HELPFUL CASES SEPTEMBER 2008
SELECTED STATE AND FEDERAL CASES FAVORABLE TO THE DEFENSE
1st Circuit Court of Appeals [None this update]
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 [None this update]
11th Circuit Court of Appeals
D.C. Circuit Court
of Appeals [None this update]
Supreme Court of
Delaware
Supreme Court of Florida
New York Court of
Appeals
Illinois Supreme Court [None this update]
Texas Criminal
Court of Appeals
Federal Courts (September 1-30, 2008)
Selected Decisions:
U.S. v. Riggi (9/4/2008, 2nd Cir. No.06-1280-cr(L)) 541 F3d 94: Hearsay: Error to admit plea allocutions of non-testifying co-conspirators.
U.S. v. Joseph (/9/2008, 2nd Cir. No. 06-5911-cr) 542 F3d 13: 18 USC 2422(b): Conviction for using the Internet to solicit a person defendant believed to be a minor to engage in sexual activity reversed where the jury was permitted to convict on an invalid legal basis. Most of the jury instruction on the "enticement" element properly reflected the required focus on attempting or intending to entice. The instruction stated that the Government need show only "that the defendant attempted to convince or influence the person he believed was a 13 year old girl to engage in a sexual act with him." However, the alternative basis for conviction in that instruction – "or made the possibility of a sexual act with him more appealing" – did not reflect the requirement of an intent to entice. By providing the "more appealing" formulation as an alternative to the "convince or influence" language, which had previously been explained as examples of "enticing," the challenged language permitted conviction even if defendant did not intend to entice the victim into engaging in a sexual act with him. Because the jury charge permitted conviction on an invalid basis and because the risk that the jury grounded its verdict on that basis was not insubstantial, the defendant was entitled to a new trial.
U.S. v. Kerley (9/25/2008, 2nd Cir. No. 07-1818-cr) 2008 U.S. App. LEXIS 20332: Rule of Lenity: Second count of failure to provide child support reversed.
U.S. v. Triumph Capital Group, Inc., (9/25/2008. 2nd Cir. No. 06-4970-cr) 2008 U.S. App. LEXIS 20333: Brady: Government improperly suppressed material exculpatory and impeaching evidence.
U.S. v. Green (9/2/2008, 3rd Cir. No. 06-2468) 541 F3d 176: (1) Miranda: Defendant’s responses and reactions of defendant to video evidence not admissible without Miranda; (2) Hearsay: The written statement of a confidential informant naming defendant as the person who had sold him drugs in a controlled buy was hearsay and not subject to an exception as a present-sense impression.
Kindler v. Horn (9/3/2008, 3rd Cir. No. 03-9010, 03-9011) 542 F3d 70: Death Penalty: (1) Mills v. Maryland: Jury instructions and verdict sheet that were used during the penalty phase of petitioner's trial denied him due process of law pursuant to Mills v. Maryland (1988) 486 US 367; (2) IAC at penalty trial.
Jamison v. Klem (9/30/2008, 3rd Cir. No. 07-1045) 2008 U.S. App. LEXIS 20576: Withdrawal of Plea: Guilty plea was not knowing and intelligent because defendant was not told prior to pleading guilty that he was subject to a mandatory minimum prison sentence of five years.
Boykin v. Webb (9/4/2008, 6th Cir. No. 06-5775) 541 F3d 638: Counsel Conflict: Sixth Amendment right to effective assistance of counsel was violated at trial and on appeal due to the actual conflict of interest.
Smith v. Berghuis (9/24/2008, 6th Cir. No. 06-1463) 543 F3d 326: Jury Composition Challenge: Sixth Amendment right to a jury drawn from a fair cross-section of the community violated due to systematic underrepresentation of African Americans.
Smiley v. Thurmer (9/5/2008, 7th Cir. No. 07-2901) 542 F3d 574: Miranda: Murder conviction vacated.
