Fifth Circuit: USA v. Karl Scott

@justicewillett

Conspiracy for Possession with Intent to Distribute doesn't require actual or constructive possession; it suffices that the deft formed an agreement for the others to possess the drugs, knew of that agreement, and voluntarily participated in it.

Aiding and Abetting on the same charge is established when deft associates with a criminal venture, ensures its occurrence, purposefully participated in the venture, and sought to make it succeed.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40552-CR0.pdf

Ninth Circuit: US v. Flora Espino

Although the general verdict form erroneously indicated that a finding of not guilty would also be subject to the qualification that it had been found beyond a reasonable doubt, the defendant's rights were not substantially prejudiced, given the instructions at trial.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-50344.pdf

Second Circuit: United States v. Jones

Given officer's observation of ammunition in the car, sufficient probable cause for the warrantless search of an automobile parked in a shared residential driveway.

http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/2/doc/16-87_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/2/hilite/

Second Circuit: Giunta, et al. v. Dingman, et al.

Domestic transaction was sufficiently irrevocable to establish culpability under the statute, despite the fact that the transaction would later have to be cleared by foreign banks -- any possible cancellation would come from the closing entity, not the counterparty.

Given the substantial connections to the US, including citizenship of the defts and the place of the transaction, the ties are sufficient to overcome the presumption against extraterritoriality.

http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/3/doc/17-1375_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a2f2ecf0-a8b8-4c4b-b175-158f6c9eca38/3/hilite/

First Circuit: US v. Lee

Out of court statements not subject to the Confrontation Clause and hearsay scrutiny had sufficient indicia of reliability to establish the drug quantities used at sentencing.

http://media.ca1.uscourts.gov/pdf.opinions/17-1490P-01A.pdf

DC Circuit: US v. Dawayne Brown

Error on admission of prior conviction was invited, as counsel insisted that it be included.

No plain error in lack of special unanimity instruction.

No error in use of the term "narcotics" in Burglary instruction where illegal nature of drugs was necessarily implied.

Sufficient evidence for constructive possession inside the apartment.

Plea colloquy impermissibly suggested that deft may later challenge the reasonableness of the sentence.

Clear error for the sentencing court not to refer to the sentencing guidelines' recommendation that the sentence be imposed to run concurrent with the prior sentence.

Upward variance insufficiently explained.

Concurrence: acquitted conduct shouldn't be used to increase the sentence.

Dissent in part: Terms of written waiver were plain, upward departure sufficiently explained.

https://www.cadc.uscourts.gov/internet/opinions.nsf/11D51D8162565F72852582AD0054B1E6/$file/15-3056-1736068.pdf

DC Circuit: US v. Calvin Stoddard

Description of the investigation to this point and agent's general expertise established sufficient necessity for the wiretap order.

Insufficient evidence for money-laundering conviction, as the vehicle purchase was open, and there was insufficient evidence of intentionally promoting the illegal activity.

Sufficient evidence for conspiracy, despite unreliable witness. 

Deft decision not to testify waived challenge to ruling that he could be impeached on cross with prior conviction.

Each member of the conspiracy must have sufficient knowledge or foreseeable understanding  of drug amounts triggering mandatory minimums for those minimums to apply.  Circuit split flagged.

https://www.cadc.uscourts.gov/internet/opinions.nsf/CF9C2E37DB18AFB9852582AD015-306054B206/$file/0-1736057.pdf

Fifth Circuit: USA v. Richard Evans

No plain error in conviction where the procedures of the medical practice were the subject of testimony and the link to the individual cases in the indictment was merely the patients' medical files.

Finder of fact might reasonably have found the non-narcotics elements of the medical practice to be cookie-cutter and superficial cover for the actual work of the practice.

Even absent a showing as to the amount of "clean money" in a commingled account, no plain error in the aggregation of all withdrawals in computing the total amount of withdrawals to determine if the amount withdrawn must necessarily have included the criminal proceeds.

No plain error in mail fraud conviction where finder of fact might have found an implied promise in the patient communications of a proper standard of care.

Witness' opinion of illicit nature of practice sufficiently based in commonsensical inference.

Arguendo, if Confrontation Clause was violated by not allowing deft to cross after prosecution assertion in direct that witness (who had been notified that she was a target of an investigation) was not a suspect; testimony was cumulative.


http://www.ca5.uscourts.gov/opinions/pub/17/17-20159-CR0.pdf

Second Circuit: U.S. v. Daugerdas

Although, since the interest attached at the time of the offense, the government has a superior claim to the forfeited funds, if the recipient of a gratuitous transfer can allege facts sufficient to infer that the transfer preceded the criminal acts, Due Process and the statute both allow the third party, despite the issues resolved in the criminal action, to claim a superior interest, since commingling of funds would bar the relation-back of the government's interest.

