HELPFUL CASES

U.S.S.C. CASE LAW UPDATE – Selected Cases From The United States Supreme Court (October 2005-July 2006)

SELECTED STATE AND FEDERAL CASES FAVORABLE TO THE DEFENSE – Selected Federal And State Cases
    1st Circuit
    2nd Circuit
    3rd Circuit
    4th Circuit
    5th Circuit
    6th Circuit
    7th Circuit
    8th Circuit
    9th Circuit
    10th Circuit
    11th Circuit
    U.S. District of Columbia Circuit Court of Appeals
    California Supreme Court
    California Courts of Appeal
    New York Court of Appeals
    Texas Criminal Court of Appeals

Selected Decisions:

Dye v. Hofbauer (10/11/2005, 04-8384) ____ US ____ [163 LEd2d 1; 126 SCt 5]: Denial of plaintiff’s habeas corpus petition is reversed where the Michigan Court of Appeals incorrectly ruled that his prosecutorial misconduct claim was presented improperly.

Schriro v. Smith (10/17/2005, 04-1475) ____ US ____ [163 LEd2d 6; 126 SCt 7]: The Ninth Circuit Court of Appeals exceeded its limited authority on habeas review when it commanded the Arizona courts to conduct a jury trial to resolve defendant-death row inmate’s mental retardation claim.

Eberhart v. US (10/31/2005, 04-9949) ____ US ____ [163 LEd2d 14; 126 SCt 403]: Federal Rule of Criminal Procedure 33, which allows a district court to vacate any judgment and grant a new trial if the interest of justice so requires, is an inflexible claim-processing rule, and the Seventh Circuit incorrectly construed its time limitations as jurisdictional.

Bradshaw v. Richey (11/28/2005, 05-101) ____ US ____ [163 LEd2d 407; 126 SCt 602]: Grant of habeas corpus relief for defendant on his arson conviction is vacated where the circuit court erred in: 1) holding that transferred intent was not a permissible theory for aggravated felony murder under Ohio law, resulting in insufficient evidence of direct intent for a conviction; and 2) finding ineffective assistance of counsel under Strickland v. Washington (1984) 466 US 668.

Brown v. Sanders (1/11/2006, 04–980) ____ US ____ [163 LEd2d 723; 126 SCt 884]: With regard to the imposition of a death sentence, an invalidated sentencing factor, whether an eligibility factor or not, will render a sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process, unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.

Gonzales v. Oregon (1/17/2006, 04–623) ____ US ____ [163 LEd2d 748; 126 SCt 904]: The Controlled Substances Act does not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure.

Rice v. Collins (1/18/2006, 04–52) ____ US ____ [163 LEd2d 824; 126 SCt 969]: Grant of habeas corpus relief from a state conviction for possession of cocaine with intent to distribute pursuant to defendant’s Batson challenge is reversed where the circuit court improperly substituted its evaluation of the record for that of the state trial court.

Oregon v. Guzek (2/22/2006, 04–928) ____ US ____ [163 LEd2d 1112; 126 SCt 1226]: The Constitution does not prohibit a state from limiting the innocence-related evidence a capital defendant can introduce at a sentencing proceeding to the evidence introduced at the original trial.

Scheidler v. Nat’l Org. for Women, Inc. (2/28/2006, 04–1244) ____ US ____ [164 LEd2d 10; 126 S Ct 1264]: Physical violence unrelated to robbery or extortion falls outside the scope of the Hobbs Act.

Salinas v. United States (4/24/2006, 05-8400) ____ US ____ [164 LEd2d 364; 126 SCt 1675]: Judgment vacated and remanded where the court erred in treating a prior conviction for simple possession as a "controlled substance offense" for sentencing guideline purposes, since that term requires elements other than simple possession.

Holmes v. South Carolina (5/1/2006, 04–1327) ____ US ____ [164 LEd2d 503;126 SCt 1727]: A criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce evidence of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.

Zedner v. U.S. (6/5/2006, 05–5992) ____ US ____ [164 LEd2d 749; 126 SCt 1976]: A defendant may not prospectively waive the application of the Speedy Trial Act. For purposes of the Speedy Trial Act, when a district court makes no findings on the record to support an "ends of justice" continuance under 18 USC. 3161(h)(8), harmless-error review is not appropriate.

House v. Bell (6/12/2006, 04–8990) ____ US ____ 165 LEd2d 1;126 SCt 2064]: Denial of habeas relief for petitioner in a death penalty murder is reversed case where defendant made the stringent showing required by the actual-innocence exception to procedural default, and defendant’s federal habeas action could proceed.

Dixon v. U.S. (6/22/2006,05–7053) ____ US ____ [165 LEd2d 299; 126 SCt 2437]: Conviction for receiving a firearm while under indictment and making false statements in connection with the acquisition of firearm affirmed over a claim that trial judge’s instructions to the jury erroneously required defendant to prove duress by a preponderance of the evidence instead of requiring the government to prove beyond a reasonable doubt that she did not act under duress.

Davis v. Washington (6/19/2006, 05–5224, 05–5705) ____ US ____ [165 LEd2d 224; 126 SCt 2266]: In the context of determining whether statements are testimonial for hearsay purposes, statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency; they are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

U.S. v. Gonzalez-Lopez (6/26/2006, 05–352) ____ US ____ [165 LEd2d 409; 126 SCt 2557]: A trial court’s erroneous deprivation of a criminal defendant’s choice of counsel is not subject to harmless-error analysis and entitles the defendant to reversal of his conviction.

Kansas v. Marsh (6/26/2006, 04–1170) ____ US ____ [165 LEd2d 429; 126 SCt 2516]: Kansas’ capital sentencing statute, which requires the imposition of the death penalty when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, is constitutional.

Washington v. Recuenco (6/26/2006, 05–83) ____ US ____ [165 LEd2d 466; 126 SCt 2546]: Failure to submit a sentencing factor to the jury is not structural error.

