Where the proposed generic federal definition of the crime includes a mens rea element of desire or gratification, a state statute requiring the intent to hire someone for those purposes has sufficiently similar scienter. State decision that an incidental harassing solicitation of passerby demonstrated sufficient intent for a parallel statute did not make the state statute's reach broader than that of the federal crime.
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Showing posts with label Crim. Show all posts
Showing posts with label Crim. Show all posts
Sixth Circuit: United States v. James Wilder, II
No plain error in admission of testimony on competence of police officer in identifying a firearm, where a prejudicial inference might have existed that firearms were common in the area.
Rational factfinder could have found that the deft's statements were a substantial step towards witness tampering, distinct from solicitation, in that they counseled, commanded, or induced someone to engage in the practice.
Represented deft's pro se motions by letter separate from attorney's filing not considered.
Fifth Circuit: USA v. Robinson
Sufficient evidence for the jury to have disbelieved the witness' recantation. Sufficient evidence for the federal obstruction charge where the prompting was procedurally about a separate state investigation, but dealt in substance with the set of events that became a federal matter.
Absent specific briefing, body camera footage outside of the portion agreed to be admissible as a prior statement of identification isn't coherent enough for appellate review as to specific statements. Admission not substantial injury and cumulative in nature with respect to admissible evidence. Portions of phone calls admitted for context with admissible portions of the call, but without a limiting instruction, were harmless error, as they were cumulative with admissible statements elsewhere. Deft did not identify portions of the record that would justify a prior-inconsistent-statements instruction. Closing remarks were not improper, as they accurately characterized the victims as vulnerable, the invocation of justice was not calculated to inflame, inferences were appropriately made from the evidence, and the court appropriately limited the influence of the lawyers' opinions in the closing instruction.
Plain error where the court indicated that it might be bound by the earlier sentencing judge's order that the sentence for revocation of supervised release run consecutively with the subsequent sentence for the second offense.
Eleventh Circuit: USA v. Kendrick Eugene Duldulao, et al.
Although the conspiracy instruction might have been faulty, a prior panel held that it sufficiently conveyed the mens rea required for culpability, and circuit precedent can't be changed within the circuit absent en banc review. Circuit precedent to contrary was for general offense of conspiracy, rather than specific statute.
Although the other challenged instruction was suggested by the deft at trial (in accordance with longstanding precedent), subsequent changes in the caselaw are an exception to the invited-error doctrine, and sufficient under plain error review.
Sufficient evidence for conviction. Expert medical testimony on appropriate standard of care, even when dispositive, wasn't plain error.
Ninth Circuit: Tellez-Ramirez v. Garland
Under modified categorical review, the state drug statute is a valid immigration predicate. The list of drug classes doesn't establish several means of committing a single crime in itself, but is rather a list of elements establishing distinct violations--this is due to the varying lengths of sentence, caselaw referencing the need to prove specific substances within a single class, and the fact that the specific illicit substance is named within the jury instructions.
The overbreadth of the state statute relative to the federal crime doesn't import a similar overbreadth into the mens rea; a belief that the substance was proscribed under state law would suffice for a state conviction that could pass Immigration muster, as the state mens rea and federal mens rea requirements are identical.
State caselaw incorporating solicitation into aiding and abetting, and under which, by statute, the conduct is culpable as the conduct of a principal under the specific state statute doesn't make the specific state statute broader than the federal version, since solicitation alone would be an inchoate offense distinct from an accessory's conviction as a principal under the specific statute, which would require a completed offense--not mere solicitation.
Eighth Circuit: United States v. Michael Goforth
Given another circuit's on-point precedent (with a novel definition of the generic crime), a state kidnapping statute is a valid predicate, as the state court decision that expanded the bounds of the statute beyond those of the generic crime did so in dicta, after first determining that the conduct satisfied the state statute.
Sixth Circuit: United States v. Yun Zheng
Given the terms of the current statute, harboring an alien doesn't require specific intent; rather, it proscribes conduct that substantially facilitates remaining and avoiding detection, either knowingly or in reckless disregard of the risk. Circuit precedent on the term doesn't bind, as the changes to the underlying statute have been significant. Error would be harmless anyway, as the aliens being in plain view wouldn't exculpate. Instructions didn't invade 6A territory of the jury.
