REVERSIBLE ERRORS 2003

The following is a project of the Office of the Federal Public Defender for the Districts of Northern New York & Vermont. The cases listed are those in which a criminal defendant received relief from an United States Court of Appeals or the United States Supreme Court. The precedents were reviewed shortly before this publication was released to assure they had not be overruled.

The purpose of this project is to try to give CJA Panel Attorneys a shortcut to case law that favor their clients. The editor does not promise that cases are precedent in all jurisdictions. If a case is preceded by an asterisk (*), that means the case may have been distinguished by another panel of that circuit or by another circuit. It should be researched to see if it is authority in your jurisdiction.

These materials may be duplicated for any lawyer providing legal services to indigent defendants. The editor encourages duplication. It saves us time and money. These materials may be reprinted by other free publications or free on-line providers serving the criminal defense bar. Attribution to this office is requested.

THE DEFENDER is a newsletter published by this same office. In addition, to updating REVERSIBLE ERRORS, the newsletter contains articles that are intended to be helpful to CJA Panel Lawyers. Although it is primarily focused at lawyers in Northern New York and Vermont, most features have relevance to federal criminal practice generally. Lawyers wishing to receive future publications should forward an e-mail address, name and phone number to the location below. The publications will be distributed by e-mail in Acrobat 5.0. Those who need an Acrobat reader can download one free at www.adobe.com . Otherwise, request Word or WordPerfect versions by replying to [email protected].

Alexander Bunin, Editor, Federal Public Defender, 39 North Pearl Street, 5th Floor, Albany, NY 12207, [email protected] . TABLE OF CONTENTS

Release ...... 1 Counsel ...... 1 Discovery ...... 2 Arrests ...... 3 Search of Persons ...... 3 Search of Private Vehicles ...... 3 Search of Commercial Vehicles ...... 4 Search of Packages ...... 5 Search of Private Property ...... 5 Warrants ...... 6 Knock and Announce ...... 6 Statements ...... 6 Recusal ...... 7 Indictments ...... 7 Limitation of Actions ...... 8 Venue ...... 8 Pretrial Procedure ...... 8 Severance ...... 8 Conflicts ...... 8 Competency / Sanity ...... 9 Privilege ...... 9 Jeopardy / Estoppel ...... 9 Plea Agreements ...... 10 Guilty Pleas ...... 11 Timely Prosecution ...... 12 Jury Selection ...... 13 Closure ...... 13 Impeachment ...... 13 Jury Trial ...... 14 Confrontation ...... 14 Co-Defendant’s Statements ...... 14 Misconduct ...... 16 Extraneous Evidence ...... 16 Identification ...... 17 Expert Testimony ...... 18 Entrapment ...... 18 Defenses ...... 19 Jury Instructions ...... 19 Deliberations ...... 19 Variance ...... 20 Speech / Assembly ...... 20 Interstate Commerce ...... 20 Conspiracy ...... 21 Firearms ...... 22 Extortion ...... 23 Drugs ...... 23 CCE / RICO ...... 25 Fraud / Theft ...... 25 Money Laundering ...... 27 Aiding and Abetting ...... 27 Perjury ...... 28 False Statements ...... 28 Contempt ...... 28 Immigration ...... 29 Pornography ...... 29 Violent Crimes ...... 29 Assimilative Crimes ...... 30 Miscellaneous Crimes ...... 30 Juveniles ...... 31 Sentencing - General ...... 31 Grouping ...... 32 Consecutive/Concurrent ...... 33 Retroactivity ...... 33 Sentencing - Marijuana ...... 33 Sentencing - Meth...... 34 Sentencing - Heroin ...... 34 Sentencing - Cocaine ...... 34 Sentencing - Crack ...... 35 Sentencing - Firearms ...... 35 Sentencing - Money Laundering ...... 35 Sentencing - Pornography ...... 35 Sentencing - Fraud / Theft ...... 36 Enhancements - General ...... 37 Enhancements - Drug Crimes ...... 37 Enhancements - Violence ...... 39 Enhancements - Immigration ...... 40 Career Enhancements ...... 40 Cross References ...... 41 Abuse of Trust ...... 42 Obstruction of Justice ...... 42 Vulnerable Victim ...... 43 Aggravating Role ...... 43 Mitigating Role ...... 44 Acceptance of Responsibility ...... 44 Safety Valve ...... 45 Criminal History ...... 45 Upward Departures ...... 46 Downward Departures ...... 47 Fines / Restitution ...... 48 Appeals ...... 50 Resentencing ...... 50 Supervised Release / Probation ...... 50 Ineffective Assistance of Counsel ...... 51 2003 2003 The Defender Reversible Errors - 2003 Edition ****************************************

*United States v. McDermott, 64 F.3d federal due process). Release 1448 (10th Cir.), cert. denied, 516 U.S. 1121 (1996) (Barring defendant from *United States v. Amlani, 111 F.3d 705 *United States v. Goosens, 84 F.3d sidebars with stand-by counsel denied (9th Cir. 1997) (Prosecutor’s repeated 697 (4th Cir. 1996) (Prohibiting a self-representation). disparagement of an attorney defendant from active cooperation in front of his client, denied the with the police was an abuse of *United States v. Goldberg, 67 F.3d 1092 defendant his right to chosen discretion). (3rd Cir. 1995) (Defendant did not forfeit counsel). counsel by threatening his appointed United States v. Porotsky, 105 F.3d 69 attorney). *United States v. Taylor, 113 F.3d (2d Cir. 1997) (Court denied travel 1136 (10th Cir. 1997) (Court did not request based on conclusions made United States v. Duarte-Higareda, 68 F.3d assure a proper waiver of counsel). by probation). 369 (9th Cir. 1995) (Court failed to appoint counsel for evidentiary hearing). Blankenship v. Johnson, 118 F.3d 312 United States v. Swanquist, 125 F.3d (5th Cir. 1997) (When the prosecution 573 (7th Cir. 1997) (Court failed to give Delguidice v. Singletary, 84 F.3d 1359 sought discretionary review, the reasons for denying release on (11th Cir. 1996) (Psychological testing of defendant had a right to counsel). appeal). a defendant without notice to counsel violated the Sixth Amendment). *United States v. Mills, 138 F.3d 928 *United States v. Fisher, 137 F.3d (11th Cir.), modified, 152 F.3d 937, cert. 1158 (9th Cir. 1998) (Defendant did Williams v. Turpin, 87 F.3d 1204 (11th Cir. denied, 525 U.S. 1003 (1998) not fail to appear for trial that had 1996) (State that created a statutory right (Defendant could not be made to been continued). to a motion for new trial must afford share codefendant counsel’s cross- counsel and an evidentiary hearing). examination of government witness). United States v. Baker, 155 F.3d 392 (4th Cir. 1998) (Cannot put conditions United States v. Ming He, 94 F.3d 782 (2d United States v. Pollani, 146 F.3d 269 of release on person acquitted by Cir. 1996) (Cooperating defendant had (5th Cir. 1998) (Pro se defendant’s late reason of insanity who is not a the right to have counsel present when request for counsel should have been danger). attending a presentence debriefing). honored).

Weeks v. Jones, 100 F.3d 124 (11th Cir. Henderson v. Frank, 155 F.3d 159 (3rd Counsel 1996) (Right to counsel in a habeas claim Cir. 1998) (Defendant was denied did not turn on the merits of the petition). counsel at suppression hearing). United States v. Cash, 47 F.3d 1083 (11th Cir. 1995) (Defendant could not United States v. Keen, 104 F.3d 1111 (9th United States v. Klat, 156 F.3d 1258 waive counsel without proper Cir. 1996) (Court did not sufficiently (D.C. Cir. 1999) (Counsel was required findings by court). explain to a defendant the dangers of pro at competency hearing). se representation). United States v. McKinley, 58 F.3d *United States v. Iasiello, 166 F.3d 212 1475 (10th Cir. 1995) (Court improperly *Carlo v. Chino, 105 F.3d 493 (9th Cir. (3rd Cir. 1999) (Indigent defendant had denied self-representation). 1997) (State statutory right to post- right to appointed counsel at hearing). booking phone calls was protected by 2 Reversible Errors 2003

United States v. Proctor, 166 F.3d 396 and client from speaking during trial). In Re Grand Jury, 111 F.3d 1083 (3rd (1st Cir. 1999) (Ambiguous request for Cir. 1997) (Government could not seek counsel tainted previous waiver). United States v. Schwarz, 283 F.3d 76 (2d disclosure of phone conversations Cir. 2002) (Actual conflict between that were illegally recorded by a third United States v. Leon-Delfis, 203 F.3d counsel and one defendant). party). 103 (1st Cir. 2000) (Questioning after polygraph violated defendant’s right United States v. Arnold, 117 F.3d 1308 to counsel). Discovery (11th Cir. 1997) (Prosecutor withheld exculpatory tapes of government *United States v. Hernandez, 203 F.3d United States v. Alzate, 47 F.3d 1103 witnesses). 614 (9th Cir. 2000) (Defendant was (11th Cir. 1995) (A prosecutor withheld denied self-representation at plea). exculpatory evidence). *United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997) (Evidence of Roney v. United States, 205 F.3d 1061 United States v. Barnes, 49 F.3d 1144 (6th perjured testimony should have been (8th Cir. 2000) (Petitioner was entitled Cir. 1995) (Request for discovery of disclosed). to counsel on a motion to vacate extraneous evidence created a continuing sentence). duty to disclose). United States v. Fernandez, 136 F.3d 1434 (11th Cir. 1998) (Court must hold *United States v. Russell, 205 F.3d *United States v. Boyd, 55 F.3d 239 (7th hearing when defendant makes 768 (5th Cir. 2000) (Absence of lawyer Cir. 1995) (Government failed to disclose showing of a Brady violation). due to illness did not waive right to drug use and drug dealing by prisoner- counsel). witnesses). United States v. Mejia-Mesa, 153 F.3d 925 (9th Cir. 1998) (Brady claim United States v. Hayes, 231 F.3d 1132 *United States v. Hanna, 55 F.3d 1456 required hearing). (9th Cir. 2000) (Defendant did not (9th Cir. 1995) (Prosecutor should have voluntarily waive representation). learned of Brady material even if it was United States v. Scheer, 168 F.3d 445 not in her possession). (11th Cir. 1999) (Government failed to Buhl v. Cooksey, 233 F.3d 783 (3rd disclose it had intimidated key 2000) (Defendant did not voluntarily Kyles v. Whitley, 514 U.S. 419 (1995) prosecution witness). waive counsel at trial). (Prosecution failed to turn over material and favorable evidence, sufficient to United States v. Ramos, 179 F.3d 1333 *United States v. Boone, 245 F.3d 352 change result of case). (11th Cir. 1999) (Defendant was denied (4th Cir. 2001) (Two attorneys must be opportunity to depose witness who appointed for defendant facing death- United States v. Wood, 57 F.3d 733 (9th was outside country). eligible crime). Cir. 1995) (Government failed to disclose favorable FDA materials). *United States v. Riley, 189 F.3d 802 *Fisher v. Roe, 263 F.3d 906 (9th Cir. (9th Cir. 1999) (Intentional destruction 2001) (Defendant had right to counsel United States v. Camargo-Vergara, 57 of notes of interview with informant during reading of testimony). F.3d 993 (11th Cir. 1995) (Government violated Jencks Act). failed to disclose defendant’s post-arrest United States v. Adelzo-Gonzalez, 268 statement). Nuckols v. Gibson, 233 F.3d 1261 (10th F.3d 772 (9th Cir. 2001) (Court abused Cir. 2000) (Government failed to discretion denying substitution of In Re Grand Jury Investigation, 59 F.3d disclose criminal allegations against counsel). 17 (2d Cir. 1995) (Court properly required key prosecution witness). disclosure of documents subpoenaed by United States v. Davis, 269 F.3d 514 the grand jury). United States v. Abbott, 241 F.3d 29 (5th Cir. 2001) (Judge must warn (1st Cir. 2001) (Government was defendant of effects of hybrid United States v. O’Conner, 64 F.3d 355 obligated to disclose linkage between counsel). (8th Cir.), cert. denied, 517 U.S. 1174 plea agreements of defendant and his (1996) (Evidence of government witness mother). Moore v. Puckett, 275 F.3d 685 (8th threats and collaboration were not Cir. 2001) (Court prevented lawyer disclosed). Mitchell v. Gibson, 262 F.3d 1036 (10th 3 Reversible Errors 2003

Cir. 2001) (Withholding exculpatory *United States v. Davis, 94 F.3d 1465 Northrop v. Trippett, 265 F.3d 372 (6th evidence that could have affected (10th Cir. 1996) (No reasonable suspicion Cir. 2001) (Anonymous tip of two sentence). for stop of a defendant known generally black males wearing brand clothing as a gang member and drug dealer). and selling drugs did not justify Boss v. Pierce, 263 F.3d 734 (7th Cir. detention). 2001) (Witness’s statement may not Washington v. Lambert, 98 F.3d 1181 (9th be available to defendant through due Cir. 1996) (General description of two Sparing v. Village of Olympia Fields, diligence). African-American males did not justify 266 F.3d 684 (7th Cir. 2001) (Entering stop). screen door without consent was an McCambridge v. Hall, 266 F.3d 12 (1st arrest). Cir. 2001) (Objection not required to *United States v. Jerez, 108 F.3d 684 (7th preserve Brady violation). Cir. 1997) (Nighttime confrontation by police at the defendant’s door was a Search of Dilosa v. Cain, 279 F.3d 259 (5th Cir. seizure). 2002) (Failed to disclose hair sample Persons on victim that was not defendant). *United States v. Miller, 146 F.3d 274 (5th Cir. 1998) (Leaving turn signal on *United States v. Caicedo, 85 F.3d Benn v. Lambert, 283 F.3d 1040 (9th violated no law and did not justify stop). 1184 (6th Cir. 1996) (Record lacked Cir. 2002) (Prosecutor suppressed evidence to support a finding of the exculpatory evidence affecting *United States v. Jones, 149 F.3d 364 (5th defendant’s consent to search). witness’s veracity). Cir. 1998) (Agent lacked reasonable suspicion for investigatory immigration *United States v. Eustaquio, 198 F.3d stop). 1068 (8th Cir. 1999) (No reasonable Arrests suspicion to search bulge on *United States v. Acosta-Colon, 157 F.3d defendant’s midriff). *United States v. Lambert, 46 F.3d 9 (1st Cir. 1999) (Defendant’s 30 minute 1064 (10th Cir. 1995) (Defendant was handcuffed detention, preventing him United States v. Gray, 213 F.3d 998 seized while agents held his driver’s from boarding flight, was not lawful (8th Cir. 2000) (No reasonable license for over 20 minutes). stop). suspicion to stop defendant for protective frisk). United States v. Little, 60 F.3d 708 United States v. Salzano, 158 F.3d 1107 (10th Cir. 1995) (Requiring a (10th Cir. 1999) (Cross country trip, United States v. Burton, 228 F.3d 524 passenger to go to the baggage area nervousness, nor scent of evergreen, (4th Cir. 2000) (Officer’s safety alone restrained her liberty). justified warrantless detention). did not justify search of pocket).

*United States v. Mesa, 62 F.3d 159 *United States v. Dortch, 199 F.3d 193 United States v. Miles, 247 F.3d 1009 (6th Cir. 1995) (Nervousness and (5th Cir.), amended, 203 F.3d 883 (2000) (9th Cir. 2001) (Manipulating small box inconsistencies did not validate (Continued detention after traffic stop in clothing exceeded pat-down continued traffic stop). was unreasonable). search).

*United States v. Buchanon, 72 F.3d United States v. Freeman, 209 F.3d 464 Fontana v. Haskin, 262 F.3d 871 (9th 1217 (6th Cir. 1995) (Defendants were (6th Cir. 2000) (Crossing lane-divider did Cir. 2001) (Claim of sexual harassment seized when the troopers separated not create probable cause for traffic by officer was allegation of illegal them from their vehicle). stop). search).

*United States v. Roberson, 90 F.3d United States v. Thomas, 211 F.3d 1186 United States v. Hatcher, 275 F.3d 689 75 (3rd Cir. 1996) (Anonymous call did (9th Cir. 2000) (Tip did not provide (8th Cir. 2001) (A second pat-down not give officers reasonable suspicion reasonable suspicion for stop). was held illegal). to stop a defendant on the street merely because his clothes matched United States v. Guevara-Martinez, 262 the caller’s description). F.3d 751 (8th Cir. 2001) (Illegal arrest Search of tainted later fingerprint evidence). 4 Reversible Errors 2003

*United States v. Rodriguez-Rivas, 151 *United States v. Reinholz, 245 F.3d Private F.3d 377 (5th Cir. 1998) (Vehicle stop 765 (8th Cir. 2001) (Warrantless arrest Vehicles lacked reasonable suspicion). lacked probable cause). *United States v. Huguenin, 154 F.3d 547 United States v. Caro, 260 F.3d 1209 United States v. Adams, 46 F.3d 1080 (6th Cir. 1998) (Checkpoint stop to merely (10th Cir. 2001) (Officer needed (11th Cir. 1995) (Suppression of look for drugs was unreasonable). probable cause to look for VIN evidence seized from motor home was number inside door). upheld). United States v. Rivas, 157 F.3d 364 (5th Cir. 1999) (1. Drilling into trailer was not United States v. Nee, 261 F.3d 79 (1st United States v. Chavis, 48 F.3d 871 routine border search; 2. No evidence Cir. 2001) (Suppression upheld when (5th Cir. 1995) (Court improperly that drug dog’s reaction was an alert). officer’s were found not to be credible placed the burden on the defendant about stop). to show a warrantless search United States v. Iron Cloud, 171 F.3d 587 occurred). (8th Cir. 1999) (Portable breath test United States v. Smith, 263 F.3d571 results were inadmissible as evidence of (6th Cir. 2001) (No reasonable United States v. Angulo-Fernandez, intoxication). suspicion for continued detention). 53 F.3d 1177 (10th Cir. 1995) (Confusion about who owned a Knowles v. Iowa, 525 U.S. 113 (1999) United States v. Bishop, 264 F.3d 919 stalled vehicle did not create probable (Speeding ticket does not justify full (9th Cir. 2001) (Admitting evidence cause for its search). search of vehicle). from illeagl stop was not harmless).

Ornelas v. United States, 517 U.S. 690 *United States v. Payne, 181 F.3d 781 United States v. Jones, 269 F.3d 919 (1996) (Defendant’s motion to (6th Cir. 1999) (Parole officer did not have (8th Cir. 2001) (Committing traffic suppress should be given de novo reasonable suspicion to search violation after seeing police did not review by the court of appeals). defendant’s trailer and truck). create probable cause to search vehicle). *United States v. Duguay, 93 F.3d 346 *United States v. Lopez-Soto, 205 F.3d (7th Cir.), cert. denied, 526 U.S. 1029 1101 (9th Cir. 2000) (No good faith United States v. Valdez, 267 F.3d 395 (1999) (Car could not be impounded mistake to warrantless car search). (5th Cir. 2001) (After computer check for a later search unless the arrestee completed motorist should have been could not provide for its removal). United States v. Wald, 216 F.3d 1222 allowed to leave). (10th Cir. 2000) (Odor of burnt *United States v. Elliott, 107 F.3d 810 methamphetamine in passenger United States v. Gomez, 276 F.3d 694 (10th Cir. 1997) (Consent to look in compartment did not provide probable (5th Cir. 2001) (Homeowner had trunk was not consent to open cause to search trunk). expectation of privacy to vehicle of containers within). third party parked in driveway). United States v. Baker, 221 F.3d 438 (3rd United States v. Chan-Jimenez, 125 Cir. 2000) (No reasonable suspicion to United States v. Chavez-Valenzuela, F.3d 1324 (9th Cir. 1997) (Defendant justify search of trunk). 279 F.3d 1062 (9th Cir. 2002) did not consent to search of truck). (Nervousness alone did not justify United States v. Holt, 229 F.3d 931 (10th continued detention). United States v. Cooper, 133 F.3d Cir. 2000) (Questioning about weapons 1394 (11th Cir. 1998) (Defendant had exceeded stop). United States v. Sigmond-Ballesteros, reasonable expectation of privacy in 285 F.3d 1117 (9th Cir. 2001) (Lacked rental car four days after contract *United States v. Jones, 234 F.3d 234 (5th reasonable suspicion to search car for expired). Cir. 2000) (Continued detention tainted undocumented aliens). search despite initial consent). *United States v. Beck, 140 F.3d 1129 United States v. Mariscal, 285 F.3d (8th Cir. 1998) (Continued detention United States v. Jones, 242 F.3d 215 (4th 1127 (9th Cir. 2002) (No reasonable of vehicle was not justified by Cir. 2001) (Anonymous tip did not justify suspicion of traffic violation). articuable facts). investigatory stop of vehicle). 5 Reversible Errors 2003

United States v. Nicholson, 144 F.3d 632 United States v. Tovar-Rico, 61 F.3d Search of (10th Cir. 1998) (1. Feeling through sides 1529 (11th Cir. 1995) (Possibility that of bag was a search; 2. Abandonment of surveillance officer was observed, did Commercial bag was involuntary). not create exigency for warrantless search of apartment). Vehicles *United States v. Fultz, 146 F.3d 1102 (9th Cir. 1998) (Guest had expectation of *United States v. Cabassa, 62 F.3d 470 *United States v. Garzon, 119 F.3d privacy in boxes he stored at another’s (2d Cir. 1995) (Exigent circumstances 1446 (10th Cir. 1997) (1. Passenger did home). were not relevant to the inevitable not abandon bag by leaving it on discovery doctrine). bus; 2. General warrantless search of *United States v. Rouse, 148 F.3d 1040 all bus passengers by dog was (8th Cir. 1998) (Search of bags lacked *United States v. Mejia, 69 F.3d 309 illegal). probable cause). (9th Cir. 1995) (Inevitable discovery doctrine did not apply where the *United States v. Guapi, 144 F.3d 1393 *United States v. Allen, 159 F.3d 832 (4th police simply failed to get a warrant). (11th Cir. 1998) (Bus passenger did Cir. 1999) (Inevitable discovery doctrine not voluntarily consent to search). did not apply to cocaine found in duffle J.B. Manning Corp. v. United States, bag later detected by dog and warrant). 86 F. 3d 926 (9th Cir. 1996) (Good faith *United States v. Washington, 151 exception to the warrant requirement F.3d 1354 (11th Cir. 1998) (Bus United States v. Johnson, 171 F.3d 601 does not affect motions to return passenger was searched without (8th Cir. 1999) (No reasonable suspicion property). voluntary consent). to intercept delivery of package). United States v. Leake, 95 F.3d 409 Bond v. United States, 529 U.S. 334 United States v. Osage, 235 F.3d 518 (6th Cir. 1996) (Neither the (2000) (Manipulation of bag found on (10th Cir. 2000) (Consent to search independent source rule, nor the bus was illegal search). suitcase did not extend to sealed can inevitable discovery rule, saved inside). otherwise inadmissible evidence). United States v. Stephens, 206 F.3d 914 (9th Cir. 2000) (Defendant was United Staes v. Runyan, 275 F.3d 449 (5th United States v. Madrid, 152 F.3d 1034 illegally seized and searched on bus). Cir. 2001) (Police could not open closed (8th Cir. 1998) (Inevitable discovery container discovered by previous private doctrine did not save illegal search of Search of search). house). United States v. Hernandez, 279 F.3d 302 United States v. Ivy, 165 F.3d 397 (6th Packages (5th Cir. 2002) (Manipulation of luggage Cir. 1999) (Consent to enter home was tainted consent to search). not shown to be voluntary). *United States v. Doe, 61 F.3d 107 (1st Cir. 1995) (Warrantless testing of *United States v. Johnson, 170 F.3d packages at an airport checkpoint Search of 708 (7th Cir. 1999) (Officers lacked lacked justification). reasonable suspicion to prevent Private Property occupant from leaving home). *United States v. Ali, 68 F.3d 1468, modified, 130 F.3d 33 (2d Cir. 1995) United States v. Hill, 55 F.3d 479 (9th Cir. United States v. Kiyuyung, 171 F.3d (Checking whether the defendant had 1995) (Remand was required to see if 78 (2d Cir. 1999) (Firearms found a valid export license was not a proper there was a truly viable independent during warrantless search were not in ground for seizure). source for the search). plain view).

United States v. Odum, 72 F.3d 1279 *United States v. Ford, 56 F.3d 265 (D.C. Flippo v. West Virginia, 528 U.S. 11 (7th Cir. 1995) (Court was limited to Cir. 1995) (Search under a mattress and (1999) (No crime scene exception to facts at the time the stop occurred to behind a window shade exceeded a warrant requirement). evaluate reasonableness of the protective sweep). seizure). United States v. Sandoval, 200 F.3d 6 Reversible Errors 2003

659 (9th Cir. 2000) (Defendant had for execution). reasonable expectation of privacy in Warrants tent on public land). United States v. Albrektsten, 151 F.3d *United States v. Van Damme, 48 F.3d 951 (9th Cir. 1998) (Arrest warrant did United States v. Vega, 221 F.3d 789 461 (9th Cir. 1995) (No list of items to be not permit search of defendant’s motel (5th Cir.), cert. den. 531 1155 (2000) seized under the warrant). room). (The police cannot create exigency for search of leased home). United States v. Mondragon, 52 F.3d 291 United States v. Ford, 184 F.3d 566 (10th Cir. 1995) (Supplemental wiretap (6th Cir.), cert. denied, 528 U.S. 1161 *United States v. Reid, 226 F.3d 1020 application failed to show necessity). (2000) (Search warrant authorized (9th Cir. 2000) (Non-resident did not broader search than reasonable). have apparent authority to allow *United States v. Kow, 58 F.3d 423 (9th search of apartment). Cir. 1995) (Warrant failed to identify United States v. Herron, 215 F.3d 812 business records with particularity, and (8th Cir. 2000) (No reasonable officer United States v. Oaxaca, 233 F.3d 1154 good faith did not apply). would have relied on such a deficient (9th Cir. 2000) (Agents could not warrant). enter open door of garage). *United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996) (Bare bones, boilerplate United States v. Tuter, 240 F.3d 1292 United States v. Lewis, 231 F.3d 238 affidavit was insufficient to justify (10th Cir. 2001) (Anonymous tip (6th Cir. 2000) (Absent probable warrant). lacked reliability to support warrant). cause, exigent circumstances did not permit entry to home). Marks v. Clarke, 102 F.3d 1012 (9th Cir.), United States v. King, 244 F.3d 736 cert. denied, 522 U.S. 907 (1997) (Warrant (9th Cir. 2001) (Officer’s mistaken United States v. Santa, 236 F.3d 662 to search two residences did not belief that ordinance was violated did (6th Cir. 2001) (Search of apartment authorize the officers to search all not provide reasonable suspicion to lacked exigent circumstances). persons present). stop).

