US v. Nieves-Castano, No. 06-1517 (1st Cir. March 27, 2007)
Conviction for possession of a machine gun is reversed and a verdict for defendant ordered where the prosecution's evidence was insufficient to establish the necessary mens era requirement. Conviction for possession of a firearm within a school zone is affirmed over defendant's argument that the statute is unconstitutionally void for vagueness under the Fifth Amendment's Due Process Clause because it fails to specify how to measure the 1000 foot distance from a school that marks the boundary of a school zone. The sentence is remanded for reconsideration in light of the reversal of the first charge.
http://laws.lp.findlaw.com/1st/061517.html
Wednesday, March 28, 2007
Sunday, March 25, 2007
government's confession of error.
US v. Latu (03/19/07 - No. 05-10815)
A conviction for two counts of illegal possession of a firearm is affirmed in part but reversed in part where: 1) 18 U.S.C. section 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case; but 2) a conviction for violating section 922(g)(5)(B) is reversed pursuant to the government's confession of error.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf
A conviction for two counts of illegal possession of a firearm is affirmed in part but reversed in part where: 1) 18 U.S.C. section 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case; but 2) a conviction for violating section 922(g)(5)(B) is reversed pursuant to the government's confession of error.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf
Saturday, March 24, 2007
Montana bound
Hell, I was waiting to hear from you. Everything same here....told my boss and landlord I was leaving next weekend so its set in stone short of severe weather...Gonna take the local bus as far west up the beach as it goes at Long Beach Miss, where I will continue the last ten miles of a 26 mile hike up the beach from Ocean Springs to Bay St Louis white sandy made made beach with what used to be antebellum homes where I now camp on their fron yard at will... the sun is brutal in the day time and you cant sleep right on the beach ceacuse of the sand mites but since the hurricane the water is pristine clean the only down side is that the water is so shallow you have to walk ut a half mile to get waist deep.. AAs pretty in the daylight as the night....espeially when the weather is nice which is most of the time...very little open so I have to pack my own water...
Kurt Vandervalk
Kurt Vandervalk
what happened to you, havent heard from you in a while. you must still be enjoying ther sun, i dont blame you. later kuurtOn 3/17/07, Paralegal Services <markamania2002@yahoo.com> wrote:small dark and quite to start preferably with a tv in the room ....
Id take either
big fan of natural light and quite
thanks for helping me
many people make the amateur mistake of attacking the people (the courts, the people detaining them, the police for arresting them, etc.), and detracts your focus from the merits of the case, I'll show you how to handle them civil servants and having them dancing like puppets with the one thing they understand.....paper work!!
In the mean time, plead for continuance, you need more time, you don't have the complete record, whatever, just stall them till I see what you got
Have you got a case # or caption? mark
Kurt Vandervalk <mtcabins@gmail.com> wrote:Markheres is a copy of the last letter i got from comp. How people can lie about things like that and keep there job is beond me? there so full of shit, i cant see why people like that even get hired. i still have some records to try to track down. the fund got my records from my by pass surgrey, witch they said in mediation that they would send me copies of and they still havent, makes me wonder what they dont want me to see. i am going to set up a computer for you to use, would you rather have it in a small room or living room. difference being veiw of town, bright and sunny or small dark room 1 window quite? your call. Kurt
Mark Anthony GivenParalegal Serviceshttp://winning-federal-criminal-cases.blogspot.com
http://dissentingopinions.blogspot.com
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http://ineffectiveassistanceofcounsel.blogspot.comMontana Winning Cases http://montana-winning-criminal-cases.blogspot.comWinning SSI Disability Cases - http://winningsssdisabilitycases.blogspot.comMark Given Photographs- http://markgivenphotographs.blogspot.comHelena, Montana
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testimony of an informant represented the only evidence against petitioner
Barajas v. Wise, No. 06-15494 (9th Cir. March 23, 2007)
Clearly established federal law requires the prosecution to provide reasons specific to the case in litigation if it declines to disclose the names and addresses of key witnesses. Grant of habeas relief in a drug-related case is affirmed where the testimony of an informant represented the only evidence against petitioner, and the state provided no reasons specific to the case for why it should not disclose the requested information.
