HELPFUL CASES AUGUST 2009

    United States Supreme Court [None this update]
    1st Circuit Court of Appeals [None this update]
    2nd Circuit Court of Appeals [None this update]
    3rd Circuit Court of Appeals
    4th Circuit Court of Appeals [None this update]
    5th Circuit Court of Appeals [None this update]
    6th Circuit Court of Appeals 
    7th Circuit Court of Appeals 
    8th Circuit Court of Appeals 
    9th Circuit Court of Appeals 
    10th Circuit Court of Appeals 
    11th Circuit Court of Appeals 
    D.C. Circuit Court of Appeals [None this update]
    Supreme Court of Delaware [None this update]
    Supreme Court of Florida [None this update]
    New York Court of Appeals [None this update]
    Illinois Supreme Court [None this update]
    Texas Criminal Court of Appeals [None this update]

Federal Courts (August 1-31, 2009)

Selected Decisions:

U.S. v. Tann (8/24/2009, 3rd Cir. No. 08-2378) 577 F3d 533 – Multiplicity: Possession Of A Firearm And Ammunition: Defendant's possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction under 18 USC 922(g)(1).

Bigelow v. Haviland (8/6/2009, 6th Cir. No. 07-3340) 576 F3d 284 – IAC: Failure To Investigate: Defense counsel did not reasonably investigate petitioner's alibi defense, and the evidence against petitioner was based solely on the testimony of two eyewitnesses with obscured views.

U.S. v. Williams (8/4/2009, 7th Cir. No. 08-1470) 576 F3d 385 – Denial Of Continuance As Reversible Error: District court abused its discretion in denying defendants' motion for a continuance as the record shows no reason to deny a continuance and several compelling reasons to grant one.

U.S. v. Dooley (8/20/2009, 7th Cir. No. 08-4131) 2009 U.S. App. LEXIS 18719: Wire Fraud (18 USC 1343): Failure To Prove Transmission Of Wire Communication: The government failed to prove an element of the wire fraud charge: that the defendant transmitted or caused to be transmitted a wire communication.

U.S. v. Salem (8/25/2009, 7th Cir. No. 08-2034) 2009 U.S. App. LEXIS 19088: Brady: Right To Make Showing That Undisclosed Evidence Was Material: Defendant never had a sufficient opportunity to make a showing of whether Brady evidence was material.

U.S. v. Hayes (8/3/2009, 8th Cir. No. 08-2245) 574 F3d 460: Health Care Fraud: Evidence Insufficient To Prove False Statement.

U.S. v. Rush-Richardson (8/4/2009, 8th Cir. No. 08-2414) 574 F3d 906: Conviction for drug crimes and firearms possession is reversed where a jury instruction defining the elements of the offense under 18 USC 924(c)(1)(A) was erroneous and affected defendant's substantial rights as it allowed defendant to be convicted on a lower standard.

Bobadilla v. Carlson (8/6/2009, 8th Cir. No. 08-3010) 575 F3d 785: Crawford: Statements Of Victim To Social Worker In Presence Of Detective: Minnesota Supreme Court unreasonably applied Crawford v. Washington when it found petitioner's Sixth Amendment Confrontation Clause rights were not violated by the admission of statements the victim made to a social worker in the presence of a detective, as the statements were testimonial in nature.

U.S. v. Foster (8/14/2009, 8th Cir. No. 08-2344) 575 F3d 861: Due Process/Notice At Sentencing: Procedure employed by the court with respect to the motion for reduction of sentence was an abuse of discretion as the defendant was not provided with a copy of the probation office's memorandum regarding defendant's motion for reduction of sentence and was unable to answer the negative information in the memo.

18 USC 924 describes two separate crimes: (1) carrying or using a firearm during and in relation to a crime of violence or drug trafficking crime; and (2) possessing a firearm in furtherance of a crime of violence or drug trafficking crime. (United States v. Gill (8th Cir. 2008) 513 F3d 836, 850; United States v. Gamboa (8th Cir. 2006) 439 F3d 796, 810.)

