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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.

[03/09] US v. Salem
In a prosecution of defendants for wire fraud and receiving stolen funds, district court's sentences based on relevant conduct findings are remanded as the district court made findings as to the reasonableness of the co-schemers' acts only, but it made no finding as to the scope of the jointly undertaken criminal activity under U.S.S.G. section 1B1.3(a)(1)(B).

[03/09] Redd v. Wright
In a 42 U.S.C. section 1983 action arising out of plaintiff inmate's confinement in tuberculosis hold following his refusal to submit to tuberculosis testing, summary judgment for defendants is affirmed where: 1) prior precedent did not "clearly foreshadow" a holding that the testing policy, as applied in this case, violated plaintiff's Free Exercise rights; 2) it could not reasonably be said that defendants acted in violation of clearly established Eighth Amendment law by implementing the policy; and 3) it was not clearly established that plaintiff was entitled to some kind of notice that religious objectors could be exempt from the policy.

[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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