Clark v. Arizona (6/29/2006, 05-5966) ____ US ____ [165 LEd2d 842; 126 SCt 2709]: Due process does not prohibit state’s use of insanity test stated solely in terms of capacity to tell right from wrong; or in restricting consideration of defense evidence of mental illness and incapacity to claim of insanity, eliminating its significance on issue of mental element (mens rea) of crime. [Note: this decision does not limit juror consideration of diminished actuality as to any mental element of the crime.]

Grants of Certiorari:

Youngblood v. W. Virginia (6/19/2006, 05–6997) ____ US ____ [165 LEd2d 269 ; 126 SCt 2188]: (State v. Youngblood (2005) 217 W. Va. 535, 618 S.E.2d 544) certiorari is granted and a judgment of a state supreme court affirming a denial of a new trial for defendant is vacated where defendant had clearly presented a federal constitutional Brady claim to the state supreme court. Inmate contended that a note shown to, but ignored by, a law enforcement officer squarely contradicted the prosecution’s account of the incidents and directly supported the inmate’s consensual-sex defense; withholding the exculpatory evidence violated the inmate’s constitutional rights.

SELECTED STATE AND FEDERAL CASES FAVORABLE TO THE DEFENSE – Selected Federal And State Cases

Selected Decisions:

U.S. v. Pacheco (1/19/2006, 1st Cir. No. 04-1882) 434 F3d 106 [Improper for judge to vacate partial directed verdict in favor of defendant].

U.S. v. Hernandez-Rodriguez (4/6/2006, 1st Cir. No. 05-1121) 443 F3d 138 [Abuse of discretion for failure to adequately consider new evidence on motion for new trial; remand to different judge].

Healy v. Spencer (6/27/2006, 1st Cir. No. 06-1269) 2006 U.S. App. LEXIS 16099 [Brady violation was prejudicial].

Rodriguez v. Miller (2/17/2006, 2nd Cir. No. 04-6665) 439 F3d 68 [Closure order excluding defendant’s mother and brother during the testimony of an undercover officer violated Sixth Amendment right to public trial].

U.S. v. Quattrone (3/20/2006, 2nd Cir. No. 04-5007) 441 F3d 153 [(1) "While it may not always be erroneous to fail to give an instruction, a charge which is given must be correct. [Citation.]"]; (2) Instructions must require jury to find that the defendant knew his actions were "likely to affect the . . . proceeding"].

Hanson v. Phillips (3/30/2006, 2nd Cir. No. 04-0940) 442 F3d 789 [Defendant did not intelligently and voluntarily pleaded guilty, as required under Boykin].

Smith v. Hollins (5/15/2006, 2nd Cir. No. 03-2250) 448 F3d 533 [State court failed to make the requisite particularized findings necessary to justify the decision excluding defendant’s brother and sister during testimony of two undercover officers, unless they consented to sitting behind a screen].

U.S. v. Gaines (7/20/2006, 2nd Cir. No. 04-5616) 2006 U.S. App. LEXIS 1828: [(1) Disapproving instructions that highlight a testifying defendant’s "deep personal interest" in the outcome of a trial and recommending that a witness’s interest in the outcome of the case be addressed in the court’s general charge concerning witness credibility; if the defendant has testified, the trial court should tell the jury to evaluate the defendant’s testimony in the same way it judges the testimony of other witnesses; (2) Informing jury that testifying defendant has a "motive to lie" dilutes the presumption of innocence because it is a "guilt- assuming hypothetical"; (3) Jury should be instructed to judge the testimony of the defendant in the same manner as any other witness].

U.S. v. Jackson (4/5/2006, 3rd Cir. No. 05-1454) 443 F3d 293 [Possession of a controlled substance with intent to distribute under 21 USC 841(a)(1) is a lesser-included offense of possession of a controlled substance with intent to distribute within 1,000 feet of a school 21 USC 860(a)].

Rolan v. Vaughn (4/18/2006, 3rd Cir. No. 04-4322) 445 F3d 671 [IAC for failure to investigate self-defense witnesses].

U.S. v. Jones (6/28/2006, 3rd Cir. No. 05-3001) 452 F3d 223 [(1) Defendant did not express a clear and unequivocal desire to proceed pro se; (2) Waiver of right to counsel was not knowingly and intelligently waived].

Harrington v. Gillis (7/11/2006, 3rd Cir. No. 02-2419) 2006 U.S. App. LEXIS 17275 [Counsel ineffective for failing to file notice of appeal].

U.S. v. Brownlee (7/18/2006, 3rd Cir. No. 04-4134) 2006 U.S. App. LEXIS 18047 [(1) Error to exclude expert testimony regarding the reliability of the eyewitness identification evidence]; (2) Miranda violation].

U.S. v. Stitt (3/24/2006, 4th Cir. No. 05-10, 05-11) 441 F3d 297 [(1) Counsel had actual conflict of interest that adversely affected representation of defendant during penalty phase; (2) Counsel failed to ask the court to appoint an expert qualified to testify about defendant’s propensity for future dangerousness].

U.S. v. Milam (4/6/2006, 4th Cir. No. 04-4224, 04-4225) 443 F3d 382 [District court violated defendants’ Sixth Amendment rights when it relied on facts stated in the presentence report to enhance the defendants’ sentences beyond the statutory maximum].

Conaway v. Polk (7/11/2006, 4th Cir. No. 04-20) 2006 U.S. App. LEXIS 17304 [Remanded for an evidentiary hearing on juror bias claim].

U.S. v. Bradley (7/25/2006, 4th Cir. No. 02-4390, 02-4393, 02-4402) 2006 U.S. App. LEXIS 18586 [Judge impermissibly participated in plea negotiations and repeatedly encouraged defendants to plead guilty].

U.S. v. Hardin (1/23/2006, 5th Cir. No. 05-50312) 437 F3d 463 [Error to deny defendant’s request for expert appointment under the Criminal Justice Act].

