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The BACK BENCHER

Central District of Illinois Federal DefendersVol. No. 28 Reversible Error 2002

DEFENDER’S MESSAGEI am pleased to present you with another“Reversible Error” Special Edition of The BackBencher. Alex Bunin, the Federal Defender for theNorthern District of New York and Vermont, hascompiled cases from every federal circuit findingreversible error since 1995, and he has generouslyshared his work with us, which we now pass on toyou. His compilation will undoubtedly be of use toyou when defending your clients both in the districtcourt and on appeal.

Also useful to you in your practice will be ourupcoming panel attorney seminar open to all panelattorneys. With the cooperation of JudgeMcCuskey, the seminar will be held in the UrbanaDivision at the federal courthouse on May 9, 2002,at 3:00 pm. The program will last approximatelytwo and one-half hours, with a social gatheringafterward at a place to be determined.

Dean Strang, the Federal Defender for the EasternDistrict of Wisconsin in Milwaukee, will addressthe critical topic of Motions Practice in FederalCourt; George Taseff, Senior Litigator, will addressthe topic of New Tools of the Trade for EffectiveFederal Advocacy; and Jonathan Hawley, AppellateDivision Chief, will give an Update on RecentSeventh Circuit and Supreme Court Opinions. Additionally, a great deal of written materials inboth hard copy and CD will also be available at nocost to you.

As you know, federal criminal defense practice is achallenging and complex area of the law. Periodictraining and communication with fellowpractitioners is essential to providing quality

representation to our clients. It is hoped that

attorneys from all divisions will attend, butespecially those in the Urbana Division. Please make every effort to attend the seminar and takeadvantage of the opportunity to not only benefitfrom the topics addressed, but also enjoy meetingand conversing with other CJA panel attorneys inyour division.

Please notify the Peoria office if you plan to attendby May 2, 2002. You may do so by mail or phone. The Peoria office is located at 401 Main Street,Suite 1500, Peoria, IL 61602, and the telephonenumber is (309) 671-7891.

We hope to see you there.

Yours very truly,

Richard H. ParsonsFederal Public DefenderCentral District of Illinois

Table Of ContentsChurchilliana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Dictum Du Jour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Welcome Aboard . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Reversible Error Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Arrests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Search of Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Search of Private Vehicles . . . . . . . . . . . . . . . . . . . . . 9Search of Commercial Vehicles . . . . . . . . . . . . . . . . 10Search of Packages . . . . . . . . . . . . . . . . . . . . . . . . . . 10Search of Private Property . . . . . . . . . . . . . . . . . . . . . . . .11Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

P 2 Reversible Error 2002 The BACK BENCHER

Knock and Announce . . . . . . . . . . . . . . . . . . . . . . . . 12Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Limitation of Actions . . . . . . . . . . . . . . . . . . . . . . . . 13Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Pretrial Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Severance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Competency / Sanity . . . . . . . . . . . . . . . . . . . . . . . . . 14Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Jeopardy / Estoppel . . . . . . . . . . . . . . . . . . . . . . . . . . 15Plea Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Guilty Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Timely Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . 18Jury Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Closure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Confrontation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Impeachment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Co-Defendant’s Statements . . . . . . . . . . . . . . . . . . . . 21Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Extraneous Evidence . . . . . . . . . . . . . . . . . . . . . . . . . 22Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Expert Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Deliberations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Speech / Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . 26Interstate Commerce . . . . . . . . . . . . . . . . . . . . . . . . . 26Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27Firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Extortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29Drugs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29CCE / RICO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Fraud / Theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31Money Laundering . . . . . . . . . . . . . . . . . . . . . . . . . . 33Aiding and Abetting . . . . . . . . . . . . . . . . . . . . . . . . . 33Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34False Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35Pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35Violent Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35Assimilative Crimes . . . . . . . . . . . . . . . . . . . . . . . . . 36Miscellaneous Crimes . . . . . . . . . . . . . . . . . . . . . . . . 36Juveniles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36Sentencing - General . . . . . . . . . . . . . . . . . . . . . . . . . 37Grouping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38Consecutive/Concurrent . . . . . . . . . . . . . . . . . . . . . . 39Retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39Sentencing - Marijuana . . . . . . . . . . . . . . . . . . . . . . . 39Sentencing - Meth . . . . . . . . . . . . . . . . . . . . . . . . . . . 40Sentencing - Heroin . . . . . . . . . . . . . . . . . . . . . . . . . 40Sentencing - Cocaine . . . . . . . . . . . . . . . . . . . . . . . . 40Sentencing - Crack . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Sentencing - Firearms . . . . . . . . . . . . . . . . . . . . . . . . 42Sentencing - Money Laundering . . . . . . . . . . . . . . . . 42Sentencing - Pornography . . . . . . . . . . . . . . . . . . . . . 43Sentencing - Fraud / Theft . . . . . . . . . . . . . . . . . . . . 43Enhancements - General . . . . . . . . . . . . . . . . . . . . . . 44Enhancements - Drug Crimes . . . . . . . . . . . . . . . . . . 44Enhancements - Violence . . . . . . . . . . . . . . . . . . . . . 45Enhancements - Immigration . . . . . . . . . . . . . . . . . . 46Career Enhancements . . . . . . . . . . . . . . . . . . . . . . . . 46Cross References . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47Abuse of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48Obstruction of Justice . . . . . . . . . . . . . . . . . . . . . . . . 48Vulnerable Victim . . . . . . . . . . . . . . . . . . . . . . . . . . . 49Aggravating Role . . . . . . . . . . . . . . . . . . . . . . . . . . . 49Mitigating Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50Acceptance of Responsibility . . . . . . . . . . . . . . . . . . 50Safety Valve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51Criminal History . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51Upward Departures . . . . . . . . . . . . . . . . . . . . . . . . . . 52Downward Departures . . . . . . . . . . . . . . . . . . . . . . . 53Fines / Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 54Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Resentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Supervised Release / Probation . . . . . . . . . . . . . . . . . 57Ineffective Assistance of Counsel . . . . . . . . . . . . . . . 57

CHURCHILLIANAIn 1944, Churchill made a Christmas visit to

Athens. In Athens, the Prime Minister met GeneralAlexander. He asked Alexander what kind of a man wasDamaskenos, the Orthodox Archbishop of Greece.

“Is he one of those priestly ascetics concerned onlywith spiritual grace or one of those crafty prelatesconcerned rather with temporal gain?

“Regrettably,” replied Macmillan, “the archbishopseems to be one of the latter.”

“Good,” replied Churchill, rubbing his hands.“Then he is just our man.”


Dictum Du JourAs warm bread is sliced by

a gleaming knifeMay sunlight cut through

the harsh winter coldMay God’s love shine

brightly in your common lifeAnd may your own romance

be never oldMay hope increase with

each lengthening dayAnd rout the ache of hurt

and conflict’s gloomMay loyal friends never be

far awayWith the promise that spring

will surely bloomMay our good God of songs

round the fireplaceOf love and laughter, of

good wine and funLurk always in your home’s

hidden spaceAnd bind you in love when

each day is doneAnd may God bless you and

keep you closeFather, Son, and Holy Spirit

~ Old Irish Proverb

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In large measure, the Framers wereinfluenced by Charles de Secondat,baron de Montesquieu, an astutestudent of history and politics in hisown right, who, in his seminal workThe Spirit of the Laws, said:

“ D e m o c r a t i c a n daristocratic states are not in theirown nature free. Political liberty isto be found only in moderategovernments; and even in these it isnot always found. It is there onlywhen there is no abuse of power:but constant experience shows usthat every man invested with poweris apt to abuse it, and to carry hisauthority as far as it will go. Is itnot strange, though true, to say thatvirtue itself has need of limits?

To prevent this abuse, it isnecessary from the very nature ofthings, power should be a check topower.”

This case provides us with atextbook example of the abuse ofexecutive power contemplated byMontesquieu, Lord Acton, and theFramers of our Constitution. Ratherthan adhere to the clear letter of thelaw, which itself is the ultimatecheck against arrogation of power,the prosecutor apparen t lydeliberately withheld from the trialcourt and from the jury admissibleevidence that would cause any fair-minded person to have gravereservations about the credibility ofa key government witness.

- Benn v. Lambert,2__ F.3d ___, 2002 U.S. App.LEXIS 2899, *58-*59 (9th Cir. Feb.26, 2002) (Trott, J., concurring).

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“As the district court aptly observed,“While it may have been incrediblystupid and short-sighted for[McCoy] to have offered hisopinions and experiences to a groupof teen-aged gangster wanna-be’s,the Constitution protects even stupidspeech.”

- McCoy v. Stewart,2__ F.3d ___, 2002 U.S. App.LEXIS 2900, *13 (9th Cir. Feb. 26,2002).

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“More generally, based on severalprinciples that are fundamental tothe right to the assistance ofcounsel, we cannot conclude thatjust because defendant has notadvanced a theory of innocence heipso facto was afforded effectiveassistance of counsel. First,constitutional due process requiresthat a criminal defendant’s guilt beproved beyond a reasonable doubt.‘It is the duty of the Government toestablish . . . guilt beyond a

reasonable doubt. This notion isbasic in our law and rightly one ofthe boasts of a free society - is arequirement and a safeguard of dueprocess of law in the historic,procedural content of ‘dueprocess’”. In re Winship, 397 U.S.358, 362 (1970) (quoting dissent inLeland v. Oregon, 343 U.S. 790,802-03 (1952)). Second, the right tocounsel does not require a showingof actual innocence. Kimmelman,477 U.S. at 380. Third, the SixthAmendment commands that evenwhere there is no defense theoryavailable, counsel still has a duty tohold the state to it’s “heavy burden”to prove guilt beyond reasonabledoubt. Cronic, 466 U.S. at 657 n.19.

These principles togetherrequire that we not limit ineffectiveassistance to only those claimswhere defendant can demonstratehis innocence. Because the right tocounsel safeguards the right to a fairtrial, and because a fair trial requiresthat a defendant’s guilt be provenbeyond a reasonable doubt, the rightto effective assistance of counselextends to those cases in which welack confidence that the jury wouldhave been convinced of adefendant’s guilt beyond areasonable doubt had he beenafforded adequate counsel.Strickland, 466 U.S. at 694. Thiscourt’s task is not to determine adefendant’s guilt or innocence but todetermine, with all due deference tothe jury and the trial process itself,whether defendant was deprived ofa fair trial.”

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Although prepared for martyrdom, Ipreferred that it be postponed.

- Winston Churchill

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It is fun being in the same decadewith you.

- Franklin Delano Roosevelt (in aletter to Churchill, 1942)

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I had the story, bit by bit, fromvarious people, and, as generallyhappens in such cases, each time itwas a different story.

- Edith Wharton, Ethan Frome(opening line)(1911)

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Get your facts first, then you candistort them as you please.

- Mark Twain

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My divorce came as a completesurprise to me. That will happenwhen you haven’t been home ineighteen years.

- Lee Trevino

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Glory is fleeting, but obscurity isforever.

- Napoleon Bonaparte

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This court’s Settlement ConferenceOffice invited the parties to try toresolve their differences, and at ameeting hosted by one of oursettlement attorneys the partiesreached an oral agreement.Unfortunately, they do not agree onthe contents of this agreement ....

