ERRORES JURIS 2005 (Formerly known as )

The following is a publication of the Office of the Federal Public Defender for the Districts of Northern New York & Vermont. The listed cases are from United States Courts of Appeal and the United States Supreme Court. The opinions contain at least one point favorable to criminal defendants.

The purpose is to give CJA Panel Attorneys a shortcut to case law favoring their clients. The circuit cases are not necessarily precedent in all jurisdictions. If a case is preceded by an asterisk (*), that means the case may have been distinguished by another court. It should be researched to see if it is authority in other jurisdictions. None of the cases should be cited without first reviewing the entire opinion.

There is some disarray in sentencing law after recent rulings by the United States Supreme Court. To the extent that courts still give “substantial weight” to the United States Sentencing Guidelines, and their misapplication remains an avenue for appeal, those cases have been retained.

These materials may be duplicated for any lawyer providing legal services to indigent defendants. Duplication is encouraged. 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.

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 6.0. Those who need an Acrobat reader can download one free at www.adobe.com .

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 ...... 4 Search of Private Vehicles ...... 4 Search of Commercial Vehicles ...... 6 Search of Packages ...... 6 Search of Real Property ...... 6 Warrants...... 7 Knock and Announce ...... 8 Statements ...... 8 Recusal ...... 9 Indictments...... 9 Limitation of Actions ...... 10 Venue...... 10 Pretrial Procedure...... 10 Severance ...... 10 Conflicts ...... 11 Mental Health ...... 11 Privilege ...... 11 Jeopardy / Estoppel ...... 12 Plea Agreements ...... 13 Guilty Pleas ...... 14 Timely Prosecution...... 16 Jury Selection...... 16 Closure...... 17 Jury Trial ...... 17 Confrontation ...... 17 Impeachment ...... 19 Co-Defendant’s Statements ...... 20 Misconduct...... 20 Extraneous Evidence ...... 21 Identification ...... 22 Expert ...... 22 Entrapment...... 23 Defenses ...... 23 Jury Instructions ...... 24 Deliberations ...... 25 Variance ...... 25 Speech / Assembly...... 26 Interstate Commerce ...... 26 Conspiracy ...... 27 Firearms...... 28 Extortion...... 30 Drugs ...... 30 CCE / RICO ...... 31 Fraud / Theft...... 32 Money Laundering ...... 34 Aiding and Abetting ...... 35 Perjury ...... 35 False Statements ...... 35 Contempt ...... 35 Immigration ...... 36 Pornography...... 36 Violent Crimes ...... 36 Assimilative Crimes ...... 37 Miscellaneous Crimes...... 37 Juveniles ...... 38 Sentencing - General ...... 38 Grouping ...... 40 Consecutive/ Concurrent ...... 40 Retroactivity ...... 41 Sentencing - Marijuana...... 41 Sentencing - Meth...... 42 Sentencing - Heroin ...... 42 Sentencing - Cocaine ...... 43 Sentencing - Crack...... 43 Sentencing - Firearms ...... 44 Laundering ...... 44 Sentencing - Pornography ...... 45 Sentencing - Fraud / Theft ...... 45 Enhancements- General...... 46 Enhancements- Drug Crimes ...... 47 Enhancements- Violence ...... 48 Enhancements- Immigration ...... 49 Career Enhancements ...... 50 Cross References...... 51 Abuse of Trust ...... 51 Obstruction of Justice...... 52 Vulnerable Victim ...... 53 Aggravating Role ...... 53 Mitigating Role ...... 54 Acceptance of Responsibility ...... 54 Safety Valve ...... 55 Criminal History ...... 55 Cooperation ...... 56 Fines / Restitution...... 56 Appeals ...... 58 Resentencing ...... 58 Supervised Release / Probation ...... 59 Ineffective Assistance of Counsel ...... 60 2005 2005 Errores Juris a.k.a. Reversible Errors - 2005 Edition ****************************************

United States v. McKinley, 58 F.3d 1475 (9th Cir. 1996) (Court did not Release (10th Cir. 1995) (Court improperly sufficiently explain to a defendant the denied self-representation). dangers of pro se representation). *United States v. Goosens, 84 F.3d 697 (4th Cir. 1996) (Prohibiting a *United States v. McDermott, 64 F.3d *Carlo v. Chino, 105 F.3d 493 (9th defendant from active cooperation 1448 (10th Cir.), cert. denied, 516 U.S. Cir. 1997) (State statutory right to with the police was an abuse of 1121 (1996) (Barring defendant from post-booking phone calls was discretion). sidebars with stand-by counsel denied protected by federal due process). self-representation). United States v. Porotsky, 105 F.3d United States v. Amlani, 111 F.3d 69 (2d Cir. 1997) (Court denied *United States v. Goldberg, 67 F.3d 705 (9th Cir. 1997) (Prosecutor’s travel request based on conclusions 1092 (3rd Cir. 1995) (Defendant did not repeated disparagement of an made by probation). forfeit counsel by threatening his attorney appointed attorney). in front of his client, denied the United States v. Swanquist, 125 F.3d defendant his right to chosen 573 (7th Cir. 1997) (Court failed to United States v. Duarte-Higareda, 68 counsel). give reasons for denying release on F.3d 369 (9th Cir. 1995) (Court failed to appeal). appoint counsel for evidentiary hearing). *United States v. Taylor, 113 F.3d 1136 (10th Cir. 1997) (Court did not *United States v. Fisher, 137 F.3d Delguidice v. Singletary, 84 F.3d 1359 assure a proper waiver of counsel). 1158 (9th Cir. 1998) (Defendant did (11th Cir. 1996) (Psychological testing not fail to appear for trial that had of a defendant without notice to counsel *Blankenship v. Johnson, 118 F.3d been continued). violated the Sixth Amendment). 312 (5th Cir. 1997) (When the prosecution sought discretionary United States v. Baker, 155 F.3d 392 Williams v. Turpin, 87 F.3d 1204 (11th review, the defendant had a right to (4th Cir. 1998) (Cannot put Cir. 1996) (State that created a statutory counsel). conditions of release on person right to a motion for new trial must acquitted by reason of insanity who is afford counsel and an evidentiary *United States v. Mills, 138 F.3d 928 not a danger). hearing). (11th Cir.), modified, 152 F.3d 937, cert. denied, 525 U.S. 1003 (1998) United States v. Abuhamra, 389 F.3d *United States v. Ming He, 94 F.3d 782 (Defendant could not be made to 309 (2d Cir. 2004) (No ex parte, in (2d Cir. 1996) (Cooperating defendant share codefendant counsel’s cross- camera denial of bail without specific had the right to have counsel present examination of government witness). findings). when attending a presentence debriefing). United States v. Pollani, 146 F.3d 269 (5th Cir. 1998) (Pro se Counsel Weeks v. Jones, 100 F.3d 124 (11th Cir. defendant’s late request for counsel 1996) (Right to counsel in a habeas should have been honored). United States v. Cash, 47 F.3d 1083 claim did not turn on the merits of the (11th Cir. 1995) (Defendant could petition). *Henderson v. Frank, 155 F.3d 159 not waive counsel without proper (3rd Cir. 1998) (Defendant was findings by court). *United States v. Keen, 104 F.3d 1111 denied counsel at suppression 2 Errores Juris 2005 hearing). substitution of counsel). United States v. Alzate, 47 F.3d 1103 (11th Cir. 1995) (A prosecutor United States v. Klat, 156 F.3d 1258 *United States v. Davis, 269 F.3d 514 withheld exculpatory evidence). (D.C. Cir. 1999) (Counsel was (5th Cir. 2001) (Judge must warn required at competency hearing). defendant of effects of hybrid counsel). *United States v. Barnes, 49 F.3d 1144 (6th Cir. 1995) (Request for *United States v. Iasiello, 166 F.3d *Moore v. Puckett, 275 F.3d 685 (8th discovery of extraneous evidence 212 (3rd Cir. 1999) (Indigent Cir. 2001) (Court prevented lawyer and created a continuing duty to disclose). defendant had right to appointed client from speaking during trial). counsel at hearing). *United States v. Boyd, 55 F.3d 239 Manning v. Bowersox, 310 F.3d 571 (7th Cir. 1995) (Government failed to *United States v. Proctor, 166 F.3d (8th Cir. 2002) (Use of informants after disclose drug use and drug dealing by 396 (1st Cir. 1999) (Ambiguous defendant was charged violated right to prisoner-witnesses). request for counsel tainted previous counsel). waiver). *United States v. Hanna, 55 F.3d United States v. Midgett, 342 F.3d 321 1456 (9th Cir. 1995) (Prosecutor *United States v. Leon-Delfis, 203 (4th Cir. 2003) (Defendant should not should have learned of Brady F.3d 103 (1st Cir. 2000) have been forced to choose between right material even if it was not in her (Questioning after polygraph violated to lawyer and testifying in his own possession). defendant’s right to counsel). defense). Kyles v. Whitley, 514 U.S. 419 *United States v. Hernandez, 203 Cordova v. Baca, 346 F.3d 924 (9th Cir. (1995) (Prosecution failed to turn F.3d 614 (9th Cir. 2000) (Defendant 2003) (Reversal for a denial of counsel, over material and favorable evidence, was denied self-representation at without effective waiver, is automatic). sufficient to change result of case). plea). *Caver v. Straub, 349 F.3d 340 (6th Cir. *United States v. Wood, 57 F.3d 733 Roney v. United States, 205 F.3d 2003) (Counsel was not present when (9th Cir. 1995) (Government failed to 1061 (8th Cir. 2000) (Petitioner was jury received additional instructions). disclose favorable FDA materials). entitled to counsel on a motion to vacate sentence). United States v. Erskine, 355 F.3d 1161 *United States v. Camargo-Vergara, (9th Cir. 2004) (Defendant did not 57 F.3d 993 (11th Cir. 1995) *United States v. Russell, 205 F.3d knowingly and voluntarily waive (Government failed to disclose 768 (5th Cir. 2000) (Absence of counsel). defendant’s post-arrest statement). lawyer due to illness did not waive right to counsel). Robinson v. Ignacio, 360 F.3d 1044 (9th In Re Grand Jury Investigation, 59 Cir. 2004) (There was a right to counsel F.3d 17 (2d Cir. 1995) (Court *United States v. Hayes, 231 F.3d at sentencing even after previous properly required disclosure of 1132 (9th Cir. 2000) (Defendant did waiver). documents subpoenaed by the grand not voluntarily waive representation). jury). United States v. Hamilton, 391 F.3d *Buhl v. Cooksey, 233 F.3d 783 (3rd 1066 9th Cir. 2004) (Court allowed United States v. O’Conner, 64 F.3d 2000) (Defendant did not voluntarily testimony in absence of defense 355 (8th Cir.), cert. denied, 517 U.S. waive counsel at trial). counsel). 1174 (1996) (Evidence of government witness threats and collaboration *United States v. Boone, 245 F.3d United States v. Gonzalez-Lopez, 399 were not disclosed). 352 (4th Cir. 2001) (Two attorneys F.3d 924 (8th Cir. 2005) (Defendant must be appointed for defendant denied counsel of choice by failure to In Re Grand Jury, 111 F.3d 1083 (3rd facing death-eligible crime). grant pro hac vice request). Cir. 1997) (Government could not seek disclosure of phone *United States v. Adelzo-Gonzalez, conversations that were illegally 268 F.3d 772 (9th Cir. 2001) (Court Discovery recorded by a third party). abused discretion denying 3 Errores Juris 2005

United States v. Arnold, 117 F.3d unavailable to defendant through due information about confidential 1308 (11th Cir. 1997) (Prosecutor diligence). informant). withheld exculpatory tapes of government witnesses). *Dilosa v. Cain, 279 F.3d 259 (5th Cir. Slutzker v. Johnson, 393 F.3d 373 2002) (Failed to disclose hair sample on (3rd Cir. 2004) (Prosecutor failed to *United States v. Vozzella, 124 F.3d victim that was not defendant). disclose police reports). 389 (2d Cir. 1997) (Evidence of perjured testimony should have been *Benn v. Lambert, 283 F.3d 1040 (9th disclosed). Cir), cert. denied, 537 U.S. 942 (2002) Arrests (Prosecutor suppressed exculpatory United States v. Fernandez, 136 F.3d evidence affecting witness’s veracity). *United States v. Lambert, 46 F.3d 1434 (11th Cir. 1998) (Court must 1064 (10th Cir. 1995) (Defendant hold hearing when defendant makes Bailey v. Richardson, 339 F.3d 1107 was seized while agents held his showing of a Brady violation). (9th Cir. 2003) (Prosecutor should have driver’s license for over 20 minutes). disclosed exculpatory therapy records of United States v. Mejia-Mesa, 153 victim). *United States v. Little, 60 F.3d 708 F.3d 925 (9th Cir. 1998) (Brady (10th Cir. 1995) (Requiring a claim required hearing). In Re Grand Jury Subpoena (Torf), 357 passenger to go to the baggage area F.3d 900 (9th Cir. 2004) (Work product restrained her liberty). United States v. Scheer, 168 F.3d doctrine applied to criminal defendant’s 445 (11th Cir. 1999) (Government attorney). *United States v. Mesa, 62 F.3d 159 failed to disclose it had intimidated (6th Cir. 1995) (Nervousness and key prosecution witness). United States v. Sipe, 388 F.3d 471 (5th inconsistencies did not validate Cir. 2004) (Government failed to reveal continued traffic stop). United States v. Ramos, 179 F.3d witness’s bias and criminal history). 1333 (11th Cir. 1999) (Defendant *United States v. Buchanon, 72 F.3d was denied opportunity to depose Gantt v. Roe, 389 F.3d 908 (9th Cir. 1217 (6th Cir. 1995) (Defendants witness who was outside country). 2004) (Prosecutor failed to disclose were seized when the troopers exculpatory evidence). separated them from their vehicle). *United States v. Riley, 189 F.3d 802 (9th Cir. 1999) (Intentional Banks v. Dretke, 540 U.S. 668 (2004) *United States v. Roberson, 90 F.3d destruction of notes of interview with (Defendant was denied exculpatory 75 (3rd Cir. 1996) (Anonymous call informant violated Jencks Act). evidence). did not give officers reasonable suspicion to stop a defendant on the Nuckols v. Gibson, 233 F.3d 1261 United States v. Alvarez, 358 F.3d 1194 street merely because his clothes (10th Cir. 2000) (Government failed (9th Cir), cert. denied, 125 S.Ct. 126 matched the caller’s description). to disclose criminal allegations (2004) (Defendant entitled to against key prosecution witness). impeaching evidence if material). *United States v. Davis, 94 F.3d 1465 (10th Cir. 1996) (No reasonable United States v. Abbott, 241 F.3d 29 United States v. Rivas, 377 F.3d 195 (2d suspicion for stop of a defendant (1st Cir. 2001) (Government was Cir. 2004) (Government failed to known generally as a gang member obligated to disclose linkage between provide exculpatory evidence until after and drug dealer). plea agreements of defendant and his verdict). mother). *Washington v. Lambert, 98 F.3d United States v. Moussaoui, 382 F.3d 1181 (9th Cir. 1996) (General Mitchell v. Gibson, 262 F.3d 1036 453 (4th Cir. 2004) (Defendant may description of two African-American (10th Cir. 2001) (Withholding depose witnesses who have material males did not justify stop). exculpatory evidence that could have favorable testimony when other access to affected sentence). testimony is unavailable). *United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) (Nighttime *Boss v. Pierce, 263 F.3d 734 (7th United States v. Blanco, 392 F.3d 382 confrontation by police at the Cir. 2001) (Witness’s statement were (9th Cir. 2004) (Government suppressed defendant’s door was a seizure). 4 Errores Juris 2005

(Entering screen door without consent *United States v. Casadao, 303 F.3d *United States v. Miller, 146 F.3d caused an illegal arrest). 440 (2d Cir. 2002) (Search of pocket 274 (5th Cir. 1998) (Leaving turn was overly intrusive). signal on violated no law and did not Burchett v. Kiefer, 310 F.3d 937 (6th justify stop). Cir. 2002) (Defendant detained for three United States v. Patterson, 340 F.3d hours in police cruiser in 90-degree heat 368 (6th Cir. 2003) (Anonymous tip *United States v. Jones, 149 F.3d 364 with no ventilation was illegal seizure). offered no reliable or meaningful (5th Cir. 1998) (Agent lacked information). reasonable suspicion for investigatory *Ganwich v. Knapp, 319 F.3d 1115 (9th immigration stop). Cir. 2003) (Detaining employees of United States v. Neely, 345 F.3d 366 suspected organization was illegal). (5th Cir. 2003) (Defendant had *United States v. Acosta-Colon, 157 expectation of privacy in clothing F.3d 9 (1st Cir. 1999) (Defendant’s United States v. Brown, 401 F.3d 588 taken from hospital where he was 30 minute handcuffed detention, (4th Cir. 2005) (Anonymous tip did not patient). preventing him from boarding flight, amount to reasonable suspicion to was not a lawful stop). detain). Doe v. Little Rock School, 380 F.3d 349 (8th Cir. 2004) (Random, United States v. Salzano, 158 F.3d suspicion less searches of students, 1107 (10th Cir. 1999) (Cross country Search of violated privacy). trip, nervousness, nor scent of evergreen, justified warrantless Persons Bourgeois v. Peters, 387 F.3d 1303 detention). (11th Cir. 2004) Unreasonable to *United States v. Caicedo, 85 F.3d 1184 require protesters to pass through *United States v. Dortch, 199 F.3d (6th Cir. 1996) (Record lacked evidence metal detectors). 193 (5th Cir.), amended, 203 F.3d to support a finding of the defendant’s 883 (2000) (Continued detention consent to search). United States v. Garcia-Beltran, 389 after traffic stop was unreasonable). F.3d 864 (9th Cir. 2004) *United States v. Eustaquio, 198 F.3d (Fingerprints taken for a criminal *United States v. Freeman, 209 F.3d 1068 (8th Cir. 1999) (No reasonable investigation may be subject to 464 (6th Cir. 2000) (Crossing lane- suspicion to search bulge on defendant’s suppression). divider did not create probable cause midriff). for traffic stop). United States v. Gray, 213 F.3d 998 (8th Search of *United States v. Thomas, 211 F.3d Cir. 2000) (No reasonable suspicion to 1186 (9th Cir. 2000) (Tip did not stop defendant for protective frisk). Private Vehicles provide reasonable suspicion for stop). *United States v. Burton, 228 F.3d 524 (4th Cir. 2000) (Officer’s safety alone United States v. Adams, 46 F.3d 1080 *United States v. Guevara-Martinez, did not justify search of pocket). (11th Cir. 1995) (Suppression of 262 F.3d 751 (8th Cir. 2001) (Illegal evidence seized from motor home arrest tainted later fingerprint *United States v. Miles, 247 F.3d 1009 was upheld). evidence). (9th Cir. 2001) (Manipulating small box in clothing exceeded pat-down search). United States v. Chavis, 48 F.3d 871 *Northrop v. Trippett, 265 F.3d 372 (5th Cir. 1995) (Court improperly (6th Cir.), cert. denied, 535 U.S. 955 *Fontana v. Haskin, 262 F.3d 871 (9th placed the burden on the defendant to (2002) (Anonymous tip of two black Cir. 2001) (Claim of sexual harassment show a warrantless search occurred). males wearing brand clothing and by officer was allegation of illegal selling drugs did not justify search). *United States v. Angulo-Fernandez, detention). 53 F.3d 1177 (10th Cir. 1995) United States v. Hatcher, 275 F.3d 689 (Confusion about who owned a Sparing v. Village of Olympia Fields, (8th Cir. 2001) (A second pat-down was stalled vehicle did not create probable 266 F.3d 684 (7th Cir. 2001) held illegal). cause for its search). 5 Errores Juris 2005

Ornelas v. United States, 517 U.S. evidence of intoxication). United States v. Bishop, 264 F.3d 919 690 (1996) (Defendant’s motion to (9th Cir. 2001) (Admitting evidence suppress should be given de novo Knowles v. Iowa, 525 U.S. 113 (1999) from illegal stop was not harmless). review by the court of appeals). (Speeding ticket does not justify full search of vehicle). *United States v. Holt, 264 F.3d 1215 *United States v. Duguay, 93 F.3d (10th Cir. 2001) (Questioning about 346 (7th Cir.), cert. denied, 526 U.S. *United States v. Payne, 181 F.3d 781 weapons exceeded stop). 1029 (1999) (Car could not be (6th Cir. 1999) (Parole officer did not impounded for a later search unless have reasonable suspicion to search United States v. Jones, 269 F.3d 919 the arrestee could not provide for its defendant’s trailer and truck). (8th Cir. 2001) (Committing traffic removal). violation after seeing police did not *United States v. Lopez-Soto, 205 F.3d create probable cause to search *United States v. Elliott, 107 F.3d 1101 (9th Cir. 2000) (No good faith vehicle). 810 (10th Cir. 1997) (Consent to mistake to warrantless car search). look in trunk was not consent to open *United States v. Valdez, 267 F.3d containers within). *United States v. Wald, 216 F.3d 1222 395 (5th Cir. 2001) (After computer (10th Cir. 2000) (Odor of burnt check completed motorist should *United States v. Chan-Jimenez, 125 methamphetamine in passenger have been allowed to leave). F.3d 1324 (9th Cir. 1997) (Defendant compartment did not provide probable did not consent to search of truck). cause to search trunk). United States v. Gomez, 276 F.3d 694 (5th Cir. 2001) (Homeowner had *United States v. Cooper, 133 F.3d *United States v. Baker, 221 F.3d 438 expectation of privacy to vehicle of 1394 (11th Cir. 1998) (Defendant (3rd Cir. 2000) (No reasonable suspicion third party parked in driveway). had reasonable expectation of privacy to justify search of trunk). in rental car four days after contract United States v. Chavez-Valenzuela, expired). *United States v. Jones, 234 F.3d 234 279 F.3d 1062 (9th Cir. 2002) (5th Cir. 2000) (Continued detention (Nervousness alone did not justify *United States v. Beck, 140 F.3d tainted search despite initial consent). continued detention). 1129 (8th Cir. 1998) (Continued detention of vehicle was not justified United States v. Jones, 242 F.3d 215 *United States v. Sigmond- by articuable facts). (4th Cir. 2001) (Anonymous tip did not Ballesteros, 285 F.3d 1117, rehearing justify investigatory stop of vehicle). denied, 309 F.3d 545 (9th Cir. 2002) *United States v. Rodriguez-Rivas, (Lacked reasonable suspicion to 151 F.3d 377 (5th Cir. 1998) *United States v. Reinholz, 245 F.3d search car for undocumented aliens). (Vehicle stop lacked reasonable 765 (8th Cir.), cert. denied, 534 U.S. suspicion). 933 (2001) (Warrantless arrest lacked *United States v. Mariscal, 285 F.3d probable cause). 1127 (9th Cir. 2002) (No reasonable *United States v. Huguenin, 154 F.3d suspicion of traffic violation). 547 (6th Cir. 1998) (Checkpoint stop United States v. Caro, 260 F.3d 1209 to merely look for drugs was (10th Cir. 2001) (Officer needed *United States v. Townsend, 305 unreasonable). probable cause to look for VIN number F.3d 537 (6th Cir. 2002) (Actions of inside door). occupants did not justify continued *United States v. Rivas, 157 F.3d detention after stop). 364, rehearing denied, 166 F.3d 747 United States v. Nee, 261 F.3d 79 (1st (5th Cir. 1999) (1. Drilling into Cir. 2001) (Suppression upheld when *United States v. Colin, 314 F.3d 439 trailer was not routine border search; officers were found not to be credible (9th Cir. 2002) (No reasonable 2. No evidence that drug dog’s about stop). suspicion for traffic stop). reaction was an alert). *United States v. Smith, 263 F.3d571 United States v. Green, 324 F.3d 375 United States v. Iron Cloud, 171 F.3d (6th Cir. 2001) (No reasonable suspicion (5th Cir. 2003) (Firearm suppressed 587 (8th Cir. 1999) (Portable breath for continued detention). when defendant secured 25 feet from test results were inadmissible as vehicle). 6 Errores Juris 2005

*United States v. Golab, 325 F.3d 63 individualized suspicion). *United Staes v. Runyan, 275 F.3d (1st cir. 2003) (INS lacked 449 (5th Cir. 2001) (Police could not reasonable suspicion to search open closed container discovered by vehicle). Search of previous private search).

United States v. Hocker, 333 F.3d Packages United States v. Hernandez, 279 F.3d 1206 (10th Cir. 2003) (Driver of 302 (5th Cir. 2002) (Manipulation of borrowed car had standing to contest *United States v. Doe, 61 F.3d 107 (1st luggage tainted consent to search). search of vehicle). Cir. 1995) (Warrantless testing of packages at an airport checkpoint lacked United States v. Valerie, 385 F.3d *United States v. Perkins, 348 F.3d justification). 1141 (8th Cir. 2004) (Bag was seized 965 (11th Cir. 2003) (Detention without consent). exceeded purpose of traffic stop). *United States v. Ali, 68 F.3d 1468, modified, 86 F.3d 275 (2d Cir. 1996) United States v. Escobar, 389 F.3d *United States v. Richardson, 385 (Checking whether the defendant had a 781 (8th Cir. 2004) (Consent to F.3d 625 (6th Cir. 2004) (Seizure of valid export license was not a proper search bag was not voluntary). vehicle lacked reasonable suspicion). ground for seizure).

United States v. Colletti, 387 F.3d United States v. Odum, 72 F.3d 1279 Search of Real 618 (7th Cir. 2004) (Illegal arrest (7th Cir. 1995) (Court was limited to voided vehicle search). facts at the time the stop occurred to Property evaluate reasonableness of the seizure). United States v. Hudson, 405 F.3d United States v. Hill, 55 F.3d 479 425 (6th Cir. 2005) (No reasonable *United States v. Nicholson, 144 F.3d (9th Cir. 1995) (Remand was suspicion to detain vehicle). 632 (10th Cir. 1998) (feeling through required to see if there was a truly sides of bag was a search; Abandonment viable independent source for the Search of of bag was involuntary). search). *United States v. Fultz, 146 F.3d 1102 *United States v. Ford, 56 F.3d 265 Commercial (9th Cir. 1998) (Guest had expectation (D.C. Cir. 1995) (Search under a of privacy in boxes he stored at mattress and behind a window shade Vehicles another’s home). exceeded a protective sweep).

United States v. Garzon, 119 F.3d *United States v. Rouse, 148 F.3d 1040 *United States v. Tovar-Rico, 61 F.3d 1446 (10th Cir. 1997) (1. Passenger (8th Cir. 1998) (Search of bags lacked 1529 (11th Cir. 1995) (Possibility did not abandon bag by leaving it on probable cause). that surveillance officer was bus; 2. General warrantless search of observed, did not create exigency for all bus passengers by dog was *United States v. Allen, 159 F.3d 832 warrantless search of apartment). illegal). (4th Cir. 1999) (Inevitable discovery doctrine did not apply to cocaine found *United States v. Cabassa, 62 F.3d Bond v. United States, 529 U.S. 334 in duffle bag later detected by dog and 470 (2d Cir. 1995) (Exigent (2000) (Manipulation of bag found warrant). circumstances were not relevant to on bus was illegal search). the inevitable discovery doctrine). *United States v. Johnson, 171 F.3d 601 United States v. Stephens, 206 F.3d (8th Cir. 1999) (No reasonable suspicion *United States v. Mejia, 69 F.3d 309 914 (9th Cir. 2000) (Defendant was to intercept delivery of package). (9th Cir. 1995) (Inevitable discovery illegally seized and searched on bus). doctrine did not apply where the *United States v. Osage, 235 F.3d 518 police simply failed to get a warrant). United States v. Ellis, 330 F.3d 677 (10th Cir. 2000) (Consent to search (5th Cir. 2003) (After a general suitcase did not extend to sealed can J.B. Manning Corp. v. United States, immigration inspection officers may inside). 86 F. 3d 926 (9th Cir. 1996) (Good not detain bus passengers without faith exception to the warrant 7 Errores Juris 2005 requirement does not affect motions permit entry to home). 337 F.3d 1104 (9th Cir. 2003) to return property). (Border agents did not have authority United States v. Oaxaca, 233 F.3d 1154 to search private real property). United States v. Leake, 95 F.3d 409 (9th Cir. 2000) (Agents could not enter (6th Cir. 1996) (Neither the open door of garage). *United States v. Hammond, 351 independent source rule, nor the F.3d 765 (6th Cir. 2003) (No inevitable discovery rule, saved *United States v. Santa, 236 F.3d 662 evidence of informant’s reliability for otherwise inadmissible evidence). (6th Cir. 2001) (Search of apartment search). lacked exigent circumstances). *United States v. Madrid, 152 F.3d United States v. Carter, 360 F.3d 1034, rehearing denied, 160 F.3d *United States v. Gamez-Orduno, 235 1235 (10th Cir. 2004) (Protective 502 (8th Cir. 1998) (Inevitable F.3d 453 (9th Cir. 2000) (Overnight sweep of garage was not justified). discovery doctrine did not save guests had standing to challenge search). illegal search of house). Hadley v. Williams, 368 F.3d 747 *United States v. Heath, 259 F.3d 522 (7th Cir. 2004) (False claim of a *United States v. Ivy, 165 F.3d 397 (6th Cir. 2001) (Allowing officer to warrant voided consent). (6th Cir. 1999) (Consent to enter examine keys was not consent to open home was not shown to be and enter apartment). United States v. Washington, 387 voluntary). F.3d 1060 (9th Cir. 2004) (Officers *United States v. Limares, 269 F.3d 794 illegally looked into defendant’s hotel *United States v. Johnson, 170 F.3d (7th Cir. 2001) (Failure to arrest suspect room). 708 (7th Cir. 1999) (Officers lacked outside did not create exigency upon reasonable suspicion to prevent entry to home). United States v. Chambers, 395 F.3d occupant from leaving home). 563 (6th Cir. 2005) (No emergency *United States v. Diehl, 276 F.3d 32 (1st justifying warrantless search). United States v. Kiyuyung, 171 F.3d Cir. 2002) (Curtilage need not have 78 (2d Cir. 1999) (Firearms found obvious boundary). during warrantless search were not in Warrants plain view). United States v. Jones, 286 F.3d 1146 (9th Cir. 2002) (Subpoena did not give *United States v. Van Damme, 48 Flippo v. West Virginia, 528 U.S. 11 authority to illegally enter premises, F.3d 461 (9th Cir. 1995) (There was (1999) (No crime scene exception to even for exigent circumstances). no list of items to be seized under the warrant requirement). warrant). Loria v. Gorman, 306 F.3d 1271 (2d *United States v. Sandoval, 200 F.3d Cir. 2002) (Police acted without United States v. Mondragon, 52 F.3d 659 (9th Cir. 2000) (Defendant had probable cause or exigent 291 (10th Cir. 1995) (Supplemental reasonable expectation of privacy in circumstances). wiretap application failed to show tent on public land). necessity). United States v. Gorman, 314 F.3d 1105 *United States v. Vega, 221 F.3d 789 (9th Cir. 2002) (No probable cause to *United States v. Kow, 58 F.3d 423 (5th Cir.), cert. denied, 531 1155 search third-party residence). (9th Cir. 1995) (Warrant failed to (2000) (The police cannot create identify business records with exigency for search of leased home). *United States v. Davis, 332 F.3d 1163 particularity, and good faith (9th Cir. 2003) (Overnight guest had exception did not apply). *United States v. Reid, 226 F.3d expectation of privacy in bag under bed). 1020 (9th Cir. 2000) (Guest did not *United States v. Weaver, 99 F.3d have apparent authority to allow United States v. Jones, 335 F.3d 527 1372 (6th Cir. 1996) (Bare bones, search of apartment). (6th Cir. 2003) (Handyman lacked boilerplate affidavit, was insufficient actual or apparent authority to allow to justify warrant). United States v. Lewis, 231 F.3d 238 search of residence). (6th Cir. 2000) (Absent probable *Marks v. Clarke, 102 F.3d 1012 (9th cause, exigent circumstances did not United States v. Romero-Bustamente, Cir.), cert. denied, 522 U.S. 907 8 Errores Juris 2005

