Fifth Circuit -- S. Washington v. Rick Thaler, Director

Habeas -- Jury Selection

No Supreme Court precedent requiring dismissal of juror absent objection by one of the parties.

S. Washington v. Rick Thaler, Director

Ninth Circuit -- KEITH JAMERSON V. GAIL LEWIS

Batson/Habeas Review

 Federal collateral review can look at drivers licence photos, as they were available to the state courts .

State court holding that challenges were not pretextual was reasonable.

KEITH JAMERSON V. GAIL LEWIS

Sixth Circuit -- Henry Hodges v. Roland Colson

Denial of Habeas upheld.

Trial court had discretion to bar voir dire question asking about defts with murder priors, as deft had murder priors.

Claim that juror voted because of arthritis pain procedurally defaulted, as no there was cause for omission of claim in state Habeas.

Plea-stage ineffective assistance (deft pled to qualifying offense) defaulted as to facial invalidity; as to Strickland, pleading could have been a strategic choice.  No prejudice.

No error in denial of hearing on competency and ineffective assistance.

Henry Hodges v. Roland Colson 

[Thou shalt not kill.  -MB]

Ninth Circuit -- LIBERTARIAN PARTY LOS ANGELES V. DEBRA BOWEN

Daubert, Batson, and the English Rule.

Company was a party to settlement agreement given timely joinder.

If denial of peremptory strike was error (given the lack of subjective bias), it was harmless.

Challenges to market definition go to merits, not decision to allow under Daubert.

Sufficient evidence for award of lost profits.

Attorney's fees are procedural (not substantive) under Alaska's choice of law scheme, and therefore apply over the foreign rule drawn from the law generally being applied in the case.

LIBERTARIAN PARTY LOS ANGELES V. DEBRA BOWEN

Fifth Circuit -- Bobby Smith v. Burl Cain, Warden

Common law limitation on new evidentiary hearings for Habeas challenges does not apply if the Federal court, looking at the state court record, determines that the state court unreasonably applied federal law -- here, in the context of a Batson challenge.

No purposeful discrimination here, mainly for lack of comparators.

Bobby Smith v. Burl Cain, Warden

Fifth Circuit -- USA v. Keith Kennedy, et al

No merger of wire fraud and money laundering charges, as the conduct was separated in time.

Willful ignorance jury instruction upheld.

No clear error in Batson proceeding.

No abuse of discretion in denying severance.

USA v. Keith Kennedy, et al

Fifth Circuit -- USA v. Cristobal Cervantes, et al

Crim -- jury selection, prior bad acts, trial conduct, sentencing.

USA v. Cristobal Cervantes, et al

Fifth Circuit -- USA v. Mark Snarr, et al

Direct appeal of capital sentence -- jury selection; lesser-included offense; aggravating factors; Death Penalty Act unconstitutional; improper exclusion of victim character evidence; funds for investigators.

[Don't kill.  MB]

USA v. Mark Snarr, et al

Second Circuit -- USA v. Gomez

No plain error in exclusion of deft's family from the courtroom during voir dire.

No error when defense counsel doesn't formally state that the defense is resting at the close of the case.

Admission of statements from pretrial discussions did not violate proffer agreement or Rule 410.

USA v. Gomez

Ninth Circuit -- USA V. SALVADOR HERNANDEZ-ESTRADA

Where several localities supplement their jury lists to ensure a fair cross-section, this does not per se require an adjacent locality to do so.

Disparity of 7.7% is allowable.

Those who declined to identify their race are not a significant enough number to reach the threshold, so they need not be considered.

Clerk's Office violation of statute in not sending in reporting forms and disqualifying venirepersons who expressed doubt about their ability to understand English, while errors, aren't significant enough to merit reversal.

Deft bears burden of proof of establishing that violations of JSSA are substantial enough to frustrate purposes of the Act.

Court's violation of the statute in not forcing jurors to identify ethnicity wasn't reversible error.

Chief K, Concurring -- 7.7% threshold is bad statistics, given the small percentages of certain ethnic groups.

USA V. SALVADOR HERNANDEZ-ESTRADA

Seventh Circuit -- USA v. Jwuan Moreland

Excusing jurors with business commitments doesn't offend 6A or statute.

No error in excusing jurors before deft entered proceedings.

Appropriate instruction cured potential confusion when witness was both lay and expert.

Selling drugs wholesale to a retailer is not per se evidence of conspiracy, as the transaction is arm's length.  But when the supplier extends credit to the retailer with the express understanding that they be sold, jury can properly find conspiracy.

