United States v. Ronald Mitchell, United States Court of Appeals, 5th Circuit, Docket No. 12-30423

Former New Orleans police officer Ronald Mitchell shot and killed Danny Brumfield outside the Ernest N. Morial Convention Center shortly after Hurricane Katrina ravaged New Orleans.  Mitchell was not charged in the September 2005 shooting.  Rather, a grand jury indicted Mitchell in 2010 on charges that Mitchell lied about the shooting's circumstances during a deposition for a civil lawsuit filed by Brumfield's widow.

 

After a jury convicted Mitchell of obstruction of justice and perjury for lying under oath when he said he left his patrol car after shooting and checked for a pulse, Mitchell appealed, arguing that the district erred in not granting his motion for judgment of acquittal and new trial.  In addition, Mitchell contended that his convictions were multiplicitous

 

Regarding the motion for judgment of acquittal and new trial, the United States 5th Circuit Court of Appeal found that, despite Mitchell’s assertion that he was unduly prejudiced by the late production of Brady material only five (5) days prior to trial, his counsel was nonetheless able to effectively use that material to obtain an acquittals on the counts related to that material.  As such, the court found that Mitchell suffered no prejudice.  The 5th Circuit also rejected Mitchell’s contention that his convictions were multiplicitous because “each charge requires proof of an element that the other does not.”  Accordingly, the 5th Circuit affirmed Mitchell’s convictions and sentence

 

Rhodes v. Thaler, United States Court of Appeal, 5th Circuit, Docket No. 12-40008

After Mandell Rhodes, Jr. was convicted of aggravated rape in 1980, he was paroled by Texas in 2004.  However, after violating a condition of his release, Rhodes returned to prison in 2006. Rhodes subsequently obtained a certificate of appealability on the issue of whether his street-time should have been restored because he was erroneously released to parole. The 5th Circuit held that, because since Rhodes had no protected liberty interest in the street-time credit that he claimed to have accrued, his due-process right was not violated. Accordingly, the court affirmed the district court's denial of his habeas petition.

 

United States v. Jason Morrison, United States Court of Appeal, 5th Circuit, Docket No. 11-50614

Along with a co-defendant, Jason Morrison was convicted of charges related to his involvement in a scheme to defraud homeowners, home buyers, and mortgage lenders.  Morrison appealed his sentence, arguing that the district court's calculation of the loss amount and its application of the sentencing enhancement for "mass-marketing" were erroneous.  Given the district court's factual findings that Morrison and his co-defendant did not intend to repay the mortgage loans, the 5th Circuit did not find that the district court erred by employing an intended loss calculation and declining to account for the collateral value.  The 5th Circuit also held that the district court did not err in imposing the mass-marketing enhancement under U.S.S.G. 2B1.1(b)(2)(A)(ii) where Morrison and his co-defendant used advertisements in newspapers that circulated to thousands of people and potentially more through online viewing.  While Morrison and his co-defendant could have phrased their advertisements to sell one house to one person, they solicited thousands of potential buyers in order to find the one buyer for each property.  Therefore, the 5th Circuit affirmed Morrison's sentence.

 

Marshall v. Rodgers, 569 U.S. _____ (2013)

After Otis Lee Rodgers was charged in a California criminal proceeding with making criminal threats, assault with a firearm and being a felon in possession of a firearm and ammunition, Rodgers waived his Sixth Amendment right to counsel at his arraignment, electing to represent himself.  However, Rodgers would later change his mind several times throughout this criminal proceeding about whether he wanted the assistance of counsel.  Two months after the arraignment, Rodgers retained counsel before his preliminary hearing.  Rodgers then fired that lawyer two months later and, once again, waived his right to counsel.  Rodgers later requested that the trial court to appoint an attorney to represent him, and the trial court granted his request.   But, shortly before trial, Rodgers again waived his right to counsel and proceeded to trial pro se.

 

At the close of trial, a California jury returned a verdict of guilty.  Rodgers then requested an attorney to help him move for a new trial, which the trial court denied.  The trial court would also ultimately deny Rodger's motion for a new trial.  On appeal, the California Court of Appeal affirmed the convictions and sentence.  The federal district court denied habeas corpus relief, but the United States Ninth Circuit Court of Appeal reversed.

 

Reversing the ninth circuit, the United States Supreme Court initially noted the tension between the Sixth Amendment's guarantee of "the right to counsel at all critical stages of the criminal process," and its concurrent promise of "a constitutional right to proceed without counsel when [the defendant] voluntarily and intelligently elects to do so." Yet, in light the factual and procedural background of this case, the Supreme Court concluded that California's approach in this case was not contrary to or an unreasonable application of the Court's assistance-of-counsel cases.