U.S. v. Cuellar (2/22/2006, 5th Cir. No. 05-10065) 441 F3d 329 [Insufficient evidence of international money laundering (18 USC 1956(a)(2)(B)(I))]

Tennard v. Dretke (3/1/2006, 5th Cir. No. 00-20915) 442 F3d 240 [Defendant’s jury did not have an adequate vehicle during the capital sentencing phase to give mitigating effect to evidence of defendant’s low intelligence quotient].

Graves v. Dretke (3/3/2006, 5th Cir. No. 05-70011) 442 F3d 334 [Brady violation].

U.S. v. Virgil (3/28/2006, 5th Cir. No. 05-60214) 444 F3d 447 [Faretta violations at sentencing is reversible per se (structural error)].

US v. Ingles (4/11/2006, 5th Cir. No. 05-30155) 445 F3d 830 [insufficient evidence to support defendant’s mail fraud convictions].

Virgil v. Dretke (4/18/2006, 5th Cir. No. 03-21129) 446 F3d 598 [IAC for failure to challenge certain jurors].

U.S. v. Elrawy (4/26/2006, 5th Cir. No. 04-20123) 448 F3d 309 [Only aliens who were admitted to the U.S. on a non-immigrant visa and maintain lawful "nonimmigrant" status can be prosecuted under 18 USC 922(g)(5)(B), which criminalizes being an alien admitted under a nonimmigrant visa in possession of a firearm].

U.S. v. Williams (5/10/2006, 5th Cir. No. 05-20430) 449 F3d 635 [District court erred when it entered a judgment when there was no verdict].

U.S. v. Alvarez (6/1/2006, 5th Cir. No. 04-51006) 451 F3d 320 [The congressional definition of playground must be proven as an element of a 21 USC 860(a) offense involving drug activity "within 1000 feet of a playground"].

Franklin v. Anderson (1/9/2006, 6th Cir. No. 03-3636, 03-3697) 434 F3d 412 [Appellate counsels’ failure to raise a biased juror issue on appeal was prejudicial].

U.S. v. DeCarlo (1/17/2006, 6th Cir. No. 04-5813) 434 F3d 447 [Conviction of both greater and lesser included offense violates double jeopardy; traveling in interstate commerce for the purposes of engaging in illicit sexual conduct (18 USC 2423(b)) is a lesser included offense of traveling in interstate commerce with the intent to have sex with a child younger than 12 years old (18 USC 2241(c))].

US v. Blood (1/24/2006, 6th Cir. No. 04-5101, 04-5261) 435 F3d 612 [18 USC 513(a), which prohibits possession of counterfeit and forged securities "with intent to deceive another," requires intent to deceive the purported issuers of the fraudulent securities in question].

U.S. v. Foreman (2/8/2006, 6th Cir. No. 04-2450) 436 F3d 638 [Crime of violence sentence enhancement requires a serious potential risk of physical injury to another (U.S. Sentencing Guidelines Manual § 4B1.2(a)].

Brown v. Palmer (3/14/2006, 6th Cir. No. 05-1320) 441 F3d 347 [Insufficient evidence of aiding and abetting robbery and carjacking].

Van Hook v. Anderson (4/18/2006, 6th Cir. No. 03-4207) 444 F3d 830 [Miranda violation after defendant requested counsel].

Fulcher v. Motley (4/18/2006, 6th Cir. No. 03-6216) 444 F3d 791 [Admission of statements made by defendant’s girlfriend, who later became his wife, violated his rights under the Confrontation Clause of the Sixth Amendment].

U.S. v. Sanders (6/29/2006, 6th Cir. No. 04-4540) 452 F3d 572 [Sentencing delay as violation of due process].

Dickerson v. Bagley (7/7/2006, 6th Cir. No. 04-4277) 2006 U.S. App. LEXIS 16956 [IAC for failing to conduct an adequate mitigation investigation].

Pickering v. Gonzales (7/17/2006, 6th Cir. No. 03-3928) 2006 U.S. App. LEXIS 17923 [ INS did not prove by clear, unequivocal, and convincing evidence that petitioner’s conviction remained valid for immigration purposes].

Van Patten v. Deppisch (1/24/2006, 7th Cir. No. 04-1276) 434 F3d 1038 [Physical absence of defendant’s counsel at his plea hearing, which was conducted with his counsel via speakerphone, constituted a structural defect under Cronic].

U.S. v. Vallery (2/7/2006, 7th Cir. No. 05-2251) 437 F3d 626 [Defendant’s sentence as a misdemeanant for an assault conviction is affirmed over the government’s contention that an indictment properly alleged a felony rather than a misdemeanor].

Adams v. Bertrand (6/30/2006, 7th Cir. No. 05-1573) 2006 U.S. App. LEXIS 16452 [IAC for failing to locate and talk to potential defense witness].

U.S. v. Staples (1/23/2006, 8th Cir. No. 03-3617) 435 F3d 860 [Insufficient evidence to sustain the bank fraud convictions against defendants].

Weaver v. Bowersox (2/16/2006, 8th Cir. No. 03-2880, 03-2938) 438 F3d 832 [Inflammatory remarks by prosecutor].

U.S. v. Thunder (2/22/2006, 8th Cir. No. 04-3780) 438 F3d 866 [Denial of right to public trial to close the courtroom during the testimony of the child victims in the case].

U.S. v. Gamboa (3/3/2006, 8th Cir. No. 03-2196) 439 F3d 796 [Firearm conviction violated Double Jeopardy Clause].

U.S. v. Johnson (3/9/2006, 8th Cir. No. 05-2146) 439 F3d 884 [Child pornography: district court violated FRE 404(b) by admitting stories in defendant’s possession about the rape of two teenage girls].

U.S. v. Ollie (3/31/2006, 8th Cir. No. 05-2503) 442 F3d 1135 [Miranda: prosecution must prove, by a preponderance of the evidence, that the officer’s failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda].

