Criminal Law Bulletin 2002: Vol 38 Index

13 Pages·2002·3.2 MB·English

2002 CASE DIGEST INDEX
VOLUME 38 -
Editor’s Note: The cases in the Index have been classified to conform to the Criminal Law
Digest (Third Edition).
CONTENTS
PART I—STATE CRIMES
3. NATURE AND ELEMENTS OF 4. CAPACITY
SPECIFIC CRIMES
§ 4.15 Competency to stand trial .. 801
Burglary
Child abuse
Dangerous and deadly § 6.15 Collateral estoppel ............... 801
weapons § 6.25 Immunity from prosecution
Obscenity
Racketeering § 6.100 Acting within scope of
employment
PART II—STATE CRIMINAL PROCEDURES, ANCILLARY
PROCEEDINGS
10. PRETRIAL MOTIONS 14. TRIAL
§ 10.35. Motion to dismiss for lack § 14.25 Disqualification of prosecu-
of speedy trial
12. GUILTY PLEAS 15. JURY
§ 12.70 Motion to withdraw guilty § 15.40 Prejudice on part of indi-
WIAD PROES: wcsscnscicdssaencesecccss 802
13. EVIDENCE } 15.236 Juror questioning of wit-
13.01 Accomplice liability Zz ; 15.280 Right to rehear testimony ... 802
13.50 Prooof ofthe r crimes 2 § 15.286 Excusal of deliberating
13.165 Coerced testimony juror
13.170 Privileged communications
CLLLPQIr???
17. SENTENCING AND PUNISHMENT
§ 13.17 Duty of court to advise wit- : m ae
nesses of right to counsel § 17.101 Imposition of restitution 802
and privileges against self-
18. APPEAL AND ERROR
incrimination
Requirement ofc orrobora- § 18.00 Right to appeal
tion—accomplice § 18.90 Scope of appellate review .. 803
testimony § 18.120 Harmless error test .............. 803
Impeachment by prior
CONVICTION ........... - 20. PRISONER PROCEEDINGS
Adoptive admissions
Emergent technologies ....... 802 § 20.00 In-prison proceedings ........ 803
797
CRIMINAL LAW BULLETIN
PART III—FEDERAL CRIMES
22. VALIDITY OF CRIMINAL department or agency .......... 803
STATUTES § 24.160 Interstate racketeering ......... 803
§ 22.00 Statute held not void for § 24.240 Securities regulations viola-
WAGUGHOSS! c.:ccsccsesciensssecossonanss 803 BLEWI S cre rrcs internat 803
23. CONSTRUCTION AND 27. DEFENSES
OPERATION OF CRIMINAL
STATUTES S279 ETIGERPMNIO 25055022 csceseevecs toca 803
§ 23.15 Statute broadly construed ... 803 8 eel Cetengnons oe
° : i MISCONGUCE dfc.x sccsccvessentesssacsien 803
24, NATURE AND ELEMENTS OF § 27.20 Immunity from prosecution
seins ec ssn ea eT 803
§ 24.90 False statement to federal § 27.40 Statute of limitations ........... 804
PART IV—FEDERAL PROCEDURES
31. PRETRIAL MOTIONS trial or on direct appeal as
SMO: THEVERANCE seci ccssccctdccsssseass 804 bar Mepiese eC eaten tre 805
eee ; § 37.35 Federal habeas corpus ......... 805
33. GUILTY PLEAS § 37.75 Motion to modify sentence
§ 33.35 CQUIESTAEMECTOMUVISE, =§4 ———C(éCisssb scp Badcecscaecnevcsnc iRSnnopncoveanen’ 805
defendant of consequences
<2 oe Re 804
34. EVIDENCE
§ 38.30 Standards for imposing ....... 805
§ 34.15 Relevancy and prejudice .... 804 § 38.50 Re-sentencing ..............cce 806
§ 34.85 Opinion evidence ................. 804 § 38.90 | —What constitutes a prior
§ 34.225 Admissions and confes- felony conviction .............04 806
BIBIS sis5c sasstassceasisesessearseostttees 804
§ 38.95 Validity of prior conviction
§ 34.240 Documentary evidence ....... 804
§ 34.265 Sufficiency of evidence ....... 804 Ree Re oN Te ee ee eee Sree 806
§ 38.96 —Enhancement .................+ 806
35. THE TRIAL
§ 38.105 Consecutive sentences ........ 806
