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April 29, 2015

Short Wins - the Barry Bonds Opinion Edition

The big news in this batch of opinions is not the conspiracy to import lobsters case, but, rather the Barry Bonds appeal.

Mr. Bonds was prosecuted for evading a prosecutor's questions while testifying in a grand jury. And, now, thanks to an en banc panel of the Ninth Circuit, his conviction was reversed because giving a nonresponsive answer is not a crime. Though just about any teenager could tell you that.

To the victories:

you win.jpg1. United States v. Bengis, Second Circuit: Appellants were convicted of conspiracy to import lobsters from South African waters in violation of both South African and U.S. law. The district court imposed a restitution order, holding each of the Appellants jointly and severally liable for the market value of all of the lobsters harvested. The Second Circuit reversed the order as to one of the Appellants, who had joined the conspiracy later than the others. The court held that the Appellant was only liable for the value of lobsters taken before he joined the conspiracy if he knew, or reasonably should have known, about the conspiracy's past imports. The court remanded for the district court to make this determination.

2. United States v. Sandidge, Seventh Circuit: After Appellant pled guilty to being a felon in possession of a firearm, the sentencing court imposed several standard and special conditions of supervised release. The Seventh Circuit vacated all of these conditions because the sentencing court offered no explanation as to their propriety, and conducted no review of the statutory sentencing factors. The court noted that several of the conditions were too vague, including requirements that Appellant meet "family responsibilities" and "not associate with any persons engaged in criminal activity." The court also noted that several conditions were broader than necessary, such as a requirement not to "consume . . . any mood-altering substances." The court remanded for resentencing on the issue of conditions of supervised release.

3. United States v. Thomas, Eighth Circuit: While on supervised release, Appellant was arrested on suspicion that he had been involved in a shooting. The government petitioned for revocation of supervised release, presenting the arresting officer as its sole witness. Based on the officer's testimony, the district court concluded that the evidence was sufficient to support a "Grade A violation," and sentenced Appellant to 33 months. The Eighth Circuit reversed and remanded for resentencing, holding that the evidence was only sufficient to support a Grade B violation, because the district court did not find that Appellant had committed a crime of violence, a controlled substance offense, or an offense involving a specific type of firearm, or that he had committed an offense punishable by a term of more than 20 years in prison.

4. United States v. Bonds, Ninth Circuit: Appellant was convicted of obstruction of justice for making a single "rambling, non-responsive answer to a simple question" during a grand jury proceeding. The Ninth Circuit reversed, holding that the rambling statement could not constitute obstruction of justice because it was not "material" to the grand jury's decision. While Appellant's response did not answer the question, it did not "enlighten, obfuscate, confirm, or deny anything within the scope of the question posed." The court noted that Appellant could not be tried again on the charge, because double jeopardy applies to a reversal for insufficient evidence.

Defense Attorneys: Dennis P. Riordan, Donald M. Horgan, Ted Sampsell Jones

5. United States v. Mazzarella, Ninth Circuit: After being convicted of twelve felony counts related to a mortgage fraud scheme, Appellant moved for a new trial, arguing that the government had withheld exculpatory evidence in violation of Brady v. Maryland. Appellant pointed to the government's failure to inform her about (1) an informal immunity agreement with one government witness, (2) another witness's belief that she had entered into an agreement with the government, which the government denied, and (3) a comment made by yet another witness suggesting that the government might help her secure a job with the FBI after cooperating. Appellant also argued that her Fourth Amendment rights had been violated when a government witness copied documents from Appellant's office at the government's request. The district court refused Appellant's request for discovery and an evidentiary hearing on both issues, and denied the motion for a new trial. The Ninth Circuit reversed, holding that discovery was necessary to determine what immunity agreements existed, and whether any of the documents copied by the government witness had, in fact, been turned over to the government. The Ninth Circuit remanded with instructions to reconsider the Brady and Fourth Amendment claims after permitting discovery and an evidentiary hearing.

Defense Attorneys: John D. Cline, Mark H. Allenbaugh

6. United States v. Washington, Tenth Circuit: Appellant was arrested after the rental car that he was driving, while accompanied by a friend, was found to contain marijuana and methamphetamine. Appellant was convicted of possession of controlled substances with intent to distribute and aiding and abetting that offense. The Tenth Circuit reversed Appellant's conviction, and remanded with instructions to dismiss the indictment. The court held that there was insufficient evidence to infer that Appellant had knowledge of the presence of a large amount of drugs, since the drugs were not on his person or personal property within the car. The court rejected the government's argument that the smell of marijuana was sufficient to infer this knowledge, noting that the smell would only suggest the use of marijuana, not the presence of a sufficient amount to sustain a conviction for distribution.

Defense Attorney: Neil Darin Van Dalsem

7. Dimanche v. Brown, Eleventh Circuit: Appellant, an inmate, brought a civil rights suit under 42 U.S.C. § 1983 against prison officials for spraying him with teargas in retaliation for filing grievances about prison conditions. The district court dismissed the suit for failure to exhaust administrative remedies, as well as for failure to state a claim. The Eleventh Circuit reversed on both issues, and remanded for further proceedings. The court held that Appellant's grievance was properly directed to the head of the State Department of Corrections, as it was a retaliation claim, and that the district court had not explained how Appellant had failed to state his claims.

8. United States v. Peters, Eleventh Circuit: Appellant was convicted of several offenses related to a tax-fraud conspiracy. He was sentenced to 144 months' imprisonment, and was ordered to pay over $5 million in restitution. While Appellant was incarcerated in California, the government sought to collect the restitution by filing an application for a writ of execution to seize Appellant's California home. The district court with which the application was filed, the Southern District of Florida, refused Appellant's request to transfer the application to California, and granted the application. The Eleventh Circuit concluded that the language of the Federal Debt Collection Procedures Act required the transfer of the application to the district where the defendant resides. The Eleventh Circuit vacated the order and remanded with instructions to transfer the application to California.

9. United States v. Mathis-Gardner, D.C. Circuit: Appellant filed a motion for early termination of supervised release. The district court summarily denied the motion. The D.C. Circuit reversed, holding that while the district court need not spell out its reasons for denying a motion to terminate supervised release in an order, its reasons must be apparent from something in the record, such as from a hearing on the motion, or from an order denying a previous motion. The D.C. Circuit held that the record in the case did not indicate the district court's reasoning, vacated the order denying the motion to terminate supervised release, and remanded for reconsideration.

Defense Attorneys: A.J. Kramer, Michelle M. Peterson

April 24, 2015

Short Wins - the More on Restitution Edition

It's a catch-up blast of short wins today following my Spring Break.

My favorite of the bunch, continuing on our recent restitution cases, is United States v. Foley. There, the district court ordered restitution that was outside the offense of conviction. The First Circuit reversed. Go First Circuit!

To the victories!

you win.jpg1. United States v. Molina-Gomez, First Circuit: The district court erred by denying Appellant's motion to suppress statements he made to United States Customs and Border Protection officers. The questioning occurred in a small, windowless room and Appellant was not given Miranda warnings prior to being questioned, which amounted to a violation of his Fifth Amendment rights. The case was remanded so Appellant could withdraw his plea and determine how he would like to proceed.

Defense Attorneys: Leonardo M. Aldridge-Kontos, Hector E. Guzman-Silva, Jr., Hector L. Ramos-Vega, and Lisa L. Rosado-Rodriguez

2. Perry v. Roy, First Circuit: Appellant, an inmate, brought a civil rights suit challenging the medical treatment he received after a violent scuffle with prison guards, which left him with a broken jaw. The trial court dismissed the case, holding that Appellant had not presented evidence that prison medical personnel deliberately denied him care. But the First Circuit concluded that the trial court had improperly weighed the evidence, which, when viewed in a light favorable to Appellant, could support a finding that the prison medical personnel were deliberately indifferent to Appellant's condition.

Inmate's Attorneys: Benjamin M. McGovern, Amanda O. Amendola

3. United States v. Del Valle-Cruz.pdf, First Circuit: Appellant was convicted of failing to register as a sex offender. The sentencing court imposed special conditions of supervised release that were not imposed at the time of the underlying sex offense conviction, including a condition that prevented Appellant from having contact with, or residing with, minors. The First Circuit vacated this condition to avoid interfering with Appellant's relationship with his son, and also remanded for reconsideration of other conditions imposed by the sentencing court, noting that the sentencing court failed to explain or justify the conditions.

Defense Attorney: Jedrick H. Burgos-Amador

4. United States v. Foley, First Circuit: Appellant was convicted of 33 counts of wire fraud for submitting false documents to lenders on behalf of buyers of condominiums. The court ordered restitution to the lenders, including a lender that had loaned Appellant funds to purchase a condominium for himself. The First Circuit held that the restitution order should not have included this loan, because it was outside of the fraudulent scheme that was the basis for the conviction. The court specifically noted that this loan was obtained for the Appellant, rather than for other buyers, and that the conduct occurred over a year before the scheme for which Appellant was convicted. The court vacated the restitution order and remanded for recalculation without the loan.

Defense Attorney: Rebecca A. Jacobstein

5. United States v. Melendez-Rivera, First Circuit: After pleading guilty to conspiracy to import and distribute cocaine, Appellant argued at sentencing that he should receive a downward adjustment for timely notifying the government of his intent to plead guilty. The sentencing court concluded that it did not have the discretion to grant this adjustment because the government did not move for it. The First Circuit reversed, holding that the sentencing court should have considered whether the government's failure to make the motion was motivated by an improper purpose, and remanded for resentencing on this issue.

Defense Attorneys: Joshua L. Solomon, Matthew B. Arnould

6. United States v. Wright-Darrisaw, Second Circuit: Appellant was convicted of violating 18 U.S.C. §871(a) for threatening to kill the President of the United States and her sentence was based, in part, on a finding that the threat was found to involve deliberation. The court remanded because the district court can only make a finding of deliberation if the deliberation related to the communication of the threat itself.

Defense Attorneys: Jeffrey L. Ciccone and Jay S. Ovsiovitch

7. Lee v. Clarke, Fourth Circuit: Appellant's petition for habeas corpus was dismissed by the district court. That dismissal was based on an unreasonable application of Strickland v. Washington because the court did not appreciate the prejudice inherent to Appellant from the absence of a jury instruction defining heat of passion given that the instruction was crucial to Appellant's defense.

Defense Attorney: David Bernard Hargett

8. United States v. Lymas, Fourth Circuit: Appellants' sentences were procedurally unreasonable because the sentencing court varied from the guidelines believing they did not reflect the §3553(a) objectives. Further, the sentencing court decided both Appellants were deserving of the same sentence, which plainly failed to consider the Guidelines principle that require proportionality in sentencing. Without a detailed explanation for the departure, Appellant's sentences were vacated and remanded.

Defense Attorneys: Terry F. Rose, Thomas P. McNamara, and Brett Wentz

9. United States v. Sealed Juvenile, Fifth Circuit: Appellant, aged 15, was convicted of abusive sexual contact with a minor. The district court imposed a term of juvenile delinquent supervision that included several special conditions, including restriction of Appellant's access to computers and the Internet. The Fifth Circuit ordered the district court to narrowly interpret certain restrictions that it had imposed on the Appellant's use of the Internet, holding, for example, that requiring Appellant to secure written permission each time he used the Internet would be unreasonably restrictive.

10. Speer v. Stephens & Mendoza v. Stephens, Fifth Circuit: The Fifth Circuit was faced, in two separate cases, with an inmate seeking federal habeas review of his conviction. In both cases, the inmate sought to have new counsel appointed to review his case for claims that should have been raised in an earlier state habeas proceeding. Such claims can only be made if there is an excuse for not raising them in the state proceeding, such as ineffective assistance of counsel. The inmates, Appellants here, argued that new counsel should be appointed, because raising the issue of ineffective assistance of counsel at the state proceeding would be a conflict of interest for the attorney that represented Appellants in those proceedings. The Fifth Circuit held that, while there is no right to counsel in collateral review proceedings, federal district courts have the power to appoint additional counsel for the limited purpose of determining whether there are additional claims that ought to have been brought at an earlier state proceeding. The Fifth Circuit vacated the district courts' denial of the petitions and remanded for the appointment of additional counsel.

11. King v. McCarty, Seventh Circuit: The district court erred in dismissing Appellant's Eighth Amendment claim arising from the requirement that he wear a see-through jump suit when being transported from a county jail to state prison. Appellant alleged a plausible Eighth Amendment claim for cruel and unusual punishment by arguing that the jumpsuit had no legitimate correctional purpose but was instead used to humiliate and inflict psychological pain.

12. Owens v. Duncan, Seventh Circuit: Appellant was convicted of murder after a bench trial. The judge's verdict was based on the fact that Appellant knew the victim and knew that the victim was a drug dealer and claimed that Appellant wanted to kill the victim for that reason. However, there was exactly no evidence that Appellant knew the victim or knew that the victim was a drug dealer, and because that was the only reasoning offered by the trial court for the finding of guilt, the conviction was reversed.

