FAVORABLE AUGUST CASES
Rivera v. Cuomo, (No. 10-224)(2nd Cir. August 9, 2011)–In a petition for habeas relief from the conviction of petitioner for depraved indifference murder, New York Penal Law section 125.25(2), petition is granted where district court erred in holding that the applicable law of depraved indifference murder was the law in effect when petitioner was convicted, instead of the law as it existed when petitioner’s conviction became final, and because the trial evidence was legally insufficient to support a conviction.
United States v. Ferguson, (No. 08-6211)(2d Cir. Aug 1, 2011)–The defendants, four executives of General Reinsurance Corporation (“Gen Re”) and one of American International Group, Inc. (“AIG”), appeal from judgments of the United States District Court for the District of Connecticut (Droney, J.), convicting them of conspiracy, mail fraud, securities fraud, and making false statements to the Securities and Exchange Commission. The charges arose from an allegedly fraudulent reinsurance transaction between AIG and Gen Re that was intended to cure AIG’s ailing stock price. the defendants’ convictions were vacated because the district court (1) abused its discretion by admitting the stock-price data, and (2) issued a jury instruction that directed the verdict on causation. Accordingly, the Court vacated the defendants’ convictions and remanded for a new trial.
Espinal v. Attorney Gen. of the US, (No. 10-1473)(3rd Cir. August 3, 2011)– In a petition for review of a decision of the BIA denying petitioner, a native and citizen of the Dominican Republic, relief from an order of removal on the ground that it lacked jurisdiction because petitioner had been removed from the United States, 8 C.F.R. section 1003.2(d), judgment of the BIA is reversed where section 1003.2(d) conflicts with the IIRIRA, 8 U.S.C. section 1229a(c)(6)(A), (7)(A).
United States v. Bonner, (No. 10-4768)(4th Cir. August 5, 2011)–In an appeal of a district court’s order overturning the conviction of defendant for armed robbery, judgment of the court is affirmed where the government failed to produce sufficient identity evidence placing defendant at the robbery and relied on unsubstantiated, unscientific inferences to bolster its minimal evidence.
United States v. Walker, (No. 09-6498)(6th Cir. August 11, 2011)– Federal prisoner Darrell Walker challenges the substantive reasonableness of his thirty-six-month sentence for escape. Finding that the district court impermissibly lengthened Walker’s sentence to promote his rehabilitation, we vacate his sentence and remand for resentencing.
Stumpf v. Houk, No. 01-3613 (6th Cir. Aug. 11, 2011)– Recent polling results and statistical compilations support many of the economic and penological arguments that have long been raised in opposition to the imposition of the death penalty in the United States. Other statistics bolster objections to a form of punishment that, possibly because of its finality, has been shown to have been misdirected. Such polemical discussions, while interesting, are, however, better suited for the deliberations in the chambers of our state and national legislatures. In this appeal, we are not asked to involve ourselves in those debates, or even in a discussion of the constitutionality of the death penalty. Instead, we are required to examine only the constitutional ramifications of court proceedings that are alleged to have infringed John David Stumpf’s right to be sentenced in accordance with longstanding principles of due process and fundamental fairness. We conclude that those principles were violated by the state in seeking to execute Stumpf even after it became clear that the basis for the imposition of the death penalty had been seriously compromised in the subsequent prosecution of Stumpf’s accomplice, as further explained below. Indeed, the facts of this case exemplify the arbitrariness that prior decisions of the United States Supreme Court and of this court have decried as violative of fundamental constitutional safeguards. As a result, we once again reverse the judgment of the district court and remand this matter for issuance of a writ of habeas corpus, unless the State of Ohio conducts a new sentencing hearing for Stumpf within 90 days of the issuance of this opinion.
United States v. Rutledge, (No. 10-2734)(7th Cir. August 8, 2011)– At the jury selection preceding Anthony Rutledge’s criminal trial, the prosecutor used peremptory challenges to strike the only two African-American members in the venire. Suspecting that these actions violated the Equal Protection Clause, Rutledge’sattorney objected to the strikes using the three-step procedure established in Batson v. Kentucky, 476 U.S. 79 (1986). This appeal focuses solely on Batson’s third step, which requires the district court to make a finding of fact regarding the prosecutor’s credibility after the prosecutor has offered a race-neutral reason for the strike (step two). Here, the district court denied Rutledge’s Batson challenge after saying that the government’s reasons were “nonracial,” but without making any finding on the prosecutor’s credibility. As we have recently emphasized, “we cannot presume that the prosecutor’s race-neutral justification was credible simply because the district judge ultimately denied the challenge.” United States v. McMath, 559 F.3d 657, 666 (7th Cir. 2009). The district court must make an independent credibility determination at step three. Because we cannot find the necessary credibility finding in this record, we are unable at this stage to make an informed decision about the court’s decision to deny the Batson challenge. We therefore remand the case to the district court so that it can fill this void.