*United States v. Gamez-Orduno, 235 United States v. Foster, 104 F.3d 1228 Leveto v. Lapina, 258 F.3d 156 (3rd F.3d 453 (9th Cir. 2000) (Overnight (10th Cir. 1996) (Flagrant disregard for the Cir. 2001) (Search warrant for home did guests had standing to challenge specificity of a warrant required not justify pat-down of owner). search). suppression of all found). United States v. Blackmon, 273 F.3d United States v. Heath, 259 F.3d 522 *United States v. McGrew, 122 F.3d 847 1204 (9th Cir. 2001) (Police may not (6th Cir. 2001) (Allowing officer to (9th Cir. 1997) (Search warrant affidavit borrow information from previous examine keys was not consent to lacked particularity). wiretap warrant in another case). open and enter apartment). United States v. Alvarez, 127 F.3d 372 United States v. Limares, 269 F.3d 794 (5th Cir. 1997) (Warrant affidavit Knock and (7th Cir. 2001) (Failure to arrest contained a false statement made in suspect outside did not create reckless disregard for the truth). Announce exigency upon entry to home). *United States v. Schroeder, 129 F.3d 439 Wilson v. Arkansas, 514 U.S. 927 United States v. Diehl, 276 F.3d 32 (8th Cir. 1997) (Warrant did not authorize (1995) ("Knock and announce" rule (1st Cir. 2002) (Curtilage need not a search of adjoining property). implicated the Fourth Amendment). have obvious boundary). In Re Grand Jury Investigation, 130 F.3d United States v. Zermeno, 66 F.3d United States v. Jones, 286 F.3d 1146 853 (9th Cir. 1997) ( Search warrant was 1058 (9th Cir. 1995) (Officers failed to (9th Cir. 2002) (Subpoena did not give overbroad). knock and announce during a drug authority to illegally enter premises, search). even for exigent circumstances). *United States v. Hotal, 143 F.3d 1223 (9th Cir. 1998) (Anticipatory search *United States v. Bates, 84 F.3d 790 warrant failed to identify triggering event (6th Cir. 1996) (Officers did not have 7 Reversible Errors 2003

the right to break down an apartment uncounseled statement was erroneously Ghent v. Woodford, 279 F.3d 1121 (9th door without first knocking and admitted). Cir. 2002) (Miranda applies to announcing their presence). statements offered at capital *United States v. Garibay, 143 F.3d 534 sentencing). Richards v. Wisconsin, 520 U.S. 385 (9th Cir. 1998) (Defendant with limited (1997) (No blanket drug exception to English and low mental capacity did not the knock and announce voluntarily waive Miranda). Recusal requirement). United States v. Chamberlain, 163 F.3d *Bracy v. Gramley, 520 U.S. 899 (1997) United States v. Cantu, 230 F.3d 148 499 (8th Cir. 1999) (Inmate under (Petitioner could get discovery of trial (5th Cir. 2000) (“Knock and investigation was entitled to Miranda judge’s bias against him). announce” applies to all attempts at warnings). forcible entry). *United States v. Jordan, 49 F.3d 152 United States v. Tyler, 164 F.3d 150 (3rd (5th Cir. 1995) (Judge should have Cir. 1999) (Police did not honor been recused because the defendant Statements defendant’s invocation of silence). made claims against family friend of the judge). *United States v. Dudden, 65 F.3d Pickens v. Gibson, 206 F.3d 988 (10th Cir. 1461 (9th Cir. 1995) (Immunity 2000) (Admission of confession was not *United States v. Avilez-Reyes, 160 agreement required a hearing on harmless). F.3d 258 (5th Cir. 1999) (Judge should whether the defendant’s statements have recused himself in case where were used to aid the government’s United States v. Martinez-Gaytan, 213 attorney testified against judge in case). F.3d 890 (5th Cir. 2000) (Agent who did disciplinary hearing). not speak Spanish could not introduce United States v. Tenorio, 69 F. 3d defendant’s Spanish confession). United States v. Scarfo, 263 F.3d 80 1103 (11th Cir. 1995) (Post-Miranda (3rd Cir. 2001) (Judge should have statements were improperly admitted). Dickerson v. United States, 530 U.S. 428 recused himself if he felt prejudiced by (2000) (Miranda warnings are required news article). United States v. Ali, 86 F.3d 275 (2nd by Fifth Amendment). Cir. 1996) (Custodial interrogation required Miranda warnings). United States v. Orso, 234 F.3d 436 (9th Indictments Cir. 2000) (Officer lied to get admissions). *In Re Grand Jury Subpoena Dated United States v. Holmes, 44 F.3d 1150 April 9, 1996, 87 F.3d 1198 (11th Cir. Gardner v. Johnson, 247 F.3d 551 (5th Cir. (2d Cir. 1995) (Money laundering and 1996) (Custodian of records could not 2001) (Psychiatrist’s warnings about self- structuring counts based on the same be compelled to testify as to the incrimination were insufficient). transaction were multiplicious). location of documents not in her possession when those documents United States v. Pedroza, 269 F.3d 821 United States v. Hairston, 46 F.3d 361 incriminated her). (7th Cir. 2001) (Agreement to speak to (4th Cir. 1995) (Multiple payments officer was not consent to later were part of the same offense). United States v. Trzaska, 111 F.3d questioning). 1019 (2d Cir. 1997) (Defendant’s United States v. Graham, 60 F.3d 463 statement to probation officer was United States v. Velarde-Gomez, 269 F.3d (8th Cir. 1995) (Multiplicious to charge inadmissible). 1023 (9th Cir. 2001) (Post-arrest. pre- the same false statement made on Miranda silence cannot be used to show different occasions). *United States v. D.F., 115 F.3d 413 demeanor). (7th Cir. 1997) (Statements taken from *United States v. Kimbrough, 69 F.3d a juvenile in a mental health facility United States v. Green, 272 F.3d 748 (5th 723 (5th Cir.), cert. denied, 517 U.S. were involuntary). Cir. 2001) (Defendant’s actions in 1157 (1996) (Multiple possessions of response to custodial interrogation were child pornography should have been United States v. Abdi, 142 F.3d 566 testimonial in nature). charged in a single count). (2d Cir. 1998) (Defendant’s 8 Reversible Errors 2003

*United States v. Cancelliere, 69 F.3d because it was not signed by the United States v. Perez, 280 F.3d 318 1116 (11th Cir. 1995) (Court amended government). (3d Cir. 2002) (Venue should be charging language of indictment decided by jury when challenged by during trial). United States v. Podde, 105 F.3d 813 (2d defendant). Cir. 1997) (Statute of limitations barred *United States v. Johnson, 130 F.3d the reinstatement of charges that were 1420 (10th Cir. 1997) (Gun possession dismissed in a plea agreement). Pretrial convictions for the same firearm were multiplicious). United States v. Manges, 110 F.3d 1162 Procedure (5th Cir.), cert.denied, 523 U.S. 1106 United States v. Morales, 185 F.3d 74 (1998) (Conspiracy charge was barred by United States v. Ramos, 45 F.3d 1519 (2nd Cir. 1999) (Racketeering statute of limitations). (11th Cir. 1995) (Trial judge wrongly enterprise did not last for duration refused deposition without inquiring alleged in indictment). United States v. Grimmett, 236 F.3d 452 about testimony or its relevance). (8th Cir. 2001) (Statute of limitations had *United States v. Dubo, 186 F.3d 1177 run since defendant’s withdrawal from United States v. Smith, 55 F.3d 157 (9th Cir. 1999) (Indictment did not the conspiracy). (4th Cir. 1995) (Government’s motion allege mens rea). for dismissal should have been granted). United States v. Nunez, 180 F.3d 227 Venue (5th Cir. 1999) (Indictment failed to United States v. Gonzalez, 58 F.3d 459 charge an offense). *United States v. Miller, 111 F.3d 747 (9th Cir. 1995) (Government’s motion (10th Cir. 1997) (Court refused a jury for dismissal should have been United States v. Dipentino, 242 F.3d instruction on venue in a multi-district granted). 1090 (9th Cir. 2001) (Trial court conspiracy case). constructively amended indictment). *United States v. Young, 86 F.3d 944 United States v. Carter, 130 F.3d 1432, (9th Cir. 1996) (Court improperly United States v. Olson, 262 F.3d 795 cert. denied, 523 U.S. 1041 (10th Cir. 1997) denied a hearing on a motion to (8th Cir. 2001) (Bank robbery (Requested instruction on venue should compel the government to immunize a indictment failed to allege a taking by have been given). witness). force or intimidation). United States v. Cabrales, 524 U.S. 1 United States v. Mathurin, 148 F.3d 68 United States v. Thompson, 287 F.3d (1998) (Venue for money laundering was (2d Cir. 1998) (Court improperly denied 1244 (10th Cir. 2002) (Indictment proper only where offenses were begun, hearing on motion to suppress). dismissed when improper sealing conducted and completed). caused defendant to innocently United States v. Durham, 287 F.3d destroy documents necessary to his *United States v. Brennan, 183 F.3d 139 1297 (11th Cir. 2002) (Defendant was defense). (2d Cir. 1999) (Venue for mail fraud forced to wear “stun belt” during permissible only in districts where trial). Limitation of proscribed acts occurred). *United States v. Hernandez, 189 F.3d Severance Actions 785 (9th Cir.), cert. denied, 529 U.S. 1028 (1999) (Venue was improper for *United States v. Breinig, 70 F.3d 850 United States v. Li, 55 F.3d 325 (7th undocumented alien discovered in one (6th Cir. 1995) (Severance should have Cir. 1995) (Statute of limitations ran district and tried in another). been granted where the codefendant’s from the day of deposit, not the day defense included prejudicial character the deposit was processed). United States v. Williams, 274 F.3d 1079 evidence regarding the defendant). (6th Cir. 2001) (Sale to government United States v. Spector, 55 F.3d 22 informant did not bring the conspiracy *United States v. Baker, 98 F.3d 330 (1st Cir. 1995) (Agreement to waive within district’s venue). (8th Cir.), cert. denied, 520 U.S. 1179 the statute of limitations was invalid (1997) (Evidence admissible against 9 Reversible Errors 2003

only one codefendant required was just a pretext to investigate her severance). Competency / client).

United States v. Jordan, 112 F.3d 14 Sanity In Re Richard Roe Inc., 68 F.3d 38 (2nd (1st Cir.), cert. denied, 523 U.S. 1041 Cir. 1995) (Court misapplied the crime- (1998) (Charges should have been *United States v. Mason, 52 F.3d 1286 fraud exception). severed when a defendant wanted to (4th Cir. 1995) (Court failed to apply a testify regarding one count, but not reasonable cause standard to United States v. Rowe, 96 F.3d 1294 others). competency hearing). (9th Cir. 1996) (In-house investigation by attorneys associated with the United States v. Cobb, 185 F.3d 1193 Cooper v. Oklahoma, 517 U.S. 348 (1996) defendant/lawyer was covered by the (11th Cir. 1999) (Court erroneously (Court could not require a defendant to attorney-client privilege). denied severance under Bruton). prove his incompetence by a higher standard than preponderance of Mockaitis v. Harcleroad, 104 F.3d 1522 evidence). (9th Cir. 1997) (Clergy-communicant Conflicts privilege was upheld). United States v. Davis, 93 F.3d 1286 (6th United States v. Shorter, 54 F.3d 1248 Cir. 1996) (Court did not have the (7th Cir.), cert. denied. 516 U.S. 896 statutory authority to order a mental United States v. Bauer, 132 F.3d 504 (1995) (Actual conflict when the examination of a defendant who wished (9th Cir. 1997) (Questioning of defendant accused counsel of to raise the defense of diminished defendant’s bankruptcy attorney improper behavior). capacity). violated attorney-client privilege).

*Ciak v. United States, 59 F.3d 296 (2d United States v. Williams, 113 F.3d 1155 *United States v. Glass, 133 F.3d 1356 Cir. 1995) (Actual conflict for attorney (10th Cir. 1997) (Defendant’s actions (10th Cir. 1998) (Defendant’s who had previously represented a during trial warranted a competency psychotherapist-patient privilege was witness against the defendant). hearing). violated).

United States v. Malpiedi, 62 F.3d 465 United States v. Nevarez-Castro, 120 F.3d Swidler & Berlin v. United States, 524 (2d Cir. 1995) (Conflict for counsel 190 (9th Cir. 1997) (Court refused to hold U.S. 399 (1998) (Attorney-client representing witness who gave a competency hearing). privilege survives client’s death). damaging evidence against his defendant). United States v. Haywood, 155 F.3d 674 United States v. Millard, 139 F.3d 1200 (3rd Cir. 1999) (Defendant allegedly (8th Cir.), cert. denied, 525 U.S. 949 *United States v. Jiang, 140 F.3d 124 restored to competency required second (1998) (Statements during plea (2d Cir. 1998) (Attorney’s potential hearing). discussions were erroneously conflict required remand for hearing). admitted).

United States v. Kliti, 156 F.3d 150 (2d Privilege In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (Court should have held Cir. 1998) (Documents prepared in hearing on defense counsel’s Ralls v. United States, 52 F.3d 223 (9th anticipation of litigation were work potential conflict). Cir. 1995) (Fee information was product). inextricably intertwined with privileged *Perrillo v. Johnson, 205 F.3d 775 (5th communications). Mitchell v. United States, 526 U.S. 314 Cir. 2000) (Actual conflict existed in (1999) (Guilty plea does not waive successive prosecutions of co- *United States v. Sindel, 53 F.3d 874 (8th privilege against self incrimination at defendants). Cir. 1995) (Fee information could not be sentencing). released without disclosing other Lockhart v. Terhune, 250 F.3d 1223 privileged information). (9th Cir. 2001) (Counsel had actual Jeopardy / conflict of interest). *United States v. Gertner, 65 F.3d 963 (1st Cir. 1995) (IRS summons of attorney 10 Reversible Errors 2003

second prosecution for the substantive 2001) (Jeopardy attaches at Estoppel crime). unconditional acceptance of guilty plea). United States v. Abcasis, 45 F.3d 39 Terry v. Potter, 111 F.3d 454 (6th Cir. (2d Cir. 1995) Government was 1997) (When a defendant was charged in estopped from convicting a person two alternate manners, and the jury Plea when its agents caused that person in reached a verdict as to only one, there good faith to believe they were acting was an implied acquittal on the other Agreements under government authority). offense to which jeopardy barred retrial). United States v. Clark, 55 F.3d 9 (1st United States v. Weems, 49 F.3d 528 United States v. Stoddard, 111 F.3d 1450 Cir. 1995) (Government breached the (9th Cir. 1995) (Government was (9th Cir. 1997) (1. Second drug agreement by arguing against estopped from proving element conspiracy prosecution was barred by acceptance of responsibility). previously decided in forfeiture case). double jeopardy; 2. Collateral estoppel barred false statement conviction, based *United States v. Laday, 56 F.3d 24 United States v. Sammaripa, 55 F.3d upon drug ownership for which (5th Cir. 1995) (Government breached 433 (9th Cir. 1995) (Mistrial was not defendant had been previously the agreement by failing to give the justified by manifest necessity). acquitted). defendant an opportunity to cooperate). United States v. McLaurin, 57 F.3d United States v. Romeo, 114 F.3d 141 (9th 823 (9th Cir. 1995) (Defendant could Cir. 1997) (After an acquittal for *United States v. Washman, 66 F.3d not be retried for bank robbery after possession, an importation charge was 210 (9th Cir. 1995) (Defendant could conviction on the lesser included barred by collateral estoppel). have withdrawn his plea up until the offense of larceny). time the court accepted the plea United States v. Turner, 130 F.3d 815 (8th agreement). Rutledge v. United States , 517 U.S. Cir. 1997) (Prosecution of count, identical 292 (1996) (Defendant could not be to one previously dismissed, was barred). United States v. Levay, 76 F.3d 671 punished for both a conspiracy and a (5th Cir. 1996) (Defendant could not continuing criminal enterprise based United States v. Downer, 143 F.3d 819 be enhanced with a prior drug upon a single course of conduct). (4th Cir. 1998) (Court’s substitution of conviction when the government conviction for lesser offense, after withdrew notice as part of a plea Venson v. State of Georgia, 74 F.3d reversal, violated Ex Post Facto Clause agreement). 1140 (11th Cir. 1996) (Prosecutor’s and Grand Jury Clause). motion for mistrial was not supported United States v. Taylor, 77 F.3d 368 by manifest necessity). United States v. Dunford, 148 F.3d 385 (11th Cir. 1996) (Defendant could (4th Cir. 1998) (Convictions for 6 firearms withdraw his guilty plea when the United States v. Holloway, 74 F.3d and ammunition was multiplicious). government failed to unequivocally 249 (11th Cir. 1996) (Prosecutor’s recommend a sentence named in the promise not to prosecute, made at a United States v. Beckett, 208 F.3d 140 agreement). civil deposition, was the equivalent of (3rd Cir. 2000) (Sentences for robbery and use immunity for a related criminal armed robbery violated double jeopardy). *United States v. Velez Carrero, 77 proceeding). F.3d 11 (1st Cir. 1996) (Agreement to United States v. Kithcart, 218 F.3d 213 recommend no enhancement was United States v. Hall, 77 F.3d 398 (3rd Cir. 2000) (Government could not breached by the government’s neutral (11th Cir.), cert. denied. 519 U.S. 849 relitigate suppression motion). position at sentencing). (1996) (Possession of a firearm and its ammunition could only yield a single United States v. Kramer, 225 F.3d 847 (7th United States v. Dean, 87 F.3d 1212 sentence). Cir. 2000) (Defendant was entitled to (11th Cir. 1996) (Judge could modify attack underlying state child support the forfeiture provisions of a plea United States v. Garcia, 78 F.3d 1517 obligation). agreement, when the forfeiture was (11th Cir. 1996) (Acquittal for unfairly punitive). knowingly conspiring barred a Morris v. Reynolds, 264 F.3d 38 (2d Cir. 11 Reversible Errors 2003

*United States v. Kummer, 89 F.3d term of supervised release). (6th Cir. 2000) (Prosecution in second 1536 (11th Cir. 1996) (Defendants who jurisdiction violated plea agreement). pleaded guilty to accepting a gratuity United States v. Johnson, 132 F.3d 628 under plea agreements could have (11th Cir. 1998) (Prosecutor violated plea United States v. Johnson, 241 F.3d withdrawn their pleas when they were agreement by urging higher drug 1049 (8th Cir. 2001) (Government sentenced under bribery guidelines). quantity). breached plea agreement by failing to file departure motion before United States v. Ritsema, 89 F.3d 392 *United States v. Mitchell, 136 F.3d 1192 sentencing). (7th Cir. 1996) (A court could not (8th Cir. 1998) (Failure to adhere to ignore a previously adopted plea unconditional promise to move for Dunn v. Collernan, 247 F.3d 450 (3rd agreement at resentencing). downward departure violated plea Cir. 2001) (Prosecutor’s agreement). recommendation of “lengthy United States v. Belt, 89 F.3d 710 sentence” violated plea agreement). (10th Cir. 1996) (Failure to object to *United States v. Isaac, 141 F.3d 477 (3rd the government’s breach of the plea Cir. 1998) (Plea agreements referring to Gunn v. Ignacio, 263 F.3d 965 (9th Cir. agreement was not a waiver). substantial assistance departures were 2001) (Prosecutor breached agreement subject to contract law). by opposing concurrent sentence). United States v. Beltran-Ortiz, 91 F.3d 665 (4th Cir. 1996) (Failure to debrief United States v. Brye, 146 F.3d 1207 (10th United States v. Fitch, 282 F.3d 364 the defendant, thus preventing him Cir. 1998) (Government’s opposition to (6th Cir. 2002) (A material ambiguity from benefiting from the safety valve, downward departure breached plea should have been construed to violated the plea agreement). agreement). defendant’s benefit).

United States v. Hawley, 93 F.3d 682 United States v. Castaneda, 162 F.3d 832 United States v. Lukse, 286 F.3d 906 (10th Cir. 1996) (Government violated (5th Cir. 1999) (Government failed to (6th Cir. 2002) (Plea agreement for its plea agreement not to oppose prove defendant violated transactional substantial assistance enforced when credit for acceptance of immunity agreement). government failed to even assess responsibility). defendant’s level of cooperation). *United States v. Lawlor, 168 F.3d 633 United States v.Van Thournout, 100 (2d Cir. 1999) (Government breached plea F.3d 590 (8th Cir. 1996) (Government agreement that stipulated to a specific Guilty Pleas breached an agreement from another offense level). district to recommend concurrent United States v. Maddox, 48 F.3d 555 time). United States v. Nathan, 188 F.3d 190 (D.C. 1995) (A summary rejection of a (3rd Cir. 1999) (Statement made after plea guilty plea was improper). *United States v. Sandoval-Lopez, agreement was not stipulation). 122 F.3d 797 (9th Cir. 1997) *United States v. Ribas-Dominicce, 50 (Defendant could attack illegal United States v. Frazier, 213 F.3d 409 (7th F.3d 76 (1st Cir. 1995) (Court misstated conviction without fear that Cir. 2000) (Government cannot the mental state required for the dismissed charges in plea agreement unilaterally retreat from plea agreement offense). would be revived). without hearing). *United States v. Goins, 51 F.3d 400 United States v. Wolff, 127 F.3d 84 United States v. Baird, 218 F.3d 221 (3rd (4th Cir. 1995) (Court failed to (D.C. Cir.), cert. denied, 118 S.Ct. 2325 Cir.2000) (Plea agreement prevented use admonish the defendant about the (1998) (Government’s failure to argue of information at any proceeding). mandatory minimum punishment). for acceptance of responsibility breached agreement and required *United States v. Mondragon, 228 F.3d *United States v. Casallas, 59 F.3d entire sentence to be reconsidered). 978 (9th Cir. 2000) (Prosecutor breached 1173 (11th Cir. 1995) (Trial judge plea agreement by recommending improperly became involved in plea United States v. Gilchrist, 130 F.3d sentence). bargaining during colloquy). 1131 (3rd Cir. 1997) (Plea agreement was breached by imposing a higher United States v. Randolph, 230 F.3d 243 *United States v. Smith, 60 F.3d 595 12 Reversible Errors 2003

(9th Cir. 1995) (Court failed to explain United States v. Shepherd, 102 F.3d 558 defendant of the nature of supervised the nature of the charges to the (DC Cir. 1996) (Court abused its release). defendant). discretion in rejecting the defendant’s mid-trial guilty plea). *United States v. Odedo, 154 F.3d 937 *United States v. Gray, 63 F.3d 57 (1st (9th Cir. 1998) (Defendant not Cir. 1995) (Defendant who did not United States v. Still, 102 F.3d 118 (5th admonished about nature of charges). understand the applicability of the Cir.), cert. denied, 522 U.S. 806 (1997) mandatory minimum could withdraw (Court failed to admonish the defendant United States v. Suarez, 155 F.3d 521 his plea). on the mandatory minimum). (5th Cir. 1998) (Defendant was not admonished as to nature of charges). United States v. Daigle, 63 F.3d 346 United States v. Amaya, 111 F.3d 386 (5th (5th Cir. 1995) (Court improperly Cir. 1997) (Defendant’s plea was *United States v. Andrades, 169 F.3d engaged in plea bargaining). involuntary when the court promised to 131 (2d Cir. 1999) (Court failed to ensure a downward departure for determine whether defendant United States v. Martinez-Molina, 64 cooperation). understood basis for plea, and failed F.3d 719 (1st Cir. 1995) (Court failed to to receive sufficient factual basis). inquire whether the plea was *United States v. Gonzalez, 113 F.3d 1026 voluntary or whether the defendant (9th Cir. 1997) (Court should have held a United States v. Blackwell, 172 F.3d had been threatened or coerced). hearing when the defendant claimed his 129 (2d Cir.), superceded, 199 F.3d plea was coerced). 623 (1999) (Omissions during *United States v. Showerman, 68 F.3d colloquy voided plea). 1524 (2d Cir. 1995) (Court failed to *United States v. Brown, 117 F.3d 471 advise the defendant that he might be (11th Cir. 1997) (Misinformation given to United States v. Gomez-Orozco, 188 ordered to pay restitution). the defendant made his plea involuntary). F.3d 422 (7th Cir. 1999) (Proof of citizenship required withdrawal of United States v. Tunning, 69 F.3d 107 United States v. Pierre, 120 F.3d 1153 guilty plea to illegal re-entry charge). (6th Cir. 1995) (Government failed to (11th Cir. 1997) (Plea was involuntary recite evidence to prove allegations in when defendant mistakenly believed he United States v. Guess, 203 F.3d 1143 an Alford plea). had preserved an appellate issue). (9th Cir. 2000) (Record did not support guilty plea to firearm charge). United States v. Guerra, 94 F.3d 989 *United States v. Cazares, 121 F.3d 1241 (5th Cir. 1996) (Plea was vacated when (9th Cir. 1997) (Plea to drug conspiracy United States v. James, 210 F.3d 1342 the court gave the defendant was not an admission of an alleged overt (11th Cir. 2000) (Plea colloquy did not erroneous advice about act). cover elements of offense). enhancements). United States v. Toothman, 137 F.3d 1393 United States v. Barrios-Gutierrez, 255 *United States v. Quinones, 97 F.3d (9th Cir. 1998) (Plea could be withdrawn F.3d 1024 (9th Cir.), cert. denied, 122 473 (11th Cir. 1996) (Court failed to based upon misinformation about S.Ct. 567 (2001) (Defendant was not ensure that the defendant understood guideline range). informed of statutory maximum). the nature of the charges). United States v. Gobert, 139 F.3d 436 (5th United States v. Santo, 225 F.3d 92 *United States v. Cruz-Rojas, 101 F.3d Cir. 1998) (Insufficient factual basis (1st Cir. 2000) (Court understated 283 (2d Cir. 1996) (Guilty pleas were existed for defendant’s guilty plea). mandatory minimum at plea). vacated to determine whether factual basis existed for carrying a firearm). United States v. Gigot, 147 F.3d 1193 United States v. Ruiz, 229 F.3d 1240 (10th Cir. 1998) (Failure to admonish (9th Cir. 2000) (Withdrawal of guilty *United States v. Siegel, 102 F.3d 477 defendant of elements of offense and plea for newly discovered evidence (11th Cir. 1996) (Failure to advise the possible penalties rendered plea should be allowed for “fair and just defendant of the maximum and involuntary). reason”). minimum mandatory sentences required that the defendant be United States v. Thorne, 153 F.3d 130 United States v. Castro-Gomez, 233 allowed to withdraw his plea). (4th Cir. 1998) (Court failed to advise F.3d 684 (1st Cir. 2000) (Court did not 13 Reversible Errors 2003

inform defendant he was subject to United States v. Lloyd, 125 F.3d 1263 (9th presumption of prejudice). mandatory life sentence). Cir. 1997) (112-day continuance was not justified). United States v. Markin, 263 F.3d 491 Jury Selection (6th Cir. 2001) (Judge cannot United States v. Hay, 122 F.3d 1233 (9th participate in negotiations once guilty Cir. 1997) (48-day recess for jurors’ Cochran v. Herring, 43 F.3d 1404 (11th plea is entered). vacations was abuse of discretion). Cir.), cert. denied, 516 U.S. 1073 (1996) (Batson claim should have been United States v. Lujano-Perez, 274 United States v. Graham, 128 F.3d 372 granted). F.3d 219 (5th Cir. 2001) (Court must (6th Cir. 1997) (Eight-year delay between explain nature of the charges). indictment and trial violated the Sixth *United States v. Jackman, 46 F.3d Amendment). 1240 (2d Cir. 1995) (Selection United States v. Stubbs, 281 F.3d 109 procedure resulted in an (3d Cir. 2002) (Waiver of counsel was United States v. Gonzales, 137 F.3d 1431 underrepresentation of minorities in insufficient). (10th Cir. 1998) (“Ends of justice” jury pool). continuance could not be retroactive). United States v. Yu, 285F.3d 192 (2d United States v. Beckner, 69 F.3d 1290 Cir. 2002) (Allocution must settle drug *United States v. Barnes, 159 F.3d 4 (1st (5th Cir. 1995) (Defendant established quantity to satisfy Apprendi). Cir. 1999) (Open-ended continuance prejudicial pretrial publicity that could violated speedy trial). not be cured by voir dire).