http://caselaw.lp.findlaw.com/data2/circs/9th/0615494p.pdf
Clearly established federal law requires the prosecution to provide reasons specific to the case in litigation if it declines to disclose the names and addresses of key witnesses. Grant of habeas relief in a drug-related case is affirmed where the testimony of an informant represented the only evidence against petitioner, and the state provided no reasons specific to the case for why it should not disclose the requested information.
http://caselaw.lp.findlaw.com/data2/circs/9th/0615494p.pdf
Courts of appeal have jurisdiction under 18 U.S.C. section 3742 to review a sentence challenged as "unreasonable," even if it was imposed within a cor
US v. Trejo-Martinez, No. 05-6078 (6th Cir. March 23, 2007)
Courts of appeal have jurisdiction under 18 U.S.C. section 3742 to review a sentence challenged as "unreasonable," even if it was imposed within a correctly calculated guidelines range.
http://caselaw.lp.findlaw.com/data2/circs/6th/056078p.pdf
Courts of appeal have jurisdiction under 18 U.S.C. section 3742 to review a sentence challenged as "unreasonable," even if it was imposed within a correctly calculated guidelines range.
http://caselaw.lp.findlaw.com/data2/circs/6th/056078p.pdf
Friday, March 23, 2007
CRIMINAL LAW & PROCEDURE, ELECTIONS
US v. Tobin, No. 06-1883 (1st Cir. March 21, 2007)
In a criminal case against the former New England Regional Director of the Republican National Committee arising out of an operation on election day 2002 to flood telephone numbers belonging to the Democratic Party and its supporters with hang-up calls, conviction and sentence on charges of telephone harassment are reversed and remanded where a jury instruction inappropriately broadened the scope of the statute with its definition of "intent to harass." The case is remanded to the district court for development of the intent issue, since a reasonable jury could have convicted defendant on the evidence unless it found that the statute required an explicit "purpose" of harassment, rather than a mere knowledge that harassment was likely to occur.
http://laws.lp.findlaw.com/1st/061883.html
In a criminal case against the former New England Regional Director of the Republican National Committee arising out of an operation on election day 2002 to flood telephone numbers belonging to the Democratic Party and its supporters with hang-up calls, conviction and sentence on charges of telephone harassment are reversed and remanded where a jury instruction inappropriately broadened the scope of the statute with its definition of "intent to harass." The case is remanded to the district court for development of the intent issue, since a reasonable jury could have convicted defendant on the evidence unless it found that the statute required an explicit "purpose" of harassment, rather than a mere knowledge that harassment was likely to occur.
http://laws.lp.findlaw.com/1st/061883.html
COPA Ruled Unconstitutional
| COPA Ruled Unconstitutional |
CRIMINAL LAW & PROCEDURE, PER CURIAM, SENTENCING
CRIMINAL LAW & PROCEDURE, PER CURIAM, SENTENCING
US v. Leatch, No. 06-10526 (5th Cir. March 22, 2007)
In devising a sentencing range for a crack-related offense, a sentencing court may not deviate from the 100:1 crack-powder ratio reflected in the sentencing guidelines based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair.
http://caselaw.lp.findlaw.com/data2/circs/5th/0610526cr0p.pdf
US v. Leatch, No. 06-10526 (5th Cir. March 22, 2007)
In devising a sentencing range for a crack-related offense, a sentencing court may not deviate from the 100:1 crack-powder ratio reflected in the sentencing guidelines based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair.