§ 35.95 | Conduct of prosecutor ......... 804 § 38.110 Imposition of restitution ..... 806
§ 35.100 Comments made during
BITAIMALION ose cht ccnssscassscstecys 804 39. THE APPEAL
§ 35.135 Suppression of evidence ..... 804
§ 39.00 Right to appeal .......... 806
36. THE JURY
40. PROBATION AND PAROLE
Oi ARURORCRAL soe sscssesssscessiesctaceses 804
Duty to charge on § 40.00 Conditions of probation ...... 806
defendant’s theory of
§ 40.20 Limitations on reading mat-
“cle FSSIeS ero tena eee ore 805
Rela eeteeyet eee hee 806
§ 36.95 Duty to charge on essential
elements of crime 41. PRISONER PROCEEDINGS
37. POST-TRIAL MOTIONS
SrAO0 MERCA I is ac cciecincesines 806
$37.25 Failure to raise claim at § 41.60 — Prison regulations ................ 806
PART V—CONSTITUTIONAL GUARANTEES
2002 CASE DIGEST INDEX
43. ADMISSIONS AND CONFESSIONS 58. PROHIBITION AGAINST
UNLAWFUL SEARCHES AND
§ 43.35 Absence of counsel .............. 807
SEIZURES
45. RIGHT TO COUNSEL
§ 58.03 Property subject to search .. 807
§ 45.110 Ineffectiveness ...................... 807
S4SEGS: TM GOMORAE 5. cosccinciccccineesszssrscsnys 807 § 58.05 Constitutionally protected
GEOG avi ccton = ee cca tnaarees 808
46. CRUEL AND UNUSUAL
PUNISHMENT § 58.30 Automobile searches ........... 808
§ 58.40 Border searches .................... 808
$46.10 Statutory requirements ........ 807 § 58.55 Search of parolees ................ 808
47. DOUBLE JEOPARDY $58.70 Stopiand frisk ............:.ccccu 808
§ 47.45 Separate and distinct offen- § 58.75 SCACCM WANTAME 5.5... cccsecencsnes 808
§ 58.90 Manner of execution ........... 808
§ 58.93 Knock and announce rule ... 808
48. DUE PROCESS
§ 58.120 Manner of making arrest or
§ 48.05 Drug violations «0.0.0... 807 entering premises as affect-
§ 48.40 Defendant’s right to testify ing validity of subsequent
Sihsceaase sh assay utcta ay Vossa seantsaccanopininds 807 arrest Or Search: ...............0000. 808
50. EX POST FACTO § 58.132 Canine searches .................... 808
SeSEESS: UN GENGIAN fo cocscceeetiengessaces 808
§ 50.05 Applicability to sentencing
§ 58.180 Voluntariness of consent .... 808
saaettelisielabiencestst eepeiesaddectaeteclees 807
53. FREEDOM OF SPEECH AND 60. RIGHT TO SPEEDY TRIAL
EXPRESSION
§ 60.45 Right to re-prosecute fol-
S510 | EPCS ci ccesccieescssascectievs 807 lowing dismissal .................. 808
799

2002 CASE DIGEST INDEX
PART I—STATE CRIMES
3. NATURE AND ELEMENTS OF (2002), 38 CLB 654. Rape within marriage
SPECIFIC CRIMES is a crime.
§ 3.45 Burglary 4. CAPACITY
Mississippi State v. Edwards, 800 So.2d
454 (2001), 38 CLB 410. Utility shed was § 4.15 Competency to stand trial
part of *‘dwelling.”’ Colorado People v. Palmer, 31 P.3d 863
§ 3.115 Child abuse (2001), 38 CLB 181. Amnesia did not render
defendant incompetent to stand trial.
Tennessee State v. Mateyko, 53 S.W.3d 666
(2001), 38 CLB 410. Actual harm to child
6. ALIBI
necessary to prove child abuse through
neglect.
§ 6.15 Collateral estoppel
§ 3.140 Dangerous and deadly weapons
Indiana Smith v. State, 765 N.E.2d 578
Connecticut State v. Vickers, 796 A.2d 502 (2002), 38 CLB 490. Judicial estoppel does
(2002), 38 CLB 653. Right to possess hand- not prevent government from trying different
gun in one’s “‘place of business’’ does not defendants on inconsistent theories.
extend to employees’ workplaces.