Timely United States v. Hall, 181 F.3d 1057 (9th *United States v. Annigoni, 96 F.3d Cir. 1999) (Continuances for co- 1132 (9th Cir. 1996) (Court’s erroneous Prosecution defendants violated Speedy Trial Act). denial of a defendant’s proper peremptory challenge required United States v. Verderame, 51 F.3d United States v. Moss, 217 F.3d 426 (6th automatic reversal). 249 (11th Cir.), cert. denied, 516 U.S. Cir. 2000) (Unnecessary delay while 954 (1995) (Trial court denied motion was pending required dismissal Turner v. Marshall, 121 F.3d 1248 (9th repeated, unopposed motions for with prejudice). Cir.), cert. denied, 522 U.S. 1153 (1998) continuance in drug conspiracy case, (Prosecutor’s stated reason for with only 34 days to prepare). *United States v. Ramirez-Cortez, 213 striking a black juror was pretextual). F.3d 1149 (9th Cir. 2000) (Failure to make United States v. Jones, 56 F.3d 581 “ends of justice” findings for speedy trial *Tankleff v. Senkowski, 135 F.3d 235 (5th Cir. 1995) Open-ended exclusion). (2d Cir. 1998) (Race-based peremptory continuance violated the Speedy Trial challenges were not subject to Act). United States v. Hardemann, 249 F.3d 826 harmless error review). (9th Cir. 2001) (Delay to arraign co- United States v. Mejia, 69 F.3d 309 defendant violated speedy trial). *United States v. Ovalle, 136 F.3d (9th Cir. 1995) (Court denied a one- 1092 (6th Cir. 1998) (Plan which day continuance of trial, preventing United States v. Nguyen, 262 F.3d 998 resulted in removal of 1 in 5 blacks live evidence on suppression issue). (9th Cir. 2001) (Court did not explain from panel, violated Jury Selection denial of continuance when defendant and Service Act). United States v. Foxman, 87 F.3d 1220 asked for new counsel). (11th Cir. 1996) (Trial court was United States v. Tucker, 137 F.3d 1016 required to decide whether the United States v. Novation, 271 F.3d 968 (8th Cir. 1998) (Evidence of juror bias government had delayed indictment (11th Cir. 2001) (Four-day mid-trial and misconduct required evidentiary to gain a tactical advantage). continuance for co-defendant’s medical hearing). condition violated defendant’s rights). United States v. Johnson, 120 F.3d Campbell v. Louisiana, 523 U.S. 392 1107 (10th Cir. 1997) (Continuance United States v. Bergfeld, 280 F.3d 486 (1998) (White defendant could because of court conflict violated (5th Cir. 2002) (Five-year government challenge discrimination against black Speedy Trial Act). delay in filing prosecution justified grand jurors). 14 Reversible Errors 2003

United States v. Blotcher, 142 F.3d United States v. Doe, 63 F.3d 121 (2d Cir. during defense closing). 728 (4th Cir. 1998) (Court improperly 1995) (Court summarily denied a denied defendant’s race neutral defendant’s request to close the trial for United States v. Weston, 206 F.3d 9 peremptory challenge). his safety). (D.C. Cir. 2000) (Use of anti-psychotic medication was not supported by Dyer v. Calderon, 151 F.3d 970 (9th *Okonkwo v. Lacy, 104 F.3d 21 (2d Cir.), evidence of danger to defendant or Cir.), cert. denied, 523 U.S. 1033 (1998) cert. denied, 524 U.S. 958 (1998) (Record others). (Juror’s lies raised presumption of did not support closure of proceedings bias). during testimony of undercover officer). United States v. Gomez-Lepe, 207 F.3d 623 (9th Cir. 2000) (Magistrate Judge *United States v. Herndon, 156 F.3d *Pearson v. James, 105 F.3d 828 (2d Cir.), could not preside over polling jury in 629 (6th Cir. 1998) (Denial of hearing cert. denied, 524 U.S. 958 (1998) (Closure felony case). on potentially biased juror). of courtroom denied the right to a public trial). United States v. McFerron, 163 F.3d Confrontation 952 (6th Cir. 1999) (Defendant did not Judd v. Haley, 250 F.3d 1308 (11th Cir. have burden of persuasion on neutral 2001) (Total closure of courtroom United States v. Hamilton, 46 F.3d 271 explanation for peremptory strike). violated right to public trial). (3rd Cir. 1995) (Prosecution witnesses were not unavailable when they could United States v. Serino, 163 F.3d 91 have testified under government (1st Cir. 1999) (Defendant gave valid Jury Trial immunity). neutral reason for striking juror). *United States v. Robertson, 45 F.3d United States v. Lachman, 48 F.3d 586 Jordan v. Lefevre, 206 F.3d 196 (2d 1423 (10th Cir.), cert. denied. 516 U.S. 844 (1st Cir. 1995) (Government exhibits Cir. 2000) (Merely finding strike of (1995) (No evidence that the defendant were properly excluded on grounds of juror was rational does not determine intelligently and voluntarily waived a confusion and waste). whether there was purposeful jury trial). discrimination). United States v. Strother, 49 F.3d 869 *United States v. Ajmal, 67 F.3d 12 (2d (2d Cir. 1995) (A statement, United States v. Gonzalez, 214 F.3d Cir. 1995) (Jurors should not question inconsistent with the testimony of a 1109 (9th Cir. 2000) (Juror who witnesses as a matter of course). government witness, should have equivocated about fairness to sit in been admitted). drug case should have been excused). United States v. Duarte-Higarenda, 113 F.3d 1000 (9th Cir. 1997) (Court failed to United States v. Forrester, 60 F.3d 52 McClain v. Prunty, 217 F.3d 1209 (9th question a non-English speaking (2d Cir. 1995) (Agent improperly Cir. 2000) (Judge must investigate defendant over a jury waiver). commented on the credibility of whether purposeful jury selection another witness). discrimination occurred). United States v. Iribe-Perez, 129 F.3d 1167 (10th Cir. 1997) (Jury was erroneously *United States v. Paguio, 114 F.3d 928 United States v. Nelson, 277 F.3d 164 told that the defendant would plead (9th Cir. 1997) (Missing witness’s self- (2d Cir. 2002) (Defendant cannot be guilty before start of trial). incriminating statement should have forced to trade for consent to seat been admitted). biased juror). *United States v. Saenz, 134 F.3d 697 (5th Cir. 1998) (Court’s questioning of a United States v. Lis, 120 F.3d 28 (4th Fernandez v. Roe, 286 F.3d 1073 (9th witness gave appearance of partiality). Cir. 1997) (Ledger connecting another Cir. 2001) (Statistical disparities in use to the crime was not hearsay). of strikes are prima facie evidence of United States v. Tilghman, 134 F.3d 414 racial discrimination). (D.C. Cir. 1998) (Court’s questioning of United States v. Beydler, 120 F. 3d 985 defendant denied him a fair trial). (9th Cir. 1997) (Unavailable witness’s statement, incriminating the Closure United States v. Mortimer, 161 F.3d 240 defendant, was inadmissible hearsay). (3rd Cir. 1998) (Trial judge was absent 15 Reversible Errors 2003

*United States v. Foster, 128 F.3d 949 foundation for admission of business made prior to the witness having a (6th Cir. 1997) (Exculpatory grand jury records). motive to fabricate). testimony should have been admitted at trial). United States v. Sumner, 204 F.3d 1182 United States v. Tory, 52 F.3d 207 (9th (8th Cir. 2000) (Child’s statement to Cir. 1995) (Witness’ statement that the United States v. Williams, 133 F.3d psychologist was hearsay). robber wore sweat pants was 1048 (7th Cir. 1998) (Statements by inconsistent with prior statement that informant to agent were hearsay). United States v. Byrd, 208 F.3d 592 (7th he wore white pants). Cir. 2000) (Defendant was prevented from United States v. Lowery, 135 F.3d 957 introducing shackles and restraints in United States v. Rivera, 61 F.3d 131 (5th Cir. 1998) (Court erroneously which he was held during alleged assault (2d Cir.), cert. denied, 520 U.S. 1132 excluded defendant’s evidence that on officers). (1997) (Court should not have he encouraged witnesses to tell the admitted an attached factual truth). *LaJoie v. Thompson, 217 F.3d 663 (9th stipulation when allowing defendant Cir. 2000) (Notice requirement of rape to impeach a witness with a plea United States v. Moses, 137 F.3d 894 shield law violated right of agreement). (6th Cir. 1998) (Allowing child-witness confrontation). to testify by video violated right to United States v. Blum, 62 F.3d 63 (2d confrontation). United States v. Rhynes, 218 F.3d 310 Cir. 1995) (Court excluded evidence (4th Cir. 2000) (Sequestered defense relevant to the witness’ motive to United States v. Marsh, 144 F.3d 1229 witness should not have been excluded testify). (9th Cir. 1998) (Admission of for violating rule). complaints by defendant’s customers United States v. Platero, 72 F.3d 806 denied confrontation). Schaal v. Gammon, 233 F.3d 1103 (8th Cir. (10th Cir. 1995) (Court excluded cross 2000) (Admission of videotape of examination of a sexual assault United States v. Mitchell, 145 F.3d 572 victim’s statements violated victim’s relationship with a third (3rd Cir. 1998) (Anonymous note confrontation). party). incriminating defendant was inadmissible hearsay). Agnew v. Leibach, 250 F.3d 1308 (7th Cir. United States v. Landerman, 109 F.3d 2001) (Bailiff was improperly called to 1053 (5th Cir.), modified, 116 F.3d 119 United States v. Cunningham, 145 testify about defendant’s confession). (1997) (The defendant should have F.3d 1385 (D.C. Cir. 1998) (Unredacted been allowed to question a witness tapes violated confrontation). United States v. Wells, 262 F.3d 455 (5th about a pending state charge). Cir. 2001) (Witness could not testify to United States v. Sanchez-Lima, 161 contents of destroyed business records). *United States v. Mulinelli-Nava, 111 F.3d 545 (9th Cir. 1999) (Exclusion of F.3d 983 (1st Cir. 1997) (Court limited deposition denied right to put on Brumley v. Wingard, 269 F.3d 629 (6th cross examination regarding theory of defense). Cir. 2001) (Videotape should not have defense). been admitted without showing witness United States v. Saenz, 179 F.3d 686 was unavailable). United States v. James, 169 F.3d 1210 (9th Cir. 1999) (Defendant was entitled (9th Cir. 1999) (Records of victim’s to show his knowledge of victim’s violence were relevant to self- prior acts of violence to support self- Impeachment defense). defense). *United States v. Cooks, 52 F.3d 101 (5th Schledwitz v. United States, 169 F.3d United States v. Torres-Ortega, 184 Cir. 1995) (Court refused to allow 1003 (6th Cir. 1999) (Defendant could F.3d 1128 (10th Cir. 1999) (Admission government witness to be questioned expose bias of witness involved in of grand jury testimony violated about jeopardy from same charges). investigation). confrontation). United States v. Acker, 52 F.3d 509 (4th United States v. Manske, 186 F.3d 770 United States v. Samaniego, 187 F.3d Cir. 1995) (Prior consistent statements (7th Cir. 1999) (Defendant could cross- 1222 (10th Cir. 1999) (There was no were not admissible because they were examine witness about his threats to 16 Reversible Errors 2003

other witnesses about their Gray v. Maryland, 523 U.S. 185 (1998) misstated burden of proof). testimony). (Bruton prohibited redacted confession, which obviously referred to defendant). United States v. Rudberg, 122 F.3d United States v. Beckman, 222 F.3d 1199 (9th Cir. 1997) (Prosecutor 512 (8th Cir. 2000) (Limiting defense Lilly v. Virginia, 527 U.S. 116 (1999) vouched for a witness’ credibility in cross violated confrontation). (Admission of accomplice confession closing argument). denied confrontation). United States v. Doherty, 233 F.3d United States v. Johnston, 127 F.3d 1275 (11th Cir. 2000) (Court should United States v. McCleskey, 228 F.3d 640 380 (5th Cir. 1997) (Prosecutor have admitted evidence of agent’s (6th Cir. 2000) (Admission of commented on the defendant’s failure threat against defense witness). nontestifying co-defendant’s statement to testify and asked questions denied confrontation). highlighting defendant’s silence). Wilkerson v. Cain, 233 F.3d 886 (5th Cir. 2000) (Limit on questioning eye United States v. Reynolds, 268 F.3d 572 United States v. Wilson, 135 F.3d 291 witness violated confrontation). (8th Cir. 2001) (Evidence against co- (4th Cir.), cert. denied, 523 U.S. 1143 defendant was inadmissible when he (1998) (Prosecutor’s argument that Redmond v. Kingston, 240 F.3d 590 admitted underlying crime). defendant was a murderer prejudiced (7th Cir. 2001) (Defendant was drug case). prohibited from cross examining rape Stapleton v. Wolfe, 288 F.3d 863 (6th Cir. victim about prior false claim). 2002) (Accomplice statements had no *United States v. Vavages, 151 F.3d indicia of reliability). 1185 (9th Cir. 1998) (Prosecutor United States v. Howell, 285 F.3d 1263 coerced defense witness into refusing (10th Cir. 2002) (Court barred to testify). introduction of witnesses’ prior Misconduct felonies without first finding United States v. Maddox, 156 F.3d prejudice). United States v. Flores-Chapa, 48 F.3d 1280 (D.C. Cir. 1999) (Prosecutor’s 156 (5th Cir. 1995) (Prosecutor referred to argument referred to matters not in United States v. Adamson, 291 F.3d excluded evidence). evidence). 606 (9th Cir. 2002) (Restricting cross- examination of key witness was error). *United States v. Kallin, 50 F.3d 689 (9th Agard v. Portuondo, 159 F.3d 1198 (2d Cir. 1995) (Prosecutor commented upon Cir.), cert. denied, 526 U.S. 1016 (1999) the defendant’s failure to come forward (Prosecutor claimed that defendant Co-Defendant’s with an explanation). was less credible without arguing any facts in support). Statements United States v. Gaston-Brito, 64 F.3d 11 (1st Cir. 1995) (Hearing was necessary to United States v. Rodrigues, 159 F.3d *United States v. Montilla-Rivera, 115 determine if an agent improperly gestured 439 (D.C. Cir. 1999) (Improper closing F.3d 1060 (1st Cir. 1997) (Exculpatory toward defense table in front of the jury). by prosecutor). affidavits of codefendants, who claimed Fifth Amendment privilege, United States v. Tenorio, 69 F.3d 1103 United States v. Richardson, 161 F.3d were newly discovered evidence (11th Cir. 1995) (Prosecutor commented 728 (D.C. Cir. 1999) ( Improper remarks regarding a motion for new trial). upon the defendant’s silence). by prosecutor).

*United States v. Glass, 128 F.3d 1398 *United States v. Cannon, 88 F.3d 1495 United States v. Golding, 168 F.3d 700 (10th Cir. 1997) (Introduction of a co- (8th Cir. 1996) (Prosecutor’s reference to (4th Cir. 1999) (Prosecutor threatened defendant’s incriminating statement black defendants, who were not from defense witness with prosecution if violated Bruton). North Dakota, as “bad people,” was not she testified). harmless). *United States v. Peterson, 140 F.3d United States v. Francis, 170 F.3d 546 819 (9th Cir. 1998) (Bruton violation *United States v. Roberts, 119 F.3d 1006 (6th Cir. 1999) (Cumulative acts of occurred). (1st Cir. 1997) (Prosecutor commented on prosecutorial misconduct). defendant’s failure to testify and 17 Reversible Errors 2003

*Smith v. Groose, 205 F.3d 1045 (8th *United States v. Blackstone, 56 F.3d *United States v. Jobson, 102 F.3d 214 Cir.), cert. denied, 531 U.S. 985 (2000) 1143 (9th Cir. 1995) (Drug use was (6th Cir. 1996) (Court failed to (Prosecution argued contradictory improperly admitted in felon in adequately limit evidence of the facts in two different but related possession case). defendant’s gang affiliation). trials). United States v. Moorehead, 57 F.3d 875 United States v. Murray, 103 F.3d 310 United States v. Cabrera, 222 F.3d 590 (9th Cir. 1995) (Evidence that the (3rd Cir. 1997) (Evidence that an (9th Cir. 2000) ( Repeated references defendant was a drug dealer should not alleged murderer had killed before was to “Cuban drug dealers”). have been admitted in firearms case). improperly admitted in a CCE case).

United States v. Beeks, 224 F.3d 741 United States v. Aguilar-Aranceta, 58 *United States v. Fulmer, 108 F.3d (8th Cir. 2000) (Prosecutor’s F.3d 796 (1st Cir. 1995) (Prior 1486 (1st Cir. 1997) (Allowing questioning violated prior in limine misdemeanor drug conviction was more testimony about bombing of federal ruling). prejudicial than probative in a building was prejudicial). distribution case). United States v. LaPage, 231 F.3d 488 United States v. Paguio, 114 F.3d 928 (9th Cir. 2000) (Prosecutor used United States v. McDermott, 64 F.3d 1448 (9th Cir. 1997) (Evidence that the perjured testimony). (10th Cir. 1995) (Evidence that the defendant previously applied for a defendant threatened a witness should loan was prejudicial). *Sandoval v. Calderon, 241 F.3d 765 not have been admitted because it was (9th Cir. 2001) (Prosecution referred to not clear the defendant knew the person Old Chief v. United States, 519 U.S. religious authority for sentence). was a witness). 172 (1997) (Court abused its discretion by refusing to accept the defendant’s United States v. Sigma Intern. Inc., *United States v. Vizcarra-Martinez, 66 offer to stipulate that he was a felon, 244 F.3d 841 (11th Cir. 2001) F.3d 1006 (9th Cir. 1995) (Evidence of in a trial for being a felon in (Prosecutorial misconduct before personal use of methamphetamine at the possession of a firearm). grand jury invalidated indictment). time of the defendant’s arrest was inadmissible). *United States v. Sumner, 119 F.3d United States v. Adkinson, 247 F.3d 658 (8th Cir. 1997) (When defendant 1289 (11th Cir. 2001) (Bad faith *United States v. Elkins, 70 F.3d 81 (10th denied the crime occurred, prior acts inclusion of bank fraud charge Cir. 1995) (Evidence of the defendant’s to prove intent were not admissible). warranted reimbursement of gang membership was improperly attorney’s fees). elicited). United States v. Millard, 139 F.3d 1200 (8th Cir. 1998) Prior drug convictions United States v. Rodriguez, 260 F.3d United States v. Irvin, 87 F.3d 860 (7th erroneously admitted). 416 (5th Cir. 2001) (Prosecutor argued Cir.), cert. denied, 519 U.S. 903 (1997) jury could infer guilt from post-arrest (Court should have excluded testimony United States v. Mulder, 147 F.3d 703 silence). that the defendant was in a motorcycle (8th Cir. 1998) (Bank’s routine practice gang). was irrelevant to fraud prosecution). Killian v. Poole, 282 F.3d 1204 (9th Cir. 2002) (Reliance on perjury in *United States v. Utter, 97 F.3d 509 (11th *United States v. Ellis, 147 F.3d 1131 argument). Cir. 1996) (In arson case, it was error to (9th Cir. 1998) (Testimony about admit evidence that the defendant destructive power of explosives was threatened to burn his tenant’s house or prejudicial). Extraneous that the defendant’s previous residence had burned). *United States v. Merino-Balderrama, Evidence 146 F.3d 758 (9th Cir. 1998) *United States v. Lecompte, 99 F.3d 274 (Pornographic films should not have United States v. Rodriguez, 45 F.3d (8th Cir. 1996) (Evidence of prior contact been displayed in light of defendant’s 302 (9th Cir. 1995) (Evidence of flight with alleged victims did not show plan or offer to stipulate). a month after crime was inadmissible preparation). to prove an intent to possess). United States v. Spinner, 152 F.3d 950 18 Reversible Errors 2003

(D.C. Cir. 1998) (Letter containing Garceau v. Woodford, 281 F.3d 919 (9th allowed to testify on the defendant’s evidence of prior bad acts should not Cir. 2001) (Jury instruction drew attention inability to form intent). have been admitted). to prior unrelated crimes). United States v. Velasquez, 64 F.3d United States v. Polasek, 162 F.3d 878 844 (3rd Cir. 1995) (Defense expert (5th Cir. 1999) (Convictions of Identification should have been allowed to testify defendant’s associates should not on the limitations of handwriting have been admitted). United States v. Emanuele, 51 F.3d 1123 analysis). (3rd Cir. 1995) (Identification, made after *United States v. Jean-Baptiste, 166 seeing the defendant in court, and after a Rupe v. Wood, 93 F.3d 1434 (9th Cir.), F.3d 102 (2d Cir. 1999) (Admission of failure to identify him before, should cert. denied, 519 U.S. 1142 (1997) prior bad act was plain error absent have been suppressed). (Exclusion of a witness’ failed evidence it actually occurred). polygraph results denied due *United States v. Hairston, 64 F.3d 491 process). United States v. Lawrence, 189 F.3d (9th Cir. 1995) (Alibi instruction was 838 (9th Cir. 1999) (Testimony required when evidence of alibi was United States v. Hall, 93 F.3d 1337 (7th regarding defendant’s marriage was introduced in the government’s case). Cir. 1996) (Expert testimony that the more prejudicial than probative). defendant had a disorder that may *Lyons v. Johnson, 99 F.3d 499 (2d Cir. have caused him to make a false United States v. Heath, 188 F.3d 916 1996) (Court denied the defendant the confession should have been (7th Cir. 1999) (Previous arrest was right to display a witness in support of a admitted). not admissible prior bad act). misidentification defense). Calderon v. U.S. District Court, 107 United States v. Anderson, 188 F.3d United States v. Montgomery, 100 F.3d F.3d 756 (9th Cir.), cert. denied, 522 886 (7th Cir. 1999) (Prior bad act was 1404 (8th Cir. 1996) (Codefendants U.S. 907 (1997) (CJA funds for expert more than 10 years old). should have been required to try on could be used to exhaust a state clothing, after defendant had to, when claim). United States v. Walton, 217 F.3d 443 the government put ownership at issue). (7th Cir. 2000) (Evidence of prior *United States v. Morales, 108 F.3d unsolved theft was irrelevant). 1031 (9th Cir. 1997) (The court should Expert not have excluded a defense expert on United States v. Jimenez, 214 F.3d bookkeeping). 1095 (9th Cir. 2000) (Description of Testimony defendant’s prior conviction *Lindh v. Murphy, 124 F.3d 899 (7th involving firearm was not harmless). *United States v. Boyd, 55 F.3d 667 (D.C. Cir.), cert. denied, 522 U.S. 1069 (1998) Cir. 1995) (Officer relied upon improper (Defendant was not allowed to United States v. Varoudakis, 233 F.3d hypothetical in drug case). examine the state’s psychiatrist about 113 (1st Cir. 2000) (Evidence of allegations of sexual improprieties previous fire was more prejudicial United States v. Shay, 57 F.3d 126 (1st with patients). than probative). Cir. 1995) (Defense expert should have been allowed to explain that the *United States v. Word, 129 F.3d 1209 United States v. Grimes, 244 F.3d 375 defendant had a disorder that caused him (11th Cir. 1997) (Lay testimony of (5th Cir. 2001) (Narratives found on to lie). abuse to defendant was admissible). defendant’s computer should not have been introduced in child porn United States v. Posado, 57 F.3d 428 (5th United States v. Dixon, 185 F.3d 393 case). Cir. 1995) (Per se rule prohibiting (5th Cir. 1999) (Court improperly polygraph evidence was abolished by refused instruction on insanity based United States v. Haywood, 280 F.3d Daubert). upon expert testimony). 7159 (6th Cir. 2002) (Evidence of previous possession had no bearing United States v. Childress, 58 F.3d 693 United States v. Barnette, 211 F.3d 803 on alleged sale). (D.C. Cir.), cert. denied, 516 U.S. 1098 (4th Cir. 2000) ( Defendant was (1996) (Defense expert should have been prevented from presenting expert to 19 Reversible Errors 2003

answer government’s rebuttal expert was predisposed). closing). testimony). United States v. Bradfield, 113 F.3d 515 *United States v. Talbott, 78 F.3d 1183 *United States v. Smithers, 212 F.3d (5th Cir. 1997) (Evidence supported an (7th Cir. 1996) (Jury instruction could 306 (6th Cir. 2000) (Court excluded instruction on entrapment). not shift the burden to the defendant expert on identification without a on the issue of self-defense). hearing). *United States v. Duran, 133 F.3d 1324 (10th Cir. 1998) (Entrapment instruction *United States v. Otis, 127 F.3d 829 *United States v. Velarde, 214 F.3d failed to place burden on government). (9th Cir. 1997) (Duress instruction was 1204 (10th Cir. 2000) (Court failed to omitted). make reliability determination about United States v. Thomas, 134 F.3d 975 government’s expert testimony). (9th Cir. 1998) (Defendant may present *United States v. Benally, 146 F.3d good prior conduct to support 1232 (10th Cir. 1998) (Defendant was United States v. Henke, 222 F.3d 633 entrapment defense). entitled to instructions on self- (9th Cir. 2000) (Lay witness could not defense and lesser included offense). testify to what defendant knew about United States v. Sligh, 142 F.3d 761 (4th regulatory scheme). Cir. 1998) (Court failed to give instruction United States v. Sanchez-Lima, 161 on entrapment). F.3d 545 (9th Cir. 1999) (Self-defense *United States v. Vallejo, 237 F.3d instruction should have been given). 1008 (9th Cir. 2001) (Exclusion of *United States v. Burt, 143 F.3d 1215 (9th defense experts regarding Cir. 1998) (Entrapment instruction failed United States v. Smith, 217 F.3d 746 defendant’s ability to communicate in to place proper burden on government). (9th Cir. 2000) (Court failed to instruct English). upon defendant’s theory of the case). United States v. Gamache, 156 F.3d 1 (1st United States v. Watson, 260 F.3d 301 Cir. 1998) (Jury should have been United States v. Crowley, 236 F.3d 104 (3rd Cir. 2001) (Drug agents could not instructed on entrapment). (2d Cir. 2000) (Jury should have been give opinion about defendant’s charged on voluntary intoxication). intent). United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000) ( Defendant was entrapped Chia v. Cambra, 281 F.3d 1032 (9th Cir. United States v. McGowan, 274 F.3d as matter of law). 2002) (Statements made by alleged co- 1251 (9th Cir. 2001) (Testimony about conspirator were crucial to defense). nature of drug trafficking *United States v. Brooks, 215 F.3d 842 organizations was inadmissible). (8th Cir. 2000) (Drug defendant was entrapped as matter of law). Jury United States v. Varela-Rivera, 279 F.3d 1174 (9th Cir. 2002) (Erroneous Instructions admission of testimony about general Defenses operation of drug trafficking). Smith v. Singletary, 61 F.3d 815 (11th United States v. Tory, 52 F.3d 207 (9th Cir.), cert. denied, 516 U.S. 1140 (1996) United States v. Pineda-Torres, 287 Cir. 1995) (Defense was prevented from (Court failed to give mitigating F.3d 860 (9th Cir. 2002) (Error to allow arguing that an absence of evidence instruction in a capital case). expert testimony on structure of drug implied that evidence did not exist). organizations). *United States v. Birbal, 62 F.3d 456 United States v. Ruiz, 59 F.3d 1151 (11th (2nd Cir. 1995) (Jurors were instructed Cir.), cert. denied, 516 U.S. 1133 (1996) they “may” acquit, rather than they Entrapment (Defendant has the right to have the jury “must” acquit, if the government did instructed on his theory of defense). not meet its burden). United States v. Reese, 60 F.3d 660 (9th Cir. 1995) (Entrapment instruction United States v. Hall, 77 F.3d 398 (11th *United States v. Ahmad, 101 F.3d 386 failed to tell the jury that the Cir. 1996) (Defendant’s counsel was (5th Cir. 1996) (Jury instructions in a government must prove beyond a improperly prohibited from addressing pollution case implied strict liability reasonable doubt that the defendant general principles of reasonable doubt in rather than the requirement of 20 Reversible Errors 2003

knowledge). 784 (10th Cir. 2001) (Failure to instruct on United States v. Hall, 116 F.3d 1253 uncorroborated accomplice testimony). (8th Cir. 1997) (Exposure of jury to United States v. Rodgers, 109 F.3d unrelated, but prejudicial matters, 1138 (6th Cir. 1997) (If a court allows a United States v. Brown, 287 F.3d 965 required new trial). jury to review trial testimony, there (10th Cir. 2002) (Defendant should have must be a cautionary instruction not been given instruction on lesser included United States v. Keating, 147 F.3d 895 to place upon it undue emphasis). offense). (9th Cir. 1998) (Reasonable probability of juror prejudice required new trial). *United States v. Bancalari, 110 F.3d 1425 (9th Cir. 1997) (Instruction Deliberations United States v. Lampkin, 159 F.3d 607 omitted the element of intent). (D.C. Cir. 1999) (Jury was allowed to United States v. Berroa, 46 F.3d 1195 consider tapes not in evidence). *United States v. Doyle, 130 F.3d 523 (D.C. Cir. 1995) (Allen charge varied from (2d Cir. 1997) (Erroneous instructions ABA standard). United States v. Beard, 161 F.3d 1190 stated that presumption of innocence (9th Cir. 1999) (Error to substitute and reasonable doubt were to protect United States v. Harber, 53 F.3d 236 (9th alternates for jurors after deliberations only the innocent). Cir. 1995) (Case agent’s report was taken began). into the jury room). United States v. Wilson, 133 F.3d 251 United States v. Spence, 163 F.3d 1280 (4th Cir. 1997) (Jury instructions did United States v. Burgos, 55 F.3d 933 (4th (11th Cir. 1999) (Juror dismissed not adequately impose burden of Cir. 1995) (Allen charge asked jurors to during deliberations without just proving knowledge). think about giving up firmly held beliefs). cause).

