Appellate Law & Practice

CA 5

Pippin v. Dretke (King, C.J.)

Pippin was sentenced to death after he killed a couple of his associates in a drug smuggling enterprise. This opinion concerns his application for a certificate of appealability.

First, the prosecution did not disclose ballistics evidence that two guns were involved in the shooting. The court rejects this claim because Pippin had access to the same ballistics evidence and his expert had the chance to conduct his own tests. Therefore the evidence was not suppressed.

Second, Pippin argues that the trial court should have instructed the jury on the lesser-included offense of felony murder. Pippin had testified that he was involved in only the kidnaping of the victim, not the shooting. The trial court gave an instruction on the lesser-included offense of kidnapping, but not felony murder. Pippin's testimony, the state court held, would not support a conviction of felony murder because kidnaping is not "clearly dangerous to human life that caused the death of . . . the victim." The court holds that clearly established federal law does not require that a jury be instructed on all conceivable lesser-included offenses. Here, kidnaping was enough.

Third, Pippin argues that a juror was reading a book during the trial. There was, however, conflicting evidence concerning whether this actually happened. The court defers to the state court's finding that the event did not happen. (One wonders what book the juror was alleged to have been reading?)

Fourth, Pippin raises a claim of ineffective assistance of counsel, which the court deems procedurally defaulted. I confess some confusion about this ruling. The state court held that these "claims were not properly before the court because they were first presented in his pro se state habeas application, even though his counsel subsequently incorporated them into a supplemental application. Under Texas law, state habeas petitioners are not entitled to hybrid representation." Was Pippin receiving hybrid representation? His lawyer raised this argument in the state habeas proceeding, precisely the appropriate time to raise an ineffective assistance claim.

Finally, the court dodges ruling on whether the admission of the "excited utterance" of one of Pippin’s victims violated Crawford by holding that the issue was not adequately briefed.

United States v. Pompa (Garza, J.)

This case has the first ever reported use of the term "broccoli beads" in an American judicial opinion. Even better yet, it involves a "motion to suppress the broccoli beads" as the fruit of an illegal traffic stop. Congratulations on this milestone, Judge Garza!

There was probable cause to believe the defendants in this case, who were driving a tractor-trailer containing broccoli and hidden marijuana, were smuggling drugs because: 1) the truck had an unusually length stay at a truck stop; 2) the truck was driving South East even though its ostensible destination was to the North East; 3) the driver had previously been seen entering the truck using a flashlight; 4) the seal of the truck had been broken; and 5) the occupants were observed "walking on to of the load" which presumably you can’t do if the truck contains crates of broccoli? I don’t know, it sounds pretty flimsy to me, but the court upholds the search.

Molina v. Ziglar (Smith, J.)

Molina was previously deported after being convicted of a DWI, which under the law at the time rendered him removable. Following removal, the Fifth Circuit ruled in another case that a DWI is not a crime of violence that renders an alien removable. Molina illegally re-entered the country and was caught. He argued that the Fifth Circuit’s new rule should apply retroactively to his case.

The court holds that it lacks jurisdiction. Apparently, to collaterally attack a prior removal order, the Fifth Circuit requires an alien to establish that it constituted a "gross miscarriage of justice." The court holds that because Molina failed to actually challenge his removability in that prior proceeding, there was no miscarriage of justice.

Williams-Igwonobe v. Gonzales (Benavides, J.)

After marrying a U.S. citizen, Williams moved to adjust his status. For unknown reasons, this motion languished in the BIA for seven years. Eventually the BIA ruled in favor of him, but by that time Williams had moved and lost touch with his lawyer. His attorney withdrew, and the BIA sent notice to Williams’s old address. Williams never got the notice, never adjusted his status, and was ordered removed based on a prior mail fraud conviction. Williams later discovered what happened and moved to reopen, claiming that he had told his lawyer his new address. The IJ denied the motion because Williams had not demonstrated "reasonable cause." The Fifth Circuit holds that applying the "reasonable cause" standard was an abuse of discretion.

Warfield v. Byron (Jones, C.J.)

This case concerns investors’ efforts to recover payments made through a Ponzi scheme as fraudulent transfers under Washington state law.

