Roundup of Criminal Law Decisions in the Circuits (02/13/17-02/17/17)

Summary of published decisions in criminal cases from the federal courts of appeals, along with a sampling of unpublished criminal and prisoner cases.

First Circuit

United States v. Arias-Affirming convictions and 66-month sentence for conspiracy and possession of heroin with the intent to distribute. Court affirmed admission of co-conspirator hearsay exception where customer supplied with heroin by the defendant  discussed pricing, supplying, and selling heroin with an unidentified person, during which customer said he got 40 bags from the defendant every other day. Reasonable to conclude conversation was in furtherance of the conspiracy where such information would help the customer in running the heroin trafficking business. (Issues: Fourth Amendment (Franks hearing and reasonable suspicion for traffic stops), denial of motion for leave to file suppression motion after deadline lapsed, denial of motion to continue trial, and calculating drug quantity for Guidelines)

United States v. Delgado-Sanchez-Affirming upward variant sentence of 72-months for conviction of possession of a firearm by a felon. Court found conviction for pointing a gun at another person in violation of Puerto Rican law qualified as a crime of violence under § 2K2.1(a)(3). Although Court declined to address the government’s argument that the defendant’s failure to object to the presentence report waived the argument, dicta suggests court receptive to such an argument. (Issues: Procedural reasonableness of the sentence)

Second Circuit

United States v. Barrett-Affirming convictions for conspiracy to distribute and possession with the intent to distribute marijuana. Court joined sister Circuits in finding that the testimony of a former co-defendant who pleads guilty during trial and then agrees to testify as a government witness at that same trial is admissible so long as the district court takes steps to avoid undue prejudice to the remaining defendants. These steps include: limiting testimony to events other than the witness’s involvement in joint defense planning and properly instructing the jury regarding the changed circumstances.

United States v. Marinello-Order denying en banc review to panel decision that held the omnibus clause of the Internal Revenue Code is not limited to a pending IRS investigation or proceeding of which the defendant has knowledge. Judges Jacobs and Cabranes dissented from the denial arguing that the clause should be interpreted to limit its application, or if such an interpretation was not possible, the full Court should have considered the statute’s constitutionality. The panel’s opinion “affords the sort of capacious, unbounded, and oppressive opportunity for prosecutorial abuse that the Supreme Court has repeatedly curtailed.” The defendant was already culpable (and convicted) of felony tax evasion, “[i]ndiscriminate application of this omnibus clause serves only to snag citizens who cannot be caught in the fine-drawn net of specified offenses, or to pile on offenses when a real tax cheat is convicted.”  The dissent concluded with an admonition that “prosecutors must encounter boundaries to discretion, so that no American prosecutor can say, ‘Show me the man and I’ll find you the crime.'”

Carmichael v. Chappius-Vacating district court’s order granting petitioner’s writ of habeas corpus. State court’s finding that Mr. Carmichael produced insufficient evidence to draw an inference that discrimination occurred in prosecution’s use of peremptory challenges was not unreasonable. Mr. Carmichael wholly relied on numerical evidence that prosecution used 29% of peremptory challenges to remove 75% of black venirepersons, but sample size was only 16 persons, no suggestion race would be an issue at trial, and two female African Americans ultimately served on jury. Court noted that while the evidence could reasonably support an inference of discrimination, arriving at the opposite conclusion was not unreasonable. (Issues: Batson and AEDPA)

Third Circuit

No published opinions issued in criminal cases.

Fourth Circuit

No published opinions issued in criminal cases.

United States v. King (unpublished)-Vacating the denial of a federal prisoner’s collateral attack on his convictions and ordering an evidentiary hearing on claim of ineffective assistance during plea negotiations.

Fifth Circuit

United States v. Brewer-Affirming  sentences for bank robbery. Joins other circuits (9th, 8th, 7th, and 6th) in concluding that federal bank robbery constitutes a crime of violence under § 4B1.2(a). Court found that an implicit threat to use force is required for a conviction of robbery by intimidation and appellants presented no case showing otherwise.  (Issue: Classification of crime of violence)

United States v. Diehl-Affirming district court order that the Bureau of Prisons turn over all but $1000 held in Mr. Diehl’s trust account as payment for criminal monetary penalties imposed at sentencing. (Issue: Criminal fines)

Sixth Circuit

Turner v. United States-Affirming the denial of a federal prisoner’s collateral attack on his robbery convictions based on ineffective assistance of counsel. Court held that precedent required finding Mr. Turner had no right to counsel in plea negotiations where federal charges not yet filed, but a state prosecution for the same criminal episode had begun. Mr. Turner was arrested by a joint federal-state anticrime task force for a series of robberies. (Issue: Right to counsel)

United States v. Tippett, Jr. (unpublished)-Affirming below-Guidelines sentence of 96 months for conspiracy charges arising from operating an oxycodone-distribution operation. Court found the district judge did not err in considering the danger oxycodone use causes the community in sentencing the defendant. (Issues: Procedural and substantive reasonableness of the sentence)