(1997) (Warrant to search two 1292 (10th Cir.), cert. denied, 534 U.S. *United States v. Zermeno, 66 F.3d residences did not authorize the 886 (2001) (Anonymous tip lacked 1058 (9th Cir. 1995) (Officers failed officers to search all persons reliability to support warrant). to knock and announce during a drug present). search). *United States v. King, 244 F.3d 736 United States v. Foster, 104 F.3d (9th Cir. 2001) (Officer’s mistaken *United States v. Bates, 84 F.3d 790 1228 (10th Cir. 1996) (Flagrant belief that ordinance was violated did (6th Cir. 1996) (Officers did not have disregard for the specificity of a not provide reasonable suspicion to the right to break down an apartment warrant required suppression of all stop). door without first knocking and found). announcing their presence). *Leveto v. Lapina, 258 F.3d 156 (3rd *United States v. McGrew, 122 F.3d Cir. 2001) (Search warrant for home did Richards v. Wisconsin, 520 U.S. 385 847 (9th Cir. 1997) (Search warrant not justify pat-down of owner). (1997) (No blanket drug exception to affidavit lacked particularity). the knock and announce *United States v. Blackmon, 273 F.3d requirement). United States v. Alvarez, 127 F.3d 1204 (9th Cir. 2001) (Police may not 372 (5th Cir. 1997) (Warrant borrow information from previous *United States v. Cantu, 230 F.3d affidavit contained a false statement wiretap warrant in another case). 148 (5th Cir. 2000) (“Knock and made in reckless disregard for the announce” applies to all attempts at truth). *United States v. Helton, 314 F.3d 812 forcible entry). (6th Cir. 2003) (Affidavit relying on *United States v. Schroeder, 129 confidential informant did not establish F.3d 439 (8th Cir. 1997) (Warrant probable cause). Statements did not authorize a search of adjoining property). United States v. Deemer, 354 F.3d 1130 *United States v. Dudden, 65 F.3d (9th Cir. 2004) (No emergency 1461 (9th Cir. 1995) (Immunity In Re Grand Jury Investigation, 130 exception to warrant requirement when agreement required a hearing on F.3d 853 (9th Cir. 1997) ( Search search was not related to 911 call). whether the defendant’s statements warrant was over broad). were used to aid the government’s *United States v. Grubbs, 377 F.3d 1072 case). *United States v. Hotal, 143 F.3d (9th Cir. 2004) (Deficient affidavit 1223 (9th Cir. 1998) (Anticipatory voided warrant). *United States v. Tenorio, 69 F. 3d search warrant failed to identify 1103 (11th Cir. 1995) (Post-Miranda triggering event for execution). *United States v. Gourde, 382 F.3d 1003 statements were improperly (9th Cir. 2004) (Affidavit for warrant to admitted). *United States v. Albrektsten, 151 search computer failed to allege it F.3d 951 (9th Cir. 1998) (Arrest contained child pronography). United States v. Ali, 86 F.3d 275 warrant did not permit search of (2nd Cir. 1996) (Custodial defendant’s motel room). United States v. Gonzales, 399 F.3d interrogation required Miranda 1225 (10th Cir. 2005) (Warrant lacked warnings). *United States v. Ford, 184 F.3d 566 probable cause and good faith did not (6th Cir.), cert. denied, 528 U.S. apply). *In Re Grand Jury Subpoena Dated 1161 (2000) (Search warrant April 9, 1996, 87 F.3d 1198 (11th authorized broader search than Cir. 1996) (Custodian of records reasonable). Knock and could not be compelled to testify as to the location of documents not in her *United States v. Herron, 215 F.3d Announce possession when those documents 812 (8th Cir. 2000) (No reasonable incriminated her). officer would have relied on such a Wilson v. Arkansas, 514 U.S. 927 deficient warrant). (1995) ("Knock and announce" rule United States v. Trzaska, 111 F.3d implicated the Fourth Amendment). 1019 (2d Cir. 1997) (Defendant’s *United States v. Tuter, 240 F.3d statement to probation officer was 9 Errores Juris 2005 inadmissible). 821 (7th Cir. 2001) (Agreement to speak of coercion). to officer was not consent to later *United States v. D.F., 115 F.3d 413 questioning). Gibbs v. Frank, 387 F.3d 268 (3d Cir. (7th Cir. 1997) (Statements taken 2004) (Unwarned statements to from a juvenile in a mental health *United States v. Velarde-Gomez, 269 psychiatrist were improperly facility were involuntary). F.3d 1023 (9th Cir. 2001) (Post-arrest. admitted). pre-Miranda silence cannot be used to United States v. Abdi, 142 F.3d 566 show demeanor). *Zappulla v. New York, 391 F.3d (2d Cir. 1998) (Defendant’s 462 (2d Cir. 2004) (Involuntary uncounseled statement was United States v. Green, 272 F.3d 748 confession should have been erroneously admitted). (5th Cir. 2001) (Defendant’s actions in excluded). response to custodial interrogation were *United States v. Garibay, 143 F.3d testimonial in nature). 534 (9th Cir. 1998) (Defendant with Recusal limited English and low mental Ghent v. Woodford, 279 F.3d 1121 (9th capacity did not voluntarily waive Cir. 2002) (Miranda applies to *Bracy v. Gramley, 520 U.S. 899 Miranda). statements offered at capital sentencing). (1997) (Petitioner could get discovery of trial judge’s bias against him). United States v. Chamberlain, 163 *Choi Chun Lam v. Kelchner, 304 F.3d F.3d 499 (8th Cir. 1999) (Inmate 256 (3d Cir. 2002) (Statements made *United States v. Jordan, 49 F.3d 152 under investigation was entitled to under threat of violence were (5th Cir. 1995) (Judge should have Miranda warnings). involuntary). been recused because the defendant made claims against family friend of United States v. Tyler, 164 F.3d 150 *United States v. San Juan-Cruz, 314 the judge). (3rd Cir. 1999) (Police did not honor F.3d 384 (9th Cir. 2002) (Conflicting defendant’s invocation of silence). warnings left defendant unclear about *United States v. Avilez-Reyes, 160 his right to remain silent). F.3d 258 (5th Cir. 1999) (Judge Pickens v. Gibson, 206 F.3d 988 should have recused himself in case (10th Cir. 2000) (Admission of Kaupp v. Texas, 538 U.S. 626 (2003) where attorney testified against judge confession was not harmless). (Statement taken after illegal arrest must in disciplinary hearing). be suppressed when there is no *United States v. Martinez-Gaytan, meaningful intervening event). *United States v. Scarfo, 263 F.3d 80 213 F.3d 890 (5th Cir. 2000) (Agent (3rd Cir. 2001) (Judge should have who did not speak Spanish could not United States v. Robles-Ortega, 348 F.3d recused himself if he felt prejudiced introduce defendant’s Spanish 679 (7th Cir. 2003) (Statement tainted by news article). confession). by agents’ illegal entry). Clemmons v. Wolfe, 377 F.3d 322 Dickerson v. United States, 530 U.S. United States v. Perez-Lopez, 348 F.3d (2d Cir. 2004) (Previous actions as 428 (2000) (Miranda warnings are 839 (9th Cir. 2003) (Spanish Miranda state judge required recusal). required by Fifth Amendment). warnings did not advise of right to counsel). *In Re Nettles, 394 F.3d 1001 (7th *United States v. Orso, 234 F.3d 436 Cir. 2005) (Bombing plot involved (9th Cir.), cert. denied, 537 U.S. 828 *Taylor v. Maddox, 366 F.3d 992 (9th threat to judge’s safety). (2002) (Officer lied to get Cir. 2004) (Confession was involuntary). admissions). Franklin v. McCaughtry, 398 F.3d Randolf v. California, 380 F.3d 1133 955 (7th Cir. 2005) (Record indicated *Gardner v. Johnson, 247 F.3d 551 (9th Cir. 2004) (Statement elicited by judge’s bias against defendant). (5th Cir. 2001) (Psychiatrist’s informant violated right to counsel when warnings about self-incrimination defendant was represented). were insufficient). Indictments *United States v. Aguilar, 384 F.3d 520 United States v. Pedroza, 269 F.3d (8th Cir. 2004) (Statement was a result 10 Errores Juris 2005

United States v. Holmes, 44 F.3d *United States v. Thompson, 287 F.3d should have been given). 1150 (2d Cir. 1995) (Money 1244 (10th Cir. 2002) (Indictment laundering and structuring counts dismissed when improper sealing caused United States v. Cabrales, 524 U.S. 1 based on the same transaction were defendant to innocently destroy (1998) (Venue for money laundering multiplicious). documents necessary to his defense). was proper only where offenses were begun, conducted and completed). United States v. Hairston, 46 F.3d United States v. Allen, 406 F.3d 940 361 (4th Cir. 1995) (Multiple (8th Cir. 2005) (Capital indictment *United States v. Brennan, 183 F.3d payments were part of the same requires allegation of mens rea and one 139 (2d Cir. 1999) (Venue for mail offense). statutory aggravating factor). fraud permissible only in districts where proscribed acts occurred). *United States v. Graham, 60 F.3d 463 (8th Cir. 1995) (Multiplicious to Limitation of *United States v. Hernandez, 189 charge the same false statement made F.3d 785 (9th Cir.), cert. denied, 529 on different occasions). Actions U.S. 1028 (1999) (Venue was improper for undocumented alien *United States v. Kimbrough, 69 United States v. Li, 55 F.3d 325 (7th discovered in one district and tried in F.3d 723 (5th Cir.), cert. denied, 517 Cir. 1995) (Statute of ran another). U.S. 1157 (1996) (Multiple from the day of deposit, not the day the possessions of child pornography deposit was processed). *United States v. Williams, 274 F.3d should have been charged in a single 1079 (6th Cir. 2001) (Sale to count). United States v. Spector, 55 F.3d 22 (1st government informant did not bring Cir. 1995) (Agreement to waive the the conspiracy within district’s *United States v. Cancelliere, 69 statute of limitations was invalid because venue). F.3d 1116 (11th Cir. 1995) (Court it was not signed by the government). amended charging language of *United States v. Perez, 280 F.3d 318 indictment during trial). United States v. Podde, 105 F.3d 813 (3d Cir.), cert. denied, 537 U.S. (2d Cir. 1997) (Statute of limitations (2002) (Venue should be decided by *United States v. Johnson, 130 F.3d barred the reinstatement of charges that jury when challenged by defendant). 1420 (10th Cir.), cert. denied, 525 were dismissed in a plea agreement). U.S. 829 (1998) (Gun possession *United States v. Pace, 314 F.3d 344 convictions for the same firearm *United States v. Manges, 110 F.3d (9th Cir. 2002) (Essential conduct of were multiplicious). 1162 (5th Cir.), cert. denied, 523 U.S. wire fraud did not occur in district). 1106 (1998) (Conspiracy charge was *United States v. Du Bo, 186 F.3d barred by statute of limitations). *United States v. Wood, 364 F.3d 1177 (9th Cir. 1999) (Indictment did 704 (6th Cir. 2004) (Venue for mail not allege mens rea). United States v. Grimmett, 236 F.3d 452 fraud is limited to districts where (8th Cir. 2001) (Statute of limitations mail is deposited, passed, or United States v. Nunez, 180 F.3d 227 had run since defendant’s withdrawal received). (5th Cir. 1999) (Indictment failed to from the conspiracy). charge an offense). United States v. Morgan, 393 F.3d 192 (D.C. Cir. 2004) (Improper *United States v. Dipentino, 242 Venue venue for receiving stolen property). F.3d 1090 (9th Cir. 2001) (Trial court constructively amended *United States v. Miller, 111 F.3d 747 United States v. Strain, 396 F.3d 689 indictment). (10th Cir. 1997) (Court refused a jury (5th Cir. 2005) (Harboring a fugitive instruction on venue in a multi-district was tried in wrong district). *United States v. Olson, 262 F.3d conspiracy case). 795 (8th Cir. 2001) (Bank robbery indictment failed to allege a taking *United States v. Carter, 130 F.3d 1432, Pretrial by force or intimidation). cert. denied, 523 U.S. 1041 (10th Cir. 1997) (Requested instruction on venue 11 Errores Juris 2005

*United States v. Baker, 98 F.3d 330 hearing on defense counsel’s Procedure (8th Cir.), cert. denied, 520 U.S. 1179 potential conflict). (1997) (Evidence admissible against United States v. Ramos, 45 F.3d only one codefendant required *Perrillo v. Johnson, 205 F.3d 775 1519 (11th Cir. 1995) (Trial judge severance). (5th Cir. 2000) (Actual conflict wrongly refused deposition without existed in successive prosecutions of inquiring about testimony or its *United States v. Jordan, 112 F.3d 14 co-defendants). relevance). (1st Cir.), cert. denied, 523 U.S. 1041 (1998) (Charges should have been *Lockhart v. Terhune, 250 F.3d 1223 *United States v. Smith, 55 F.3d 157 severed when a defendant wanted to (9th Cir. 2001) (Counsel had actual (4th Cir. 1995) (Government’s testify regarding one count, but not conflict of interest). motion for dismissal should have others). been granted). *United States v. Schwarz, 283 F.3d *United States v. Cobb, 185 F.3d 1193 76 (2d Cir. 2002) (Actual conflict *United States v. Gonzalez, 58 F.3d (11th Cir. 1999) (Court erroneously between counsel and one defendant). 459 (9th Cir. 1995) (Government’s denied severance under Bruton). motion for dismissal should have *United States v. Newell, 315 F.3d been granted). *United States v. McCarter, 316 F.3d 510 (5th Cir. 2002) (Court failed to 536 (5th Cir. 2002) (Counts for firearm act when conflict arose during trial). *United States v. Young, 86 F.3d possession and drug possession should 944 (9th Cir.), cert. denied, 523 U.S. have been severed). *United States v. Oberoi, 331 F.3d 44 1112 (1998) (Court improperly (2d Cir. 2003) (Federal Public denied a hearing on a motion to United States v. Sampson, 385 F.3d 183 Defender was entitled to withdraw compel the government to immunize (2d Cir. 2004) (Offenses occurring two when conflict arose). a witness). years apart should have been severed). Harris v. Carter, 337 F.3d 758 (6th United States v. Mathurin, 148 F.3d United States v. Tarango, 396 F.3d 666 Cir. 2003) (Court should have held 68 (2d Cir. 1998) (Court improperly (5th Cir. 2005) (Defendant should not hearing about apparent conflict). denied hearing on motion to have been tried with absent co- suppress). defendant). United States v. Salado, 339 F.3d 285 (5th Cir. 2003) (Joint representation United States v. Lothridge, 324 F.3d of two defendants required hearing). 599 (8th Cir. 2003) (District Court Conflicts failed to conduct de novo review of United States v. Williams, 372 F.3d magistrate’s findings when defendant *United States v. Shorter, 54 F.3d 1248 96 (2d Cir. 2004) (Counsel who was objected). (7th Cir.), cert. denied. 516 U.S. 896 connected to charges had actual (1995) (Actual conflict when the conflict). United States v. Romeo, 360 F.3d defendant accused counsel of improper 1248 (10th Cir. 2004) (Court abused behavior). *Lewis v. Mayle, 391 F.3d 989 (9th discretion by not granting Cir. 2004) (Counsel had an actual government’s motion to dismiss *United States v. Malpiedi, 62 F.3d 465 conflict). charges). (2d Cir. 1995) (Conflict for counsel representing witness who gave United States v. Osborne, 402 F.3d damaging evidence against his 626 (Representing co-defendants was Severance defendant). actual conflict).

*United States v. Breinig, 70 F.3d *United States v. Jiang, 140 F.3d 124 850 (6th Cir. 1995) (Severance (2d Cir. 1998) (Attorney’s potential Mental Health should have been granted where the conflict required remand for hearing). codefendant’s defense included *United States v. Mason, 52 F.3d prejudicial character evidence United States v. Kliti, 156 F.3d 150 (2d 1286 (4th Cir. 1995) (Court failed to regarding the defendant). Cir. 1998) (Court should have held apply a reasonable cause standard to 12 Errores Juris 2005 competency hearing). Mitchell v. United States, 526 U.S. Privilege 314 (1999) (Guilty plea does not Cooper v. Oklahoma, 517 U.S. 348 waive privilege against self (1996) (Court could not require a *Ralls v. United States, 52 F.3d 223 (9th incrimination at sentencing). defendant to prove his incompetence Cir. 1995) (Fee information was by a higher standard than inextricably intertwined with privileged In Re Sealed Case, 381 F.3d 1205 preponderance of evidence). communications). (D.C. Cir. 2004) (Subpoena should not have issued without weighing *United States v. Davis, 93 F.3d *United States v. Sindel, 53 F.3d 874 psychotherapist privilege). 1286 (6th Cir. 1996) (Court did not (8th Cir. 1995) (Fee information could have the statutory authority to order a not be released without disclosing other United States v. Montgomery, 384 mental examination of a defendant privileged information). F.3d 1050 (9th Cir. 2004) (Evidence who wished to raise the defense of violated marital privilege). diminished capacity). *United States v. Gertner, 65 F.3d 963 (1st Cir. 1995) (IRS summons of *United States v. Williams, 113 F.3d attorney was just a pretext to investigate Jeopardy / 1155 (10th Cir. 1997) (Defendant’s her client). actions during trial warranted a Estoppel competency hearing). *In Re Richard Roe Inc., 68 F.3d 38 (2d Cir. 1995) (Court misapplied the crime- United States v. Abcasis, 45 F.3d 39 United States v. Nevarez-Castro, 120 fraud exception). (2d Cir. 1995) Government was F.3d 190 (9th Cir. 1997) (Court estopped from convicting a person refused to hold a competency *United States v. Rowe, 96 F.3d 1294 when its agents caused that person in hearing). (9th Cir. 1996) (In-house investigation good faith to believe they were acting by attorneys associated with the under government authority). *United States v. Haywood, 155 F.3d defendant/lawyer was covered by the 674 (3rd Cir.), cert. denied, 533 U.S. attorney-client privilege). United States v. Weems, 49 F.3d 528 924 (2001) (Defendant allegedly (9th Cir. 1995) (Government was restored to competency required United States v. Bauer, 132 F.3d 504 estopped from proving element second hearing). (9th Cir. 1997) (Questioning of previously decided in forfeiture case). defendant’s bankruptcy attorney violated United States v. Ramirez, 304 F.3d attorney-client privilege). *United States v. Sammaripa, 55 1033 (10th Cir. 2002) (Decision to F.3d 433 (9th Cir. 1995) (Mistrial deny competency examination was *United States v. Glass, 133 F.3d 1356 was not justified by manifest not based on either of the arguments (10th Cir. 1998) (Defendant’s necessity). the government presented). psychotherapist-patient privilege was violated). United States v. McLaurin, 57 F.3d United States v. Rinaldi, 351 F.3d 823 (9th Cir. 1995) (Defendant could 285 (7th Cir. 2003) (Requirement of Swidler & Berlin v. United States, 524 not be retried for bank robbery after in-custody mental exam was error). U.S. 399 (1998) (Attorney-client conviction on the lesser included privilege survives client’s death). offense of larceny). United States v. Ghane, 392 F.3d 317 (8th Cir. 2004) (No involuntary *United States v. Millard, 139 F.3d Rutledge v. United States , 517 U.S. medication when only small chance 1200 (8th Cir.), cert. denied, 525 U.S. 292 (1996) (Defendant could not be of restored competence). 949 (1998) (Statements during plea punished for both a conspiracy and a discussions were erroneously admitted). continuing criminal enterprise based United States v. Evans, 404 F.3d 227 upon a single course of conduct). (4th Cir. 2005) (Involuntary In re Sealed Case, 146 F.3d 881 (D.C. medication was not justified). Cir. 1998) (Documents prepared in Venson v. Georgia, 74 F.3d 1140 anticipation of litigation were work (11th Cir. 1996) (Prosecutor’s motion product). for mistrial was not supported by manifest necessity). 13 Errores Juris 2005

*United States v. Holloway, 74 F.3d Post Facto Clause and Grand Jury 249 (11th Cir. 1996) (Prosecutor’s Clause). Plea promise not to prosecute, made at a civil deposition, was the equivalent *United States v. Dunford, 148 F.3d 385 Agreements of use immunity for a related (4th Cir. 1998) (Convictions for 6 criminal proceeding). firearms and ammunition was *United States v. Clark, 55 F.3d 9 multiplicious). (1st Cir. 1995) (Government *United States v. Hall, 77 F.3d 398 breached the agreement by arguing (11th Cir.), cert. denied. 519 U.S. *United States v. Beckett, 208 F.3d 140 against acceptance of responsibility). 849 (1996) (Possession of a firearm (3rd Cir. 2000) (Sentences for robbery and its ammunition could only yield and armed robbery violated double *United States v. Laday, 56 F.3d 24 a single sentence). jeopardy). (5th Cir. 1995) (Government breached the agreement by failing to United States v. Garcia, 78 F.3d 1517 *United States v. Kithcart, 218 F.3d 213 give the defendant an opportunity to (11th Cir. 1996) (Acquittal for (3rd Cir. 2000) (Government could not cooperate). knowingly conspiring barred a relitigate suppression motion). second prosecution for the *United States v. Washman, 66 F.3d substantive crime). *United States v. Kramer, 225 F.3d 847 210 (9th Cir. 1995) (Defendant could (7th Cir. 2000) (Defendant was entitled have withdrawn his plea up until the *Terry v. Potter, 111 F.3d 454 (6th to attack underlying state child support time the court accepted the plea Cir. 1997) (When a defendant was obligation). agreement). charged in two alternate manners, and the jury reached a verdict as to Morris v. Reynolds, 264 F.3d 38 (2d Cir. *United States v. Levay, 76 F.3d 671 only one, there was an implied 2001) (Jeopardy attaches at (5th Cir. 1996) (Defendant could not acquittal on the other offense to unconditional acceptance of guilty plea). be enhanced with a prior drug which jeopardy barred retrial). conviction when the government Wilson v. Czerniak, 355 F.3d 1151 (9th withdrew notice as part of a plea *United States v. Stoddard, 111 F.3d Cir. 2004) (Defendant could not be tried agreement). 1450 (9th Cir. 1997) (1. Second drug for aggravated murder after acquittal of conspiracy prosecution was barred by simple murder). *United States v. Taylor, 77 F.3d 368 double jeopardy; 2. Collateral (11th Cir. 1996) (Defendant could estoppel barred false statement withdraw his guilty plea when the conviction, based upon drug United States v. Ford, 371 F.3d 550 (9th government failed to unequivocally ownership for which defendant had Cir. 2004) (Acquittal for controlling or recommend a sentence named in the been previously acquitted). managing a drug facility barred retrial agreement). for using or maintaining same). *United States v. Romeo, 114 F.3d *United States v. Velez Carrero, 77 141 (9th Cir. 1997) (After an United States v. Toribio-Lugo, 376 F.3d F.3d 11 (1st Cir. 1996) (Agreement acquittal for possession, an 33 (1st Cir. 2004) (Defendant did not to recommend no enhancement was importation charge was barred by consent to mistrial). breached by the government’s neutral collateral estoppel). position at sentencing). United States v. Rivera, 384 F.3d 49 *United States v. Turner, 130 F.3d (3rd Cir. 2004) (Declaration of mistrial United States v. Dean, 87 F.3d 1212 815 (8th Cir.), cert. denied, 524 U.S. lacked manifest necessity). (11th Cir. 1996) (Judge could modify 909 (1998) (Prosecution of count, the forfeiture provisions of a plea to one previously dismissed, Stow v. Murashige, 389 F.3d 880 (9th agreement, when the forfeiture was was barred). Cir. 2004) (Acquittal barred retrial on unfairly punitive). lesser charge). *United States v. Downer, 143 F.3d *United States v. Kummer, 89 F.3d 819 (4th Cir. 1998) (Court’s Smith v. Massechusetts, 125 S.Ct. 1129 1536 (11th Cir. 1996) (Defendants substitution of conviction for lesser (2005) (Mid-trial acquittal precluded who pleaded guilty to accepting a offense, after reversal, violated Ex reconsideration later in trial). gratuity under plea agreements could 14 Errores Juris 2005 have withdrawn their pleas when *United States v. Johnson, 132 F.3d 628 Gunn v. Ignacio, 263 F.3d 965 (9th they were sentenced under bribery (11th Cir. 1998) (Prosecutor violated Cir. 2001) (Prosecutor breached guidelines). plea agreement by urging higher drug agreement by opposing concurrent quantity). sentence). *United States v. Ritsema, 89 F.3d 392 (7th Cir. 1996) (A court could *United States v. Isaac, 141 F.3d 477 *United States v. Fitch, 282 F.3d 364 not ignore a previously adopted plea (3rd Cir. 1998) (Plea agreements (6th Cir. 2002) (A material ambiguity agreement at resentencing). referring to substantial assistance should have been construed to departures were subject to contract law). defendant’s benefit). United States v. Belt, 89 F.3d 710 (10th Cir. 1996) (Failure to object to *United States v. Brye, 146 F.3d 1207 *United States v. Lukse, 286 F.3d the government’s breach of the plea (10th Cir. 1998) (Government’s 906 (6th Cir. 2002) (Plea agreement agreement was not a waiver). opposition to downward departure for substantial assistance enforced breached plea agreement). when government failed to even United States v. Beltran-Ortiz, 91 assess defendant’s level of F.3d 665 (4th Cir. 1996) (Failure to United States v. Castaneda, 162 F.3d cooperation). debrief the defendant, thus 832 (5th Cir. 1999) (Government failed preventing him from benefiting from to prove defendant violated transactional *United States v. Quach, 302 F.3d the safety valve, violated the plea immunity agreement). 1096 (9th Cir. 2002) (Government agreement). must make good faith effort to obtain *United States v. Lawlor, 168 F.3d 633 substantial assistance before *United States v. Hawley, 93 F.3d (2d Cir. 1999) (Government breached sentencing date). 682 (10th Cir. 1996) (Government plea agreement that stipulated to a violated its plea agreement not to specific offense level). United States v. Franco-Lopez, 312 oppose credit for acceptance of F.3d 984 (9th Cir. 2002) responsibility). United States v. Nathan, 188 F.3d 190 (Government breached plea (3rd Cir. 1999) (Statement made after agreement by recommending against *United States v.Van Thournout, plea agreement was not stipulation). safety valve). 100 F.3d 590 (8th Cir. 1996) (Government breached an agreement United States v. Frazier, 213 F.3d 409 United States v. Reyes, 313 F.3d 1152 from another district to recommend (7th Cir. 2000) (Government cannot (9th Cir. 2002) (Court can only concurrent time). unilaterally retreat from plea agreement accept or reject a binding plea without hearing). agreement, not modify it). *United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) United States v. Baird, 218 F.3d 221 United States v. Romano, 314 F.3d (Defendant could attack illegal (3rd Cir.2000) (Plea agreement 1279 (11th Cir. 2002) (Government conviction without fear that prevented use of information at any breached agreement by seeking to dismissed charges in plea agreement proceeding). enhance base offense level with would be revived). unrelated conduct). *United States v. Mondragon, 228 F.3d *United States v. Wolff, 127 F.3d 84 978 (9th Cir. 2000) (Prosecutor *United States v. Palladino, 347 F.3d (D.C. Cir.), cert. denied, 524 U.S. breached plea agreement by 29 (2d Cir. 2003) (Government 929 (1998) (Government’s failure to recommending sentence). violated plea agreement by seeking argue for acceptance of responsibility enhanced sentence). breached agreement and required United States v. Randolph, 230 F.3d 243 entire sentence to be reconsidered). (6th Cir. 2000) (Prosecution in second United States v. Gonczy, 357 F.3d 50 jurisdiction violated plea agreement). (1st Cir. 2004) (Government violated United States v. Gilchrist, 130 F.3d plea agreement by urging higher 1131 (3rd Cir. 1997) (Plea agreement Dunn v. Collernan, 247 F.3d 450 (3rd sentence). was breached by imposing a higher Cir. 2001) (Prosecutor’s term of supervised release). recommendation of “lengthy sentence” United States v. Rivera, 357 F.3d 290 violated plea agreement). (3d Cir. 2004) (Sentence violated 15 Errores Juris 2005 stipulation in plea agreement). (9th Cir. 1995) (Court failed to explain *United States v. Still, 102 F.3d 118 the nature of the charges to the (5th Cir.), cert. denied, 522 U.S. 806 *United States v. DeWitt, 366 F.3d defendant). (1997) (Court failed to admonish the 667 (8th Cir. 2004) (Government defendant on the mandatory breached plea agreement by urging *United States v. Gray, 63 F.3d 57 (1st minimum). higher sentence). Cir. 1995) (Defendant who did not understand the applicability of the United States v. Amaya, 111 F.3d United States v. Swanberg, 370 F.3d mandatory minimum could withdraw his 386 (5th Cir. 1997) (Defendant’s plea 622 (6th Cir. 2004) (Court violated plea). was involuntary when the court stipulation in agreement). promised to ensure a downward *United States v. Daigle, 63 F.3d 346 departure for cooperation). United States v. Bradley, 381 F.3d (5th Cir. 1995) (Court improperly 641 (7th Cir. 2004) (There was a engaged in plea bargaining). *United States v. Gonzalez, 113 F.3d mutual misunderstanding of the 1026 (9th Cir. 1997) (Court should agreement). *United States v. Martinez-Molina, 64 have held a hearing when the F.3d 719 (1st Cir. 1995) (Court failed to defendant claimed his plea was United States v. Copeland, 381 F.3d inquire whether the plea was voluntary coerced). 1101 (11th Cir. 2004) (Conviction or whether the defendant had been was barred by plea agreement). threatened or coerced). *United States v. Brown, 117 F.3d 471 (11th Cir. 1997) (Misinformation United States v. Vaval, 404 F.3d 144 *United States v. Showerman, 68 F.3d given to the defendant made his plea (2d Cir. 2005) (Government violated 1524 (2d Cir. 1995) (Court failed to involuntary). agreement by arguing for sentence). advise the defendant that he might be ordered to pay restitution). *United States v. Pierre, 120 F.3d United States v. Munoz, 408 F.3d 1153 (11th Cir. 1997) (Plea was 222 (5th Cir. 2005) (Government *United States v. Tunning, 69 F.3d 107 involuntary when defendant violated agreement by arguing for (6th Cir. 1995) (Government failed to mistakenly believed he had preserved enhancement). recite evidence to prove allegations in an an appellate issue). Alford plea). Guilty Pleas *United States v. Cazares, 121 F.3d *United States v. Guerra, 94 F.3d 989 1241 (9th Cir. 1997) (Plea to drug *United States v. Maddox, 48 F.3d (5th Cir. 1996) (Plea was vacated when conspiracy was not an admission of 555 (D.C. 1995) (A summary the court gave the defendant erroneous an alleged overt act). rejection of a guilty plea was advice about enhancements). improper). *United States v. Toothman, 137 *United States v. Cruz-Rojas, 101 F.3d F.3d 1393 (9th Cir. 1998) (Plea could *United States v. Ribas-Dominicce, 283 (2d Cir. 1996) (Guilty pleas were be withdrawn based upon 50 F.3d 76 (1st Cir. 1995) (Court vacated to determine whether factual misinformation about guideline misstated the mental state required basis existed for carrying a firearm). range). for the offense). *United States v. Siegel, 102 F.3d 477 United States v. Gobert, 139 F.3d 436 *United States v. Goins, 51 F.3d 400 (11th Cir. 1996) (Failure to advise the (5th Cir. 1998) (Insufficient factual (4th Cir. 1995) (Court failed to defendant of the maximum and basis existed for defendant’s guilty admonish the defendant about the minimum mandatory sentences required plea). mandatory minimum punishment). that the defendant be allowed to withdraw his plea). *United States v. Gigot, 147 F.3d *United States v. Casallas, 59 F.3d 1193 (10th Cir. 1998) (Failure to 1173 (11th Cir. 1995) (Trial judge United States v. Shepherd, 102 F.3d 558 admonish defendant of elements of improperly became involved in plea (DC Cir. 1996) (Court abused its offense and possible penalties bargaining during colloquy). discretion in rejecting the defendant’s rendered plea involuntary). mid-trial guilty plea). *United States v. Smith, 60 F.3d 595 *United States v. Thorne, 153 F.3d 16 Errores Juris 2005

130 (4th Cir. 1998) (Court failed to United States v. Stubbs, 281 F.3d 109 *United States v. Jones, 56 F.3d 581 advise defendant of the nature of (3d Cir.), cert. denied, 535 U.S. 1028 (5th Cir. 1995) Open-ended supervised release). (2002) (Waiver of counsel was continuance violated the Speedy Trial insufficient). Act). United States v. Suarez, 155 F.3d 521 (5th Cir. 1998) (Defendant was *United States v. Yu, 285 F.3d 192 (2d *United States v. Mejia, 69 F.3d 309 not admonished as to nature of Cir. 2002) (Allocution must settle drug (9th Cir. 1995) (Court denied a one- charges). quantity to satisfy Apprendi). day continuance of trial, preventing live evidence on suppression issue). *United States v. Andrades, 169 F.3d United States v. Pena, 314 F.3d 1152 131 (2d Cir. 1999) (Court failed to (9th Cir. 2003) (Court failed to explain United States v. Foxman, 87 F.3d determine whether defendant nature of charges). 1220 (11th Cir. 1996) (Trial court understood basis for plea, and failed was required to decide whether the to receive sufficient factual basis). *United States v. Villalobos, 333 F.3d government had delayed indictment 1070 (9th Cir. 2003) (Failure to to gain a tactical advantage). *United States v. Blackwell, 172 admonish defendant of drug quantity F.3d 129 (2d Cir.), superceded, 199 establishing statutory maximum *United States v. Johnson, 120 F.3d F.3d 623 (1999) (Omissions during rendered plea involuntary). 1107 (10th Cir. 1997) (Continuance colloquy voided plea). because of court conflict violated *United States v. Chavez-Salais, 337 Speedy Trial Act). United States v. Gomez-Orozco, 188 F.3d 1170 (10th Cir. 2003) (Plea F.3d 422 (7th Cir. 1999) (Proof of colloquy did not waive possibility of United States v. Lloyd, 125 F.3d 1263 citizenship required withdrawal of later modification of sentence for (9th Cir. 1997) (112-day continuance guilty plea to illegal re-entry charge). extraordinary circumstances). was not justified).

United States v. Guess, 203 F.3d *United States v. Head, 340 F. 3d 628 *United States v. Hay, 122 F.3d 1233 1143 (9th Cir. 2000) (Record did not (8th Cir. 2003) (Defendant must be (9th Cir. 1997) (48-day recess for support guilty plea to firearm allowed to withdraw guilty plea before jurors’ vacations was abuse of charge). plea is accepted by court). discretion).

