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Central District of Illinois Federal Defenders Vol. No. 28 Reversible Error 2002

attorneys from all divisions will attend, but DEFENDER’S MESSAGE especially those in the Urbana Division. Please make every effort to attend the seminar and take advantage of the opportunity to not only benefit I am pleased to present you with another from the topics addressed, but also enjoy meeting “Reversible Error” Special Edition of The Back and conversing with other CJA panel attorneys in Bencher. Alex Bunin, the Federal Defender for the your division. Northern District of New York and Vermont, has compiled cases from every federal circuit finding Please notify the Peoria office if you plan to attend reversible error since 1995, and he has generously by May 2, 2002. You may do so by mail or phone. shared his work with us, which we now pass on to The Peoria office is located at 401 Main Street, you. His compilation will undoubtedly be of use to Suite 1500, Peoria, IL 61602, and the telephone you when defending your clients both in the district number is (309) 671-7891. court and on appeal. We hope to see you there. Also useful to you in your practice will be our upcoming panel attorney seminar open to all panel attorneys. With the cooperation of Judge Yours very truly, McCuskey, the seminar will be held in the Urbana Division at the federal courthouse on May 9, 2002, at 3:00 pm. The program will last approximately two and one-half hours, with a social gathering Richard H. Parsons afterward at a place to be determined. Federal Public Defender Central District of Illinois Dean Strang, the Federal Defender for the Eastern District of Wisconsin in Milwaukee, will address the critical topic of Motions Practice in Federal Court; George Taseff, Senior Litigator, will address Table Of Contents the topic of New Tools of the Trade for Effective Federal Advocacy; and Jonathan Hawley, Appellate Churchilliana ...... 2 Division Chief, will give an Update on Recent Dictum Du Jour ...... 3 Seventh Circuit and Supreme Court Opinions. Welcome Aboard ...... 6 Additionally, a great deal of written materials in Reversible Error both hard copy and CD will also be available at no Release ...... 6 cost to you. Counsel ...... 7 Discovery ...... 8 As you know, federal criminal defense practice is a Arrests ...... 8 Search of Persons ...... 9 challenging and complex area of the law. Periodic Search of Private Vehicles ...... 9 training and communication with fellow Search of Commercial Vehicles ...... 10 practitioners is essential to providing quality Search of Packages ...... 10 Search of Private Property ...... 11 representation to our clients. It is hoped that Warrants ...... 11 P 2 Reversible Error 2002 The BACK BENCHER

Knock and Announce ...... 12 Sentencing - Firearms ...... 42 Statements ...... 12 Sentencing - Money Laundering ...... 42 Recusal ...... 13 Sentencing - Pornography ...... 43 Indictments ...... 13 Sentencing - Fraud / Theft ...... 43 Limitation of Actions ...... 13 Enhancements - General ...... 44 Venue ...... 13 Enhancements - Drug Crimes ...... 44 Pretrial Procedure ...... 14 Enhancements - Violence ...... 45 Severance ...... 14 Enhancements - Immigration ...... 46 Conflicts ...... 14 Career Enhancements ...... 46 Competency / Sanity ...... 14 Cross References ...... 47 Privilege ...... 15 Abuse of Trust ...... 48 Jeopardy / Estoppel ...... 15 Obstruction of Justice ...... 48 Plea Agreements ...... 16 Vulnerable Victim ...... 49 Guilty Pleas ...... 17 Aggravating Role ...... 49 Timely Prosecution ...... 18 Mitigating Role ...... 50 Jury Selection ...... 19 Acceptance of Responsibility ...... 50 Closure ...... 19 Safety Valve ...... 51 Jury Trial ...... 19 Criminal History ...... 51 Confrontation ...... 20 Upward Departures ...... 52 Impeachment ...... 20 Downward Departures ...... 53 Co-Defendant’s Statements ...... 21 Fines / Restitution ...... 54 Misconduct ...... 21 Appeals ...... 56 Extraneous Evidence ...... 22 Resentencing ...... 56 Identification ...... 23 Supervised Release / Probation ...... 57 Expert Testimony ...... 23 Ineffective Assistance of Counsel ...... 57 Entrapment ...... 24 Defenses ...... 24 Jury Instructions ...... 25 Deliberations ...... 25 Variance ...... 26 CHURCHILLIANA Speech / Assembly ...... 26 Interstate Commerce ...... 26 In 1944, Churchill made a Christmas visit to Conspiracy ...... 27 Athens. In Athens, the Prime Minister met General Firearms ...... 28 Alexander. He asked Alexander what kind of a man was Extortion ...... 29 Damaskenos, the Orthodox Archbishop of Greece. Drugs ...... 29 CCE / RICO ...... 30 “Is he one of those priestly ascetics concerned only Fraud / Theft ...... 31 with spiritual grace or one of those crafty prelates Money Laundering ...... 33 concerned rather with temporal gain? Aiding and Abetting ...... 33 Perjury ...... 34 “Regrettably,” replied Macmillan, “the archbishop False Statements ...... 34 seems to be one of the latter.” Contempt ...... 34 Immigration ...... 35 “Good,” replied Churchill, rubbing his hands. Pornography ...... 35 “Then he is just our man.” Violent Crimes ...... 35 Assimilative Crimes ...... 36 Miscellaneous Crimes ...... 36 Juveniles ...... 36 Sentencing - General ...... 37 Grouping ...... 38 Consecutive/Concurrent ...... 39 Retroactivity ...... 39 Sentencing - Marijuana ...... 39 Sentencing - Meth ...... 40 Sentencing - Heroin ...... 40 Sentencing - Cocaine ...... 40 Sentencing - Crack ...... 41 P 3 Reversible Error 2002 The BACK BENCHER

To prevent this abuse, it is reasonable doubt. This notion is necessary from the very nature of basic in our law and rightly one of Dictum Du Jour things, power should be a check to the boasts of a free society - is a power.” requirement and a safeguard of due As warm bread is sliced by process of law in the historic, a gleaming knife This case provides us with a procedural content of ‘due May sunlight cut through textbook example of the abuse of process’”. In re Winship, 397 U.S. the harsh winter cold executive power contemplated by 358, 362 (1970) (quoting dissent in May God’s love shine Montesquieu, Lord Acton, and the Leland v. Oregon, 343 U.S. 790, brightly in your common life Framers of our Constitution. Rather 802-03 (1952)). Second, the right to And may your own romance than adhere to the clear letter of the counsel does not require a showing be never old law, which itself is the ultimate of actual innocence. Kimmelman, May hope increase with check against arrogation of power, 477 U.S. at 380. Third, the Sixth each lengthening day the prosecutor apparently Amendment commands that even And rout the ache of hurt deliberately withheld from the trial where there is no defense theory and conflict’s gloom court and from the jury admissible available, counsel still has a duty to May loyal friends never be evidence that would cause any fair- hold the state to it’s “heavy burden” far away minded person to have grave to prove guilt beyond reasonable With the promise that spring reservations about the credibility of doubt. Cronic, 466 U.S. at 657 n. will surely bloom a key government witness. 19. May our good God of songs round the fireplace - Benn v. Lambert, These principles together Of love and laughter, of 2__ F.3d ___, 2002 U.S. App. require that we not limit ineffective good wine and fun LEXIS 2899, *58-*59 (9th Cir. Feb. assistance to only those claims Lurk always in your home’s 26, 2002) (Trott, J., concurring). where defendant can demonstrate hidden space his innocence. Because the right to And bind you in love when counsel safeguards the right to a fair each day is done * * * * * * * * * * trial, and because a fair trial requires And may God bless you and that a defendant’s guilt be proven keep you close “As the district court aptly observed, beyond a reasonable doubt, the right Father, Son, and Holy Spirit “While it may have been incredibly to effective assistance of counsel stupid and short-sighted for extends to those cases in which we ~ Old Irish Proverb [McCoy] to have offered his lack confidence that the jury would opinions and experiences to a group have been convinced of a * * * * * * * * * * of teen-aged gangster wanna-be’s, defendant’s guilt beyond a the Constitution protects even stupid reasonable doubt had he been In large measure, the Framers were speech.” afforded adequate counsel. influenced by Charles de Secondat, Strickland, 466 U.S. at 694. This baron de Montesquieu, an astute - McCoy v. Stewart, court’s task is not to determine a student of history and politics in his 2__ F.3d ___, 2002 U.S. App. defendant’s guilt or innocence but to own right, who, in his seminal work LEXIS 2900, *13 (9th Cir. Feb. 26, determine, with all due deference to The Spirit of the Laws, said: 2002). the jury and the trial process itself, whether defendant was deprived of “Democratic and * * * * * * * * * * a fair trial.” aristocratic states are not in their own nature free. Political liberty is “More generally, based on several * * * * * * * * * * to be found only in moderate principles that are fundamental to governments; and even in these it is the right to the assistance of not always found. It is there only counsel, we cannot conclude that when there is no abuse of power: just because defendant has not but constant experience shows us advanced a theory of innocence he * * * * * * * * * * that every man invested with power ipso facto was afforded effective is apt to abuse it, and to carry his assistance of counsel. First, Although prepared for martyrdom, I authority as far as it will go. Is it constitutional due process requires preferred that it be postponed. not strange, though true, to say that that a criminal defendant’s guilt be virtue itself has need of limits? proved beyond a reasonable doubt. - Winston Churchill ‘It is the duty of the Government to establish . . . guilt beyond a * * * * * * * * * * P 4 Reversible Error 2002 The BACK BENCHER

The Microsoft/Netscape ... brouhaha turned out that the chopper was It is fun being in the same decade is the sort of battle one thinks about homing in on the emergency locator with you. when considering lawsuits under beacon that activated when the raft federal antitrust laws. One does not was inflated. They are no longer - Franklin Delano Roosevelt (in a ordinarily conjure up the same sort employed at Boeing. letter to Churchill, 1942) of images when thinking about two little retail stores in suburban Here’s your sign guys. Don’t get it * * * * * * * * * * Chicago duking it out over blue wet, the paint might run. jeans and T-shirts. I had the story, bit by bit, from Idiot #3 various people, and, as generally - 42nd Parallel North v. E. Street happens in such cases, each time it Denim Co., slip op. (7th Cir A true story out of San Francisco: was a different story. 2/13/2002). A man, wanting to rob a downtown - Edith Wharton, Ethan Frome Bank of America walked into the (opening line)(1911) branch and wrote “this is a stikkup. The following are contributed by Put all your muny in this bag.” our good friend Dale Cobb, the * * * * * * * * * * While standing in line, waiting to noted criminal defense lawyer, bon give his note to the teller, he began vivant, raconteur, boulevardier and Get your facts first, then you can to worry that someone had seen him lawyer extraordinaire. distort them as you please. write the note and might call the police before he reached the teller’s - Mark Twain Top 8 Idiots of 2001 window. So he left the Bank of From Kristol America and crossed the street to * * * * * * * * * * Wells Fargo. After waiting a few Idiot #1 minutes in line, he handed his note My divorce came as a complete to the Wells Fargo teller. She read surprise to me. That will happen I am a medical student currently it and, surmising from his spelling when you haven’t been home in doing a rotation in toxicology at the errors that he wasn’t the brightest eighteen years. poison control center. Today, this light in the harbor, told him that she woman called in very upset because could not accept his stickup note - Lee Trevino she caught her little daughter eating because it was written on a Bank of ants. I quickly reassured her that the America deposit slip and that he * * * * * * * * * * ants are not harmful and there would would either have to fill out a Wells be no need to bring her daughter Fargo deposit slip or go back to Glory is fleeting, but obscurity is into the hospital. She calmed down, Bank of America. Looking forever. and at the end of the conversation somewhat defeated, the man said, happened to mention that she gave “OK” and left. He was arrested a - Napoleon Bonaparte her daughter some ant poison to eat few minutes later, as he was waiting in order to kill the ants. I told her in line back at Bank of America. that she better bring her daughter * * * * * * * * * * into the emergency room right away. Don’t bother with the guy’s sign. This court’s Settlement Conference Here’s your sign lady. Wear it with He probably couldn’t read it Office invited the parties to try to pride. anyway. resolve their differences, and at a meeting hosted by one of our Idiot #2 Idiot #4 settlement attorneys the parties reached an oral agreement. Seems that a year ago, some Boeing A motorist was unknowingly caught Unfortunately, they do not agree on employees on the airfield decided to in an automated speed trap that the contents of this agreement .... steal a life raft from one of the 747s. measured his speed using radar and They were successful in getting it photographed his car. He later - Herrnreiter v. Chicago out of the plane and home. When received in the mail a ticket for $40 th Housing Authority, slip op. (7 Cir they took it for a float on the river, a and a photo of his car. Instead of 2/13/2002). Coast Guard helicopter coming payment, he sent the police towards them surprised them. It department a photograph of $40. * * * * * * * * * * Several days later, he received a P 5 Reversible Error 2002 The BACK BENCHER letter from the police that contained some booze, and run. So he lifted leaves and makes them perspire. another picture, this time of the cinder block and heaved it over handcuffs. He immediately mailed his head at the window. The cinder Q: What is a planet? in his $40. block bounced back and hit the A: A body of earth surrounded by would-be thief on the head, sky. Another sign (though this guy might knocking him unconscious. Seems be onto something worth thinking the liquor store window was made Q: What guarantees may a mortgage about!) of Plexiglass. The whole event was company insist on? caught on video tape. A: If you are buying a house, they Idiot #5 will insist you are well endowed. Oh, that smarts. Give him his sign! Guy walked into a little corner store Q: What are steroids? with a shotgun and demanded all the Idiot #8 A: Things for keeping carpets still cash from the cash drawer. After on the stairs. the cashier put the cash in a bag, the Ann Arbor: The Ann Arbor News robber saw a bottle of scotch that he crime column reported that a man Q: What happens to your body as wanted behind the counter on the walked into a Burger King in you age? shelf. He told the cashier to put it in Ypsilanti, Michigan at 12:50 a.m., A: When you get old, so do your the bag as well, but the cashier flashed a gun and demanded cash. bowels and you get intercontinental. refused and said, “Because I don’t The clerk turned him down because believe you are over 21.” The he said he couldn’t open the cash Q: What happens to a boy when he robber said he was, but the clerk still register without a food order. When reaches puberty? refused to give it to him because he the man ordered onion rings, the A: He says good-bye to his boyhood didn’t believe him. At this point the clerk said they weren’t available for and looks forward to his adultery. robber took his driver’s licence out breakfast. The man, frustrated, of his wallet and the man was in fact walked away. Q: Name a major disease associated over 21 and he put the scotch in the with cigarettes. bag. The robber then ran from the Please note that these people are A: Premature death. store with his loot. The cashier allowed to vote AND BREED! promptly called the police and gave Q: How can you delay milk turning the name and address of the robber * * * * * * * * * * sour? that he got off the license. They A: Keep it in the cow. arrested the robber two hours later.

Remind me to have more signs printed up. Give this guy his! Q: How are the main parts of the body categorized? (e.g., abdomen). * * * * * * * * * * A: The body is consisted into three Idiot #6 parts -- the brainium, the borax and These are actual test answers from the abdominal cavity. The brainium A pair of Michigan robbers entered various schools: contains the brain, the borax a record shop nervously waving contains the heart and lungs, and the revolvers. The first one shouted, Q: Name the four seasons. abdominal cavity contains the five “Nobody move!” When his partner A: Salt, pepper, mustard, and bowels, A, E, I, O, and U. moved, the startled first bandit shot vinegar. him. Q: What is the Fibula? Q: Explain one of the processes by A: A small lie. This guy doesn’t need a sign. He which water can be made safe to probably figured it out himself. drink. Q: What does "varicose" mean? A: Flirtation makes water safe to A: Nearby. Idiot #7 drink because it removes large pollutants like grit, sand, dead sheep Q: Give the meaning of the term Arkansas: Seems this guy wanted and canoeists. "Caesarian Section." some beer pretty badly. He decided A: The caesarian section is a district that he’d just throw a cinder block Q: How is dew formed? in Rome. through a liquor store window, grab A: The sun shines down on the P 6 Reversible Error 2002 The BACK BENCHER

Q: What is a seizure? For the past five years, he has been clients. The editor does not promise A: A Roman emperor. in private practice defending the that cases are precedent in all citizen accused in state and federal jurisdictions. If a case is preceded Q: What is a terminal illness? cases of all types, and he was a by an asterisk (*), that means the A: When you are sick at the airport. member of our CJA panel in the case may have been distinguished Central District of Illinois until by another panel of that circuit or by Q: Give an example of a fungus. accepting a position with our office. another circuit. It should be What is a characteristic feature? researched to see if it is authority in A: Mushrooms. They always grow Included among the hundreds of your jurisdiction. in damp places and so they look like cases with which Rob has been umbrellas. involved over the last 18 years are a * * * * * * * * * * dozen first degree murder jury trials, Q: Use the word "judicious" in a including two capital cases. He has sentence to show you understand its also made numerous arguments Release meaning. before the intermediate appellate A: Hands that judicious can be soft courts in Illinois and has argued *United States v. Goosens, 84 F.3d as your face. before the Illinois Supreme Court on 697 (4th Cir. 1996) (Prohibiting a two occasions. While a prosecutor, defendant from active cooperation Q: What does the word "benign" he was involved with the Illinois with the police was an abuse of mean? State Police Drug Interdiction discretion). A: Benign is what you will be after Program in the early 1990s, you be eight. litigating cases involving some of United States v. Porotsky, 105 the largest cocaine and marijuana F.3d 69 (2d Cir. 1997) (Court Q: What is a turbine? seizures in Illinois history. denied travel request based on A: Something an Arab wears on his conclusions made by probation). head. Rob’s broad experience as both a prosecutor and a defender will United States v. Swanquist, 125 Q: What is a Hindu? undoubtedly be of great value to our F.3d 573 (7th Cir. 1997) (Court A: It lays eggs. office and the clients we represent. failed to give reasons for denying We are glad that Rob has agreed to release on appeal). put his talents and experience to work for the indigent citizen- United States v. Fisher, 137 F.3d accused, and we look forward to 1158 (9th Cir. 1998) (Defendant did working with him. not fail to appear for trial that had been continued).

United States v. Baker, 155 F.3d WELCOME ABOARD Reversible Errors: 392 (4th Cir. 1998) (Cannot put conditions of release on person We would like to extend a warm 2001 Edition acquitted by reason of insanity who welcome to our newest team is not a danger). member, Assistant Federal Public The following is a project of the Defender Robert A. Alvarado. Rob Office of the Federal Public comes to our office with over 18 Defender for the Districts of Counsel years of experience as a criminal Northern New York & Vermont. United States v. Cash, 47 F.3d trial attorney. After graduating from The cases listed are those in which a 1083 (11th Cir. 1995) (Defendant the University of Illinois Law criminal defendant received relief could not waive counsel without School, Rob worked for five years from an United States Court of proper findings by court). as a Cook County Assistant State’s Appeals or the United States Attorney, where he worked in both Supreme Court. The precedents United States v. McKinley, 58 F.3d the appeals and the felony trial were reviewed shortly before this 1475 (10th Cir. 1995) (Court division. During this time, he publication was released to assure improperly denied self- authored training materials for trial they had not be overruled. attorneys which are still in use by representation). that office today. He then worked The purpose of this project is to try United States v. McDermott, 64 for eight years as the First Assistant to give CJA Panel Attorneys a F.3d 1448 (10th Cir.), cert. denied, State’s Attorney for LaSalle County. shortcut to case law that favor their P 7 Reversible Error 2002 The BACK BENCHER

516 U.S. 1121 (1996) (Barring United States v. Taylor, 113 F.3d *United States v. Russell, 205 F.3d defendant from sidebars with stand- 1136 (10th Cir. 1997) (Court did not 768 (5th Cir. 2000) (Absence of by counsel denied self- assure a proper waiver of counsel). lawyer due to illness did not waive representation). right to counsel). Blankenship v. Johnson, 118 F.3d *United States v. Goldberg, 67 312 (5th Cir. 1997) (When the United States v. Hayes, 231 F.3d F.3d 1092 (3rd Cir. 1995) prosecution sought discretionary 1132 (9th Cir. 2000) (Defendant did (Defendant did not forfeit counsel review, the defendant had a right to not voluntarily waive by threatening his appointed counsel). representation). attorney). *United States v. Mills, 138 F.3d Buhl v. Cooksey, 233 F.3d 783 (3rd United States v. Duarte-Higareda, 928 (11th Cir.), modified, 152 F.3d 2000) (Defendant did not 68 F.3d 369 (9th Cir. 1995) (Court 937, cert. denied, 525 U.S. 1003 voluntarily waive counsel at trial). failed to appoint counsel for (1998) (Defendant could not be evidentiary hearing). made to share codefendant counsel’s United States v. Boone, 245 F.3d cross-examination of government 352 (4th Cir. 2001) (Two attorneys Delguidice v. Singletary, 84 F.3d witness). must be appointed for defendant 1359 (11th Cir. 1996) facing death-eligible crime). (Psychological testing of a United States v. Pollani, 146 F.3d defendant without notice to counsel 269 (5th Cir. 1998) (Pro se Fisher v. Roe, 263 F.3d 906 (9th violated the Sixth Amendment). defendant’s late request for counsel Cir. 2001) (Defendant had right to should have been honored). counsel during reading of Williams v. Turpin, 87 F.3d 1204 testimony). (11th Cir. 1996) (State that created Henderson v. Frank, 155 F.3d 159 a statutory right to a motion for new (3rd Cir. 1998) (Defendant was United States v. Davis, 269 F.3d trial must afford counsel and an denied counsel at suppression 514 (5th Cir. 2001) (Judge must evidentiary hearing). hearing). warn defendant of effects of hybrid counsel). United States v. Klat, 156 F.3d United States v. Ming He, 94 F.3d 1258 (D.C. Cir. 1999) (Counsel was 782 (2d Cir. 1996) (Cooperating required at competency hearing). Discovery defendant had the right to have United States v. Alzate, 47 F.3d counsel present when attending a *United States v. Iasiello, 166 F.3d 1103 (11th Cir. 1995) (A prosecutor presentence debriefing). 212 (3rd Cir. 1999) (Indigent withheld exculpatory evidence). defendant had right to appointed Weeks v. Jones, 100 F.3d 124 (11th counsel at hearing). United States v. Barnes, 49 F.3d Cir. 1996) (Right to counsel in a 1144 (6th Cir. 1995) (Request for habeas claim did not turn on the United States v. Proctor, 166 F.3d discovery of extraneous evidence merits of the petition). 396 (1st Cir. 1999) (Ambiguous created a continuing duty to request for counsel tainted previous disclose). United States v. Keen, 104 F.3d waiver). 1111 (9th Cir. 1996) (Court did not *United States v. Boyd , 55 F.3d sufficiently explain to a defendant United States v. Leon-Delfis, 203 239 (7th Cir. 1995) (Government the dangers of pro se F.3d 103 (1st Cir. 2000) failed to disclose drug use and drug representation). (Questioning after polygraph dealing by prisoner-witnesses). violated defendant’s right to *Carlo v. Chino, 105 F.3d 493 (9th counsel). *United States v. Hanna, 55 F.3d Cir. 1997) (State statutory right to 1456 (9th Cir. 1995) (Prosecutor post-booking phone calls was *United States v. Hernandez, 203 should have learned of Brady protected by federal due process). F.3d 614 (9th Cir. 2000) (Defendant material even if it was not in her was denied self-representation at possession). United States v. Amlani, 111 F.3d plea). 705 (9th Cir. 1997) (Prosecutor’s Kyles v. Whitley, 514 U.S. 419 repeated disparagement of an Roney v. United States, 205 F.3d (1995) (Prosecution failed to turn attorney in front of his client, denied 1061 (8th Cir. 2000) (Petitioner was over material and favorable the defendant his right to chosen entitled to counsel on a motion to evidence, sufficient to change result counsel). vacate sentence). P 8 Reversible Error 2002 The BACK BENCHER of case). 1333 (11th Cir. 1999) (Defendant and inconsistencies did not validate was denied opportunity to depose continued traffic stop). United States v. Wood, 57 F.3d witness who was outside country). 733 (9th Cir. 1995) (Government *United States v. Buchanon, 72 failed to disclose favorable FDA *United States v. Riley, 189 F.3d F.3d 1217 (6th Cir. 1995) materials). 802 (9th Cir. 1999) (Intentional (Defendants were seized when the destruction of notes of interview troopers separated them from their United States v. Camargo- with informant violated Jencks Act). vehicle). Vergara, 57 F.3d 993 (11th Cir. 1995) (Government failed to Nuckols v. Gibson, 233 F.3d 1261 United States v. Roberson, 90 F.3d disclose defendant’s post-arrest (10th Cir. 2000) (Government failed 75 (3rd Cir. 1996) (Anonymous call statement). to disclose criminal allegations did not give officers reasonable against key prosecution witness). suspicion to stop a defendant on the In Re Grand Jury Investigation, street merely because his clothes 59 F.3d 17 (2d Cir. 1995) (Court United States v. Abbott, 241 F.3d matched the caller’s description). properly required disclosure of 29 (1st Cir. 2001) (Government was documents subpoenaed by the grand obligated to disclose linkage jury). between plea agreements of defendant and his mother). *United States v. Davis, 94 F.3d United States v. O’Conner, 64 1465 (10th Cir. 1996) (No F.3d 355 (8th Cir.), cert. denied, 517 Mitchell v. Gibson, 262 F.3d 1036 reasonable suspicion for stop of a U.S. 1174 (1996) (Evidence of (10th Cir. 2001) (Withholding defendant known generally as a government witness threats and exculpatory evidence that could gang member and drug dealer). collaboration were not disclosed). have affected sentence). Washington v. Lambert, 98 F.3d In Re Grand Jury, 111 F.3d 1083 Boss v. Pierce, 263 F.3d 734 (7th 1181 (9th Cir. 1996) (General (3rd Cir. 1997) (Government could Cir. 2001) (Witness’s statement may description of two African- not seek disclosure of phone not be available to defendant American males did not justify conversations that were illegally through due diligence). stop). recorded by a third party). McCambridge v. Hall, 266 F.3d 12 *United States v. Jerez, 108 F.3d United States v. Arnold, 117 F.3d (1st Cir. 2001) (Objection not 684 (7th Cir. 1997) (Nighttime 1308 (11th Cir. 1997) (Prosecutor required to preserve Brady confrontation by police at the withheld exculpatory tapes of violation). defendant’s door was a seizure). government witnesses). United States v. Bass, 266 F.3d 532 United States v. Miller, 146 F.3d *United States v. Vozzella, 124 (6th Cir. 2001) (Government’s study 274 (5th Cir. 1998) (Leaving turn F.3d 389 (2d Cir. 1997) (Evidence on racial disparities in prosecution signal on violated no law and did of perjured testimony should have warranted discovery of decision to not justify stop). been disclosed). seek death penalty). *United States v. Jones, 149 F.3d United States v. Fernandez, 136 364 (5th Cir. 1998) (Agent lacked F.3d 1434 (11th Cir. 1998) (Court Arrests reasonable suspicion for must hold hearing when defendant investigatory immigration stop). *United States v. Lambert, 46 makes showing of a Brady F.3d 1064 (10th Cir. 1995) violation). *United States v. Acosta-Colon, (Defendant was seized while agents 157 F.3d 9 (1st Cir. 1999) held his driver’s license for over 20 (Defendant’s 30 minute handcuffed United States v. Mejia-Mesa, 153 minutes). F.3d 925 (9th Cir. 1998) (Brady detention, preventing him from claim required hearing). boarding flight, was not lawful United States v. Little, 60 F.3d 708 stop). (10th Cir. 1995) (Requiring a United States v. Scheer, 168 F.3d passenger to go to the baggage area United States v. Salvano, 158 F.3d 445 (11th Cir. 1999) (Government restrained her liberty). failed to disclose it had intimidated 1107 (10th Cir. 1999) (Cross key prosecution witness). country trip, nervousness, nor scent *United States v. Mesa, 62 F.3d of evergreen, justified warrantless 159 (6th Cir. 1995) (Nervousness United States v. Ramos, 179 F.3d detention). P 9 Reversible Error 2002 The BACK BENCHER

