Third Circuit: USA v. Amy Gonzalez

Sufficient evidence for conspiracy conviction where the deft claims a genuine belief in the inciting statements, but finder of fact holds them to be objectively false.

Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime.  Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.

For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.

As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.

A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.

Possibly prejudicial prior family court records properly admitted with limiting instructions.

Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.

Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.

,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.

Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect.  Vouching appropriately limited by instruction.

Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.

Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.

Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.

Injury to victim's children justified the increase of sentence for harming a vulnerable victim.

Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.

http://www2.ca3.uscourts.gov/opinarch/161540p.pdf

Tenth Circuit: Grissom v. Carpenter

Trial counsel's arguments in mitigation phase at capital trial largely covered the ground that a closer examination of petitioner's undiagnosed brain damage would have led to, so state habeas ruling that representation was not constitutionally ineffective was not an unreasonable one.

Defense counsel's concession of the elements of the crime made instruction on lesser-included offenses redundant, and was apparently a legitimate strategic decision to focus the jury's attention on mitigation.  As defendants cannot withdraw a defense, apparently stipulating to the elements shouldn't waive the instruction.  Voluntary intoxication instruction was not prejudicial, given the high standard for relief under state law, and exists as a complete defense, not a mitigation.  State habeas denial was therefore not unreasonable.

State habeas denial for cumulative error, presumably referencing ineffective assistance for the lack of lesser-included instruction and mitigation, was not unreasonable and contrary to law; de novo review of the total record in federal habeas can establish this.

https://www.ca10.uscourts.gov/opinions/16/16-6271.pdf

Seventh Circuit: Marcus Muhammad v. Del Pearson

Where contemporaneous documents establish that the warrant was vague due to clerical error, and that the vagueness was resolved by actual knowledge of the officers, the question can be resolved as a matter of law.

Arguable probable cause for arrest.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:15-3044:J:Hamilton:aut:T:fnOp:N:2204382:S:0

Seventh Circuit: USA v. David Watson

Phone tip that children were playing with guns had insufficient indicia of criminality to justify blocking in of vehicle and subsequent searches.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-17/C:17-1651:J:Hamilton:con:T:fnOp:N:2204352:S:0

Third Circuit: USA v. Chaka Fattah, Sr.

Trial court judge did not abuse discretion in interviewing jurors in the course of deliberations about the conduct of another juror.

No abuse of discretion in dismissal of juror for not deliberating where juror informed courthouse deputy that he intended to hold out "no matter what."

Jury instructions did not comport with Supreme Court holding issued after verdict but before sentencing on the scope of official acts within the bribery statute -- remanded.

Formal proposal for Congress to fund a specific project was a sufficiently official act.

Sufficient evidence for RICO conspiracy convictions.

&c, &c...

http://www2.ca3.uscourts.gov/opinarch/164397p.pdf

Sixth Circuit: Jamal Thomas v. George Stephenson

Ambiguity in state statute of Assault with Intent to Kill that seems to allow conviction for uncharged conduct, i.e., a potential future deadly assault rather than the charged non-deadly assault is, at most, an error of state law that does not rise to the level of a constitutional violation.

Dissent: Licit conviction for a crime that the deft did not commit rises to the level of extreme malfunction of the state criminal justice system.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0161p-06.pdf

Third Circuit: USA v. Dominique Johnson

No plain error in the fact that the jury didn't decide the question of whether the weapon was brandished, an element of the increased sentence, since no reasonable finder of fact could have decided otherwise.

On remand from the Supreme Court, deft can raise claims arising from cases decided during the pendency of the direct appeal.

State crime of unarmed bank robbery is categorically a predicate crime of violence.

Although jury was erroneously instructed that accomplice liability attached for brandishing a firearm if the deft was aware of it at the time that it happened, error is insufficiently plain to justify reversal.

Where a deft is not advised that the later counseled brief supersedes the earlier pro se filing, the court can equitably consider arguments raised in the earlier filing.

Although a predicate was double-counted in the indictment, insufficiently plain error, as other predicate counts resulted in convictions.

