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December 21, 2009:
US v. Frankel, No. 06-1752 In a wire fraud prosecution, the court of appeals' prior order relieving appointed counsel as a sanction for defendant's misconduct is vacated where the order was not preceded by notice to defendant and an opportunity to respond. Thus, the court of appeals' prior dismissal of defendant's appeal for failure to file a timely pro se brief is also vacated. This is an unusual situation in which the court of appeals relieved defendant's 3d appointed counsel after defendant made "scandalous" claims regarding prior appointed counsel but failed to give the defendant notice prior to terminating his counsel.
December 16, 2009:
08-4665-cr(L), 08-4667-cr(con) USA v. Hester - Before: WINTER, CABRANES, and HALL, Circuit Judges. Defendant-appellant Travis S. Hester appeals from a September 16, 2008 judgment entered in the United States District Court for the Northern District of New York (Sharpe, J.), convicting him, following a guilty plea, of two counts of traveling in interstate commerce and failing to register or update his sex offender registration in violation of the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250(a), and one count of making a false statement in the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6). The district court sentenced Hester principally to a term of imprisonment of 37 months. On appeal, Hester argues that (1) his prosecution for failure to register as a sex offender under 18 U.S.C. § 2250(a) violated his right to due process of law under the Fifth Amendment to the U.S. Constitution; (2) 18 U.S.C. § 2250(a) and the registration requirements of SORNA, 42 U.S.C § 16913(a), violate the Commerce Clause of the U.S. Constitution; and (3) 18 U.S.C. § 2250(a) is unconstitutionally vague. Hester’s due process argument presents a question of first impression for this Court. We conclude, as have all of our sister circuits that have considered the issue, that prosecution for failure to register as a sex offender under 18 U.S.C. § 2250(a) does not violate the right to due process of law. With respect to Hester’s two remaining arguments, we conclude that those were waived pursuant to the plea agreement. Affirmed. Per Curiam
December 14, 2009:
The Supreme Court today granted certiorari to three cases on appeal from 5th Circuit, 9th Circuit and the D.C. Court of Appeals
09-60 Carachuri-Rosendo v. Holder - The petition for a writ of certiorari is granted.
Lower Court: USCA - 5 ( 07-61006)
Question Presented: Whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been "convicted" of an "aggravated felony" on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.
08-1332 City of Ontario v. Quon - The petition for a writ of certiorari is granted.
Lower Court: USCA - 9 ( 07-55282)
Questions Presented: Whether a SWAT team member has reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers. 2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used "less intrusive methods" of reviewing text1~rnessages transmitted by a SWAT team member on his SWAT pager. 3. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.
08-6261 Robertson v. U.S. Ex Rel. Watson - The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted limited to the following question: Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.
Lower Court: D.C. Court of Appeals (00-FM-925 & 04-FM-1269)
Question Presented: Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.
December 7, 2009:
The Supreme Court granted cert today in Dillon v. U.S. in which the question presented is whether the federal sentencing guidelines are binding when a federal judge imposes a new sentence--the case will test whether the Supreme Court's 2005 ruling in Booker applies in a sentence modification proceeding. The Supreme Court had previously refused to hear the same issue in a number of cases and the Solicitor General recommended a denial in this case as well.
The Court will also hear oral argument today in Florida v. Powell, At issue is the police duty to expand "Miranda warnings" before questioning a suspect. The Court will be addressing a split among the federal and state courts of appeals regarding whether warnings like the one used in Powell's interrogation "reasonably convey" the required information to criminal defendants. The warning in Powell's was:
You have the right to remain silent. If you give up this right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. yo have the right to use any of these rights at any time you want during this interview.
The Florida court of appeals reversed conviction holding that Miranda warnings were constitutionally deficient because they did not clearly warn Powell of his right to have an attorney present during questioning. The Florida Supreme Court affirmed the Court of Appeals and the State of Florida petitioned for certiorari.
A per curiam summary reversal issued by the Court . It reverses a Michigan state supreme court decision regarding application of emergency doctrine application to 4th amendment violation. Stevens wrote a dissent that Sotomayor joined. It can be found here.
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