Admission of cash found in patdown after auto stop in for inevitable discovery , as there were drug scales in the (stolen) car. 

Addiction doesn't justify downward reduction in sentence -- rather, court should lengthen post-conviction monitoring.  This applies to life sentences as well.

Harmless error in court's accidental announcement of deft's prior convictions.

Deft telling sister to hide gun in dropped ceiling = possession.

Court properly granted minor, not minimal participant sentencing adjustment.






USA v. Jwuan Moreland

Eighth Circuit -- Mark Broom v. Larry Denney

District court correctly denied Batson habeus, as there were sufficient distinguishing features in the comparator.

Mark Broom v. Larry Denney

First Circuit -- Bucci v. US

Habeus 6A claim resulting from the partial closure of the courtroom during jury selection (abundance of venirepersons) was procedurally defaulted given lack of objection at trial.

Ineffective assistance claim does not save, as counsel might have reasonably have decided not to object.

No error in conducting 2255 hearing without petitioner.

Remand for hearing as to whether codeft's counsel was in the room at the time.

No Article III violation in the room being closed by clerk.

No Brady violation - no prejudice.

No coercion of prosc. witness.

Bucci v. US 

Eleventh Circuit -- Frank A. Walls v. Edwin G. Buss

No ineffective assistance, as deft's counsel presumably made a strategic choice to be open with the jury about interrogation evidence relating to an uncharged sexual assault on the murder victim.

Finder of fact upheld on peremptory strike.

Frank A. Walls v. Edwin G. Buss 

 

[Thou shalt not kill.   - TMB]

Seventh Circuit -- M. C. Winston v. Ana Boatwright

M. C. Winston v. Ana Boatwright

When deft's lawyer deliberately uses all peremptory strikes to keep males off of sexual assault jury, it's ineffective assistance - but as no clear caselaw on how to assess prejudice from error, no error in state denial of habeus.

(While Batson would justify automatic reversal, and therefore the writ, the fact that deft's counsel made the choice triggers Strickland analysis, which requires a showing of prejudice.)

Seventh Circuit -- USA v. Bolivar Benabe

USA v. Bolivar Benabe

No error in empaneling anonymous jury.

No error in excluding defts who did not agree to be nondisruptive from courtroom .  No 6A error in issuing the order prior to the beginning of trial (basing it on pretrial conduct), FRCrimP error in same was harmless.

No error in admitting ID based on photo lineup followed by live lineup when there are six months in between.

No error in pattern aiding & abetting instruction instead of RICO-specific one.

No error in court adding a Pinkerton  instruction for penalty phase that was not contemplated at close of guilt phase.

No error in providing jury with partial transcripts.

No error in not holding hearing on potential intrinsic juror biases, where vooir dire responses were truthful.

Seventh Circuit -- USA v. Mariano Morales

USA v. Mariano Morales

[NB - another decision released today appears to indicate that this is a nonprecedential decision - please see the "precedential status" note on the top of the page.]

Quick read:


No presumption against empaneling an anonymous jury - insufficient explanation here held harmless, though.

Among other things, disparity-of-evidence (where proper limiting instructions were given), prima facie lengthening of trial, and possibility of a non-anonymous jury in putative second trial are insufficient grounds for finding improper joinder.

Where one deft is considerably more violent than his co-defts, no error in denying severance and thereby making him look bad by comparison.

No abuse of discretion in not investigating report of intra-jury chattering where the accusation arose after the verdict.

Where testimony establishes that deft engaged in illegal activity, no possible error in being told that he went to jail for it.

District court holding that deft's bad acts were coterminous with the conspiracy was error, as it was not included in PSR for deft to challenge.  Harmless, though.

Sufficient evidence.

Deference to District Court holding that some possibly random acts were connected to the gang scene & therefore conspiratorial.

Mere inactivity through "retirement" insufficient to effectuate withdrawal from conspiracy.

No disparity in special verdict findings on conspiracy and ultimate sentence.

No requirement on parties to "sterilize" testimony - inflammatory stuff was part & parcel.

Despite lack of district court findings on the hard edge of the conspiracy, finding that certain acts were within it was kosher.

Eighth Circuit -- United States v. David West Dixon

United States v. David West Dixon

Crim -

1. Sufficient Evidence
2. No error in court not dismissing sua sponte a venireman who indicated possible bias towards police.
3.  No procedural/substantive error in sentence.

Seventh Circuit -- USA v. Anthony Rutledge

USA v. Anthony Rutledge

Second and third steps of Batson cannot be conflated - the court must make an on-the-record assessment of the prosecutor's credibility.

(African-American prosecutor striking an African-American juror.)