Other challenges -- 10th Amendment, Commerce clause - sufficient evidence.

http://www2.ca3.uscourts.gov/opinarch/111615p.pdf

Fifth Circuit: USA v. Ezell Brown, Jr.

Common-law rule holding that the place where the lender received he false statement establishes venue is inconsistent with the rule that the location of the crime is to be determined by the nature of the crime and the location of the acts.

Where the indictment alleges fraud in the supporting documents and the theory of the case becomes fraud in the application itself, there is no constructive amendment, since the offense as alleged included fraudulent verification of supporting documents at closing.

There is no requirement to establish that the fraudulent statement affected the lending decision; rather, it need only have a natural tendency to influence such a decision.

Reference in closing to truth-seeking role of the finder of fact did not dilute the required standard of proof.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40740-CR0.pdf

First Circuit: US v. Rose

 A decision that is cited in another opinion before being vacated as moot remains binding circuit precedent.

As recklessness could possibly suffice for a conviction requiring wantoness, the predicate violent felony is not in fact a predicate.

Challenging prejudice on appeal does not preserve a pro forma argument against cause.

http://media.ca1.uscourts.gov/pdf.opinions/17-1059P-01A.pdf

Sixth Circuit: United States v. Ramess Nakhleh

The loud and unusual noises in a post office that are prohibited by law are determined by the usual decorum and operation of the post office, as opposed to what might be loud or unusual for the person; sufficient evidence that the deft was loud and unusual; no plain error in refusal to consider an audio recording where that recording only covers part of the incident in question.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0143p-06.pdf

Sixth Circuit: United States v. Malik Farrad

Sufficient evidence for the finder of fact to have determined that the gentleman in the Facebook photos with the gun was the deft.

Social media photos are not self-authenticating business records, but there is no need for the identity of the page to be established -- the identity of the subject of the photo is a matter for the finder of fact, and are admissible so long as there is sufficient evidence that they are what they appear to be.

Shaky qualifications for expert testimony on Facebook photo-posting habits of suspects ultimately harmless.

Predicate offenses properly counted for sentencing where each is defined as happening on or about a certain day, despite being connected by a common conspiracy.

No plain error in counting convictions in absentia as predicate convictions.

Sentence increase due to predicate offenses didn't need to be separately charged.

Warrant not defective when it identifies the Facebook data as present in the jurisdiction.

Year and a half delay after service of warrant on FB didn't invalidate the warrant.

Execution of warrant outside of district not plain error, cf. 2703(A). 

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0141p-06.pdf

Second Circuit: United States v. Thompson

Minor trafficking statute is not overbroad, since any material assistance provided to victims by charitable organizations that might fall within the proscriptions of the act do not prohibit the expressive associations protected under the First Amendment, and prosecutions are unlikely for assistance provided by family members, who would, in any even, lack the needed mens rea for culpability.

A mens rea requirement as to the victim's age in one section of the statute does not necessarily imply the same degree of knowledge for conviction under a provision providing increased penalties for a victim of an even lower age.

Venue is proper in the district where the minor was induced and enticed, despite the fact that the film was created elsewhere.

http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/1/doc/16-2986_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/1/hilite/ 

Eighth Circuit: United States v. Tong Moua

As the trial court is best positioned to judge the facts, sufficient evidence for robbery conviction where a single witness who had earlier identified another person made an in-court identification, deft was seen in a vehicle that was later found near a robbery with incriminating writing-pad impressions, warrantless cell-phone location data placed the deft near the robberies, and items of clothing similar to those seen during the robbery were found at the apartment.  Sentence substantively not unreasonable.

http://media.ca8.uscourts.gov/opndir/18/07/172046P.pdf

Second Circuit: USA v. Hernandez

Recklessly or negligently placing oneself in a situation where duress is probable negatives the defense.

Absent a request for special verdict, acquittal for conduct later found by a preponderance and used in sentencing does not imply a theory of the crime that amounts to a vindication of the conduct.

http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/doc/16-2765_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/hilite/

DC Circuit: USA v. Franklin Torres

Sufficient circumstantial evidence from the photographs to establish that production of the photographs was a purposeful act.