§ 6.25 Immunity from prosecution
§ 3.320 Obscenity
Washington State v. Bryant, 42 P.3d 1278
Ohio State v. Maxwell, 767 N.E.2d 242
(2002), 38 CLB 654. Fundamental fairness
(2002), 38 CLB 653. Downloading pornog-
required dismissal of charges against defen-
raphy amounted to bringing it across state
dant who was given immunity by neighbor-
lines.
ing county.
§ 3.353 Racketeering
§ 6.100 Acting within scope of
Oklahoma Miskovsky v. State, 31 P.3d
employment
1054 (2001), 38 CLB 410. Solicitation of sex
from law firm clients can constitute RICO Pennsylvania Commonwealth v. Packer,
violation. 798 A.2d 192 (2002), 38 CLB 654. Em-
ployee acting at employer’s behest could be
§ 3.355 Rape convicted of disposing of waste without a
Arkansas Jones v. State, 74 S.W.3d 663 permit.
PART II—STATE CRIMINAL PROCEDURES, ANCILLARY
PROCEEDINGS
10. PRETRIAL MOTIONS 12. GUILTY PLEAS
§ 10.35 Motion to dismiss for lack of § 12.70 Motion to withdraw guilty plea
speedy trial
North Dakota Froistad v. State, 641
Nevada Windham v. State, 43 P.3d 993 N.W.2d 86 (2002), 38 CLB 654. Defendant
(2002), 38 CLB 491. Trial timely because did not have right to withdraw guilty plea
defendant fled, then was slow to comply without cause after court’s acceptance of
fully with IAD. plea but before court’s acceptance of plea
agreement.
801
CRIMINAL LAW BULLETIN
13. EVIDENCE § 13.378 Emergent technologies
Montana State v. Van Kirk, 32 P.3d 735
§ 13.01 Accomplice liability
(2001), 38 CLB 184. State needed to prove
Vermont State v. Millette, 795 A.2d 1182 reliability of horizontal gaze nystagmus
(2002), 38 CLB 491. Allowing drunken sobriety test; Montana abandons ‘‘over-
friend to take car keys was insufficient to es- whelming evidence’’ as test for harmless
tablish accomplice liability for DUI. error.
§ 13.50 Proofo f other crimes 14. TRIAL
Kentucky Walker v. Commonwealth, 52
§ 14.25 Disqualification of prosecutor
S.W.3d 533 (2001), 38 CLB 410. Controlled
buy evidence was admissible to show intent. West Virginia State ex rel. Keenan v.
Hatcher, 2001 WL 1525407 (2001), 38 CLB
§ 13.165 Coerced testimony 184. Prosecutor’s prior representation of de-
Wisconsin State v. Samuel, 643 N.W.2d fendant barred him from bringing recidivist
423 (2002), 38 CLB 655. Witnesses’ invol- proceedings.
untary statements to police are admissible
15. JURY
unless police conduct was so egregious that
the statements are unreliable.
§ 15.40 Prejudice on part of individual
§ 13.170 Privileged communications jurors
Georgia Kirkland v. State, 560 S.E.2d 6
Maryland Cutchin v. State, 792 A.2d 359
(2002), 38 CLB 413. Allowing holders of
(2002), 38 CLB 491. Whether defendant’s
stock in burgled corporation to serve on jury
communications to insurer are privileged
was harmful per se.
depends on circumstances.
§ 15.236 Juror questioning of witnesses
§ 13.175 Duty of court to advise
witnesses of right to counsel and Minnesota State v. Costello, 2002 WL
privileges against 1291815 (2002), 38 CLB 655. Minnesota
self-incrimination Supreme Court bars juror questioning of wit-
nesses in criminal trials.
New Hampshire State v. King, 781 A.2d
1002 (2001), 38 CLB 411. Judge’s insistence § 15.280 Right to rehear testimony
that witness claim Fifth Amendment privi-
Minnesota State v. Costello, 2002 WL
lege was error.
1291815 (2002), 38 CLB 655. Minnesota
Supreme Court bars juror questioning of wit-
§ 13.225 Requirement of
nesses in criminal trials.
corroboration—Accomplice
testimony Washington State v. Koontz, 41 P.3d 475
(2002), 38 CLB 492. Replaying videotape of
Texas Vasquez v. State, 56 S.W.3d 46
witnesses’ testimony to deadlocked jury was
(2001), 38 CLB 183. Testimony of
harmful error.
accomplice-witness need not be corroborated
as to every element of the crime. § 15.286 Excusal of deliberating juror
§ 13.245 Impeachment by prior New Jersey State v. Williams, 793 A.2d
conviction 594 (2002), 38 CLB 493. Deliberating juror
could be excused for financial hardship.
