Tom Norrid Law Firm
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The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with appeals under the direction of Attorney Tom Norrid. The Samaritan-Projects’ newsletter reports every winning published district court and court of appeals case for the week in review. Rusty – 417 901 3000 – Eddie 417 818 1938.
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CR.RIS/REHABILITATION/DISPARITY/USSG 1B1.13(b)(5). The Eastern District of California granted a CR.RIS motion in United States v. Brian Vidrine, 2024 U.S. Dist. LEXIS 151716 (E.D. Calif. Aug. 23, 2024). The sentencing judge in this case imposed a sentence on Vidrine of 468 months in prison based on his conviction on six counts. Vidrine has served approximately 346 months. He alleged he was subjected to disproportionate "stacking" of the sentences for his convictions which creates a wide disparity between his sentence and the sentence someone convicted of the same charges would receive today. Based on recent changes in law, and the totality of the record, the court addressed this disparity by granting the motion. Vidrine has engaged in rehabilitation efforts, taking "college courses [over] the last few years [once] these were offered to him," and engaging in "a variety of jobs, including several years doing food service," Attached to Vidrine's reply was a copy of his transcript, a Spanish preparation certificate, and "an English Composition class essay Mr. Vidrine wrote [on political partisanship.]" The court agreed the 20-year enhancement he received would not be given to someone convicted of the same crimes today under the First Step Act. Instead, "[h]ad count seven's sentence been imposed as Congress intended, it would have dropped to a consecutive 60-month term" and he would have received a total sentence "between 255 and 288 months," which would be more than satisfied by the 346 months he has already served. USSG 1B1.13(b)(6) explicitly provides that a court can consider an unusually long sentence where defendant has already served at least ten years as an "extraordinary and compelling reason." However, section 1B1.13(b)(6) includes qualifying language that limits relief under that section to exclude "an amendment to the Guidelines Manual that has not been made retroactive." Thus, this provision does not seem to squarely apply to Vidrine's case, where the amendment was not made retroactive. Changes to 924(c) can provide a reason to [grant a motion for compassionate release, particularly if a defendant's individual characteristics support that finding. The court found the original stacking of Vidrine's sentences, followed by Congress's clarification and Vidrine's post-sentencing rehabilitation supported a finding of extraordinary and compelling circumstances under USSG 1B1.13(b)(5).Sentence reduced to time served.
CR.RIS/MEDICAL. The Southern District of New York granted a CR.RIS motion in United States v. Mariano Severino, 2024 U.S. Dist. LEXIS 151401 (S.D. N.Y. Aug. 22, 2024). In 2014, Severino plead guilty to one count of conspiracy to distribute and possess with the intent to distribute various controlled substances and one count of aggravated identity theft. At sentencing the Court noted that Severino had "conspired to distribute and possess with the intent to distribute a significant amount of drugs, particularly cocaine," and "also committed aggravated identity theft in order to stay in the United States." The Court also found that Severino had accepted responsibility for his crimes, was forthcoming with the Government, and could face deportation from the county where he had lived for at least 20 years. The Court noted that it had received "many, many letters sent on [Severino's] behalf which describe him as a caring partner, a loving and attentive father, and a thoughtful friend." The Court sentenced Severino to 144 months in prison.Severino, now age 55, has been diagnosed with Stage IVB prostate cancer, the most advanced stage. Severino argued that his prostate cancer diagnosis constitutes an extraordinary and compelling reason for a sentence reduction. The Court agreed.Defendant’s sentence was reduced to time served. The Order was stayed to allow Severino to make any applications to ICE regarding any immigration detainer.