Second Circuit: United States v. Calk
Bank officer's approval of loans in hopes of a Presidential appointment was illegal, as, for purposes of the statute, corrupt conduct need only be motivated at least in part by improper motives, and commercial decisions that might offer legitimate benefits are not insulated from the inquiry. The thing of value at issue need not have pecuniary value. The value of the intangible thing at issue can be determined to exceed the statutory minimum by establishing its value to the deft.
The grand jury subpoena of a third party wasn't improper; although the suspicious timing was enough to shift the burden, the subsequent superseding indictment, among other things, established its legitimacy.
Seventh Circuit: USA v. Darrick Vallodolid
In that the political beliefs expressed about immigration policy and discriminatory law enforcement were not exclusively rooted in the venirepersons' ethnicity, their removal from the pool of jurors wasn't constitutionally impermissible.
Given the small size of the sample, statistical analysis and disparate impact analysis alone is insufficient to establish discriminatory nature of the strikes.
As the eyewitness testimony was riddled with inconsistencies beyond the exculpatory ones, it was for the finder of fact to determine its credibility.
Sufficient evidence to find that the crime was gang-related, even absent formal affiliation with the gang, in that it furthered the activities of the former gang.
Sufficient evidence of the conspiracy to admit the statement of the co-conspirator. Statement indicating possession of drugs in the house admitted not for the truth of the matter asserted, but to establish that the robbers believed there to be drugs there.
Sufficient evidence for conspiracy, given the customary procedures of the gangs and the defts' involvement with them. Sufficient circumstantial evidence to establish drug quantities.
Federal RICO proceeding wasn't required to incorporate state predicate offense's procedural requirement of bifurcated penalty phase.
Second Circuit: Washington v. Napolitano
Police officers swearing to arrest warrant affidavit and effecting arrest were not performing functions closely tied to the judicial process in allegedly acting at the prosecutor's explicit instructions; a prosecutor providing testimony in support of a warrant would similarly not be shielded by absolute prosecutorial immunity.
Omission from affidavit testimony of factual details critical to the authorizing magistrate's assessment creates an issue for trial as to whether the totality of the omissions were material.
DISSENT:
Arguable probable cause; officers' subjective belief in innocence would be immaterial.
Ninth Circuit: United States of America v. Steven Ray Prigan
As it criminalizes violence or the threat of violence against property as well as persons, Hobbs Act Robbery is categorically not a crime of violence under the sentencing guideleines. Similarly, the generic crime of Robbery enumerated elsewhere in the guidelines is narrower than Hobbs Act Robbery, since federal Robbery requires imminent danger to the person; the generic crime of Extortion is also narrower, as caselaw requires threats to be directed against the person.
Not harmless error, as the court didn't explain a basis for variance that would account for the resulting variance.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/18-30238.pdf
Ninth Circuit: USA V. Steven Bachmeier
Finder of fact could rationally have decided that a request for a case to be assigned to another judge, and that contained a threat against that first judge was in fact addressed to the first judge even though the note was addressed to the courthouse.
Although the jury instruction didn't adequately convey the element of subjective intent to threaten, the error was harmless, since the deft's only argument against subjective intent was that the note had not been addressed to the judge, and the note, read plainly, was a true threat.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-30019.pdf
DC Circuit: USA v. Shan Shi
Even absent testimony from cooperating witnesses that the deft had entered into the trade secret conspiracy, there was sufficient substantial evidence for the finder of fact to conclude from the circumstances that such a tacit conspiracy existed, and that the deft had agreed to join it.
Sufficient evidence to indicate that at least two conspirators believed that the appropriated information contained trade secrets.
CONCURRENCE:
The government didn't misrepresent the evidence.
CONCURRENCE:
The government misrepresented the evidence.
Eighth Circuit: United States v. Benjamin Yackel
As both the state crime of aiding and abetting and the federal application of the generic offense require intentionality but contemplate presence as a means of establishing intention, the state statute is a crime of violence under the Guidelines and ACCA.
Seventh Circuit: USA v. Rita Law
Given the complexity of the investigation and the need to explain it to the jury, it was not an abuse of discretion to admit the hearsay statements given to federal investigators under the "course of the investigation" exception.