United States v. Woods (Davis, J.)

Woods pled guilty to bank fraud. He objected to the PSR based on Blakely. The court declined to upwardly depart, but gave a sentence at the top of the Guidelines range and ordered that this sentence run consecutive to any state sentence in an unrelated criminal proceeding.

The Government argues the Sixth Amendment violation was harmless because the district court sentenced Woods at the top of the Guidelines. Under 5th Circuit law, this is not enough to establish that a Booker error was harmless. This creates a split with the Tenth Circuit. See United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005).

That the sentence runs consecutive with a state sentence in another pending proceeding doesn’t help either. That state proceeding was for an unrelated offense. The district court was just following the general rule that sentences for unrelated criminal conduct run consecutively, not expressing an opinion about the appropriate sentence for this offense.

CA1: destroyed drugs, non-authenticated tapes, and waived SOLs

US v. Garza, No. 04-2400 affirms the conviction of a crack distributor. He was caught in a "controlled buy." The drugs were destroyed. He claimed that the destruction was a denial of due process under California v. Trombetta, 467 U.S. 479 (1984). The court holds that although the drugs were destroyed intentionally, they were not destroyed in bad faith, nor were they Brady material. Since the evidence was no longer in the government's possession, Brady does not apply, but Arizonav. Youngblood, 488 U.S. 51 (1988) does, and the "…the defendant must show that the evidence was destroyed in bad faith."

The court holds that it was not error for the government to read non-authenticated transcripts to the jury, as they were "past recollection recorded" admissible under FRE 803(5). From what I can see, the government changes its tune on appeal, and argues that they were party admissions under FRE 801(d)(2)(A). The court concludes that the tapes themselves contained enough identifying information. Oh, and the court says the error was harmless.

Finally, in response to a pro se supplemental brief, "Garza contends that because the drug sales occurred in 1996, more than five years before his trial, the prosecution was barred by the statute of limitations." He seems to be contending that even though he was indicted shortly after, there were defects in the indictment, but those defects were not raised below.

CA1: Dumping stuff in the ocean

Montijo-Reyes v. US, No. 05-1353, finds that there is no jurisdiction under the Federal Tort Claims Act because the decision by the Army Corps of Engineers to dump some silt was a discretionary function.  But, the court notes that the situation might be different if Plaintiffs had alleged a causal connection between the Corps' failure to comply with the Clean Water Act 33 U.S.C. § 1311(a) (2000) and the terms of waiver of water quality certificate from the Puerto Rico Environmental Quality Board and the purported damages for which they seek recovery under the FTCA.  In this case, however, the plaintiffs only alleged damages resulting from sand and dust carried from the Corps' disposal site.

CA9: California Appellate Report trashes Kozinski on mandamus

If you go to this post, you will learn that Shaun Martin thinks that Kozinski erred in Kenna v. USDC (9th Cir. - Jan. 20, 2006) (whether victims get to whine a second time at sentencing when a codefendant is sentenced on the same fact.)

The post is incredibly entertaining, and just like victims rights statutes don’t do justice, blockquoting it wouldn’t do justice to the post.  (Blockquoting wouldn't be a cheap political trick, however.)  Therefore, for the good of the country, and to win the war on terror, you must rest the post.  And we are all for justice; the war on terror; and the US.  Right?   

CA6: COLIs-Not the Real Thing

The Sixth Circuit has weighed in on the deductability for tax purposes of interest incurred on loans used to pay premiums and fees related to the administration of corporate-owned life insurance (“COLI”) policies on the lives of employees. Dow Chemical Co. v. United States, No. 03-2360.  Contrary to the decision of the district court, and a dissenting opinion by Judge Ryan, the panel found them n0n-deductible. 

CA1: What happens after a merger to contacts

Unilever Home & Personal Care v. Puerto Rico Beauty Supply, No. 05-1075 (unpublished)  Plaintiff sought a declaratory judgment that 10 L.P.R.A. § 278. Law 75, enacted in 1965 (but lacks retroactive effect) which prohibits a principal from terminating a distribution contract with its dealer without just cause doesn’t apply to a contract.  The issues are complicated by a the buying and selling of various business entities.  As such, the granted summary judgment district court found that the contract dated from before 1965, and therefore was not covered by the law.  The court, applying Puerto Rico law, which magically appears in 1 W. Fletcher, Cyclopedia of the Law of Private Corporations § 31 (rev. ed. 1999), concludes that there are factual issues to be resolved because the first argument that the law didn’t apply failed since "The properties of two corporations are distinct though the same shareholders own or control both,” and therefore, the court couldn’t simply hold that the contract passed from a its pre-1965 signers to the present formulation of the company.

