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Short Wins – the “Venue in a Federal Criminal Case Is Not Infinite” Edition

There’s a lot in this week’s edition of Short Wins, but my favorite is United States v. Aurenheimer.

Federal venue is a broad thing. It’s nice to see a circuit push back a little on just how broad it can be.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Millan-Isaac, First Circuit: Appellants pled guilty to aiding and abetting a robbery and possession of a firearm. On appeal, the First Circuit held that the district court erred in sentencing both Appellants. During Appellant Cabezudo’s sentencing, the court erred by failing to calculate or discuss the appropriate sentencing guidelines range. During Appellant Millan’s sentence hearing, the court considered new information for which Appellant did not have notice. Therefore both sentences are vacated and remanded.

Defense Attorneys: Megan Barbero, Gregory P. Teran, Rachel I. Gurvich, and Julie Soderlund
2. United States v. Aurenheimer, Third Circuit: Appellant’s conviction was vacated because the district court did not have proper venue. For a cybercrime conspiracy case, proper venue exists only where one accessed information without authorization or obtained information, neither of which occurred in New Jersey.

Defense Attorneys: Tor B. Ekeland, Mark H. Jaffe, Orin S. Kerr, Marcia C. Hofmann, and Hanni M. Fakhoury
3. United States v. Velazquez, Third Circuit: Appellant’s motion to dismiss should have been granted because his right to speedy trial was violated. The government tried for nearly five years to apprehend Appellant by running his name through the NCIC database, but other leads were also available. Those standard practices for finding a wanted person should have been attempted.

Defense Attorney: Jerome Kaplan
4. United States v. White, Third Circuit: Appellant’s conviction was vacated because the court improperly denied Appellant’s motion to suppress. A search of Appellant’s house, which had turned up guns, was unlawful because Appellant was arrested outside of the house. The district court should have considered whether there was an articulable basis for the protective sweep of the home.

Defense Attorneys: Leigh M. Skipper, Brett G. Sweitzer, Sarah S. Gannett, and Keith M. Donoghue
5. United States v. Whiteside, Fourth Circuit: The Court held that federal inmates may use a federal habeas corpus motion to challenge a sentence that was based on the career offender sentencing guidelines enhancement when case law has determined that the enhancement was inapplicable to the Appellant. The court therefore vacated the sentence and remanded for resentencing.

Defense Attorneys: Ann Loraine Hester and Henderson Hill
6. United States v. Barbour, Sixth Circuit: Appellant pled guilty to a federal firearms defense. At sentencing the government argued that two previous robberies – which had occurred on the same night at the same gas station – constituted two offenses. The Sixth Circuit held that the government has the burden of showing the offenses were committed on different occasions from one another and the government failed to meet that burden here so the case was remanded for resentencing.

Defense Attorney: Laura E. Davis
7. United States v. Kamper, Sixth Circuit: Appellant Head’s sentence was vacated because the district court erred in applying sentencing enhancements for obstruction of justice and playing an aggravating role as manager or supervisor of a conspiracy. The Court explained that telling an obvious lie under oath is insufficient to support a sentencing enhancement for obstruction of justice when the trial court did not make factual findings regarding the elements of perjury including materiality and intent. Without determining the proper standard of review, the Court held that the aggravating role enhancement was improper because it requires management of participants, not merely management of the criminal scheme.

Defense Attorney: Allison L. Ehlert
8. United States v. Kilgore, Sixth Circuit: Appellant challenged a four-level sentencing enhancement for being a felon in possession of a firearm. Appellant became a felon when he stole two unloaded firearms from a police station, and because he had stolen firearms, was “in possession” of them. However, the Sixth Circuit held that the sentencing enhancement can only be applied to those whose offense triggering application of the enhancement is separate and distinct conduct from the underlying offense. In this case there was not “another felony offense” so the sentence was vacated.

