FEDERAL DEFENDER'S MESSAGE

Attorney Atticus Finch, like you, accepted court appointed cases. His most famous case involved one of the most heinous of crimes. The people in the community in which he lived had preconceived ideas about the guilt of his client. He was faced with hatred and bigotry. He picked a jury. Presented a logical and well-planned case. A brilliant defense. As usual, he tried his best, fought as hard as he could and gave an inspired closing argument. But his client was convicted. Before an appeal could be launched, his client was killed while trying to "escape".

Atticus Finch was devastated. Not only had he failed to get an acquittal for his client, the jury system had failed. It had broken down. Because of bigotry and hatred, justice had not been done. And his client was dead. At the depth of his depression, a friend consoled Atticus with words to this effect: "...You are a man born to perform societies difficult and unpleasant tasks." What a nice way to explain what we criminal defense lawyers do, almost on a daily basis.

So, with these words in mind, on behalf of our Federal Judiciary and the Federal Defender's Office, I thank you, our CJA Panel Attorneys, for your work in 1997 and thank you in advance for your continued acceptance of difficult cases - representing the indigent - in 1998.

This issue of our newsletter contains a timely article about the Nichols trial written by my nephew, James M. Murphy, a defense lawyer and CJA Panel Attorney in Dallas, Texas, who has, in the past, tried several cases in the Central District of Illinois. He, like his uncle, hails from the Soy Bean Capital of the World - Taylorville, Illinois. James graduated from the University of Illinois School of Business with a degree in accounting and was a law review editor at the University of Oklahoma School of Law. He intends to expand this month's article and submit it to the Oklahoma Law Review.

Senior Litigator George Taseff begins the new year by presenting a new series entitled "Big George's CA7 Digest". This issue's presentation includes a synopsis of all 7th Circuit criminal opinions for December 1997. This column will become a permanent part of The Backbencher in 1998.

We are also pleased to once again present you with a years "round up" of Reversible Error, the usual scintillating Dictum Du Jour, Sentencing Guideline Grapevine, another timely article by Assistant Federal Defender David Mote, as well as Churchilliana.

I am especially pleased with this issue of The Backbencher. I hope you are, too. Wishing you a happy new year, I remain . . .

Sincerely yours,

Richard H. Parsons

Federal Public Defender

Issue Preclusion, U.S. v. Terry Nichols 2

Churchilliana 7

Dictum Du Jour 7

Appealing Issues 8

Big George's CA7 Case Digest, December 1997 10

Assistance From The Sentencing Guidelines Group 13

Recent Sentencing Law 14

Reversible Error 15

3REMINDER! 3

In just about 34 days we will once again be celebrating one of the best holidays of the year - St. Patrick's Day - a day devoted to remembering the Patron Saint of Ireland and all that the Irish stand for. In honor of this - and as a tribute to The Irish Brigade at Gettysburg - let us join together and raise our voices to their famous battle cry "Faugh a Ballaugh!" (Clear the Way!).

In 1941, Prime Minister Winston Churchill visited General Montgomery. After a morning session of inspecting troops, the prime minister offered a nip of whiskey.

Monty refused, pounding his chest with the boast, "I neither drink nor smoke and I'm one hundred percent fit."

Churchill put down his cigar and lifted his glass, replying, "I both drink and smoke and I'm two hundred percent fit."

Dictum Du Jour

"If I were of the view that Terry was (insofar as the power to 'frisk' is concerned) incorrectly decided, I might--even if I felt bound to adhere to that case--vote to exclude the evidence incidentally discovered, on the theory that half a constitutional guarantee is better than none. I might also vote to exclude it if I agreed with the original-meaning-is-irrelevant, good-policy-is-constitutional school of jurisprudence that the Terry opinion represents. As a policy matter, it may be desirable to permit 'frisks' for weapons, but not to encourage 'frisks' for drugs by admitting evidence other than weapons."

Minnesota v. Dickerson, 508 U.S. 366, 382 (1993) (Scalia, J., concurring).

"A mother, on behalf of her teenage son, claims that his three-day suspension from high school for using a chain saw and a boa constrictor to disrupt a school assembly violated his Constitutional rights of due process and equal protection."

Smith v. Severn, 129 F.3d 419 (7th Cir. 1997) (summary judgment for defendants affirmed).

"Ordinarily, it's not a good idea to carry a wad of cash in your pocket. It's especially ill-advised to do so when you're on federal supervised release, have missed several drug tests after flunking one, and have a warrant out for your arrest."

United States v. Embry, 128 F.3d 584 (7th Cir. 1997) (beginning of opinion affirming order that $1,010 seized from defendant be turned over to the Treasury as reimbursement for the cost of court-appointed counsel).

"We also find the testimony of defense witness Ben McMechem incredible, as did the district judge. Mr. McMechem testified that based on his thirty years of experience he did not believe that special skill was required to safely pilot a boat from the Bahamas to Florida. He testified that one could do so by sailing toward the setting sun or by merely following beer cans. Assuming for the sake of argument that one might be able to come ashore somewhere in Florida by following either these [sic] ill-advised methods, the evidence shows that appellants were interested in accomplishing a much more refined landing at a predetermined location. We very much doubt that this trail of beer cans would lead to the prearranged site for the off loading of the illicit cargo or, even if it did, that appellants would be able to follow it at night without lights. To suggest that the coconspirator would entrust a boat loaded with millions of dollars worth of cocaine to captains who had no more skill in navigating a boat in the Atlantic Ocean than someone directly off the street, especially given all the anti-detection measures required on a voyage such as this, is, as the district judge aptly put it, 'ludicrous' and 'off-the-wall bizarre.'"

United States v. Calderon, 127 F.3d 1314, 1340 (11th Cir. 1997)(record citations omitted).

"Robert Smith pled guilty to the murder of Michael Wedmore under a plea bargain that called for the death sentence. Over Smith's objection, we have reviewed his case to assure that the sentence is a proper one. We now affirm."

"Smith stated, against the adamant advice of his counsel, that he was willing to plead guilty if the State would draw up a plea agreement under which Smith would receive the death penalty."

"After a recess, the State submitted a "Negotiated Plea Agreement" signed by Smith which provided that Smith would plead guilty to murder in exchange for the State's recommending the death penalty and dropping the conspiracy charge."

"While most people consider death the ultimate penalty, some murderers faced with life imprisonment may rationally disagree, perhaps more so when they, like Smith, know that such a sentence would include an extended stay in solitary. [Footnote: The record indicates that Smith faced at least four years in solitary confinement ... if he were given a term of years.]"

"We also affirm the trial court's finding that Smith's plea was voluntary. The evidence does not indicate that Smith's will was overborne by his placement in solitary. His decision was the product of a choice between two (legal) evils."

Smith v. Indiana, 686 N.E.2d 1264 (Ind. 1997).

"The United States Supreme Court has not reviewed a method of execution under the federal constitution in over a hundred years and the lower federal courts are in disaccord in this area, offering scant guidance to the states."

"In light of recent malfunctions in Florida's electric chair, this method of execution, in my opinion, entails unnecessary violence and mutilation and thus is unconstitutionally cruel on its face--not unlike the guillotine which was abandoned years ago in its country of origin, France, notwithstanding its efficiency in getting the grisly job done with dispatch and minimal pain."

"The State points out that during the intervening years between the Tafero and Medina executions, sixteen prisoners were executed without incident. This record in my opinion is inadequate to save Florida's electric chair from the constitutional dustheap. The bottom line is inexorable: In two out of eighteen executions, i.e., in eleven percent of executions, carried out during this relatively brief period, the condemned prisoner was engulfed in smoke, flames, and the odor of burning material--which some observers described as the stench of burning or roasting flesh--when the switch was pulled. *** These deaths were sufficiently egregious to halt further executions and to prompt an extensive official inquiry."

"[I]n short, only four governments in the entire world (Alabama, Florida, Georgia and Nebraska) impose electrocution exclusively; as a postscript--both the Humane Society of the United States and the American Veterinarian Medical Association condemn electrocution as a method of euthanasia for animals."

"Florida's electric chair, by its own track record, has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein that the death chamber of Florida State Prison."

Jones v. Florida, 701 So.2d 76 (Fla. 1997)(Shaw, J. dissenting in a 4-3 decision upholding the constitutionality of electrocution in Florida's electric chair)(footnotes omitted).

Generally speaking, there is little difference between representing a client on a court appointment and representing a client on a retainer. There are occasional differences, however. One is the occasional slight appointed counsel receives, such as when the client's family asks you whether they should hire him an attorney. Another difference is that an accused with appointed counsel often has no reason not to appeal since it costs him nothing to appeal. When the client has a meritorious issue on appeal, appointed counsel can recommend the client appeal without having to worry about how he will be paid. The downside is that the client with appointed counsel may insist on appealing even when his counsel advises him he has no viable issues. This article highlights a few issues relevant to appeals, particularly in appointed cases.

An immensely valuable resource for counsel handling federal appeals is the Practitioner's Handbook For Appeals to the United States Court Of Appeals for the Seventh Circuit copies of which can be obtained from the Seventh Circuit Clerk's Office.

One issue counsel should be careful of in the Seventh Circuit is the contents of the appendix to the appellate brief. Circuit Rule 30 sets forth the required contents for an appendix. See In re Galvan, 92 F.3d 582 (7th Cir. 1996)(discussing Circuit Rule 30). The Seventh Circuit has both chastised and issued rules to show cause to counsel in criminal cases for failing to include the required materials in the appendix. The errors causing the most frequent grief are the omission of the judgment or order being appealed, the omission of other orders relating to the issues counsel is raising and the omission of excerpts of the transcript relating to the issues being raised. See, e.g., Woodruff v. United States, 1997 WL 768941 (7th Cir. 1997)(findings at evidentiary hearing omitted from appendix); United States v. Wallace, 114 F.3d 652 (7th Cir. 1997)(failure to include relevant portions of sentencing transcript). A few minutes reviewing Circuit Rule 30 when finalizing your appendix can save you a lot of stress later.

One difficulty faced by appointed counsel is how to proceed when a client who has no arguable issues to appeal insists on appealing. Appointed counsel are required to continue representing the client on appeal unless relieved of that duty by the Court of Appeals. Circuit Rule 4. Section XIII(E) of the Practitioner's Handbook (p.54), mentioned above, and Fed. R. App. P. 38 and Circuit Rule 38 require that all appeals and arguments be well grounded and provide for sanctions for making frivolous arguments or filing frivolous appeals. If there is no non-frivolous issue and the client insists on appealing, counsel must file a motion to withdraw and a brief in accordance with Anders v. California, 386 U.S. 738 (1967). In that case, counsel is supposed to discuss all possible issues and explain why they are frivolous. Personally, I consider the number of frivolous issues theoretically limitless. A pragmatic approach is to discuss the issue of guilt (e.g., that a guilty plea waives issues relating to guilt and the appellant has not sought to withdraw the plea), the sentence (e.g., the case law indicating that the court of appeals won't review where within the guideline range the district court imposes sentence), all issues counsel unsuccessfully argued or researched before concluding the issues were frivolous (e.g., the Seventh Circuit has held that a firearm without a firing pin is still considered a firearm) and all issues the client believes should be raised on appeal (e.g., that defendant's argument that considering his prior conviction in determining his sentence is double jeopardy has been previously been rejected). Counsel cannot argue the frivolous issues as if they had merit; rather, he must discuss what the possible issues are and why they are frivolous. See United States v. Tabb, 125 F.3d 583 (7th Cir. 1997). If defense counsel's Anders brief is adequate on its face, the Seventh Circuit will limit its review to the issues raised in the brief. See United States v. Wagner, 103 F.3d 551 (7th Cir. 1996). Counsel should, of course, carefully review the record in an effort to find some arguable issue of the client wishes to appeal. In any case that has gone to trial, there is likely to be some non-frivolous argument to be made regarding a pre-trial or evidentiary ruling, improper closing argument or the calculation of the sentencing guidelines. When, however, a client has pled guilty, had no objections to the pre-sentence report, received the bottom of the guideline range or a downward departure and insists on appealing, an Anders brief may well be unavoidable.

Appointed counsel's duties following the denial of an appeal are discussed in section V of The Plan of the United States Court of Appeals for the Seventh Circuit to Supplement the Plans of the Several United States District Courts within the Seventh Circuit (Practitioner's Handbook p. 234, 237-38). Section V provides, in part:

3. After an adverse decision on appeal by this Court, appointed counsel shall advise the defendant in writing of his right to seek review of such decision by the Supreme Court of the United States. If, after consultation (by correspondence, or otherwise), the represented person requests it and there are reasonable grounds for counsel properly to do so, the appointed attorney must prepare and file a petition for writ of certiorari and other necessary and appropriate documents and must continue to represent the defendant until relieved by the Supreme Court. Counsel who conclude that reasonable ground for filing a petition for writ of certiorari do not exist must promptly inform the defendant, who may by motion request this court to direct counsel to seek certiorari.

Appointed counsel are far more likely than retained counsel to be asked to take a case "all the way to the Supreme Court." This can be a cumbersome burden or an exciting challenge. Unless otherwise provided by statute, a petition for certiorari must be filed within 90 days after entry of the judgment sought to be reviewed. Supreme Court Rule 13. Although it is not clear from the paragraph quoted above, if counsel believes there is no non-frivolous basis to petition for certiorari and the client insists counsel file the petition, counsel should file a motion to withdraw in the Seventh Circuit Court of Appeals. Cf., Austin v. United States, 513 U.S. 5 (1994)(suggesting that circuit court rules should be changed so as not to require counsel to file petitions for certiorari on frivolous claims). If counsel does file a petition for certiorari, counsel must notify the Clerk of the Court for the Seventh Circuit of the mailing or filing of the petition. Circuit Rule 41(e). While counsel considering a petition for certiorari should review the Rules of the Supreme Court generally, Rule 10 should be read and re-read even before communicating with the client about whether to seek certiorari. That rule states:

Rule 10. Considerations Governing Review on Certiorari

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

Under Rule 10, an issue that is hopeless or frivolous in the Seventh Circuit may have merit in a petition for certiorari--for example, when your client loses under a settled Seventh Circuit ruling that is in conflict with rulings from other circuits. Conversely, a legitimate suppression issue in the Seventh Circuit may have no promise as an issue for certiorari if based wholly on factual findings.

By: George Taseff

Senior Litigator

U.S. v. Richardson, Nos. 95-3053, 95-3054, 96-2551, 96-2587, 96-2591, 96-2644, 96-2682 & 96-3197, Cons. (11/14/97). Appeal, N.D. Ill., E. Div. Aff'd.

In prosecution for charge of conspiracy to distribute various drugs, Dist. Ct. did not err in denying Defendant's motion for bill of particulars as to identity of co-conspirators. Defendant entitled only to know offense with which he is charged and not all details of how it will be proved; indictment informed Defendant as to identity of drugs and government's theory of conspiracy. 19 pp.

U.S. v. Richardson, Nos. 95-3053, 95-3054, 96-2551, 96-2587, 96-2591, 96-2644, 96-2682 & 96-3197, Cons. (11/14/97). Appeal, N.D. Ill., E. Div. Aff'd.

In prosecution for charge of conspiracy to distribute various drugs, evidence supported jury's verdict that Defendants participated in one large conspiracy covering various aspects of drug distribution and sales, as alleged in indictment, as opposed to several smaller conspiracies. No requirement that conspiracy achieve monopoly of drug sales in order to exist; fact evidence showed some co-conspirators sold drugs on behalf of others not involved in conspiracy not fatal variance in indictment charging one conspiracy. 19 pp.

U.S. v. Earnest, No. 97-1222 (11/14/97). Appeal, S.D. Ill. Aff'd. in part and rem'd in part.

Defendant failed to establish Brady, 373 U.S. 83, violation regarding requests by Defendant that prosecutor produce traffic ticket prior to trial. Although Defendant claimed ticket could provide impeachment evidence as to one of government's witnesses, Defendant failed to show either that prosecutor possessed ticket at time of Defendant's request, or that information contained in ticket as to time witness in Chicago contrary to testimony given by witness at trial. 16 pp.

U.S. v. Wingate, No. 96-4035 (11/5/97). Appeal, N.D. Ind., Hammond Div. Aff'd.

Defendant's 4-month suspension imposed by govt. employer not functional equivalent of "punishment" so as to bar on double jeopardy grounds government's prosecution for mail and wire fraud and harboring alien. Law of Halper, 490 U.S. 435, which found fixed monetary sanctions exceeding amount making government whole to be separate "punishment" in constitutional sense, inapplicable in employment contexts. Suspension of job only a remedial measure such that government employer may both suspend and prosecute its employees for official misconduct. 9 pp.

U.S. v. Senn, Nos. 96-3373, 96-3374, 96-3375, 96-3438 & 96-3484, Cons. (11/6/97). Appeal, N.D. Ill., E. Div. Aff'd in part, vac'd in part and rem'd.

1. District Court properly denied Defendant's request for hearing under Brady, 373 U.S. 83, due to government's failure to tender complete criminal file of government witness. Government did not "suppress" evidence since Defendant could have obtained complete criminal file though exercise of reasonable diligence. Missing portion of file, concerning only additional impeachment evidence, would not have changed outcome of trial.

2. District Court did not err in denying Defendant's request to introduce tape to show govt. witness into drugs deeper than what he admitted on direct examination. Subject matter of tape concerned only collateral post-conspiracy facts; witness fabrication about post-conviction conduct did not establish motive to fabricate regarding conduct during conspiracy. 20 pp.

U.S. v. Wingate, No. 96-4035 (11/5/97). Appeal, N.D. Ind., Hammond Div. Aff'd.

In prosecution for mail and wire fraud and harboring alien, Dist. Ct. did not err in admitting into evidence stipulation entered into by Defendant's prior counsel at first trial regarding certain INS records pertaining to alien. Stipulation once made is binding unless Defendant can show stipulation entered through inadvertence or erroneous view of facts of law; Defendant failed to show he made mistake as to facts or law of case. 9 pp.

U.S. v. Lack, No. 97-1467 (11/4/97). Appeal, W.D. Wisc. Aff'd.

In prosecution for mail fraud under 18 USC §1341, government need not show mails essential part of scheme, but only incident to essential part or step in scheme. Dist. Ct. properly found Defendant guilty of mail fraud; although Defendant already acquired funds from victim when he deposited funds into bank account, sending of statement by bank helped Defendant conceal scheme. 10 pp.

Winsett v. Washington, No. 94-2891 (11/18/97). Appeal, N.D. Ill., E. Div. Aff'd.

Where petitioner claimed in habeas petition that trial court erred in denying motion in limine to exclude statements as "fruit of poisonous tree" after finding such statements gathered after petitioner invoked right to counsel in violation of Miranda, 384 U.S. 436, petition properly denied court found such statements could be used as impeachment evidence because not involuntary; petitioner failed to raise voluntariness of statements in District Court; and petitioner's argument, that Miranda violation alone requires suppression of all derivative evidence, would create new law in contravention of rule set forth in Teague, 487 U.S. 288. 18 pp.

PROSECUTORIAL MISCONDUCT

U.S. v. Richardson, Nos. 95-3053, 95-3054, 96-2551, 96-2587, 96-2591, 96-2644, 96-2682 & 96-3197, Cons. (11/14/97). Appeal, N.D. Ill., E. Div. Aff'd.

