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Criminal Law & Procedure

[03/18] US v. Rocha
Defendant's convictions for (1) assault committed by means of force likely to produce great bodily injury under California Penal Code section 245, as assimilated into federal law by the Assimilated Crimes Act and (2) assault with a dangerous weapon under the federal assault statute, are reversed where: 1) the federal assault statute precluded application of California Penal Code section 245; and 2) the evidence presented to the jury that defendant used his bare hands to perpetrate the assault could not support a conviction under the federal assault statute for assault with a dangerous weapon.

[03/18] Golden & Zimmerman, LLC v. Domenech
In an action against the ATF, seeking a judgment declaring that an answer to one of the frequently asked questions in the ATF's published "Federal Firearms Regulations Reference Guide 2005" is inconsistent with the Gun Control Act, district court's dismissal for lack of subject matter jurisdiction is affirmed as the Reference Guide is simply informational and its publication is neither "agency action" nor "final agency action," as necessary for judicial review under the APA.

[03/17] Tully v. Barada
In plaintiff's 42 U.S.C. section 1983 suit claiming defendants violated his rights under the Fourth and Fourteenth Amendments by summoning him to court and initiating juvenile proceedings without probable cause, district court's dismissal of the case for failure to state a claim upon which relief can be granted is affirmed as a plaintiff cannot initiate a section 1983 claim asserting only that he was summoned and prosecuted without probable cause.

[03/17] T.E. v. Grindle
In a 42 U.S.C. section 1983 suit against an elementary principal and the school district's band teacher arising from molestation of several young girls by the band teacher, district court's denial of the principal's motion for summary judgment on qualified immunity grounds is affirmed as the plaintiffs have put forth evidence which, if credited by the jury, is sufficient to create liability under the clearly established law.

[03/17] US v. Ray
In proceedings involving defendant's motion for a lower sentence for his crack cocaine possession, district court's denial on the ground that defendant's 263-month sentence was not based on the Guidelines and that, as a result, defendant could not bring the motion is affirmed as, in the absence of explicit language in the agreement to the contrary, a sentence imposed pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement cannot be said to be "based on" the Sentencing Guidelines. An agreement must clearly reflect an intent that the sentence be modified when the Guidelines shift, and here, defendant's plea agreement did not reflect such an intent.

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