*United States v. Romero, 136 F.3d *United States v. Araujo, 62 F.3d 930 (7th United States v. Eastern Medical 1268 (10th Cir. 1998) (“Law of the Cir. 1995) (Verdict was taken from eleven Billing, Inc., 230 F.3d 600 (3rd Cir. case” required element named in jury jurors when the twelfth was delayed by 2000) (Allen charge was coercive). instruction to be proven). car trouble). United States v. Lloyd, 269 F.3d 228 *United States v. Rossomando, 144 *United States v. Ottersburg, 76 F.3d 137 (3rd Cir. 2001) (Court overstepped F.3d 197 (2d Cir. 1998) (Ambiguous (7th Cir.), clarified, 81 F.3d 657 (1996) authority to inquire into juror’s jury instruction misled jurors). (Plain error to allow alternate jurors to decision). deliberate with the jury). United States v. Lampkin, 159 F.3d United States v. McElhiney, 275 F.3d 607 (D.C. Cir. 1999) (Jury improperly *United States v. Manning, 79 F.3d 212 928 (10th Cir. 2001) (Allen instruction instructed that government could not (1st Cir.), cert. denied, 519 U.S. 853 (1996) was coercive). prosecute juvenile witnesses). (Court should have given a “yes or no” answer to a deadlocked jury’s question, United States v. Prawl, 168 F.3d 622 rather than refer them to the testimony). Variance (2d Cir. 1999) (Court refused to instruct jury not to consider co- United States v. Berry, 92 F.3d 597 (7th United States v. Gilbert, 47 F.3d 1116 defendants guilty plea). Cir. 1996) (Jury improperly considered a (11th Cir.), cert. denied, 516 U.S. 851 transcript, rather than the actual tape). (1995) (Proof of failure to comply with Jenkins v. Huchinson, 221 F.3d 679 a directive of a federal officer was in (4th Cir. 2000) (Reasonable doubt United States v. Benedict, 95 F.3d 17 (8th variance with the original charge). instruction improperly indicated it Cir. 1996) (Trial court should not have was only advisory). accepted partial verdicts). United States v. Johansen, 56 F.3d 347 (2d Cir. 1995) (Variance when none of United States v. Chanthadara, 230 United States v. Thomas, 116 F.3d 606 the conspiracies alleged were proven). F.3d 1237 (10th Cir. 2000) (Judge said (2d Cir. 1997) (Juror should not have that defense was a “smoke screen”). been dismissed when he did not admit to *United States v. Tsinhnahijinnie, 112 refusing to follow the law during F.3d 988 (9th Cir. 1997) (Fatal variance *United States v. Gardner, 244 F.3d deliberations). between pleading and proof of date of 21 Reversible Errors 2003

offense). extrajudicial statements violated free United States v. Wilson, 182 F.3d 737 speech). (10th Cir. 1999) (Insufficient evidence *United States v. Mohrbacher, 182 of child pornography shipped in F.3d 1041 (9th Cir. 1999) (Variance McCoy v. Stewart, 282 F.3d 626 (9th Cir. interstate commerce). between charge of transporting child 2002) (Gang members statements to one pornography and proof of mere another were protected by First *United States v. Spinner, 180 F.3d receipt). Amendment). 514 (3rd Cir. 1999) (Indictment failed to allege element of interstate commerce). United States v. Ramirez, 182 F.3d 544 (7th Cir. 1999) (Variance between Interstate United States v. Causey, 185 F.3d 407 charge and proof in firearm case). (5th Cir.), cert. denied, 530 U.S. 1277 Commerce (2000) ( No federal nexus shown United States v. Shipsey, 190 F.3d regarding communication). 1081 (9th Cir. 1999) (Court’s United States v. Box, 50 F.3d 345 (5th instruction to jury constructively Cir.), cert. denied, 516 U.S. 714 (1996) Jones v. United States, 529 U.S. 848 amended indictment). (Extortion of interstate travelers did not (2000) (Residence that was not used involve interstate commerce). for commercial purpose did not United States v. Pigee, 197 F.3d 879 involve interstate commerce in arson (7th Cir. 1999) (Jury instruction *United States v. Cruz, 50 F.3d 714 (9th case). constructively amended indictment). Cir. 1995) (Shipment of firearm in interstate commerce must occur after the *United States v. Wang, 222 F.3d 234 United States v. McDermott, 245 F.3d firearm is stolen). (6th Cir. 2000) (Robbery of cash did 133 (2d Cir. 2001) (Variance between not have sufficient impact on conspiracy charged and proof at trial). *United States v. Quigley, 53 F.3d 909 interstate commerce). (8th Cir. 1995) (Liquor store robbery did not affect interstate commerce). United States v. King, 227 F.3d 732 Speech / (6th Cir. 2000) (Arson did not affect United States v. Grey, 56 F.3d 1219 (10th interstate commerce). Assembly Cir. 1995) (Use of currency did not involve interstate commerce). United States v. Corp, 236 F.3d 325 United States v. Popa, 187 F.3d 672 (6th Cir. 2001) (Photos of child taken (D.C. Cir. 1999) (Conviction for United States v. Lopez, 514 U.S. 549 by defendant did not have sufficient harassing AUSA with racial epithets (1995) ("Gun-free school zone" law found connection to interstate commerce). violated first amendment). unconstitutional). United States v. Johnson, 246 F.3d United States v. Baugh, 187 F.3d 1037 *United States v. Barone, 71 F.3d 1442 749 (5th Cir. 2001) (Plea lacked factual (9th Cir. 1999) (Assembly at national (9th Cir. 1995) (False checks did not basis for connection to interstate park could not be conditioned on involve interstate commerce). commerce). promise not to trespass). United States v. Denalli, 90 F.3d 444 (11th United States v. Carr, 271 F.3d 172 (4th United States v. Frandsen, 212 F.3d Cir. 1996) (Arson of neighbor’s home did Cir. 2001) (Admission to arson of 1231 (11th Cir. 2000) (Requiring permit not involve interstate commerce). mobile home that served as a church to make public expression of views did not satisfy interstate commerce was illegal prior restraint). *United States v. Gaydos, 108 F.3d 505 prong). (3rd Cir. 1997) (Insufficient evidence that United States v. Poocha, 259 F.3d arson involved interstate commerce). United States v. Turner, 272 F.3d 380 1077 (9th Cir. 2001) (Use of profanity (6th Cir. 2001) (Robbery of individual to a park ranger was not disturbing United States v. Izydore, 167 F.3d 213 who ran illegal lottery did not affect the peace). (5th Cir. 1999) (No evidence that phone interstate commerce). calls crossed state lines for wire fraud United States v. Scarfo, 263 F.3d 80 interstate nexus). United States v. Lynch, 282 F.3d 1049 (3d Cir. 2001) (Prohibiting counsel’s (9th Cir. 2001) (Robbery of an 22 Reversible Errors 2003

individual did not affect interstate conspiracy). United States v. Morillo, 158 F.3d 18 commerce). (1st Cir. 1999) (Insufficient evidence of United States v. Martinez, 83 F.3d 371 drug conspiracy). (11th Cir.), cert. denied, 519 U.S. 998 Conspiracy (1997) (Defendant’s conviction for United States v. Dekle, 165 F.3d 826 conspiracy to possess cocaine was (11th Cir. 1999) (Insufficient evidence United States v. Newton, 44 F.3d 913 reversed because there was no evidence that doctor conspired to illegally (11th Cir.), cert. denied, 516 U.S. 857 beyond defendant’s intent to help distribute drugs). (1995) (Leasing residence for a drug coconspirators steal money). dealer did not prove the defendant’s United States v. Mercer, 165 F.3d 1331 participation in a conspiracy). *United States v. Thomas, 114 F.3d 403 (11th Cir. 1999) (Insufficient evidence (3rd Cir. 1997) (Insufficient evidence of a of a drug conspiracy). United States v. Lluesma, 45 F.3d 408 conspiracy, when it was not shown that (11th Cir. 1995) (Proof of conspiracy defendant knew cocaine was in bag he *United States v. Vaghela, 169 F.3d to export stolen vehicles was was to retrieve). 729 (11th Cir. 1999) (Insufficient insufficient against defendant who evidence of conspiracy to obstruct did odd jobs for midlevel United States v. Jensen, 141 F.3d 830 (8th justice). conspirator). Cir. 1998) (Insufficient evidence of drug conspiracy). United States v. Torres-Ramirez, 213 United States v. Flores-Chapa, 48 F.3d F.3d 978 (7th Cir. 2000) (Purchase of 156 (5th Cir. 1995) (Defendant’s United States v. Paul, 142 F.3d 836 (5th drugs and knowledge of conspiracy beeper and personal use of drugs was Cir. 1998) (Insufficient evidence of did not make defendant a co- not proof of conspiracy). conspiracy to import). conspirator).

United States v. Lewis, 53 F.3d 29 (4th United States v. Toler, 144 F.3d 1423 *United States v. Estrada-Macias, 218 Cir. 1995) (Court failed to instruct the (11th Cir. 1998) (Insufficient evidence F.3d 1064 (9th Cir. 2000) (Mere jury that conspiring with a that defendant participated in presence and knowledge of a government agent alone required an conspiracy). conspiracy were insufficient to acquittal). convict). United States v. Thomas, 150 F.3d 743 United States v. Ross, 58 F.3d 154 (7th Cir. 1998) (Defendant was entitled to *United States v. Fuchs, 218 F.3d 957 (5th Cir.), cert. denied, 516 U.S. 954 instruction that buyer/seller relationship (9th Cir. 2000) (No instruction that (1995) (Defendant was not a is not itself a conspiracy). conspiracy must have occurred during conspirator merely because he sold statute of limitations). drugs at same location as United States v. Garcia, 151 F.3d 1243 conspirators). (9th Cir. 1998) (Gang relationship alone United States v. Rivera, 273 F.3d 751 did not support conspiracy). (7th Cir. 2001) (Mere buyer/seller United States v. Kim, 65 F.3d 123 (9th relationship was not conspiracy). Cir. 1995) (To be guilty of conspiracy, United States v. Gore, 154 F.3d 34 (2d Cir. the defendant must have known of 1998) (Buyer/seller relationship did not United States v. Garcia-Torres, 280 the illegal structuring). establish conspiracy). F.3d 1 (1st Cir. 2002) (Defendant involved in kidnapping and murder United States v. Lopez-Ramirez, 68 *United States v. Idowu, 157 F.3d 265 did not know he was aiding drug F.3d 438 (11th Cir. 1995) (Insufficient (3rd Cir. 1999) (Insufficient evidence that conspiracy). evidence of conspiracy as to defendant knew purpose of drug defendant who was present in home conspiracy). United States v. Thomas, 284 F.3d 746 where 65 kilos of cocaine was (7th Cir. 2002) (Two sales did not delivered and then seized). United States v. Meyer, 157 F.3d 1067 prove membership in conspiracy). (7th Cir.), cert. denied, 526 U.S. 1070 United States v. Palazzolo, 71 F.3d (1999) (Court should have instructed that United States v. Cruz, 285 F.3d 692 1233 (6th Cir. 1995) (Verdict form mere buyer/seller relationship did not (8th Cir. 2002) (Insufficient evidence failed to distinguish the object of the establish conspiracy). of conspiracy to distribute 23 Reversible Errors 2003

methamphetamine). *United States v. Rogers, 94 F.3d 1519 United States v. Perez, 129 F.3d 1340 (11th Cir.), cert.denied, 522 U.S. 252 (9th Cir. 1997) (Jury should have been (1998) (Government failed to prove a required to decide the type of firearm). Firearms defendant knew that he possessed a fully automatic weapon). United States v. Graves, 143 F.3d 1185 Staples v. United States, 511 U.S. (9th Cir. 1998) (Accessory to felon in (1994) (When defendant was *United States v. Atcheson, 94 F.3d 1237 possession had to know codefendant prohibited from possessing a (9th Cir.), cert. denied, 519 U.S. 1140 was a felon and possessed firearm). particular kind of firearm, it must be (1997) (Each §924 (c) conviction must be proven he knew that he possessed tied to a separate predicate crime). United States v. Spinner, 152 F.3d 950 that type of firearm). (D.C. Cir. 1998) (Failure to show United States v. Indelicato, 97 F.3d 627 firearm was semiautomatic assault United States v. Herron, 45 F.3d 340 (1st Cir.), cert. denied, 522 U.S. 835 (1997) weapon). (9th Cir. 1995) (Defendant whose civil (Defendant who did not lose his civil rights were restored was not rights could not be felon in possession). United States v. Benboe, 157 F.3d prohibited from possessing a firearm). 1181 (9th Cir. 1999) (Firearm *United States v. Casterline, 103 F.3d 76 conviction not supported by United States v. Caldwell, 49 F.3d 251 (9th Cir.), cert. denied, 522 U.S. 835 (1997) evidence). (6th Cir. 1995) (Licensed dealer who (Felon in possession charge may not sold firearm away from business was proven solely by ownership). United States v. Sanders,157 F.3d 302 not guilty of unlicensed sale). (5th Cir. 1999) (Insufficient evidence United States v. Paul, 110 F.3d 869 (2d that defendant carried firearm). United States v. Anderson, 59 F.3d Cir. 1997) (Court failed to give duress 1323 (D.C. Cir.), cert. denied, 516 U.S. instruction in a felon in possession case). United States v. Mount, 161 F.3d 675 999 (1995) (Multiple §924 (c) (11th Cir. 1999) (Weapon found in convictions must be based on United States v. Taylor, 113 F.3d 1136 stairwell was not carried). separate predicate offenses). (10th Cir. 1997) (Firearm found in shared home was not shown to be possessed by United States v. Gilliam, 167 F.3d 628 Bailey v. United States, 516 U.S. 137 the defendant). (D.C.), cert. denied, 526 U.S. (1999) (1995) (Passive possession of firearm (Failed to prove prior conviction in was insufficient to prove "use" of United States v. Stephens, 118 F.3d 479 felon in possession). firearm during drug trafficking crime). (6th Cir. 1997) (Separate caches of cocaine possessed on the same day, did *United States v. Aldrich, 169 F.3d United States v. Kelly, 62 F.3d 1215 not support two separate gun 526 (8th Cir. 1999) (Vacating related (9th Cir. 1995) (Defendant whose civil enhancements). gun count required entire new trial on rights were restored was not others). prohibited from possessing a firearm). *United States v. Westmoreland, 122 F.3d 431 (7th Cir. 1997) (Agent’s *United States v. Meza-Corrales, 183 *United States v. Hayden, 64 F.3d 126 presentation of inoperable firearm to F.3d 1116 (9th Cir. 1999) (Felon had (3rd Cir. 1995) (Defendant should defendant, immediately before arrest, did civil rights restored and could have been allowed to introduce not support possession of a firearm in possess firearms). evidence of his low intelligence and relation to drug crime). illiteracy to rebut allegations that he United States v. Martin, 180 F.3d 965 knew he was under indictment when United States v. Gonzalez, 122 F.3d 1383 (8th Cir. 1999) (Insufficient evidence buying a firearm). (11th Cir. 1997) (Evidence did not support of constructive possession of a possession of a firearm while a fugitive firearm). United States v. Edwards, 90 F.3d 199 from justice). (7th Cir. 1996) (Defendant must be United States v. Fowler, 198 F.3d 808 shown to know his shotgun is shorter United States v. Norman, 129 F.3d 1393 (11th Cir. 1999) (Restoration of rights than 18 inches in length in order to be (10th Cir. 1997) (Felon whose civil rights by state allowed firearms possession). liable for failure to register the had been restored was not illegally in weapon). possession of firearm). United States v. Howard, 214 F. 3d 361 24 Reversible Errors 2003

(2d Cir. 2000) ( Jury could not infer later changed). United States v. Valerio, 48 F.3d 58 defendant knew firearm was stolen (1st Cir. 1995) (Insufficient evidence merely because he was felon, or that United States v. Fix, 264 F.3d 532 (5th Cir. that the drugs were intended for firearm was found next to one with 2001) (Granting new trial for state distribution). obliterated serial number). conviction removed disability to possess firearm). *United States v. Andujar, 49 F.3d 16 *United States v. Adams, 214 F.3d (1st Cir. 1995) (There was no more 724 (6th Cir. 2000) (Simultaneous evidence than mere presence). possession of firearm and ammunition Extortion may result in only one conviction). United States v. Jones, 49 F.3d 628 *United States v. Tomblin, 46 F.3d 1369 (10th Cir. 1995) (Inferences derived United States v. Coleman, 208 F.3d (5th Cir. 1995) (Private citizen did not act from standing near open trunk did not 786 (9th Cir. 2000) (Insufficient under color of official right). prove knowledge). evidence that defendant knew co- defendant had a firearm for armed *United States v. Scotti, 47 F.3d 1237 (2d *United States v. Polk, 56 F.3d 613 bank robbery conviction). Cir. 1995) (Facilitating payment of a debt (5th Cir. 1995) (Use of the defendant’s was not extortion). car and home were insufficient to United States v. Mason, 233 F.3d 619 show participation). (D.C. Cir. 2000) (Felon could get *United States v. Delano, 55 F.3d 720 (2d instruction that firearm was briefly Cir. 1995) (Services or labor were not United States v. Horsley, 56 F.3d 50 possessed for legal purpose). property within the meaning of a statute (11th Cir. 1995) (Distribution of used as a predicate for RICO). cocaine is lesser included offense of *United States v. Hishaw, 235 F.3d distribution of cocaine within a 1,000 565 (10th Cir. 2000) (Insufficient *United States v. Wallace, 59 F.3d 333 feet of a school, and the jury should evidence that defendant possessed (2d Cir. 1995) (Demanding payment from be charged accordingly). firearm found under his car seat). fraudulent check scheme was not extortion). *United States v. Kitchen, 57 F.3d 516 United States v. Sanders, 240 F.3d (7th Cir. 1995) (Momentarily picking 1279 (10th Cir. 2001) (Evidence did not United States v. Allen, 127 F.3d 260 (2d up a kilo for inspection was not prove defendant knew that weapon Cir. 1997) (Insufficient evidence of possession). had silencer). extortionate credit when terms of loan were consensual). United States v. Kearns, 61 F.3d 1422 United States v. Finley, 245 F.3d 199 (9th Cir. 1995) (Brief sampling of (2d Cir. 2001) (Single gun could not be United States v. Houston, 217 F.3d 1204 marijuana was not possession). used for two possessions during a (9th Cir. 2000) (No specific finding of drug trafficking crime). express threat of death). *United States v. Lucien, 61 F.3d 366 (5th Cir. 1995) (Instruction on simple United States v. Atkins, 276 F.3d 1141 possession should have been given (9th Cir. 2001) (Evidence was Drugs in a drug distribution case). insufficient that defendant had validly waived counsel to domestic violence United States v. Jones, 44 F.3d 860 (10th *United States v. Applewhite, 72 F.3d charge that was basis for federal Cir. 1995) (Car passenger was not shown 140 (D.C. Cir.), cert. denied, 517 U.S. firearms offense). to have knowledge of the drugs). 1227 (1996) (Government failed to prove distribution within a 1000 feet of United States v. Laskie, 258 F.3d 1047 *United States v. Johnson, 46 F.3d 1166 a school). (9th Cir. 2001) (“Honorable discharge” (D.C. Cir. 1995) (Government failed to of drug offense in Nevada counts as a prove distribution within 1000 feet of a United States v. Derose, 74 F.3d 1177 set aside of the prior conviction). school). (11th Cir. 1996) (Insufficient evidence that the defendant took possession of United States v. Osborne, 262 F.3d United States v. Medjuck, 48 F.3d 1107 marijuana when he did not have key 486 (5th Cir. 2001) (Civil rights were (9th Cir. 1995) (Government failed to to car where drugs were stored). restored even though state law was show a nexus to U.S. territory). 25 Reversible Errors 2003

United States v. Baron, 94 F.3d 1312 *United States v. Ortega-Reyna, 148 F.3d that defendant possessed drugs in (9th Cir.), cert. denied, 519 U.S. 1047 540 (5th Cir. 1998) (Insufficient evidence bag found in cab). (1996) (Court committed plain error by that drugs hidden in borrowed truck were giving a deliberate ignorance defendant’s). United States v. Bennafield, 287 F.3d instruction when there was no 320 (4th Cir. 2002) (Simultaneous evidence that the defendant knew, or *United States v. Quintanar, 150 F.3d 902 possession of multiple packages was avoided learning, of secreted drugs). (8th Cir. 1998) (No evidence that a single crime). defendant exercised control over United States v. Wozniak, 126 F.3d contraband). 105 (2d Cir. 1997) (Charge on CCE / RICO marijuana impermissibly amended United States v. Valadez-Gallegos, 162 indictment alleging cocaine and F.3d 1256 (10th Cir. 1999) (Passenger was *United States v. Barona, 56 F.3d 1087 methamphetamine). not linked to contraband in vehicle). (9th Cir.), cert. denied, 516 U.S. 1092 (1996) (Insufficient to find a CCE when *United States v. Hunt, 129 F.3d 739 there were persons who could not be (5th Cir. 1997) (There was insufficient United States v. Edwards, 166 F.3d 1362 legally counted as supervisees). evidence of an intent to distribute). (11th Cir. 1999) (Insufficient evidence of drug possession where defendant merely United States v. Witek, 61 F.3d 819 United States v. Soto-Silva, 129 F.3d picked up package). (11th Cir.), cert. denied, 516 U.S. 1060 340 (5th Cir. 1997)(Deliberate (1996) (Mere buyer-seller relationship ignorance instruction was not United States v. Orduno-Aguilera, 183 did not satisfy management warranted for charge of maintaining F.3d 1138 (9th Cir. 1999) (Insufficient requirement for conviction of premises for drug distribution). evidence that substance was illegal engaging in continuing criminal steroid). enterprise). United States v. Brito, 136 F.3d 397 (5th Cir. 1998) (Evidence that United States v. Monger, 185 F.3d 574 United States v. Russell, 134 F.3d 171 defendant was asked to find drivers (9th Cir. 1999) (Court should have (3rd Cir. 1998) (CCE instruction did not prove constructive instructed on lesser offense of simple omitted unanimity requirement). possession of hidden marijuana). possession). United States v. To, 144 F.3d 737 (11th United States v. Lombardi,138 F.3d United States v. Garcia-Sanchez, 189 F.3d Cir. 1998) (Insufficient evidence of 559 (5th Cir. 1998) (Evidence did not 1143 (9th Cir. 1999) (Drug quantities not RICO and Hobbs Act violations). support conviction for using juvenile supported by evidence where defendant to commit drug offense). did not agree to sell from specific United States v. Polanco, 145 F.3d 536 location). (2d Cir.), cert. denied, 529 U.S. 1071 United States v. Leonard, 138 F.3d 906 (1999) (Insufficient evidence that (11th Cir. 1998) (Insufficient evidence United States v. Owusu, 199 F.3d 329 (6th defendant murdered victim to maintain that passenger of vehicle possessed Cir. 2000) (Insufficient evidence where position in CCE). drugs or gun hidden in car). defendant did not arrange for distribution). Richardson v. United States, 526 U.S. United States v. Sampson, 140 F.3d 813 (1999) (Jury must agree on specific 585 ( 4th Cir. 1998) (Insufficient United States v. Bryce, 208 F.3d 346 (2d violations). evidence that drug offense occurred Cir. 2000) (Uncorroborated admissions within 1000 feet of a playground or were insufficient to establish possession United States v. Frega, 179 F.3d 793 public housing). or distribution). (9th Cir.), cert. denied, 528 U.S. 1191 (2000) (Court’s instruction failed to United States v. Delagarza-Villarreal, United States v. Corral-Gastelum, 240 identify potential predicate acts in 141 F.3d 133 (5th Cir. 1997) F.3d 1181 (9th Cir. 2001) (Mere proximity RICO case). (Insufficient evidence of possession to drugs did not prove possession). of marijuana where defendant never United States v. Glover, 179 F.3d 1300 took control). United States v. Huerto-Orozco, 272 F.3d (11th Cir. 1999) (Role as organizer or 561 (8th Cir. 2001) (Insufficient evidence leader must be based on managing 26 Reversible Errors 2003

persons, not merely assets). *United States v. Valentine, 63 F.3d 459 fraudulent claims were insufficient (6th Cir. 1995) (Government agent must proof of mail fraud). United States v. McSwain, 197 F.3d convert more that $5000 in a single year 472 (10th Cir. 1999) (Conspiracy to to violate 18 U.S.C. §666). *United States v. Todd, 108 F.3d 1329 manufacture and distribute are lesser (11th Cir. 1997) (Defendant was offenses of CCE). *United States v. Campbell, 64 F.3d 967 improperly prohibited from (5th Cir. 1995) (Bank officers did not introducing evidence that employees United States v. Brown, 202 F.3d 691 cause a loss to the bank). implicitly agreed that pension funds (4th Cir. 2000) (Omission of could be used to save the company). instruction requiring unanimity on United States v. Lewis, 67 F.3d 225 (9th specific violations reversed CCE Cir. 1995) (State chartered foreign bank *United States v. Cochran, 109 F.3d conviction). was not covered by the bank fraud 660 (10th Cir. 1997) (There was statute). insufficient proof of mail fraud United States v. Desena, 260 F.3d 150 without evidence of (2d Cir. 2001) (Talk of “war” and United States v. Johnson, 71 F.3d 139 misrepresentation). “grabbing shirts” did not support (4th Cir. 1995) (Court improperly CCE). instructed the jury that a credit union *United States v. Parsons, 109 F.3d was federally insured). 1002 (4th Cir. 1997) (Money that defendant legitimately spent as postal Fraud / Theft United States v. Mueller, 74 F.3d 1152 employee could not be counted (11th Cir. 1996) (Filing a misleading toward fraud). United States v. Cannon, 41 F.3d 1462 affidavit to delay a civil proceeding (11th Cir.), cert. denied, 516 U.S. 823 involving a bank was not bank fraud). *United States v. Grossman, 117 F.3d (1995) (Proof of false documents to 255 (5th Cir. 1997) (Personal use of elicit payment on government United States v. Morris, 81 F.3d 131 (11th funds from business loan was not contracts was insufficient when 1996) (Sale of a phone that disguised its bank fraud). documents did not contain false identity was not fraud in connection with information). an access device). *United States v. Cross, 128 F.3d 145 (3rd Cir.), cert, denied, 523 U.S. 1076 *United States v. Manarite, 44 F.3d *United States v. Allen, 88 F.3d 765 (9th (1998) (Fixing cases was not mail fraud 1407 (9th Cir.), cert. denied, 516 U.S. Cir.), cert. denied, 520 U.S. 1202 (1997) just because court mailed disposition 851 (1995) (Mailings were not related (Government failed to prove that a credit notices). to scheme to defraud). union was federally insured). United States v. LaBarbara, 129 F.3d *United States v. Altman, 48 F.3d 96 United States v. Wester, 90 F.3d 592 (1st 81 (2nd Cir. 1997) (Government failed (2d Cir. 1995) (Mailings were too Cir. 1996) (Loan’s face value was not the to show use of mails in a fraud case). remote to be related to the fraud). proper amount of loss when collateral was pledged). United States v. DeFries, 129 F.3d United States v. Hammoude, 51 F.3d 1293 (D.C. Cir. 1997) (The court should 288 (D.C. Cir.), cert. denied, 515 U.S. United States v. McMinn, 103 F.3d 216 have given an advice of counsel 1128 (1995) (Composite stamp did not (1st Cir. 1997) (Defendant was not in the instruction on an embezzlement make a visa a counterfeit document). business of selling stolen goods unless count). he sold goods stolen by others). United States v. Wilbur, 58 F.3d 1291 United States v. Baird, 134 F.3d 1276 (8th Cir. 1995) (Physician who stole *United States v. Czubinski, 106 F.3d (6th Cir. 1998) (Instruction failed to drugs did not obtain them by 1069 (1st Cir. 1997) (Merely browsing charge jury that contractor was only deception). confidential computer files was not wire liable for falsity of costs it claimed to fraud or computer fraud). have incurred). *United States v. Klingler, 61 F.3d 1234 (6th Cir. 1995) (Customs broker’s United States v. Tencer, 107 F.3d 1120 *United States v. Adkinson, 135 F.3d misappropriation of funds did not (5th Cir.), cert. denied, 522 U.S. 960 (1997) 1363 (11th Cir. 1998) (Dismissal of involve money of the United States). (Insurance checks that were not tied to underlying bank fraud undermined 27 Reversible Errors 2003

convictions for conspiracy, mail and United States v. Rodrigues, 159 F.3d 439 United States v. Howerter, 248 F.3d wire fraud schemes, and money (9th Cir. 1998) (Insufficient evidence of 198 (3rd Cir. 2001) (Person authorized laundering). fraud and theft). to write checks did not commit bank larceny by cashing checks payable to *United States v. Rodriguez, 140 F.3d United States v. Hanson, 161 F.3d 896 himself). 163 (2nd Cir. 1998) (Insufficient (5th Cir. 1999) (Factual questions about evidence of bank fraud). bank fraud should have been decided by United States v. Ali, 266 F.3d 1242 (9th jury). Cir. 2001) (FDIC insurance at time of *United States v. Ely, 142 F.3d 1113 trail did not prove bank was insured at (9th Cir. 1997) (Government failed to United States v. Laljie, 184 F.3d 180 (2d time of fraud). prove defendant was a bank director Cir. 1999) (No evidence that checks were as charged in the indictment). altered, that signatures were not genuine, United States v. La Mata, 266 F.3d or that they were intended to victimize 1275 (11th Cir. 2001) (Ex post facto *United States v. D’Agostino, 145 bank). application of bank fraud statute). F.3d 69 (2nd Cir. 1998) (Diverted funds were not taxable income for United States v. Lindsay, 184 F.3d 1138 *United States v. Maung, 267 F.3d purposes of tax evasion). (10th Cir. 1999) (Insufficient evidence 1113 (11th Cir. 2001) (Defendant was that bank was FDIC insured). not in the business of selling stolen *United States v. Schnitzer, 145 F.3d property). 721 (5th Cir. 1998) (Impermissible United States v. Hartel, 199 F.3d 812 (6th theory of fraud justified new trial). Cir. 1999) (Receipt of mailed bank statements was not a fraudulent use of Money *United States v. Shotts, 145 F.3d mails). 1289 (11th Cir.), cert. denied, 525 U.S. Laundering 1177 (1999) (Bail bond license was not United States v. Principe, 203 F.3d 849 property within meaning of mail fraud (5th Cir. 2000) (Possession of counterfeit United States v. Newton, 44 F.3d 913 statute). document should not have been (11th Cir. 1995) (Proof of aiding and sentenced under trafficking guidelines). abetting money laundering conspiracy United States v. Hughey, 147 F.3d 423 was insufficient against defendant (5th Cir. 1998) (Passing bad checks United States v. Tucker, 217 F.3d 960 (8th who leased house on behalf of was not unauthorized use of an Cir. 2000) (Loss to IRS occurred when conspirator). access device). taxes were due, not when conspiracy began). *United States v. Rockelman, 49 F.3d *United States v. Evans, 148 F.3d 477 418 (8th Cir. 1995) (Evidence failed to (5th Cir.), cert. denied, 525 U.S. 1112 Cleveland v. United States, 531 U.S. 12 show the transaction was intended to (1999) (No evidence that mailings (2000) (Victim must actually receive the conceal illegal proceeds). advanced fraudulent scheme). item for there to be mail fraud). *United States v. Hove, 52 F.3d 233 United States v. Blasini-Lluberas, 169 United States v. Gee, 226 F.3d 885 (7th (9th Cir. 1995) (Failure to instruct the F.3d 57 (1st Cir. 1999) (There was no Cir. 2000) (Insufficient evidence of mail jury that the defendant must know his misapplication of bank funds on a and wire fraud where defendant did not structuring was illegal, was plain debt not yet due). conceal material facts). error).