U.S. v. Lopez (4/17/2006, 8th Cir. No. 04-2254) 443 F3d 1026 [Conspiracy: "slight evidence rule" rejected; government must prove defendant was a member of the conspiracy].

U.S. v. Lockwood (5/4/2006, 8th Cir. No. 05-3247) 446 F3d 825 [Insufficient evidence that defendant was convicted of a prior sex offense (compare PC 288 and 18 USC 2246].

US v. Helder (6/26/2006, 8th Cir. No. 05-3387) 452 F3d 751 [Attempted violation of using a facility of interstate or foreign commerce to attempt to entice a minor to engage in illegal sexual activity (18 USC 2422(b)) is a lesser included offense if there is not actual minor victim].

U.S. v. Black Lance (6/30/2006, 8th Cir. No. 05-3117) 2006 U.S. App. LEXIS 16455 [Double Jeopardy Clause precludes conviction after order of acquittal].

U.S. v. Scofield (1/4/6, 05-1576, 8th Cir. No. 05-1577) 433 F3d 580 [Evidence insufficient to support conviction for distribution of methamphetamine].

U.S. v. Alferahin (1/11/6, 04-10590) 433 F3d 1148 [(1) Procuring naturalization contrary to law (18 USC 1425(a)): jury instructions must include materiality as an element; (2) Omission of element affects defendant’s substantial rights if the element is contested].

U.S. v. Williams (1/30/2006, 9th Cir. No. 04-50182) 435 F3d 1148 [Miranda violation].

Smith v. Mitchell (2/9/2006, 9th Cir. No. 04-55831) 437 F3d 884 [Assault on child causing death: insufficient evidence that defendant caused the child’s death].

U.S. v. Lopez-Perera (2/21/2006, 9th Cir. No. 05-50102) 438 F3d 932 [An alien’s physical presence in a port of entry does not satisfy the element of the crime of being illegally or unlawfully in the United States in possession of firearm (18 USC 922(g)(5)(A))].

U.S. v. Bear (2/24/2006, 9th Cir. No. 04-50161) 439 F3d 565 [(1) Plain error to not, sua sponte, give public authority defense instruction (see also United States v. Burt (9th Cir. 1998) 143 F3d 1215, 1218 (plain error to give an inaccurate jury instruction because prior case law established the instruction’s proper parameters); (2) Presence of instruction on a defense in the circuit’s model instructions as fact in requiring sua sponte instruction].

Landrigan v. Schriro (3/8/2006, 9th Cir. No. 00-99011) 441 F3d 638 [IAC in capital trial].

U.S. v. Ogles (3/10/2006, 9th Cir. No. 03-10439, 04-10069) 440 F3d 1095 [Judgment of acquittal is a ruling that the evidence was "legally insufficient to sustain a conviction," and thus, the government’s appeal was barred by the Double Jeopardy Clause].

Clark v. Brown (3/17/2006, 9th Cir. No. 02-99007) 450 F3d 898 [(1) Due Process Clause violated by faulty death eligibility special circumstance instruction on felony murder; (2) Due Process Clause violated by retroactive application of new interpretation of case law].

U.S. v. Ligon (3/21/2006, 9th Cir. No. 04-10495, 04-10524) 440 F3d 1182 [Theft (18 USC 641): property taken must have "value"].

U.S. v. Williams (3/21/2006, 9th Cir. No. 05-30071) 441 F3d 716 [Mail fraud (18 USC 1341 and 18 USC 1343: "intangible rights" theory applies to private-sector fraud, at least where the defendant has a fiduciary duty to the victim].

U.S. v. Simpson (3/27/2006, 9th Cir. No. 04-10363) 442 F3d 737 [Restoration of civil rights as defense to charge of being a felon in possession of a firearm (18 USC 922(g)(1))].

U.S. v. Biggs (3/31/2006, 9th Cir. No. 04-50613) 441 F3d 1069 [Self-defense: does not require showing of "no reasonable alternatives to the use of force".]

U.S. v. Piccolo (4/3/2006, 04-10577) 441 F3d 1084 [Escape is not necessarily a crime of violence].

Vasquez-Ramirez v. US Dist. Court for the S. Dist. of California (4/6/2006, 9th Cir. No. 04-75715) 443 F3d 692 [FRCP 11 requires the judge to accept the defendant’s guilty plea even if the judge feels a prosecutor’s charging decision was too aggressive or too lenient].

Jones v. City of Los Angeles (4/14/2006, 9th Cir. No. 04-55324) 444 F3d 1118 [The Eighth Amendment prohibits criminalization of involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the city].

U.S. v. Bahamonde (4/25/2006, 9th Cir. No. 04-50618) 445 F3d 1225 [(1) Failure to provide reciprocal discovery; (2) Sixth Amendment: Excluding agent’s testimony without weighing countervailing interests].

U.S. v. Rosenthal (4/26/2006, 9th Cir. No. 03-10307, 03-10370) 445 F3d 1239 [Juror misconduct: seeking advice from attorney].

U.S. v. Arreola (4/26/2006, 9th Cir. No. 04-10504) 446 F3d 926 [18 USC 924(c)(1)(A), criminalizing the use of a firearm during the commission of a drug trafficking crime, defines a single offense].

U.S. v. Rios (6/2/2006, 9th Cir. No. 05-50000) 449 F3d 1009 [Expert testimony that drug traffickers generally use firearms to further their drug crimes, standing alone, is not sufficient to establish that a firearm was possessed in furtherance of a particular drug crime (18 USC 924(c)(1)(A))].

Boyd v. Newland (6/26/2006, 9th Cir. No. 03-17098) 2006 U.S. App. LEXIS 16032 [In light of plausible Batson claim, defendant has right to complete voir dire transcript and a full comparative analysis of the venire].

Hoffman v. Arave (7/5/2006, 9th Cir. No. 02-99004) 2006 U.S. App. LEXIS 16770 [IAC during the plea bargaining phase].