*United States v. James, 210 F.3d Waucaush v. United States, 380 F.3d United States v. Graham, 128 F.3d 1342 (11th Cir. 2000) (Plea colloquy 251 (6th Cir. 2004) (Defendant’s 372 (6th Cir. 1997) (Eight-year delay did not cover elements of offense). misunderstanding of law made plea between indictment and trial violated involuntary). the Sixth Amendment). United States v. Santo, 225 F.3d 92 (1st Cir. 2000) (Court understated United States v. Bundy, 392 F.3d *United States v. Gonzales, 137 F.3d mandatory minimum at plea). 641(4th Cir. 2004) (Court should not 1431 (10th Cir. 1998) (“Ends of have accepted conditional plea when justice” continuance could not be United States v. Castro-Gomez, 233 issue for appeal was not dispositive). retroactive). F.3d 684 (1st Cir. 2000) (Court did not inform defendant he was subject *United States v. Barnes, 159 F.3d 4 to mandatory life sentence). Timely (1st Cir. 1999) (Open-ended continuance violated speedy trial). United States v. Markin, 263 F.3d Prosecution 491 (6th Cir. 2001) (Judge could not *United States v. Hall, 181 F.3d 1057 participate in negotiations once *United States v. Verderame, 51 F.3d (9th Cir. 1999) (Continuances for co- guilty plea is entered). 249 (11th Cir.), cert. denied, 516 U.S. defendants violated Speedy Trial 954 (1995) (Trial court denied repeated, Act). United States v. Lujano-Perez, 274 unopposed motions for continuance in F.3d 219 (5th Cir. 2001) (Court must drug conspiracy case, with only 34 days *United States v. Moss, 217 F.3d 426 explain nature of the charges). to prepare). (6th Cir. 2000) (Unnecessary delay while motion was pending required 17 Errores Juris 2005 dismissal with prejudice). 1290 (5th Cir. 1995) (Defendant United States v. Serino, 163 F.3d 91 established prejudicial pretrial publicity (1st Cir. 1999) (Defendant gave valid *United States v. Ramirez-Cortez, that could not be cured by voir dire). neutral reason for striking juror). 213 F.3d 1149 (9th Cir. 2000) (Failure to make “ends of justice” *United States v. Annigoni, 96 F.3d *Jordan v. Lefevre, 206 F.3d 196 (2d findings for speedy trial exclusion). 1132 (9th Cir. 1996) (Court’s erroneous Cir. 2000) (Merely finding strike of denial of a defendant’s proper juror was rational does not determine *United States v. Hardeman, 249 peremptory challenge required whether there was purposeful F.3d 826 (9th Cir. 2001) (Delay to automatic reversal). discrimination). arraign co-defendant violated speedy trial). *Turner v. Marshall, 121 F.3d 1248 (9th *United States v. Gonzalez, 214 F.3d Cir.), cert. denied, 522 U.S. 1153 (1998) 1109 (9th Cir. 2000) (Juror who *United States v. Nguyen, 262 F.3d (Prosecutor’s stated reason for striking a equivocated about fairness to sit in 998 (9th Cir. 2001) (Court did not black juror was pretextual). drug case should have been excused). explain denial of continuance when defendant asked for new counsel). *Tankleff v. Senkowski, 135 F.3d 235 *McClain v. Prunty, 217 F.3d 1209 (2d Cir. 1998) (Race-based peremptory (9th Cir. 2000) (Judge must *United States v. Novaton, 271 F.3d challenges were not subject to harmless investigate whether purposeful jury 968 (11th Cir.), cert. denied, 535 error review). selection discrimination occurred). U.S. 1120 (2002) (Four-day mid-trial continuance for co-defendant’s *United States v. Ovalle, 136 F.3d 1092 *United States v. Nelson, 277 F.3d medical condition violated (6th Cir. 1998) (Plan which resulted in 164 (2d Cir.), cert. denied, 537 U.S. defendant’s rights). removal of 1 in 5 blacks from panel, 835 (2002) (Defendant cannot be violated Jury Selection and Service Act). forced to trade for consent to seat *United States v. Bergfeld, 280 F.3d biased juror). 486 (5th Cir. 2002) (Five-year *United States v. Tucker, 137 F.3d 1016 government delay in filing (8th Cir. 1998) (Evidence of juror bias *Fernandez v. Roe, 286 F.3d 1073 prosecution justified presumption of and misconduct required evidentiary (9th Cir.), cert. denied, 537 U.S. prejudice). hearing). 1000 (2002) (Statistical disparities in use of strikes are prima facie evidence Stogner v. California, 539 U.S. 607 Campbell v. Louisiana, 523 U.S. 392 of racial discrimination). (2003) (Extending a statute of (1998) (White defendant could challenge limitations to include previously discrimination against black grand United States v. Thomas, 320 F.3d time-barred cases violates the Ex jurors). 315 (2d Cir. 2003) (Court must make Post Facto Clause). credibility findings to support striking United States v. Blotcher, 142 F.3d 728 minority jurors). (4th Cir. 1998) (Court improperly Jury Selection denied defendant’s race neutral peremptory challenge). Closure *Cochran v. Herring, 43 F.3d 1404 (11th Cir.), modified, 61 F.3d 20, *Dyer v. Calderon, 151 F.3d 970 (9th United States v. Doe, 63 F.3d 121 (2d cert. denied, 516 U.S. 1073 (1996) Cir.), cert. denied, 523 U.S. 1033 (1998) Cir. 1995) (Court summarily denied a (Batson claim should have been (Juror’s lies raised presumption of bias). defendant’s request to close the trial granted). for his safety). *United States v. Herndon, 156 F.3d 629 *United States v. Jackman, 46 F.3d (6th Cir. 1998) (Denial of hearing on *Okonkwo v. Lacy, 104 F.3d 21 (2d 1240 (2d Cir. 1995) (Selection potentially biased juror). Cir.), cert. denied, 524 U.S. 958 procedure resulted in an (1998) (Record did not support underrepresentation of minorities in *United States v. McFerron, 163 F.3d closure of proceedings during jury pool). 952 (6th Cir. 1999) (Defendant did not testimony of undercover officer). have burden of persuasion on neutral *United States v. Beckner, 69 F.3d explanation for peremptory strike). *Pearson v. James, 105 F.3d 828 (2d 18 Errores Juris 2005

Cir.), cert. denied, 524 U.S. 958 absent during defense closing). admitted). (1998) (Closure of courtroom denied the right to a public trial). United States v. Weston, 206 F.3d 9 *United States v. Forrester, 60 F.3d (D.C. Cir. 2000) (Use of anti-psychotic 52 (2d Cir. 1995) (Agent improperly *Judd v. Haley, 250 F.3d 1308 (11th medication was not supported by commented on the credibility of Cir. 2001) (Total closure of evidence of danger to defendant or another witness). courtroom violated right to public others). trial). *United States v. Paguio, 114 F.3d *United States v. Gomez-Lepe, 207 F.3d 928 (9th Cir. 1997) (Missing United States v. Alcantara, 396 F.3d 623 (9th Cir. 2000) (Magistrate Judge witness’s self-incriminating 189 (2d Cir. 2005) (Closure lacked could not preside over polling jury in statement should have been notice to public and sufficient felony case). admitted). findings on the record). *United States v. Durham, 287 F.3d United States v. Lis, 120 F.3d 28 (4th 1297 (11th Cir. 2002) (Defendant was Cir. 1997) (Ledger connecting Jury Trial forced to wear “stun belt” during trial). another to the crime was not hearsay). *United States v. Robertson, 45 F.3d Miller v. Dormire, 310 F.3d 600 (8th 1423 (10th Cir.), cert. denied. 516 Cir. 2002) (Defendant did not waive United States v. Beydler, 120 F. 3d U.S. 844 (1995) (No evidence that right to jury trial). 985 (9th Cir. 1997) (Unavailable the defendant intelligently and witness’s statement, incriminating voluntarily waived a jury trial). United States v. Curbelo, 343 F.3d 273 the defendant, was inadmissible (4th Cir. 2003) (Court may not proceed hearsay). *United States v. Ajmal, 67 F.3d 12 with eleven jurors over defendant’s (2d Cir. 1995) (Jurors should not objection). *United States v. Foster, 128 F.3d question witnesses as a matter of 949 (6th Cir. 1997) (Exculpatory course). Musladin v. Lamarque, 403 F.3d 1072 grand jury testimony should have (9th Cir. 2005) (Spectators wore buttons been admitted at trial). *United States v. Duarte-Higarenda, depicting murder victim). 113 F.3d 1000 (9th Cir. 1997) (Court *United States v. Williams, 133 F.3d failed to question a non-English Ruimveld v. Birkett, 404 F.3d 1006 (6th 1048 (7th Cir. 1998) (Statements by speaking defendant over a jury Cir. 2005) (Defendant was shackled informant to agent were hearsay). waiver). during trial). *United States v. Lowery, 135 F.3d United States v. Iribe-Perez, 129 F.3d 957 (5th Cir. 1998) (Court 1167 (10th Cir. 1997) (Jury was Confrontation erroneously excluded defendant’s erroneously told that the defendant evidence that he encouraged would plead guilty before start of United States v. Hamilton, 46 F.3d 271 witnesses to tell the truth). trial). (3rd Cir. 1995) (Prosecution witnesses were not unavailable when they could *United States v. Moses, 137 F.3d *United States v. Saenz, 134 F.3d have testified under government 894 (6th Cir. 1998) (Allowing child- 697 (5th Cir. 1998) (Court’s immunity). witness to testify by video violated questioning of a witness gave right to confrontation). appearance of partiality). United States v. Lachman, 48 F.3d 586 (1st Cir. 1995) (Government exhibits United States v. Marsh, 144 F.3d United States v. Tilghman, 134 F.3d were properly excluded on grounds of 1229 (9th Cir. 1998) (Admission of 414 (D.C. Cir. 1998) (Court’s confusion and waste). complaints by defendant’s customers questioning of defendant denied him denied confrontation). a fair trial). United States v. Strother, 49 F.3d 869 (2d Cir. 1995) (A statement, *United States v. Mitchell, 145 F.3d *United States v. Mortimer, 161 F.3d inconsistent with the testimony of a 572 (3rd Cir. 1998) (Anonymous note 240 (3rd Cir. 1998) (Trial judge was government witness, should have been incriminating defendant was 19 Errores Juris 2005 inadmissible hearsay). violated confrontation). confrontation).

*United States v. Cunningham, 145 Agnew v. Leibach, 250 F.3d 1308 (7th United States v. Rodriguez-Marrero, F.3d 1385 (D.C. Cir.), cert. denied, Cir. 2001) (Bailiff was improperly called 390 F.3d 1 (1st Cir. 2004) (Admitting 525 U.S. 1059 (1998) (Unredacted to testify about defendant’s confession). confession of absent declarant tapes violated confrontation). violated confrontation). United States v. Wells, 262 F.3d 455 *United States v. Sanchez-Lima, 161 (5th Cir. 2001) (Witness could not United States v. Gilbert, 391 F.3d 882 F.3d 545 (9th Cir. 1999) (Exclusion testify to contents of destroyed business (7th Cir. 2004) (Admission of of deposition denied right to put on records). statements by unavailable witness defense). violated confrontation). *Brumley v. Wingard, 269 F.3d 629 United States v. Saenz, 179 F.3d 686 (6th Cir. 2001) (Videotape should not Crawford v. Washington, 541 U.S. 36 (9th Cir. 1999) (Defendant was have been admitted without showing (2004) (Admission of testimonial entitled to show his knowledge of witness was unavailable). statement, that was not subject to victim’s prior acts of violence to cross-examination, violates support self-defense). *Cook v. McKune, 323 F.3d 825 (10th confrontation). Cir. 2003) (State did not make *United States v. Torres-Ortega, 184 reasonable effort to locate key witness). United States v. Kenyon, 397 F.3d F.3d 1128 (10th Cir. 1999) 1071 (8th Cir. 2005) (Testimony of (Admission of grand jury testimony McKenzie v. Smith, 326 F.3d 721 (6th physician’s assistant was violated confrontation). Cir. 2003) (Uncorroborated hearsay did inadmissible hearsay). not support conviction). United States v. Samaniego, 187 F.3d United States v. Bordeaux, 400F.3d 1222 (10th Cir. 1999) (There was no United States v. Lopez, 340 F.3d 169 548 (8th Cir. 2005) (Defendant foundation for admission of business (3d Cir. 2003) (Conviction based upon denied ability to confront sexual records). inadmissible hearsay). abuse accuser).

United States v. Sumner, 204 F.3d United States v. Casas, 356 F.3d 104 Murillo v. Frank, 402 F.3d 786 (7th 1182 (8th Cir. 2000) (Child’s (1st Cir. 2004) (Drug conviction based Cir. 2005) (Murder conviction based statement to psychologist was upon inadmissible hearsay from agent). upon hearsay). hearsay). United States v. Turning Bear, 357 F.3d *United States v. Byrd, 208 F.3d 592 730 (8th Cir. 2004) (Testimony via Impeachment (7th Cir. 2000) (Defendant was closed circuit television violated prevented from introducing shackles confrontation). *United States v. Cooks, 52 F.3d 101 and restraints in which he was held (5th Cir. 1995) (Court refused to during alleged assault on officers). Chia v. Cambra, 360 F.3d 997 (9th Cir. allow government witness to be 2004) (Court improperly used hearsay questioned about jeopardy from same *LaJoie v. Thompson, 217 F.3d 663 rule to exclude defendant’s evidence). charges). (9th Cir. 2000) (Notice requirement of rape shield law violated right of *United States v. Silva, 380 F.3d 1018 United States v. Acker, 52 F.3d 509 confrontation). (7th Cir. 2004) (Conviction was based (4th Cir. 1995) (Prior consistent on hearsay). statements were not admissible United States v. Rhynes, 218 F.3d because they were made prior to the 310 (4th Cir. 2000) (Sequestered Fischetti v. Johnson, 384 F.3d 140 (3rd witness having a motive to fabricate). defense witness should not have been Cir. 2004) (No showing that witnesses excluded for violating rule). were unavailable). United States v. Tory, 52 F.3d 207 (9th Cir. 1995) (Witness’ statement Schaal v. Gammon, 233 F.3d 1103 *United States v. Cromer, 389 F.3d 662 that the robber wore sweat pants was (8th Cir. 2000) (Admission of (6th Cir. 2004) (Statements by inconsistent with prior statement that videotape of victim’s statements unavailable witness denied he wore white pants). 20 Errores Juris 2005

United States v. Doherty, 233 F.3d 1275 United States v. Wilmore, 381 F.3d United States v. Rivera, 61 F.3d 131 (11th Cir. 2000) (Court should have 868 (9th Cir. 2004) (Court restricted (2d Cir.), cert. denied, 520 U.S. 1132 admitted evidence of agent’s threat cross of government witness). (1997) (Court should not have against defense witness). admitted an attached factual United States v. Schoneberg, 396 stipulation when allowing defendant Wilkerson v. Cain, 233 F.3d 886 (5th F.3d 1036 (9th Cir. 2004) (Court to impeach a witness with a plea Cir. 2000) (Limit on questioning eye prevented lawyer from cross- agreement). witness violated confrontation). examining witness).

*United States v. Blum, 62 F.3d 63 *Redmond v. Kingston, 240 F.3d 590 Howard v. Walker, 406 F.3d 114 (2d (2d Cir. 1995) (Court excluded (7th Cir. 2001) (Defendant was Cir. 2005) (Court limited defense evidence relevant to the witness’ prohibited from cross examining rape cross of expert). motive to testify). victim about prior false claim).

United States v. Platero, 72 F.3d 806 United States v. Howell, 285 F.3d 1263 Co-Defendant’s (10th Cir. 1995) (Court excluded (10th Cir. 2002) (Court barred cross examination of a sexual assault introduction of witnesses’ prior felonies Statements victim’s relationship with a third without first finding prejudice). party). *United States v. Montilla-Rivera, United States v. Adamson, 291 F.3d 606 115 F.3d 1060 (1st Cir. 1997) *United States v. Landerman, 109 (9th Cir. 2002) (Restricting cross- (Exculpatory affidavits of co- F.3d 1053 (5th Cir.), modified, 116 examination of key witness was error). defendants, who claimed Fifth F.3d 119, cert. denied, 522 U.S. Amendment privilege, were newly 1033 (1997) (The defendant should *United States v. Chandler, 326 F.3d discovered evidence regarding a have been allowed to question a 210 (3d Cir. 2003) (Court unduly motion for new trial). witness about a pending state limited defendant’s right of cross- charge). examination). *United States v. Glass, 128 F.3d 1398 (10th Cir. 1997) (Introduction *United States v. Mulinelli-Nava, *United States v. Love, 329 F.3d 981 of a co-defendant’s incriminating 111 F.3d 983 (1st Cir. 1997) (Court (8th Cir. 2003) (Court improperly statement violated Bruton). limited cross examination regarding limited cross-examination of witness theory of defense). about his mental illness and lack of *United States v. Peterson, 140 F.3d memory). 819 (9th Cir. 1998) (Bruton violation *United States v. James, 169 F.3d occurred). 1210 (9th Cir. 1999) (Records of *Cotto v. Herbert, 331 F.3d 217 (2d Cir. victim’s violence were relevant to 2003) (Defendant was prevented from Gray v. Maryland, 523 U.S. 185 self-defense). cross-examining the only eye witness). (1998) (Bruton prohibited redacted confession, which obviously referred Schledwitz v. United States, 169 F.3d *Ortega v.Duncan, 333 F.3d 102 (2d to defendant). 1003 (6th Cir. 1999) (Defendant Cir. 2003) (Perjured testimony required could expose bias of witness involved new trial). Lilly v. Virginia, 527 U.S. 116 (1999) in investigation). (Admission of accomplice confession United States v. Buffalo, 358 F.3d 519 denied confrontation). *United States v. Manske, 186 F.3d (8th Cir. 2004) (Defendant was 770 (7th Cir. 1999) (Defendant could prevented from calling impeachment *United States v. McCleskey, 228 cross-examine witness about his witnesses). F.3d 640 (6th Cir. 2000) (Admission threats to other witnesses about their of nontestifying co-defendant’s testimony). *United States v. Stephens, 365 F.3d statement denied confrontation). 967 (11th Cir. 2004) (Defendant was *United States v. Beckman, 222 F.3d prevented from calling witnesses that United States v. Reynolds, 268 F.3d 512 (8th Cir. 2000) (Limiting undermined government’s case). 572 (8th Cir. 2001) (Evidence against defense cross violated confrontation). co-defendant was inadmissible when 21 Errores Juris 2005 he admitted underlying crime). United States v. Johnston, 127 F.3d 380 *United States v. Beeks, 224 F.3d (5th Cir.), cert. denied, 522 U.S. 1152 741 (8th Cir. 2000) (Prosecutor’s Stapleton v. Wolfe, 288 F.3d 863 (1998) (Prosecutor commented on the questioning violated prior in limine (6th Cir. 2002) (Accomplice defendant’s failure to testify and asked ruling). statements had no indicia of questions highlighting defendant’s reliability). silence). *United States v. LaPage, 231 F.3d 488 (9th Cir. 2000) (Prosecutor used Hill v. Hofbauer, 337 F.3d 706 (6th *United States v. Wilson, 135 F.3d 291 perjured testimony). Cir. 2003) (Co-defendant’s statement (4th Cir.), cert. denied, 523 U.S. 1143 establishing defendant’s malice (1998) (Prosecutor’s argument that *Sandoval v. Calderon, 241 F.3d 765 should have been excluded). defendant was a murderer prejudiced (9th Cir.), cert. denied, 534 U.S. 847 drug case). (2001) (Prosecution referred to religious authority for sentence). Misconduct *United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998) (Prosecutor coerced *United States v. Adkinson, 247 F.3d United States v. Flores-Chapa, 48 defense witness into refusing to testify). 1289 (11th Cir. 2001) (Bad faith F.3d 156 (5th Cir. 1995) (Prosecutor inclusion of bank fraud charge referred to excluded evidence). United States v. Maddox, 156 F.3d 1280 warranted reimbursement of (D.C. Cir. 1999) (Prosecutor’s argument attorney’s fees). *United States v. Kallin, 50 F.3d 689 referred to matters not in evidence). (9th Cir. 1995) (Prosecutor United States v. Rodriguez, 260 F.3d commented upon the defendant’s *Agard v. Portuondo, 159 F.3d 98 (2d 416 (5th Cir. 2001) (Prosecutor failure to come forward with an Cir.), cert. denied, 526 U.S. 1016 (1999) argued jury could infer guilt from explanation). (Prosecutor claimed that defendant was post-arrest silence). less credible without arguing any facts in *United States v. Gaston-Brito, 64 support). *Killian v. Poole, 282 F.3d 1204 (9th F.3d 11 (1st Cir. 1995) (Hearing was Cir.), cert. denied, 537 U.S. 1179 necessary to determine if an agent *United States v. Rodrigues, 159 F.3d (2003) (Reliance on perjury in improperly gestured toward defense 439, amended, 170 F.3d 881 (D.C. Cir. argument). table in front of the jury). 1999) (Improper closing by prosecutor). United States v. Conrad, 320 F.3d *United States v. Tenorio, 69 F.3d *United States v. Richardson, 161 F.3d 851 (8th Cir. 2003) (Prosecutor’s 1103 (11th Cir. 1995) (Prosecutor 728 (D.C. Cir. 1999) ( Improper argument about purpose of ban on commented upon the defendant’s remarks by prosecutor). sawed-off shotguns was prejudicial). silence). United States v. Golding, 168 F.3d 700 United States v. Danielson, 325 F.3d *United States v. Cannon, 88 F.3d (4th Cir. 1999) (Prosecutor threatened 1054 (9th Cir. 2003) (Government 1495 (8th Cir. 1996) (Prosecutor’s defense witness with prosecution if she deliberately interfered with attorney- reference to black defendants, who testified). client relations by obtaining trial were not from North Dakota, as “bad strategy form informant). people,” was not harmless). *United States v. Francis, 170 F.3d 546 (6th Cir. 1999) (Cumulative acts of United States v. Brown, 327 F.3d 867 *United States v. Roberts, 119 F.3d prosecutorial misconduct). (9th Cir. 2003) (Prosecutor 1006 (1st Cir. 1997) (Prosecutor improperly referred to inadmissible commented on defendant’s failure to *Smith v. Groose, 205 F.3d 1045 (8th prior acts in closing). testify and misstated burden of Cir.), cert. denied, 531 U.S. 985 (2000) proof). (Prosecution argued contradictory facts United States v. Rutherford, 371 F.3d in two different but related trials). 634 (9th Cir. 2004) (IRS conduct may *United States v. Rudberg, 122 F.3d have intimidated jurors). 1199 (9th Cir. 1997) (Prosecutor *United States v. Cabrera, 222 F.3d 590 vouched for a witness’ credibility in (9th Cir. 2000) ( Repeated references to United States v. Moore, 375 F.3d 259 closing argument). “Cuban drug dealers”). (3rd Cir. 2004) (Calling defendant a 22 Errores Juris 2005 terrorist in closing was plain error). *United States v. Elkins, 70 F.3d 81 the crime occurred, prior acts to (10th Cir. 1995) (Evidence of the prove intent were not admissible). United States v. Earle, 375 F.3d 1159 defendant’s gang membership was (D.C. Cir. 2004) (Prosecutor implied improperly elicited). *United States v. Millard, 139 F.3d defense acted improperly). 1200 (8th Cir.), cert. denied, 525 *United States v. Irvin, 87 F.3d 860 (7th U.S. 949 (1998) Prior drug Hayes v. Brown, 399 F.3d 972 (9th Cir.), cert. denied, 519 U.S. 903 (1997) convictions erroneously admitted). Cir. 2005) (Prosecutor knowingly (Court should have excluded testimony presented false evidence). that the defendant was in a motorcycle United States v. Mulder, 147 F.3d gang). 703 (8th Cir. 1998) (Bank’s routine practice was irrelevant to fraud Extraneous *United States v. Utter, 97 F.3d 509 prosecution). (11th Cir. 1996) (In arson case, it was Evidence error to admit evidence that the *United States v. Ellis, 147 F.3d defendant threatened to burn his tenant’s 1131 (9th Cir. 1998) (Testimony *United States v. Rodriguez, 45 F.3d house or that the defendant’s previous about destructive power of explosives 302 (9th Cir. 1995) (Evidence of residence had burned). was prejudicial). flight a month after crime was inadmissible to prove an intent to *United States v. Lecompte, 99 F.3d 274 *United States v. Merino- possess). (8th Cir. 1996) (Evidence of prior Balderrama, 146 F.3d 758 (9th Cir. contact with alleged victims did not 1998) (Pornographic films should not *United States v. Blackstone, 56 F.3d show plan or preparation). have been displayed in light of 1143 (9th Cir. 1995) (Drug use was defendant’s offer to stipulate). improperly admitted in felon in *United States v. Jobson, 102 F.3d 214 possession case). (6th Cir. 1996) (Court failed to *United States v. Spinner, 152 F.3d adequately limit evidence of the 950 (D.C. Cir. 1998) (Letter *United States v. Moorehead, 57 defendant’s gang affiliation). containing evidence of prior bad acts F.3d 875 (9th Cir. 1995) (Evidence should not have been admitted). that the defendant was a drug dealer *United States v. Murray, 103 F.3d 310 should not have been admitted in (3rd Cir. 1997) (Evidence that an United States v. Polasek, 162 F.3d firearms case). alleged murderer had killed before was 878 (5th Cir. 1999) (Convictions of improperly admitted in a CCE case). defendant’s associates should not *United States v. Aguilar-Aranceta, have been admitted). 58 F.3d 796 (1st Cir. 1995) (Prior *United States v. Fulmer, 108 F.3d 1486 misdemeanor drug conviction was (1st Cir. 1997) (Allowing testimony *United States v. Jean-Baptiste, 166 more prejudicial than probative in a about bombing of federal building was F.3d 102 (2d Cir. 1999) (Admission distribution case). prejudicial). of prior bad act was plain error absent evidence it actually occurred). *United States v. McDermott, 64 *United States v. Paguio, 114 F.3d 928 F.3d 1448 (10th Cir. 1995) (9th Cir. 1997) (Evidence that the *United States v. Lawrence, 189 F.3d (Evidence that the defendant defendant previously applied for a loan 838 (9th Cir. 1999) (Testimony threatened a witness should not have was prejudicial). regarding defendant’s marriage was been admitted because it was not more prejudicial than probative). clear the defendant knew the person Old Chief v. United States, 519 U.S. 172 was a witness). (1997) (Court abused its discretion by United States v. Heath, 188 F.3d 916 refusing to accept the defendant’s offer (7th Cir. 1999) (Previous arrest was *United States v. Vizcarra-Martinez, to stipulate that he was a felon, in a trial not admissible prior bad act). 66 F.3d 1006 (9th Cir. 1995) for being a felon in possession of a (Evidence of personal use of firearm). *United States v. Anderson, 188 F.3d methamphetamine at the time of the 886 (7th Cir. 1999) (Prior bad act defendant’s arrest was inadmissible). *United States v. Sumner, 119 F.3d 658 was more than 10 years old). (8th Cir. 1997) (When defendant denied 23 Errores Juris 2005

*United States v. Walton, 217 F.3d Cir. 1996) (Court denied the defendant (Exclusion of a witness’ failed 443 (7th Cir. 2000) (Evidence of the right to display a witness in support polygraph results denied due prior unsolved theft was irrelevant). of a misidentification defense). process).

*United States v. Jimenez, 214 F.3d United States v. Montgomery, 100 F.3d *United States v. Hall, 93 F.3d 1337 1095 (9th Cir. 2000) (Description of 1404 (8th Cir. 1996) (Co-defendants (7th Cir. 1996) (Expert testimony defendant’s prior conviction should have been required to try on that the defendant had a disorder that involving firearm was not harmless). clothing, after defendant had to, when may have caused him to make a false the government put ownership at issue). confession should have been *United States v. Varoudakis, 233 admitted). F.3d 113 (1st Cir. 2000) (Evidence of United States v. Rogers, 387 F.3d 925 previous fire was more prejudicial (7th Cir. 2004) (Suggestive line-up *Calderon v. U.S. District Court, 107 than probative). tainted courtroom identification). F.3d 756 (9th Cir.), cert. denied, 522 U.S. 907 (1997) (CJA funds for *United States v. Grimes, 244 F.3d United States v. Pugh, 405 F.3d 390 (6th expert could be used to exhaust a 375 (5th Cir. 2001) (Narratives Cir. 2005) (Officer could not testify state claim). found on defendant’s computer about what was said at out-of-court should not have been introduced in identification). *United States v. Morales, 108 F.3d child porn case). 1031 (9th Cir. 1997) (The court should not have excluded a defense *United States v. Haywood, 280 F.3d Expert expert on bookkeeping). 715 (6th Cir. 2002) (Evidence of previous possession had no bearing Testimony *Lindh v. Murphy, 124 F.3d 899 (7th on alleged sale). Cir.), cert. denied, 522 U.S. 1069 *United States v. Boyd, 55 F.3d 667 (1998) (Defendant was prevented Garceau v. Woodford, 281 F.3d 919 (D.C. Cir. 1995) (Officer relied upon from examining the state’s (9th Cir.), cert. denied, 513 U.S. 848 improper hypothetical in drug case). psychiatrist about allegations of (1994) (Jury instruction drew sexual improprieties with patients). attention to prior unrelated crimes). *United States v. Shay, 57 F.3d 126 (1st Cir. 1995) (Defense expert should have *United States v. Word, 129 F.3d *United States v. Jenkins, 345 F.3d been allowed to explain that the 1209 (11th Cir. 1997) (Lay testimony 928 (6th Cir. 2003) (Evidence that defendant had a disorder that caused of abuse to defendant was defendant smoked crack was him to lie). admissible). improperly admitted in distribution case). *United States v. Posado, 57 F.3d 428 United States v. Dixon, 185 F.3d 393 (5th Cir. 1995) (Per se rule prohibiting (5th Cir. 1999) (Court improperly United States v. Johnson, 388 F.3d polygraph evidence was abolished by refused instruction on insanity based 96 (3d Cir. 2004) (Prior theft should Daubert). upon expert testimony). not have been admitted in carjacking conspiracy). *United States v. Childress, 58 F.3d 693 United States v. Barnette, 211 F.3d (D.C. Cir.), cert. denied, 516 U.S. 1098 803 (4th Cir. 2000) ( Defendant was (1996) (Defense expert should have been prevented from presenting expert to Identification allowed to testify on the defendant’s answer government’s rebuttal expert inability to form intent). testimony). *United States v. Emanuele, 51 F.3d 1123 (3rd Cir. 1995) (Identification, *United States v. Velasquez, 64 F.3d *United States v. Smithers, 212 F.3d made after seeing the defendant in 844 (3rd Cir. 1995) (Defense expert 306 (6th Cir. 2000) (Court excluded court, and after a failure to identify should have been allowed to testify on expert on identification without a him before, should have been the limitations of handwriting analysis). hearing). suppressed). *Rupe v. Wood, 93 F.3d 1434 (9th Cir.), *United States v. Velarde, 214 F.3d *Lyons v. Johnson, 99 F.3d 499 (2d cert. denied, 519 U.S. 1142 (1997) 1204 (10th Cir. 2000) (Court failed to 24 Errores Juris 2005 make reliability determination about the government must prove beyond a Cir. 1995) (Defense was prevented government’s expert testimony). reasonable doubt that the defendant was from arguing that an absence of predisposed). evidence implied that evidence did *United States v. Henke, 222 F.3d not exist). 633 (9th Cir. 2000) (Lay witness *United States v. Bradfield, 113 F.3d could not testify to what defendant 515 (5th Cir. 1997) (Evidence supported United States v. Ruiz, 59 F.3d 1151 knew about regulatory scheme). an instruction on entrapment). (11th Cir.), cert. denied, 516 U.S. 1133 (1996) (Defendant has the right *United States v. Vallejo, 237 F.3d *United States v. Duran, 133 F.3d 1324 to have the jury instructed on his 1008, rehearing denied, 246 F.3d (10th Cir. 1998) (Entrapment theory of defense). 1150 (9th Cir. 2001) (Exclusion of instruction failed to place burden on defense experts regarding government). *United States v. Hall, 77 F.3d 398 defendant’s ability to communicate (11th Cir. 1996) (Defendant’s in English). *United States v. Thomas, 134 F.3d 975 counsel was improperly prohibited (9th Cir. 1998) (Defendant may present from addressing general principles of *United States v. Watson, 260 F.3d good prior conduct to support reasonable doubt in closing). 301 (3rd Cir. 2001) (Drug agents entrapment defense). could not give opinion about *United States v. Talbott, 78 F.3d defendant’s intent). United States v. Sligh, 142 F.3d 761 1183 (7th Cir. 1996) (Jury instruction (4th Cir. 1998) (Court failed to give could not shift the burden to the United States v. McGowan, 274 F.3d instruction on entrapment). defendant on the issue of self- 1251 (9th Cir. 2001) (Testimony defense). about nature of drug trafficking *United States v. Burt, 143 F.3d 1215 organizations was inadmissible). (9th Cir. 1998) (Entrapment instruction *United States v. Otis, 127 F.3d 829 failed to place proper burden on (9th Cir. 1997) (Duress instruction United States v. Varela-Rivera, 279 government). was omitted). F.3d 1174 (9th Cir. 2002) (Erroneous admission of testimony about general *United States v. Gamache, 156 F.3d 1 *United States v. Benally, 146 F.3d operation of drug trafficking). (1st Cir. 1998) (Jury should have been 1232 (10th Cir. 1998) (Defendant instructed on entrapment). was entitled to instructions on self- *United States v. Pineda-Torres, 287 defense and lesser included offense). F.3d 860 (9th Cir.), cert. denied, 537 *United States v. Poehlman, 217 F.3d U.S. 1066 (2002) (Error to allow 692 (9th Cir. 2000) ( Defendant was *United States v. Sanchez-Lima, 161 expert testimony on structure of drug entrapped as matter of law). F.3d 545 (9th Cir. 1999) (Self- organizations). defense instruction should have been *United States v. Brooks, 215 F.3d 842 given). *United States v. Finley, 301 F.3d (8th Cir. 2000) (Drug defendant was 1000 (9th Cir. 2002) (Expert on entrapped as matter of law). United States v. Smith, 217 F.3d 746 defendant’s atypical belief system (9th Cir. 2000) (Court failed to improperly excluded). *Bradley v. Duncan, 315 F.3d 1091 (9th instruct upon defendant’s theory of Cir. 2002) (Refusal to give entrapment the case). United States v. Bennett, 363 F.3d instruction was error). 947 (9th Cir. 2004) (Officer’s *United States v. Chanthadara, 230 testimony about global positioning United States v.Gurolla, 333 F.3d 944 F.3d 1237 (10th Cir. 2000) (Judge device violated best evidence rule). (9th Cir. 2003) (Court improperly said that defense was a “smoke denied defendant ability to pursue screen”). entrapment defense). Entrapment United States v. Crowley, 236 F.3d 104 (2d Cir. 2000) (Jury should have United States v. Reese, 60 F.3d 660 Defenses been charged on voluntary (9th Cir. 1995) (Entrapment intoxication). instruction failed to tell the jury that United States v. Tory, 52 F.3d 207 (9th 25 Errores Juris 2005