13. United States v. Lockett, Seventh Circuit: Appellant was convicted of being a felon in possession of a firearm and was sentenced under the mandatory minimum sentencing provisions of the Armed Career Criminal Act (ACCA). The sentencing court determined that Appellant's previous drug convictions were predicates that subjected him to ACCA, because he was eligible to be sentenced for those convictions under a state recidivist statute. But the Seventh Circuit reversed and remanded for resentencing, holding that, to constitute a predicate conviction under ACCA, the government must show, not only that the recidivist enhancement hypothetically could have been applied, but that Appellant actually faced the possibility of the recidivist enhancement when he was sentenced. To make such a showing, the government would have to point to actual court records, such as the plea colloquy.

14. United States v. Kappes, Seventh Circuit: In three separate cases, the Seventh Circuit addressed special conditions of supervised release imposed on defendants. The Seventh Circuit remanded each of the cases for reconsideration of the imposed conditions, in light of four principles outlined by the court: (1) a defendant should receive advance notice of any conditions being considered; (2) the court should provide a statement of its reasoning when imposing conditions, tying them to statutory sentencing factors; (3) the conditions should be tailored to the defendant's offense and personal history, and should be no greater than reasonably necessary; and (4) the conditions should be given to the defendant by the court orally, in unambiguous terms.

15. United States v. Grandison, Eighth Circuit: Convicted of conspiracy to distribute cocaine, Appellant was sentenced to 360 months in prison. The trial court applied a sentencing enhancement based on Appellant's having held drugs in her home. But the Eighth Circuit held that the enhancement could not be applied, because it did not become effective until two years after Appellant had ceased her drug activities. The Eighth Circuit concluded that resentencing was appropriate, because the erroneous enhancement increased Appellant's guidelines range, and the district court explicitly adopted the government's recommendation to sentence Appellant at the bottom of the range.

16. United States v. Petruk, Eighth Circuit: Appellant was found guilty of various charges related to his theft of a pickup truck. Two of those charges--carjacking and obstruction--were reversed. The Eighth Circuit held that there was insufficient evidence for the carjacking charge because one element the government must prove is that the vehicle was taken from the person or presence of another or accomplished by force and violence or by intimidation. The evidence here showed that the taking occurred at a time separate from any assault against the owner and that the truck was unoccupied when it was taken, failing to prove this element of carjacking. There was also insufficient evidence to prove the obstruction charge because that charge requires proof beyond a reasonable doubt that Appellant contemplated a particular, foreseeable proceeding and that such a proceeding must be an "official proceeding," but that the definition of official proceeding does not include state proceedings. Here, the conduct that allegedly amounted to obstruction was an attempt by Appellant to secure statements from false alibi witnesses while incarcerated on state charges. Appellant's convictions for carjacking and obstruction were vacated.

17. United States v. Woodall, Eighth Circuit: Appellant was convicted and sentenced for failing to register as a sex offender. As a condition of supervised release, the sentencing court prohibited Appellant from consuming alcohol or entering bars or similar establishments. The Eighth Circuit struck this condition, noting that Appellant only lightly consumed alcohol and occasionally used marijuana. Absent evidence that Appellant was "drug dependent," or that alcohol spurred his criminal behavior, the court held that the condition could not be justified.

18. United States v. Haischer, Ninth Circuit: Appellant was tried and convicted for wire fraud for submitting false loan documents. During her trial, Appellant raised two defenses: duress and lack of knowledge that the documents were false. After Appellant's trial counsel abandoned the duress defense, the trial court excluded evidence that Appellant had been abused. The Ninth Circuit reversed, holding that the evidence of abuse was sufficiently probative to whether Appellant knew (or was deliberately ignorant) of the documents' falsity.

Defense Attorney: Franny Forsman

19. United States v. Hymas, Ninth Circuit: After being convicted of wire fraud for submitting a false loan document, Appellant was sentenced to 24 months' imprisonment. The Ninth Circuit held that the trial court improperly applied a "preponderance of the evidence" standard to the amount of loss determination required under the sentencing guidelines. A "clear and convincing evidence" standard was required, the Ninth Circuit held, because the amount of loss determination more than doubled Appellant's sentencing range under the guidelines.

Defense Attorney: Marcus R. Mumford

20. United States v. Marcia-Acosta, Ninth Circuit: Appellant was convicted of unlawful reentry to the United States, and was sentenced to 77 months in prison. The trial court applied a sentencing enhancement based on a previous conviction for aggravated assault, determining that it was a "crime of violence." The Ninth Circuit remanded for resentencing, holding that the trial court improperly relied on statements made by Appellant's trial counsel at the plea hearing in making this determination. Relying on such statements, rather than only the conviction documents, is improper under the "modified categorical approach," set forth by the Supreme Court for determining whether a crime constitutes a "crime of violence."

Defense Attorney: Diego Rodriguez

21. United States v. Zaragoza-Moreira, Ninth Circuit: An indictment charged Appellant with importation of methamphetamine. Appellant moved to dismiss the indictment, arguing that the government had destroyed evidence that may have supported her defense of duress. The Ninth Circuit agreed, holding that Appellant had been denied due process, where a government agent knew of the potential usefulness of evidence and acted in bad faith by failing to preserve it. The Ninth Circuit directed the trial court to dismiss the indictment.

Defense Attorney: Harini P. Raghupathi

22. United States v. Simmons, Ninth Circuit: After being convicted of drug and firearm offenses, Appellant was sentenced as a "career offender" under the sentencing guidelines. The sentencing court concluded that this classification applied, in part, because of Appellant's previous conviction for "second degree escape," a state offense that the sentencing court concluded was a "crime of violence." Applying the modified categorical approach, the Ninth Circuit vacated the sentence and remanded for resentencing. The Ninth Circuit determined that neither the generic crime "second degree escape," nor the specific crime of conviction, "escape from custody," were crimes of violence because they did not have, as an element, the use of force, and did not otherwise involve a risk similar to those offenses classified as crimes of violence in the sentencing guidelines.

Defense Attorney: Peter C. Wolff, Jr.

23. Doe v. Ayers, Ninth Circuit: Appellant filed a federal habeas petition, challenging his death sentence on the basis that his counsel was ineffective at the penalty phase of the trial. The district court held that, by failing to put on significant mitigating evidence, the trial attorney's performance had been deficient. But the district court denied the petition, holding that Appellant had not shown a reasonable probability that, but for the deficiency, the sentence would have been different, as required by Strickland v. Washington. The Ninth Circuit disagreed, holding that there was a substantial probability that the mitigating evidence would have affected the sentence. The Ninth Circuit ordered that the case be returned to state court with instructions to either reduce the sentence to life without parole or hold a new sentencing proceeding.

Defense Attorneys: John R. Grele, David W. Fermino

24. Barnett v. Norman, Ninth Circuit: Appellant, an inmate, brought a civil rights suit against prison guards for excessive force. At trial, Appellant called three other inmates to testify, all of whom refused to give testimony. The presiding judge made no attempt to compel the witnesses to testify by, for example, informing the witnesses of the possibility of contempt. The jury found in favor of the prison guards. The Ninth Circuit reversed and remanded for a new trial, holding that the presiding judge had abused her discretion by failing to attempt to compel the witnesses to testify.

Inmate's Attorney: Ian Samuel

25. United States v. Sahagun-Gallegos, Ninth Circuit: Appellant pled guilty to illegal reentry to the United States. The sentencing court applied a sentencing enhancement based on Appellant's previous state conviction for aggravated assault, determining that the conviction constituted a "crime of violence." The Ninth Circuit reversed and remanded for resentencing, holding that the sentencing court erred in making this determination by considering the defense attorney's statements at the aggravated assault plea hearing. This, the Ninth Circuit held, was impermissible under the "modified categorical approach" set out by the Supreme Court for determining whether an offense constitutes a crime of violence.

26. United States v. Urrutia-Contreras, Ninth Circuit: While on supervised release, Appellant was convicted of illegal reentry to the United States. At a hearing to impose sentence for violating the terms of Appellant's supervised release, the sentencing court did not ask for the government's sentencing recommendation before imposing sentence. The Ninth Circuit reversed and remanded for resentencing, holding that the requirement that the government be permitted to make a statement on sentencing applies at proceedings to revoke supervised release.

27. United States v. Figueroa-Labrada, Tenth Circuit: Appellant was convicted of conspiracy to possess with intent to distribute methamphetamine, and was sentenced to 120 months' imprisonment. The Tenth Circuit vacated this sentence. On remand to the trial court for resentencing, Appellant sought--for the first time--to qualify for a "safety valve" provision allowing a defendant to avoid a mandatory minimum sentence by providing the government with information and evidence. But the trial court held that the Appellant could not do so because he had not provided the information before the first sentencing hearing. On appeal, the Tenth Circuit again reversed, holding that a defendant may satisfy this provision at any time before the new sentencing hearing.

Defense Attorneys: Virginia L. Grady, O. Dean Sanderford

28. United States v. White, Tenth Circuit: After Appellant pled guilty to failing to register as a sex offender, the sentencing court classified him as a "tier III" sex offender under the Sex Offender Registration and Notification Act (SORNA). SORNA categorizes state sex offenses by comparing them to federal sex offenses, as well as by reference to the age of the victim. In determining that Appellant's state sex offense conviction was "tier III," the sentencing court followed a "circumstance-specific approach," looking not merely to the elements of the state offense, but also to police reports describing the offense. The Tenth Circuit reversed and remanded for resentencing, holding that the circumstance-specific approach is proper in SORNA classification only to determine the age of the victim, not to compare the offense to federal sex offenses.

Defense Attorneys: Carl Folsom, III; Julia L. O'Connell

29. United States v. Edmond, Eleventh Circuit: Indicted for conspiracy to commit access device fraud and aggravated identity theft, Appellant entered a plea agreement with the government. But that agreement inadvertently referred to an offense for which he had not been indicted, possession of access control devices. The error went unnoticed not only by the government's and Appellant's attorneys, but also by the trial court, which accepted the plea and sentenced the Appellant. The error was first noted by the Eleventh Circuit, after hearing oral argument on Appellant's unrelated arguments. The Eleventh Circuit found it was plain error to accept a plea agreement as to a charge not alleged in the indictment and therefore reversed the lower court's acceptance of the plea agreement.

30. United States v. Symington, Eleventh Circuit: Appellant entered a plea agreement with the government which, in part, determined that the Armed Career Criminal Act (ACCA) would not apply. The PSI determined, however, that the ACCA did apply. At sentencing, the court refused to allow Appellant to withdraw his guilty plea despite the mutual misunderstanding between the government and Appellant. This was an abuse of discretion because Appellant presented a fair and just reason for withdrawing the plea--that is, the plea court had explained that a 10-year maximum sentence would apply, but the sentencing court imposed a sentence above that when it was determined that Appellant should be sentenced in line with the ACCA. The conviction and sentence were vacated and remanded.

March 17, 2015

Short Wins - The Flight Attendant Edition

This week's favorite Short Win is United States v. Gray. I say this less because of the legal issue involved - a jury instruction for "malice" - than for how much fun the opinion is to read. Here's the opening:

Words are slippery things. Take "malice," its legal definitions alone can encompass: the intent to commit a wrongful act, reckless disregard for the law, ill will, wickedness of heart, and the intent to kill. See Black's Law Dictionary 968-69 (7th ed. 1999). But can malice's fifty shades of meaning include "improper motive?" Former flight attendant Nancy Gray, convicted of providing false information regarding a bomb threat on an airplane, seeks to convince us that she was denied a fundamentally fair trial when her jury was instructed that malice meant "evil purpose or improper motive." Because we find that the district court's definition just won't fly, we vacate Gray's conviction and remand this case for a new trial.

It goes on from there. And, really it's a sad story about a flight attendant snapping. But it's good prose.

To the victories!

Thumbnail image for Thumbnail image for you win.jpg1. United States v. Gray, First Circuit: Appellant's conviction for giving false information regarding a bomb threat on an airplane was vacated and remanded because the trial court improperly instructed the jury on the definition of malice. By instructing he jury that malice could be "an improper purpose," the trial court reduced the government's burden of proof.

Defense Attorney: Inga L. Parsons

2. United States v. Medina, First Circuit: After pleading guilty to failure to register as a sex offender, Appellant was sentenced to 30 months' imprisonment and 20 years of supervised release. This sentence was vacated and remanded for resentencing because the 20-year period of supervised release was based on the erroneous classification of Appeallant's SORNA violation as a sex offense. In addition, two conditions of supervised release--one restricting Appellant from accessing or possessing a wide range of sexually stimulating material, and the second requiring Appellant to submit to intrusive penile plethysmograph testing--were not justified by the record.

Defense Attorney: Edward J. O'Brien

3. United States v. Moran-Caleron, First Circuit: Appellant was convicted for his role in a hotel and casino robbery. The trial court ordered restitution, but failed to set a payment schedule, instead ordering the probation office to do so. Such delegation of the court's discretion is improper and required the judgment to be vacated and remanded.

Defense Attorney: Jorge L. Gerena-Mendez:

4. United States v. Foreste, Second Circuit: Appellant's conviction for possession of oxycodone with intent to distribute was vacated and remanded because the district court erred in denying Appellant's discovery request for the field performance records of the narcotics canine whose alert provided probable cause for his arrest. While such records are not required, the Second Circuit noted that they are not irrelevant and therefore found it to be an abuse of discretion to deny Appellant's request.