CR.RIS/MEDICAL/REHABILITATION. The Northern District of Ohio granted a CR.RIS motion in United States v. Sheldon Hill, 2024 U.S. Dist. LEXIS 151036 (N.D. Ohio Aug. 23, 2024).Hill was charged with one count of Bank robbery, and he pled guilty and was sentenced to 151 months in prison. On April 17, 2020, during the COVID-19 pandemic, Mr. Hill moved for compassionate release based on health conditions that increased his risk of serious illness. The Court denied his request. On March 10, 2024, Hill moved for compassionate release, requesting release to care for his ill mother. The Court denied his request, finding Hill had failed to establish he was the only available caregiver for his ailing mother. In May 2024, Hill was transferred to a halfway house in Cleveland. Since his arrival at the halfway house Hill has been hospitalized twice — the first with dangerously low blood sugar levels and the second due to dehydration and acute kidney injury — both complications of Type II diabetes. Hill also suffers from hypertension. Hill asserted that he is unable to manage his health conditions while living at the halfway house, alleging that he is not receiving sufficient nutrition/resources to maintain daily minimum glucose levels. Hill stated that there is no commissary available; residents are not permitted to bring in outside food; and, that although he has been given a "snack bag" to maintain his blood sugar levels, he has gone days without using his insulin as a result of not receiving sufficient nutrition to maintain daily minimum glucose levels. Hill asked the Court to reduce his sentence to time served and impose an additional term of supervision with whatever conditions the Court feels appropriate, noting the limited amount of time he has left to serve and the documented proof of his rehabilitation — including the fact that he has remained incident free, completed reentry programming and obtained employment. Hill filed his Motion for Reduction in Sentence on Aug. 15, 2024. On Aug. 20, 2024, the United States filed a Response Brief indicating that due to Hill's health condition; the difficulties he is encountering at the halfway house in caring for his health needs; the short amount of time left on his term of imprisonment; and, the medical records provided by Hill in support of his Motion, the Government has no objection to his motion for compassionate release. For the reasons stated in the Motion for Reduction in Sentence under 18 USC 3582(c)(1)(A)(ii) the motion was granted and his sentence was reduced to time served.
CR.RIS/REHABILITATION/DISPARITY/MEDICAL/USSG 1B1.13(b)(6), (b)(5). The District of New Jersey granted a CR.RIS motion in United States v. Anthony Berry, 2024 U.S. Dist. LEXIS 151461 (D. N.J. Aug. 23, 2024). Berry filed aSupplemental Motion for Sentence Reduction in which he claims that since the enhancement imposed as part of a federal sentence in Pennsylvania by reason of 18 USC 924(c) was vacated pursuant to U.S. v. Taylor, 142 S. Ct. 2015 (2022), he is serving an unusually long sentence and is entitled to release. Defendant also seeks relief on the bases of his age (60) and medical conditions; namely, Type 2 diabetes and osteoarthritis in his back, as well as having only one functioning kidney. Finally, the defendant contended he is rehabilitated. When applying the 2023 Sentencing Guidelines the Court held it must revert to the ordinary rule that 1B1.13 is binding. The Court invoked USSG 1B1.13(b)(6) and (b)(5). The defendant obtained his G.E.D., maintained employment, learned a trade, "continues to make quarterly [inmate Financial Responsibility Program] payments[,]" and has the continued "emotional and financial support" of his family upon release. The Court found the defendant has taken advantage of the educational and vocational opportunities afforded him while in prison and has seemingly realized there does exist a life for him other than one of crime.The defendant suffers from two chronic illnesses-osteoarthritis and Type II diabetes-and only has one functioning kidney. Under 3553(a)(2)(D), this must factor into the Court's analysis, particularly in light of defendant's age and potential to serve an additional sentence on a State parole violation. For the reasons articulated, a reduction would be wholly consistent with applicable Policy Statements-particularly those that became effective in November 2023 regarding an "Unusually Long Sentence" and "Other Reasons" (discussed below). USSG lBl.l3(b)(5), (6). The Court found defendant had met his burden of demonstrating by a preponderance of evidence that extraordinary and compelling reasons exist for compassionate release on the basis of an unusually long sentence. For the reasons set forth in the Court's discussion of the 18 USC 3553 factors under its "Unusually Long Sentence" analysis, defendant's rehabilitation efforts and successes weigh in favor of release when combined with the "other circumstances" of length of sentence and age. Accordingly, the defendant’s release was warranted in accordance with USSG 1B1.13(b)(5). The Government requested a stay which was denied so they could appeal. Defendant’s sentence reduced to time served.