United States v. Miguel, 338 F.3d testimony, there must be a cautionary *Davis v. Mitchell, 318 F.3d 682 (6th 995 (9th Cir. 2003) (Defendant was instruction not to place upon it undue Cir. 2003) (Instructions left jurors prevented from arguing theory of the emphasis). with the impression that a life case). sentence required unanimity). *United States v. Bancalari, 110 F.3d United States v. Chin, 371 F.3d 1425 (9th Cir. 1997) (Instruction Powell v. Galaza, 328 F.3d 558 (9th 31(2d Cir. 2004) (Receipts offered in omitted the element of intent). Cir. 2003) (Court’s instruction support of alibi were improperly improperly removed element of excluded). *United States v. Doyle, 130 F.3d 523 specific intent). (2d Cir. 1997) (Erroneous instructions United States v. Boulware, 384 F.3d stated that presumption of innocence Ho v. Carey, 332 F.3d 587 (9th Cir. 794 (9th Cir. 2004) (Court excluded and reasonable doubt were to protect 2003) (Court improperly instructed state judgement that contradicted only the ). on general intent regarding a specific prosecution case). intent crime). *United States v. Wilson, 133 F.3d 251 Jackson v. Edwards, 404 F.3d 612 (4th Cir. 1997) (Jury instructions did not United States v. Combs, 369 F.3d 925 (2d Cir. 2005) (Court refused adequately impose burden of proving (6th Cir. 2004) (Instructions justification defense to knowledge). impermissibly amended indictment). manslaughter). *United States v. Romero, 136 F.3d United States v. Narog, 372 F.3d 1268 (10th Cir. 1998) (“Law of the 1243 (11th Cir. 2004) (Instruction Jury case” required element named in jury constructively amended indictment). instruction to be proven). Instructions United States v. Trujillo, 390 F.3d *United States v. Rossomando, 144 F.3d 1267 (10th Cir. 2004) (Defendant did Smith v. Singletary, 61 F.3d 815 197 (2d Cir. 1998) (Ambiguous jury not have to abandon a defense in (11th Cir.), cert. denied, 516 U.S. instruction misled jurors). exchange for favorable instruction). 1140 (1996) (Court failed to give mitigating instruction in a capital *United States v. Lampkin, 159 F.3d Smith v. Texas, 125 S.Ct. 400 (2004) case). 607 (D.C. Cir.), cert. denied, 526 U.S. (Death penalty instruction failed to 1140 (1999) (Jury improperly instructed adequately instruct on mitigation *United States v. Birbal, 62 F.3d 456 that government could not prosecute evidence). (2nd Cir. 1995) (Jurors were juvenile witnesses). instructed they “may” acquit, rather than they “must” acquit, if the United States v. Prawl, 168 F.3d 622 (2d Deliberations government did not meet its burden). Cir. 1999) (Court refused to instruct jury not to consider co-defendants guilty *United States v. Berroa, 46 F.3d *United States v. Hairston, 64 F.3d plea). 1195 (D.C. Cir. 1995) (Allen charge 491 (9th Cir. 1995) (Alibi instruction varied from ABA standard). was required when evidence of alibi Jenkins v. Huchinson, 221 F.3d 679 (4th was introduced in the government’s Cir. 2000) (Reasonable doubt instruction *United States v. Harber, 53 F.3d 236 case). improperly indicated it was only (9th Cir. 1995) (Case agent’s report advisory). was taken into the jury room). *United States v. Ahmad, 101 F.3d 386 (5th Cir. 1996) (Jury instructions *United States v. Gardner, 244 F.3d 784 *United States v. Burgos, 55 F.3d in a pollution case implied strict (10th Cir. 2001) (Failure to instruct on 933 (4th Cir. 1995) (Allen charge liability rather than the requirement uncorroborated accomplice testimony). asked jurors to think about giving up of knowledge). firmly held beliefs). United States v. Brown, 287 F.3d 965 United States v. Rodgers, 109 F.3d (10th Cir. 2002) (Defendant should have *United States v. Araujo, 62 F.3d 930 1138 (6th Cir. 1997) (If a court been given instruction on lesser included (7th Cir. 1995) (Verdict was taken allows a jury to review trial offense). from eleven jurors when the twelfth 26 Errores Juris 2005 was delayed by car trouble). without just cause). United States v. Gilbert, 47 F.3d 1116 (11th Cir.), cert. denied, 516 U.S. *United States v. Ottersburg, 76 F.3d *United States v. Eastern Medical 851 (1995) (Proof of failure to 137 (7th Cir.), clarified, 81 F.3d 657 Billing, Inc., 230 F.3d 600 (3rd Cir. comply with a directive of a federal (1996) (Plain error to allow alternate 2000) (Allen charge was coercive). officer was in variance with the jurors to deliberate with the jury). original charge). *United States v. Lloyd, 269 F.3d 228 *United States v. Manning, 79 F.3d (3rd Cir. 2001) (Court overstepped *United States v. Johansen, 56 F.3d 212 (1st Cir.), cert. denied, 519 U.S. authority to inquire into juror’s 347 (2d Cir. 1995) (Variance when 853 (1996) (Court should have given decision). none of the conspiracies alleged were a “yes or no” answer to a deadlocked proven). jury’s question, rather than refer *United States v. McElhiney, 275 F.3d them to the testimony). 928 (10th Cir. 2001) (Allen instruction *United States v. Tsinhnahijinnie, was coercive). 112 F.3d 988 (9th Cir. 1997) (Fatal *United States v. Berry, 92 F.3d 597 variance between pleading and proof (7th Cir. 1996) (Jury improperly *French v. Jones, 332 F.3d 430 (6th of date of offense). considered a transcript, rather than Cir.), cert. denied, 540 U.S. 1018 (2003) the actual tape). (Jury deliberations were a critical stage *United States v. Mohrbacher, 182 of trial that required counsel to be F.3d 1041 (9th Cir. 1999) (Variance *United States v. Benedict, 95 F.3d present for note from deadlocked jury). between charge of transporting child 17 (8th Cir. 1996) (Trial court should pornography and proof of mere not have accepted partial verdicts). United States v. Alvarez-Farfan, 338 receipt). F.3d 1043 (9th Cir. 2003) (Jury should *United States v. Thomas, 116 F.3d have been allowed to compare United States v. Ramirez, 182 F.3d 606 (2d Cir. 1997) (Juror should not handwriting samples). 544 (7th Cir. 1999) (Variance have been dismissed when he did not between charge and proof in firearm admit to refusing to follow the law United States v. Peters, 349 F.3d 842 case). during deliberations). (5th Cir. 2003) (Judge’s ex parte communication with juror was error). *United States v. Morales, 185 F.3d United States v. Hall, 116 F.3d 1253 74 (2nd Cir. 1999) (Racketeering (8th Cir. 1997) (Exposure of jury to Caliendo v. Warden of California Men’s enterprise did not last for duration unrelated, but prejudicial matters, Colony, 365 F.3d 691 (9th Cir. 2004) alleged in indictment). required new trial). (Prejudice was presumed from detective’s 20-minute conversation with United States v. Shipsey, 190 F.3d *United States v. Keating, 147 F.3d jurors). 1081 (9th Cir. 1999) (Court’s 895 (9th Cir. 1998) (Reasonable instruction to jury constructively probability of juror prejudice required United States v. Lentz, 383 F.3d 191 amended indictment). new trial). (4th Cir. 2004) (Evidence that had not been admitted was considered by jury). *United States v. Pigee, 197 F.3d 879 *United States v. Lampkin, 159 F.3d (7th Cir.), cert. denied, 530 U.S. 607 (D.C. Cir. 1999) (Jury was Cannon v. Mullin, 383 F.3d 1152 (10th 1269 (2000) (Jury instruction allowed to consider tapes not in Cir. 2004) (Improper contact between constructively amended indictment). evidence). jury and government witnesses). United States v. McDermott, 245 United States v. Beard, 161 F.3d United States v. Yarborough, 400 F.3d F.3d 133 (2d Cir. 2001) (Variance 1190 (9th Cir. 1999) (Error to 17 (D.C. 2005) (Judge’s comments to between conspiracy charged and substitute alternates for jurors after jury coerced conviction). proof at trial). deliberations began). United States v. Collins, 350 F.3d United States v. Spence, 163 F.3d Variance 773 (8th Cir. 2003) (Jury instruction 1280 (11th Cir. 1999) (Juror constructively amended indictment). dismissed during deliberations 27 Errores Juris 2005

*United States v. Cruz, 50 F.3d 714 (9th commercial purpose did not involve Speech / Cir. 1995) (Shipment of firearm in interstate commerce in arson case). interstate commerce must occur after the Assembly firearm is stolen). *United States v. Wang, 222 F.3d 234 (6th Cir. 2000) (Robbery of cash United States v. Popa, 187 F.3d 672 *United States v. Quigley, 53 F.3d 909 did not have sufficient impact on (D.C. Cir. 1999) (Conviction for (8th Cir. 1995) (Liquor store robbery did interstate commerce). harassing AUSA with racial epithets not affect interstate commerce). violated first amendment). *United States v. King, 227 F.3d 732 *United States v. Grey, 56 F.3d 1219 (6th Cir. 2000) (Arson did not affect *United States v. Baugh, 187 F.3d (10th Cir. 1995) (Use of currency did interstate commerce). 1037 (9th Cir. 1999) (Assembly at not involve interstate commerce). national park could not be *United States v. Corp, 236 F.3d 325 conditioned on promise not to United States v. Lopez, 514 U.S. 549 (6th Cir. 2001) (Photos of child taken trespass). (1995) ("Gun-free school zone" law by defendant did not have sufficient found unconstitutional). connection to interstate commerce). *United States v. Frandsen, 212 F.3d 1231 (11th Cir. 2000) (Requiring *United States v. Barone, 71 F.3d 1442 *United States v. Johnson, 246 F.3d permit to make public expression of (9th Cir. 1995) (False checks did not 749 (5th Cir. 2001) (Plea lacked views was illegal prior restraint). involve interstate commerce). factual basis for connection to interstate commerce). United States v. Poocha, 259 F.3d United States v. Denalli, 90 F.3d 444 1077 (9th Cir. 2001) (Use of (11th Cir. 1996) (Arson of neighbor’s United States v. Carr, 271 F.3d 172 profanity to a park ranger was not home did not involve interstate (4th Cir. 2001) (Admission to arson disturbing the peace). commerce). of mobile home that served as a church did not satisfy interstate *United States v. Scarfo, 263 F.3d 80 *United States v. Gaydos, 108 F.3d 505 commerce prong). (3d Cir. 2001) (Prohibiting counsel’s (3rd Cir. 1997) (Insufficient evidence extrajudicial statements violated free that arson involved interstate *United States v. Turner, 272 F.3d speech). commerce). 380, amended, 280 F.3d 1078 (6th Cir. 2002) (Robbery of individual McCoy v. Stewart, 282 F.3d 626 (9th *United States v. Izydore, 167 F.3d 213 who ran illegal lottery did not affect Cir. 2002) (Gang members (5th Cir. 1999) (No evidence that phone interstate commerce). statements to one another were calls crossed state lines for wire fraud protected by First Amendment). interstate nexus). *United States v. Lynch, 282 F.3d 1049 (9th Cir. 2001) (Robbery of an *In Re Boston Herald, 321 F.3d 174 *United States v. Wilson, 182 F.3d 737 individual did not affect interstate (1st Cir. 2003) (Newspaper could not (10th Cir. 1999) (Insufficient evidence commerce). get defendant’s financial affidavit of child pornography shipped in under CJA). interstate commerce). *United States v. Chance, 306 F.3d 356 (6th Cir. 2002) (Obstruction of *United States v. Spinner, 180 F.3d 514 state laws to facilitate illegal Interstate (3rd Cir. 1999) (Indictment failed to gambling had insufficient nexus to Commerce allege element of interstate commerce). interstate commerce). *United States v. Causey, 185 F.3d 407 United States v. Jackson, 313 F.3d *United States v. Box, 50 F.3d 345 (5th Cir.), cert. denied, 530 U.S. 1277 231 (5th Cir. 2002) (Insufficient (5th Cir.), cert. denied, 516 U.S. 714 (2000) ( No federal nexus shown evidence that city received over $10K (1996) (Extortion of interstate regarding communication). of federal funding under theft travelers did not involve interstate statute). commerce). Jones v. United States, 529 U.S. 848 (2000) (Residence that was not used for *United States v. Perrotta, 313 F.3d 28 Errores Juris 2005

33 (2d Cir. 2002) (Intended victim conspirators). did not support conspiracy). was only an employee of company participating in interstate commerce). United States v. Kim, 65 F.3d 123 (9th *United States v. Gore, 154 F.3d 34 Cir. 1995) (To be guilty of conspiracy, (2d Cir. 1998) (Buyer/seller *United States v. McCoy, 323 F.3d the defendant must have known of the relationship did not establish 1114 (9th Cir. 2003) (Intrastate child illegal structuring). conspiracy). pornography is not covered by federal statute). United States v. Lopez-Ramirez, 68 F.3d *United States v. Idowu, 157 F.3d 438 (11th Cir. 1995) (Insufficient 265 (3rd Cir. 1999) (Insufficient United States v. Burton, 324 F.3d evidence of conspiracy as to defendant evidence that defendant knew 768 (5th Cir. 2003) (Government who was present in home where 65 kilos purpose of drug conspiracy). failed to prove vehicle was of cocaine was delivered and then manufactured out of state). seized). *United States v. Meyer, 157 F.3d 1067 (7th Cir.), cert. denied, 526 *United States v. Lamont, 330 F.3d United States v. Palazzolo, 71 F.3d 1233 U.S. 1070 (1999) (Court should have 1249 (9th Cir. 2003) (Church arson (6th Cir. 1995) (Verdict form failed to instructed that mere buyer/seller had no federal nexus). distinguish the object of the conspiracy). relationship did not establish conspiracy). *United States v. Martinez, 83 F.3d 371 Conspiracy (11th Cir.), cert. denied, 519 U.S. 998 *United States v. Morillo, 158 F.3d (1997) (Defendant’s conviction for 18 (1st Cir. 1999) (Insufficient United States v. Newton, 44 F.3d 913 conspiracy to possess cocaine was evidence of drug conspiracy). (11th Cir.), cert. denied, 516 U.S. reversed because there was no evidence 857 (1995) (Leasing residence for a beyond defendant’s intent to help co- *United States v. Dekle, 165 F.3d drug dealer did not prove the conspirators steal money). 826 (11th Cir. 1999) (Insufficient defendant’s participation in a evidence that doctor conspired to conspiracy). *United States v. Thomas, 114 F.3d 403 illegally distribute drugs). (3rd Cir. 1997) (Insufficient evidence of United States v. Lluesma, 45 F.3d a conspiracy, when it was not shown *United States v. Mercer, 165 F.3d 408 (11th Cir. 1995) (Proof of that defendant knew cocaine was in bag 1331 (11th Cir. 1999) (Insufficient conspiracy to export stolen vehicles he was to retrieve). evidence of a drug conspiracy). was insufficient against defendant who did odd jobs for midlevel *United States v. Jensen, 141 F.3d 830 *United States v. Vaghela, 169 F.3d conspirator). (8th Cir. 1998) (Insufficient evidence of 729 (11th Cir. 1999) (Insufficient drug conspiracy). evidence of conspiracy to obstruct United States v. Flores-Chapa, 48 justice). F.3d 156 (5th Cir. 1995) United States v. Paul, 142 F.3d 836 (5th (Defendant’s beeper and personal use Cir. 1998) (Insufficient evidence of United States v. Torres-Ramirez, 213 of drugs was not proof of conspiracy to import). F.3d 978 (7th Cir. 2000) (Purchase of conspiracy). drugs and knowledge of conspiracy *United States v. Toler, 144 F.3d 1423 did not make defendant a co- *United States v. Lewis, 53 F.3d 29 (11th Cir. 1998) (Insufficient evidence conspirator). (4th Cir. 1995) (Court failed to that defendant participated in instruct the jury that conspiring with conspiracy). *United States v. Estrada-Macias, a government agent alone required 218 F.3d 1064 (9th Cir. 2000) (Mere an acquittal). *United States v. Thomas, 150 F.3d 743 presence and knowledge of a (7th Cir. 1998) (Defendant was entitled conspiracy were insufficient to United States v. Ross, 58 F.3d 154 to instruction that buyer/seller convict). (5th Cir.), cert. denied, 516 U.S. 954 relationship is not itself a conspiracy). (1995) (Defendant was not a *United States v. Fuchs, 218 F.3d conspirator merely because he sold *United States v. Garcia, 151 F.3d 1243 957 (9th Cir. 2000) (No instruction drugs at same location as (9th Cir. 1998) (Gang relationship alone that conspiracy must have occurred 29 Errores Juris 2005 during statute of limitations). *United States v. Banuelos, 322 F.3d (9th Cir. 1995) (Defendant whose 700 (9th Cir. 2003) (Jury must find civil rights were restored was not United States v. Rivera, 273 F.3d 751 conduct that increases statutory prohibited from possessing a (7th Cir. 2001) (Mere buyer/seller maximum). firearm). relationship was not conspiracy). United States v. Ceballos, 340 F.3d 115 *United States v. Hayden, 64 F.3d United States v. Garcia-Torres, 280 (2d Cir. 2003) (Insufficient evidence 126 (3rd Cir. 1995) (Defendant F.3d 1 (1st Cir. 2002) (Defendant that defendant joined bribery should have been allowed to involved in kidnapping and murder conspiracy). introduce evidence of his low did not know he was aiding drug intelligence and illiteracy to rebut conspiracy). United States v. Cartwright, 359 F.3d allegations that he knew he was 281 (3d Cir. 2004) (Insufficient evidence under indictment when buying a *United States v. Thomas, 284 F.3d that the defendant knew the identity of firearm). 746 (7th Cir. 2002) (Two sales did the substance charged in the drug not prove membership in conspiracy). *United States v. Edwards, 90 F.3d conspiracy). 199 (7th Cir. 1996) (Defendant must United States v. Mann, 389 F.3d 869 be shown to know his shotgun is *United States v. Cruz, 285 F.3d 692 (9th Cir. 2004) (Firearms found in shorter than 18 inches in length in (8th Cir. 2002) (Insufficient evidence locked safe were not shown to be in order to be liable for failure to of conspiracy to distribute furtherance of conspiracy). register the weapon). methamphetamine). *United States v. Rogers, 94 F.3d United States v. Allen, 299 F.3d Firearms 1519 (11th Cir.), cert. denied, 522 1230 (11th Cir. 2002) (Government U.S. 252 (1998) (Government failed neglected its obligation to request a Staples v. United States, 511 U.S. (1994) to prove a defendant knew that he special verdict as to the type of drug (When defendant was prohibited from possessed a fully automatic weapon). and amounts attributed various possessing a particular kind of firearm, defendants and the object of the it must be proven he knew that he *United States v. Atcheson, 94 F.3d conspiracy). possessed that type of firearm). 1237 (9th Cir.), cert. denied, 519 U.S. 1140 (1997) (Each §924 (c) United States v. Culps, 300 F.3d *United States v. Herron, 45 F.3d 340 conviction must be tied to a separate 1069 (9th Cir. 2002) (The number of (9th Cir. 1995) (Defendant whose civil predicate crime). days used for multiplying against the rights were restored was not prohibited average amount of drugs sold from possessing a firearm). *United States v. Indelicato, 97 F.3d overestimated the amount of time of 627 (1st Cir.), cert. denied, 522 U.S. continuous drug activity related to *United States v. Caldwell, 49 F.3d 251 835 (1997) (Defendant who did not the conspiracy). (6th Cir. 1995) (Licensed dealer who lose his civil rights could not be felon sold firearm away from business was not in possession). *United States v. Hernandez, 301 guilty of unlicensed sale). F.3d 886 (8th Cir. 2002) (Defendant *United States v. Casterline, 103 F.3d was not proven to be part of *United States v. Anderson, 59 F.3d 76 (9th Cir.), cert. denied, 522 U.S. methamphetamine conspiracy). 1323 (D.C. Cir.), cert. denied, 516 U.S. 835 (1997) (Felon in possession 999 (1995) (Multiple §924 (c) charge may not proven solely by United States v. Shi, 317 F.3d 715 convictions must be based on separate ownership). (7th 2003) (Buyer-seller relationship predicate offenses). alone is not a conspiracy). *United States v. Paul, 110 F.3d 869 Bailey v. United States, 516 U.S. 137 (2d Cir. 1997) (Court failed to give *United States v. Fitz, 317 F.3d 878 (1995) (Passive possession of firearm duress instruction in a felon in (8th Cir. 2003) (Failed to show was insufficient to prove "use" of possession case). defendant was aware of conspiracy or firearm during drug trafficking crime). knowingly agreed to join it). *United States v. Taylor, 113 F.3d United States v. Kelly, 62 F.3d 1215 1136 (10th Cir. 1997) (Firearm found 30 Errores Juris 2005 in shared home was not shown to be *United States v. Mount, 161 F.3d 675 that defendant possessed firearm possessed by the defendant). (11th Cir. 1999) (Weapon found in found under his car seat). stairwell was not carried). United States v. Stephens, 118 F.3d United States v. Sanders, 240 F.3d 479 (6th Cir. 1997) (Separate caches *United States v. Gilliam, 167 F.3d 628 1279 (10th Cir. 2001) (Evidence did of cocaine possessed on the same (D.C.), cert. denied, 526 U.S. (1999) not prove defendant knew that day, did not support two separate gun (Failed to prove prior conviction in felon weapon had silencer). enhancements). in possession). *United States v. Finley, 245 F.3d *United States v. Westmoreland, 122 *United States v. Aldrich, 169 F.3d 526 199 (2d Cir.), cert. denied, 534 U.S. F.3d 431 (7th Cir. 1997) (Agent’s (8th Cir. 1999) (Vacating related gun 1144 (2202) (Single gun could not be presentation of inoperable firearm to count required entire new trial on used for two possessions during a defendant, immediately before arrest, others). drug trafficking crime). did not support possession of a firearm in relation to drug crime). *United States v. Meza-Corrales, 183 *United States v. Atkins, 276 F.3d F.3d 1116 (9th Cir. 1999) (Felon had 1141 (9th Cir. 2001) (Evidence was United States v. Gonzalez, 122 F.3d civil rights restored and could possess insufficient that defendant had validly 1383 (11th Cir. 1997) (Evidence did firearms). waived counsel to domestic violence not support possession of a firearm charge that was basis for federal while a fugitive from justice). United States v. Martin, 180 F.3d 965 firearms offense). (8th Cir. 1999) (Insufficient evidence of United States v. Norman, 129 F.3d constructive possession of a firearm). United States v. Laskie, 258 F.3d 1393 (10th Cir. 1997) (Felon whose 1047 (9th Cir. 2001) (“Honorable civil rights had been restored was not United States v. Fowler, 198 F.3d 808 discharge” of drug offense in Nevada illegally in possession of firearm). (11th Cir. 1999) (Restoration of rights counts as a set aside of the prior by state allowed firearms possession). conviction). United States v. Perez, 129 F.3d 1340 (9th Cir. 1997) (Jury should *United States v. Howard, 214 F. 3d 361 United States v. Osborne, 262 F.3d have been required to decide the type (2d Cir. 2000) ( Jury could not infer 486 (5th Cir. 2001) (Civil rights were of firearm). defendant knew firearm was stolen restored even though state law was merely because he was felon, or that later changed). United States v. Graves, 143 F.3d firearm was found next to one with 1185 (9th Cir. 1998) (Accessory to obliterated serial number). United States v. Fix, 264 F.3d 532 felon in possession had to know co- (5th Cir. 2001) (Granting new trial defendant was a felon and possessed *United States v. Adams, 214 F.3d 724 for state conviction removed firearm). (6th Cir. 2000) (Simultaneous disability to possess firearm). possession of firearm and ammunition *United States v. Spinner, 152 F.3d may result in only one conviction). United States v. Gayle, 342 F.3d 89 950 (D.C. Cir. 1998) (Failure to (2d Cir. 2003) (Felon in possession of show firearm was semiautomatic United States v. Coleman, 208 F.3d 786 a firearm must have been previously assault weapon). (9th Cir. 2000) (Insufficient evidence convicted in the United States). that defendant knew co-defendant had a United States v. Benboe, 157 F.3d firearm for armed bank robbery United States v.Rawlings, 341 F.3d 1181 (9th Cir. 1999) (Firearm conviction). 657 (7th Cir. 2003) (Without ability conviction not supported by to control firearm defendant did not evidence). *United States v. Mason, 233 F.3d 619 have constructive possession). (D.C. Cir. 2000) (Felon could get United States v. Sanders,157 F.3d instruction that firearm was briefly United States v. Jones, 371 F.3d 363 302 (5th Cir. 1999) (Insufficient possessed for legal purpose). (7th Cir. 2004) (Accompanying straw evidence that defendant carried purchaser did not prove knowledge). firearm). *United States v. Hishaw, 235 F.3d 565 (10th Cir. 2000) (Insufficient evidence United States v. Hammond, 371 F.3d 31 Errores Juris 2005

776 (11th Cir. 2004) (Cardboard tube 333 (2d Cir. 1995) (Demanding (7th Cir. 1995) (Momentarily picking containing gunpowder was not payment from fraudulent check scheme up a kilo for inspection was not explosive device). was not extortion). possession).

United States v. Augustin, 376 F.3d *United States v. Allen, 127 F.3d 260 United States v. Kearns, 61 F.3d 135 (3rd Cir. 2004) (Insufficient (2d Cir. 1997) (Insufficient evidence of 1422 (9th Cir. 1995) (Brief sampling evidence that defendant was drug extortionate credit when terms of loan of marijuana was not possession). user while possessing firearm). were consensual). *United States v. Lucien, 61 F.3d 366 United States v. Rodriguez, 392 F.3d United States v. Saadey, 393 F.3d 669 (5th Cir. 1995) (Instruction on simple 539 (2d Cir. 2004) (Insufficient (6th Cir. 2005) (Extortion not under possession should have been given in evidence of drug distribution). color of official right). a drug distribution case).

United States v. Jones, 393 F.3d 107 *United States v. Applewhite, 72 (2d Cir. 2004) (Drug and firearms Drugs F.3d 140 (D.C. Cir.), cert. denied, convictions were based on 517 U.S. 1227 (1996) (Government insufficient evidence). *United States v. Jones, 44 F.3d 860 failed to prove distribution within a (10th Cir. 1995) (Car passenger was not 1000 feet of a school). United States v. Harris, 397 F.3d 404 shown to have knowledge of the drugs). (6th Cir. 2005) (Jury did not find United States v. Derose, 74 F.3d 1177 firearm was semiautomatic for crime *United States v. Johnson, 46 F.3d 1166 (11th Cir. 1996) (Insufficient of use during a drug offense). (D.C. Cir. 1995) (Government failed to evidence that the defendant took prove distribution within 1000 feet of a possession of marijuana when he did United States v. Orellana, 405 F.3d school). not have key to car where drugs were 360 (5th Cir. 2005) (Defendant with stored). temporary immigration status was *United States v. Valerio, 48 F.3d 58 not a prohibited person). (1st Cir. 1995) (Insufficient evidence *United States v. Baron, 94 F.3d that the drugs were intended for 1312 (9th Cir.), cert. denied, 519 Small v. United States, 125 S.Ct. distribution). U.S. 1047 (1996) (Court committed 1752 (2005) (Defendant previously plain error by giving a deliberate convicted in foreign country was not *United States v. Andujar, 49 F.3d 16 ignorance instruction when there was prohibited person). (1st Cir. 1995) (There was no more no evidence that the defendant knew, evidence than mere presence). or avoided learning, of secreted drugs). Extortion *United States v. Jones, 49 F.3d 628 (10th Cir. 1995) (Inferences derived *United States v. Wozniak, 126 F.3d *United States v. Tomblin, 46 F.3d from standing near open trunk did not 105 (2d Cir. 1997) (Charge on 1369 (5th Cir. 1995) (Private citizen prove knowledge). marijuana impermissibly amended did not act under color of official indictment alleging cocaine and right). *United States v. Polk, 56 F.3d 613 (5th methamphetamine). Cir. 1995) (Use of the defendant’s car *United States v. Scotti, 47 F.3d and home were insufficient to show *United States v. Hunt, 129 F.3d 739 1237 (2d Cir. 1995) (Facilitating participation). (5th Cir. 1997) (There was payment of a debt was not extortion). insufficient evidence of an intent to United States v. Horsley, 56 F.3d 50 distribute). *United States v. Delano, 55 F.3d (11th Cir. 1995) (Distribution of cocaine 720 (2d Cir. 1995) (Services or labor is lesser included offense of distribution United States v. Soto-Silva, 129 F.3d were not property within the of cocaine within a 1,000 feet of a 340 (5th Cir. 1997) (Deliberate meaning of a statute used as a school, and the jury should be charged ignorance instruction was not predicate for RICO). accordingly). warranted for charge of maintaining premises for drug distribution). *United States v. Wallace, 59 F.3d *United States v. Kitchen, 57 F.3d 516 32 Errores Juris 2005

*United States v. Brito, 136 F.3d 397 (Insufficient evidence that substance was importation even if traveling into (5th Cir. 1998) (Evidence that illegal steroid). international airspace). defendant was asked to find drivers did not prove constructive possession *United States v. Monger, 185 F.3d 574 United States v. Cartwright, 359 F.3d of hidden marijuana). (9th Cir. 1999) (Court should have 281 (3rd Cir. 2004) (Insufficient instructed on lesser offense of simple evidence that defendant participated United States v. Lombardi,138 F.3d possession). in drug transaction). 559 (5th Cir. 1998) (Evidence did not support conviction for using *United States v. Garcia-Sanchez, 189 United States v. Trujillo, 390 F.3d juvenile to commit drug offense). F.3d 1143 (9th Cir. 1999) (Drug 1267 (10th Cir. 2004) (Defendant quantities not supported by evidence was entitled to lesser charge of simple United States v. Leonard, 138 F.3d where defendant did not agree to sell possession). 906 (11th Cir. 1998) (Insufficient from specific location). evidence that passenger of vehicle United States v. Byfield, 391 F.3d possessed drugs or gun hidden in *United States v. Bryce, 208 F.3d 346 277 (D.C. Cir. 2004) (Government car). (2d Cir. 2000) (Uncorroborated failed to rebut defense that weight of admissions were insufficient to establish drugs was partly of sugar). United States v. Sampson, 140 F.3d possession or distribution). 585 ( 4th Cir. 1998) (Insufficient United States v. Rodriguez, 392 F.3d evidence that drug offense occurred United States v. Corral-Gastelum, 240 539 (2d Cir. 2004) (Insufficient within 1000 feet of a playground or F.3d 1181 (9th Cir. 2001) (Mere evidence of drug possession). public housing). proximity to drugs did not prove possession). United States v. Jones, 393 F.3d 107 United States v. Delagarza- (2d Cir. 2004) (Insufficient evidence Villarreal, 141 F.3d 133 (5th Cir. United States v. Huerto-Orozco, 272 of drug distribution). 1997) (Insufficient evidence of F.3d 561 (8th Cir. 2001) (Insufficient possession of marijuana where evidence that defendant possessed drugs United States v. Caseer, 399 F.3d 828 defendant never took control). in bag found in cab). (6th Cir. 2005) (No fair notice that Khat contained controlled substance). *United States v. Ortega-Reyna, 148 *United States v. Bennafield, 287 F.3d F.3d 540 (5th Cir. 1998) (Insufficient 320 (4th Cir. 2002) (Simultaneous United States v. Dunmire, 403 F.3d evidence that drugs hidden in possession of multiple packages was a 722 (10th Cir. 2005) (Insufficient borrowed truck were defendant’s). single crime). evidence of charged drug quantity).

