Roundup of Criminal Law Decisions in the Circuits (02/20/17-2/24/17)

Summary of published decisions in criminal cases from the federal courts of appeals, along with a sampling of unpublished criminal and prisoner cases.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. Galatis-Affirming convictions for healthcare fraud offenses. (Issues: Absence of limiting instruction in admitting co-conspirator’s guilty plea, lay witnesses’ testimony on understanding of Medicare terms, expert testimony on Medicare’s regulatory regime, and rejection of defense’s jury instruction on “face-to-face encounter” requirements of Medicare regulations)

United States v. Phillipos-Affirming false statements convictions stemming from defendant’s possible participation in removing and disposing a backpack from Dzhokhar Tsarnaev’s dorm room. (Issues: Requiring the defendant submit to cross-examination to hold a preliminary hearing on the confession’s admissibility and failing to make conclusive voluntariness determination prior to admitting the confession into evidence)

United States v. Valenzuela-Affirming conviction and 210-month sentence for conspiracy to distribute and possess with intent to distribute controlled substances. (Issues: Conspiracy’s jurisdictional nexus to the U.S., whether venue was manufactured, jury instructions on venue and jurisdictional nexus, and substantive reasonableness of sentence)

United States v. Troisi-Affirming convictions for conspiracy to commit healthcare fraud and healthcare fraud in submitting $27.6 million in false claims to the government. (Issues: Whether government presented sufficient evidence on requisite state of mind)

United States v. Bray-Affirming convictions for criminal securities fraud charges. (Issues: Sufficiency of the evidence and jury instructions on requisite mental state)

Second Circuit

United States v. Natal-Vacating conviction for destruction and concealment of evidence and remanding for resentencing, but affirming all other convictions arising from a drug conspiracy. Court joined 7th and 10th Circuits by holding that  testimony on how cell phone towers operate constitutes expert testimony and may not be introduced through a lay witness. Defendant painting his blue van black could not support destruction of evidence conviction following Yates v. United States. District court erred in Guidelines calculation; three counts of being an accessory after the fact to arson must be grouped together under § 3D1.2.

Darnell v. City of New York-Vacating summary judgment in favor of government officials where 20 individual plaintiffs claimed an array of  degrading confinement conditions at a temporary holding facility for pretrial detainees awaiting arraignment. Second Circuit found genuine disputes of material facts existed as to the challenged conditions of confinement, individual defendants’ knowledge of those conditions, the failure to remedy those conditions, and New York City’s liability. Court joined Ninth Circuit in finding that deliberate indifference should be defined objectively for a claim of a due process violation. Also, Court noted that short length of exposure to confinement conditions may weigh on damages, but not the absence of a constitutional deprivation.

Third Circuit

United States v. Brown-Affirming conviction of using a communication to facilitate a drug crime and sentence. Court found use of dual juries not per se unconstitutional. (Issues: dual juries and defendant’s burden to object at sentencing)

United States v. Douglas-Reversing obstruction of justice sentencing enhancement. Record did not support application of obstruction of justice enhancement based on defendant’s failure to appear on the first day of trial, where defendant submitted medical records showing he was in emergency room receiving treatment that day. Also, Court found an airport employee granted a security clearance can reasonably be viewed as occupying a position of public trust.

United States v. Jackson-Affirming conviction for conspiracy to possess with intent to distribute cocaine. Court adopts the “listening post” theory that under Title III either the interception of or the communications themselves must have been within the judge’s territorial jurisdiction. Court found parts of a detective’s testimony improper, including his understanding of the meaning of clear conversations, and the detective provided argument in the guise of evidence, but error not plain.  (Issues: Validity of federal wiretap that used state-wire-tap-based affidavits to establish probable cause, Rule 701(b)’s helpfulness requirement in explaining meaning of recorded conversations, admission of testimony on co-conspirators’ convictions and guilty pleas, and prosecutor’s mention of a witness’s invocation of the Fifth Amendment in front of the jury)

Fourth Circuit

No published decisions in criminal cases.

