October-November, 2020

Ninth Circuit: District Court Erred When It
Denied Motion to Suppress Applying the
Attenuation Doctrine

After entering defendant’s home without a warrant and detaining and handcuffing defendant outside the home, officers discovered a suspicionless search condition and went back in and searched the home finding drugs. The Ninth Circuit reversed the district court’s denial of defendant’s motion to suppress, finding that the evidence found during the investigatory search of defendant’s residence was not sufficiently attenuated from the initial unlawful entry where only a few minutes passed between the initial entry and reentry to conduct the investigatory search, there was an absence of evidence showing that the officers’ decision to conduct the second search was untainted by what they saw during the initial unlawful entry, and the officers’ good faith alone was not enough to justify admission of the evidence. United States v. Garcia, ___ F.3d ___ (CA 9, 09-10-2020, WL 5417153).

Eighth Circuit: District Court Erred When
It Suggested to Defendant That He Could
Do Better if He Went to Trial

After defendant was charged with being a felon in possession, the district court judge suggested to defendant, with a plea deal still on the table, that defendant could do better if he went to trial. The Eighth Circuit remanded for resentencing before a different judge holding that the district court plainly erred and that there was a reasonable probability that defendant would not have gone to trial had he known that taking the court’s advice exposed him to a higher sentencing range, which raised serious questions of fairness that the government did not dispute. United States v. Harrison, ___ F.3d ___ (CA 8, 09-10-2020, WL 5414858).

Fourth Circuit: Suspicionless Traffic Stop
to Check for Parkway Permit Violated the
Fourth Amendment

Defendant was driving his employer’s commercial truck on a parkway that required permits for commercial vehicles, and he was pulled over by an officer for the sole purpose of determining whether he had the proper permit. The Fourth Circuit reversed the district court’s denial of defendant’s motion to suppress, finding that the initial traffic stop violated the Fourth Amendment where the Government failed to show that the officer possessed reasonable suspicion of illegality when he stopped defendant’s truck or that he acted pursuant to an administrative inspection scheme in conducting the stop. United States v. Feliciana, ___ F.3d ___ (CA 4, 09-11-2020, WL 5490878).

First Circuit: Evidence Presented at Trial
Was Insufficient to Support Conviction for
Conspiracy to Distribute Heroin

The First Circuit granted defendant’s motion for judgment of acquittal holding that there was insufficient evidence to support a conviction for conspiracy to distribute heroin where defendant’s participation could not be inferred from his mere presence in a two-story apartment for at least four hours during which time one renter used a telephone to arrange for the sale of heroin and another renter left the apartment to deliver heroin, nor from the fact that defendant ran upstairs with one of the individuals when the drug task force members raided the apartment, nor from recovery of a brick of heroin partially hidden in an air duct alongside a small plastic bag of heroin in a guest bedroom in which defendant and a renter had been standing. The court noted that there was no evidence that drugs or distribution-related evidence was found on defendant’s person or in his phone or at his home, and there was no evidence of anyone involved identifying defendant as being part of the distribution scheme. United States v. Guzman-Ortiz, ___ F.3d ___ (CA 1, 09-16-2020 WL 5542135).

Third Circuit: Petitioner Was
Denied Effective Assistance Where
Jury Instruction Allowed First-Degree
Murder Conviction as an
Accomplice Without Specific Intent to Kill

The Third Circuit granted habeas where the trial court gave an instruction in petitioner’s trial for first-degree murder as an accomplice that advised the jury to find malice if the killer acted with intent to kill and mistakenly identified the co-defendant, rather than petitioner, as the accomplice, repeatedly referenced the requisite intent of the killer without mentioning the mens rea of the accomplice of specific intent to kill, and indicated that the jury could find petitioner guilty as an accomplice if it found beyond a reasonable doubt that the crime was committed and petitioner was an accomplice of the person who actually committed the crime. Defense counsel’s deficient performance in failing to object prejudiced petitioner where there was a substantial likelihood that the jury would have found defendant not guilty in light of the lack of any concrete evidence of defendant’s intention to commit murder as an accomplice. Tyson v. Superintendent Houtzdale, SCI, ___ F.3d ___ (CA 3, 09-24-2020, WL 5650813).

North Carolina: Defendant Was Entitled to
a New Trial Where Trial Court Gave
Inadequate Transferred Intent Instructions
Regarding Self-Defense

Defendant was entitled to a new trial on all charges where the trial court’s general instruction on transferred intent did not adequately inform the jury that it could acquit defendant of assault with a deadly weapon with intent to kill inflicting serious injury if it determined that defendant unintentionally shot the surviving victim while aiming for the victim that he allegedly killed in self-defense. The transferred-intent instruction only informed the jury that defendant’s intent to harm would transfer and did not inform the jury that defendant’s lawful exercise of self-defense could also transfer. It was unlikely that the jury would have understood that defendant’s self-defense justification would have transferred to any bullet that unintentionally struck the surviving victim when the trial court gave no self-defense instruction at all for the assault charge based on the wounding of that victim. State v. Greenfield, ___ S.E.2d ___ (No. 11A19, 09-25-2020, WL 5742672).

Fifth Circuit: District Court Erred When It
Imposed Supervised Release Conditions
that Barred Defendant from Using the
Internet for 10 years

As part of defendant’s sentence for child pornography convictions, the district court imposed special conditions of supervised release prohibiting defendant from possessing and/or using computers or other electronic communications and prohibiting defendant from accessing the internet for 10 years following defendant’s initial sentence of 151 months. The Fifth Circuit vacated the conditions finding that, while the sentencing court committed no procedural error in imposing the special conditions, it committed plain error where the conditions were not narrowly tailored either by scope or by duration and the conditions failed to ensure no greater deprivation of liberty than was reasonably necessary. The court remanded for resentencing directing that the sentencing court’s special conditions should be narrowed in their scope by, for example, permitting access with prior approval of defendant’s probation officer or the sentencing court. United States v. Becerra, ___ F.3d ___ (CA 5, 10-06-2020, WL 5905059).