- Herrnreiter v. ChicagoHousing Authority, slip op. (7th Cir2/13/2002).

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The Microsoft/Netscape ... brouhahais the sort of battle one thinks aboutwhen considering lawsuits underfederal antitrust laws. One does notordinarily conjure up the same sortof images when thinking about twolittle retail stores in suburbanChicago duking it out over bluejeans and T-shirts.

- 42nd Parallel North v. E. StreetDenim Co., slip op. (7th Cir2/13/2002).

The following are contributed byour good friend Dale Cobb, thenoted criminal defense lawyer, bonvivant, raconteur, boulevardier andlawyer extraordinaire.

Top 8 Idiots of 2001From Kristol

Idiot #1

I am a medical student currentlydoing a rotation in toxicology at thepoison control center. Today, thiswoman called in very upset becauseshe caught her little daughter eatingants. I quickly reassured her that theants are not harmful and there wouldbe no need to bring her daughterinto the hospital. She calmed down,and at the end of the conversationhappened to mention that she gaveher daughter some ant poison to eatin order to kill the ants. I told herthat she better bring her daughterinto the emergency room rightaway.Here’s your sign lady. Wear it withpride.

Idiot #2

Seems that a year ago, some Boeingemployees on the airfield decided tosteal a life raft from one of the 747s.They were successful in getting itout of the plane and home. Whenthey took it for a float on the river, aCoast Guard helicopter comingtowards them surprised them. It

turned out that the chopper washoming in on the emergency locatorbeacon that activated when the raftwas inflated. They are no longeremployed at Boeing.

Here’s your sign guys. Don’t get itwet, the paint might run.

Idiot #3

A true story out of San Francisco:

A man, wanting to rob a downtownBank of America walked into thebranch and wrote “this is a stikkup.Put all your muny in this bag.”While standing in line, waiting togive his note to the teller, he beganto worry that someone had seen himwrite the note and might call thepolice before he reached the teller’swindow. So he left the Bank ofAmerica and crossed the street toWells Fargo. After waiting a fewminutes in line, he handed his noteto the Wells Fargo teller. She readit and, surmising from his spellingerrors that he wasn’t the brightestlight in the harbor, told him that shecould not accept his stickup notebecause it was written on a Bank ofAmerica deposit slip and that hewould either have to fill out a WellsFargo deposit slip or go back toBank of America. Lookingsomewhat defeated, the man said,“OK” and left. He was arrested afew minutes later, as he was waitingin line back at Bank of America.

Don’t bother with the guy’s sign.He probably couldn’t read itanyway.

Idiot #4

A motorist was unknowingly caughtin an automated speed trap thatmeasured his speed using radar andphotographed his car. He laterreceived in the mail a ticket for $40and a photo of his car. Instead ofpayment, he sent the policedepartment a photograph of $40.Several days later, he received a


letter from the police that containedanother picture, this time ofhandcuffs. He immediately mailedin his $40.

Another sign (though this guy mightbe onto something worth thinkingabout!)

Idiot #5

Guy walked into a little corner storewith a shotgun and demanded all thecash from the cash drawer. Afterthe cashier put the cash in a bag, therobber saw a bottle of scotch that hewanted behind the counter on theshelf. He told the cashier to put it inthe bag as well, but the cashierrefused and said, “Because I don’tbelieve you are over 21.” Therobber said he was, but the clerk stillrefused to give it to him because hedidn’t believe him. At this point therobber took his driver’s licence outof his wallet and the man was in factover 21 and he put the scotch in thebag. The robber then ran from thestore with his loot. The cashierpromptly called the police and gavethe name and address of the robberthat he got off the license. Theyarrested the robber two hours later.

Remind me to have more signsprinted up. Give this guy his!

Idiot #6

A pair of Michigan robbers entereda record shop nervously wavingrevolvers. The first one shouted,“Nobody move!” When his partnermoved, the startled first bandit shothim.

This guy doesn’t need a sign. Heprobably figured it out himself.

Idiot #7

Arkansas: Seems this guy wantedsome beer pretty badly. He decidedthat he’d just throw a cinder blockthrough a liquor store window, grab

some booze, and run. So he liftedthe cinder block and heaved it overhis head at the window. The cinderblock bounced back and hit thewould-be thief on the head,knocking him unconscious. Seemsthe liquor store window was madeof Plexiglass. The whole event wascaught on video tape.

Oh, that smarts. Give him his sign!

Idiot #8

Ann Arbor: The Ann Arbor Newscrime column reported that a manwalked into a Burger King inYpsilanti, Michigan at 12:50 a.m.,flashed a gun and demanded cash.The clerk turned him down becausehe said he couldn’t open the cashregister without a food order. Whenthe man ordered onion rings, theclerk said they weren’t available forbreakfast. The man, frustrated,walked away.

Please note that these people areallowed to vote AND BREED!

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These are actual test answers fromvarious schools: Q: Name the four seasons. A: Salt, pepper, mustard, andvinegar. Q: Explain one of the processes bywhich water can be made safe todrink. A: Flirtation makes water safe todrink because it removes largepollutants like grit, sand, dead sheepand canoeists. Q: How is dew formed? A: The sun shines down on the

leaves and makes them perspire. Q: What is a planet? A: A body of earth surrounded bysky. Q: What guarantees may a mortgagecompany insist on? A: If you are buying a house, theywill insist you are well endowed. Q: What are steroids? A: Things for keeping carpets stillon the stairs. Q: What happens to your body asyou age? A: When you get old, so do yourbowels and you get intercontinental. Q: What happens to a boy when hereaches puberty? A: He says good-bye to his boyhoodand looks forward to his adultery. Q: Name a major disease associatedwith cigarettes. A: Premature death. Q: How can you delay milk turningsour? A: Keep it in the cow.

Q: How are the main parts of thebody categorized? (e.g., abdomen).A: The body is consisted into threeparts -- the brainium, the borax andthe abdominal cavity. The brainiumcontains the brain, the boraxcontains the heart and lungs, and theabdominal cavity contains the fivebowels, A, E, I, O, and U. Q: What is the Fibula? A: A small lie. Q: What does "varicose" mean? A: Nearby.

Q: Give the meaning of the term"Caesarian Section." A: The caesarian section is a districtin Rome.


Q: What is a seizure? A: A Roman emperor. Q: What is a terminal illness? A: When you are sick at the airport. Q: Give an example of a fungus.What is a characteristic feature? A: Mushrooms. They always growin damp places and so they look likeumbrellas. Q: Use the word "judicious" in asentence to show you understand itsmeaning. A: Hands that judicious can be softas your face. Q: What does the word "benign"mean? A: Benign is what you will be afteryou be eight. Q: What is a turbine? A: Something an Arab wears on hishead. Q: What is a Hindu? A: It lays eggs.

WELCOME ABOARD

We would like to extend a warmwelcome to our newest teammember, Assistant Federal PublicDefender Robert A. Alvarado. Robcomes to our office with over 18years of experience as a criminaltrial attorney. After graduating fromthe University of Illinois LawSchool, Rob worked for five yearsas a Cook County Assistant State’sAttorney, where he worked in boththe appeals and the felony trialdivision. During this time, heauthored training materials for trialattorneys which are still in use bythat office today. He then workedfor eight years as the First AssistantState’s Attorney for LaSalle County.

For the past five years, he has beenin private practice defending thecitizen accused in state and federalcases of all types, and he was amember of our CJA panel in theCentral District of Illinois untilaccepting a position with our office.

Included among the hundreds ofcases with which Rob has beeninvolved over the last 18 years are adozen first degree murder jury trials,including two capital cases. He hasalso made numerous argumentsbefore the intermediate appellatecourts in Illinois and has arguedbefore the Illinois Supreme Court ontwo occasions. While a prosecutor,he was involved with the IllinoisState Police Drug InterdictionProgram in the early 1990s,litigating cases involving some ofthe largest cocaine and marijuanaseizures in Illinois history.

Rob’s broad experience as both aprosecutor and a defender willundoubtedly be of great value to ouroffice and the clients we represent.We are glad that Rob has agreed toput his talents and experience towork for the indigent citizen-accused, and we look forward toworking with him.

Reversible Errors:2001 Edition

The following is a project of theOffice of the Federal PublicDefender for the Districts ofNorthern New York & Vermont.The cases listed are those in which acriminal defendant received relieffrom an United States Court ofAppeals or the United StatesSupreme Court. The precedentswere reviewed shortly before thispublication was released to assurethey had not be overruled.

The purpose of this project is to tryto give CJA Panel Attorneys ashortcut to case law that favor their

clients. The editor does not promisethat cases are precedent in alljurisdictions. If a case is precededby an asterisk (*), that means thecase may have been distinguishedby another panel of that circuit or byanother circuit. It should beresearched to see if it is authority inyour jurisdiction.

* * * * * * * * * *

Release*United States v. Goosens, 84 F.3d697 (4th Cir. 1996) (Prohibiting adefendant from active cooperationwith the police was an abuse ofdiscretion).

United States v. Porotsky, 105F.3d 69 (2d Cir. 1997) (Courtdenied travel request based onconclusions made by probation).

United States v. Swanquist, 125F.3d 573 (7th Cir. 1997) (Courtfailed to give reasons for denyingrelease on appeal).

United States v. Fisher, 137 F.3d1158 (9th Cir. 1998) (Defendant didnot fail to appear for trial that hadbeen continued).

United States v. Baker, 155 F.3d392 (4th Cir. 1998) (Cannot putconditions of release on personacquitted by reason of insanity whois not a danger).

CounselUnited States v. Cash, 47 F.3d1083 (11th Cir. 1995) (Defendantcould not waive counsel withoutproper findings by court).

United States v. McKinley, 58 F.3d1475 (10th Cir. 1995) (Courti m p r o p e r l y d e n i e d s e l f -representation).

United States v. McDermott, 64F.3d 1448 (10th Cir.), cert. denied,


516 U.S. 1121 (1996) (Barringdefendant from sidebars with stand-by co u n se l den ied se l f -representation).

*United States v. Goldberg, 67F.3d 1092 (3rd Cir. 1995)(Defendant did not forfeit counselby threatening his appointedattorney).

United States v. Duarte-Higareda,68 F.3d 369 (9th Cir. 1995) (Courtfailed to appoint counsel forevidentiary hearing).

Delguidice v. Singletary, 84 F.3d1 3 5 9 ( 1 1 t h C i r . 1 9 9 6 )(Psychological testing of adefendant without notice to counselviolated the Sixth Amendment).

Williams v. Turpin, 87 F.3d 1204(11th Cir. 1996) (State that createda statutory right to a motion for newtrial must afford counsel and anevidentiary hearing).

United States v. Ming He, 94 F.3d782 (2d Cir. 1996) (Cooperatingdefendant had the right to havecounsel present when attending apresentence debriefing).

Weeks v. Jones, 100 F.3d 124 (11thCir. 1996) (Right to counsel in ahabeas claim did not turn on themerits of the petition).

United States v. Keen, 104 F.3d1111 (9th Cir. 1996) (Court did notsufficiently explain to a defendantt h e d a n g e r s o f p r o s erepresentation).