United States v. Silkman, 156 F.3d 833 *United States v. Rahseparian, 231 F.3d United States v. Torres, 53 F.3d 1129 (8th Cir. 1998) (Administrative tax 1257 (10th Cir. 2000) (Jury could not (10th Cir.), cert. denied, 516 U.S. 883 assessment was not conclusive proof reasonably infer that father knew of (1995) (Buying a car with drug of tax deficiency). son’s fraudulent business scheme). proceeds was not money laundering).

United States v. Adkinson, 158 F.3d United States v. Odiodio, 244 F.3d 398 United States v. Willey, 57 F.3d 1374 1147 (11th Cir. 1998) (Insufficient (5th Cir. 2001) (No bank fraud when bank (5th Cir.), cert. denied, 516 U.S. 1029 evidence of fraud). not subject to civil liability). (1995) (Transferring money between accounts was insufficient evidence of 28 Reversible Errors 2003 an intent to conceal). laundering). Abetting *United States v. Wynn, 61 F.3d 921 United States v. Calderon, 169 F.3d 718 (D.C. Cir.), cert. denied, 516 U.S. 1015 (11th Cir. 1999) (Insufficient evidence of United States v. de la Cruz-Paulino, 61 (1995) (Insufficient evidence that the money laundering). F.3d 986 (1st Cir. 1995) (Moving defendant knew his structuring was packages of contraband and unlawful). United States v. Zvi, 168 F.3d 49 (2d Cir. statements about police was not 1999) (Charging domestic and aiding and abetting). *United States v. Dobbs, 63 F.3d 391 international money laundering based on (5th Cir. 1995) (Undisguised money the same transactions was United States v. Luciano-Mosquero, used for family needs was not money multiplicitous). 63 F.3d 1142 (1st. Cir.), cert. denied, laundering). 517 U.S. 1234 (1996) (No evidence that *United States v. Brown, 186 F.3d 661 the defendant took steps to assist in United States v. Nelson, 66 F.3d 1036 (5th Cir. 1999) (Insufficient evidence of the use of a firearm). (9th Cir. 1995) (Defendant’s eagerness money laundering when no proof checks to complete the transaction was not were connected to fraud). *United States v. Fulbright, 105 F.3d sufficient to prove an attempt). 443 (9th Cir.), cert. denied, 520 U.S. United States v. Anderson, 189 F.3d 1201 1236 (1997) (Government failed to *United States v. Kramer, 73 F.3d (10th Cir. 1999) (Titling vehicle in prove anyone committed the principle 1067 (11th Cir.), cert. denied, 519 U.S. mother’s name did not prove money crime with requisite intent). 1011 (1996) (Transaction that laundering). occurred outside of the United States United States v. Beckner, 134 F.3d 714 was not money laundering). *United States v. Messer, 197 F.3d 330 (5th Cir. 1998) (Lawyer was not shown (9th Cir. 1999) (Coded language did not to have knowledge of client’s fraud United States v. Phipps, 81 F.3d 1056 support money laundering conviction). for aiding and abetting). (11th Cir. 1996) (Not money laundering to deposit a series of United States v. Miranda, 197 F.3d 1357 *United States v. Nelson, 137 F.3d checks that are less than $10K each). (11th Cir. 1999) (Ex post facto application 1094 (9th Cir.), cert. denied, 119 S.Ct. of money laundering conspiracy statute) 231 (1999) (Evidence did not support United States v. Pipkin, 114 F.3d 528 aiding and abetting use and carrying (5th Cir.), cert. denied, 519 U.S. 821 United States v. Olaniyi-Oke, 199 F.3d of a firearm during crime of violence). (1996) (Defendant did not knowingly 767 (5th Cir. 1999) (Purchase of structure a currency transaction). computers for personal use was not United States v. Stewart, 145 F.3d 273 money laundering). (5th Cir. 1998) (Insufficient evidence *United States v. High, 117 F.3d 464 that passenger aided and abetted drug (11th Cir. 1997) (Money laundering United States v. Loe, 248 F.3d 449 (5th possession without intent to instruction omitted the element of Cir. 2001) (When legitimate and illegal distribute). willfulness). funds were commingled, government had to prove illegal funds were laundered). United States v. Garcia-Guizar, 160 United States v. Garza, 118 F.3d 278 F.3d 511 (9th Cir. 1999) (Insufficient (5th Cir. 1997) (Money laundering United States v. Marshall, 248 F.3d 525 evidence of aiding and abetting when proof was insufficient where (6th Cir. 2001) (Purchase of personal no money found on defendant and defendants neither handled nor property was not money laundering). was not present at sale). disposed of drug proceeds). United States v. Braxton-Brown-Smith, United States v. Wilson, 160 F.3d 732 *United States v. Christo, 129 F.3d 278 F.3d 1348 (D.C .Cir.2002) (No (D.C. Cir.), cert. denied, 528 U.S. 828 578 (11th Cir. 1997) (Check kiting presumption that money drawn from (1999) (Insufficient evidence of aiding scheme was not money laundering). commingled funds is unclean). and abetting murder or retaliation where defendant only told shooter of *United States v. Shoff, 151 F.3d 889 victim’s location). (8th Cir. 1998) (Purchase with Aiding and proceeds of fraud was not money United States v. Barnett, 197 F.3d 138 29 Reversible Errors 2003

(5th Cir. 1999) (Insufficient evidence *United States v. McCormick, 72 F.3d contempt). of conspiring or aiding and abetting 1404 (9th Cir. 1995) (Defendant who did murder for hire when defendant did not read documents before signing them United States v. Grable, 98 F.3d 251 not share intent with principal). was not guilty of making a false (6th Cir.), cert. denied, 519 U.S. 1059 statement). (1997) (Contempt order could not stand in light of incorrect advice Perjury United States v. Barrett, 111 F.3d 947 about Fifth Amendment privilege). (D.C.), cert. denied, 522 U.S. 867 (1997) United States v. Hairston, 46 F.3d 361 (Defendant’s misrepresentation to court Bingman v. Ward, 100 F.3d 653 (9th (4th Cir. 1995) (Ambiguity in the was not a material false statement). Cir.), cert. denied, 520 U.S. 1188 (1997) question to the defendant was (Magistrate judge did not have the insufficient for perjury conviction). United States v. Farmer, 137 F.3d 1265 authority to hold a litigant in criminal (10th Cir. 1998) (Answer to ambiguous contempt). United States v. Dean, 55 F.3d 640 question did not support conviction for (D.C. Cir.), cert. denied, 516 U.S. 1184 false declaration). United States v. Neal, 101 F3d 993 (4th (1996) (Statement that was literally Cir. 1996) (Plain error for a judge to true did not support a perjury United States v. Hodge, 150 F.3d 1148 prosecute and preside over a conviction). (9th Cir. 1998) (Insufficient evidence of contempt action). false statements when no certification United States v. Jaramillo, 69 F.3d 388 made on documents). United States v. Vezina, 165 F.3d 176 (9th Cir. 1995) (Defendant charged (2d Cir. 1999) (Insufficient evidence of with perjury by inconsistent United States v. Sorenson, 179 F.3d 823 criminal contempt of a TRO dealing statements must have made both (9th Cir. 1999) (Defendant’s false with a third party). under oath). statements were contained in an unsigned loan application). United States v. Shotts, 145 F.3d 1289 Immigration (11th Cir. 1998) (Evasive, but true, United States v. Walker, 191 F.3d 326 (2d answer was not perjury). Cir. 1999) (Insufficient proof that *United States v. Bahena-Cardenas, defendant was responsible for more than 70 F.3d 1071 (9th Cir. 1995) (Alien who 100 false immigration documents). was not served with warrant of False deportation, was not guilty of illegal Statements Contempt reentry). United States v. Dieguimde, 119 F.3d United States v. Gaudin, 515 U.S. 506 United States v. Mathews, 49 F.3d 676 933 (11th Cir. 1997) (Order of (1995) (Materiality is an element of a (11th Cir. 1995) (Certification of contempt deportation did not consider false statement case). must be filed by the judge who defendant’s request for political witnessed the alleged contempt). asylum). United States v. Bush, 58 F.3d 482 (9th Cir. 1995) (No material false United States v. Forman, 71 F.3d 1214 United States v. Gallardo-Mendez, 150 statements or omissions were made to (6th Cir. 1995) (Attorney was not in F.3d 1240 (10th Cir. 1998) (Prior guilty receive union funds). contempt for releasing grand jury plea did not prevent defendant from materials in partner’s case). contesting noncitizen status). United States v. Rothhammer, 64 F.3d 554 (10th Cir. 1995) (Contractual United States v. Brown, 72 F.3d 25 (5th *United States v. Pacheco-Medina, promise to pay was not a factual Cir. 1995) (Lawyer’s comments on a 212 F.3d 1162 (9th Cir. 2000) assertion). judge’s trial performance were not (Defendant who was captured a few reckless). yards from border did not enter United United States v. Campbell, 64 F.3d 967 States). (5th Cir. 1995) (Defendant’s United States v. Mottweiler, 82 F.3d 769 misrepresentations to a bank were not (7th Cir. 1996) (Defendant must have United States v. Rodriguez-Fernandez, material). acted willfully to be guilty of criminal 234 F.3d 498 (8th Cir. 2000) (Without 30 Reversible Errors 2003

detention order in place, defendant that some of the images were tied to drug to treat patient did not prove did not escape from INS). Internet). premeditated murder).

*United States v. Ruiz-Lopez, 234 United States v. Shumpert, 210 F.3d F.3d 445 (9th Cir. 2000) (Presence at Violent Crimes 660 (6th Cir. 2000) (Assault without border is not the same as being found verbal threat was minor rather than in the United States). United States v. Main, 113 F.3d 1046 (9th aggravated). Cir. 1997) (In an involuntary Steele v. Blackman, 236 F.3d 130 (3rd manslaughter case, the harm must have United States v. Baker, 262 F.3d 124 Cir. 2001) (Alien’s misdemeanor been foreseeable within the risk created (2d Cir. 2001) (Instruction allowed conviction for distributing less than by the defendant). conviction without proving ll 30 grams of marijuana was not elements of murder with intent to aggravated felony). *United States v. Wicklund, 114 F.3d 151 obstruct justice). (10th Cir. 1997) (Murder for hire required United States v. Matsumaru, 244 F.3d a receipt or promise of pecuniary value). United States v. Peters, 277 F.3d 963 1092 (9th Cir. 2001) (Insufficient (7th Cir. 2002) (Victim’s intoxication evidence that attorney set up practice United States v. Yoakum, 116 F.3d 1346 and disdain for the defendant did not to evade immigration laws). (10th Cir. 1997) (Defendant’s interest in a prove lack of consent to sexual act). business, and his presence near time of United States v. Herrera-Ochoa, 245 fire, did not support arson conviction). F.3d 495 (5th Cir. 2001) (Defendant’s Assimilative presence at trial could not be United States v. Spruill, 118 F.3d 221 (4th evidence that he had previously Cir. 1997) (Insufficient evidence that a Crimes entered United States). threat would be carried out by fire or explosive). United States v. Devenport, 131 F.3d United States v. Portillo-Mendoza, 604 (7th Cir. 1997) (Violation of a state 273 F.3d 1224 (9th Cir. 2001) (Prior *Smith v. Horn, 120 F.3d 400 (3rd Cir. civil provision was not covered by California DUI was not aggravated 1997) (First degree murder instruction Assimilative Crimes Act). felony). failed to require specific intent). United States v. Sylve, 135 F.3d 680 United States v. Bordeaux, 121 F.3d 1187 (9th Cir. 1998) (Deferred prosecution Pornography (8th Cir. 1997) (Jury instruction in an was available for charge under abusive sexual contact case failed to Assimilative Crimes Act). *United States v. Hilton, 167 F.3d 61 require force). (1st Cir.), cert. denied, 528 U.S. 844 United States v. Waites, 198 F.3d 1123 (1999) (Whether defendant believed United States v. Estrada-Fernandez, 150 (9th Cir. 2000) (Conduct that was pornographic actors were over 18 F.3d 491 (5th Cir. 1998) (Simple assault is regulated federally should not have years old was a jury question). lesser included offense of assault with been prosecuted under Assimilative deadly weapon). Crimes Act). United States v. McKelvey, 203 F.3d 66 (1st Cir. 2000) (Single film strip with United States v. Guerrero, 169 F.3d 933 United States v. Provost, 237 F.3d 934 three images was not “3 or more (5th Cir. 1999) (Inconclusive (8th Cir. 2001) (Federal government matters” under child porn statute). identification did not support bank cannot prosecute state crime robbery conviction). occurring on lands that are no longer United States v. Henriques, 234 F.3d in Indian hands). 263 (5th Cir. 2000) (At least three Jones v. United States, 526 U.S. 227 images must travel in interstate (1999) (Jury must decide whether United States v. Prentiss, 273 F.3d commerce for child pornography carjacking resulted in serious bodily 1277 (10th Cir. 2001) (Parties cannot conviction). injury or death). stipulate victim was Indian when they were not). United States v. Runyan, 290 F.3d 223 United States v. Wood, 207 F.3d 1222 (5th Cir. 2002) (Insufficient evidence (10th Cir. 2000) (Doctor’s injection of United States v. Martinez, 274 F.3d 31 Reversible Errors 2003

897 (5th Cir. 2001) (Federal sentence (D.C. Cir. 1997) (Evidence was Cir. 2001) (Obstruction of justice that was three times longer was not insufficient to show retaliation). requires wrongful intent). like state sentence). United States v. Romano, 137 F.3d 677 United States v. Leveque, 283 F.3d (1st Cir. 1998) (Law prohibiting sale of 1098 (9th Cir. 2002) (Lacey Act Miscellaneous illegally taken wildlife did not cover the requires defendant know taking game act of securing guide services for was illegal). Crimes hunting trip). United States v. Mulero–Joubert, 289 United States v. Rodriguez, 45 F.3d *United States v. Cottman, 142 F.3d 160 F.3d 168 (1st Cir. 2002) (For 302 (9th Cir. 1995) (Possessing an (3rd Cir. 1998) (Government is not a trespassing, government must prove object designed to be used as a victim under Victim Witness Protection defendant had actual or constructive weapon, while in prison, was a Act). notice that presence was illegal). specific intent crime). *United States v. Copeland, 143 F.3d United States v. Alkhabaz, 104 F.3d 1439 (11th Cir. 1998) (Government Juveniles 1492 (6th Cir. 1997) (Transmission of contractor was not bribed under federal e-mail messages of torture, rape and statute). United States v. Juvenile Male #1, 47 murder did not fall within federal F.3d 68 (2d Cir. 1995) (Court properly statute without public availability). United States v. Walker, 149 F.3d 238 (3rd refused transfer of a juvenile for adult Cir. 1998) (Prison worker was not a proceedings). United States v. Grigsby, 111 F.3d 806 corrections officer). (11th Cir. 1997) (Importation of United States v. Doe, 53 F.3d 1081 (9th prohibited wildlife products fell under United States v. Truesdale, 152 F.3d 443 Cir. 1995) (Unadjudicated juvenile exceptions to statute). (5th Cir. 1998) (Insufficient evidence of could not be sentenced to supervised illegal gambling). release). United States v. Nyemaster, 116 F.3d 827 (9th Cir. 1997) (Insufficient United States v. Davis, 183 F.3d 231 (3rd United States v. Juvenile Male PWM , evidence of being under the influence Cir. 1999) amended 197 F.3d 662 (same). 121 F.3d 382 (8th Cir. 1997) (Court of alcohol in a federal park). (Insufficient evidence of obstruction of imposed sentence beyond comparable justice and conspiracy without proof of guideline for adults). United States v. Cooper, 121 F.3d 130 knowledge of pending proceeding). (3rd Cir. 1997) (Evidence did not Impounded Juvenile I.H., Jr., 120 F.3d support conviction for tampering with United States v. Bad Wound, 203 F.3d 457 (3rd Cir. 1997) (Failure to provide a witness). 1072 (8th Cir. 2000) (Defendant not liable juvenile records barred transfer to for acts of coconspirators prior to adult status). *United States v. King, 122 F.3d 808 entering conspiracy). (9th Cir. 1997) (Crime of mailing *United States v. Male Juvenile, 148 threatening communication required a United States v. Naiman, 211 F.3d 40 (2d F.3d 468 (5th Cir. 1998) (Certification specific intent to threaten). Cir. 2000) (Receipt of the funds is a for juvenile by AUSA was invalid). jurisdictional element of commercial *United States v. Valenzeno, 123 F.3d bribery). United States v. Juvenile LWO, 160 365 (6th Cir. 1997) (Obtaining a credit F.3d 1179 (8th Cir. 1999) (Judge may report without permission was not a *United States v. Giles, 213 F.3d 1247 not consider unadjudicated incidents crime). (10th Cir. 2000) (Counterfeit labels were at juvenile transfer hearing in not goods within meaning of statute). assessing nature of charges or prior *United States v. Farrell, 126 F.3d 484 record). (3rd Cir. 1997) (Urging a witness to United States v. Neuhausser, 241 F.3d “take the Fifth” was not witness 460 (6th Cir. 2001) (Insufficient evidence United States v. Juvenile (RRA-A), tampering). to support Travel Act conviction). 229 F.3d 737 (9th Cir. 2000) (Agents failed to notify juvenile’s parents or United States v. Rapone, 131 F.3d 188 United States v. Ortlieb, 274 F.3d 871 (5th Mexican consulate). 32 Reversible Errors 2003

punished by both fine and incarceration). (11th Cir. 1998) (Time credited toward Sentencing - a sentence did not lengthen total United States v. Moskovits, 86 F.3d 1303 sentence). General (3d Cir.), cert. denied, 519 U.S. 1120 (1997) (Court improperly considered a United States v. Casey, 158 F.3d 993 United States v. Rivera, 58 F.3d 600 defendant’s decision to go to trial rather (8th Cir. 1999) (Court must use (11th Cir. 1995) (Defendant was than accept a plea offer). guideline of charged offense). sentenced on the wrong count). *United States v. Tabares, 86 F.3d 326 United States v. Partlow, 159 F.3d 1218 *United States v. Knowles, 66 F.3d (3rd Cir. 1996) (Erroneous information did (9th Cir. 1999) (Specific offense 1146 (11th Cir.), cert. denied, 516 U.S. not justify a sentence at the top of the characteristics must be applied in the 1149 (No proof the conspiracy range). order listed). extended to the date when guidelines became effective). United States v. Farnsworth, 92 F.3d 1001 United States v. Weaver, 161 F.3d 528 (10th Cir.), cert. denied, 519 U.S. 1034 (8th Cir. 1999) (Typo on PSR *United States v. Page, 69 F.3d 482 (1996) (Adoption of the presentence recommending wrong base level was (11th Cir. 1995) (Court failed to require report did not resolve disputed matters). plain error). the parties to state objections at the sentencing hearing). *United States v. Romero, 122 F.3d 1334 *United States v. Allard, 164 F.3d 1146 (10th Cir.), cert. denied, 523 U.S. 1025 (8th Cir. 1999) (Offense characteristic *United States v. Petty, 80 F.3d 1384 (1998) (Court may not resolve factual for one offense could not be used for (9th Cir. 1996) (Record should have disputes by merely adopting the another). shown that the defendant read the presentence report). presentence report and supplements). *United States v. Robinson, 164 F.3d United States v. Ross, 131 F.3d 970 (11th 1068 (7th Cir.), cert. denied, 528 U.S. United States v. Torres, 81 F.3d 900 Cir. 1997) (When defendant is convicted 848 (1999) (Hearsay statements used (9th Cir. 1996) (Disparity in of a conspiracy count with multiple at sentencing were unreliable). coconspirators’ sentences was not objects, the court must find beyond a justified, due to inconsistent factual reasonable doubt that a particular object United States v. Mueller, 168 F.3d 186 findings). was proven before applying that (5th Cir. 1999) (Failure to disclose guideline section). addendum to presentence report). United States v. Burke, 80 F.3d 314 (8th Cir. 1996) (Presentence report United States v. Renteria, 138 F.3d 1328 United States v. Jones, 168 F.3d 1217 could not be used as evidence when (10th Cir. 1998) (Lying at suppression (10th Cir. 1999) (If the court allows an the defendant disputed the facts hearing invoked accessory after fact oral objection at sentencing then a therein). guideline, not perjury). finding on that objection must be made). *United States v. Ivy, 83 F.3d 1266 United States v. Washington, 146 F.3d (10th Cir.), cert. denied, 519 U.S. 901 219 (4th Cir. 1998) (Court should not have United States v. Navarro, 169 F.3d 228 (1996) (Government’s failure to object relied upon statements made pursuant to (5th Cir. 1999) (Cannot have to a presentence report waived its plea agreement). sentencing via video conference over complaint). defendant’s objection). *United States v. Myers, 150 F.3d 459 *United States v. Graham, 83 F.3d (5th Cir. 1998) (Defendant was denied United States v. Mitchell, 187 F.3d 331 1466 (D.C.Cir.), cert. denied, 519 U.S. right of allocution). (3rd Cir. 1999) (Court may not draw 1132 (1997) (Adoption of the adverse inference from silence at presentence report is not the same as *United States v. Davenport, 151 F.3d sentencing). express findings). 1325 (11th Cir. 1998) (Defendant did not waive right to review presentence report *United States v. Swiney, 203 F.3d 397 United States v. Versaglio, 85 F.3d 943 by absconding). (6th Cir.), cert. denied, 530 U.S. 1238 (2d Cir.), modified, 96 F.3d 637 (1996) (2000) (Application of mandatory (Criminal contempt offense cannot be United States v. Glover, 154 F.3d 1291 minimum is controlled by guidelines 33 Reversible Errors 2003

definition of relevant conduct, not 597 (8th Cir. 2001) (Court cannot adopt (1998) (Court cannot refuse to group Pinkerton doctrine). PSR when facts are disputed). counts in order to give defendant a higher sentence). *United States v. Kent, 209 F.3d 1073 *United States v. Martinez, 274 F.3d 897 (8th Cir. 2000) (Sentence with mental (5th Cir. 2001) (Federal sentence under United States v. Marmolejos, 140 F.3d health counseling was improper when Assimilative Crimes Act was three times 488 (3rd Cir. 1998) (Clarifying there was no history of mental state sentence for same conduct). amendment to grouping section condition). justified post-sentence relief). United States v. Taylor, 277 F.3d 721 (5th United States v. Sadler, 234 F.3d 368 Cir. 2001) (Court must be assured *United States v. Thomas, 155 F.3d (8th Cir. 2000) (Once district court lost information in report was not from 833 (7th Cir.), cert. denied, 525 U.S. jurisdiction over case it could not defendant’s immunized statements). 1048 (1998) (Court failed to group raise sentence). counts when threats were made to United States v. Burgos, 276 F.3d 1284 same victim). Shafer v. South Carolina, 532 U.S. 36 (11th Cir. 2001) (Court could not penalize (2001) (Whenever future defendant for failure to cooperate in *United States v. Martinez-Martinez, dangerousness is at issue in a capital unrelated investigation). 156 F.3d 936 (9th Cir. 1999) (Reduction case, the jury must be informed about for non-drug conspiracy was life sentence without possibility of United States v. Whitlow, 287 F.3d 638 mandated when object crime was not parole). (7th Cir. 2002) (Guidelines in effect on substantially complete). date sentence announced are proper, not United States v. Fields, 242 F.3d 393 date hearing began). United States v. Levario-Quiroz, 161 (D.C. Cir. 2001) (Kidnapping could not F.3d 903 (5th Cir. 1999) (Offenses be enhanced by murder, when murder United States v. Cross, 289 F.3d 476 (7th outside United States were not was not pled). Cir. 2002) (Judge, who wanted to impose relevant conduct). longest possible sentence, abused United States v. Corporan-Cuevas, discretion, by inflating calculations). United States v. Bartley, 230 F.3d 667 244 F.3d 199 (1st Cir. 2001) (Could not (4th Cir. 2000) (Drug and money sentence beyond statutory maximum laundering conspiracies should have even when concurrent to legal Grouping been grouped). sentence). United States v. DiDomenico, 78 F.3d 294 United States v. Nedd, 262 F.3d 85 (1st United States v. Velasquez, 246 F.3d (7th Cir.), cert. denied, 519 U.S. 1006 Cir. 2001) (Grouping determined by 204 (2d Cir. 2001) (Sentence exceeded (1996) (Unadjudicated crimes could not sets of victims, not individuals). statutory maximum without proof of be used to determine a combined offense death or serious bodily injury). level). United States v. Smith, 267 F.3d 1154 (D.C. Cir. 2001) (Predicate offense of United States v. Thomas, 246 F.3d 438 *United States v. Wilson, 98 F.3d 281 conspiracy must be found beyond a (8th Cir. 2001) (Sentence exceeded (7th Cir. 1996) (Money laundering and reasonable doubt). statutory maximum without proof of mail fraud should have been grouped drug quantities). together). United States v. Zillgitt, 286 F.3d 128 (2d Cir. 2002) (Where conspiracy United States v. Knight, 266 F.3d 203 *United States v. Haltom, 113 F.3d 43 involved multiple controlled (3rd Cir. 2001) (It is plain error to (5th Cir. 1997) (Mail fraud and tax fraud substances defendant may only be apply wrong guideline section). counts should have been grouped). sentenced regarding drug with lowest statutory maximum). United States v. Sumner, 265 F.3d 532 *United States v. Emerson, 128 F.3d 557 (7th Cir. 2001) (Court must make (7th Cir. 1997) (Money laundering and specific findings to include mail fraud should have been grouped). Consecutive/ uncharged conduct). United States v. Kennedy, 133 F.3d 53 Concurrent United States v. Stapleton, 268 F.3d (D.C. Cir.), cert. denied, 525 U.S. 911 34 Reversible Errors 2003