CR.RIS/MEDICAL. The Middle District of North Carolina granted a CR.RIS motion in United States v. Brandon Potts, 2024 U.S. Dist. LEXIS151069 (M.D. N.C. Aug. 22, 2024). Potts pled guilty to conspiracy to distribute methamphetamine in violation of 21 USC 846 and 841(b)(1)(A). On March 10, 2021, Potts was sentenced to 146 months of imprisonment followed by five years of supervised release. His presumptive release date is April 16, 2029. He is 38 years old and currently incarcerated at FMC Butner. Potts filed the present motion on Sept. 21, 2023. Principally, he argued his diagnosis of melanoma and inadequate care by the Bureau of Prisons ("BOP"), including a months-long delay in the notification of his biopsy results, constitute extraordinary and compelling reasons for a sentence reduction. The Government contended that Potts is receiving specialized care at FMC Butner and that he is otherwise sustaining self-care. Potts noted additional conditions warranting early release, "extreme stress, anxiety, depression, sleep apnea, other sleeping complications, abdominal pain, and other pains triggered from the spreading of the cancer." The court stated in view of the seriousness of his current cancer condition as well as the fact he will remain under the supervision of the United States Probation Office for five years upon release, the court is satisfied that Potts will not present a danger to the community. Further, having served more than 56 months in custody related to this offense, and given the serious and potentially life-limiting nature of his cancer diagnosis as well as the significant physical suffering he has been and will continue to be forced to endure as a likely result of the BOP's delayed diagnosis and treatment of his melanoma, a reduction in sentence to time-served adequately reflects the seriousness of the offense of conviction, his criminal history, and the need to protect the public.
CR.RIS/DISPARITY/HARSH PRISON CONDITIONS. The Southern District of New York granted a CR.RIS motion in United States v. Ray Parish, 2024 U.S. Dist. LEXIS 151228 (S.D. N.Y. Aug. 22, 2024). During the spring of 2013, Parish—then twenty-one years old—committed five robberies in the Bronx and Manhattan. Parish is serving a 154-month sentence.The Court found that a sentence reduction is merited based on a combination of circumstances: (1) the disparity between the projected length of Parish's incarceration and the intent of the sentencing courts; (2) the conditions he endured while detained at Rikers Island, MCC, and MDC; and (3) his incarceration during the COVID-19 pandemic. Parish's motion was based on a combination of extraordinary and compelling circumstances.Parish contended that BOP's failure to credit his time in state custody and the resulting combined eighteen-plus years he is projected to spend incarcerated defies principles of fairness and constitutes extraordinary and compelling circumstances. The Court agreed. Parish served over three years at Rikers Island, MCC, and MDC, including 367 days at MDC in 2021 and 2022 during the COVID-19 pandemic. Courts in the Second Circuit recognize that the harsh conditions of confinement at the area's jails counsel in favor of a shorter overall sentence. The conditions at MDC, for example, include "near-perpetual" lockdowns that prohibit detained persons "from leaving [their cells] for visits, calls, showers, classes, or exercise"—conditions that are "tantamount to solitary or near-solitary confinement."The conditions at the area's jails make time spent there "essentially the equivalent of either time and a half or two times what would ordinarily be served." Parish has been incarcerated throughout the entirety of the pandemic and has "experienced the full gamut of pandemic-related horrors," including "extended lockdowns, constant fear of contracting a deadly virus, limited communication with family, and reduced access to programming." Parish endured "conditions of confinement that were not contemplated at the time that the Court imposed [his] sentence. The Court found that the 18 USC 3553(a) factors do not proscribe granting the requested relief. There is no doubt that the nature of Parish's criminal conduct was serious. However, he has been incarcerated for more than eleven years, which is sufficient to "promote respect for the law, . . . provide just punishment[,] . . . [and] afford adequate deterrence." 18 USC 3553(a)(2)(A)-(B). Sentence reduced to time served.
APPEAL/AMENDMENT 821. The Sixth Circuit remanded United States v. Anthony Rice, 2024 U.S. App. LEXIS 21442(6th Cir. Aug. 22, 2024). In May 2023, Rice pled guilty to one count of being a felon in possession of a firearm. The district court sentenced Rice to 46 months imprisonment. Rice arguedthat the district court: (1) incorrectly concluded that his prior Ohio aggravated robbery conviction was a “crime of violence” under the Guidelines; (2) should have applied Amendment 821, which went into effect after Rice’s sentencing, because it would have lowered his Guidelines range; and (3) failed to consider Rice’s personal history as a mitigation factor. The court affirmed, but of an intervening Sentencing Guidelines amendment during the pendency of this appeal, the court remanded to the district court to consider whether Rice is entitled to a sentence reduction.
AMENDMENT 821. The Western District of Kentucky granted an 821 Motion in United States v. Joshua Ewing, 2024 U.S. Dist. LEXIS 147534 (W.D. Ky. Aug. 19, 2024). Ewing is eligible for a sentence reduction under 18 USC 3582(c)(2) for retroactive application of Part A of Amendment 821 of the Federal Sentencing Guidelines. Ewing was convicted by a jury for bank robbery and brandishing a firearm in relation to a crime of violence, and he was sentenced to 161-months. Sentence reduced to 147-months.