United States v. Dortch, 199 F.3d 1009 (9th Cir. 2001) (Manipulating United States v. Cooper, 133 F.3d 193 (5th Cir.), amended, 203 F.3d small box in clothing exceeded pat- 1394 (11th Cir. 1998) (Defendant 883 (2000) (Continued detention down search). had reasonable expectation of after traffic stop was unreasonable). privacy in rental car four days after Fontana v. Haskin, 262 F.3d 871 contract expired). United States v. Freeman, 209 (9th Cir. 2001) (Claim of sexual F.3d 464 (6th Cir. 2000) (Crossing harassment by officer was allegation *United States v. Beck, 140 F.3d lane-divider did not create probable of illegal search). 1129 (8th Cir. 1998) (Continued cause for traffic stop). detention of vehicle was not justified by articuable facts). United States v. Thomas, 211 F.3d 1186 (9th Cir. 2000) (Tip did not provide reasonable suspicion for *United States v. Rodriguez- stop). Rivas, 151 F.3d 377 (5th Cir. 1998) Search of (Vehicle stop lacked reasonable United States v. Guevara- Private Vehicles suspicion). Martinez, 262 F.3d 751 (8th Cir. 2001) (Illegal arrest tainted later United States v. Adams, 46 F.3d United States v. Huguenin, 154 fingerprint evidence). 1080 (11th Cir. 1995) (Suppression F.3d 547 (6th Cir. 1998) of evidence seized from motor home (Checkpoint stop to merely look for Northrop v. Trippett, 265 F.3d was upheld). drugs was unreasonable). 372 (6th Cir. 2001) (Anonymous tip of two black males wearing brand United States v. Chavis, 48 F.3d United States v. Rivas, 157 F.3d clothing and selling drugs did not 871 (5th Cir. 1995) (Court 364 (5th Cir. 1999) (1. Drilling into justify detention). improperly placed the burden on the trailer was not routine border defendant to show a warrantless search; 2. No evidence that drug Sparing v. Village of Olympia search occurred). dog’s reaction was an alert). Fields, 266 F.3d 68 (7th Cir. 2001) (Entering screen door without United States v. Angulo- United States v. Iron Cloud, 171 consent was an arrest). Fernandez, 53 F.3d 1177 (10th Cir. F.3d 587 (8th Cir. 1999) (Portable 1995) (Confusion about who owned breath test results were inadmissible a stalled vehicle did not create as evidence of intoxication). Search of probable cause for its search). Persons Knowles v. Iowa, 525 U.S. 113 Ornelas v. United States, 517 U.S. (1999) (Speeding ticket does not *United States v. Caicedo, 85 F.3d 690 (1996) (Defendant’s motion to justify full search of vehicle). 1184 (6th Cir. 1996) (Record lacked suppress should be given de novo evidence to support a finding of the review by the court of appeals). *United States v. Payne, 181 F.3d defendant’s consent to search). 781 (6th Cir. 1999) (Parole officer United States v. Duguay, 93 F.3d did not have reasonable suspicion to *United States v. Eustaquio, 198 346 (7th Cir.), cert. denied, 526 U.S. search defendant’s trailer and truck). F.3d 1068 (8th Cir. 1999) (No 1029 (1999) (Car could not be reasonable suspicion to search bulge impounded for a later search unless *United States v. Lopez-Soto, 205 on defendant’s midriff). the arrestee could not provide for its F.3d 1101 (9th Cir. 2000) (No good removal). faith mistake to warrantless car United States v. Gray, 213 F.3d search). 998 (8th Cir. 2000) (No reasonable *United States v. Elliott, 107 F.3d suspicion to stop defendant for 810 (10th Cir. 1997) (Consent to United States v. Wald, 216 F.3d protective frisk). look in trunk was not consent to 1222 (10th Cir. 2000) (Odor of open containers within). burnt methamphetamine in United States v. Burton, 228 F.3d passenger compartment did not 524 (4th Cir. 2000) (Officer’s safety United States v. Chan-Jimenez, provide probable cause to search alone did not justify search of 125 F.3d 1324 (9th Cir. 1997) trunk). pocket). (Defendant did not consent to search of truck). United States v. Baker, 221 F.3d United States v. Miles, 247 F.3d 438 (3rd Cir. 2000) (No reasonable P 10 Reversible Error 2002 The BACK BENCHER suspicion to justify search of trunk). 1393 (11th Cir. 1998) (Bus *United States v. Rouse, 148 F.3d passenger did not voluntarily 1040 (8th Cir. 1998) (Search of bags United States v. Holt, 229 F.3d 931 consent to search). lacked probable cause). (10th Cir. 2000) (Questioning about weapons exceeded stop). *United States v. Washington, 151 *United States v. Allen, 159 F.3d F.3d 1354 (11th Cir. 1998) (Bus 832 (4th Cir. 1999) (Inevitable United States v. Jones, 234 F.3d passenger was searched without discovery doctrine did not apply to 234 (5th Cir. 2000) (Continued voluntary consent). cocaine found in duffle bag later detention tainted search despite detected by dog and warrant). initial consent). Bond v. United States, 529 U.S. 334 (2000) (Manipulation of bag United States v. Johnson, 171 F.3d United States v. Jones, 242 F.3d found on bus was illegal search). 601 (8th Cir. 1999) (No reasonable 215 (4th Cir. 2001) (Anonymous tip suspicion to intercept delivery of did not justify investigatory stop of United States v. Stephens, 206 package). vehicle). F.3d 914 (9th Cir. 2000) (Defendant was illegally seized and searched on United States v. Osage, 235 F.3d United States v. Reinholz, 245 bus). 518 (10th Cir. 2000) (Consent to F.3d 765 (8th Cir. 2001) search suitcase did not extend to (Warrantless arrest lacked probable United States v. Drayton, 231 F.3d sealed can inside). cause). 787 (11th Cir.), cert. denied, 122 S.Ct. 803 (2002) (Search at depot United Staes v. Runyan, 275 F.3d United States v. Sigmond- was not voluntary). 449 (5th Cir. 2001) (Police could Ballesteros, 247 F.3d 943 (9th Cir. not open closed container 2001) (Lacked reasonable suspicion discovered by previous private to search car for undocumented Search of search). aliens). Packages Search of United States v. Caro, 260 F.3d United States v. Doe, 61 F.3d 107 1209 (10th Cir. 2001) (Officer (1st Cir. 1995) (Warrantless testing Private Property needed probable cause to look for of packages at an airport checkpoint VIN number inside door). lacked justification). United States v. Hill, 55 F.3d 479 (9th Cir. 1995) (Remand was United States v. Nee, 261 F.3d 79 *United States v. Ali, 68 F.3d required to see if there was a truly (1st Cir. 2001) (Suppression upheld 1468, modified, 130 F.3d 33 (2d viable independent source for the when officer’s were found not to be Cir. 1995) (Checking whether the search). credible about stop). defendant had a valid export license was not a proper ground for *United States v. Ford, 56 F.3d United States v. Gomez, 276 F.3d seizure). 265 (D.C. Cir. 1995) (Search under 694 (5th Cir. 2001) (Homeowner a mattress and behind a window had expectation of privacy to United States v. Odum, 72 F.3d shade exceeded a protective sweep). vehicle of third party parked in 1279 (7th Cir. 1995) (Court was driveway). limited to facts at the time the stop United States v. Tovar-Rico, 61 occurred to evaluate reasonableness F.3d 1529 (11th Cir. 1995) Search of of the seizure). (Possibility that surveillance officer was observed, did not create Commercial United States v. Nicholson, 144 exigency for warrantless search of F.3d 632 (10th Cir. 1998) (1. apartment). Vehicles Feeling through sides of bag was a search; 2. Abandonment of bag was *United States v. Cabassa, 62 F.3d *United States v. Garzon, 119 F.3d involuntary). 470 (2d Cir. 1995) (Exigent 1446 (10th Cir. 1997) (1. Passenger circumstances were not relevant to did not abandon bag by leaving it on *United States v. Fultz, 146 F.3d the inevitable discovery doctrine). bus; 2. General warrantless search 1102 (9th Cir. 1998) (Guest had of all bus passengers by dog was expectation of privacy in boxes he *United States v. Mejia, 69 F.3d illegal). stored at another’s home). 309 (9th Cir. 1995) (Inevitable discovery doctrine did not apply *United States v. Guapi, 144 F.3d P 11 Reversible Error 2002 The BACK BENCHER where the police simply failed to get not enter open door of garage). a warrant). United States v. Foster, 104 F.3d 1228 (10th Cir. 1996) (Flagrant J.B. Manning Corp. v. United disregard for the specificity of a States, 86 F. 3d 926 (9th Cir. 1996) United States v. Lewis, 231 F.3d warrant required suppression of all (Good faith exception to the warrant 238 (6th Cir. 2000) (Absent found). requirement does not affect motions probable cause, exigent to return property). circumstances did not permit entry United States v. Castillo-Garcia, to home). 117 F.3d 1179 (10th Cir.), cert. United States v. Leake, 95 F.3d denied, 522 U.S. 962 (1997) 409 (6th Cir. 1996) (Neither the United States v. Santa , 236 F.3d (Government failed to show the independent source rule, nor the 325 (6th Cir. 2001) (Search of necessity for wiretaps). inevitable discovery rule, saved apartment lacked exigent otherwise inadmissible evidence). circumstances). United States v. McGrew, 122 F.3d 847 (9th Cir. 1997) (Search United States v. Madrid, 152 F.3d *United States v. Gamez-Orduno, warrant affidavit lacked 1034 (8th Cir. 1998) (Inevitable 235 F.3d 453 (9th Cir. 2000) particularity). discovery doctrine did not save (Overnight guests had standing to illegal search of house). challenge search). United States v. Alvarez, 127 F.3d 372 (5th Cir. 1997) (Warrant United States v. Ivy, 165 F.3d 397 United States v. Heath, 259 F.3d affidavit contained a false statement (6th Cir. 1999) (Consent to enter 522 (6th Cir. 2001) (Allowing made in reckless disregard for the home was not shown to be officer to examine keys was not truth). voluntary). consent to open and enter apartment). *United States v. Schroeder , 129 *United States v. Johnson, 170 F.3d 439 (8th Cir. 1997) (Warrant F.3d 708 (7th Cir. 1999) (Officers did not authorize a search of lacked reasonable suspicion to Warrants adjoining property). prevent occupant from leaving home). *United States v. Van Damme 48 In Re Grand Jury Investigation, F.3d 461 (9th Cir. 1995) (No list of 130 F.3d 853 (9th Cir. 1997) items to be seized under the United States v. Kiyuyung, 171 (Search warrant was overbroad). warrant). F.3d 78 (2d Cir. 1999) (Firearms found during warrantless search *United States v. Hotal, 143 F.3d were not in plain view). United States v. Mondragon, 52 1223 (9th Cir. 1998) (Anticipatory F.3d 291 (10th Cir. 1995) search warrant failed to identify (Supplemental wiretap application Flippo v. West Virginia, 528 U.S. triggering event for execution). failed to show necessity). 11 (1999) (No crime scene exception to warrant requirement). United States v. Albrektsten, 151 *United States v. Kow, 58 F.3d F.3d 951 (9th Cir. 1998) (Arrest 423 (9th Cir. 1995) (Warrant failed United States v. Sandoval, 200 warrant did not permit search of to identify business records with F.3d 659 (9th Cir. 2000) (Defendant defendant’s motel room). particularity, and good faith did not had reasonable expectation of apply). privacy in tent on public land). United States v. Ford, 184 F.3d 566 (6th Cir.), cert. denied, 528 U.S. *United States v. Weaver, 99 F.3d United States v. Vega, 221 F.3d 1161 (2000) (Search warrant 1372 (6th Cir. 1996) (Bare bones, 789 (5th Cir.), cert. den. 531 1155 authorized broader search than boilerplate affidavit was insufficient (2000) (The police cannot create reasonable). to justify warrant). exigency for search of leased home). United States v. Herron, 215 F.3d Marks v. Clarke, 102 F.3d 1012 United States v. Reid, 226 F.3d 812 (8th Cir. 2000) (No reasonable (9th Cir.), cert. denied, 522 U.S. 907 1020 (9th Cir. 2000) (Non-resident officer would have relied on such a (1997) (Warrant to search two did not have apparent authority to deficient warrant). residences did not authorize the allow search of apartment). officers to search all persons present). United States v. Oaxaca, 233 F.3d 1154 (9th Cir. 2000) (Agents could United States v. Tuter, 240 F.3d P 12 Reversible Error 2002 The BACK BENCHER

1292 (10th Cir. 2001) (Anonymous 1461 (9th Cir. 1995) (Immunity (10th Cir. 2000) (Admission of tip lacked reliability to support agreement required a hearing on confession was not harmless). warrant). whether the defendant’s statements were used to aid the government’s United States v. Martinez-Gaytan, United States v. King, 244 F.3d case). 213 F.3d 890 (5th Cir. 2000) (Agent 736 (9th Cir. 2001) (Officer’s who did not speak Spanish could mistaken belief that ordinance was United States v. Tenorio, 69 F. 3d not introduce defendant’s Spanish violated did not provide reasonable 1103 (11th Cir. 1995) (Post- confession). suspicion to stop). Miranda statements were improperly admitted). Dickerson v. United States, 530 Leveto v. Lapina, 258 F.3d 156 U.S. 428 (2000) (Miranda warnings (3rd Cir. 2001) (Search warrant for United States v. Ali, 86 F.3d 275 are required by Fifth Amendment). home did not justify pat-down of (2nd Cir. 1996) (Custodial owner). interrogation required Miranda United States v. Orso, 234 F.3d warnings). 436 (9th Cir. 2000) (Officer lied to United States v. Blackmon, 273 get admissions). F.3d 1204 (9th Cir. 2001) (Police *In Re Grand Jury Subpoena may not borrow information from Dated April 9, 1996, 87 F.3d 1198 Gardner v. Johnson, 247 F.3d 551 previous wiretap warrant in another (11th Cir. 1996) (Custodian of (5th Cir. 2001) (Pyschiatrist’s case). records could not be compelled to warnings about self-incrimination testify as to the location of were insufficient). documents not in her possession Knock and when those documents incriminated Announce her). Recusal *Bracy v. Gramley, 520 U.S. 899 Wilson v. Arkansas, 514 U.S. 927 United States v. Trzaska, 111 F.3d (1997) (Petitioner could get (1995) ("Knock and announce" rule 1019 (2d Cir. 1997) (Defendant’s discovery of trial judge’s bias implicated the Fourth Amendment). statement to probation officer was inadmissible). against him) United States v. Zermeno, 66 F.3d *United States v. Jordan, 49 F.3d 1058 (9th Cir. 1995) (Officers failed *United States v. D.F., 115 F.3d 152 (5th Cir. 1995) (Judge should to knock and announce during a 413 (7th Cir. 1997) (Statements have been recused because the drug search). taken from a juvenile in a mental health facility were involuntary). defendant made claims against family friend of the judge). *United States v. Bates, 84 F.3d 790 (6th Cir. 1996) (Officers did not United States v. Abdi, 142 F.3d *United States v. Avilez-Reyes, have the right to break down an 566 (2d Cir. 1998) (Defendant’s 160 F.3d 258 (5th Cir. 1999) (Judge apartment door without first uncounseled statement was should have recused himself in case knocking and announcing their erroneously admitted). where attorney testified against presence). *United States v. Garibay, 143 judge in disciplinary hearing). Richards v. Wisconsin, 520 U.S. F.3d 534 (9th Cir. 1998) (Defendant United States v. Scarfo, 263 F.3d 385 (1997) (No blanket drug with limited English and low mental 80 (3rd Cir. 2001) (Judge should exception to the knock and capacity did not voluntarily waive have recused himself if he felt announce requirement). Miranda). prejudiced by news article). United States v. Cantu, 230 F.3d United States v. Chamberlain, 163 148 (5th Cir. 2000) (“Knock and F.3d 499 (8th Cir. 1999) (Inmate announce” applies to all attempts at under investigation was entitled to Indictments forcible entry). Miranda warnings). United States v. Holmes, 44 F.3d United States v. Tyler, 164 F.3d 1150 (2d Cir. 1995) (Money 150 (3rd Cir. 1999) (Police did not laundering and structuring counts honor defendant’s invocation of based on the same transaction were Statements silence). multiplicious).

*United States v. Dudden, 65 F.3d Pickens v. Gibson, 206 F.3d 988 P 13 Reversible Error 2002 The BACK BENCHER

United States v. Hairston, 46 F.3d (7th Cir. 1995) (Statute of limitations F.3d 785 (9th Cir.), cert. denied, 361 (4th Cir. 1995) (Multiple ran from the day of deposit, not the 529 U.S. 1028 (1999) (Venue was payments were part of the same day the deposit was processed). improper for undocumented alien offense). discovered in one district and tried United States v. Spector, 55 F.3d in another). United States v. Graham, 60 F.3d 22 (1st Cir. 1995) (Agreement to 463 (8th Cir. 1995) (Multiplicious to waive the statute of limitations was United States v. Williams, 274 charge the same false statement invalid because it was not signed by F.3d 1079 (6th Cir. 2001) (Sale to made on different occasions). the government). government informant did not bring the conspiracy within district’s *United States v. Kimbrough, 69 United States v. Podde, 105 F.3d venue). F.3d 723 (5th Cir.), cert. denied, 517 813 (2d Cir. 1997) (Statute of U.S. 1157 (1996) (Multiple limitations barred the reinstatement possessions of child pornography of charges that were dismissed in a Pretrial should have been charged in a single plea agreement). Procedure count). United States v. Manges, 110 F.3d United States v. Ramos, 45 F.3d *United States v. Cancelliere, 69 1162 (5th Cir.), cert.denied, 523 1519 (11th Cir. 1995) (Trial judge F.3d 1116 (11th Cir. 1995) (Court U.S. 1106 (1998) (Conspiracy wrongly refused deposition without amended charging language of charge was barred by statute of inquiring about testimony or its indictment during trial). limitations). relevance).

*United States v. Johnson, 130 United States v. Grimmett, 236 United States v. Smith, 55 F.3d F.3d 1420 (10th Cir. 1997) (Gun F.3d 452 (8th Cir. 2001) (Statute of 157 (4th Cir. 1995) (Government’s possession convictions for the same limitations had run since motion for dismissal should have firearm were multiplicious). defendant’s withdrawal from the been granted). conspiracy). United States v. Morales, 185 F.3d United States v. Gonzalez, 58 F.3d 74 (2ndCir. 1999) (Racketeering Venue 459 (9th Cir. 1995) (Government’s enterprise did not last for duration motion for dismissal should have alleged in indictment). *United States v. Miller, 111 F.3d been granted). 747 (10th Cir. 1997) (Court refused *United States v. Dubo, 186 F.3d a jury instruction on venue in a *United States v. Young, 86 F.3d 1177 (9th Cir. 1999) (Indictment did multi-district conspiracy case). 944 (9th Cir. 1996) (Court not allege mens rea). improperly denied a hearing on a United States v. Carter, 130 F.3d motion to compel the government to United States v. Nunez, 180 F.3d 1432, cert. denied, 523 U.S. 1041 immunize a witness). 227 (5th Cir. 1999) (Indictment (10th Cir. 1997) (Requested failed to charge an offense). instruction on venue should have United States v. Mathurin, 148 been given). F.3d 68 (2d Cir. 1998) (Court United States v. Dipentino, 242 improperly denied hearing on F.3d 1090 (9th Cir. 2001) (Trial motion to suppress). court constructively amended indictment). United States v. Cabrales, 524 Severance U.S. 1 (1998) (Venue for money laundering was proper only where United States v. Olson, 262 F.3d *United States v. Breinig, 70 F.3d offenses were begun, conducted and 795 (8th Cir. 2001) (Bank robbery 850 (6th Cir. 1995) (Severance completed). indictment failed to allege a taking should have been granted where the by force or intimidation). codefendant’s defense included *United States v. Brennan, 183 prejudicial character evidence F.3d 139 (2d Cir. 1999) (Venue for regarding the defendant). Limitation of mail fraud permissible only in districts where proscribed acts *United States v. Baker, 98 F.3d Actions occurred). 330 (8th Cir.), cert. denied, 520 U.S. 1179 (1997) (Evidence admissible United States v. Li, 55 F.3d 325 *United States v. Hernandez, 189 against only one codefendant P 14 Reversible Error 2002 The BACK BENCHER required severance). (2nd Cir. 1995) (Court misapplied *United States v. Mason, 52 F.3d the crime-fraud exception). United States v. Jordan, 112 F.3d 1286 (4th Cir. 1995) (Court failed to 14 (1st Cir.), cert. denied, 523 U.S. apply a reasonable cause standard to United States v. Rowe, 96 F.3d 1041 (1998) (Charges should have competency hearing). 1294 (9th Cir. 1996) (In-house been severed when a defendant investigation by attorneys associated wanted to testify regarding one Cooper v. Oklahoma, 517 U.S. 348 with the defendant/lawyer was count, but not others). (1996) (Court could not require a covered by the attorney-client defendant to prove his incompetence privilege). United States v. Cobb, 185 F.3d by a higher standard than 1193 (11th Cir. 1999) (Court preponderance of evidence). Mockaitis v. Harcleroad, 104 F.3d erroneously denied severance under 1522 (9th Cir. 1997) (Clergy- Bruton). United States v. Davis, 93 F.3d communicant privilege was upheld). 1286 (6th Cir. 1996) (Court did not have the statutory authority to order United States v. Bauer, 132 F.3d Conflicts a mental examination of a defendant 504 (9th Cir. 1997) (Questioning of who wished to raise the defense of defendant’s bankruptcy attorney United States v. Shorter, 54 F.3d diminished capacity). 1248 (7th Cir.), cert. denied. 516 violated attorney-client privilege). U.S. 896 (1995) (Actual conflict United States v. Williams, 113 *United States v. Glass, 133 F.3d when the defendant accused counsel F.3d 1155 (10th Cir. 1997) of improper behavior). 1356 (10th Cir. 1998) (Defendant’s (Defendant’s actions during trial psychotherapist-patient privilege warranted a competency hearing). *Ciak v. United States, 59 F.3d was violated). 296 (2d Cir. 1995) (Actual conflict United States v. Nevarez-Castro, for attorney who had previously Swinder & Berlin v. United States, 120 F.3d 190 (9th Cir. 1997) (Court 524 U.S. 399 (1998) (Attorney- represented a witness against the refused to hold a competency defendant). client privilege survives client’s hearing). death). United States v. Malpiedi, 62 F.3d United States v. Haywood, 155 United States v. Millard, 139 F.3d 465 (2d Cir. 1995) (Conflict for F.3d 674 (3rd Cir. 1999) (Defendant counsel representing witness who 1200 (8th Cir.), cert. denied, 525 allegedly restored to competency U.S. 949 (1998) (Statements during gave damaging evidence against his required second hearing). defendant). plea discussions were erroneously admitted). *United States v. Jiang, 140 F.3d 124 (2d Cir. 1998) (Attorney’s In re Sealed Case, 146 F.3d 881 potential conflict required remand (D.C. Cir. 1998) (Documents for hearing). prepared in anticipation of litigation Privilege were work product). United States v. Kliti, 156 F.3d 150 Ralls v. United States, 52 F.3d 223 (2d Cir. 1998) (Court should have (9th Cir. 1995) (Fee information was Mitchell v. United States, 526 U.S. held hearing on defense counsel’s inextricably intertwined with 314 (1999) (Guilty plea does not potential conflict). privileged communications). waive privilege against self incrimination at sentencing). Perrillo v. Johnson, 205 F.3d 775 *United States v. Sindel, 53 F.3d (5th Cir. 2000) (Actual conflict 874 (8th Cir. 1995) (Fee information existed in successive prosecutions of could not be released without Jeopardy / codefendants). disclosing other privileged information). Estoppel Lockhart v. Terhune, 250 F.3d 1223 (9th Cir. 2001) (Counsel had *United States v. Gertner, 65 F.3d United States v. Abcasis, 45 F.3d actual conflict of interest). 963 (1st Cir. 1995) (IRS summons 39 (2d Cir. 1995) Government was of attorney was just a pretext to estopped from convicting a person investigate her client). when its agents caused that person Competency / in good faith to believe they were Sanity In Re Richard Roe Inc., 68 F.3d 38 acting under government authority). P 15 Reversible Error 2002 The BACK BENCHER

acquittal on the other offense to United States v. Weems, 49 F.3d which jeopardy barred retrial). Plea 528 (9th Cir. 1995) (Government Agreements was estopped from proving element United States v. Stoddard, 111 previously decided in forfeiture F.3d 1450 (9th Cir. 1997) (1. United States v. Clark, 55 F.3d 9 case). Second drug conspiracy prosecution (1st Cir. 1995) (Government was barred by double jeopardy; 2. breached the agreement by arguing United States v. Sammaripa, 55 Collateral estoppel barred false against acceptance of F.3d 433 (9th Cir. 1995) (Mistrial statement conviction, based upon responsibility). was not justified by manifest drug ownership for which defendant necessity). had been previously acquitted). *United States v. Laday, 56 F.3d 24 (5th Cir. 1995) (Government United States v. McLaurin, 57 United States v. Romeo, 114 F.3d breached the agreement by failing to F.3d 823 (9th Cir. 1995) (Defendant 141 (9th Cir. 1997) (After an give the defendant an opportunity to could not be retried for bank acquittal for possession, an cooperate). robbery after conviction on the importation charge was barred by lesser included offense of larceny). collateral estoppel). *United States v. Washman, 66 F.3d 210 (9th Cir. 1995) (Defendant Rutledge v. United States , 517 United States v. Turner, 130 F.3d could have withdrawn his plea up U.S. 292 (1996) (Defendant could 815 (8th Cir. 1997) (Prosecution of until the time the court accepted the not be punished for both a count, identical to one previously plea agreement). conspiracy and a continuing dismissed, was barred). criminal enterprise based upon a United States v. Levay, 76 F.3d single course of conduct). United States v. Downer, 143 F.3d 671 (5th Cir. 1996) (Defendant 819 (4th Cir. 1998) (Court’s could not be enhanced with a prior Venson v. State of Georgia, 74 substitution of conviction for lesser drug conviction when the F.3d 1140 (11th Cir. 1996) offense, after reversal, violated Ex government withdrew notice as part (Prosecutor’s motion for mistrial Post Facto Clause and Grand Jury of a plea agreement). was not supported by manifest Clause). necessity). United States v. Taylor, 77 F.3d 368 (11th Cir. 1996) (Defendant United States v. Dunford, 148 F.3d could withdraw his guilty plea when 385 (4th Cir. 1998) (Convictions for the government failed to United States v. Holloway, 74 F.3d 6 firearms and ammunition was unequivocally recommend a 249 (11th Cir. 1996) (Prosecutor’s multiplicious). sentence named in the agreement). promise not to prosecute, made at a civil deposition, was the equivalent United States v. Beckett, 208 F.3d *United States v. Velez Carrero, of use immunity for a related 140 (3rd Cir. 2000) (Sentences for 77 F.3d 11 (1st Cir. 1996) criminal proceeding). robbery and armed robbery violated (Agreement to recommend no double jeopardy). enhancement was breached by the United States v. Hall, 77 F.3d 398 th government’s neutral position at (11 Cir.), cert. denied. 519 U.S. United States v. Kithcart, 218 F.3d sentencing). 849 (1996) (Possession of a firearm 213 (3rd Cir. 2000) (Government and its ammunition could only yield could not relitigate suppression United States v. Dean, 87 F.3d a single sentence). motion). 1212 (11th Cir. 1996) (Judge could modify the forfeiture provisions of a United States v. Garcia, 78 F.3d United States v. Kramer, 225 F.3d plea agreement, when the forfeiture 1517 (11th Cir. 1996) (Acquittal for 847 (7th Cir. 2000) (Defendant was was unfairly punitive). knowingly conspiring barred a entitled to attack underlying state second prosecution for the child support obligation). *United States v. Kummer, 89 substantive crime). F.3d 1536 (11th Cir. 1996) Morris v. Reynolds, 264 F.3d 38 th (Defendants who pleaded guilty to Terry v. Potter, 111 F.3d 454 (6 (2d Cir. 2001) (Jeopardy attaches at accepting a gratuity under plea Cir. 1997) (When a defendant was unconditional acceptance of guilty agreements could have withdrawn charged in two alternate manners, plea). their pleas when they were and the jury reached a verdict as to sentenced under bribery guidelines). only one, there was an implied P 16 Reversible Error 2002 The BACK BENCHER

