U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions & Other News for the Week of November 28-December 2, 2022 --

Supreme Court Happenings for the Week ending December 2, 2022 –

The Supreme Court started a new round of oral arguments on Monday, beginning with a pair of political corruption cases, Ciminelli v. United States and Percoco v. United States. In Percoco, the Supreme Court appeared poised to reverse the conviction of a powerful New York political aide who took money in exchange for helping to facilitate a real estate development. Percoco was sentenced to six years in prison for violating a federal fraud law that makes it a crime to deprive members of the public of the intangible right to “honest services.” But justices of all ideological stripes were concerned on Monday that upholding the conviction of Percoco, who served as the manager of former Gov. Andrew Cuomo’s re-election campaign when he took the actions that led to his conviction, could have far-reaching effects for other private citizens – most notably, lobbyists.

The Supreme Court also heard oral argument on Monday in the case of Louis Ciminelli,, an executive convicted of federal wire fraud in connection with bid-rigging to secure a $750 million New York state contract. The trial court informed a federal jury regarding a “right to control” theory of fraud, and the jury convicted Ciminelli. At argument, Justice Neil Gorsuch remarked at the “radical agreement” among all that the right-to-control theory was flawed, but there was less consensus as to the proper judicial remedy.

The Justices met for their December 2, 2022 today.

Favorable Federal Circuit Opinions for the Week of November 28-December 2, 2022 –

3rd Circuit

United States v. Banks, (Nos. 19-3812 & 20-2235)(3rd Cir. November 30, 2022)– A jury convicted Banks of wire fraud, and the District Court sentenced him to 104 months’ imprisonment and three years’ supervised release. On appeal, Banks arguef that the District Court erred in three ways, by (1) denying his constitutionally protected right to self-representation, (2) applying the loss enhancement to the fraud guideline in the United States Sentencing Guidelines because there was no “actual loss,” and (3) imposing certain special conditions of supervised release. The Court concluded that the loss enhancement in the Guideline’s application notes impermissibly expandsedthe word “loss” to include both intended loss and actual loss. Thus, the District Court erred when it applied the loss enhancement because Banks’s crimes caused no actual loss. Because the Court held that “loss” in the context of U.S.S.G. § 2B1.1 is not ambiguous, the Court vacated the judgment of sentence and remanded this case so that the District Court can resentence Banks without the intended-loss enhancement.

4th Circuit

United States v. Smith, (No. 20-4414)(4th Cir. December 1, 2022)– A jury convicted Smith on two counts of lying to the FBI, violating 18 U.S.C. § 1001(a)(2). The district court sentenced him to concurrent 60-month prison terms. On appeal, Smith challengefd the district court’s denial of his motion to dismiss Count Two of his indictment as multiplicitous. Smith maintained that “both of the alleged false statements were made . . . in the same interview and comprise only one violation of 18 U.S.C. § 1001.” The thrust of this argument is that § 1001(a)(2) criminalizes a course of conduct rather than an individual false statement. The Court found that Congress’s intent concerning § 1001(a)(2)’s unit of prosecution is ambiguous, and therefore applied the rule of lenity and found Count Two multiplicitou. The Court reversed the district court’s denial of the motion to dismiss Count Two, vacated the judgment, and remanded for resentencing.

United States v. Miller, (No. 21-4086)(4th Cir. November 29, 2022)– Miller was indicted on one count of unlawfully possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The firearms at issue were uncovered during a traffic stop. Miller was traveling in the backseat of a vehicle operated by Jessica Phillips when the vehicle was stopped by Officer Helms for having an inoperable taillight. After printing a warning citation for Phillips, Officer Helms used his canine to sniff around the vehicle, and then conducted a full search when the dog alerted, uncovering two firearms in Miller’s backpack. The district court denied Miller’s motion to suppress evidence of the firearms, concluding that Officer Helms had reasonable suspicion to extend the stop and conduct the search. Following a bench trial, Miller was convicted of one count of unlawfully possessing a firearm. On appeal, Miller argued that the district court erred by finding that Officer Helms had reasonable suspicion to extend the traffic stop. The Court held that Officer Helms lacked a reasonable, articulable factual basis for extending the traffic stop to conduct the dog sniff and reversed the district court’s order denying Miller’s motion to suppress, vacated Miller’s conviction and sentence, and remanded to the district court for proceedings consistent with this opinion.