United States v. Greer, 91 F.3d 996 United States v. Chea, 231 F.3d 531 (9th Cir. 1997) (Amendment defining (7th Cir. 1996) (Sentences at two Cir. 2000) (Court was required to consider hashish oil was applied ex post facto). proceedings on the same day were undischarged prior when fashioning presumed concurrent). sentence). *United States v. Mussari, 152 F.3d 1156 (9th Cir. 1998) (Ex post facto *United States v. Fuentes, 107 F.3d application of criminal penalties to 1515 (11th Cir. 1997) ( Federal Retroactivity failure to pay child support). sentence which calculated a state sentence into the base offense level *United States v. Vazquez, 53 F.3d 1216 United States v. Comstock, 154 F.3d must be concurrent to the state (11th Cir. 1995) (Case remanded to 845 (8th Cir. 1998) (Using guideline sentence). determine retroactive effect of favorable effective after commission of offense guideline, that became effective after violated ex post facto where *United States v. Corona, 108 F.3d sentencing). amendment increased punishment). 565 (5th Cir. 1997) (Duplicitous sentences were not purely concurrent *United States v. Felix, 87 F.3d 1057 (9th United States v. Schulte, 264 F.3d 656 where each received a separate Cir. 1996) (Amendment to the guidelines, (6th Cir. 2001) (Act was committed special assessment). which required a sentence based on a prior to effective date of statute). lower, negotiated quantity of drugs, was United States v. Kikuyama, 109 F.3d retroactive). 536 (9th Cir. 1997) (Court cannot rely Sentencing - on need for mental health treatment in United States v. Etherton, 101 F.3d 80 fashioning a consecutive sentence). (9th Cir. 1996) (Retroactive amendment Marijuana could be used to reduce supervised *United States v. Nash, 115 F.3d 1431 release). *United States v. Foree, 43 F.3d 1572 (9th Cir.), cert. denied, 522 U.S. 1117 (11th Cir. 1995) (Seedlings and (1998) (Multiplicious counts must be *United States v. Ortland, 109 F.3d 539 cuttings did not count as marijuana sentenced concurrently and may not (9th Cir.), cert. denied, 522 U.S. 851 (1997) plants). receive separate special (Since mail fraud is not a continuing assessments). offense, an act committed after the date *United States v. Smith, 51 F.3d 980 of an increase to guidelines did not (11th Cir. 1995) (Weight of wet *United States v. Mendez, 117 F.3d require all counts to receive increased marijuana was improperly counted). 480 (11th Cir. 1997) (Simultaneous guidelines). acts of possessing stolen mail and United States v. Caldwell, 88 F.3d 522 assaulting a mail carrier with intent to United States v. Zagari, 111 F.3d 307 (2d (8th Cir.), cert. denied, 519 U.S. 1048 steal mail, could not receive Cir. 1997) ( Use of guidelines effective (1996) (Extrapolation of drug cumulative punishments). after conduct violated Ex Post Facto quantities was error). Clause). *McCarthy v. Doe, 146 F.3d 118 (2d *United States v. Antonietti, 86 F.3d Cir. 1998) (BOP could designate state United States v. Armstead, 114 F.3d 504 206 (11th Cir. 1996) (Counting institution in order to implement (5th Cir.), cert. denied, 522 U.S. 922 (1997) seedlings as marijuana plants to presumptively concurrent sentence). (Ex post facto application of a guideline calculate the base offense level was provision). plain error). *United States v. Quintero, 157 F.3d 1038 (6th Cir. 1999) (Federal sentence *United States v. Aguilar-Ayala, 120 F.3d United States v. Agis-Meza, 99 F.3d could not be imposed consecutively 176 (9th Cir. 1997) (Defendant was 1052 (11th Cir. 1996) (Court had an to not yet imposed state sentence). entitled to sentence reduction to insufficient basis to calculate a mandatory minimum because of quantity of marijuana based upon United States v. Dorsey, 166 F.3d 558 retroactive guideline amendment, cash and money wrappers seized). (3rd Cir. 1999) (Court had authority to regardless of whether safety valve reduce a sentence in order to make it applied). *United States v. Carter, 110 F.3d 759 effectively concurrent to a previously (11th Cir. 1997) (Court abused its imposed state sentence). United States v. Bowen, 127 F.3d 9 (1st discretion in denying a motion for a 35 Reversible Errors 2003

reduction of a sentence over weight United States v. Gutierrez-Hernandez, 94 *United States v. Jinadu, 98 F.3d 239 of wet marijuana). F.3d 582 (9th Cir. 1996) (There was no (6th Cir.), cert. denied, 520 U.S. 1179 presumption that three drug (1997) (Court could not rely on drug *United States v. Mankiewicz, 122 manufacturers were equally culpable). quantities alleged in indictment to F.3d 399 (7th Cir. 1997) (Marijuana determine a mandatory minimum). that was rejected by defendants United States v. Cole, 125 F.3d 654 (8th should not have been counted). Cir. 1997) (Defendant’s testimony about *United States v. Shonubi, 103 F.3d his ability to manufacture was relevant). 1085 (2d Cir. 1997) (Multiplying United States v. Perulena, 146 F.3d quantity of seized drugs by number of 1332 (11th Cir. 1998) (Defendant was United States v. O’Bryant, 136 F.3d 980 previous trips was an inadequate not responsible for marijuana (5th Cir. 1998) (Government has burden measure). imported before he joined of proving more serious form of conspiracy). methamphetamine). United States v. Rodriguez, 112 F.3d 374 (8th Cir. 1997) (Insufficient *United States v. Wyss, 147 F.3d 631 *United States v. Whitecotton, 142 F.3d evidence of drug quantities). (7th Cir. 1998) (Drugs for personal use 1194 (9th Cir. 1998) (Later drug sales were could not be counted toward not foreseeable to defendant). United States v. Gore, 154 F.3d 34 (2d distribution quantity). Cir. 1998) (Possession and distribution United States v. Asch, 207 F.3d 1238 of the same drugs may only be United States v. Butler, 238 F.3d 1001 (10th Cir. 2000) (Drugs for personal use punished once). (8th Cir. 2001) (Failure to allege could not be used to calculate range for marijuana quantity required distribution). United States v. Marrero-Ortiz, 160 resentencing to below enhanced F.3d 768 (1st Cir. 1999) (Insufficient statutory maximum). United States v. Kroeger, 229 F.3d 700 evidence of drug quantity). (8th Cir. 2000) (Environmental harm United States v. Garcia, 242 F.3d 593 enhancement did not apply to meth United States v. Guevara, 277 F.3d 111 (5th Cir. 2001) (Drug quantity was not case). (2d Cir), amended 298 F.3d 124 (2002) proven). (When quantity of heroin was not *United States v. Eschman, 227 F.3d 886 pled or proven to jury, defendant is (7th Cir. 2000) (Meth quantities should subject to range for heroin proven, Sentencing - have been based upon defendant’s own not higher statutory maximum). Meth. ability to produce). United States v. Munoz, 233 F.3d 410 (6th Sentencing - *United States v. Ramsdale, 61 F.3d Cir. 2000) (Court could not count meth 825 (11th Cir. 1995) (Improperly that defendant was incapable of Cocaine sentenced for D-methamphetamine delivering). rather than "L"). United States v. Reese, 67 F.3d 902 United States v. Fraser, 243 F.3d 473 (8th (11th Cir.), cert. denied, 517 U.S. 1228 United States v. Hamilton, 81 F.3d 652 Cir. 2001) (Drug quantities for personal (1996) (Drugs were not reasonably (6th Cir. 1996) (To be culpable for use must be excluded from distribution foreseeable to the defendant, nor manufacturing a quantity of drugs, amounts). within scope of agreed joint criminal the defendant must have been activity). personally able to make that United States v. Smotherman, 285 F.3d quantity). 1115 (8th Cir. 2002) (Court inaccurately *United States v. Howard, 80 F.3d converted pounds to grams). 1194 (7th Cir. 1996) (District court United States v. McMullen, 86 F.3d could not rely upon the probation 135 (8th Cir. 1996) (Judge could not officer’s estimates of drug quantities determine the type of Sentencing - without corroborating evidence). methamphetamine based upon the judge’s experience, the price, or where Heroin United States v. Acosta, 85 F.3d 275 the drugs came from). (7th Cir. 1996) (Drug quantity finding 36 Reversible Errors 2003

was insufficient). chosen). (1997) (Sentencing findings did not support drug quantities attributed to United States v. Nesbitt, 90 F.3d 164 *United States v. Noble, 246 F.3d 946 the defendant). (6th Cir. 1996) (Court failed to resolve (7th Cir. 2001) (Failure to charge drug whether amounts of drugs were quantity was plain error). United States v. Byrne, 83 F.3d 984 attributable during the time of the (8th Cir. 1996) (Drugs seized after the conspiracy). defendant was in custody could not Sentencing - be counted toward sentence). United States v. Hernandez-Santiago, 92 F.3d 97 (2d Cir. 1996) (Court failed Crack *United States v. Tucker, 90 F.3d 1135 to make a finding as to the scope of (6th Cir. 1996) (Court did not make the defendant’s agreement). United States v. Lawrence, 47 F.3d 1559 individualized findings as to each (11th Cir. 1995) (Could not simply defendant in a drug conspiracy). *United States v. Chalarca, 95 F.3d multiply sales outside of crackhouse 239 (2d Cir. 1996) (When negotiated times days defendant was in conspiracy). United States v. Randolph, 101 F.3d drug amount was not foreseeable, the 607 (8th Cir. 1996) (Trial court court should use the lowest possible *United States v. Hansley, 54 F.3d 709 inadequately explained its drug quantity). (11th Cir.), cert. denied, 516 U.S. 998 quantity findings). (1995) (Individual findings were needed In Re Sealed Case, 108 F.3d 372 (D.C. to hold defendant responsible for all United States v. Brown, 156 F.3d 813 Cir. 1997) (Court failed to make drugs in conspiracy). (8th Cir. 1999) (Court should have findings attributing all drugs to the only based sentence on drug quantity defendant). *United States v. Lee, 68 F.3d 1267 (11th proven by government). Cir. 1995) (There were inadequate *United States v. Milledge, 109 F.3d findings to support drug quantities. United States v. Garrett, 161 F.3d 1131 312 (6th Cir. 1997) (Evidence did not Crack abusers’ credibility was (8th Cir. 1999) (Insufficient evidence justify drug quantity finding). questioned). of drug quantity).

*United States v. Jackson, 115 F.3d United States v. Chisholm, 73 F.3d 304 United States v. Gomez, 164 F.3d 1354 843 (11th Cir. 1997) (Package (11th Cir. 1996) (No factual basis that the (11th Cir. 1999) (Unrelated drug sales containing 1% cocaine and 99% defendant knew powder would be were not relevant conduct to sugar was not a mixture under the converted to crack). conspiracy). guidelines). *United States v. James, 78 F.3d 851 (3rd United States v. Moore, 212 F.3d 441 *United States v. Granados, 117 F.3d Cir.), cert. denied, 519 U.S. 844 (1996) (No (8th Cir. 2000) (Defendant’s 1089 (8th Cir. 1997) (The court failed proof that the cocaine base was crack for responsibility for drugs limited to to make specific drug quantity enhanced penalties to apply). jointly undertaken activity). findings). *United States v. Hill, 79 F.3d 1477 (6th United States v. Jackson, 240 F.3d *United States v. Patel, 131 F.3d 1195 Cir.), cert.denied, 519 U.S. 858 (1996) 1245 (10th Cir.), cert. denied, 122 S.Ct. (7th Cir. 1997) (Evidence was (Different transactions almost two years 112 (2001) (Failure to plead drug insufficient that seized money could apart, with the sole similarity being the quantities required reversal). support cocaine quantities). type of drug, were not relevant conduct). United States v. Williams, 247 F.3d 353 United States v. Bacallao, 149 F.3d United States v. Graham, 83 F.3d 1466 (2d Cir. 2001) (Drugs meant for 717 (7th Cir. 1998) (No showing prior (D.C. Cir.), cert. denied, 519 U.S. 1132 personal use were not to be counted cocaine transactions were relevant (1997) (Court failed to make toward distribution conspiracy). conduct). individualized findings of drug quantities). United States v. Palmer, 248 F.3d 569 United States v. Flowal, 163 F.3d 956 (7th Cir. 2001) (Unreliable hearsay did (6th Cir.), cert. denied, 119 S.Ct. 1509 United States v. Frazier, 89 F.3d 1501 not support drug quantity). (1999) (Drug quantity was arbitrarily (11th Cir.), cert.denied, 520 U.S. 1222 37 Reversible Errors 2003

United States v. Baptiste, 264 F.3d 578 *United States v. Willis, 106 F.3d 966 firearms, it was not foreseeable that (5th Cir.), modified 309 F.3d274 (2002) (11th Cir. 1997) (Defendant who one of the firearms would be illegal). (Failure to allege drug quantity is previously pleaded nolo contendere in a plain error when defendant sentenced Florida state court was not convicted for above lowest statutory maximum). purposes of being a felon in possession Sentencing - of a firearm). United States v. Dinnell, 269 F.3d 418 Money (4th Cir. 2001) (Sentence over *United States v. Cooper, 111 F.3d 845 statutory maximum). (11th Cir. 1997) (Firearm that was not Laundering possessed at the site of drug offense did United States v. Thomas, 274 F.3d 655 not justify enhancement). United States v. Jenkins, 58 F.3d 611 (2d Cir. 2001) (Failure to plead and (11th Cir. 1995) ("Rule of lenity" prove amount of crack limits United States v. Zelaya, 114 F.3d 869 (9th precluded counting money laundering punishment to lowest statutory Cir. 1997) (Express threat of death was transactions under $10,000). maximum). not foreseeable to the accomplice- defendant). *United States v. Allen, 76 F.3d 1348 United States v. Henry, 282 F.3d 242 (5th Cir.), cert. denied, 519 U.S. 841 (3d Cir. 2002) (Drug quantity raising *United States v. Knobloch, 131 F.3d 366 (1996) (Money laundering guidelines statutory maximum must be pleaded (3rd Cir. 1997) (Court could not impose an should have been based on the and proven to jury). increase for a firearm when there was a amount of money laundered, not the consecutive gun count). loss in a related fraud). United States v. Davis, 290 F.3d 1239 (10th Cir. 2002) (Court could not look United States v. Ahmad, 202 F.3d 588 (2d United States v. Gabel, 85 F.3d 1217 outside of record to determine amount Cir. 2000) (Firearms that were not (7th Cir. 1996) (Robberies and of crack produced). prohibited cannot be counted toward burglaries were not relevant conduct specific offense characteristic). in a money laundering case).

Sentencing - United States v. Hill, 210 F.3d 881 (8th United States v. Morales, 108 F.3d Cir. 2000) (Defendant who had already 1213 (10th Cir. 1997) (Drug mandatory Firearms pled guilty was not “under indictment” minimum did not apply to money when he received firearm). laundering offense). United States v. Bernardine, 73 F.3d 1078 (11th Cir. 1996) (Government United States v. Pena-Lora, 225 F.3d 17 United States v. Hunt, 272 F.3d 488 failed to prove the defendant was a (1st Cir. 2000) (Identity of hostage taken (7th Cir. 2001) (Court cannot marijuana user, and thus he was not a was not proven to award enhancement). substitute drug quantities for money prohibited person). laundered). United States v. Moerman, 233 F.3d 379 United States v. Mendoza-Alvarez, 79 (6th Cir. 2000) (Defendant merely United States v. Orlando, 281 F.3d 586 F.3d 96 (8th Cir. 1996) (Simply brandished firearm, not otherwise used). (6th Cir. 2002) (Court failed to make carrying a firearm in one’s car was not findings about amount laundered). otherwise unlawful use). United States v. Seesing, 234 F.3d 456 (9th Cir. 2000) (Enhancement for *United States v. Barton, 100 F.3d 43 obliterated serial number only applied to Sentencing - (6th Cir. 1996) (Enhancement relating firearm counts). to prior convictions covered only Pornography those before the instant offense). United States v. Diaz, 248 F.3d 1065 (11th Cir. 2001) (Co-defendant’s brandishing United States v. Cole, 61 F.3d 24 (11th United States v. Moit, 100 F.3d 605 firearm did not support enhancement for Cir.), cert. denied, 516 U.S. 1163 (1996) (8th Cir. 1996) (Possession of defendant). (Insufficient evidence of child shotguns and hunting rifles qualified pornography depicting minors under for “sporting or collection” United States v. O’Malley, 265 F.3d 353 twelve). reduction). (6th Cir. 2001) (During conspiracy to steal 38 Reversible Errors 2003

*United States v. Ketcham, 80 F.3d (11th Cir. 1996) (In determining the *United States v. Kohli, 110 F.3d 1475 789 (3rd Cir. 1996) (Enhancement for amount of loss, the court could not rely (9th Cir. 1997) (There was insufficient exploitation of a minor was reversed solely on stipulated amounts). evidence of the quantity of fraud in a child pornography case for attributed). insufficient evidence). United States v. King, 87 F.3d 1255 (11th Cir. 1996) (Without proof the defendant *United States v. Sepulveda, 115 F.3d *United States v. Surratt, 87 F.3d 814 committed the burglary, other stolen 882 (11th Cir. 1997) (Evidence did not (6th Cir. 1996) (Defendant’s sexual items, not found in his possession, could support the alleged volume of abuse, unrelated to receiving child not be calculated toward loss). unauthorized calls). pornography did not prove a pattern of activity to increase the offense United States v. Sung, 87 F.3d 194 (7th *United States v. Rutgard, 116 F.3d level). Cir. 1996) (Findings did not establish 1270 (9th Cir. 1997) (That defendant’s reasonable certainty that the defendant business was “permeated with fraud” *United States v. Kemmish, 120 F.3d intended to sell the base level quantity of was too indefinite a finding). 937 (9th Cir.), cert. denied, 522 U.S. counterfeit goods). 1132 (1998) (The defendant did not United States v. Arnous, 122 F.3d 321 engage in a pattern of exploitation). United States v. Allen, 88 F.3d 765 (9th (6th Cir. 1997) (Food stamp fraud Cir.), cert. denied, 520 U.S. 1202 (1997) should have been valued by lost United States v. Fowler, 216 F.3d 459 (Collateral recovered to secure a loan, profits, not the face value of the (5th Cir. 2000) (Child porn was not and the interest paid, was not subtracted stamps). “distributed” for guideline from loss in a fraud case). enhancement). United States v. Sublett, 124 F.3d 693 United States v. Cowart, 90 F.3d 154 (6th (5th Cir. 1997) (Loss during contract United States v. Galo, 239 F.3d 572 Cir. 1996) (Common modus operandi fraud did not include legitimate (3rd Cir. 2001) (Prior state sexual alone, did not make robberies part of a services actually provided). abuse conviction was not proper common scheme). enhancement). *United States v. McIntosh, 124 F.3d United States v. Krenning, 93 F.3d 1257 1330 (10th Cir. 1997) (Failure to (4th Cir. 1996) (Value of rented assets disclose his interest in a residence Sentencing - bore no reasonable relationship to the that the defendant did not own was Fraud / Theft victim’s loss). not bankruptcy fraud). United States v. Comer, 93 F.3d 1271 (6th United States v. Barnes, 125 F.3d 1287 *United States v. Maurello, 76 F.3d Cir. 1996) (Acquitted theft was not (9th Cir. 1997) (Services that were 1304 (3rd Cir. 1996) (Loss to a fraud sufficiently proven to include in loss satisfactorily performed should have victim was mitigated by the value calculations). been subtracted from loss). received by the defendant’s actions). United States v. Coffman, 94 F.3d 330 United States v. Monus 128 F.3d 376 *United States v. Millar, 79 F.3d 338 (7th Cir.), cert. denied, 520 U.S. 1165 (6th Cir. 1997) (Court did not (2d Cir. 1996) (Adjustment for (1997) (Previous fraud using the same adequately explain loss findings). affecting a financial institution was worthless stock was not relevant limited to money received by the conduct). United States v. Cain, 128 F.3d 1249 defendant). (8th Cir. 1997) (Sales made before United States v. Olbres, 99 F.3d 28 (1st defendant was hired were not relevant United States v. Eyoum, 84 F.3d 1004 Cir. 1996) (Adoption of PSI was not a conduct toward fraud). (7th Cir.), cert. denied, 519 U.S. 941 finding of tax loss). (1996) (Fair market value, rather than *United States v. Word, 129 F.3d 1209 the smuggler’s price, should have *United States v. Peterson, 101 F.3d 375 (11th Cir. 1997) (Fraud, before been used to calculate the value of (5th Cir.), cert. denied, 520 U.S. 1161 defendant joined conspiracy, was not illegally smuggled wildlife). (Violation of fiduciary duty alone was relevant conduct). not relevant conduct). United States v. Strevel, 85 F.3d 501 United States v. Melton, 131 F.3d 1400 39 Reversible Errors 2003

(10th Cir. 1997) (Unforeseeable acts of amount). (1st Cir. 1997) (No proof that a fraud could not be attributed to defendant violated a judicial order defendant). United States v. Gonzalez-Alvarez, 277 during a course of fraud). F.3d 73 (1st Cir. 2002) (Illegal product had United States v. Desantis, 134 F.3d no value for calculation). *United States v. Calozza, 125 F.3d 760 (6th Cir. 1998) (Neither 687 (9th Cir. 1997) (Identical defendant’s business failure, nor United States v. Schaefer, 291 F.3d 932 enhancements for separately grouped state administrative findings, were (7th Cir. 2002) (Relevant conduct was counts was double-counting). relevant to fraud case). limited to criminal activity). *United States v. Barakat, 130 F.3d *United States v. Cihak, 137 F.3d 252 1448 (11th Cir. 1997) (Enhancement for (5th Cir.), cert. denied, 525 U.S. 847 Enhancements- sophisticated means could not be (1998) (Fraud of coconspirators must based on acquitted conduct). be foreseeable to defendant to be General relevant conduct). United States v. Tapia, 59 F.3d 1137 (11th Enhancements- United States v. Tatum, 138 F.3d 1344 Cir.), cert. denied, 516 U.S. 953 (1995) (11th Cir. 1998) (Application note (Using phone to call codefendant was Drug Crimes governing fraudulent contract not more than minimal planning). procurement should have been United States v. Ruiz-Castro, 92 F.3d applied rather than theft guideline). *United States v. Miller, 77 F.3d 71 (4th 1519 (10th Cir. 1996) (Court failed to Cir. 1996) (Enhancement for inquire whether the defendant had *United States v. Phath, 144 F.3d 146 manufacturing counterfeit notes did not notice of the government’s intent to (1st Cir. 1998) (Depositing counterfeit apply to those so obviously counterfeit seek an enhanced sentence with a checks and withdrawing money did that they are unlikely to be accepted). prior drug conviction). not require more than minimal planning). United States v. Torres, 81 F.3d 900 (9th *United States v. Ekinci, 101 F.3d 838 Cir. 1996) (Government must prove (2d Cir. 1996) (Unlawful dispensing of United States v. Sapoznik, 161 F.3d sentencing enhancements by a drugs by a doctor was not subject to 1117 (7th Cir. 1999) (Calculation of preponderance of evidence). an enhancement for proximity to a benefits from bribes did not support school). findings). United States v. Kraig, 99 F.3d 1361 (6th Cir. 1996) (Insufficient evidence that the United States v. Mikell, 102 F.3d 470 *United States v. Ponec, 163 F.3d 486 defendant employed sophisticated (11th Cir.), cert. denied, 520 U.S. 1181 (8th Cir. 1999) (No showing that means). (1997) (Defendant who was subject to money withdrawn from defendant’s an enhanced sentence under 21 U.S.C. account came from employer). United States v. Brazel, 102 F.3d 1120 §841, could collaterally attack a prior (11th Cir.), cert. denied, 522 U.S. 822 conviction). United States v. Austin, 239 F.3d 1 (1997) (Sentence could not be enhanced (1st Cir. 2001) (Value of get-away-car with convictions that were not final). *United States v. Chandler, 125 F.3d was not part of loss from bank 892 (5th Cir. 1997) (Enhancement for robbery). United States v. Eshkol, 108 F.3d 1025 drug sale near school only applied (9th Cir.), cert. denied, 522 U.S. 841 (1997) when it was charged by indictment). United States v. Titchell, 261 F.3d 348 (Only existing counterfeit bills could be (3rd Cir. 2001) (Court must make counted toward upward adjustment). *United States v. Hudson, 129 F.3d detailed analysis of potential loss and 994 (8th Cir. 1997) (Firearm intended loss). *United States v. DeMartino, 112 F.3d 75 enhancement was not proven). (2d Cir. 1997) (Court was without United States v. Liss, 265 F.3d 1220 authority to increase a sentence that was United States v. Sanchez, 138 F.3d (11th Cir. 2001) (Government must not mere clerical error). 1410 (11th Cir. 1998) (Court must hold present evidence to support amount a hearing if defendant challenges of loss when defendant objects to *United States v. Shadduck, 112 F.3d 523 validity of a prior drug conviction 40 Reversible Errors 2003

used for statutory enhancement). *United States v. Szakacs, 212 F.3d 344 double counting in case for using (7th Cir. 2000) (Possession of firearm had firearm during crime of violence). United States v. Saavedra, 148 F.3d no connection to drugs). 1311 (11th Cir. 1998) (Defendant could *United States v. Reyes-Oseguera, not receive increase for selling drugs Watterson v. United States, 219 F.3d 232 106 F.3d 1481 (9th Cir. 1997) (Flight on near school unless so charged). (3rd Cir. 2000) (No enhancement for foot was insufficient for reckless drugs in proximity to school unless endangerment enhancement). United States v. Hass, 150 F.3d 443 charged under that statute). (5th Cir. 1998) (Nonfinal state United States v. Dodson, 109 F.3d 486 conviction could not be basis for United States v. Highsmith, 268 F.3d 1141 (8th Cir. 1997) (Lacked proof of bodily statutory enhancement of drug (9th Cir. 2001) (No enhancement when injury for enhancement). sentence). defendant had access to firearm, but no knowledge that it was there). United States v. Sawyer, 115 F.3d 857 United States v. Schmalzried, 152 F.3d (11th Cir. 1997) (Enhancement for 354 (5th Cir. 1998) (Government failed United States v. Cooper, 274 F.3d 230 bodily injury was not supported by to connect firearm to drug offense). (5th Cir. 2001) (Firearm neither found near alleged psychological injury). drugs nor used in connection to drug United States v. Rettelle, 165 F.3d 489 activities). United States v. Drapeau, 121 F.3d 344 (6th Cir. 1999) (Mandatory minimum (8th Cir. 1997) (Enhancement for controlled by drugs associated with assaulting a government official conviction only). Enhancements- applicable only when official is victim of the offense). United States v. Hands, 184 F.3d 1322 Violence (11th Cir. 1999) (Domestic abuse was United States v. Sovie, 122 F.3d 122 irrelevant to drug conspiracy). United States v. Murray, 82 F.3d 361 (2d Cir. 1997) (Evidence to support (10th Cir. 1996) (In assault case, an enhancement for intending to carry United States v. Crawford, 185 F.3d enhancement for discharging a firearm out threat was insufficient). 1024 (9th Cir. 1999) (Proximity to did not apply to shots fired after the school must be charged in order for assault). United States v. Bourne, 130 F.3d 1444 enhancement to apply). (11th Cir. 1997) (Applying both *United States v. Alexander, 88 F.3d 427 brandishing weapon and threat of *United States v. Garrett, 189 F.3d 610 (6th Cir. 1996) (Note indicating the death enhancements was double (7th Cir. 1999) (Guilty plea colloquy presence of a bomb, and a request to counting). was not admission to crack, as cooperate to prevent harm, during a bank opposed to powder, for sentencing robbery, was not an express threat of *United States v. Hayes, 135 F.3d 435 purposes). death). (6th Cir. 1998) (Enhancements for reckless endangerment, and assault, *United States v. Chastain, 198 F.3d United States v. Shenberg, 89 F.3d 1461 during flight, were double counting). 1338 (11th Cir. 1999) (Improper (11th Cir.), cert. denied, 519 U.S. 1117 enhancement for use of private plane (1997) (More than minimal planning United States v. Tolen, 143 F.3d 1121 in drug case). increase did not apply to plan to assault (8th Cir. 1998) (Putting hand in pocket a fictitious informant). and warning to cooperate or “no one United States v. Takahashi, 205 F.3d will get hurt” was not express threat of 1161 (9th Cir. 2000) (Enhancement for United States v. Tavares, 93 F.3d 10 (1st death). drug crime in protected area must be Cir.), cert. denied, 519 U.S. 955 (1996) pleaded and proven before a finding (Finding that an aggravated assault United States v. Kushmaul, 147 F.3d of guilt). occurred was inconsistent with a finding 498 (6th Cir. 1998) (Holding baseball of no serious bodily injury). bat was not”otherwise used”). United States v. Smith, 210 F.3d 760 (7th Cir. 2000) (Tossing drugs out *United States v. Triplett, 104 F.3d 1074 *United States v. Thomas, 155 F.3d window during chase was not (8th Cir.), cert. denied, 520 U.S. 1236 833 (7th Cir. 1999) (Intent to carry out reckless endangerment). (1997) (Threat of death adjustment was threat could not be proven by criminal 41 Reversible Errors 2003

history). bodily injury). deceit, was not aggravated felony).