http://caselaw.lp.findlaw.com/data2/circs/5th/0610526cr0p.pdf
Tuesday, March 20, 2007
Government's Confession of Error
US v. Latu, No. 05-10815 (9th Cir. March 19, 2007)
A conviction for two counts of illegal possession of a firearm is affirmed in part but reversed in part where: 1) 18 U.S.C. section 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case; but 2) a conviction for violating section 922(g)(5)(B) is reversed pursuant to the government's confession of error.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf
A conviction for two counts of illegal possession of a firearm is affirmed in part but reversed in part where: 1) 18 U.S.C. section 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case; but 2) a conviction for violating section 922(g)(5)(B) is reversed pursuant to the government's confession of error.
http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf
Monday, March 19, 2007
Reversible errors
United States v. Cruz, 127 F.3d 791 (9th Cir. 1997) (A defendant could not join a conspiracy that was already completed).
United States v. Farrell, 126 F.3d 484 (3d Cir. 1997) (Urging a witness to "take the fifth" was not witness tampering).
United States v. Bowen, 127 F.3d 9 (1st Cir. 1997) (Amendment defining hashish oil was applied ex post facto).
United States v. Stein, 127 F.3d 777 (9th Cir. 1997) (Upward departure based on more than minimal planning and multiple victims was unwarranted).
United States v. Otis, 127 F.3d 829 (9th Cir. 1997) (1. Evidence did not support management of CCE; 2. Duress instruction was omitted).
United States v. Allen, 127 F.3d 260 (2d Cir. 1997) (Insufficient evidence of extortionate credit).
United States v. Corrigan, 128 F.3d 330 (6th Cir. 1997) (Neither, number of victims, number of schemes, nor amount of loss, supported upward departure).
United States v. Rogers, 126 F.3d 655 (5th Cir. 1997) (An attempted drug crime did not support career offender enhancement).
United States v. Emerson, 128 F.3d 557 (7th Cir. 1997) (Money laundering and mail fraud should have been grouped).
United States v. Cross, 128 F.3d 145 (3d Cir. 1997) (Fixing cases was not mail fraud just because court mailed disposition notices).
United States v. Graham, 128 F.3d 372 (6th Cir. 1997) (An eight-year delay between indictment and trial violated the sixth amendment).
United States v. Monus 128 F.3d 380 (6th Cir. 1997) (A court did not adequately explain loss findings).
United States v. Wolff, 127 F.3d 84 (D.C. Cir. 1997) (Government's failure to argue for acceptance of responsibility breached agreement and required entire sentence to be reconsidered).
United States v. Rounsavall, 128 F.3d 665 (8th Cir. 1997) (Defendant was entitled to an evidentiary hearing to determine if the government's failure to move for a reduced sentence was irrational, in bad faith, or unconstitutionally motivated).
United States v. Alvarez, 127 F.3d 372 (5th Cir. 1997) (A warrant affidavit contained a false statement made in reckless disregard for the truth).
United States v. Johnston, 127 F.3d 380 (5th Cir. 1997) (A prosecutor commented on the defendant's failure to testify and asked questions highlighting defendant's silence).
United States v. Foster, 128 F.3d 949 (6th Cir. 1997) (Exculpatory grand jury testimony should have been admitted at trial).
United States v. LaBarbara, 129 F.3d 81 (2d Cir. 1997) (Government failed to show use of mails in a fraud case).
United States v. Glass, 128 F.3d 1398 (10th Cir. 1997) (The introduction of a co-defendant's incriminating statement violated Bruton).
United States v. Schroeder, 129 F.3d 439 (8th Cir. 1997) (A warrant did not authorize a search of adjoining property).
United States v. Hudson, 129 F.3d 994 (8th Cir. 1997) (A firearm enhancement was not proven).
United States v. Senn, 129 F.3d 886 (7th Cir. 1997) (Lying about minor details to grand jury was not obstruction).
United States v. Clark, 128 F.3d 122 (2d Cir. 1997) (Downward departure for a lesser harm was available in a felon in possession case).
