HELPFUL CASES NOVEMBER 2007

    1st Circuit Court of Appeals [None this update]
    2nd Circuit Court of Appeals
    3rd Circuit Court of Appeals [None this update]
    4th Circuit Court of Appeals
    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 [None this update]
    11th Circuit Court of Appeals [None this update]
    D.C. Circuit Court of Appeals [None this update]
    Supreme Court of Florida
    Illinois Courts of Appeal
    New York Court of Appeals
    Texas Criminal Court of Appeals

Federal Courts (November 1, 2007-November 31, 2007)

U.S. v. Shellef (11/8/2007, 2nd Cir., No. 06-1495, 06-1710) 2007 U.S. App. LEXIS 25974: Convictions and sentences for crimes related to wire fraud, money laundering, tax evasion, filing false tax returns, and conspiracy to defraud the IRS, are vacated where the indictment improperly: 1) joined certain tax counts with the other charges against the defendants; 2) joined the two defendants as co-defendants; and 3) the misjoinders were not harmless.

U.S. v. Oscar-Torres (11/8/2007, 4th Cir. No. 06-5074) 2007 U.S. App. LEXIS 25988: Detentions for the sole purpose of obtaining fingerprints in a criminal investigation are subject to the constraints of the Fourth Amendment.

Morales v. Mitchell (11/2/2007, 6th Cir. No. 00-3694, 00-3787) 2007 U.S. App. LEXIS 25582: Ineffective assistance of counsel (IAC) at the penalty phase of capital trial for failing to adequately investigate and present mitigating evidence.

U.S. v. Garner (11/7/2007, 6th Cir. No. 06-3288) 2007 U.S. App. LEXIS 25852: Even if the late disclosure of the cell phone records did not amount to a Brady violation, denial of continuance to enable defense counsel to conduct a necessary investigation into the records was an abuse of discretion.

U.S. v. Conrad (11/9/2007, 6th Cir. No. 05-5319) 2007 U.S. App. LEXIS 26130: Reversible error to admit an individual's out-of-court statement under the co-conspirator's exception to the hearsay rule using the wrong legal standard and without finding that the elements of that exception had been proven by a preponderance of the evidence.

U.S. v. Abu-Shawish (11/1/2007, 7th Cir. No. 06-1459) 2007 U.S. App. LEXIS 25514: Conviction for federal program fraud is vacated and remanded where the indictment did not allege that defendant defrauded the organization for which he served as an agent.

U.S. v. Bercier (11/1/2007, 8th Cir. No. 06-4125) 2007 U.S. App. LEXIS 25490: Error to admit hearsay testimony by an examining physician recounting what victim said in a hospital interview.

U.S. v. Jones (11/2/2007, 8th Cir. No. 06-3616) 2007 U.S. App. LEXIS 25566: Failure to consider the need to avoid unwarranted sentencing disparities was abuse of discretion.

Medley v. Runnels (11/1/2007, 9th Cir. No. 05-55295) 2007 U.S. App. LEXIS 25506: Trial courts may not create mandatory presumptions which relieve the prosecution of its burden to prove facts to the jury beyond a reasonable doubt. (Sandstrom v. Montana (79) 442 US 510.) Appellant was charged with murder and an enhancement for discharge of a firearm in commission of a felony. In the commission of the offense, appellant chased the victim, discharged a flare gun at him, without injuring him, but then caught up to him and stabbed him, inflicting four dozen stab wounds, and killing him. The court instructed the jury that as a matter of law a flare gun was a firearm. With this instruction, the court denied appellant due process by taking a critical issue of fact away from the jury in violation of clearly established constitutional law.

U.S. v. Brooks (11/29/2007, 9th Circuit, No. 05-30261) 508 F3d 1205: Improper "vouching" by the government that affects a defendant’s substantial rights will result in reversal. Improper vouching occurs when the prosecutor places the prestige of the government behind a witness by expressing his personal belief that the witness is truthful, or when the prosecutor indicates that information not presented to the jury supports the witness’ testimony. For example, vouching occurs where the witness on direct testimony states that his plea bargain requires him to testify truthfully. Such a statement suggests that the witness who might otherwise be unreliable is compelled by government threats or promises to tell the truth. To determine if vouching is reversible, the reviewing court must balance the seriousness of the vouching against the effectiveness of any curative instruction and the closeness of the case. Here, although there were instances of vouching, because of the curative instructions and the strength of the government’s case, the reviewing court did not find reversible error.

Barnes v. State of Florida (11/29/2007, No. SC06-662) 2007 Fla. LEXIS 2203: When prior testimony has been read to a jury during a trial proceeding as testimonial evidence, a written transcript of that testimony is not and should not be admitted into evidence as an exhibit and provided to the jury during deliberations pursuant to Florida Rule of Criminal Procedure 3.400(a)(4).

People v. Johnson (11/5/2007, Nos. 5-05-0461 & 5-05-0620) 2007 Ill. App. LEXIS 1163: Dismissal of defendant's postconviction petition was error where defendant's petition presented the gist of a constitutional claim.

People v. Jones (11/20/2007, No. 145) 2007 N.Y. LEXIS 3278: Conviction based on guilty plea to disorderly conduct is vacated where the factual allegations in the accusatory instrument failed to establish a prima facie case.

Ex Parte Van Alstyne (11/14/2007, No. AP-75,795) 2007 Tex. Crim. App. LEXIS 1631: Sentence properly reduced from death to life based on Atkins mental retardation claim.