*Carlo v. Chino, 105 F.3d 493 (9thCir. 1997) (State statutory right topost-booking phone calls wasprotected by federal due process).

United States v. Amlani, 111 F.3d705 (9th Cir. 1997) (Prosecutor’srepeated disparagement of anattorney in front of his client, deniedthe defendant his right to chosencounsel).

United States v. Taylor, 113 F.3d1136 (10th Cir. 1997) (Court did notassure a proper waiver of counsel).

Blankenship v. Johnson, 118 F.3d312 (5th Cir. 1997) (When theprosecution sought discretionaryreview, the defendant had a right tocounsel).

*United States v. Mills, 138 F.3d928 (11th Cir.), modified, 152 F.3d937, cert. denied, 525 U.S. 1003(1998) (Defendant could not bemade to share codefendant counsel’scross-examination of governmentwitness).

United States v. Pollani, 146 F.3d269 (5th Cir. 1998) (Pro sedefendant’s late request for counselshould have been honored).

Henderson v. Frank, 155 F.3d 159(3rd Cir. 1998) (Defendant wasdenied counsel at suppressionhearing).

United States v. Klat, 156 F.3d1258 (D.C. Cir. 1999) (Counsel wasrequired at competency hearing).

*United States v. Iasiello, 166 F.3d212 (3rd Cir. 1999) (Indigentdefendant had right to appointedcounsel at hearing).

United States v. Proctor, 166 F.3d396 (1st Cir. 1999) (Ambiguousrequest for counsel tainted previouswaiver).

United States v. Leon-Delfis, 203F.3d 103 (1st Cir. 2000)(Questioning after polygraphviolated defendant’s right tocounsel).

*United States v. Hernandez, 203F.3d 614 (9th Cir. 2000) (Defendantwas denied self-representation atplea).

Roney v. United States, 205 F.3d1061 (8th Cir. 2000) (Petitioner wasentitled to counsel on a motion tovacate sentence).

*United States v. Russell, 205 F.3d768 (5th Cir. 2000) (Absence oflawyer due to illness did not waiveright to counsel).

United States v. Hayes, 231 F.3d1132 (9th Cir. 2000) (Defendant didn o t v o l u n t a r i l y w a i v erepresentation).

Buhl v. Cooksey, 233 F.3d 783 (3rd2000) (Defendant did notvoluntarily waive counsel at trial).

United States v. Boone, 245 F.3d352 (4th Cir. 2001) (Two attorneysmust be appointed for defendantfacing death-eligible crime).

Fisher v. Roe, 263 F.3d 906 (9thCir. 2001) (Defendant had right tocounsel during reading oftestimony).

United States v. Davis, 269 F.3d514 (5th Cir. 2001) (Judge mustwarn defendant of effects of hybridcounsel).

DiscoveryUnited States v. Alzate, 47 F.3d1103 (11th Cir. 1995) (A prosecutorwithheld exculpatory evidence).

United States v. Barnes, 49 F.3d1144 (6th Cir. 1995) (Request fordiscovery of extraneous evidencecreated a continuing duty todisclose).

*United States v. Boyd , 55 F.3d239 (7th Cir. 1995) (Governmentfailed to disclose drug use and drugdealing by prisoner-witnesses).

*United States v. Hanna, 55 F.3d1456 (9th Cir. 1995) (Prosecutorshould have learned of Bradymaterial even if it was not in herpossession).

Kyles v. Whitley, 514 U.S. 419(1995) (Prosecution failed to turnover material and favorableevidence, sufficient to change result


of case).

United States v. Wood, 57 F.3d733 (9th Cir. 1995) (Governmentfailed to disclose favorable FDAmaterials).

United States v. Camargo-Vergara, 57 F.3d 993 (11th Cir.1995) (Government failed todisclose defendant’s post-arreststatement).

In Re Grand Jury Investigation,59 F.3d 17 (2d Cir. 1995) (Courtproperly required disclosure ofdocuments subpoenaed by the grandjury).

United States v. O’Conner, 64F.3d 355 (8th Cir.), cert. denied, 517U.S. 1174 (1996) (Evidence ofgovernment witness threats andcollaboration were not disclosed).

In Re Grand Jury, 111 F.3d 1083(3rd Cir. 1997) (Government couldnot seek disclosure of phoneconversations that were illegallyrecorded by a third party).

United States v. Arnold, 117 F.3d1308 (11th Cir. 1997) (Prosecutorwithheld exculpatory tapes ofgovernment witnesses).

*United States v. Vozzella, 124F.3d 389 (2d Cir. 1997) (Evidenceof perjured testimony should havebeen disclosed).

United States v. Fernandez, 136F.3d 1434 (11th Cir. 1998) (Courtmust hold hearing when defendantmakes showing of a Bradyviolation).

United States v. Mejia-Mesa, 153F.3d 925 (9th Cir. 1998) (Bradyclaim required hearing).

United States v. Scheer, 168 F.3d445 (11th Cir. 1999) (Governmentfailed to disclose it had intimidatedkey prosecution witness).

United States v. Ramos, 179 F.3d

1333 (11th Cir. 1999) (Defendantwas denied opportunity to deposewitness who was outside country).

*United States v. Riley, 189 F.3d802 (9th Cir. 1999) (Intentionaldestruction of notes of interviewwith informant violated Jencks Act).

Nuckols v. Gibson, 233 F.3d 1261(10th Cir. 2000) (Government failedto disclose criminal allegationsagainst key prosecution witness).

United States v. Abbott, 241 F.3d29 (1st Cir. 2001) (Government wasobligated to disclose linkagebetween plea agreements ofdefendant and his mother).

Mitchell v. Gibson, 262 F.3d 1036(10th Cir. 2001) (Withholdingexculpatory evidence that couldhave affected sentence).

Boss v. Pierce, 263 F.3d 734 (7thCir. 2001) (Witness’s statement maynot be available to defendantthrough due diligence).

McCambridge v. Hall, 266 F.3d 12(1st Cir. 2001) (Objection notrequired to preserve Bradyviolation).

United States v. Bass, 266 F.3d 532(6th Cir. 2001) (Government’s studyon racial disparities in prosecutionwarranted discovery of decision toseek death penalty).

Arrests*United States v. Lambert, 46F.3d 1064 (10th Cir. 1995)(Defendant was seized while agentsheld his driver’s license for over 20minutes).

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

*United States v. Mesa, 62 F.3d159 (6th Cir. 1995) (Nervousness

and inconsistencies did not validatecontinued traffic stop).

*United States v. Buchanon, 72F.3d 1217 (6th Cir. 1995)(Defendants were seized when thetroopers separated them from theirvehicle).

United States v. Roberson, 90 F.3d75 (3rd Cir. 1996) (Anonymous calldid not give officers reasonablesuspicion to stop a defendant on thestreet merely because his clothesmatched the caller’s description).

*United States v. Davis, 94 F.3d1465 (10th Cir. 1996) (Noreasonable suspicion for stop of adefendant known generally as agang member and drug dealer).

Washington v. Lambert, 98 F.3d1181 (9th Cir. 1996) (Generaldescription of two African-American males did not justifystop).

*United States v. Jerez, 108 F.3d684 (7th Cir. 1997) (Nighttimeconfrontation by police at thedefendant’s door was a seizure).

United States v. Miller, 146 F.3d274 (5th Cir. 1998) (Leaving turnsignal on violated no law and didnot justify stop).

*United States v. Jones, 149 F.3d364 (5th Cir. 1998) (Agent lackedr e a s o n a b l e su sp i c i o n f o rinvestigatory immigration stop).

*United States v. Acosta-Colon,157 F.3d 9 (1st Cir. 1999)(Defendant’s 30 minute handcuffeddetention, preventing him fromboarding flight, was not lawfulstop).

United States v. Salvano, 158 F.3d1107 (10th Cir. 1999) (Crosscountry trip, nervousness, nor scentof evergreen, justified warrantlessdetention).


United States v. Dortch, 199 F.3d193 (5th Cir.), amended, 203 F.3d883 (2000) (Continued detentionafter traffic stop was unreasonable).

United States v. Freeman, 209F.3d 464 (6th Cir. 2000) (Crossinglane-divider did not create probablecause for traffic stop).

United States v. Thomas, 211 F.3d1186 (9th Cir. 2000) (Tip did notprovide reasonable suspicion forstop).

United States v. Guevara-Martinez, 262 F.3d 751 (8th Cir.2001) (Illegal arrest tainted laterfingerprint evidence).

Northrop v. Trippett, 265 F.3d372 (6th Cir. 2001) (Anonymous tipof two black males wearing brandclothing and selling drugs did notjustify detention).

Sparing v. Village of OlympiaFields, 266 F.3d 68 (7th Cir. 2001)(Entering screen door withoutconsent was an arrest).

Search ofPersons

*United States v. Caicedo, 85 F.3d1184 (6th Cir. 1996) (Record lackedevidence to support a finding of thedefendant’s consent to search).

*United States v. Eustaquio, 198F.3d 1068 (8th Cir. 1999) (Noreasonable suspicion to search bulgeon defendant’s midriff).

United States v. Gray, 213 F.3d998 (8th Cir. 2000) (No reasonablesuspicion to stop defendant forprotective frisk).

United States v. Burton, 228 F.3d524 (4th Cir. 2000) (Officer’s safetyalone did not justify search ofpocket).

United States v. Miles, 247 F.3d

1009 (9th Cir. 2001) (Manipulatingsmall box in clothing exceeded pat-down search).

Fontana v. Haskin, 262 F.3d 871(9th Cir. 2001) (Claim of sexualharassment by officer was allegationof illegal search).

Search ofPrivate Vehicles

United States v. Adams, 46 F.3d1080 (11th Cir. 1995) (Suppressionof evidence seized from motor homewas upheld).

United States v. Chavis, 48 F.3d871 (5th Cir. 1995) (Courtimproperly placed the burden on thedefendant to show a warrantlesssearch occurred).

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

Ornelas v. United States, 517 U.S.690 (1996) (Defendant’s motion tosuppress should be given de novoreview by the court of appeals).

United States v. Duguay, 93 F.3d346 (7th Cir.), cert. denied, 526 U.S.1029 (1999) (Car could not beimpounded for a later search unlessthe arrestee could not provide for itsremoval).

*United States v. Elliott, 107 F.3d810 (10th Cir. 1997) (Consent tolook in trunk was not consent toopen containers within).

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

United States v. Cooper, 133 F.3d1394 (11th Cir. 1998) (Defendanthad reasonable expectation ofprivacy in rental car four days aftercontract expired).

*United States v. Beck, 140 F.3d1129 (8th Cir. 1998) (Continueddetention of vehicle was notjustified by articuable facts).

*United States v. Rodriguez-Rivas, 151 F.3d 377 (5th Cir. 1998)(Vehicle stop lacked reasonablesuspicion).

United States v. Huguenin, 154F.3d 547 (6th Cir. 1998)(Checkpoint stop to merely look fordrugs was unreasonable).

United States v. Rivas, 157 F.3d364 (5th Cir. 1999) (1. Drilling intotrailer was not routine bordersearch; 2. No evidence that drugdog’s reaction was an alert).