United States v. Ritsema, 89 F.3d to adhere to unconditional promise sentencing). 392 (7th Cir. 1996) (A court could to move for downward departure not ignore a previously adopted plea violated plea agreement). Dunn v. Collernan, 247 F.3d 450 agreement at resentencing). (3rd Cir. 2001) (Prosecutor’s *United States v. Isaac, 141 F.3d recommendation of “lengthy United States v. Belt, 89 F.3d 710 477 (3rd Cir. 1998) (Plea sentence” violated plea agreement). (10th Cir. 1996) (Failure to object to agreements referring to substantial the government’s breach of the plea assistance departures were subject to Gunn v. Ignacio, 263 F.3d 965 (9th agreement was not a waiver). contract law). Cir. 2001) (Prosecutor breached agreement by opposing concurrent United States v. Beltran-Ortiz, 91 United States v. Brye, 146 F.3d sentence). F.3d 665 (4th Cir. 1996) (Failure to 1207 (10th Cir. 1998) debrief the defendant, thus (Government’s opposition to preventing him from benefiting downward departure breached plea Guilty Pleas from the safety valve, violated the agreement). plea agreement). United States v. Maddox, 48 F.3d United States v. Castaneda, 162 555 (D.C. 1995) (A summary United States v. Hawley, 93 F.3d F.3d 832 (5th Cir. 1999) rejection of a guilty plea was 682 (10th Cir. 1996) (Government (Government failed to prove improper). violated its plea agreement not to defendant violated transactional oppose credit for acceptance of immunity agreement). *United States v. Ribas- responsibility). Dominicce, 50 F.3d 76 (1st Cir. *United States v. Lawlor, 168 F.3d 1995) (Court misstated the mental United States v.Van Thournout, 633 (2d Cir. 1999) (Government state required for the offense). 100 F.3d 590 (8th Cir. 1996) breached plea agreement that (Government breached an stipulated to a specific offense *United States v. Goins, 51 F.3d agreement from another district to level). 400 (4th Cir. 1995) (Court failed to recommend concurrent time). admonish the defendant about the United States v. Nathan, 188 F.3d mandatory minimum punishment). *United States v. Sandoval-Lopez, 190 (3rd Cir. 1999) (Statement 122 F.3d 797 (9th Cir. 1997) made after plea agreement was not *United States v. Casallas, 59 F.3d (Defendant could attack illegal stipulation). 1173 (11th Cir. 1995) (Trial judge conviction without fear that improperly became involved in plea dismissed charges in plea agreement United States v. Frazier, 213 F.3d bargaining during colloquy). would be revived). 409 (7th Cir. 2000) (Government *United States v. Smith, 60 F.3d cannot unilaterally retreat from plea th United States v. Wolff, 127 F.3d 84 agreement without hearing). 595 (9 Cir. 1995) (Court failed to (D.C. Cir.), cert. denied, 118 S.Ct. explain the nature of the charges to 2325 (1998) (Government’s failure United States v. Baird, 218 F.3d the defendant). to argue for acceptance of 221 (3rd Cir.2000) (Plea agreement *United States v. Gray, 63 F.3d 57 responsibility breached agreement prevented use of information at any st and required entire sentence to be proceeding). (1 Cir. 1995) (Defendant who did reconsidered). not understand the applicability of United States v. Mondragon, 228 the mandatory minimum could United States v. Gilchrist, 130 F.3d 978 (9th Cir. 2000) (Prosecutor withdraw his plea). F.3d 1131 (3rd Cir. 1997) (Plea breached plea agreement by United States v. Daigle, 63 F.3d agreement was breached by recommending sentence). th imposing a higher term of 346 (5 Cir. 1995) (Court supervised release). United States v. Randolph, 230 improperly engaged in plea F.3d 243 (6th Cir. 2000) bargaining). United States v. Johnson, 132 F.3d (Prosecution in second jurisdiction 628 (11th Cir. 1998) (Prosecutor violated plea agreement). United States v. Martinez-Molina, violated plea agreement by urging 64 F.3d 719 (1st Cir. 1995) (Court higher drug quantity). United States v. Johnson, 214 F.3d failed to inquire whether the plea 1049 (8th Cir. 2001) (Government was voluntary or whether the *United States v. Mitchell, 136 breached plea agreement by failing defendant had been threatened or F.3d 1192 (8th Cir. 1998) (Failure to file departure motion before coerced). P 17 Reversible Error 2002 The BACK BENCHER

*United States v. Showerman, 68 coerced). United States v. Blackwell, 172 F.3d 1524 (2d Cir. 1995) (Court F.3d 129 (2d Cir.), superceded, 199 failed to advise the defendant that he *United States v. Brown, 117 F.3d F.3d 623 (1999) (Omissions during might be ordered to pay restitution). 471 (11th Cir. 1997) colloquy voided plea). (Misinformation given to the United States v. Tunning, 69 F.3d defendant made his plea United States v. Gomez-Orozco, 107 (6th Cir. 1995) (Government involuntary). 188 F.3d 422 (7th Cir. 1999) (Proof failed to recite evidence to prove of citizenship required withdrawal allegations in an Alford plea). United States v. Pierre, 120 F.3d of guilty plea to illegal re-entry 1153 (11th Cir. 1997) (Plea was charge). United States v. Guerra, 94 F.3d involuntary when defendant 989 (5th Cir. 1996) (Plea was mistakenly believed he had United States v. Guess, 203 F.3d vacated when the court gave the preserved an appellate issue). 1143 (9th Cir. 2000) (Record did defendant erroneous advice about not support guilty plea to firearm enhancements). *United States v. Cazares, 121 charge). F.3d 1241 (9th Cir. 1997) (Plea to *United States v. Quinones, 97 drug conspiracy was not an United States v. James, 210 F.3d F.3d 473 (11th Cir. 1996) (Court admission of an alleged overt act). 1342 (11th Cir. 2000) (Plea failed to ensure that the defendant colloquy did not cover elements of understood the nature of the United States v. Toothman, 137 offense). charges). F.3d 1393 (9th Cir. 1998) (Plea could be withdrawn based upon United States v. Barrios- *United States v. Cruz-Rojas, 101 misinformation about guideline Gutierrez, 255 F.3d 1024 (9th Cir.), F.3d 283 (2d Cir. 1996) (Guilty range). cert. denied, 122 S.Ct. 567 (2001) pleas were vacated to determine (Defendant was not informed of whether factual basis existed for United States v. Gobert, 139 F.3d statutory maximum). carrying a firearm). 436 (5th Cir. 1998) (Insufficient factual basis existed for defendant’s United States v. Santo, 225 F.3d 92 *United States v. Siegel, 102 F.3d guilty plea). (1st Cir. 2000) (Court understated 477 (11th Cir. 1996) (Failure to mandatory minimum at plea). advise the defendant of the United States v. Gigot, 147 F.3d maximum and minimum mandatory 1193 (10th Cir. 1998) (Failure to United States v. Ruiz, 229 F.3d sentences required that the admonish defendant of elements of 1240 (9th Cir. 2000) (Withdrawal of defendant be allowed to withdraw offense and possible penalties guilty plea for newly discovered his plea). rendered plea involuntary). evidence should be allowed for “fair and just reason”). United States v. Shepherd, 102 United States v. Thorne, 153 F.3d F.3d 558 (DC Cir. 1996) (Court 130 (4th Cir. 1998) (Court failed to United States v. Castro-Gomez, abused its discretion in rejecting the advise defendant of the nature of 233 F.3d 684 (1st Cir. 2000) (Court defendant’s mid-trial guilty plea). supervised release). did not inform defendant he was subject to mandatory life sentence). United States v. Still, 102 F.3d 118 *United States v. Odedo, 154 F.3d (5th Cir.), cert. denied, 522 U.S. 806 937 (9th Cir. 1998) (Defendant not United States v. Markin, 263 F.3d (1997) (Court failed to admonish the admonished about nature of 491 (6th Cir. 2001) (Judge cannot defendant on the mandatory charges). participate in negotiations once minimum). guilty plea is entered). United States v. Suarez, 155 F.3d United States v. Amaya, 111 F.3d 521 (5th Cir. 1998) (Defendant was United States v. Lujano-Perez, 386 (5th Cir. 1997) (Defendant’s not admonished as to nature of 274 F.3d 219 (5th Cir. 2001) (Court plea was involuntary when the court charges). must explain nature of the charges). promised to ensure a downward departure for cooperation). *United States v. Andrades, 169 F.3d 131 (2d Cir. 1999) (Court Timely *United States v. Gonzalez, 113 failed to determine whether Prosecution F.3d 1026 (9th Cir. 1997) (Court defendant understood basis for plea, should have held a hearing when the and failed to receive sufficient United States v. Verderame, 51 defendant claimed his plea was factual basis). P 18 Reversible Error 2002 The BACK BENCHER

F.3d 249 (11th Cir.), cert. denied, 426 (6th Cir. 2000) (Unnecessary 1092 (6th Cir. 1998) (Plan which 516 U.S. 954 (1995) (Trial court delay while motion was pending resulted in removal of 1 in 5 blacks denied repeated, unopposed motions required dismissal with prejudice). from panel, violated Jury Selection for continuance in drug conspiracy and Service Act). case, with only 34 days to prepare). *United States v. Ramirez-Cortez, 213 F.3d 1149 (9th Cir. 2000) United States v. Jones, 56 F.3d 581 (Failure to make “ends of justice” (5th Cir. 1995) Open-ended findings for speedy trial exclusion). United States v. Tucker, 137 F.3d continuance violated the Speedy 1016 (8th Cir. 1998) (Evidence of Trial Act). United States v. Hardemann, 249 juror bias and misconduct required F.3d 826 (9th Cir. 2001) (Delay to evidentiary hearing). United States v. Mejia, 69 F.3d arraign co-defendant violated 309 (9th Cir. 1995) (Court denied a speedy trial). Campbell v. Louisiana, 523 U.S. one-day continuance of trial, 392 (1998) (White defendant could preventing live evidence on United States v. Nguyen, 262 F.3d challenge discrimination against suppression issue). 998 (9th Cir. 2001) (Court did not black grand jurors). explain denial of continuance when United States v. Foxman, 87 F.3d defendant asked for new counsel). United States v. Blotcher, 142 F.3d 1220 (11th Cir. 1996) (Trial court 728 (4th Cir. 1998) (Court was required to decide whether the improperly denied defendant’s race government had delayed indictment Jury Selection neutral peremptory challenge). to gain a tactical advantage). Cochran v. Herring, 43 F. 1404 th th Dyer v. Calderon, 151 F.3d 970 (9 United States v. Johnson, 120 F.3d (11 Cir.), cert. denied, 516 U.S. Cir.), cert. denied, 523 U.S. 1033 1107 (10th Cir. 1997) (Continuance 1073 (1996) (Batson claim should (1998) (Juror’s lies raised because of court conflict violated have been granted). presumption of bias). Speedy Trial Act). *United States v. Jackman, 46 *United States v. Herndon, 156 United States v. Lloyd, 125 F.3d F.3d 1240 (2d Cir. 1995) (Selection F.3d 629 (6th Cir. 1998) (Denial of 1263 (9th Cir. 1997) (112-day procedure resulted in an under- hearing on potentially biased juror). continuance was not justified). representation of minorities in jury pool). United States v. McFerron, 163 United States v. Hay, 122 F.3d F.3d 952 (6th Cir. 1999) (Defendant 1233 (9th Cir. 1997) (48-day recess United States v. Beckner, 69 F.3d did not have burden of persuasion for jurors’ vacations was abuse of 1290 (5th Cir. 1995) (Defendant on neutral explanation for discretion). established prejudicial pretrial peremptory strike). publicity that could not be cured by United States v. Graham, 128 F.3d voir dire). United States v. Serino, 163 F.3d 372 (6th Cir. 1997) (Eight-year 91 (1st Cir. 1999) (Defendant gave delay between indictment and trial *United States v. Annigoni, 96 valid neutral reason for striking violated the Sixth Amendment). F.3d 1132 (9th Cir. 1996) (Court’s juror). erroneous denial of a defendant’s United States v. Gonzales, 137 proper peremptory challenge Jordan v. Lefevre, 206 F.3d 196 F.3d 1431 (10th Cir. 1998) (“Ends required automatic reversal). (2d Cir. 2000) (Merely finding of justice” continuance could not be strike of juror was rational does not Turner v. Marshall, 121 F.3d 1248 retroactive). th determine whether there was (9 Cir.), cert. denied, 522 U.S. purposeful discrimination). *United States v. Barnes, 159 F.3d 1153 (1998) (Prosecutor’s stated 4 (1st Cir. 1999) (Open-ended reason for striking a black juror was United States v. Gonzalez, 214 continuance violated speedy trial). pretextual). F.3d 1109 (9th Cir. 2000) (Juror who equivocated about fairness to United States v. Hall, 181 F.3d *Tankleff v. Senkowski, 135 F.3d sit in drug case should have been 1057 (9th Cir. 1999) (Continuances 235 (2d Cir. 1998) (Race-based excused). for codefendants violated Speedy peremptory challenges were not Trial Act). subject to harmless error review). McClain v. Prunty, 217 F.3d 1209 (9th Cir. 2000) (Judge must United States v. Moss, 217 F.3d *United States v. Ovalle, 136 F.3d investigate whether purposeful jury P 19 Reversible Error 2002 The BACK BENCHER selection discrimination occurred). appearance of partiality). hearsay).

United States v. Tilghman, 134 United States v. Beydler, 120 F. 3d F.3d 414 (D.C. Cir. 1998) (Court’s 985 (9th Cir. 1997) (Unavailable questioning of defendant denied him witness’s statement, incriminating Closure a fair trial). the defendant, was inadmissible hearsay). United States v. Doe, 63 F.3d 121 United States v. Mortimer, 161 (2d Cir. 1995) (Court summarily F.3d 240 (3rd Cir. 1999) (Trial *United States v. Foster, 128 F.3d denied a defendant’s request to judge was absent during defense 949 (6th Cir. 1997) (Exculpatory close the trial for his safety). closing). grand jury testimony should have been admitted at trial). *Okonkwo v. Lacy, 104 F.3d 21 United States v. Weston, 206 F.3d (2d Cir.), cert. denied, 524 U.S. 958 9 (D.C. Cir. 2000) (Use of anti- United States v. Williams, 133 (1998) (Record did not support psychotic medication was not F.3d 1048 (7th Cir. 1998) closure of proceedings during supported by evidence of danger to (Statements by informant to agent testimony of undercover officer). defendant or others). were hearsay).

*Pearson v. James, 105 F.3d 828 United States v. Gomez-Lepe, 207 United States v. Lowery, 135 F.3d (2d Cir.), cert. denied, 524 U.S. 958 F.3d 623 (9th Cir. 2000) (Magistrate 957 (5th Cir. 1998) (Court (1998) (Closure of courtroom Judge could not preside over polling erroneously excluded defendant’s denied the right to a public trial). jury in felony case). evidence that he encouraged witnesses to tell the truth). Judd v. Haley, 250 F.3d 1308 (11th Cir. 2001) (Total closure of Confrontation United States v. Moses, 137 F.3d courtroom violated right to public 894 (6th Cir. 1998) (Allowing child- trial). United States v. Hamilton, 46 F.3d witness to testify by video violated 271 (3rd Cir. 1995) (Prosecution right to confrontation). Jury Trial witnesses were not unavailable when they could have testified United States v. Marsh, 144 F.3d under government immunity). *United States v. Robertson, 45 1229 (9th Cir. 1998) (Admission of F.3d 1423 (10th Cir.), cert. denied. complaints by defendant’s United States v. Lachman, 48 F.3d customers denied confrontation). 516 U.S. 844 (1995) (No evidence 586 (1st Cir. 1995) (Government that the defendant intelligently and exhibits were properly excluded on voluntarily waived a jury trial). United States v. Mitchell, 145 F.3d grounds of confusion and waste). 572 (3rd Cir. 1998) (Anonymous *United States v. Ajmal, 67 F.3d note incriminating defendant was United States v. Strother, 49 F.3d inadmissible hearsay). 12 (2d Cir. 1995) (Jurors should not 869 (2d Cir. 1995) (A statement, question witnesses as a matter of inconsistent with the testimony of a course). United States v. Cunningham, 145 government witness, should have F.3d 1385 (D.C. Cir. 1998) been admitted). United States v. Duarte- (Unredacted tapes violated confrontation). Higarenda, 113 F.3d 1000 (9th Cir. United States v. Forrester, 60 F.3d 1997) (Court failed to question a 52 (2d Cir. 1995) (Agent improperly United States v. Sanchez-Lima, non-English speaking defendant commented on the credibility of over a jury waiver). 161 F.3d 545 (9th Cir. 1999) another witness). (Exclusion of deposition denied right to put on defense). United States v. Iribe-Perez, 129 *United States v. Paguio, 114 F.3d F.3d 1167 (10th Cir. 1997) (Jury 928 (9th Cir. 1997) (Missing was erroneously told that the United States v. Saenz, 179 F.3d witness’s self-incriminating 686 (9th Cir. 1999) (Defendant was defendant would plead guilty before statement should have been start of trial). entitled to show his knowledge of admitted). victim’s prior acts of violence to support self-defense). *United States v. Saenz, 134 F.3d United States v. Lis, 120 F.3d 28 697 (5th Cir. 1998) (Court’s (4th Cir. 1997) (Ledger connecting questioning of a witness gave United States v. Torres-Ortega, another to the crime was not 184 F.3d 1128 (10th Cir. 1999) P 20 Reversible Error 2002 The BACK BENCHER

(Admission of grand jury testimony witness having a motive to United States v. Beckman, 222 violated confrontation). fabricate). F.3d 512 (8th Cir. 2000) (Limiting defense cross violated United States v. Samaniego, 187 United States v. Tory, 52 F.3d 207 confrontation). F.3d 1222 (10th Cir. 1999) (There (9th Cir. 1995) (Witness’ statement was no foundation for admission of that the robber wore sweat pants United States v. Doherty, 233 F.3d business records). was inconsistent with prior 1275 (11th Cir. 2000) (Court should statement that he wore white pants). have admitted evidence of agent’s United States v. Sumner, 204 F.3d threat against defense witness). 1182 (8th Cir. 2000) (Child’s United States v. Rivera, 61 F.3d statement to psychologist was 131 (2d Cir.), cert. denied, 520 U.S. Wilkerson v. Cain, 233 F.3d 886 hearsay). 1132 (1997) (Court should not have (5th Cir. 2000) (Limit on questioning admitted an attached factual eye witness violated confrontation). United States v. Byrd, 208 F.3d stipulation when allowing defendant 592 (7th Cir. 2000) (Defendant was to impeach a witness with a plea Redmond v. Kingston, 240 F.3d prevented from introducing shackles agreement). 590 (7th Cir. 2001) (Defendant was and restraints in which he was held prohibited from cross examining during alleged assault on officers). United States v. Blum, 62 F.3d 63 rape victim about prior false claim). (2d Cir. 1995) (Court excluded *Lajoie v. Thompson, 217 F.3d evidence relevant to the witness’ Thomas v. Hubbard, 273 F.3d 116 663 (9th Cir. 2000) (Notice motive to testify). (9th Cir. 2001) (Defendant should requirement of rape shield law have been able to question officers violated right of confrontation). United States v. Platero, 72 F.3d about missing witness who was 806 (10th Cir. 1995) (Court suspect). United States v. Rhynes, 218 F.3d excluded cross examination of a 310 (4th Cir. 2000) (Sequestered sexual assault victim’s relationship defense witness should not have with a third party). Co-Defendant’s been excluded for violating rule). Statements United States v. Landerman, 109 Schaal v. Gammon, 233 F.3d 1103 F.3d 1053 (5th Cir.), modified, 116 United States v. Montilla-Rivera, (8th Cir. 2000) (Admission of F.3d 119 (1997) (The defendant 115 F.3d 1060 (1st Cir. 1997) videotape of victim’s statements should have been allowed to (Exculpatory affidavits of co- violated confrontation). question a witness about a pending defendants, who claimed Fifth state charge). Amendment privilege, were newly Agnew v. Leibach, 250 F.3d 1308 th discovered evidence regarding a (11 Cir. 2001) (Bailiff was *United States v. Mulinelli-Nava, motion for new trial). improperly called to testify about 111 F.3d 983 (1st Cir. 1997) (Court defendant’s confession). limited cross examination regarding *United States v. Glass, 128 F.3d theory of defense). 1398 (10th Cir. 1997) (Introduction United States v. Wells, 262 F.3d of a co-defendant’s incriminating 455 (5th Cir. 2001) (Witness could United States v. James, 169 F.3d statement violated Bruton). not testify to contents of destroyed 1210 (9th Cir. 1999) (Records of business records). victim’s violence were relevant to *United States v. Peterson, 140 self-defense). F.3d 819 (9th Cir. 1998) (Bruton violation occurred). Impeachment Schledwitz v. United States, 169 F.3d 1003 (6th Cir. 1999) *United States v. Cooks, 52 F.3d (Defendant could expose bias of 101 (5th Cir. 1995) (Court refused witness involved in investigation). to allow government witness to be Gray v. Maryland, 523 U.S. 185 questioned about jeopardy from (1998) (Bruton prohibited redacted same charges). confession, which obviously United States v. Manske, 186 F.3d referred to defendant). 770 (7th Cir. 1999) (Defendant United States v. Acker, 52 F.3d could cross-examine witness about 509 (4th Cir. 1995) (Prior consistent Lilly v. Virginia, 527 U.S. 116 his threats to other witnesses about (1999) (Admission of accomplice statements were not admissible their testimony). because they were made prior to the confession denied confrontation). P 21 Reversible Error 2002 The BACK BENCHER

United States v. McCleskey, 228 United States v. Wilson, 135 F.3d 488 (9th Cir. 2000) (Prosecutor used F.3d 640 (6th Cir. 2000) (Admission 291 (4th Cir.), cert. denied, 523 U.S. perjured testimony). of non-testifying co-defendant’s 1143 (1998) (Prosecutor’s argument statement denied confrontation). that defendant was a murderer Sandoval v. Calderon, 241 F.3d prejudiced drug case). 765 (9th Cir. 2001) (Prosecution United States v. Reynolds, 268 referred to religious authority for F.3d 572 (8th Cir. 2001) (Evidence *United States v. Vavages, 151 sentence). against co-defendant was F.3d 1185 (9th Cir. 1998) inadmissible when he admitted (Prosecutor coerced defense witness United States v. Sigma Intern. underlying crime). into refusing to testify). Inc., 244 F.3d 841 (11th Cir. 2001) (Prosecutorial misconduct before United States v. Maddox, 156 F.3d grand jury invalidated indictment). Misconduct 1280 (D.C. Cir. 1999) (Prosecutor’s argument referred to matters not in United States v. Adkinson, 247 United States v. Flores-Chapa, 48 evidence). F.3d 1289 (11th Cir. 2001) (Bad F.3d 156 (5th Cir. 1995) (Prosecutor faith inclusion of bank fraud charge referred to excluded evidence). Agardu v. Portuondo, 159 F.3d 98 warranted reimbursement of (2d Cir.), cert. denied, 526 U.S. attorney’s fees). *United States v. Kallin, 50 F.3d th 1016 (1999) (Prosecutor claimed 689 (9 Cir. 1995) (Prosecutor that defendant was less credible United States v. Rodriguez, 260 commented upon the defendant’s without arguing any facts in F.3d 416 (5th Cir. 2001) (Prosecutor failure to come forward with an support). argued jury could infer guilt from explanation). post-arrest silence). United States v. Rodrigues, 159 United States v. Gaston-Brito, 64 F.3d 607 (D.C. Cir. 1999) (Improper F.3d 11 (1st Cir. 1995) (Hearing closing by prosecutor). Extraneous was necessary to determine if an Evidence agent improperly gestured toward United States v. Richardson, 161 defense table in front of the jury). F.3d 728 (D.C. Cir. 1999) (Improper United States v. Rodriguez, 45 remarks by prosecutor). United States v. Tenorio, 69 F.3d F.3d 302 (9th Cir. 1995) (Evidence of flight a month after crime was 1103 (11th Cir. 1995) (Prosecutor United States v. Golding, 168 F.3d commented upon the defendant’s inadmissible to prove an intent to 700 (4th Cir. 1999) (Prosecutor possess). silence). threatened defense witness with prosecution if she testified). *United States v. Cannon, 88 F.3d *United States v. Blackstone, 56 F.3d 1143 (9th Cir. 1995) (Drug use 1495 (8th Cir. 1996) (Prosecutor’s United States v. Francis, 170 F.3d reference to black defendants, who was improperly admitted in felon in 546 (6th Cir. 1999) (Cumulative possession case). were not from North Dakota, as acts of prosecutorial misconduct). “bad people,” was not harmless). United States v. Moorehead, 57 *United States v. Roberts, 119 F.3d 875 (9th Cir. 1995) (Evidence *Smith v. Groose, 205 F.3d 1045 that the defendant was a drug dealer F.3d 1006 (1st Cir. 1997) (8th Cir.), cert. denied, 531 U.S. 985 (Prosecutor commented on should not have been admitted in (2000) (Prosecution argued firearms case). defendant’s failure to testify and contradictory facts in two different misstated burden of proof). but related trials). United States v. Aguilar- Aranceta, 58 F.3d 796 (1st Cir. United States v. Rudberg, 122 United States v. Cabrera, 222 F.3d F.3d 1199 (9th Cir. 1997) 1995) (Prior misdemeanor drug 590 (9th Cir. 2000) ( Repeated conviction was more prejudicial (Prosecutor vouched for a witness’ references to “Cuban drug dealers”). credibility in closing argument). than probative in a distribution case). United States v. Beeks, 224 F.3d United States v. Johnston, 127 741 (8th Cir. 2000) (Prosecutor’s F.3d 380 (5th Cir. 1997) (Prosecutor United States v. McDermott, 64 questioning violated prior in limine F.3d 1448 (10th Cir. 1995) commented on the defendant’s ruling). failure to testify and asked questions (Evidence that the defendant highlighting defendant’s silence). threatened a witness should not have United States v. LaPage, 231 F.3d P 22 Reversible Error 2002 The BACK BENCHER been admitted because it was not U.S. 172 (1997) (Court abused its United States v. Anderson, 188 clear the defendant knew the person discretion by refusing to accept the F.3d 886 (7th Cir. 1999) (Prior bad was a witness). defendant’s offer to stipulate that he act was more than 10 years old). was a felon, in a trial for being a *United States v. Vizcarra- felon in possession of a firearm). United States v. Walton, 217 F.3d Martinez, 66 F.3d 1006 (9th Cir. 443 (7th Cir. 2000) (Evidence of 1995) (Evidence of personal use of *United States v. Sumner, 119 prior unsolved theft was irrelevant). methamphetamine at the time of the F.3d 658 (8th Cir. 1997) (When defendant’s arrest was defendant denied the crime United States v. Jimenez, 214 F.3d inadmissible). occurred, prior acts to prove intent 1095 (9th Cir. 2000) (Description of were not admissible). defendant’s prior conviction *United States v. Elkins, 70 F.3d involving firearm was not harmless). 81 (10th Cir. 1995) (Evidence of the United States v. Millard, 139 F.3d defendant’s gang membership was 1200 (8th Cir. 1998) Prior drug United States v. Varoudakis, 233 improperly elicited). convictions erroneously admitted). F.3d 113 (1st Cir. 2000) (Evidence of previous fire was more United States v. Irvin, 87 F.3d 860 United States v. Mulder, 147 F.3d prejudicial than probative). (7th Cir.), cert. denied, 519 U.S. 903 703 (8th Cir. 1998) (Bank’s routine (1997) (Court should have excluded practice was irrelevant to fraud United States v. Grimes, 244 F.3d testimony that the defendant was in prosecution). 375 (5th Cir. 2001) (Narratives a motorcycle gang). found on defendant’s computer *United States v. Ellis, 147 F.3d should not have been introduced in *United States v. Utter, 97 F.3d 1131 (9th Cir. 1998) (Testimony child porn case). 509 (11th Cir. 1996) (In arson case, about destructive power of it was error to admit evidence that explosives was prejudicial). the defendant threatened to burn his Identification tenant’s house or that the *United States v. Merino- defendant’s previous residence had Balderrama, 146 F.3d 758 (9th Cir. United States v. Emanuele, 51 burned). 1998) (Pornographic films should F.3d 1123 (3rd Cir. 1995) not have been displayed in light of (Identification, made after seeing the *United States v. Lecompte, 99 defendant’s offer to stipulate). defendant in court, and after a F.3d 274 (8th Cir. 1996) (Evidence failure to identify him before, of prior contact with alleged victims United States v. Spinner, 152 F.3d should have been suppressed). did not show plan or preparation). 950 (D.C. Cir. 1998) (Letter containing evidence of prior bad *United States v. Hairston, 64 *United States v. Jobson, 102 F.3d acts should not have been admitted). F.3d 491 (9th Cir. 1995) (Alibi 214 (6th Cir. 1996) (Court failed to instruction was required when adequately limit evidence of the United States v. Polasek, 162 F.3d evidence of alibi was introduced in defendant’s gang affiliation). 878 (5th Cir. 1999) (Convictions of the government’s case). defendant’s associates should not United States v. Murray, 103 F.3d have been admitted). *Lyons v. Johnson, 99 F.3d 499 310 (3rd Cir. 1997) (Evidence that (2d Cir. 1996) (Court denied the an alleged murderer had killed *United States v. Jean-Baptiste, defendant the right to display a before was improperly admitted in a 166 F.3d 102 (2d Cir. 1999) witness in support of a CCE case). (Admission of prior bad act was misidentification defense). plain error absent evidence it *United States v. Fulmer, 108 F.3d actually occurred). United States v. Montgomery, 100 1486 (1st Cir. 1997) (Allowing F.3d 1404 (8th Cir. 1996) (Co- testimony about bombing of federal United States v. Lawrence, 189 defendants should have been building was prejudicial). F.3d 838 (9th Cir. 1999) (Testimony required to try on clothing, after regarding defendant’s marriage was defendant had to, when the United States v. Paguio, 114 F.3d more prejudicial than probative). government put ownership at issue). 928 (9th Cir. 1997) (Evidence that the defendant previously applied for United States v. Heath, 188 F.3d Expert a loan was prejudicial). 916 (7th Cir. 1999) (Previous arrest was not admissible prior bad act). Testimony Old Chief v. United States, 519 P 23 Reversible Error 2002 The BACK BENCHER