Although prosecutor improperly vouched for credibility of government's witnesses during closing arguments in prosecution of drug conspiracy charges, such comments did not deprive Defendants of fair trial since weight of evidence against Defendants, District Court gave curative instructions, and comments isolated. 19 pp.

U.S. v. Martin, No. 96-3717 (11/13/97). Appeal, N.D. Ill., E. Div. Aff'd.

District Court did not err in ordering Defendant to pay $9,500 in partial restitution as part of sentence for conspiracy to defraud governmental agency which was proper "victim" under Victim and Witness Protection Act. Nor did court err in requiring Defendant to pay restitution even though record indicated Defendant had no funds outside $9,500 previously seized by government. 8 pp.

U.S. v. Dawn, No. 96-3585 (11/4/97). Appeal, W.D. Wisc. Aff'd.

District Court did not err in cross-referencing USSG applicable to production of child pornography in Defendant's conviction for receipt and possession of pornography involving minors. Defendant actually produced child pornography at issue in receipt and possession convictions; fact production occurred outside U.S. immaterial since production itself sheds light on gravity of conduct for which Defendant convicted. 11 pp.

U.S. v. Earnest, No. 97-1222 (11/14/97). Appeal, S.D. Ill. Aff'd. in part and rem'd. in part.

Defendant entitled to new sentencing hearing to determine whether drugs seized by police either crack cocaine or merely cocaine base since: sentencing enhancement given to Defendant under USSG §2D1.1 proper only if record shows drug at issue was crack; lab results indicated only that substance consisted of cocaine base. Court further required on remand to consider whether sentencing issue waived since Defendant, counsel, witnesses and court made multiple references to substance as crack cocaine at trial. 16 pp.

U.S. v. Ewing, No. 97-1933 (11/18/97). Appeal, W.D. Wisc. Aff'd.

1. District Court did not err in enhancing Defendant's sentence for possession of stolen credit cards under USSG §3C1.1 on obstruction of justice grounds. Court could construe letter Defendant sent to co-defendant urging her to be "real convincing" in minimizing Defendant's involvement in case as attempt to have co-defendant lie about facts of case.

2. Although Defendant pleaded guilty one day before start of trial, Defendant's plea did not require reduction in sentence level under USSG §3E1.1(a) since: Court previously found Defendant guilty of obstruction of justice; and entry of guilty plea prior to trial does not mandate reduction under USSG. 10 pp.

U.S. v. Richardson, Nos. 95-3053, 95-3054, 96-2551, 96-2587, 96-2591, 96-2644, 96-2682 & 96-3197, Cons. (11/14/97). Appeal, N.D. Ill., E. Div. Aff'd.

Fact specific quantities of drugs not alleged in indictment did not preclude District Court from enhancing sentences of Defendants under 21 USC §841(b). Drug quantities need not be alleged in indictment in order for enhanced penalty provisions to apply since quantity of drugs is sentencing factor rather than element of offense. 19 pp.

U.S. v. Saunders, No. 97-1098 (11/18/97). Appeal, C.D. Ill. Aff'd.

District Court did not err in enhancing Defendant's offense level for mail fraud five levels under USSG §2F1.1(b)(1) based upon finding victims suffered $55,514.74 in losses. While Defendant repaid all victims with interest by time of sentencing, Defendant cannot reduce amount of loss for purposes of sentencing by offering to make restitution after he is caught; court properly found Defendant intended to defraud victims at time of discovery of fraud. 12 pp.

U.S. v. Senn, Nos. 96-3373, 96-3374, 96-3375, 96-3438 & 96-3484, Cons. (11/6/97). Appeal, N.D. Ill., E. Div. Aff'd in part, vacated in part and rem'd.

District Court erred in enhancing Defendant's sentence based upon finding of obstruction of justice under USSG §3C1.1. Under Parker, 25 F.3d 442, Defendant's lying as to some details of involvement in conspiracy not "material" since Defendant previously admitted guilt as to all elements of charged crime. 20 pp.

U.S. v. Thompson, No. 94-1979 (10/15/97). Appeal, S.D. Ill. Aff'd.

District Court did not err in enhancing Defendant's sentence for conspiracy to distribute cocaine under USSG §3C1.1 for obstruction of justice. Court made required findings that Defendant's trial testimony not believable and was contrary to credible testimony of government's witnesses. 4 pp.

U.S. v. Withers, No. 96-1276 (11/7/97). Appeal, N.D. Ill., E. Div. Aff'd.

In sentencing Defendant to prison term and new term of supervised release for violation of terms of original supervised release, District Court properly rejected Defendant's contention that new term of supervised release pursuant to 18 USC §3583(h) violated ex post facto clause because current version of §3583(h) not enacted at time of Defendant's original sentence. In overruling Beals, 87 F.3d 854, Appellate Court found retroactive application of §3583(h) did not violate ex post facto clause since application of current law did not increase Defendant's punishment; District Court could have imposed prison term for violation of supervised release for entire term of supervised release under both old and current law. 8 pp.

U.S. v. Lack, No. 97-1467 (11/4/97). Appeal, W.D. Wisc. Aff'd.

In prosecution for interstate transportation of stolen checks under 18 USC §2314, District Court properly found Defendant "wilfully caused" bank to send checks across state lines even though bank's actions without knowledge of Defendant. Causation element satisfied where Defendant's deposit of stolen checks caused checks to be transported in interstate commerce in regular course of collection process; conviction does not require Defendant to personally mail or transport stolen item. 10 pp

U.S. v. Coronado-Navarro, No. 96-3345 (10/20/97). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

In prosecution for charge of being alien in U.S. after prior deportation order by failing to file pretrial motion to dismiss indictment as directed by District Court, Court could properly view Defendant's attempt to attack deportation at trial as untimely given Defendant's prior representation of intention to file pretrial motion to dismiss, and his failure to comply with scheduling order established for purpose of having issue raised before trial. 7 pp.

U.S. v. Hicks, No. 96-3591A (Amended op., 11/3/97). Appeal, S.D. Ill. Dism'd.

Waiver of right to appeal sentence clause in plea agreement precluded Defendant from raising sentencing issues on appeal. Although Defendant claimed government breached plea agreement by recommending only two-step reduction instead of three- step reduction mentioned in agreement, Defendant waived argument by failing to raise issue in District Court (Dissent filed.) 8 pp.

Assistance From

The Sentencing Guidelines Group

Over the past few months the Sentencing Guidelines Group has been evaluating how well it is meeting the needs of the Federal Defender community and CJA Panel attorneys. As a result, the Group will disseminate information about sentencing matters, capital litigation issues, and other relevant matters such as the status of crime legislation in Congress.

In this issue, we provide you with the following materials which were received from The Group:

"Bailey-fix"update - On November 13, 1997, the Senate passed S.191, "an act to throttle criminal use of guns." The legislation responds to the decision in Bailey v. United States, 116 S.Ct. 501 (1995), by revising 18 U.S.C. §924(c) to include as prohibited conduct possessing a firearm in furtherance of a crime of violence or drug trafficking offense. The revised version of 18 U.S.C. §924(c) would also increase the penalty for a second offense to 24 years imprisonment. The House will act on the bill sometime this year.

The House appears to be taking a different approach. On October 24, 1997, the House Judiciary Committee reported H.R. 424, "a bill to provide for increased mandatory minimum sentences for criminals possessing firearms, and for other purposes." The revised version of 18 U.S.C. §924(c) would provide a ten-year minimum consecutive sentence for possessing a firearm in furtherance of a crime; a fifteen-year minimum consecutive sentence for brandishing a firearm; and a 20-year minimum consecutive sentence for discharging a firearm.

Summary of S.10 - On October 9, 1997, the Senate Judiciary Committee reported S.10, the "Violent and Repeat Juvenile Offender Act of 1997", as reported by the Senate Judiciary Committee on October 9, 1997. The Senate will act on the bill sometime this year. Most of the provisions of S.10 deal with federal and state prosecutions of juveniles, but Title V contains a number of miscellaneous provisions, including increased penalties for certain firearms offenses.

If you would like copies of either one or both of these materials, please contact CJA Panel Administrator Mary Kedzior at the Federal Defender's Office in Peoria at 309/671-7891.

The Sentencing Guidelines Group maintains a toll-free number (1-800/788-9908) to answer sentencing questions. They receive calls primarily from CJA panel attorneys who range from experienced criminal law practitioners with limited federal practice, to first-timers. They are willing to answer any questions you may have regarding the sentencing guidelines.

The Group can also be contacted via the internet at the following web site: "http://adams.patriot.net./

~fedpubdf/fpd/sentence/sentence.htm" This site is maintained primarily for the benefit of panel attorneys and contains, among other things, pending amendments, training materials that the Group uses, and other sentencing information.

Recent Developments In Sentencing Law

The following case synopsis are excerpts from The Guideline Grapevine which should be of interest to CJA attorneys in this District. This type of information will be sent to you on a regular basis. Your comments and/or suggestions would be appreciated.

DISTRICT COURT ERRED IN NOT GROUPING MAIL FRAUD AND MONEY LAUNDERING (CIRCUIT SPLIT). United States v. Emerson, No. 96-3166, 1997 WL 643634 (7th Cir. Oct. 20, 1997) (the defendant was convicted of various fraud offenses and money laundering; the district court counted the fraud offenses and the money laundering as separate groups and increased the offense level accordingly; reversed; the laundered money was proceeds of the fraud and the money laundering was part of the method of concealing the fraud; without the fraud there would have been no money laundering; because both were essentially the same course of conduct, they should have been grouped together.)

PARTIAL RESTITUTION BEFORE TRIAL DID NOT CONSTITUTE ACCEPTANCE OF RESPONSIBILITY. United States v. Yoon, No. 96-2943, 1997 WL 634185 (7th Cir. Oct. 15, 1997) (the defendant was convicted of check kiting; over $20 million worth of checks were kited by her and her husband; on appeal she argued the district court should have reduced her offense level for acceptance of responsibility based on her partial restitution before trial; affirmed; the court of appeals distinguished United States v. Bean, 18 F.3d 1367 (7th Cir. 1994), in which the defendant was awarded a reduction for acceptance based on pretrial restitution; here, the defendant's restitution amounted to less than one-fourth of the banks' actual loss; moreover, throughout the trial and at sentencing, the defendant maintained her ignorance as to the extent of the fraud despite evidence to the contrary.)

DEFENDANT WAIVED APPEAL IN PLEA AGREEMENT AND BY NOT RAISING A CLAIM OF BREACH AT SENTENCING. United States v. Hicks, No. 96-3591, 1997 WL 663136 (7th Cir. Oct. 27, 1997) (the defendant pled guilty and appealed the district court's failure to award the third level reduction for acceptance of responsibility; affirmed; defendant agreed in the plea agreement not to appeal his sentence; his argument on appeal that the government breached the plea agreement by not recommending the third level did not save the waiver; he could have appealed a properly preserved claim of breach; however, he did not make the claim in district court and could not make it for the first time on appeal.)

INCREASE FOR MULTIPLE VICTIMS WAS NOT DOUBLE COUNTING. See United States v. Moore, No. 97-1390, 1997 WL 656734 (7th Cir. Oct. 21, 1997), OFFENSES, §2F1.1, infra.

SECTION 2A3.1 PROPERLY APPLIED WHEN DEFENDANTS REPEATEDLY RAPED VICTIMS. See United States v. Vang, No. 96-4041, 1997 WL 659666 (7th Cir. Oct. 23, 1997), SELECTION OF APPLICABLE GUIDELINE, infra.

SECTION 2A3.1 PROPERLY APPLIED WHEN DEFENDANTS REPEATEDLY RAPED VICTIMS. See United States v. Vang, No. 96-4041, 1997 WL 659666 (7th Cir. Oct. 23, 1997), SELECTION OF APPLICABLE GUIDELINE, infra.

FORCING BANK EMPLOYEE FROM PARKING LOT INTO BANK WAS ABDUCTION. United States v. Taylor, No. 97-1488, 1997 WL 678165 (7th Cir. Oct. 28, 1997) (the defendants were convicted of bank robbery and appealed the increase in their offense levels for abduction under §2B3.1(b)(4)(A); affirmed; the record indicated that the defendants accosted a bank employee outside the bank and forced her inside, dragging her by the hair; the facts were materially indistinguishable from United States v. Davis, 48 F.3d 277 (7th Cir. 1995), in which the court held that forcing a manager into the bank was abduction for the purposes of the guideline; the defendants' attempts to distinguish Davis by arguing that they were convicted of violating 18 U.S.C. §§§2113(a) and (d) while Davis involved 2213(e) and that they did not parade anyone around the bank as occurred in Davis was unconvincing; the four level increase was not error.)

INCREASE FOR PILOT, CAPTAIN, NAVIGATOR, ETC., DOES NOT REQUIRE PROOF OF SPECIAL SKILL. United States v. Senn, No. 96-3373, 1997 WL 691074 (7th Cir. Nov. 6, 1997) (the defendant was convicted of various fraud and drug offenses; he appealed the 2 level increase in offense level under §2D1.1(b)(2)(B) as the captain or navigator of a boat, arguing the government had not shown he possessed any special skill to pilot a boat; affirmed; if special skill was required, the increase would be mere surplusage, because §3B1.3 provides for an increase for the use of a special skill; the increase here would be meaningless and that interpretation would defy logic; the facts indicated that the defendant definitely acted as the captain of a boat carrying drugs and the increase was proper.)

Offenses Involving Fraud or Deceit

INCREASE FOR MULTIPLE VICTIMS WAS NOT DOUBLE COUNTING. United States v. Moore, No. 97-1390, 1997 WL 656734 (7th Cir. Oct. 21, 1997) (the defendant was convicted of fraud and appealed the increase for multiple victims; he argued this was double counting because his offense level was substantially increased based on the amount of loss and large losses will almost always include multiple victims; affirmed; in many instances a large loss can be inflicted on a single victim; moreover §2F1.1(b)(2) provides for the increase for multiple victims or for more than minimal planning; the district court had also concluded there was more than minimal planning.)

SELECTION OF APPLICABLE GUIDELINE

SECTION 2A3.1 PROPERLY APPLIED WHEN DEFENDANTS REPEATEDLY RAPED VICTIMS. United States v. Vang, No. 96-4041, 1997 WL 659666 (7th Cir. Oct. 23, 1997) (the defendants were convicted of traveling in interstate commerce for the purpose of engaging in a sexual act with a person under eighteen years of age; the district court used §2A3.1 to establish their offense level; on appeal, they argued that §2A3.2 should have been used; affirmed; Appendix A instructs the court to use the most relevant of §§2A3.1, 2A3.2, or 2A3.3; §2A3.1 applies to criminal sexual abuse involving force; the evidence here was that the defendants abducted three girls ages 12 and 13 and took them on a week long spree through several states; evidence supported the district court's conclusion that the defendants repeatedly and forcefully raped the victims; there was no clear error in the selection of the guideline.)

Reversible Errors

The following is a project of the Southern District of Alabama Federal Defenders Organization. The listed cases are those in which a criminal defendant received relief from an United States Court of Appeals or the United States Supreme Court. The cases have been collected since 1995. The cases were reviewed shortly before this publication was released to assure they had not be overruled.

The purpose of this project is to try to give CJA Panel Attorneys a shortcut to case law that favors their clients. The editor does not promise that cases from other jurisdictions are authority where you practice.

These materials may be duplicated for any lawyer that provides services to indigent defendants. The editor encourages duplication. It saves us time and money.

These materials may be reprinted by other free publications or on-line providers serving the criminal defense bar. Attribution to the Southern District of Alabama Federal Defenders Organization is requested.

Alexander Bunin, Editor, Southern District of Alabama Federal Defenders Organization, 2 South Water Street, 2d Floor, Mobile, Alabama 36602 (334) 433-0910, (334) 433-0686 FAX.

TABLE OF CONTENTS

Release 16

Counsel 16

Discovery 17

Arrests 17

Warrantless Searches 17

Warrants 18

Knock and Announce 18

Statements 19

Indictments 19

Limitation of Actions 19

Venue 19

Pretrial Procedure 19

Severance 20

Conflicts 20

Competency / Sanity 20

Privilege 20

Jeopardy / Estoppel 21

Plea Agreements 21

Guilty Pleas 22

Continuance 23

Timely Prosecution 23

Jury Selection 23

Closure 23

Trial Procedure 23

Confrontation 24

Hearsay 24

Extraneous Evidence 24

Identification 25

Expert Testimony 25

Entrapment 25

Jury Instructions 25

Argument 26

Deliberations 26

Interstate Commerce 26

Firearms 28

Extortion 29

Drugs 29

Fraud / Theft 30

Money Laundering 31

Aiding and Abetting 31

Perjury 31

Contempt 31

Miscellaneous Crimes 32

Sentencing - General 32

Retroactivity 33

Sentencing - Drug Quantities 33

Sentencing - Marijuana 34

Sentencing - Meth. 35

Sentencing - Crack 35

Sentencing - Firearms 35

Sentencing - Money Laundering 35

Sentencing - Pornography 35

Sentencing - Fraud / Theft 36

Enhancements - General 37

Cross References 38

Obstruction of Justice 38

Vulnerable Victim 39

Role 39

Acceptance of Responsibility 39

Safety Valve 40

Criminal History 40

Upward Departures 41

Downward Departures 41

Fines / Restitution 42

Appeals 43

Supervised Release / Probation/ Parole 44

Ineffective Assistance of Counsel 44

Habeas Corpus 45

Release

United States v. Goosens, 84 F.3d 697 (4th Cir. 1996) (Prohibiting a defendant from active cooperation with the police was an abuse of discretion).

United States v. Porotsky, 105 F.3d 69 (2d Cir. 1997) (The court did not make findings sufficient to deny travel request).

Parretti v. United States, 122 F.3d 758 (9th Cir. 1997) (Detention of foreign fugitive without bail violated due process).

United States v. Swanquist, 125 F.3d 573 (7th Cir. 1997) (A court failed to give reasons for denying release on appeal).

Counsel

United States v. Cash, 47 F.3d 1083 (11th Cir. 1995) (Defendant could not waive counsel without proper findings by court).

United States v. D'Amore, 56 F.3d 1202 (9th Cir. 1995) (The defendant was denied the retained counsel of his choice at revocation hearing).

United States v. McKinley, 58 F.3d 1475 (10th Cir. 1995) (The court improperly denied self-representation).

United States v. McDermott, 64 F.3d 1448 (10th Cir.), cert. denied, 116 S.Ct. 930 (1996) (Barring the defendant from sidebars with stand-by counsel denied self-representation).

United States v. Goldberg, 67 F.3d 1092 (3d Cir. 1995) (The defendant did not forfeit counsel by threatening his appointed attorney).

Delguidice v. Singletary, 84 F.3d 1359 (11th Cir. 1996) (The psychological testing of a defendant without notice to counsel violated the sixth amendment).

Williams v. Turpin, 87 F.3d 1204 (11th Cir. 1996) (A state that created a statutory right to a motion for new trial must afford counsel and an evidentiary hearing).

United States v. Ming He, 94 F.3d 782 (2d Cir. 1996) (A cooperating defendant had the right to have counsel present when attending a presentence debriefing).

Weeks v. Jones, 100 F.3d 124 (11th Cir. 1996) (The right to counsel in a habeas claim did not turn on the merits of the petition).

United States v. Keen, 104 F.3d 1111 (9th Cir. 1996) (A court did not sufficiently explain to a defendant the dangers of pro se representation).