United States v. Smith, 156 F.3d 1046 *United States v. Campbell, 259 F.3d 293 United States v. Robles-Rodriguez, (10th Cir. 1999) (Insufficient evidence (4th Cir. 2001) (Enhanced statutory 281 F.3d 900 (9th Cir. 2002) of actual or threatened force or maximum for use of deadly or dangerous (Conviction for which maximum is violence). weapon required pleading and proof probation is not aggravated felony). beyond reasonable doubt). United States v. Richardson, 161 F.3d United States v. Hernandez- 728 (D.C. Cir. 1999) (Burglary was not United States v. Atwater, 272 F.3d 511 Castellanos, 287 F.3d 876 (9th Cir. shown to be crime of violence). (7th Cir. 2001) (Five-level enhancement 2002) (Arizona felony endangerment is cannot be based on assumption that all not an aggravated felony). *United States v. Anglin, 169 F.3d 154 bank robbers use firearms). (2d Cir. 1999) (Bank tellers were not Career physically restrained). Enhancements- United States v. Leahy, 169 F.3d 433 Enhancements (7th Cir. 1999) (Departure of 10 levels Immigration for analogous terrorism enhancement *United States v. Talbott, 78 F.3d 1183 was unreasonable). *United States v. Fuentes-Barahona, 111 (7th Cir. 1996) (Under the Armed F.3d 651 (9th Cir. 1997) (Conviction Career Criminal Act guidelines, “felon United States v. Zendeli, 180 F.3d 879 occurring before effective date of in possession” was not a crime of (7th Cir. 1999) (Enhancement for guideline amendment could not be violence). injury did not apply to codefendant’s considered as aggravated felony). injury). *United States v. Sparks, 87 F.3d 276 United States v. Herrerra-Solorzano, 114 (9th Cir. 1996) (Attempted home United States v. Charles, 209 F.3d F.3d 48 (5th Cir. 1997) (Prior probated invasion was not a violent felony 1088 (8th Cir. 2000) (Two convictions, felony was not an aggravated felony in under the Armed Career Criminal Act). sentenced simultaneously, should an illegal reentry case). have only counted as one prior crime *United States v. Murphy, 107 F.3d of violence). United States v. Reyna-Espinosa, 117 1199 (6th Cir. 1997) (Two prior F.3d 826 (5th Cir. 1997) (Prior conviction robberies were a single episode under United States v. Brock, 211 F.3d 88 for being an alien in unlawful possession Armed Career Criminal Act). (4th Cir. 2000) (Enhancement for of a firearm was not an aggravated multiple threats was incompatible with felony). United States v. Bennett, 108 F.3d base level for no threats). 1315 (10th Cir. 1997) (There was no *United States v. Viramontes-Alvarado, proof that a prior burglary involved a Castillo v. United States, 530 U.S. 120 149 F.3d 912 (9th Cir.), cert. denied, 525 dwelling or physical force under (2000) (In order to get aggravated U.S. 976 (1998) (Noncitizen’s priors were career offender provisions). sentence for carrying a firearm during not aggravated felonies). crime of violence, use of a United States v. Hicks, 122 F.3d 12 machinegun must be proven as United States v. Avila-Ramirez, 170 F.3d (7th Cir. 1997) (Burglary of a building element of offense). 277 (2d Cir. 1999) (Defendant’s prior was not a crime of violence for career aggravated felony was not a listed offender enhancement). United States v. Franks, 230 F.3d 811 offense at the time of his reentry). (5th Cir. 2000) (Cannot receive United States v. Rogers, 126 F.3d 655 enhancement for “express threat of United States v. Guzman-Bera, 216 F.3d (5th Cir. 1997) (Attempted drug crime death” as well as conviction for use 1019 (11th Cir. 2000) (Theft was not did not support career offender of a firearm during a crime of aggravated felony at time of deportation enhancement). violence). and reentry). *United States v. Covington, 133 F.3d United States v. Wright, 248 F.3d 765 Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 639 (8th Cir. 1998) (Evidence did not (8th Cir. 2001) (No evidence of serious 2002) (Embezzlement, without fraud or show imprisonment within last 15 42 Reversible Errors 2003

years on predicate offense used for crime of violence). United States v. Mason, 284 F.3d 555 career offender enhancement). (4th Cir. 2002) (Juvenile robbery *United States v. Peterson, 233 F.3d 101 conviction was not career offender United States v. Gottlieb, 140 F.3d 865 (1st Cir. 2000) (Defendant’s prior for predicate). (10th Cir. 1998) (Defendant breaking and entering did not meet established that no firearm or definition of violent felony under dangerous weapon was used in prior ACCA). Cross conviction defeating Three Strikes enhancement). United States v. Concha, 233 F.3d 1249 References (10th Cir. 2000) (Foreign convictions are United States v. Dahler, 143 F.3d 1084 not predicates under ACCA). United States v. Lagasse, 87 F.3d 18 (7th Cir. 1998) (Defendant whose (1st Cir. 1996) (There was no link rights were restored was not armed United States v. Matthews, 240 F.3d 806 between a knife-point robbery of a career criminal). (9th Cir. 2001) (Court lacked documentary coconspirator, and the charged drug evidence to find prior conviction proven conspiracy, to justify an increase in *United States v. McElyea, 158 F.3d under ACCA). sentence). 1016 (9th Cir. 1999) (Crimes of a single transaction may not be counted United States v. Brandon, 247 F.3d 186 *United States v. Aderholt, 87 F.3d separately under Armed Career (4th Cir. 2001) (Absent an element of 740 (5th Cir. 1996) (Murder guidelines Criminal Act). intent to distribute or manufacture, prior were improperly applied in a mail fraud was not a serious drug felony). conspiracy because murder was not *United States v. Thomas, 159 F.3d an object of the conspiracy). 296 (7th Cir.), cert. denied, 527 U.S. *Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 1023 (1999) (Statutory rape without 2001) (Not all felony DUIs in New York United States v. Meacham, 115 F.3d violence was not predicate crime are crimes of violence). 1488 (10th Cir. 1997) (Transportation under Armed Career Criminal Act). of a child, not involving prostitution United States v. Trinidad-Aquino, 259 or production of a visual depiction, United States v. Richardson, 166 F.3d F.3d 1140 (9th Cir. 2001) (California DUI required cross reference to lower base 1360 (11th Cir. 1999) (Prior conviction was not crime of violence). level for sexual contact). under Armed Career Criminal Act must occur before felon in possession United States v. Sparks, 265 F.3d 825 (9th *United States v. Jackson, 117 F.3d violation). 2001) (Burglary of a storage locker was 533 (11th Cir. 1997) (Police officer not violent felony). convicted of theft should not have United States v. Wilson, 168 F.3d 916 been sentenced under civil rights (6th Cir. 1999) (Burglary of a building United States v. Tighe, 266 F.3d 1187 (9th guidelines). is not a career offender predicate Cir. 2001) (Prior juvenile adjudications unless it involves physical force, or that do not provide for jury trial must be United States v. Cross, 121 F.3d 234 its threat or attempt). pled and proven beyond a reasonable (6th Cir. 1997) (Torture was not doubt). relevant conduct in a drug case). *United States v. Sacko, 178 F.3d 1 (1st Cir. 1999) (Court could not look at United States v. Fulford, 267 F.3d 1241 *United States v. Sanders, 162 F.3d facts of prior conviction to determine (11th Cir. 2001) (Court may not consider 396 (6th Cir. 1999) (Possibility that whether it was a violent felony). charging information of prior conviction). defendant could have been charged with state burglary did not mean *United States v. Casarez-Bravo, 181 Francis v. Reno, 269 F.3d 162 (3d Cir. firearm was used in connection with F.3d 1074 (9th Cir. 1999) (Prior 2001) (Pennsylvania vehicular homicide another offense). conviction not counted under criminal was not crime of violence). history cannot be used as career *United States v. Mezas De Jesus, 217 offender predicate). United States v. Allen, 282 F.3d 339 (5th F.3d 638 (9th Cir. 2000) (Kidnaping, Cir. 2002) (Court could not find prior was used to enhance sentence, needed to United States v. Martin, 215 F.3d 470 a serious drug offense solely based on be proven by clear and convincing (4th Cir. 2000) (Bank larceny is not a police report). evidence). 43 Reversible Errors 2003

United States v. Shabazz, 263 F.3d 603 1050 (1999) (Money laundering, unrelated United States v. Medina-Estrada, 81 (6th Cir. 2001) (Use base level, not to defendant’s position, did not warrant F.3d 981 (10th Cir. 1996) (Court must total offense level, when calculating abuse of trust). have found all elements of perjury accessory after the fact). were proven to give enhancement for United States v. Holt, 170 F.3d 698 (7th obstruction of justice). United States v. Taylor, 272 F.3d 980 Cir. 1999) (Part-time police officer did not (7th Cir. 2001) (Shooting must be justify abuse of trust enhancement). United States v. Hernandez, 83 F.3d directly related to escape to enhance 582 (2d Cir. 1996) (Staring at a witness sentence). United States v. Guidry, 199 F.3d 1150 and calling them “the devil,” did not (10th Cir. 1999) (Defendant must have justify enhancement for intimidation). United States v. Stubbs, 279 F.3d 402 relationship of trust with victim for abuse (6th Cir. 2002) (Conviction for of trust to apply). United States v. Sisti, 91 F.3d 305 (2d conspiracy cannot be sentenced as Cir. 1996) (Obstruction of justice was substantive offense). United States v. Tribble, 206 F.3d 634 (6th only proper for conduct related to the Cir. 2000) (Postal window clerk did not conviction). United States v. Thomas, 280 F.3d hold position of trust). 1149 (7th Cir. 2002) (Insufficient *United States v. Ruggiero, 100 F.3d evidence to warrant homicide cross United States v. Ward, 222 F.3d 909 (11th 284 (2d Cir.), cert. denied, 522 U.S. reference). Cir. 2000) (Bank guard did not occupy 1138 (1998) (Judge properly refused to position of trust). apply an obstruction of justice enhancement). Abuse of Trust United States v. Willard, 230 F.3d 1093 (9th Cir. 2000) (Motherhood alone is not *United States v. Draves, 103 F.3d *United States v. Jolly, 102 F.3d 46 a position of trust under the guidelines). 1328 (7th Cir.), cert. denied, 521 U.S. (2d Cir. 1996) (Corporate principal 1127 (1997) (Fleeing from a police car could not get abuse of trust United States v. Trice, 245 F.3d 1041 (8th was not obstruction of justice). enhancement for defrauding Cir. 2001) (Abuse of trust adjustment did investors). not apply to arms-length business United States v. Harris, 104 F.3d 1465 relationship). (5th Cir.), cert. denied, 522 U.S. 833 United States v. Long, 122 F.3d 1360 (1997) (Actions of accessory after the (11th Cir. 1997) (Abuse of trust United States v. Hoskins, 282 F.3d 772 fact did not justify obstruction enhancement did not apply to prison (9th Cir. 2002) (Security guard who enhancement when those same acts employee who brought in robbed store did not have position of supported the substantive offense). contraband). trust). United States v. Zagari, 111 F.3d 307 *United States v. Garrison, 133 F.3d (2d Cir. 1997) (No finding to support 831 (11th Cir. 1998) (Owner of a health Obstruction of obstruction enhancement). care provider did not occupy position of trust with Medicare). Justice *United States v. Tackett, 113 F.3d 603 (6th Cir.), cert. denied, 522 U.S. United States v. Burt, 134 F.3d 997 United States v. Williams, 79 F.3d 334 (2d 1089 (1998) (Court failed to find that (10th Cir. 1998) (Deputy sheriff’s drug Cir. 1996) (In order to justify an government resources were wasted dealing did not merit abuse of trust or obstruction of justice enhancement, the for obstruction enhancement). special skills enhancements). court had to find the defendant knowingly made a false statement under United States v. Sawyer, 115 F.3d 857 United States v. Reccko, 151 F.3d 29 oath). (11th Cir. 1997) (Sentencing increase (1st Cir. 1998) (Police switchboard for reckless endangerment only operator did not occupy position of *United States v. Strang, 80 F.3d 1214 applied to defendant fleeing law trust). (7th Cir. 1996) (Perjury in another case enforcement officer, not civilians). did not warrant an obstruction of justice *United States v. Wadena, 152 F.3d enhancement in the instant case). *United States v. Sassanelli, 118 F.3d 831 (8th Cir.), cert. denied, 526 U.S. 495 (6th Cir. 1997) (Obstruction 44 Reversible Errors 2003

findings did not specify which convicted of threatening communications (1998) (Asian-American merchants statements were materially did not obstruct justice by sending were not vulnerable victims). untruthful). additional threatening letter). United States v. Hogan, 121 F.3d 370 *United States v. Solano-Godines, *United States v. Woodard, 239 F.3d 159 (8th Cir. 1997) (Victims must have 120 F.3d 957 (9th Cir.), cert. denied, (2d Cir. 2001) (Unless defendant left been targeted in order to be 522 U.S. 1061 (1998) district intending to miss court, it was considered vulnerable). (Misrepresentation by the defendant not obstruction). did not obstruct justice). United States v. Monostra, 125 F.3d United States v. Shabazz, 263 F.3d 603 183 (3rd Cir. 1997) (Victim’s United States v. Webster, 125 F.3d (6th Cir. 2001) (Obstruction applies only vulnerability must facilitate the crime 1024 (7th Cir. 1997) (Finding that the to crime of conviction). in some manner). defendant testified falsely lacked specificity). United States v. McGiffen, 267 F.3d 581 United States v. McCall, 174 F.3d 47 (7th Cir. 2001) (Conclusions about (2d Cir. 1999) (Vulnerable victim United States v. Senn, 129 F.3d 886 defendant’s testimony were not specific enhancement is not a relative (7th Cir. 1997) (Lying about minor findings). standard). details to grand jury was not obstruction). Ortega v. United States, 270 F.3d 540 (8th United States v. Pospisil, 186 F.3d Cir. 2001) (Failed polygraph does not 1023 (8th Cir. 1999) (No evidence that United States v. Norman, 129 F.3d merit adjustment). defendant knew victims were 1393 (10th Cir. 1997) (Concealing vulnerable). drugs at scene of crime was not United States v. Jenkins, 275 F.3d 283 obstruction). (3rd Cir. 2001) (Failing to appear at related United States v. Castaneda, 239 F.3d state proceeding was not obstruction). 978 (9th Cir. 2001) (Club workers who United States v. McRae, 156 F.3d 708 were encouraged to provide sexual (6th Cir. 1999) (Insufficient findings of United States v. Williams, 288 F.3d 1079 services for fees were not vulnerable obstruction of justice). (8th Cir. 2002) (Giving a false name at time victims). of arrest did not hinder investigation). United States v. Jones, 159 F.3d 969 (6th Cir. 1999) (Irrelevant false Aggravating testimony did not support Vulnerable obstruction of justice). Role Victim United States v. Koeberlein, 161 F.3d United States v. Ivy, 83 F.3d 1266 946 (6th Cir. 1999) (Failure to appear *United States v. Castellanos, 81 F.3d (10th Cir.), cert. denied, 519 U.S. 901 on unrelated offense was not 108 (9th Cir. 1996) (Merely because a (1996) (Insufficient findings for a obstruction). fraud scheme used Spanish language managerial role). media, did not justify an enhancement for United States v. Monzon-Valenzuela, victims particularly susceptible to fraud). United States v. Lozano-Hernandez, 186 F.3d 1181 (9th Cir. 1999) (Absent 89 F.3d 785 (11th Cir. 1996) perjury finding, adjustment for *United States v. Stover, 93 F.3d 1379 (Leadership role in drug conspiracy obstruction did not apply). (8th Cir. 1996) (Persons’ desire to adopt was not proven). children did not make them vulnerable United States v. Gage, 183 F.3d 711 victims of an adoption agency). United States v. Patasnik, 89 F.3d 63 (7th Cir. 1999) (Defendant’s denial (2d Cir. 1996) (Management role had that his robbery note mentioned a *United States v. Shumway, 112 F.3d to be based on managing people, not firearm did not justify obstruction 1413 (10th Cir. 1997) (Prehistoric skeletal assets). adjustment). remains were not vulnerable victims). United States v. Wester, 90 F.3d 592 United States v. Amsden, 213 F.3d *United States v. Robinson, 119 F.3d (1st Cir. 1996) (Court failed to make 1014 (8th Cir. 2000) (Defendant 1205 (5th Cir.), cert. denied, 522 U.S. 1139 findings there were five or more 45 Reversible Errors 2003

participants). (8th Cir. 1997) (Record did not support United States v. Moeller, 80 F.3d 1053 upward role adjustment). (5th Cir. 1996) (No leadership role for a United States v. Miller, 91 F.3d 1160 government official who inherited an (8th Cir. 1996) (Lack of evidence that United States v. Makiewicz, 122 F.3d 399 historically corrupt system, but the the defendant controlled others (7th Cir. 1997) (Defendant was not a defendant’s lack of understanding of precluded a leadership role). leader for asking his father to accompany the entire scheme justified a minimal informant to motel). role adjustment). *United States v. Albers, 93 F.3d 1469 (10th Cir. 1996) (Leadership role could United States v. Del Toro-Aguilar, 138 *United States v. Miranda-Santiago, not be based solely on defendant’s F.3d 340 (8th Cir. 1998) (Occasionally 96 F.3d 517 (1st Cir. 1996) (There was importance to the success of the fronting drugs to coconspirators did not an insufficient basis to deny a minor conspiracy). justify upward role adjustment). role reduction).

*United States v. Delpit, 94 F.3d 1134 *United States v. Alred, 144 F.3d 1405 *United States v. Haut, 107 F.3d 213 (8th Cir. 1996) (Murder-for-hire (11th Cir. 1998) (Defendant was not an (3rd Cir.), cert. denied, 521 U.S. 1127 scheme had less than five organizer). (1997) (Arson defendants who worked participants). at direction of others were minimal United States v. Lopez-Sandoval, 146 participants). United States v. Avila, 95 F.3d 887 F.3d 712 (9th Cir. 1998) (Defendant was (9th Cir. 1996) (Defendant who was not an organizer). *United States v. Snoddy, 139 F.3d the sole contact between a buyer and 1224 (8th Cir. 1998) (Sole charged a seller was not an organizer). *United States v. Glinton, 154 F.3d 1245 defendant may receive minor role (11th Cir.), cert. denied, 119 S.Ct. 1281 when justified by relevant conduct). United States v. Jobe, 101 F.3d 1046 (No managerial role for defendant who (5th Cir.), cert. denied, 522 U.S. 823 did not supervise or control others). United States v. Neils, 156 F.3d 382 (1997) (Defendant’s position as bank (2d Cir. 1999) (Defendant who merely director did not justify managerial role United States v. Walker, 160 F.3d 1078 steered buyers was minor participant). when he did not manage or supervise (6th Cir.), cert. denied, 526 U.S. 1056 others). (1999) (Insufficient evidence of organizer role). Acceptance of United States v. DeGovanni, 104 F.3d 43 (3rd Cir. 1997) (Corrupt police United States v. Graham, 162 F.3d 1180 Responsibility sergeant was not a supervisor merely (D.C. Cir. 1999) (Conclusionary statement because of his rank). that defendant was lieutenant did not United States v. Fells, 78 F.3d 168 (5th justify role adjustment). Cir.), cert. denied, 519 U.S. 847 (1996) United States v. Eidson, 108 F.3d 1336 (Defendant making a statutory (11th Cir.), cert. denied, 118 S.Ct. 248 United States v. Tank, 200 F.3d 627 (9th challenge, could still qualify for (1997) (Clean Water Act violation Cir. 2000) (Insufficient evidence of acceptance of responsibility). lacked five participants for role defendant’s leadership role). adjustment). United States v. Patino-Cardenas, 85 United States v. Barrie, 267 F.3d 220 (3d F.3d 1133 (5th Cir. 1996) (No basis to United States v. Gort-Didonato, 109 Cir. 2001) (One-time transaction did not deny credit when the defendant did F.3d 318 (6th Cir. 1997) (To impose an show leadership role). not falsely deny relevant conduct). upward role adjustment, the defendant must have supervised at United States v. Schuh, 289 F.3d 968 (7th United States v. Garrett, 90 F.3d 210 least one person). Cir. 2002) (Tavern owner who allowed (7th Cir. 1996) (Defendant could not drug transactions in bar was not a leader be denied acceptance when he filed an United States v. Bryson, 110 F.3d 575 or organizer). uncounseled, pro se motion to (8th Cir. 1997) (Facts did not support withdraw plea after his attorney died). upward adjustment for role). Mitigating Role United States v. Flores, 93 F.3d 587 United States v. Logan, 121 F.3d 1172 (9th Cir. 1996) (Defendant should have 46 Reversible Errors 2003

received credit for his written to full three-level reduction for United States v. Wilson, 105 F.3d 219 statement). acceptance). (5th Cir.), cert. denied, 522 U.S. 847 (1997) (Co-conspirator’s use of a *United States v. Atlas, 94 F.3d 447 United States v. Corona-Garcia, 210 F.3d firearm did not bar application of the (8th Cir.), cert. denied, 520 U.S. 1130 973 (9th Cir. 2000) (Even after trial, safety valve). (1997) (Defendant who timely defendant could receive full credit for accepted responsibility must be given acceptance when he confessed fully and United States v. Osei, 107 F.3d 101 (2d the additional one-level downward immediately upon arrest). Cir. 1997) (Two-level safety valve adjustment). adjustment applied regardless of United States v. Ochoa-Gaytan, 265 F.3d mandatory minimum). United States v. Ruggiero, 100 F.3d 837 (9th Cir. 2001) (Defendant could get 284 (2d Cir. 1996) (Single false denial acceptance even after trial). *United States v. Clark, 110 F.3d 15 did not bar credit for acceptance of (6th Cir. 1997) (Safety valve applied to responsibility). United States v. Burgos, 276 F.3d 1284 cases that were on appeal at effective (11th Cir. 2001) (Court could not penalize date). United States v. McPhee, 108 F.3d 287 defendant for refusal to cooperate). (11th Cir. 1997) (Defendant who United States v. Mertilus, 111 F.3d 870 qualified should not have been given (11th Cir. 1997) (Safety valve applied less than the full three-point Safety Valve to a telephone count). reduction for timely accepting responsibility). *United States v. Shrestha, 86 F.3d 935 *United States v. Mihm, 134 F.3d 1353 (9th Cir. 1996) (Eligibility for the safety (8th Cir. 1998) (Court failed to consider *United States v. Guerrero-Cortez, 110 valve did not depend on acceptance of safety valve at resentencing). F.3d 647 (8th Cir.), cert. denied, 522 responsibility). U.S. 1017 (1998) (Defendant’s pretrial United States v. Carpenter, 142 F.3d statements of acceptance justified United States v. Flanagan, 87 F.3d 121 333 (6th Cir. 1998) (Refusal to testify reduction though case was tried). (5th Cir. 1996) (On remand, the did not bar safety valve). sentencing court could withdraw a United States v. Marroquin, 136 F.3d leadership role so the defendant could United States v. Gama-Bastidas, 142 220 (1st Cir. 1998) (Creation of a lab qualify for safety valve). F.3d 1233 (10th Cir. 1998) (Court failed report was not the type of trial to make findings regarding preparation to deny extra point off for *United States v. Real-Hernandez, 90 applicability of safety valve). accepting responsibility). F.3d 356 (9th Cir. 1996) (To be eligible for safety valve, a defendant did not need to *United States v. Kang, 143 F.3d 379 United States v. Fisher, 137 F.3d 1158 give information to a specific agent). (8th Cir. 1998) (Defendant could not (9th Cir. 1998) (Despite not guilty be denied safety valve because plea, admission in open court could United States v. Beltran-Ortiz, 91 F.3d 665 government claimed he was untruthful be acceptance). (4th Cir. 1996) (Failure to debrief the absent supporting evidence). defendant, thus preventing him from *United States v. McKittrick, 142 F.3d benefitting from the safety valve, United States v. Clavijo, 165 F.3d 1341 1170 (9th Cir.), cert. denied, 525 U.S. violated the plea agreement). (11th Cir. 1999) (Unforeseen 1072 (1998) (Defendant who did not possession of firearm by contest facts at trial may be eligible *United States v. Miranda-Santiago, 96 coconspirator does not bar safety for acceptance). F.3d 517 (1st Cir. 1996) (Government had valve relief). to rebut the defendant’s version in order United States v. Ellis, 168 F.3d 558 to deny safety valve). United States v. Ortiz-Santiago, 211 (1st Cir. 1999) (Defendant who went F.3d 146 (1st Cir. 2000) (Plea to trial was still potentially eligible for United States v. Sherpa, 97 F.3d 1239 (9th agreement prohibiting further timely acceptance of responsibility). Cir.), amended, 110 F.3d 656 (1997) (Even adjustments did not preclude safety a defendant who claimed innocence was valve). United States v. Rice, 184 F.3d 740 eligible if he met requirements). (8th Cir. 1999) (Defendant was entitled United States v. Lopez, 264 F.3d 527 47 Reversible Errors 2003

(5th Cir. 2001) (It does not matter in *United States v. Gilcrist, 106 F.3d 297 substantially in excess of typical fraud which order the court applies the (9th Cir. 1997) (Sentence, upon which case). guidelines). parole began over 15 years ago, could not be counted toward criminal history). *United States v. Henderson, 75 F.3d United States v. Warnick, 287 F.3d 614 (11th Cir. 1996) (Upward departure 299 (4th Cir. 2002) (Safety valve not United States v. Huskey, 137 F.3d 283 for multiple weapons in a drug case limited to statutes named in (5th Cir. 1998) (Prior convictions in same was improper). guideline). information were related cases for counting criminal history). United States v. Blackwell, 81 F.3d 945 (10th Cir. 1996) (Court did not have Criminal United States v. Walker, 142 F.3d 103 (2d jurisdiction to increase a sentence Cir.), cert. denied, 525 U.S. 896 (1998) after judgement was final). History (Prior convictions for offenses that were calculated into offense level should not United States v. Harrington, 82 F.3d 83 *United States v. Spell, 44 F.3d 936 have received criminal history points). (5th Cir. 1996) (Court should not have (11th Cir. 1995) (Judgement was the upwardly departed for a defendant’s only conclusive proof of prior United States v. Hernandez, 145 F.3d status as an attorney without first convictions). 1433 (11th Cir. 1998) (Arrest warrant did considering application of abuse of not determine nature of prior conviction). trust). United States v. Douglas, 81 F.3d 324 (2d Cir.), cert. denied, 517 U.S. 1251 United States v. Torres, 182 F.3d 1156 *United States v. Sherwood, 98 F.3d (1996) (Juvenile sentence, more than (10th Cir. 1999) (Prior convictions that are 402 (9th Cir. 1996) (Just because five years old, was incorrectly relevant conduct may not be counted victims were almost vulnerable, did applied). toward criminal history). not justify an upward departure).