United States v. Soto-Silva, 129 F.3d 340 (5th Cir. 1997) (Deliberate ignorance instruction was not warranted for charge of maintaining premises for drug distribution).
United States v. Soliz, 129 F.3d 499 (9th Cir. 1997) (Questioning should have stopped when defendant invoked right to silence).
United States v. Cain, 128 F.3d 1249 (8th Cir. 1997) (Sales made before defendant was hired were not relevant conduct toward fraud).
United States v. Patterson, 128 F.3d 1259 (8th Cir. 1997) (Failure to provide allocution at supervised release revocation was plain error).
United States v. Hunt, 129 F.3d 739 (5th Cir. 1997) (There was insufficient evidence of an intent to distribute).
United States v. Castro, 129 F.3d 752 (5th Cir. 1997) (Inventory search could not be used as ruse to investigate).
United States v. Word, 129 F.3d 1209 (11th Cir. 1997) (1. Lay testimony of abuse to defendant was admissible; 2. Fraud, before defendant joined conspiracy, was not relevant conduct).
In Re Grand Jury Investigation, 130 F.3d 853 (9th Cir. 1997) ( Search warrant was over broad).
United States v. Iribe-Perez, 129 F.3d 1167 (10th Cir. 1997) (Jury was told that the defendant would plead guilty before start of trial).
United States v. Norman, 129 F.3d 1393 (10th Cir. 1997) (1. Felon whose civil rights had been restored was not illegally in possession of firearm; 2. Concealing drugs at scene of crime was not obstruction).
United States v. Mayer, 130 F.3d 338 (8th Cir. 1997) (Restitution should not have been higher than the loss stipulated in the plea agreement).
United States v. Christo, 129 F.3d 578 (11th Cir. 1997) (A check kiting scheme was not money laundering).
United States v. Gilchrist, 130 F.3d 1131 (3d Cir. 1997) (A plea agreement was breached by imposing a higher term of supervised release).
United States v. Kuku, 129 F.3d 1435 (11th Cir. 1997) (A defendant retains his privilege against self-incrimination, through sentencing).
United States v. Dearies, 129 F.3d 1293 (D.C. Cir. 1997) (The court should have given an advice of counsel instruction on an embezzlement count).
United States v. Doyle, 130 F.3d 523 (2d Cir. 1997) (Erroneous instructions stated that presumption of innocence and reasonable doubt were to protect only the innocent).
United States v. Turner, 130 F.3d 815 (8th Cir. 1997) (Prosecution of count, identical to one previously dismissed, was barred).
United States v. Perez, 129 F.3d 1340 (9th Cir. 1997) (1. A firearm found near defendant was not used or carried; 2. Jury should have been required to decide the type of firearm).
United States v. Barracked, 130 F.3d 1448 (11th Cir. 1997) (1. Abuse of trust did not apply to a false tax return charge; 2. Enhancement for sophisticated means could not be based on acquitted conduct).
United States v. Borne, 130 F.3d 1444 (11th Cir. 1997) (Applying both brandishing weapon and threat of death enhancements was double counting).
United States v. Carter, 130 F.3d 1432 (10th Cir. 1997) (A requested instruction on venue should have been given).
United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997) (Gun possession convictions for the same firearm were multiplicious).
United States v. Davenport, 131 F.3d 604 (7th Cir. 1997) (A violation of a state civil provision was not covered by Assimilative Crimes Act).