United States v. Amlani, 111 F.3d 705 (9th Cir. 1997) (A prosecutor's repeated disparagement of an attorney in front of his client, denied the defendant his right to chosen counsel).

United States v. Taylor, 113 F.3d 1136 (10th Cir. 1997) (The court did not assure a proper waiver of counsel).

Blankenship v. Johnson, 118 F.3d 312 (5th Cir. 1997) (When the prosecution seeks discretionary review, the defendant has a right to counsel).

Discovery

United States v. Alzate, 47 F.3d 1103 (11th Cir. 1995) (A prosecutor withheld exculpatory evidence).

United States v. Boyd, 55 F.3d 239 (7th Cir. 1995) (The government failed to disclose drug use and drug dealing by prisoner-witnesses).

United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995) (The prosecutor must learn of Brady material even if it was not in her possession).

Kyles v. Whitley, 514 U.S. 419 (1995) (Prosecution failed to turn over material and favorable evidence).

United States v. Wood, 57 F.3d 733 (9th Cir. 1995) (Government's failure to disclose favorable FDA materials).

United States v. Camargo-Vergara, 57 F.3d 993 (11th Cir. 1995) (Government failed to disclose defendant's postarrest statement).

In Re Grand Jury Investigation, 59 F.3d 17 (2d Cir. 1995) (A court properly required disclosure of documents subpoenaed by the grand jury).

United States v. O'Conner, 64 F.3d 355 (8th Cir.), cert. denied, 116 S.St. 1581 (1996) (Evidence of government witness threats and collaboration was not disclosed).

United States v. Steinberg, 99 F.3d 1486 (9th Cir. 1996) (Exculpatory evidence, discovered by the government nine months after trial, required new trial under Brady).

In Re Grand Jury, 111 F.3d 1083 (3d Cir. 1997) (The government could not seek disclosure of phone conversations that were illegally recorded by a third party).

United States v. Arnold, 117 F.3d 1308 (11th Cir. 1997) (A prosecutor withheld exculpatory tapes of government witnesses).

United States v. Vozzella, 124 F.3d (2d Cir. 1997) (Evidence of perjured testimony should have been disclosed).

Arrests

United States v. Lambert, 46 F.3d 1064 (10th Cir. 1995) (A defendant was seized while agents held his driver's license for over 20 minutes).

United States v. Little, 60 F.3d 708 (10th Cir. 1995) (Requiring a passenger to go to the baggage area restrained her liberty).

United States v. Mesa, 62 F.3d 159 (6th Cir. 1995) (Nervousness and inconsistencies did not validate continued traffic stop) (Limited by United States v. Guimond, 116 F.3d 166 (1997).

United States v. Buchanon, 72 F.3d 1217 (6th Cir. 1995) (The defendants were seized when the troopers separated them from their vehicle).

United States v. Roberson, 90 F.3d 75 (3d Cir. 1996) (An anonymous call did not give officers reasonable suspicion to stop a defendant on the street merely because his clothes matched the caller's description).

United States v. Davis, 94 F.3d 1465 (10th Cir. 1996) (There was no reasonable suspicion for stop of a defendant known generally as a gang member and drug dealer).

Washington v. Lambert, 98 F.3d 1181 (9th Cir. 1996) (A general description of two African-American males did not justify stop).

United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) (Nighttime confrontation by police at the defendant's door was a seizure).

Parretti v. United States, 122 F.3d 758 (9th Cir. 1997) (Arrest under international treaty required probable cause).

United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997) (A defendant was seized without reasonable suspicion).

Warrantless Searches

United States v. Adams, 46 F.3d 1080 (11th Cir. 1995) (Suppression of evidence seized from motor home was upheld).

United States v. Chavis, 48 F.3d 871 (5th Cir. 1995) (The court improperly placed the burden on the defendant to show a warrantless search).

United States v. Angulo-Fernandez, 53 F.3d 1177 (10th Cir. 1995) (Confusion about who owned a stalled vehicle did not create probable cause for its search).

United States v. Hill, 55 F.3d 479 (9th Cir. 1995) (Remand was required to see if there was a truly viable independent source for the search).

United States v. Ford, 56 F.3d 265 (D.C. Cir. 1995) (A search under a mattress and behind a window shade exceeded a protective sweep).

United States v. Doe, 61 F.3d 107 (1st Cir. 1995) (Warrantless testing of packages at an airport checkpoint lacked justification).

United States v. Tovar-Rico, 61 F.3d 1529 (11th Cir. 1995) (Possibility that surveillance officer was observed, did not create exigency for warrantless search of apartment).

United States v. Cabassa, 62 F.3d 470 (2d Cir. 1995) (Exigent circumstances were not relevant to the inevitable discovery doctrine).

United States v. Torres, 65 F.3d 1241 (4th Cir. 1995) (Refusal to allow search of duffel bag, after the defendant allowed a search of her purse, was insufficient to detain bag.

United States v. Perez, 67 F.3d 1371 (9th Cir. 1995) (Use of a car to transport stolen property four days before did not create probable cause to search).

United States v. Ali, 68 F.3d 1468 (2d Cir. 1995) (Checking whether the defendant had a valid export license was not a proper ground for seizure).

United States v. Mejia, 69 F.3d 309 (9th Cir. 1995) (The inevitable discovery doctrine does not apply where the police simply failed to get a warrant).

United States v. Odum, 72 F.3d 1279 (7th Cir. 1995) (The court is limited to facts at the time the stop occurred to evaluate reasonableness of the seizure).

Ornelas v. United States, 116 S.Ct 1657 (1996) (A defendant's motion to suppress should be given de novo review by the court of appeals).

United States v. Caicedo, 85 F.3d 1184 (6th Cir. 1996) (The record lacked evidence to support a finding of the defendant's consent to search).

J.B. Manning Corp. v. United States, 86 F. 3d 926 (9th Cir. 1996) (The good faith exception to the warrant requirement does not affect motions to return property under F.R.Cr.P. 41 (e)).

United States v. Duguay, 93 F.3d 346 (7th Cir. 1996) (A car could not be impounded for a later search unless the arrestee could not provide for its removal).

United States v. Leake, 95 F.3d 409 (6th Cir. 1996) (Neither the independent source rule, nor the inevitable discovery rule, saved otherwise inadmissible evidence).

United States v. Elliott, 107 F.3d 810 (10th Cir. 1997) (Consent to look in trunk was not consent to open containers within).

United States v. Garzon, 119 F.3d 1446 (10th Cir. 1997) (1. Passenger did not abandon bag by leaving it on bus; 2. General warrantless search of all bus passengers by dog was illegal).

United States v. Ramos-Oseguera, 120 F.3d 1028 (9th Cir. 1997) (Inventory of pants found in vehicle was illegal).

United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997) (The defendant did not consent to search of truck).

Warrants

United States v. Van Damme, 48 F.3d 461 (9th Cir. 1995) (There was no list of items to be seized under the warrant).

United States v. Mondragon, 52 F.3d 291 (10th Cir. 1995) (A supplemental wiretap application failed to show necessity).

United States v. Kow, 58 F.3d 423 (9th Cir. 1995) (The warrant failed to identify business records with particularity, and good faith did not apply).

United States v. Foster, 104 F.3d 1228 (10th Cir. 1996) (A flagrant disregard for the specificity of a warrant required suppression of all found).

United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996) (Bare bones, boilerplate affidavit was insufficient to justify warrant).

Marks v. Clarke, 102 F.3d 1012 (9th Cir.), cert. denied, 118 S.Ct. 264 (1997) (A warrant to search two residences did not authorize the officers to search all persons present).

United States v. Castillo-Garcia, 117 F.3d 1179 (10th Cir.), cert. denied, 1997 WL 629884 (1997) (The government failed to show the necessity for wiretaps).

United States v. McGrew, 122 F.3d 847 (9th Cir. 1997) (A search warrant affidavit lacked particularity).

Knock and Announce

Wilson v. Arkansas, 514 U.S. 927 (1995) ("Knock and announce" rule implicated the Fourth Amendment).

United States v. Zermeno, 66 F.3d 1058 (9th Cir. 1995) (The officers failed to knock and announce during a drug search).

United States v. Bates, 84 F.3d 790 (6th Cir. 1996) (Officers did not have the right to break down an apartment door without first knocking and announcing their presence).

United States v. Ramirez, 91 F.3d 1297 (9th Cir.), cert. granted, 117 S.Ct. 2478 (1997) (Police could not ignore the federal knock-and-announce law to enter a home to arrest a fugitive).

Richards v. Wisconsin, 117 S.Ct. 1416 (1997) (There was no blanket drug exception to the knock and announce requirement).

Statements

United States v. Dudden, 65 F.3d 1461 (9th Cir. 1995) (An immunity agreement required a hearing on whether the defendant's statements were used to aid the government's case).

United States v. Tenorio, 69 F. 3d 1103 (11th Cir. 1995) (Improper admission of post-Miranda statements).

United States v. Ali, 86 F.3d 275 (2d Cir. 1996) (Custodial interrogation required Miranda warnings).

In Re Grand Jury Subpoena Dated April 9, 1996, 87 F.3d 1198 (11th Cir. 1996) (A custodian of records could not be compelled to testify as to the location of documents not in her possession when those documents were incriminating).

United States v. Troescher, 99 F.3d 933 (9th Cir. 1996) (There was no tax crime exception to the fifth amendment's privilege against self-incrimination).

United States v. Trazaska, 111 F.3d 1019 (2d Cir. 1997) (Defendant's statement to probation officer was inadmissible).

United States v. D.F., 115 F.3d 413 (7th Cir. 1997) (Statements taken from a juvenile in a mental health facility were involuntary).

Indictments

United States v. Holmes, 44 F.3d 1150 (2d Cir. 1995) (Money laundering and structuring counts based on the same transaction were multiplicious).

United States v. Hairston, 46 F.3d 361 (4th Cir. 1995) (Multiple payments were part of the same offense).

United States v. Graham, 60 F.3d 463 (8th Cir. 1995) (It was multiplicious to charge the same false statement made on different occasions).

United States v. Kimbrough, 69 F.3d 723 (5th Cir.), cert. denied, 116 S.Ct. 1547 (1996) (Multiple possessions of child pornography should be charged in a single count).

United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995) (Court amended charging language of indictment during trial).

United States v. Steele, 117 F.3d 1231 (11th Cir. 1997) (The indictment failed to allege a pharmacist acted outside the scope of his professional practice).

Limitation of Actions

United States v. Li, 55 F.3d 325 (7th Cir. 1995) (The statute of limitations ran from the day of deposit, not the day the deposit was processed).

United States v. Spector, 55 F.3d 22 (1st Cir. 1995) (Agreement to waive the statute of limitations was invalid because it was not signed by the government).

United States v. Podde, 105 F.3d 813 (2d Cir. 1997) (The statute of limitations barred the reinstatement of charges that were dismissed in a plea agreement).

United States v. Manges, 110 F.3d 1162 (5th Cir. 1997) (Conspiracy charge was barred by statute of limitations).

Venue

United States v. Palma-Ruedas, 121 F.3d 841 (3d Cir. 1997) (No venue in state where defendant neither used nor carried the firearm).

United States v. Miller, 111 F.3d 747 (10th Cir. 1997) (The court refused a jury instruction on venue in a multi district conspiracy case).

Pretrial Procedure

United States v. Ramos, 45 F.3d 1519 (11th Cir. 1995) (Trial judge wrongly refused deposition without inquiring about testimony or its relevance).

United States v. Juvenile Male #1, 47 F.3d 68 (2d Cir. 1995) (A court properly refused transfer of a juvenile for adult proceedings).

United States v. Jordan, 49 F.3d 152 (5th Cir. 1995) (A judge should have been recused because the defendant made claims against family friend of the judge).

United States v. Antar, 53 F.3d 568 (3d Cir. 1995) (A judge who stated he wanted to get money back for the victims, should have been recused).

United States v. Smith, 55 F.3d 157 (4th Cir. 1995) (The government's motion for dismissal should have been granted).

United States v. Gonzalez, 58 F.3d 459 (9th Cir. 1995) (The government's motion for dismissal should have been granted).

United States v. Young, 86 F.3d 944 (9th Cir. 1996) (A court could not deny a hearing on a motion to compel the government to immunize a witness).

Carlo v. Chino, 105 F.3d 493 (9th Cir. 1997) (A state statutory right to post-booking phone calls was protected by federal due process).

Impounded Juvenile I.H., Jr., 120 F.3d 457 (3d Cir. 1997) (Failure to provide juvenile records barred transfer to adult status).

Severance

United States v. Breinig, 70 F.3d 850 (6th Cir. 1995) (A severence should have been granted where the codefendant's defense included prejudicial character evidence regarding the defendant).

United States v. Baker, 98 F.3d 330 (8th Cir.), cert. denied, 117 S.Ct. 1456 (1997) (Evidence admissible against only one codefendant required severance).

United States v. Jordan, 112 F.3d 14 (1st Cir.), cert. denied, 1997 WL 562297 (1997) (Charges should have been severed when a defendant wanted to testify regarding one count, but not others).

United States v. Wilson, 116 F.3d 1066 (5th Cir. 1997) (A defendant, who needed co-defendant' testimony to support his self-defense claim, should have been severed).

Conflicts

United States v. Shorter, 54 F.3d 1248 (7th Cir.), cert. denied. 116 S.Ct. 250 (1995) (There was an actual conflict when the defendant accused counsel of improper behavior).

Ciak v. United States, 59 F.3d 296 (2d Cir. 1995) (There was an actual conflict for attorney who had previously represented a witness against the defendant).

United States v. Malpiedi, 62 F.3d 465 (2d Cir. 1995) (Counsel represented witness who gave damaging evidence against his defendant).

Freund v. Butterworth, 117 F.3d 1543 (11th Cir. 1997) (Counsel's ties to a codefendant were a conflict of interest).

Competency / Sanity

United States v. Mason, 52 F.3d 1286 (4th Cir. 1995) (The court failed to apply a reasonable cause standard to competency hearing).

Cooper v. Oklahoma, 116 S.Ct. 1373 (1996) (A state could not require a defendant to prove his incompetence by a higher standard than preponderance of evidence).

United States v. Davis, 93 F.3d 1286 (6th Cir. 1996) (A court did not have the statutory authority to order a mental examination of a defendant who wished to raise the defense of diminished capacity).

United States v. Williams, 113 F.3d 1155 (10th Cir. 1997) (The defendant's actions during trial warranted a competency hearing).

Martinez-Villareal v. Stewart, 118 F.3d 628 (9th Cir. 1997) (Succesive writ regarding incompetency to be executed was not barred by statute).

United States v. Nevarez-Castro, 120 F.3d 190 (9th Cir. 1997) (The court refused a competency hearing).

Privilege

Ralls v. United States, 52 F.3d 223 (9th Cir. 1995) (Fee information was inextricably intertwined with privileged communications).

United States v. Sindel, 53 F.3d 874 (8th Cir. 1995) (Fee information could not be released without disclosing other privileged information).

United States v. Gertner, 65 F.3d 963 (1st Cir. 1995) (IRS summons of attorney was just a pretext to investigate her client).

In Re Richard Roe Inc., 68 F.3d 38 (2d Cir. 1995) (The court misapplied the crime-fraud exception).

United States v. Rowe, 96 F.3d 1294 (9th Cir. 1996) (An in-house investigation by attorneys associated with the defendant/lawyer was covered by the attorney-client privilege).

Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997) (Clergy-communicant privilege was upheld).

United States v. Ramos-Oseguera, 120 F.3d 1028 (9th Cir. 1997) (Defendant was forced to choose between testifying against her husband or contempt).

Jeopardy / Estoppel

United States v. Alcasis, 45 F.3d 39 (2d Cir. 1995) The government is estopped from convicting a person when its agents have caused that person in good faith to believe they are acting under government authority).

United States v. Weems, 49 F.3d 528 (9th Cir. 1995) (The government was estopped from proving element previously decided in forfeiture case).

United States v. Sammaripa, 55 F.3d 433 (9th Cir. 1995) (A mistrial was not justified by manifest necessity).

United States v. McLaurin, 57 F.3d 823 (9th Cir. 1995) (A defendant could not be retried for bank robbery after conviction on the lesser included offense of larceny).

Rutledge v. United States , 116 S.Ct 1241 (1996) (A defendant could not be punished for both a conspiracy and a continuing criminal enterprise based upon a single course of conduct).

Venson v. State of Georgia, 74 F.3d 1140 (11th Cir. 1996) (A prosecutor's motion for mistrial was not supported by manifest necessity).

United States v. Holloway, 74 F.3d 249 (11th Cir. 1996) (A prosecutor's promise not to prosecute, made at a civil deposition, was the equivalent of use immunity for any related criminal proceeding).

United States v. Hall, 77 F.3d 398 (11th Cir.), cert. denied. 117 S.Ct. 139 (1996) (Possession of a firearm and its ammunition could only yield a single sentence).

United States v. Garcia, 78 F.3d 1517 (11th Cir. 1996) (Acquittal for knowingly conspiring barred a second prosecution for the substantive crime).

Terry v. Potter, 111 F.3d 454 (6th Cir. 1997) (When a defendant was charged in two alternate manners, and the jury reaches a verdict as to only one, there was an implied acquittal on the other offense to which jeopardy bars retrial).

United States v. Stoddard, 111 F.3d 1450 (9th Cir. 1997) (1. Second drug conspiracy prosecution was barred by double jeopardy; 2. Collateral estoppel barred false statement conviction, based upon drug ownership for which defendant had been previously acquitted).

United States v. Romero, 114 F.3d 141 (9th Cir. 1997) (After an acquittal for possession, an importation charge was barred by collateral estoppel).

Falcone v. Stewart, 120 F.3d 1082 (9th Cir. 1997) (Double jeopardy barred resentencing in a case that was already final).

Plea Agreements

United States v. Clark, 55 F.3d 9 (1st Cir. 1995) (The government breached the agreement by arguing against acceptance of responsibility).

United States v. Laday, 56 F.3d 24 (5th Cir. 1995) (The government breached the agreement by failing to give the defendant an opportunity to cooperate).

United States v. Washman, 66 F.3d 210 (9th Cir. 1995) (The defendant could withdraw his plea up until the time the court accepted the plea agreement).

United States v. Levay, 76 F.3d 671 (5th Cir. 1996) (A defendant could not be enhanced with a prior drug conviction when the government withdrew notice as part of a plea agreement).

United States v. Taylor, 77 F.3d 368 (11th Cir. 1996) (The defendant could withdraw his guilty plea when the government failed to unequivocally recommend a sentence named in the agreement).

United States v. Carrero, 77 F.3d 11 (1st Cir. 1996) (An agreement to recommend no enhancement was breached by the government's neutral position at sentencing).

United States v. Dean, 87 F.3d 1212 (11th Cir. 1996) (A judge could modify the forfeiture provisions of a plea agreement, when the forfeiture was unfairly punitive).

United States v. Kummer, 89 F.3d 1536 (11th Cir. 1996) (Defendants who pleaded guilty to accepting a gratuity under plea agreements could withdraw their pleas when they were sentenced under bribery guidelines).

United States v. Ritsema, 89 F.3d 392 (7th Cir. 1996) (A court could not ignore a previously adopted plea agreement at resentencing).

United States v. Belt, 89 F.3d 710 (10th Cir. 1996) (Failure to object to the government's breach of the plea agreement was not a waiver).