Defense Attorney: Bradley Stetler

5. United States v. Flores-Alvarado, Fourth Circuit: Appellant's sentence was vacated and remanded because the trial court failed to make the required factual findings regarding the drug quantity attributed to Flores-Alvarado. It was error for the district court to fail to resolve Appellant's objections to the calculation.

Defense Attorney: Wayne Buchanan Eads

6. United States v. Carter, Sixth Circuit: The trial court improperly admitted evidence that Appellant had intent to distribute suboxone strips during his trial for manufacturing of methamphetamine. The Sixth Circuit determined that the probativeness of such an unrelated venture to show specific intent was outweighed by the prejudicial value of that evidence.

Defense Attorney: David L. Leonard

7. Campbell v. Reardon, Seventh Circuit: The state court unreasonably applied Strickland when they rejected Appellant's ineffective assistance of counsel claim based on counsel's failure to conduct an adequate pretrial investigation by not interviewing three witnesses who would have said Appellant played no role in the murder for which he was convicted. The case was remanded for a hearing to resolve factual issues of Appellant's claims.

8. United States v. Sewell, Seventh Circuit: The conditions of Appellant's supervised release were vacated because both standard and special conditions were overbroad. The Court held that it is improper to order Appellant to obtain his GED not only because it is impossible to order someone to comply with such a condition without allowing cheating, but also because the applicability of this condition was not apparent.

9. Rudin v. Myles, Ninth Circuit: The Ninth Circuit held that extraordinary circumstances prevented Petitioner from timely filing her application for federal habeas relief and that she was entitled to equitable tolling. Her appointed attorney had abandoned her during the period in which she was diligent in pursuing her appeal. The case was remanded for further proceedings.

Defense Attorney: Christopher Oram

10. United States v. Hicks, Tenth Circuit: Appellant's rights under the Speedy Trial Act were violated. Although the government filed a motion to set trial, that motion did not require a hearing, and therefore only thirty days are excludable (from the 70-day Speedy Trial Act requirement) after it was under advisement. Further, the motion was under advisement at the time it was filed because it did not require a response from Appellant. That motion therefore could only toll the speedy trial clock for 30 days, and since more time had passed the Speedy Trial Act was, in fact, violated.

Defense Attorney: Mark G. Walta

March 2, 2015

Short Wins - the Third Level Edition

The third level for acceptance of responsibility is interesting - it's one area where some courts have held the government has pretty much unfettered discretion to decide whether or not it should apply. Basically, a person is supposed to get the third level only if she's pled guilty early enough to keep the government from working. Though some U.S. Attorney's offices are more or less stingy about how early is early enough.

Regardless, it can be hard to overcome an unreasonable government position on the applicability of the third-level for acceptance.

Which is why I was glad to see United States v. Castillo - which challenges the sovereignty of the government's decisionmaking about the third level and its applicability. Good stuff there.

To the victories!

Thumbnail image for you win.jpg1. United States v. Alejandra-Montanez, First Circuit: Appellants were convicted of criminal conspiracy charges for importing cocaine. Because of recent amendments to the sentencing guidelines that retroactively reduced most drug quantity base offense levels, the case was remanded for reconsideration of Appellants' sentences.

Defense Attorneys: David A.F. Lewis, Leslie W. O'Brien, and Joshua L. Gordon

2. United States v. Martinez-Rodriguez, First Circuit: Appellants were convicted of drug and firearms offenses. Appellant Rodriguez's conviction for the drug offense was reversed because the evidence was insufficient to connect him to Appellant Santini's possession of narcotics. And the evidence connecting Appellant Santini to Appellant Rodriguez's possession of a firearm was also insufficient, so that conviction was reversed as well. The only evidence of a connection between Appellants, who are brothers-in-law, was that they had been in a car together when the car was stopped. But the lack of evidence about the full nature of their relationship, of any plan they had to carry out a drug-trafficking offense, and of their prior dealings with each other was insufficient to show that the two had the requisite knowledge of the other's offense.

Defense Attorneys: Michael R. Hasse and Victoria M. Bonilla-Argudo

3. United States v. Castillo, Fifth Circuit: Appellant's case was remanded for reconsideration of the sentence after the government initially refused to move for an additional one-level reduction at sentencing based on acceptance of responsibility. The court held that the government may withhold such a motion based on an interested identified in Section 3E1.1 of the sentencing guidelines, but the trial court failed to make the proper findings of fact which would allow the government to withhold the motion.

4. United States v. Fidse, Fifth Circuit: Appellant pled guilty to two obstruction offenses and his sentence was based, in part, on a substantial sentencing enhancement that applies when "the offense is a felony that involved, or was intended to promote, a federal crime of terrorism. Because Appellant's underlying conviction was not for a federal crime of terrorism, the district court was required to identify the crime of terrorism committed by Appellant based on the evidence presented at sentencing. The district court failed to do so, and made inconsistent findings about the evidence presented. Therefore Appellant's sentence was vacated and remanded.

5. United States v. Garcia-Perez, Fifth Circuit: Appellant's prior conviction for manslaughter as defined by the Florida statute was not a crime of violence for purposes of a sentencing enhancement. A conviction under the Florida manslaughter statute does not qualify as a crime of violence for the sentencing enhancement because the government is not required to prove force as an element of the offense. Appellant's sentence was vacated and remanded for resentencing.

6. Pola v. United States, Sixth Circuit: The Sixth Circuit vacated the district court's denial of an evidentiary hearing to Appellant for potential ineffective assistance of counsel claims. First, the court held that it had jurisdiction to hear this issue despite Appellant being released from prison because he will continue to suffer the burden of a criminal conviction, including being deported. Second, the trial court erred in denying Appellant an evidentiary hearing because the record did not conclusively show that he was entitled to no relief and because the trial court only had parts of the record before it when making its determination.

Defense Attorney: Kent Wicker

7. United States v. Moslavac, Seventh Circuit: During a parole revocation hearing, the government did not call either witness to an alleged battery, but called only the father of a witness who was a minor, who testified about what his daughter told him. In addition, the court allowed the government to introduce a voicemail from the minor witness to her father under the excited utterance exception. Because the court did not explicitly balance the interests of the parties as required by the Federal Criminal Procedure Rule 32.1, the parole revocation was reversed.

8. United States v. Dunn, Tenth Circuit: The Tenth Circuit held that it is multiplicitous to sentence a person for both possession and receipt of child pornography in violation under the Double Jeopardy Clause. The court also vacated a number of special conditions of supervised release because the district court failed to find that they were minimally restrictive, and remanded for reconsideration with proper findings. Finally, ordering Appellant to pay $583,955 to one victim depicted in the child pornography was inconsistent with Paroline. The restitution order was vacated and remanded.

Defense Attorneys: Scott Wilson and Kathryn N. Nester

9. United States v. Ferdman, Tenth Circuit: The district court erred in calculating restitution under the Mandatory Victims Restitution Act. The restitution order must be based on the full amount of victim's losses without consideration of the economic circumstances of Appellant and the restitution order cannot exceed the actual loss caused by Appellant's conduct. Here, the court's award exceed the actual losses by assessing the value of lost merchandise based on the retail unsubsidized price, meaning the restitution included the profit the company would have made from the sale without any evidence that there was such an actual loss.

Defense Attorney: John V. Butcher

February 11, 2015

Short Wins - the Restitution Edition

In this set of short wins, the one that I'd like to call attention to is United States v. Cuti.

Restitution is not a sexy issue. It isn't as fun to read about as, say, a Brady fight, or a glaring evidentiary problem at a trial. But it's important.

Restitution judgments can be massive and, frankly, too many lawyers, judges, and prosecutors phone it in around restitution. United States v. Cuti clarifies that what counts as restitution is not just any money that any person may have spent as a result of the criminal conduct at the heart of the case. If you've got a restitution issue coming up, give it a read. Nice stuff.

To the victories!

you win.jpg1. United States v. Cuti.pdf, Second Circuit: Appellant was convicted of conspiracy to make false statements and securities fraud. His sentence included an award of restitution under the Victims and Witnesses Protection Act. The Second Circuit held that legal expenses incurred in connection with a civil arbitration connected to the offense are not deemed "necessary" under the VWPA because they were not undertaken or pursued in aid of the prosecution. In addition, the court held that non-victims are eligible for restitution only to the extent such payments were made on behalf of the victim, and remanded for reconsideration of the restitution order.

Defense Attorneys: Brian C. Brook and Matthew J. Peed

2. United States v. Price, Fourth Circuit: Appellant pled guilty to failing to register as a sex offender and the district court adopted Guidelines based on the fact that such an offense qualified as a 'sex offense'. That interpretation was wrong; failing to register as a sex offender does not qualify as a sex offense. The court therefore remanded for resentencing under different sentencing guidelines.

Defense Attorneys: Kimberly Harvey Albro and John H. Hare

3. United States v. Adejumo, Eighth Circuit: After Appellant was sentenced, the government filed a motion to amend the judgment and impose restitution. Appellant's trial counsel knew of the motion, but did not inform Appellant or respond to it. Appellant's motion for reconsideration of that order should have been granted because the restitution order constituted a judicial deprivation of property and required due process. The specific facts of this case indicated that Appellant did not receive adequate notice.

4. United States v. Estrada, Eleventh Circuit: Appellant received a sentencing enhancement for being convicted of a crime of violence. Since his sentencing, the Eleventh Circuit issued an opinion that determined Appellant's prior conviction could not be a crime of violence, so the case was remanded for resentencing.

February 4, 2015

Short Wins - the Entrapment and Appeal Waiver Edition

There are two cases in this batch of short wins that I think deserve a special shout out.

First, there's United States v. Torres-Perez. Appeal waivers are the bane of federal criminal practice (or one of them). Their only advantage is that they make prosecutors' lives easier. The downside, which is significant, is that they discourage the development of the law. I'd rather have the government work more and know what the law is. Though I may be crazy. In Perez, the Fifth Circuit slapped down an appeal waiver requirement in order to get credit for a acceptance.

Second, there's United States v. Barta - another great entrapment case from the Seventh Circuit. That circuit is bustin out entrapment cases like Taylor Swift and Katy Perry bust out insults of each other. Or something.

To the victories!

you win.jpg1. United States v. Matta, Second Circuit: As part of the conditions for his supervised release, Appellant was required to participate in a drug treatment or detoxification program, but the Probation Department was allowed to decide if that program should be inpatient or outpatient. The delegation of that decision to the Probation Department was improper because the power to impose special conditions of supervised release is vested exclusively in the district court. That condition was vacated and the case remanded for resentencing.

Defense Attorney: Yuanchung Lee

2. United States v. Fernandez, Fifth Circuit: Appellant was convicted of failing to register as a sex offender and as part of his supervised release, was required to install computer filtering software that would block or monitor Appellants access to sexually oriented websites for any computer he possesses or uses. Because neither the failure to register as a sex offender or his underlying offense involved the use of a computer, the special condition was not sufficiently tied to the facts of the case and was vacated.

3. United States v. Torres-Perez, Fifth Circuit: Appellants pled guilty to illegal reentry. Despite timely entry of the plea deals, the government did not move for any reduction for acceptance of responsibility, claiming that it would not do so because Appellants had not waived their rights to appeal. Withholding the sentencing reduction for that reason is impermissible, so the case was remanded for resentencing

4. Unitd States v. Bailey, Seventh Circuit: Appellant pled guilty to distributing crack cocaine and reserved his right to appeal if the Fair Sentencing Act ever was determined to apply to his case. The Supreme Court subsequently decided that the FSA should apply to cases like Appellant's retroactively. The Seventh Circuit determined that the proper procedural vehicle for Appellant was a petition for relief under Section 2255, and that the proper remedy was a new sentencing hearing.

5. United States v. Barta, Seventh Circuit: Appellant's conviction for conspiracy to commit bribery was reversed because Appellant was entrapped as a matter of law. In an undercover government sting operation, Appellant and his co-defendants agreed to bribe a fictional county official in California to obtain a government contract. The government admitted that Appellant was not predisposed to committing the crime and the court found that the government had induced the crime through repeated attempts at persuasion, employing both fraudulent misrepresentations and promises of additional reward.

6. United States v. Hawkins, Seventh Circuit: The district court erred in its definition of bribery under the mail fraud statute by including the intent to be rewarded, without anything in return. The statute requires more than just accepting a reward for a person to be guilty of bribery; it requires that the person does something in exchange for the reward. The convictions for mail fraud were vacated.

7. United States v. McMillian, Seventh Circuit: Appellant's sentence of thirty years was based in part on the application of two sentencing guideline which were created after the dates of Appellant's offenses. That application violates the ex post facto clause and the court held that Appellant was entitled to resentencing because the new guidelines range would have been 30 years to life. The previous sentence of 30 years was below the guidelines, rather than within it, so it is possible the judge would have decreased Appellant's sentence if the proper guidelines range was considered.

