cir. 2009), held that this prohibition applied only to counts that charged predicates to the aggravated identity theft and that district courts have discretion to reduce the sentence for a nonpredicate felony to offset the consecutive sentence. The Ninth Circuit agreed with the First Circuit, but rejected the defendant's argument that the district court was unaware of his discretion and affirmed the consecutive sentences.
US v. Dvorak, No. 09-3463 (8th Cir. 8/20/10): Sufficient evidence supported the defendant chiropractor's convictions for money laundering where he repeatedly deposited fraudulently obtained Medicaid reimbursements into his own checking account and then quickly withdrew the entire amount in cash. Such activity proved his intent to conceal the location of the proceeds.
US v. Havelock, 9th Cir. No. 08-10472 (9th Cir. 8/23/10): The 9th Circuit gave 18 USC 876(c), which criminalizes mailing threatening communications, a narrow construction. The statute applies only if the address on the face of the package is that of a natural person. The Tenth Circuit's position in US v. Williams, 376 F.3d 1048 (10th Cir. 2004), is that both the envelope and the salutation can be considered.
US v. Allen, No. 09-2747 (3d Cir. 8/17/10): Defendant was charged with felon in possession after a shakedown in a bar. He challenged the search. Police officers did not violate the fourth amendment where they used a SWAT team to detain everyone on the premises of a bar where the officers had a valid warrant to seize information in the custody of the business (the police wanted the video surveillance tapes for purposes of a homicide investigation unrelated to the bar). The court focused on the facts that the officers were executing a warrant for evidence at a bar located in a high crime area, where patrons were known to carry firearms, and where gun-related crimes had recently been committed. Also, there were several people present so the police were justified in securing the premises to ensure others weren't in danger.
Thomas v. Bryant, No. 09-11658 (11th Cir. 8/20/10): The Florida Department of Corrections can't just willy-nilly pepper spray inmates who may be mentally ill and unable to control their behavior, the 11th Cir. said. Doing so is cruel and unusual punishment. The corrections officers must consult with mental health professionals before resorting to such tactics.
US v. Dotson, No. 09-30149 (9th Cir. 8/17/10): The Assimilative Crimes Act assimilates Washington state's law against furnishing liquor to minors.
US v. Pineda-Doval, No. 08-10240 (9th Cir. 8/10/10): The trial court's refusal to let a defendant charged with transporting illegal aliens resulting in death present evidence concerning the Border Patrol's policies on the use of spike strips to stop fleeing vehicles violated the defendant's right to present a complete defense. The accident that caused the death of 10 passengers occurred when the defendant swerved to avoid such a strip and rolled the SUV he was driving. Defendant sought to show that the agents did not comply with relevant policies. The Court agreed that he was denied his only defense. However, the error was harmless because no reasonable jury would conclude that the agents' negligence, if there was any, was so extraordinary that it would be unfair to hold the defendant responsible.
US v. Holstein, No. 09-2822 (7th Cir. 8/18/10): A lawyer was guilty of bankruptcy fraud and false statements based on his firm's efforts to conceal its representation of supposedly pro se bankruptcy filers. The clients didn't know they were pro se, and the lawyer didn't tell them he was about to suspended from the practice of law, he misrepresented to the bankruptcy court that the filers were pro se, and he did it all to conceal the fact he was practicing without a license. The court rejected the lawyer's attempts to blame it all on his paralegal.
Riva v. Ficco, No. 08-1998 (1st Cir. 8/5/10): A petitioner's mental illness can be a basis for equitably tolling the AEDPA's onerous deadline.
Price v. Pierce, No. 08-1402 (7th Cir. 8/13/10): but a motion seeking post-conviction DNA testing under state law is not "collateral review" sufficient to toll the AEDPA deadline for filing a federal habeas petition.
US v. Green, No. 08-5548 (2d Cir. 8/13/10): A condition of supervised release prohibiting the defendant from wearing any colors commonly displayed by criminal street gangs was unconstitutionally vague. The Court notes one law enforcement agency says that gang colors can range from white t-shirts to blue, black, red, green, brown or purple clothes. So what can a poor supervisee wear? Pink? Plaid?
posted by Anonymous at 2:55 PM
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