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 FRCrimP. Show all posts
Showing posts with label FRCrimP. Show all posts
DC Circuit: USA v. Henry Williams
FRE, Fourth Amendment, FRCrimP, Sentencing
Undisclosed investigations didn't make wiretap/ wiretap application unlawful.
Lay expert testimony by agent constituted sufficient error for reversal.
Sufficient evidence for retrial.
Guilty plea not unconstitutionally compelled due to requirement that a codeft plead guilty.
Acquited conduct properly considered in sentencing.
USA v. Henry Williams
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
Fifth Circuit: USA v. Jose Bedoy
Obstruction, Crim
No error in finder of fact's determination that the deft knew of the grand jury investigation and that the agents were intertwined with it; this suffices for the requisite actual knowledge.
Jury instructions with an extra element did not heighten the prosecutor's burden.
Deft's instruction to potential witness went beyond simply information about the right to remain silent.
No constructive amendment on count alleging destruction of physical object, given deft's instruction to get rid of a phone number -- and sufficient evidence existed to prove that he intended the destruction of the phone.
USA v. Jose Bedoy
No error in finder of fact's determination that the deft knew of the grand jury investigation and that the agents were intertwined with it; this suffices for the requisite actual knowledge.
Jury instructions with an extra element did not heighten the prosecutor's burden.
Deft's instruction to potential witness went beyond simply information about the right to remain silent.
No constructive amendment on count alleging destruction of physical object, given deft's instruction to get rid of a phone number -- and sufficient evidence existed to prove that he intended the destruction of the phone.
USA v. Jose Bedoy
Seventh Circuit: USA v. Leo Stoller
FRCrimP
Counsel's assurance of no custodial sentence was not sufficient basis to challenge voluntary nature of guilty plea.
No abuse of discretion in denial of competency hearing where deft's physician suggests that deft is exaggerating the symptoms of early dementia.
Insufficient coverage of required points during plea colloquy was harmless error.
USA v. Leo Stoller
Counsel's assurance of no custodial sentence was not sufficient basis to challenge voluntary nature of guilty plea.
No abuse of discretion in denial of competency hearing where deft's physician suggests that deft is exaggerating the symptoms of early dementia.
Insufficient coverage of required points during plea colloquy was harmless error.
USA v. Leo Stoller
Seventh Circuit: USA v. Dante Graf
FRCrimP
Ineffective assistance of counsel in not informing deft that he could move for the disclosure of the identity of a confidential informant is not per se a basis for the subsequent withdrawal of guilty plea. Insufficient showing under Strickland.
Fairness and justice requires that court look to see whether actual guilt or innocence is implicated.
Circuit split flagged.
USA v. Dante Graf
Ineffective assistance of counsel in not informing deft that he could move for the disclosure of the identity of a confidential informant is not per se a basis for the subsequent withdrawal of guilty plea. Insufficient showing under Strickland.
Fairness and justice requires that court look to see whether actual guilt or innocence is implicated.
Circuit split flagged.
USA v. Dante Graf
Ninth Circuit: USA v. Steven Grovo
Crim, Conspiracy
Given the general mens rea of conspiracy, asynchronous contact on computer bulletin board suffices for actions "in concert" as required by the statute.
Active participation on a bulletin board suffices to prove furtherance of the board's common goal.
Communication with a closed community can constitute advertisement.
Where victim was harmed by both image and subsequent viewing of image, restitution must be disaggregated.
USA v. Steven Grovo
Given the general mens rea of conspiracy, asynchronous contact on computer bulletin board suffices for actions "in concert" as required by the statute.
Active participation on a bulletin board suffices to prove furtherance of the board's common goal.
Communication with a closed community can constitute advertisement.
Where victim was harmed by both image and subsequent viewing of image, restitution must be disaggregated.
USA v. Steven Grovo
Eighth Circuit: United States v. Yousef Qattoum
Crim.
No abuse of discretion in denial of motion to withdraw plea of guilty, as the deft was likely aware of illegal nature of conduct since he had, among other things, been arrested for it previously.
Use of money orders created a tacit understanding of conspiracy to launder money sufficient that there was no plain error in denial of motion to withdraw guilty plea.
United States v. Yousef Qattoum
Third Circuit: Omar Frias-Camilo v. Attorney General United States
Immigration, FRCrimP, Statutory Construction
As the Immigration statute regards convictions as having an adjudication and a punishment, and circuit precedent regards the linking "and" as conjunctive, the FRCrimP standard of conviction cannot be used to interpret the Act. Rather, state actions which incorporate either finding of guilt or punishment can qualify.
Omar Frias-Camilo v. Attorney General United States
First Circuit: US v. Carrasquillo-Penaloza
Plea Deals
As Commerce Clause challenge to the statute does not present a jurisdictional issue, a plea agreement with a specific and written waiver of appeals bars the challenge on direct appeal.
US v. Carrasquillo-Penaloza
Sixth Circuit: Adam Eggers v. Warden, Lebanon Corr. Inst.