U.S. v. Blanchard (9/8/2008, 7th Cir. No. 07-2780) 542 F3d 1133: Judicial Testimony: Comments made by the trial judge during a pretrial suppression hearing regarding the credibility of a government witness were improperly admitted at trial as "judicial testimony" in violation of FRCP 605.
Osagiede v. U.S. (9/9/2008, 7th Cir. No. 07-1131) 543 F3d 399: IAC; Foreign Nationals: Counsel's failure to raise Violations of Article 36 of the Vienna Convention was deficient performance.
Paulino v. Harrison (9/4/2008, 9th Cir. No. 07-55429) 542 F3d 692: Batson: Petitioner made a strong prima facie showing of discriminatory intent in the pattern of the prosecutor's striking of potential jurors and the state offered no non-speculative evidence of non-discriminatory intent in jury selection.
U.S. v. Drake (9/15/2008, No. 06-10073) 2008 U.S. App. LEXIS 19555: A two-year delay between indictment in the local Guam court and indictment in federal district court did not violate appellant’s constitutional right to a speedy trial.
U.S. v. Lazarenko (9/26/2008, 9th Cir. No. 06-10592) 2008 U.S. App. LEXIS 20336: (1) 18 USC 1343; 18 USC 1346: Wire transfers not part of the execution of the scheme in question cannot support conviction for wire fraud. (2) 18 USC 2314: Interstate transfer of stolen property requires direct tracing of the stolen proceeds, and evidence of a comingled account will not suffice.
U.S. v. Schwartz (9/5/2008, 11th Cir. No. 05-11715) 541 F3d 1331: (1) Bruton: Prosecutor improperly permitted to introduce into evidence an out-of-court statement by codefendant. (2) Prejudice on Appeal; Prosecutor Argument to Jury: Admission of codefendant’s statement was prejudicial in light of prosecutor’s reliance on it during closing argument.
Williams v. Allen (9/17/2008, 11th Cir. No. 07-11393) 542 F3d 1326: (1) Death Penalty: Trial counsel’s investigation of mitigating evidence in defendant's background fell short of prevailing professional norms. (2) Batson: Defendant satisfied the exhaustion requirement as to his Batson claim.
Swanson v. State of Delaware (9/16/2008, No. 564, 2007) 956 A2d 1242: Double Jeopardy; Mistrial: Conviction vacated on double-jeopardy grounds where there was no manifest necessity for a mistrial in defendant's first trial when a witness asserted her privilege against self-incrimination.
Calabro v. State of Florida (9/18/2008, No. SC07-1105) 2008 Fla. LEXIS 1611: Statements of Defendant; Arraignment: Statements made by defendant during his arraignment indicating his desire to engage in plea negotiations were not admissible against him at his criminal trial.
Florida v. Powell (9/29/2008, No. SC07-2295) 2008 Fla. LEXIS 1647: Miranda: Failure to provide express advice of the right to the presence of counsel during questioning.
Inquiry Concerning a Judge (9/29/2008, No. 06-52 Re: Aleman, No. SC07-198) 2008 Fla. LEXIS 1645: Judicial Misconduct: Recommendation for a public reprimand is approved for a judge who imposed unreasonable requirements on defense attorneys who moved for her disqualification in a capital murder case, and subsequently threatened the attorneys with contempt.
People v. Shemesh (aff’d 9/16/2008, No. 201 SSM 32) 850 NYS2d 59: Grand Jury; Defendant’s Right to Appear: Prosecutor failed to accord the defendant reasonable time to exercise right to appear as a witness before the grand jury.
Texas Criminal Court of Appeals
Tita v. State of Texas (9/10/2008, No. PD-1574-07) 2008 Tex. Crim. App. LEXIS 858: Statute of Limitations; Prosecutor’s Duty to Plead: Texas statute required that the indictment to indicate on its face that a prosecution thereunder was not barred by the applicable statute of limitations and, if tolling were required to bring the alleged offense within the statute of limitations, the state was required to plead applicable tolling facts in the indictment.