AMENDMENT 821. The Southern District of New York granted an 821 motion in United States v. Tyquan Morris, 2024 U.S. Dist. LEXIS 148259 (S.D. N.Y. Aug. 20, 2024). Morris pled guilty to being a felon in possession of ammunition in violation of 18 USC 922(g)(1). The defendant received five criminal history points under 4A1.1(a) and (c) for prior convictions in state and federal court and two points under USSG 4A1.1(d) because the defendant was under supervised release at the time he committed the instant offense. Defendant was sentenced to a term of 120 months. Sentence reduced to time served.
APPEAL/ACCA/ERLINGER. The Seventh Circuit vacated and remanded United States v. Cameron Johnson, 2024 U.S. App. LEXIS 21020 (7th Cir. Aug. 20, 2024). Cameron Johnson is a convicted felon who was found in possession of a firearm on Sept. 15, 2019. He pled guilty to this charge. The Government sought an enhanced sentence under the Armed Career Criminal Act (ACCA) based on Johnson's three prior robbery convictions under Indiana law. Johnson argued that two of these robberies, committed on January 22, 2009, occurred on the same occasion and thus should not count as separate offenses under ACCA. He also contended that a jury should determine whether the robberies were committed on different occasions. The Southern District of Indiana rejected Johnson's argument relying on Seventh Circuit precedent that did not require a jury to decide the different-occasions question. The court concluded that the robberies were committed on different occasions and sentenced Johnson to fifteen years in prison, the minimum under ACCA. The Seventh Circuit reviewed the case. The court noted the Supreme Court's recent decision in Erlinger v. United States established that the Fifth and Sixth Amendments entitle defendants to have a jury decide whether prior offenses were committed on the same or different occasions. Given this precedent, the Seventh Circuit determined that the district court erred in not submitting the different-occasions question to a jury. The court also found that this error was not harmless as it was not clear beyond a reasonable doubt that a jury would have found the robberies to be committed on different occasions. The Seventh Circuit vacated Johnson's sentence and remanded the case for further proceedings.
FIREARMS/DISMISS INDICTMENT. The District of Kansas dismissed an indictment in United States v. Tamori Morgan, 2024 U.S. Dist. LEXIS 149550 (D. Kan. Aug. 21, 2024). This matter was before the court on defendant’s motion to dismiss based on Second Amendment grounds. A response and a reply were filed, and the court held a hearing to establish additional facts about the weapons charged. The court found that the Second Amendment applied to the weapons charged because they are “bearable arms” within the original meaning of the amendment. The court further found that the Government hadfailed to establish that this nation’s history of gun regulation justifies the application of 18 USC 922(o) to defendant. The court granted the motion to dismiss. Tamori Morgan was charged with two counts of possessing a machinegun in violation of 18 USC 922(o). Specifically, defendant was charged with possessing an Anderson Manufacturing, model AM-15 .300 caliber machinegun and a machinegun conversion device. It was established at the hearing that the conversion device is a so-called “Glock switch” which allows a Glock, model 33, .357 SIG caliber firearm to fire as an automatic weapon. Under the Second Amendment, “the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. “[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” D.C. v. Heller, 554 U.S. 570, 582 (2008). To keep arms means, simply, to possess arms. Id. at 583. If the plain text of the Second Amendment applies to a defendant’s conduct, the Government has the burden to show that the regulation is consistent with this nation’s historical firearm regulation tradition. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 17 (2022). This standard requires a “historical analogue” between the modern regulation and historical regulations, not a “historical twin.” United States v. Rahimi, 144 S. Ct. 1889, 1902–03 (2024). Defendant argued 18 USC 922(o) is unconstitutional facially as applied to him.Defendant first argued that, under the first step of Bruen, the plain text of the Second Amendment applies to his conduct of possessing machineguns. The Government argued to the contrary, pointing to language in Heller that suggests theunconstitutionality of machinegun regulation would be “startling,” and that the Second Amendment only applies to weapons that were commonly used by law-abiding citizens at the time of the Second Amendment’s enactment. Importantly, this decision says little about what the Government might prove in some future case. Rather, under Bruen’s framework for evaluating Second Amendment challenges it is the Government’s burden to identify a historical analog to the restrictions challenged in this case. This the Government failed to do. The court expresses no opinion as to whether the Government could, in some other case, meet its burden to show a historically analogous restriction that would justify 922(o).