*United States v. Quintanar, 150 *United States v. Allen, 302 F.3d 1260 F.3d 902 (8th Cir. 1998) (No (11th Cir. 2002) (Jury must decide type CCE / RICO evidence that defendant exercised and quantity of drugs when it affects control over contraband). maximum punishment). *United States v. Barona, 56 F.3d 1087 (9th Cir.), cert. denied, 516 *United States v. Valadez-Gallegos, *United States v. Velasco-Heredia, 319 U.S. 1092 (1996) (Insufficient to find 162 F.3d 1256 (10th Cir. 1999) F.3d 1080 (9th Cir. 2003) (Judge could a CCE when there were persons who (Passenger was not linked to not make drug quantity finding that could not be legally counted as contraband in vehicle). increased statutory maximum supervisees). punishment). *United States v. Edwards, 166 F.3d United States v. Witek, 61 F.3d 819 1362 (11th Cir. 1999) (Insufficient *United States v. Hodge, 321 F.3d 429 (11th Cir.), cert. denied, 516 U.S. evidence of drug possession where (3rd Cir. 2003) (Wax/flour mixture 1060 (1996) (Mere buyer-seller defendant merely picked up cannot be prosecuted as drug analogue). relationship did not satisfy package). management requirement for United States v. Cabaccang, 332 F.3d conviction of engaging in continuing United States v. Orduno-Aguilera, 622 (9th Cir. 2003) (Flying drugs criminal enterprise). 183 F.3d 1138 (9th Cir. 1999) between points in the U.S. is not 33 Errores Juris 2005

*United States v. Russell, 134 F.3d Soto-Negron v. Taber Partners I, 339 Cir. 1995) (State chartered foreign 171 (3rd Cir. 1998) (CCE instruction F.3d 35 (1st Cir. 2003) (Series of bank was not covered by the bank omitted unanimity requirement). improperly cashed checks were not fraud statute). RICO predicates). United States v. To, 144 F.3d 737 United States v. Johnson, 71 F.3d 139 (11th Cir. 1998) (Insufficient United States v. Cummings, 395 F.3d (4th Cir. 1995) (Court improperly evidence of RICO and Hobbs Act 392 (7th Cir. 2005) (Insufficient instructed the jury that a credit union violations). evidence of RICO crimes). was federally insured).

*United States v. Polanco, 145 F.3d United States v. Mueller, 74 F.3d 536 (2d Cir.), cert. denied, 529 U.S. Fraud / Theft 1152 (11th Cir. 1996) (Filing a 1071 (1999) (Insufficient evidence misleading affidavit to delay a civil that defendant murdered victim to *United States v. Cannon, 41 F.3d 1462 proceeding involving a bank was not maintain position in CCE). (11th Cir.), cert. denied, 516 U.S. 823 bank fraud). (1995) (Proof of false documents to elicit Richardson v. United States, 526 payment on government contracts was United States v. Morris, 81 F.3d 131 U.S. 813 (1999) (Jury must agree on insufficient when documents did not (11th 1996) (Sale of a phone that specific violations). contain false information). disguised its identity was not fraud in connection with an access device). *United States v. Frega, 179 F.3d *United States v. Manarite, 44 F.3d 793 (9th Cir.), cert. denied, 528 U.S. 1407 (9th Cir.), cert. denied, 516 U.S. *United States v. Allen, 88 F.3d 765 1191 (2000) (Court’s instruction 851 (1995) (Mailings were not related to (9th Cir.), cert. denied, 520 U.S. failed to identify potential predicate scheme to defraud). 1202 (1997) (Government failed to acts in RICO case). prove that a credit union was *United States v. Altman, 48 F.3d 96 federally insured). United States v. Glover, 179 F.3d (2d Cir. 1995) (Mailings were too 1300 (11th Cir. 1999) (Role as remote to be related to the fraud). *United States v. Wester, 90 F.3d 592 organizer or leader must be based on (1st Cir. 1996) (Loan’s face value managing persons, not merely United States v. Hammoude, 51 F.3d was not the proper amount of loss assets). 288 (D.C. Cir.), cert. denied, 515 U.S. when collateral was pledged). 1128 (1995) (Composite stamp did not United States v. McSwain, 197 F.3d make a visa a counterfeit document). United States v. McMinn, 103 F.3d 472 (10th Cir. 1999) (Conspiracy to 216 (1st Cir. 1997) (Defendant was manufacture and distribute are lesser United States v. Wilbur, 58 F.3d 1291 not in the business of selling stolen offenses of CCE). (8th Cir. 1995) (Physician who stole goods unless he sold goods stolen by drugs did not obtain them by deception). others). *United States v. Brown, 202 F.3d 691 (4th Cir. 2000) (Omission of *United States v. Klingler, 61 F.3d 1234 *United States v. Czubinski, 106 F.3d instruction requiring unanimity on (6th Cir. 1995) (Customs broker’s 1069 (1st Cir. 1997) (Merely specific violations reversed CCE misappropriation of funds did not browsing confidential computer files conviction). involve money of the United States). was not wire fraud or computer fraud). United States v. Desena, 260 F.3d *United States v. Valentine, 63 F.3d 459 150 (2d Cir. 2001) (Talk of “war” (6th Cir. 1995) (Government agent must United States v. Tencer, 107 F.3d and “grabbing shirts” did not support convert more that $5000 in a single year 1120 (5th Cir.), cert. denied, 522 CCE). to violate 18 U.S.C. § 666). U.S. 960 (1997) (Insurance checks that were not tied to fraudulent Williams v. Obstfeld, 314 F.3d 1270 *United States v. Campbell, 64 F.3d 967 claims were insufficient proof of mail (11th Cir. 2002) (Absent a joint (5th Cir. 1995) (Bank officers did not fraud). enterprise defendant could not be cause a loss to the bank). vicariously liable for acts of others). *United States v. Todd, 108 F.3d United States v. Lewis, 67 F.3d 225 (9th 1329 (11th Cir. 1997) (Defendant 34 Errores Juris 2005 was improperly prohibited from *United States v. Rodriguez, 140 F.3d United States v. Hanson, 161 F.3d introducing evidence that employees 163 (2nd Cir. 1998) (Insufficient 896 (5th Cir. 1999) (Factual implicitly agreed that pension funds evidence of bank fraud). questions about bank fraud should could be used to save the company). have been decided by jury). *United States v. Ely, 142 F.3d 1113 *United States v. Cochran, 109 F.3d (9th Cir. 1997) (Government failed to *United States v. Laljie, 184 F.3d 180 660 (10th Cir. 1997) (There was prove defendant was a bank director as (2d Cir. 1999) (No evidence that insufficient proof of mail fraud charged in the indictment). checks were altered, that signatures without evidence of were not genuine, or that they were misrepresentation). *United States v. D’Agostino, 145 F.3d intended to victimize bank). 69 (2nd Cir. 1998) (Diverted funds were *United States v. Parsons, 109 F.3d not taxable income for purposes of tax United States v. Lindsay, 184 F.3d 1002 (4th Cir. 1997) (Money that evasion). 1138 (10th Cir. 1999) (Insufficient defendant legitimately spent as postal evidence that bank was FDIC employee could not be counted *United States v. Schnitzer, 145 F.3d insured). toward fraud). 721 (5th Cir. 1998) (Impermissible theory of fraud justified new trial). United States v. Hartsel, 199 F.3d *United States v. Grossman, 117 812 (6th Cir. 1999) (Receipt of F.3d 255 (5th Cir. 1997) (Personal *United States v. Shotts, 145 F.3d 1289 mailed bank statements was not a use of funds from business loan was (11th Cir.), cert. denied, 525 U.S. 1177 fraudulent use of mails). not bank fraud). (1999) (Bail bond license was not property within meaning of mail fraud United States v. Principe, 203 F.3d *United States v. Cross, 128 F.3d statute). 849 (5th Cir. 2000) (Possession of 145 (3rd Cir.), cert, denied, 523 U.S. counterfeit document should not have 1076 (1998) (Fixing cases was not *United States v. Hughey, 147 F.3d 423 been sentenced under trafficking mail fraud just because court mailed (5th Cir. 1998) (Passing bad checks was guidelines). disposition notices). not unauthorized use of an access device). United States v. Tucker, 217 F.3d 960 *United States v. LaBarbara, 129 (8th Cir. 2000) (Loss to IRS occurred F.3d 81 (2nd Cir. 1997) *United States v. Evans, 148 F.3d 477 when taxes were due, not when (Government failed to show use of (5th Cir.), cert. denied, 525 U.S. 1112 conspiracy began). mails in a fraud case). (1999) (No evidence that mailings advanced fraudulent scheme). Cleveland v. United States, 531 U.S. *United States v. DeFries, 129 F.3d 12 (2000) (Victim must actually 1293 (D.C. Cir. 1997) (The court United States v. Blasini-Lluberas, 169 receive the item for there to be mail should have given an advice of F.3d 57 (1st Cir. 1999) (There was no fraud). counsel instruction on an misapplication of bank funds on a debt embezzlement count). not yet due). *United States v. Gee, 226 F.3d 885 (7th Cir. 2000) (Insufficient evidence United States v. Baird, 134 F.3d United States v. Silkman, 156 F.3d 833 of mail and wire fraud where 1276 (6th Cir. 1998) (Instruction (8th Cir. 1998) (Administrative tax defendant did not conceal material failed to charge jury that contractor assessment was not conclusive proof of facts). was only liable for falsity of costs it tax deficiency). claimed to have incurred). *United States v. Rahseparian, 231 United States v. Adkinson, 158 F.3d F.3d 1257 (10th Cir. 2000) (Jury *United States v. Adkinson, 135 F.3d 1147 (11th Cir. 1998) (Insufficient could not reasonably infer that father 1363 (11th Cir. 1998) (Dismissal of evidence of fraud). knew of son’s fraudulent business underlying bank fraud undermined scheme). convictions for conspiracy, mail and *United States v. Rodrigues, 159 F.3d wire fraud schemes, and money 439 (9th Cir. 1998) (Insufficient *United States v. Odiodio, 244 F.3d laundering). evidence of fraud and theft). 398 (5th Cir. 2001) (No bank fraud when bank not subject to civil 35 Errores Juris 2005 liability). United States v. Newton, 44 F.3d 913 structure a currency transaction). (11th Cir. 1995) (Proof of aiding and United States v. Howerter, 248 F.3d abetting money laundering conspiracy *United States v. High, 117 F.3d 464 198 (3rd Cir. 2001) (Person was insufficient against defendant who (11th Cir. 1997) (Money laundering authorized to write checks did not leased house on behalf of conspirator). instruction omitted the element of commit bank larceny by cashing willfulness). checks payable to himself). *United States v. Rockelman, 49 F.3d 418 (8th Cir. 1995) (Evidence failed to United States v. Garza, 118 F.3d 278 *United States v. Ali, 266 F.3d 1242 show the transaction was intended to (5th Cir. 1997) (Money laundering (9th Cir. 2001) (FDIC insurance at conceal illegal proceeds). proof was insufficient where time of trail did not prove bank was defendants neither handled nor insured at time of fraud). *United States v. Torres, 53 F.3d 1129 disposed of drug proceeds). (10th Cir.), cert. denied, 516 U.S. 883 *United States v. La Mata, 266 F.3d (1995) (Buying a car with drug *United States v. Christo, 129 F.3d 1275 (11th Cir.), cert. denied, 535 proceeds was not money laundering). 578 (11th Cir. 1997) (Check kiting U.S. 989 (2002) (Ex post facto scheme was not money laundering). application of bank fraud statute). United States v. Willey, 57 F.3d 1374 (5th Cir.), cert. denied, 516 U.S. 1029 *United States v. Shoff, 151 F.3d 889 *United States v. Maung, 267 F.3d (1995) (Transferring money between (8th Cir. 1998) (Purchase with 1113 (11th Cir. 2001) (Defendant accounts was insufficient evidence of an proceeds of fraud was not money was not in the business of selling intent to conceal). laundering). stolen property). *United States v. Wynn, 61 F.3d 921 United States v. Calderon, 169 F.3d *United States v. Thomas, 315 F.3d (D.C. Cir.), cert. denied, 516 U.S. 1015 718 (11th Cir. 1999) (Insufficient 190 (3d Cir. 2002) (Insufficient (1995) (Insufficient evidence that the evidence of money laundering). evidence of bank fraud when there defendant knew his structuring was was no loss and no intent to steal unlawful). *United States v. Zvi, 168 F.3d 49 from a bank). (2d Cir.), cert. denied, 528 U.S. 872 *United States v. Dobbs, 63 F.3d 391 (1999) (Charging domestic and *United States v. Bobo, 344 F.3d (5th Cir. 1995) (Undisguised money international money laundering based 1076 (11th Cir. 2003) (Insufficient used for family needs was not money on the same transactions was evidence of health care fraud). laundering). multiplicitous).

United States v. Habegger, 376 F.3d United States v. Nelson, 66 F.3d 1036 *United States v. Brown, 186 F.3d 441 (4th Cir. 2004) (Insufficient (9th Cir. 1995) (Defendant’s eagerness 661 (5th Cir. 1999) (Insufficient evidence of trafficking in counterfeit to complete the transaction was not evidence of money laundering when goods). sufficient to prove an attempt). no proof checks were connected to fraud). United States v. Chandler, 388 F.3d *United States v. Kramer, 73 F.3d 1067 796 (11th Cir. 2004) (Promotional (11th Cir.), cert. denied, 519 U.S. 1011 *United States v. Anderson, 189 F.3d games were not mail fraud). (1996) (Transaction that occurred 1201 (10th Cir. 1999) (Titling outside of the United States was not vehicle in mother’s name did not United States v. Cacho-Bonilla, 404 money laundering). prove money laundering). F.3d 84 (1st Cir. 2005) (Insufficient evidence of false statement). United States v. Phipps, 81 F.3d 1056 *United States v. Messer, 197 F.3d (11th Cir. 1996) (Not money laundering 330 (9th Cir. 1999) (Coded language to deposit a series of checks that are less did not support money laundering Money than $10K each). conviction).

Laundering United States v. Pipkin, 114 F.3d 528 United States v. Miranda, 197 F.3d (5th Cir.), cert. denied, 519 U.S. 821 1357 (11th Cir. 1999) (Ex post facto (1996) (Defendant did not knowingly application of money laundering 36 Errores Juris 2005 conspiracy statute) that the defendant took steps to assist in United States v. Hairston, 46 F.3d the use of a firearm). 361 (4th Cir.), cert. denied, 516 U.S. *United States v. Olaniyi-Oke, 199 840 (1995) (Ambiguity in the F.3d 767 (5th Cir. 1999) (Purchase of *United States v. Fulbright, 105 F.3d question to the defendant was computers for personal use was not 443 (9th Cir.), cert. denied, 520 U.S. insufficient for perjury conviction). money laundering). 1236 (1997) (Government failed to prove anyone committed the principle United States v. Dean, 55 F.3d 640 *United States v. Loe, 248 F.3d 449 crime with requisite intent). (D.C. Cir.), cert. denied, 516 U.S. (5th Cir. 2001) (When legitimate and 1184 (1996) (Statement that was illegal funds were commingled, United States v. Beckner, 134 F.3d 714 literally true did not support a perjury government had to prove illegal (5th Cir. 1998) (Lawyer was not shown conviction). funds were laundered). to have knowledge of client’s fraud for aiding and abetting). *United States v. Jaramillo, 69 F.3d *United States v. Marshall, 248 F.3d 388 (9th Cir. 1995) (Defendant 525 (6th Cir. 2001) (Purchase of *United States v. Nelson, 137 F.3d 1094 charged with perjury by inconsistent personal property was not money (9th Cir.), cert. denied, 525 U.S. 901 statements must have made both laundering). (1999) (Evidence did not support aiding under oath). and abetting use and carrying of a United States v. Braxton-Brown- firearm during crime of violence). *United States v. Shotts, 145 F.3d Smith, 278 F.3d 1348 (D.C Cir. 1289 (11th Cir.), cert. denied, 525 2002) (No presumption that money *United States v. Stewart, 145 F.3d 273 U.S. 1177 (1999) (Evasive, but true, drawn from commingled funds is (5th Cir. 1998) (Insufficient evidence answer was not perjury). unclean). that passenger aided and abetted drug possession without intent to distribute). United States v. Corchado-Peralta, False 318 F.3d 255 (1st Cir. 2003) United States v. Garcia-Guizar, 160 F.3d (Insufficient evidence defendant 511 (9th Cir. 1999) (Insufficient Statements knew the character of the money). evidence of aiding and abetting when no money found on defendant and was not United States v. Gaudin, 515 U.S. *United States v. Esterman, 324 F.3d present at sale). 506 (1995) (Materiality is an element 565 (7th Cir. 2003) (Defendant did of a false statement case). nothing to conceal cash). *United States v. Wilson, 160 F.3d 732 (D.C. Cir.), cert. denied, 528 U.S. 828 United States v. Bush, 58 F.3d 482 United States v. Carucci, 364 F.3d (1999) (Insufficient evidence of aiding (9th Cir. 1995) (No material false 339 (1st Cir. 2004) (No connection and abetting murder or retaliation where statements or omissions were made to shown between alleged unlawful defendant only told shooter of victim’s receive union funds). activity and financial transactions). location). United States v. Rothhammer, 64 United States v. Barnett, 197 F.3d 138 F.3d 554 (10th Cir. 1995) Aiding and (5th Cir. 1999) (Insufficient evidence of (Contractual promise to pay was not a conspiring or aiding and abetting factual assertion). Abetting murder for hire when defendant did not share intent with principal). *United States v. Campbell, 64 F.3d *United States v. de la Cruz-Paulino, 967 (5th Cir. 1995) (Defendant’s 61 F.3d 986 (1st Cir. 1995) (Moving United States v. Yakou, 393 F.3d 231 misrepresentations to a bank were not packages of contraband and (D.C. Cir. 2005) (Cannot aid and abet material). statements about police was not from outside United States). aiding and abetting). *United States v. McCormick, 72 F.3d 1404 (9th Cir. 1995) (Defendant *United States v. Luciano-Mosquero, Perjury who did not read documents before 63 F.3d 1142 (1st. Cir.), cert. denied, signing them was not guilty of 517 U.S. 1234 (1996) (No evidence making a false statement). 37 Errores Juris 2005

United States v. Mottweiler, 82 F.3d 769 deportation did not consider *United States v. Barrett, 111 F.3d (7th Cir. 1996) (Defendant must have defendant’s request for political 947 (D.C.), cert. denied, 522 U.S. acted willfully to be guilty of criminal asylum). 867 (1997) (Defendant’s contempt). misrepresentation to court was not a *United States v. Gallardo-Mendez, material false statement). United States v. Grable, 98 F.3d 251 150 F.3d 1240 (10th Cir. 1998) (Prior (6th Cir.), cert. denied, 519 U.S. 1059 guilty plea did not prevent defendant *United States v. Farmer, 137 F.3d (1997) (Contempt order could not stand from contesting noncitizen status). 1265 (10th Cir. 1998) (Answer to in light of incorrect advice about Fifth ambiguous question did not support Amendment privilege). *United States v. Pacheco-Medina, conviction for false declaration). 212 F.3d 1162 (9th Cir. 2000) Bingman v. Ward, 100 F.3d 653 (9th (Defendant who was captured a few United States v. Hodge, 150 F.3d Cir.), cert. denied, 520 U.S. 1188 (1997) yards from border did not enter 1148 (9th Cir. 1998) (Insufficient (Magistrate judge did not have the United States). evidence of false statements when no authority to hold a litigant in criminal certification made on documents). contempt). United States v. Rodriguez- Fernandez, 234 F.3d 498 (8th Cir. United States v. Sorenson, 179 F.3d United States v. Neal, 101 F3d 993 (4th 2000) (Without detention order in 823 (9th Cir. 1999) (Defendant’s Cir. 1996) (Plain error for a judge to place, defendant did not escape from false statements were contained in an prosecute and preside over a contempt INS). unsigned loan application). action). *United States v. Ruiz-Lopez, 234 United States v. Walker, 191 F.3d United States v. Vezina, 165 F.3d 176 F.3d 445 (9th Cir. 2000) (Presence at 326 (2d Cir. 1999) (Insufficient proof (2d Cir. 1999) (Insufficient evidence of border is not the same as being found that defendant was responsible for criminal contempt of a TRO dealing in the United States). more than 100 false immigration with a third party). documents). United States v. Matsumaru, 244 F.3d United States v. Harris, 314 F.3d 608 1092 (9th Cir. 2001) (Insufficient *United States v. Good, 326 F.3d 589 (D.C. Cir. 2002) (No competent evidence that attorney set up practice (4th Cir. 2003) (Regulation that was evidence that defendant refused to testify to evade immigration laws). basis for alleged false statement was at grand jury). not effective at time statement was *United States v. Herrera-Ochoa, 245 made). *In Re Smothers, 322 F.3d 438 (6th Cir. F.3d 495 (5th Cir. 2001) 2003) (Proper notification was not (Defendant’s presence at trial could followed). not be evidence that he had Contempt previously entered United States). United States v. Murphy, 326 F.3d 501 United States v. Mathews, 49 F.3d (4th Cir. 2003) (An outburst in court *United States v. Ubaldo-Figueroa, 676 (11th Cir. 1995) (Certification of could only be charged as a single count 364 F.3d 1042 (9th Cir. 2004) contempt must be filed by the judge of contempt). (Defendant denied due process when who witnessed the alleged contempt). previous removal proceeding was not translated into Spanish). United States v. Forman, 71 F.3d Immigration 1214 (6th Cir. 1995) (Attorney was United States v. Sosa, 387 F.3d 131 not in contempt for releasing grand *United States v. Bahena-Cardenas, 70 (2d Cir. 2004) (Procedural defect at jury materials in partner’s case). F.3d 1071 (9th Cir. 1995) (Alien who deportation hearing voided illegal re- was not served with warrant of entry conviction). United States v. Brown, 72 F.3d 25 deportation, was not guilty of illegal (5th Cir. 1995) (Lawyer’s comments reentry). on a judge’s trial performance were Pornography not reckless). United States v. Dieguimde, 119 F.3d 933 (11th Cir. 1997) (Order of *United States v. McKelvey, 203 F.3d 38 Errores Juris 2005

66 (1st Cir. 2000) (Single film strip Cir.), cert. denied, 522 U.S. 1109 (1998) United States v. Odom, 329 F.3d with three images was not “3 or more (First degree murder instruction failed to 1032 (9th Cir. 2003) (Inadvertent matters” under child porn statute). require specific intent). display of a firearm was not armed bank robbery). *United States v. Henriques, 234 *United States v. Bordeaux, 121 F.3d F.3d 263 (5th Cir. 2000) (At least 1187 (8th Cir. 1997) (Jury instruction in Bunkley v. Florida, 538 U.S. 835 three images must travel in interstate an abusive sexual contact case failed to 2020 (2003) (Legally possessed commerce for child pornography require force). pocketknife could not support armed conviction). burglary conviction). United States v. Estrada-Fernandez, 150 United States v. Runyan, 290 F.3d F.3d 491 (5th Cir. 1998) (Simple assault United States v. Hampton, 346 F.3d 223 (5th Cir. 2002) (Insufficient is lesser included offense of assault with 813 (8th Cir. 2003) (Losing control evidence that some of the images deadly weapon). of vehicle was not an intentional were tied to Internet). assault on official victim). United States v. Guerrero, 169 F.3d 933 *United States v. Ellyson, 326 F.3d (5th Cir. 1999) (Inconclusive *United States v. Bellew, 369 F.3d 522 (4th Cir. 2003) (Government identification did not support bank 450 (5th Cir. 2004) (Bank robbery failed to show computer images robbery conviction). requires actual intimidation). involved an actual child). Jones v. United States, 526 U.S. 227 United States v. Frampton, 382 F.3d *United States v. Pearl, 324 F.3d (1999) (Jury must decide whether 213 (2d Cir. 2004) (Insufficient 1210 (10th Cir. 2003) (Convictions carjacking resulted in serious bodily evidence of murder-for-hire). for materials that appeared depict injury or death). minors were unconstitutional). United States v. Davies, 394 F.3d 182 *United States v. Wood, 207 F.3d 1222 (3rd Cir. 2005) (Insufficient evidence (10th Cir. 2000) (Doctor’s injection of of arson of church). Violent Crimes drug to treat patient did not prove premeditated murder). *United States v. Main, 113 F.3d Assimilative 1046 (9th Cir. 1997) (In an United States v. Shumpert, 210 F.3d 660 involuntary manslaughter case, the (6th Cir. 2000) (Assault without verbal Crimes harm must have been foreseeable threat was minor rather than within the risk created by the aggravated). *United States v. Devenport, 131 defendant). F.3d 604 (7th Cir. 1997) (Violation *United States v. Baker, 262 F.3d 124 of a state civil provision was not *United States v. Wicklund, 114 F.3d (2d Cir. 2001) (Instruction allowed covered by Assimilative Crimes Act). 151 (10th Cir. 1997) (Murder for conviction without proving elements of hire required a receipt or promise of murder with intent to obstruct justice). United States v. Sylve, 135 F.3d 680 pecuniary value). (9th Cir. 1998) (Deferred prosecution United States v. Peters, 277 F.3d 963 was available for charge under *United States v. Yoakum, 116 F.3d (7th Cir. 2002) (Victim’s intoxication Assimilative Crimes Act). 1346 (10th Cir. 1997) (Defendant’s and disdain for the defendant did not interest in a business, and his prove lack of consent to sexual act). United States v. Waites, 198 F.3d presence near time of fire, did not 1123 (9th Cir. 2000) (Conduct that support arson conviction). *United States v. Glenn, 312 F.3d 58 was regulated federally should not (2d Cir. 2002) (Insufficient evidence of have been prosecuted under United States v. Spruill, 118 F.3d murder during drug conspiracy). Assimilative Crimes Act). 221 (4th Cir. 1997) (Insufficient evidence that a threat would be Patterson v. Haskins, 316 F.3d 596 (6th United States v. Provost, 237 F.3d carried out by fire or explosive). Cir. 2003) (Instruction on involuntary 934 (8th Cir. 2001) (Federal manslaughter omitted requirement of government cannot prosecute state *Smith v. Horn, 120 F.3d 400 (3rd proximate cause). crime occurring on lands that are no 39 Errores Juris 2005 longer in Indian hands). threatening communication required a United States v. Naiman, 211 F.3d 40 specific intent to threaten). (2d Cir. 2000) (Receipt of the funds is United States v. Prentiss, 273 F.3d a jurisdictional element of 1277 (10th Cir. 2001) (Parties could *United States v. Valenzeno, 123 F.3d commercial bribery). not stipulate victim was Indian when 365 (6th Cir. 1997) (Obtaining a credit they were not). report without permission was not a *United States v. Giles, 213 F.3d crime). 1247 (10th Cir. 2000) (Counterfeit *United States v. Martinez, 274 F.3d labels were not goods within meaning 897 (5th Cir. 2001) (Federal sentence *United States v. Farrell, 126 F.3d 484 of statute). that was three times longer was not (3rd Cir. 1997) (Urging a witness to like state sentence). “take the Fifth” was not witness *United States v. Neuhausser, 241 tampering). F.3d 460 (6th Cir.), cert. denied, 534 United States v. Bruce, 394 F.3d U.S. 879 (2001) (Insufficient 1215 (9th Cir. 2005) (Defendant *United States v. Rapone, 131 F.3d 188 evidence to support Travel Act should have been charged under (D.C. Cir. 1997) (Evidence was conviction). statute for Indians). insufficient to show retaliation). United States v. Ortlieb, 274 F.3d 871 *United States v. Romano, 137 F.3d 677 (5th Cir. 2001) (Obstruction of justice Miscellaneous (1st Cir. 1998) (Law prohibiting sale of requires wrongful intent). illegally taken wildlife did not cover the Crimes act of securing guide services for *United States v. Leveque, 283 F.3d hunting trip). 1098 (9th Cir. 2002) (Lacey Act *United States v. Rodriguez, 45 F.3d requires defendant know taking game 302 (9th Cir. 1995) (Possessing an *United States v. Cottman, 142 F.3d 160 was illegal). object designed to be used as a (3rd Cir. 1998) (Government is not a weapon, while in prison, was a victim under Victim Witness Protection United States v. Mulero–Joubert, 289 specific intent crime). Act). F.3d 168 (1st Cir. 2002) (For trespassing, government must prove *United States v. Alkhabaz, 104 F.3d *United States v. Copeland, 143 F.3d defendant had actual or constructive 1492 (6th Cir. 1997) (Transmission 1439 (11th Cir. 1998) (Government notice that presence was illegal). of e-mail messages of torture, rape contractor was not bribed under federal and murder did not fall within statute). United States v. Cohen, 301 F.3d 152 federal statute without public (3d Cir. 2002) (Failure to prove agent availability). United States v. Walker, 149 F.3d 238 intended to obstruct justice by (3rd Cir. 1998) (Prison worker was not a misappropriating money). *United States v. Grigsby, 111 F.3d corrections officer). 806 (11th Cir. 1997) (Importation of Wallace v. Nash, 311 F.3d 140 (2d prohibited wildlife products fell *United States v. Truesdale, 152 F.3d Cir. 2002) (Item that was not under exceptions to statute). 443 (5th Cir. 1998) (Insufficient designed to be weapon must be used evidence of illegal gambling). in order for its possession to be United States v. Nyemaster, 116 F.3d prohibited in a prison). 827 (9th Cir. 1997) (Insufficient United States v. Davis, 197 F.3d 662 evidence of being under the influence (3rd Cir. 1999). (Insufficient evidence of United States v. Hathaway, 318 F.3d of alcohol in a federal park). obstruction of justice and conspiracy 1001 (10th Cir. 2003) (Assault on without proof of knowledge of pending federal officer defines three offenses United States v. Cooper, 121 F.3d proceeding). and each must be charged separately). 130 (3rd Cir. 1997) (Evidence did not support conviction for tampering United States v. Bad Wound, 203 F.3d *United States v. Murphy, 323 F.3d with a witness). 1072 (8th Cir. 2000) (Defendant not 102 (3rd Cir. 2003) (Bribery Act does liable for acts of coconspirators prior to not criminalize ordinary patronage). *United States v. King, 122 F.3d 808 entering conspiracy). (9th Cir. 1997) (Crime of mailing United States v. Leftenant, 341 F.3d 40 Errores Juris 2005

338 (4th Cir. 2003) (Single act of (Case was not tried within 30-day 1120 (1997) (Court improperly counterfeiting did not justify multiple period). considered a defendant’s decision to counts of conviction). go to trial rather than accept a plea offer). United States v. Lincoln, 403 F.3d Sentencing - 703 (9th Cir. 2005) (Predicting the *United States v. Farnsworth, 92 F.3d President would be harmed by others General 1001 (10th Cir.), cert. denied, 519 was not a threat). U.S. 1034 (1996) (Adoption of the United States v. Rivera, 58 F.3d 600 presentence report did not resolve (11th Cir. 1995) (Defendant was disputed matters). Juveniles sentenced on the wrong count). *United States v. Romero, 122 F.3d United States v. Juvenile Male #1, 47 *United States v. Page, 69 F.3d 482 1334 (10th Cir.), cert. denied, 523 F.3d 68 (2d Cir. 1995) (Court (11th Cir. 1995) (Court failed to require U.S. 1025 (1998) (Court may not properly refused transfer of a juvenile the parties to state objections at the resolve factual disputes by merely for adult proceedings). sentencing hearing). adopting the presentence report).

