For the week of July 17, 2015
In this edition:
News to Use | Top of the Ninth | Short Circuits | For the Bookworms
News to use
- Hidden Injustice: County Counsel Works To Keep OC’s Snitch Scandal Under Wraps (OC Weekly) (H/T)
- President Obama Takes On the Prison Crisis (New York Times)
- SAFE Justice Act Summary (FAMM)
Top of the Ninth
- U.S. v. Gonzalez-Corn (Immigration and Nationality Act incorporates Controlled Substance Act felonies into definition of “aggravated felony,” so they qualify as such without any need for Taylor analysis) (jury may infer defendant’s alienage from prior deportation and his own statements about his status, even though each on its own is insufficient).
- Rogers v. McDaniel (§2254) (depravity-of-mind aggravating factor and instruction were unconstitutionally vague under CEFL and error was prejudicial) (on expanded COA, reversing and remanding denied guilt-phase claims in light of intervening decisions).
- Boyer v. Chappell (§2254) (no unreasonable application of CEFL in denying petitioner evidentiary hearing to challenge reliability of penalty-phase testimony) (no unreasonable application of Jackson in denying sufficiency of witness identification) (no unreasonable application of Strickland in finding guilt-phase and penalty-phase investigation of possible organic brain damage adequate, and any error was harmless) (Eighth Amendment challenges to California death penalty, based on overbreadth in death-eligibility and on prosecutorial discretion, were foreclosed) (on newly-certified claims, no relief for trial court’s failure to instruct jury sua sponte that unconsciousness was complete defense and to define unconsciousness, or for trial counsel’s failure to request those instructions).
- Foley v. Biter (habeas) (Rule 60(b) motion should have been granted, where district court’s finding of no attorney abandonment was erroneous; counsel never told petitioner about denial and never took appeal).
- Velazquez v. City of Long Beach (civil) (reversing JMOL for defendant in excessive use of force action, and remanding to new judge, where Judge Real had “criticized and rebuked [plaintiff] counsel numerous times” for “exceedingly minor issues” while being “more permissive” toward defense counsel).
Short circuits
- U.S. v. Ortiz-Rodriguez (1st Cir.) (in drug trafficking case, district court did not adequately explain sentence that was three times more than guidelines high end; fact that codefendants in different car had fired weapons into the air wasn’t enough). (H/T)
- Morales-Santana v. Lynch (2d Cir.) (immigration) (gender-based discrimination in one-year continuous presence requirement for derivative citizenship under INA violates equal protection) (splitting with U.S. v. Flores‐Villar, 536 F.3d 990 (9th Cir. 2008). (H/T Brianna Mircheff & Matthew Larsen)
- U.S. v. Webster (8th Cir.) (upward variance to stat max 120 months from guideline range of 70–87 was plain error, where it was based on allegations related to pending domestic assault charge included in PSR, which defendant had objected to, and regarding which no other evidence had been adduced). (H/T)
- U.S. v. Edwards (3d Cir.) (government’s references to defendant’s post-Miranda silence, during direct and closing, were prejudicial Doyle error, where defendant’s credibility was key, and where district court overruled objection and only belatedly gave curative instruction that was ineffective and contradicted by other instructions). (H/T)
- U.S. v. Houston (instruction that permitted conviction for threats under 18 U.S.C. §875(c) on mere negligence was plain error). (H/T)
- U.S . v. Davis (7th Cir.) (en banc) (“troubling” racial disproportion in stash house cases is legitimate reason for discovery, and given appropriate findings, district courts may order disclosure, including ATF’s selection criteria).
- U.S. v. Warner (7th Cir.) (in $5 million tax evasion case, sentence of probation and community service on a guidelines range of 46–57 months was reasonable for billionaire creator of Beanie Babies). (H/T)
- U.S. v. Mackin (government’s failure to disclose complete copy of custody slip used for gun in evidence until trial was reversible Rule 16 violation; partial copy that government had produced previously wasn’t enough to avoid prejudice).
- U.S. v. Poke (7th Cir.) (Posner, J.) (420-month sentence was apparent “accidental double counting,” where district court had said it was sentencing defendant to low-end 360 months for drug offense plus 60 months for carrying gun in furtherance of it under §924(c), without making it clear district court realized it had option of apportioning both sentences under §5G1.2(e) so that they ran 360 months total) (in imposing sentence, district court must take likely age upon release into consideration; and armed drug dealing “is a young man’s career, which a man would be unlikely to resume in his fifties”) (district court also failed to justify nonmandatory conditions) (
- U.S. v. Alli-Balogun (E.D.N.Y.) (Weinstein, J.) (new special instruction in §1B1.10 delaying effect of drugs-minus-two amendment did not bar immediate release of §3582(c)(2) movant who had already served more than maximum sentence now applicable). (H/T)
For the bookworms
- “Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data,” Orin S. Kerr, ___ Tex. Tech. L. Rev. ___ (2015) (SSRN). (H/T)
- “Note: Protecting the Privacies of Digital Life: Riley v. California, the Fourth Amendment’s Particularity Requirement, and Search Protocols for Cell Phone Search Warrants,” William Clark, ___ B.C. L. Rev. ___ (forthcoming) (SSRN). (H/T)
- “Facial Trustworthiness Predicts Extreme Criminal-Sentencing Outcomes,” John Paul Wilson & Nicholas O. Rule, ___ Psych. Sci. ___ (2015) (abstract).
- “Fatal Re-Entry: Legal and Programmatic Opportunities to Curb Opioid Overdose Among Individuals Newly Released from Incarceration,” Leo Beletsky et al., 7-1 Ne. U. L.J. 155 (2015) (SSRN). (H/T)
- “Regulating Prison Sexual Violence,” Gabriel Arkles, 7-1 Ne. U. L.J. 71 (2015) (SSRN). (H/T)
- “Law and Emotion: How Empathy Forms the Judges’ Sense of Justice,” Marcelo C Galuppo, working paper (SSRN). (H/T)