APPEAL/RESENTENCE. The Fourth Circuit vacated and remand for resentencing United States v. Rocky Kavungirwa, 2024 U.S. App. LEXIS 20991 (4th Cir. Aug. 20, 2024). Kavungirwa pled guilty pursuant to a plea agreement toconspiracy to commit bank and wire fraud in violation of 18 USC 1349. The district court sentenced Kavungirwa to 36 months’ imprisonment and imposed a three-year term of supervised release. On appeal, Kavungirwa’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning: (1) whether the district court plainly erred when it did not advise Kavungirwa that he had no right to withdraw his plea if the court did not accept the Sentencing Guidelines recommendations in the plea agreement, as it was required to do under Fed.R.Crim.P. 11(c)(3)(B); and (2) whether Kavungirwa’ssentence is reasonable. Kavungirwa filed a pro se supplemental brief arguing that his plea was not valid because the court failed to comply with Rule 11(c)(3)(B), there was no factual basis for the plea, and counsel rendered ineffective assistance by advising him to plead guilty. He challenges the reasonableness of his sentence. The Government moved to dismiss the appeal based on the appellate waiver in Kavungirwa’s plea agreement. The court denied the Government’s motion to dismiss, affirm Kavungirwa’s conviction, vacated his sentence and remandedfor resentencing.
APPEAL/RESTITUTION. The Sixth Circuit reversed and remanded United States v. John O’Hara, 2024 U.S. App. LEXIS20983 (6th Cir. Aug. 20, 2024). John O’Hara pled guilty to wire fraud and bank fraud for misappropriating funds from his mother, Sally Thrush. Thrush passed away shortly after his plea leaving O’Hara as the sole beneficiary of her estate. At sentencing, the district court ordered O’Hara to pay over $300,000 in restitution to Thrush’s estate despite knowing that O’Hara would likely receive the restitution as the estate’s beneficiary. Four years later, the district court amended the judgment to direct O’Hara to pay the federal Crime Victims Fund instead of the estate. The Eastern District of Kentucky initially sentenced O’Hara to twenty-six months in prison and ordered him to pay restitution to his mother’s estate. After O’Hara’s release from prison the district court prompted by the Government, amended the judgment to substitute the Crime Victims Fund as the payee, reasoning that allowing O’Hara to receive his own restitution would be contrary to the intent of the Mandatory Victims Restitution Act (MVRA). The Sixth Circuit reviewed the case and determined that the district court did not have the authority to modify the final judgment to substitute a new payee. The appellate court held that the MVRA, specifically 18 USC 3663A(a)(2), does not provide the statutory authority to amend a restitution order post-judgment. The court emphasized that a final restitution order can only be modified under specific statutory provisions, none of which applied in this case. Consequently, the Sixth Circuit reversed the district court’s decision and remanded the case.
APPEAL/STATUTE OF LIMITATIONS. The Fifth Circuit remanded United States v. Richard Plezia, 2024 U.S. App. LEXIS 21293 (5th Cir. Aug. 22, 2024). Richard Plezia was a Houston-based personal injury attorney who was charged with conspiracy to defraud the United States, making false statements, and falsifying records in a federal investigation. The charges stemmed from allegations that Plezia conspired with other attorneys and case runners to unlawfully reduce the federal income taxes owed by Jeffrey Stern. The scheme involved funneling illegal payments through Plezia to case runner Marcus Esquivel, which were falsely reported as attorney referral fees. The Southern District of Texas held a fifteen-day jury trial where Plezia was convicted on all counts. Plezia challenged the sufficiency of the evidence, the equitable tolling of the statute of limitations for one count, and the admission of certain witness testimonies. The district court denied his motions for acquittal and a new trial, and sentenced him to six months and one day in prison followed by two years of supervised release. The Fifth Circuit reviewed the case. The court agreed with Plezia that the statute of limitations for the false statements charge was not subject to equitable tolling and vacated his conviction on that count and remanded with instructions to dismiss it with prejudice. However, the court affirmed the remaining convictions finding sufficient evidence to support the jury's verdict on the conspiracy and falsification charges. The court also held that any error in admitting witness testimonies was harmless given the overwhelming evidence of guilt.