 

Florida v. Joelis Jardines, 569 U.S. _____ (2013)

In connection with a narcotics investigation, police took a drug-sniffing dog to Joelis Jardines' front porch.  After the dog alerted, the officers obtained a search warrant and found marijuana plants in Jardines' home during the search.  Jardines, as a result, was charged with marijuana trafficking.  Jardines then filed a motion to suppress the evidence in the criminal proceeding, which was granted by the trial court.  The Supreme Court of Florida later upheld the trial court's ruling.

 

The United States Supreme Court found that the initial investigation of Jardines' home was a search under the Fourth Amendment.  The Court explained that the right of a man to retreat into his own home and be free from unreasonable governmental intrusion is the "very core" of the Fourth Amendment.  The Court further stated that, under a proper Fourth Amendment analysis, the area immediately surrounding and associated with the home (i.e.- the "curtilage") is also part of the home.  In fact, the front porch of a home is the classic example of an area to which the activity of home life extends.  The Court noted that officers need not "shield their eyes" when passing a home on public thoroughfares but "no man can set his foot upon his neighbor's close without his leave."  Thus, a police officer may approach a home without a warrant in hopes of speaking to occupants because that is "no more than any private citizen might do."  But, since there is no customary invitation to enter the curtilage to conduct a search, the scope of such action is limited to not only to a particular area but also to a specific purpose.  As such, the Court ultimately concluded that, when the Government obtains information by physically intruding on persons, houses, papers, or effects, a search within the original meaning of the Fourth Amendment has "undoubtedly occurred."  Therefore, the Supreme Court held that the police violated the Fourth Amendment by taking a drug-sniffing dog to Jardines' front porch without a warrant.  Accordingly, the Court affirmed the rulings of the trial court and the Supreme Court of Florida, suppressing the evidence.

 

United States v. Todd Culbertson, United States Court of Appeal, 5th Circuit, Docket No. 11-10917

After the district court extended his sentence during a revocation hearing, the defendant appealed, contending that the district court impermissibly based the length of the sentence on the court's perception of his rehabilitative needs. The United States Fifth Circuit Court of Appeal held that the district court violated Tapia v. United States when it lengthened the defendant's sentence based on rehabilitative needs; and, in turn, this error warranted reversal. Accordingly, the court vacated the sentence and remanded for resentencing.

 

United States v. Erik Jenkins, United States Court of Appeal, 5th Circuit, Docket No. 11-51277

After being convicted for various offenses concerning child pornography, the defendant appealed his conviction and sentence.  The appellate court initially found that the district court did not err in applying the U.S.S.G. 3A1.1(b)(1) "vulnerable victim" enhancement because it was clear that the children depicted were the victims of defendant's crime, and that at least some of these children were especially vulnerable to sexual abuse and exploitation.  The appellate court therefore found no reason to conclude that the district court abused its discretion in applying and balancing the sentencing factors.  As such, the appellate court held that defendant had not shown his sentence to be substantively unreasonable. Accordingly, the court affirmed the defendant’s sentence.

 

State of Louisiana v. Isaiah Overstreet, Jr., Supreme Court of Louisiana, Docket No. 2012-KA-1854

After the district court ruled that La. R.S. 15:541(7) and 15:542 (i.e.- the laws requiring registration for sex offenders) were unconstitutional as applied to a person who pled and was found not guilty by reason of insanity to a sex offense, this matter was reviewed by the Supreme Court of Louisiana.  The facts of the case suggest that Isaiah Overstreet, Jr. began to suffer from acute mental illness at the age of 32.  In 1993, he quit his job, began living in his car, and started preaching on the grounds of college campuses. Two years later, police were dispatched to a Southeastern dormitory on April 25, 1994, at approximately 6 a.m., where Overstreet, after failing to force his way into one room, entered another, forced a student onto her bed, and struggled with her before fleeing.  At 11:30 p.m. later that day, police were dispatched to Louisiana State University where Overstreet had grabbed a student as she waited for campus transit, dragged her into the bushes, pinned her to the ground, and attempted to remove her clothing before fleeing.  Also on that day, Overstreet tried to gain entry to another dormitory by breaking a window and pulling the handle on a fire door.  The State of Louisiana charged Overstreet by bill of information with aggravated burglary and two counts of attempted aggravated rape.  However, the criminal proceeding would be stalled due to Overstreet's competency. After Overstreet was evaluated to determine his competency to proceed to trial, the sanity commission agreed that Overstreet was delusional and unable to assist in his defense.  Overstreet then went through several stints in treatment centers, being treated with low doses of anti-psychotic medication and his symptoms generally went into remission.  Overstreet denies any memory of the attacks and has consistently refused to participate in sex offender assessment or treatment.  Overstreet ultimately filed a motion to be released, but due to his refusal to participate, a review panel of the court recommended against his release.  Overstreet was informed by treatment center staff that if he was transferred to a group home, he would be required to register as a sex offender. Overstreet eventually filed a motion for declaratory relief, seeking a ruling from the district court to determine whether he was classified as a sex offender, and, in turn, subject to the registration requirement. The district court ruled that the laws requiring sex offender registration were unconstitutional as applied to Overstreet.  However, the Louisiana Supreme Court reversed the district court because Overstreet failed to sufficiently particularize any basis for finding the statutes unconstitutional.

