Justia Criminal Law Opinion Summaries

Defendants were indicted, inter alia, for an eight-year conspiracy to violate the Contraband Cigarette Trafficking Act (CCTA), 18 U.S.C. 2341, by trafficking in "contraband cigarettes." Defendants moved to dismiss the indictment, arguing that the state of Washington retroceded its cigarette taxation to the Swinomish Tribe during the period of a cigarette tax contract it entered into with the Swinomish Tribe. The court agreed with defendants that during the period from 2003 to 2005, when they were licensed to sell tobacco by the Swinomish Tribe, there were no "applicable State or local cigarette taxes" under the CCTA. The court also agreed with defendants that the five-year statute of limitations for CCTA violations barred any charges based on activity from 1999-2003. The court concluded, however, that after their tribal tobacco license expired in 2005, defendants' activities ceased to be covered by the Swinomish cigarette tax contract (CTC) and that the state's retrocession therefore ceased to apply. The unstamped cigarettes that defendants transported and sold during this period were thus "contraband" under the CCTA. The court rejected defendants' due process and treaty arguments.

Defendant appealed the district court's denial of his 28 U.S.C. 2255 motion to vacate the sentences he received after his jury conviction of conspiracy to possess with intent to manufacture a controlled substance; his guilty plea to distribution of a controlled substance; and his guilty plea to a supervised release violation. The court reversed the district court's denial of defendant's section 2255 motion and remanded the matter to the district court with instructions to consider, for the purposes of the ineffective assistance of counsel claim, whether defendant was prejudiced by his counsel's performance. If so, defendant's distribution conviction and sentence should be vacated, and if he wanted to take the attendant risks, he could go to trial on the distribution offense, and could appeal the manufacturing offense trial conviction, an appeal that was foreclosed by the plea agreement. If not, the court remanded for resentencing before a different district judge and ordered the government's specific performance of the terms of the plea agreement.

Petitioner sought review pursuant to a certificate of appealability of the denial of his petition for habeas corpus. Petitioner was found guilty of robbery with a deadly weapon, false imprisonment, battery with a deadly weapon, and battery causing substantial bodily harm. The court held that the Nevada Supreme Court's determination that the trial court did not abuse its discretion in refusing to declare a mistrial was not inconsistent with Dawson v. Delaware. Even if there was an error, that error would be harmless. Therefore, the court affirmed the district court's denial of the petition on Ground 1. The court also affirmed the district court's holding that Grounds 3, 4, 5, and 6 of the amended petition did not relate back to the original petition and that petitioner's mental condition did not excuse his procedural default on Grounds 2 and 7. The court further held that petitioner had not made a substantial showing that he was entitled to an evidentiary hearing on Ground 1.

Defendant pled guilty to possession of stolen mail and access device fraud. This appeal addressed access device fraud under 18 U.S.C. 1029 and, specifically, whether the Government must prove the usability of an expired credit card number in order for a district court to enhance a sentence. The court held that, for an unauthorized access device whose usability was not readily apparent, such as an expired credit card number, some proof of usability was required when the defendant did not concede the fact or when the defendant challenged the enhancement. Therefore, the sentence was vacated and the case remanded for further proceedings.

Petitioner, a native and citizen of Lebanon, petitioned for review of a decision from the BIA which upheld the IJ's determination that petitioner had committed a particularly serious crime, rendering him ineligible for asylum or withholding of removal. The BIA also affirmed the IJ's finding that conditions had changed in Lebanon such that it was no longer more likely than not that petitioner would be tortured upon his return. The court affirmed the IJ and BIA's determination that petitioner had committed a particularly serious crime by committing a complex mail fraud scheme to defraud victims of nearly $2 million and was therefore, not eligible for asylum or withholding removal. The court also held that substantial evidence supported the conclusion that conditions in Lebanon had changed such that it was no longer more likely than not that petitioner would be tortured upon his return there. Accordingly, the court denied the petition.

Petitioner appealed the district court's dismissal of his 28 U.S.C. 2254 habeas corpus petition. The district court dismissed petitioner's pro se petition as untimely under the one-year statue of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. 2244(d)(1), and alternatively, as a "second or successive" petition under section 2244(b). The court concluded that the district court erred in sua sponte dismissing the petition as untimely without providing petitioner with prior notice and an opportunity to respond. The court also held that the petition was not "second or successive" under AEDPA because it was the first petition to challenge the amended judgment of conviction, which was entered after his initial petition.

Defendant was convicted of murder and subsequently appealed the denial of his request for an evidentiary hearing on his claim of ineffective assistance of counsel during the guilt phase of his bifurcated trial. Because the government did not argue that defendant's trial counsel was effective, the question shifted to prejudice. The court concluded that the district court did not err in declining to order an evidentiary hearing because defendant could not establish prejudice from counsel's failure to present a mental state defense during the guilt phase.

Petitioner, in his capacity as the State Director of the United Public Workers, AFSCME, Local 646, AFL-CIO (UPW), negotiated contracts with dental and health insurance providers, HDS and PGMA, on behalf of UPW members and their families. A jury subsequently convicted petitioner of fifty counts of "theft of honest services" from the UPW and its members, as well as conspiracy, embezzlement, money laundering, and health care fraud. At issue was the instructional omission to the jury regarding honest services fraud in light of the Supreme Court's holding in Skilling v. United States. The court held that the error had no "substantial and injurious effect or influence in determining the jury's verdict." Accordingly, the court affirmed the theft of honest services, money laundering, and health care fraud judgments of conviction against petitioner and affirmed the judgment of the district court.

In consolidated appeals, Marcus Major and Jordan Huff appealed from their convictions under Title 18 U.S.C. 1951 and 924. They also appealed from their sentence pursuant to section 924(c). The court held that the district court did not abuse its discretion in admitting evidence of other crimes and in admitting evidence of defendants' affiliation with the High Roller Boyz. The court also held that there was no constitutional error in the district court's effort to restrict defendants' contact with anyone other than their attorneys; section 924(c) did not violate the doctrine of separation of powers or violate the Eighth Amendment; and the district court was correct in concluding that section 924(c) required the court to determine the order in which a defendant received convictions, rather than the order in which offenses were committed. Applying the rule of lenity, when the district court did not have sufficient information to determine the order in which the jury made determinations of guilt during jury deliberations on multiple counts under section 924(c), it must order the convictions so that the mandatory minimum sentenced was minimized. In this case, application of the rule required the district court to deem one of the brandishing counts, rather than a discharging count, to be the first conviction.

Defendant was convicted of one count of obstruction of justice for failing to disclose the full extent of his knowledge regarding the mailing of a letter that could reasonably be believed to constitute an attempt at voter intimidation. Defendant, a Republican candidate for a seat in the U.S. House of Representatives at the time, contended that there was insufficient probable cause to support the issuance of the warrant and that, therefore, the evidence obtained pursuant to it should have been suppressed at his trial. The court held that there was sufficient probable cause to support the issuance of the warrant to search defendant's home and campaign headquarters. The court rejected defendant's First Amendment claim. Although defendant was never prosecuted for a violation of the election laws, in light of the contents of the letter and the facts surrounding its distribution, there was a fair probability that the campaign mailing constituted a tactic of intimidation intended to induce its recipients to refrain from voting. Accordingly, the order of the district court denying the motion to suppress was affirmed.