United States v. Iron Cloud, 171F.3d 587 (8th Cir. 1999) (Portablebreath test results were inadmissibleas evidence of intoxication).

Knowles v. Iowa, 525 U.S. 113(1999) (Speeding ticket does notjustify full search of vehicle).

*United States v. Payne, 181 F.3d781 (6th Cir. 1999) (Parole officerdid not have reasonable suspicion tosearch defendant’s trailer and truck).

*United States v. Lopez-Soto, 205F.3d 1101 (9th Cir. 2000) (No goodfaith mistake to warrantless carsearch).

United States v. Wald, 216 F.3d1222 (10th Cir. 2000) (Odor ofburnt methamphetamine inpassenger compartment did notprovide probable cause to searchtrunk).

United States v. Baker, 221 F.3d438 (3rd Cir. 2000) (No reasonable


suspicion to justify search of trunk).

United States v. Holt, 229 F.3d 931(10th Cir. 2000) (Questioning aboutweapons exceeded stop).

United States v. Jones, 234 F.3d234 (5th Cir. 2000) (Continueddetention tainted search despiteinitial consent).

United States v. Jones, 242 F.3d215 (4th Cir. 2001) (Anonymous tipdid not justify investigatory stop ofvehicle).

United States v. Reinholz, 245F.3d 765 (8th Cir. 2001)(Warrantless arrest lacked probablecause).

United States v. Sigmond-Ballesteros, 247 F.3d 943 (9th Cir.2001) (Lacked reasonable suspicionto search car for undocumentedaliens).

United States v. Caro, 260 F.3d1209 (10th Cir. 2001) (Officerneeded probable cause to look forVIN number inside door).

United States v. Nee, 261 F.3d 79(1st Cir. 2001) (Suppression upheldwhen officer’s were found not to becredible about stop).

United States v. Gomez, 276 F.3d694 (5th Cir. 2001) (Homeownerhad expectation of privacy tovehicle of third party parked indriveway).

Search ofCommercial

Vehicles*United States v. Garzon, 119 F.3d1446 (10th Cir. 1997) (1. Passengerdid not abandon bag by leaving it onbus; 2. General warrantless searchof all bus passengers by dog wasillegal).

*United States v. Guapi, 144 F.3d

1393 (11th Cir. 1998) (Buspassenger did not voluntarilyconsent to search).

*United States v. Washington, 151F.3d 1354 (11th Cir. 1998) (Buspassenger was searched withoutvoluntary consent).

Bond v. United States, 529 U.S.334 (2000) (Manipulation of bagfound on bus was illegal search).

United States v. Stephens, 206F.3d 914 (9th Cir. 2000) (Defendantwas illegally seized and searched onbus).

United States v. Drayton, 231 F.3d787 (11th Cir.), cert. denied, 122S.Ct. 803 (2002) (Search at depotwas not voluntary).

Search ofPackages

United States v. Doe, 61 F.3d 107(1st Cir. 1995) (Warrantless testingof packages at an airport checkpointlacked justification).

*United States v. Ali, 68 F.3d1468, modified, 130 F.3d 33 (2dCir. 1995) (Checking whether thedefendant had a valid export licensewas not a proper ground forseizure).

United States v. Odum, 72 F.3d1279 (7th Cir. 1995) (Court waslimited to facts at the time the stopoccurred to evaluate reasonablenessof the seizure).

United States v. Nicholson, 144F.3d 632 (10th Cir. 1998) (1.Feeling through sides of bag was asearch; 2. Abandonment of bag wasinvoluntary).

*United States v. Fultz, 146 F.3d1102 (9th Cir. 1998) (Guest hadexpectation of privacy in boxes hestored at another’s home).

*United States v. Rouse, 148 F.3d1040 (8th Cir. 1998) (Search of bagslacked probable cause).

*United States v. Allen, 159 F.3d832 (4th Cir. 1999) (Inevitablediscovery doctrine did not apply tococaine found in duffle bag laterdetected by dog and warrant).

United States v. Johnson, 171 F.3d601 (8th Cir. 1999) (No reasonablesuspicion to intercept delivery ofpackage).

United States v. Osage, 235 F.3d518 (10th Cir. 2000) (Consent tosearch suitcase did not extend tosealed can inside).

United Staes v. Runyan, 275 F.3d449 (5th Cir. 2001) (Police couldnot open closed containerdiscovered by previous privatesearch).

Search of Private Property

United States v. Hill, 55 F.3d 479(9th Cir. 1995) (Remand wasrequired to see if there was a trulyviable independent source for thesearch).

*United States v. Ford, 56 F.3d265 (D.C. Cir. 1995) (Search undera mattress and behind a windowshade exceeded a protective sweep).

United States v. Tovar-Rico, 61F.3d 1529 (11th Cir. 1995)(Possibility that surveillance officerwas observed, did not createexigency for warrantless search ofapartment).

*United States v. Cabassa, 62 F.3d470 (2d Cir. 1995) (Exigentcircumstances were not relevant tothe inevitable discovery doctrine).

*United States v. Mejia, 69 F.3d309 (9th Cir. 1995) (Inevitablediscovery doctrine did not apply


where the police simply failed to geta warrant).

J.B. Manning Corp. v. UnitedStates, 86 F. 3d 926 (9th Cir. 1996)(Good faith exception to the warrantrequirement does not affect motionsto return property).

United States v. Leake, 95 F.3d409 (6th Cir. 1996) (Neither theindependent source rule, nor theinevitable discovery rule, savedotherwise inadmissible evidence).

United States v. Madrid, 152 F.3d1034 (8th Cir. 1998) (Inevitablediscovery doctrine did not saveillegal search of house).

United States v. Ivy, 165 F.3d 397(6th Cir. 1999) (Consent to enterhome was not shown to bevoluntary).

*United States v. Johnson, 170F.3d 708 (7th Cir. 1999) (Officerslacked reasonable suspicion toprevent occupant from leavinghome).

United States v. Kiyuyung, 171F.3d 78 (2d Cir. 1999) (Firearmsfound during warrantless searchwere not in plain view).

Flippo v. West Virginia, 528 U.S.11 (1999) (No crime sceneexception to warrant requirement).

United States v. Sandoval, 200F.3d 659 (9th Cir. 2000) (Defendanthad reasonable expectation ofprivacy in tent on public land).

United States v. Vega, 221 F.3d789 (5th Cir.), cert. den. 531 1155(2000) (The police cannot createexigency for search of leased home).

United States v. Reid, 226 F.3d1020 (9th Cir. 2000) (Non-residentdid not have apparent authority toallow search of apartment).

United States v. Oaxaca, 233 F.3d1154 (9th Cir. 2000) (Agents could

not enter open door of garage).

United States v. Lewis, 231 F.3d238 (6th Cir. 2000) (Absentp r o b a b l e c a u s e , e x i g e n tcircumstances did not permit entryto home).

United States v. Santa , 236 F.3d325 (6th Cir. 2001) (Search ofapar tment l acked ex igen tcircumstances).

*United States v. Gamez-Orduno,235 F.3d 453 (9th Cir. 2000)(Overnight guests had standing tochallenge search).

United States v. Heath, 259 F.3d522 (6th Cir. 2001) (Allowingofficer to examine keys was notconsent to open and enterapartment).

Warrants*United States v. Van Damme 48F.3d 461 (9th Cir. 1995) (No list ofitems to be seized under thewarrant).

United States v. Mondragon, 52F.3d 291 (10th Cir. 1995)(Supplemental wiretap applicationfailed to show necessity).

*United States v. Kow, 58 F.3d423 (9th Cir. 1995) (Warrant failedto identify business records withparticularity, and good faith did notapply).

*United States v. Weaver, 99 F.3d1372 (6th Cir. 1996) (Bare bones,boilerplate affidavit was insufficientto justify warrant).

Marks v. Clarke, 102 F.3d 1012(9th Cir.), cert. denied, 522 U.S. 907(1997) (Warrant to search tworesidences did not authorize theofficers to search all personspresent).

United States v. Foster, 104 F.3d1228 (10th Cir. 1996) (Flagrantdisregard for the specificity of awarrant required suppression of allfound).

United States v. Castillo-Garcia,117 F.3d 1179 (10th Cir.), cert.denied, 522 U.S. 962 (1997)(Government failed to show thenecessity for wiretaps).

United States v. McGrew, 122F.3d 847 (9th Cir. 1997) (Searchw a r r a n t a f f i d a v i t l a c k e dparticularity).

United States v. Alvarez, 127 F.3d372 (5th Cir. 1997) (Warrantaffidavit contained a false statementmade in reckless disregard for thetruth).

*United States v. Schroeder , 129F.3d 439 (8th Cir. 1997) (Warrantdid not authorize a search ofadjoining property).

In Re Grand Jury Investigation,130 F.3d 853 (9th Cir. 1997)(Search warrant was overbroad).

*United States v. Hotal, 143 F.3d1223 (9th Cir. 1998) (Anticipatorysearch warrant failed to identifytriggering event for execution).

United States v. Albrektsten, 151F.3d 951 (9th Cir. 1998) (Arrestwarrant did not permit search ofdefendant’s motel room).

United States v. Ford, 184 F.3d566 (6th Cir.), cert. denied, 528 U.S.1161 (2000) (Search warrantauthorized broader search thanreasonable).

United States v. Herron, 215 F.3d812 (8th Cir. 2000) (No reasonableofficer would have relied on such adeficient warrant).

United States v. Tuter, 240 F.3d


1292 (10th Cir. 2001) (Anonymoustip lacked reliability to supportwarrant).

United States v. King, 244 F.3d736 (9th Cir. 2001) (Officer’smistaken belief that ordinance wasviolated did not provide reasonablesuspicion to stop).

Leveto v. Lapina, 258 F.3d 156(3rd Cir. 2001) (Search warrant forhome did not justify pat-down ofowner).

United States v. Blackmon, 273F.3d 1204 (9th Cir. 2001) (Policemay not borrow information fromprevious wiretap warrant in anothercase).

Knock andAnnounce

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

United States v. Zermeno, 66 F.3d1058 (9th Cir. 1995) (Officers failedto knock and announce during adrug search).

*United States v. Bates, 84 F.3d790 (6th Cir. 1996) (Officers did nothave the right to break down anapartment door without firstknocking and announcing theirpresence).

Richards v. Wisconsin, 520 U.S.385 (1997) (No blanket drugexception to the knock andannounce requirement).

United States v. Cantu, 230 F.3d148 (5th Cir. 2000) (“Knock andannounce” applies to all attempts atforcible entry).

Statements*United States v. Dudden, 65 F.3d

1461 (9th Cir. 1995) (Immunityagreement required a hearing onwhether the defendant’s statementswere used to aid the government’scase).

United States v. Tenorio, 69 F. 3d1103 (11th Cir. 1995) (Post-Miranda s t a tement s wereimproperly admitted).

United States v. Ali, 86 F.3d 275(2nd Cir. 1996) (Custodialinterrogation required Mirandawarnings).

*In Re Grand Jury SubpoenaDated April 9, 1996, 87 F.3d 1198(11th Cir. 1996) (Custodian ofrecords could not be compelled totestify as to the location ofdocuments not in her possessionwhen those documents incriminatedher).