"Pled."

http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/3/doc/17-898_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/594b7f87-3c10-48a4-8c8c-42b1d446d0a8/3/hilite/

Eleventh Circuit: US v. Ramon Cobena Duenas

Sufficient evidence for a courier's conviction for counterfeiting conspiracy under the prudent smuggler doctrine where the prosecution demonstrates a plenitude of contacts among the organization, the courier evinces an awareness of the unlawful nature of the operation, and the courier's actions are critical to the success of the operation.

http://media.ca11.uscourts.gov/opinions/pub/files/201710509.pdf

US v. Marcel King

Possible future offender registration requirement is an insufficient collateral consequence of supervised release revocation to prevent mootness after completion of the sentence.


http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/04/17-10006.pdf

Eighth Circuit: United States v. James Hess

Crim, Taxidermy


Transaction involving a rare taxidermy specimen currently outlawed but initially taken when legal violated the Act.

Sentence substantively reasonable.

United States  v.  James Hess

Eighth Circuit: United States v. Stoney End of Horn

Crim, FRE, Hearsay


Sufficient evidence despite inconsistencies, as inconsistencies could have been raised in cross-examination.

Error to admit hearsay, as external corroboration is not an indicium of speaker's truthfulness.  Harmless error, given corroboration.

No abuse of discretion in upward departure in sentencing.



United States  v.  Stoney End of Horn

Eighth Circuit: United States v. Marcus Eason

 FRE, Crim


No abuse of discretion in barring police videotape on cross, as it would be impeachment on a collateral matter, or on recall, as the prosecution hadn't been given a copy and the omission didn't impact deft's substantial rights.

No abuse of discretion in barring deft's crime scene photos, as prosecution hadn't been given a copy, and the omission didn't impact deft's substantial rights.

Sufficient evidence on possession charge.

United States  v.  Marcus Eason

Eighth Circuit: United States v. Kenneth Borders

Conspiracy, Crim, Accomplice, FRE


Different theories of crime on special verdict do not necessarily indicate separate conspiracies.

Rental of unit and possession of key insufficient for accomplice liability where there was no proof that the deft knew the items stored there to be stolen.

 Admission of evidence about civil commercial violations was harmless error.

No abuse of discretion in limiting cross for cooperating witnesses.

Admission of earlier plea agreement as evidence of overt act wasn't double jeopardy.

Summary timeline did not violate FRE.

Sentencing correct on merits.



 United States  v.  Kenneth Borders

First Circuit: US v. Ortiz-Islas

Souter, Crim, Conspiracy, FRE, Sentencing


Plan to sell drugs in the jurisdiction was a second plan within the same conspiracy, as opposed to a second conspiracy.

Post-indictment evidence was sufficiently probative to be allowed.

Courts potential assignment of minimum sentence was at most harmless error.

No abuse of discretion in disparate sentences for co-conspirators.


US v. Ortiz-Islas

Eighth Circuit: United States v. Demetrius Colbert

Crim, Fourth Amendment, FRE, Conspiracy, Sentencing


Sufficient showing of alternative means before wiretap.

Connection to the person sufficed for search warrant for house.

No abuse of discretion in refusing to allow evidence of circumstances in a similar police search.

Conspiracy counts appropriately joined to firearms counts, as they arose from same conspiracy.

Sufficient evidence.

Life sentence procedurally & substantively reasonable.


United States  v.  Demetrius Colbert

Fifth Circuit: USA v. Henry Walker

Drugs, Guns, FRCrimP, Crim


Given quantity of drugs, sufficient facts in evidence to support a guilty plea for possession of a firearm in furtherance of the drug crimes, despite lack of showing as to proximacy of guns to drugs or presence of ammunition.



USA v. Henry Walker

Second Circuit: U.S. v. Rivernider

FRCrimP, Crim, Fraud, White Collar, Sentencing


No abuse of discretion in denial of permission to withdraw guilty plea, given signed admissions and extensive colloquy. 

Mens rea for the fraud was intentionally withholding information, not the desire to harm the victims.

Where claims of counsel conflict are conclusory, there is no right to new counsel for the filing of a motion to withdraw the guilty plea.

In sentencing, court appropriately considered all loans to be tainted by the fraudulent operation, despite the lack of explicit linkage of fraud to each of the loans.

Sentencing generally affirmed.

U.S. v. Rivernider

Second Circuit: United States v. Bouchard

Crim, White Collar, Fraud

Deceiving a lender which is not federally insured without the intent to deceive its federally insured parent does not violate the statute prohibiting lying to federally insured lenders.

A lender is not, for purposes of the statute, categorically a bank.

In a conviction for conspiracy, absent a special verdict indication of reliance on a particular theory, reversal of an overt act under one theory still allows the conviction to stand, given the other possible overt acts.

No abuse of discretion in denial of new trial for alleged perjury, given deft's successful cross of witness.

United States v. Bouchard