 

 

State of Louisiana v. Mazen Hamdan, Supreme Court of Louisiana, Docket No. 2012-KK-1986

The Supreme Court of Louisiana granted the writ in this case to consider the criteria by which Louisiana courts are to evaluate a criminal defendant's previous conviction in a foreign jurisdiction during a habitual offender adjudication.  Mazen Hamdan was charged with possession of a firearm by a convicted felon.  The bill of information alleged that Hamdan was previously convicted in Orleans Parish of possession of heroin and possession of methadone, which were used in the trial for the underlying predicate offense(s).  At the conclusion of trial, the jury found Hamdan guilty as charged. The district court subsequently sentenced Hamdan to serve 10 years at the Department of Corrections.  Yet, on the day of the sentencing hearing, the State of Louisiana filed a habitual offender bill of information, alleging that Hamdan's sentence should be enhanced due to his prior guilty plea in federal court to interstate transportation of stolen property.  Hamdan responded by filing a motion to quash the habitual offender bill, contending that the predicate offense alleged by the State of Louisiana had no felony equivalent under Louisiana law.  Hamdan also argued that the charging instrument in the federal prosecution did not indicate whether he actually possessed the stolen property or simply arranged for its transportation.  The district court granted Hamdan's motion to quash, and the Fourth Circuit Court of Appeal affirmed.  The Louisiana Supreme Court stated: "When a predicate offense does not necessarily include conduct criminal under Louisiana law, the conviction cannot lead to an enhanced penalty.  In determining whether the predicate offense satisfies this criteria, courts are not confined to an examination of the applicable laws and the charging instrument of the foreign jurisdiction.  Rather, when . . . there is information from the foreign proceeding available in the record that clearly establishes that the crime for which the defendant was convicted in a foreign jurisdiction would be a felony if committed in this state, courts are required to consider all of the available information in the record in deciding whether the foreign crime which, if committed in this state would be a felony."  Therefore, the Louisiana Supreme Court held that the district court legally erred in quashing the habitual offender bill filed by the State of Louisiana. Accordingly, the Supreme Court of Louisiana reversed the decision of the appellate court, vacated the district court's judgment granting Hamdan's motion to quash, and remanded the case for further proceedings.

 

State of Louisiana v. Craig Oliphant, Supreme Court of Louisiana, Docket No. 2012-K-1176

The Louisiana Supreme Court granted certiorari in this case to provide guidance on whether the offense of vehicular homicide fit the general definition of a "crime of violence" under La. R.S. § 14:2(B).  Craig Oliphant struck and killed a pedestrian while driving his vehicle in a highly intoxicated state.  Thereafter, Oliphant pled guilty to a violation of vehicular homicide and was sentenced to twenty-five (25) years at hard labor, with the first fifteen (15) years without benefit of probation, parole or suspension of sentence.  The district court also designated his conviction as a "crime of violence."  The appellate court affirmed the conviction, but reversed the portion of the sentence designating vehicular homicide a "crime of violence."  As such, the appellate court vacated the twenty-five (25) year sentence and remanded the matter for resentencing.  The Supreme Court of Louisiana found that vehicular homicide is a "crime of violence" because the offense involves the use of physical force and the substantial risk that force will be used against another person in the commission of the offense as well as the use of a dangerous weapon.  Since the Louisiana Supreme Court found no error in the district court's "crime of violence" designation, the Louisiana Supreme Court reversed the ruling of the court of appeal and remanded the case to the district court for resentencing.