8. United States v. Thompson, Seventh Circuit: The Seventh Circuit again took issue with a number of conditions of supervised release imposed by the district courts. Although the court notes that it is difficult to determine conditions of release that may not be implemented for years or decades, the Seventh Circuit vacated a number of conditions because the district court did not provide any reasoning or justification, the condition was not orally articulated at sentencing, or because the condition was unrelated to the crime.

9. United States v. McElmurry, Ninth Circuit: Appellants convictions for possession and distribution of child pornography were vacated. The district court's failure to reading or listen to evidence--including interview statements made in connection with a prior state law child pornography conviction and a letter written to an inmate months before the crime was charged--was improper under Federal Rules of Evidence 403.

Defense Attorney: John Balazs

10. United States v. Rice, Ninth Circuit: The calculation of restitution and forfeiture was flawed where the loss amount included money laundered before Appellant had joined the conspiracy. Thus, the case was remanded for resentencing and recalculation of those amounts.

Defense Attorney: William H. Gamage

11. United States v. Wray, Tenth Circuit: Appellant's sentencing guidelines were miscalculated because his prior crime of "Sexual Assault - 10 Years Age Difference" under Colorado statute section 18-3-402(1)(e) does not constitute a crime of violence. The definition for "crime of violence" includes forcible sex offenses, but, applying the categorical approach, the statute in question here does not fall under that definition.

Defense Attorneys: Matthew Belcher and Virginia L. Grady

January 12, 2015

Short Wins - the Withdrawal of a Plea and Schaedenfraude Edition

It's been an interesting week in the federal circuits. Aside from the normal and expected sentencing appeals, there are two cases that caught my eye.

The first is United States v. Fard on withdrawing a plea. I often hear from people who have entered a plea and want to talk about hiring me to withdraw it. It can be maddening to see how other lawyers have poorly advised their clients, or have simply had them enter pleas that their client does not understand (sometimes, especially when the lawyer has no prior criminal defense experience, I fear the lawyer doesn't understand the plea either). Fard helps, a bit, in attacking pleas that aren't knowing and voluntary.

The second case I find interesting solely for the schaedenfraude it gives me. The case is United States v. Smith. There, an AUSA was appointed and confirmed to be a judge. As a judge, he worked on a case he also worked on as an AUSA. Hijinks ensue.

To the victories!

(Please note, I have a new "victory" photo. I'd love your feedback. On one hand, I think it's cheeky. On the other, so many of these victories aren't really "you win" moments. Please email me if you have thoughts.)

you win.jpg1. United States v. Ramos-Gonzalez, First Circuit: Appellant was sentenced to 327 months in prison for drug trafficking. That sentence was based, in part, on a finding that Appellant qualified as a career offender. The predicate offense that the district court relied on--a controlled substance offense under Article 256 of the Puerto Rico Penal Code--does not qualify for that purpose so the case was remanded for resentencing. That article criminalizes not only a crime of violence but also actions which do not require physical force.

Defense Attorney: Linda Backiel

2. United States v. Coppenger, Sixth Circuit: Appellant pled guilty to conspiracy to commit mortgage fraud and, as part of the plea agreement, the government promised not to recommend a sentence in excess of the applicable Guidelines range. The district court varied upward after considering information in the presentence report to increase the number of co-conspirators. The case was remanded for resentencing because Appellant wasn't given a meaningful opportunity to respond to the information relied upon by the court to vary upward.

Defense Attorney: Evan B. Smith

3. Sultan v. Fenoglio, Seventh Circuit: The district court, on its own initiative, dismissed Appellant's case for Appellant's failure to pay the initial partial filing fee. This was an abuse of discretion because he had gone through the appropriate procedures with the prison to have the filing fee paid from his prison funds account, and Appellant should not be penalized because the prison administrator failed to forward the money as directed by the court.

4. United States v. Cary, Seventh Circuit: Appellant pled guilty to one count of failing to register as a sex offender and was given a number of special conditions to his supervised release. A hearing is necessary to determine the nature and scope of the computer and internet software as well as prohibited webpages.

5. United States v. Fard, Seventh Circuit: Appellant's guilty plea was vacated because it was not knowing and voluntary. There were many factors which indicated to the Seventh Circuit that Appellant's plea was not knowing and voluntary, including Appellant's trial counsel's testimony that Appellant was confused by the nature of the charges combined with the fact that the court did not explain what intent to defraud means or what a fraudulent scheme is.

6. United States v. Morris, Seventh Circuit: After pleading guilty to one count of distribution of crack cocaine, Appellant was sentenced to 48 months. Although that sentence was below the guidelines, the record is unclear about whether the court considered Appellant's arguments in mitigation when fashioning the sentence, so the case is remanded for resentencing.

7. United States v. Smith, Seventh Circuit: The judge who sentenced Appellant had previously worked on his case as an Assistant United States Attorney before becoming a judge. The record did not adequately allow the Seventh Circuit to determine whether the judge, in doing so, violated the Judicial Code and should have recused herself. The judgment was therefore vacated and remanded for resentencing with a different judge.

8. Williams v. Paramo, Ninth Circuit: The district court's grant of summary judgment in favor of the defendants was vacated because, under the Prison Litigation Reform Act, Appellant should have been allowed to proceed in forma pauperis. The Ninth Circuit held that a prison who has three strikes under 28 U.S.C. § 1915(g) and who wishes to qualify under the imminent danger exception can do so by alleging that prison officials continue with a practice that has injured Appellant or others, or that there is a continuing effect resulting from such a practice.

Defense Attorneys: Jennifer Chou, Strefan Fauble, and Carlos M. Lazatin

November 18, 2014

Short Wins - the Dramatic Catch-Up Edition

And, after a really long break, we're back. Apologies. This day job has been very busy lately.

And, of course, if you ever find yourself jonesing for my writing, you can always check out my stuff on Above the Law.

You saw our guest post on Hite last week - it's a great case that bears a close read.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Barnes, First Circuit: Appellant pled guilty to distribution and conspiracy to distribute 50kg of marijuana. At sentencing, the district court attributed 3,000kg of marijuana to Appellant after a judicial finding of that quantity by a preponderance of the evidence. After Alleyne, drug quantities must be proven beyond a reasonable doubt. The First Circuit held that this error was harmful because the government did not provide an explanation that proved, beyond a reasonable doubt, that the error in attributing a larger quantity of drugs did not "contribute" to the complained-about sentence, and therefore vacated the sentence.

Defense Attorney: Judith H. Mizner

2. United States v. Prange, First Circuit: The trial court erred in calculating the loss amount attributable to Appellants when it relied on the PSR, which recommended loss amounts unsupported by law. Appellants were entitled to have the loss amount lowered when the stocks they sold had some value when it was sold. The cases were remanded so the district court could make factual findings as to the value of the shares acquired by the government during the sting.

Defense Attorneys: Steven N. Fuller, Allen Fuller, and Inga L. Parsons

3. United States v. Sevilla-Oyola, First Circuit: After an initial plea hearing and sentencing, Appellant filed a motion challenging his sentence. A number of hearings were held after, during which the trial court lowered the sentence each time. The trial court, however, did not have authority for his actions during a majority of the proceedings. The variety of motions filed by Appellant could not be considered a Section 2255 motion because Appellants only gets one complete round of collateral review and none of the parties had considered Appellant's motions to be a habeas petition. All of the convictions were vacated and remanded for one final resentencing.

Defense Attorney: Rafael F. Castro Lang

4. United States v. Starks, First Circuit: Appellant was convicted of being a felon in possession of a firearm after a police officer stopped him in a car his son had rented. The district court held that Appellant did not have standing to challenge the stop because Appellant was not the authorized driver of the rental car. But because a mere passenger in a car has standing to challenge the constitutionality of the stop, the First Circuit held that Appellant's status as an unlicensed, unauthorized driver was no less than that of a passenger and therefore he had standing. This required the conviction to be vacated and remanded for an evidentiary hearing.

Defense Attorney: James L. Sultan

5. United States v. Zhyltsou, Second Circuit: A jury found Appellant guilty of the unlawful transfer of a false identification document. During trial, the court admitted as evidence a printed copy of a social media webpage which the government claimed was created by Appellant. The government did not satisfy the authentication requirement because it did not prove that it was Appellant's profile page rather than a page on the internet that was about Appellant but which Appellant did not create or control. The conviction was vacated and the case remanded.

Defense Attorney: Yuanchung Lee

6. United States v. Bui, Third Circuit: Appellant's petition for habeas corpus should have been granted because he received ineffective assistance of counsel. Appellant pled guilty only after his trial counsel provided him with incorrect advice regarding the availability of a sentencing reduction pursuant to the "safety valve." Although trial counsel filed a motion for such a reduction, he withdrew it after realizing Appellant was ineligible. This amounted to ineffective assistance of counsel.

Defense Attorneys: Maria K. Pulzetti and Brett G. Sweitzer

7. United States v. Paladino, Third Circuit: Appellant challenged the district court's judgment revoking Appellant's supervised release and imposing a prison sentence. The judgment was vacated and the case remanded for resentencing because Appellant was denied the right to allocute at sentencing when the court did not address Appellant personally or permit him to speak or present information in mitigation of the sentence.

Defense Attorney: Sarah S. Gannett

8. United States v. Catone, Fourth Circuit: A jury convicted Appellant of one count of making a false statement in connection with his receipt of federal workers' compensation benefits and was sentenced to 16 months' imprisonment and to pay $106,411.83 in restitution. The sentence must be vacated because the jury did not make a finding that the offense led to more than $1,000 in falsely obtained benefits, so Appellant could only be given a maximum 12-month, misdemeanor sentence. The loss calculation was wrong because it should have reflected the difference between the amount of benefits that he actually received and the amount that he would have received but for the false statement. Instead, restitution was vacated because the loss amount was calculated as the full amount Appellant had received in workers' compensation during that time period.

Defense Attorneys: Joshua B. Carpenter and Ross Hall Richardson

9. United States v. Randall, Fifth Circuit: Although Appellant pled guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine, the factual basis on which his plea was based and the PSR found that Appellant was only responsible for less than 200 grams of cocaine. Appellant's sentence, which was based on his liability for five kilograms of cocaine, was vacated and remanded because Appellant should be sentenced based only on the facts adopted by the court--that is, the amount attributable only to him and not to the conspiracy as a whole--and that amount did not require a mandatory minimum sentence.

10. United States v. Snelling, Sixth Circuit: Appellant was convicted of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion and sentenced to 131 months in prison. In determining the sentencing guidelines range, the court failed to take into account sums paid back to the Ponzi scheme's investors in the course of the fraud. This resulted in a higher loss value, and therefore a larger sentencing enhancement. The sentence was therefore vacated and remanded for recalculation.

Defense Attorney: Kevin M. Schad

11. Swisher v. Porter Co Sheriff's Dept., Seventh Circuit: Appellant brought a §1983 complaint based on a pretrial denial of medical care for a bullet wound to his abdomen. Appellant had not exhausted all administrative remedies, so the district court dismissed his complaint. The denial was reversed because Appellant had not been advised of the grievance procedure and was told by the Warden not to file a grievance.

12. United States v. Bowling, Seventh Circuit: Appellants convictions for making false statements in connection with the purchase of a firearm were reversed and the case remanded for a new trial. The Seventh Circuit held that Appellant had to be given the opportunity to present a mistake of fact defense because, although he was charged with a felony at the time, he was also aware that the plea deal offered was for a misdemeanor. The Court held that Appellant should not have to testify in order to present the defense, but instead can cross-examine other witnesses.

13. United States v. Hinds, Seventh Circuit: Appellant's case was remanded for resentencing because the district court improperly imposed two special conditions of supervised release. The condition requiring Appellant to pay for a portion of his court-ordered substance abuse treatment and drug testing was in error because the district court expressly found that Appellant lacked the ability to pay the interest requirement on the restitution and the court did not order a fine based on the same inability to pay. And the condition requiring Appellant to submit to suspicionless searches and seizures was also in error, and the government conceded at oral argument that this invasive condition has already been banned by the court.

14. United States v. Myers, Seventh Circuit: Appellant was convicted of several identity theft-related crimes and sentenced to 132 months imprisonment. The sentence was vacated because the six-level enhancement for 250 or more victims violated the Ex Post Facto Clause. The guidelines in place at the time of the crime would not have characterized many of the individuals as victims.

15. United States v. Reid, Eighth Circuit: Appellant was convicted of unlawful possession of a firearm by a felon, which carries a ten year maximum sentence. The court found that Appellant's prior conviction qualified him under the Armed Career Criminal Act to a guidelines range of fifteen years to life imprisonment. Because Appellant's prior conviction was not a violent felony, as required by the Armed Career Criminal Act, his sentence was vacated.

16. Deck v. Jenkins, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted where the prosecutor, in closing argument, negated an essential element of the intent to commit a lewd act upon a child. The prosecutor argued that the intent element could be proven if Petitioner intended to commit the act not on the day of his arrest, but at some point in the future. This prosecutorial error was not harmless where the jury was confused, a corrective instruction was not given, and the written jury instructions did not address the subject of the jury's confusion.