Seventh Circuit

United States v. Paxton-Reversing district court’s order suppressing covertly-recorded statement that the defendants made to one another while being transported in a police van immediately following their arrests. There was no search, because any expectation of privacy the defendants may have harbored in their conversations was objectively unreasonable where those conversations took place in a marked police vehicle. (Issue: Fourth Amendment search)

Long v. United States-Affirming summary denial of ineffective assistance claim. Although Court declined to apply plea agreement’s waiver of the right to collaterally attack conviction and sentence, petitioner failed to allege facts, which if true, would entitle him to relief on claim counsel was ineffective for failing to file a suppression motion.  (Issues: Ineffective assistance of counsel, Fourth Amendment)

United States v. Bradbury-Affirming conviction for violating 18 U.S.C. § 844(e), which arose out of the defendant’s Facebook post that described killing police and bombing police buildings. Rejecting defendant’s argument that the jury instruction on “maliciously” would have permitted a conviction even if the post was just a joke. (Issue: Jury instruction)

United States v. Peterson-Dismissing appeal in revocation of supervised release and conviction for possession of a firearm by a felon. Anders brief submitted.

Eighth Circuit 

United States v. WriceAffirming 108-month sentence for conspiring to distribute crack cocaine. (Issue: Procedural reasonableness of sentence)

United States v. Bevins-Affirming 300-month sentence for production, receipt, and possession of child pornography. (Issues: Procedural and substantive reasonableness of sentence)

United States v. ThigpenAffirming 120-month sentence for possession of a firearm and ammunition by a felon. Joining First and Eleventh Circuits in finding § 2K2.1(b)(4)(B) applicable where the serial number on the firearm’s frame is obliterated, even if other serial numbers are unaltered. (Issue: Procedural reasonableness of the sentence)

United States v. Adejumo-Vacating restitution order ordered in bank fraud and aggravated identity theft sentence. Government failed to provide sufficient evidence of ultimate losses suffered by the victims. Court declined to remand for a third restitution proceeding. (Issue: Burden of proof for restitution award)

United States v. Johnson-Affirming convictions and 354-month sentence for production of child pornography. Warrant to search Mr. Johnson’s mother’s residence eleventh months after photos were taken was not based on stale information and had sufficient nexus, where affidavit stated Mr. Johnson downloaded the photos onto a computer at his mother’s residence. Court declined to consider whether prior Minnesota conviction for criminal sexual conduct in the fifth degree qualified for enhancement under 18 U.S.C § 2251(e), because any error was harmless. (Issues: Existence of probable cause for warrant and procedural reasonableness of sentence)

United States v. Cottom (unpublished)-Affirming convictions for accessing with intent to view child pornography and receipt of child pornography. No abuse of discretion in denying Mr. Cottom’s motion to exclude government experts, because the Network Investigative Technique’s source code was not preserved. (Issues: Rule 41 notice delay and spoilation of evidence)


Ninth Circuit

No opinions issued in criminal cases.

Tenth Circuit

United States v. Collins-Reversing 12-month sentence following second supervised release revocation. Court joined 1st and 7th Circuits in concluding that the term “offense” in 18 U.S.C. § 3583(e)(3) refers to the original offense of conviction. Mr. Colllins should have been resentenced based on 3-year statutory maximum for his offense of conviction rather than the 1-year maximum calculated by using his violative conduct for the first revocation as the “offense.” (Issue: Supervised release revocation)

United States v. Duong-Reversing district court’s order dismissing the superseding indictment for failing to allege each element of the child sex trafficking charge. Prosecution could satisfy the mens rea requirement with respect to the age of the child victim by showing the defendant had a reasonable opportunity to view the victim. District court erred in dismissing the indictment by finding either knowledge of the victim’s age or reckless disregard of the victim’s underage status was required. (Issue: Statutory interpretation of 18 U.S.C. § 1591(c))

Eleventh Circuit

United States v. Votrobek– Affirming convictions and 180-month sentence for conspiring to distribute drugs, conspiring to launder money, substantive money laundering charges, and maintaining a place for unlawful drug distribution. (Issues: Double jeopardy, jury instruction on entrapment-by-estoppel, and Franks hearing)

United States v. VargasAffirming convictions for conspiracy to possess with intent to distribute and possession with intent to distribute. Prolonged length of traffic stop due to occupants’ lack of valid license, not officer’s desire to search the vehicle. Preventing driving without a license is lawful enforcement, not unlawful detention. (Issue: Fourth Amendment (length of traffic stop))

D.C. Circuit

United States v. Jackson-Affirming an above-Guidelines 42-month sentence for willfully failing to pay over federal employment taxes. Notes the issue of whether an inadequate § 994(w)(1)(B) Statement of Reasons submitted to the Sentencing Commission could ever affect the validity of an otherwise valid sentence, but declines to decide as there was no briefing on the issue. (Issue: Procedural reasonableness of sentence)

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