United States v. Beltran-Ortiz, 91 F.3d 665 (4th Cir. 1996) (Failure to debrief the defendant, thus preventing him from benefiting from the safety valve, violated the plea agreement).

United States v. Hawley, 93 F.3d 682 (10th Cir. 1996) (The government violated its plea agreement not to oppose credit for acceptance of responsibility).

United States v. Thournout, 100 F.3d 590 (8th Cir. 1996) (The government breached an agreement from another district to recommend concurrent time).

United States v. Paton, 110 F.3d 562 (8th Cir. 1997) (The government's breach of plea agreement was a ground for downward departure).

United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (Defendant could attack illegal conviction without fear that dismissed charges in plea agreement would be revived).

Guilty Pleas

United States v. Maddox, 48 F.3d 555 (D.C. 1995) (A summary rejection of a guilty plea was improper).

United States v. Ribas-Dominicce, 50 F.3d 76 (1st Cir. 1995) (A court misstated the mental state required for the offense).

United States v. Goins, 51 F.3d 400 (4th Cir. 1995) (The court failed to admonish the defendant about the mandatory minimum punishment).

United States v. Casallas, 59 F.3d 1173 (11th Cir. 1995) (Trial judge improperly became involved in plea bargaining during colloquy).

United States v. Smith, 60 F.3d 595 (9th Cir. 1995) (The court failed to explain the nature of the charges to the defendant).

United States v. Gray, 63 F.3d 57 (1st Cir. 1995) (A defendant who did not understand the applicability of the mandatory minimum could withdraw his plea).

United States v. Daigle, 63 F.3d 346 (5th Cir. 1995) (The court improperly engaged in plea bargaining).

United States v. Martinez-Molina, 64 F.3d 719 (1st Cir. 1995) (The court failed to inquire whether the plea was voluntary or whether the defendant had been threatened or coerced).

United States v. Showerman, 68 F.3d 1524 (2d Cir. 1995) (The court failed to advise the defendant that he might be ordered to pay restitution).

United States v. Tunning, 69 F.3d 107 (6th Cir. 1995) (The government failed to recite evidence to prove allegations in an Alford plea).

United States v. Guerra, 94 F.3d 989 (5th Cir. 1996) (A plea was vacated when the court gave the defendant erroneous advice about enhancements).

United States v. Quinones, 97 F.3d 473 (11th Cir. 1996) (The court failed to ensure that the defendant understood the nature of the charges).

United States v. Cruz-Rojas, 101 F.3d 283 (2d Cir. 1996) (Guilty pleas were vacated to determine whether factual basis existed for carrying a firearm).

United States v. Cruz-Rojas, 101 F.3d 283 (2d Cir. 1996) (Guilty pleas were vacated to determine whether factual basis existed for carrying a firearm).

United States v. Siegel, 102 F.3d 477 (11th Cir. 1996) (Failure to advise the defendant of the maximum and minimum mandatory sentences required that the defendant be allowed to withdraw his plea).

United States v. Shepherd, 102 F.3d 558 (DC Cir. 1996) (A court abused its discretion in rejecting the defendant's mid-trial guilty plea).

United States v. Still, 102 F.3d 118 (5th Cir.), cert. denied, 118 S.Ct. 43 (1997) (The court failed to admonish the defendant on the mandatory minimum).

United States v. Coscarelli, 105 F.3d 984 (5th Cir.), rehearing granted, 111 F.3d 376 (1997) (A defendant should have been admonished as to the minimum and maximum sentences for each object of a conspiracy).

Thompson v. United States, 111 F.3d 109 (11th Cir. 1997) (Failure to admonish a defendant about right to appeal was per se error).

United States v. Amaya, 111 F.3d 386 (5th Cir. 1997) (The defendant's plea was involuntary when the court promised to ensure a downward departure for cooperation).

United States v. Gonzalez, 113 F.3d 1026 (9th Cir. 1997) (A court should have hold a hearing when the defendant claimed his plea was coerced).

United States v. Brown, 117 F.3d 471 (11th Cir. 1997) (Misinformation given to the defendant made his plea involuntary).

United States v. Pierre, 120 F.3d 1153 (11th Cir. 1997) (Plea was involuntary when defendant mistakenly believed he had preserved an appellate issue).

United States v. Cazares, 121 F.3d 1241 (9th Cir. 1997) (Plea to drug conspiracy was not an admission of an alleged overt act).

Continuance

United States v. Verderame, 51 F.3d 249 (11th Cir. 1995) (Trial court denied repeated, unopposed motions for continuance in drug conspiracy case, with only 34 days to prepare).

United States v. Mejia, 69 F.3d 309 (9th Cir. 1995) (A court denied a one-day continuance of trial, preventing live evidence on suppression issue).

United States v. Hay, 122 F.3d 1233 (9th Cir. 1997) (A 48-day recess to accommodate jurors vacations was abuse of discretion).

Timely Prosecution

United States v. Jones, 56 F.3d 581 (5th Cir. 1995) An open-ended continuance violated the Speedy Trial Act).

United States v. Foxman, 87 F.3d 1220 (11th Cir. 1996) (The trial court was required to decide whether the government had delayed indictment to gain a tactical advantage).

United States v. Johnson, 120 F.3d 1107 (10th Cir. 1997) (Continuance violated Speedy Trial Act).

United States v. Lloyd, 125 F.3d 1263 (9th Cir. 1997) (112-day continuance was not justified).

Jury Selection

Cochran v. Herring, 43 F. 1404 (11th Cir. 1995) (Batson claim).

United States v. Jackman, 46 F.3d 1240 (2d Cir. 1995) (Selection procedure resulted in an under representation of minorities in jury pool).

United States v. Beckner, 69 F.3d 1290 (5th Cir. 1995) (The defendant established prejudicial pretrial publicity that could not be cured by voir dire).

United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996) (A court's erroneous denial of a defendant's proper peremptory challenge required automatic reversal).

Turner v. Marshall, 121 F.3d 1248 (9th Cir. 1997) (A prosecutor's stated reason for striking a Black juror was pretextual).

United States v. Underwood, 122 F.3d 389 (7th Cir. 1997) (Court's explanation of selection procedure confused counsel and prevented intelligent exercise of strikes).

Closure

United States v. Doe, 63 F.3d 121 (2d Cir. 1995) (The court summarily denied a defendant's request to close the trial for his safety).

Okonkwo v. Lacy, 104 F.3d 21 (2d Cir. 1997) (Record did not support closure of proceedings during testimony of undercover officer).

Pearson v. James, 105 F.3d 828 (2d Cir. 1997) (Closure of courtroom denied the right to a public trial).

Trial Procedure

United States v. Robertson, 45 F.3d 1423 (10th Cir.), cert. denied. 116 S.Ct. 133 (1995) (There was no evidence that the defendant intelligently and voluntarily waived a jury trial).

United States v. Lachman, 48 F.3d 586 (1st Cir. 1995) (Government exhibits were properly excluded on grounds of confusion and waste).

United States v. Johanssen, 56 F.3d 347 (2d Cir. 1995) (There was a variance when none of the conspiracies alleged were proven).

United States v. Gaston-Brito, 64 F.3d 11 (1st Cir. 1995) (A hearing was necessary to determine if an agent improperly gestured toward defense table in front of the jury).

United States v. Ajmal, 67 F.3d 12 (2d Cir. 1995) (Jurors should not question witnesses as a matter of course).

United States v. Parker, 73 F.3d 48 (5th Cir.), affirmed on rehearing, 104 F.3d 72 (1997) (The defense should have been allowed to reopen before argument).

Old Chief v. United States, 117 S.Ct. 644 (1997) (A court abused its discretion by refusing to accept the defendant's offer to stipulate that he was a felon, in a trial for being a felon in possession of a firearm).

United States v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir. 1997) (There was a fatal variance between pleading and proof of date of offense).

United States v. Duarte-Higarenda, 113 F.3d 1000 (9th Cir. 1997) (The court failed to question a non-English speaking defendant over a jury waiver).

United States v. Montilla-Rivera, 115 F.3d 1060 (1st Cir. 1997) (Exculpatory affidavits of codefendants, who claimed Fifth Amendment privilege, were newly discovered evidence regarding a motion for new trial).

Confrontation

United States v. Cooks, 52 F.3d 101 (5th Cir. 1995) (The court refused to allow government witness to be questioned about jeopardy from same charges).

United States v. Forrester, 60 F.3d 52 (2d Cir. 1995) (An agent improperly commented on the credibility of another witness).

United States v. Blum, 62 F.3d 63 (2d Cir. 1995) (The court excluded evidence relevant to the witness' motive to testify).

United States v. Platero, 72 F.3d 806 (10th Cir. 1995) (The court excluded cross examination of a sexual assault victim's relationship with a third party).

United States v. Montgomery, 100 F.3d 1404 (8th Cir. 1996) (Co-defendant should have been required to try on clothing, after defendant had to, when the government put ownership at issue).

United States v. Landerman, 109 F.3d 1053 (5th Cir.), modified, 116 F.3d 119 (1997) (The defendant should have been allowed to question a witness about a pending state charge).

United States v. Mulinelli-Nava, 111 F.3d 983 (1st Cir. 1997) (Court limited cross examination regarding theory of defense).

United States v. Paguio, 114 F.3d 928 (9th Cir. 1997) (A missing witness' self-incriminating statement should have been admitted).

Lindh v. Murphy, 124 F.3d 899 (7th Cir. 1997) (A defendant was not allowed to examine the state's psychiatrist about allegations of sexual improprieties with patients).

Hearsay

United States v. Hamilton, 46 F.3d 271 (3d Cir. 1995) (Prosecution witnesses were not unavailable when they could have testified under government immunity).

United States v. Strother, 49 F.3d 869 (2d Cir. 1995) (A statement, inconsistent with the testimony of a government witness, should have been admitted).

United States v. Acker, 52 F.3d 509 (4th Cir. 1995) (Prior consistent statements were not admissible because they were made prior to the witness having a motive to fabricate).

United States v. Tory, 52 F.3d 207 (9th Cir. 1995) (Witness' statement that the robber wore sweatpants was inconsistent with prior statement that he wore white pants).

United States v. Rivera, 61 F.3d 131 (2d Cir.), cert. denied, 117 S.Ct. 1282 (1997) (The court should not have admitted an attached factual stipulation when allowing defendant to impeach a witness with a plea agreement).

United States v. Lis, 120 F.3d 28 (4th Cir. 1997) (A ledger connecting another to the crime was not hearsay).

United States v. Beydler, 120 F. 3d 985 (9th Cir. 1997) (Unavailable witness incriminating the defendant was inadmissible hearsay).

Extraneous Evidence

United States v. Rodriguez, 45 F.3d 302 (9th Cir. 1995) (Evidence of flight a month after crime was inadmissible to prove an intent to possess).

United States v. Barnes, 49 F.3d 1144 (6th Cir. 1995) (Request for discovery of extraneous evidence created a continuing duty to disclose).

United States v. Blackstone, 56 F.3d 1143 (9th Cir. 1995) (Drug use was improperly admitted in felon in possession case).

United States v. Moorehead, 57 F.3d 875 (9th Cir. 1995) (Evidence that the defendant was a drug dealer should not have been admitted in firearms case).

United States v. Aguilar-Aranceta, 58 F.3d 796 (1st Cir. 1995) (Prior misdemeanor drug conviction was more prejudicial than probative in a distribution case).

United States v. McDermott, 64 F.3d 1448 (10th Cir. 1995) (Evidence that the defendant threatened a witness should not have been admitted because it was not clear the defendant knew the person was a witness).

United States v. Vizcarra-Martinez, 66 F.3d 1006 (9th Cir. 1995) (Evidence of personal use of methamphetamine at the time of the defendant's arrest was inadmissible).

United States v. Elkins, 70 F.3d 81 (10th Cir. 1995) (Evidence of the defendant's gang membership was improperly elicited).

United States v. Irvin, 87 F.3d 860 (7th Cir.), cert. denied, 117 S.Ct. 259 (1997) (The court should have excluded testimony that the defendant was in a motorcycle gang).

United States v. Utter, 97 F.3d 509 (11th Cir. 1996) (In an arson case, it was error to admit evidence that the defendant threatened to burn his tenant's house or that the defendant's previous residence had burned).

United States v. Lecompte, 99 F.3d 274 (8th Cir. 1996) (Evidence of prior contact with alleged victims did not show plan or preparation).

United States v. Jobson, 102 F.3d 214 (6th Cir. 1996) (The court failed to adequately limit evidence of the defendant's gang affiliation).

United States v. Murray, 103 F.3d 310 (3d Cir. 1997) (Evidence that an alleged murderer had killed before was improperly admitted in a CCE case).

United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997) (Allowing testimony about bombing of federal building was prejudicial).

United States v. Paguio, 114 F.3d 928 (9th Cir. 1997) (Evidence that the defendant previously applied for a loan was prejudicial).

United States v. Sumner, 119 F.3d 658 (8th Cir. 1997) (When defendant denied the crime occurred, prior acts to prove intent were not admissible).

Identification

United States v. Emanuele, 51 F.3d 1123 (3d Cir. 1995) (An identification, made after seeing the defendant in court, and after a failure to identify him before, should have been suppressed).

Lyons v. Johnson, 99 F.3d 499 (2d Cir. 1996) (The court denied the defendant the right to display a witness in support of a misidentification defense).

Expert Testimony

United States v. Boyd, 55 F.3d 667 (D.C. Cir. 1995) (Officer relied upon improper hypothetical in drug case).

United States v. Shay, 57 F.3d 126 (1st Cir. 1995) (Defense expert should have been allowed to explain that the defendant had a disorder that caused him to lie).

United States v. Posado, 57 F.3d 428 (5th Cir. 1995) (The per se rule prohibiting polygraph evidence was abolished by Daubert).

United States v. Childress, 58 F.3d 693 (D.C. Cir.), cert. denied, 116 S.Ct. 825 (1996) (A defense expert should have been allowed to testify on the defendant's inability to form intent).

United States v. Valasquez, 64 F.3d 844 (3d Cir. 1995) (A defense expert should have been allowed to testify on the limitations of handwriting analysis).

Rupe v. Wood, 93 F.3d 1434 (9th Cir.), cert. denied, 117 S.Ct. 1017 (1997) (Exclusion of a witness' failed polygraph results at the death penalty phase of trial, denied due process).

United States v. Hall, 93 F.3d 1337 (7th Cir. 1996) (Expert testimony that the defendant had a disorder that may have caused him to make a false confession should have been admitted).

United States v. Cordoba,104 F.3d 225 (9th Cir. 1997) (There is no longer a blanket prohibition of polygraph evidence).

Calderon v. U.S. District Court, 107 F.3d 756 (9th Cir.), cert. denied, 118 S.Ct. 265 (1997) (CJA funds for expert could be used to exhaust a state claim).

United States v. Morales, 108 F.3d 1031 (9th Cir. 1997) (The court should not have excluded a defense expert on bookkeeping).

Entrapment

United States v. Reese, 60 F.3d 660 (9th Cir. 1995) (An entrapment instruction failed to tell the jury that the government must prove beyond a reasonable doubt that the defendant was predisposed).

United States v. Knox, 112 F.3d 802 (5th Cir.), rehearing granted, 120 F.3d 42 (1997) (A defendant was entrapped as matter of law).

United States v. Bradfield, 113 F.3d 515 (5th Cir. 1997) (Evidence supported an instruction on entrapment).

Jury Instructions

United States v. Edmonds, 52 F.3d 1236 (3d Cir.), cert. denied, 117 S.Ct. 295 (1996) (The jury should have been instructed that it must agree on which drug counts constituted a series for CCE purposes).

United States v. Lewis, 53 F.3d 29 (4th Cir. 1995) (The court failed to instruct the jury that conspiring with a government agent alone required an acquittal).

United States v. Horsley, 56 F.3d 50 (11th Cir. 1995) (Distribution of cocaine is lesser included offense of distribution of cocaine within a 1,000 feet of a school, and the jury should be charged accordingly).

United States v. Ruiz, 59 F.3d 1151 (11th Cir.), cert. denied, 116 F.3d 956 (1996) (Defendant has the right to have the jury instructed on his theory of defense).

United States v. Lucien, 61 F.3d 366 (5th Cir. 1995) (An instruction on simple possession should have been given in a drug distribution case).

Smith v. Singletary, 61 F.3d 815 (11th Cir.), cert. denied, 116 S.Ct. 972 (1996) (The court failed to give mitigating instruction in a capital case).

United States v. Birbal, 62 F.3d 456 (2d Cir. 1995) (Jurors were instructed they "may" acquit, rather than they "must" acquit, if the government did not meet its burden).

United States v. Hairston, 64 F.3d 491 (9th Cir. 1995) (Alibi instruction was required when evidence of alibi was introduced in the government's case).

United States v. Perez, 67 F.3d 1371 (9th Cir. 1995) (A §924 (c) instruction omitted "in relation to").

United States v. Johnson, 71 F.3d 139 (4th Cir. 1995) (The court improperly instructed the jury that a credit union was federally insured).

United States v. Palazzolo, 71 F.3d 1233 (6th Cir. 1995) (Verdict form failed to distinguish the object of the conspiracy).

United States v. Lopez, 71 F.3d 954 (1st Cir.), cert. denied, 116 S.Ct. 2529 (1996) (Failure to instruct on materiality in a fraud case was plain error).

United States v. Wacker, 72 F.3d 1453 (10th Cir.), cert. denied, 117 S.Ct. 136 (1996) (A jury was improperly instructed under Bailey).

United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996) (A jury instruction could not shift the burden to the defendant on the issue of self-defense).

United States v. Webster, 84 F.3d 1056 (8th Cir. 1996) (Jury instructions that did not distinguish between "carry" and "use" were defective in a §924 (c) trial).

United States v. Sanchez-Corcino, 85 F.3d 549 (11th Cir. 1996) (It was insufficient to charge a jury to determine whether a defendant willfully acted as an unlicensed firearms dealer, since knowledge was required).

United States v. Medina, 90 F.3d 459 (11th Cir. 1996) (The court failed to submit a jury instruction on whether a ship was subject to the jurisdiction of the United States).

United States v. Randolf, 93 F.3d 656 (9th Cir. 1996) (Carjacking is a specific intent crime to cause death or serious bodily injury).

United States v. Baron, 94 F.3d 1312 (9th Cir.), cert. denied, 117 S.Ct. 624 (1996) (A court committed plain error by giving a deliberate ignorance instruction when there was no evidence that the defendant knew, or avoided learning, of secreted drugs).

United States v. Ahmad, 101 F.3d 386 (5th Cir. 1996) (The jury instructions in a pollution case implied strict liability rather than the requirement of knowledge).

United States v. Rodgers, 109 F.3d 1138 (6th Cir. 1997) (If a court allows a jury to review trial testimony, there must be a cautionary instruction not to place upon it undue emphasis).

United States v. Bradfield, 113 F.3d 515 (5th Cir. 1997) (The court failed to give a jury instruction on entrapment).

United States v. Paul, 110 F.3d 869 (2d Cir. 1997) (The court failed to give duress instruction in a felon in possession case).

United States v. Bancalari, 110 F.3d 1425 (9th Cir. 1997) (Instruction omitted the element of intent).

United States v. Cooke, 110 F.3d 1288 (7th Cir. 1997) (Jury instructions treating "carry" and "use" interchangeably were defective).

United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (Failure to instruct jury on use of firearm, in relation to, drug trafficking was plain error).

