HELPFUL CASES SEPTEMBER 2007

    1st Circuit Court of Appeals
    2nd Circuit Court of Appeals
    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 [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 [None this update]
    Supreme Court of Delaware
    Supreme Court of Florida
    Illinois Supreme Court
    Illinois Courts of Appeal
    New York Court of Appeals [None this update]
    Texas Criminal Court of Appeals

Federal Courts (September 1, 2007-September 30, 2007)

1st Circuit Court of Appeals

U.S. v. Azubike (1st Cir. 9/21/2007, No. 06-2255) 2007 U.S. App. LEXIS 22524: Possession of heroin conviction reversed due to prosecution misconduct in making misstatements.

U.S. v. Becker (2nd Cir. 9/13/2007, No. 06-1274) 2007 U.S. App. LEXIS 21923: Crawford v. Washington (2004) 541 US 36 claim not procedurally barred.

U.S. v. Whitley (2nd Cir. 9/17/2007, No. 05-3359-cr, 06-4444-cr) 2007 U.S. App. LEXIS 22125: Appellate counsel’s motions to withdraw under Anders v. California (67) 386 US 738, denied where counsel's Anders briefs fail to address adequately the reasonableness of defendants' sentences.

U.S. v. Capoccia (2nd Cir. 9/19/2007, No. 06-0669) 2007 U.S. App. LEXIS 22333: Forfeiture order may not be based on uncharged offense which does not bear an adequate statutory nexus to the violations of which defendant was convicted.

U.S. v. Otero (3rd Cir. 9/12/2007, No. 05-3739 2007 U.S. App. LEXIS 21819: Failure to object to an improper sentence enhancement constituted ineffective assistance of counsel.

U.S. v. Morganfield (5th Cir. 9/25/2007, No. 05-51395) 2007 U.S. App. LEXIS 22733: Insufficient evidence to find defendants guilty for conspiracy to utter a fictitious instrument and aiding and abetting the uttering of a fictitious instrument because a check, even if it is worthless, is not, as a matter of law, a "false or fictitious instrument."

Ferensic v. Birkett (6th Cir. 9/4/2007, No. 06-2342) 2007 U.S. App. LEXIS 21090: Exclusion of defense witnesses was denial of 6th Amendment right to present a defense.

Girts v. Yanai (6th Cir. 9/5/2007, No. 05-4023) 2007 U.S. App. LEXIS 21164: Statements by a prosecutor were misconduct and violated petitioner's Fifth Amendment rights, and were sufficiently flagrant to warrant reversal of petitioner's conviction despite trial counsel's failure to object.

U.S. v. Brock (6th Cir. 9/6/2007, No. 05-6621, 05-6622, 05-6623, 05-6645) 2007 U.S. App. LEXIS 21276: The payor of a bribe to a state official may not conspire with that official to extort property from himself in violation of the Hobbs Act.

U.S. v. Hearn (6th Cir. 9/11/2007, No. 06-5854, 06-5855) 2007 U.S. App. LEXIS 21703: Prosecutor committed prejudicial misconduct by repeatedly soliciting testimony regarding confidential informants' statements.

Garner v. Mitchell (6th Cir. 9/11/2007, No. 02-3552) 2007 U.S. App. LEXIS 21705: Defendant did not knowingly and intelligently waive his Miranda rights.

U.S. v. Jones (6th Cir. 9/11/2007, No. 05-6414) 2007 U.S. App. LEXIS 21707: Judgment of forfeiture reversed where the Government did not establish that there was a nexus between defendant's criminal activity and the property after she acquired title.

U.S. v. Vasquez-Ruiz (7th Cir. 9/17/2007, No. 06-2180) 2007 U.S. App. LEXIS 22145: Presumption of prejudice from jury misconduct required new trial.

U.S. v. Spirk (7th Cir. 9/26/2007, No. 06-3534) 2007 U.S. App. LEXIS 22735: Evidence was insufficient to support fraud conviction.

Jordison v. Gonzales (9th Cir. 9/4/2007, No. 04-71026) 2007 U.S. App. LEXIS 21074: Conviction under California Penal Code section (PC) 452(c) for "recklessly set[ting] fire to . . . a structure or forest land" was is a "crime of violence" under 18 USC 16(b).

Polk v. Sandoval (9th Cir. 9/11/2007, No. 06-15735) 2007 U.S. App. LEXIS 21716: Defendant’s federal constitutional right to due process was violated because the instructions given at his trial permitted the jury to convict him of first-degree murder without a finding of the essential element of deliberation.

U.S. v. Sargent (9th Cir. 9/20/2007, No. 06-30498) 2007 U.S. App. LEXIS 22425: A mail technician's conviction and sentence for theft of public property and theft of postal service property is reversed where: 1) the district court erred by holding that the government proved Postage Statements had "value" in excess of $1,000 within the meaning of 18 USC 641; and 2) the district court also erred by holding that the government proved the Postage Statements had "value" in excess of $1,000 within the meaning of 18 USC 1707.

U.S. v. Schaefer (10th Cir. 9/5/2007, No. 06-3080) 2007 U.S. App. LEXIS 21200: Government failed to establish the requisite jurisdictional nexus of a movement across state lines, or movement in interstate commerce. The government's evidence concerning defendant's use of the Internet, standing alone, was not sufficient to establish that the child-pornography images at issue moved across state lines.

Watson v. State (9/11/2007, No. 72-2007) 2007 Del. LEXIS 403: Judge abused her discretion when she failed to recuse herself because defendant's rape trial immediately followed an earlier trial in which she had found the same defendant guilty of robbery in the second degree.

Insko v. State of Florida (9/20/2007, No. SC06-1619) 2007 Fla. LEXIS 1676: For purposes of a statute outlawing lewd or lascivious conduct, the defendant's age is an element of the crime, as opposed to a potential sentencing enhancement, and thus must be alleged in the indictment or information, proved at trial, and found by the jury.

Polite v. State of Florida (9/27/2007, No. SC06-1401) 2007 Fla. LEXIS 1789: Knowledge that a victim is a law enforcement officer is an essential element of the offense of resisting an officer with violence under Florida Statutes section 843.01.

People v. McKown (9/20/2007, No. 102372) 2007 Ill. LEXIS 1163: Trial court and the appellate court erred in taking judicial notice of the general acceptance of the reliability of the HGN (Horizontal Gaze Nystagmus) test as an indicator of alcohol impairment without conducting a Frye hearing.

People v. Powers (9/24/2007, No. 2-06-1246, 2-07-0093cons.) 2007 Ill. App. LEXIS 1023: Any party, whether represented by counsel or not, has the power to withdraw an appeal by any means and the court cannot conclude that a defendant must proceed with an appeal simply because counsel has already filed a notice of appeal.

Rubio v. State of Texas (9/12/2007, No. AP-74,852) 2007 Tex. Crim. App. LEXIS 1125: The trial court erred in admitting the statements made to the police by defendant's common-law wife and alleged accomplice in the murders.

Ex Parte Martinez (9/12/2007, No. AP-75,364) 2007 Tex. Crim. App. LEXIS 1121: Death penalty verdict reversed where the trial jury did not have a vehicle to meaningfully consider applicant's mitigating evidence.