The USSC has defined the "in relation to" crime in terms of facilitation of the underlying crime.

In Smith v. United States (1993) 508 US 223, the Supreme Court stated:

"in relation to" thus, at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident of coincidence. As one court has observed, the "in relation to" language "allay[s] explicitly the concern that a person could be" punished under § 924(c)(1) for committing a drug trafficking offense "while in possession of a firearm" even though the firearm's presence is coincidental or entirely "unrelated" to the crime. Instead, the gun at least must "faciliat[e], or hav[ve] the potential of facilitating," the drug trafficking offense." (Smith, 508 US 223, 238 [124 LEd 2d 138; 113 SCt 2050] [citations omitted].)

Therefore, "in furtherance of" should not be defined in terms of facilitation because "in furtherance of" is a slightly higher level of participation than "during and in relation to." See Gamboa, 439 F.3d at 810; Kent at 655.

Instead, "in furtherance" should be given its plain meaning, "the act of furthering, advancing, or helping forward." (United States v. Hamilton (8th Cir. 2003) 332 F3d 1144, 1149, quoting United States v. Lomax (4th Cir. 2002) 293 F3d 701, 705.) "In furtherance of" is not a factual requirement that the firearm advance the crime, but rather a requirement that the person possess the gun with the intent of advancing the crime. (See Hamilton, 332 F3d at 1149 ["The evidence tended to show that Hamilton's shooting at his customers was intended to frighten them into returning approximately four ounces of cocaine that he believed one of them had stolen."].)

Richter v. Hickman (8/10/2009, 9th Cir. No. 06-15614) 2009 U.S. App. LEXIS 17821: IAC: Failure To Consult Forensic Expert.

U.S. v. Reyes (8/18/2009, 9th Cir. No. 08-10047) 2009 U.S. App. LEXIS 18426: Prosecutorial Misconduct in Making a False Assertion of Material Fact to the Jury in Closing Argument.

U.S. v. Hector (8/18/2009, 9th Cir. No. 08-30271) 2009 U.S. App. LEXIS 18413: Multiplicity: Possession And Receipt Of Pornography: Court erroneously failed to exercise its discretion in determining whether to vacate defendant's receipt conviction or his possession conviction to avoid double jeopardy concerns.

U.S. v. Harrison (8/19/2009, 9th Cir. No. 08-10391) 2009 U.S. App. LEXIS 18600: Assault (18 USC 111): Definition Of Force: Jury instruction erroneously defined "force" by equating it with physical intimidation.

U.S. v. Commanche (8/24/2009,10th Cir. No. 08-2257) 2009 U.S. App. LEXIS 18986: Assault: Improper To Admit Prior Battery Conviction: Because the prior battery convictions bore on defendant’s his intent only if a jury first inferred that he was prone to violence, and the district court abused its discretion by allowing testimony as to the facts underlying the battery convictions.

U.S. v. Bonilla (8/18/2009, 11th Cir. No. 08-12127) 2009 U.S. App. LEXIS 18431: Multiplicity: Wire Fraud: Wire fraud counts of the indictment were multiplicitous and violative of the Double Jeopardy clause.

U.S. v. McIntosh (8/27/2009, 11th Cir. No. 08-15449) 2009 U.S. App. LEXIS 19204: Double Jeopardy: Dismissal After Plea Of Guilty: Defendant may not be indicted again for the same offenses without violating the Double Jeopardy Clause when the government obtained a dismissal of the original indictment after the defendant pleaded guilty to it.

U.S. v. Gomez (8/28/2009, 11th Cir. No. 09-11031) 2009 U.S. App. LEXIS 19330: Identity Theft: Knowledge That Identification Belonged To Actual Person: Court erred by failing to instruct the jury that the word "knowingly" in 18 USC 1028A(a)(1) requires proof that he knew the means of identification belonged to an actual person.