North Dakota State v. Randall, 639 NW.2d
439 (2002), 38 CLB 492. Prior felony con- 17. SENTENCING AND
victions of prosecution witness presumed to PUNISHMENT
be admissible.
§ 17.101 Imposition of restitution
§ 13.318 Adoptive admissions
Massachusetts Commonwealth v. Mclin-
Kansas State v. Betts, 33 P.3d 575 (2001), tyre, 767 N.E.2d 578 (2002), 38 CLB 655.
38 CLB 183. Court need not inquire into reli- Defendant may be required to make restitu-
ability of adoptive admissions. tion for uncharged property damage as a
New Jersey State v. Brown, 784 A.2d 1244 condition of probation.
(2001), 38 CLB 411. Informant’s statements Wyoming Abeyta v. State, 42 P.3d 1009
to police were not admissible. (2002), 38 CLB 493. Settlement of civil case
802
2002 CASE DIGEST INDEX
did not relieve criminal defendant of obliga- § 18.120 Harmless error test
tion to make restitution to victims.
Ohio State v. Issa, 752 N.E.2d 904 (2001),
18. APPEAL AND ERROR 38 CLB 412. Admitting statement that po-
lice obtained without informing arrestee of
§ 18.00 Right to Appeal his treaty rights was not plain error.
Delaware Weaver v. State, 779 A.2d 254 20. PRISONER PROCEEDINGS
(2001), 38 CLB 412. Suspended sentence
can meet threshold for appeal.
§ 20.00 In-prison proceedings
§ 18.90 Scope of appellate review
Mississippi Wallace v. Town of Raleigh,
Colorado People v. Matheny, 46 P.3d 453 815 So.2d 1203 (2002), 38 CLB 656. Inmate
(2002), 38 CLB 656. Interview of suspect at barred from suing town for injuries suffered
secure police station was not custodial. while on work release.
PART III—FEDERAL CRIMES
22. VALIDITY OF CRIMINAL 2002), 38 CLB 780. Individual participation
STATUTES in management of a RICO enterprise held
not to be necessary to sustain a RICO con-
§ 22.00 Statute held not void for spiracy conviction.
vagueness
§ 24.240 Securities regulations violations
Court of Appeals, 11th Cir. United States
v. Fisher, 2002 WL 832402 (2002), 38 CLB Court of Appeals, 2nd Cir. United States
408. Conviction for misprision of felony v. Gold, 2002 WL 833400 (2002), 38 CLB
involving ‘‘date-rape”’ drug upheld. 406. Securities fraud conviction upheld.
23. CONSTRUCTION AND 27. DEFENSES
OPERATION OF CRIMINAL
STATUTES § 27.15 Entrapment
Court of Appeals, 11th Cir. United States
§ 23.15 Statute broadly construed v. Ryan, 2002 WL 832405 (2002), 38 CLB
Court of Appeals, 8th Cir. Alvarez- 408. Defendant’s claim of ‘‘sentence entrap-
Portillo v. Ashcroft, 280 F.3d 858 (2002), 38 ment’’ rejected.
CLB 298. INS regulations relating to the re-
moval of illegal aliens held to be retroactive. § 27.17 Outrageous government
misconduct
Court of Appeals, 10th Cir. U.S. v. Monts,
2002 WL 31516752 (10th Cir. 2002), 38 Court of Appeals, Ist Cir. United States v.
CLB 781. Child Support Recovery Act held Guzman, 282 F.3d 56, 2002 WL 342643
not to violate commerce clause. (2002), 38 CLB 300. Conviction for trespass-
ing on federal property as part of the Viequez
24. NATURE AND ELEMENTS OF protest upheld.
SPECIFIC CRIMES
§ 27.20 Immunity from prosecution
§ 24.90 False statement to federal U.S. Supreme Court Hope v. Pelzer, 122
department or agency S.Ct. 2508, 70 USLW 4710 (2002), 38 CLB
Court of Appeals, 3rd Cir. United States 486. Defense of qualified immunity held to
v. Gumbs, 283 F.3d 128, 2002 WL 405095 be precluded at summary judgment phase.
