I strongly suspect that many of our nation's circuit court judges worked over the Thanksgiving break, because they're back with nine wins for folks accused of crimes in our nation's federal appellate courts.
It's a potpourri of cases - multiplicity in the sale of Bald Eagle Parts, an innocent spouse issue in a restitution award, the reduction of a fine in an Ernst & Young tax shelter fraud case, and a few Fourth Amendment cases.
Heck, there's even a case on a Rule 41 motion. When's the last time you saw a federal appeals court issue a published opinion on a motion for the return of property?
My great hope for this section of the blog is that it will increase the ease with which folks can monitor cases to send 28(j) letters in federal criminal appeals. This week's list of cases has a lot to offer the criminal appellate advocate. Let's get those 28(j) letters rolling!
To the victories:
1. United States v. Munguia, Ninth Circuit: Appellant was convicted of drug conspiracy and possession. The key issue at trial was whether she knew or had reason to know that the drugs she purchased were being used to manufacture methamphetamine. Given this focus, she requested a jury instruction explaining that "reasonable cause to believe" must be evaluated from her perspective, based on her knowledge and sophistication. Because the district court erred in refusing her request and because the error was not harmless, appellant's conviction was reversed.
2. United States v. Berry, Fifth Circuit: Appellant pled guilty to possessing more than five grams of crack and was sentenced to five years in prison followed by three years of supervised release. Although the acts giving rise to this conviction occurred before the effective date of the Fair Sentencing Act, his sentencing occurred after. For the purposes of appellant's case, the Act was significant because it modified the terms of imprisonment and supervised release applicable to simple crack possession. Because appellant's prison and supervised release terms exceeded the maximum terms under the Act, his sentence was vacated and the case remanded for resentencing.
3. United States v. Wahchumwah, Ninth Circuit: Appellant was convicted of offenses relating to the sale of Golden Eagle parts. Counts 2 and 3 were related to the sale of eagle tails and counts 4 and 5 were related to the sale of eagle plumes. Because counts 2 and 3 and 4 and 5, respectively, prohibited the same offenses, and because Congress did not intend to allow multiple punishments for a single tail or plume sale, the case was remanded for the district court to vacate count 2 or 3 and 4 or 5.
4. United States v. Cervantes, Ninth Circuit: Police officers performed a warrantless search of appellant's car that led to the discovery of cocaine. The search was not justified under (1) the automobile exception, which allows officers to search a car and the containers within it where they have probable cause to believe contraband or evidence is contained, or (2) the community caretaking exception, which permits officers to impound cars that jeopardize public safety and the efficient movement of traffic. Because the warrantless search was not justified by an exception to the warrant requirement, the district court erred in denying appellant's motion to suppress the cocaine. Accordingly, the Ninth Circuit reversed the lower court's denial of the motion and remanded the case.
5. United States v. I.E.V., Ninth Circuit: Appellant was a passenger in his brother's car when they entered a United States Border Patrol checkpoint. At the checkpoint, a police dog alerted that the car contained drugs or concealed people. After a search of the car revealed no contraband, an officer frisked appellant and, without his permission, lifted appellant's shirt and found a brick of marijuana. Because the officer was not justified in frisking appellant, and because the frisk exceeded its constitutional scope, the district court erred in denying appellant's motion to suppress the marijuana. Consequently, the court's decision was reversed and the case remanded with instructions to grant the motion to suppress.
6. United States v. Coplan, et. al, Second Circuit: Five appellants were convicted of fraud-related crimes arising out of their development and defense of tax shelters that were sold or implemented by Ernst & Young. The convictions of appellants Shapiro and Nissenbaum were reversed on counts 1-3 because of the insufficiency of the evidence of appellants' intent. Nissenbaum's conviction on count 4 - obstruction of the IRS - was also reversed because the record reflected that a reasonable jury would have had a reasonable doubt as to whether he corruptly obstructed or impeded the IRS. Finally, the portion of appellant Bolton's sentence imposing a $3 million fine was vacated because it exceeded the statutory maximum. On remand, the fine was to be reduced to the $250,000 statutory maximum.
7. United States v. Duran, Eleventh Circuit: After appellant was convicted of conspiring to defraud Medicare, the government secured a substantial restitution judgment. The government obtained a writ of execution against an apartment that, according to property records, was owned jointly by appellant and his former wife. The former wife argued that because she was the sole owner of the apartment before her former husband's prosecution, the government could not look to the apartment for restitution. The district court refused to adjudicate the wife's motion. This was error. Consequently, the order denying the former wife's motion was vacated and the case remanded.
8. United States v. Delgado, Seventh Circuit: Appellant's convictions for being a felon in possession of a firearm and possession of an unregistered firearm were the result of police officers' warrantless search of his apartment. Because the search was not a valid protective sweep and was not justified by the exigent circumstances exception to the warrant requirement, the district court erred in denying appellant's motion to suppress the firearms. For these reasons, appellant's convictions were vacated and the case remanded to the district court with instructions to grant the suppression motion.
9. United States v. Bailey, Eighth Circuit: As a result of appellant's arrest on prostitution-related charges, his property was seized and eventually transferred to a U.S. Attorney's Office. After his conviction was upheld on appeal, he filed a motion for the return of his property under Federal Rule of Criminal Procedure 41. At a hearing, the district court determined that the government no longer possessed the property and denied appellant's motion to convert the action into a civil claim for damages. Under these circumstances, the court was required to give appellant an opportunity to assert such a civil claim. Accordingly, the court's ruling was reversed and the case remanded.