United States v. Trzaska, 111 F.3d1019 (2d Cir. 1997) (Defendant’sstatement to probation officer wasinadmissible).

*United States v. D.F., 115 F.3d413 (7th Cir. 1997) (Statementstaken from a juvenile in a mentalhealth facility were involuntary).

United States v. Abdi, 142 F.3d566 (2d Cir. 1998) (Defendant’suncounseled statement waserroneously admitted).

*United States v. Garibay, 143F.3d 534 (9th Cir. 1998) (Defendantwith limited English and low mentalcapacity did not voluntarily waiveMiranda).

United States v. Chamberlain, 163F.3d 499 (8th Cir. 1999) (Inmateunder investigation was entitled toMiranda warnings).

United States v. Tyler, 164 F.3d150 (3rd Cir. 1999) (Police did nothonor defendant’s invocation ofsilence).

Pickens v. Gibson, 206 F.3d 988

(10th Cir. 2000) (Admission ofconfession was not harmless).

United States v. Martinez-Gaytan,213 F.3d 890 (5th Cir. 2000) (Agentwho did not speak Spanish couldnot introduce defendant’s Spanishconfession).

Dickerson v. United States, 530U.S. 428 (2000) (Miranda warningsare required by Fifth Amendment).

United States v. Orso, 234 F.3d436 (9th Cir. 2000) (Officer lied toget admissions).

Gardner v. Johnson, 247 F.3d 551(5th Cir. 2001) (Pyschiatrist’swarnings about self-incriminationwere insufficient).

Recusal*Bracy v. Gramley, 520 U.S. 899(1997) (Petitioner could getdiscovery of trial judge’s biasagainst him)

*United States v. Jordan, 49 F.3d152 (5th Cir. 1995) (Judge shouldhave been recused because thedefendant made claims againstfamily friend of the judge).

*United States v. Avilez-Reyes,160 F.3d 258 (5th Cir. 1999) (Judgeshould have recused himself in casewhere attorney testified againstjudge in disciplinary hearing).

United States v. Scarfo, 263 F.3d80 (3rd Cir. 2001) (Judge shouldhave recused himself if he feltprejudiced by news article).

IndictmentsUnited States v. Holmes, 44 F.3d1150 (2d Cir. 1995) (Moneylaundering and structuring countsbased on the same transaction weremultiplicious).


United States v. Hairston, 46 F.3d361 (4th Cir. 1995) (Multiplepayments were part of the sameoffense).

United States v. Graham, 60 F.3d463 (8th Cir. 1995) (Multiplicious tocharge the same false statementmade on different occasions).

*United States v. Kimbrough, 69F.3d 723 (5th Cir.), cert. denied, 517U.S. 1157 (1996) (Multiplepossessions of child pornographyshould have been charged in a singlecount).

*United States v. Cancelliere, 69F.3d 1116 (11th Cir. 1995) (Courtamended charging language ofindictment during trial).

*United States v. Johnson, 130F.3d 1420 (10th Cir. 1997) (Gunpossession convictions for the samefirearm were multiplicious).

United States v. Morales, 185 F.3d74 (2ndCir. 1999) (Racketeeringenterprise did not last for durationalleged in indictment).

*United States v. Dubo, 186 F.3d1177 (9th Cir. 1999) (Indictment didnot allege mens rea).

United States v. Nunez, 180 F.3d227 (5th Cir. 1999) (Indictmentfailed to charge an offense).

United States v. Dipentino, 242F.3d 1090 (9th Cir. 2001) (Trialcourt constructively amendedindictment).

United States v. Olson, 262 F.3d795 (8th Cir. 2001) (Bank robberyindictment failed to allege a takingby force or intimidation).

Limitation ofActions

United States v. Li, 55 F.3d 325

(7th Cir. 1995) (Statute of limitationsran from the day of deposit, not theday the deposit was processed).

United States v. Spector, 55 F.3d22 (1st Cir. 1995) (Agreement towaive the statute of limitations wasinvalid because it was not signed bythe government).

United States v. Podde, 105 F.3d813 (2d Cir. 1997) (Statute oflimitations barred the reinstatementof charges that were dismissed in aplea agreement).

United States v. Manges, 110 F.3d1162 (5th Cir.), cert.denied, 523U.S. 1106 (1998) (Conspiracycharge was barred by statute oflimitations).

United States v. Grimmett, 236F.3d 452 (8th Cir. 2001) (Statute oflimitations had run sincedefendant’s withdrawal from theconspiracy).

Venue*United States v. Miller, 111 F.3d747 (10th Cir. 1997) (Court refuseda jury instruction on venue in amulti-district conspiracy case).

United States v. Carter, 130 F.3d1432, cert. denied, 523 U.S. 1041(10th Cir. 1997) (Requestedinstruction on venue should havebeen given).

United States v. Cabrales, 524U.S. 1 (1998) (Venue for moneylaundering was proper only whereoffenses were begun, conducted andcompleted).

*United States v. Brennan, 183F.3d 139 (2d Cir. 1999) (Venue formail fraud permissible only indistricts where proscribed actsoccurred).

*United States v. Hernandez, 189

F.3d 785 (9th Cir.), cert. denied,529 U.S. 1028 (1999) (Venue wasimproper for undocumented aliendiscovered in one district and triedin another).

United States v. Williams, 274F.3d 1079 (6th Cir. 2001) (Sale togovernment informant did not bringthe conspiracy within district’svenue).

PretrialProcedure

United States v. Ramos, 45 F.3d1519 (11th Cir. 1995) (Trial judgewrongly refused deposition withoutinquiring about testimony or itsrelevance).

United States v. Smith, 55 F.3d157 (4th Cir. 1995) (Government’smotion for dismissal should havebeen granted).

United States v. Gonzalez, 58 F.3d459 (9th Cir. 1995) (Government’smotion for dismissal should havebeen granted).

*United States v. Young, 86 F.3d944 (9th Cir. 1996) (Courtimproperly denied a hearing on amotion to compel the government toimmunize a witness).

United States v. Mathurin, 148F.3d 68 (2d Cir. 1998) (Courtimproperly denied hearing onmotion to suppress).

Severance*United States v. Breinig, 70 F.3d850 (6th Cir. 1995) (Severanceshould have been granted where thecodefendant’s defense includedprejudicial character evidenceregarding the defendant).

*United States v. Baker, 98 F.3d330 (8th Cir.), cert. denied, 520 U.S.1179 (1997) (Evidence admissibleagainst only one codefendant


required severance).

United States v. Jordan, 112 F.3d14 (1st Cir.), cert. denied, 523 U.S.1041 (1998) (Charges should havebeen severed when a defendantwanted to testify regarding onecount, but not others).

United States v. Cobb, 185 F.3d1193 (11th Cir. 1999) (Courterroneously denied severance underBruton).

ConflictsUnited States v. Shorter, 54 F.3d1248 (7th Cir.), cert. denied. 516U.S. 896 (1995) (Actual conflictwhen the defendant accused counselof improper behavior).

*Ciak v. United States, 59 F.3d296 (2d Cir. 1995) (Actual conflictfor attorney who had previouslyrepresented a witness against thedefendant).

United States v. Malpiedi, 62 F.3d465 (2d Cir. 1995) (Conflict forcounsel representing witness whogave damaging evidence against hisdefendant).

*United States v. Jiang, 140 F.3d124 (2d Cir. 1998) (Attorney’spotential conflict required remandfor hearing).

United States v. Kliti, 156 F.3d 150(2d Cir. 1998) (Court should haveheld hearing on defense counsel’spotential conflict).

Perrillo v. Johnson, 205 F.3d 775(5th Cir. 2000) (Actual conflictexisted in successive prosecutions ofcodefendants).

Lockhart v. Terhune, 250 F.3d1223 (9th Cir. 2001) (Counsel hadactual conflict of interest).

Competency /Sanity

*United States v. Mason, 52 F.3d1286 (4th Cir. 1995) (Court failed toapply a reasonable cause standard tocompetency hearing).

Cooper v. Oklahoma, 517 U.S. 348(1996) (Court could not require adefendant to prove his incompetenceby a higher standard thanpreponderance of evidence).

United States v. Davis, 93 F.3d1286 (6th Cir. 1996) (Court did nothave the statutory authority to ordera mental examination of a defendantwho wished to raise the defense ofdiminished capacity).

United States v. Williams, 113F.3d 1155 (10th Cir. 1997)(Defendant’s actions during trialwarranted a competency hearing).

United States v. Nevarez-Castro,120 F.3d 190 (9th Cir. 1997) (Courtrefused to hold a competencyhearing).

United States v. Haywood, 155F.3d 674 (3rd Cir. 1999) (Defendantallegedly restored to competencyrequired second hearing).

PrivilegeRalls v. United States, 52 F.3d 223(9th Cir. 1995) (Fee information wasinextricably intertwined withprivileged communications).

*United States v. Sindel, 53 F.3d874 (8th Cir. 1995) (Fee informationcould not be released withoutdisclosing other privilegedinformation).

*United States v. Gertner, 65 F.3d963 (1st Cir. 1995) (IRS summonsof attorney was just a pretext toinvestigate her client).

In Re Richard Roe Inc., 68 F.3d 38

(2nd Cir. 1995) (Court misappliedthe crime-fraud exception).

United States v. Rowe, 96 F.3d1294 (9th Cir. 1996) (In-houseinvestigation by attorneys associatedwith the defendant/lawyer wascovered by the attorney-clientprivilege).

Mockaitis v. Harcleroad, 104 F.3d1522 (9th Cir. 1997) (Clergy-communicant privilege was upheld).

United States v. Bauer, 132 F.3d504 (9th Cir. 1997) (Questioning ofdefendant’s bankruptcy attorneyviolated attorney-client privilege).

*United States v. Glass, 133 F.3d1356 (10th Cir. 1998) (Defendant’spsychotherapist-patient privilegewas violated).

Swinder & Berlin v. United States,524 U.S. 399 (1998) (Attorney-client privilege survives client’sdeath).

United States v. Millard, 139 F.3d1200 (8th Cir.), cert. denied, 525U.S. 949 (1998) (Statements duringplea discussions were erroneouslyadmitted).

In re Sealed Case, 146 F.3d 881(D.C. Cir. 1998) (Documentsprepared in anticipation of litigationwere work product).

Mitchell v. United States, 526 U.S.314 (1999) (Guilty plea does notwaive privilege against selfincrimination at sentencing).

Jeopardy /Estoppel

United States v. Abcasis, 45 F.3d39 (2d Cir. 1995) Government wasestopped from convicting a personwhen its agents caused that personin good faith to believe they wereacting under government authority).


United States v. Weems, 49 F.3d528 (9th Cir. 1995) (Governmentwas estopped from proving elementpreviously decided in forfeiturecase).

United States v. Sammaripa, 55F.3d 433 (9th Cir. 1995) (Mistrialwas not justified by manifestnecessity).

United States v. McLaurin, 57F.3d 823 (9th Cir. 1995) (Defendantcould not be retried for bankrobbery after conviction on thelesser included offense of larceny).