United States v. Kubosh, 120 F.3d 47 (5th Cir. 1997) (Jury instruction failing to require active employment of firearm was plain error).

Smith v. Horn, 120 F.3d 400 (3d Cir. 1997) (A 1st degree murder instruction failed to require specific intent).

United States v. Bordeaux, 121 F.3d 1187 (8th Cir. 1997) (Jury instruction in an abusive sexual contact case failed to require force).

United States v. Wozniak, 126 F.3d 105 (2d Cir. 1997) (Charge on marijuana impermissibly amended indictment alleging cocaine and methamphetamine).

Argument

United States v. Flores-Chapa, 48 F.3d 156 (5th Cir. 1995) (The prosecutor referred to excluded evidence).

United States v. Kallin, 50 F.3d 689 (9th Cir. 1995) (The prosecutor commented upon the defendant's failure to come forward with an explanation).

United States v. Tory, 52 F.3d 207 (9th Cir. 1995) (The defense was prevented from arguing that an absence of evidence implied that evidence did not exist).

United States v. Tenorio, 69 F.3d 1103 (11th Cir. 1995) (The prosecutor commented upon the defendant's silence).

United States v. Hall, 77 F.3d 398 (11th Cir. 1996) (Defendant's counsel was improperly prohibited from addressing general principles of reasonable doubt in closing).

United States v. Cannon, 88 F.3d 1495 (8th Cir. 1996) (A prosecutor's reference to African-American defendants, who were not from North Dakota, as "bad people," was not harmless).

Agard v. Portuondo, 117 F.3d 696 (2d Cir. 1997) (Prosecutor implied it was wrong for defendant to remain in courtroom during testimony).

United States v. Roberts,119 F.3d 1006 (1st Cir. 1997) (Prosecutor commented on defendant's failure to testify and misstated burden of proof).

United States v. Rudberg, 122 F.3d 1199 (9th Cir. 1997) (A prosecutor vouched for a witness' credibility in closing argument).

Deliberations

United States v. Berroa, 46 F.3d 1195 (D.C. Cir. 1995) (Allen charge varied from ABA standard).

United States v. Harber, 53 F.3d 236 (9th Cir. 1995) (The case agent's report was taken into the jury room).

United States v. Burgos, 55 F.3d 933 (4th Cir. 1995) (Allen charge asked jurors to think about giving up firmly held beliefs).

United States v. Araujo, 62 F.3d 930 (7th Cir. 1995) (A verdict was taken from eleven jurors when the twelfth was delayed by car trouble).

United States v. Ottersburg, 76 F.3d 137 (7th Cir.), clarified, 81 F.3d 657 (1996) (It was plain error to allow alternate jurors to deliberate with the jury).

United States v. Manning, 79 F.3d 212 (1st Cir.), cert. denied, 117 S.Ct. 147 (1996) (The court should have given a "yes or no" answer to a deadlocked jury's question, rather than refer them to the testimony).

United States v. Berry, 92 F.3d 597 (7th Cir. 1996) (A jury improperly considered a transcript, rather than the actual tape).

United States v. Benedict, 95 F.3d 17 (8th Cir. 1996) (The trial court should not have accepted partial verdicts).

United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) (Juror should not have been dismissed when he did not admit to refusing to follow the law during deliberations).

United States v. Hall, 116 F.3d 1253 (8th Cir. 1997) (Exposure of jury to unrelated, but prejudicial matters, required new trial).

Interstate Commerce

United States v. Box, 50 F.3d 345 (5th Cir.), cert. denied, 116 S.Ct. 714 (1996) (Extortion of interstate travelers did not involve interstate commerce).

United States v. Cruz, 50 F.3d 714 (9th Cir. 1995) (Shipment of firearm in interstate commerce must occur after the firearm is stolen).

United States v. Quigley, 53 F.3d 909 (8th Cir. 1995) (Liquor store robbery did not affect interstate commerce).

United States v. Grey, 56 F.3d 1219 (10th Cir. 1995) (Use of currency did not involve interstate commerce).

United States v. Lopez, 514 U.S. 549 (1995) ("Gun-free school zone" law found unconstitutional).

United States v. Walker, 59 F.3d 1196 (11th Cir.), cert. denied, 116 S.Ct. 547 (1995) (Conviction under "gun-free school zone" law was plain error).

United States v. Barone, 71 F.3d 1442 (9th Cir. 1995) (False checks did not involve interstate commerce).

United States v. Denalli, 90 F.3d 444 (11th Cir. 1996) (Arson of neighbor's home did not involve interstate commerce).

United States v. Gaydos, 108 F.3d 505 (3d Cir. 1997) (There was insufficient evidence that arson involved interstate commerce).

Firearms

Staples v. United States, 511 U.S. (1994) (When a defendant was prohibited from possessing a particular kind of firearm, it must be proven he knew that he possessed that type of firearm).

United States v. Herron, 45 F.3d 340 (9th Cir. 1995) (A defendant whose civil rights were restored was not prohibited from possessing a firearm).

United States v. Caldwell, 49 F.3d 251 (6th Cir. 1995) (Licensed dealer who sold firearm away from business was not guilty of unlicensed sale).

United States v. Anderson, 59 F.3d 1323 (D.C. Cir.), cert. denied, 116 S.Ct. 542 (1995) (Multiple §924 (c) convictions must be based on separate predicate offenses).

Bailey v. United States, 116 S.Ct. 501 (1995) (Passive possession of firearm was insufficient to prove "use" of firearm during drug trafficking crime).

United States v. Kelly, 62 F.3d 1215 (9th Cir. 1995) (A defendant whose civil rights were restored was not prohibited from possessing a firearm).

United States v. Hayden, 64 F.3d 126 (3d Cir. 1995) (A defendant should have been allowed to introduce evidence of his low intelligence and illiteracy to rebut allegations that he knew he was under indictment when buying a firearm).

United States v. Jones, 67 F.3d 320 (D.C. Cir. 1995) (The jury should not have been told nature of the defendant's prior conviction when the defendant offered to stipulate that he was a felon).

United States v. Valle, 72 F.3d 210 (1st Cir. 1995) (Bailey applied).

United States v. Monroe, 73 F.3d 129 (7th Cir. 1995) (Bailey applied).

United States v. Jones, 74 F.3d 275 (11th Cir. 1996) (Bailey applied).

United States v. King, 74 F.3d 249 (11th Cir. 1996) (Bailey applied).

United States v. Thompson, 82 F.3d 849 (9th Cir. 1996) (There was insufficient evidence that a silencer was actively used).

United States v. Garcia, 86 F.3d 394 (5th Cir.), cert. denied, 117 S.Ct. 752 (1997) (A loaded handgun found in the defendant's waistband was not used in relation to a drug offense).

United States v. Edwards, 90 F.3d 199 (7th Cir. 1996) (A defendant must be shown to know his shotgun is shorter than 18 inches in length in order to be liable for failure to register the weapon).

United States v. Rogers, 94 F.3d 1519 (11th Cir.), cert. granted, 117 S.Ct. 1841 (1997) (The government failed to prove a defendant knew that he possessed a fully automatic weapon).

United States v. Atcheson, 94 F.3d 1237 (9th Cir.), cert. denied, 117 S.Ct. 1096 (1997) (Each §924 (c) conviction must be tied to a separate predicate crime).

United States v. Indelicato, 97 F.3d 627 (1st Cir.), cert. denied, 117 S.Ct. 1013 (1997) (A defendant who did not lose his civil rights could not be felon in possession).

United States v. Lopez, 100 F.3d 98 (9th Cir.), cert. denied, 117 S.Ct. 1824 (1997) (Bailey applied).

United States v. Berger, 103 F.3d 67 (9th Cir. ), cert. denied, 117 S.Ct. 1456 (1997) (A firearm stored near drugs did not meet Bailey requirements).

United States v. Casterline, 103 F.3d 76 (9th Cir.), cert. denied, 118 S.Ct. 106 (1997) (A felon in possession charge may not proven solely by ownership).

United States v. Hall, 110 F.3d 1155 (5th Cir. 1997) (A gun, found near the defendant and a large cache of drugs, was not carried).

United States v. Carraway, 108 F.3d 745 (7th Cir.), cert. denied, 118 S.Ct. 228 (1997) (Firearms discovered with cocaine were not possessed in connection to drugs found).

United States v. Rosario, 111 F.3d 293 (2d Cir.), cert. denied, 1997 WL 562351 (1997) (A firearm was not used or carried in relation to drug trafficking).

Lee v. United States, 113 F.3d 73 (7th Cir. 1997) (Facts did not support a plea for §924 (c) conviction).

United States v. Taylor, 113 F.3d 1136 (10th Cir. 1997) (A firearm found in shared home was not shown to be possessed by the defendant).

United States v. McPhail, 112 F.3d 197 (5th Cir. 1997) (Bailey claim upheld on a writ).

United States v. Carter, 117 F.3d 262 (5th Cir. 1997) (A pistol found in a glove compartment was not used in connection with a drug crime).

United States v. Stephens, 118 F.3d 479 (6th Cir. 1997) (Two separate caches of cocaine possessed on the same day, did not support two separate gun enhancements).

United States v. Polk, 118 F.3d 286 (5th Cir. 1997) (Presence of shotgun in defendant's car did not support carrying firearm in relation to crime of violence).

United States v. Westmoreland, 122 F.3d 431 (7th Cir. 1997) (An agent's presentation of inoperable firearm to defendant, immediately before arrest, did not support possession of a firearm in relation to drug crime).

United States v. Gonzalez, 122 F.3d 1383 (11th Cir. 1997) (Evidence did not support possession of a firearm while a fugitive from justice).

United States v. McKinney, 120 F.3d 132 (8th Cir. 1997) (Firearm was not actively used during drug crime).

United States v. King, 119 F.3d 290 (4th Cir. 1997) (Possession of a firearm at home did not support using or carrying firearm during drug crime).

Extortion

United States v. Tomblin, 46 F.3d 1369 (5th Cir. 1995) (A private citizen did not act under color of official right).

United States v. Scotti, 47 F.3d 1237 (2d Cir. 1995) (Facilitating payment of a debt was not extortion).

United States v. Delano, 55 F.3d 720 (2d Cir. 1995) (Services or labor were not property within the meaning of a statute used as a predicate for RICO).

United States v. Wallace, 59 F.3d 333 (2d Cir. 1995) (Demanding payment from fraudulent check scheme was not extortion).

Drugs

United States v. Newton, 44 F.3d 913 (11th Cir.), cert. denied, 116 S.Ct. 161 (1995) (Leasing residence for a drug dealer did not prove the defendant's participation in a conspiracy).

United States v. Jones, 44 F.3d 860 (10th Cir. 1995) (A car passenger was not shown to have knowledge of the drugs).

United States v. Johnson, 46 F.3d 1166 (D.C. 1995) (The government failed to prove distribution within 1000 feet of a school).

United States v. Medjuck, 48 F.3d 1107 (9th Cir. 1995) (The government failed to show a nexus to U.S. territory).

United States v. Valerio, 48 F.3d 58 (1st Cir. 1995) (There was insufficient evidence that the drugs were intended for distribution).

United States v. Flores-Chapa, 48 F.3d 156 (5th Cir. 1995) (The defendant's beeper and personal use of drugs was not proof of conspiracy).

United States v. Andujar, 49 F.3d 16 (1st 1995) (There was no more evidence than mere presence).

United States v. Jones, 49 F.3d 628 (10th Cir. 1995) (Inferences derived from standing near open trunk did not prove knowledge).

United States v. Polk, 56 F.3d 613 (5th Cir. 1995) (Use of the defendant's car and home were insufficient to show participation).

United States v. Barona, 56 F.3d 1087 (9th Cir.), cert. denied, 116 S.Ct. 813 (1996) (It was insufficient to find a CCE when there were persons who could not be legally counted as supervisees).

United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995) (Momentarily picking up a kilo for inspection was not possession).

United States v. Ross, 58 F.3d 154 (5th Cir.), cert. denied, 116 S.Ct. 404 (1995) (The defendant was not a conspirator merely because he sold drugs at same location as conspirators).

United States v. Witek, 61 F.3d 819 (11th Cir.), cert. denied, 116 S.Ct. 738 (1996) (Mere buyer-seller relationship did not satisfy management requirement for conviction of engaging in continuing criminal enterprise).

United States v. Kearns, 61 F.3d 1422 (9th Cir. 1995) (A brief sampling of marijuana was not possession).

United States v. Lopez-Ramirez, 68 F.3d 438 (11th Cir. 1995) (Insufficient evidence of possession and conspiracy as to defendant who was present in home where 65 kilos of cocaine was delivered and then seized).

United States v. Applewhite, 72 F.3d 140 (D.C. Cir.), cert. denied, 116 S.Ct. 1864 (1996) (The government failed to prove distribution within a 1000 feet of a school).

United States v. Derose, 74 F.3d 1177 (11th Cir. 1996) (Insufficient evidence that the defendant took possession of marijuana).

United States v. Martinez, 83 F.3d 371 (11th Cir.), cert. denied, 117 S.Ct. 998 (1997) (A defendant's conviction for conspiracy to possess cocaine was reversed because there was no evidence beyond defendant's intent to help co-conspirator steal money).

United States v. Thomas, 114 F.3d 403 (3d Cir. 1997) (Insufficient evidence of a conspiracy, when it was not shown that defendant knew cocaine was in bag he was to retrieve).

Fraud / Theft

United States v. Cannon, 41 F.3d 1462 (11th Cir.), cert. denied, 116 S.Ct. 86 (1995) (Proof of false documents to elicit payment on government contracts was insufficient when documents did not contain false information).

United States v. Manarite, 44 F.3d 1407 (9th Cir.), cert. denied, 115 S.Ct. 2610 (1995) (Mailings were not related to scheme to defraud).

United States v. Lluesma, 45 F.3d 408 (11th Cir. 1995) (Proof of conspiracy to export stolen vehicles was insufficient against defendant who did odd jobs for midlevel conspirator).

United States v. Altman, 48 F.3d 96 (2d Cir. 1995) (Mailings were too remote to be related to the fraud).

United States v. Hammoude, 51 F.3d 288 (D.C. Cir.), cert. denied, 115 S.Ct. 2290 (1995) (A composite stamp did not make a visa a counterfeit document).

United States v. Gaudin, 515 U.S. 506 (1995) (Materiality is an element of a false statement case).

United States v. Wilbur, 58 F.3d 1291 (8th Cir. 1995) (A physician who stole drugs did not obtain them by deception).

United States v. Bush, 58 F.3d 482 (9th Cir. 1995) (No material false statements or omissions were made to receive union funds).

United States v. Klingler, 61 F.3d 1234 (6th Cir. 1995) (A customs broker's misappropriation of funds did not involve money of the United States).

United States v. Valentine, 63 F.3d 459 (6th Cir. 1995) (A government agent must convert more that $5000 in a single year to violate 18 U.S.C. §666).

United States v. Campbell, 64 F.3d 967 (5th Cir. 1995) (Bank officers did not cause a loss to the bank).

United States v. Rothhammer, 64 F.3d 554 (10th Cir. 1995) (A contractual promise to pay was not a factual assertion).

United States v. Campbell, 64 F.3d 967 (5th Cir. 1995) (The defendant's misrepresentations to a bank were not material).

United States v. Lewis, 67 F.3d 225 (9th Cir. 1995) (A state chartered foreign bank was not covered by the bank fraud statute).

United States v. McCormick, 72 F.3d 1404 (9th Cir. 1995) (A defendant who did not read documents before signing them was not guilty of making a false statement).

United States v. Mueller, 74 F.3d 1152 (11th Cir. 1996) (Filing a misleading affidavit to delay a civil proceeding involving a bank was not bank fraud).

United States v. Brumley, 79 F.3d 1430 (5th Cir. 1996) (Mail fraud statute did not reach schemes to defraud citizens of their intangible rights to honest and impartial government).

United States v. Morris, 81 F.3d 131 (11th 1996) (Sale of a phone that disguised its identity was not fraud in connection with an access device).

United States v. Allen, 88 F.3d 765 (9th Cir.), cert. denied, 117 S.Ct. 1565 (1997) (The government failed to prove that a credit union was federally insured).

United States v. Wester, 90 F.3d 592 (1st Cir. 1996) (A loan's face value was not the proper amount of loss when collateral was pledged).

United States v. McMinn, 103 F.3d 216 (1st Cir. 1997) (A defendant was not in the business of selling stolen goods unless he sold goods stolen by others).

United States v. Czubinski, 106 F.3d 1069 (1st Cir. 1997) (Merely browsing confidential computer files was not wire fraud or computer fraud).

United States v. Tencer, 107 F.3d 1120 (5th Cir.), cert. denied, 1997 WL 612142 (1997) (Insurance checks that were not tied to fraudulent claims were insufficient proof of mail fraud).

United States v. Todd, 108 F.3d 1329 (11th Cir. 1997) (A defendant was improperly prohibited from introducing evidence that employees implicitly agreed that pension funds could be used to save the company).

United States v. Cochran, 109 F.3d 660 (10th Cir. 1997) (There was insufficient proof of mail fraud without evidence of misrepresentation).

United States v. Parsons, 109 F.3d 1002 (4th Cir. 1997) (Money that defendant legitimately spent as postal employee could not be counted toward fraud).

United States v. Barrett, 111 F.3d 947 (D.C.), cert. denied, 118 S.Ct. 176 (1997) (A defendant's misrepresentation to a court was not a material false statement).

United States v. Grossman, 117 F.3d 255 (5th Cir. 1997) (Personal use of funds from business loan was not bank fraud).

Money Laundering

United States v. Newton, 44 F.3d 913 (11th Cir. 1995) (Proof of aiding and abetting money laundering conspiracy was insufficient against defendant who leased house on behalf of conspirator).

United States v. Rockelman, 49 F.3d 418 (8th Cir. 1995) (The evidence failed to show the transaction was intended to conceal illegal proceeds).

United States v. Hoye, 52 F.3d 233 (9th Cir. 1995) (Failure to instruct the jury that the defendant must know his structuring was illegal, was plain error).

United States v. Torres, 53 F.3d 1129 (10th Cir.), cert. denied, 115 S.Ct. 2599 (1995) (Buying a car with drug proceeds was not money laundering).

United States v. Wiley, 57 F.3d 1374 (5th Cir.), cert. denied, 116 S.Ct. 675 (1995) (Transferring money between accounts was insufficient evidence of an intent to conceal).

United States v. Wynn, 61 F.3d 921 (D.C. Cir.), cert. denied, 116 S.Ct. 578 (1995) (There was insufficient evidence that the defendant knew his structuring was unlawful).

United States v. Dobbs, 63 F.3d 391 (5th Cir. 1995) (Undisguised money used for family needs was not money laundering).

United States v. Kim, 65 F.3d 123 (9th Cir. 1995) (To be guilty of conspiracy, the defendant must have known of the illegal structuring).

United States v. Nelson, 66 F.3d 1036 (9th Cir. 1995) (The defendant's eagerness to complete the transaction was not sufficient to prove an attempt).

United States v. Kramer, 73 F.3d 1067 (11th Cir.), cert. denied, 117 S.Ct. 516 (1996) (A transaction that occurred outside of the United States was not money laundering).

United States v. Phipps, 81 F.3d 1056 (11th Cir. 1996) (It was not money laundering to deposit a series of checks that are less than $10K each).