United States v. Tamara Lynn Heid, (No. 10-3230)(8th Cir. August 11, 2011)– A factual basis did not exist for defendant’s plea of guilty to a charge of conspiring to launder money, and the district court erred in denying her motion to withdraw the plea; guilty plea vacated, and the case remanded for further proceedings.
United States v. Jimmie Coutentos,(No. 10-2625)(8th Cir. August 10, 2011)–Claim that trial counsel rendered ineffective assistance of counsel by failing to timely raise a statute-of- limitations defense to possession of child pornography was fully developed for purposes of review and would be considered on direct appeal; counsel’s failure to raise the defense on the possession count fell below an objective standard of reasonableness; the failure affected the outcome of the case since there was a reasonable likelihood that assertion of the defense would have led to dismissal of the charge; as a result, the conviction and sentence for possession of child pornography must be vacated.
United States v. Manuel Quintero, (No. 10-3280)(8th Cir. August 8, 2011)–The district court’s finding with respect to the voluntariness of a consent to a search is reviewed for clear error; rousting defendant from bed at night helped create a more coercive atmosphere, and the district court did not err in considering this fact in its “voluntariness” analysis; the court considered the factors the government argued supported its claim that the consent was voluntary and did not err in finding coercive factors outweighed the factors supporting voluntariness.
United States v. Renner, No. 10-2502 (8th Cir. Aug. 8, 2011), an Eighth Circuit panel rejects a government appeal when the sentencing shoe ended up on the other foot because the sentencing judge in a sense reduced a sentence based on “convicted conduct.” Here are the details from the start and end of the Renneropinion: A jury found Steven Mark Renner guilty of four counts of tax evasion, in violation of 18 U.S.C. §7201, and the district cour2 sentenced him to 18 months’ imprisonment. Renner appeals his convictions, arguing that the government constructively amended the indictment through the evidence presented at trial; the instructions erroneously defined “taxable income” and “good faith”; and the evidence was insufficient to support his convictions. The United States appeals Renner’s sentence, contending that the district court erroneously relied on a fact rejected by the jury in imposing a sentence below the applicable Sentencing Guidelines range. We affirm….
The government argues that the case must be remanded for resentencing because the district court abused its discretion as a matter of law, and thereby imposed an unreasonably lenient sentence, by granting a downwards variance from the Advisory Guidelines range of 41 to 51 months based on a fact — good-faith reliance upon expert advice — considered and rejected by the jury….It is …”improper for the judge in sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable doubt.” United States v. Bertling, 611 F.3d 477, 481 (8th Cir. 2010) (holding that the non-contradiction principle survived United States v. Booker, 543 U.S. 220 (2005)). Although a close question is presented, we believe the district court’s sentence was not based on facts that contravened the jury’s verdict. From the sentencing transcript it is clear that the district court fully accepted the jury’s rejection of the good-faith defense, and the district court did not find otherwise. Rather, among the factors considered, the district court relied on the fact that Renner did consult with professionals, a fact the court believed distinguished Renner from other tax evaders who made no effort whatsoever to seek professional advice. The district court was entitled to consider that Renner at least consulted tax professionals, even if the jury did not believe that Renner met all of the requirements for a good-faith defense. Our review of the sentencing transcript convinces us that the district court did not commit a procedural error, and that the sentence was substantively reasonable.
United States v. Weeks, (Nos. 09-4171, 09-4183)(10th Cir. August 9, 2011)– Robert G. Weeks pled guilty to conspiracy to commit securities fraud. He now argues his guilty plea was not knowing and voluntary and was the result of ineffective assistance of counsel. Weeks filed a timely pro se motion under 28 U.S.C. § 2255 to vacate his conviction, raising a claim of ineffective assistance of counsel on six grounds. The district court denied relief on five of the grounds, but granted an evidentiary hearing on Mr. Weeks’ claim that his counsel was ineffective for refusing his request to file a direct appeal from his conviction. Weeks filed a direct appeal. He also appealed the district court’s denial of the remainder of his § 2255 ineffective assistance claims without an evidentiary hearing, as well as the denial of his motion to amend the petition. We consolidated the appeals, and we granted a certificate of appealabilty to Weeks on the denial of his § 2255 petition. Reviewing Mr. Weeks’ pro se petition liberally, as we must, we conclude the district court abused its discretion when it denied Mr. Weeks’ claim that Mr. Barber had provided ineffective assistance of counsel in relation to the plea agreement without permitting further development of the record. We therefore vacate the district court’s order denying in part Weeks’ § 2255 motion. The matter is remanded for an evidentiary hearing and a new determination based thereon