Leading dispositve question to reticent victim was within the court's discretion.

Concur/dissent:  The statute requires a severable, independent purpose of producing the photographs.

https://www.cadc.uscourts.gov/internet/opinions.nsf/17A4126212AF784D852582BF0050958A/$file/16-3078-1738916.pdf

Fourth Circuit: US v. Chavez

No Brady violation in nondisclosure of prosecution witness immigration records, as not prejudicial, and the favorable immigration treatment was sufficiently raised during trial to discredit the testimony.

No Napue violation, as gov't didn't know of the misstatement in advance, and it was corrected on cross.

Scattered prosecutorial misconduct incidental.

No error on not instructing on the lesser included crimes, as a murder was committed, and the defts didn't have to actually physically participate in the murder to be found guilty of it.

Admission of evidence on uncharged murder not dispositive, and arguendo, harmless error.

Claiming lack of foreknowledge not enough to justify severance as an antagonistic defense.

Statute requiring second chair counsel in capital cases requires prompt request for replacement by the deft; court did not abuse its discretion in denying severance and continuance.

Sufficient evidence.

Historical cell site information admitted under the good faith exception.

No Eighth Amendment violation in life sentence for crime committed at 18 without specific findings from jury.

http://www.ca4.uscourts.gov/opinions/164499.P.pdf

DC Circuit: USA v. Gregory Sitzmann

Consideration of extraterritorial conduct did not violate the presumption against extraterritoriality, given the domestic elements of the conspiracy.

Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.

As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.

No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.

Purportedly false evidence presented insufficiently prejudicial.

Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.

No ineffective assistance.

https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf

Seventh Circuit: USA v. Jose Maldonado

Sufficient evidence for conspiracy, as the distrustful arms-length relationship with the drug supplier was extensive, and occasionally worked on credit; a second connection between two dealers described as brotherly in fact speaks to the closeness of the conspirators.

Multiple conspiracies instruction proper, as there was no necessary hub to the group.

No error in denial of meeting-of-the-minds instruction, as distrust among the participants did not negate the business purpose of their association.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-1402:J:Bauer:aut:T:fnOp:N:2174265:S:0

Eighth Circuit: United States v. Nicholas Ryan Hemsher

Inconsistencies in self-interested witnesses' testimony were subject to cross, and do not establish lack of sufficient evidence.

Exclusion of prior inconsistent statement to police was harmless, as inconsistencies explored elsewhere, and no contemporaneous proffer; exclusion of exited utterances by police during search was proper, since police officers don't get excited--also harmless.

Sufficient evidence for sentence enhancement based on number of firearms.  Enhancement for another felony found by a preponderance can apply to firearm trafficking and possession, so long as it's not the actual underlying crime charged.  Texts from incarceration referencing "snitches" sufficed for obstruction enhancement.  Disparities in co-conspirators' sentences not per se unreasonable.

http://media.ca8.uscourts.gov/opndir/18/06/172189P.pdf

Seventh Circuit: USA v. Donald S. Harden

Sufficient evidence to establish death from the drugs sold where timeline suggests proximate consumption, despite statements in the record to the contrary regarding the substance's toxicity.

Sentencing enhancement for death requires merely actual causation, not proof of proximate cause; conspiracy provision does not imply reasonable forseeability.

Court's exclusion of testimony about another source for drugs was harmless error and not an abuse of discretion, as it might have tended to confuse.

Giving a timestamped convenience store surveillance photograph of the deft to the jury during deliberations did not warrant a mistrial.

Prosecution statements in closing and rebuttal closing (saying that the deft knew the present batch of heroin to be fatal, as opposed to the previous batch; saying that deft furnished drugs on both days as opposed to just one) don't warrant reversal, sufficiently cured ("if what the lawyers said is different than the evidence that you remember, the evidence is what counts.")

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-1270:J:Flaum:aut:T:fnOp:N:2173545:S:0