United States v. Beng-Salazar (7/6/2006, 9th Cir. No. 04-50518) 2006 U.S. App. LEXIS 16839 [Defendant’s timely Sixth Amendment objections, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), were sufficient to preserve United States v. Booker (2005) 543 U.S. 220 challenge to the court’s imposition of sentence using the formerly mandatory Guidelines].

In re Kenna (7/6/2006, 9th Cir. No. 06-73352) 2006 U.S. App. LEXIS 16776 [Crime victim failed to show that he was entitled to disclosure under the Crime Victims Rights Act (18 USC 3771) to defendant’s entire presentence report, which is confidential under the traditional "ends of justice" test. See United States v. Anzalone (9th Cir. 1989) 886 F2d 229, 233].

In re Mikhel (7/7/2006, 9th Cir. No. 06-73376) 2006 U.S. App. LEXIS 16973 [Victim-witness may only attend trial under Victim’s Rights Act if judge finds that his/her testimony would not be "materially altered"].

Roy v. Lampert (7/12/2006, 9th Cir. No. 04-35514) 2006 U.S. App. LEXIS 17383 [Petitioners entitled to evidentiary hearing regarding claim that statute of limitations should be equitably tolled because they were transferred to a prison that, they alleged, had a "woefully deficient law library"]

United States v. Estrada (7/14/2006, 9th Cir. No. 05-10500) 2006 U.S. App. LEXIS 17733 [21 USC 841(c) requires the government to prove (1) that the defendant knew he possessed a substance with knowledge or reasonable cause to believe that the substance would be used to manufacture a controlled substance, and (2) that the substance was in fact a listed chemical. The section does not require the government to prove that the defendant knew that he possessed a certain chemical].

United States v. Lyons (7/19/2006, 9th Cir. No. 04-50157) 2006 U.S. App. LEXIS 18071: Court erred in treating Sentencing Guidelines as mandatory and in imposing upward adjustment based on facts (amount of loss) not proven to jury.

United States v. Feingold (7/21/2006, 9th Cir. No. 05-10037) 2006 U.S. App. LEXIS 18319 [Improper to instruct jurors to convict licensed practitioner under 21 USC 841(a) based solely on a finding of malpractice, intentional or otherwise].

United States v. Cortez-Rivera (7/24/2006, 9th Cir. No. 05-50207) 2006 U.S. App. LEXIS 18480: Instruction that tells grand jury that "when deciding whether or not to indict, you should not be concerned about punishment in the event of conviction; judges alone determine punishment," did not violate grand jury’s independence because term "should" makes the instruction permissive rather than mandatory.

U.S. v. Atencio (1/23/2006, 10th Cir. No. 04-2325, 05-2022) 435 F3d 1222 [(1) Conspiracy (21 USC 846) is a lesser included offense of a continuing criminal enterprise (21 USC 848); (2) Double Jeopardy Clause violated by conviction of both greater and lesser included offense (LIO)].

U.S. v. Lopez (2/21/2006, 10th Cir. No. 04-1223) 437 F3d 1059 [Involuntary confession: police coercion].

U.S. v. Zunie (4/19/2006, 10th Cir. No. 04-2256) 444 F3d 1230 [Assault resulting in serious bodily injury (18 USC 113(a)(6) and 1153): requires purpose, knowledge, or recklessness].

U.S. v. Allen (6/5/2006, 10th Cir. No. 05-7000) 449 F3d 1121 [Reversible error to preclude insanity defense].

U.S. v. Tucker (6/28/2006, 10th Cir. No. 05-3259) 451 F3d 1176 [Error to deny self-representation (Faretta) during voir dire].

U.S. v. Ingle (7/5/2006, 10th Cir. No. 06-5091) 2006 U.S. App. LEXIS 17029 [Being a felon in possession of a firearm (18 USC 922(g)(1)), is not a crime of violence].

U.S. v. Johnson (2/27/2006, 11th Cir. No. 04-10514) 440 F3d 1286 [Insufficient evidence of conspiracy (18 USC 1956) and money laundering (18 USC 1957)].

U.S. v. Arbane (4/21/2006, 11th Cir. No. 04-15727) 446 F3d 1223 [No conspiracy where only the person involved is governmental informant (see NCJIC 83.3.1.3)].

U.S. v. Ingram (4/25/2006, 11th Cir. No. 05-10866) 446 F3d 1332 [ two year delay between indictment and trial deprived defendant of his Sixth Amendment right to a speedy trial].

U.S. v. Ginyard (4/7/2006, No. 05-3003, 05-3004, 05-3025, 05-3035) 444 F3d 648 [Failure of judge to conduct adequate inquiry before dismissing a holdout juror].

U.S. v. Ponds (7/14/2006, No. 03-3134) 2006 U.S. App. LEXIS 17718 [Production of documents under immunity agreement as violation of 5th Amendment privilege against self-incrimination].

California Supreme Court

People v. Sturm (2006) 37 Cal. 4th 1218, the California Supreme Court held that the lower court erred in instructing jury at penalty phase retrial in capital case that premeditation was "a gimme here" and "all over and done with" as a result of the guilty verdict, in a case where the jury found the defendant guilty of first degree murder solely on a felony-murder theory. The court committed prejudicial misconduct by persistently making inappropriate and disparaging comments directed toward defense counsel (see People v. Carpenter (1997) 15 Cal.4th 312, 353), and the defense expert witnesses during penalty phase of this capital case, including accusing the defense expert, who had received numerous federal grants for his academic work of increasing budget deficit. Additionally for telling the witness that she was using too many "adjectives and adverbs" and tended to embellish her answers, accusing defense counsel of trying to "sneak" in inadmissible evidence, interposing the judge's own objections to questions asked by defense counsel and asking the prosecutor why he was not objecting to defense counsel's questions, constantly interrupting the defense case in mitigation with sua sponte objections to questions not objected to by the prosecutor, and repeatedly reprimanding defense counsel in front of the jury, conduct which, when contrasted with the judge's treatment of the prosecution, created the impression that it favored the prosecution. The cumulative effect of the court's erroneous comment on verdict and disparagement of defense counsel and witnesses deprived the defendant of the right to be tried with "the patience, dignity, and courtesy that is expected of all judges" and was not harmless beyond a reasonable doubt as to penalty where defendant was young and had no prior criminal history and first jury had deadlocked 10-2 in favor of life sentence without possibility of parole.