Fifth Circuit

Mabry v. Lee County-Court found part of a routine intake procedure at a juvenile detention center that included a visual strip and cavity search of a 12-year old detained for simple assault did not violate the Fourth Amendment. Court determined Florence‘s burden allocation applied and the plaintiff failed to set forth evidence that the search policy was not reasonably related to legitimate penological interests.

United States v. Massey-Affirming conviction of firearm possession by a felon. (Issues: Sufficiency of the evidence and constitutionality of statute under Second Amendment, the Commerce Clause, and Ex Post Facto Clause))

United States v. Olson-Affirming conviction and sentence for possession with the intent to distribute and sentence. (Issue: application of career-offender guideline)

Ruiz v. Stephens-Denying motion to recall mandate issued in 2013 opinion denying petitioner’s request for certificate of appealability. habeas case

United States v. Bays (unpublished)-Reversing convictions for conspiracy to distribute a controlled substance analogue and one defendant’s conviction for possession of a firearm and use of a communication facility. Jury instructions on knowledge erroneous in light of McFadden v. United States‘s holding that even in prosecutions involving an analogue the government must prove the defendant knew what he was dealing was a controlled substance.

Sixth Circuit

Thomas v. Westbrooks-Reversing district court’s denial of the writ of habeas corpus. Prosecutor’s failure to disclose $750 payment by FBI to a key witness prior to trial violated Brady v. Maryland. Court rejected the government’s contention that the key witness had been thoroughly impeached at trial as “no  bar to finding that evidence of her pecuniary bias against [the petitioner] is material under Brady.” Court declined to “conclusively” decide whether State committed prosecutorial misconduct by its knowing failure to correct the key witness’s false testimony about her receipt of reward money. The Court, however, intimated it likely would have answered in the affirmative. Judge Siler dissented, because he believed the payment was not prejudicial under Brady.

Thomas v. United States (companion case to the case immediately above)-Affirming denial of habeas petition under 28 U.S.C. § 2255. Brady claim failed, because petitioner failed to show the witness had knowledge before her federal trial that she would receive the money or that she made a deal to testify in lieu of being prosecuted. Also, rejected an array of ineffective assistance claims, including that counsel was ineffective for failing to request a severance of the counts or a limiting jury instruction, failing to present evidence that another individual committed the offense, and failing to investigate alibi testimony. failed to show key witness had knowledge.

Witzke v. Brewer-Dismissing appeal of a State order revoking petitioner’s parole as moot. Petitioner’s re-release on parole deprived Court of jurisdiction to review due process challenge to his 2014 parole revocation.

Seventh Circuit

United States v. Jenkins-Reversing defendant’s § 924(c) conviction for using or possessing a weapon during the commission of a crime of violence, namely kidnapping, in light of Johnson. Residual Clause of § 924(c)(3)(B) had recently been found unconstitutionally vague by the Seventh Circuit and Court found kidnapping was not a crime of violence under the Force Clause.

Eighth Circuit

United States v. Petersen-Affirming revocation of supervised release and 8-month sentence. (Issues: Sufficiency of evidence and substantive reasonableness of the sentence)

United States v. Bacon-Affirming 60-month, upward varying sentence for possession of a firearm by a felon. (Issue: Substantive reasonableness of the sentence)

United States v. Swisshelm-Vacating 366-day sentence for bank fraud and money laundering. Defendant violated the parties’ plea agreement, which stated that the defendant agreed not to “seek a downward departure from the Guidelines or a sentence outside the Guidelines range[,]” by arguing for a sentence below the Guidelines range. Court found the particular circumstances of the case did not warrant treating the defendant’s breach differently from a breach by the government, nor was the breach was harmless. The Court, however, declined to decide the proper remedy for any future defendant’s breach of a plea agreement or whether remand for resentencing before a different judge would be required where defendant’s breach was harmless.

United States v. Mikawa-Affirming district court’s denial of the defendant’s release from a psychiatric hospital due to a substantial risk of danger to others two years after the defendant was found not guilty by reason of insanity in a false impersonation case.