Defense Attorney: Charles M. Sevilla

17. Sessoms v. Grounds, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted because a reasonable law enforcement officer should have understood Petitioner's statements as an unambiguous request for counsel. In light of Salinas v. Texas, the requirement of an unambiguous invocation of the right to counsel applied to pre-Miranda statements like Petitioner's.

Defense Attorney: Eric Weaver

18. United States v. Aguilera-Rios, Ninth Circuit: Petitioner's conviction for illegal reentry was reversed because his prior removal order was invalid. The removal order was based on a conviction for unlawful possession of a firearm. The statute criminalizing that conduct did not have an antique firearms exception and therefore was not a categorical match for the Immigration and Nationality Act's firearm offense. Since there was no categorical match, the removal order was invalid.

Defense Attorney: Kara Hartzler

19. United States v. Bell, Ninth Circuit: After being convicted of making false, fictitious, and fraudulent claims to the US treasury, filing false tax returns, contempt, and mail fraud, Appellant was sentenced and, as part of supervised release, required to undergo substance abuse treatment and abstain from consuming alcohol. That condition was vacated and the case remanded because the record contained no evidence showing that Appellant abused any substance.

Defense Attorney: Gregory Charles Link

20. United States v. Brown, Ninth Circuit: A case arising from a Ponzi scheme and bankruptcy fraud was remanded for resentencing. The sentencing court erroneously imposed an enhancement for endangering the solvency or financial security of 100 or more victims where the government did not provide evidence of the impact of the crimes on the requisite number of victims. In addition, Appellant Eddings' sentence also included an erroneous leadership role adjustment because the trial court noted that it wasn't clear whether Eddings controlled a particular participant, and the record does not indicate that he controlled any other criminally responsible participant in the scheme. Further, it was error to apply a sentencing enhancement for having 250 or more victims when the district court relied on 148 victims who were not included in the loss calculation.

Defense Attorneys: Heather Williams, David M. Porter, Rachelle Barbour, and John Balazs

21. United States v. Bryant, Ninth Circuit: Appellant moved to dismiss the indictment charging him with two counts of domestic assault by a habitual offender. Appellant was previously convicted in tribal court of domestic abuse, which the government used to establish the element of a prior offense. The Court held that only tribal court convictions obtained when Appellant had a right to counsel which is, at a minimum, coextensive with the Sixth Amendment right to counsel, can be used in a subsequent prosecution. Because Appellant did not have such a right to counsel during his tribal court convictions, they could not be used against him in this case and the indictment should have been dismissed.

Defense Attorneys: Steve C. Babcock and Anthony R. Gallagher

22. United States v. Castro-Ponce, Ninth Circuit: Appellant's sentence enhancement for obstruction of justice was vacated because the trial court did not explicitly find that Appellant's false testimony was also willful and material.

Defense Attorney: Lynn T. Hamilton

23. United States v. Heredia, Ninth Circuit: The government made repeated and inflammatory references to Appellant's criminal history throughout its sentencing memorandum. Because those references served no practical purpose but to argue implicitly for a higher punishment than it had agreed to recommend, Appellant's sentence was vacated and remanded.

Defense Attorneys: Sean K. Kennedy and Jonathan D. Libby

24. United States v. Hernandez, Ninth Circuit: As part of Appellant's sentence for illegal reentry, the district court added a sentencing enhancement for Appellant's prior conviction of being a felon in possession of a firearm under the California Penal Code. Because that statute does not include an antique-firearm exception, it is not a categorical match for the federal firearms offense. Therefore the enhancement was improper and the case was remanded for resentencing.

Defense Attorneys: Sean K. Kennedy and James H. Locklin

25. United States v. Mavromatis, Ninth Circuit: Appellant's conviction for being in possession of a firearm after being committed to a mental institution. This conviction was barred by double jeopardy because Appellant was previously acquitted on a charge based on the same incident of possession.

Defense Attorneys: Rich Curtner and Noa Oren

26. United States v. Melot, Tenth Circuit: Appellants were held in contempt and sanctions imposed after the district court believed the Appellants fraudulently intervened in the foreclosure of their properties. The sanctions were reversed because Appellants only had notice that the court was considering contempt. The lack of notice of sanctions or the opportunity to be heard was a denial of due process in violation of the Fifth Amendment.

Katherine L. Melot and Billy R. Melot proceeded pro se.

27. United States v. Reyes Vera, Ninth Circuit: Appellants were convicted of a drug conspiracy and the use of a minor to commit a drug trafficking offense. During trial, a police officer was called as an expert to explain the drug jargon used in wiretapped phone calls. The Ninth Circuit held that this testimony was a mix of lay and expert opinion, and the trial court's failure to explain that distinction to the jury was in error. Because this error affected the drug quantities found by the jury in a special verdict (which itself impacted the mandatory minimum sentences), the case was remanded for proper determination of drug quantity.

Defense Attorneys: Gretchen Fusilier and Thomas Paul Slesinger

28. Williams v. Swarthout, Ninth Circuit: Petitioner's writ of habeas corpus should have been granted where the trial court made a misstatement immediately before trial that Petitioner had pled guilty, and that misstatement was not corrected until the jury began to deliberate. This deprived Petitioner of the presumption of innocence and violated his Sixth Amendment right to an impartial jury because the error was not rendered harmless by curative instructions.

Defense Attorneys: William J. Capriola and John P. Ward

29. United States v. Bear, Tenth Circuit: Appellant pled guilty to failing to register or update a registration as a sex offender. The special condition of supervised release restricting Appellant's contact with his children was reversed. Any condition that interferes with the right of familial association can do so only in compelling circumstances, and here the government did not present evidence that Appellant displayed a propensity to commit future sexual offenses or exhibited any proclivity toward sexual violence, nor has he shown any display of danger to his own children.

Defense Attorney: Brooke A. Tebow

30. United States v. Powell, Tenth Circuit: Appellant was convicted of numerous counts related to making, uttering, or possessing a forged security after he altered payee information or forged endorsements and then deposited checks stolen from the United States mail into his bank accounts at various banks. That crime requires the government to prove that the security (including checks) belonged to an organization (such as a bank). His convictions were vacated because proof that the checks were deposited into a federally insured bank was not proof that the checks were "of" the depository banks.

Defense Attorney: Ty Gee

31. United States v. Hite, DC Circuit: Appellant's conviction for attempting to persuade a minor to engage in unlawful sexual activity was vacated. Although it is not necessary for the communication to be directly to a minor, the government must prove that the communications with an intermediary are aimed at persuading, inducing, enticing, or coercing the minor. The jury instructions did not reflect such an understanding and require Appellant's conviction to be vacated. In addition, Appellant should have been permitted to introduce expert evidence about Appellant's lack of sexual interest in children since that question is relevant to proving intent.

Defense Attorneys: Lawrence S. Robbins, Barry J. Pollack, A.J. Kramer, Jonathan Jeffress, and Rosanna M. Taormina

September 22, 2014

Short Wins - The "Silence is Golden" Edition

The most interesting case in the last two weeks, I think, is United States v. Shannon. There, the person accused of a crime simply didn't feel like talking to law enforcement - because, really, who would. The government crossed him on his decision not to talk and asked why he didn't come forward with his exculpatory testimony sooner.

The Third Circuit reversed because this violated his Fifth Amendment rights - there's really no point in having a right not to talk if you hold it against a person when she doesn't talk.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Santaigo, First Circuit: Appellant was convicted of failing to register as a sex offender and the terms of his supervised release included a number of special sex offender conditions. One condition, which was not articulated by the judge at the sentencing hearing but only added in the written judgment, must be vacated because it was imposed in Appellant's absence.

Defense Attorneys: Liza L. Rosado-Rodríguez, Héctor E. Guzmán-Silva, and Héctor L. Ramos Vega

2. United States v. Cuti, Second Circuit: After being convicted of making false statements and securities fraud, Appellant was ordered to pay restitution. The court vacated the restitution order and remanded for the trial court to determine what expenses incurred are "necessary" under the Victim and Witness Protection Act. The court held that legal expenses incurred in connection with civil arbitration were not undertaken or pursued in the aid of prosecution and therefore were improperly included in the restitution order.

Defense Attorneys: Brian C. Brook and Matthew J. Peed

3. United States v. Shannon, Third Circuit: Appellant's conviction was vacated because the government cross-examined Appellant during trial about his post-arrest silence. The government violated Appellant's Fifth Amendment rights when it questioned him about failing to come forward earlier with his exculpatory version of the facts.

Defense Attorney: Paul D. Boas

4. United States v. Farah, Sixth Circuit: Appellant's conviction for refusing to testify in the criminal prosecution of thirty gang members was in violation of the double jeopardy clause. The underlying criminal investigation was, in part, for the sex trafficking of minors and Appellant was convicted of both willfully disobeying an order requiring his testimony and of obstructing or attempting to obstruct the child sex trafficking laws. Those convictions require proof of the same elements, requiring the willfully disobeying conviction to be vacated.

Defense Attorney: James Mackler

5. United States v. Brewer, Eighth Circuit: Appellant was convicted of failing to register as a sex offender under the Sex Offender and Registration Notification Act (SORNA). Appellant, who was convicted prior to the enactment of SORNA, challenged the Attorney General's interim rule that made registration requirements to all pre-Act offenders. Because that rule was set without the required period for notice and comment, and without good cause, and that rule prejudiced Appellant, SORNA did not apply to Appellant and his conviction must be vacated.

6. United States v. Thornton, Eighth Circuit: Appellant was sentenced to the 15-year mandatory minimum for being an armed career criminal. That sentence was vacated because two of his prior convictions did not qualify as the three predicate offenses necessary to be considered an armed career criminal. First, the government admitted that a Missouri burglary conviction for which Appellant received a suspended sentence could not be a predicate offense. Second, Appellant's Kansas burglary conviction was under a statute which criminalized both violent and non-violent conduct. It could not be considered a predicate offense because the government did not prove that Appellant was convicted under the subsection criminalizing violent conduct.

7. Castellanos v. Small, Ninth Circuit: Petitioner's application for habeas relief should have been granted where the government exercised four peremptory strikes against Hispanic venirepersons. The Ninth Circuit found that the government's reason for striking one person because she did not have children was pretextual.

Defense Attorneys: Gia Kim and Sean K. Kennedy

8. Gibbs v. LeGrand, Ninth Circuit: The district court improperly dismissed Appellant's petition for habeas corpus. Because Appellant had repeatedly requested updates from his attorney about his state post-conviction proceedings, and counsel had pledged to update Appellant. Counsel, however, did not tell Appellant his stat post-conviction proceedings had ended, causing Appellant to miss the deadline for his federal habeas petition. That misconduct was an extraordinary circumstance requiring an extension of time for filing the habeas petition.

Defense Attorneys: Megan C. Hoffman, Debra A. Bookout, and Ryan Norwood

9. United States v. Dreyer, Ninth Circuit: Appellant's convictions for child pornography were reversed because the trial court should have excluded where a military agent turned over the fruits of his investigation to local law enforcement. The court held that it is improper for a military special agent to investigate conduct by anyone in the state of Washington, not just those connected with the military. Such investigation violates the regulations and policies proscribing direct military enforcement of civilian laws.

Defense Attorney: Erik V. Levin

10. United States v. Meyer, Ninth Circuit: In California, the one-year statute of limitations in which to file a §2254 habeas petition begins to run once 1) the California Supreme Court denies the state habeas petition; and 2) the United States Supreme Court denies certiorari or the 90-day period for filing a petition for certiorari expires. Petitioner here filed his habeas petition within one year of the denial of his state habeas, and it was only at that point that he had exhausted state remedies and the statute of limitations began to run.

Defense Attorney: Charles Marchand Bonneau II

11. United States v. Heineman, Tenth Circuit: Appellant was convicted after a bench trial of one count of sending an interstate threat. That conviction was reversed because the court did not make a finding that Appellant intended the recipient to feel threatened. The Ninth Circuit held that the First Amendment requires the government to prove in any true-threat prosecution that the accused intended the recipient to feel threatened.

Defense Attorneys: Benjamin McMurray and Kathryn Nester

September 15, 2014

Short Wins - the Distribution of Child Pornography Gets (slightly) Limited Edition

Child porn cases are turning out to be a surprisingly large portion of what's in federal court.

Child pornography is gross and wrong, to be clear. But these cases are, I think, a symptom of a larger problem.

All of us have times in our lives when we're in the wilderness, when we feel adrift and alienated and unsure of where we're going or where we are. Some folks in this time of life turn to alcohol, Some turn to drugs, video games, or other ways to keep themselves from facing the great chasm of dissatisfaction that their lives have become. "The mass of men lead lives of quiet desparation" and all that.

Maybe this desperation is more acute in these times, maybe it's an inevitable part of what it is to be human.

In any event, as anyone who has defended someone who has been accused of possession of child pornography knows, unfortunately, some folks come to this dark place in their lives and instead of drinking their time away, they turn to pornography. Often they start on more mainstream stuff, come to be desensitized and look for things that are more and more disturbing. That can lead them to child pornography. Or these folks are just searching for pornography in volume and come to the massive troves of child pornography floating around the internet.