(2002), 38 CLB 299. Conviction under false
Court of Appeals, 8th Cir. Kukla v. Huim,
claims act reversed for failure to prove that
2002 WL 31526498 (8th Cir. 2002), 38 CLB
defendant knew that a false claim was being
782. Summary judgment denied to police of-
submitted.
ficer sued for use of excessive force.
§ 24.160 Interstate racketeering Court of Appeals, 11th Cir. Vinyard v.
Court of Appeals, 7th Cir. U.S. v. Wilson, 2002 WL 31521208 (11th Cir.
Warneke, 2002 WL 31500648 (7th Cir. 2002), 38 CLB 781. Arrestee held to have no
803
CRIMINAL LAW BULLETIN
due process rights to an investigation of her Court of Appeals, 5th Cir. Giesberg vy.
excessive force complaint. Cockrell, 2002 WL 522885 (2002), 38 CLB
406. Filing of petition for rehearing of denial
§ 27.40 Statute of limitations
of certiorari held not to toll limitations
Court of Appeals, 3rd Cir. United States
period.
v. Jake, 281 F.3d 123 (2002), 38 CLB 298.
Objection to statute of limitations instruction
held to be waived.
PART IV—FEDERAL PROCEDURES
31. PRETRIAL MOTIONS § 34.265 Sufficiency of evidence
Court of Appeals, 8th Cir. United States v.
§ 31.10 Severance
Hernandez, 2002 WL 31007357 (2002), 38
Court of Appeals, 3rd Cir. United States CLB 651. Judgment of acquittal granted af-
v. Hart, 273 F. 3d 363 (2001), 38 CLB 179. ter jury verdict convicting defendant on drug
Defendant’s motion for a severance held to charges.
be properly denied.
35. THE TRIAL
33. GUILTY PLEAS
§ 35.95 Conduct of prosecutor
§ 33.35 Court’s failure to advise
Court of Appeals, 4th Cir. Basden v. Lee,
defendant of consequences of
2002 WL 849248 (2002), 38 CLB 407. Ha-
plea
beas corpus action based upon prosecutorial
U.S. Supreme Court United States v. misconduct denied.
Vonn, 122 S.Ct. 1043 (2002), 38 CLB 296.
Court of Appeals, 10th Cir. United States
F.R. Crim. P 11(h) Held to include a plain
v. Golyansky, 281 F.3d 1330, 2002 WL
error provision comparable to rule 52(b).
339359 (2002), 38 CLB 298. Trial court’s
exclusion of government witness’ testimony
34. EVIDENCE
held to be in error.
§ 34.15 Relevancy and prejudice § 35.100 Comments made during
Court of Appeals, 7th Cir. U.S. v. Joseph, summation
2002 WL 31501136 (7th Cir. 2002), 38 CLB Court of Appeals, 9th Cir. United States v.
780. Evidence of other crimes held to have
Braunstein, 281 F.3d 982 (2002), 38 CLB
been properly admitted in bank fraud case. 297. Attorney fees of $200,000 awarded
against the government for bringing frivo-
§ 34.85 Opinion Evidence
lous criminal charges.
Court of Appeals, 2nd Cir. U.S. v. Glenn,
2002 WL 31520529 (2d Cir. 2002), 38 CLB § 35.135 Suppression of evidence
782. Evidence on how a drug dealer carries a
Court of Appeals, 11th Cir. United States
handgun held to be inadmissible.
v. Floyd 281 F.3d 1346, 2002 WL 219867
§ 34.225 Admissions and confessions (2002), 38 CLB 297. Ammunition seized
during search of defendant based on prob-
Court of Appeals, 8th Cir. United States v. able cause to arrest held properly admitted.
Mangine, 2002 WL 31007354, (2002), 38
CLB 653. Motion to suppress defendant’s 36. THE JURY
voluntary statements made to police officer
held properly denied. § 36.47 In general
§ 34.240 Documentary evidence U.S. Supreme Court Early v. Packer, 123
S. Ct. 362 (U.S. 2002), 38 CLB 779. Trial
Court of Appeals, 9th Cir. United States v.
court’s comments to deadlocked jury held
Orellana-Blanco, 2002 WL 1370955, (2002),
not to be coercive such as to require federal
38 CLB 487. Law enforcement memo of
habeas corpus relief.
interview held to have been inadmissible
hearsay. Court of Appeals, 5th Cir. Galvan v. Cock-
804
2002 CASE DIGEST INDEX
rell, 293 F.3d 760, 2002 WL 1225100 Pereira, 272 F. 3d 76 (2001), 38 CLB 179.