Rutledge v. United States , 517U.S. 292 (1996) (Defendant couldnot be punished for both aconspiracy and a continuingcriminal enterprise based upon asingle course of conduct).

Venson v. State of Georgia, 74F.3d 1140 (11th Cir. 1996)(Prosecutor’s motion for mistrialwas not supported by manifestnecessity).

United States v. Holloway, 74 F.3d249 (11th Cir. 1996) (Prosecutor’spromise not to prosecute, made at acivil deposition, was the equivalentof use immunity for a relatedcriminal proceeding).

United States v. Hall, 77 F.3d 398(11th Cir.), cert. denied. 519 U.S.849 (1996) (Possession of a firearmand its ammunition could only yielda single sentence).

United States v. Garcia, 78 F.3d1517 (11th Cir. 1996) (Acquittal forknowingly conspiring barred asecond prosecution for thesubstantive crime).

Terry v. Potter, 111 F.3d 454 (6th

Cir. 1997) (When a defendant wascharged in two alternate manners,and the jury reached a verdict as toonly one, there was an implied

acquittal on the other offense towhich jeopardy barred retrial).

United States v. Stoddard, 111F.3d 1450 (9th Cir. 1997) (1.Second drug conspiracy prosecutionwas barred by double jeopardy; 2.Collateral estoppel barred falsestatement conviction, based upondrug ownership for which defendanthad been previously acquitted).

United States v. Romeo, 114 F.3d141 (9th Cir. 1997) (After anacquittal for possession, animportation charge was barred bycollateral estoppel).

United States v. Turner, 130 F.3d815 (8th Cir. 1997) (Prosecution ofcount, identical to one previouslydismissed, was barred).

United States v. Downer, 143 F.3d819 (4th Cir. 1998) (Court’ssubstitution of conviction for lesseroffense, after reversal, violated ExPost Facto Clause and Grand JuryClause).

United States v. Dunford, 148 F.3d385 (4th Cir. 1998) (Convictions for6 firearms and ammunition wasmultiplicious).

United States v. Beckett, 208 F.3d140 (3rd Cir. 2000) (Sentences forrobbery and armed robbery violateddouble jeopardy).

United States v. Kithcart, 218 F.3d213 (3rd Cir. 2000) (Governmentcould not relitigate suppressionmotion).

United States v. Kramer, 225 F.3d847 (7th Cir. 2000) (Defendant wasentitled to attack underlying statechild support obligation).

Morris v. Reynolds, 264 F.3d 38(2d Cir. 2001) (Jeopardy attaches atunconditional acceptance of guiltyplea).

PleaAgreements

United States v. Clark, 55 F.3d 9(1st Cir. 1995) (Governmentbreached the agreement by arguinga g a i n s t a c c e p t a n c e o fresponsibility).

*United States v. Laday, 56 F.3d24 (5th Cir. 1995) (Governmentbreached the agreement by failing togive the defendant an opportunity tocooperate).

*United States v. Washman, 66F.3d 210 (9th Cir. 1995) (Defendantcould have withdrawn his plea upuntil the time the court accepted theplea agreement).

United States v. Levay, 76 F.3d671 (5th Cir. 1996) (Defendantcould not be enhanced with a priordrug conviction when thegovernment withdrew notice as partof a plea agreement).

United States v. Taylor, 77 F.3d368 (11th Cir. 1996) (Defendantcould withdraw his guilty plea whenthe government fai led tounequivocally recommend asentence named in the agreement).

*United States v. Velez Carrero,77 F.3d 11 (1st Cir. 1996)(Agreement to recommend noenhancement was breached by thegovernment’s neutral position atsentencing).

United States v. Dean, 87 F.3d1212 (11th Cir. 1996) (Judge couldmodify the forfeiture provisions of aplea agreement, when the forfeiturewas unfairly punitive).

*United States v. Kummer, 89F.3d 1536 (11th Cir. 1996)(Defendants who pleaded guilty toaccepting a gratuity under pleaagreements could have withdrawntheir pleas when they weresentenced under bribery guidelines).


United States v. Ritsema, 89 F.3d392 (7th Cir. 1996) (A court couldnot ignore a previously adopted pleaagreement at resentencing).

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

United States v. Beltran-Ortiz, 91F.3d 665 (4th Cir. 1996) (Failure todebrief the defendant, thuspreventing him from benefitingfrom the safety valve, violated theplea agreement).

United States v. Hawley, 93 F.3d682 (10th Cir. 1996) (Governmentviolated its plea agreement not tooppose credit for acceptance ofresponsibility).

United States v.Van Thournout,100 F.3d 590 (8th Cir. 1996)(Government breached anagreement from another district torecommend concurrent time).

*United States v. Sandoval-Lopez,122 F.3d 797 (9th Cir. 1997)(Defendant could attack illegalconviction without fear thatdismissed charges in plea agreementwould be revived).

United States v. Wolff, 127 F.3d 84(D.C. Cir.), cert. denied, 118 S.Ct.2325 (1998) (Government’s failureto argue for acceptance ofresponsibility breached agreementand required entire sentence to bereconsidered).

United States v. Gilchrist, 130F.3d 1131 (3rd Cir. 1997) (Pleaagreement was breached byimposing a higher term ofsupervised release).

United States v. Johnson, 132 F.3d628 (11th Cir. 1998) (Prosecutorviolated plea agreement by urginghigher drug quantity).

*United States v. Mitchell, 136F.3d 1192 (8th Cir. 1998) (Failure

to adhere to unconditional promiseto move for downward departureviolated plea agreement).

*United States v. Isaac, 141 F.3d477 (3rd Cir. 1998) (Pleaagreements referring to substantialassistance departures were subject tocontract law).

United States v. Brye, 146 F.3d1 2 0 7 ( 1 0 t h C i r . 1 9 9 8 )(Government’s opposition todownward departure breached pleaagreement).

United States v. Castaneda, 162F.3d 832 (5th Cir. 1999)(Government failed to provedefendant violated transactionalimmunity agreement).

*United States v. Lawlor, 168 F.3d633 (2d Cir. 1999) (Governmentbreached plea agreement thatstipulated to a specific offenselevel).

United States v. Nathan, 188 F.3d190 (3rd Cir. 1999) (Statementmade after plea agreement was notstipulation).

United States v. Frazier, 213 F.3d409 (7th Cir. 2000) (Governmentcannot unilaterally retreat from pleaagreement without hearing).

United States v. Baird, 218 F.3d221 (3rd Cir.2000) (Plea agreementprevented use of information at anyproceeding).

United States v. Mondragon, 228F.3d 978 (9th Cir. 2000) (Prosecutorbreached plea agreement byrecommending sentence).

United States v. Randolph, 230F.3d 243 (6th Cir. 2000)(Prosecution in second jurisdictionviolated plea agreement).

United States v. Johnson, 214 F.3d1049 (8th Cir. 2001) (Governmentbreached plea agreement by failingto file departure motion before

sentencing).

Dunn v. Collernan, 247 F.3d 450(3rd Cir. 2001) (Prosecutor’srecommendation of “lengthysentence” violated plea agreement).

Gunn v. Ignacio, 263 F.3d 965 (9th

Cir. 2001) (Prosecutor breachedagreement by opposing concurrentsentence).

Guilty PleasUnited States v. Maddox, 48 F.3d555 (D.C. 1995) (A summaryrejection of a guilty plea wasimproper).

*United States v. Ribas-Dominicce, 50 F.3d 76 (1st Cir.1995) (Court misstated the mentalstate required for the offense).

*United States v. Goins, 51 F.3d400 (4th Cir. 1995) (Court failed toadmonish the defendant about themandatory minimum punishment).

*United States v. Casallas, 59 F.3d1173 (11th Cir. 1995) (Trial judgeimproperly became involved in pleabargaining during colloquy).

*United States v. Smith, 60 F.3d595 (9th Cir. 1995) (Court failed toexplain the nature of the charges tothe defendant).

*United States v. Gray, 63 F.3d 57(1st Cir. 1995) (Defendant who didnot understand the applicability ofthe mandatory minimum couldwithdraw his plea).

United States v. Daigle, 63 F.3d346 (5th Cir. 1995) (Courtimproperly engaged in pleabargaining).

United States v. Martinez-Molina,64 F.3d 719 (1st Cir. 1995) (Courtfailed to inquire whether the pleawas voluntary or whether thedefendant had been threatened orcoerced).


*United States v. Showerman, 68F.3d 1524 (2d Cir. 1995) (Courtfailed to advise the defendant that hemight be ordered to pay restitution).

United States v. Tunning, 69 F.3d107 (6th Cir. 1995) (Governmentfailed to recite evidence to proveallegations in an Alford plea).

United States v. Guerra, 94 F.3d989 (5th Cir. 1996) (Plea wasvacated when the court gave thedefendant erroneous advice aboutenhancements).

*United States v. Quinones, 97F.3d 473 (11th Cir. 1996) (Courtfailed to ensure that the defendantunderstood the nature of thecharges).

*United States v. Cruz-Rojas, 101F.3d 283 (2d Cir. 1996) (Guiltypleas were vacated to determinewhether factual basis existed forcarrying a firearm).

*United States v. Siegel, 102 F.3d477 (11th Cir. 1996) (Failure toadvise the defendant of themaximum and minimum mandatorysentences required that thedefendant be allowed to withdrawhis plea).

United States v. Shepherd, 102F.3d 558 (DC Cir. 1996) (Courtabused its discretion in rejecting thedefendant’s mid-trial guilty plea).

United States v. Still, 102 F.3d 118(5th Cir.), cert. denied, 522 U.S. 806(1997) (Court failed to admonish thedefendant on the mandatoryminimum).

United States v. Amaya, 111 F.3d386 (5th Cir. 1997) (Defendant’splea was involuntary when the courtpromised to ensure a downwarddeparture for cooperation).

*United States v. Gonzalez, 113F.3d 1026 (9th Cir. 1997) (Courtshould have held a hearing when thedefendant claimed his plea was

coerced).

*United States v. Brown, 117 F.3d4 7 1 ( 1 1 t h C i r . 1 9 9 7 )(Misinformation given to thedefendant made his p leainvoluntary).

United States v. Pierre, 120 F.3d1153 (11th Cir. 1997) (Plea wasinvoluntary when defendantmistakenly believed he hadpreserved an appellate issue).

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

United States v. Toothman, 137F.3d 1393 (9th Cir. 1998) (Pleacould be withdrawn based uponmisinformation about guidelinerange).

United States v. Gobert, 139 F.3d436 (5th Cir. 1998) (Insufficientfactual basis existed for defendant’sguilty plea).

United States v. Gigot, 147 F.3d1193 (10th Cir. 1998) (Failure toadmonish defendant of elements ofoffense and possible penaltiesrendered plea involuntary).

United States v. Thorne, 153 F.3d130 (4th Cir. 1998) (Court failed toadvise defendant of the nature ofsupervised release).

*United States v. Odedo, 154 F.3d937 (9th Cir. 1998) (Defendant notadmonished about nature ofcharges).

United States v. Suarez, 155 F.3d521 (5th Cir. 1998) (Defendant wasnot admonished as to nature ofcharges).