Friday, March 16, 2007
possession of a firearm by a convicted felon are remanded as there is no evidence in the record from which a sound determination
US v. Green, No. 05-3830 (2d Cir. March 13, 2007)
Conviction and sentence based on guilty plea to possession of a firearm by a convicted felon are remanded as there is no evidence in the record from which a sound determination could be made as to whether defendant was convicted of a narcotics offense that involved an intent to distribute, which was required for the application of U.S.S.G. section 2K2.1(a)(4)(A).
http://caselaw.lp.findlaw.com/data2/circs/2nd/053830p.pdf
Conviction and sentence based on guilty plea to possession of a firearm by a convicted felon are remanded as there is no evidence in the record from which a sound determination could be made as to whether defendant was convicted of a narcotics offense that involved an intent to distribute, which was required for the application of U.S.S.G. section 2K2.1(a)(4)(A).
http://caselaw.lp.findlaw.com/data2/circs/2nd/053830p.pdf
Thursday, March 15, 2007
Conviction and sentence based on guilty plea to possession of a firearm by a convicted felon are remanded as there is no evidence
US v. Green, No. 05-3830 (2d Cir. March 13, 2007)
Conviction and sentence based on guilty plea to possession of a firearm by a convicted felon are remanded as there is no evidence in the record from which a sound determination could be made as to whether defendant was convicted of a narcotics offense that involved an intent to distribute, which was required for the application of U.S.S.G. section 2K2.1(a)(4)(A).
http://caselaw.lp.findlaw.com/data2/circs/2nd/053830p.pdf
Conviction and sentence based on guilty plea to possession of a firearm by a convicted felon are remanded as there is no evidence in the record from which a sound determination could be made as to whether defendant was convicted of a narcotics offense that involved an intent to distribute, which was required for the application of U.S.S.G. section 2K2.1(a)(4)(A).
http://caselaw.lp.findlaw.com/data2/circs/2nd/053830p.pdf
Conviction for a single delivery of crack cocaine is vacated
US v. Simpson, No. 05-2993 (7th Cir. March 13, 2007)
Conviction for a single delivery of crack cocaine is vacated and remanded for a new trial where portions of the prosecution's closing argument, and the evidence on which it was based, improperly appealed to defendant's propensity to deal in crack cocaine.
http://caselaw.lp.findlaw.com/data2/circs/7th/052993p.pdf
Conviction for a single delivery of crack cocaine is vacated and remanded for a new trial where portions of the prosecution's closing argument, and the evidence on which it was based, improperly appealed to defendant's propensity to deal in crack cocaine.
http://caselaw.lp.findlaw.com/data2/circs/7th/052993p.pdf
Tuesday, March 13, 2007
district court's failure to find a "clear connection" between the firearm
US v. Howse, No. 06-5017 (6th Cir. March 06, 2007)
A sentence for being a felon in possession of a firearm is vacated where the district court's failure to find a "clear connection" between the firearm used in the charged offense and a firearm used in the enhancement offense indicated that an enhancement pursuant to U.S.S.G. section 2K2.1(b)(5) may have been improperly imposed.
http://caselaw.lp.findlaw.com/data2/circs/6th/065017p.pdf
A sentence for being a felon in possession of a firearm is vacated where the district court's failure to find a "clear connection" between the firearm used in the charged offense and a firearm used in the enhancement offense indicated that an enhancement pursuant to U.S.S.G. section 2K2.1(b)(5) may have been improperly imposed.
http://caselaw.lp.findlaw.com/data2/circs/6th/065017p.pdf
Sentence for wire fraud and money laundering offenses is vacated
US v. Muhammad, No. 06-4516 (4th Cir. March 06, 2007)
Sentence for wire fraud and money laundering offenses is vacated as the district court plainly erred by denying defendant the opportunity to allocute at his resentencing hearing.
http://caselaw.lp.findlaw.com/data2/circs/4th/064516p.pdf
Sentence for wire fraud and money laundering offenses is vacated as the district court plainly erred by denying defendant the opportunity to allocute at his resentencing hearing.
http://caselaw.lp.findlaw.com/data2/circs/4th/064516p.pdf
district court's statement of reasons for the length of the sentence are not sufficiently compelling
US v. Sindima, No. 06-2245 (2d Cir. March 05, 2007)
Probation and prison sentence for mail fraud is remanded as the district court's statement of reasons for the length of the sentence are not sufficiently compelling and present to the degree necessary to support the sentence imposed.