6th Circuit

Fields v. Jordan, ( No. 17-5065)(6th Cir. December 1, 2022)– This case stems from the nearly thirtyyear-old murder of Bess Horton. The commonwealth’s theory of prosecution was that Fields broke into Horton’s residence through a storm window, brutally murdered her in the bedroom, and started burglarizing the residence shortly before law enforcement arrived at the scene. To test the plausibility of the commonwealth’s theory, the jury conducted an experiment using a flat-tipped knife submitted into evidence to remove a cabinet door in the jury room (in place of the storm window). Satisfied with the outcome of their experiment, the jurors convicted Fields of intentional murder and sentenced him to death. Fields now seeks a federal writ of habeas corpus, arguing in part that the jury improperly considered extrinsic evidence in violation of the Fifth and Sixth Amendments. The evidence of guilt was sparse. The only physical evidence tying Fields to the murder was his presence at the scene. Subsequent testing revealed that none of his blood was found on Horton and none of Horton’s blood was found on him. Based on this record, the Court could not say that the jury’s consideration of extrinsic evidence was harmless. The Court reversed the district court’s judgment and conditionally grant a writ of habeas corpus, unless the commonwealth retries Fields within six months.

10th Circuit

United States v. Kearn, (No. 22-3068)(10th Cir. December 2, 2022)– Under 28 U.S.C. § 2255, district courts have authority to vacate a prisoner’s sentence for a constitutional violation and order a resentencing hearing. One type of constitutional violation now warrants our attention: ineffective assistance of counsel in plea discussions as spelled out in Lafler v. Cooper, 566 U.S. 156 (2012). For these violations, district courts may require the government to reoffer a rejected plea if the defendant rejected it because of ineffective assistance of counsel. Before turning to Lafler and ineffective assistance, however, the Court had to first consider whether we have appellate jurisdiction to hear the government’s appeal. The Couort held that the government’s appeal is presently interlocutory. An appealable final judgment will arise only after the district court issues a resentencing order. As such, the Court lacked appellate jurisdiction and remanded to the district court for proceedings consistent with this opinion.

DC Circuit

United States v. Matthews, (No. 22-3021)(DC Cir. November 29, 2022)– Matthews violated his supervised release conditions, the district court placed him in home detention and later imposed a revocation sentence of imprisonment and a new term of supervised release. Matthews contended that the court lacked authority to impose both home detention and imprisonment for the same violations, but he waived this argument below. Matthews also contends that the court’s written judgment improperly contains various discretionary conditions of supervised release that were not orally pronounced at sentencing. The Court agreed and remanded for the district court to conform the written judgment to the orally pronounced one (plus the unchallenged mandatory conditions). In so doing, the Court did not disturb the district court’s independent authority to prospectively modify Matthews’s release conditions under section 3583(e)(2).

Latest Bureau of Prison’s Statistics (From BOP Website):

Fair Sentencing/Retroactive Sentence Reductions 3,967 Orders Granted to date.
Elderly Offender Home Confinement 1,214 Approved to date.
First Step Act Releases 11,040 granted to date.
Compassionate Releases/Reduction in Sentences 4,360 granted to date.

COMMENT:

This was a better week for favorable cases. Anyone who believes they may have a Taylor, Concepcion, Ruan, Bruen, Earned Time Credit or any other claim you believe you may have relief coming for or just want to see if we can find something that will gain you relief should opt for a Written Case Evaluation.

There were 18 new compassionate release motions granted this week and 4 others were granted relief for the Fair Sentencing Act/ Retroactive Sentence Reductions.

Anyone who thinks that they may qualify for compassionate release or any other remedy should request a Written Case Evaluation (we no longer offer Free Lookups). For the last 28 years, we have also been very successful on direct appeals, 2255 motions and 2241 Petitions, First Step Act, Compassionate Release Motions, DC Superior Court, State Post Conviction, Clemencies and Pardons, and Parole Packages to mention a few avenues for relief. We also can help you with Earned Time Credits and other specialized motions.

If you are serious about fighting your case and want us to evaluate your case to see if you may have relief coming, request a Written Case Evaluation.