(2002), 38 CLB 488. Erroneous jury instruc- Reduced sentence based upon Defendant’s
tion referring to possibility of defendant’s responsibilities for care of his parents
sentence being reduced for good conduct reversed.
held not to require reversal.
Court of Appeals, 2nd Cir. United States
v. Mulder, 273 F. 3d 91 (2001), 38 CLB 179.
§ 36.85 Duty to charge on defendant’s
Extortion sentences reversed for failure to
theory of defense
determine the scope of each Defendant’s
Court of Appeals, 7th Cir. United States v. agreement to the conspiracy.
Ebert, 2002 WL 1370006 (2002), 38 CLB
Court of Appeals, 3rd Cir. United States
487. Indictment for assault on federal officer
v. Smith, 294 F.3d 473, 2002 WL 1362104
upheld.
(2002), 38 CLB 489. Conspiracy charges
§ 36.95 Duty to charge on essential reinstated on appeal.
elements of crime Court of Appeals, 4th Cir. United States v.
Court of Appeals, 8th Cir. United States v. Pierce, 278 F.3d 282 (2002), 38 CLB 299.
Evans, 272 F.3d 1069 (2001), 38 CLB 180. State law sex offense held to be a ‘‘crime of
Incorrect jury instruction on money launder- violence such that defendant entitled to be
ing held not to require reversal. sentences as a ‘career offender’’’.
Court of Appeals, 5th Cir. United States v.
37. POST-TRIAL MOTIONS Joshua, 2002 WL 31002821 (2002), 38 CLB
651. A ‘‘nolo contendere’’ plea held to be
§ 37.25 Failure to raise claim at trial or properly charged against defendant in calcu-
on direct appeal as bar lating sentence.
Court of Appeals, 3rd Cir. United States Court of Appeals, 6th Cir. United States v.
v. Chew, 284 F.3d 468 (2002), 38 CLB 408. Anthony, 280 F.3d 694 (2002), 38 CLB 296.
Defendant’s motion after trial for disclosure Defendant’s attorney who conveyed letter
of documents held to be untimely. containing defendant’s false statements to an
investigator held to be a ‘‘participant’’ for
§ 37.35 Federal habeas corpus sentencing purposes.
U.S. Supreme Court Stewart v. Smith, 122 Court of Appeals, 6th Cir. United States v.
S.Ct. 2578, 70 USLW 3792 (2002), 38 CLB Lucas, 282 F. 3d 414, 2002 WL 276601
486. Defendant’s successive petitions for (2002), 38 CLB 297. Resentencing ordered
post conviction relief in Arizona State Court where government did not offer proof that
held not to be independent of federal law. defendant owned the gun.
Court of Appeals, ist Cir. Gruning v. Court of Appeals, 7th Cir. United States v.
DiPaolo, 2002 WL 31528641 (Ist Cir. 2002), Thomas, 280 F.3d 1149 (2002), 38 CLB 298.
38 CLB 782. Defendant held not to have Use of homicide cross reference in sentence
exclusive access to audio recordings of his for firearm offenses held to be improper
court ordered psychiatric examination. except as to statutory defenses.
Court of Appeals, 3rd Cir. Sweger v. Court of Appeals, 7th Cir. United States v.
Chesney, 294 F.3d 506, 2002 WL 1389973 Shutic, 274 F 3d 1123 (2001), 38 CLB 178.
(2002), 38 CLB 490. Federal habeas corpus Refusal of District Court to group two counts
statute held to be tolled during pendency of of the indictment for sentencing purposes
state post-conviction proceedings. held not to be improper.
Court of Appeals, 7th Cir. United States v.
§ 37.75 Motion to modify sentence
Martinez-Jimenez, 2002 WL 1378749
Court of Appeals, 2nd Cir. United States (2002), 38 CLB 487. Defendant held to have
v. Pettus, 2002 WL 31015646 (2002), 38 waived any claim of error in the calculation
CLB 652. Denial for credit for time spent on of his sentence.
supervised release upheld.
Court of Appeals, 9th Cir. United States v.
Jolibois, 294 F.3d 1110, 2002 WL 1358659
38. SENTENCING AND
(2002), 38 CLB 489. Higher sentence under
PUNISHMENT state court standard upheld.