United States v. Huyck-Affirming convictions for child pornography-related crimes. (Issues: whether search warrant was stale, admission of certain exhibits under Rule 403, sufficiency of the evidence, and whether jury confusion warranted a new trial)

Ninth Circuit

No published decisions in criminal cases.

Tenth Circuit

United States v. Wright-Affirming convictions for conspiracy and bank fraud and the attendant 33-month sentence and restitution order. (Issues: whether it was clear error to omit intent to defraud element from listed elements of conspiracy to commit bank fraud, whether it was clear error to direct the jury to consider each indictment count separately in response to a question from the jury, whether failing to provide a Victim Impact Statement was a Brady violation, procedural reasonableness of the sentence (loss calculation), and whether court erred in calculating restitution amount)

United States v. Russian-Affirming convictions for possession of a firearm and ammunition by a felon, possessing a firearm in furtherance of a drug trafficking crime, and possession of marijuana with the intent to distribute, but remanding for resentencing. District court improperly calculated Guidelines where PSR relied on a 15-year-old felony conviction that was too old to score.Warrant authorizing search of defendant’s residence and seizure of any cell phones found inside failed to meet the particularity requirement. The warrant did not identify either of the phones already in law enforcement’s custody, nor did it specify what material (e.g., text message, photos, or call logs) law enforcement was authorized to seize. But, the good faith exception applied.  (Issues: Whether warrant satisfied particularity requirement and procedural reasonableness of the sentence)

United States v. C.D.-Vacating denial of defendants’ motions to reduce their sentences under 18 U.S.C. § 3582(c)(2) and remanding with instructions to dismiss the motions for want of subject-matter jurisdiction. Districtcourt’s initial sentence calculation was “based on” the statute establishing the mandatory minimum rather than the applicable guideline range. “A district court has no authority to consider a § 3582(c)(2) motion where a defendant’s criminality qualifies him for a statutorily-mandated minimum sentence above an otherwise applicable guideline range, even when a guideline amendment subsequently lowers that range.”

United States v. Thomas-Affirming robbery convictions. Court found Perry‘s holding that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances by law enforcement applies to in-court identifications. The defendant lacked a factual predicate for a judicial reliability assessment of the in-court identification. (Issues: Sufficiency of the evidence, severance, and an in-court identification)

 

Eleventh Circuit

Phillips v. United States-Affirming in part and vacating in part the district court’s denial of the petitioner’s 28 U.S.C. §  2255 motion to vacate his sentence. Petitioner’s conviction for conspiring to distribute less than five grams required reversal due to Giglio error. An officer provided false trial  testimony and the government acknowledged it could not meet its burden of demonstrating Ghent’s testimony was immaterial.

Cadet v. Florida Dept. of Corrections-Upon petitioner filing for rehearing en banc, the panel  withdraws its previous opinion and issues new opinion to clarify its decision. Court affirmed the district court’s dismissal of the habeas petition as untimely, because missing the filing deadline due to attorney’s grossly negligent misunderstanding of the law does not justify equitable tolling. Judge Wilson dissented.

D.C. Circuit

United States v. Borda-Affirming convictions for conspiring to distribute five kilograms or more of cocaine knowing and intending that the cocaine would be unlawfully imported into the United States, but remanding for resentencing. Court rejected procedural and substantive challenges to the sentence, but remanded for resentencing in light of the retroactive amendment to the cocaine sentencing guidelines. (Issues: Sufficiency of the evidence, four evidentiary rulings, prosecutorial misstatements during closing argument, limitation on defendant’s closing argument, district court’s failure to properly identify for the jury which portion of the testimony and exhibits were struck from the record, whether the government’s delay in disclosing DEA reports and withholding of a draft report by a DEA agent violated Brady)

United States v. Ross-Vacating conviction for failing to register as a sex offender. Reversing district court and vacating conviction. Act did not apply to pre-SORNA offenders at the time of Ross’s charged conduct because of the Attorney General’s APA violations. Judge Millett concurred in part, dissented in part, and dissented from the judgment.

 

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