http://caselaw.lp.findlaw.com/data2/circs/2nd/062245p.pdf
Probation and prison sentence for mail fraud is remanded as the district court's statement of reasons for the length of the sentence are not sufficiently compelling and present to the degree necessary to support the sentence imposed.
http://caselaw.lp.findlaw.com/data2/circs/2nd/062245p.pdf
Monday, March 12, 2007
In a parolee search case, denial of a motion to suppress evidence resulting in a plea to being a felon in possession of a firearm is reversed where:
US v. Freeman, No. 05-3437 (10th Cir. March 08, 2007)
In a parolee search case, denial of a motion to suppress evidence resulting in a plea to being a felon in possession of a firearm is reversed where: 1) the search at issue was not valid without reasonable suspicion; 2) under the totality of the circumstances, officers did not have a reasonable suspicion to search defendant's home without consent, without the presence of a parole officer, and in violation of Kansas Department of Corrections rules governing parolee searches; and 3) the search could not be upheld as a protective sweep.
http://laws.lp.findlaw.com/10th/053437.html
In a parolee search case, denial of a motion to suppress evidence resulting in a plea to being a felon in possession of a firearm is reversed where: 1) the search at issue was not valid without reasonable suspicion; 2) under the totality of the circumstances, officers did not have a reasonable suspicion to search defendant's home without consent, without the presence of a parole officer, and in violation of Kansas Department of Corrections rules governing parolee searches; and 3) the search could not be upheld as a protective sweep.
http://laws.lp.findlaw.com/10th/053437.html
Saturday, March 03, 2007
wiretap used in the government's case
US v. Rice, No. 06-5245 (6th Cir. March 02, 2007)
Orders suppressing the fruits of a wiretap used in the government's case against defendants for drug-related offenses, and denying a motion for reconsideration, are affirmed where: 1) the district court did not err in suppressing the fruits of the wiretap; and 2) there is no good-faith exception for warrants improperly issued under Title III of the Omnibus Crime Control and Safe Streets Act. http://caselaw.lp.findlaw.com/data2/circs/6th/065245p.pdf
Orders suppressing the fruits of a wiretap used in the government's case against defendants for drug-related offenses, and denying a motion for reconsideration, are affirmed where: 1) the district court did not err in suppressing the fruits of the wiretap; and 2) there is no good-faith exception for warrants improperly issued under Title III of the Omnibus Crime Control and Safe Streets Act. http://caselaw.lp.findlaw.com/data2/circs/6th/065245p.pdf
Wrong drug quantity
US v. Sells, No. 04-7061, 04-7072 (10th Cir. March 01, 2007)
Defendants' convictions and sentences for drug- and firearm- related offenses arising from their participation in a methamphetamine manufacturing and distribution operation are affirmed as to one defendant, but other defendant's sentence is reversed and remanded where: 1)the district court committed Booker error which was not harmless; and 2) a determination as to the drug-quantity attributable to defendant was insufficiently particularized.http://laws.lp.findlaw.com/10th/047061.html
Thursday, March 01, 2007
likely future deportation
US v. Wills, No. 06-0115 (2d Cir. February 26, 2007)
Sentence imposed based on conviction of cocaine and crack-related crimes is vacated as the district court did not properly apply the statutory factors listed in 18 U.S.C. section 3553(a) when it considered defendant's likely future deportation under the need to protect the public, or the extent of the difference between defendant's sentence and his co-defendant's. http://caselaw.lp.findlaw.com/data2/circs/2nd/060115p.pdf
Sentence imposed based on conviction of cocaine and crack-related crimes is vacated as the district court did not properly apply the statutory factors listed in 18 U.S.C. section 3553(a) when it considered defendant's likely future deportation under the need to protect the public, or the extent of the difference between defendant's sentence and his co-defendant's. http://caselaw.lp.findlaw.com/data2/circs/2nd/060115p.pdf
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