(7th Cir.), cert. denied, 522 U.S. *United States v. Boyd, 55 F.3d 1069 (1998) (Defendant was not Entrapment 667 (D.C. Cir. 1995) (Officer relied allowed to examine the state’s upon improper hypothetical in drug psychiatrist about allegations of United States v. Reese, 60 F.3d 660 case). sexual improprieties with patients). (9th Cir. 1995) (Entrapment instruction failed to tell the jury that United States v. Shay, 57 F.3d 126 *United States v. Word, 129 F.3d the government must prove beyond (1st Cir. 1995) (Defense expert 1209 (11th Cir. 1997) (Lay a reasonable doubt that the should have been allowed to explain testimony of abuse to defendant was defendant was predisposed). that the defendant had a disorder admissible). that caused him to lie). United States v. Bradfield, 113 United States v. Dixon, 185 F.3d F.3d 515 (5th Cir. 1997) (Evidence United States v. Posado, 57 F.3d 393 (5th Cir. 1999) (Court supported an instruction on 428 (5th Cir. 1995) (Per se rule improperly refused instruction on entrapment). prohibiting polygraph evidence was insanity based upon expert abolished by Daubert). testimony). *United States v. Duran, 133 F.3d 1324 (10th Cir. 1998) (Entrapment United States v. Childress, 58 F.3d United States v. Barnette, 211 F.3d instruction failed to place burden on 693 (D.C. Cir.), cert. denied, 516 803 (4th Cir. 2000) (Defendant was government). U.S. 1098 (1996) (Defense expert prevented from presenting expert to should have been allowed to testify answer government’s rebuttal expert United States v. Thomas, 134 F.3d on the defendant’s inability to form testimony). 975 (9th Cir. 1998) (Defendant may intent). present good prior conduct to *United States v. Smithers, 212 support entrapment defense). United States v. Velasquez, 64 F.3d 306 (6th Cir. 2000) (Court F.3d 844 (3rd Cir. 1995) (Defense excluded expert on identification expert should have been allowed to without a hearing). testify on the limitations of United States v. Sligh, 142 F.3d th handwriting analysis). 761 (4 Cir. 1998) (Court failed to give instruction on entrapment). *United States v. Velarde, 214 *United States v. Burt, 143 F.3d F.3d 1204 (10th Cir. 2000) (Court th Rupe v. Wood, 93 F.3d 1434 (9th failed to make reliability 1215 (9 Cir. 1998) (Entrapment Cir.), cert. denied, 519 U.S. 1142 determination about government’s instruction failed to place proper (1997) (Exclusion of a witness’ expert testimony). burden on government). failed polygraph results denied due process). United States v. Gamache, 156 United States v. Henke, 222 F.3d st 633 (9th Cir. 2000) (Lay witness F.3d 1 (1 Cir. 1998) (Jury should United States v. Hall, 93 F.3d 1337 could not testify to what defendant have been instructed on (7th Cir. 1996) (Expert testimony knew about regulatory scheme). entrapment). that the defendant had a disorder that may have caused him to make a *United States v. Vallejo, 237 F.3d United States v. Poehlman, 217 false confession should have been 1008 (9th Cir. 2001) (Exclusion of F.3d 692 (9th Cir. 2000) (Defendant admitted). defense experts regarding was entrapped as matter of law). defendant’s ability to communicate Calderon v. U.S. District Court, in English). *United States v. Brooks, 215 F.3d 107 F.3d 756 (9th Cir.), cert. denied, 842 (8th Cir. 2000) (Drug defendant 522 U.S. 907 (1997) (CJA funds for United States v. Watson, 260 F.3d was entrapped as matter of law). expert could be used to exhaust a 301 (3rd Cir. 2001) (Drug agents state claim). could not give opinion about Defenses defendant’s intent). *United States v. Morales, 108 United States v. Tory, 52 F.3d 207 F.3d 1031 (9th Cir. 1997) (The United States v. McGowan, 274 (9th Cir. 1995) (Defense was court should not have excluded a F.3d 1251 (9th Cir. 2001) prevented from arguing that an defense expert on bookkeeping). (Testimony about nature of drug absence of evidence implied that trafficking organizations was evidence did not exist). *Lindh v. Murphy, 124 F.3d 899 inadmissible). P 24 Reversible Error 2002 The BACK BENCHER

United States v. Ruiz, 59 F.3d 456 (2nd Cir. 1995) (Jurors were Jenkins v. Huchinson, 221 F.3d 1151 (11th Cir.), cert. denied, 516 instructed they “may” acquit, rather 679 (4th Cir. 2000) (Reasonable U.S. 1133 (1996) (Defendant has than they “must” acquit, if the doubt instruction improperly the right to have the jury instructed government did not meet its indicated it was only advisory). on his theory of defense). burden). United States v. Chanthadara, 230 United States v. Hall, 77 F.3d 398 *United States v. Ahmad, 101 F.3d F.3d 1237 (10th Cir. 2000) (Judge (11th Cir. 1996) (Defendant’s 386 (5th Cir. 1996) (Jury said that defense was a “smoke counsel was improperly prohibited instructions in a pollution case screen”). from addressing general principles implied strict liability rather than the of reasonable doubt in closing). requirement of knowledge). *United States v. Gardner, 244 F.3d 784 (10th Cir. 2001) (Failure *United States v. Talbott, 78 F.3d United States v. Rodgers, 109 F.3d to instruct on uncorroborated 1183 (7th Cir. 1996) (Jury 1138 (6th Cir. 1997) (If a court accomplice testimony). instruction could not shift the allows a jury to review trial burden to the defendant on the issue testimony, there must be a of self-defense). cautionary instruction not to place upon it undue emphasis). *United States v. Otis, 127 F.3d 829 (9th Cir. 1997) (Duress *United States v. Bancalari, 110 instruction was omitted). F.3d 1425 (9th Cir. 1997) Deliberations (Instruction omitted the element of intent). United States v. Berroa, 46 F.3d 1195 (D.C. Cir. 1995) (Allen charge *United States v. Benally, 146 United States v. Doyle, 130 F.3d varied from ABA standard). F.3d 1232 (10th Cir. 1998) 523 (2d Cir. 1997) (Erroneous (Defendant was entitled to instructions stated that presumption United States v. Harber, 53 F.3d instructions on self-defense and of innocence and reasonable doubt 236 (9th Cir. 1995) (Case agent’s lesser included offense). were to protect only the innocent). report was taken into the jury room). United States v. Burgos, 55 F.3d United States v. Sanchez-Lima, United States v. Wilson, 133 F.3d th 161 F.3d 545 (9th Cir. 1999) (Self- 251 (4th Cir. 1997) (Jury 933 (4 Cir. 1995) (Allen charge defense instruction should have instructions did not adequately asked jurors to think about giving been given). impose burden of proving up firmly held beliefs). knowledge). *United States v. Araujo, 62 F.3d United States v. Smith, 217 F.3d th 746 (9th Cir. 2000) (Court failed to *United States v. Romero, 136 930 (7 Cir. 1995) (Verdict was instruct upon defendant’s theory of F.3d 1268 (10th Cir. 1998) (“Law of taken from eleven jurors when the the case). the case” required element named in twelfth was delayed by car trouble). jury instruction to be proven). United States v. Crowley, 236 F.3d *United States v. Ottersburg, 76 104 (2d Cir. 2000) (Jury should *United States v. Rossomando, F.3d 137 (7th Cir.), clarified, 81 have been charged on voluntary 144 F.3d 197 (2d Cir. 1998) F.3d 657 (1996) (Plain error to intoxication). (Ambiguous jury instruction misled allow alternate jurors to deliberate jurors). with the jury).

Jury United States v. Lampkin, 159 *United States v. Manning, 79 Instructions F.3d 607 (D.C. Cir. 1999) (Jury F.3d 212 (1st Cir.), cert. denied, 519 improperly instructed that U.S. 853 (1996) (Court should have government could not prosecute given a “yes or no” answer to a Smith v. Singletary, 61 F.3d 815 deadlocked jury’s question, rather th juvenile witnesses). (11 Cir.), cert. denied, 516 U.S. than refer them to the testimony). 1140 (1996) (Court failed to give mitigating instruction in a capital United States v. Prawl, 168 F.3d 622 (2d Cir. 1999) (Court refused to United States v. Berry, 92 F.3d case). th instruct jury not to consider co- 597 (7 Cir. 1996) (Jury improperly defendants guilty plea). considered a transcript, rather than *United States v. Birbal, 62 F.3d the actual tape). P 25 Reversible Error 2002 The BACK BENCHER

United States v. Benedict, 95 F.3d were proven). disturbing the peace). 17 (8th Cir. 1996) (Trial court should not have accepted partial verdicts). *United States v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir. 1997) (Fatal Interstate United States v. Thomas, 116 F.3d variance between pleading and Commerce 606 (2d Cir. 1997) (Juror should not proof of date of offense). have been dismissed when he did United States v. Box, 50 F.3d 345 not admit to refusing to follow the *United States v. Mohrbacher, (5th Cir.), cert. denied, 516 U.S. 714 law during deliberations). 182 F.3d 1041 (9th Cir. 1999) (1996) (Extortion of interstate (Variance between charge of travelers did not involve interstate United States v. Hall, 116 F.3d transporting child pornography and commerce). 1253 (8th Cir. 1997) (Exposure of proof of mere receipt). jury to unrelated, but prejudicial *United States v. Cruz, 50 F.3d matters, required new trial). United States v. Ramirez, 182 F.3d 714 (9th Cir. 1995) (Shipment of 544 (7th Cir. 1999) (Variance firearm in interstate commerce must United States v. Keating, 147 F.3d between charge and proof in firearm occur after the firearm is stolen). 895 (9th Cir. 1998) (Reasonable case). probability of juror prejudice *United States v. Quigley, 53 F.3d required new trial). United States v. Shipsey, 190 F.3d 909 (8th Cir. 1995) (Liquor store 1081 (9th Cir. 1999) (Court’s robbery did not affect interstate United States v. Lampkin, 159 instruction to jury constructively commerce). F.3d 607 (D.C. Cir. 1999) (Jury was amended indictment). allowed to consider tapes not in United States v. Grey, 56 F.3d evidence). United States v. Pigee, 197 F.3d 1219 (10th Cir. 1995) (Use of 879 (7th Cir. 1999) (Jury instruction currency did not involve interstate United States v. Beard, 161 F.3d constructively amended indictment). commerce). 1190 (9th Cir. 1999) (Error to substitute alternates for jurors after United States v. McDermott, 245 United States v. Lopez, 514 U.S. deliberations began). F.3d 133 (2d Cir. 2001) (Variance 549 (1995) ("Gun-free school zone" between conspiracy charged and law found unconstitutional). United States v. Spence, 163 F.3d proof at trial). 1280 (11th Cir. 1999) (Juror *United States v. Barone, 71 F.3d dismissed during deliberations Speech / 1442 (9th Cir. 1995) (False checks without just cause). did not involve interstate Assembly commerce). United States v. Eastern Medical Billing, Inc., 230 F.3d 600 (3rd Cir. United States v. Popa, 187 F.3d United States v. Denalli, 90 F.3d 2000) (Allen charge was coercive). 672 (D.C. Cir. 1999) (Conviction 444 (11th Cir. 1996) (Arson of for harassing AUSA with racial neighbor’s home did not involve United States v. Lloyd, 269 F.3d epithets violated first amendment). interstate commerce). 228 (3rd Cir. 2001) (Court overstepped authority to inquire into United States v. Baugh, 187 F.3d *United States v. Gaydos, 108 F.3d juror’s decision). 1037 (9th Cir. 1999) (Assembly at 505 (3rd Cir. 1997) (Insufficient national park could not be evidence that arson involved Variance conditioned on promise not to interstate commerce). trespass). United States v. Gilbert, 47 F.3d United States v. Izydore, 167 F.3d 1116 (11th Cir.), cert. denied, 516 United States v. Frandsen, 212 213 (5th Cir. 1999) (No evidence U.S. 851 (1995) (Proof of failure to F.3d 1231 (11th Cir. 2000) that phone calls crossed state lines comply with a directive of a federal (Requiring permit to make public for wire fraud interstate nexus). officer was in variance with the expression of views was illegal prior original charge). restraint). United States v. Wilson, 182 F.3d 737 (10th Cir. 1999) (Insufficient United States v. Johansen, 56 F.3d United States v. Poocha, 259 F.3d evidence of child pornography 347 (2d Cir. 1995) (Variance when 1077 (9th Cir. 2001) (Use of shipped in interstate commerce). none of the conspiracies alleged profanity to a park ranger was not P 26 Reversible Error 2002 The BACK BENCHER

*United States v. Spinner, 180 United States v. Flores-Chapa, 48 United States v. Jensen, 141 F.3d F.3d 514 (3rd Cir. 1999) F.3d 156 (5th Cir. 1995) 830 (8th Cir. 1998) (Insufficient (Indictment failed to allege element (Defendant’s beeper and personal evidence of drug conspiracy). of interstate commerce). use of drugs was not proof of conspiracy). United States v. Paul, 142 F.3d 836 United States v. Causey, 185 F.3d (5th Cir. 1998) (Insufficient 407 (5th Cir.), cert. denied, 530 U.S. evidence of conspiracy to import). 1277 (2000) ( No federal nexus United States v. Lewis, 53 F.3d 29 shown regarding communication). (4th Cir. 1995) (Court failed to United States v. Toler, 144 F.3d instruct the jury that conspiring with 1423 (11th Cir. 1998) (Insufficient Jones v. United States, 539 U.S. a government agent alone required evidence that defendant participated 848 (2000) (Residence that was not an acquittal). in conspiracy). used for commercial purpose did not involve interstate commerce in United States v. Ross, 58 F.3d 154 United States v. Thomas, 150 F.3d arson case). (5th Cir.), cert. denied, 516 U.S. 954 743 (7th Cir. 1998) (Defendant was (1995) (Defendant was not a entitled to instruction that *United States v. Wang, 222 F.3d conspirator merely because he sold buyer/seller relationship is not itself 234 (6th Cir. 2000) (Robbery of drugs at same location as a conspiracy). cash did not have sufficient impact conspirators). on interstate commerce). United States v. Garcia, 151 F.3d United States v. Kim, 65 F.3d 123 1243 (9th Cir. 1998) (Gang United States v. King, 227 F.3d (9th Cir. 1995) (To be guilty of relationship alone did not support 732 (6th Cir. 2000) (Arson did not conspiracy, the defendant must have conspiracy). affect interstate commerce). known of the illegal structuring). United States v. Gore, 154 F.3d 34 United States v. Corp, 236 F.3d United States v. Lopez-Ramirez, (2d Cir. 1998) (Buyer/seller 325 (6th Cir. 2001) (Photos of child 68 F.3d 438 (11th Cir. 1995) relationship did not establish taken by defendant did not have (Insufficient evidence of conspiracy conspiracy). sufficient connection to interstate as to defendant who was present in commerce). home where 65 kilos of cocaine was *United States v. Idowu, 157 F.3d delivered and then seized). 265 (3rd Cir. 1999) (Insufficient United States v. Johnson, 246 F.3d evidence that defendant knew 749 (5th Cir. 2001) (Plea lacked United States v. Palazzolo, 71 F.3d purpose of drug conspiracy). factual basis for connection to 1233 (6th Cir. 1995) (Verdict form interstate commerce). failed to distinguish the object of the United States v. Meyer, 157 F.3d conspiracy). 1067 (7th Cir.), cert. denied, 526 United States v. Turner, 272 F.3d U.S. 1070 (1999) (Court should 380 (6th Cir. 2001) (Robbery of United States v. Martinez, 83 F.3d have instructed that mere individual who ran illegal lottery did 371 (11th Cir.), cert. denied, 519 buyer/seller relationship did not not affect interstate commerce). U.S. 998 (1997) (Defendant’s establish conspiracy). conviction for conspiracy to possess cocaine was reversed because there United States v. Morillo, 158 F.3d Conspiracy was no evidence beyond defendant’s 18 (1st Cir. 1999) (Insufficient intent to help coconspirators steal evidence of drug conspiracy). United States v. Newton, 44 F.3d money). 913 (11th Cir.), cert. denied, 516 United States v. Dekle, 165 F.3d U.S. 857 (1995) (Leasing residence *United States v. Thomas, 114 826 (11th Cir. 1999) (Insufficient for a drug dealer did not prove the F.3d 403 (3rd Cir. 1997) evidence that doctor conspired to defendant’s participation in a (Insufficient evidence of a illegally distribute drugs). conspiracy). conspiracy, when it was not shown that defendant knew cocaine was in United States v. Mercer, 165 F.3d United States v. Lluesma, 45 F.3d bag he was to retrieve). 1331 (11th Cir. 1999) (Insufficient 408 (11th Cir. 1995) (Proof of evidence of a drug conspiracy). conspiracy to export stolen vehicles United States v. Cruz, 127 F.3d was insufficient against defendant 791 (9th Cir. 1997) (A defendant *United States v. Vaghela, 169 who did odd jobs for mid-level could not join a conspiracy that was F.3d 729 (11th Cir. 1999) conspirator). already completed). (Insufficient evidence of conspiracy P 27 Reversible Error 2002 The BACK BENCHER to obstruct justice). United States v. Kelly, 62 F.3d United States v. Stephens, 118 1215 (9th Cir. 1995) (Defendant F.3d 479 (6th Cir. 1997) (Separate United States v. Torres-Ramirez, whose civil rights were restored was caches of cocaine possessed on the 213 F.3d 978 (7th Cir. 2000) not prohibited from possessing a same day, did not support two (Purchase of drugs and knowledge firearm). separate gun enhancements). of conspiracy did not make defendant a co-conspirator). *United States v. Hayden, 64 F.3d *United States v. Westmoreland, 126 (3rd Cir. 1995) (Defendant 122 F.3d 431 (7th Cir. 1997) *United States v. Estrada-Macias, should have been allowed to (Agent’s presentation of inoperable 218 F.3d 1064 (9th Cir. 2000) introduce evidence of his low firearm to defendant, immediately (Mere presence and knowledge of a intelligence and illiteracy to rebut before arrest, did not support conspiracy were insufficient to allegations that he knew he was possession of a firearm in relation to convict). under indictment when buying a drug crime). firearm). *United States v. Fuchs, 218 F.3d United States v. Gonzalez, 122 957 (9th Cir. 2000) (No instruction United States v. Edwards, 90 F.3d F.3d 1383 (11th Cir. 1997) that conspiracy must have occurred 199 (7th Cir. 1996) (Defendant must (Evidence did not support during statute of limitations). be shown to know his shotgun is possession of a firearm while a shorter than 18 inches in length in fugitive from justice). United States v. Rivera, 273 F.3d order to be liable for failure to 751 (7th Cir. 2001) (Mere register the weapon). United States v. Norman, 129 F.3d buyer/seller relationship was not 1393 (10th Cir. 1997) (Felon whose conspiracy). *United States v. Rogers, 94 F.3d civil rights had been restored was 1519 (11th Cir.), cert.denied, 522 not illegally in possession of U.S. 252 (1998) (Government failed firearm). Firearms to prove a defendant knew that he possessed a fully automatic United States v. Perez, 129 F.3d Staples v. United States, 511 U.S. weapon). 1340 (9th Cir. 1997) (Jury should (1994) (When defendant was have been required to decide the prohibited from possessing a *United States v. Atcheson, 94 type of firearm). particular kind of firearm, it must be F.3d 1237 (9th Cir.), cert. denied, proven he knew that he possessed 519 U.S. 1140 (1997) (Each §924 United States v. Graves, 143 F.3d that type of firearm). (c) conviction must be tied to a 1185 (9th Cir. 1998) (Accessory to separate predicate crime). felon in possession had to know co- United States v. Herron, 45 F.3d defendant was a felon and possessed 340 (9th Cir. 1995) (Defendant United States v. Indelicato, 97 firearm). whose civil rights were restored was F.3d 627 (1st Cir.), cert. denied, 522 not prohibited from possessing a U.S. 835 (1997) (Defendant who did United States v. Spinner, 152 F.3d firearm). not lose his civil rights could not be 950 (D.C. Cir. 1998) (Failure to felon in possession). show firearm was semiautomatic United States v. Caldwell, 49 F.3d assault weapon). 251 (6th Cir. 1995) (Licensed dealer *United States v. Casterline, 103 who sold firearm away from F.3d 76 (9th Cir.), cert. denied, 522 United States v. Benboe, 157 F.3d business was not guilty of U.S. 835 (1997) (Felon in 1181 (9th Cir. 1999) (Firearm unlicensed sale). possession charge may not proven conviction not supported by solely by ownership). evidence). United States v. Anderson, 59 F.3d 1323 (D.C. Cir.), cert. denied, 516 United States v. Paul, 110 F.3d 869 United States v. Sanders,157 F.3d U.S. 999 (1995) (Multiple §924 (c) (2d Cir. 1997) (Court failed to give 302 (5th Cir. 1999) (Insufficient convictions must be based on duress instruction in a felon in evidence that defendant carried separate predicate offenses). possession case). firearm).

Bailey v. United States, 516 U.S. United States v. Taylor, 113 F.3d United States v. Mount, 161 F.3d 137 (1995) (Passive possession of 1136 (10th Cir. 1997) (Firearm 675 (11th Cir. 1999) (Weapon firearm was insufficient to prove found in shared home was not found in stairwell was not carried). "use" of firearm during drug shown to be possessed by the trafficking crime). defendant). United States v. Gilliam, 167 F.3d P 28 Reversible Error 2002 The BACK BENCHER

628 (D.C.), cert. denied, 526 U.S. not prove defendant knew that United States v. Allen, 127 F.3d (1999) (Failed to prove prior weapon had silencer). 260 (2d Cir. 1997) (Insufficient conviction in felon in possession). evidence of extortionate credit when United States v. Finley, 245 F.3d terms of loan were consensual). *United States v. Aldrich, 169 199 (2d Cir. 2001) (Single gun F.3d 526 (8th Cir. 1999) (Vacating could not be used for two United States v. Houston, 217 F.3d related gun count required entire possessions during a drug 1204 (9th Cir. 2000) (No specific new trial on others). trafficking crime). finding of express threat of death).

*United States v. Meza-Corrales, United States v. Atkins, 276 F.3d 183 F.3d 1116 (9th Cir. 1999) 1141 (9th Cir. 2001) (Evidence was Drugs (Felon had civil rights restored and insufficient that defendant had could possess firearms). validly waived counsel to domestic United States v. Jones, 44 F.3d 860 violence charge that was basis for (10th Cir. 1995) (Car passenger was United States v. Martin, 180 F.3d federal firearms offense). not shown to have knowledge of the 965 (8th Cir. 1999) (Insufficient drugs). evidence of constructive possession United States v. Laskie, 258 F.3d of a firearm). 1047 (9th Cir. 2001) (“Honorable *United States v. Johnson, 46 F.3d discharge” of drug offense in 1166 (D.C. Cir. 1995) (Government United States v. Fowler, 198 F.3d Nevada counts as a set aside of the failed to prove distribution within 808 (11th Cir. 1999) (Restoration of prior conviction). 1000 feet of a school). rights by state allowed firearms possession). United States v. Osborne, 262 F.3d United States v. Medjuck, 48 F.3d 486 (5th Cir. 2001) (Civil rights 1107 (9th Cir. 1995) (Government United States v. Howard, 214 F. were restored even though state law failed to show a nexus to U.S. 3d 361 (2d Cir. 2000) ( Jury could was later changed). territory). not infer defendant knew firearm United States v. Valerio, 48 F.3d was stolen merely because he was United States v. Fix, 264 F.3d 532 st felon, or that firearm was found next (5th Cir. 2001) (Granting new trial 58 (1 Cir. 1995) (Insufficient to one with obliterated serial for state conviction removed evidence that the drugs were number). disability to possess firearm). intended for distribution). *United States v. Andujar, 49 F.3d *United States v. Adams, 214 F.3d st 724 (6th Cir. 2000) (Simultaneous Extortion 16 (1 Cir. 1995) (There was no possession of firearm and more evidence than mere presence). ammunition may result in only one *United States v. Tomblin, 46 F.3d conviction). 1369 (5th Cir. 1995) (Private citizen United States v. Jones, 49 F.3d 628 did not act under color of official (10th Cir. 1995) (Inferences derived United States v. Coleman, 208 right). from standing near open trunk did F.3d 786 (9th Cir. 2000) not prove knowledge). (Insufficient evidence that defendant *United States v. Scotti, 47 F.3d knew co-defendant had a firearm for 1237 (2d Cir. 1995) (Facilitating armed bank robbery conviction). payment of a debt was not extortion). *United States v. Polk, 56 F.3d 613 United States v. Mason, 233 F.3d th 619 (D.C. Cir. 2000) (Felon could (5 Cir. 1995) (Use of the get instruction that firearm was defendant’s car and home were briefly possessed for legal purpose). *United States v. Delano, 55 F.3d insufficient to show participation). 720 (2d Cir. 1995) (Services or labor were not property within the United States v. Horsley, 56 F.3d *United States v. Hishaw, 235 th F.3d 565 (10th Cir. 2000) meaning of a statute used as a 50 (11 Cir. 1995) (Distribution of (Insufficient evidence that defendant predicate for RICO). cocaine is lesser included offense of possessed firearm found under his distribution of cocaine within a car seat). *United States v. Wallace, 59 F.3d 1,000 feet of a school, and the jury 333 (2d Cir. 1995) (Demanding should be charged accordingly). United States v. Sanders, 240 F.3d payment from fraudulent check 1279 (10th Cir. 2001) (Evidence did scheme was not extortion). *United States v. Kitchen, 57 F.3d P 29 Reversible Error 2002 The BACK BENCHER

516 (7th Cir. 1995) (Momentarily United States v. Lombardi,138 quantities not supported by evidence picking up a kilo for inspection was F.3d 559 (5th Cir. 1998) (Evidence where defendant did not agree to not possession). did not support conviction for using sell from specific location). juvenile to commit drug offense). United States v. Kearns, 61 F.3d United States v. Owusu, 199 F.3d 1422 (9th Cir. 1995) (Brief sampling United States v. Leonard, 138 F.3d 329 (6th Cir. 2000) (Insufficient of marijuana was not possession). 906 (11th Cir. 1998) (Insufficient evidence where defendant did not evidence that passenger of vehicle arrange for distribution). *United States v. Lucien, 61 F.3d possessed drugs or gun hidden in 366 (5th Cir. 1995) (Instruction on car). United States v. Bryce, 208 F.3d simple possession should have been 346 (2d Cir. 2000) (Uncorroborated given in a drug distribution case). United States v. Sampson, 140 admissions were insufficient to F.3d 585 ( 4th Cir. 1998) establish possession or distribution). *United States v. Applewhite, 72 (Insufficient evidence that drug F.3d 140 (D.C. Cir.), cert. denied, offense occurred within 1000 feet of United States v. Corral-Gastelum, 517 U.S. 1227 (1996) (Government a playground or public housing). 240 F.3d 1181 (9th Cir. 2001) failed to prove distribution within a (Mere proximity to drugs did not 1000 feet of a school). United States v. Delagarza- prove possession). Villarreal, 141 F.3d 133 (5th Cir. United States v. Derose, 74 F.3d 1997) (Insufficient evidence of 1177 (11th Cir. 1996) (Insufficient possession of marijuana where CCE / RICO evidence that the defendant took defendant never took control). possession of marijuana when he *United States v. Barona, 56 F.3d 1087 (9th Cir.), cert. denied, 516 did not have key to car where drugs *United States v. Ortega-Reyna, U.S. 1092 (1996) (Insufficient to were stored). 148 F.3d 540 (5th Cir. 1998) find a CCE when there were persons (Insufficient evidence that drugs who could not be legally counted as United States v. Baron, 94 F.3d hidden in borrowed truck were supervisees). 1312 (9th Cir.), cert. denied, 519 defendant’s). U.S. 1047 (1996) (Court committed United States v. Witek, 61 F.3d plain error by giving a deliberate *United States v. Quintanar, 150 819 (11th Cir.), cert. denied, 516 ignorance instruction when there F.3d 902 (8th Cir. 1998) (No U.S. 1060 (1996) (Mere buyer-seller was no evidence that the defendant evidence that defendant exercised relationship did not satisfy knew, or avoided learning, of control over contraband). secreted drugs). management requirement for conviction of engaging in United States v. Valadez-Gallegos, continuing criminal enterprise). United States v. Wozniak, 126 162 F.3d 1256 (10th Cir. 1999) F.3d 105 (2d Cir. 1997) (Charge on (Passenger was not linked to United States v. Russell, 134 F.3d marijuana impermissibly amended contraband in vehicle). indictment alleging cocaine and 171 (3rd Cir. 1998) (CCE instruction omitted unanimity methamphetamine). United States v. Edwards, 166 requirement). F.3d 1362 (11th Cir. 1999) *United States v. Hunt, 129 F.3d (Insufficient evidence of drug United States v. To, 144 F.3d 737 739 (5th Cir. 1997) (There was possession where defendant merely (11th Cir. 1998) (Insufficient insufficient evidence of an intent to picked up package). distribute). evidence of RICO and Hobbs Act violations). United States v. Orduno-Aguilera, United States v. Soto-Silva, 129 183 F.3d 1138 (9th Cir. 1999) United States v. Polanco, 145 F.3d F.3d 340 (5th Cir. 1997)(Deliberate (Insufficient evidence that substance 536 (2d Cir.), cert. denied, 529 U.S. ignorance instruction was not was illegal steroid). warranted for charge of maintaining 1071 (1999) (Insufficient evidence that defendant murdered victim to premises for drug distribution). United States v. Monger, 185 F.3d maintain position in CCE). 574 (9th Cir. 1999) (Court should United States v. Brito, 136 F.3d have instructed on lesser offense of Richardson v. United States, 526 397 (5th Cir. 1998) (Evidence that simple possession). defendant was asked to find drivers U.S. 813 (1999) (Jury must agree on specific violations). did not prove constructive United States v. Garcia-Sanchez, possession of hidden marijuana). 189 F.3d 1143 (9th Cir. 1999) (Drug P 30 Reversible Error 2002 The BACK BENCHER