Defense Attorney: Laura E. Davis
9. United States v. Farano, Seventh Circuit: Appellants were convicted by a jury of mail and wire fraud, money laundering, and theft of government funds. The order for restitution was vacated and remanded so the district judge could consider evidence on whether the refinancing banks had based their decision in whole or in part on fraudulent representations by the Appellants.

10. United States v. Martins, Eighth Circuit: The case was reversed because the district court improperly denied a post-trial motion to suppress evidence. The Eighth Circuit found that there was not probable cause for the traffic stop because the officer’s inability to read a license plate controls, not a post-arrest determination regarding the percentage or portion of the text covered. The trial court therefore erred by not suppressing the evidence because the office stated he was able to read the license plate within 100 feet of the car.

11. United States v. Anthony Fast Horse, Eighth Circuit: Appellant was convicted of one count of criminal sexual conduct. The jury instruction during trial failed to require the jury to find that Appellant had knowledge that the victim lacked the capacity to consent to the sexual conduct. The conviction was reversed and remanded for a new trial.

12. United States v. Curtis, Eighth Circuit: After being found incompetent to stand trial, Appellant was required to take medication involuntarily. In ordering the involuntary medication, the trial court failed to consider all the circumstances relevant to Appellant and the consequences and purposes of that medication required by Sell v. United States. The case was remanded for further findings.

13. United States v. Christian, Ninth Circuit: Appellant was convicted of two counts of transmitting threats through interstate commerce. The Ninth Circuit vacated both convictions because the district court abused its discretion by excluding Appellant’s expert solely because the expert examined Appellant for competency rather than diminished capacity and would testify regarding diminished capacity. The district court should have evaluated whether the substance of the testimony would help the jury make a determination of Appellant’s ability to for the specific intent of the crime. A new trial was required.

Defense Attorney: Jess R. Marchese
14. United States v. Dominguez-Maroyoqui, Ninth Circuit: Appellant’s sentence was vacated and remanded because the trial court imposed a sentencing enhancement based on Appellant’s 1996 conviction for assaulting a federal officer under 18 U.S.C. §111(a). The Ninth Circuit held that a conviction under §111(a) is not categorically a crime of violence and does not require, as a necessary element, proof that Appellant used, attempted to use, or threatened to use physical force.

Defense Attorney: Gary P. Burcham
15. United States v. Emmett, Ninth Circuit: The district court denied Appellant’s motion for early termination of supervised release. That order was vacated and remanded for further proceedings because the trial court denied the motion without a hearing or any response from the government or probation office. The trial court’s only reasoning was that Appellant had not demonstrated undue hardship caused by supervised release, but that was not an adequate basis for denying Appellant’s motion.

Defense Attorney: James H. Locklin
16. United States v. French, Ninth Circuit: Appellant was convicted by jury of two money laundering convictions. Both convictions were reversed because there was insufficient evidence to support them. The trial court also erred by failing to define “proceeds” as “profits” during jury instructions.

Defense Attorneys: Michael J. Kennedy, Rene Valladares, and Dan C. Maloney
17. United States v. Harrington, Ninth Circuit: The Ninth Circuit reversed Appellant’s conviction for refusing to submit to a blood alcohol test in a national park. It was a violation of due process to convict Appellant when park rangers told him three times that his refusal to submit to the test was not a crime itself, even though it was.

Defense Attorney: Katherine L. Hart
18. United States v. Brown: A magistrate judge ruled on Appellants motion to vacate his sentence under 28 U.S.C. §2255. The Eleventh Circuit held that a §2255 motion is not a civil matter and magistrate judges only have statutory over civil matters under the Federal Magistrate Act of 1979. The motion was therefore vacated and remanded.

19. United States v. Ransfer, Eleventh Circuit: A jury convicted Appellants of multiple counts of robbery, conspiracy, and firearm charges. The Eleventh Circuit vacated convictions for Appellant Lowe arising out of one robbery because there was no evidence that he took any action in furtherance of that crime. The case was remanded for resentencing.

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