People v. Hudson (6/19/2006, S122816) 38 Cal. 4th 1002 , the California Supreme Court held that where the defendant was convicted of Vehicle Code section 2800.2, subdivision (a), evading a peace officer, the trial court is required to instruct jury sua sponte that the police vehicle must be distinctively marked, and that means it must have features other than red light and siren that distinguish it from vehicles not used for law enforcement. The court's failure to so instruct jury was prejudicial error, because the jury could have found that the police vehicle was not so distinctively marked within the meaning of section 2800.1, subdivision (a) (see People v. Estrella (1995) 31 Cal.App.4th 716, 722 723; People v. Mathews (1998) 64 Cal.App.4th 485), thereby acquitting the defendant of the offense.

People v. Reed (7/3/2006, S136345) 38 Cal. 4th 1224, the California Supreme Court held that where the defendant was charged with and convicted of being a felon in possession of a firearm, (Penal Code section 12021,subd. (a)(1)), carrying a concealed firearm, (section 12025, subd. (a)), and carrying a loaded firearm while in a public place, (section 21031, subd. (a)), all arising out of the same act, and where the information alleged as to all three offenses that the defendant was a convicted felon so that, as charged, he could not commit the crimes of carrying a concealed firearm and carrying a loaded firearm while in a public place without also being a felon in possession of a firearm, section 954, (see also People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Montoya (2004) 33 Cal.4th 1031, 1034), which prohibits convictions based on necessarily included offenses, did not prevent the defendant's conviction of all three charges. The courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an "uncharged" crime but only the statutory elements in deciding whether a defendant may be convicted of multiple "charged" crimes.

People v. Fuller (2006) 135 Cal. App. 4th 1336 held that multiple rapes all committed against the same victim within an hour and within her apartment, albeit in different rooms, occurred "during a single occasion" under the "one strike" law (Penal Code § 667.61) punishing forcible sex crimes. The "single occasion" rule is different when applying section 667.61 and not section 667.6. (See People v. Jones (2001) 25 Cal.4th 98.) Where the defendant was convicted on multiple counts of rape, and all of the crimes were committed "during a single occasion" within the meaning of the one strike law, the defendant was subject to a single enhanced sentence on one count for the sex acts (see People v. Wutzke (2002) 28 Cal.4th 923, 929-930; People v. Mancebo (2002) 27 Cal.4th 735, 741-742), and to separate, determinate sentences on the other non-sex counts. (See People v. Acosta (2002) 29 Cal.4th 105, 118-128.)

People v. Le (2006) 136 Cal. App. 4th 925 held that separate sentences for burglary and robbery violated the Penal Code section 654 ban on multiple punishments for same crime where both offenses were committed with a single intent (see People v. Palmore (2000) 79 Cal.App.4th 1290, 1297), to steal from a store, and force was used only against the store manager and only in a struggle over the store’s merchandise; therefore, the multiple victim exception to section 654 was not applicable. (See People v. Guzman (1996) 45 Cal.App.4th 1023, 1028.) The section 654 error was an unauthorized sentence within the meaning of People v. Scott (1994) 9 Cal.4th 331, 354, and therefore the failure to object did not waive the issue. Restitution and parole revocation fines are "punishment" within meaning of section 654; therefore, the lower court erred in treating the robbery and burglary convictions as separate in calculating such fines. Where the trial court indicated its intent to impose the minimum parole revocation and restitution fines and erroneously calculated such minimums, the Court of Appeal can reduce such fines to properly calculated minimum even though the trial court would have had discretion to impose larger fines.

People v. Gayton (2006) 137 Cal. App. 4th 96 held that the failure of the defendant's counsel to examine his probation file and to offer its contents for impeachment of the probation officer's testimony at the violation hearing, despite marked contrast between the defendant's version of what had occurred and that of the probation officer, constituted ineffective assistance and was manifestly prejudicial where the contents supported the defendant's version, and no other evidence was offered to bolster defendant's credibility. 

People v. Vasquez (2006) 136 Cal. App. 4th 1176 held that the trial court erred in failing to give a imperfect self-defense instruction within the meaning of In re Christian S. (1994) 7 Cal.4th 768, 773, 783 and People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270. The prosecution's star witness had testified that the victim was choking appellant at the time he pulled the gun and shot the victim. The Court of Appeal indicated that that testimony could have put appellant in fear of serious injury or death from being choked. Therefore, there was a duty to so instruct. (See People v. Barton (1995) 12 Cal.4th 186, 201.) The court also found that under Watson, the error was prejudicial.

People v. Scheller (2006) 136 Cal. App. 4th 1143 held that statements made to a probation officer by the defendant, after a guilty plea are inadmissible (except possibly for impeachment) once that guilty plea has been withdrawn. (See People v. Pacchioli (1992) 9 Cal.App.4th 1331, 1335-1337.) When a plea agreement has been rescinded the parties are placed in the position each had before the contract was entered into. (People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256, 258.) The admission of the defendant's statements to the probation officer, rises to the level of a violation of due process.. As a general rule a plea bargain approved by the court is enforceable under contract principles. (People v. Renfro (2004) 125 Cal.App.4th 223, 230.)

People v. Castro (2006) 138 Cal. App. 4th 137 held that where the defendant was charged with attempted kidnapping based on evidence that he pulled victim toward his car after she refused his proposal to exchange money for sex, there was sufficient evidence to instruct the jury on the lesser charge of felony false imprisonment, but it was error for not to instruct sua sponte on misdemeanor false imprisonment. The error was not harmless where the defendant was acquitted of attempted kidnapping but convicted of felony false imprisonment. Furthermore, evidence as to the amount of force used was sufficiently ambiguous that a reasonable jury might have convicted the defendant of the misdemeanor had it been given that option. (See People v. Matian (1995) 35 Cal.App.4th 480, 486-487.)

