HELPFUL CASES

U.S.S.C. CASE LAW UPDATE – Selected Cases From The United States Supreme Court (August 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

There were no new relevant United States Supreme Court decisions for this update.

There were no new relevant First Circuit decisions for this update.

2nd Circuit

U.S. v. Vitale (2nd Cir. 8/1/2006, No. 04-4703) 2006 U.S. App. LEXIS 19359: Conviction of five counts of bank fraud is remanded for hearing on issue of possible juror bias after revelation of a professional relationship between the juror, the juror's husband, and the prosecutor's husband.

Disimone v. Phillips (2nd Cir. 8/22/2006, No. 05-6893) 2006 U.S. App. LEXIS 21578: Matter remanded for Brady hearing.

U.S. v. Olmeda (2nd Cir. 8/29/2006, No. 05-4331) 2006 U.S. App. LEXIS 22102: Double Jeopardy: Federal prosecution dismissed on Double Jeopardy ground.

U.S. v. Hull (3rd Cir. 7/28/2006, No. 05-2028) 456 F3d 133: Mere "possession" of a pipe bomb does not qualify as a "Federal crime of violence" under 18 USC 842(p)(2)(A).

U.S. v. Farnsworth (3rd Cir. 8/8/2006, No. 06-1425) 456 F3d 394: Circuit court lacked jurisdiction and a writ of mandamus was not appropriate to review an allegedly erroneous pre-trial oral ruling, in which a district court explained how it intended to instruct a jury with respect to the crime of attempted evasion of payment of a tax.

Conchatta Inc. v. Miller (3rd Cir. 8/15/2006, No. 05-1803) 2006 U.S. App. LEXIS 20836: A Pennsylvania Liquor Code statute and a regulation that prohibit "lewd" entertainment at any licensed establishment are facially invalid because they are substantially overbroad, punishing a significant amount of protected speech in relation to their legitimate scope.

U.S. v. Williams (3rd Cir. 08/18/2006, No. 05-3772) 2006 U.S. App. LEXIS 21155: Federal Rule of Evidence 404(b)'s prohibition against the introduction of bad acts evidence to show propensity applies regardless of whether the evidence is offered against the defendant or a third party.

U.S. v. Hurwitz (4th Cir. 8/22/2006, No. 05-4474) 2006 U.S. App. LEXIS 21425: Good Faith Defense [18 USC 841] – Court erroneously failed to include a good-faith instruction in connection with the 21 USC 841 charges and by specifically instructing the jury that it could not consider defendant's good faith as to any of the drug-trafficking charges.

U.S. v. Brown (5th Cir. 8/1/2006, No. 05-20319) 2006 U.S. App. LEXIS 19397: Conspiracy and wire-fraud convictions reversed because the government's theory of fraud relating to the deprivation of honest services was flawed.

Martinez-Aguero v. Gonzales (5th Cir. 8/7/2006, No. 05-50472) 2006 U.S. App. LEXIS 22100: Aliens stopped at the border have a constitutional right to be free from false imprisonment and the use of excessive force by law enforcement personnel.

U.S. v. Chenowith (5th Cir. 8/8/2006, No. 05-20636) 2006 U.S. App. LEXIS 20250: Defendant's conviction and sentence for being a felon in possession of a firearm is vacated pursuant to a claim that the district court erred in denying his motion to dismiss his indictment based on a claim that his state civil rights had been restored.

U.S. v. Veach (6th Cir. 8/1/2006, No. 05-6268) 455 F3d 628: A conviction for resisting a federal law enforcement officer and threatening to assault and murder two federal law enforcement officers with intent to impede the performance of their official duties (18 USC 115(a)(1)(B)) reversed in part as to the counts for threatening officers where the district judge improperly restricted defendant's ability to present a diminished capacity defense to a specific-intent crime.

Getsy v. Mitchell (6th Cir. 8/2/2006, No. 03-3200) 2006 U.S. App. LEXIS 19472: A death sentence violates Furman, Enmund, and Morrison in that its imposition was arbitrary and disproportionate, and resulted in inconsistent verdicts.

U.S. v. Lopez-Medina (6th Cir. 8/25/2006, No. 05-5891) 2006 U.S. App. LEXIS 21682: Court erroneously admitted evidence of the criminal histories of defendant's acquaintances, and permitted dual fact and expert witness testimony without a cautionary instruction to the jury.