Court of Appeals, 10th Cir. United States
§ 38.39 Standards for imposing sentence
v. Phuc Thien Tran, 281 F.3d 1183 (2002),
Court of Appeals, Ist Cir. United States v. 38 CLB 297. Sentence enhancement upheld
805
CRIMINAL LAW BULLETIN
for use of a minor to commit a crime and for Court of Appeals, 7th Cir. United States v.
obstruction of justice. Tully, 2002 WL 827183 (2002), 38 CLB
407. Objections of various claimants to
Court of Appeals, 10th Cir. United States
restitution payments to victims upheld.
v. Proffit, 2002 WL 31009343 (2002), 38
CLB 652. Sentence enhanced based upon Court of Appeals, 11th Cir. United States
vulnerability of victim reversed. v. Jones, 2002 WL 753228 (2002), 38 CLB
406. Sentence requiring lump-sum restitu-
§ 38.50 Re-sentencing tion payment upheld.
Court of Appeals, 5th Cir. United States v.
Turner, 2002 WL 31002622 (2002), 38 CLB 39. THE APPEAL
651. Case remanded for re-sentencing as to
whether prior conviction of burglar consti- § 39.00 Right to appeal
tutes ‘‘crime of violence.”’ Court of Appeals, 3rd Cir. United States
v. Khattak, 273 F. 3d 557 (2001), 38 CLB
§ 38.90 —What constitutes a prior felony 179. Defendant’s waiver of appeal upheld.
conviction
Court of Appeals, 3rd Cir. U.S. v. Rich- 40. PROBATION AND PAROLE
ardson, 2002 WL 31513433 (3d Cir. 2002),
38 CLB 781. Prior juvenile adjudications § 40.00 Conditions of probation
held not to be predicate offenses under
U.S. Supreme Court United States v.
Armed Career Criminal Act.
Knights, 122 S.Ct. 587 (2001), 38 CLB 176.
Condition of probation that Defendant sub-
§ 38.95 Validity of prior conviction
mit to warrantless search held not to consti-
Court of Appeals, 5th Cir. United States v. tute illegal search and seizure.
Smith, 296 F.3d 344, 2002 WL 1371050
Court of Appeals, 5th Cir. United States v.
(2002), 38 CLB 488. Attempted murder of
Paul, 274 F.3d 15 (2001), 38 CLB 178. Re-
local police officers held to be a violation of
strictions on contact with minors held to be
federal law.
proper condition of supervised release.
§ 38.96 —Enhancement
§ 40.20 Limitations on reading matter
Court of Appeals, 3rd Cir. U.S. v. Fenton,
Court of Appeals, 8th Cir. Smythe v. U.S.
2002 WL 31492311 (3d Cir. 2002) 38 CLB
779. Enhancement of sentence for posses- Parole Com’n, 2002 WL 31500382 (8th Cir.
2002), 38 CLB 780. Holding of U.S. Parole
sion of a firearm by a convicted felon held to
Commission that defendant was required to
be important.
serve full 15-year sentence imposed in Pan-
Court of Appeals, 7th Cir. U.S. v. Bock, ama upheld.
2002 WL 31520337 (7th Cir. 2002), 38 CLB
781. Prior convictions held not required to 41. PRISONER PROCEEDINGS
be pleaded in indictment in order to be used
to enhance sentence. § 41.00 In general
§ 38.105 Consecutive sentences Court of Appeals, 9th Cir. United States v.
Novak, 284 F.3d 986, 2002 WL 372923
Court of Appeals, 9th Cir. Souch v. (2002), 38 CLB 299. Escape of inmate held
Schaivo, 2002 WL 766061 (2002), 38 CLB to commence when inmate departs custody
406. 2002 Daily Journal D.A.R. 4669 Con- not when “‘‘officially’’ designated by U.S.
secutive state court sentences held not to Marshall Service.
violate ex post facto clause.
§ 41.60 Prison regulations
§ 38.110 Imposition of restitution
Court of Appeals, 7th Cir. Moffat v.
Court of Appeals, 7th Cir. United States v. Broyles, 2002 WL 816718 (2002), 38 CLB
Chay, 281 F.3d 682 (2002), 38 CLB 299. 408. Inmate’s habeas corpus petition relating
Sentence of restitution upheld in copyright to his loss of good-time credits held to have
pirating case. been procedurally defaulted.
PART V—CONSTITUTIONAL GUARANTEES
806