United States v. Pipkin, 114 F.3d 504 (5th Cir. 1997) (The defendant did not knowingly structure a currency transaction).

United States v. Garza, 118 F.3d 278 (5th Cir. 1997) (Money laundering proof was insufficient where defendants neither handled nor disposed of drug proceeds).

United States v. High, 117 F.3d 464 (11th Cir. 1997) (A money laundering instruction omitted the element of willfulness).

Aiding and Abetting

United States v. de la Cruz-Paulino, 61 F.3d 986 (1st Cir. 1995) (Moving packages of contraband and statements about police was insufficient evidence).

United States v. Luciano-Mosquero, 63 F.3d 1142 (1st. Cir.), cert. denied, 116 S.Ct. 1879 (1996) (There was no evidence that the defendant took steps to assist in the use of a firearm).

United States v. Fulbright, 105 F.3d 443 (9th Cir. 1997) (The government failed to prove anyone committed the principle crime with requisite intent).

Perjury

United States v. Hairston, 46 F.3d 361 (4th Cir. 1995) (Ambiguity in the question to the defendant was insufficient for perjury conviction).

United States v. Dean, 55 F.3d 640 (D.C. Cir.), cert. denied, 116 S.Ct. 1288 (1996) (A statement that was literally true did not support a perjury conviction).

United States v. Jaramillo, 69 F.3d 388 (9th Cir. 1995) (A defendant charged with perjury by inconsistent statements must have made both under oath).

Contempt

United States v. Mathews, 49 F.3d 676 (11th Cir. 1995) (Certification of contempt must be filed by the judge who witnessed the alleged contempt).

United States v. Forman, 71 F.3d 1214 (6th Cir. 1995) (An attorney was not in contempt for releasing grand jury materials in partner's case).

United States v. Brown, 72 F.3d 25 (5th Cir. 1995) (A lawyer's comments on a judge's trial performance were not reckless).

United States v. Mottweiler, 82 F.3d 769 (7th Cir. 1996) (A defendant must have acted willfully to be guilty of criminal contempt).

United States v. Grable, 98 F.3d 251 (6th Cir.), cert. denied, 117 S.Ct. 691(1997) (Contempt order could not stand in light of incorrect advice about fifth amendment privilege).

Bingman v. Ward, 100 F.3d 653 (9th Cir.), cert. denied, 117 S.Ct. 1473 (1997) (Magistrate Judge did not have the authority to hold a litigant in criminal contempt).

United States v. Neal, 101 F3d 993 (4th Cir. 1996) (It was plain error for a judge to prosecute and judge a contempt action).

Miscellaneous Crimes

United States v. Rodriguez, 45 F.3d 302 (9th Cir. 1995) (Possessing an object designed to be used as a weapon, while in prison, was a specific intent crime).

United States v. Gilbert, 47 F.3d 1116 (11th Cir.), cert. denied, 116 S.Ct. 149 (1995) (Proof of failure to comply with a directive of a federal officer was in variance with the original charge).

United States v. Bahena-Cardenas, 70 F.3d 1071 (9th Cir. 1995) (Alien who was not served with warrant of deportation, was not guilty of illegal re-entry).

United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997) (Transmission of e-mail messages of torture, rape and murder did not fall within federal statute without public availability).

United States v. Grigsby, 111 F.3d 806 (11th Cir. 1997) (Importation of prohibited wildlife products fell under exceptions to statute).

United States v. Main, 113 F.3d 1046 (9th Cir. 1997) (In an involuntary manslaughter case, the harm must have been foreseeable within the risk created by the defendant).

United States v. Wicklund,114 F.3d 151 (10th Cir. 1997) (A murder for hire required a receipt or promise of pecuniary value).

United States v. Yoakum, 116 F.3d 1346 (10th Cir. 1997) (A defendant's interest in a business, and his presence near time of fire, did not support arson conviction).

United States v. Nyemaster, 116 F.3d 827 (9th Cir. 1997) (Insufficient evidence of being under the influence of alcohol in a federal park).

United States v. Spruill, 118 F.3d 221 (4th Cir. 1997) (There was insufficient evidence that a threat would be carried out by fire or explosive under 18 U.S.C. §844 (e)).

United States v. Cooper, 121 F.3d 130 (3d Cir. 1997) (Evidence did not support conviction for tampering with a witness).

United States v. King, 122 F.3d 808 (9th Cir. 1997) (Crime of mailing threatening communication required a specific intent to threaten).

United States v. Valenzeno, 123 F.3d 365 (6th Cir. 1997) (It did not violate the Federal Credit Reporting Act or the Consumer Credit Act by obtaining a credit report without permission).

Sentencing - General

United States v. Rivera, 58 F.3d 600 (11th Cir. 1995) (Defendant was sentenced on the wrong count).

United States v. Knowles, 66 F.3d 1146 (11th Cir.), cert. denied, 116 S.Ct. 1449 (There was no proof the conspiracy extended to the date when guidelines became effective).

Page v. United States, 69 F.3d 482 (11th Cir. 1995) (The court failed to require the parties to state objections at the sentencing hearing).

United States v. DiDomenico, 78 F.3d 294 (7th Cir.), cert. denied, 117 S.Ct. 507 (1996) (Unconvicted, unstipulated crimes could not be used to determine a combined offense level under §3D1.4).

United States v. Petty, 80 F.3d 1384 (9th Cir. 1996) (The record should have shown that the defendant read the presentence report and supplements).

United States v. Torres, 81 F.3d 900 (9th Cir. 1996) (A disparity in co-conspirator' sentences was not justified, due to inconsistent factual findings).

United States v. Burke, 80 F.3d 314 (8th Cir. 1996) (A presentence report could not be used as evidence when the defendant disputed the facts therein).

United States v. Ivy, 83 F.3d 1266 (10th Cir.), cert. denied, 117 S.Ct. 253 (1996) (The government's failure to object to a presentence report waived its complaint).

United States v. Graham, 83 F.3d 1466 (D.C.Cir.), cert. denied, 117 S.Ct. 993 (1997) (Adoption of the presentence report is not the same as express findings).

United States v. Versaglio, 85 F.3d 943 (2d Cir.), modified, 96 F.3d 637 (1996) (A criminal contempt offense cannot be punished by both fine and incarceration).

United States v. Moskovits, 86 F.3d 1303 (3d Cir.), cert. denied, 117 S.Ct. 968 (1997) (A court improperly considered a defendant's decision to go to trial rather than accept a plea offer).

United States v. Tabares, 86 F.3d 326 (3d Cir. 1996) (Erroneous information did not justify a sentence at the top of the range).

United States v. Greer, 91 F.3d 996 (7th Cir. 1996) (Sentences at two proceedings on the same day were at the same time for guideline calculations).

United States v. Farnsworth, 92 F.3d 1001 (10th Cir.), cert. denied, 117 S.Ct. 596 (1996) (Adoption of the presentence report does not resolve disputed matters).

United States v. Fuentes, 107 F.3d 1515 (11th Cir. 1997) ( A federal sentence which calculates a state sentence into the base offense level must be concurrent to the state sentence).

United States v. Corona, 108 F.3d 565 (5th Cir. 1997) (Duplicitous sentences were not purely concurrent where each received a separate special assessment).

United States v. Kikuyama, 109 F.3d 536 (9th Cir. 1997) (Court cannot rely on need for mental health treatment in fashioning a consecutive sentence).

United States v. Reyes, 116 F.3d 67 (2d Cir. 1997) (The court failed to adequately explain its sentence).

United States v. Nash, 115 F.3d 1431 (9th Cir. 1997) (Multiplicious counts must be sentenced concurrently and may not receive separate special assessments).

United States v. Mendez, 117 F.3d 480 (11th Cir. 1997) (Simultaneous acts of possessing stolen mail and assaulting a mail carrier with intent to steal mail, could not receive cumulative punishments).

United States v. Romero, 122 F.3d 1334 (10th Cir. 1997) (A court may not resolve factual disputes by merely adopting the presentence report).

United States v. Dieguimde, 119 F.3d 933 (11th Cir. 1997) (Order of deportation did not consider defendant's request for political asylum).

United States v. Juvenile Male PWM, 121 F.3d 382 (8th Cir. 1997) (1. Court imposed sentence beyond comparable guideline for adults; 2. Court considered pending unadjudicated charges).

Retroactivity

United States v. Vazquez, 53 F.3d 1216 (11th Cir. 1995) (Case remanded to determine retroactive effect of favorable guideline, that became effective after sentencing).

United States v. Felix, 87 F.3d 1057 (9th Cir. 1996) (An amendment to the guidelines, which required a sentence based on a lower, negotiated quantity of drugs, was retroactive).

United States v. Etherton, 101 F.3d 80 (9th Cir. 1996) (A retroactive amendment could be used to reduce supervised release).

United States v. Zagari, 111 F.3d 307 (2d Cir. 1997) ( Use of guidelines effective after conduct violated Ex Post Facto Clause).

United States v. Armistead, 114 F.3d 504 (5th Cir.), cert. denied, 1997 WL 562084 (1997) (There was an ex post facto application of a guideline provision).

United States v. Aguilar-Ayala, 120 F.3d 176 (9th Cir. 1997) (Defendant was entitled to sentence reduction to mandatory minimum because of retroactive guideline amendment, regardless of whether safety valve applied).

Sentencing - Drug Quantities

United States v. Lawrence, 47 F.3d 1559 (11th Cir. 1995) (Insufficient findings to support drug quantities).

United States v. Hansley, 54 F.3d 709 (11th Cir.), cert. denied, 116 S.Ct. 539 (1995) (Individual findings were needed to hold defendant responsible for all drugs in conspiracy).

United States v. Reese, 67 F.3d 902 (11th Cir.), cert. denied, 116 S.Ct. 1866 (1996) (Drugs were not reasonably foreseeable to the defendant, nor within scope of agreed joint criminal activity).

United States v. Lee, 68 F.3d 1267 (11th Cir. 1995) (There were inadequate findings to support drug quantities. Crack abusers' credibility was questioned).

United States v. Berrios, 77 F.3d 206 (7th Cir. 1996) (A government agent's sale of drugs to an informant could not be counted as the defendant's relevant conduct).

United States v. Hill, 79 F.3d 1477 (6th Cir.), cert.denied, 117 S.Ct. 158 (1996) (Different transactions almost two years apart, with the sole similarity being the type of drug, were not relevant conduct).

United States v. Howard, 80 F.3d 1194 (7th Cir. 1996) (The district court could not rely upon the probation officer's estimates of drug quantities without corroborating evidence).

United States v. Hamilton, 81 F.3d 652 (6th Cir. 1996) (To be culpable for manufacturing a quantity of drugs, the defendant must have been personally able to make that quantity).

United States v. Graham, 83 F.3d 1466 (D.C. Cir.), cert. denied, 117 S.Ct. 993 (1997) (The court failed to make individualized findings of drug quantities).

United States v. Byrne, 83 F.3d 984 (8th Cir. 1996) (Drugs seized after the defendant was in custody could not be counted toward sentence).

United States v. Acosta, 85 F.3d 275 (7th Cir. 1996) (The drug quantity finding was insufficient).

United States v. Caldwell, 88 F.3d 522 (8th Cir.), cert. denied, 117 S.Ct. 625 (1996) (Extrapolation of drug quantities was error).

United States v. Frazier, 89 F.3d 1501 (11th Cir.), cert.denied, 117 S.Ct. 1719 (1997) (Sentencing findings did not support drug quantities attributed to the defendant).

United States v. Tucker, 90 F.3d 1135 (6th Cir. 1996) (A court did not make individualized findings as to each defendant in a drug conspiracy).

United States v. Nesbitt, 90 F.3d 164 (6th Cir. 1996) (A court failed to resolve whether amounts of drugs were attributable during the time of the conspiracy).

United States v. Hernandez-Santiago, 92 F.3d 97 (2d Cir. 1996) (A court failed to make a finding as to the scope of the defendant's agreement).

United States v. Copus, 93 F.3d 269 (7th Cir. 1996) (The court's estimate of drug quantity lacked a sufficient indicia of reliability).

United States v. Gutierrez-Hernandez, 94 F.3d 582 (9th Cir. 1996) (There was no presumption that three drug manufacturers were equally culpable).

United States v. Chalarca, 95 F.3d 239 (2d Cir. 1996) (When negotiated drug amount was not foreseeable, the court should use the lowest possible quantity).

United States v. Jinadu, 98 F.3d 239 (6th Cir.), cert. denied, 117 S.Ct. 1455 (1997) (Court could not rely on drug quantities alleged in indictment to determine a mandatory minimum).

United States v. Agis-Meza, 99 F.3d 1052 (11th Cir. 1996) (Extrapolation of drug amounts was not a sufficient basis for findings).

United States v. Shonubi, 103 F.3d 1085 (2d Cir. 1997) (Multiplying quantity of seized drugs by number of previous trips was an inadequate measure).

United States v. Randolph, 101 F.3d 607 (8th Cir. 1996) (The trial court inadequately explained its drug quantity findings).

In Re Sealed Case, 108 F.3d 372 (D.C. Cir. 1997) (A court failed to make findings attributing all drugs to the defendant).

United States v. Milledge, 109 F.3d 312 (6th Cir. 1997) (Evidence did not justify drug quantity finding).

United States v. Rodriguez, 112 F.3d 374 (8th Cir. 1997) (Insufficient evidence of drug quantities).

United States v. Jackson, 115 F.3d 843 (11th Cir. 1997) (Package containing 1% cocaine and 99% sugar was not a mixture under the guidelines).

United States v. Granados, 117 F.3d 1089 (8th Cir. 1997) (The court failed to make specific drug quantity findings).

Sentencing - Marijuana

United States v. Foree, 43 F.3d 1572 (11th Cir. 1995) (Seedlings and cuttings do not count as marijuana plants).

United States v. Smith, 51 F.3d 980 (11th Cir. 1995) (Weight of wet marijuana was improperly counted).

United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996) (Counting seedlings as marijuana plants to calculate the base offense level was plain error).

United States v. Agis-Meza, 99 F.3d 1052 (11th Cir. 1996) (The court had an insufficient basis to calculate a quantity of marijuana based upon cash and money wrappers seized).

United States v. Carter, 110 F.3d 759 (11th Cir. 1997) (The court abused its discretion in denying a motion for a reduction of a sentence over weight of wet marijuana).

United States v. Makiewicz, 122 F.3d 399 (7th Cir. 1997) (Marijuana that was rejected by defendants should not have been counted).

Sentencing - Meth.

United States v. Ramsdale, 61 F.3d 825 (11th Cir. 1995) (Improperly sentenced for D-methamphetamine rather than "L").

United States v. McMullen, 86 F.3d 135 (8th Cir. 1996) (A judge could not determine the type of methamphetamine based upon the judge's experience, the price, or where the drugs came from).

United States v. Cole, 125 F.3d 654 (8th Cir. 1997) (A defendant's testimony about his ability to manufacture was relevant).

Sentencing - Crack

United States v. Chisolm, 73 F.3d 304 (11th Cir. 1996) (There was no factual basis that the defendant knew powder would be converted to crack).

United States v. James, 78 F.3d 851 (3d Cir.), cert. denied, 117 S.Ct. 128 (1996) (There was not proof that the cocaine base was crack for enhanced penalties to apply).

United States v. Fike, 82 F.3d 1315 (5th Cir.), cert. denied, 117 S.Ct. 242 (1996) (A defendant could not be held accountable for crack cocaine when conversion to crack was not foreseeable).

Sentencing - Firearms

United States v. Bernadine, 73 F.3d 1078 (11th Cir. 1996) (The government failed to prove the defendant was a marijuana user, and thus he was not a prohibited person under U.S.S.G. §2K2.1 (a) (6)).

United States v. Mendoza-Alvarez, 79 F.3d 96 (8th Cir. 1996) (Simply carrying a firearm in one's car was not otherwise unlawful use).

United States v. Murray, 82 F.3d 361 (10th Cir. 1996) (In an assault case, an enhancement for discharging a firearm did not apply to shots fired after the assault).

United States v. Roxborough, 94 F.3d 213 (6th Cir.), amended, 99 F.3d 212 (1996) (Obliterating serial numbers on a firearm was not be relevant conduct to justify an increase).

United States v. Barton, 100 F.3d 43 (6th Cir. 1996) (Enhancement under §2K2.1(a) (1) relating to prior convictions covered only those before the instant offense).

United States v. Moit, 100 F.3d 605 (8th Cir. 1996) (Possession of shotguns and hunting rifles qualified for "sporting or collection" reduction).

United States v. Willis, 106 F.3d 966 (11th Cir. 1997) (A defendant who previously pleaded nolo contendre in a Florida state court was not convicted for purposes of being a felon in possession of a firearm).

United States v. Murphy, 107 F.3d 1199 (6th Cir. 1997) (Two prior robberies were a single episode under Armed Career Criminal Act).

United States v. Cooper, 111 F.3d 845 (11th Cir. 1997) (Firearm that was not possessed at the site of drug offense did not justify 2-level enhancement).

United States v. Thompson, 122 F.3d 304 (5th Cir. 1997) (A coconspirator's possession of a firearm was not foreseeable to the defendant).

Sentencing - Money Laundering

United States v. Jenkins, 58 F.3d 611 (11th Cir. 1995) ("Rule of lenity" precluded counting money laundering transactions under $10,000).

United States v. Allen, 76 F.3d 1348 (5th Cir.), cert. denied, 117 S.Ct. 121 (1996) (Money laundering guidelines should have been based on the amount of money laundered, not the loss in a related fraud).

United States v. Gabel, 85 F.3d 1217 (7th Cir. 1996) (Robberies and burglaries were not relevant conduct in a money laundering case).

United States v. Wilson, 98 F.3d 281 (7th Cir. 1996) (Money laundering and mail fraud should have been grouped together).

United States v. Morales, 108 F.3d 1213 (10th Cir. 1997) (Drug mandatory minimum did not apply to money laundering offense).

Sentencing - Pornography

United States v. Cole, 61 F.3d 24 (11th Cir.), cert. denied, 116 S.Ct. 1052 (1996) (Insufficient evidence of child pornography depicting minors under twelve).

United States v. Ketcham, 80 F.3d 789 (3d Cir. 1996) (Enhancement for exploitation of a minor was reversed in a child pornography case for insufficient evidence).

United States v. Surratt, 87 F.3d 814 (6th Cir. 1996) (Defendant's sexual abuse, unrelated to receiving child pornography did not prove a pattern of activity to increase the offense level).

United States v. Kemmish, 120 F.3d 937 (9th Cir. 1997) (The defendant did not engage in a pattern of exploitation).

Sentencing - Fraud/Theft

United States v. Maurello, 76 F.3d 1304 (3d Cir. 1996) (Loss to a fraud victim was mitigated by the value received by the defendant's actions).

United States v. Millar, 79 F.3d 338 (2d Cir. 1996) (Adjustment for affecting a financial institution was limited to money received by the defendant).

United States v. Castellanos, 81 F.3d 108 (9th Cir. 1996) (Merely because a fraud scheme used Spanish language media, did not justify an enhancement for victims particularly susceptible to fraud).

United States v. Eyoum, 84 F.3d 1004 (7th Cir.), cert. denied, 117 S.Ct. 326 (1996) (The fair market value, rather than the smuggler's price, should have been used to calculate the value of illegally smuggled wildlife).

United States v. Strevel, 85 F.3d 501 (11th Cir. 1996) (In determining the amount of loss, the court could not rely solely on stipulated amounts).