United States v. Frega, 179 F.3d 1291 (8th Cir. 1995) (Physician who 216 (1st Cir. 1997) (Defendant was 793 (9th Cir.), cert. denied, 528 U.S. stole drugs did not obtain them by not in the business of selling stolen 1191 (2000) (Court’s instruction deception). goods unless he sold goods stolen failed to identify potential predicate by others). acts in RICO case). *United States v. Klingler, 61 F.3d 1234 (6th Cir. 1995) (Customs *United States v. Czubinski, 106 United States v. Glover, 179 F.3d broker’s misappropriation of funds F.3d 1069 (1st Cir. 1997) (Merely 1300 (11th Cir. 1999) (Role as did not involve money of the United browsing confidential computer organizer or leader must be based on States). files was not wire fraud or computer managing persons, not merely fraud). assets). *United States v. Valentine, 63 F.3d 459 (6th Cir. 1995) United States v. Tencer, 107 F.3d United States v. McSwain, 197 (Government agent must convert 1120 (5th Cir.), cert. denied, 522 F.3d 472 (10th Cir. 1999) more that $5000 in a single year to U.S. 960 (1997) (Insurance checks (Conspiracy to manufacture and violate 18 U.S.C. §666). that were not tied to fraudulent distribute are lesser offenses of claims were insufficient proof of CCE). *United States v. Campbell, 64 mail fraud). F.3d 967 (5th Cir. 1995) (Bank United States v. Brown, 202 F.3d officers did not cause a loss to the *United States v. Todd, 108 F.3d 691 (4th Cir. 2000) (Omission of bank). 1329 (11th Cir. 1997) (Defendant instruction requiring unanimity on was improperly prohibited from specific violations reversed CCE United States v. Lewis, 67 F.3d introducing evidence that employees conviction). 225 (9th Cir. 1995) (State chartered implicitly agreed that pension funds foreign bank was not covered by the could be used to save the company). United States v. Desena, 260 F.3d bank fraud statute). 150 (2d Cir. 2001) (Talk of “war” *United States v. Cochran, 109 and “grabbing shirts” did not United States v. Johnson, 71 F.3d F.3d 660 (10th Cir. 1997) (There support CCE). 139 (4th Cir. 1995) (Court was insufficient proof of mail fraud improperly instructed the jury that a without evidence of Fraud / Theft credit union was federally insured). misrepresentation). United States v. Parsons, 109 F.3d United States v. Cannon, 41 F.3d 1002 (4th Cir. 1997) (Money that 1462 (11th Cir.), cert. denied, 516 United States v. Mueller, 74 F.3d defendant legitimately spent as U.S. 823 (1995) (Proof of false 1152 (11th Cir. 1996) (Filing a postal employee could not be documents to elicit payment on misleading affidavit to delay a civil counted toward fraud). government contracts was proceeding involving a bank was insufficient when documents did not not bank fraud). *United States v. Grossman, 117 contain false information). F.3d 255 (5th Cir. 1997) (Personal United States v. Morris, 81 F.3d use of funds from business loan was *United States v. Manarite, 44 131 (11th 1996) (Sale of a phone not bank fraud). F.3d 1407 (9th Cir.), cert. denied, that disguised its identity was not 516 U.S. 851 (1995) (Mailings were fraud in connection with an access *United States v. Cross, 128 F.3d not related to scheme to defraud). device). 145 (3rd Cir.), cert, denied, 523 U.S. 1076 (1998) (Fixing cases was not *United States v. Altman, 48 F.3d *United States v. Allen, 88 F.3d mail fraud just because court mailed 96 (2d Cir. 1995) (Mailings were 765 (9th Cir.), cert. denied, 520 U.S. disposition notices). too remote to be related to the 1202 (1997) (Government failed to fraud). prove that a credit union was United States v. LaBarbara, 129 federally insured). F.3d 81 (2nd Cir. 1997) United States v. Hammoude, 51 (Government failed to show use of F.3d 288 (D.C. Cir.), cert. denied, United States v. Wester, 90 F.3d mails in a fraud case). 515 U.S. 1128 (1995) (Composite 592 (1st Cir. 1996) (Loan’s face stamp did not make a visa a value was not the proper amount of United States v. Defries, 129 F.3d counterfeit document). loss when collateral was pledged). 1293 (D.C. Cir. 1997) (The court should have given an advice of United States v. Wilbur, 58 F.3d United States v. McMinn, 103 F.3d counsel instruction on an P 31 Reversible Error 2002 The BACK BENCHER embezzlement count). United States v. Silkman, 156 F.3d *United States v. Rahseparian, 833 (8th Cir. 1999) (Administrative 231 F.3d 1257 (10th Cir. 2000) United States v. Baird, 134 F.3d tax assessment was not conclusive (Jury could not reasonably infer that 1276 (6th Cir. 1998) (Instruction proof of tax deficiency). father knew of son’s fraudulent failed to charge jury that contractor business scheme). was only liable for falsity of costs it United States v. Adkinson, 158 claimed to have incurred). F.3d 1147 (11th Cir. 1999) United States v. Odiodio, 244 F.3d (Insufficient evidence of fraud). 398 (5th Cir. 2001) (No bank fraud *United States v. Adkinson, 135 when bank not subject to civil F.3d 1363 (11th Cir. 1998) United States v. Rodrigues, 159 liability). (Dismissal of underlying bank fraud F.3d 439 (9th Cir. 1999) undermined convictions for (Insufficient evidence of fraud and United States v. Howerter, 248 conspiracy, mail and wire fraud theft). F.3d 198 (3rd Cir. 2001) (Person schemes, and money laundering). authorized to write checks did not United States v. Hanson, 161 F.3d commit bank larceny by cashing *United States v. Rodriguez, 140 896 (5th Cir. 1999) (Factual checks payable to himself). F.3d 163 (2nd Cir. 1998) questions about bank fraud should (Insufficient evidence of bank have been decided by jury). United States v. Ali, 266 F.3d 1242 fraud). (9th Cir. 2001) (FDIC insurance at United States v. Laljie, 184 F.3d time of trail did not prove bank was *United States v. Ely, 142 F.3d 180 (2d Cir. 1999) (No evidence insured at time of fraud). 1113 (9th Cir. 1997) (Government that checks were altered, that failed to prove defendant was a bank signatures were not genuine, or that director as charged in the they were intended to victimize Money indictment). bank). Laundering

*United States v. D’Agostino, 145 United States v. Lindsay, 184 F.3d United States v. Newton, 44 F.3d F.3d 69 (2nd Cir. 1998) (Diverted 1138 (10th Cir. 1999) (Insufficient 913 (11th Cir. 1995) (Proof of funds were not taxable income for evidence that bank was FDIC aiding and abetting money purposes of tax evasion). insured). laundering conspiracy was insufficient against defendant who *United States v. Schnitzer, 145 United States v. Harstel, 199 F.3d leased house on behalf of F.3d 721 (5th Cir. 1998) 812 (6th Cir. 1999) (Receipt of conspirator). (Impermissible theory of fraud mailed bank statements was not a justified new trial). fraudulent use of mails). *United States v. Rockelman, 49 F.3d 418 (8th Cir. 1995) (Evidence *United States v. Shotts, 145 F.3d United States v. Principe, 203 F.3d failed to show the transaction was 1289 (11th Cir.), cert. denied, 525 849 (5th Cir. 2000) (Possession of intended to conceal illegal U.S. 1177 (1999) (Bail bond license counterfeit document should not proceeds). was not property within meaning of have been sentenced under mail fraud statute). trafficking guidelines). *United States v. Hove, 52 F.3d 233 (9th Cir. 1995) (Failure to United States v. Hughey, 147 F.3d United States v. Tucker, 217 F.3d instruct the jury that the defendant 423 (5th Cir. 1998) (Passing bad 960 (8th Cir. 2000) (Loss to IRS must know his structuring was checks was not unauthorized use of occurred when taxes were due, not illegal, was plain error). an access device). when conspiracy began). United States v. Torres, 53 F.3d *United States v. Evans, 148 F.3d Cleveland v. United States, 531 1129 (10th Cir.), cert. denied, 516 477 (5th Cir.), cert. denied, 525 U.S. U.S. 12 (2000) (Victim must U.S. 883 (1995) (Buying a car with 1112 (1999) (No evidence that actually receive the item for there to drug proceeds was not money mailings advanced fraudulent be mail fraud). laundering). scheme). United States v. Gee, 226 F.3d 885 United States v. Willey, 57 F.3d th United States v. Blasini-Lluberas, (7 Cir. 2000) (Insufficient evidence 1374 (5th Cir.), cert. denied, 516 169 F.3d 57 (1st Cir. 1999) (There of mail and wire fraud where U.S. 1029 (1995) (Transferring was no misapplication of bank funds defendant did not conceal material money between accounts was on a debt not yet due). facts). P 32 Reversible Error 2002 The BACK BENCHER insufficient evidence of an intent to laundering). (Moving packages of contraband conceal). and statements about police was not United States v. Calderon, 169 aiding and abetting). *United States v. Wynn, 61 F.3d F.3d 718 (11th Cir. 1999) 921 (D.C. Cir.), cert. denied, 516 (Insufficient evidence of money United States v. Luciano- U.S. 1015 (1995) (Insufficient laundering). Mosquero, 63 F.3d 1142 (1st. Cir.), evidence that the defendant knew cert. denied, 517 U.S. 1234 (1996) his structuring was unlawful). United States v. Zvi, 168 F.3d 49 (No evidence that the defendant (2d Cir. 1999) (Charging domestic took steps to assist in the use of a *United States v. Dobbs, 63 F.3d and international money laundering firearm). 391 (5th Cir. 1995) (Undisguised based on the same transactions was money used for family needs was multiplicitous). *United States v. Fulbright, 105 not money laundering). F.3d 443 (9th Cir.), cert. denied, 520 *United States v. Brown, 186 F.3d U.S. 1236 (1997) (Government United States v. Nelson, 66 F.3d 661 (5th Cir. 1999) (Insufficient failed to prove anyone committed 1036 (9th Cir. 1995) (Defendant’s evidence of money laundering when the principle crime with requisite eagerness to complete the no proof checks were connected to intent). transaction was not sufficient to fraud). prove an attempt). United States v. Beckner, 134 F.3d United States v. Anderson, 189 714 (5th Cir. 1998) (Lawyer was not *United States v. Kramer, 73 F.3d F.3d 1201 (10th Cir. 1999) (Titling shown to have knowledge of client’s 1067 (11th Cir.), cert. denied, 519 vehicle in mother’s name did not fraud for aiding and abetting). U.S. 1011 (1996) (Transaction that prove money laundering). occurred outside of the United *United States v. Nelson, 137 F.3d States was not money laundering). *United States v. Messner, 197 1094 (9th Cir.), cert. denied, 119 F.3d 330 (9th Cir. 1999) (Coded S.Ct. 231 (1999) (Evidence did not United States v. Phipps, 81 F.3d language did not support money support aiding and abetting use and 1056 (11th Cir. 1996) (Not money laundering conviction). carrying of a firearm during crime laundering to deposit a series of of violence). checks that are less than $10K United States v. Miranda, 197 each). F.3d 1357 (11th Cir. 1999) (Ex post United States v. Stewart, 145 F.3d facto application of money 273 (5th Cir. 1998) (Insufficient United States v. Pipkin, 114 F.3d laundering conspiracy statute) evidence that passenger aided and 528 (5th Cir.), cert. denied, 519 U.S. abetted drug possession without 821 (1996) (Defendant did not United States v. Olaniyi-Oke, 199 intent to distribute). knowingly structure a currency F.3d 767 (5th Cir. 1999) (Purchase transaction). of computers for personal use was United States v. Garcia-Guizar, not money laundering). 160 F.3d 511 (9th Cir. 1999) *United States v. High, 117 F.3d (Insufficient evidence of aiding and 464 (11th Cir. 1997) (Money United States v. Loe, 248 F.3d 449 abetting when no money found on laundering instruction omitted the (5th Cir. 2001) (When legitimate and defendant and was not present at element of willfulness). illegal funds were commingled, sale). government had to prove illegal United States v. Garza, 118 F.3d funds were laundered). United States v. Wilson, 160 F.3d 278 (5th Cir. 1997) (Money 732 (D.C. Cir.), cert. denied, 528 laundering proof was insufficient United States v. Marshall, 248 U.S. 828 (1999) (Insufficient where defendants neither handled F.3d 525 (6th Cir. 2001) (Purchase evidence of aiding and abetting nor disposed of drug proceeds). of personal property was not money murder or retaliation where laundering). defendant only told shooter of *United States v. Christo, 129 victim’s location). F.3d 578 (11th Cir. 1997) (Check kiting scheme was not money Aiding and United States v. Barnett, 197 F.3d laundering). Abetting 138 (5th Cir. 1999) (Insufficient evidence of conspiring or aiding and *United States v. Shoff, 151 F.3d United States v. de la Cruz- abetting murder for hire when 889 (8th Cir. 1998) (Purchase with Paulino, 61 F.3d 986 (1st Cir. 1995) defendant did not share intent with proceeds of fraud was not money principal). P 33 Reversible Error 2002 The BACK BENCHER

misrepresentation to court was not a (9th Cir.), cert. denied, 520 U.S. Perjury material false statement). 1188 (1997) (Magistrate judge did not have the authority to hold a United States v. Hairston, 46 F.3d United States v. Farmer, 137 F.3d litigant in criminal contempt). 361 (4th Cir. 1995) (Ambiguity in 1265 (10th Cir. 1998) (Answer to the question to the defendant was ambiguous question did not support United States v. Neal, 101 F3d 993 insufficient for perjury conviction). conviction for false declaration). (4th Cir. 1996) (Plain error for a judge to prosecute and preside over United States v. Dean, 55 F.3d 640 United States v. Hodge, 150 F.3d a contempt action). (D.C. Cir.), cert. denied, 516 U.S. 1148 (9th Cir. 1998) (Insufficient 1184 (1996) (Statement that was evidence of false statements when United States v. Vezina, 165 F.3d literally true did not support a no certification made on 176 (2d Cir. 1999) (Insufficient perjury conviction). documents). evidence of criminal contempt of a TRO dealing with a third party). United States v. Jaramillo, 69 F.3d United States v. Sorenson, 179 388 (9th Cir. 1995) (Defendant F.3d 823 (9th Cir. 1999) charged with perjury by inconsistent (Defendant’s false statements were Immigration statements must have made both contained in an unsigned loan under oath). application). *United States v. Bahena- Cardenas, 70 F.3d 1071 (9th Cir. United States v. Shotts, 145 F.3d United States v. Walker, 191 F.3d 1995) (Alien who was not served 1289 (11th Cir. 1998) (Evasive, but 326 (2d Cir. 1999) (Insufficient with warrant of deportation, was not true, answer was not perjury). proof that defendant was responsible guilty of illegal reentry). for more than 100 false immigration documents). United States v. Dieguimde, 119 False F.3d 933 (11th Cir. 1997) (Order of Statements deportation did not consider Contempt defendant’s request for political United States v. Gaudin, 515 U.S. asylum). 506 (1995) (Materiality is an United States v. Mathews, 49 F.3d element of a false statement case) 676 (11th Cir. 1995) (Certification United States v. Gallardo-Mendez, of contempt must be filed by the 150 F.3d 1240 (10th Cir. 1998) United States v. Bush, 58 F.3d 482 judge who witnessed the alleged (Prior guilty plea did not prevent (9th Cir. 1995) (No material false contempt). defendant from contesting non- statements or omissions were made citizen status). to receive union funds). United States v. Forman, 71 F.3d 1214 (6th Cir. 1995) (Attorney was *United States v. Pacheco- United States v. Rothhammer, 64 not in contempt for releasing grand Medina, 212 F.3d 1162 (9th Cir. F.3d 554 (10th Cir. 1995) jury materials in partner’s case). 2000) (Defendant who was captured (Contractual promise to pay was not a few yards from border did not a factual assertion). United States v. Brown, 72 F.3d 25 enter United States). (5th Cir. 1995) (Lawyer’s comments United States v. Campbell, 64 F.3d on a judge’s trial performance were United States v. Rodriguez- 967 (5th Cir. 1995) (Defendant’s not reckless). Fernandez, 234 F.3d 498 (8th Cir. misrepresentations to a bank were 2000) (Without detention order in not material). United States v. Mottweiler, 82 place, defendant did not escape from F.3d 769 (7th Cir. 1996) (Defendant INS). *United States v. McCormick, 72 must have acted willfully to be F.3d 1404 (9th Cir. 1995) guilty of criminal contempt). *United States v. Ruiz-Lopez, 234 (Defendant who did not read F.3d 445 (9th Cir. 2000) (Presence documents before signing them was United States v. Grable, 98 F.3d at border is not the same as being not guilty of making a false 251 (6th Cir.), cert. denied, 519 U.S. found in the United States). statement). 1059 (1997) (Contempt order could not stand in light of incorrect advice Steele v. Blackman, 236 F.3d 130 United States v. Barrett, 111 F.3d about Fifth Amendment privilege). (3rd Cir. 2001) (Alien’s 947 (D.C.), cert. denied, 522 U.S. misdemeanor conviction for 867 (1997) (Defendant’s Bingman v. Ward, 100 F.3d 653 distributing less than 30 grams of P 34 Reversible Error 2002 The BACK BENCHER marijuana was not aggravated United States v. Yoakum, 116 F.3d felony). 1346 (10th Cir. 1997) (Defendant’s Assimilative interest in a business, and his Crimes United States v. Matsumaru, 244 presence near time of fire, did not F.3d 1092 (9th Cir. 2001) support arson conviction). United States v. Devenport, 131 (Insufficient evidence that attorney F.3d 604 (7th Cir. 1997) (Violation set up practice to evade immigration United States v. Spruill, 118 F.3d of a state civil provision was not laws). 221 (4th Cir. 1997) (Insufficient covered by Assimilative Crimes evidence that a threat would be Act). United States v. Herrera-Ochoa, carried out by fire or explosive). 245 F.3d 495 (5th Cir. 2001) rd United States v. Sylve, 135 F.3d (Defendant’s presence at trial could *Smith v. Horn, 120 F.3d 400 (3 680 (9th Cir. 1998) (Deferred not be evidence that he had Cir. 1997) (First degree murder prosecution was available for charge previously entered United States). instruction failed to require specific under Assimilative Crimes Act). intent). United States v. Portillo-Mendoza, United States v. Waites, 198 F.3d 273 F.3d 1224 (9th Cir. 2001) (Prior United States v. Bordeaux, 121 1123 (9th Cir. 2000) (Conduct that California DUI was not aggravated F.3d 1187 (8th Cir. 1997) (Jury was regulated federally should not felony). instruction in an abusive sexual have been prosecuted under contact case failed to require force). Assimilative Crimes Act). Pornography United States v. Estrada- United States v. Provost, 237 F.3d Fernandez, 150 F.3d 491 (5th Cir. *United States v. Hilton, 167 F.3d 934 (8th Cir. 2001) (Federal 1998) (Simple assault is lesser 61 (1st Cir.), cert. denied, 528 U.S. government cannot prosecute state included offense of assault with 844 (1999) (Whether defendant crime occurring on lands that are no deadly weapon). believed pornographic actors were longer in Indian hands). over 18 years old was a jury United States v. Guerrero, 169 question). United States v. Prentice, 273 F.3d F.3d 933 (5th Cir. 1999) 1277 (10th Cir. 2001) (Parties (Inconclusive identification did not United States v. McKelvey, 203 cannot stipulate victim was Indian support bank robbery conviction). F.3d 66 (1st Cir. 2000) (Single film when they were not). strip with three images was not “3 Jones v. United States, 526 U.S. or more matters” under child porn 227 (1999) (Jury must decide Miscellaneous statute). whether carjacking resulted in serious bodily injury or death). Crimes United States v. Henriques, 234 F.3d 263 (5th Cir. 2000) (At least United States v. Wood, 207 F.3d United States v. Rodriguez, 45 three images must travel in interstate 1222 (10th Cir. 2000) (Doctor’s F.3d 302 (9th Cir. 1995) (Possessing commerce for child pornography injection of drug to treat patient did an object designed to be used as a conviction). not prove premeditated murder). weapon, while in prison, was a specific intent crime). Violent Crimes United States v. Hood, 210 F.3d 660 (6th Cir. 2000) (Assault without United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997) United States v. Main, 113 F.3d verbal threat was minor rather than (Transmission of e-mail messages of 1046 (9th Cir. 1997) (In an aggravated). torture, rape and murder did not fall involuntary manslaughter case, the within federal statute without public harm must have been foreseeable United States v. Baker, 262 F.3d availability). within the risk created by the 124 (2d Cir. 2001) (Instruction defendant). allowed conviction without proving ll elements of murder with intent to United States v. Grigsby, 111 F.3d 806 (11th Cir. 1997) (Importation of *United States v. Wicklund, 114 obstruct justice). prohibited wildlife products fell F.3d 151 (10th Cir. 1997) (Murder under exceptions to statute). for hire required a receipt or promise of pecuniary value). United States v. Nyemaster, 116 F.3d 827 (9th Cir. 1997) P 35 Reversible Error 2002 The BACK BENCHER

(Insufficient evidence of being evidence of obstruction of justice (Certification for juvenile by AUSA under the influence of alcohol in a and conspiracy without proof of was invalid). federal park). knowledge of pending proceeding). United States v. Juvenile LWO, United States v. Cooper, 121 F.3d United States v. Bad Wound, 203 160 F.3d 1179 (8th Cir. 1999) 130 (3rd Cir. 1997) (Evidence did F.3d 1072 (8th Cir. 2000) (Judge may not consider not support conviction for (Defendant not liable for acts of unadjudicated incidents at juvenile tampering with a witness). coconspirators prior to entering transfer hearing in assessing nature conspiracy). of charges or prior record). *United States v. King, 122 F.3d 808 (9th Cir. 1997) (Crime of United States v. Naiman, 211 F.3d United States v. Juvenile (RRA- mailing threatening communication 40 (2d Cir. 2000) (Receipt of the A), 229 F.3d 737 (9th Cir. 2000) required a specific intent to funds is a jurisdictional element of (Agents failed to notify juvenile’s threaten). commercial bribery). parents or Mexican consulate).

*United States v. Valenzeno, 123 United States v. Giles, 213 F.3d F.3d 365 (6th Cir. 1997) (Obtaining 1247 (10th Cir. 2000) (Counterfeit Sentencing - a credit report without permission labels were not goods within General was not a crime). meaning of statute). United States v. Rivera, 58 F.3d *United States v. Farrell, 126 F.3d United States v. Neuhausser, 241 600 (11th Cir. 1995) (Defendant 484 (3rd Cir. 1997) (Urging a F.3d 460 (6th Cir. 2001) was sentenced on the wrong count). witness to “take the Fifth” was not (Insufficient evidence to support witness tampering). Travel Act conviction). *United States v. Knowles, 66 F.3d 1146 (11th Cir.), cert. denied, 516 United States v. Rapone, 131 F.3d United States v. Ortlieb, 274 F.3d U.S. 1149 (No proof the conspiracy 188 (D.C. Cir. 1997) (Evidence was 871 (5th Cir. 2001) (Obstruction of extended to the date when insufficient to show retaliation). justice requires wrongful intent). guidelines became effective). United States v. Romano, 137 F.3d Juveniles *Page v. United States, 69 F.3d 677 (1st Cir. 1998) (Law prohibiting 482 (11th Cir. 1995) (Court failed to sale of illegally taken wildlife did United States v. Juvenile Male #1, require the parties to state objections not cover the act of securing guide at the sentencing hearing). services for hunting trip). 47 F.3d 68 (2d Cir. 1995) (Court properly refused transfer of a juvenile for adult proceedings). *United States v. Petty, 80 F.3d *United States v. Cottman, 142 1384 (9th Cir. 1996) (Record should F.3d 160 (3rd Cir. 1998) United States v. Doe, 53 F.3d 1081 have shown that the defendant read (Government is not a victim under the presentence report and Victim Witness Protection Act). (9th Cir. 1995) (Unadjudicated juvenile could not be sentenced to supplements). supervised release). *United States v. Copeland, 143 United States v. Torres, 81 F.3d F.3d 1439 (11th Cir. 1998) th United States v. Juvenile Male 900 (9 Cir. 1996) (Disparity in (Government contractor was not coconspirators’ sentences was not bribed under federal statute). PWM , 121 F.3d 382 (8th Cir. 1997) (Court imposed sentence justified, due to inconsistent factual findings). United States v. Walker, 149 F.3d beyond comparable guideline for adults). 238 (3rd Cir. 1998) (Prison worker United States v. Burke, 80 F.3d was not a corrections officer). 314 (8th Cir. 1996) (Presentence report could not be used as evidence United States v. Truesdale, 152 Impounded Juvenile I.H., Jr., 120 when the defendant disputed the F.3d 443 (5th Cir. 1998) facts therein). (Insufficient evidence of illegal F.3d 457 (3rd Cir. 1997) (Failure to gambling). provide juvenile records barred transfer to adult status). *United States v. Ivy, 83 F.3d 1266 (10th Cir.), cert. denied, 519 U.S. United States v. Davis, 183 F.3d *United States v. Male Juvenile, 901 (1996) (Government’s failure to 231 (3rd Cir. 1999) amended 197 object to a presentence report F.3d 662 (same). (Insufficient 148 F.3d 468 (5th Cir. 1998) P 36 Reversible Error 2002 The BACK BENCHER waived its complaint). statements made pursuant to plea over defendant’s objection). agreement). *United States v. Graham, 83 F.3d United States v. Mitchell, 187 F.3d 1466 (D.C.Cir.), cert. denied, 519 *United States v. Myers, 150 F.3d 331 (3rd Cir. 1999) (Court may not U.S. 1132 (1997) (Adoption of the 459 (5th Cir. 1998) (Defendant was draw adverse inference from silence presentence report is not the same as denied right of allocution). at sentencing). express findings). *United States v. Davenport, 151 United States v. Swiney, 203 F.3d United States v. Versaglio, 85 F.3d F.3d 1325 (11th Cir. 1998) 397 (6th Cir.), cert. denied, 530 U.S. 943 (2d Cir.), modified, 96 F.3d 637 (Defendant did not waive right to 1238 (2000) (Application of (1996) (Criminal contempt offense review presentence report by mandatory minimum is controlled cannot be punished by both fine and absconding). by guidelines definition of relevant incarceration). conduct, not Pinkerton doctrine). United States v. Glover, 154 F.3d United States v. Moskovits, 86 1291 (11th Cir. 1998) (Time *United States v. Kent, 209 F.3d F.3d 1303 (3d Cir.), cert. denied, credited toward a sentence did not 1073 (8th Cir. 2000) (Sentence with 519 U.S. 1120 (1997) (Court lengthen total sentence). mental health counseling was improperly considered a defendant’s improper when there was no history decision to go to trial rather than United States v. Casey, 158 F.3d of mental condition). accept a plea offer). 993 (8th Cir. 1999) (Court must use guideline of charged offense). United States v. Sadler, 234 F.3d *United States v. Tabares, 86 F.3d 368 (8th Cir. 2000) (Once district 326 (3rd Cir. 1996) (Erroneous United States v. Partlow, 159 F.3d court lost jurisdiction over case it information did not justify a 1218 (9th Cir. 1999) (Specific could not raise sentence). sentence at the top of the range). offense characteristics must be applied in the order listed). Shafer v. South Carolina, 532 U.S. United States v. Farnsworth, 92 36 (2001) (Whenever future F.3d 1001 (10th Cir.), cert. denied, United States v. Weaver, 161 F.3d dangerousness is at issue in a capital 519 U.S. 1034 (1996) (Adoption of 528 (8th Cir. 1999) (Typo on PSR case, the jury must be informed the presentence report did not recommending wrong base level about life sentence without resolve disputed matters). was plain error). possibility of parole).

*United States v. Romero, 122 *United States v. Allard, 164 F.3d United States v. Fields, 242 F.3d F.3d 1334 (10th Cir.), cert. denied, 1146 (8th Cir. 1999) (Offense 393 (D.C. Cir. 2001) (Kidnapping 523 U.S. 1025 (1998) (Court may characteristic for one offense could could not be enhanced by murder, not resolve factual disputes by not be used for another). when murder was not pled). merely adopting the presentence report). United States v. Robinson, 164 .3d United States v. Corporan- 1068 (7th Cir.), cert. denied, 528 .S. Cuevas, 244 F.3d 199 (1st Cir. United States v. Ross, 131 F.3d 848 (1999) (Hearsay statements sed 2001) (Could not sentence beyond 970 (11th Cir. 1997) (When at sentencing were unreliable). statutory maximum even when defendant is convicted of a concurrent to legal sentence). conspiracy count with multiple objects, the court must find beyond United States v. Mueller, 168 F.3d United States v. Velasquez, 246 a reasonable doubt that a particular 86 (5th Cir. 1999) (Failure to F.3d 204 (2d Cir. 2001) (Sentence object was proven before applying disclose addendum to presentence exceeded statutory maximum that guideline section). report). without proof of death or serious bodily injury). United States v. Renteria, 138 F.3d United States v. Jones, 168 F.3d 1328 (10th Cir. 1998) (Lying at 217 (10th Cir. 1999) (If the court United States v. Thomas, 246 F.3d suppression hearing invoked allows an oral objection at 438 (8th Cir. 2001) (Sentence accessory after fact guideline, not sentencing hen a finding on that exceeded statutory maximum perjury). objection must be made). without proof of drug quantities).