The government is not shy about bringing these cases. Much as folks with drug addictions get punished by our government when they come to harder stuff - even though what they really ought to get is treatment - people who merely possess child pornography are too aggressively pursued for what is often a mental health problem that requires treatment.

Happily, in United States v. Husmann, the Third Circuit took a stand against a particularly gross practice in the prosecution of child pornography laws.

Much child pornography is shared through online file sharing systems. So, you can have child pornography in a folder that you mark to be shared with others on the internet.

The government sometimes takes the position that making stuff available through putting it in a folder that allows sharing is distribution of child pornography. Distribution is a massively more severe crime than possession with a much more severe mandatory minimum. And by threatening a distribution charge where a person only allowed file sharing, the government can coerce plenty of people into taking a plea, or taking a plea under worse terms.

Thankfully, the Third Circuit came out against that practice, holding that just showing the images were available for sharing isn't the same as saying they were distributed.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Groysman, Second Circuit: Appellant was convicted of health care fraud and money laundering. The main government witness gave testimony that included inadmissible hearsay and opinions, and was allowed, without personal knowledge, to provide the foundation for seven government exhibits that were inaccurate and misleading. The admission of misleading exhibits for which the witness had no personal knowledge of the matters conveyed, as well as inappropriate opinion testimony relating to Appellant's role in the scheme, was prejudicial and required the convictions to be vacated and the case remanded for a new trial.

Defense Attorney: Maurice H. Sercarz

2. United States v. Brown, Third Circuit: Appellant's conviction for being a felon in possession of a firearm was vacated and the remanded for a new trial. The district court erred in admitting evidence of Appellant's past firearm purchases. Although the government had a legitimate non-propensity purpose for admitting the evidence--it showed Appellant's knowledge of the firearm in his car--it still violated 404(b) because the government did not proffer a sufficient explanation of why the evidence was relevant. Evidence that Appellant had previous purchased firearms does nothing to establish that he knowingly possessed a gun six years later.

Defense Attorney: Kimberly R. Brunson

3. United States v. Brown, Third Circuit: The district court inappropriately applied a sentencing enhancement after finding that Appellant was a career offender, requiring Appellant's sentence to be vacated. There is a narrow range of cases where a court can look beyond the legal requirements, and instead examine the factual bases for a conviction to determine if it was a crime of violence. But here, exploring the underlying facts was in error because the prior conviction did not require the factfinder to make a determination that there was a crime of violence so the modified categorical approach cannot be used.

Defense Attorney: Thomas W. Patton

4. United States v. Husmann, Third Circuit: Appellant was convicted by a jury of three counts of distributing child pornography after Appellant placed images in a shared computer folder connected to a file sharing network. At trial, the government did not present evidence that any person had downloaded or obtained those images. The mere placement of images into a folder, making those images available to users of the file sharing network, does not constitute distribution. Appellant's conviction was therefore vacated.

Defense Attorneys: Theodore C. Forrence, Jr., Kenneth C. Edelin, Jr.

5. United States v. Foster, Sixth Circuit: Appellant was sentenced to 622 months' imprisonment for two counts of drug possession, two counts of firearm possession, one count of drug distribution, and one count of conspiracy. One of the drug possession charges as well as one firearm possession counts were vacated because they were in violation of the Double Jeopardy Clause. Those two counts duplicate other counts for which Appellant was convicted and sentenced.

Defense Attorney: Frederick Liu

6. United States v. Miller, Sixth Circuit: A jury found Appellants guilty of hate crimes after a string of assaults in Amish communities where the Appellants would cut the hair of members of their Amish community. During trial, the court gave a jury instruction requiring the jury to find that the faith of the victims must be a "significant factor" in motivating the assaults. The convictions must be vacated and Appellants retried because the instruction should have required the jury to find that the faith of the victims was a "but for" cause of the assaults.

Defense Attorneys: Michael E. Rosman, Matthew D. Ridings, Wendi L. Overmyer, Rhonda L. Kotnik, John R. Mithcell, Kip T. Bollin, Holly H. Little, Mark R. Butscha, Jr., David C. Jack, George C. Pappas, Brian M. Pierce, Joseph A. Dubyak, Samuel G. Amendolara, Steven R. Jaeger, Robert E. Duffrin, Rhys . Cartwright-Jones, Damian A. Billak, J. Dean Carro, Wesley A. Dumas, Sr., James S. Gentile, Nathan A. Ray, and Gary H. Levine

7. United States v. Prater, Sixth Circuit: A conviction for third-degree burglary under New York law is not a "violent felony" for purposes of the Armed Career Criminal Act. The district court's determination that these were violent felonies without applying the modified categorical approach was in error. The sentence was vacated and the case remanded.

Defense Attorney: Laura E. Davis

8. United States v. Chapman, Seventh Circuit: Appellant was convicted of drug trafficking by a jury. The district court erroneously admitted details of Appellant's prior drug-trafficking conviction under Rule 404(b). The judge allowed the government to use that evidence to prove knowledge and intent, but the relevance of the evidence depended entirely on a forbidden propensity inference. Appellant's conviction was vacated and remanded for a new trial.

9. United States v. Gonzalez, Seventh Circuit: Appellants were members of the Almighty Latin Kings Nation gang and most pled guilty to various charges, although one went to trial. Appellant Anaya, who was found guilty at trial, must be resentenced because the district court increased a statutory maximum based on facts that were not proven beyond a reasonable doubt. Thus, the sentencing guidelines should have reflected a maximum of 20 years as opposed to 30.

10. United States v. Johnson, Seventh Circuit: At sentencing, the district court did not announce a term of supervised release, but one was incorporated in the court's written amended judgment. The conditions of supervised release which were not orally announced at sentencing were vacated and the case remanded for the district court to clarify conditions of the supervised release.

11. United States v. Fowlkes, Ninth Circuit: The forcible removal of drugs from Appellant's rectum during a body cavity search, without medical training or a warrant, violated Appellant's Fourth Amendment rights. The evidence obtained from that brutal and physically invasive search should have been suppressed. The conviction predicated on the drugs was vacated and the case remanded for resentencing.

Defense Attorney: Thomas P. Sleisenger

12. United States v. Luis, Ninth Circuit: The district court erred in calculating the loss amount after Appellant pled guilty to conspiracy and loan fraud. The district court erred by calculating the restitution amount based on the unpaid principal loan balance rather than the value of the loans when they were purchased.

Defense Attorney: Todd W. Burns

13. United States v. Nora, Ninth Circuit: The district court's denial of a motion to suppress was reversed. Although Appellant's arrest was supported by probable cause, it violated the Fourth Amendment because officers physically took Appellant into custody in his front yard by surrounding his house and ordering him out at gunpoint. All evidence seized in the search incident to arrest should have been suppressed, as should the statements made by Appellant's statements.

Defense Attorney: Michael J. Treman

14. Wharton v. Chappell, Ninth Circuit: The district court's denial of habeas was vacated and remanded for further factual proceedings to determine ineffective assistance of counsel. Appellant's claim that his lawyer was ineffective for failing to investigate and present testimony by Appellant's half-brother that there was sexual abuse ubiquitous in Appellant's family could have merit as the jury may not have rendered a verdict of death. The case was remanded for further proceedings.

Defense Attorneys: Marcia A. Morrissey and Lynne S. Coffin

August 27, 2014

Short Wins - The Late August Edition

It's been an interesting few weeks in the circuits (and, apologies for the gap in posting - pesky family vacations).

Probably my favorite is United States v. Mergen, about whether an FBI agent's statements that what the guy charged with a crime was doing were ok and legal were admissible. I tend to think FBI stings that take advantage of how weak the entrapment defense is are one of the more loathsome things our federal government does - any time you can poke holes in that I think it's a good thing.

Also of note is United States v. Bagdy - there, a guy who spent an inheritance on stuff that wasn't restitution, instead of restitution, didn't violate his supervised release conditions. Supervised release can be insane - especially when restitution is in play. Nice work for the Third Circuit in dialing it back.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Martinez, First Circuit: Appellant pled guilty to one count of being a felon in possession of a firearm and was sentenced to 70 months' imprisonment. That sentence was vacated because the district court erred in applying a six-level sentencing enhancement for having previously committed a crime of violence. The First Circuit held that a conviction for assault and battery in Massachusetts is categorically not necessarily a crime of violence because it does not require proof of intent.

Defense Attorney: William W. Fick

2. United States v. Ramos, First Circuit: Appellant was convicted of various child pornography charges, and as part of his supervised release, was forbidden from using a computer or the internet without permission and also was forbidden from having pornographic material. Those conditions were vacated because they are not reasonably related to Appellant's characteristics and history and thus deprive him of more liberty than is reasonably necessary to achieve the goals of sentencing.

Defense Attorney: Steven A. Feldman

3. United States v. Mergen, Second Circuit: Appellant's conviction under the Travel Act was vacated because the district court erred by excluding as hearsay a recording in which the FBI agent assured Appellant that he had done nothing wrong. The statements should not be excluded as hearsay where prior inconsistent statements are offered for impeachment, and the fact that some portions of the recording were inaudible was not a proper basis for exclusion under the authentication rule.

Defense Attorneys: Andrew J. Frisch and Jeremy B. Sporn

4. United States v. Bagdy, Third Circuit: The district court cannot revoke supervised release based on Appellant's purposeful dissipation of an inheritance he received instead of using the money to pay restitution he owed. While that conduct is reprehensible, it did not violate a specific condition of Appellant's supervised release. The judgment was vacated and the case remanded.

Defense Attorney: Candace Cain

5. United States v. Mark, Third Circuit: After being convicted of conspiracy to possess with intent to distribute a controlled substance, Appellant was sentenced to 210 months' imprisonment. The court remanded for resentencing because the Court did not provide a basis for its findings on the amount of drugs attributable to Appellant and Appellant had disputed the amount as indicated in the PSR. The court's conclusory statements were insufficient since the amount to attribute was in dispute.

Defense Attorney: Pamela L. Colon

6. United States v. McLaurin, Fourth Circuit: Appellant's sentence was vacated because his criminal history calculation included two common law robbery convictions when Appellant was 16. Because this miscalculation was plain error, the case was remanded for resentencing with a lower sentencing range.

Defense Attorneys: Joshua B. Carpenter, Lawrence W. Hewitt, and Henderson Hill

7. United States v. Juarez-Velasquez, Fifth Circuit: Appellant's probation revocation was reversed and vacated because his supervised release expired prior to the date the Probation Office petitioned the court for revocation, depriving the court of jurisdiction. Tolling a term of supervised release is appropriate only when Appellant was imprisoned in connection to a criminal conviction, and Appellant's imprisonment was only while he was awaiting trial for charges for which he was acquitted.

8. United States v. Hackett, Sixth Circuit: Appellant was convicted by a jury of various gang-related, weapons, and drug offenses as well as a RICO conspiracy charge and was sentenced to 440 months' imprisonment. The mandatory-minimum sentence on a firearms count was imposed in violation of Alleyne--because the indictment did not allege that Appellant discharged the weapon--and therefore Appellant's sentence was vacated and remanded for resentencing.

Defense Attorney: David L. Doughten

9. United States v. Noble, Sixth Circuit: During their trial for various drug trafficking charges, Appellants moved to suppress evidence obtained from a frisk during a traffic stop. The decision to perform the frisk was based solely on: 1) a passenger acting extremely nervous; 2) the DEA task force told the officer that the vehicle was suspected to be involved in drug trafficking; and 3) the idea that subjects involved in drug trafficking often carry a weapon to protect themselves. That was not enough to amount to a reasonable suspicion so the convictions were vacated and the case remanded.

Defense Attorneys: Frederick J. Anderson, Charles P. Gore, and Katherine A. Crytzer

10. United States v. Tomlinson, Sixth Circuit: Appellant was convicted by a jury for being a felon in possession of a firearm. Appellant timely raised his Batson challenge before the jury was sworn and the trial commenced, so the case was remanded for a Batson hearing. The Sixth Circuit held that a Batson challenge does not have to happen contemporaneously for each stricken juror.

Defense Attorney: Valentine C. Darker

11. United States v. Toviave, Sixth Circuit: Appellant was convicted of forced labor for requiring his young relatives to cook, clean, and do household chores. The Court found that Appellant's behavior was reprehensible, but did not amount to forced labor. Requiring a child to do chores cannot possibly amount to forced labor, and physically punishing children for failing to perform those chores does not change the nature of the work from chores into forced labor. His conviction was therefore vacated.

Defense Attorney: Christopher Keleher

12. Socha v. Boughton, Seventh Circuit: The district court abused its discretion when it rejected Petitioner's equitable tolling argument when requesting habeas relief. Although he failed to file his petition within the given time limits, equity required that the deadline be forgiven. Petitioner faced many difficulties in filing his petition, none of which were his fault, including his inability to obtain his case file for almost a year from the public defender despite numerous requests.

13. United States v. Adame-Hernandez, Seventh Circuit: The district court withdrew Appellant's guilty plea over his objection. This violated the procedures of Rule 11 which allows a district court to reject a plea agreement and then allow Appellant to either stand by the plea or withdraw it. It was an abuse of discretion for the court to make that choice for Appellant. The court also erred in believing Appellant had breached the plea agreement.