Bell v. Bell (6th Cir. 8/25/2006, No. 04-5523) 2006 U.S. App. LEXIS 21708: Prosecution withheld material impeachment information regarding a witness in violation of Brady v. Maryland (1963) 373 U.S. 83.

Williams v. Anderson (6th Cir. 8/28/2006, No. 04-3515/3585) 2006 U.S. App. LEXIS 21930: Death sentence was imposed in violation of the constitution as his trial attorney rendered ineffective assistance of counsel by failing to investigate and present mitigation evidence.

Dando v. Yukins (6th Cir. 8/30/2006, No. 04-1691) 2006 U.S. App. LEXIS 22220: Trial counsel was ineffective for failing to properly investigate a duress defense based on Battered Woman’s Syndrome.

U.S. v. Turner (6th Cir. 8/31/2006, No. 05-6326, 05-6339) 2006 U.S. App. LEXIS 22320: Defendant's conduct, as alleged in the indictment, could not be prosecuted under the mail fraud statute using either the honest services theory or salary theory of prosecution.

Santos v. U.S. (7th Cir. 8/25/2006, No. 04-4221) 2006 U.S. App. LEXIS 21687: Court declined to overturn U.S. v. Scialabba (7th Cir. 2002) 282 F.3d 475, which defined "proceeds" to mean net income, as opposed to gross income.

U.S. v. Cunningham (7th Cir. 8/29/2006, No. 05-1515) 2006 U.S. App. LEXIS 22084: Admission of irrelevant evidence had the effect of improperly bolstering the credibility of the government's case in the eyes of the jury.

U.S. v. Cook (8th Cir. 7/31/2006, No. 05-3731) 454 F3d 938: Defendant's four prior drug convictions properly excluded as too remote under Rule 404(b) of the Federal Rules of Evidence and unfairly prejudicial under Rule 403.

U.S. v. Cacioppo (8th Cir. 8/22/2006, No. 04-3587, 04-4149, 04-3588, 04-3713) 2006 U.S. App. LEXIS 21406: The mens rea requirement for 18 USC 1027 requires proof that a defendant "conceal[ed], cover[ed] up, or fail[ed] to disclose" facts that they knew they were required to disclose, and that they knew that they were obliged to disclose them.

Lara v. Ryan (9th Cir. 8/1/2006, No. 05-16055) 455 F3d 1080: Improper implied-malice instruction on attempted murder (People v. Lee (1987) 738 P2d 752, 754 [only a finding of express malice will support a jury verdict for attempted murder]) did not prejudice petitioner where court could determine with "absolute certainty" that jury convicted under proper theory.

Stark v. Hickman (9th Cir. 8/1/2006, No. 03-17241) 455 F3d 1070: Federal due process violated at California state trial for murder when trial court instructed jury during guilt phase of bifurcated NG/NGI trial that defendant was to be presumed "conclusively sane." Here the defendant had put his mental state at issue during the guilt phase, and judge's instruction lowered prosecution's burden of proof, violating Sandstrom v. Montana (1979) 442 U.S. 510, and Francis v. Franklin (1985) 471 U.S. 307.

Alberni v. McDaniel (9th Cir. 8/9/2006, No. 05-15570) 2006 U.S. App. LEXIS 20390: Matter remanded for an evidentiary hearing to determine whether defendant's right to conflict-free counsel was violated by his trial counsel's cross-examination of a prosecution witness who had been his client.

Hovey v. Ayers (9th Cir. 8/11/2006, No. 03-99001) 2006 U.S. App. LEXIS 20580: District court erred in concluding that a deficient performance of counsel in the penalty phase did not prejudice petitioner.

Hovey v. Woodward (Ayers) (9th Cir. 8/11/2006, No. 03-99001) 2006 U.S. App. LEXIS 20580: Counsel's failure to investigate petitioner's mental condition at the time of the murder and to adequately prepare his penalty-phase expert witness sufficiently undermined confidence in death verdict so as to require reversal of penalty phase. Counsel failed to provide crucial psychiatric records to his testifying expert, and failed to give him information regarding an unrelated kidnapping, which made the expert look "ill-prepared and foolish."

United States v. Hartz (9th Cir. 8/17/2006, No. 05-30134) 2006 U.S. App. LEXIS 21099: Jury instructions did not constructively amend indictment, thus allowing the jury to convict him of crimes that the grand jury did not charge. The instructions were not a constructive amendment, but simply a variance.