APPEAL/RESTITUTION. The Eighth Circuit vacated and remanded United States v. Christina Barrera, 2024 U.S. App. LEXIS 20429 (8th Cir. Aug. 14, 2024). Christina Barrera was the office manager at PowerMed who was involved in a scheme to help unqualified individuals, mainly employees of AB InBev, fraudulently obtain disability benefits from the Social Security Administration (SSA) and private insurers. Patients paid PowerMed $21,600 for a "disability package" that included unnecessary medical tests and assistance in fraudulently applying for disability benefits. Barrera explained the scheme to patients, helped them complete paperwork, and coached them on how to appear disabled. An undercover officer's investigation led to Barrera's indictment and subsequent trial where a jury found her guilty of conspiracy to defraud the SSA but acquitted her of health care fraud and theft of Government funds. The Eastern District of Missouri sentenced Barrera, ordering her to pay restitution to the SSA and private insurers. The presentence investigation report (PSR) recommended $339,407.80 in restitution to the SSA, but the Government argued for additional restitution to private insurers, totaling $203,907.62. The district court adopted the Government's figures, ordering Barrera to pay a total of $543,315.42 in restitution. After Barrera's sentencing, her co-conspirator Clarissa Pogue was sentenced but was not required to pay restitution to private insurers leading Barrera to appeal. The Eighth Circuit reviewed the case. The court held that Barrera's criminal conduct included defrauding private insurers as part of the scheme to defraud the SSA, affirming the district court's decision to order restitution to private insurers. However, the court found errors in the calculation of restitution amounts for Prudential and MetLife and vacated those portions and remanding for further proceedings. The court rejected Barrera's argument regarding sentencing disparities with Pogue, emphasizing that the statutory direction to avoid unwarranted sentence disparities refers to national disparities, not differences among co-conspirators. The judgment was affirmed in part, vacated in part, and remanded.
APPEAL/SUPERVISED RELEASE CONDITIONS. The Seventh Circuit vacated and remanded United States v. Robert Anderson, 2024 U.S. App. LEXIS 21067 (7th Cir. Aug. 19, 2024). Robert Anderson was convicted pursuant to 18 USC2422(b) of attempted enticement of a minor appealed his sentence. He asked the court to strike a condition of supervised release that prohibits him from having contact with any sex offender. He argued this condition (“Condition 15”) isunconstitutionally vague and overbroad and results in a duplicative, and therefore unnecessary, restraint on his liberty. He further contended that the court imposed the conditions of supervised release without a proper discussion of the sentencing factors under 18 USC 3553(a). The court vacated and remandedto the district court with instructions to modify Condition 15.
APPEAL/FORCED MEDICATION. The Second Circuit reversed and remanded United Stats v. Samuel Boima, 2024 U.S. App. LEXIS 21212 (2d Cir. Aug. 22, 2024). Samuel Boimais a native of Sierra Leone and was charged with assaulting federal officers at the Buffalo Federal Detention Facility while awaiting deportation. The incident involved Boima spitting a mixture of saliva and blood on the officers. Following his arrest, Boima exhibited uncooperative and erratic behavior leading to a court-ordered psychological evaluation. Dr. Kari Schlessinger diagnosed Boima with a psychotic disorder and concluded he was incompetent to stand trial. Boima was subsequently committed to the Federal Medical Center in Butner, North Carolina, for further evaluation. The Western District of New York found Boima incompetent to stand trial and ordered his hospitalization. Dr. Kristina P. Lloyd and Dr. Charles Cloutier at FMC Butner diagnosed Boima with schizophrenia and recommended antipsychotic medication to restore his competency. The Government moved for a Sell hearing to authorize involuntary medication. The district court granted the motion but did not address whether the Government had an important interest in prosecuting Boima a necessary finding under Sell v. United States. The Second Circuit reviewed the case. The court vacated the district court's order authorizing forced medication, noting the lower court's failure to consider whether important Governmental interests were at stake, as required by Sell. The appellate court remanded the case for further proceedings to determine if the Government’s interest in prosecuting Boima justified involuntary medication, considering factors such as the seriousness of the crime, potential civil commitment, and the time Boima had already spent in custody.