14.United States v. Domnenko, Seventh Circuit: A 14-point sentencing enhancement was not sufficiently explained or supported and therefore required remand. Appellants were convicted of fraud, but a conviction for their involvement does not necessarily mean that all economic damages were reasonably foreseeable.

15. United States v. Jones, Seventh Circuit: The sentences for three Appellants were vacated and remanded for resentencing. Jones' request to be sentenced under the Fair Sentencing Act was erroneously denied. Mockabee was sentenced under a more recent version of the sentencing guidelines which resulted in a higher guidelines range than the previous version. Drake's sentence was also vacated and remanded for resentencing because the jury failed to make specific findings regarding drug quantities which increased the mandatory minimum. All three must be resentenced.

16. United States v. Moore, Seventh Circuit: A jury convicted Appellant of using or carrying a firearm during and in relation to a crime of violence but was unable to reach a verdict on the predicate violent crime itself. The conviction was vacated because the trial court solicited a partial verdict form the jury before the jurors indicated that no further deliberations would be useful. Because this could have resulted in a premature verdict, the conviction must be vacated.

17. United States v. Walton, Seventh Circuit: The trial court's denial of Appellant's motion to suppress was in error. Appellant had Fourth Amendment standing despite the fact that he was a parolee because parolees do not receive fewer constitutional protections based on their status. Further, the person who is listed on a rental agreement for a rental car does possess an expectation of privacy that enables him to challenge a search under the Fourth Amendment. Thus, the denial of the suppression motion was reversed and remanded for further proceedings.

18. United States v. Zheng, Seventh Circuit: After pleading guilty to aggravated identity theft and conspiracy to misuse Social Security numbers and commit passport fraud, Appellant was sentenced to 61 months in prison. A two-level sentencing enhancement for fraudulent use of a foreign passport was applied. The case was remanded for resentencing because the application of the enhancement would double-count conduct that was already considered in the aggravated identity theft conviction and therefore was improper.

19. Franco v. United States, Eighth Circuit: After pleading guilty to conspiracy to distribute methamphetamine, Appellant was sentenced to 120 months' imprisonment. Appellant filed a habeas petition arguing that his sentence should be vacated because his attorney failed to file a requested notice of appeal. The district court erred by denying the habeas petition without an evidentiary hearing to determine whether Appellant had asked his attorney to file an appeal. The denial of the petition was reversed and remanded.

20. Colwell v. Bannister, Ninth Circuit: The district court's grant of summary judgment was reversed in a §1983 claim. The Nevada Department of Corrections' categorical denial of Petitioner's request to have cataract surgery amounted to deliberate indifference when it was based on an administrative policy that one eye was good enough for prison inmates. The case was remanded for trial.

Defense Attorneys: Mason Boling, Lauren Murphy, Dustin E. Buehler, Michelle King, Joy Nissen, and Gregory C. Sisk

21. Hernandez v. Spearman, Ninth Circuit: The district court erred in failing to apply the prison mailbox rule when dismissing Petitioner's habeas corpus petition as untimely. The mailbox rule applies when a pro se habeas petitioner gives his petition to a third party to mail from within the prison.

Defense Attorney: Tony Faryar Farmani

22. Nordstrom v. Ryan, Ninth Circuit: Petitioner's allegations that prison officials violated his constitutional rights when they read a confidential letter to his lawyer should not have been dismissed for failure to state a claim. Petitioner stated a Sixth Amendment claim by alleging that officials read his legal mail, claimed entitlement to do so, and his right to private consultation with counsel had been chilled. Those allegations also supported Petitioner's claim for injunctive relief. The district court's dismissal was reversed.

Defense Attorneys: Michelle King, Joy Nissen, Gregory C. Sisk, Mason Boling, Lauren E. Murphy, and Dustin E. Buehler.

23. United States v. JDT, Juvenile Male, Ninth Circuit: The adjudications of delinquency for six counts of aggravated sexual abuse were vacated and remanded for reconsideration. The district court abused its discretion in denying Appellant's requests to suspend his status as a juvenile delinquent because the court did not weigh the factors bearing on suspension.

Defense Attorney: Keith J. Hilzendeger

24. United States v. Mageno, Ninth Circuit: Appellant's conviction for conspiracy to distribute methamphetamine was reversed because the prosecutors made several factual misstatements in closing arguments which encouraged the jury to convict Appellant based on evidence not presented at trial. The Ninth Circuit determined that there was a reasonable probability that the misstatements affected the outcome of Appellant's trial.

Defense Attorney: Mace J. Yampolsky

25. United States v. Hale, Tenth Circuit: Appellant was convicted of making a materially false statement under oath in a bankruptcy case. That conviction cannot stand where the questions giving rise to the allegation were ambiguous and the answers provided by Appellant may have been valid under one interpretation of the questions asked. That conviction was reversed.

Defense Attorney: Joseph Alexander Little, IV

26. United States v. Roy, Eleventh Circuit: Appellant's conviction for possession of child pornography was vacated and the case remanded for a new trial because the trial court allowed the government to elicit testimony and evidence even though defense counsel was not in the courtroom. This was a violation to Appellant's 6th Amendment right to counsel because the government was allowed to examine its computer forensics expert witness and admit inculpatory evidence (pictures) even though defense counsel was not in the courtroom.

August 1, 2014

Short Wins - the Entrapment Edition

It is rare and wonderful to see an entrapment opinion. And United States v. Kopstein fits the bill.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Kopstein, Second Circuit: Appellant was convicted by a jury of transporting and shipping child pornography. During trial, Appellant's sole defense was entrapment. The conviction was vacated and the case remanded because the jury instruction on entrapment failed to consistently and adequately guide the jury. Here, a jury instruction on the lesser-included offense of possession would allow the jury to return a verdict of guilty on the transporting and shipping charge, even if the jury found Appellant not guilty of possession. This was confusing because it would allow the jury to render a verdict of guilty on the greater offense even if the prosecution had failed to prove a necessary part of its case (the lesser offense).

Defense Attorney: Norman Trabulus

2. United States v. Caldwell, Third Circuit: Appellant's conviction of being a felon in possession of a firearm was vacated because the district court improperly admitted evidence of Appellant's prior convictions for unlawful firearm possession. Because the government's theory of the case was only for actual possession, and therefore knowledge was not at issue, knowledge was not a proper reason to admit the prior prejudicial convictions under Rule 404(b).

3. United States v. Mohamed, Seventh Circuit: A jury convicted Appellant of one count of knowingly transporting and possessing contraband cigarettes. The Seventh Circuit interpreted Indian's cigarette tax law as not applying to cigarettes merely possessed in Indiana. Since cigarettes simply passing through the state in interstate commerce do not have to bear Indiana tax stamps, the government failed to bear its burden to prove sale, use, consumption, handling, or distribution within Indiana and Appellant's motion for judgment of acquittal should have been granted.

4. United States v. Daniels, Ninth Circuit: The Ninth Circuit vacated Appellant's sentence and remanded for resentencing after his supervised release was revoked. It was plain error for the district court not to offer Appellant an opportunity to speak before it imposed a post-revocation sentence.

Defense Attorneys: K. Elizabeth Dahlstrom, Sean K. Kennedy, Brianna Fuller Mircheff

July 22, 2014

Short Wins - the Shameless Promotion Edition

Remember back with this blog was more than just Short Wins? Remember when there were long and loving descriptions of cases?

I still aspire to get back to that vision for the blog - that was fun. Seriously, look for more long write-ups soon. I've been distracted by writing for Above the Law (here is a link to my columns (I particularly like the one about cannibalism)) and my day job as a practicing lawyer.

But, if you're jonesing for those long write-ups again, thanks to the good people at James Publishing, you can now read them in one handy-dandy book. It has the jazzy title Criminal Defense Victories in the Federal Circuits. Or you could just read the archives.

In other self-promoting news, the ABA's annual list of best blogs is open for nominations. Here's the link. It would be nice if you'd say something nice about this blog, but don't feel like you have to.

To the Victories!

1155650_berlin_siegessule.jpg1. United States v. Flores-Mejia, Third Circuit: The court vacated Appellant's sentence after being convicted of reentry after deportation. The Third Circuit, however, used the opportunity to change its current law and now requires a party to object to procedural errors during the sentencing proceeding once that error is evident, otherwise it is not preserved. Because the new rule cannot apply retroactively, Appellant's case was remanded.

Defense Attorney: Robert Epstein

2. Hurst v. Joyner, Fourth Circuit: The district court improperly denied a petition for habeas corpus. The Fourth Circuit remanded for an evidentiary hearing where a juror communicated with her father during the penalty phase of Appellant's capital murder trial. At her father's suggestion, the juror read a section in the Bible about "an eye for an eye," and then voted in favor of the death penalty the following day. An evidentiary hearing was necessary to determine whether that communication had a substantial and injurious effect or influence on the jury's verdict.

Defense Attorney: Robert Hood Hale

3. United States v. Garrett, Sixth Circuit: Appellant was sentenced to 151 months' imprisonment after pleading guilty to one count of conspiracy to distribute more than 50 grams of crack cocaine. Although that sentence was at the bottom of Appellant's guidelines, the Sixth Circuit determined that Appellant was eligible for resentencing because his sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission. Appellant's initial Guidelines range was 151 to 188 months, but after the Guidelines Amendment, it would be 120 to 137 months.

Defense Attorneys: Bradley R. Hall and James Gerometta

4. Townsend v. Cooper, Seventh Circuit: Appellant sued a number of officials at his correctional facility and the district court granted summary judgment in favor of the Appellees. The court determined, taken in the light most favorable to Appellant, that Appellant raised genuine issues of material fact about whether he had a liberty interest in avoiding transfer to more restrictive prison conditions, which would require procedural due process. Because there was not appropriate notice or an opportunity to be heard, the district court's grant of summary judgment was vacated and remanded.

5. United States v. Harden, Seventh Circuit: Appellant pled guilty to possession with intent to distribute cocaine and Appellant agreed to allow a magistrate judge perform he plea colloquy. Taking and accepting guilty pleas in felony cases is not one of the enumerated duties of magistrate judges and was determined by the Seventh Circuit to be both important and dispositive. Therefore, magistrate judges are not authorized to accept guilty pleas in felony cases, even if both parties would consent.

6. United States v. Sheth, Seventh Circuit: After pleading guilty to health care fraud, the district court entered an order of criminal forfeiture for cash and investment accounts then valued at about $13 million plus real estate and a vehicle. The forfeited assets would be credited against his $12,376,310 restitution. The government then sought further assets to apply to restitution and the district court ordered Appellant to turn over those assets. The turnover order was vacated and remanded for discovery and an evidentiary hearing to determine whether the first set of forfeited assets was sufficient to cover the restitution order.

7. United States v. Doering, Eighth Circuit: Appellant pled guilty to tampering with evidence and was sentenced to 90 months' imprisonment and ordered to pay $45,382.88 in restitution. The restitution order was vacated and remanded because Appellant's plea agreement did not list, as required, that an offense listed in the Mandatory Victims Restitution Act gave rise to the plea agreement. Without that specific, mandatory term, restitution under the MVRA was unauthorized.

8. United States v. Howard, Eighth Circuit: The order of restitution against Appellant was vacated because the calculation improperly included losses from dates preceding the relevant conduct of Appellant's extortion conviction. The losses arose outsides of the dates listed in the indictment.

9. United States v. Nguyen, Eighth Circuit: Appellant's conviction for knowingly shipping, transporting, receiving, possessing, selling, and distributing contraband cigarettes was reversed because there was insufficient evidence. Specifically, the government had no evidence that Appellant was aware of any applicable sales taxes on the cigarettes; the government had no evidence as to Appellant's knowing violation of the statute.

10. United States v. Thomas, Eighth Circuit: Appellants was sentenced to 120 months' imprisonment after pleading guilty to possession with intent to distribute 50 grams or more of methamphetamine. The case was remanded because the district court's oral sentence was ambiguous about the sentencing guidelines range on which the Appellant's sentence as based. On appeal, that ambiguity made it impossible to determine if the district court committed procedural error.

11. United States v. Gonzalez, Ninth Circuit: The Ninth Circuit remanded Petitioner's case with instructions to grant the writ of habeas corpus based on the prosecution's failure to disclose Brady material that would have impeached the credibility of a critical witness. The California Court of Appeal's decision that Petitioner had not established that the evidence was newly discovered was an unreasonable determination of the facts. The court held that the California Court of Appeal's requirement of due diligence was contrary to, or involved an unreasonable application of, clearly established federal law.

Defense Attorney: John Lanahan

12. Wood v. Ryan, Ninth Circuit: The district court improperly denied Appellant's request for a preliminary injunction delaying his execution, which was scheduled for July 23, 2014. Appellant presented claimed that Department of Corrections violated his First Amendment rights by denying him information regarding the method of his execution. Because Appellant presented serious questions to the merits of the claim, and because the balance of hardships tips in his favor, the preliminary injunction should have been granted

13. United States v. Charles, Eleventh Circuit: Appellant pled guilty to charges relating to a conspiring to use unauthorized access devices. Appellant's sentence was vacated because the district court committed legal error when it included a two-level sentence increase for trafficking in unauthorized access devices (for example, a prepaid debit card). Because Appellant was convicted of aggravated identity theft as well, the district court was precluded from considering any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense.