United States v. Washington, 146 United States v. Navarro, 169 F.3d United States v. Bradford, 246 F.3d 219 (4th Cir. 1998) (Court 228 (5th Cir. 1999) (Cannot have F.3d 1107 (8th Cir. 2001) (Sentence should not have relied upon sentencing via video conference violating statutory maximum cannot P 37 Reversible Error 2002 The BACK BENCHER be upheld because trial court might F.3d 53 (D.C. Cir.), cert. denied, (Duplicitous sentences were not have stacked sentences to reach 525 U.S. 911 (1998) (Court cannot purely concurrent where each same result). refuse to group counts in order to received a separate special give defendant a higher sentence). assessment). United States v. Knight, 266 F.3d 203 (3rd Cir. 2001) (It is plain error United States v. Marmolejos, 140 United States v. Kikuyama, 109 to apply wrong guideline section). F.3d 488 (3rd Cir. 1998) (Clarifying F.3d 536 (9th Cir. 1997) (Court amendment to grouping section cannot rely on need for mental United States v. Sumner, 265 F.3d justified post-sentence relief). health treatment in fashioning a 532 (7th Cir. 2001) (Court must consecutive sentence). make specific findings to include *United States v. Thomas, 155 uncharged conduct). F.3d 833 (7th Cir.), cert. denied, 525 *United States v. Nash, 115 F.3d U.S. 1048 (1998) (Court failed to 1431 (9th Cir.), cert. denied, 522 United States v. Martinez, 274 group counts when threats were U.S. 1117 (1998) (Multiplicious F.3d 897 (5th Cir. 2001) (Federal made to same victim). counts must be sentenced sentence under Assimilative Crimes concurrently and may not receive Act was three times state sentence *United States v. Martinez- separate special assessments). for same conduct). Martinez, 156 F.3d 936 (9th Cir. 1999) (Reduction for non-drug *United States v. Mendez, 117 United States v. Taylor, 277 F.3d conspiracy was mandated when F.3d 480 (11th Cir. 1997) 721 (5th Cir. 2001) (Court must be object crime was not substantially (Simultaneous acts of possessing assured information in report was complete). stolen mail and assaulting a mail not from defendant’s immunized carrier with intent to steal mail, statements). United States v. Levario-Quiroz, could not receive cumulative 161 F.3d 903 (5th Cir. 1999) punishments). United States v. Burgos, 276 F.3d (Offenses outside United States 1284 (11th Cir. 2001) (Court could were not relevant conduct). *McCarthy v. Doe, 146 F.3d 118 not penalize defendant for failure to (2d Cir. 1998) (BOP could designate cooperate in unrelated United States v. Bartley, 230 F.3d state institution in order to investigation). 667 (4th Cir. 2000) (Drug and implement presumptively money laundering conspiracies concurrent sentence). should have been grouped). Grouping *United States v. Quintero, 157 United States v. Nedd, 262 F.3d 85 F.3d 1038 (6th Cir. 1999) (Federal United States v. DiDomenico, 78 (1st Cir. 2001) (Grouping sentence could not be imposed F.3d 294 (7th Cir.), cert. denied, 519 determined by sets of victims, not consecutively to not yet imposed U.S. 1006 (1996) (Unadjudicated individuals). state sentence). crimes could not be used to determine a combined offense United States v. Dorsey, 166 F.3d level). Consecutive/ 558 (3rd Cir. 1999) (Court had Concurrent authority to reduce a sentence in *United States v. Wilson, 98 F.3d order to make it effectively 281 (7th Cir. 1996) (Money United States v. Greer, 91 F.3d concurrent to a previously imposed laundering and mail fraud should state sentence). have been grouped together). 996 (7th Cir. 1996) (Sentences at two proceedings on the same day were presumed concurrent). United States v. Chea, 231 F.3d *United States v. Haltom, 113 531 (9th Cir. 2000) (Court was F.3d 43 (5th Cir. 1997) (Mail fraud *United States v. Fuentes, 107 required to consider undischarged and tax fraud counts should have prior when fashioning sentence). been grouped). F.3d 1515 (11th Cir. 1997) ( Federal sentence which calculated a state *United States v. Emerson, 128 sentence into the base offense level Retroactivity F.3d 557 (7th Cir. 1997) (Money must be concurrent to the state laundering and mail fraud should sentence). *United States v. Vazquez, 53 F.3d have been grouped). 1216 (11th Cir. 1995) (Case *United States v. Corona, 108 remanded to determine retroactive United States v. Kennedy, 133 F.3d 565 (5th Cir. 1997) effect of favorable guideline, that P 38 Reversible Error 2002 The BACK BENCHER became effective after sentencing). where amendment increased 631 (7th Cir. 1998) (Drugs for punishment). personal use could not be counted *United States v. Felix, 87 F.3d toward distribution quantity). 1057 (9th Cir. 1996) (Amendment to United States v. Schulte, 264 F.3d the guidelines, which required a 656 (6th Cir. 2001) (Act was United States v. Butler, 238 F.3d sentence based on a lower, committed prior to effective date of 1001 (8th Cir. 2001) (Failure to negotiated quantity of drugs, was statute). allege marijuana quantity required retroactive). resentencing to below enhanced statutory maximum). United States v. Etherton, 101 Sentencing - F.3d 80 (9th Cir. 1996) (Retroactive Marijuana United States v. Garcia, 242 F.3d amendment could be used to reduce 593 (5th Cir. 2001) (Drug quantity supervised release). *United States v. Foree, 43 F.3d was not proven). 1572 (11th Cir. 1995) (Seedlings *United States v. Ortland, 109 and cuttings did not count as Sentencing - F.3d 539 (9th Cir.), cert. denied, 522 marijuana plants). U.S. 851 (1997) (Since mail fraud is Meth not a continuing offense, an act *United States v. Smith, 51 F.3d committed after the date of an 980 (11th Cir. 1995) (Weight of wet *United States v. Ramsdale, 61 increase to guidelines did not marijuana was improperly counted). F.3d 825 (11th Cir. 1995) require all counts to receive (Improperly sentenced for D- increased guidelines). United States v. Caldwell, 88 F.3d methamphetamine rather than "L"). 522 (8th Cir.), cert. denied, 519 U.S. United States v. Zagari, 111 F.3d 1048 (1996) (Extrapolation of drug United States v. Hamilton, 81 F.3d 307 (2d Cir. 1997) (Use of quantities was error). 52 (6th Cir. 1996) (To be culpable guidelines effective after conduct or manufacturing a quantity of violated Ex Post Facto Clause). *United States v. Antonietti, 86 drugs, the defendant must have been F.3d 206 (11th Cir. 1996) (Counting personally able to make that United States v. Armistead, 114 seedlings as marijuana plants to quantity). F.3d 504 (5th Cir.), cert. denied, 522 calculate the base offense level was U.S. 922 (1997) (Ex post facto plain error). United States v. McMullen, 86 application of a guideline F.3d 135 (8th Cir. 1996) (Judge provision). United States v. Agis-Meza, 99 could not determine the type of F.3d 1052 (11th Cir. 1996) (Court methamphetamine based upon the *United States v. Aguilar-Ayala, had an insufficient basis to calculate judge’s experience, the price, or 120 F.3d 176 (9th Cir. 1997) a quantity of marijuana based upon where the drugs came from). (Defendant was entitled to sentence cash and money wrappers seized). reduction to mandatory minimum United States v. Gutierrez- because of retroactive guideline *United States v. Carter, 110 F.3d Hernandez, 94 F.3d 582 (9th Cir. amendment, regardless of whether 759 (11th Cir. 1997) (Court abused 1996) (There was no presumption safety valve applied). its discretion in denying a motion that three drug manufacturers were for a reduction of a sentence over equally culpable). United States v. Bowen, 127 F.3d 9 weight of wet marijuana). (1st Cir. 1997) (Amendment United States v. Cole, 125 F.3d 654 defining hashish oil was applied ex *United States v. Mankiewicz, 122 (8th Cir. 1997) (Defendant’s post facto). F.3d 399 (7th Cir. 1997) (Marijuana testimony about his ability to that was rejected by defendants manufacture was relevant). *United States v. Mussari, 152 should not have been counted). F.3d 1156 (9th Cir. 1998) (Ex post United States v. O’Bryant, 136 facto application of criminal United States v. Perulena, 146 F.3d 980 (5th Cir. 1998) penalties to failure to pay child F.3d 1332 (11th Cir. 1998) (Government has burden of proving support). (Defendant was not responsible for more serious form of marijuana imported before he joined methamphetamine). United States v. Comstock, 154 conspiracy). F.3d 845 (8th Cir. 1998) (Using *United States v. Whitecotton, 142 guideline effective after commission *United States v. Wyss, 147 F.3d F.3d 1194 (9th Cir. 1998) (Later of offense violated ex post facto P 39 Reversible Error 2002 The BACK BENCHER drug sales were not foreseeable to quantities). lowest possible quantity). defendant). United States v. Gore, 154 F.3d 34 In Re Sealed Case, 108 F.3d 372 United States v. Asch, 207 F.3d (2d Cir. 1998) (Possession and (D.C. Cir. 1997) (Court failed to 1238 (10th Cir. 2000) (Drugs for distribution of the same drugs may make findings attributing all drugs personal use could not be used to only be punished once). to the defendant). calculate range for distribution). United States v. Marrero-Ortiz, *United States v. Milledge, 109 United States v. Kroeger, 229 F.3d 160 F.3d 768 (1st Cir. 1999) F.3d 312 (6th Cir. 1997) (Evidence 700 (8th Cir. 2000) (Environmental (Insufficient evidence of drug did not justify drug quantity harm enhancement did not apply to quantity). finding). meth case). United States v. Guevara, 277 F.3d United States v. Jackson, 115 F.3d *United States v. Eschman, 227 111 (2d Cir. 2001) (When quantity 843 (11th Cir. 1997) (Package F.3d 886 (7th Cir. 2000) (Meth of heroin was not pled or proven to containing 1% cocaine and 99% quantities should have been based jury, defendant is subject to range sugar was not a mixture under the upon defendant’s own ability to for heroin proven, not higher guidelines). produce). statutory maximum). *United States v. Granados, 117 United States v. Munoz, 233 F.3d F.3d 1089 (8th Cir. 1997) (The (6th Cir. 2000) (Court could not Sentencing - court failed to make specific drug count meth that defendant was Cocaine quantity findings). incapable of delivering). United States v. Reese, 67 F.3d 902 United States v. Fraser, 243 F.3d (11th Cir.), cert. denied, 517 U.S. 473 (8th Cir. 2001) (Drug quantities 1228 (1996) (Drugs were not *United States v. Patel, 131 F.3d for personal use must be excluded reasonably foreseeable to the 1195 (7th Cir. 1997) (Evidence was from distribution amounts). defendant, nor within scope of insufficient that seized money could agreed joint criminal activity). support cocaine quantities). United States v. Hollings worth, 257 F.3d 871 (8th Cir. 2001) *United States v. Howard, 80 F.3d United States v. Bacallao, 149 F.3d (Quantity of precursor chemical 1194 (7th Cir. 1996) (District court 717 (7th Cir. 1998) (No showing must be pled and proven beyond could not rely upon the probation prior cocaine transactions were reasonable doubt to raise maximum officer’s estimates of drug quantities relevant conduct). punishment). without corroborating evidence). United States v. Flowal, 163 F.3d th Sentencing - United States v. Acosta, 85 F.3d 956 (6 Cir.), cert. denied, 119 S.Ct. 275 (7th Cir. 1996) (Drug quantity 1509 (1999) (Drug quantity was Heroin finding was insufficient). arbitrarily chosen).

*United States v. Jinadu, 98 F.3d United States v. Nesbitt, 90 F.3d *United States v. Noble, 246 F.3d 239 (6th Cir.), cert. denied, 520 U.S. 164 (6th Cir. 1996) (Court failed to 946 (7th Cir. 2001) (Failure to 1179 (1997) (Court could not rely resolve whether amounts of drugs charge drug quantity was plain on drug quantities alleged in were attributable during the time of error). indictment to determine a the conspiracy). mandatory minimum). Sentencing - United States v. Hernandez- *United States v. Shonubi, 103 Santiago, 92 F.3d 97 (2d Cir. 1996) Crack F.3d 1085 (2d Cir. 1997) (Court failed to make a finding as to (Multiplying quantity of seized the scope of the defendant’s United States v. Lawrence, 47 F.3d drugs by number of previous trips agreement). 1559 (11th Cir. 1995) (Could not was an inadequate measure). simply multiply sales outside of *United States v. Chalarca, 95 crackhouse times days defendant United States v. Rodriguez, 112 F.3d 239 (2d Cir. 1996) (When was in conspiracy). F.3d 374 (8th Cir. 1997) negotiated drug amount was not (Insufficient evidence of drug foreseeable, the court should use the *United States v. Hansley, 54 F.3d P 40 Reversible Error 2002 The BACK BENCHER

709 (11th Cir.), cert. denied, 516 F.3d 607 (8th Cir. 1996) (Trial court U.S. 998 (1995) (Individual findings inadequately explained its drug Sentencing - were needed to hold defendant quantity findings). Firearms responsible for all drugs in conspiracy). United States v. Brown, 156 F.3d United States v. Bernardine, 73 813 (8th Cir. 1999) (Court should F.3d 1078 (11th Cir. 1996) *United States v. Lee, 68 F.3d have only based sentence on drug th (Government failed to prove the 1267 (11 Cir. 1995) (There were quantity proven by government). defendant was a marijuana user, and inadequate findings to support drug thus he was not a prohibited quantities. Crack abusers’ credibility United States v. Garrett, 161 F.3d person). was questioned). 1131 (8th Cir. 1999) (Insufficient evidence of drug quantity). United States v. Mendoza- United States v. Chisholm, 73 F.3d Alvarez, 79 F.3d 96 (8th Cir. 1996) 304 (11th Cir. 1996) (No factual United States v. Gomez, 164 F.3d (Simply carrying a firearm in one’s basis that the defendant knew 1354 (11th Cir. 1999) (Unrelated car was not otherwise unlawful use). powder would be converted to drug sales were not relevant conduct crack). to conspiracy). *United States v. Barton, 100 F.3d 43 (6th Cir. 1996) (Enhancement *United States v. James, 78 F.3d United States v. Moore, 212 F.3d rd relating to prior convictions covered 851 (3 Cir.), cert. denied, 519 U.S. 441 (8th Cir. 2000) (Defendant’s only those before the instant 844 (1996) (No proof that the responsibility for drugs limited to offense). cocaine base was crack for enhanced jointly undertaken activity). penalties to apply). United States v. Moit, 100 F.3d United States v. Jackson, 240 F.3d 605 (8th Cir. 1996) (Possession of United States v. Hill, 79 F.3d 1477 1245 (10th Cir.), cert. denied, 122 th shotguns and hunting rifles qualified (6 Cir.), cert.denied, 519 U.S. 858 S.Ct. 112 (2001) (Failure to plead for “sporting or collection” (1996) (Different transactions drug quantities required reversal). reduction). almost two years apart, with the sole similarity being the type of drug, United States v. Williams, 247 *United States v. Willis, 106 F.3d were not relevant conduct). F.3d 353 (2d Cir. 2001) (Drugs 966 (11th Cir. 1997) (Defendant meant for personal use were not to who previously pleaded nolo United States v. Graham, 83 F.3d be counted toward distribution contendere in a Florida state court 1466 (D.C. Cir.), cert. denied, 519 conspiracy). was not convicted for purposes of U.S. 1132 (1997) (Court failed to being a felon in possession of a make individualized findings of United States v. Palmer, 248 F.3d firearm). drug quantities). 569 (7th Cir. 2001) (Unreliable hearsay did not support drug *United States v. Cooper, 111 F.3d United States v. Frazier, 89 F.3d quantity). 845 (11th Cir. 1997) (Firearm that 1501 (11th Cir.), cert.denied, 520 was not possessed at the site of drug U.S. 1222 (1997) (Sentencing United States v. Cotton, 261 F.3d offense did not justify findings did not support drug 397 (4th Cir. 2001) (Failure to enhancement). quantities attributed to the charge drug quantity to increase defendant). maximum punishment is plain United States v. Zelaya, 114 F.3d error). 869 (9th Cir. 1997) (Express threat United States v. Byrne, 83 F.3d of death was not foreseeable to the 984 (8th Cir. 1996) (Drugs seized United States v. Baptiste, 264 F.3d accomplice-defendant). after the defendant was in custody 578 (5th Cir. 2001) (Failure to could not be counted toward allege drug quantity is plain error *United States v. Knobloch, 131 sentence). when defendant sentenced above F.3d 366 (3rd Cir. 1997) (Court lowest statutory maximum). could not impose an increase for a *United States v. Tucker, 90 F.3d firearm when there was a 1135 (6th Cir. 1996) (Court did not United States v. Thomas, 274 F.3d consecutive gun count). make individualized findings as to 655 (2d Cir. 2001) (Failure to plead each defendant in a drug and prove amount of crack limits *United States v. McDonald, 165 conspiracy). punishment to lowest statutory F.3d 1032 (6th Cir. 1999) (Felon maximum). who stole firearm was not using it in United States v. Randolph, 101 P 41 Reversible Error 2002 The BACK BENCHER connection with another felony). on the amount of money laundered, proper enhancement). not the loss in a related fraud). United States v. Ahmad, 202 F.3d 588 (2d Cir. 2000) (Firearms that United States v. Gabel, 85 F.3d Sentencing - were not prohibited cannot be 1217 (7th Cir. 1996) (Robberies and Fraud / Theft counted toward specific offense burglaries were not relevant conduct characteristic). in a money laundering case). *United States v. Maurello, 76 F.3d 1304 (3rd Cir. 1996) (Loss to a United States v. Hill, 210 F.3d 881 United States v. Morales, 108 F.3d th fraud victim was mitigated by the (8 Cir. 2000) (Defendant who had 1213 (10th Cir. 1997) (Drug value received by the defendant’s already pled guilty was not “under mandatory minimum did not apply actions). indictment” when he received to money laundering offense). firearm). United States v. Hunt, 272 F.3d United States v. Pena-Lora, 225 488 (7th Cir. 2001) (Court cannot *United States v. Millar, 79 F.3d F.3d 17 (1st Cir. 2000) (Identity of substitute drug quantities for money 338 (2d Cir. 1996) (Adjustment for hostage taken was not proven to laundered). affecting a financial institution was award enhancement). limited to money received by the defendant). United States v. Moerman, 233 Sentencing - F.3d 379 (6th Cir. 2000) (Defendant Pornography United States v. Eyoum, 84 F.3d merely brandished firearm, not 1004 (7th Cir.), cert. denied, 519 otherwise used). United States v. Cole, 61 F.3d 24 U.S. 941 (1996) (Fair market value, (11th Cir.), cert. denied, 516 U.S. rather than the smuggler’s price, United States v. Seesing, 234 F.3d 1163 (1996) (Insufficient evidence should have been used to calculate 456 (9th Cir. 2000) (Enhancement of child pornography depicting the value of illegally smuggled for obliterated serial number only minors under twelve). wildlife). applied to firearm counts). *United States v. Ketcham, 80 United States v. Strevel, 85 F.3d United States v. Diaz, 248 F.3d 525 F.3d 789 (3rd Cir. 1996) 501 (11th Cir. 1996) (In determining (11th Cir. 2001) (Co-defendant’s (Enhancement for exploitation of a the amount of loss, the court could brandishing firearm did not support minor was reversed in a child not rely solely on stipulated enhancement for defendant). pornography case for insufficient amounts). evidence). United States v. O’Malley, 265 United States v. King, 87 F.3d F.3d 353 (6th Cir. 2001) (During *United States v. Surratt, 87 F.3d 1255 (11th Cir. 1996) (Without proof conspiracy to steal firearms, it was 814 (6th Cir. 1996) (Defendant’s the defendant committed the not foreseeable that one of the sexual abuse, unrelated to receiving burglary, other stolen items, not firearms would be illegal). child pornography did not prove a found in his possession, could not pattern of activity to increase the be calculated toward loss). Sentencing - offense level). United States v. Sung, 87 F.3d 194 Money *United States v. Kemmish, 120 (7th Cir. 1996) (Findings did not F.3d 937 (9th Cir.), cert. denied, 522 establish reasonable certainty that Laundering U.S. 1132 (1998) (The defendant the defendant intended to sell the did not engage in a pattern of base level quantity of counterfeit United States v. Jenkins, 58 F.3d exploitation). goods). 611 (11th Cir. 1995) ("Rule of lenity" precluded counting money United States v. Fowler, 216 F.3d United States v. Allen, 88 F.3d 765 laundering transactions under 459 (5th Cir. 2000) (Child porn was (9th Cir.), cert. denied, 520 U.S. $10,000). not “distributed” for guideline 1202 (1997) (Collateral recovered to enhancement). secure a loan, and the interest paid, *United States v. Allen, 76 F.3d was not subtracted from loss in a 1348 (5th Cir.), cert. denied, 519 United States v. Galo, 239 F.3d fraud case). U.S. 841 (1996) (Money laundering 572 (3rd Cir. 2001) (Prior state guidelines should have been based sexual abuse conviction was not United States v. Cowart, 90 F.3d P 42 Reversible Error 2002 The BACK BENCHER

154 (6th Cir. 1996) (Common modus provided). F.3d 1117 (7th Cir. 1999) operandi alone, did not make (Calculation of benefits from bribes robberies part of a common *United States v. McIntosh, 124 did not support findings). scheme). F.3d 1330 (10th Cir. 1997) (Failure to disclose his interest in a residence *United States v. Ponec, 163 F.3d United States v. Krenning, 93 F.3d that the defendant did not own was 486 (8th Cir. 1999) (No showing 1257 (4th Cir. 1996) (Value of not bankruptcy fraud). that money withdrawn from rented assets bore no reasonable defendant’s account came from relationship to the victim’s loss). United States v. Barnes, 125 F.3d employer). 1287 (9th Cir. 1997) (Services that United States v. Comer, 93 F.3d were satisfactorily performed should United States v. Austin, 239 F.3d 1 1271 (6th Cir. 1996) (Acquitted theft have been subtracted from loss). (1st Cir. 2001) (Value of get-away- was not sufficiently proven to car was not part of loss from bank include in loss calculations). United States v. Monus 128 F.3d robbery). 376 (6th Cir. 1997) (Court did not United States v. Coffman, 94 F.3d adequately explain loss findings). United States v. Titchell, 261 F.3d 330 (7th Cir.), cert. denied, 520 U.S. 348 (3rd Cir. 2001) (Court must 1165 (1997) (Previous fraud using United States v. Cain, 128 F.3d make detailed analysis of potential the same worthless stock was not 1249 (8th Cir. 1997) (Sales made loss and intended loss). relevant conduct). before defendant was hired were not relevant conduct toward fraud). United States v. Olbres, 99 F.3d 28 Enhancements- (1st Cir. 1996) (Adoption of PSI was *United States v. Word, 129 F.3d General not a finding of tax loss). 1209 (11th Cir. 1997) (Fraud, before defendant joined conspiracy, was United States v. Tapia, 59 F.3d *United States v. Peterson, 101 not relevant conduct). 1137 (11th Cir.), cert. denied, 516 F.3d 375 (5th Cir.), cert. denied, 520 U.S. 953 (1995) (Using phone to U.S. 1161 (Violation of fiduciary United States v. Melton, 131 F.3d call co-defendant was not more than duty alone was not relevant 1400 (10th Cir. 1997) minimal planning). conduct). (Unforeseeable acts of fraud could not be attributed to defendant). *United States v. Miller, 77 F.3d *United States v. Kohli, 110 F.3d 71 (4th Cir. 1996) (Enhancement for 1475 (9th Cir. 1997) (There was United States v. Desantis, 134 F.3d manufacturing counterfeit notes did insufficient evidence of the quantity 760 (6th Cir. 1998) (Neither not apply to those so obviously of fraud attributed). defendant’s business failure, nor counterfeit that they are unlikely to state administrative findings, were be accepted). *United States v. Sepulveda, 115 relevant to fraud case). F.3d 882 (11th Cir. 1997) (Evidence United States v. Torres, 81 F.3d did not support the alleged volume *United States v. Cihak, 137 F.3d 900 (9th Cir. 1996) (Government of unauthorized calls). 252 (5th Cir.), cert. denied, 525 U.S. must prove sentencing 847 (1998) (Fraud of co- enhancements by a preponderance *United States v. Rutgard, 116 conspirators must be foreseeable to of evidence). F.3d 1270 (9th Cir. 1997) (That defendant to be relevant conduct). defendant’s business was United States v. Kraig, 99 F.3d “permeated with fraud” was too United States v. Tatum, 138 F.3d 1361 (6th Cir. 1996) (Insufficient indefinite a finding). 1344 (11th Cir. 1998) (Application evidence that the defendant note governing fraudulent contract employed sophisticated means). United States v. Arnous, 122 F.3d procurement should have been 321 (6th Cir. 1997) (Food stamp applied rather than theft guideline). United States v. Brazel, 102 F.3d fraud should have been valued by 1120 (11th Cir.), cert. denied, 522 lost profits, not the face value of the *United States v. Phath, 144 F.3d U.S. 822 (1997) (Sentence could not stamps). 146 (1st Cir. 1998) (Depositing be enhanced with convictions that counterfeit checks and withdrawing were not final). United States v. Sublett, 124 F.3d money did not require more than 693 (5th Cir. 1997) (Loss during minimal planning). United States v. Eshkol, 108 F.3d contract fraud did not include 1025 (9th Cir.), cert. denied, 522 legitimate services actually United States v. Sapoznik, 161 P 43 Reversible Error 2002 The BACK BENCHER

U.S. 841 (1997) (Only existing F.3d 892 (5th Cir. 1997) (Improper enhancement for use of counterfeit bills could be counted (Enhancement for drug sale near private plane in drug case). toward upward adjustment). school only applied when it was charged by indictment). United States v. Takahashi, 205 F.3d 1161 (9th Cir. 2000) United States v. Hudson, 129 F.3d (Enhancement for drug crime in *United States v. DeMartino, 112 1994 (8th Cir. 1997) (Firearm protected area must be pleaded and F.3d 75 (2d Cir. 1997) (Court was enhancement was not proven). proven before a finding of guilt). without authority to increase a sentence that was not mere clerical United States v. Sanchez, 138 F.3d United States v. Smith, 210 F.3d error). 1410 (11th Cir. 1998) (Court must 760 (7th Cir. 2000) (Tossing drugs hold a hearing if defendant out window during chase was not *United States v. Shadduck, 112 challenges validity of a prior drug reckless endangerment). F.3d 523 (1st Cir. 1997) (No proof conviction used for statutory that a defendant violated a judicial enhancement). United States v. Szakacs, 212 F.3d order during a course of fraud). 344 (7th Cir. 2000) (Possession of United States v. Saavedra, 148 firearm had no connection to drugs). *United States v. Calozza, 125 F.3d 1311 (11th Cir. 1998) F.3d 687 (9th Cir. 1997) (Identical (Defendant could not receive Watterson v. United States, 219 enhancements for separately increase for selling drugs near F.3d 232 (3rd Cir. 2000) (No grouped counts was double- school unless so charged). enhancement for drugs in proximity counting). to school unless charged under that United States v. Hass, 150 F.3d statute). *United States v. Barakat, 130 443 (5th Cir. 1998) (Non-final state F.3d 1448 (11th Cir. 1997) conviction could not be basis for United States v. Cooper, 274 F.3d (Enhancement for sophisticated statutory enhancement of drug 230 (5th Cir. 2001) (Firearm neither means could not be based on sentence). found near drugs nor used in acquitted conduct). connection to drug activities). United States v. Schmalzried, 152 F.3d 354 (5th Cir. 1998) Enhancements- (Government failed to connect Enhancements- Drug Crimes firearm to drug offense). Violence