People v. Ryan (2006) 138 Cal. App. 4th 360 held that a defendant may not be convicted of forgery by signing another’s name (Penal Code § 470, subd. (a)), and of forgery by making or passing a forged check (§ 470, subd. (d)), with respect to the same check. The doing of one or more of the proscribed acts in section 470 with respect to the same instrument constitutes one offense even though under section 954 the defendant could be charged with more than one offense covered under that section. They can be pled in the alternative. Additionally, neither section is a lesser included offense to the other.

People v. Lopez (2006) 138 Cal. App. 4th 674 held that a Catholic priest was on trial for multiple counts of child molestation, the prosecutor’s references in closing argument to place themselves in the position of the crime victim, were improper and deprived defendant of fair trial. The prosecutor cannot ask the jury to stand in the shoes of the victim witnesses. (People v. Stansbury (1993) 4 Cal.4th 1017, 1057.) Additionally, the prosecutor's argument, that she did not think that defense counsel's argument was mean or stupid, but I don't I think his client is guilty; is also misconduct. (People v. Bain (1971) 5 Cal.3d 839, 848.) Such references were not harmless, pursuant to Watson where verdict was dependent on weighing of relative credibility of defendant and his accusers.

In re Marcus (2006) 138 Cal. App. 4th 1009 held that within the meaning of Ketscher v. Superior Court (1970) 9 Cal.App.3d 601, 604-605; Wilson v. Superior Court (1987) 197 Cal.App.3d 1259, 1273, an unwritten order cannot be the basis for a finding of indirect contempt.

People v. Carlos (2006) 138 Cal. App. 4th 907 held that the six pack photo spread was unduly suggestive given the fact that appellant's name and an identification number were printed right below his picture. The prosecution contended that all six packs are similarly labeled, but the problem here is that the photo is directly above the name and identification, and is plainly suggestive, and this labeling made it "stand out" from the other pictures in the photo spread. The court found a due process violation in that it gave rise to a substantial likelihood of irreparable misidentification. (People v. Blair (1979) 25 Cal.3d 640, 659.) The matter was prejudicial within the meaning of Chapman.

People v. Shabtay (2006) 138 Cal. App. 4th 1184 held that section 484e, subdivision (b), which defines as grand theft the acquisition within a 12 month period of financial institution "access cards issued in the names of four or more persons" by someone who "has reason to know were taken or retained" with the intent to defraud, a defendant cannot be convicted of multiple offenses committed within the same 12 month period. Where defendant possessed 11 access cards within single 12 month period, the second conviction, based on the theory that the possession of each multiple of four cards constituted a new offense, was error.

People v. Pilster (4/27/2006, G035130) 138 Cal. App. 4th 1395 held that where the interviewing officer failed to give the defendant his Miranda warnings, and the prosecutor used those statements to impeach his testimonial account of the alleged crime, the court erred in denying the defendant's request to instruct the jury that they could consider his prearrest statements only on the issue of his credibility, per CALJIC No. 2.13.1. However, the Court of Appeal held that the error was harmless beyond a reasonable doubt where the jury clearly disbelieved the defendant's version of the crime, independent of the statements.

People v. Hernandez (5/5/2006, B183053) 139 Cal. App. 4th 101, following the lead of People v. Munoz, held that pursuant to People v. Ortiz (1990) 51 Cal.3d 975, an indigent defendant has a right to relieve retained attorney and have new counsel appointed without demonstrating retained attorney is incompetent . The court erred in essentially following the procedure set forth for appointed counsel in People v. Marsden (1970) 2 Cal.3d 118. Reversal is automatic, where, as here, the court used the wrong standard, and the defendant has been deprived of his right to defend with counsel of his choice. (People v. Ortiz, supra, 51 Cal.3d at p. 988.)

People v. R.T.P. (5/23/2006, E036355) 139 Cal. App. 4th 1019 held that the prosecutor committed misconduct not by merely interviewing the defendant on a case where he was not represented or not charged, (see People v. Carter (2003) 30 Cal.4th 1166, 1209) since the right to counsel is offense specific. (People v. Clair (1992) 2 Cal.4th 629, 657.) However, it was error to discuss with the defendant "concessions" in a case where he was represented, for his testimony in the other matter. (See Maine v. Moulton (1985) 474 U.S. 159, 170 171.) It is important to be represented by counsel during plea negotiations. (See People v. Hayes (1988) 200 Cal.App.3d 400, 408 409; Maine v. Moulton, supra, 474 U.S. at p 176; see also People v. Moore (1976) 57 Cal.App.3d 437, 439 442.) The defendant argued that the remedy for the error should be exclusion, even though it is an extraordinary remedy, since mere exclusion of the defendant's statements are inadequate to insure that the prosecution does not benefit from the illegality. (See Boulas v. Superior Court (1986) 188 Cal.App.3d 422; see also People v. Moore, supra, 57 Cal.App.3d at p. 442.) However, the Court of Appeal sent the matter back to the trial court to determine if the defendant would have obtained different sentencing recommendations or concessions had he been represented, and if so, those should be granted to the defendant.

People v. Sandoval (6/7/2006, D045846) 140 Cal. App. 4th 111 held that where plea a offer was extended to multiple defendants on the condition that all accept it or none can take it, and one of those defendants subsequently declared that he was threatened by a co defendant that he would be harmed in prison if he declined the offer, such declaration, combined with the judge's substantial involvement in encouraging the defendants to accept the "package deal," established the basis for the withdrawal of the plea, based on coercion. (See In re Ibarra (1983) 34 Cal.3d 277, 287 [guilty pleas obtained through coercion, inducements, threats are involuntary and violative of due process].) Further, the denial of the motion to withdraw the plea was an abuse of discretion. (See People v. Weaver (2004) 118 Cal.App.4th 131, 145 146 [general principles applicable to a motion to withdraw a plea].) The Court of Appeal also found that a "strike" allegation may be added to an information by an oral amendment, made in open court, in presence of defendant and counsel, absent prejudice.