CA1: number of crimes for ACCA and CJA experts

US v. Mastera, No. 05-1249, the court finds that the defendant was covered under Armed Career Criminal Act (ACCA), and that the district court properly determined that the breaking and entering and stalking convictions was a conviction for a violent felony as defined in 18 U.S.C. § 924(e)(2)(B) for purposes of the ACCA.  He argued that they were not different crimes, but “ACCA "requires a case-by-case examination of the totality of the circumstances." United States v. Stearns, 387 F.3d 104, 108 (1st Cir. 2004).”  Since the defendant didn’t show that they took place on the same day, and none of the evidence “prevents a finding that the crimes occurred on separate occasions” the defendant loses.  Also, this burglary is a violent felony under ACCA, because he forfeited his objection to the use of material that might have been barred by Shepard v. United States, 125 S. Ct. 1254 (2005), in was an admission, but not one made during a plea colloquy. 

The court finds that the defendant was not entitled to funds for an expert to “determine whether he had a diminished capacity that would allow for a reduced sentence.”  He not only “...told the judge he was not on any medication... [but provided] no corroborating evidence of any kind that he had a history of treatment for mental illness”  See our coverage of the recent 5th circuit case on this here.

CA1: crooked doctors, searches, and the scienter requirement

US v. Gonsalves, No. 04-2316, involves a challenge to an administative search warrant issued for a doctor’s office under R.I. Gen. Laws § 21-31-21 (2004) by the Chief of the Board of Pharmacy of the Rhode Island Department of Health ("DOH").  The state seized various drugs as misbranded or adulterated.  The court holds that the medical profession is not really pervasively regulated.  But the court characterizes the issue as whether dispensers of drugs “not the practice of medicine in general.”  The court finds, under  New York v. Burger, 482 U.S. 691, 702-03 (1987), that it is.  Likewise, the issue serves a substantial government interest.  The court also finds that Rhode Island’s statute places adequate limits on the timing of the searches (requiring that they be “reasonable.”).  The court distinguishes United States v. One Device Labeled Theramatic, 641 F.2d 1289, 1294 (9th Cir. 1981).  The court rejects an argument that the “recklessness” requirement in 18 U.S.C. § 1365(a) was properly discussed in his discussion with the jury.  Commerce clause challenges fail.

Also, the court discusses the scienter requirement under [1]8 U.S.C. § 1001 (false statements) doesn’t require that a good faith instruction be given to the jury.  A Booker remand is denied.

Federal Defender Blogs

You can read them all here.  They summarize criminal opinions from a bunch of circuits.  If you want to be hip and cool you should read them.

CA6 on Ineffective Assistance of Immigration Lawyers

The Sixth Circuit has reaffirmed its standard for ineffective assistance of counsel in the immigration context, holding that a petitioner's counsels' failures to let the INS inform him of their decision on his petition is not a sufficient basis for an ineffective assistance of counsel claim: "the fact that counsel failed to petition for judicial review of the findings of the BIA does not automatically result in a denial of due process. Sako must show more. Sako must establish that, but for the ineffective assistance of counsel, he would have been entitled to continue residing in the United States." Sako v. Gonzales, No. 04-3426 (citations omitted). This is different from ineffective assistance if you are a human being fortuitously born in this country: "prejudice is presumed where a case involves the “[a]ctual or constructive denial of the assistance of counsel altogether.” Id. at 692. Thus, it has been widely held that counsel's failure to file a timely notice of appeal from a criminal conviction, when requested to do so by the defendant, constitutes ineffective assistance of counsel per se; the petitioner need not show additional prejudice by specifying meritorious issues he would raise were his right to appeal reinstated." Tolbert v. United States, 1998 WL 381641, *2 (6th Cir. 1998).