United States v. Ruiz-Castro, 92 United States v. Rettelle, 165 F.3d United States v. Murray, 82 F.3d F.3d 1519 (10th Cir. 1996) (Court 489 (6th Cir. 1999) (Mandatory 361 (10th Cir. 1996) (In assault failed to inquire whether the minimum controlled by drugs case, an enhancement for defendant had notice of the associated with conviction only). discharging a firearm did not apply government’s intent to seek an to shots fired after the assault). enhanced sentence with a prior drug United States v. Hands, 184 F.3d conviction). 1322 (11th Cir. 1999) (Domestic United States v. Rivera, 83 F.3d abuse was irrelevant to drug 542 (1st Cir. 1996) (Insufficient *United States v. Ekinci, 101 F.3d conspiracy). evidence that a rape involved 838 (2d Cir. 1996) (Unlawful serious bodily injury). dispensing of drugs by a doctor was United States v. Crawford, 185 not subject to an enhancement for F.3d 1024 (9th Cir. 1999) *United States v. Alexander, 88 proximity to a school). (Proximity to school must be F.3d 427 (6th Cir. 1996) (Note charged in order for enhancement to indicating the presence of a bomb, United States v. Mikell, 102 F.3d apply). and a request to cooperate to prevent 470 (11th Cir.), cert. denied, 520 harm, during a bank robbery, was U.S. 1181 (1997) (Defendant who United States v. Garrett, 189 F.3d not an express threat of death). was subject to an enhanced sentence 610 (7th Cir. 1999) (Guilty plea under 21 U.S.C. §841, could colloquy was not admission to United States v. Shenberg, 89 F.3d collaterally attack a prior crack, as opposed to powder, for 1461 (11th Cir.), cert. denied, 519 conviction). sentencing purposes). U.S. 1117 (1997) (More than minimal planning increase did not United States v. Chandler, 125 *United States v. Chastain, 198 apply to plan to assault a fictitious F.3d 1338 (11th Cir. 1999) P 44 Reversible Error 2002 The BACK BENCHER informant). in pocket and warning to cooperate proven as element of offense). or “no one will get hurt” was not United States v. Tavares, 93 F.3d express threat of death). *United States v. Rebmann, 226 F. 10 (1st Cir.), cert. denied, 519 U.S. 3d 521 (6th Cir. 2000) (Elements of 955 (1996) (Finding that an United States v. Kushmaul, 147 death or serious bodily injury must aggravated assault occurred was F.3d 498 (6th Cir. 1998) (Holding be proven beyond a reasonable inconsistent with a finding of no baseball bat was not “otherwise doubt in drug case). serious bodily injury). used”). United States v. Franks, 230 F.3d *United States v. Triplett, 104 *United States v. Thomas, 155 811 (5th Cir. 2000) (Cannot receive F.3d 1074 (8th Cir.), cert. denied, F.3d 833 (7th Cir. 1999) (Intent to enhancement for “express threat of 520 U.S. 1236 (1997) (Threat of carry out threat could not be proven death” as well as conviction for use death adjustment was double by criminal history). of a firearm during a crime of counting in case for using firearm violence). during crime of violence). United States v. Smith, 156 F.3d 1046 (10th Cir. 1999) (Insufficient United States v. Wright, 248 F.3d *United States v. Reyes-Oseguera, evidence of actual or threatened 765 (8th Cir. 2001) (No evidence of 106 F.3d 1481 (9th Cir. 1997) force or violence). serious bodily injury). (Flight on foot was insufficient for reckless endangerment United States v. Richardson, 161 United States v. Campbell, 259 enhancement). F.3d 728 (D.C. Cir. 1999) (Burglary F.3d 293 (4th Cir. 2001) (Enhanced was not shown to be crime of statutory maximum for use of United States v. Dodson, 109 F.3d violence). deadly or dangerous weapon 486 (8th Cir. 1997) (Lacked proof required pleading and proof beyond of bodily injury for enhancement). *United States v. Anglin, 169 F.3d reasonable doubt). 154 (2d Cir. 1999) (Bank tellers United States v. Sawyer, 115 F.3d were not physically restrained). United States v. Atwater, 272 F.3d 857 (11th Cir. 1997) (Enhancement 511 (7th Cir. 2001) (Five-level for bodily injury was not supported United States v. Leahy, 169 F.3d enhancement cannot be based on by alleged psychological injury). 433 (7th Cir. 1999) (Departure of 10 assumption that all bank robbers use levels for analogous terrorism firearms). United States v. Drapeau, 121 enhancement was unreasonable). F.3d 344 (8th Cir. 1997) (Enhancement for assaulting a United States v. Zendeli, 180 F.3d Enhancements- government official applicable only 879 (7th Cir. 1999) (Enhancement Immigration when official is victim of the for injury did not apply to co- offense). defendant’s injury). *United States v. Fuentes- Barahona, 111 F.3d 651 (9th Cir. United States v. Sovie, 122 F.3d United States v. Charles, 209 F.3d 1997) (Conviction occurring before 122 (2d Cir. 1997) (Evidence to 1088 (8th Cir. 2000) (Two effective date of guideline support enhancement for intending convictions, sentenced amendment could not be considered to carry out threat was insufficient). simultaneously, should have only as aggravated felony). counted as one prior crime of United States v. Bourne, 130 F.3d violence). United States v. Herrerra- 1444 (11th Cir. 1997) (Applying Solorzano, 114 F.3d 48 (5th Cir. both brandishing weapon and threat United States v. Brock, 211 F.3d 1997) (Prior probated felony was of death enhancements was double 88 (4th Cir. 2000) (Enhancement for not an aggravated felony in an counting). multiple threats was incompatible illegal reentry case). with base level for no threats). *United States v. Hayes, 135 F.3d United States v. Reyna-Espinosa, 435 (6th Cir. 1998) (Enhancements 117 F.3d 826 (5th Cir. 1997) (Prior for reckless endangerment, and conviction for being an alien in assault, during flight, were double Castillo v. United States, 530 U.S. unlawful possession of a firearm counting). 120 (2000) (In order to get was not an aggravated felony). aggravated sentence for carrying a United States v. Tolen, 143 F.3d firearm during crime of violence, *United States v. Viramontes- 1121 (8th Cir. 1998) (Putting hand use of a machine gun must be P 45 Reversible Error 2002 The BACK BENCHER

Alvarado, 149 F.3d 912 (9th Cir.), *United States v. Covington, 133 United States v. Martin, 215 F.3d cert. denied, 525 U.S. 976 (1998) F.3d 639 (8th Cir. 1998) (Evidence 470 (4th Cir. 2000) (Bank larceny is (Non-citizen’s priors were not did not show imprisonment within not a crime of violence). aggravated felonies). last 15 years on predicate offense used for career offender *United States v. Peterson, 233 United States v. Avilia-Ramirez, enhancement). F.3d 101 (1st Cir. 2000) 170 F.3d 277 (2d Cir. 1999) (Defendant’s prior for breaking and (Defendant’s prior aggravated United States v. Gottlieb, 140 F.3d entering did not meet definition of felony was not a listed offense at the 865 (10th Cir. 1998) (Defendant violent felony under ACCA). time of his reentry). established that no firearm or dangerous weapon was used in prior United States v. Concha, 233 F.3d United States v. Guzman-Bera, conviction defeating Three Strikes 1249 (10th Cir. 2000) (Foreign 216 F.3d 1019 (11th Cir. 2000) enhancement). convictions are not predicates under (Theft was not aggravated felony at ACCA). time of deportation and reentry). United States v. Dahler, 143 F.3d 1084 (7th Cir. 1998) (Defendant United States v. Matthews, 240 whose rights were restored was not F.3d 806 (9th Cir. 2001) (Court Career armed career criminal). lacked documentary evidence to Enhancements find prior conviction proven under *United States v. McElyea, 158 ACCA). *United States v. Talbott, 78 F.3d F.3d 1016 (9th Cir. 1999) (Crimes 1183 (7th Cir. 1996) (Under the of a single transaction may not be United States v. Brandon, 247 Armed Career Criminal Act counted separately under Armed F.3d 186 (4th Cir. 2001) (Absent an guidelines, “felon in possession” Career Criminal Act). element of intent to distribute or was not a crime of violence). manufacture, prior was not a serious *United States v. Thomas, 159 drug felony). *United States v. Sparks, 87 F.3d F.3d 296 (7th Cir.), cert. denied, 527 276 (9th Cir. 1996) (Attempted U.S. 1023 (1999) (Statutory rape Dalton v. Ashcroft, 257 F.3d 200 home invasion was not a violent without violence was not predicate (2d Cir. 2001) (Not all felony DUIs felony under the Armed Career crime under Armed Career Criminal in New York are crimes of Criminal Act). Act). violence).

*United States v. Murphy, 107 United States v. Richardson, 166 United States v. Trinidad-Aquino, F.3d 1199 (6th Cir. 1997) (Two F.3d 1360 (11th Cir. 1999) (Prior 259 F.3d 1140 (9th Cir. 2001) prior robberies were a single conviction under Armed Career (California DUI was not crime of episode under Armed Career Criminal Act must occur before violence). Criminal Act). felon in possession violation). United States v. Sparks, 265 F.3d th United States v. Bennett, 108 F.3d United States v. Wilson, 168 F.3d 825 (9 2001) (Burglary of a storage 1315 (10th Cir. 1997) (There was no 916 (6th Cir. 1999) (Burglary of a locker was not violent felony). proof that a prior burglary involved building is not a career offender a dwelling or physical force under predicate unless it involves physical career offender provisions). force, or its threat or attempt). United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001) (Prior juvenile adjudications that do not provide for *United States v. Sacko, 178 F.3d jury trial must be pled and proven United States v. Hicks, 122 F.3d 12 1 (1st Cir. 1999) (Court could not beyond a reasonable doubt). (7th Cir. 1997) (Burglary of a look at facts of prior conviction to building was not a crime of violence determine whether it was a violent Cross for career offender enhancement). felony). References United States v. Rogers, 126 F.3d *United States v. Casarez-Bravo, 655 (5th Cir. 1997) (Attempted 181 F.3d 1074 (9th Cir. 1999) (Prior United States v. Lagasse, 87 F.3d drug crime did not support career conviction not counted under 18 (1st Cir. 1996) (There was no link offender enhancement). criminal history cannot be used as between a knife-point robbery of a career offender predicate). coconspirator, and the charged drug P 46 Reversible Error 2002 The BACK BENCHER conspiracy, to justify an increase in enhancement for defrauding United States v. Trice, 245 F.3d sentence). investors). 1041 (8th Cir. 2001) (Abuse of trust adjustment did not apply to arms *United States v. Aderholt, 87 United States v. Long, 122 F.3d length business relationship). F.3d 740 (5th Cir. 1996) (Murder 1360 (11th Cir. 1997) (Abuse of guidelines were improperly applied trust enhancement did not apply to in a mail fraud conspiracy because prison employee who brought in Obstruction of murder was not an object of the contraband). Justice conspiracy). *United States v. Garrison, 133 United States v. Williams, 79 F.3d United States v. Meacham, 115 F.3d 831 (11th Cir. 1998) (Owner of 334 (2d Cir. 1996) (In order to F.3d 1488 (10th Cir. 1997) a health care provider did not justify an obstruction of justice (Transportation of a child, not occupy position of trust with enhancement, the court had to find involving prostitution or production Medicare). the defendant knowingly made a of a visual depiction, required cross false statement under oath). reference to lower base level for United States v. Burt, 134 F.3d sexual contact). 997 (10th Cir. 1998) (Deputy *United States v. Strang, 80 F.3d sheriff’s drug dealing did not merit 1214 (7th Cir. 1996) (Perjury in *United States v. Jackson, 117 abuse of trust or special skills another case did not warrant an F.3d 533 (11th Cir. 1997) (Police enhancements). obstruction of justice enhancement officer convicted of theft should not in the instant case). have been sentenced under civil United States v. Reccko, 151 F.3d rights guidelines). 29 (1st Cir. 1998) (Police United States v. Medina-Estrada, switchboard operator did not occupy 81 F.3d 981 (10th Cir. 1996) (Court United States v. Cross, 121 F.3d position of trust). th must have found all elements of 234 (6 Cir. 1997) (Torture was not perjury were proven to give relevant conduct in a drug case). *United States v. Wadena, 152 enhancement for obstruction of F.3d 831 (8th Cir.), cert. denied, 526 justice). *United States v. Sanders, 162 U.S. 1050 (1999) (Money F.3d 396 (6th Cir. 1999) (Possibility laundering, unrelated to defendant’s United States v. Hernandez, 83 that defendant could have been position, did not warrant abuse of F.3d 582 (2d Cir. 1996) (Staring at charged with state burglary did not trust). a witness and calling them “the mean firearm was used in devil,” did not justify enhancement connection with another offense). United States v. Holt, 170 F.3d 698 for intimidation). (7th Cir. 1999) (Part-time police *United States v. Mezas De Jesus, officer did not justify abuse of trust 217 F.3d 638 (9th Cir. 2000) enhancement). United States v. Sisti, 91 F.3d 305 (Kidnaping, used to enhance (2d Cir. 1996) (Obstruction of sentence, needed to be proven by justice was only proper for conduct clear and convincing evidence). United States v. Guidry, 199 F.3d related to the conviction). 1150 (10th Cir. 1999) (Defendant United States v. Shabazz, 263 F.3d must have relationship of trust with *United States v. Ruggiero, 100 603 (6th Cir. 2001) (Use base level, victim for abuse of trust to apply). F.3d 284 (2d Cir.), cert. denied, 522 not total offense level, when U.S. 1138 (1998) (Judge properly calculating accessory after the fact). United States v. Tribble, 206 F.3d refused to apply an obstruction of 634 (6th Cir. 2000) (Postal window justice enhancement). United States v. Taylor, 272 F.3d clerk did not hold position of trust). 980 (7th Cir. 2001) (Shooting must *United States v. Draves, 103 F.3d be directly related to escape to United States v. Ward, 222 F.3d 1328 (7th Cir.), cert. denied, 521 enhance sentence). 909 (11th Cir. 2000) (Bank guard U.S. 1127 (1997) (Fleeing from a did not occupy position of trust). police car was not obstruction of justice). Abuse of Trust United States v. Willard, 230 F.3d 1093 (9th Cir. 2000) (Motherhood *United States v. Jolly, 102 F.3d United States v. Harris, 104 F.3d alone is not a position of trust under 1465 (5th Cir.), cert. denied, 522 46 (2d Cir. 1996) (Corporate the guidelines). principal could not get abuse of trust U.S. 833 (1997) (Actions of P 47 Reversible Error 2002 The BACK BENCHER accessory after the fact did not obstruction of justice). 1379 (8th Cir. 1996) (Persons’ justify obstruction enhancement desire to adopt children did not when those same acts supported the United States v. Koeberlein, 161 make them vulnerable victims of an substantive offense). F.3d 946 (6th Cir. 1999) (Failure to adoption agency). appear on unrelated offense was not United States v. Zagari, 111 F.3d obstruction). *United States v. Shumway, 112 307 (2d Cir. 1997) (No finding to F.3d 1413 (10th Cir. 1997) support obstruction enhancement). United States v. Monzon- (Prehistoric skeletal remains were Valenzuela, 186 F.3d 1181 (9th Cir. not vulnerable victims). *United States v. Tackett, 113 1999) (Absent perjury finding, F.3d 603 (6th Cir.), cert. denied, 522 adjustment for obstruction did not *United States v. Robinson, 119 U.S. 1089 (1998) (Court failed to apply). F.3d 1205 (5th Cir.), cert. denied, find that government resources were 522 U.S. 1139 (1998) (Asian- wasted for obstruction United States v. Gage, 183 F.3d American merchants were not enhancement). 711 (7th Cir. 1999) (Defendant’s vulnerable victims). denial that his robbery note United States v. Sawyer, 115 F.3d mentioned a firearm did not justify United States v. Hogan, 121 F.3d 857 (11th Cir. 1997) (Sentencing obstruction adjustment). 370 (8th Cir. 1997) (Victims must increase for reckless endangerment have been targeted in order to be only applied to defendant fleeing United States v. Amsden, 213 F.3d considered vulnerable). law enforcement officer, not 1014 (8th Cir. 2000) (Defendant civilians). convicted of threatening United States v. Monostra, 125 communications did not obstruct F.3d 183 (3rd Cir. 1997) (Victim’s *United States v. Sassanelli, 118 justice by sending additional vulnerability must facilitate the F.3d 495 (6th Cir. 1997) threatening letter). crime in some manner). (Obstruction findings did not specify which statements were *United States v. Woodard, 239 United States v. McCall, 174 F.3d materially untruthful). F.3d 159 (2d Cir. 2001) (Unless 47 (2d Cir. 1999) (Vulnerable defendant left district intending to victim enhancement is not a relative *United States v. Solono-Godines, miss court, it was not obstruction). standard). 120 F.3d 957 (9th Cir.), cert. denied, 522 U.S. 1061 (1998) United States v. Pospisil, 186 F.3d (Misrepresentation by the defendant 1023 (8th Cir. 1999) (No evidence did not obstruct justice). United States v. McGiffin, 267 that defendant knew victims were F.3d 581 (7th Cir. 2001) vulnerable). United States v. Webster, 125 F.3d (Conclusions about defendant’s 1024 (7th Cir. 1997) (Finding that testimony were not specific United States v. Castaneda, 239 the defendant testified falsely lacked findings). F.3d 978 (9th Cir. 2001) (Club specificity). workers who were encouraged to United States v. Jenkins, 275 F.3d provide sexual services for fees United States v. Senn, 129 F.3d 283 (3rd Cir. 2001) (Failing to were not vulnerable victims). 886 (7th Cir. 1997) (Lying about appear at related state proceeding minor details to grand jury was not was not obstruction). obstruction). Aggravating Role United States v. Norman, 129 F.3d Vulnerable 1393 (10th Cir. 1997) (Concealing Victim United States v. Ivy, 83 F.3d 1266 drugs at scene of crime was not (10th Cir.), cert. denied, 519 U.S. obstruction). *United States v. Castellanos, 81 901 (1996) (Insufficient findings for F.3d 108 (9th Cir. 1996) (Merely a managerial role). United States v. McRae, 156 F.3d because a fraud scheme used 708 (6th Cir. 1999) (Insufficient Spanish language media, did not United States v. Lozano- findings of obstruction of justice). justify an enhancement for victims Hernandez, 89 F.3d 785 (11th Cir. particularly susceptible to fraud). 1996) (Leadership role in drug United States v. Jones, 159 F.3d conspiracy was not proven). 969 (6th Cir. 1999) (Irrelevant false *United States v. Stover, 93 F.3d testimony did not support P 48 Reversible Error 2002 The BACK BENCHER

United States v. Patasnik, 89 F.3d United States v. Bryson, 110 F.3d inherited an historically corrupt 63 (2d Cir. 1996) (Management role 575 (8th Cir. 1997) (Facts did not system, but the defendant’s lack of had to be based on managing support upward adjustment for role). understanding of the entire scheme people, not assets). justified a minimal role adjustment). United States v. Logan, 121 F.3d United States v. Wester, 90 F.3d 1172 (8th Cir. 1997) (Record did *United States v. Miranda- 592 (1st Cir. 1996) (Court failed to not support upward role Santiago, 96 F.3d 517 (1st Cir. make findings there were five or adjustment). 1996) (There was an insufficient more participants). basis to deny a minor role United States v. Makiewicz, 122 reduction). United States v. Miller, 91 F.3d F.3d 399 (7th Cir. 1997) (Defendant 1160 (8th Cir. 1996) (Lack of was not a leader for asking his *United States v. Haut, 107 F.3d evidence that the defendant father to accompany informant to 213 (3rd Cir.), cert. denied, 521 U.S. controlled others precluded a motel). 1127 (1997) (Arson defendants who leadership role). worked at direction of others were United States v. Del Toro-Aguilar, minimal participants). *United States v. Albers, 93 F.3d 138 F.3d 340 (8th Cir. 1998) 1469 (10th Cir. 1996) (Leadership (Occasionally fronting drugs to *United States v. Snoddy, 139 role could not be based solely on coconspirators did not justify F.3d 1224 (8th Cir. 1998) (Sole defendant’s importance to the upward role adjustment). charged defendant may receive success of the conspiracy). minor role when justified by *United States v. Alred, 144 F.3d relevant conduct). *United States v. Delpit, 94 F.3d 1405 (11th Cir. 1998) (Defendant 1134 (8th Cir. 1996) (Murder-for- was not an organizer). United States v. Neils, 156 F.3d ire scheme had less than five 382 (2d Cir. 1999) (Defendant who participants). United States v. Lopez-Sandoval, merely steered buyers was minor 146 F.3d 712 (9th Cir. 1998) participant). (Defendant was not an organizer).

United States v. Avila, 95 F.3d 887 *United States v. Glinton, 154 Acceptance of (9th Cir. 1996) (Defendant who was F.3d 1245 (11th Cir.), cert. denied, Responsibility the sole contact between a buyer and 119 S.Ct. 1281 (No managerial role a seller was not an organizer). for defendant who did not supervise United States v. Fells, 78 F.3d 168 or control others). (5th Cir.), cert. denied, 519 U.S. 847 United States v. Jobe, 101 F.3d (1996) (Defendant making a 1046 (5th Cir.), cert. denied, 522 United States v. Walker, 160 F.3d statutory challenge, could still U.S. 823 (1997) (Defendant’s 1078 (6th Cir.), cert. denied, 526 qualify for acceptance of position as bank director did not U.S. 1056 (1999) (Insufficient responsibility). justify managerial role when he did evidence of organizer role). not manage or supervise others). United States v. Patino-Cardenas, United States v. Graham, 162 F.3d 85 F.3d 1133 (5th Cir. 1996) (No United States v. DeGovanni, 104 1180 (D.C. Cir. 1999) basis to deny credit when the F.3d 43 (3rd Cir. 1997) (Corrupt (Conclusionary statement that defendant did not falsely deny police sergeant was not a supervisor defendant was lieutenant did not relevant conduct). merely because of his rank). justify role adjustment). United States v. Garrett, 90 F.3d United States v. Eidson, 108 F.3d United States v. Tank, 200 F.3d 210 (7th Cir. 1996) (Defendant could 1336 (11th Cir.), cert. denied, 118 627 (9th Cir. 2000) (Insufficient not be denied acceptance when he S.Ct. 248 (1997) (Clean Water Act evidence of defendant’s leadership filed an uncounseled, pro se motion violation lacked five participants for role). to withdraw plea after his attorney role adjustment). died). Mitigating Role United States v. Gort-Didonato, United States v. Flores, 93 F.3d 109 F.3d 318 (6th Cir. 1997) (To 587 (9th Cir. 1996) (Defendant impose an upward role adjustment, United States v. Moeller, 80 F.3d 1053 (5th Cir. 1996) (No leadership should have received credit for his the defendant must have supervised written statement). at least one person). role for a government official who P 49 Reversible Error 2002 The BACK BENCHER

*United States v. Atlas, 94 F.3d after trial, defendant could receive valve adjustment applied regardless 447 (8th Cir.), cert. denied, 520 U.S. full credit for acceptance when he of mandatory minimum). 1130 (1997) (Defendant who timely confessed fully and immediately accepted responsibility must be upon arrest). *United States v. Clark, 110 F.3d given the additional one-level 15 (6th Cir. 1997) (Safety valve downward adjustment). United States v. Ochoa-Gaytan, applied to cases that were on appeal 265 F.3d 837 (9th Cir. 2001) at effective date). United States v. Ruggiero, 100 (Defendant could get acceptance F.3d 284 (2d Cir. 1996) (Single even after trial). United States v. Mertilus, 111 F.3d false denial did not bar credit for 870 (11th Cir. 1997) (Safety valve acceptance of responsibility). Safety Valve applied to a telephone count). United States v. McPhee, 108 F.3d *United States v. Mihm, 134 F.3d 287 (11th Cir. 1997) (Defendant *United States v. Shrestha, 86 1353 (8th Cir. 1998) (Court failed to who qualified should not have been F.3d 935 (9th Cir. 1996) (Eligibility consider safety valve at given less than the full three-point for the safety valve did not depend resentencing). reduction for timely accepting on acceptance of responsibility). responsibility). United States v. Carpenter, 142 United States v. Flanagan, 87 F.3d F.3d 333 (6th Cir. 1998) (Refusal to 121 (5th Cir. 1996) (On remand, the testify did not bar safety valve). *United States v. Guerrero- sentencing court could withdraw a leadership role so the defendant Cortez, 110 F.3d 647 (8th Cir.), United States v. Gama-Bastidas, could qualify for safety valve). cert. denied, 522 U.S. 1017 (1998) 142 F.3d 1233 (10th Cir. 1998) (Defendant’s pretrial statements of (Court failed to make findings acceptance justified reduction *United States v. Real-Hernandez, regarding applicability of safety though case was tried). 90 F.3d 356 (9th Cir. 1996) (To be valve). eligible for safety valve, a defendant did not need to give information to United States v. Marroquin, 136 *United States v. Kang, 143 F.3d a specific agent). F.3d 220 (1st Cir. 1998) (Creation 379 (8th Cir. 1998) (Defendant could of a lab report was not the type of not be denied safety valve because trial preparation to deny extra point United States v. Beltran-Ortiz, 91 government claimed he was off for accepting responsibility). F.3d 665 (4th Cir. 1996) (Failure to untruthful absent supporting debrief the defendant, thus evidence). preventing him from benefitting United States v. Fisher, 137 F.3d from the safety valve, violated the 1158 (9th Cir. 1998) (Despite not United States v. Clavijo, 165 F.3d plea agreement). guilty plea, admission in open court 1341 (11th Cir. 1999) (Unforeseen could be acceptance). possession of firearm by United States v. Miranda- coconspirator does not bar safety *United States v. McKittrick, 142 Santiago, 96 F.3d 517 (1st Cir. valve relief). F.3d 1170 (9th Cir.), cert. denied, 1996) (Government had to rebut the 525 U.S. 1072 (1998) (Defendant defendant’s version in order to deny United States v. Ortiz-Santiago, who did not contest facts at trial safety valve). 211 F.3d 146 (1st Cir. 2000) (Plea may be eligible for acceptance). agreement prohibiting further United States v. Sherpa, 97 F.3d adjustments did not preclude safety United States v. Ellis, 168 F.3d 558 1239 (9th Cir.), amended, 110 F.3d valve). (1st Cir. 1999) (Defendant who went 656 (1997) (Even a defendant who to trial was still potentially eligible claimed innocence was eligible if he United States v. Lopez, 264 F.3d for timely acceptance of met requirements). 527 (5th Cir. 2001) (It does not responsibility). matter in which order the court United States v. Wilson, 105 F.3d applies the guidelines). United States v. Rice, 184 F.3d 740 219 (5th Cir.), cert. denied, 522 U.S. (8th Cir. 1999) (Defendant was 847 (1997) (Co-conspirator’s use of entitled to full three-level reduction a firearm did not bar application of Criminal History for acceptance). the safety valve). *United States v. Spell, 44 F.3d th United States v. Corona-Garcia, United States v. Osei, 107 F.3d 101 936 (11 Cir. 1995) (Judgement was 210 F.3d 973 (9th Cir. 2000) (Even (2d Cir. 1997) (Two-level safety the only conclusive proof of prior P 50 Reversible Error 2002 The BACK BENCHER convictions). warrant did not determine nature of *United States v. Sherwood, 98 prior conviction). F.3d 402 (9th Cir. 1996) (Just United States v. Douglas, 81 F.3d because victims were almost 324 (2d Cir.), cert. denied, 517 U.S. United States v. Torres, 182 F.2d vulnerable, did not justify an 1251 (1996) (Juvenile sentence, 1156 (10th Cir. 1999) (Prior upward departure). more than five years old, was convictions that are relevant conduct incorrectly applied). may not be counted toward criminal United States v. LeCompte, 99 history). F.3d 274 (8th Cir. 1996) United States v. Cox, 83 F.3d 336 (Justification was based on (10th Cir. 1996) (Proper to attack a United States v. Thomas, 211 F.3d guideline amendment after offense guidelines sentence when prior 316 (6th Cir. 2000) (Two prior rapes occurred). convictions were later successfully were a single transaction). attacked). *United States v. Valentine, 100 United States v. Arnold, 213 F.3d F.3d 1209 (6th Cir. 1996) (The *United States v. Parks, 89 F.3d 894 (5th Cir. 2000) (Sentence of difference between seven and five 570 (9th Cir. 1996) (No criminal less than a year and a day must be offenses did not justify departure for history points could be attributed to imposed within ten years of offense multiple counts). a defendant when indigence to count toward criminal history). prevented payment of fines). United States v. Mangone, 105 United States v. Stuckey, 220 F.3d F.3d 29 (1st Cir.), cert. denied, 510 United States v. Flores, 93 F.3d 976 (8th Cir. 2000) (Military prior U.S. 1258 (1997) (Failure to give 587 (9th Cir. 1996) (Court was not serious drug offense). notice of upward departure was erroneously twice counted a single plain error). probation revocation to increase two United States v. Morales, 239 F.3d prior convictions). 113 (2d Cir. 2001) (No criminal *United States v. Otis, 107 F.3d history point for 2nd degree 487 (7th Cir. 1997) (Failure to give United States v. Ortega, 94 F.3d harassment). notice of an upward departure was 764 (2d Cir. 1996) (Uncounseled plain error). misdemeanor was improperly counted). Upward United States v. Arce, 118 F.3d Departures 335 (5th Cir. 1997) (Manufacturing United States v. Easterly, 95 F.3d firearms was not a basis for upward 535 (7th Cir. 1996) (Fish and game United States v. Thomas, 62 F.3d departure). violation should not have been 1332 (11th Cir.), cert. denied, 516 counted). U.S. 1166 (1996) (Consequential United States v. White, 118 F.3d damages did not justify an upward 739 (11th Cir. 1997) (Lenient *United States v. Gilcrist, 106 F.3d departure unless it was substantially guideline range was not a ground for 297 (9th Cir. 1997) (Sentence, upon in excess of typical fraud case). upward departure). which parole began over 15 years ago, could not be counted toward *United States v. Henderson, 75 *United States v. DePace, 120 F.3d criminal history). F.3d 614 (11th Cir. 1996) (Upward 233 (11th Cir.), cert. denied, 523 departure for multiple weapons in a U.S. 1153 (1998) (Upward United States v. Huskey, 137 F.3d drug case was improper). departure was without notice). 283 (5th Cir. 1998) (Prior convictions in same information United States v. Blackwell, 81 F.3d United States v. Johnson, 121 F.3d were related cases for counting 945 (10th Cir. 1996) (Court did not 1141 (8th Cir. 1997) (Defendant did criminal history). have jurisdiction to increase a not get notice of upward departure). sentence after judgement was final). United States v. Walker, 142 F.3d United States v. Stein, 127 F.3d th 103 (2d Cir.), cert. denied, 525 U.S. United States v. Harrington, 82 777 (9 Cir. 1997) (Upward 896 (1998) (Prior convictions for F.3d 83 (5th Cir. 1996) (Court departure based on more than offenses that were calculated into should not have upwardly departed minimal planning and multiple offense level should not have for a defendant’s status as an victims was unwarranted). received criminal history points). attorney without first considering application of abuse of trust). United States v. Corrigan, 128 United States v. Hernandez, 145 F.3d 330 (6th Cir. 1997) (Neither, F.3d 1433 (11th Cir. 1998) (Arrest number of victims, number of P 51 Reversible Error 2002 The BACK BENCHER schemes, nor amount of loss, method of analogy, extrapolation, or Koon). supported upward departure). reference to the guidelines). *United States v. Jaroszenko, 92 United States v. Candelario- *United States v. Jacobs, 167 F.3d F.3d 486 (7th Cir. 1996) (Remorse Cajero, 134 F.3d 1246 (5th Cir. 792 (3rd Cir. 1999) (Court did not could be considered as a ground for 1998) (Absent an upward departure, adequately explain upward downward departure). grouped counts cannot receive departure for psychological injury). consecutive sentences). United States v. Sanders, 97 F.3d 856 (6th Cir. 1996) (Downward United States v. Terry, 142 F.3d Downward departure was available for an 702 (4th Cir. 1998) (Extent of Departures Armed Career Criminal). upward departure was not supported by findings). United States v. Rodriguez, 64 United States v. Olbres, 99 F.3d 28 F.3d 638 (11th Cir. 1995) (1st Cir. 1996) (Court could grant *United States v. Hinojosa- (Downward departure was allowed departure for effect on innocent Gonzales, 142 F.3d 1122 (9th Cir.), to give credit for acceptance of employees of the defendant). cert. denied, 525 U.S. 1033 (1999) responsibility on consecutive (Defendant did not get adequate sentences). United States v. Etherton, 101 notice of upward departure). F.3d 80 (9th Cir. 1996) (Court had Koon v. United States, 518 U.S. 81 authority to reduce the sentence *United States v. G.L., 143 F.3d (1996) (A district court could depart after a revocation of supervised 1249 (9th Cir. 1998) (Lenient theft from the guidelines if (1) the reason release when the guidelines were guidelines did not justify upward was not specifically prohibited by later amended to provide for a lower departure). the guidelines; (2) the reason was range). discouraged by the guidelines but *United States v. Almaguer, 146 exceptional circumstances apply; or *United States v. Williams, 103 F.3d 474 (7th Cir. 1998) (Use of (3) the reason was neither prohibited F.3d 57 (8th Cir. 1996) (Court could firearm was included in guideline nor discouraged, and the reason was reduce a sentence for a retroactive and did not justify upward not previously addressed by the amendment even after a reduction departure). applicable guideline provisions in for substantial assistance). that case). United States v. Nagra, 147 F.3d United States v. Lopez, 106 F.3d th 875 (9th Cir. 1998) (Upward United States v. Conway, 81 F.3d 309 (9 Cir. 1997) (Prosecutors’ departure based upon factor 15 (1st Cir. 1996) (Court could not violation of ethical rule in meeting considered by guidelines was refuse a downward departure based with an indicted defendant justified double counting). upon information received as part of a downward departure). a cooperation agreement). *United States v. Van Metre, 150 *United States v. Brock, 108 F.3d th F.3d 339 (4th Cir. 1998) United States v. Graham, 83 F.3d 31 (4 Cir. 1997) (Rehabilitation (Commentary Note on grouping did 1466 (10th Cir.), cert. denied, 519 was a proper basis for downward not provide basis for upward U.S. 1132 (1997) (Extreme departure). departure). vulnerability to abuse in prison could justify a downward United States v. Paton, 110 F.3d th United States v. Johnson, 152 F.3d departure). 562 (8 Cir. 1997) (Government’s 553 (6th Cir. 1998) (Arson was breach of plea agreement was a within heartland of cases and did not *United States v. Walters, 87 F.3d proper ground for downward justify upward departure). 663 (5th Cir.), cert. denied, 519 U.S. departure). 1000 (1996) (Downward departure United States v. Lawrence, 161 was approved for a defendant who United States v. Wallace, 114 F.3d F.3d 250 (4th Cir. 1999) (Must did not personally benefit from 652 (7th Cir. 1997) (Court should specify findings to depart up for money laundering). not have limited a downward under-representation of criminal departure just because the defendant history). *United States v. Cubillos, 91 F.3d already received credit for accepting 1342 (9th Cir. 1996) (Basis for responsibility). United States v. Whiteskunk, 162 downward departure could no F.3d 1244 (10th Cir. 1999) (Upward longer be categorically rejected after *United States v. McBroom, 124 departure must include some F.3d 533 (3rd Cir. 1997) (Reduced P 52 Reversible Error 2002 The BACK BENCHER mental capacity was a basis for justify downward departure). United States v. Busekros, 264 downward departure in a child porn F.3d 1158 (10th Cir. 2001) case). (Departure for substantial assistance United States v. Stockheimer, 157 allowed defendant to retain federal F.3d 1082 (2nd Cir.), cert. denied, benefits). *United States v. Rounsavall, 128 525 U.S. 1184 (1999) (Refusing to F.3d 665 (8th Cir. 1997) (Defendant consider downward departure based United States v. Rodriguez- was entitled to an evidentiary on economic reality of intended loss Montelongo, 263 F.3d 429 (5th Cir. hearing to determine if the was plain error). 2001) (Cultural assimilation is basis government’s failure to move for a for departure). reduced sentence was irrational, in United States v. Fagan, 162 F.3d bad faith, or unconstitutionally 1280 (10th Cir. 1999) (Court could motivated). depart downward for exceptional Fines / remorse). Restitution United States v. Clark, 128 F.3d 122 (2d Cir. 1997) (Downward *United States v. Jones, 160 F.3d *United States v. Remillong, 55 departure for a lesser harm was 473 (8 th Cir. 1999) (Government F.3d 572 (11th Cir. 1995) available in a felon in possession actions prejudicing defendant can (Restitution order reversed for a case). justify downward departure). defendant with no ability to pay and no future prospects). United States v. O’Hagan, 139 *United States v. Martinez- F.3d 641 (8th Cir. 1998) (Court Ramos, 184 F.3d 1055 (9th Cir. United States v. Ledesma, 60 F.3d could depart downward to credit 1999) (Court had authority to depart 750 (11th Cir. 1995) (Restitution time served on an expired state downward to remedy sentencing order could only be applied to sentence for the same conduct). disparity). charges of conviction).