People v. Jenan (6/20/2006, F048121) 140 Cal. App. 4th 782 held that the recusal, within the meaning of section 1424, subdivision (a)(1), of the entire district attorney's office was not an abuse of discretion (see Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 200 [whether trial court ruling will be upheld is determined by a deferential abuse of discretion test], where a deputy district attorney was a witness to the alleged crime, and that deputy's credibility would be a significant issue at trial.

Craft v. Superior Court (People) (6/30/2006, G036155) 140 Cal. App. 4th 1533 held that where court's suspension of criminal proceedings pending determination of defendant's mental competency, pursuant to section 1368, resulted in the defendant suffering 17 months of pretrial incarceration without treatment for his mental condition, and the prosecution did not offer any justification for the prolonged pretrial incarceration, the evidence was insubstantial to support the trial court's finding that the defendant suffered no prejudice from the delay and was thus not entitled to a dismissal of criminal the complaint for denial of due process and speedy trial. Delay alone is not enough to show prejudice. (People v. Martinez (2000) 22 Cal.4th 750, 755.) However, Barker v. Wingo (1972) 407 U.S. 514, 527, acknowledged that a defendant confined to jail before trial is "obviously disadvantaged by the delay." On remand, the court must give the prosecution the opportunity to justify the defendant's prolonged incarceration and then balance any justification against the prejudice shown by the defendant

In re Eduardo M. (7/5/2006, B186047) 140 CA4th 1351 [Defendant minor convicted of aiding and abetting two felony firearm assaults cannot also be convicted of being an accessory to those felonies solely on the basis of immediate flight from the scene and later denials of his own involvement, even if that conduct incidentally helped the principal escape].

People v. Davis (7/19/2006, B184264) 2006 Cal. App. LEXIS 1088, held that there was insufficient evidence that the defendant was in violation of Health and Safety Code section 11353.6 (cocaine offense upon the grounds of, or within 1,000 feet of an elementary school) as the garage of a private residence that was not accessible to the general public and was not a public area within the meaning of said section. (See People v. Jimenez (1995) 33 Cal.App.4th 54, 60; People v. Townsend (1998) 62 Cal.App.4th 1390 1395 1397; People v. Todd (1994) 30 Cal.App.4th 1724, 1729 [the enhancement does not apply to drug transactions that take place solely within the confines of a private residence].)

People v. Miller (2/16/2006, Nos. 131, 132) 6 N.Y.3d 295; 845 N.E.2d 451; 812 N.Y.S.2d 20 [Improper to convict defendant of both first and second degree murder].

People. v. Boyer (3/28/2006, No. 36) 6 N.Y.3d 427; 846 N.E.2d 461; 813 N.Y.S.2d 31 [Suggestive ID: Officer’s identification of defendant].

People v. Pacer (3/28/2006, No 45) 6 N.Y.3d 504; 847 N.E.2d 1149; 814 N.Y.S.2d 575 [Admission of out-of-court affidavit violated Sixth Amendment Confrontation Clause].

People v. Van Deusen (6/29/2006, No. 100) 2006 N.Y. LEXIS 1761 [Guilty plea vacated where defendant was not told that she would be subject to mandatory postrelease supervision].

People v. Petty (7/5/2006, No. 95) 2006 N.Y. LEXIS 1831 [Self-defense: judge has duty to instruct that prior threats made by the deceased victim against the defendant may be considered in deciding whether the defendant was the initial aggressor].

People v. Feingold (7/5/2006, No. 96) 2006 N.Y. LEXIS 1830 [Reckless endangerment in the first degree reduced to reckless endangerment in the second degree].

People v. Atkinson (7/5/2006, No. 97) 2006 N.Y. LEXIS 1838 [Request for lesser included instruction does not waive right to challenge the sufficiency of a conviction].

People v. Mancini (7/5/2006, No. 98) 2006 N.Y. LEXIS 1832 [Defendant did not commit depraved indifference murder; conviction reduced to manslaughter].

People v. Swinton (7/6/2006, No. 159 SSM 12, 158 SSM 13) 2006 N.Y. LEXIS 1835 [Assault in the first degree reduced to assault in the third degree because defendants didn’t have the culpable mental state of depraved indifference].

Barnett v. State of Texas (3/8/2006, No. PD-0397-05) 189 SW3d 272 [Failure to object to earlier improper polling does not waive claim that court gave coercive oral Allen charge].

Robertson v. State of Texas (3/22/2006, No. PD-325-05) 187 SW3d 475 [IAC to have defendant testify that he was already incarcerated on two convictions that were pending on appeal].

Rodgers v. State of Texas (5/3/2006, No. PD-0645-05) 2006 Tex. Crim. App. LEXIS 852 [A motion to strike an expert witness’s testimony based on his lack of qualifications, which is made after the witness has testified, can serve as a renewed objection to a trial court’s earlier ruling that the witness was qualified].

Qualley v. State of Texas (5/24/2006, Nos. PD-1976-04, PD-1971-04) 2006 Tex. Crim. App. LEXIS 1007 [Severance required if defendant shows a serious risk that a specific trial right would be compromised by a joint trial, or that a joint trial would prevent the jury from making a reliable judgment about guilt or innocence, and that the problem could not be adequately addressed by lesser curative measures, such as a limiting instruction].

Phillips v. State of Texas (6/7/2006, No. PD-499-04) 193 SW3d 904 [Duplicity/Unanimity: prosecution must elect among multiple incidents if requested by defense].

Martin v. State of Texas (6/28/2006, No. PD-1940-05) 2006 Tex. Crim. App. LEXIS 1285 [(1) Jury must be instructed on element of the charge even if defendant stipulates to it; (2) Instruction must explain legal effect of stipulation].