*United States v. Andrades, 169F.3d 131 (2d Cir. 1999) (Courtfailed to determine whetherdefendant understood basis for plea,and failed to receive sufficientfactual basis).

United States v. Blackwell, 172F.3d 129 (2d Cir.), superceded, 199F.3d 623 (1999) (Omissions duringcolloquy voided plea).

United States v. Gomez-Orozco,188 F.3d 422 (7th Cir. 1999) (Proofof citizenship required withdrawalof guilty plea to illegal re-entrycharge).

United States v. Guess, 203 F.3d1143 (9th Cir. 2000) (Record didnot support guilty plea to firearmcharge).

United States v. James, 210 F.3d1342 (11th Cir. 2000) (Pleacolloquy did not cover elements ofoffense).

United States v. Barrios-Gutierrez, 255 F.3d 1024 (9th Cir.),cert. denied, 122 S.Ct. 567 (2001)(Defendant was not informed ofstatutory maximum).

United States v. Santo, 225 F.3d 92(1st Cir. 2000) (Court understatedmandatory minimum at plea).

United States v. Ruiz, 229 F.3d1240 (9th Cir. 2000) (Withdrawal ofguilty plea for newly discoveredevidence should be allowed for “fairand just reason”).

United States v. Castro-Gomez,233 F.3d 684 (1st Cir. 2000) (Courtdid not inform defendant he wassubject to mandatory life sentence).

United States v. Markin, 263 F.3d491 (6th Cir. 2001) (Judge cannotparticipate in negotiations onceguilty plea is entered).

United States v. Lujano-Perez,274 F.3d 219 (5th Cir. 2001) (Courtmust explain nature of the charges).

TimelyProsecution

United States v. Verderame, 51


F.3d 249 (11th Cir.), cert. denied,516 U.S. 954 (1995) (Trial courtdenied repeated, unopposed motionsfor continuance in drug conspiracycase, with only 34 days to prepare).

United States v. Jones, 56 F.3d 581(5th Cir. 1995) Open-endedcontinuance violated the SpeedyTrial Act).

United States v. Mejia, 69 F.3d309 (9th Cir. 1995) (Court denied aone-day continuance of trial,preventing live evidence onsuppression issue).

United States v. Foxman, 87 F.3d1220 (11th Cir. 1996) (Trial courtwas required to decide whether thegovernment had delayed indictmentto gain a tactical advantage).

United States v. Johnson, 120 F.3d1107 (10th Cir. 1997) (Continuancebecause of court conflict violatedSpeedy Trial Act).

United States v. Lloyd, 125 F.3d1263 (9th Cir. 1997) (112-daycontinuance was not justified).

United States v. Hay, 122 F.3d1233 (9th Cir. 1997) (48-day recessfor jurors’ vacations was abuse ofdiscretion).

United States v. Graham, 128 F.3d372 (6th Cir. 1997) (Eight-yeardelay between indictment and trialviolated the Sixth Amendment).

United States v. Gonzales, 137F.3d 1431 (10th Cir. 1998) (“Endsof justice” continuance could not beretroactive).

*United States v. Barnes, 159 F.3d4 (1st Cir. 1999) (Open-endedcontinuance violated speedy trial).

United States v. Hall, 181 F.3d1057 (9th Cir. 1999) (Continuancesfor codefendants violated SpeedyTrial Act).

United States v. Moss, 217 F.3d

426 (6th Cir. 2000) (Unnecessarydelay while motion was pendingrequired dismissal with prejudice).

*United States v. Ramirez-Cortez,213 F.3d 1149 (9th Cir. 2000)(Failure to make “ends of justice”findings for speedy trial exclusion).

United States v. Hardemann, 249F.3d 826 (9th Cir. 2001) (Delay toarraign co-defendant violatedspeedy trial).

United States v. Nguyen, 262 F.3d998 (9th Cir. 2001) (Court did notexplain denial of continuance whendefendant asked for new counsel).

Jury SelectionCochran v. Herring, 43 F. 1404(11th Cir.), cert. denied, 516 U.S.1073 (1996) (Batson claim shouldhave been granted).

*United States v. Jackman, 46F.3d 1240 (2d Cir. 1995) (Selectionprocedure resulted in an under-representation of minorities in jurypool).

United States v. Beckner, 69 F.3d1290 (5th Cir. 1995) (Defendantestablished prejudicial pretrialpublicity that could not be cured byvoir dire).

*United States v. Annigoni, 96F.3d 1132 (9th Cir. 1996) (Court’serroneous denial of a defendant’sproper peremptory challengerequired automatic reversal).

Turner v. Marshall, 121 F.3d 1248(9th Cir.), cert. denied, 522 U.S.1153 (1998) (Prosecutor’s statedreason for striking a black juror waspretextual).

*Tankleff v. Senkowski, 135 F.3d235 (2d Cir. 1998) (Race-basedperemptory challenges were notsubject to harmless error review).

*United States v. Ovalle, 136 F.3d

1092 (6th Cir. 1998) (Plan whichresulted in removal of 1 in 5 blacksfrom panel, violated Jury Selectionand Service Act).

United States v. Tucker, 137 F.3d1016 (8th Cir. 1998) (Evidence ofjuror bias and misconduct requiredevidentiary hearing).

Campbell v. Louisiana, 523 U.S.392 (1998) (White defendant couldchallenge discrimination againstblack grand jurors).

United States v. Blotcher, 142 F.3d728 (4th Cir. 1998) (Courtimproperly denied defendant’s raceneutral peremptory challenge).

Dyer v. Calderon, 151 F.3d 970 (9th

Cir.), cert. denied, 523 U.S. 1033(1998) (Juror’s lies raisedpresumption of bias).

*United States v. Herndon, 156F.3d 629 (6th Cir. 1998) (Denial ofhearing on potentially biased juror).

United States v. McFerron, 163F.3d 952 (6th Cir. 1999) (Defendantdid not have burden of persuasionon neutral explanation forperemptory strike).

United States v. Serino, 163 F.3d91 (1st Cir. 1999) (Defendant gavevalid neutral reason for strikingjuror).

Jordan v. Lefevre, 206 F.3d 196(2d Cir. 2000) (Merely findingstrike of juror was rational does notdetermine whether there waspurposeful discrimination).

United States v. Gonzalez, 214F.3d 1109 (9th Cir. 2000) (Jurorwho equivocated about fairness tosit in drug case should have beenexcused).

McClain v. Prunty, 217 F.3d 1209(9th Cir. 2000) (Judge mustinvestigate whether purposeful jury


selection discrimination occurred).

ClosureUnited States v. Doe, 63 F.3d 121(2d Cir. 1995) (Court summarilydenied a defendant’s request toclose the trial for his safety).

*Okonkwo v. Lacy, 104 F.3d 21(2d Cir.), cert. denied, 524 U.S. 958(1998) (Record did not supportclosure of proceedings duringtestimony of undercover officer).

*Pearson v. James, 105 F.3d 828(2d Cir.), cert. denied, 524 U.S. 958(1998) (Closure of courtroomdenied the right to a public trial).

Judd v. Haley, 250 F.3d 1308 (11th

Cir. 2001) (Total closure ofcourtroom violated right to publictrial).

Jury Trial*United States v. Robertson, 45F.3d 1423 (10th Cir.), cert. denied.516 U.S. 844 (1995) (No evidencethat the defendant intelligently andvoluntarily waived a jury trial).

*United States v. Ajmal, 67 F.3d12 (2d Cir. 1995) (Jurors should notquestion witnesses as a matter ofcourse).

United States v. Duarte-Higarenda, 113 F.3d 1000 (9th Cir.1997) (Court failed to question anon-English speaking defendantover a jury waiver).

United States v. Iribe-Perez, 129F.3d 1167 (10th Cir. 1997) (Jurywas erroneously told that thedefendant would plead guilty beforestart of trial).

*United States v. Saenz, 134 F.3d697 (5th Cir. 1998) (Court’squestioning of a witness gave

appearance of partiality).

United States v. Tilghman, 134F.3d 414 (D.C. Cir. 1998) (Court’squestioning of defendant denied hima fair trial).

United States v. Mortimer, 161F.3d 240 (3rd Cir. 1999) (Trialjudge was absent during defenseclosing).

United States v. Weston, 206 F.3d9 (D.C. Cir. 2000) (Use of anti-psychotic medication was notsupported by evidence of danger todefendant or others).

United States v. Gomez-Lepe, 207F.3d 623 (9th Cir. 2000) (MagistrateJudge could not preside over pollingjury in felony case).

ConfrontationUnited States v. Hamilton, 46 F.3d271 (3rd Cir. 1995) (Prosecutionwitnesses were not unavailablewhen they could have testifiedunder government immunity).

United States v. Lachman, 48 F.3d586 (1st Cir. 1995) (Governmentexhibits were properly excluded ongrounds of confusion and waste).

United States v. Strother, 49 F.3d869 (2d Cir. 1995) (A statement,inconsistent with the testimony of agovernment witness, should havebeen admitted).

United States v. Forrester, 60 F.3d52 (2d Cir. 1995) (Agent improperlycommented on the credibility ofanother witness).

*United States v. Paguio, 114 F.3d928 (9th Cir. 1997) (Missingwitness’s self-incriminatingstatement should have beenadmitted).

United States v. Lis, 120 F.3d 28(4th Cir. 1997) (Ledger connectinganother to the crime was not

hearsay).

United States v. Beydler, 120 F. 3d985 (9th Cir. 1997) (Unavailablewitness’s statement, incriminatingthe defendant, was inadmissiblehearsay).

*United States v. Foster, 128 F.3d949 (6th Cir. 1997) (Exculpatorygrand jury testimony should havebeen admitted at trial).

United States v. Williams, 133F.3d 1048 (7th Cir. 1998)(Statements by informant to agentwere hearsay).

United States v. Lowery, 135 F.3d957 (5th Cir. 1998) (Courterroneously excluded defendant’sevidence that he encouragedwitnesses to tell the truth).

United States v. Moses, 137 F.3d894 (6th Cir. 1998) (Allowing child-witness to testify by video violatedright to confrontation).

United States v. Marsh, 144 F.3d1229 (9th Cir. 1998) (Admission ofcomplaints by defendant’scustomers denied confrontation).

United States v. Mitchell, 145 F.3d572 (3rd Cir. 1998) (Anonymousnote incriminating defendant wasinadmissible hearsay).

United States v. Cunningham, 145F.3d 1385 (D.C. Cir. 1998)(Unredacted tapes violatedconfrontation).

United States v. Sanchez-Lima,161 F.3d 545 (9th Cir. 1999)(Exclusion of deposition deniedright to put on defense).

United States v. Saenz, 179 F.3d686 (9th Cir. 1999) (Defendant wasentitled to show his knowledge ofvictim’s prior acts of violence tosupport self-defense).

United States v. Torres-Ortega,184 F.3d 1128 (10th Cir. 1999)


(Admission of grand jury testimonyviolated confrontation).

United States v. Samaniego, 187F.3d 1222 (10th Cir. 1999) (Therewas no foundation for admission ofbusiness records).

