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Case Summaries

Asset Forfeiture

[03/08] US v. Brummer
In defendant's appeal from the district court's order that he forfeit two firearms and six rounds of ammunition pursuant to his conviction of knowingly and willfully failing to declare firearms to a common carrier, the order is affirmed where the indictment charging defendant with violating 18 U.S.C. section 922(e) included a notice of forfeiture, and thus the district court therefore was required to order forfeiture of the property.

[03/02] US v. Cheeseman
In a prosecution of defendant for violating 18 U.S.C. section 922(g)(3), which criminalizes possession of firearms and ammunition by an unlawful user or addict of a controlled substance, district court's judgment ordering the forfeiture of over 600 firearms and ammunition is affirmed where: 1) the possession of firearms and ammunition is sufficient for a district court to find that the property was "involved in" a section 922(g)(3) offense; and 2) forfeiture did not violate the Excessive Fines Clause as the value of the firearms was at most two times the maximum penalty imposed by the statute.

[02/26] US v. Meux
Following defendant's conviction and sentence of 37 months' imprisonment and order to pay a mandatory restitution of $134,218.52, a magistrate judge's order granting the government's motion for turnover of funds that was held in custody by a US Marshal in an unrelated case is affirmed as the magistrate judge had authority to hold a hearing and to order the turnover of funds to satisfy the lien. Furthermore, record reflects that defendant was provided with essentially the same due process protections he wold have been accorded in garnishment proceedings.

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Criminal Law & Procedure

[03/09] Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

[03/09] US v. Wise
Defendant's firearm possession sentence is affirmed where: 1) defendant's prior conviction under Utah law for failure to stop at the command of a police officer was a "crime of violence" under the Sentencing Guidelines; and 2) the district court erred in not assigning criminal history points for one of defendant's prior convictions, but that error did not invalidate defendant's sentence.

[03/08] US v. Miller
Dismissal of defendant's petition for a writ of audita querela challenging a restitution order, arising from his conviction for conducting a monetary transaction with criminally-derived funds and evading income tax, is affirmed where: 1) if it still exists, the writ of audita querela can only be applied to rectify a judgment which, though correct when rendered, has since become infirm; and 2) since all parties to this case agree that the district court's restitution order was initially correct, and because the statute does not require the order to be modified every time a subsequent payment is made on a restitution obligation, there is no infirmity in defendant's judgment for a writ of audita querela to rectify.

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Habeas Corpus

[03/08] Rhoades v. Henry (Michelbacher)
In a capital habeas matter, denial of petitioner's petition is affirmed where: 1) no Brady violation could occur when a defendant possessed the information that he claims was withheld; 2) petitioner offered no support for his assertion that the district court should have held an evidentiary hearing on the Brady claim; and 3) it was not reasonably likely that a challenged instruction, in context of the instructions overall, caused the jury to misapply the state's burden of proof.

[03/08] Rhoades v. Henry (Baldwin)
In a capital habeas matter, denial of petitioner's petition is affirmed where: 1) an allegedly exculpatory confession by another witness was not reliable and was thus appropriately excluded; 2) there was no Brady violation when a defendant possessed the information that he claims was withheld; 3) defendant's statement that "I did it" came after his handcuffs were removed and while petitioner was being booked at the station, and in these circumstances no Mosley error occurred; and 4) the aggravating circumstances were too strong, and the new mitigating evidence added too little, to create a reasonable probability of a different outcome absent defense counsel's alleged ineffectiveness.

[03/05] In re Lucas
Defendant's request for habeas relief, claiming that when the district attorney filed the petition to commit him as a sexually violent predator he was not in the lawful custody of the department of corrections because the board of parole hearings had extended his custody for 45 days without showing of good cause, is denied where: 1) although the hold was unlawful as the showing of good cause required for a 45-day hold under section 6603.1 was never made; 2) the board did, in fact, rely on regulation 2600.1(d) in placing the 45-day hold on defendant; and 3) the board's presumptive reliance on regulation 2600.1(d) constitutes a good faith mistake of law.

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