United States v. King, 87 F.3d 1255 (11th Cir. 1996) (Without proof the defendant committed the burglary, other stolen items, not found in his possession, could not be calculated toward loss).

United States v. Sung, 87 F.3d 194 (7th Cir. 1996) (Findings did not establish reasonable certainty that the defendant intended to sell the base level quantity of counterfeit goods).

United States v. Allen, 88 F.3d 765 (9th Cir.), cert. denied, 117 S.Ct. 1565 (1997) (Collateral recovered to secure a loan, and the interest paid, was not subtracted from loss in a fraud case).

United States v. Cowart, 90 F.3d 154 (6th Cir. 1996) (A common modus operandi alone, did not make robberies part of a common scheme).

United States v. Stover, 93 F.3d 1379 (8th Cir. 1996) (Persons' desire to adopt children did not make them vulnerable victims of an adoption agency).

United States v. Krenning, 93 F.3d 1257 (4th Cir. 1996) (The value of rented assets bore no reasonable relationship to the victim's loss).

United States v. Comer, 93 F.3d 1271 (6th Cir. 1996) (An acquitted theft was not sufficiently proven to include in loss calculations).

United States v. Coffman, 94 F.3d 330 (7th Cir.), cert. denied, 117 S.Ct. 1426 (1997) (A previous fraud using the same worthless stock was not relevant conduct).

United States v. Olbres, 99 F.3d 28 (1st Cir. 1996) (Adoption of PSI was not a finding of tax loss).

United States v. Peterson, 101 F.3d 375 (5th Cir. 1996) (Violation of fiduciary duty was not necessarily criminal conduct for application of relevant conduct).

United States v. Ortland, 109 F.3d 539 (9th Cir.), cert. denied, 118 S.Ct. 141 (1997) (Since mail fraud is not a continuing offense, an act committed after the date of an increase to guidelines did not require all counts to receive increased guidelines).

United States v. Kohli, 110 F.3d 1475 (9th Cir. 1997) (There was insufficient evidence of the quantity of fraud attributed).

United States v. Halton, 113 F.3d 43 (5th Cir. 1997) (Mail fraud and tax fraud counts should have been grouped).

United States v. Sepulveda, 115 F.3d 882 (11th Cir. 1997) (Evidence did not support the alleged volume of unauthorized calls).

United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997) (That the defendant's business was "permeated with fraud" was too indefinite a finding).

United States v. Arnous, 122 F.3d 321 (6th Cir. 1997) (Food stamp fraud should have been valued by lost profits, not the face value of the stamps).

United States v. Sublett, 124 F.3d 693 (5th Cir. 1997) (Loss during contract fraud did not include legitimate services actually provided).

United States v. McIntosh, 124 F.3d 1330 (10th Cir. 1997) (Failure to disclose his interest in a residence that the defendant did not own was not bankruptcy fraud).

United States v. Barnes, 125 F.3d 1287 (9th Cir. 1997) (Services that were satisfactorily performed should have been subtracted from loss).

Enhancements - General

United States v. Tapia, 59 F.3d 1137 (11th Cir.), cert. denied, 116 S.Ct. 401 (1995) (Using phone to call codefendant was not more than minimal planning).

United States v. Miller, 77 F.3d 71 (4th Cir. 1996) (Enhancement for manufacturing counterfeit notes did not apply to those so obviously counterfeit that they are unlikely to be accepted).

United States v. Torres, 81 F.3d 900 (9th Cir. 1996) (The government must prove sentencing enhancements by a preponderance of evidence).

United States v. Rivera, 83 F.3d 542 (1st Cir. 1996) (There was insufficient evidence that a rape involved serious bodily injury).

United States v. Alexander, 88 F.3d 427 (6th Cir. 1996) (A note indicating the presence of a bomb, and a request to cooperate to prevent harm, during a bank robbery, was not an express threat of death).

United States v. Shenberg, 89 F.3d 1461 (11th Cir.), cert. denied, 117 S.Ct. 961 (1997) (More than minimal planning increase did not apply to plan to assault a fictitious informant).

United States v. Ruiz-Castro, 92 F.3d 1519 (10th Cir. 1996) (A court failed to inquire whether the defendant had notice of the government's intent to seek an enhanced sentence with a prior drug conviction).

United States v. Tavares, 93 F.3d 10 (1st Cir.), cert. denied, 117 S.Ct. 373 (1996) (A finding that an aggravated assault occurred was inconsistent with a finding of no serious bodily injury).

United States v. Shannon, 94 F.3d 1065 (7th Cir. 1996) (Statutory rape was not a crime of violence).

United States v. Kraig, 99 F.3d 1361 (6th Cir. 1996) (There was insufficient evidence that the defendant employed sophisticated means).

United States v. Ekinci, 101 F.3d 838 (2d Cir. 1996) (Unlawful dispensing of drugs by a doctor was not subject to an enhancement for proximity to a school).

United States v. Jolly, 102 F.3d 46 (2d Cir. 1996) (Corporate principal could not get abuse of trust enhancement for defrauding lenders).

United States v. Brazel, 102 F.3d 1120 (11th Cir.), cert. denied, 118 S.Ct. 78 (1997) (A sentence could not be enhanced with convictions that were not final).

United States v. Mikell, 102 F.3d 470 (11th Cir.), cert. denied, 117 S.Ct. 1459 (1997) (A defendant who was subject to an enhanced sentence under 21 U.S.C. §841, could collaterally attack a prior conviction).

United States v. Triplett, 104 F.3d 1074 (8th Cir.), cert. denied, 117 S.Ct. 1346 (1997) (A threat of death adjustment was double counting in 18 U.S.C. §924 (c) case).

United States v. Collado, 106 F.3d 1097 (2d Cir. 1997) (An enhancement under 21 U.S.C. §851 required the prior conviction to be obtained by indictment).

United States v. Bennett, 108 F.3d 1315 (10th Cir. 1997) (There was no proof that a prior burglary involved a dwelling or physical force under career offender provisions).

United States v. Eshkol, 108 F.3d 1025 (9th Cir.), cert. denied, 118 S.Ct. 120 (1997) (Only existing counterfeit bills could be counted toward upward adjustment).

United States v. Reyes-Oseguera, 106 F.3d 1481 (9th Cir. 1997) (Flight on foot was insufficient for reckless endangerment enhancement).

United States v. Carrozzella, 105 F.3d 796 (2d Cir. 1997) (An enhancement for violation of a judicial order did not apply to every perceived abuse of judicial process).

United States v. Dodson, 109 F.3d 486 (8th Cir. 1997) (There lacked proof of bodily injury for enhancement).

United States v. Fuentes-Barahona, 111 F.3d 651 (9th Cir. 1997) (Conviction occurring before effective date of guideline amendment was not considered as aggravated felony).

United States v. DeMartino, 112 F.3d 75 (2d Cir. 1997) (Court was without authority to increase a sentence that was not mere clerical error).

United States v. Shadduck, 112 F.3d 523 (1st Cir. 1997) (There was no proof that a defendant violated a judicial order during a course of fraud).

United States v. Herrerra-Solano, 114 F.3d 48 (5th Cir. 1997) (A prior probated felony was not an aggravated felony in an illegal reentry case).

United States v. Zelaya, 114 F.3d 869 (9th Cir. 1997) (An express threat of death was not foreseeable to the accomplice-defendant).

United States v. Sawyer, 115 F.3d 857 (11th Cir. 1997) (Enhancement for bodily injury was not supported by alleged psychological injury).

United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. 1997) (A prior conviction for being an alien in unlawful possession of a firearm was not an aggravated felony).

United States v. Drapeau, 121 F.3d 344 (8th Cir. 1997) (Enhancement for assaulting a government official applicable only when official is victim of the offense).

United States v. Sovie, 122 F.3d 122 (2d Cir. 1997) (Evidence to support enhancement for intending to carry out threat was insufficient).

United States v. Long, 122 F.3d 1360 (11th Cir. 1997) (Abuse of trust enhancement did not apply to prison employee who brought in contraband).

United States v. Hicks, 122 F.3d 12 (7th Cir. 1997) (Burglary of a building was not a crime of violence for career offender enhancement).

United States v. Calozza, 125 F.3d 687 (9th Cir. 1997) (Identical enhancements for separately grouped counts was double-counting).

United States v. Chandler, 125 F.3d 892 (5th Cir. 1997) (Enhancement for drug sale near school only applies when it is charged by indictment).

Cross References

United States v. Lagasse, 87 F.3d 18 (1st Cir. 1996) (There was no link between a knife-point robbery of a coconspirator, and the charged drug conspiracy, to justify an increase in sentence).

United States v. Aderholt, 87 F.3d 740 (5th Cir. 1996) (Murder guidelines were improperly applied in a mail fraud conspiracy because murder was not an object of the conspiracy).

United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997) (Transportation of a child, not involving prostitution or production of a visual depiction, required cross reference to lower base level for sexual contact).

United States v. Jackson, 117 F.3d 533 (11th Cir. 1997) (A police officer convicted of theft should not have been sentenced under civil rights guidelines).

United States v. Cross, 121 F.3d 234 (6th Cir. 1997) (Torture was not relevant conduct in a drug case).

Obstruction of Justice

United States v. Williams, 79 F.3d 334 (2d Cir. 1996) (In order to justify an obstruction of justice enhancement, the court had to find the defendant knowingly made a false statement under oath).

United States v. Strang, 80 F.3d 1214 (7th Cir. 1996) (Perjury in another case did not warrant an obstruction of justice enhancement in the instant case).

United States v. Medina-Estrada, 81 F.3d 981 (10th Cir. 1996) (A court must have found all elements of perjury are proven to give enhancement for obstruction of justice).

United States v. Hernandez, 83 F.3d 582 (2d Cir. 1996) (Staring at a witness and calling them "the devil," did not justify enhancement for intimidation).

United States v. Sisti, 91 F.3d 305 (2d Cir. 1996) (Obstruction of justice was only proper for conduct related to the conviction).

United States v. Ruggiero, 100 F.3d 284 (2d Cir. 1996) ( A judge properly refused to apply an obstruction of justice enhancement).

United States v. Draves, 103 F.3d 1328 (7th Cir.), cert. denied, 117 S.Ct. 2528 (1997) (Fleeing from a police car was not obstruction of justice).

United States v. Harris, 104 F.3d 1465 (5th Cir.), cert. denied, 118 S.Ct. 103 (1997) (Actions of accessory after the fact did not justify obstruction enhancement when those same acts supported the substantive offense).

United States v. Zagari, 111 F.3d 307 (2d Cir. 1997) (There was no finding to support obstruction enhancement).

United States v. Tackett, 113 F.3d 603 (6th Cir. 1997) (The court failed to find that government resources were wasted for obstruction enhancement).

United States v. Sawyer, 115 F.3d 857 (11th Cir. 1997) (Sentencing increase for reckless endangerment only applied to defendant fleeing law enforcement officer, not civilians).

United States v. Sassanelli, 118 F.3d 495 (6th Cir. 1997) (Obstruction findings did not specify which statements were materially untruthful).

United States v. Solono-Godines, 120 F.3d 957 (9th Cir. 1997) (A misrepresentation by the defendant did not obstruct justice).

United States v. Wester, 125 F.3d 1024 (7th Cir. 1997) (A finding that the defendant testified falsely lacked specificity).

Vulnerable Victim

United States v. Shumway, 112 F.3d 1413 (10th Cir. 1997) (Prehistoric skeletal remains were not vulnerable victims).

United States v. Robinson, 119 F.3d 1205 (5th Cir. 1997) (Asian-American merchants were not vulnerable victims).

United States v. Hogan, 121 F.3d 370 (8th Cir. 1997) (Victims must have been targeted in order to be considered vulnerable).

United States v. Monostra, 125 F.3d 183 (3d Cir. 1997) (A victim's vulnerability must facilitate the crime in some manner).

Role

United States v. Moeller, 80 F.3d 1053 (5th Cir. 1996) (No leadership role for a government official who inherited an historically corrupt system, but the defendant's lack of understanding of the entire scheme justified a minimal role adjustment).

United States v. Ivy, 83 F.3d 1266 (10th Cir.), cert. denied, 117 S.Ct. 253 (1996) (There were insufficient findings for a managerial role).

United States v. Lozano-Hernandez, 89 F.3d 785 (11th Cir. 1996) (Leadership role in drug conspiracy was not proven).

United States v. Patasnik, 89 F.3d 63 (2d Cir. 1996) (A management role had to be based on managing people, not assets).

United States v. Wester, 90 F.3d 592 (1st Cir. 1996) (The court failed to make findings there were five or more participants).

United States v. Miller, 91 F.3d 1160 (8th Cir. 1996) (The lack of evidence that the defendant controlled others precluded a leadership role).

United States v. Albers, 93 F.3d 1469 (10th Cir. 1996) (A leadership role had to be based upon leadership, and not the defendant's importance to the success of the conspiracy).

United States v. Delpit, 94 F.3d 1134 (8th Cir. 1996) (A murder-for-hire scheme had less than five participants).

United States v. Avila, 95 F.3d 887 (9th Cir. 1996) (A defendant who was the sole contact between a buyer and a seller was not an organizer).

United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996) (There was an insufficient basis to deny a minor role reduction).

United States v. Jobe, 101 F.3d 1046 (5th Cir. 1996) (Defendant's position as a bank director did not justify managerial role when he did not manage or supervise others).

United States v. DeGovanni, 104 F.3d 43 (3d Cir. 1997) (A corrupt police sergeant was not a supervisor merely because of his rank).

United States v. Jobe, 101 F.3d 1046 (5th Cir.), cert. denied, 118 S.Ct. 81 (1997) (Defendant's position as bank director did not justify managerial role when he did not manage or supervise others).

United States v. Eidson, 108 F.3d 1336 (11th Cir.), cert. denied, 118 S.Ct. 248 (1997) (Clean Water Act violation lacked five participants for role adjustment).

United States v. Haut, 107 F.3d 213 (3d Cir.), cert. denied, 117 S.Ct. 2528 (1997) (Arson defendants who worked at direction of others were minimal participants).

United States v. Gort-Didonato, 109 F.3d 318 (6th Cir. 1997) (To impose an upward role adjustment, the defendant must have supervised at least one person).

United States v. Bryson, 110 F.3d 575 (8th Cir. 1997) (Facts did not support upward adjustment for role).

United States v. Makiewicz, 122 F.3d 399 (7th Cir. 1997) (Defendant was not a leader for asking his father to accompany informant to motel).

United States v. Logan, 121 F.3d 1172 (8th Cir. 1997) (Record did not support role adjustment).

Acceptance of Responsibility

United States v. Fells, 78 F.3d 168 (5th Cir.), cert. denied, 117 S.Ct. 134 (1996) (A defendant making a statutory challenge, could still qualify for acceptance of responsibility).

United States v. Patino-Cardenas, 85 F.3d 1133 (5th Cir. 1996) (There was no basis to deny credit when the defendant did not falsely deny relevant conduct).

United States v. Garrett, 90 F.3d 210 (7th Cir. 1996) (A defendant could not be denied acceptance when he filed an uncounseled, pro se motion to withdraw plea after his attorney died).

United States v. Flores, 93 F.3d 587 (9th Cir. 1996) (A defendant should have received credit for his written statement).

United States v. Atlas, 94 F.3d 447 (8th Cir.), cert. denied, 117 S.Ct. 1276 (1997) (A defendant who timely accepted responsibility must be given the additional one-level downward adjustment).

United States v. Smith, 106 F.3d 350 (11th Cir. 1996) (A defendant could not be denied credit for acceptance of responsibility merely because his attorney objected to the amount of loss calculated in the PSI).

United States v. Ruggiero, 100 F.3d 284 (2d Cir. 1996) (A single false denial did not bar credit for acceptance of responsibility).

United States v. McPhee, 108 F.3d 287 (11th Cir. 1997) (A defendant who qualified should not have been given less than the full three-point reduction for accepting responsibility).

United States v. Guerrero-Cortez, 110 F.3d 647 (8th Cir. 1997) (Defendant's pretrial statements of acceptance justified reduction though case was tried).

United States v. Wright, 117 F.3d 1265 (11th Cir. 1997) (Assertion of a legal argument was not a basis for denying acceptance of responsibility).

Safety Valve

United States v. Shrestha, 86 F.3d 935 (9th Cir. 1996) (Eligibility for the safety valve did not depend on acceptance of responsibility).

United States v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996) (To be eligible for safety valve, a defendant did not need to give information to a specific agent).

United States v. Flanagan, 87 F.3d 121 (5th Cir. 1996) (On remand, the sentencing court could withdraw a leadership role so the defendant could qualify for safety valve).

United States v. Beltran-Ortiz, 91 F.3d 665 (4th Cir. 1996) (Failure to debrief the defendant, thus preventing him from benefiting from the safety valve, violated the plea agreement).

United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996) (The government had to rebut the defendant's version in order to deny safety valve).

United States v. Sherpa, 97 F.3d 1239 (9th Cir.), amended, 110 F.3d 656 (1997) (Even a defendant who claimed innocence was eligible if he meets requirements).

United States v. Wilson, 105 F.3d 219 (5th Cir.), cert. denied, 118 S.Ct. 133 (1997) (A coconspirator's use of a firearm did not bar application of the safety valve).

United States v. Osei, 107 F.3d 101 (2d Cir. 1997) (Two-level safety valve adjustment applied regardless of mandatory minimum).

United States v. Clark, 110 F.3d 15 (6th Cir. 1997) (Safety Valve applied to cases that were on appeal at effective date).

United States v. Mertilus, 111 F.3d 870 (11th Cir. 1997) (Safety valve applied to a telephone count).

Criminal History

United States v. Spell, 44 F.3d 936 (11th Cir. 1995) (Judgement could be the only conclusive proof of prior convictions).

United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996) (Under the Armed Career Criminal Act guidelines, "felon in possession" was not a crime of violence).

United States v. Douglas, 81 F.3d 324 (2d. Cir.), cert. denied, 116 S.Ct. 2514 (1996) (A juvenile sentence, more than five years old, was incorrectly applied).

United States v. Sparks, 87 F.3d 276 (9th Cir. 1996) (An attempted home invasion was not a violent felony under the Armed Career Criminal Act).

United States v. Parks, 89 F.3d 570 (9th Cir. 1996) (No criminal history points could be attributed to a defendant when indigence prevented payment of fines).

United States v. Flores, 93 F.3d 587 (9th Cir. 1996) (The court erroneously twice counted a single probation revocation to increase two prior convictions).

United States v. Ortega, 94 F.3d 764 (2d Cir. 1996) (An uncounseled misdemeanor was improperly counted).

United States v. Easterly, 95 F.3d 535 (7th Cir. 1996) (Fish and game violation should not have been counted).

United States v. Gilcrist, 106 F.3d 297 (9th Cir. 1997) (Sentence, upon which parole began over 15 years ago, could not be counted toward criminal history).

United States v. Rector, 111 F.3d 503 (7th Cir. 1997) (Counting state conviction, for same conduct, toward criminal history, was plain error).

Upward Departures

United States v. Thomas, 62 F.3d 1332 (11th Cir.), cert. denied, 116 S.Ct. 1058 (1996) (Consequential damages did not justify an upward departure unless it was substantially in excess of typical fraud case).

United States v. Henderson, 75 F.3d 614 (11th Cir. 1996) (An upward departure for multiple weapons in a drug case was improper when the defendant was also convicted under 18 U.S.C. §924 (c)).