United States v. Cox, 83 F.3d 336 (10th United States v. Thomas, 211 F.3d 316 United States v. LeCompte, 99 F.3d Cir. 1996) (Proper to attack a (6th Cir. 2000) (Two prior rapes were a 274 (8th Cir. 1996) (Justification was guidelines sentence when prior single transaction). based on guideline amendment after convictions were later successfully offense occurred). attacked). United States v. Arnold, 213 F.3d 894 (5th Cir. 2000) (Sentence of less than a year *United States v. Valentine, 100 F.3d *United States v. Parks, 89 F.3d 570 and a day must be imposed within ten 1209 (6th Cir. 1996) (The difference (9th Cir. 1996) (No criminal history years of offense to count toward criminal between seven and five offenses did points could be attributed to a history). not justify departure for multiple defendant when indigence prevented counts). payment of fines). United States v. Stuckey, 220 F.3d 976 (8th Cir. 2000) (Military prior was not United States v. Mangone, 105 F.3d 29 United States v. Flores, 93 F.3d 587 serious drug offense). (1st Cir.), cert. denied, 510 U.S. 1258 (9th Cir. 1996) (Court erroneously (1997) (Failure to give notice of twice counted a single probation United States v. Morales, 239 F.3d 113 upward departure was plain error). revocation to increase two prior (2d Cir. 2001) (No criminal history point convictions). for 2nd degree harassment). *United States v. Otis, 107 F.3d 487 (7th Cir. 1997) (Failure to give notice United States v. Ortega, 94 F.3d 764 of an upward departure was plain (2d Cir. 1996) (Uncounseled Upward error). misdemeanor was improperly counted). Departures United States v. Arce, 118 F.3d 335 (5th Cir. 1997) (Manufacturing firearms United States v. Easterly, 95 F.3d 535 United States v. Thomas, 62 F.3d 1332 was not a basis for upward departure). (7th Cir. 1996) (Fish and game (11th Cir.), cert. denied, 516 U.S. 1166 violation should not have been (1996) (Consequential damages did not United States v. White, 118 F.3d 739 counted). justify an upward departure unless it was (11th Cir. 1997) (Lenient guideline 48 Reversible Errors 2003

range was not a ground for upward (9th Cir. 1998) (Upward departure based departure). upon factor considered by guidelines Departures was double counting). *United States v. DePace, 120 F.3d United States v. Rodriguez, 64 F.3d 233 (11th Cir.), cert. denied, 523 U.S. *United States v. Van Metre, 150 F.3d 638 (11th Cir. 1995) (Downward 1153 (1998) (Upward departure was 339 (4th Cir. 1998) (Commentary Note on departure was allowed to give credit without notice). grouping did not provide basis for for acceptance of responsibility on upward departure). consecutive sentences). United States v. Johnson, 121 F.3d 1141 (8th Cir. 1997) (Defendant did United States v. Johnson, 152 F.3d 553 Koon v. United States, 518 U.S. 81 not get notice of upward departure). (6th Cir. 1998) (Arson was within (1996) (A district court could depart heartland of cases and did not justify from the guidelines if (1) the reason United States v. Stein, 127 F.3d 777 upward departure). was not specifically prohibited by the (9th Cir. 1997) (Upward departure guidelines; (2) the reason was based on more than minimal planning United States v. Lawrence, 161 F.3d 250 discouraged by the guidelines but and multiple victims was (4th Cir. 1999) (Must specify findings to exceptional circumstances apply; or unwarranted). depart up for under-representation of (3) the reason was neither prohibited criminal history). nor discouraged, and the reason was United States v. Corrigan, 128 F.3d not previously addressed by the 330 (6th Cir. 1997) (Neither, number of United States v. Whiteskunk, 162 F.3d applicable guideline provisions in that victims, number of schemes, nor 1244 (10th Cir. 1999) (Upward departure case). amount of loss, supported upward must include some method of analogy, departure). extrapolation, or reference to the *United States v. Conway, 81 F.3d 15 guidelines). (1st Cir. 1996) (Court could not refuse United States v. Candelario-Cajero, a downward departure based upon 134 F.3d 1246 (5th Cir. 1998) (Absent *United States v. Jacobs, 167 F.3d 792 information received as part of a an upward departure, grouped counts (3rd Cir. 1999) (Court did not adequately cooperation agreement). cannot receive consecutive explain upward departure for sentences). psychological injury). United States v. Graham, 83 F.3d 1466 (10th Cir.), cert. denied, 519 U.S. 1132 United States v. Terry, 142 F.3d 702 United States v. Higgins, 270 F.3d 1070 (1997) (Extreme vulnerability to abuse (4th Cir. 1998) (Extent of upward (7th Cir. 2001 (Bank fraud did not justify in prison could justify a downward departure was not supported by ten-level departure). departure). findings). United States v. Guzman, 282 F.3d 177 (2d *United States v. Walters, 87 F.3d 663 *United States v. Hinojosa-Gonzales, Cir. 2002) (Court should have begun (5th Cir.), cert. denied, 519 U.S. 1000 142 F.3d 1122 (9th Cir.), cert. denied, departure from guideline of charged (1996) (Downward departure was 525 U.S. 1033 (1999) (Defendant did offense). approved for a defendant who did not not get adequate notice of upward personally benefit from money departure). United States v. Walker, 284 F.3d 1169 laundering). (10th Cir. 2002) (No justification for *United States v. G.L., 143 F.3d 1249 departure for under-representation of *United States v. Cubillos, 91 F.3d (9th Cir. 1998) (Lenient theft criminal history). 1342 (9th Cir. 1996) (Basis for guidelines did not justify upward downward departure could no longer departure). United States v. Diaz, 285 F.3d 92 (1st Cir. be categorically rejected after Koon). 2002) (Improper departure for inadequate *United States v. Almaguer, 146 F.3d criminal history and substantial risk of *United States v. Jaroszenko, 92 F.3d 474 (7th Cir. 1998) (Use of firearm was death). 486 (7th Cir. 1996) (Remorse could be included in guideline and did not considered as a ground for downward justify upward departure). Downward departure). United States v. Nagra, 147 F.3d 875 United States v. Sanders, 97 F.3d 856 49 Reversible Errors 2003

(6th Cir. 1996) (Downward departure was entitled to an evidentiary hearing to intended loss was plain error). was available for an Armed Career determine if the government’s failure to Criminal). move for a reduced sentence was United States v. Fagan, 162 F.3d 1280 irrational, in bad faith, or (10th Cir. 1999) (Court could depart United States v. Olbres, 99 F.3d 28 unconstitutionally motivated). downward for exceptional remorse). (1st Cir. 1996) (Court could grant departure for effect on innocent United States v. Clark, 128 F.3d 122 (2d *United States v. Jones, 160 F.3d 473 employees of the defendant). Cir. 1997) (Downward departure for a (8th Cir. 1999) (Government actions lesser harm was available in a felon in prejudicing defendant can justify United States v. Etherton, 101 F.3d 80 possession case). downward departure). (9th Cir. 1996) (Court had authority to reduce the sentence after a revocation United States v. O’Hagan, 139 F.3d 641 *United States v. Martinez-Ramos, of supervised release when the (8th Cir. 1998) (Court could depart 184 F.3d 1055 (9th Cir. 1999) (Court guidelines were later amended to downward to credit time served on an had authority to depart downward to provide for a lower range). expired state sentence for the same remedy sentencing disparity). conduct). *United States v. Williams, 103 F.3d *United States v. Coleman, 188 F.3d 57 (8th Cir. 1996) (Court could reduce United States v. Kaye, 140 F.3d 86 (2d 354 (6th Cir. 1999) (Court must look at a sentence for a retroactive Cir. 1998) (Court can depart downward case as a whole to see if factors take amendment even after a reduction for based on assistance to state law case out of “heartland” for downward substantial assistance). enforcement without motion by departure). government). United States v. Lopez, 106 F.3d 309 United States v. Rodriguez-Lopez, 198 (9th Cir. 1997) (Prosecutors’ violation United States v. Campo, 140 F.3d 415 F.3d 773 (9th Cir. 1999) (Government of ethical rule in meeting with an (2nd Cir. 1998) (Judge could not refuse to need not consent to departure for indicted defendant justified a depart solely because he did not like stipulated deportation). downward departure). USA’s policy about not recommending a specific sentence). United States v. Wells, 211 F.3d 988 *United States v. Brock, 108 F.3d 31 (6th Cir. 2000) (Plea agreement (4th Cir. 1997) (Rehabilitation was a United States v. Whitecotton, 142 F.3d required only full cooperation, not proper basis for downward 1194 (9th Cir. 1998) (Court could depart substantial assistance). departure). based on entrapment and diminished capacity). United States v. Ventrilla, 233 F.3d 166 United States v. Paton, 110 F.3d 562 (2d Cir. 2000) (Judge was mistaken (8th Cir. 1997) (Government’s breach United States v. Faulks, 143 F.3d 133 (3rd about authority to depart for of plea agreement was a proper Cir. 1998) (Agreement not to contest diminished mental capacity). ground for downward departure). forfeitures may be basis for downward departure). United States v. Causor-Serrato, 234 United States v. Wallace, 114 F.3d 652 F.3d 384 (8th Cir. 2000) (Court could (7th Cir. 1997) (Court should not have United States v. Crouse, 145 F.3d 786 (6th depart for defendant’s agreement to limited a downward departure just Cir. 1998) (Civic involvement justified be deported). because the defendant already downward departure). received credit for accepting United States v. Walter, 256 F.3d 891 responsibility). *United States v. Whitaker, 152 F.3d 1238 (9th Cir. 2001) (Defendant was eligible (10th Cir. 1998) (Post-offense drug for departure for childhood abuse). *United States v. McBroom, 124 F.3d rehabilitation can justify downward 533 (3rd Cir. 1997) (Reduced mental departure). United States v. Busekros, 264 F.3d capacity was a basis for downward 1158 (10th Cir. 2001) (Departure for departure in a child porn case). United States v. Stockheimer, 157 F.3d substantial assistance allowed 1082 (2nd Cir.), cert. denied, 525 U.S. 1184 defendant to retain federal benefits). *United States v. Rounsavall, 128 (1999) (Refusing to consider downward F.3d 665 (8th Cir. 1997) (Defendant departure based on economic reality of United States v. Rodriguez- 50 Reversible Errors 2003

Montelongo, 263 F.3d 429 (5th Cir. United States v. Hines, 88 F.3d 661 (8th defendant with a negative net worth). 2001) (Cultural assimilation is basis Cir. 1996) (In assessing fine and for departure). restitution, the court should have United States v. Khawaja, 118 F.3d considered the defendant’s familial 1454 (11th Cir. 1997) (Government was obligations of his recent marriage). not a victim for purposes of awarding Fines / restitution). *United States v. Upton, 91 F.3d 677 (5th Restitution Cir.), cert. denied, 520 U.S. 1228 (1997) *United States v. Gottesman, 122 F.3d (No restitution was available to victims 150 (11th Cir. 1997) (Defendant’s *United States v. Remillong, 55 F.3d not named in the indictment). promise to pay back-taxes did not 572 (11th Cir. 1995) (Restitution order authorize court-ordered restitution). reversed for a defendant with no *United States v. Sablan, 92 F.3d 865 (9th ability to pay and no future Cir. 1996) (Consequential expenses could *United States v. Baggett, 125 F.3d prospects). not be included in a restitution order). 1319 (9th Cir. 1997) (Restitution must be based upon a specific statute). United States v. Ledesma, 60 F.3d 750 United States v. Jaroszenko, 92 F.3d 486 (11th Cir. 1995) (Restitution order (7th Cir. 1996) (The court failed to fully United States v. Mayer, 130 F.3d 338 could only be applied to charges of consider the defendant’s ability to pay (8th Cir. 1997) (Restitution should not conviction). restitution). have been higher than the loss).

*United States v. Mullens, 65 F.3d United States v. Santos, 93 F.3d 761 (11th United States v. Drinkwine, 133 F.3d 1560 (11th Cir.), cert. denied, 517 U.S. Cir.), cert. denied, 520 U.S. 1170 (1997) 203 (2d Cir. 1998) (Insufficient 1112 (1996) (Record lacked findings to (Defendant could not be ordered to pay evidence that defendant could pay a support restitution when amount was restitution for money taken in a robbery fine). specific offense characteristic). for which he was not convicted). United States v. Menza, 137 F.3d 533 United States v. Maurello, 76 F.3d *United States v. Monem, 104 F.3d 905 (7th Cir. 1998) (Defendant did not 1304 (3rd Cir. 1996) (The court had to (7th Cir. 1997) (Court did not make have to pay restitution for amount make findings to determine actual loss sufficient factual findings to justify the greater than losses). to victim). fine of a defendant who claimed inability to pay). United States v. Riley, 143 F.3d 1289 *United States v. Reed, 80 F.3d 1419 (9th Cir. 1998) (Defendant could not (9th Cir.), cert. denied, 519 U.S. 882 *United States v. McMillan, 106 F.3d 322 be ordered to pay restitution on loan (1996) (Restitution order had to be (10th Cir. 1997) (Court could reduce a fine unrelated to fraud). limited to conduct of conviction). for substantial assistance). United States v. Stoddard, 150 F.3d United States v. Blake, 81 F.3d 498 United States v. Messner, 107 F.3d 1448 1140 (9th Cir. 1998) (Restitution could (4th Cir. 1996) (Restitution could only (10th Cir. 1997) (Restitution had to be not exceed actual loss). be based on the loss directly related based on actual loss). to the offense, and the court had to *United States v. Siegel, 153 F.3d 1256 make findings that the defendant can United States v. McArthur, 108 F.3d 1350 (11th Cir. 1998) (Court must consider pay that amount without undue (11th Cir. 1997) (A defendant could not defendant’s ability to pay restitution). hardship). be ordered to pay restitution for acquitted conduct). *United States v. Dunigan, 163 F.3d *United States v. Giwah, 84 F.3d 109 979 (6th Cir. 1999) (Court did not (2d Cir. 1996) (Restitution order failed United States v. Eidson, 108 F.3d 1336 adequately consider defendant’s to indicate that all statutory factors (11th Cir.), cert. denied, 522 U.S. 899 ability to pay restitution). were considered). (1997) (Facts did not support restitution order). United States v. Brierton, 165 F.3d United States v. Sharma, 85 F.3d 363 1133 (7th Cir. 1999) (Restitution can (8th Cir. 1996) (No reason was given United States v. Hodges, 110 F.3d 250 only be based on loss from charged for an upward departure on a fine). (5th Cir. 1997) (Fine was not justified for a offense). 51 Reversible Errors 2003

United States v. Merric, 166 F.3d 406 United States v. Young, 272 F.3d 1052 double-counting at sentencing (1st Cir. 1999) (Court could not (8th Cir. 2001) (Report’s failure to preserved it for appeal). delegate scheduling of installment document loss excused defendant’s payments to probation officer’s failure to object to restitution amount). United States v. Stover, 93 F.3d 1379 discretion). (8th Cir. 1996) (Appellate court refused to use a substantive change United States v. Johnston, 199 F.3d Appeals to the guidelines to uphold a sentence 1015 (9th Cir. 1999) (Forfeited money that was improper at the time should have been subtracted from United States v. Byerley, 46 F.3d 694 (7th imposed). restitution). Cir. 1996) (Government waived argument by inconsistent position at sentencing). United States v. Alexander, 106 F.3d United States v. Prather, 205 F.3d 1265 874 (9th Cir. 1997) (Rule of the case (11th Cir. 2000) (Amount of special United States v. Caraballo-Cruz, 52 F.3d barred reconsideration of a assessment governed by date of 390 (1st Cir. 1995) (Government defaulted suppression order after remand). offense). on double jeopardy claim). United States v. Zink, 107 F.3d 716 United States v. Beckett, 208 F.3d 140 *United States v. Carillo-Bernal, 58 F.3d (9th Cir. 1997) (Waiver of appeal of (3rd Cir. 2000) (Restitution should not 1490 (10th Cir. 1995) (The government sentence did not cover a restitution have been ordered without failed to timely file certification for order). determining ability to pay). appeal). United States v. Saldana, 109 F.3d 100 United States v. Norris, 217 F.3d 262 United States v. Petty, 80 F.3d 1384 (9th (1st Cir. 1997) ( Defendant had a (5th Cir. 2000) (Restitution was not for Cir. 1996) (Waiver of appeal of an jurisdictional basis to appeal a denial actual loss). unanticipated error was not enforceable). of a downward departure).

United States v. Griffin, 215 F.3d 866 *United States v. Ready, 82 F.3d 551 (2d *Sanders v. United States, 113 F.3d (8th Cir. 2000) (Loss from food stamp Cir. 1996) (Waiver of appeal did not cover 184 (11th Cir. 1997) (Pro se petitioner’s fraud was limited to actual benefits issue of restitution and was not waived). out-of-time appeal was treated as a diverted). motion for extension of time). *United States v. Thompson, 82 F.3d 700 United States v. Andra, 218 F.3d 1106 (6th Cir. 1996) (Technicalities that did not United States v. Arteaga, 117 F.3d 388 (9th Cir. 2000) (Tax loss should not prejudice the government were not cause (9th Cir.), cert. denied, 522 U.S. 988 have included penalties and interest). to deny a motion to extend time to file an (1997) (Evidence that was precluded at appeal). trial could not support convictions on United States v. Rodrigues, 229 F.3d appeal). 842 (9th Cir. 2000) (No restitution for *United States v. Agee, 83 F.3d 882 (7th speculative loss). Cir. 1996) (Waiver of appeal, not *In Re Grand Jury Subpoena, 123 F.3d discussed at the plea colloquy, was 695 (1st Cir. 1997) (Third party may United States v. Calbat, 266 F.3d 358 invalid). appeal the denial of a motion to quash (5th Cir. 2001) (High restitution without risking a contempt citation). scheduled during prison sentence *United States v. Webster, 84 F.3d 1056 was abuse of discretion). (11th Cir. 1996) (When a law was clarified *United States v. Martinez-Rios, 143 between trial and appeal, a point of F.3d 662 (2d Cir. 1998) (Vague appeal United States v. Lomow, 266 F.3d appeal was preserved as plain error). waiver was void). 1013 (9th Cir. 2001) (Expenses incurred after seizing property could *United States v. Allison, 86 F.3d 940 United States v. Montez-Gavira, 163 not be basis for restitution). (9th Cir. 1996) (Remand was proper even F.3d 697 (2d Cir. 1999) (Deportation though the district court could still did not moot appeal). United States v. Follett, 269 F.3d 996 impose the same sentence). (9th Cir. 2002) (Court cannot order *United States v. Gonzalez, 259 F.3d defendant to reimburse for counseling *United States v. Perkins, 89 F.3d 303 355 (5th Cir. 2001) (Apprendi error was that was free to victim). (6th Cir. 1996) (Orally raising an issue of preserved even when defendant 52 Reversible Errors 2003

waived appeal). United States v. Biro, 143 F.3d 1421 Probation (11th Cir. 1998) (Deportation could not United States v. Smith, 263 F.3d 571 be condition of supervised release). (6th Cir. 2001) (Government appeal, of United States v. Doe, 79 F.3d 1309 (2d suppression, was dismissed when Cir. 1996) (Occupational restriction was United States v. Bonanno, 146 F.3d there was no certification that appeal not supported by the court’s findings). 502 (7th Cir. 1998) (Court improperly was not filed in bad faith). delegated discretion over drug testing United States v. Edgin, 92 F.3d 1044 (10th to probation officer). Cir.), cert. denied, 519 U.S. 1069 (1997) Resentencing (Court failed to provide adequate reasons United States v. Balogun, 146 F.3d 141 to bar a defendant from seeing his son (2d Cir. 1998) (Court could not order *United States v. Moore, 131 F.3d 595 while on supervised release). supervised release tolled while (6th Cir. 1997) (Limited remand did not defendant out of country). allow a new enhancement at United States v. Wright, 92 F.3d 502 (7th resentencing). Cir. 1996) (Simple possession of drugs United States v. Giraldo-Prado, 150 was a Grade C, not a Grade A violation, F.3d 1328 (11th Cir. 1998) (Deportation *United States v. Wilson, 131 F.3d of supervised release). cannot be condition of supervised 1250 (7th Cir. 1997) (Government release). waived the issue of urging additional United States v. Leaphart, 98 F.3d 41 (2d relevant conduct at resentencing). Cir. 1996) (Misdemeanor did not justify a *United States v. Evans, 155 F.3d 245 two year term of supervised release). (3rd Cir. 1998) (Cannot make United States v. Rapal, 146 F.3d 661 reimbursement for court-appointed (9th Cir. 1998) (Higher resentence United States v. Myers, 104 F.3d 76 (5th counsel a condition of supervised presumed vindictiveness). Cir.), cert. denied, 520 U.S. 1218 (1997) release). (Court could not impose consecutive *United States v. Ticchiarelli, 171 F.3d sentences of supervised release). United States v. Havier, 155 F.3d 1090 24 (1st Cir.), cert. denied, 528 U.S. 850 (9th Cir. 1998) (Motion to revoke must (1999) (Sentence imposed, between *United States v. Collins, 118 F.3d 1394 specifically identify charges). original sentence and remand, could (9th Cir. 1997) (Illegal ex post facto not be counted at resentencing). application of rule allowing additional *United States v. Kingdom, 157 F.3d term of release after revocation). 133 (2d Cir. 1998 (Revocation sentence United States v. Jackson, 181 F.3d 740 should have been concurrent (6th Cir. 1999) (Resentencing did not United States v. Romeo, 122 F.3d 941 sentences based on most serious overcome presumption of (11th Cir. 1997) (Court could not order violation). vindictiveness). deportation as a condition of supervised release). United States v. Waters, 158 F.3d 933 *United States v. Faulks, 201 F.3d 208 (6th 1999) (Defendant had right to (3rd Cir. 2000) (Defendant could not United States v. Aimufa, 122 F.3d 1376 allocution at revocation hearing). be resentenced in abstentia). (11th Cir. 1997) (Court lacked authority to modify conditions of release after United States v. Strager, 162 F.3d 921 United States v. Osborne, 291 F.3d revocation). (6th Cir. 1999) (Disrespectful call to 908 (6th Cir. 2002) (Resentencing probation officer did not justify mandated where court did not *United States v. Patterson, 128 F.3d revocation). determine whether defense counsel 1259 (8th Cir. 1997) (Failure to provide discussed PSR with defendant). allocution at supervised release United States v. McClellan, 164 F.3d revocation was plain error). 308 (6th Cir. 1999) (Court must explain why it is departing above revocation Supervised United States v. Pierce, 132 F.3d 1207 (8th guidelines). Cir. 1997) (Probation revocation for a Release / drug user did not require a prison *United States v. Cooper, 171 F.3d 582 sentence; treatment is an option). (8th Cir. 1999) (Court could not order that defendant not leave city for more 53 Reversible Errors 2003

than 24 hours as condition of Montemoino v. United States, 68 F.3d United States v. Baramdyka, 95 F.3d supervised release). 416 (11th Cir. 1995) (Failure to file notice 840 (9th Cir.), cert. denied, 520 U.S. of appeal after request by defendant). 1132 (1997) (Appeal waiver did not bar United States v. Danser, 270 F.3d 451 a claim of ineffective assistance of (7th Cir. 2001) (Court cannot sentence *United States v. Hansel, 70 F.3d 6 (2d counsel). defendant to consecutive terms of Cir. 1995) (Counsel failed to raise statute supervised release). of limitations). *United States v. Glover, 97 F.3d 1345 (10th Cir. 1996) (Ineffective for United States v. Monteiro, 270 F.3d Upshaw v. Singletary, 70 F.3d 576 (11th counsel to fail to object to the higher 465 (7th Cir. 2001) (Without a special Cir. 1995) (Claim of ineffective assistance methamphetamine range). condition the defendant is not subject of counsel at plea was not waived even to unlimited warrantless searches). though not raised on direct appeal). Martin v. Maxey, 98 F.3d 844 (5th Cir. 1996) (Failure to file a motion to United States v. Scott, 270 F.3d 632 United States v. Streater, 70 F.3d 1314 suppress could be grounds for (8th Cir. 2001) (No connection (D.C. 1995) (Counsel gave bad legal ineffectiveness claim). between bank robbery conviction and advice about pleading guilty). special condition for sexual Fern v. Gramley, 99 F.3d 255 (7th Cir. offenders). Martin v. United States, 81 F.3d 1083 1996) (Prejudice could be presumed (11th Cir. 1996) (Counsel failed to file a from an attorney’s failure to file an United States v. Maxwell, 285 F.3d 336 notice of appeal when requested to do so appeal upon the defendant’s request). (4th Cir. 2002) (In calculating a second by the defendant). revocation, the court must subtract Griffin v. United States, 109 F.3d 1217 time already served on the previous Sager v. Maass, 84 F.3d 1212 (9th Cir. (7th Cir. 1997) (Counsel’s advice to revocation). 1996) (Counsel was found ineffective for dismiss appeal to file motion to reduce not objecting to inadmissible evidence). a sentence was prima facie evidence United States v. Swenson, 289 F.3d of ineffective assistance of counsel). 676 (10th Cir. 2002) (Court failed to Glock v. Singletary, 84 F.3d 385 (11th deduct previous time served in Cir.), cert. denied, 519 U.S. 1044 (1996) *United States v. Kauffman, 109 F.3d setting second revocation). (Counsel’s failure to discover and 186 (3rd Cir. 1997) (Failure to present mitigating evidence at the investigate insanity defense was sentencing proceeding required an ineffective assistance of counsel). Ineffective evidentiary hearing). Williamson v. Ward, 110 F.3d 1508 Assistance of United States v. McMullen, 86 F.3d 135 (10th Cir. 1997) (Failure to investigate (8th Cir. 1996) (Counsel’s bad sentencing the defendant’s mental illness was Counsel advice required remand). ineffective assistance of counsel).

*Esslinger v. Davis, 44 F.3d 1515 *United States v. Del Muro, 87 F.3d 1078 United States v. Gaviria, 116 F.3d 1498 (11th Cir. 1995) (Counsel failed to (9th Cir. 1996) (Prejudice was presumed (D.C. Cir.), cert. denied, 522 U.S. 1082 determine that the defendant was a when trial counsel was forced to prove (1997) (Counsel was ineffective for habitual offender before plea). his own ineffectiveness at a hearing). giving incorrect sentencing information in contemplation of plea). United States v. Cook, 45 F.3d 388 Baylor v. Estelle, 94 F.3d 1321 (9th Cir.), (10th Cir. 1995) (Court infringed on cert. denied, 520 U.S. 1151 (1997) United States v. Soto, 132 F.3d 56 counsel’s professional judgement). (Counsel was ineffective for failing to (D.C. Cir. 1997) (Counsel was follow up on lab reports suggesting that ineffective for failing to urge *Finch v. Vaughn, 67 F.3d 909 (11th the defendant was not the rapist). downward role adjustment). Cir. 1995) (Counsel failed to correct misstatements that state sentence Huynh v. King, 95 F.3d 1052 (11th Cir. United States v. Taylor, 139 F.3d 924 could run concurrent with potential 1996) (Lawyer’s failure to raise a (D.C. Cir. 1998) (Counsel was federal sentence). suppression issue was grounds for ineffective for failing to inform client remand). of advice of counsel defense). 54 Reversible Errors 2003

*Smith v. Stewart, 140 F.3d 1263 (9th 812 (8th Cir. 2000) (Absences of counsel 2001) (Attorney slept through Cir.), cert. denied, 525 U.S. 929 (1998) during trial denied effective assistance). portions of trial). (Failure to investigate mitigating evidence was ineffective). *Carter v. Bell, 218 F.3d 581 (6th Cir. Burns v. Gammon, 260 F.3d 892 (8th 2000) (Failure to investigate mitigating Cir. 2001) (Failure to raise objection to Tejeda v. Dubois, 142 F.3d 18 (1st Cir. evidence was ineffective assistance). prosecutor’s misconduct during 1998) (Counsel’s fear of trial judge closing argument). hindered defense). United States v. Mannino, 212 F.3d 835 (3rd Cir. 2000) (Failing to raise sentencing Hunt v. Mitchell, 261 F.3d 575 (6th Cir. United States v. Kliti, 156 F.3d 150 (2d issue denied effective assistance). 2001) (Defendant denied right to Cir. 1998) (Defense counsel who confer with new counsel ten minutes witnessed exculpatory statement had United States v. McCoy, 215 F.3d 102 before trial). conflict). (D.C. Cir. 2000) (But for counsel’s deficient performance, defendant would Magana v. Hofbauer, 263 F.3d 542 (6th United States v. Moore, 159 F.3d 1154 not have pled guilty). Cir. 2001) (Counsel misinformed (9th Cir. 1999) (Irreconcilable conflict defendant about effect of plea between defendant and lawyer). Washington v. Hofbauer, 228 F.3d 689 agreement). (6th Cir. 2000) (Counsel’s failure to object United States v. Alvarez-Tautimez, to prosecutor’s misconduct was Greer v. Mitchell, 264 F.3d 663 (6th Cir. 160 F.3d 573 (9th Cir. 1999) (Counsel ineffective assistance). 2001) (Failure to allege ineffectiveness ineffective for failing to withdraw plea claim on direct appeal can be after co-defendant’s suppression Cossel v. Miller, 229 F.3d 649 (7th Cir. ineffective assistance of counsel). motion granted). 2000) (Counsel was ineffective for failing to object to suggestive in-court Dixon v. Snyder, 266 F.3d 693 (7th Cir. United States v. Granados, 168 F.3d identification). 2001) (Counsel misunderstood 343 (8th Cir. 1999) (Counsel was admissibility of witness statements). ineffective for unfamiliarity with Lockett v. Anderson, 230 F.3d 695 (5th guidelines and failure to challenge Cir. 2000) (Inadequate mitigation Manning v. Huffman, 269 F.3d 720 breach of plea agreement). investigation by defense). (6th Cir. 2001) (Failure to object to participation of deliberation by United States v. Harfst, 168 F.3d 398 Glover v. United States, 531 U.S. 198 alternate jurors). (10th Cir. 1999) (Failure to argue for (2000) (Counsel’s failure to object to downward role adjustment can be application of guidelines that increased Silva v. Woodford, 279 F.3d 825 (9th ineffective assistance of counsel). sentence was ineffective assistance). Cir. 2002) (Failure to investigate family history and psychiatric background). Prou v. United States, 199 F.3d 37 (1st United States v. Davis, 239 F.3d 283 (2d Cir. 1999) (Counsel failed to attack Cir. 2001) (Counsel was ineffective by Eagle v. Linahan, 279 F.3d 926 (11th timeliness of statutory drug threatening to withhold services to Cir. 2002) (Failure to appeal adverse enhancement). encourage plea). Batson ruling).

United States v. Hall, 200 F.3d 962 Betts v. Litscher, 241 F.3d 594 (7th Cir. Caro v. Woodford, 280 F.3d 1247 (9th (6th Cir. 2000) (Despite waiver, dual 2001) (Counsel failed to perfect appeal). Cir. 2002) (Failure to investigate brain representation denied effective damage and child abuse). assistance of counsel). Wanatee v. Ault, 259 F.3d 700 (8th Cir. 2001) (Counsel failed to advise client of Fisher v. Gibson, 282 F.3d 1283 (10th *Combs v. Coyle, 205 F.3d 269 (6th affect of felony-murder rule). Cir. 2002) (Counsel failed to Cir.), cert. denied, 531 U.S. 1035 (2000) adequately argue against weak (Counsel failed to object to post Glover v. Miro, 262 F.3d 268 (4th Cir. prosecution case). arrest statement, or to investigate 2001) (Overworked attorney did not defense expert witness). spend enough time with client). Karis v. Calderon, 283 F.3d 1117 (9th Cir. 2002) (Inadequate mitigation United States v. Patterson, 215 F.3d Burdine v. Johnson, 262 F.3d 336 (5th Cir. investigation). 55 Reversible Errors 2003

Haynes v. Cain, 298 F.3d 375 (5th Cir. 2002) (Counsel conceded defendant’s guilt on several counts over objection).

Special thanks to Molly Corbett, Melissa Tuohey, and Angela Pitts for their invaluable assistance.

Editor: Alexander Bunin Federal Public Defender Northern New York & Vermont 39 North Pearl Street, 5th Floor Albany, NY 12207 (518) 436-1850 (518) 436-1780 FAX [email protected]