Habeas, FRCrimP
State court holding that an assertion of innocence during sentencing allocution didn't require the court to conduct a hearing into the voluntary nature of the plea was not contrary to or an unreasonable application of Supreme Court precedent.
Adam Eggers v. Warden, Lebanon Corr. Inst.
State court holding that an assertion of innocence during sentencing allocution didn't require the court to conduct a hearing into the voluntary nature of the plea was not contrary to or an unreasonable application of Supreme Court precedent.
Adam Eggers v. Warden, Lebanon Corr. Inst.
Fifth Circuit: USA v. Roberth Rojas, et al
Crim
Drug statute constitutional, extraterritorial application valid, extraterritorial application did not violate due process.
Venue was proper in the first judicial district that the defts entered. (Not Cuba.)
Insufficient connection between defts and US at time of foreign wiretap to invoke Fourth Amendment.
Many other challenges, including conspiracy exit instruction, variance from indictment.
http://www.ca5.uscourts.gov/opinions/pub/13/13-40998-CR0.pdf
Drug statute constitutional, extraterritorial application valid, extraterritorial application did not violate due process.
Venue was proper in the first judicial district that the defts entered. (Not Cuba.)
Insufficient connection between defts and US at time of foreign wiretap to invoke Fourth Amendment.
Many other challenges, including conspiracy exit instruction, variance from indictment.
http://www.ca5.uscourts.gov/opinions/pub/13/13-40998-CR0.pdf
DC Circuit: USA v. Eddie Burroughs
Fourth Amendment, FRCrimP
No plain error in a court's declining to give preclusive effect in the same proceeding to a pretrial determination of another court's finding of lack of probable cause for a search.
https://www.cadc.uscourts.gov/internet/opinions.nsf/14051A07C66684D585257F41006AF4AC/$file/13-3031-1594913.pdf
No plain error in a court's declining to give preclusive effect in the same proceeding to a pretrial determination of another court's finding of lack of probable cause for a search.
https://www.cadc.uscourts.gov/internet/opinions.nsf/14051A07C66684D585257F41006AF4AC/$file/13-3031-1594913.pdf
Eleventh Circuit: USA v. Demetrius Renaldo Bowers
FRCrimP
No error in denial of severance of joined counts, as motion was untimely, and no compelling prejudice resulted.
Sufficient evidence.
ACCA upheld against SOP, other constitutional challenges.
Mandatory 187 year sentence for brandishing firearm during robberies not grossly disproportionate.
http://media.ca11.uscourts.gov/opinions/pub/files/201411585.pdf
No error in denial of severance of joined counts, as motion was untimely, and no compelling prejudice resulted.
Sufficient evidence.
ACCA upheld against SOP, other constitutional challenges.
Mandatory 187 year sentence for brandishing firearm during robberies not grossly disproportionate.
http://media.ca11.uscourts.gov/opinions/pub/files/201411585.pdf
Eleventh Circuit: USA v. Harvey Zitron
Tax, FrCrimP
No error in joining tax crimes with fraud crimes in the indictment, as prejudice was speculative.
Comment elicited on cross about hypothetical silence of deft didn't violate 5A, shift burdens.
Where deft has in the past opened credit accounts for family, doing so with unlawful intent suffices for statutory bar on knowingly opening the account with unlawful authority.
No plain error in court's determining amount of fraud based on scope of fraud versus funds deposited by deft.
Leadership enhancement upheld.
http://media.ca11.uscourts.gov/opinions/pub/files/201410009.pdf
No error in joining tax crimes with fraud crimes in the indictment, as prejudice was speculative.
Comment elicited on cross about hypothetical silence of deft didn't violate 5A, shift burdens.
Where deft has in the past opened credit accounts for family, doing so with unlawful intent suffices for statutory bar on knowingly opening the account with unlawful authority.
No plain error in court's determining amount of fraud based on scope of fraud versus funds deposited by deft.
Leadership enhancement upheld.
http://media.ca11.uscourts.gov/opinions/pub/files/201410009.pdf
Fourth Circuit: USA v. Wendy Annette Moore
Crim
No variance from indictment when a court instructs according to both prongs of a statute when the indictment only charged one prong of the statute.
The trustworthiness of a statement against interest hearsay exception refers to the statement actually made, not the trustworthiness of the reporting. No confrontation clause issue in statement to fellow detainee.
No plain error in admission of statements of prior bad acts/character, as gov't was required to correct.
http://www.ca4.uscourts.gov/Opinions/Published/144645.P.pdf
No variance from indictment when a court instructs according to both prongs of a statute when the indictment only charged one prong of the statute.
The trustworthiness of a statement against interest hearsay exception refers to the statement actually made, not the trustworthiness of the reporting. No confrontation clause issue in statement to fellow detainee.