United States v. Johnson (9th Cir. 8/29/2006, No. 05-10708) 2006 U.S. App. LEXIS 22093: There is no "innocent possession" defense that would excuse a defendant for being a felon in possession of a firearm if he obtained it innocently and his possession was transitory.

United States v. Ruiz (9th Cir. 8/30/2006, No. 04-10308) 2006 U.S. App. LEXIS 22228: Evidence insufficient to prove possession of firearms in furtherance of drug trafficking crime where firearms were found in loft area, in main part of residence, in garage and in stairwell of main part of the residence and no fingerprint evidence linked either defendant to the firearms. Not even the co-conspirators were linked to the weapons. Government's argument that "somebody in that laboratory must have possessed the firearms" was not enough to "leap to that conclusion absent proof of possession of the firearms by at least one of the co-conspirators." Note that the defendants were not residents, though they had access to the house.

U.S. v. Scott (10th Cir. 8/1/2006, No. 05-6082) 455 F3d 1188: Government breached the plea agreement at issue by arguing for additional sentence enhancements.

U.S. v. Hunt (10th Cir. 8/10/2006, No. 05-6023) 456 F3d 1255: Defendant did not utter "forged" securities within the meaning of 18 USC 513(a), the statute under which he was charged, as he signed the checks at issue using his own true name, and the instruments explicitly and accurately identified him as an "authorized agent" of his employer.

11th Circuit

There were no new relevant 11th Circuit decisions for this update.

U.S. District of Columbia Circuit Court of Appeals

There were no new relevant U.S. District of Columbia Circuit Court of Appeals decisions for this update.

California Supreme Court

People v. Ramirez (8/7/2006, S012944) 39 C4th 398: Defendant had right to counsel of choice, even inexperienced counsel. (See also [NF] United States v. Gonzalez-Lopez (6/26/2006, No. 05-352) ___ US ___ [165 LEd2d 409; 126 SCt 2557].)

People v. Cook (8/14/2006, S042223) 39 C4th 566: Trial court has discretion and duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony. (People v. Hawkins (1995) 10 C4th 920, 948; EC 775.) The court may not, however, assume the role of either the prosecution or of the defense. (People v. Carlucci (1979) 23 C3d 249, 258.) The court's questioning must be "' temperate, nonargumentative, and scrupulously fair' "(People v. Hawkins, supra, 10 C4th at p. 948), and it must not convey to the jury the court's opinion of the witness's credibility. (People v. Rigney (1961) 55 C2d 236, 241.) Here, "questions to the three witnesses were very few and neutrally phrased," even if answers were not favorable to defendant.

People v. Ledesma (8/17/2006, S014394) 39 C4th 641: There was evidence that defendant may not have formed intent to steal from victim until after murder, so court should have instructed on theft as lesser of robbery. The evidence presented by the prosecution, however, overwhelmingly supported the conclusion that the primary motive for the killing was to prevent the victim from testifying that defendant had committed an earlier robbery.

People v. Pokovich (8/31/2006, S127176) 2006 Cal. LEXIS 10228: The impeachment of a testifying defendant at trial with statements made before trial to mental health professionals during a court-ordered examination to determine the defendant's mental competency to stand trial violates the federal Constitution's privilege against self-incrimination.

California Courts of Appeal

Carter v. Superior Court (7/27/2006, B182641) 141 CA4th 992: Court could not force the defendant to undergo the drug therapy to restore his competency where strict criteria of Sell v. U.S. (2003) 539 U.S. 166 was not satisfied.

People v. Vance (7/31/2006, C049453) 141 CA4th 1104: Judge abdicated his responsibility by letting his bailiff decide whether civil committee should be shackled. " "[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints." (People v. Duran (1976) 16 C3d 282, 290-291.) Defense counsel's request to have defendant unshackled was sufficient to preserve issue for appeal. The judge also erred in failing to formally instruct the jury regard the defendant’s courtroom restraints.

Jonathon M. v. Superior Court (7/31/2006, C052769) 141 CA4th 1093: Except in extraordinary circumstances, a trial judge should follow an opinion of the court of appeal that speaks to conditions or practices in the judge’s courtroom, even though the opinion is not final, until the opinion is depublished or review is granted. A published opinion may be cited or relied on as soon as it is certified for publication or ordered published. (Calif. Rule of Court, rule 877(d).)