United States v. Kaye, 140 F.3d 86 *United States v. Coleman, 188 *United States v. Mullens, 65 F.3d (2d Cir. 1998) (Court can depart F.3d 354 (6th Cir. 1999) (Court 1560 (11th Cir.), cert. denied, 517 downward based on assistance to must look at case as a whole to see U.S. 1112 (1996) (Record lacked state law enforcement without if factors take case out of findings to support restitution when motion by government). “heartland” for downward amount was specific offense departure). characteristic). United States v. Campo, 140 F.3d 415 (2nd Cir. 1998) (Judge could United States v. Rodriguez-Lopez, United States v. Maurello, 76 F.3d not refuse to depart solely because 198 F.3d 773 (9th Cir. 1999) 1304 (3rd Cir. 1996) (The court had he did not like USA’s policy about (Government need not consent to to make findings to determine actual not recommending a specific departure for stipulated deportation). loss to victim). sentence). United States v. Wells, 211 F.3d *United States v. Reed, 80 F.3d United States v. Whitecotton, 142 988 (6th Cir. 2000) (Plea agreement 1419 (9th Cir.), cert. denied, 519 F.3d 1194 (9th Cir. 1998) (Court required only full cooperation, not U.S. 882 (1996) (Restitution order could depart based on entrapment substantial assistance). had to be limited to conduct of and diminished capacity). conviction). United States v. Ventrilla, 233 United States v. Faulks, 143 F.3d F.3d 166 (2d Cir. 2000) (Judge was United States v. Blake, 81 F.3d 498 133 (3rd Cir. 1998) (Agreement not mistaken about authority to depart (4th Cir. 1996) (Restitution could to contest forfeitures may be basis for diminished mental capacity). only be based on the loss directly for downward departure). related to the offense, and the court United States v. Causor-Serrato, had to make findings that the United States v. Crouse, 145 F.3d 234 F.3d 384 (8th Cir. 2000) (Court defendant can pay that amount 786 (6th Cir. 1998) (Civic could depart for defendant’s without undue hardship). involvement justified downward agreement to be deported). departure). United States v. Walter, 256 F.3d *United States v. Whitaker, 152 891 (9th Cir. 2001) (Defendant was *United States v. Giwah, 84 F.3d F.3d 1238 (10th Cir. 1998) (Post- eligible for departure for childhood 109 (2d Cir. 1996) (Restitution offense drug rehabilitation can abuse). P 53 Reversible Error 2002 The BACK BENCHER order failed to indicate that all conduct). 1256 (11th Cir. 1998) (Court must statutory factors were considered). consider defendant’s ability to pay United States v. Eidson, 108 F.3d restitution). United States v. Sharma, 85 F.3d 1336 (11th Cir.), cert. denied, 522 363 (8th Cir. 1996) (No reason was U.S. 899 (1997) (Facts did not *United States v. Dunigan, 163 given for an upward departure on a support restitution order). F.3d 979 (6th Cir. 1999) (Court did fine). not adequately consider defendant’s United States v. Hodges, 110 F.3d ability to pay restitution). United States v. Hines, 88 F.3d 661 250 (5th Cir. 1997) (Fine was not (8th Cir. 1996) (In assessing fine and justified for a defendant with a United States v. Brierton, 165 F.3d restitution, the court should have negative net worth). 1133 (7th Cir. 1999) (Restitution considered the defendant’s familial can only be based on loss from obligations of his recent marriage). United States v. Khawaja, 118 charged offense). F.3d 1454 (11th Cir. 1997) *United States v. Upton, 91 F.3d (Government was not a victim for United States v. Merric, 166 F.3d 677 (5th Cir.), cert. denied, 520 U.S. purposes of awarding restitution). 406 (1st Cir. 1999) (Court could not 1228 (1997) (No restitution was delegate scheduling of installment available to victims not named in *United States v. Gottesman, 122 payments to probation officer’s the indictment). F.3d 150 (11th Cir. 1997) discretion). (Defendant’s promise to pay back- *United States v. Sablan, 92 F.3d axes did not authorize court-ordered United States v. Johnston, 199 865 (9th Cir. 1996) (Consequential restitution). F.3d 1015 (9th Cir. 1999) (Forfeited expenses could not be included in a money should have been subtracted restitution order). *United States v. Baggett, 125 from restitution). F.3d 1319 (9th Cir. 1997) United States v. Jaroszenko, 92 (Restitution must be based upon a United States v. Prather, 205 F.3d F.3d 486 (7th Cir. 1996) (The court specific statute). 1265 (11th Cir. 2000) (Amount of failed to fully consider the special assessment governed by date defendant’s ability to pay United States v. Mayer, 130 F.3d of offense). restitution). 338 (8th Cir. 1997) (Restitution should not have been higher than United States v. Beckett, 208 F.3d United States v. Santos, 93 F.3d the loss). 140 (3rd Cir. 2000) (Restitution 761 (11th Cir.), cert. denied, 520 should not have been ordered U.S. 1170 (1997) (Defendant could United States v. Drinkwine, 133 without determining ability to pay). not be ordered to pay restitution for F.3d 203 (2d Cir. 1998) (Insufficient money taken in a robbery for which evidence that defendant could pay a United States v. Norris, 217 F.3d he was not convicted). fine). 262 (5th Cir. 2000) (Restitution was not for actual loss). *United States v. Monem, 104 United States v. Menza, 137 F.3d F.3d 905 (7th Cir. 1997) (Court did 533 (7th Cir. 1998) (Defendant did United States v. Griffin, 215 F.3d not make sufficient factual findings not have to pay restitution for 866 (8th Cir. 2000) (Loss from food to justify the fine of a defendant amount greater than losses). stamp fraud was limited to actual who claimed inability to pay). benefits diverted). United States v. Riley, 143 F.3d *United States v. McMillan, 106 1289 (9th Cir. 1998) (Defendant United States v. Andra, 218 F.3d F.3d 322 (10th Cir. 1997) (Court could not be ordered to pay 1106 (9th Cir. 2000) (Tax loss could reduce a fine for substantial restitution on loan unrelated to should not have included penalties assistance). fraud). and interest).

United States v. Messner, 107 F.3d United States v. Rodrigues, 229 1448 (10th Cir. 1997) (Restitution F.3d 842 (9th Cir. 2000) (No had to be based on actual loss). United States v. Stoddard, 150 restitution for speculative loss). F.3d 1140 (9th Cir. 1998) United States v. McArthur, 108 (Restitution could not exceed actual United States v. Young, 272 F.3d F.3d 1350 (11th Cir. 1997) (A loss). 1052 (8th Cir. 2001) (Report’s defendant could not be ordered to failure to document loss excused pay restitution for acquitted *United States v. Siegel, 153 F.3d defendant’s failure to object to P 54 Reversible Error 2002 The BACK BENCHER restitution amount). sentencing preserved it for appeal). appeal, of suppression, was dismissed when there was no United States v. Stover, 93 F.3d certification that appeal was not Appeals 1379 (8th Cir. 1996) (Appellate filed in bad faith). court refused to use a substantive United States v. Byerley, 46 F.3d th change to the guidelines to uphold a 694 (7 Cir. 1996) (Government sentence that was improper at the Resentencing waived argument by inconsistent time imposed). position at sentencing). *United States v. Moore, 131 F.3d United States v. Alexander, 106 595 (6th Cir. 1997) (Limited remand United States v. Caraballo-Cruz, F.3d 874 (9th Cir. 1997) (Rule of did not allow a new enhancement at 52 F.3d 390 (1st Cir. 1995) the case barred reconsideration of a resentencing). (Government defaulted on double suppression order after remand). jeopardy claim). *United States v. Wilson, 131 F.3d United States v. Zink, 107 F.3d 1250 (7th Cir. 1997) (Government *United States v. Carillo-Bernal, 716 (9th Cir. 1997) (Waiver of waived the issue of urging 58 F.3d 1490 (10th Cir. 1995) (The appeal of sentence did not cover a additional relevant conduct at government failed to timely file restitution order). resentencing). certification for appeal). United States v. Saldana, 109 F.3d United States v. Rapal, 146 F.3d United States v. Petty, 80 F.3d 661 (9th Cir. 1998) (Higher th 100 (1st Cir. 1997) ( Defendant had 1384 (9 Cir. 1996) (Waiver of a jurisdictional basis to appeal a resentence presumed appeal of an unanticipated error was denial of a downward departure). vindictiveness). not enforceable). *Sanders v. United States, 113 *United States v. Ticchiarelli, 171 *United States v. Ready, 82 F.3d F.3d 184 (11th Cir. 1997) (Pro se F.3d 24 (1st Cir.), cert. denied, 528 551 (2d Cir. 1996) (Waiver of petitioner’s out-of-time appeal was U.S. 850 (1999) (Sentence imposed, appeal did not cover issue of treated as a motion for extension of between original sentence and restitution and was not waived). time). remand, could not be counted at resentencing). *United States v. Thompson, 82 United States v. Arteaga, 117 F.3d F.3d 700 (6th Cir. 1996) 388 (9th Cir.), cert. denied, 522 U.S. United States v. Jackson, 181 F.3d (Technicalities that did not prejudice 988 (1997) (Evidence that was 740 (6th Cir. 1999) (Resentencing the government were not cause to precluded at trial could not support did not overcome presumption of deny a motion to extend time to file convictions on appeal). vindictiveness). an appeal). *In Re Grand Jury Subpoena, 123 *United States v. Faulks, 201 F.3d *United States v. Agee, 83 F.3d F.3d 695 (1st Cir. 1997) (Third 208 (3rd Cir. 2000) (Defendant 882 (7th Cir. 1996) (Waiver of party may appeal the denial of a could not be resentenced in appeal, not discussed at the plea motion to quash without risking a absentia). colloquy, was invalid). contempt citation).

*United States v. Webster, 84 F.3d *United States v. Martinez-Rios, 1056 (11th Cir. 1996) (When a law 143 F.3d 662 (2d Cir. 1998) (Vague was clarified between trial and appeal waiver was void). appeal, a point of appeal was Supervised preserved as plain error). United States v. Montez-Gavira, 163 F.3d 697 (2d Cir. 1999) Release / *United States v. Allison, 86 F.3d (Deportation did not moot appeal). 940 (9th Cir. 1996) (Remand was Probation proper even though the district court United States v. Gonzalez, 259 United States v. Doe, 79 F.3d 1309 could still impose the same F.3d 355 (5th Cir. 2001) (Apprendi sentence). (2d Cir. 1996) (Occupational error was preserved even when restriction was not supported by the defendant waived appeal). *United States v. Perkins, 89 F.3d court’s findings). 303 (6th Cir. 1996) (Orally raising United States v. Smith, 263 F.3d United States v. Edgin, 92 F.3d an issue of double-counting at 571 (6th Cir. 2001) (Government P 55 Reversible Error 2002 The BACK BENCHER

1044 (10th Cir.), cert. denied, 519 United States v. Biro, 143 F.3d for more than 24 hours as condition U.S. 1069 (1997) (Court failed to 1421 (11th Cir. 1998) (Deportation of supervised release). provide adequate reasons to bar a could not be condition of supervised defendant from seeing his son while release). on supervised release). Ineffective United States v. Bonanno, 146 Assistance of United States v. Wright, 92 F.3d F.3d 502 (7th Cir. 1998) (Court 502 (7th Cir. 1996) (Simple improperly delegated discretion Counsel possession of drugs was a Grade C, over drug testing to probation not a Grade A violation, of officer). *Esslinger v. Davis, 44 F.3d 1515 supervised release). (11th Cir. 1995) (Counsel failed to United States v. Balogun, 146 F.3d determine that the defendant was a United States v. Leaphart, 98 F.3d 141 (2d Cir. 1998) (Court could not habitual offender before plea). 41 (2d Cir. 1996) (Misdemeanor did order supervised release tolled while not justify a two year term of defendant out of country). United States v. Cook, 45 F.3d 388 supervised release). (10th Cir. 1995) (Court infringed on United States v. Giraldo-Prado, counsel’s professional judgement). United States v. Myers, 104 F.3d 150 F.3d 1328 (11th Cir. 1998) 76 (5th Cir.), cert. denied, 520 U.S. (Deportation cannot be condition of *Finch v. Vaughn, 67 F.3d 909 1218 (1997) (Court could not supervised release). (11th Cir. 1995) (Counsel failed to impose consecutive sentences of correct misstatements that state supervised release). *United States v. Evans, 155 F.3d sentence could run concurrent with 245 (3rd Cir. 1998) (Cannot make potential federal sentence). United States v. Ooley, 116 F.3d reimbursement for court-appointed 370 (9th Cir.), cert. denied, 524 U.S. counsel a condition of supervised Montemoino v. United States, 68 963 (1998) (Probationer was release). F.3d 416 (11th Cir. 1995) (Failure entitled to a hearing over a to file notice of appeal after request warrantless search). United States v. Havier, 155 F.3d by defendant). 1090 (9th Cir. 1998) (Motion to *United States v. Collins, 118 F.3d revoke must specifically identify *United States v. Hansel, 70 F.3d 1394 (9th Cir. 1997) (Illegal ex post charges). 6 (2d Cir. 1995) (Counsel failed to facto application of rule allowing raise statute of limitations). additional term of release after *United States v. Kingdom, 157 revocation). F.3d 133 (2d Cir. 1998 (Revocation Upshaw v. Singletary, 70 F.3d 576 sentence should have been (11th Cir. 1995) (Claim of United States v. Romeo, 122 F.3d concurrent sentences based on most ineffective assistance of counsel at 941 (11th Cir. 1997) (Court could serious violation). plea was not waived even though not order deportation as a condition not raised on direct appeal). of supervised release). United States v. Waters, 158 F.3d United States v. Streater, 70 F.3d 1933 (6th 1999) (Defendant had 1314 (D.C. 1995) (Counsel gave right to allocution at revocation bad legal advice about pleading United States v. Aimufa, 122 F.3d hearing). guilty). 1376 (11th Cir. 1997) (Court lacked authority to modify conditions of United States v. Strager, 162 F.3d Martin v. United States, 81 F.3d release after revocation). 921 (6th Cir. 1999) (Disrespectful 1083 (11th Cir. 1996) (Counsel call to probation officer did not failed to file a notice of appeal when *United States v. Patterson, 128 justify revocation). requested to do so by the F.3d 1259 (8th Cir. 1997) (Failure defendant). to provide allocution at supervised United States v. McClellan, 164 release revocation was plain error). F.3d 308 (6th Cir. 1999) (Court Sager v. Maass, 84 F.3d 1212 (9th must explain why it is departing Cir. 1996) (Counsel was found United States v. Pierce, 132 F.3d above revocation guidelines). ineffective for not objecting to 1207 (8th Cir. 1997) (Probation inadmissible evidence). revocation for a drug user did not *United States v. Cooper, 171 F.3d require a prison sentence; treatment 582 (8th Cir. 1999) (Court could not Glock v. Singletary, 84 F.3d 385 is an option). order that defendant not leave city P 56 Reversible Error 2002 The BACK BENCHER

(11th Cir.), cert. denied, 519 U.S. assistance of counsel). Tautimez, 160 F.3d 573 (9th Cir. 1044 (1996) (Counsel’s failure to 1999) (Counsel ineffective for discover and present mitigating *United States v. Kauffman, 109 failing to withdraw plea after co- evidence at the sentencing F.3d 186 (3rd Cir. 1997) (Failure to defendant’s suppression motion proceeding required an evidentiary investigate insanity defense was granted). hearing). ineffective assistance of counsel). United States v. Granados, 168 United States v. McMullen, 86 Williamson v. Ward, 110 F.3d F.3d 343 (8th Cir. 1999) (Counsel F.3d 135 (8th Cir. 1996) (Counsel’s 1508 (10th Cir. 1997) (Failure to was ineffective for unfamiliarity bad sentencing advice required investigate the defendant’s mental with guidelines and failure to remand). illness was ineffective assistance of challenge breach of plea agreement). counsel). *United States v. Del Muro, 87 United States v. Harfst, 168 F.3d F.3d 1078 (9th Cir. 1996) (Prejudice Williamson v. Ward, 110 F.3d 398 (10th Cir. 1999) (Failure to was presumed when trial counsel 1508 (10th Cir. 1997) (Failure to argue for downward role adjustment was forced to prove his own investigate the defendant’s mental can be ineffective assistance of ineffectiveness at a hearing). illness was ineffective assistance of counsel). counsel). Baylor v. Estelle, 94 F.3d 1321 (9th Prou v. United States, 199 F.3d 37 Cir.), cert. denied, 520 U.S. 1151 United States v. Gaviria, 116 F.3d (1st Cir. 1999) (Counsel failed to (1997) (Counsel was ineffective for 1498 (D.C. Cir.), cert. denied, 522 attack timeliness of statutory drug failing to follow up on lab reports U.S. 1082 (1997) (Counsel was enhancement). suggesting that the defendant was ineffective for giving incorrect not the rapist). sentencing information in United States v. Hall, 200 F.3d 962 contemplation of plea). (6th Cir. 2000) (Despite waiver, Huynh v. King, 95 F.3d 1052 (11th dual representation denied effective Cir. 1996) (Lawyer’s failure to raise United States v. Soto, 132 F.3d 56 assistance of counsel). a suppression issue was grounds for (D.C. Cir. 1997) (Counsel was remand). ineffective for failing to urge Combs v. Coyle, 205 F.3d 269 (6th downward role adjustment). Cir.), cert. denied, 531 U.S. 1035 United States v. Baramdyka, 95 (2000) (Counsel failed to object to F.3d 840 (9th Cir.), cert. denied, 520 United States v. Taylor, 139 F.3d post arrest statement, or to U.S. 1132 (1997) (Appeal waiver 924 (D.C. Cir. 1998) (Counsel was investigate defense expert witness). did not bar a claim of ineffective ineffective for failing to inform assistance of counsel). client of advice of counsel defense). United States v. Patterson, 215 F.3d 812 (8th Cir. 2000) (Absences *United States v. Glover, 97 F.3d *Smith v. Stewart, 140 F.3d 1263 of counsel during trial denied 1345 (10th Cir. 1996) (Ineffective (9th Cir.), cert. denied, 525 U.S. 929 effective assistance). for counsel to fail to object to the (1998) (Failure to investigate higher methamphetamine range). mitigating evidence was *Carter v. Bell, 218 F.3d 581 (6th ineffective). Cir. 2000) (Failure to investigate Martin v. Maxey, 98 F.3d 844 (5th mitigating evidence was ineffective Cir. 1996) (Failure to file a motion Tejeda v. Dubois, 142 F.3d 18 (1st assistance). to suppress could be grounds for Cir. 1998) (Counsel’s fear of trial ineffectiveness claim). judge hindered defense). United States v. Mannino, 212 F.3d 835 (3rd Cir. 2000) (Failing to Fern v. Gramley, 99 F.3d 255 (7th United States v. Kliti, 156 F.3d 150 raise sentencing issue denied Cir. 1996) (Prejudice could be (2d Cir. 1998) (Defense counsel effective assistance). presumed from an attorney’s failure who witnessed exculpatory to file an appeal upon the statement had conflict). United States v. McCoy, 215 F.3d defendant’s request). 102 (D.C. Cir. 2000) (But for United States v. Moore, 159 F.3d counsel’s deficient performance, Griffin v. United States, 109 F.3d 1154 (9th Cir. 1999) (Irreconcilable defendant would not have pled 1217 (7th Cir. 1997) (Counsel’s conflict between defendant and guilty). advice to dismiss appeal to file lawyer). motion to reduce a sentence was Washington v. Hofbauer, 228 F.3d prima facie evidence of ineffective United States v. Alvarez- 689 (6th Cir. 2000) (Counsel’s P 57 Reversible Error 2002 The BACK BENCHER failure to object to prosecutor’s of plea agreement). misconduct was ineffective assistance). Greer v. Mitchell, 264 F.3d 663 (6th Cir. 2001) (Failure to allege Cossel v. Miller, 229 F.3d 649 (7th ineffectiveness claim on direct Cir. 2000) (Counsel was ineffective appeal can be ineffective assistance for failing to object to suggestive in- of counsel). court identification). Dixon v. Snyder, 266 F.3d 693 (7th Lockett v. Anderson, 230 F.3d 695 Cir. 2001) (Counsel misunderstood (5th Cir. 2000) (Inadequate admissibility of witness statements). mitigation investigation by defense).

Glover v. United States, 531 U.S. Our thanks to Alexander Bunin, 198 (2000) (Counsel’s failure to Federal Public Defender for the object to application of guidelines Districts of Northern New York and that increased sentence was Vermont who allows us to ineffective assistance). reproduce and distribute these cases in our newsletter. United States v. Davis, 239 F.3d 283 (2d Cir. 2001) (Counsel was Special thanks to Molly Corbett ineffective by threatening to for invaluable assistance. withhold services to encourage plea).

Betts v. Litscher, 241 F.3d 594 (7th Cir. 2001) (Counsel failed to perfect appeal).

Wanatee v. Ault, 259 F.3d 700 (8th The Back Bencher Cir. 2001) (Counsel failed to advise client of affect of felony-murder Published by: The Federal Public rule). Defender’s Office for the Central District of Illinois Glover v. Miro, 262 F.3d 268 (4th Cir. 2001) (Overworked attorney Editor: Richard H. Parsons, did not spend enough time with Federal Public Defender client). Central District of Illinois

Burdine v. Johnson, 262 F.3d 336 Managing Editor: Mary Kedzior (5th Cir. 2001) (Attorney slept CJA Panel Administrator through portions of trial). Federal Defender’s Office Central District of Illinois Burns v. Gammon, 260 F.3d 892 (8th Cir. 2001) (Failure to raise Your comments and suggestions objection to prosecutor’s are appreciated! misconduct during closing argument). Federal Public Defender’s Office Central District of Illinois Hunt v. Mitchell, 261 F.3d 575 (6th 401 Main Street, Suite 1500 Cir. 2001) (Defendant denied right Peoria, Illinois 61602 to confer with new counsel ten Phone: 309/ 671-7891 minutes before trial). Fax: 309/ 671-7898

Magana v. Hofbauer, 263 F.3d 542 (6th Cir. 2001) (Counsel misinformed defendant about effect