United States v. Doe, 53 F.3d 1081 *United States v. Petty, 80 F.3d 1384 United States v. Ross, 131 F.3d 970 (9th Cir. 1995) (Unadjudicated (9th Cir. 1996) (Record should have (11th Cir. 1997) (When defendant is juvenile could not be sentenced to shown that the defendant read the convicted of a conspiracy count with supervised release). presentence report and supplements). multiple objects, the court must find beyond a reasonable doubt that a Impounded Juvenile I.H., Jr., 120 United States v. Torres, 81 F.3d 900 (9th particular object was proven before F.3d 457 (3rd Cir. 1997) (Failure to Cir. 1996) (Disparity in coconspirators’ applying that guideline section). provide juvenile records barred sentences was not justified, due to transfer to adult status). inconsistent factual findings). United States v. Renteria, 138 F.3d 1328 (10th Cir. 1998) (Lying at *United States v. Male Juvenile, 148 *United States v. Burke, 80 F.3d 314 suppression hearing invoked F.3d 468 (5th Cir. 1998) (8th Cir. 1996) (Presentence report accessory after fact guideline, not (Certification for juvenile by AUSA could not be used as evidence when the perjury). was invalid). defendant disputed the facts therein). United States v. Washington, 146 United States v. Juvenile LWO, 160 *United States v. Ivy, 83 F.3d 1266 F.3d 219 (4th Cir. 1998) (Court F.3d 1179 (8th Cir. 1999) (Judge (10th Cir.), cert. denied, 519 U.S. 901 should not have relied upon may not consider unadjudicated (1996) (Government’s failure to object statements made pursuant to plea incidents at juvenile transfer hearing to a presentence report waived its agreement). in assessing nature of charges or complaint). prior record). *United States v. Davenport, 151 *United States v. Graham, 83 F.3d 1466 F.3d 1325 (11th Cir. 1998) *United States v. Juvenile (RRA-A), (D.C.Cir.), cert. denied, 519 U.S. 1132 (Defendant did not waive right to 229 F.3d 737 (9th Cir. 2000) (Agents (1997) (Adoption of the presentence review presentence report by failed to notify juvenile’s parents or report is not the same as express absconding). Mexican consulate). findings). *United States v. Glover, 154 F.3d *United States v. Juvenile, 347 F.3d *United States v. Versaglio, 85 F.3d 943 1291 (11th Cir. 1998) (Time credited 778 (9th Cir. 2003) (Juvenile (2d Cir.), modified, 96 F.3d 637 (1996) toward a sentence did not lengthen sentence was arbitrary and ignored (Criminal contempt offense cannot be total sentence). rehabilitative purpose of Delinquency punished by both fine and Act). incarceration). United States v. Casey, 158 F.3d 993 (8th Cir. 1999) (Court must use United States v. Female Juvenile, United States v. Moskovits, 86 F.3d guideline of charged offense). A.F.S., 377 F.3d 27 (1st Cir. 2004) 1303 (3d Cir.), cert. denied, 519 U.S. 41 Errores Juris 2005

United States v. Partlow, 159 F.3d of mental condition). *United States v. Cross, 289 F.3d 476 1218 (9th Cir. 1999) (Specific (7th Cir. 2002) (Judge, who wanted offense characteristics must be United States v. Sadler, 234 F.3d 368 to impose longest possible sentence, applied in the order listed). (8th Cir. 2000) (Once district court lost abused discretion, by inflating jurisdiction over case it could not raise calculations). *United States v. Weaver, 161 F.3d sentence). 528 (8th Cir. 1999) (Typo on PSR *United States v. Rebmann, 321 F.3d recommending wrong base level was Shafer v. South Carolina, 532 U.S. 36 540 (6th Cir. 2003) (Stipulated facts plain error). (2001) (Whenever future dangerousness supported sentence for offense of is at issue in a capital case, the jury must conviction, not enhancement for *United States v. Allard, 164 F.3d be informed about life sentence without relevant conduct). 1146 (8th Cir. 1999) (Offense possibility of parole). characteristic for one offense could United States v. Irvin, 369 F.3d 284 not be used for another). *United States v. Fields, 242 F.3d 393 (3d Cir. 2004) (Court double-counted (D.C. Cir. 2001) (Kidnapping could not same conduct for offense level and *United States v. Robinson, 164 F.3d be enhanced by murder, when murder criminal history). 1068 (7th Cir.), cert. denied, 528 was not pled). U.S. 848 (1999) (Hearsay statements United States v. Gunning, 401 F.3d used at sentencing were unreliable). United States v. Corporan-Cuevas, 244 1145 (9th Cir. 2005) (Denial of F.3d 199 (1st Cir. 2001) (Could not allocution). *United States v. Mueller, 168 F.3d sentence beyond statutory maximum 186 (5th Cir. 1999) (Failure to even when concurrent to legal sentence). disclose addendum to presentence Grouping report). United States v. Velasquez, 246 F.3d 204 (2d Cir. 2001) (Sentence exceeded *United States v. DiDomenico, 78 *United States v. Jones, 168 F.3d statutory maximum without proof of F.3d 294 (7th Cir.), cert. denied, 519 1217 (10th Cir. 1999) (If the court death or serious bodily injury). U.S. 1006 (1996) (Unadjudicated allows an oral objection at sentencing crimes could not be used to determine then a finding on that objection must United States v. Stapleton, 268 F.3d 597 a combined offense level). be made). (8th Cir. 2001) (Court cannot adopt PSR when facts are disputed). *United States v. Wilson, 98 F.3d *United States v. Navarro, 169 F.3d 281 (7th Cir. 1996) (Money 228 (5th Cir. 1999) (Cannot have *United States v. Martinez, 274 F.3d laundering and mail fraud should sentencing via video conference over 897 (5th Cir. 2001) (Federal sentence have been grouped together). defendant’s objection). under Assimilative Crimes Act was three times state sentence for same *United States v. Haltom, 113 F.3d United States v. Mitchell, 187 F.3d conduct). 43 (5th Cir. 1997) (Mail fraud and 331 (3rd Cir. 1999) (Court may not tax fraud counts should have been draw adverse inference from silence United States v. Taylor, 277 F.3d 721 grouped). at sentencing). (5th Cir. 2001) (Court must be assured information in report was not from *United States v. Emerson, 128 F.3d *United States v. Swiney, 203 F.3d defendant’s immunized statements). 557 (7th Cir. 1997) (Money 397 (6th Cir.), cert. denied, 530 U.S. laundering and mail fraud should 1238 (2000) (Application of United States v. Burgos, 276 F.3d 1284 have been grouped). mandatory minimum is controlled by (11th Cir. 2001) (Court could not guidelines definition of relevant penalize defendant for failure to *United States v. Kennedy, 133 F.3d conduct, not Pinkerton doctrine). cooperate in unrelated investigation). 53 (D.C. Cir.), cert. denied, 525 U.S. 911 (1998) (Court cannot refuse to *United States v. Kent, 209 F.3d United States v. Whitlow, 287 F.3d 638 group counts in order to give 1073 (8th Cir. 2000) (Sentence with (7th Cir. 2002) (Guidelines in effect on defendant a higher sentence). mental health counseling was date sentence announced are proper, not improper when there was no history date hearing began). *United States v. Marmolejos, 140 42 Errores Juris 2005

F.3d 488 (3rd Cir. 1998) (Clarifying *United States v. Williams, 340 F.3d *United States v. Quintero, 157 F.3d amendment to grouping section 1231 (11th Cir. 2003) (Robbery and 1038 (6th Cir. 1999) (Federal justified post-sentence relief). attempt with same victims should have sentence could not be imposed been grouped). consecutively to not yet imposed state *United States v. Thomas, 155 F.3d sentence). 833 (7th Cir.), cert. denied, 525 U.S. United States v. Leung, 360 F.3d 62 (2d 1048 (1998) (Court failed to group Cir. 2004) (Obstruction and passport *United States v. Dorsey, 166 F.3d counts when threats were made to fraud counts should have been grouped). 558 (3rd Cir. 1999) (Court had same victim). authority to reduce a sentence in order to make it effectively *United States v. Martinez-Martinez, Consecutive/ concurrent to a previously imposed 156 F.3d 936 (9th Cir. 1999) state sentence). (Reduction for non-drug conspiracy Concurrent was mandated when object crime was United States v. Chea, 231 F.3d 531 not substantially complete). United States v. Greer, 91 F.3d 996 (7th (9th Cir. 2000) (Court was required Cir. 1996) (Sentences at two to consider undischarged prior when United States v. Levario-Quiroz, 161 proceedings on the same day were fashioning sentence). F.3d 903 (5th Cir. 1999) (Offenses presumed concurrent). outside United States were not relevant conduct). *United States v. Fuentes, 107 F.3d Retroactivity 1515 (11th Cir. 1997) ( Federal sentence *United States v. Bartley, 230 F.3d which calculated a state sentence into *United States v. Vazquez, 53 F.3d 667 (4th Cir. 2000) (Drug and money the base offense level must be concurrent 1216 (11th Cir. 1995) (Case laundering conspiracies should have to the state sentence). remanded to determine retroactive been grouped). effect of favorable guideline, that *United States v. Corona, 108 F.3d 565 became effective after sentencing). United States v. Nedd, 262 F.3d 85 (5th Cir. 1997) (Duplicitous sentences (1st Cir. 2001) (Grouping determined were not purely concurrent where each *United States v. Felix, 87 F.3d 1057 by sets of victims, not individuals). received a separate special assessment). (9th Cir. 1996) (Amendment to the guidelines, which required a sentence United States v. Smith, 267 F.3d *United States v. Kikuyama, 109 F.3d based on a lower, negotiated quantity 1154 (D.C. Cir. 2001) (Predicate 536 (9th Cir. 1997) (Court cannot rely of drugs, was retroactive). offense of conspiracy must be found on need for mental health treatment in beyond a reasonable doubt). fashioning a consecutive sentence). United States v. Etherton, 101 F.3d 80 (9th Cir. 1996) (Retroactive *United States v. Zillgitt, 286 F.3d *United States v. Nash, 115 F.3d 1431 amendment could be used to reduce 128 (2d Cir. 2002) (Where (9th Cir.), cert. denied, 522 U.S. 1117 supervised release). conspiracy involved multiple (1998) (Multiplicious counts must be controlled substances defendant may sentenced concurrently and may not *United States v. Ortland, 109 F.3d only be sentenced regarding drug receive separate special assessments). 539 (9th Cir.), cert. denied, 522 U.S. with lowest statutory maximum). 851 (1997) (Since mail fraud is not a *United States v. Mendez, 117 F.3d 480 continuing offense, an act committed United States v. Cordo, 324 F.3d 223 (11th Cir. 1997) (Simultaneous acts of after the date of an increase to (3rd Cir. 2003) (Mail fraud and possessing stolen mail and assaulting a guidelines did not require all counts money laundering in common mail carrier with intent to steal mail, to receive increased guidelines). scheme should be grouped). could not receive cumulative punishments). *United States v. Zagari, 111 F.3d *United States v. Sedoma, 332 F.3d 307 (2d Cir.), cert. denied, 522 U.S. 20 (1st Cir. 2003) (Conspiracy to *McCarthy v. Doe, 146 F.3d 118 (2d 983 (1997) ( Use of guidelines defraud and drug conspiracy included Cir. 1998) (BOP could designate state effective after conduct violated Ex identical conduct and should have institution in order to implement Post Facto Clause). been grouped). presumptively concurrent sentence). 43 Errores Juris 2005

*United States v. Armstead, 114 F.3d (11th Cir. 1995) (Weight of wet (9th Cir. 2002) (Multiplying days by 504 (5th Cir.), cert. denied, 522 U.S. marijuana was improperly counted). average drugs sold overestimated 922 (1997) (Ex post facto application total drugs sold). of a guideline provision). United States v. Caldwell, 88 F.3d 522 (8th Cir.), cert. denied, 519 U.S. 1048 United States v. De La Torre, 327 *United States v. Aguilar-Ayala, 120 (1996) (Extrapolation of drug quantities F.3d 605 (7th Cir. 2003) (Sentence F.3d 176 (9th Cir. 1997) (Defendant was error). on drug conspiracy exceeded statutory was entitled to sentence reduction to maximum punishment charged). mandatory minimum because of *United States v. Antonietti, 86 F.3d retroactive guideline amendment, 206 (11th Cir. 1996) (Counting United States v. Booker, 334 F.3d regardless of whether safety valve seedlings as marijuana plants to 406 (5th Cir. 2003) (Drugs separated applied). calculate the base offense level was plain by place and time were not relevant error). conduct). United States v. Bowen, 127 F.3d 9 (1st Cir. 1997) (Amendment defining United States v. Agis-Meza, 99 F.3d hashish oil was applied ex post 1052 (11th Cir. 1996) (Court had an Sentencing - facto). insufficient basis to calculate a quantity of marijuana based upon cash and Meth. *United States v. Mussari, 152 F.3d money wrappers seized). 1156 (9th Cir. 1998) (Ex post facto *United States v. Ramsdale, 61 F.3d application of criminal penalties to *United States v. Carter, 110 F.3d 759 825 (11th Cir. 1995) (Improperly failure to pay child support). (11th Cir. 1997) (Court abused its sentenced for D-methamphetamine discretion in denying a motion for a rather than "L"). *United States v. Comstock, 154 reduction of a sentence over weight of F.3d 845 (8th Cir. 1998) (Using wet marijuana). United States v. Hamilton, 81 F.3d guideline effective after commission 652 (6th Cir. 1996) (To be culpable of offense violated ex post facto *United States v. Mankiewicz, 122 F.3d for manufacturing a quantity of where amendment increased 399 (7th Cir. 1997) (Marijuana that was drugs, the defendant must have been punishment). rejected by defendants should not have personally able to make that been counted). quantity). United States v. Schulte, 264 F.3d 656 (6th Cir. 2001) (Act was United States v. Perulena, 146 F.3d 1332 United States v. McMullen, 86 F.3d committed prior to effective date of (11th Cir. 1998) (Defendant was not 135 (8th Cir. 1996) (Judge could not statute). responsible for marijuana imported determine the type of before he joined conspiracy). methamphetamine based upon the United Staes v. Deleon, 330 F.3d judge’s experience, the price, or 1033 (8th Cir. 2003) (Guideline *United States v. Wyss, 147 F.3d 631 where the drugs came from). enhancements were not in effect at (7th Cir. 1998) (Drugs for personal use the time of the offense and did not could not be counted toward distribution *United States v. Gutierrez- apply). quantity). Hernandez, 94 F.3d 582 (9th Cir. 1996) (There was no presumption *United States v. Butler, 238 F.3d 1001 that three drug manufacturers were Sentencing - (8th Cir. 2001) (Failure to allege equally culpable). marijuana quantity required Marijuana resentencing to below enhanced United States v. Cole, 125 F.3d 654 statutory maximum). (8th Cir. 1997) (Defendant’s *United States v. Foree, 43 F.3d testimony about his ability to 1572 (11th Cir. 1995) (Seedlings and United States v. Garcia, 242 F.3d 593 manufacture was relevant). cuttings did not count as marijuana (5th Cir. 2001) (Drug quantity was not plants). proven). United States v. O’Bryant, 136 F.3d 980 (5th Cir. 1998) (Government has *United States v. Smith, 51 F.3d 980 United States v. Culps, 300 F.3d 1069 burden of proving more serious form 44 Errores Juris 2005 of methamphetamine). *United States v. Shonubi, 103 F.3d attributable during the time of the 1085 (2d Cir. 1997) (Multiplying conspiracy). *United States v. Whitecotton, 142 quantity of seized drugs by number of F.3d 1194 (9th Cir. 1998) (Later previous trips was an inadequate *United States v. Hernandez- drug sales were not foreseeable to measure). Santiago, 92 F.3d 97 (2d Cir. 1996) defendant). (Court failed to make a finding as to *United States v. Rodriguez, 112 F.3d the scope of the defendant’s United States v. Asch, 207 F.3d 1238 374 (8th Cir. 1997) (Insufficient agreement). (10th Cir. 2000) (Drugs for personal evidence of drug quantities). use could not be used to calculate *United States v. Chalarca, 95 F.3d range for distribution). *United States v. Gore, 154 F.3d 34 (2d 239 (2d Cir. 1996) (When negotiated Cir. 1998) (Possession and distribution drug amount was not foreseeable, the United States v. Kroeger, 229 F.3d of the same drugs may only be punished court should use the lowest possible 700 (8th Cir. 2000) (Environmental once). quantity). harm enhancement did not apply to meth case). United States v. Marrero-Ortiz, 160 F.3d In Re Sealed Case, 108 F.3d 372 768 (1st Cir. 1999) (Insufficient (D.C. Cir. 1997) (Court failed to *United States v. Eschman, 227 F.3d evidence of drug quantity). make findings attributing all drugs to 886 (7th Cir. 2000) (Meth quantities the defendant). should have been based upon *United States v. Guevara, 277 F.3d 111 defendant’s own ability to produce). (2d Cir), amended 298 F.3d 124 (2002) *United States v. Milledge, 109 F.3d (When quantity of heroin was not pled 312 (6th Cir. 1997) (Evidence did not *United States v. Munoz, 233 F.3d or proven to jury, defendant is subject to justify drug quantity finding). 410 (6th Cir. 2000) (Court could not range for heroin proven, not higher count meth that defendant was statutory maximum). *United States v. Jackson, 115 F.3d incapable of delivering). 843 (11th Cir. 1997) (Package containing 1% cocaine and 99% *United States v. Fraser, 243 F.3d sugar was not a mixture under the 473 (8th Cir. 2001) (Drug quantities guidelines). for personal use must be excluded Sentencing - from distribution amounts). *United States v. Granados, 117 F.3d Cocaine 1089 (8th Cir. 1997) (The court United States v. Smotherman, 285 failed to make specific drug quantity F.3d 1115 (8th Cir. 2002) (Court United States v. Reese, 67 F.3d 902 findings). inaccurately converted pounds to (11th Cir.), cert. denied, 517 U.S. 1228 grams). (1996) (Drugs were not reasonably *United States v. Patel, 131 F.3d foreseeable to the defendant, nor within 1195 (7th Cir. 1997) (Evidence was United States v. Houston, 338 F.3d scope of agreed joint criminal activity). insufficient that seized money could 876 (8th Cir. 2003) (Record did not support cocaine quantities). justify quantity for guideline of *United States v. Howard, 80 F.3d 1194 methamphetamine). (7th Cir. 1996) (District court could not *United States v. Bacallao, 149 F.3d rely upon the probation officer’s 717 (7th Cir. 1998) (No showing estimates of drug quantities without prior cocaine transactions were Sentencing - corroborating evidence). relevant conduct).

Heroin United States v. Acosta, 85 F.3d 275 *United States v. Flowal, 163 F.3d (7th Cir. 1996) (Drug quantity finding 956 (6th Cir.), cert. denied, 526 U.S. *United States v. Jinadu, 98 F.3d 239 was insufficient). 1093 (1999) (Drug quantity was (6th Cir.), cert. denied, 520 U.S. arbitrarily chosen). 1179 (1997) (Court could not rely on United States v. Nesbitt, 90 F.3d 164 drug quantities alleged in indictment (6th Cir. 1996) (Court failed to resolve *United States v. Noble, 246 F.3d to determine a mandatory minimum). whether amounts of drugs were 946 (7th Cir. 2001) (Failure to charge 45 Errores Juris 2005 drug quantity was plain error). *United States v. Graham, 83 F.3d 1466 United States v. Dinnell, 269 F.3d (D.C. Cir.), cert. denied, 519 U.S. 1132 418 (4th Cir. 2001) (Sentence over *United States v. Gill, 348 F.3d 147 (1997) (Court failed to make statutory maximum). (6th Cir. 2003) (Simple possession is individualized findings of drug not relevant conduct to distribution). quantities). *United States v. Thomas, 274 F.3d 655 (2d Cir. 2001) (Failure to plead United States v. Frazier, 89 F.3d 1501 and prove amount of crack limits Sentencing - (11th Cir.), cert. denied, 520 U.S. 1222 punishment to lowest statutory (1997) (Sentencing findings did not maximum). Crack support drug quantities attributed to the defendant). *United States v. Henry, 282 F.3d United States v. Lawrence, 47 F.3d 242 (3d Cir. 2002) (Drug quantity 1559 (11th Cir. 1995) (Could not *United States v. Tucker, 90 F.3d 1135 raising statutory maximum must be simply multiply sales outside of crack (6th Cir. 1996) (Court did not make pleaded and proven to jury). house times days defendant was in individualized findings as to each conspiracy). defendant in a drug conspiracy). *United States v. Davis, 290 F.3d 1239 (10th Cir. 2002) (Court could *United States v. Hansley, 54 F.3d United States v. Brown, 156 F.3d 813 not look outside of record to 709 (11th Cir.), cert. denied, 516 (8th Cir. 1999) (Court should have only determine amount of crack U.S. 998 (1995) (Individual findings based sentence on drug quantity proven produced). were needed to hold defendant by government). responsible for all drugs in United States v. Sandridge, 385 F.3d conspiracy). United States v. Gomez, 164 F.3d 1354 1032 (6th Cir. 2004) (Seized cash (11th Cir. 1999) (Unrelated drug sales could not determine drug amount). *United States v. Lee, 68 F.3d 1267 were not relevant conduct to (11th Cir. 1995) (There were conspiracy). inadequate findings to support drug Sentencing - quantities. Crack abusers’ credibility United States v. Moore, 212 F.3d 441 was questioned). (8th Cir. 2000) (Defendant’s Firearms responsibility for drugs limited to jointly *United States v. Chisholm, 73 F.3d undertaken activity). United States v. Bernardine, 73 F.3d 304 (11th Cir. 1996) (No factual 1078 (11th Cir. 1996) (Government basis that the defendant knew powder *United States v. Jackson, 240 F.3d failed to prove the defendant was a would be converted to crack). 1245 (10th Cir.), cert. denied, 534 U.S. marijuana user, and thus he was not a 847 (2001) (Failure to plead drug prohibited person). *United States v. James, 78 F.3d 851 quantities required reversal). (3rd Cir.), cert. denied, 519 U.S. 844 United States v. Mendoza-Alvarez, (1996) (No proof that the cocaine *United States v. Williams, 247 F.3d 79 F.3d 96 (8th Cir. 1996) (Simply base was crack for enhanced 353 (2d Cir. 2001) (Drugs meant for carrying a firearm in one’s car was penalties to apply). personal use were not to be counted not otherwise unlawful use). toward distribution conspiracy). *United States v. Hill, 79 F.3d 1477 *United States v. Barton, 100 F.3d 43 (6th Cir.), cert. denied, 519 U.S. 858 *United States v. Palmer, 248 F.3d 569 (6th Cir. 1996) (Enhancement (1996) (Different transactions almost (7th Cir. 2001) (Unreliable hearsay did relating to prior convictions covered two years apart, with the sole not support drug quantity). only those before the instant offense). similarity being the type of drug, were not relevant conduct). *United States v. Baptiste, 264 F.3d 578 United States v. Moit, 100 F.3d 605 (5th Cir.), modified 309 F.3d274 (2002) (8th Cir. 1996) (Possession of United States v. Byrne, 83 F.3d 984 (Failure to allege drug quantity is plain shotguns and hunting rifles qualified (8th Cir. 1996) (Drugs seized after error when defendant sentenced above for “sporting or collection” the defendant was in custody could lowest statutory maximum). reduction). not be counted toward sentence). 46 Errores Juris 2005

*United States v. Willis, 106 F.3d defendant’s brandishing firearm did not United States v. Orlando, 281 F.3d 966 (11th Cir. 1997) (Defendant who support enhancement for defendant). 586 (6th Cir. 2002) (Court failed to previously pleaded nolo contendere make findings about amount in a Florida state court was not *United States v. O’Malley, 265 F.3d laundered). convicted for purposes of being a 353 (6th Cir. 2001) (During conspiracy felon in possession of a firearm). to steal firearms, it was not foreseeable United States v. Rivera-Rodriguez, that one of the firearms would be 318 F.3d 268 (1st Cir. 2003) *United States v. Cooper, 111 F.3d illegal). (Insufficient evidence to justify six- 845 (11th Cir. 1997) (Firearm that level increase for amount laundered). was not possessed at the site of drug *United States v. Fenton, 309 F.3d 825 offense did not justify enhancement). (3d Cir. 2002) (Identical state crime is United States v. Turner, 400 F.3d 491 not “another felony offense”). (7th Cir. 2005) (Facts enhancing United States v. Zelaya, 114 F.3d 869 sentence were not found by jury). (9th Cir. 1997) (Express threat of United States v. Martinez, 339 F.3d 759 death was not foreseeable to the (8th Cir. 2003) (For firearm accomplice-defendant). enhancement for using weapon during Sentencing - another felony requires other crime to *United States v. Knobloch, 131 F.3d actually be a felony). Pornography 366 (3rd Cir. 1997) (Court could not impose an increase for a firearm United States v. Frederick, 406 F.3d 754 *United States v. Cole, 61 F.3d 24 when there was a consecutive gun (6th Cir. 2005) (Increases were based on (11th Cir.), cert. denied, 516 U.S. count). facts not found by jury). 1163 (1996) (Insufficient evidence of child pornography depicting minors *United States v. Ahmad, 202 F.3d under twelve). 588 (2d Cir. 2000) (Firearms that Sentencing - were not prohibited cannot be *United States v. Ketcham, 80 F.3d counted toward specific offense Money 789 (3rd Cir. 1996) (Enhancement characteristic). for exploitation of a minor was Laundering reversed in a child pornography case *United States v. Hill, 210 F.3d 881 for insufficient evidence). (8th Cir. 2000) (Defendant who had United States v. Jenkins, 58 F.3d 611 already pled guilty was not “under (11th Cir. 1995) ("Rule of lenity" *United States v. Surratt, 87 F.3d 814 indictment” when he received precluded counting money laundering (6th Cir. 1996) (Defendant’s sexual firearm). transactions under $10,000). abuse, unrelated to receiving child pornography did not prove a pattern United States v. Pena-Lora, 225 F.3d *United States v. Allen, 76 F.3d 1348 of activity to increase the offense 17 (1st Cir. 2000) (Identity of (5th Cir.), cert. denied, 519 U.S. 841 level). hostage taken was not proven to (1996) (Money laundering guidelines award enhancement). should have been based on the amount *United States v. Kemmish, 120 F.3d of money laundered, not the loss in a 937 (9th Cir.), cert. denied, 522 U.S. *United States v. Moerman, 233 F.3d related fraud). 1132 (1998) (The defendant did not 379 (6th Cir. 2000) (Defendant engage in a pattern of exploitation). merely brandished firearm, not United States v. Gabel, 85 F.3d 1217 otherwise used). (7th Cir. 1996) (Robberies and United States v. Fowler, 216 F.3d 459 burglaries were not relevant conduct in a (5th Cir. 2000) (Child porn was not *United States v. Seesing, 234 F.3d money laundering case). “distributed” for guideline 456 (9th Cir. 2000) (Enhancement enhancement). for obliterated serial number only *United States v. Morales, 108 F.3d applied to firearm counts). 1213 (10th Cir. 1997) (Drug mandatory *United States v. Galo, 239 F.3d 572 minimum did not apply to money (3rd Cir. 2001) (Prior state sexual *United States v. Diaz, 248 F.3d laundering offense). abuse conviction was not proper 1065 (11th Cir. 2001) (Co- enhancement). 47 Errores Juris 2005

United States v. Sromalski, 318 F.3d was not subtracted from loss in a fraud not the face value of the stamps). 748 (7th Cir. 2003) (Evidence of case). mere possession did not support United States v. Sublett, 124 F.3d 693 cross-reference to exploitation of a United States v. Cowart, 90 F.3d 154 (5th Cir. 1997) (Loss during contract minor). (6th Cir. 1996) (Common modus fraud did not include legitimate operandi alone, did not make robberies services actually provided). United States v. Chriswell, 401 F.3d part of a common scheme). 459 (6th Cir. 2005) (Increase for *United States v. McIntosh, 124 F.3d coercion of minor by computer did United States v. Krenning, 93 F.3d 1257 1330 (10th Cir. 1997) (Failure to not include undercover officer). (4th Cir. 1996) (Value of rented assets disclose his interest in a residence bore no reasonable relationship to the that the defendant did not own was Sentencing - victim’s loss). not bankruptcy fraud). *United States v. Comer, 93 F.3d 1271 United States v. Barnes, 125 F.3d Fraud / Theft (6th Cir.), cert. denied, 519 U.S. 1033 1287 (9th Cir. 1997) (Services that (1996) (Acquitted theft was not were satisfactorily performed should *United States v. Maurello, 76 F.3d sufficiently proven to include in loss have been subtracted from loss). 1304 (3rd Cir. 1996) (Loss to a fraud calculations). victim was mitigated by the value *United States v. Monus 128 F.3d received by the defendant’s actions). *United States v. Coffman, 94 F.3d 330 376 (6th Cir.), cert. denied, 525 U.S. (7th Cir.), cert. denied, 520 U.S. 1165 823 (1998) (Court did not adequately *United States v. Millar, 79 F.3d 338 (1997) (Previous fraud using the same explain loss findings). (2d Cir. 1996) (Adjustment for worthless stock was not relevant affecting a financial institution was conduct). United States v. Cain, 128 F.3d 1249 limited to money received by the (8th Cir. 1997) (Sales made before defendant). United States v. Olbres, 99 F.3d 28 (1st defendant was hired were not relevant Cir. 1996) (Adoption of PSI was not a conduct toward fraud). *United States v. Eyoum, 84 F.3d finding of tax loss). 1004 (7th Cir.), cert. denied, 519 *United States v. Word, 129 F.3d U.S. 941 (1996) (Fair market value, *United States v. Peterson, 101 F.3d 375 1209 (11th Cir. 1997) (Fraud, before rather than the smuggler’s price, (5th Cir.), cert. denied, 520 U.S. 1161 defendant joined conspiracy, was not should have been used to calculate (Violation of fiduciary duty alone was relevant conduct). the value of illegally smuggled not relevant conduct). wildlife). *United States v. Melton, 131 F.3d *United States v. Kohli, 110 F.3d 1475 1400 (10th Cir. 1997) (Unforeseeable United States v. King, 87 F.3d 1255 (9th Cir. 1997) (There was insufficient acts of fraud could not be attributed to (11th Cir. 1996) (Without proof the evidence of the quantity of fraud defendant). defendant committed the burglary, attributed). other stolen items, not found in his *United States v. Desantis, 134 F.3d possession, could not be calculated *United States v. Sepulveda, 115 F.3d 760 (6th Cir. 1998) (Neither toward loss). 882 (11th Cir. 1997) (Evidence did not defendant’s business failure, nor state support the alleged volume of administrative findings, were relevant United States v. Sung, 87 F.3d 194 unauthorized calls). to fraud case). (7th Cir. 1996) (Findings did not establish reasonable certainty that the *United States v. Rutgard, 116 F.3d *United States v. Cihak, 137 F.3d defendant intended to sell the base 1270 (9th Cir. 1997) (That defendant’s 252 (5th Cir.), cert. denied, 525 U.S. level quantity of counterfeit goods). business was “permeated with fraud” 847 (1998) (Fraud of co-conspirators was too indefinite a finding). must be foreseeable to defendant to be *United States v. Allen, 88 F.3d 765 relevant conduct). (9th Cir.), cert. denied, 520 U.S. United States v. Arnous, 122 F.3d 321 1202 (1997) (Collateral recovered to (6th Cir. 1997) (Food stamp fraud United States v. Tatum, 138 F.3d secure a loan, and the interest paid, should have been valued by lost profits, 1344 (11th Cir. 1998) (Application 48 Errores Juris 2005 note governing fraudulent contract have been measured by wholesale cost, not mere clerical error). procurement should have been not retail price). applied rather than theft guideline). *United States v. Shadduck, 112 F.3d United States v. Evans, 344 F.3d 1131 523 (1st Cir. 1997) (No proof that a *United States v. Phath, 144 F.3d (11th Cir. 2003) (Defendant at a non- defendant violated a judicial order 146 (1st Cir. 1998) (Depositing profit organization was not a public during a course of fraud). counterfeit checks and withdrawing official). money did not require more than *United States v. Calozza, 125 F.3d minimal planning). United States v. Johnson, 347 F.3d 635 687 (9th Cir. 1997) (Identical (7th Cir. 2003) (Relevant conduct in enhancements for separately grouped *United States v. Sapoznik, 161 F.3d fraud must have some connection to counts was double-counting). 1117 (7th Cir. 1999) (Calculation of charged crime). benefits from bribes did not support *United States v. Barakat, 130 F.3d findings). United States v. Yagar, 404 F.3d 967 1448 (11th Cir. 1997) (Enhancement (6th Cir. 2005) (Theft increases were for sophisticated means could not be *United States v. Ponec, 163 F.3d based on facts not found by jury). based on acquitted conduct). 486 (8th Cir. 1999) (No showing that money withdrawn from defendant’s United States v. Crispo, 306 F.3d 71 account came from employer). Enhancements- (2d Cir. 2002) (Bankruptcy trustee was not a government officer or *United States v. Austin, 239 F.3d 1 General employee). (1st Cir. 2001) (Value of get-away- car was not part of loss from bank *United States v. Miller, 77 F.3d 71 (4th Sheppard v. United States, 125 S.Ct. robbery). Cir. 1996) (Enhancement for 1254 (2005) (Courts may not rely manufacturing counterfeit notes did not upon underlying reports or United States v. Titchell, 261 F.3d apply to those so obviously counterfeit complaints to determine identity of 348 (3rd Cir. 2001) (Court must that they are unlikely to be accepted). prior convictions). make detailed analysis of potential loss and intended loss). United States v. Torres, 81 F.3d 900 (9th Cir. 1996) (Government must prove Enhancements- United States v. Liss, 265 F.3d 1220 sentencing enhancements by a (11th Cir. 2001) (Government must preponderance of evidence). Drug Crimes present evidence to support amount of loss when defendant objects to United States v. Kraig, 99 F.3d 1361 *United States v. Ruiz-Castro, 92 amount). (6th Cir. 1996) (Insufficient evidence F.3d 1519 (10th Cir. 1996) (Court that the defendant employed failed to inquire whether the *United States v. Gonzalez-Alvarez, sophisticated means). defendant had notice of the 277 F.3d 73 (1st Cir. 2002) (Illegal government’s intent to seek an product had no value for calculation). *United States v. Brazel, 102 F.3d 1120 enhanced sentence with a prior drug (11th Cir.), cert. denied, 522 U.S. 822 conviction). United States v. Schaefer, 291 F.3d (1997) (Sentence could not be enhanced 932 (7th Cir. 2002) (Relevant with convictions that were not final). *United States v. Ekinci, 101 F.3d conduct was limited to criminal 838 (2d Cir. 1996) (Unlawful activity). United States v. Eshkol, 108 F.3d 1025 dispensing of drugs by a doctor was (9th Cir.), cert. denied, 522 U.S. 841 not subject to an enhancement for United States v. Hunter, 323 F.3d (1997) (Only existing counterfeit bills proximity to a school). 1314 (11th Cir. 2003) (Court failed could be counted toward upward to make particularized findings for adjustment). United States v. Mikell, 102 F.3d 470 each defendant). (11th Cir.), cert. denied, 520 U.S. *United States v. DeMartino, 112 F.3d 1181 (1997) (Defendant who was United States v. Machado, 333 F.3d 75 (2d Cir. 1997) (Court was without subject to an enhanced sentence 1225 (11th Cir. 2003) (Loss should authority to increase a sentence that was under 21 U.S.C. §841, could 49 Errores Juris 2005 collaterally attack a prior conviction). as opposed to powder, for sentencing in the drug conspiracy). purposes). *United States v. Chandler, 125 F.3d *United States v. Selwyn, 398 F.3d 892 (5th Cir. 1997) (Enhancement *United States v. Chastain, 198 F.3d 1064 (8th Cir. 2005) (Enhanced drug for drug sale near school only applied 1338 (11th Cir. 1999) (Improper quantity was not submitted to jury). when it was charged by indictment). enhancement for use of private plane in drug case). *United States v. Collins, 401 F.3d *United States v. Hudson, 129 F.3d 212 (4th Cir. 2005) (Enhanced drug 994 (8th Cir. 1997) (Firearm *United States v. Takahashi, 205 F.3d quantity was not submitted to jury). enhancement was not proven). 1161 (9th Cir. 2000) (Enhancement for drug crime in protected area must be United States v. Moncivais, 401 F.3d *United States v. Sanchez, 138 F.3d pleaded and proven before a finding of 751 (6th Cir. 2005) (Enhanced drug 1410 (11th Cir.), cert. denied, 525 guilt). quantity was not submitted to jury). U.S. 892 (1998) (Court must hold a hearing if defendant challenges United States v. Smith, 210 F.3d 760 validity of a prior drug conviction (7th Cir. 2000) (Tossing drugs out Enhancements- used for statutory enhancement). window during chase was not reckless endangerment). Violence *United States v. Saavedra, 148 F.3d 1311 (11th Cir. 1998) (Defendant *United States v. Szakacs, 212 F.3d 344 United States v. Murray, 82 F.3d 361 could not receive increase for selling (7th Cir. 2000) (Possession of firearm (10th Cir. 1996) (In assault case, an drugs near school unless so charged). had no connection to drugs). enhancement for discharging a firearm did not apply to shots fired *United States v. Hass, 150 F.3d 443 Watterson v. United States, 219 F.3d after the assault). (5th Cir. 1998) (Non-final state 232 (3rd Cir. 2000) (No enhancement conviction could not be basis for for drugs in proximity to school unless *United States v. Alexander, 88 F.3d statutory enhancement of drug charged under that statute). 427 (6th Cir. 1996) (Note indicating sentence). the presence of a bomb, and a request United States v. Thomas, 246 F.3d 438 to cooperate to prevent harm, during United States v. Schmalzried, 152 (8th Cir. 2001) (Sentence exceeded a bank robbery, was not an express F.3d 354 (5th Cir. 1998) statutory maximum without proof of threat of death). (Government failed to connect drug quantities). firearm to drug offense). *United States v. Shenberg, 89 F.3d *United States v. Highsmith, 268 F.3d 1461 (11th Cir.), cert. denied, 519 *United States v. Rettelle, 165 F.3d 1141 (9th Cir. 2001) (No enhancement U.S. 1117 (1997) (More than 489 (6th Cir. 1999) (Mandatory when defendant had access to firearm, minimal planning increase did not minimum controlled by drugs but no knowledge that it was there). apply to plan to assault a fictitious associated with conviction only). informant). *United States v. Cooper, 274 F.3d 230 *United States v. Hands, 184 F.3d (5th Cir. 2001) (Firearm neither found United States v. Tavares, 93 F.3d 10 1322, corrected, 194 F.3d 1186 (11th near drugs nor used in connection to (1st Cir.), cert. denied, 519 U.S. 955 Cir. 1999) (Domestic abuse was drug activities). (1996) (Finding that an aggravated irrelevant to drug conspiracy). assault occurred was inconsistent *United States v. Stallings, 301 F.3d with a finding of no serious bodily United States v. Crawford, 185 F.3d 919 (8th Cir. 2002) (Prior unrevoked injury). 1024 (9th Cir. 1999) (Proximity to probation could not be used to enhance school must be charged in order for sentence). *United States v. Triplett, 104 F.3d enhancement to apply). 1074 (8th Cir.), cert. denied, 520 *United States v. Simpson, 334 F.3d 453 U.S. 1236 (1997) (Threat of death *United States v. Garrett, 189 F.3d (5th Cir. 2003) (Enhancement for risk of adjustment was double counting in 610 (7th Cir. 1999) (Guilty plea harm to minor required presence of case for using firearm during crime of colloquy was not admission to crack, minor during defendant’s participation violence). 50 Errores Juris 2005

