HELPFUL CASES JANUARY 2008

    1st Circuit Court of Appeals
    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
    6th Circuit Court of Appeals
    7th Circuit Court of Appeals
    8th Circuit Court of Appeals [None this update]
    9th Circuit Court of Appeals
    10th Circuit Court of Appeals 
    11th Circuit Court of Appeals [None this update]
    D.C. Circuit Court of Appeals
    California Court of Appeals
    Supreme Court of Florida 
    Illinois Courts of Appeal  [None this update]
    Wisconsin Court of Appeals

Federal Courts (January 1-31, 2008)

U.S. v. Urciuoli (1st Cir. 1/18/2008, No. 07-1297) 2008 U.S. App. LEXIS 1049: Mail fraud and conspiracy as part of a scheme to bribe a state legislator convictions vacated where jury instructions were over-broad.

U.S. v. Williams (3rd Cir. 12/31/2007, No. 05-4153) 510 F3d 416: The question of whether a defendant breaches his plea agreement is reviewed de novo, and the burden is on the government to prove the breach by a preponderance of the evidence. The same contract principles that apply in analyzing a government breach also apply to defendant breach cases.

U.S. v. Guanespen-Portillo (5th Cir. 1/15/2008, No. 06-51100) 2008 U.S. App. LEXIS 807: When the evidence clearly reflects a question of the voluntariness of a confession, the trial court must raise the issue on its own motion.

In re: McDonald (6th Cir. 1/10/2008, No. 06-4120) 2008 U.S. App. LEXIS 435: Permission to file a second or successive habeas corpus petition granted where key witness in the matter later claimed that she provided perjured testimony against petitioner.

U.S. v. Swafford (6th Cir. 1/17/2008, No. 06-5878) 2008 U.S. App. LEXIS 973: Conviction on two conspiracy counts suffered from an impermissible variance (duplicity) because in each charge there were multiple conspiracies with different participants; and 2) the district court erred by denying defendant's amended motion to strike or elect the substantive counts.

U.S. v. Ryals (7th Cir. 1/10/2008, No. 06-4373) 2008 U.S. App. LEXIS 445: Court abused its discretion in denying the defense counsel's motion to withdraw before the sentencing hearing.

U.S. v. Tyler (7th Cir. 1/10/2008, No. 06-2904) 2008 U.S. App. LEXIS 446: Officers who detained defendant did so without reasonable suspicion of criminal activity since they were mistaken about the law they believed defendant to have violated.

U.S. v. Shaaban (7th Cir. 1/28/2008, No. 06-2801) 2008 U.S. App. LEXIS 1800: IAC re: filing of petition for rehearing.

Cerezo v. Mukasey (9th Cir. 1/14/2008, No. 05-74688, 05-75213) 2008 U.S. App. LEXIS 712: A violation of California Vehicle Code (VC) 20001(a), which criminalizes leaving the scene of an accident resulting in bodily injury or death, is not categorically a crime involving moral turpitude for purposes of 8 U.S.C 1227(a)(2)(A)(ii).

Frantz v. Hazey (9th Cir. 1/22/2008, No. 05-16024) 2008 U.S. App. LEXIS 1191: Petitioner's Sixth Amendment right to self representation was violated when standby counsel had an in-chambers discussion without his presence or consent. The appellate court reversed the district court’s denial of a habeas petition challenging the petitioner’s exclusion from a chambers conference in which his advisory counsel participated and discussed how the judge should respond to a query from the deliberating jury. Reviewing de novo the petitioner’s Sixth Amendment claim regarding his exclusion from the chambers conference, the court held that because a pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury, standby counsel’s solo participation in the conference could have violated the petitioner’s right to self-representation. The panel remanded to the district court for an evidentiary hearing concerning the circumstances during the course of the trial and after the jury retired that gave rise to the petitioner’s exclusion from the conference, including whether he was accurately informed of the purpose of the conference and given the opportunity to appear but declined to do so, and for a determination whether the petitioner’s Faretta/McKaskle rights to self-representation were violated by that exclusion.

Estrada v. Scribner (9th Cir. 1/23/2008, No. 06-55013) 2008 U.S. App. LEXIS 1256: Juror affidavits detailing jury discussions are admissible evidence. The appellate court affirmed the district court’s denial of a habeas corpus petition challenging a conviction for second degree murder and taking a vehicle without the owner’s consent. It affirmed the district court’s determination that under FRE 606(b) it could not consider certain portions of the jurors’ affidavits proffered by the petitioner because they addressed the subjective effect of evidence on particular jurors, but that it could consider juror testimony about extrinsic evidence improperly brought to the jury’s attention. The panel held that the district court and the state courts erred in finding inadmissable portions of declarations discussing a juror’s introduction of his mother’s murder into sentencing discussions because the mother’s murder became extrinsic evidence.