Unwitnessed affidavit was properly authenticated by the details in the substance of the affidavit.
Financial threats, psychological threats, and threats to immigration status provided sufficient evidence for conviction under the statute.
The involuntary servitude sentencing factor was correctly added to the transportation charge. Sufficient fear was created in the commission of the offense to justify the relevant sentencing factor. Obstruction sentencing factor correctly applied for perjured affidavit.
Below-guidelines 360 month sentence was reasonable.
Eighth Circuit: United States v. Timothy Burns
As the executive had access to the financials, exercised purchasing authority, and ran the day-to-day operations, evidence was sufficient for a finding of willful blindness as to the representations; also, the willful blindness instruction was appropriate.
Indictment alleging two codefts engaged in conspiracy and wire fraud was not constructively amended by a theory of the case that the offenses were committed with others as opposed to each other, since the text of the law refers to a single defendant.
No clear error in the court's refusal to give an explicit unanimity instruction, or in not explicitly defining the scienter alternatives to willful blindness.
Court's not polling the jury can't be raised on appeal when explicitly waived at trial.
Eighth Circuit: United States v. Arlando Staten
Agent testimony sufficient to establish by a preponderance that the deft committed bank robberies during supervised release; within-guidelines sentence wasn't an abuse of discretion.
Eighth Circuit: United States v. Chimanga Smith
Traffic violation and subsequent flight established probable cause for stop and placing the driver in handcuffs.
Plain-view exception allows a police officer to shine a flashlight through the windshield after all of the suspects have left the car.
No error in declining to instruct on the lesser included offense of possession, as there was insufficient evidence probative of likelihood for individual use.
(Seven uses of "Cleaned Up" signal in nine page opinion.)
Third Circuit: USA v. Marcus Walker
Historical cell site information obtained without a warrant appropriately considered under the good faith exception.
Where the underlying data was also admitted, testimony by only one of several collaborating investigators did not violate the Confrontation Clause.
Investigator's testimony that the technical evidence was consistent with the physical investigation was not improper vouching or bolstering.
As Hobbs Act Robbery is simply the common law felony in an interstate commerce and a non-physical threat therefore wouldn't fall within its scope, the completed crime is categorically a crime of violence.
As the attempt presumes the full offense, the US Code generally defines attempts specific to each offense, and the intent of the legislature was to prevent violent crime, attempted Hobbs Act Robbery is categorically a crime of violence.
Jury instructions sufficiently identified the robbery, and not the conspiracy as the predicate for convictions under the Hobbs Act.
First Circuit: US v. Padilla-Galarza
Where deft counsel approves plan of insulating confession of codefendant from incriminating the deft, review is for plain error; in this case, no error plain or otherwise when incriminating conclusion could only be reached by inference.
District Court did not abuse its discretion in issuing a protective order prohibiting leaving cooperating witnesses' statements with the deft, as there was sufficient showing of good cause, the Jencks Act statutory right to the materials was adequately preserved, and deft's courtroom misbehavior justified the limitation on the 6A right to the materials.
Court adequately ensured sufficient Jencks Act access to agents' notes by questioning testifying agent as to scope of note-taking and accepting their answer.
Limiting instruction delivered standing-up after deft's courtroom outburst appropriately preserved the proceedings against mistrial.
Prosecutor's recital of plea condition that cooperating witness must tell the truth was not improper vouching, neither was the court's reference to "a cooperating witness of the United States of America."
No plain error in instruction on deft's testimony indicating an interest in the case, as it didn't belabor the fact; lack of limiting instruction against codeft's outburst wasn't plain error given other evidence of guilt.
Identification and withdrawal of claim of sentencing error during proceeding waives the claim in direct review.
No abuse of discretion in not considering mandatory minimums for other counts.
Court appropriately refused to consider elements of competency report as hearsay, as they lacked required indicia of credibility.
Plausible rationale makes 228 month bank robbery sentence not substantively unreasonable.
Deft claim that money could be cleaned from the damage done by anti-theft devices is speculative; FDIC coverage of stolen funds should not be considered in restitution order, as insurance is generally not considered.
No substantive sentencing error in 228 month sentence for bank robbery.
Ineffective Assistance claim insufficiently clear in the record for consideration on direct review.
Subscribe to:
Posts (Atom)