*United States v. Reyes-Oseguera, threat could not be proven by criminal United States v. Atwater, 272 F.3d 106 F.3d 1481 (9th Cir. 1997) history). 511 (7th Cir. 2001) (Five-level (Flight on foot was insufficient for enhancement cannot be based on reckless endangerment *United States v. Smith, 156 F.3d 1046 assumption that all bank robbers use enhancement). (10th Cir. 1999) (Insufficient evidence firearms). of actual or threatened force or United States v. Dodson, 109 F.3d violence). United States v. Costello, 307 F.3d 486 (8th Cir. 1997) (Lacked proof of 553 (7th Cir. 2002) (Insufficient bodily injury for enhancement). *United States v. Richardson, 161 F.3d findings on statutory provisions 728 (D.C. Cir. 1999) (Burglary was not allowing for enhancement for United States v. Sawyer, 115 F.3d shown to be crime of violence). physical force associated with 857 (11th Cir. 1997) (Enhancement prostitution). for bodily injury was not supported *United States v. Anglin, 169 F.3d 154 by alleged psychological injury). (2d Cir. 1999) (Bank tellers were not United States v. Stokes, 347 F.3d 103 physically restrained). (4th Cir. 2003) (Adjustment for United States v. Drapeau, 121 F.3d threats is based on multiple threats, 344 (8th Cir. 1997) (Enhancement United States v. Zendeli, 180 F.3d 879 not multiple victims). for assaulting a government official (7th Cir. 1999) (Enhancement for injury applicable only when official is did not apply to co-defendant’s injury). United States v. Poor Bear, 359 F.3d victim of the offense). 1038 (8th Cir. 2004) (Absent a sexual United States v. Charles, 209 F.3d 1088 act, guideline for criminal sexual United States v. Sovie, 122 F.3d 122 (8th Cir. 2000) (Two convictions, abuse was inapplicable). (2d Cir. 1997) (Evidence to support sentenced simultaneously, should have enhancement for intending to carry only counted as one prior crime of United States v. Reevey, 364 F.3d out threat was insufficient). violence). 151 (4th Cir. 2004) (Adjustment for threat of death, along with 924 (c) United States v. Bourne, 130 F.3d United States v. Brock, 211 F.3d 88 (4th conviction, was double counting). 1444 (11th Cir. 1997) (Applying Cir. 2000) (Enhancement for multiple both brandishing weapon and threat threats was incompatible with base level United States v. Hill, 381 F.3d 560 of death enhancements was double for no threats). (6th Cir. 2004) (Discharge of weapon counting). by third party was not foreseeable). Castillo v. United States, 530 U.S. 120 *United States v. Hayes, 135 F.3d (2000) (In order to get aggravated United States v. Sutherland, 405 F.3d 435 (6th Cir. 1998) (Enhancements sentence for carrying a firearm during 263 (5th Cir. 2005) (No reckless for reckless endangerment, and crime of violence, use of a machinegun endangerment during flight from assault, during flight, were double must be proven as element of offense). bank robbery). counting). United States v. Franks, 230 F.3d 811 United States v. Jaimes-Jaimes, 406 United States v. Tolen, 143 F.3d (5th Cir. 2000) (Cannot receive F.3d 845 (7th Cir. 2005) 1121 (8th Cir. 1998) (Putting hand enhancement for “express threat of (Discharging a firearm was not a in pocket and warning to cooperate death” as well as conviction for use of a crime of violence). or “no one will get hurt” was not firearm during a crime of violence). express threat of death). United States v. Wright, 248 F.3d 765 Enhancements- *United States v. Kushmaul, 147 (8th Cir. 2001) (No evidence of serious F.3d 498 (6th Cir. 1998) (Holding bodily injury). Immigration baseball bat was not”otherwise used”). *United States v. Campbell, 259 F.3d *United States v. Fuentes-Barahona, 293 (4th Cir. 2001) (Enhanced statutory 111 F.3d 651 (9th Cir. 1997) *United States v. Thomas, 155 F.3d maximum for use of deadly or dangerous (Conviction occurring before effective 833 (7th Cir.), cert. denied, 525 U.S. weapon required pleading and proof date of guideline amendment could 1048 (1998) (Intent to carry out beyond reasonable doubt). not be considered as aggravated 51 Errores Juris 2005 felony). *United States v. Hernandez- *Knapik v. Ashcroft, 384 F.3d 84 Castellanos, 287 F.3d 876 (9th Cir. (3rd Cir. 2004) (Attempted reckless *United States v. Herrerra- 2002) (Arizona felony endangerment is endangerment was not aggravated Solorzano, 114 F.3d 48 (5th Cir. not an aggravated felony). felony). 1997) (Prior probated felony was not an aggravated felony in an illegal United States v. Lopez, 316 F.3d 967 Singh v. Ashcroft, 386 F.3d 1228 reentry case). (9th 2003) (Using both Chapter Two and (9th Cir. 2004) (Oregon harassment Three increases for recklessness during conviction was not aggravated United States v. Reyna-Espinosa, 117 flight was double counting). felony). F.3d 826 (5th Cir. 1997) (Prior conviction for being an alien in *United States v. Ballesteros-Ruiz, 319 Li v. Ashcroft, 389 F.3d 892 (9th Cir. unlawful possession of a firearm was F.3d 1101 (9th Cir. 2003) (Possession of 2004) (Theft must be over $10K to be not an aggravated felony). marijuana was not aggravated felony aggravated felony). where it was not punishable by more *United States v. Viramontes- than one year in prison). United States v. Wilson, 392 F.3d Alvarado, 149 F.3d 912 (9th Cir.), 1243 (11th Cir. 2004) (No reckless cert. denied, 525 U.S. 976 (1998) *United States v. Medina-Anicacio, 325 endangerment during flight). (Noncitizen’s priors were not F.3d 638 (5th Cir. 2003) (California aggravated felonies). weapon possession prior was not Argaw v. Ashcroft, 395 F.3d 521 aggravated felony). (Khat was not a controlled United States v. Avila-Ramirez, 170 substance). F.3d 277 (2d Cir. 1999) (Defendant’s Nevarez-Martinez v. I.N.S., 326 F.3d prior aggravated felony was not a 1053 (9th Cir. 2003) (Theft statute *Liao v. Rabbett, 398 F.3d 389 (6th listed offense at the time of his which did not require intent was not an Cir. 2005) (Possession of heroin was reentry). aggravated felony). not aggravated felony).

*United States v. Guzman-Bera, 216 *Chrzanoski v. Ashcroft, 327 F.3d 188 F.3d 1019 (11th Cir. 2000) (Theft (2d Cir. 2003) (Assault statute that does Career was not aggravated felony at time of not require a use of force is not an deportation and reentry). aggravated felony). Enhancements

*Steele v. Blackman, 236 F.3d 130 Garcia-Lopez v. Ashcroft, 334 F.3d 840 *United States v. Talbott, 78 F.3d (3rd Cir. 2001) (Alien’s (9th Cir. 2003) (Offense that could be 1183 (7th Cir. 1996) (Under the misdemeanor conviction for punishable for maximum that was less Armed Career Criminal Act distributing less than 30 grams of than a year was not aggravated felony). guidelines, “felon in possession” was marijuana was not aggravated not a crime of violence). felony). *United States v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. 2003) (DWI was not *United States v. Sparks, 87 F.3d 276 *United States v. Portillo-Mendoza, crime of violence in illegal reentry case). (9th Cir. 1996) (Attempted home 273 F.3d 1224 (9th Cir. 2001) (Prior invasion was not a violent felony California DUI was not aggravated *Wilson v. Ashcroft, 350 F.3d 377 (3d under the Armed Career Criminal felony). Cir. 2003) (Marijuana crime was not Act). necessarily an aggravated felony). *Valansi v. Ashcroft, 278 F.3d 203 *United States v. Murphy, 107 F.3d (3d Cir. 2002) (Embezzlement, United States v. Pallares-Galan, 359 1199 (6th Cir. 1997) (Two prior without fraud or deceit, was not F.3d 1088 (9th Cir. 2004) (California robberies were a single episode under aggravated felony). misdemeanor molestation statute was Armed Career Criminal Act). not aggravated felony). *United States v. Robles-Rodriguez, *United States v. Bennett, 108 F.3d 281 F.3d 900 (9th Cir. 2002) Singh v. Ashcroft, 383 F.3d 144 (3rd 1315 (10th Cir. 1997) (There was no (Conviction for which maximum is Cir. 2004) (Unlawful sexual contact was proof that a prior burglary involved a probation is not aggravated felony). not aggravated felony). dwelling or physical force under 52 Errores Juris 2005 career offender provisions). predicate unless it involves physical *United States v. Tighe, 266 F.3d force, or its threat or attempt). 1187 (9th Cir. 2001) (Prior juvenile *United States v. Hicks, 122 F.3d 12 adjudications that do not provide for (7th Cir. 1997) (Burglary of a *United States v. Sacko, 178 F.3d 1 (1st jury trial must be pled and proven building was not a crime of violence Cir. 1999) (Court could not look at facts beyond a reasonable doubt). for career offender enhancement). of prior conviction to determine whether it was a violent felony). United States v. Fulford, 267 F.3d *United States v. Rogers, 126 F.3d 1241 (11th Cir. 2001) (Court may not 655 (5th Cir. 1997) (Attempted drug *United States v. Casarez-Bravo, 181 consider charging information of crime did not support career offender F.3d 1074 (9th Cir. 1999) (Prior prior conviction). enhancement). conviction not counted under criminal history cannot be used as career offender *Francis v. Reno, 269 F.3d 162 (3d *United States v. Covington, 133 predicate). Cir. 2001) (Pennsylvania vehicular F.3d 639 (8th Cir. 1998) (Evidence homicide was not crime of violence). did not show imprisonment within *United States v. Martin, 215 F.3d 470 last 15 years on predicate offense (4th Cir. 2000) (Bank larceny is not a *United States v. Allen, 282 F.3d 339 used for career offender crime of violence). (5th Cir. 2002) (Court could not find enhancement). prior was a serious drug offense *United States v. Peterson, 233 F.3d 101 solely based on police report). United States v. Gottlieb, 140 F.3d (1st Cir. 2000) (Defendant’s prior for 865 (10th Cir. 1998) (Defendant breaking and entering did not meet *United States v. Mason, 284 F.3d established that no firearm or definition of violent felony under 555 (4th Cir. 2002) (Juvenile robbery dangerous weapon was used in prior ACCA). conviction was not career offender conviction defeating Three Strikes predicate). enhancement). *United States v. Concha, 233 F.3d 1249 (10th Cir. 2000) (Foreign United States v. Williams, 326 F.3d *United States v. Dahler, 143 F.3d convictions are not predicates under 535 (4th Cir. 2003) (Prior drug 1084 (7th Cir. 1998) (Defendant ACCA). convictions were not serious drug whose rights were restored was not offenses). armed career criminal). *United States v. Matthews, 240 F.3d 806 (9th Cir.), cert. denied, 535 U.S. Gill v. Ayers, 342 F.3d 911 (9th Cir. *United States v. McElyea, 158 F.3d 1120 (2002) (Court lacked documentary 2003) (Court did not allow defendant 1016 (9th Cir. 1999) (Crimes of a evidence to find prior conviction proven to testify at Three Strikes hearing). single transaction may not be under ACCA). counted separately under Armed United States v. Turner, 349 F.3d 833 Career Criminal Act). United States v. Brandon, 247 F.3d 186 (5th Cir. 2003) (Burglary of a (4th Cir. 2001) (Absent an element of building is not crime of violence). *United States v. Thomas, 159 F.3d intent to distribute or manufacture, prior 296 (7th Cir.), cert. denied, 527 U.S. was not a serious drug felony). United States v. Pressley, 359 F.3d 1023 (1999) (Statutory rape without 347 (4th Cir. 2004) (Previous violence was not predicate crime *Dalton v. Ashcroft, 257 F.3d 200 (2d conviction under ACCA must occur under Armed Career Criminal Act). Cir. 2001) (Not all felony DUIs in New before instant offense). York are crimes of violence). United States v. Richardson, 166 United States v. Dominguez-Ochoa, F.3d 1360 (11th Cir. 1999) (Prior *United States v. Trinidad-Aquino, 259 386 F.3d 639 (5th Cir. 2004) conviction under Armed Career F.3d 1140 (9th Cir. 2001) (California (Negligent homicide was not crime of Criminal Act must occur before felon DUI was not crime of violence). violence). in possession violation). United States v. Sparks, 265 F.3d 825 United States v. Montgomery, 402 *United States v. Wilson, 168 F.3d (9th 2001) (Burglary of a storage locker F.3d 482 (5th Cir. 2005) (Retaliation 916 (6th Cir. 1999) (Burglary of a was not violent felony). offense was not a violent felony). building is not a career offender 53 Errores Juris 2005

not total offense level, when calculating not justify abuse of trust Cross accessory after the fact). enhancement).

References *United States v. Taylor, 272 F.3d 980 United States v. Guidry, 199 F.3d (7th Cir. 2001) (Shooting must be 1150 (10th Cir. 1999) (Defendant United States v. Lagasse, 87 F.3d 18 directly related to escape to enhance must have relationship of trust with (1st Cir. 1996) (There was no link sentence). victim for abuse of trust to apply). between a knife-point robbery of a coconspirator, and the charged drug United States v. Thomas, 280 F.3d 1149 *United States v. Tribble, 206 F.3d conspiracy, to justify an increase in (7th Cir. 2002) (Insufficient evidence to 634 (6th Cir. 2000) (Postal window sentence). warrant homicide cross reference). clerk did not hold position of trust).

*United States v. Aderholt, 87 F.3d United States v. Johnson, 378 F.3d 230 *United States v. Ward, 222 F.3d 909 740 (5th Cir. 1996) (Murder (2d Cir. 2004) (Cannot base sentence on (11th Cir. 2000) (Bank guard did not guidelines were improperly applied co-defendant’s act of murder). occupy position of trust). in a mail fraud conspiracy because murder was not an object of the *United States v. Willard, 230 F.3d conspiracy). Abuse of Trust 1093 (9th Cir. 2000) (Motherhood alone is not a position of trust under United States v. Meacham, 115 F.3d *United States v. Jolly, 102 F.3d 46 (2d the guidelines). 1488 (10th Cir. 1997) Cir. 1996) (Corporate principal could (Transportation of a child, not not get abuse of trust enhancement for *United States v. Trice, 245 F.3d involving prostitution or production defrauding investors). 1041 (8th Cir. 2001) (Abuse of trust of a visual depiction, required cross adjustment did not apply to arms- reference to lower base level for *United States v. Long, 122 F.3d 1360 length business relationship). sexual contact). (11th Cir. 1997) (Abuse of trust enhancement did not apply to prison *United States v. Hoskins, 282 F.3d *United States v. Jackson, 117 F.3d employee who brought in contraband). 772 (9th Cir.), cert. denied, 536 U.S. 533 (11th Cir. 1997) (Police officer 933 (2002) (Security guard who convicted of theft should not have *United States v. Garrison, 133 F.3d robbed store did not have position of been sentenced under civil rights 831 (11th Cir. 1998) (Owner of a health trust). guidelines). care provider did not occupy position of trust with Medicare). United States v. Edwards, 325 F.3d *United States v. Cross, 121 F.3d 1184 (10th Cir. 2003) (Defendant’s 234 (6th Cir. 1997) (Torture was not United States v. Burt, 134 F.3d 997 job was merely ministerial). relevant conduct in a drug case). (10th Cir. 1998) (Deputy sheriff’s drug dealing did not merit abuse of trust or United States v. Caplinger, 339 F.3d *United States v. Sanders, 162 F.3d special skills enhancements). 226 (4th Cir. 2003) (Fake job did not 396 (6th Cir. 1999) (Possibility that justify abuse of trust enhancement). defendant could have been charged United States v. Reccko, 151 F.3d 29 with state burglary did not mean (1st Cir. 1998) (Police switchboard United States v. Nuzzo, 385 F.3d 109 firearm was used in connection with operator did not occupy position of (2d Cir. 2004) (Immigration officer another offense). trust). did not abuse trust by drug smuggling). *United States v. Mezas De Jesus, *United States v. Wadena, 152 F.3d 831 217 F.3d 638 (9th Cir. 2000) (8th Cir.), cert. denied, 526 U.S. 1050 (Kidnaping, used to enhance (1999) (Money laundering, unrelated to Obstruction of sentence, needed to be proven by defendant’s position, did not warrant clear and convincing evidence). abuse of trust). Justice

*United States v. Shabazz, 263 F.3d United States v. Holt, 170 F.3d 698 (7th *United States v. Williams, 79 F.3d 603 (6th Cir. 2001) (Use base level, Cir. 1999) (Part-time police officer did 334 (2d Cir. 1996) (In order to justify 54 Errores Juris 2005 an obstruction of justice obstruction enhancement). 186 F.3d 1181 (9th Cir. 1999) enhancement, the court had to find (Absent perjury finding, adjustment the defendant knowingly made a *United States v. Tackett, 113 F.3d 603 for obstruction did not apply). false statement under oath). (6th Cir.), cert. denied, 522 U.S. 1089 (1998) (Court failed to find that United States v. Gage, 183 F.3d 711 *United States v. Strang, 80 F.3d government resources were wasted for (7th Cir. 1999) (Defendant’s denial 1214 (7th Cir. 1996) (Perjury in obstruction enhancement). that his robbery note mentioned a another case did not warrant an firearm did not justify obstruction obstruction of justice enhancement in United States v. Sawyer, 115 F.3d 857 adjustment). the instant case). (11th Cir. 1997) (Sentencing increase for reckless endangerment only applied United States v. Amsden, 213 F.3d United States v. Medina-Estrada, 81 to defendant fleeing law enforcement 1014 (8th Cir. 2000) (Defendant F.3d 981 (10th Cir. 1996) (Court officer, not civilians). convicted of threatening must have found all elements of communications did not obstruct perjury were proven to give *United States v. Sassanelli, 118 F.3d justice by sending additional enhancement for obstruction of 495 (6th Cir. 1997) (Obstruction threatening letter). justice). findings did not specify which statements were materially untruthful). *United States v. Woodard, 239 F.3d United States v. Hernandez, 83 F.3d 159 (2d Cir. 2001) (Unless defendant 582 (2d Cir. 1996) (Staring at a *United States v. Solano-Godines, 120 left district intending to miss court, it witness and calling them “the devil,” F.3d 957 (9th Cir.), cert. denied, 522 was not obstruction). did not justify enhancement for U.S. 1061 (1998) (Misrepresentation by intimidation). the defendant did not obstruct justice). United States v. Shabazz, 263 F.3d 603 (6th Cir. 2001) (Obstruction United States v. Sisti, 91 F.3d 305 United States v. Webster, 125 F.3d 1024 applies only to crime of conviction). (2d Cir. 1996) (Obstruction of justice (7th Cir. 1997) (Finding that the was only proper for conduct related defendant testified falsely lacked United States v. McGiffen, 267 F.3d to the conviction). specificity). 581 (7th Cir. 2001) (Conclusions about defendant’s testimony were not *United States v. Ruggiero, 100 F.3d United States v. Senn, 129 F.3d 886 (7th specific findings). 284 (2d Cir.), cert. denied, 522 U.S. Cir. 1997) (Lying about minor details to 1138 (1998) (Judge properly refused grand jury was not obstruction). *Ortega v. United States, 270 F.3d to apply an obstruction of justice 540 (8th Cir. 2001) (Failed polygraph enhancement). United States v. Norman, 129 F.3d 1393 does not merit adjustment). (10th Cir. 1997) (Concealing drugs at *United States v. Draves, 103 F.3d scene of crime was not obstruction). United States v. Jenkins, 275 F.3d 1328 (7th Cir.), cert. denied, 521 283 (3rd Cir. 2001) (Failing to U.S. 1127 (1997) (Fleeing from a *United States v. McRae, 156 F.3d 708 appear at related state proceeding was police car was not obstruction of (6th Cir. 1999) (Insufficient findings of not obstruction). justice). obstruction of justice). *United States v. Williams, 288 F.3d United States v. Harris, 104 F.3d *United States v. Jones, 159 F.3d 969 1079 (8th Cir. 2002) (Giving a false 1465 (5th Cir.), cert. denied, 522 (6th Cir. 1999) (Irrelevant false name at time of arrest did not hinder U.S. 833 (1997) (Actions of testimony did not support obstruction of investigation). accessory after the fact did not justify justice). obstruction enhancement when those United States v. Brown, 321 F.3d 347 same acts supported the substantive *United States v. Koeberlein, 161 F.3d (2d Cir. 2003) (Obstruction requires a offense). 946 (6th Cir.), cert. denied, 526 U.S. specific intent). 1030 (1999) (Failure to appear on *United States v. Zagari, 111 F.3d unrelated offense was not obstruction). *United States v. Ahmed, 324 F.3d 307 (2d Cir.), cert. denied, 522 U.S. 368 (5th Cir. 2003) (Refusal to assist 983 (1997) (No finding to support *United States v. Monzon-Valenzuela, did not impede investigation). 55 Errores Juris 2005

United States v. Khedr, 343 F.3d 96 *United States v. Shumway, 112 F.3d *United States v. Ivy, 83 F.3d 1266 (9th Cir. 2003) (No obstruction of 1413 (10th Cir. 1997) (Prehistoric (10th Cir.), cert. denied, 519 U.S. justice during investigation of bank skeletal remains were not vulnerable 901 (1996) (Insufficient findings for a fraud conspiracy). victims). managerial role).

United States v. Carroll, 346 F.3d *United States v. Robinson, 119 F.3d United States v. Lozano-Hernandez, 744 (7th Cir. 2003) (Inaccuracies 1205 (5th Cir.), cert. denied, 522 U.S. 89 F.3d 785 (11th Cir. 1996) that were not materially false do not 1139 (1998) (Asian-American (Leadership role in drug conspiracy justify adjustment for obstruction). merchants were not vulnerable victims). was not proven).

United States v. Banks, 347 F.3d United States v. Hogan, 121 F.3d 370 United States v. Patasnik, 89 F.3d 63 1266 (11th Cir. 2003) (Obstruction (8th Cir. 1997) (Victims must have been (2d Cir. 1996) (Management role had requires significant hindrance to the targeted in order to be considered to be based on managing people, not instant investigation). vulnerable). assets).

United States v. Johnson, 352 F.3d *United States v. Monostra, 125 F.3d *United States v. Wester, 90 F.3d 592 146 (5th Cir. 2003) (No obstruction 183 (3rd Cir. 1997) (Victim’s (1st Cir. 1996) (Court failed to make adjustment where there was no vulnerability must facilitate the crime in findings there were five or more evidence that defendant procured some manner). participants). witness’ perjury). United States v. McCall, 174 F.3d 47 United States v. Miller, 91 F.3d 1160 *United States v. Degeorge, 382 F.3d (2d Cir. 1999) (Vulnerable victim (8th Cir. 1996) (Lack of evidence that 1203 (9th Cir. 2004) (Perjury did not enhancement is not a relative standard). the defendant controlled others occur during criminal investigation). precluded a leadership role). United States v. Pospisil, 186 F.3d 1023 United States v. Peters, 394 F.3d (8th Cir. 1999) (No evidence that *United States v. Albers, 93 F.3d 1103 (8th Cir. 2005) (Failure to defendant knew victims were 1469 (10th Cir. 1996) (Leadership appear or to provide urine sample vulnerable). role could not be based solely on were not obstruction). defendant’s importance to the success *United States v. Castaneda, 239 F.3d of the conspiracy). United States v. Washington, 398 978 (9th Cir. 2001) (Club workers who F.3d 306 (4th Cir. 2005) (Defendant were encouraged to provide sexual *United States v. Delpit, 94 F.3d should not have been held liable for services for fees were not vulnerable 1134 (8th Cir. 1996) (Murder-for- wife’s testimony). victims). hire scheme had less than five participants). United States v. Profitt, 304 F.3d 1001 Vulnerable (10th Cir. 2002) (Record lacked United States v. Avila, 95 F.3d 887 evidence of particular vulnerability or (9th Cir. 1996) (Defendant who was Victim need for greater societal protection). the sole contact between a buyer and a seller was not an organizer). *United States v. Castellanos, 81 *United States v. Esterman, 324 F.3d F.3d 108 (9th Cir. 1996) (Merely 565 (7th Cir. 2003) (Lack of English *United States v. Jobe, 101 F.3d 1046 because a fraud scheme used Spanish fluency alone is insufficient). (5th Cir.), cert. denied, 522 U.S. 823 language media, did not justify an (1997) (Defendant’s position as bank enhancement for victims particularly United States v. Madden, 403 F.3d 347 director did not justify managerial susceptible to fraud). (6th Cir. 2005) (Vote sellers were not role when he did not manage or victims). supervise others). *United States v. Stover, 93 F.3d 1379 (8th Cir. 1996) (Persons’ desire United States v. DeGovanni, 104 F.3d to adopt children did not make them Aggravating Role 43 (3rd Cir. 1997) (Corrupt police vulnerable victims of an adoption sergeant was not a supervisor merely agency). because of his rank). 56 Errores Juris 2005

United States v. Eidson, 108 F.3d (Conclusionary statement that defendant United States v. Rodriguez, 342 F.3d 1336 (11th Cir.), cert. denied, 118 was lieutenant did not justify role 296 (3rd Cir. 2003) (Minor role could S.Ct. 248 (1997) (Clean Water Act adjustment). not be denied merely based on violation lacked five participants for defendant’s credibility). role adjustment). *United States v. Tank, 200 F.3d 627 (9th Cir. 2000) (Insufficient evidence of United States v. Gort-Didonato, 109 defendant’s leadership role). Acceptance of F.3d 318 (6th Cir. 1997) (To impose an upward role adjustment, the United States v. Barrie, 267 F.3d 220 Responsibility defendant must have supervised at (3d Cir. 2001) (One-time transaction did least one person). not show leadership role). *United States v. Fells, 78 F.3d 168 (5th Cir.), cert. denied, 519 U.S. 847 *United States v. Bryson, 110 F.3d United States v. Schuh, 289 F.3d 968 (1996) (Defendant making a statutory 575 (8th Cir. 1997) (Facts did not (7th Cir. 2002) (Tavern owner who challenge, could still qualify for support upward adjustment for role). allowed drug transactions in bar was not acceptance of responsibility). a leader or organizer). *United States v. Logan, 121 F.3d United States v. Patino-Cardenas, 85 1172 (8th Cir. 1997) (Record did not United States v. Burgos, 324 F.3d 88 (2d F.3d 1133 (5th Cir. 1996) (No basis support upward role adjustment). Cir. 2003) (Facts did not support to deny credit when the defendant did aggravating role in bank fraud). not falsely deny relevant conduct). *United States v. Makiewicz, 122 F.3d 399 (7th Cir. 1997) (Defendant *United States v. Garrett, 90 F.3d was not a leader for asking his father Mitigating Role 210 (7th Cir. 1996) (Defendant could to accompany informant to motel). not be denied acceptance when he United States v. Moeller, 80 F.3d 1053 filed an uncounseled, pro se motion *United States v. Del Toro-Aguilar, (5th Cir. 1996) (No leadership role for a to withdraw plea after his attorney 138 F.3d 340 (8th Cir. 1998) government official who inherited an died). (Occasionally fronting drugs to historically corrupt system, but the coconspirators did not justify upward defendant’s lack of understanding of the *United States v. Flores, 93 F.3d 587 role adjustment). entire scheme justified a minimal role (9th Cir. 1996) (Defendant should adjustment). have received credit for his written *United States v. Alred, 144 F.3d statement). 1405 (11th Cir. 1998) (Defendant *United States v. Miranda-Santiago, 96 was not an organizer). F.3d 517 (1st Cir. 1996) (There was an *United States v. Atlas, 94 F.3d 447 insufficient basis to deny a minor role (8th Cir.), cert. denied, 520 U.S. United States v. Lopez-Sandoval, 146 reduction). 1130 (1997) (Defendant who timely F.3d 712 (9th Cir. 1998) (Defendant accepted responsibility must be given was not an organizer). *United States v. Haut, 107 F.3d 213 the additional one-level downward (3rd Cir.), cert. denied, 521 U.S. 1127 adjustment). *United States v. Glinton, 154 F.3d (1997) (Arson defendants who worked at 1245 (11th Cir.), cert. denied, 526 direction of others were minimal *United States v. Ruggiero, 100 F.3d U.S. 1032) (No managerial role for participants). 284 (2d Cir.), cert. denied, 522 U.S. defendant who did not supervise or 1138 (1998) (Single false denial did control others). *United States v. Snoddy, 139 F.3d 1224 not bar credit for acceptance of (8th Cir. 1998) (Sole charged defendant responsibility). *United States v. Walker, 160 F.3d may receive minor role when justified by 1078 (6th Cir.), cert. denied, 526 relevant conduct). *United States v. Guerrero-Cortez, U.S. 1056 (1999) (Insufficient 110 F.3d 647 (8th Cir.), cert. denied, evidence of organizer role). United States v. Neils, 156 F.3d 382 (2d 522 U.S. 1017 (1998) (Defendant’s Cir. 1999) (Defendant who merely pretrial statements of acceptance *United States v. Graham, 162 F.3d steered buyers was minor participant). justified reduction though case was 1180 (D.C. Cir. 1999) tried). 57 Errores Juris 2005

*United States v. Fisher, 137 F.3d United States v. Beltran-Ortiz, 91 F.3d (11th Cir. 1999) (Unforeseen 1158 (9th Cir. 1998) (Despite not 665 (4th Cir. 1996) (Failure to debrief possession of firearm by guilty plea, admission in open court the defendant, thus preventing him from coconspirator does not bar safety could be acceptance). benefitting from the safety valve, valve relief). violated the plea agreement). *United States v. McKittrick, 142 United States v. Ortiz-Santiago, 211 F.3d 1170 (9th Cir.), cert. denied, *United States v. Miranda-Santiago, 96 F.3d 146 (1st Cir. 2000) (Plea 525 U.S. 1072 (1998) (Defendant F.3d 517 (1st Cir. 1996) (Government agreement prohibiting further who did not contest facts at trial may had to rebut the defendant’s version in adjustments did not preclude safety be eligible for acceptance). order to deny safety valve). valve).