In re Frank S. (8/1/2006, F049045) 141 CA4th 1192: Expert's opinion that the knife was possessed to benefit the gang was an improper opinion on an ultimate issue, and there was no other substantial evidence to support the expert's claim.

People v. Rubio (8/1/2006, H028213) 141 CA4th 1214: Defendant was entitled to new trial where the juror, who disclosed the hearing impairment during voir dire and was instructed to raise her hand if she could not hear what was being said in court, acknowledged after trial that she missed much of the testimony but was too embarrassed to tell the court. Relying on People v. Nesler (1997) 16 C4th 561 for guidance on the standard of review for a motion for a new trial based on jury misconduct, is an independent review when the misconduct implicates a significant constitutional issue, which it did here, and the court reviewed the issue de novo. Adequate proof of jury misconduct raises a presumption of prejudice. (In re Hitchings (1993) 6 C4th 97, 118.) The issue is whether the defendant received a fair trial, before a competent jury (Tanner v. United States (1987) 483 US 107, 126.) Here the juror was not being aided by a court provided listening devise, and therefore the defendant was denied his right to a fair trial.

People v. Brock (8/2/2006, B179876) 141 CA4th 1320: Statement made by defendant during plea negotiations should not have been admitted at trial as confession. A criminal defendant's offer to plead guilty "is inadmissible in any action or in any proceeding of any nature . . . . "(EC 1153.) "The purpose of the statute is to promote the public interest by encouraging the parties to settle a criminal case without the necessity of a trial." (People v. Magana (1993) 17 CA4th 1371, 1376.) "Bona fide plea negotiations include statements made to the trial court and to the prosecuting attorney because those are the participants in a plea bargain." (Id. at p. 1377.)

People v. Alvarado (8/16/2006, B183150) 141 CA4th 1577: Prosecutor committed prejudicial misconduct when she began her rebuttal argument by stating, I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred and [t]he defendant charged is the person who did it. A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside of the record. Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness. (People v. Frye (1998) 18 C4th 894, 971; accord People v. Stewart (2004) 33 C4th 425, 499.)

People v. Macarthur (8/24/2006, G035368) 2006 Cal. App. LEXIS 1291: Where some evidence suggested that property possessed may not have been taken with intent of depriving owner of possession for sufficiently extended time, defendant was entitled to instructions defining "stolen," and "theft," including intent requirement.

People v. Massie (8/29/2006, C050124) 2006 Cal. App. LEXIS 1307: Court addresses language in People v. Acevedo (2003) 105 CA4th 195 and People v. Brown (1989) 216 CA3d 596,"that when the facts "give equal support to two competing inferences, neither is established." (Acevedo, supra, 105 CA4th at p. 198; Brown, supra, 216 CA3d at p. 600.) "An inference is a logical and reasonable conclusion to be drawn from the proof of preliminary facts. It is the province of the trier of fact to decide whether an inference should be drawn and the weight to be accorded the inference. If the trier of fact's conclusion reasonably and logically follows from the proof of the preliminary facts, an appellate court will not interfere with the conclusion, even if the appellate court believes that a contrary conclusion would have been reasonable. If, on the other hand, the conclusion is mere guesswork, an appellate court will consider it to be conjecture and speculation, which is insufficient to support a judgment. Acevedo and Brown involved speculation and correctly concluded that such speculation did not support the convictions in those cases. They cannot be read to stand for the proposition that a conviction must be reversed when reasonable but conflicting inferences could have been drawn by the trier of fact. Such a standard of review would be contrary to California Supreme Court precedent."

People v. Frederick (8/29/2006, B163699) 2006 Cal. App. LEXIS 1309: An expert opinion is inadmissible "if it invades the province of the jury to decide a case." (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972.) Such evidence is "wholly without value" to the trier of fact. (Ibid.) The determination whether an expert witness's opinion bears upon or decides an ultimate issue in the case is sometimes a difficult decision, and "a large element of judicial discretion [is] involved." (People v. Wilson (1944) 25 C2d 341, 349.)

People v. Johnson (8/31/2006, F048042) 2006 Cal. App. LEXIS 1338: Conviction of second degree murder, conspiracy to murder, and accessory to murder is reversed where the prosecutor's withholding of police reports violated due process and requires a new trial.

New York Court of Appeals

There were no new relevant New York Court of Appeals decisions for this update.

Texas Criminal Court of Appeals

There were no new relevant Texas Criminal Court of Appeals decisions for this update.