United States v. Blackwell, 81 F.3d 945 (10th Cir. 1996) (Rule 35 does not give a court jurisdiction to increase a sentence later).

United States v. Harrington, 82 F.3d 83 (5th Cir. 1996) (A court should not have upwardly departed for a defendant's status as an attorney without first considering application of abuse of trust).

United States v. Sherwood, 98 F.3d 402 (9th Cir. 1996) (Just because victims were almost vulnerable, did not justify an upward departure).

United States v. Barber, 93 F.3d 1200 (4th Cir. 1996) (Neither, use of a gun nor premeditation were bases for upward departure in a murder case).

United States v. LeCompte, 99 F.3d 274 (8th Cir. 1996) (Defendant did not get notice of departure, and justification was based on an amendment after offense).

United States v. Valentine, 100 F.3d 1209 (6th Cir. 1996) (The difference between seven and five offenses did not justify multiple count departure).

United States v. Mangone, 105 F.3d 29 (1st Cir.), cert. denied, 117 S.Ct. 2424 (1997) (Failure to give notice of upward departure was plain error).

United States v. Otis, 107 F.3d 481 (7th Cir. 1997) (Failure to give notice of an upward departure was plain error).

United States v. Arce, 118 F.3d 335 (5th Cir. 1997) (Manufacturing firearms was not a basis for upward departure).

United States v. White, 118 F.3d 739 (11th Cir. 1997) (The Sentencing Commission's "undervaluation" of a guideline range was not a ground for upward departure).

United States v. Johnson, 121 F.3d 1141 (8th Cir. 1997) (Defendant did not get notice of upward departure).

United States v. DePace, 120 F.3d 233 (11th Cir. 1997) (An upward departure was without notice).

Downward Departures

United States v. Rodiguez, 64 F.3d 638 (11th Cir. 1995) (A downward departure was allowed to give credit for acceptance of responsibility on consecutive sentences).

United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996) (A downward departure for aberrant behavior should not have been denied without examining the totality of the circumstances).

United States v. Workman, 80 F.3d 688 (2d Cir.), cert. denied, 117 S.Ct. 319 (1996) (A downward departure was permissible for prearrest rehabilitation).

Koon v. United States, 116 S.Ct 2035 (1996) (A district court could depart from the guidelines if (1) the reason was not specifically prohibited by the guidelines; (2) the reason was discouraged by the guidelines but exceptional circumstances apply; and (3) the reason was neither prohibited nor discouraged, and the reason was not previously addressed by the applicable guideline provisions in that case).

United States v. Conway, 81 F.3d 15 (1st Cir. 1996) (A court could not refuse a downward departure based upon information received as part of a cooperation agreement).

United States v. Lindia, 82 F.3d 1154 (1st Cir. 1996) (A court could depart downward from the career offender guidelines).

United States v. Graham, 83 F.3d 1466 (10th Cir.), cert. denied, 117 F.3d 993 (1997) (Extreme vulnerability to abuse in prison could justify a downward departure).

United States v. Walters, 87 F.3d 663 (5th Cir.), cert. denied, 117 S.Ct. 498 (1996) (A downward departure was approved for a defendant who did not personally benefit from money laundering).

United States v. Cubillos, 91 F.3d 1342 (9th Cir. 1996) (A basis for downward departure could no longer be categorically rejected after Koon).

United States v. Jaroszenko, 92 F.3d 486 (7th Cir. 1996) (Remorse could be considered as a ground for downward departure).

United States v. Sanders, 97 F.3d 856 (6th Cir. 1996) (Downward departure was available for an Armed Career Criminal).

United States v. Olbres, 99 F.3d 28 (1st Cir. 1996) (A court could grant departure for effect on innocent employees of the defendant).

United States v. Etherton, 101 F.3d 80 (9th Cir. 1996) (The court had authority to reduce the sentence after a revocation of supervised release when the guidelines were later amended to provide for a lower range).

United States v. Williams, 103 F.3d 57 (8th Cir. 1996) (The court could reduce a sentence for a retroactive amendment even after a reduction under Rule 35).

United States v. Lopez, 106 F.3d 309 (9th Cir. 1997) (Prosecutors' violation of ethical rule in meeting with an indicted defendant justified a downward departure).

United States v. Brock, 108 F.3d 31 (4th Cir. 1997) (Rehabilitation was a proper basis for downward departure).

United States v. Lopez, 106 F.3d 309 (9th Cir. 1997) (Prejudice to a defendant based upon government misconduct was ground for downward departure).

United States v. Wallace, 114 F.3d 652 (7th Cir. 1997) (A court should not have limited a downward departure just because the defendant already received credit for accepting responsibility).

United States v. Alvarez, 115 F.3d 839 (11th Cir. 1997) (A 5K1.1 motion rewards assistance prior to sentencing, while a Rule 35 (b) motion rewards assistance after sentencing. Forcing a defendant to choose when the government would seek a reduction was error).

United States v. McBroom, 124 F.3d 533 (3d Cir. 1997) (Reduced mental capacity was a basis for downward departure in a child porn case).

United States v. Core, 125 F.3d 74 (2d Cir. 1997) (Post-conviction rehabilitation could justify sentence reduction).

Fines / Restitution

United States v. Remillong, 55 F.3d 572 (11th Cir. 1995) (Restitution order reversed for a defendant with no ability to pay and no future prospects).

United States v. Ledesma, 60 F.3d 750 (11th Cir. 1995) (Restitution order could only be applied to charges of conviction).

United States v. Mullens, 65 F.3d 1560 (11th Cir.), cert. denied, 116 S.Ct. 1337 (1996) (Record lacked findings to support restitution).

United States v. Maurello, 76 F.3d 1304 (3d. Cir. 1996) (The court had to make findings in support of a restitution order).

United States v. Reed, 80 F.3d 1419 (9th Cir.), cert. denied, 117 S.Ct. 211 (1996) (Restitution order had to be limited to conduct of conviction).

United States v. Blake, 81 F.3d 498 (4th Cir. 1996) (Restitution could only be based on the loss directly related to the offense, and the court had to make findings that the defendant can pay that amount without undue hardship).

United States v. Giwah, 84 F.3d 109 (2d Cir. 1996) (A restitution order failed to indicate that all statutory factors were considered).

United States v. Sharma, 85 F.3d 363 (8th Cir. 1996) (No reason was given for an upward departure on a fine).

United States v. Hines, 88 F.3d 661 (8th Cir. 1996) (In assessing fine and restitution, the court should have considered the defendant's familial obligations of his recent marriage).

United States v. Santos, 93 F.3d 761 (11th Cir.), cert. denied, 117 S.Ct. 1437 (1997) (A defendant could not be ordered to pay restitution for money taken in a robbery for which he was not convicted).

United States v. Upton, 91 F.3d 677 (5th Cir.), cert. denied, 117 S.Ct. 1818 (1997) (No restitution was available to victims not named in the indictment).

United States v. Sablan, 92 F.3d 865 (9th Cir. 1996) (Consequential expenses could not be included in a restitution order).

United States v. Jaroszenko, 92 F.3d 486 (7th Cir. 1996) (The court failed to fully consider the defendant's ability to pay restitution).

United States v. Sanders, 95 F.3d 449 (6th Cir. 1996) (A court was not required to order restitution).

United States v. Monem, 104 F.3d 905 (7th Cir. 1997) (A court did not make sufficient factual findings to justify the fine of a defendant who claimed inability to pay).

United States v. McMillan, 106 F.3d 322 (10th Cir. 1997) (A court could reduce a fine pursuant to Rule 35 (b)).

United States v. McArthur, 108 F.3d 1350 (11th Cir. 1997) (A defendant could not be ordered to pay restitution for acquitted conduct).

United States v. Eidson, 108 F.3d 1336 (11th Cir.), cert. denied, 118 S.Ct. 248 (1997) (Facts did not support restitution order).

United States v. Messner, 107 F.3d 1448 (10th Cir. 1997) (Restitution had to be based on actual loss).

United States v. Hodges, 110 F.3d 250 (5th Cir. 1997) (Fine was not justified for a defendant with a negative net worth).

United States v. Hodges, 110 F.3d 250 (5th Cir. 1997) (There lacked specific findings about ability to pay fine).

Blaik v. United States, 117 F.3d 1288 (11th Cir. 1997) (Restitution was limited to offense of conviction).

United States v. Gottesman, 122 F.3d 150 (11th Cir. 1997) (A defendant's promise to pay back-taxes did not authorize court-ordered restitution).

United States v. Khawaja, 118 F.3d 1454 (11th Cir. 1997) (The government was not a victim for purposes of awarding restitution).

United States v. Cain, 121 F.3d 385 (8th Cir. 1997) (Fraud committed prior to defendant's participation was not a basis for restitution).

United States v. Baggett, 125 F.3d 1319 (9th Cir. 1997) (Restitution must be based upon a specific statute).

Appeals

United States v. Byerley, 46 F.3d 694 (7th Cir. 1996) (The government waived argument by inconsistent position at sentencing).

United States v. Caraballo-Cruz, 52 F.3d 390 (1st Cir. 1995) (The government defaulted on double jeopardy claim).

United States v. Carillo-Bernal, 58 F.3d 1490 (10th Cir. 1995) (The government failed to timely file certification for appeal).

United States v. Petty, 80 F.3d 1384 (9th Cir. 1996) (Waiver of appeal of an unanticipated error was not enforceable).

United States v. Ready, 82 F.3d 551 (2d Cir. 1996) (Waiver of appeal did not cover issue of restitution and was not waived).

United States v. Agee, 83 F.3d 882 (7th Cir. 1996) (A waiver of appeal, not discussed at the plea colloquy, was invalid).

United States v. Thompson, 82 F.3d 700 (6th Cir. 1996) (Technicalities that did not prejudice the government were not cause to deny a motion to extend time to file an appeal).

United States v. Webster, 84 F.3d 1056 (11th Cir. 1996) (When a law was clarified between trial and appeal, a point of appeal was preserved as plain error).

United States v. Allison, 86 F.3d 940 (9th Cir. 1996) (Remand was proper even though the district court could still impose the same sentence).

United States v. Sanchez, 88 F.3d 1243 (D.C. 1996) (Failure to advise the defendant of his right to appeal was per se error).

United States v. Perkins, 89 F.3d 303 (6th Cir. 1996) (Orally raising an issue at sentencing preserved it for appeal).

United States v. Stover, 93 F.3d 1379 (8th Cir. 1996) (Under the ex post facto clause, an appellate court refused to use a substantive change to the guidelines to uphold a sentence that was improper at the time imposed).

Miller v. Smith, 99 F.3d 120 (4th Cir. 1996) (An indigent defendant's right to a free transcript could not be conditioned upon representation by the public defender).

United States v. Londono, 100 F.3d 236 (2d Cir. 1996) (The defendant's deportation did not moot his appeal).

United States v. Alexander, 106 F.3d 874 (9th Cir. 1997) (Rule of the case barred reconsideration of a suppression order after remand).

United States v. Zink, 107 F.3d 716 (9th Cir. 1997) (Waiver of appeal of sentence did not cover a restitution order).

United States v. Saldana, 109 F.3d 100 (1st Cir. 1997) ( A defendant had a jurisdictional basis to appeal a denial of a downward departure).

Sanders v. United States, 113 F.3d 184 (11th Cir. 1997) (A pro se petitioner's out-of-time appeal was treated as a motion for extension of time).

United States v. Arteaga, 117 F.3d 388 (9th Cir. 1997) (Evidence that was precluded at trial could not support convictions on appeal).

In Re Grand Jury Subpoena, 123 F.3d 695 (1st Cir. 1997) (A third party may appeal the denial of a motion to quash without risking a contempt citation).

Supervised Release / Probation/ Parole

United States v. Doe, 53 F.3d 1081 (9th Cir. 1995) (An unadjudicated juvenile could not be sentenced to supervised release).

United States v. Doe, 79 F.3d 1309 (2d Cir. 1996) (Occupational restriction was not supported by the court's findings).

United States v. Beals, 87 F.3d 854 (7th Cir. 1996) (Imposing a new term of supervised release violated the Ex Post Facto Clause).

United States v. Blake, 88 F.3d 824 (9th Cir. 1996) (When a defendant's sentence of imprisonment was reduced below his time already served, his supervised release began from the day he should have been released).

United States v. Edgin, 92 F.3d 1044 (10th Cir.), cert. denied, 117 S.Ct. 714 (1997) (A court failed to provide adequate reasons to bar a defendant from seeing his son while on supervised release).

United States v. Wright, 92 F.3d 502 (7th Cir. 1996) (Simple possession of drugs was a Grade C, not a Grade A violation, of supervised release).

United States v. Leaphart, 98 F.3d 41 (2d Cir. 1996) (A misdemeanor did not justify a two year term of supervised release).

United States v. Myers, 104 F.3d 76 (5th Cir.), cert. denied, 117 S.Ct. 1709 (1997) (A court could not impose consecutive sentences of supervised release).

United States v. Ooley, 116 F.3d 370 (9th Cir. 1997) (A probationer was entitled to a hearing over a warrantless search).

United States v. Collins, 118 F.3d 1394 (9th Cir. 1997) (Illegal ex post facto application of rule allowing additional term of release after revocation).

United States v. Romeo, 122 F.3d 941 (11th Cir. 1997) (A court could not order deportation as a condition of supervised release).

John v. United States Parole Commission, 122 F.3d 1278 (9th Cir. 1997) (A parolee had a due process right to a hearing and to call witnesses).

United States v. Aimufa, 122 F.3d 1376 (11th Cir. 1997) (A court lacked authority to modify conditions of release after revocation).

United States v. Dozier, 119 F.3d 239 (3d Cir. 1997) (Ex post facto application of additional term of supervised release).

Ineffective Assistance of Counsel

Jackson v. Herring, 42 F.3d 1350 (11th Cir.), cert. denied, 116 S.Ct. 38 (1995) (Trial counsel presented no mitigation evidence in capital case).

United States v. Cook, 45 F.3d 388 (10th Cir. 1995) (The court ordered defendant's counsel to advise a government witness to comply with her plea agreement).

Esslinger v. Davis, 44 F.3d 1515 (11th Cir. 1995) (Counsel failed to determine that the defendant was a habitual offender before plea).

Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995) (Counsel failed to correct state trial judge's misstatements that state sentence could run concurrent with potential federal sentence).

United States v. Stearns, 68 F.3d 328 (9th Cir. 1995) (A counsel failed to file notice of appeal).

Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995) (Failure to file notice of appeal after request by defendant).

United States v. Hansel, 70 F.3d 6 (2d Cir. 1995) (Counsel failed to raise statute of limitations).

United States v. Streater, 70 F.3d 1314 (D.C. 1995) (Counsel gave bad legal advice about pleading guilty).

Martin v. United States, 81 F.3d 1083 (11th Cir. 1996) (Counsel failed to file a notice of appeal when requested to do so by the defendant).

Sager v. Maass, 84 F.3d 1212 (9th Cir. 1996) (Counsel was found ineffective for not objecting to inadmissible evidence).

Glock v. Singletary, 84 F.3d 385 (11th Cir.), cert. denied, 117 S.Ct. 616 (1996) (Counsel's failure to discover and present mitigating evidence at the sentencing proceeding required an evidentiary hearing).

United States v. McMullen, 86 F.3d 135 (8th Cir. 1996) (Counsel's bad sentencing advice required remand).

United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996) (Prejudice was presumed when trial counsel was forced to prove his own ineffectiveness at a hearing).

Baylor v. Estelle, 94 F.3d 1321 (9th Cir.), cert. denied, 117 S.Ct. 1329 (1997) (Counsel was ineffective for failing to follow up on lab reports suggesting that the defendant was not the rapist).

Huynh v. King, 95 F.3d 1052 (11th Cir. 1996) (A lawyer's failure to raise a suppression issue was grounds for remand).

United States v. Baramdyka, 95 F.3d 840 (9th Cir.), cert. denied, 117 S.Ct. 1282 (1997) (An appeal waiver did not bar a claim of ineffective assistance of counsel).

Fern v. Gramley, 99 F.3d 255 (7th Cir. 1996) (Prejudice could be presumed from an attorney's failure to file an appeal upon the defendant's request).

Martin v. Maxey, 98 F.3d 844 (5th Cir. 1996) (Failure to file a motion to suppress could be grounds for ineffectiveness claim).

United States v. Glover, 97 F.3d 1345 (10th Cir. 1996) (It was ineffective for counsel to fail to object to the higher methamphetamine range).

Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (Failure to investigate the defendant's mental illness was ineffective assistance of counsel).

Griffin v. United States, 109 F.3d 1217 (7th Cir. 1997) (Counsel's advice to dismiss appeal to file motion to reduce a sentence was prima facie evidence of ineffective assistance of counsel).

United States v. Kauffman, 109 F.3d 186 (3d Cir. 1997) (Failure to investigate insanity defense was ineffective assistance of counsel).

Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (Failure to investigate the defendant's mental illness was ineffective assistance of counsel).

United States v. Gaviria, 116 F.3d 1498 (D.C. 1997) (Counsel was ineffective for giving incorrect sentencing information in contemplation of plea).

Robbins v. Smith, 125 F.3d 831 (Anders brief that did not review possible grounds for appeal was ineffective).

Habeas Corpus

United States v. Duarte-Higareda, 68 F.3d 369 (9th Cir. 1995) (Failure to appoint counsel for evidentiary hearing on §2255 petition).

White v. Butterworth, 70 F.3d 573 (11th Cir.), corrected, 78 F.3d 500 (1995) ("In custody" requirement was satisfied when an expired sentence was used to enhance a current sentence).

Upshaw v. Singletary, 70 F.3d 576 (11th Cir. 1995) (Claim of ineffective assistance of counsel at plea was not waived even though not raised on direct appeal).

United States v. Levay, 76 F.3d 671 (5th Cir. 1996) (A defendant could challenge drug quantity calculations, based upon excludable material, by §2255 petition.

United States v. Cox, 83 F.3d 336 (10th Cir. 1996) (It was proper to attack a guidelines sentence by a §2255 petition when prior convictions, used in the criminal history calculation, were later successfully attacked).

United States v. Pettiford, 101 F.3d 199 (1st Cir. 1996) (A prisoner could file a §2255 petition to attack a federal sentence based on state convictions that were later overturned).

Downey v. Crabtree, 100 F.3d 662 (9th Cir. 1996) (BOP could not deny a sentence reduction for drug treatment merely because the defendant's sentence contained an enhancement for a firearm, when the underlying sentence was nonviolent).

Anderson v. Singletary, 111 F.3d 801 (11th Cir. 1997) (Prison Litigation Reform Act did not require a filing fee in habeas cases).

Bracy v. Gramley, 117 S.Ct. 1793 (1997) (Petitioner could get discovery of trial judge's bias against him).

Roussos v. Menifee, 122 F.3d 159 (3d Cir. 1997) (A gun enhancement for a drug crime did not justify exclusion from a BOP drug treatment program).

Editor: Alexander Bunin

Executive Director

Southern District of Alabama Federal Defenders Organization

2 South Water Street, 2nd Floor

Mobile, AL 36602

(334) 433-0910

(334) 433-0686 FAX

The Federal Defender's Office

Central District of Illinois

401 Main Street, Suite 1500

Peoria, Illinois 61602

Phone: 309/671-7891

Fax: 309/671-7898

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