United States v. Corona-Garcia, 210 *United States v. Sherpa, 97 F.3d 1239 United States v. Warnick, 287 F.3d F.3d 973 (9th Cir. 2000) (Even after (9th Cir.), amended, 110 F.3d 656 299 (4th Cir. 2002) (Safety valve not trial, defendant could receive full (1997) (Even a defendant who claimed limited to statutes named in credit for acceptance when he innocence was eligible if he met guideline). confessed fully and immediately requirements). upon arrest). United States v. Jeffers, 329 F.3d 94 *United States v. Wilson, 105 F.3d 219 (2d Cir. 2003) (Other perjury or *United States v. Ochoa-Gaytan, 265 (5th Cir.), cert. denied, 522 U.S. 847 obstruction does not otherwise F.3d 837 (9th Cir. 2001) (Defendant (1997) (Co-conspirator’s use of a disqualify defendant from relief). could get acceptance even after trial). firearm did not bar application of the safety valve). United States v. Figueroa- United States v. Burgos, 276 F.3d Encarnacion, 343 F.3d 23 (1st Cir. 1284 (11th Cir. 2001) (Court could *United States v. Osei, 107 F.3d 101 (2d 2003) (Defendant may receive safety not penalize defendant for refusal to Cir. 1997) (Two-level safety valve valve unless he possessed, or induced cooperate). adjustment applied regardless of another to possess, a firearm). mandatory minimum). *United States v. Gregory, 315 F.3d 637 (6th Cir. 2003) (Where *United States v. Mertilus, 111 F.3d 870 Criminal History obstructive conduct preceded charge (11th Cir. 1997) (Safety valve applied defendant was still eligible for to a telephone count). *United States v. Spell, 44 F.3d 936 acceptance). (11th Cir. 1995) (Judgement was the *United States v. Mihm, 134 F.3d 1353 only conclusive proof of prior (8th Cir. 1998) (Court failed to consider convictions). Safety Valve safety valve at resentencing). United States v. Douglas, 81 F.3d 324 *United States v. Shrestha, 86 F.3d United States v. Carpenter, 142 F.3d 333 (2d Cir.), cert. denied, 517 U.S. 1251 935 (9th Cir. 1996) (Eligibility for (6th Cir. 1998) (Refusal to testify did not (1996) (Juvenile sentence, more than the safety valve did not depend on bar safety valve). five years old, was incorrectly acceptance of responsibility). applied). United States v. Gama-Bastidas, 142 United States v. Flanagan, 87 F.3d F.3d 1233 (10th Cir. 1998) (Court failed *United States v. Cox, 83 F.3d 336 121 (5th Cir. 1996) (On remand, the to make findings regarding applicability (10th Cir. 1996) (Proper to attack a sentencing court could withdraw a of safety valve). guidelines sentence when prior leadership role so the defendant convictions were later successfully could qualify for safety valve). *United States v. Kang, 143 F.3d 379 attacked). (8th Cir. 1998) (Defendant could not be *United States v. Real-Hernandez, 90 denied safety valve because government *United States v. Parks, 89 F.3d 570 F.3d 356 (9th Cir. 1996) (To be claimed he was untruthful absent (9th Cir. 1996) (No criminal history eligible for safety valve, a defendant supporting evidence). points could be attributed to a did not need to give information to a defendant when indigence prevented specific agent). *United States v. Clavijo, 165 F.3d 1341 payment of fines). 58 Errores Juris 2005

*United States v. Flores, 93 F.3d 587 than a year and a day must be imposed *United States v. Mitchell, 136 F.3d (9th Cir. 1996) (Court erroneously within ten years of offense to count 1192 (8th Cir. 1998) (Failure to twice counted a single probation toward criminal history). adhere to unconditional promise to revocation to increase two prior move for downward departure convictions). United States v. Stuckey, 220 F.3d 976 violated plea agreement). (8th Cir. 2000) (Military prior was not *United States v. Ortega, 94 F.3d serious drug offense). United States v. Johnson, 241 F.3d 764 (2d Cir. 1996) (Uncounseled 1049 (8th Cir. 2001) (Government misdemeanor was improperly *United States v. Morales, 239 F.3d 113 breached plea agreement by failing to counted). (2d Cir. 2001) (No criminal history file departure motion before point for 2nd degree harassment). sentencing). United States v. Easterly, 95 F.3d 535 (7th Cir. 1996) (Fish and game United States v. Melendez, 301 F.3d 27 United States v. Busekros, 264 F.3d violation should not have been (1st Cir. 2002) (Court gave separate 1158 (10th Cir. 2001) (Departure for counted). points for two juvenile adjudications for substantial assistance allowed the same conduct). defendant to retain federal benefits). *United States v. Gilcrist, 106 F.3d 297 (9th Cir. 1997) (Sentence, upon *United States v. Reyes-Maya, 305 F.3d United States v. Wilson, 390 F.3d which parole began over 15 years 362 (5th Cir. 2002) (Criminal mischief 1003 (7th Cir. 2004) (Government’s ago, could not be counted toward misdemeanor was similar to disorderly decision not to seek reduced sentence criminal history). conduct and should not have been was in bad faith). counted). *United States v. Huskey, 137 F.3d 283 (5th Cir. 1998) (Prior United States v. Stapleton, 316 F.3d 754 Fines / convictions in same information were (8th Cir. 2003) (Improperly counted related cases for counting criminal uncounseled misdemeanor resulting in Restitution history). custody sentence). *United States v. Remillong, 55 F.3d *United States v. Walker, 142 F.3d United States v. Ramirez, 347 F.3d 792 572 (11th Cir. 1995) (Restitution 103 (2d Cir.), cert. denied, 525 U.S. (9th Cir. 2003) (Temporary juvenile order reversed for a defendant with 896 (1998) (Prior convictions for detentions did not merit criminal history no ability to pay and no future offenses that were calculated into points). prospects). offense level should not have received criminal history points). United States v. Dixon, 360 F.3d 845 United States v. Ledesma, 60 F.3d (8th Cir. 2004) (No criminal history 750 (11th Cir. 1995) (Restitution United States v. Hernandez, 145 F.3d points for invalidated convictions). order could only be applied to charges 1433 (11th Cir. 1998) (Arrest of conviction). warrant did not determine nature of prior conviction). Cooperation *United States v. Mullens, 65 F.3d 1560 (11th Cir.), cert. denied, 517 *United States v. Torres, 182 F.3d *United States v. McMillan, 106 F.3d U.S. 1112 (1996) (Record lacked 1156 (10th Cir. 1999) (Prior 322 (10th Cir. 1997) (Court could findings to support restitution when convictions that are relevant conduct reduce a fine for substantial assistance). amount was specific offense may not be counted toward criminal characteristic). history). *United States v. Rounsavall, 128 F.3d 665 (8th Cir. 1997) (Defendant was *United States v. Maurello, 76 F.3d *United States v. Thomas, 211 F.3d entitled to an evidentiary hearing to 1304 (3rd Cir. 1996) (The court had 316 (6th Cir. 2000) (Two prior rapes determine if the government’s failure to to make findings to determine actual were a single transaction). move for a reduced sentence was loss to victim). irrational, in bad faith, or United States v. Arnold, 213 F.3d unconstitutionally motivated). *United States v. Reed, 80 F.3d 1419 894 (5th Cir. 2000) (Sentence of less (9th Cir.), cert. denied, 519 U.S. 882 59 Errores Juris 2005

(1996) (Restitution order had to be defendant could not be ordered to pay *United States v. Brierton, 165 F.3d limited to conduct of conviction). restitution for acquitted conduct). 1133 (7th Cir. 1999) (Restitution can only be based on loss from charged United States v. Blake, 81 F.3d 498 United States v. Hodges, 110 F.3d 250 offense). (4th Cir. 1996) (Restitution could (5th Cir. 1997) (Fine was not justified only be based on the loss directly for a defendant with a negative net *United States v. Merric, 166 F.3d related to the offense, and the court worth). 406 (1st Cir. 1999) (Court could not had to make findings that the delegate scheduling of installment defendant can pay that amount *United States v. Khawaja, 118 F.3d payments to probation officer’s without undue hardship). 1454 (11th Cir. 1997) (Government was discretion). not a victim for purposes of awarding United States v. Hines, 88 F.3d 661 restitution). *United States v. Johnston, 199 F.3d (8th Cir. 1996) (In assessing fine and 1015 (9th Cir.), cert. denied, 530 restitution, the court should have *United States v. Gottesman, 122 F.3d U.S. 1207 (2000) (Forfeited money considered the defendant’s familial 150 (11th Cir. 1997) (Defendant’s should have been subtracted from obligations of his recent marriage). promise to pay back-taxes did not restitution). authorize court-ordered restitution). *United States v. Upton, 91 F.3d 677 United States v. Prather, 205 F.3d (5th Cir.), cert. denied, 520 U.S. *United States v. Baggett, 125 F.3d 1265 (11th Cir. 2000) (Amount of 1228 (1997) (No restitution was 1319 (9th Cir. 1997) (Restitution must special assessment governed by date available to victims not named in the be based upon a specific statute). of offense). indictment). United States v. Mayer, 130 F.3d 338 *United States v. Beckett, 208 F.3d *United States v. Sablan, 92 F.3d (8th Cir. 1997) (Restitution should not 140 (3rd Cir. 2000) (Restitution 865 (9th Cir. 1996) (Consequential have been higher than the loss). should not have been ordered without expenses could not be included in a determining ability to pay). restitution order). United States v. Drinkwine, 133 F.3d 203 (2d Cir. 1998) (Insufficient evidence United States v. Norris, 217 F.3d 262 *United States v. Jaroszenko, 92 F.3d that defendant could pay a fine). (5th Cir. 2000) (Restitution was not 486 (7th Cir. 1996) (The court failed for actual loss). to fully consider the defendant’s United States v. Menza, 137 F.3d 533 ability to pay restitution). (7th Cir. 1998) (Defendant did not have United States v. Griffin, 215 F.3d 866 to pay restitution for amount greater (8th Cir. 2000) (Loss from food *United States v. Santos, 93 F.3d 761 than losses). stamp fraud was limited to actual (11th Cir.), cert. denied, 520 U.S. benefits diverted). 1170 (1997) (Defendant could not be United States v. Riley, 143 F.3d 1289 ordered to pay restitution for money (9th Cir. 1998) (Defendant could not be United States v. Andra, 218 F.3d taken in a robbery for which he was ordered to pay restitution on loan 1106 (9th Cir. 2000) (Tax loss should not convicted). unrelated to fraud). not have included penalties and interest). *United States v. Monem, 104 F.3d United States v. Stoddard, 150 F.3d 905 (7th Cir. 1997) (Court did not 1140 (9th Cir. 1998) (Restitution could *United States v. Rodrigues, 229 F.3d make sufficient factual findings to not exceed actual loss). 842 (9th Cir. 2000) (No restitution justify the fine of a defendant who for speculative loss). claimed inability to pay). *United States v. Siegel, 153 F.3d 1256 (11th Cir. 1998) (Court must consider United States v. Calbat, 266 F.3d 358 *United States v. Messner, 107 F.3d defendant’s ability to pay restitution). (5th Cir. 2001) (High restitution 1448 (10th Cir. 1997) (Restitution scheduled during prison sentence was had to be based on actual loss). *United States v. Dunigan, 163 F.3d 979 abuse of discretion). (6th Cir. 1999) (Court did not *United States v. McArthur, 108 adequately consider defendant’s ability United States v. Lomow, 266 F.3d F.3d 1350 (11th Cir. 1997) (A to pay restitution). 1013 (9th Cir. 2001) (Expenses 60 Errores Juris 2005 incurred after seizing property could *United States v. Ready, 82 F.3d 551 *United States v. Arteaga, 117 F.3d not be basis for restitution). (2d Cir. 1996) (Waiver of appeal did not 388 (9th Cir.), cert. denied, 522 U.S. cover issue of restitution and was not 988 (1997) (Evidence that was *United States v. Follett, 269 F.3d waived). precluded at trial could not support 996 (9th Cir. 2002) (Court cannot convictions on appeal). order defendant to reimburse for *United States v. Thompson, 82 F.3d counseling that was free to victim). 700 (6th Cir. 1996) (Technicalities that *In Re Grand Jury Subpoena, 123 did not prejudice the government were F.3d 695 (1st Cir. 1997) (Third party *United States v. Young, 272 F.3d not cause to deny a motion to extend may appeal the denial of a motion to 1052 (8th Cir. 2001) (Report’s time to file an appeal). quash without risking a contempt failure to document loss excused citation). defendant’s failure to object to *United States v. Agee, 83 F.3d 882 (7th restitution amount). Cir. 1996) (Waiver of appeal, not *United States v. Martinez-Rios, 143 discussed at the plea colloquy, was F.3d 662 (2d Cir. 1998) (Vague United States v. Brown, 321 F.3d 347 invalid). appeal waiver was void). (2d Cir. 2003) (Court failed to determine ability to pay restitution *United States v. Webster, 84 F.3d 1056 United States v. Montez-Gavira, 163 amount). (11th Cir. 1996) (When a law was F.3d 697 (2d Cir. 1999) (Deportation clarified between trial and appeal, a did not moot appeal). United States v. Randle, 324 F.3d point of appeal was preserved as plain 550 (7th Cir. 2003) (Cannot order error). *United States v. Gonzalez, 259 F.3d payment to persons who are not 355 (5th Cir. 2001) (Failure to allege victims pursuant to restitution *United States v. Allison, 86 F.3d 940 drug quantity was preserved even statute). (9th Cir. 1996) (Remand was proper when defendant waived appeal). even though the district court could still United States v. Gordon, 393 F.3d impose the same sentence). *United States v. Smith, 263 F.3d 1044 (9th Cir. 2004) (Improper 571 (6th Cir. 2001) (Government award of prejudgement interest on *United States v. Perkins, 89 F.3d 303 appeal, of suppression, was dismissed embezzled securities). (6th Cir. 1996) (Orally raising an issue when there was no certification that of double-counting at sentencing appeal was not filed in bad faith). preserved it for appeal). Appeals United States v. Leyba, 379 F.3d 53 *United States v. Stover, 93 F.3d 1379 (2d Cir. 2004) (Counsel could not United States v. Byerley, 46 F.3d 694 (8th Cir. 1996) (Appellate court refused withdraw until defendant was notified (7th Cir. 1996) (Government waived to use a substantive change to the in his native language). argument by inconsistent position at guidelines to uphold a sentence that was sentencing). improper at the time imposed). United States v. Arce-Jasso, 389 F.3d 124 (5th Cir. 2004) (Government’s United States v. Caraballo-Cruz, 52 *United States v. Alexander, 106 F.3d appeal was untimely and moot). F.3d 390 (1st Cir. 1995) 874 (9th Cir. 1997) (Rule of the case (Government defaulted on double barred reconsideration of a suppression jeopardy claim). order after remand). Resentencing

*United States v. Carillo-Bernal, 58 United States v. Zink, 107 F.3d 716 (9th *United States v. Moore, 131 F.3d F.3d 1490 (10th Cir. 1995) (The Cir. 1997) (Waiver of appeal of sentence 595 (6th Cir. 1997) (Limited remand government failed to timely file did not cover a restitution order). did not allow a new enhancement at certification for appeal). resentencing). *Sanders v. United States, 113 F.3d 184 *United States v. Petty, 80 F.3d 1384 (11th Cir. 1997) (Pro se petitioner’s out- *United States v. Wilson, 131 F.3d (9th Cir. 1996) (Waiver of appeal of of-time appeal was treated as a motion 1250 (7th Cir. 1997) (Government an unanticipated error was not for extension of time). waived the issue of urging additional enforceable). relevant conduct at resentencing). 61 Errores Juris 2005

United States v. Rapal, 146 F.3d 661 possession of drugs was a Grade C, not a *United States v. Evans, 155 F.3d (9th Cir. 1998) (Higher resentence Grade A violation, of supervised 245 (3rd Cir. 1998) (Cannot make presumed vindictiveness). release). reimbursement for court-appointed counsel a condition of supervised *United States v. Ticchiarelli, 171 United States v. Leaphart, 98 F.3d 41 release). F.3d 24 (1st Cir.), cert. denied, 528 (2d Cir. 1996) (Misdemeanor did not U.S. 850 (1999) (Sentence imposed, justify a two year term of supervised *United States v. Havier, 155 F.3d between original sentence and release). 1090 (9th Cir. 1998) (Motion to remand, could not be counted at revoke must specifically identify resentencing). United States v. Myers, 104 F.3d 76 (5th charges). Cir.), cert. denied, 520 U.S. 1218 (1997) *United States v. Jackson, 181 F.3d (Court could not impose consecutive *United States v. Kingdom, 157 F.3d 740 (6th Cir. 1999) (Resentencing sentences of supervised release). 133 (2d Cir. 1998) (Revocation did not overcome presumption of sentence should have been concurrent vindictiveness). United States v. Romeo, 122 F.3d 941 sentences based on most serious (11th Cir. 1997) (Court could not order violation). *United States v. Faulks, 201 F.3d deportation as a condition of supervised 208 (3rd Cir. 2000) (Defendant could release). *United States v. Waters, 158 F.3d not be resentenced in abstentia). 933 (6th 1999) (Defendant had right United States v. Aimufa, 122 F.3d 1376 to allocution at revocation hearing). *United States v. Osborne, 291 F.3d (11th Cir. 1997) (Court lacked authority 908 (6th Cir. 2002) (Resentencing to modify conditions of release after United States v. Strager, 162 F.3d mandated where court did not revocation). 921 (6th Cir. 1999) (Disrespectful determine whether defense counsel call to probation officer did not justify discussed PSR with defendant). *United States v. Patterson, 128 F.3d revocation). 1259 (8th Cir. 1997) (Failure to provide *Nulph v. Cook, 333 F.3d 1052 (9th allocution at supervised release United States v. McClellan, 164 F.3d Cir. 2003) (There was a presumption revocation was plain error). 308 (6th Cir. 1999) (Court must that a higher sentence on remand explain why it is departing above was vindictive). United States v. Pierce, 132 F.3d 1207 revocation guidelines). (8th Cir. 1997) (Probation revocation for a drug user did not require a prison *United States v. Cooper, 171 F.3d Supervised sentence; treatment is an option). 582 (8th Cir. 1999) (Court could not order that defendant not leave city for Release / United States v. Biro, 143 F.3d 1421 more than 24 hours as condition of (11th Cir. 1998) (Deportation could not supervised release). Probation be condition of supervised release). United States v. Danser, 270 F.3d *United States v. Doe, 79 F.3d 1309 *United States v. Bonanno, 146 F.3d 451 (7th Cir. 2001) (Court cannot (2d Cir. 1996) (Occupational 502 (7th Cir. 1998) (Court improperly sentence defendant to consecutive restriction was not supported by the delegated discretion over drug testing to terms of supervised release). court’s findings). probation officer). United States v. Monteiro, 270 F.3d United States v. Edgin, 92 F.3d 1044 United States v. Balogun, 146 F.3d 141 465 (7th Cir. 2001) (Without a (10th Cir.), cert. denied, 519 U.S. (2d Cir. 1998) (Court could not order special condition the defendant is not 1069 (1997) (Court failed to provide supervised release tolled while defendant subject to unlimited warrantless adequate reasons to bar a defendant out of country). searches). from seeing his son while on supervised release). United States v. Giraldo-Prado, 150 F.3d *United States v. Scott, 270 F.3d 632 1328 (11th Cir. 1998) (Deportation (8th Cir. 2001) (No connection *United States v. Wright, 92 F.3d cannot be condition of supervised between bank robbery conviction and 502 (7th Cir. 1996) (Simple release). special condition for sexual 62 Errores Juris 2005 offenders). sentence defendant above original Cir. 1995) (Counsel failed to maximum term of supervised release). determine that the defendant was a *United States v. Maxwell, 285 F.3d habitual offender before plea). 336 (4th Cir. 2002) (In calculating a United States v. Caffey, 351 F.3d 804 second revocation, the court must (8th Cir. 2003) (Defendant denied *United States v. Cook, 45 F.3d 388 subtract time already served on the allocution at revocation hearing). (10th Cir. 1995) (Court infringed on previous revocation). counsel’s professional judgement). United States v. Plotts, 359 F.3d 247 United States v. Swenson, 289 F.3d (3rd Cir. 2004) (Right of allocution *Finch v. Vaughn, 67 F.3d 909 (11th 676 (10th Cir. 2002) (Court failed to exists at revocation hearing). Cir. 1995) (Counsel failed to correct deduct previous time served in misstatements that state sentence setting second revocation). *United States v. Taveras, 380 F.3d 532 could run concurrent with potential (1st Cir. 2004) (There is a right of federal sentence). United States v. Modena, 302 F.3d confrontation at a revocation hearing). 626 (6th Cir. 2002) (Absent evidence Montemoino v. United States, 68 of drug and alcohol abuse testing and *United States v. Vargas, 389 F.3d 901 F.3d 416 (11th Cir. 1995) (Failure to treatment were not warranted). (9th Cir. 2004) (Revocation reversed file notice of appeal after request by when facts in petition not sworn under defendant). United States v. Turner, 312 F.3d oath). 1137 (9th Cir. 2002) (Revocation *United States v. Hansel, 70 F.3d 6 was erroneous when defendant did United States v. Antelope, 395 F.3d (2d Cir. 1995) (Counsel failed to not fail to make timely payment and 1128 (9th Cir. 2005) (Revocation based raise statute of limitations). incurred no new debt). on remaining silent violated Fifth Amendment). Upshaw v. Singletary, 70 F.3d 576 *United States v. Scott, 316 F.3d 733 (11th Cir. 1995) (Claim of ineffective (7th Cir. 2003) (Condition of United States v. Cooper, 396 F.3d 308 assistance of counsel at plea was not supervised release, restricting (3rd Cir. 2005) (Bank theft conviction waived even though not raised on Internet access, required notice to does not require DNA sample taken). direct appeal). defendant before imposition). United States v. Vega, 398 F.3d 149 (1st United States v. Streater, 70 F.3d *United States v. Holm, 326 F.3d Cir. 2005) (Condition of drug treatment 1314 (D.C. 1995) (Counsel gave bad 872 (7th Cir. 2003) (Condition at the probation officer’s discretion was legal advice about ). banning Internet use was over invalid). broad). Martin v. United States, 81 F.3d 1083 *United States v. Pruden, 398 F.3d 241 (11th Cir. 1996) (Counsel failed to United States v. Tinoso, 327 F.3d (3rd Cir. 2005) (Condition of mental file a notice of appeal when requested 864 (9th Cir. 2003) (Deportation health treatment at the probation to do so by the defendant). could not be a condition of officer’s discretion was invalid). supervised release). Sager v. Maass, 84 F.3d 1212 (9th United States v. Brown, 402 F.3d 133 Cir. 1996) (Counsel was found *United States v. T. M., 330 F.3d (2d Cir. 2005) (Condition of incurring ineffective for not objecting to 1235 (9th Cir. 2003) (Events 20 debts only at probation officer’s inadmissible evidence). years earlier did not support discretion was invalid). conditions of supervised release). Glock v. Singletary, 84 F.3d 385 (11th Cir.), cert. denied, 519 U.S. United States v. Britt, 332 F.3d 1229 Ineffective 1044 (1996) (Counsel’s failure to (9th Cir. 2003) (Occupational discover and present mitigating restrictions during supervised release Assistance of evidence at the sentencing proceeding must be related to conviction). Counsel required an evidentiary hearing). *United States v. Russell, 340 F.3d United States v. McMullen, 86 F.3d 450 (7th Cir. 2003) (Court could not *Esslinger v. Davis, 44 F.3d 1515 (11th 135 (8th Cir. 1996) (Counsel’s bad 63 Errores Juris 2005 sentencing advice required remand). ineffective assistance of counsel). *United States v. Harfst, 168 F.3d 398 (10th Cir. 1999) (Failure to argue *United States v. Del Muro, 87 F.3d *Williamson v. Ward, 110 F.3d 1508 for downward role adjustment can be 1078 (9th Cir. 1996) (Prejudice was (10th Cir. 1997) (Failure to investigate ineffective assistance of counsel). presumed when trial counsel was the defendant’s mental illness was forced to prove his own ineffective assistance of counsel). Prou v. United States, 199 F.3d 37 ineffectiveness at a hearing). (1st Cir. 1999) (Counsel failed to *United States v. Gaviria, 116 F.3d 1498 attack timeliness of statutory drug *Baylor v. Estelle, 94 F.3d 1321 (9th (D.C. Cir.), cert. denied, 522 U.S. 1082 enhancement). Cir.), cert. denied, 520 U.S. 1151 (1997) (Counsel was ineffective for (1997) (Counsel was ineffective for giving incorrect sentencing information *United States v. Hall, 200 F.3d 962 failing to follow up on lab reports in contemplation of plea). (6th Cir. 2000) (Despite waiver, dual suggesting that the defendant was not representation denied effective the rapist). *United States v. Soto, 132 F.3d 56 assistance of counsel). (D.C. Cir. 1997) (Counsel was *Huynh v. King, 95 F.3d 1052 (11th ineffective for failing to urge downward *Combs v. Coyle, 205 F.3d 269 (6th Cir. 1996) (Lawyer’s failure to raise role adjustment). Cir.), cert. denied, 531 U.S. 1035 a suppression issue was grounds for (2000) (Counsel failed to object to remand). United States v. Taylor, 139 F.3d 924 post arrest statement, or to investigate (D.C. Cir. 1998) (Counsel was defense expert witness). *United States v. Baramdyka, 95 ineffective for failing to inform client of F.3d 840 (9th Cir.), cert. denied, 520 advice of counsel defense). *United States v. Patterson, 215 F.3d U.S. 1132 (1997) (Appeal waiver did 812 (8th Cir. 2000) (Absences of not bar a claim of ineffective *Smith v. Stewart, 140 F.3d 1263 (9th counsel during trial denied effective assistance of counsel). Cir.), cert. denied, 525 U.S. 929 (1998) assistance). (Failure to investigate mitigating *United States v. Glover, 97 F.3d evidence was ineffective). *Carter v. Bell, 218 F.3d 581 (6th 1345 (10th Cir. 1996) (Ineffective for Cir. 2000) (Failure to investigate counsel to fail to object to the higher *Tejeda v. Dubois, 142 F.3d 18 (1st Cir. mitigating evidence was ineffective methamphetamine range). 1998) (Counsel’s fear of trial judge assistance). hindered defense). *Martin v. Maxey, 98 F.3d 844 (5th United States v. Mannino, 212 F.3d Cir. 1996) (Failure to file a motion to United States v. Kliti, 156 F.3d 150 (2d 835 (3rd Cir. 2000) (Failing to raise suppress could be grounds for Cir. 1998) (Defense counsel who sentencing issue denied effective ineffectiveness claim). witnessed exculpatory statement had assistance). conflict). *Fern v. Gramley, 99 F.3d 255 (7th *United States v. McCoy, 215 F.3d Cir. 1996) (Prejudice could be *United States v. Moore, 159 F.3d 1154 102 (D.C. Cir. 2000) (But for presumed from an attorney’s failure (9th Cir. 1999) (Irreconcilable conflict counsel’s deficient performance, to file an appeal upon the defendant’s between defendant and lawyer). defendant would not have pled request). guilty). *United States v. Alvarez-Tautimez, 160 Griffin v. United States, 109 F.3d F.3d 573 (9th Cir. 1999) (Counsel *Washington v. Hofbauer, 228 F.3d 1217 (7th Cir. 1997) (Counsel’s ineffective for failing to withdraw plea 689 (6th Cir. 2000) (Counsel’s failure advice to dismiss appeal to file after co-defendant’s suppression motion to object to prosecutor’s misconduct motion to reduce a sentence was granted). was ineffective assistance). prima facie evidence of ineffective assistance of counsel). *United States v. Granados, 168 F.3d *Cossel v. Miller, 229 F.3d 649 (7th 343 (8th Cir. 1999) (Counsel was Cir. 2000) (Counsel was ineffective *United States v. Kauffman, 109 ineffective for unfamiliarity with for failing to object to suggestive in- F.3d 186 (3rd Cir. 1997) (Failure to guidelines and failure to challenge court identification). investigate insanity defense was breach of plea agreement). 64 Errores Juris 2005

*Lockett v. Anderson, 230 F.3d 695 can be ineffective assistance of counsel). Hooper v. Mullin, 314 F.3d 1162 (5th Cir. 2000) (Inadequate (10th Cir. 2002) (Counsel failed to mitigation investigation by defense). *Dixon v. Snyder, 266 F.3d 693 (7th develop psychological evidence at Cir. 2001) (Counsel misunderstood capital sentencing). Glover v. United States, 531 U.S. 198 admissibility of witness statements). (2000) (Counsel’s failure to object to *Catalan v. Cockrell, 315 F.3d 491 application of guidelines that Manning v. Huffman, 269 F.3d 720 (6th (5th Cir. 2002) (Failure to prepare for increased sentence was ineffective Cir. 2001) (Failure to object to trial and reliance on conflicted assistance). participation of deliberation by alternate counsel). jurors). *United States v. Davis, 239 F.3d *Hardwick v. Crosby, 320 F.3d 1127 283 (2d Cir. 2001) (Counsel was *Silva v. Woodford, 279 F.3d 825 (9th (11th Cir. 2003) (Counsel failed to ineffective by threatening to withhold Cir.), cert. denied, 537 U.S. 942 (2002) present mitigating evidence for young services to encourage plea). (Failure to investigate family history and substance abusing client). psychiatric background). *Betts v. Litscher, 241 F.3d 594 (7th Mitchell v. Mason, 325 F.3d 732 (6th Cir. 2001) (Counsel failed to perfect Eagle v. Linahan, 279 F.3d 926 (11th Cir. 2003) (Period of pretrial appeal). Cir. 2002) (Failure to appeal adverse investigation and consultation is a Batson ruling). critical stage of trial). Wanatee v. Ault, 259 F.3d 700 (8th Cir. 2001) (Counsel failed to advise Caro v. Woodford, 280 F.3d 1247 (9th Massaro v. United States, 538 U.S. client of affect of felony-murder Cir. 2002) (Failure to investigate brain 500 (2003) (A claim on direct appeal rule). damage and child abuse). is not a prerequisite to filing a petition claiming ineffective Glover v. Miro, 262 F.3d 268 (4th *Fisher v. Gibson, 282 F.3d 1283 (10th assistance of counsel). Cir. 2001) (Overworked attorney did Cir. 2002) (Counsel failed to adequately not spend enough time with client). argue against weak prosecution case). *United States v. Leonti, 326 F.3d 1111 (9th Cir. 2003) (Failing to assist *Burdine v. Johnson, 262 F.3d 336 Karis v. Calderon, 283 F.3d 1117 (9th client in cooperation with (5th Cir.), cert. denied, 535 U.S. Cir. 2002) (Inadequate mitigation government can be ineffective 1120 (2002) (Attorney slept through investigation). assistance of counsel). portions of trial). Haynes v. Cain, 298 F.3d 375 (5th Cir. Wiggins v. Smith, 539 U.S. 510 *Burns v. Gammon, 260 F.3d 892 2002) (Counsel conceded defendant’s (2003) (No reasonable investigation (8th Cir. 2001) (Failure to raise guilt on several counts over objection). of capital defendant’s social history objection to prosecutor’s misconduct by counsel). during closing argument). White v. Godinez, 301 F.3d 796 (7th Cir. 2002) (Counsel’s performance was United States v. Horey, 333 F.3d *Hunt v. Mitchell, 261 F.3d 575 (6th deficient when his lack of client contact 1185 (10th Cir. 2003) (Failure to Cir. 2001) (Defendant denied right to resulted in an incomplete investigation object to inapplicable career offense confer with new counsel ten minutes related to mitigation). enhancement was ineffective). before trial). *Brownlee v. Haley, 306 F.3d 1043 Joshua v. Dewitt, 341 F.3d 430 (6th *Magana v. Hofbauer, 263 F.3d 542 (11th Cir. 2002) (Failure to investigate Cir. 2003) (Failure to challenge (6th Cir. 2001) (Counsel mitigating circumstances in capital probable cause was ineffective misinformed defendant about effect case). assistance of counsel). of plea agreement). *Pirtle v. Morgan, 313 F.3d 1160 (9th *United States v. Leibach, 347 F.3d *Greer v. Mitchell, 264 F.3d 663 Cir.), cert. denied, 539 U.S. 916 (2003) 219 (7th Cir. 2003) (Counsel was (6th Cir.), cert. denied, 535 U.S. 940 (Counsel failed to request diminished ineffective for failing to investigate (2002) (Failure to allege capacity jury instruction). exculpatory evidence and not keeping ineffectiveness claim on direct appeal promises made in opening statement). 65 Errores Juris 2005

Moore v. Bryant, 348 F.3d 238 (7th Cir. 2003) (Counsel gave inaccurate advice to induce guilty plea).

United States v. Conley, 349 F.3d 837 (5th Cir. 2003) (Counsel failed to object to sentence above statutory maximum).

Lewis v. Johnson, 359 F.3d 646 (3d Cir. 2004) (Failure to tell defendant of right to appeal was ineffective assistance of counsel).

Reagan v. Norris, 365 F.3d 616 (8th Cir. 2004) (Ineffective assistance of counsel for failing to object to charge omitting essential element).

*Soffar v. Dretke, 368 F.3d 441 (5th Cir. 2004) (Defense counsel failed to interview exculpatory witness).

*United States v. Levy, 377 F.3d 259 (2d Cir. 2004) (Counsel’s overall performance was ineffective).

Miller v. Webb, 385 F.3d 666 (6th Cir. 2004) (Counsel was ineffective at jury selection).

Owens v. United States, 387 F.3d 607 (7th Cir. 2004) (Failure to move to suppress evidence was ineffective).

Richey v. Mitchell, 395 F.3d 660 (6th Cir. 2005) (Ineffective handling of government’s forensic expert).

Turner v. Bagley, 401 F.3d 718 (6th Cir. 2005) (Counsel’s actions caused loss of ability to appeal).

United States v. Jones, 403 F.3d 604 (8th Cir. 2005) (Counsel failed to challenge multiplicitous indictment).

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]