No plain error in admission of statements of prior bad acts/character, as gov't was required to correct.
http://www.ca4.uscourts.gov/Opinions/Published/144645.P.pdf
First Circuit: Harrington v. Simmons
Crim, FRCrimP
Indictment not duplicative, as fraudulent schemes are inherently complex, and the scheme had a discrete sole desired outcome - a desire to score a run, not to hit a double and then steal two bases.
No variance from indictment given the diversity of interests of those who sustained losses, e.g., lenders, borrowers. No prejudice, as single theory.
The misstatements to lenders need only have a tendency to influence the lenders decisions to be considered material -- actual reliance need not be proven.
Given the structure and conduct of deft's organization, intent can be fairly inferred.
Court'd decision to deny funding for expert witness was without clear error, given concerns as to materiality and admissibility.
Where ten of the eleven counts are severed just before the case goes to the jury, a general directive to ignore the evidence offered in support of the counts sufficed.
Restitution challenge waived by spoken acceptance by counsel at trial, despite lack of victim statements.
http://media.ca1.uscourts.gov/pdf.opinions/14-1325P-01A.pdf
Indictment not duplicative, as fraudulent schemes are inherently complex, and the scheme had a discrete sole desired outcome - a desire to score a run, not to hit a double and then steal two bases.
No variance from indictment given the diversity of interests of those who sustained losses, e.g., lenders, borrowers. No prejudice, as single theory.
The misstatements to lenders need only have a tendency to influence the lenders decisions to be considered material -- actual reliance need not be proven.
Given the structure and conduct of deft's organization, intent can be fairly inferred.
Court'd decision to deny funding for expert witness was without clear error, given concerns as to materiality and admissibility.
Where ten of the eleven counts are severed just before the case goes to the jury, a general directive to ignore the evidence offered in support of the counts sufficed.
Restitution challenge waived by spoken acceptance by counsel at trial, despite lack of victim statements.
http://media.ca1.uscourts.gov/pdf.opinions/14-1325P-01A.pdf
Ninth Circuit: USA v. Mark Spengler
White collar, FRE
Deft can challenge exclusion of expert on appeal, even if deft didn't offer any witnesses at trial.
Exclusion of expert under Daubert/6A upheld, as even if investments were ultimately prudent, deft thought his acts fraudulent at the time.
Prosc witnesses' references to deft as fiduciary did not mislead jury.
No error in court not striking count from superseding indictment, despite the improper citation of statute and omission of willfulness element, as willfulness was alleged broadly in the indictment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/14-30042.pdf
Deft can challenge exclusion of expert on appeal, even if deft didn't offer any witnesses at trial.
Exclusion of expert under Daubert/6A upheld, as even if investments were ultimately prudent, deft thought his acts fraudulent at the time.
Prosc witnesses' references to deft as fiduciary did not mislead jury.
No error in court not striking count from superseding indictment, despite the improper citation of statute and omission of willfulness element, as willfulness was alleged broadly in the indictment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/14-30042.pdf
Eighth Circuit: Nicole Walker v. United States
Habeas, retroactive application
Plain error not relevant to collateral attack of conviction.
Case extending Apprendi to mandatory minimums isn't retroactive to cases on collateral appeal, because Apprendi itself isn't retroactive.
No constitutional error in lack of assistance of counsel during Certiorari. No statutory error, as the omission of the issue from the petition wouldn't have been ineffective assistance.
Inaccurate guess by deft counsel as to likely sentence did not make plea involuntary.
No error in safety valve counsel at trial and during appeal, denial of evidentiary hearing upheld.
http://media.ca8.uscourts.gov/opndir/16/01/143700P.pdf
Plain error not relevant to collateral attack of conviction.
Case extending Apprendi to mandatory minimums isn't retroactive to cases on collateral appeal, because Apprendi itself isn't retroactive.
No constitutional error in lack of assistance of counsel during Certiorari. No statutory error, as the omission of the issue from the petition wouldn't have been ineffective assistance.
Inaccurate guess by deft counsel as to likely sentence did not make plea involuntary.
No error in safety valve counsel at trial and during appeal, denial of evidentiary hearing upheld.
http://media.ca8.uscourts.gov/opndir/16/01/143700P.pdf
Eleventh Circuit: USA v. Harlan Salmona
Plea Agreements
District court has Mandamus jurisdiction, not FRCrimP jurisdiction, over motions to enforce a plea deal.
Where a plea agreement's term of rescission allows only the revocation of use immunity, a material breach of the agreement prevents a court's subsequent enforcement under Mandamus of other guarantees.
Concurrence: Material breach justifies total rescission.
http://media.ca11.uscourts.gov/opinions/pub/files/201512569.pdf
District court has Mandamus jurisdiction, not FRCrimP jurisdiction, over motions to enforce a plea deal.
Where a plea agreement's term of rescission allows only the revocation of use immunity, a material breach of the agreement prevents a court's subsequent enforcement under Mandamus of other guarantees.
Concurrence: Material breach justifies total rescission.
http://media.ca11.uscourts.gov/opinions/pub/files/201512569.pdf
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