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Articles by Richard Resch

Fourth Circuit: Defendant Entitled to Discovery and Evidentiary Hearing on § 2255 Petition to Withdraw Guilty Plea Because It Was Not Knowingly and Voluntarily Made

by Richard Resch

The U.S. Court of Appeals for the Fourth Circuit vacated the U.S. District Court for the District of Maryland’s order and remanded for discovery and an evidentiary hearing on Kenyon Paylor’s petition to vacate his guilty plea, which alleged his plea was induced by egregious police misconduct ...

First Circuit Announces It Has Authority to Raise Claim of Error Sua Sponte for Violation of ‘Mandate Rule’ by Sentenc-ing Court on Remand

by Richard Resch

In a case of first impression, the U.S. Court of Appeals for the First Circuit held that it may raise sua sponte on appeal a claim of error not timely raised by the defendant where there was “a violation of the mandate rule.” The Court further held ...

Texas Court of Criminal Appeals Clarifies Application of ‘Estoppel’ in Plea Bargain Context and Holds Trial Court Lacked Jurisdiction to Revoke Community Supervision After Statutory Term Expired

by Richard Resch

The Court of Criminal Appeals of Texas held a trial court lacked jurisdiction to revoke community supervision where the violation occurred after the statutory maximum term of five years concluded, despite the fact he had been sentenced to a 10-year term.

Before the Court was the writ ...

Seventh Circuit Announces Procedures for Addressing ‘Facially Questionable Warrant’ Due to ‘Material Handwritten Alterations’ Unsigned or Initialed by Issuing Judge

by Richard Resch

In a case involving an issue of first impression, the U.S. Court of Appeals for the Seventh Circuit held that the U.S. District Court for the Southern District of Indiana erred by denying Russell Taylor’s motion to suppress and request for an evidentiary hearing to determine the ...

Colorado Supreme Court Announces ‘Self-Serving Hearsay’ Statements Introduced Under Rule of Completeness Not Hearsay and Do Not Render Defendant Impeachable

by Richard Resch

The Supreme Court of Colorado held that under Colorado Rule of Evidence (“CRE”) 106 if the prosecution creates a misleading impression by excluding statements made by the defendant that should be considered together with the proffered evidence out of fairness, the rule of completeness requires the ...

New York Court of Appeals Suppresses Evidence Because Police Lacked Reasonable Suspicion Necessary for Level 3 Stop and Frisk Under De Bour Framework

by Richard Resch

The Court of Appeals of New York ruled that the defendant (1) moving from the driver’s seat to the passenger’s seat, (2) positioning upper torso toward driver’s seat, (3) pulling pants up upon exiting vehicle, and (4) appearing nervous when questioned by police were insufficient to establish ...

D.C. Circuit Orders New Trial Due to Brady Violations Involving Source of Information, Not Withholding of Information Itself

by Richard Resch

The U.S. Court of Appeals for the D.C. Circuit held that the prosecution violated its Brady disclosure obligations by withholding multiple law enforcement reports from the defendant, even though most of the information within the reports was available to the defendant from other sources, because the reports ...

Wyoming Supreme Court Reverses ‘Contempt of Cop’ Conviction Because Police Were Not Lawfully Performing Their Official Duties

by Richard Resch

The Supreme Court of Wyoming ­reversed Myron Martize Woods’ conviction for interference with a peace officer because the arresting officers’ warrantless entry into his home, without any applicable exception, meant that they were acting unlawfully in effectuating his arrest, but an “elemental” requirement of this offense is that the police were lawfully performing their official duties. 

On February 13, 2020, Cheyenne Police Department Officer Warren was called to the home of Brittany Jackson for a domestic disturbance. Jackson claimed that Woods grabbed her neck and pushed her. Warren did not see any marks on Jackson’s neck, so he concluded that there was not probable cause to arrest Woods.

Approximately two hours later, Warrant and his supervisor, Sergeant Young, returned to Jackson’s home in response to her request for further investigation. This time, the officers observed marks on her neck and determined that there was probable cause to arrest Woods for misdemeanor domestic battery. Mistakenly believing that an arrest warrant was not required under Wyo. Stat. Ann. § 7-20-102(a) because the alleged offense occurred less than 24 hours ago, the officers did not attempt to obtain an arrest warrant for Woods.

Warren, Young, and a third officer arrived ...

SCOTUS Announces Proper Remedy for Venue and Vicinage Clause Violations Is Retrial in Proper Venue, Not Barring Retrial

by Richard Resch

The Supreme Court of the United States unanimously held that a conviction that is reversed based on a judicial determination that the Venue Clause and the Vicinage Clause of the Sixth Amendment were violated due to a trial held in an improper venue does not adjudicate the defendant’s culpability, and thus, the Double Jeopardy Clause of the Fifth Amendment is not triggered and does not prohibit retrying the defendant in the proper venue.

Timothy Smith is a software engineer and fishing enthusiast from Mobile, Alabama. In 2018, he came across a company called StrikeLines that utilizes sonar equipment to locate private, artificial reefs that people build to attract fish. The company sells the geographic coordinates of the reefs to interested fishing enthusiasts.

Smith apparently objected to this business model because StrikeLines was profiting, unfairly in his opinion, from the work of private reef builders. He used an application to secretly obtain portions of the company’s reef coordinate data and offered it to others online. StrikeLines eventually contacted him, and Smith offered to remove the online data as well as fix the company’s security flaws in exchange for coordinates to “deep grouper spots” that he was unable to ...

SCOTUS Announces § 924(c)(1)(D)(ii)’s Consecutive Sentence Mandate Not Applicable to § 924(j) Sentences

by Richard Resch

In a unanimous decision, the Supreme Court of the United States held that § 924(c)(1)(D)(ii)’s prohibition on concurrent sentences does not extend to sentences imposed under a different subsection of the statute, viz., § 924(j), and thus, when multiple convictions – including a § 924(j) conviction – are involved, sentencing courts are free to run the sentences concurrently or consecutively.

In 2002, a group engaged in drug-dealing murdered a rival dealer. Efrain Lora was accused of serving as a lookout during the shooting. He was convicted of aiding and abetting in violation of 18 U.S.C. § 924(j)(1), which criminalizes the actions of a “person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm,” where the death is the result of murder. Lora was also convicted of conspiracy to distribute drugs in violation of 21 U.S.C. §§ 841 and 846.

During sentencing, Lora argued that the U.S. District Court for the Southern District of New York had discretion to run his § 924(j) concurrently with his conspiracy sentence, but the District Court ruled that it did not have the discretion to run the sentences concurrently. ...

 

 

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