 

State of Louisiana v. Jeremy Patterson, Supreme Court of Louisiana, Docket No. 2012-K-2042

State of Louisiana v. Billy Lewis, Supreme Court of Louisiana, Docket No. 2012-K-1021

The Supreme Court of Louisiana just addressed two New Orleans homicide cases where the issue presented centered on the appropriate remedy for a defendant when he is prohibited, in violation of Article 799.1 of the Louisiana Code of Criminal Procedure, from using a peremptory challenge to back strike a provisionally selected juror.  Each ruling of the court ultimately resulted in new trials.

 

In State of Louisiana v. Billy Lewis, the Supreme Court of Louisiana agreed with the Fourth Circuit Court of Appeal's determination that the error is one which is subject to harmless error analysis.  The supreme court nevertheless found the court of appeal misapplied the harmless error standard of review.  Since the Supreme Court of Louisiana could not conclude with certainty that the guilty verdicts rendered in this case were surely unattributable to the district court's error in prohibiting Lewis from using a back strike to peremptorily challenge a provisionally selected juror, the Supreme Court of Louisiana reversed the decision of the appellate court, vacated defendant's convictions and sentences, and remanded this matter to the district court for a new trial.

 

In State of Louisiana v. Jeremy Patterson, Patterson was charged by grand jury indictment with one count of second degree murder in 2008. After Patterson was convicted at trial and his counsel was prohibited from using a back strike to peremptorily challenge a provisionally selected juror, the Fourth Circuit of Appeal reversed Patterson's conviction, once again applying a harmless error analysis.  Much like the appelalte court, the Louisiana Supreme Court also found that the district court's error in denying the back strike was not harmless. Consequently, finding the court of appeal correctly applied a harmless error analysis to the facts of this case, the Supreme Court of Louisiana affirmed the appellate court's decision, vacating Patterson's conviction and sentence, and remanding his case to the district court for a new trial.

 

Vuncannon, et al v. United States, United States Court of Appeals, 5th Circuit, Docket No. 12-60435

A man was injured while incarcerated in county jail and working on a work detail in connection with his incaration.  The county and the medical corporation that treated the man sought reimbursement of medical expenses from the Mississippi Public Entities Workers' Compensation Trust (MPE), the provider of workers' compensation insurance from the county.  Consequently, at issue was whether the man was covered under the Mississippi Workers' Compensation Act (MWCA), Mississippi Code 47-5-417, -567, and thus was entitled to compensation benefits for injuries sustained while he was on work detail. The court concluded as a matter of law that the county had no enforceable contract to hire plaintiff, a prerequisite of coverage, and therefore, the court affirmed the district court's summary judgment in favor of MPE.

 

United States v. Vargas-Ocampo, United State Court of Appeals, 5th Circuit, Docket No. 11-41363

Defendant was convicted at trial.  Thereafter, the defendant challenged one of two counts of his drug-trafficking conviction for insufficiency of evidence and the other for an erroneously submitted jury instruction. The court clarified that, because the Supreme Court had stated and repeatedly reaffirmed the constitutional test for sufficiency of the evidence to uphold a conviction, Jackson v. Virginia, the statements inconsistent with Jackson that have appeared in some Fifth Circuit cases must be disavowed. Nonetheless, when using the Jackson standard, the appellate court found that the evidence was sufficient to convict defendant of knowing, voluntary participation in a conspiracy to possess with intent to distribute marijuana. In sum, the appellate court concluded that the district court neither erred nor abused its discretion in giving the aiding and abetting jury instruction. Accordingly, the court affirmed the convictions.

 

Read the court's opinion here.

 

Get your designated drivers lined up, folks! 

 

The Jefferson Parish Sheriff's Office has announced a DWI checkpoint for motorists at an undisclosed location on the West Bank of Jefferson Parish this Friday night (March 15, 2013). The checkpoint is scheduled for 8 p.m. to 2 a.m..

 

The checkpoint is part of the Jefferson Parish Sheriff's Office effort to prevent alcohol-related injuries and fatalities. Intoxicated drivers will be arrested.

 

Motorists should also remember not to drive while under the influence of alcohol or any other substance that could lead to impairment (even over the counter or other prescription medications). If residents plan on drinking, they should choose a designated driver or simply call a cab.