U.S. v. Lococo (9th Cir. 1/28/2008, No. 05-50550) 2008 U.S. App. LEXIS 1791: Court erred in sentencing defendant under 21 USC 841(b)(1)(B) based on the amount of crack "involved" in the conspiracy, without finding that defendant knew or could reasonably have foreseen that the conspiracy involved crack. (Amended opinion.)

U.S. v. Banks (9th Cir. 1/29/2008, No. 05-10053) 2008 U.S. App. LEXIS 1867: District court erred by instructing the jury that it could convict defendant under the VICAR statute if it found that any element of his motivation in assaulting a rival gang member was to maintain his membership in his gang. Convictions for use of a firearm in furtherance of a crime of violence are also reversed as they were predicated on the VICAR convictions. (Amended opinion.)

U.S. v. Hill (10th Cir. 1/15/2008, No. 07-3034) 2008 U.S. App. LEXIS 878: A conviction for being a felon in possession of a firearm is reversed where at no time was defendant subject to a sentence greater than one year for a prior Kansas conviction, and thus he did not have a qualifying conviction for purposes of 18 USC 922(g)(1).

U.S. v. Lacey (D.C. Cir. 1/8/2008, No. 06-3051) 511 F3d 212: Conviction for theft and distribution of cocaine base reversed for failure to instruct on issues of whether cocaine base was smokable or that it was crack.

U.S. v. Sheehan (D.C. Cir. 1/11/2008, No. 07-3002) 2008 U.S. App. LEXIS 479: Conviction of Iraq War protester Cindy Sheehan for demonstrating without a permit on the White House sidewalk is reversed because the charged crime that did not exist and she was prevented from offering a viable defense.

State Courts (January 1-January 31, 2008)

Selected Decisions:

California Courts of Appeal

People v. Lawrence (1/2/2008, B193831) 158 CA4th 685: Where the defendant waived his right to counsel and invoked his right to self-representation under Faretta, after trial court adequately advised him of dangers and advised him he would be afforded no special treatment, and waiver form defendant completed notified him of his rights and warned him about disadvantages of self-representation with specificity, defendant's waiver was knowing and voluntary. However, where the defendant changed his mind during jury selection and requested the appointment of counsel at that time and also at the close of jury selection, the court abused its discretion in denying defendant's request at end of first day of trial, (People v. Elliott (77) 70 CA3d 984, 997-998; People v. Hill (83) 148 CA3d 744, 760), even though the right to reobtain counsel is not absolute. (See Id. at 993). Most courts in California have not found the error to be structural, People v. Ngaue (1991) 229 CA3d 1115, 1126, People v. Elliott, supra 70 Cal.App.3d at p. 998), but this court found that the error was "structural" and required reversal without analysis of prejudicial effect because deprivation of counsel at a critical stage of a criminal trial constitutes federal constitutional error affecting framework within which trial proceeds with consequences that are necessarily unquantifiable and indeterminate. (United States v. Gonzalez-Lopez (2006) 548 US (165 LEd2d 409; 126 SCt 2557].)

People v. Paredes (1/16/2008, E040123) 158 CA4th 1516: Disqualification and removal of appellant's court-appointed counsel was an abuse of discretion. The error did not violate Noriega's right to counsel under the federal Constitution, but it did violate his right to counsel as guaranteed by the state Constitution. The error was reversible per se. The violation of the right to counsel defies a harmless error analysis; its consequences are necessarily unquantifiable and indeterminate.

Williams v. State of Florida (1/10/2008, No. SC05-226, SC05-1579) 2008 Fla. LEXIS 5: IAC for failure to present certain mitigating evidence at the penalty phase of a death penalty trial.

State of Florida v. Lopez (1/10/2008, No. SC05-88) 2008 Fla. LEXIS 1: Prior discovery deposition of a declarant by defendant's counsel did not qualify as a "prior opportunity for cross-examination" under Crawford, and the admission of the testimonial statement at trial violated defendant's confrontation rights.

Green v. State of Florida (1/31/2008, No. SC06-211) 2008 Fla. LEXIS 135: Death sentence vacated based on substantial mental health mitigation presented, including evidence that for years defendant has suffered from schizophrenic disorders, as death sentence was disproportionate.

State v. Edmunds (Wis. Ct. App. 1/31/2008, No. 2007AP933) 2008 Wisc. App. LEXIS 91: Conviction thrown out and new trial ordered because latest research into shaken baby syndrome might prove defendant didn't kill a baby in her care. In overturning the conviction the court cited the fierce debate that has developed over whether babies can die through shaking alone, whether they can stay alive for a time after receiving traumatic head injuries and whether symptoms similar to those associated with shaking can be caused by other factors.