APPEAL/1983/BATSON. The Seventh Circuit remanded Akil Carter v. City of Wauwatosa, 2024 U.S. App. LEXIS 20513 (7th Cir. Aug. 14, 2024). In 2018, Patrick Kaine conducted a vehicle stop to investigate a potential robbery following a tip from a citizen. Akil Carter, Paulette Barr, and Sandra Adams were in the car stopped by Officer Kaine. During the stop Officer Kaine handcuffed Carter and put him in the back of his squad car while he spoke with Adams and Barr, who remained in their vehicle. While investigating Officer Kaine realized that the tipster had been mistaken: no robbery had occurred, nor was one in progress. After he confirmed that no criminal activity was afoothe uncuffed Carter and sent the three individuals on their way. Following the incident, Carter, Barr, and Adams sued Officer Kaine, the other officers involved in the stop, and the City of Wauwatosa, asserting violations of their Fourth Amendment right to be free from unreasonable seizure. The case proceeded to trial and the jury found in favor of the defendants. On appeal, the plaintiffs contest the district judge’s decision to bifurcate the trial, the jury instructions, the exclusion of their police-practices expert, and the judge’s failure to recuse himself. The court foundno error in those rulings. The plaintiffs also appeal the district judge’s denial of their challenge to a peremptory strike under Batson v. Kentucky, 476 U.S. 79 (1986). Because the record is insufficient for the court to affirm the district judge’s denial of the Batson challenge, the court remanded the issue for additional findings by the district judge.
APPEAL/MALICIOUS PROSECUTION. The Ninth Circuit reversed and remanded Jeffrey Cogan v. Trabucco, 2024 U.S. App. LEXIS 21101 (9th Cir. Aug. 21, 2024). An attorney, Jeffrey Cogan, filed a federal lawsuit challenging an Arizona state court judgment against him for malicious prosecution. The state court judgment arose from Cogan's actions during a federal bankruptcy proceeding involving Arnaldo Trabucco. Cogan sought a declaration that the state court lacked jurisdiction over the malicious prosecution claim because it involved conduct exclusively within federal jurisdiction. The Arizona state court granted partial summary judgment against Cogan finding him liable for malicious prosecution and awarding $8 million in damages. Cogan appealed and the Arizona Court of Appeals affirmed the liability finding but vacated the damages award andremanded for a new trial on damages. Cogan then filed the federal lawsuit before the retrial arguing that the state court lacked jurisdiction. The district court dismissed Cogan's federal complaint under the Rooker-Feldman doctrine, which bars federal courts from reviewing state court judgments. The Ninth Circuit reviewed the case. The court held that the Rooker-Feldman doctrine did not apply because the malicious prosecution claim was completely preempted by federal law, falling within the exclusive jurisdiction of the federal courts. The court reasoned that state courts lack jurisdiction over malicious prosecution claims arising from federal bankruptcy proceedings, as established in MSR Exploration, Ltd. v. Meridian Oil, Inc. Therefore, the state court judgment was subject to collateral attack in federal court. The Ninth Circuit reversed the district court's dismissal and remanded the case for further proceedings allowing Cogan's challenge to the state court judgment to proceed in federal court.
APPEAL/IMMIGRATION. The Fifth Circuit vacated and remanded Collins Aben v. Garland, 2024 U.S. App. LEXIS 21042 (5th Cir. Aug. 20, 2024). Collins Enyong Aben is a native and citizen of Cameroon who entered the United States without valid entry documents and was placed in removal proceedings. He sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT), claiming persecution due to his political opinion and membership in several particular social groups. Aben testified that he was targeted by the Cameroonian military for treating separatist fighters as a nurse, leading to multiple arrests, beatings, and death threats. The Immigration Judge denied all relief citing the Third-Country Transit Bar and doubting Aben's credibility due to inconsistencies in his testimony. The IJ also found that Aben failed to establish past persecution or a well-founded fear of future persecution and that his harm was not politically motivated but due to his occupation as a nurse. The Board of Immigration Appeals (BIA) dismissed Aben's appeal assuming his credibility but agreeing with the IJ that he did not establish past persecution or a nexus to a protected ground. The BIA also found that Aben failed to corroborate his claims and that changed country conditions in Cameroon undermined his fear of future persecution. The Fifth Circuit reviewed the BIA's decision. The court found that the BIA failed to address key evidence including credible death threats and the imputation of a political opinion to Aben. The court held that the BIA's determinations regarding past persecution, nexus, and corroboration were not supported by substantial evidence. The court vacated the BIA's decision on Aben's asylum and withholding of removal claims and remanded for further proceedings. However, the court denied the petition for review regarding Aben's CAT claim finding that he had forfeited any challenge to the BIA's determination on that issue.
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