 

United States v. Cancino-Trinidad, United States Court of Appeals, 5th Circuit, Docket No. 11-41344

After the defendant pleaded guilty to illegal reentry, he appealed, asserting that the imposition of a three-year term of supervised release ("SR") was procedurally and substantively unreasonable. However, even assuming the district court did not previously conduct the factual consideration described in U.S.S.G. 5D1.1, the appellate court found that the defendant's criminal record supported a finding that the imposition of SR would provide an added measure of deterrence and protection based on the facts and circumstances of the case. Because the defendant had raised a possibility of a different result, but not the requisite probability, the court concluded that the error did not affect his substantial rights. Further, the appellate court found that the district court did not err in imposing the length of the SR, which was within the applicable guideline range. Accordingly, the court affirmed the defendant's sentence.

 

Read Opinion here at ca5.uscourts.gov

 

Richards v. Thaler, United States Court of Appeals, 5th Circuit, Docket No. 11-20803

Petitioner appealed the district court's dismissal of his habeas corpus petition as time-barred because it was filed after the one-year deadline. Petitioner contended that the district court erred by deeming the date the clerk of the court stamped his state post-conviction petition as received to be the date he filed the petition. The court held that, under Texas law, petitioner's 28 U.S.C. 2254 application was deemed filed on the date petitioner turned the application over to prison authorities to be filed. Accordingly, the court reversed and remanded and did not reach petitioner's claim that he was entitled to equitable tolling.

 

Read Opinion here at ca5.uscourts.gov

 

United States v. Wallstrum et al., United States Court of Appeals, Fifth Circuit, Docket No. 11-11228

After the denial of motions to suppress evidence, defendants Wallstrum, Clark, and Bryant pleaded guilty to conspiracy to possess cocaine with intent to distribute but appealled the denial of their respective motions to suppress. Despite expert testimony and other evidence offered by the defendants that the initial stop and subsequent detention was not valid, the appeallate court affirmed the district court's determination that the initial stop was lawful; reasonable suspicion justified the prolonged detention; and the district court did not clearly err in finding that Bryant's consent to search the car was voluntary.

 

Read Opinion here at ca5.uscourts.gov

 

United States v. Duque-Hernandez, United States Court of Appeals, 5th Circuit, Docket No. 11-40642

Defendant pleaded guilty to illegal reentry after deportation and was sentenced to 51 months of imprisonment. On appeal, defendant challenged the district court's application of a twelve-level adjustment to his base offense level for his previous commission of a drug trafficking offense. Because defendant did not object to the application of the adjustment, the court reviewed for plain error. Concluding that the sentencing error, if any, did not seriously affect the fairness, integrity, or public reputation of judicial proceedings, the court declined to exercise its discretion to correct it. Accordingly, the court affirmed the judgment.

 

Read Opinion here at ca5.uscourts.gov

 

Both the New Orleans Police Department and the Jefferson Parish Sheriff's Office will conduct sobriety checkpoints on Thursday night, according to separate news releases from the two agencies. While NOPD did not specify in which part of Orleans Parish the checkpoint would be located, JPSO said its checkpoint will be somewhere on the West Bank.

 

The Jefferson Parish checkpoint will be from 8 p.m. to 2 a.m. The Orleans Parish one will be conducted from 9 p.m. to 5 a.m., police said.

 

Authorities said motorists would experience minimal delays and be prepared with proof of insurance, driver's license and registration.

 

Johnson v. Williams, 568 U.S. _____ (2013)

A California jury convicted Williams of murder. On direct appeal she claimed that questioning and dismissal of a juror during deliberations violated the Sixth Amendment and California law. Holding that the juror had been properly dismissed for bias, the California Court of Appeal quoted a Supreme Court definition of "impartiality," but did not expressly acknowledge that it was deciding a Sixth Amendment issue. The state's highest court remanded in light of its intervening decision that a trial court abused its discretion by dismissing, for failure to deliberate, a juror who appeared to disagree with the rest of the jury. Reaffirming its prior decision, the court of appeal discussed that decision and again failed to expressly acknowledge the federal claim. Williams sought federal habeas relief. The district court applied the deferential standard of review under the Antiterrorism and Effective Death Penalty Act for claims already "adjudicated on the merits in State court," 28 U. S. C. 2254(d). The Ninth Circuit concluded that the state court had not considered Williams' Sixth Amendment claim, reviewed that claim de novo, and found violation of the Sixth Amendment. The Supreme Court reversed. When a state court rules against a defendant in an opinion that rejects some of the defendant's claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits for purposes of AEDPA. Applying that rebuttable presumption, the Ninth Circuit erred. Several facts indicate that the state court did consider the Sixth Amendment claim.

 

Read Opinion here at supremecourt.gov

 

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