14. United States v. Estrella, Eleventh Circuit: As part of his sentence for illegal reentry, Appellant's received a sentencing enhancement for a crime of violence based on his prior conviction for wantonly or maliciously throwing, hurling, or projecting a missile, stone, or other hard substance at an occupied vehicle. Under the categorical approach, the Eleventh Circuit determined that a conviction for that crime does not necessarily involve proof of the use, attempt, or threat of force. Therefore, the crime of violence enhancement was improper.

15. Bahlul v. United States, D.C. Circuit: Hamdan II held that there cannot be retroactive prosecution for conduct committed before the Military Commissions Act of 2006 unless that conduct was already prohibited under existing U.S. law as a war crime triable by a military commission. But that understand was contrary to the statutory wording, which allowed for the prosecution of any crimes. The D.C. Circuit, applying an ex post facto analysis, determined that Appellant's conviction for providing material support for terrorism and solicitation of others to commit war crimes were not previously offenses that were triable by a military commission, so the convictions were vacated.

Defense Attorneys: Michel Paradis, Mary R. McCormick, and Todd E. Pierce

July 6, 2014

Short Wins - the Presentment Delay Issue

It's a relatively slow week in the federal circuits.

My favorite case of the last week is United States v. Torres Pimental. You've got to love a suppression motion being granted off of a government delay in presentment.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Spann, Seventh Circuit: Appellant was sentenced to 97 months' imprisonment after pleading guilty to possession with intent to distribute. The sentence was reversed because the judge failed to justify the sentence. The reasoning for the top-of-the-guidelines sentence was improper because it would in essence equate to every drug trafficker being sentenced at the top of the guidelines unless there are unusual circumstances justifying a reduction.

2. United States v. Lopez Martinez, Eighth Circuit: The Eighth Circuit held that a district court, when performing a modified categorical analysis to determine whether a prior state conviction qualifies for a sentencing enhancement, may not rely upon allegations in a superseded indictment to which the defendant did not plead guilty. Appellant's sentence was reversed because his conviction for solicitation to commit "misconduct involving weapons" should not have qualified as a firearms offense under the Sentencing Guidelines.

3. United States v. Lopez-Chavez, Ninth Circuit: Appellant's conviction for illegal reentry was reversed and the case remanded for dismissal of the indictment. The Ninth Circuit decided Appellant's counsel was ineffective where counsel conceded removability of Appellant base on a prior conviction for possession of marijuana with intent to distribute and for failing to pursue appellant proceedings that the BIA had announced could result in a holding that Appellant's conviction did not constitute a removable offense. The prior conviction covers conduct that may fit under either the felony or misdemeanor provisions of the Controlled Substances Act and thus is not necessarily a removable offense.

Defense Attorney: Harini P. Raghupathi

4. United States v. Torres Pimental, Ninth Circuit: Appellant's conviction for importing marijuana was vacated after the Ninth Circuit reversed the denial of a motion to suppress. A four-day delay in presenting Appellant to a magistrate was unreasonable and unnecessary so the statements Appellant made to a federal agent forty-eight hours after arrest, but before he was presented to a magistrate, must be suppressed.

Defense Attorney: Zandra L. Lopez

5. United States v. Medina-Copete, Tenth Circuit: Appellants' convictioins of drug trafficking charges were vacated and remanded. During trial, the district court allowed expert testimony (by a law enforcement officer) on certain religious iconography which purported to prove that the occupants of the vehicle were aware of the presence of drugs. The witness was also allowed to render theological opinions about the legitimacy of religious icons vis-à-vis other venerated figures. Testimony about the connection between a religious icon and drug trafficking was improper under Daubert and Kumho.

Defense Attorneys: Kevin Nault, Amy Sirignano, Kari Converse, and Joseph W. Gandert

6. United States v. Smith, Tenth Circuit: Appellant was convicted of two counts of robbery and two counts of using a gun during and in relation to those crimes of violence. During sentencing the trial court ignored the sentence it had imposed for the gun charges when determining the sentence for the robbery charges. The Tenth Circuit reversed, finding it inappropriate to categorically disregard a sentence for a gun conviction when sentencing for a related crime.

Defense Attorneys: O. Dean Sanderford and Warren R. Williamson

June 30, 2014

Short Wins - the Seventh Circuit Draws a Line on Supervised Release

There's been a lot in the circuits in the last week, but perhaps the most surprising bit is that the Seventh Circuit issued four opinions on supervised release conditions.

Supervised release may not be the sexiest of issues, but, especially in child pornography cases, it matters a lot. I'm not sure what's in the water in Chicago, but whatever it is reaffirms that these conditions need to be narrowly tailored and properly justified.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Ganias, Second Circuit: Following a jury trial, Appellant was convicted for tax evasion. That conviction was vacated because the district court erred in denying a motion to suppress personal computer records. Those records were retained by the Government for more than two-and-a-half years after Appellant's computer was copied pursuant to a search warrant. This unauthorized retention of personal files violated Appellant's Fourth Amendment rights.

Defense Attorneys: Stanley A. Twardy, Jr. and Daniel E. Wenner

2. United States v. Adepoju, Fourth Circuit: Appellant was convicted by a jury of bank fraud and aggravated identity theft and sentenced to 70 months' imprisonment. During sentencing, Appellant was given a sentencing enhancement for sophisticated means. Completing paperwork to open a bank account in another's name, including obtaining that personal information via internet searched, did not constitute sophisticated means, so the sentence was vacated and the case remanded for resentencing.

Defense Attorney: John O. Iweanoge, II

3. United States v. Henriquez, Fourth Circuit: The Fourth Circuit determined that first degree burglary in Maryland did not constitute a generic burglary and therefore does not qualify as a crime of violence under the U.S. Sentencing Guidelines. Appellant's sentence was reversed because he received a sentencing enhancement for having committed a crime of violence.

Defense Attorneys: Paresh S. Patel and James Wyda

4. United States v. Blevins, Fifth Circuit: Appellant received a sentencing enhancement for having a prior felony drug conviction. In order to apply that enhancement, the Government was required to serve notice on Appellant. The Government's service of such information under a first indictment was insufficient when that indictment was dismissed and the Government then filed a second, separate indictment. The notice must be served as part of the prosecution to which the sentencing is connected, so the case was remanded for further proceedings.

5. United States v. Escobedo, Fifth Circuit: During trial, the Government introduced evidence of Appellant's withdrawn guilty plea and related inculpatory statements. Appellant withdrew the guilty plea prior to its acceptance by the district court and proceeded to trial instead. The plea included a waiver of Appellant's ability to challenge the introduction of his withdrawn guilty plea and related inculpatory statements. Because the plea was ambiguous about whether that waiver took effect immediately or only upon the acceptance of the plea, the case was reversed and remanded.

6. United States v. Mackay, Fifth Circuit: After pleading guilty to conspiracy to distribute and possession with intent to distribute marijuana. Because of a clerical error, Appellant's PSR and judgment listed cocaine instead of marijuana. Appellant filed a motion to correct that error. The refusal to correct the PSR was reversed. The Fifth Circuit concluded that the PSR is a part of the record under Rule 36 and because the BOP uses the PSR for classification and designation, the error was not harmless.

7. United States v. Rodriguez-Lopez, Fifth Circuit: Appellant was convicted by a jury of conspiracy to distribute marijuana. The district court applied a three-level sentencing enhancement for his managerial or supervisor role in the drug conspiracy. On appeal, the Court vacated and remanded for resentencing because there was no evidence that Appellant had exercised supervisory control over other members of the conspiracy, nor was he involved in the planning of operations of the organization. Instead, he only recruited another to purchase firearms, and that person recruited others. That involvement was insufficient to prove a managerial position for the sentencing enhancement.

8. United States v. Baker, Seventh Circuit: Appellant pled guilty for failing to register as a sex offender and was sentenced to 77 months' imprisonment followed by a life term of supervised release. The judge also imposed eight special conditions of supervised release. The life term of supervised release was vacated because the judge improperly calculated the guidelines and failed to provide for any justification for exceeding the correct 5-year guidelines term. Three special conditions were also vacated because they were not reasonably tailored or properly defined. Finally, the order was deficient in failing to account for Appellant's potential inability to pay for some of the required treatment and tests of his supervision.

9. United States v. Benhoff, Seventh Circuit: Appellant pled guilty to knowingly transporting and shipping child pornography and, along with his sentence, was given special conditions of supervised release. The court's order on two of the special conditions was remanded sot that the trial court can narrowly tailor them. The trial court must clarify what materials are "sexually stimulating" as well as narrow the scope of the no contact with minors order so it does not block Appellant's access to protected speech.

10. United States v. Farmer, Seventh Circuit: Once again, the Seventh Circuit vacated the special conditions of Appellant's supervised release and remanded for further consideration. In this case, the special conditions bore no reasonably direct relationship to Appellant's underlying crime. Appellant pled to attempted extortion and using interstate communications in that attempt. The two conditions--a prohibition on self-employment and a requirement that Appellant submit to a search of his person, vehicle, office, residence, and property without a warrant--were not reasonably related to his convictions.

11. United States v. Garrett, Seventh Circuit: Appellant's sentencing guidelines were miscalculated after his drug offense conviction. The court did not clearly state the drug quantity that it found attributable to Appellant or adequately indicate the evidence it found reliable in determining Appellant's relevant conduct. Appellant's sentence was vacated and the case remanded for resentencing.

12. Henderson v. Ghosh, Seventh Circuit: Appellant, a prisoner, filed suit against health care providers and corrections employees alleging deliberate indifference to his medical needs. During litigation, Appellant's motions for recruitment of counsel were denied. Only once the defendants filed a summary judgment motion was Appellant's motion for recruitment of counsel granted. This trial court did not properly assess Appellant's competence to litigate his claims, which was only exacerbated by his incarceration. In addition, the factual and legal complexity of the claims necessitated the appointment of counsel in this case.

13. United States v. Glover, Seventh Circuit: Appellant's motion to suppress guns, drugs, and paraphernalia seized from his home pursuant to a search warrant was improperly denied. The search warrant had no information regarding the informant's credibility, which undermined the magistrate's ability to be a neutral arbiter of probable cause. The complete absence of that information was sufficient to raise an inference of reckless disregard for the truth, which warranted reversal.

14. United States v. Johnson, Seventh Circuit: Appellant's special condition of supervised release which required him to participate in sex offender treatment was not supported. Appellant's only sex-related offense was a misdemeanor conviction fifteen years before sentencing in the immediate case. That condition of supervised release was therefore vacated.

15. United States v. Nelson, Eighth Circuit: Appellant's currency was seized pursuant to a lawful traffic stop, where Appellant was found to be carrying a small amount of marijuana and paraphernalia. Appellant had gathered the currency in advance of a road trip from his own savings account, stock dividends, and family. Despite the legitimate sources of the currency, the government instituted a forfeiture proceeding claiming that the currency was substantially connected to drug trafficking. The trial court's ruling allowing the forfeiture was reversed because the Government failed to prove that Appellant was planning to purchase and transport large amounts of drugs and other evidence indicated that Appellant was not engaged in trafficking.

16. United States v. Aguilera-Rios, Ninth Circuit: Appellant's conviction for illegal reentry was reversed. The Ninth Circuit found that Appellant's removal order was invalid because it was based on a conviction under the California Penal Code which was not a categorical match for the federal firearms aggravated felony.

Defense Attorney: Kara Hartzler

17. United States v. Jackson, Ninth Circuit: The Ninth Circuit reversed Appellant's conviction for unlawfully manufacturing or possessing an identification card of the design prescribed by the head of any department or agency of the United States. No rational fact-finder could conclude beyond a reasonable doubt that the fake card Appellant was "of the design prescribed by the head of any department or agency of the United States," because the card was created by the maintenance center at a Marine Corps base and Appellant created a copy of the card previously issued to him because he constantly lost his actual card.

Defense Attorney: Davina T. Chen

18. Boyd v. United States, Eleventh Circuit: Appellant's fourth §2255 motion was dismissed as successive. That dismissal was reversed because the term "successive" does not refer to all habeas petitions filed second or successively in time. Instead, it bars only motions which could have been raised in a claim for relief in an earlier motion but were not. Appellant's three previous §2255 motions did not render the fourth successive because the wrong which he now asserts was not obvious until 2003 and the first §2255 motion was in 2001. The second and third §2255 motions were not decided on the merits and therefore did not make this motion successive either.

19. United States v. Dougherty, Eleventh Circuit: Two Appellants' sentences of 428 months were vacated. The trial court improperly applied six-level sentencing enhancements for assaulting a police officer during immediate flight from an offense. The Eleventh Circuit determined that "immediate flight" did not encompass the assault on a police officer which occurred eight days after the flight began. That is, continuing flight does not qualify as immediate flight.