United States v. Sumner, 204 F.3d1182 (8th Cir. 2000) (Child’sstatement to psychologist washearsay).

United States v. Byrd, 208 F.3d592 (7th Cir. 2000) (Defendant wasprevented from introducing shacklesand restraints in which he was heldduring alleged assault on officers).

*Lajoie v. Thompson, 217 F.3d663 (9th Cir. 2000) (Noticerequirement of rape shield lawviolated right of confrontation).

United States v. Rhynes, 218 F.3d310 (4th Cir. 2000) (Sequestereddefense witness should not havebeen excluded for violating rule).

Schaal v. Gammon, 233 F.3d 1103(8th Cir. 2000) (Admission ofvideotape of victim’s statementsviolated confrontation).

Agnew v. Leibach, 250 F.3d 1308(11th Cir. 2001) (Bailiff wasimproperly called to testify aboutdefendant’s confession).

United States v. Wells, 262 F.3d455 (5th Cir. 2001) (Witness couldnot testify to contents of destroyedbusiness records).

Impeachment*United States v. Cooks, 52 F.3d101 (5th Cir. 1995) (Court refusedto allow government witness to bequestioned about jeopardy fromsame charges).

United States v. Acker, 52 F.3d509 (4th Cir. 1995) (Prior consistentstatements were not admissiblebecause they were made prior to the

witness having a motive tofabricate).

United States v. Tory, 52 F.3d 207(9th Cir. 1995) (Witness’ statementthat the robber wore sweat pantswas inconsistent with priorstatement that he wore white pants).

United States v. Rivera, 61 F.3d131 (2d Cir.), cert. denied, 520 U.S.1132 (1997) (Court should not haveadmitted an attached factualstipulation when allowing defendantto impeach a witness with a pleaagreement).

United States v. Blum, 62 F.3d 63(2d Cir. 1995) (Court excludedevidence relevant to the witness’motive to testify).

United States v. Platero, 72 F.3d806 (10th Cir. 1995) (Courtexcluded cross examination of asexual assault victim’s relationshipwith a third party).

United States v. Landerman, 109F.3d 1053 (5th Cir.), modified, 116F.3d 119 (1997) (The defendantshould have been allowed toquestion a witness about a pendingstate charge).

*United States v. Mulinelli-Nava,111 F.3d 983 (1st Cir. 1997) (Courtlimited cross examination regardingtheory of defense).

United States v. James, 169 F.3d1210 (9th Cir. 1999) (Records ofvictim’s violence were relevant toself-defense).

Schledwitz v. United States, 169F.3d 1003 (6th Cir. 1999)(Defendant could expose bias ofwitness involved in investigation).

United States v. Manske, 186 F.3d770 (7th Cir. 1999) (Defendantcould cross-examine witness abouthis threats to other witnesses abouttheir testimony).

United States v. Beckman, 222F.3d 512 (8th Cir. 2000) (Limitingd e f e n s e c r o s s v i o l a t e dconfrontation).

United States v. Doherty, 233 F.3d1275 (11th Cir. 2000) (Court shouldhave admitted evidence of agent’sthreat against defense witness).

Wilkerson v. Cain, 233 F.3d 886(5th Cir. 2000) (Limit on questioningeye witness violated confrontation).

Redmond v. Kingston, 240 F.3d590 (7th Cir. 2001) (Defendant wasprohibited from cross examiningrape victim about prior false claim).

Thomas v. Hubbard, 273 F.3d 116(9th Cir. 2001) (Defendant shouldhave been able to question officersabout missing witness who wassuspect).

Co-Defendant’sStatements

United States v. Montilla-Rivera,115 F.3d 1060 (1st Cir. 1997)(Exculpatory affidavits of co-defendants, who claimed FifthAmendment privilege, were newlydiscovered evidence regarding amotion for new trial).

*United States v. Glass, 128 F.3d1398 (10th Cir. 1997) (Introductionof a co-defendant’s incriminatingstatement violated Bruton).

*United States v. Peterson, 140F.3d 819 (9th Cir. 1998) (Brutonviolation occurred).

Gray v. Maryland, 523 U.S. 185(1998) (Bruton prohibited redactedconfession, which obviouslyreferred to defendant).

Lilly v. Virginia, 527 U.S. 116(1999) (Admission of accompliceconfession denied confrontation).


United States v. McCleskey, 228F.3d 640 (6th Cir. 2000) (Admissionof non-testifying co-defendant’sstatement denied confrontation).

United States v. Reynolds, 268F.3d 572 (8th Cir. 2001) (Evidenceaga ins t co-defendant wasinadmissible when he admittedunderlying crime).

MisconductUnited States v. Flores-Chapa, 48F.3d 156 (5th Cir. 1995) (Prosecutorreferred to excluded evidence).

*United States v. Kallin, 50 F.3d689 (9th Cir. 1995) (Prosecutorcommented upon the defendant’sfailure to come forward with anexplanation).

United States v. Gaston-Brito, 64F.3d 11 (1st Cir. 1995) (Hearingwas necessary to determine if anagent improperly gestured towarddefense table in front of the jury).

United States v. Tenorio, 69 F.3d1103 (11th Cir. 1995) (Prosecutorcommented upon the defendant’ssilence).

*United States v. Cannon, 88 F.3d1495 (8th Cir. 1996) (Prosecutor’sreference to black defendants, whowere not from North Dakota, as“bad people,” was not harmless).

*United States v. Roberts, 119F.3d 1006 (1st Cir. 1997)(Prosecutor commented ondefendant’s failure to testify andmisstated burden of proof).

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

United States v. Johnston, 127F.3d 380 (5th Cir. 1997) (Prosecutorcommented on the defendant’sfailure to testify and asked questionshighlighting defendant’s silence).

United States v. Wilson, 135 F.3d291 (4th Cir.), cert. denied, 523 U.S.1143 (1998) (Prosecutor’s argumentthat defendant was a murdererprejudiced drug case).

*United States v. Vavages, 151F.3d 1185 (9th Cir. 1998)(Prosecutor coerced defense witnessinto refusing to testify).

United States v. Maddox, 156 F.3d1280 (D.C. Cir. 1999) (Prosecutor’sargument referred to matters not inevidence).

Agardu v. Portuondo, 159 F.3d 98(2d Cir.), cert. denied, 526 U.S.1016 (1999) (Prosecutor claimedthat defendant was less crediblewithout arguing any facts insupport).

United States v. Rodrigues, 159F.3d 607 (D.C. Cir. 1999) (Improperclosing by prosecutor).

United States v. Richardson, 161F.3d 728 (D.C. Cir. 1999) (Improperremarks by prosecutor).

United States v. Golding, 168 F.3d700 (4th Cir. 1999) (Prosecutorthreatened defense witness withprosecution if she testified).

United States v. Francis, 170 F.3d546 (6th Cir. 1999) (Cumulativeacts of prosecutorial misconduct).

*Smith v. Groose, 205 F.3d 1045(8th Cir.), cert. denied, 531 U.S. 985(2000) (Prosecution arguedcontradictory facts in two differentbut related trials).

United States v. Cabrera, 222 F.3d590 (9th Cir. 2000) ( Repeatedreferences to “Cuban drug dealers”).

United States v. Beeks, 224 F.3d741 (8th Cir. 2000) (Prosecutor’squestioning violated prior in limineruling).

United States v. LaPage, 231 F.3d

488 (9th Cir. 2000) (Prosecutor usedperjured testimony).

Sandoval v. Calderon, 241 F.3d765 (9th Cir. 2001) (Prosecutionreferred to religious authority forsentence).

United States v. Sigma Intern.Inc., 244 F.3d 841 (11th Cir. 2001)(Prosecutorial misconduct beforegrand jury invalidated indictment).

United States v. Adkinson, 247F.3d 1289 (11th Cir. 2001) (Badfaith inclusion of bank fraud chargewarranted reimbursement ofattorney’s fees).

United States v. Rodriguez, 260F.3d 416 (5th Cir. 2001) (Prosecutorargued jury could infer guilt frompost-arrest silence).

ExtraneousEvidence

United States v. Rodriguez, 45F.3d 302 (9th Cir. 1995) (Evidenceof flight a month after crime wasinadmissible to prove an intent topossess).

*United States v. Blackstone, 56F.3d 1143 (9th Cir. 1995) (Drug usewas improperly admitted in felon inpossession case).

United States v. Moorehead, 57F.3d 875 (9th Cir. 1995) (Evidencethat the defendant was a drug dealershould not have been admitted infirearms case).

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

United States v. McDermott, 64 F.3d 1448 (10th Cir. 1995)(Evidence that the defendantthreatened a witness should not have


been admitted because it was notclear the defendant knew the personwas a witness).

*United States v. Vizcarra-Martinez, 66 F.3d 1006 (9th Cir.1995) (Evidence of personal use ofmethamphetamine at the time of thed e f e n d a n t ’ s a r r e s t w a sinadmissible).

*United States v. Elkins, 70 F.3d81 (10th Cir. 1995) (Evidence of thedefendant’s gang membership wasimproperly elicited).

United States v. Irvin, 87 F.3d 860(7th Cir.), cert. denied, 519 U.S. 903(1997) (Court should have excludedtestimony that the defendant was ina motorcycle gang).

*United States v. Utter, 97 F.3d509 (11th Cir. 1996) (In arson case,it was error to admit evidence thatthe defendant threatened to burn histenant’s house or that thedefendant’s previous residence hadburned).

*United States v. Lecompte, 99F.3d 274 (8th Cir. 1996) (Evidenceof prior contact with alleged victimsdid not show plan or preparation).

*United States v. Jobson, 102 F.3d214 (6th Cir. 1996) (Court failed toadequately limit evidence of thedefendant’s gang affiliation).

United States v. Murray, 103 F.3d310 (3rd Cir. 1997) (Evidence thatan alleged murderer had killedbefore was improperly admitted in aCCE case).

*United States v. Fulmer, 108 F.3d1486 (1st Cir. 1997) (Allowingtestimony about bombing of federalbuilding was prejudicial).

United States v. Paguio, 114 F.3d928 (9th Cir. 1997) (Evidence thatthe defendant previously applied fora loan was prejudicial).

Old Chief v. United States, 519

U.S. 172 (1997) (Court abused itsdiscretion by refusing to accept thedefendant’s offer to stipulate that hewas a felon, in a trial for being afelon in possession of a firearm).

*United States v. Sumner, 119F.3d 658 (8th Cir. 1997) (Whendefendant denied the crimeoccurred, prior acts to prove intentwere not admissible).

United States v. Millard, 139 F.3d1200 (8th Cir. 1998) Prior drugconvictions erroneously admitted).

United States v. Mulder, 147 F.3d703 (8th Cir. 1998) (Bank’s routinepractice was irrelevant to fraudprosecution).

*United States v. Ellis, 147 F.3d1131 (9th Cir. 1998) (Testimonyabout destructive power ofexplosives was prejudicial).

*United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir.1998) (Pornographic films shouldnot have been displayed in light ofdefendant’s offer to stipulate).

United States v. Spinner, 152 F.3d950 (D.C. Cir. 1998) (Lettercontaining evidence of prior badacts should not have been admitted).

United States v. Polasek, 162 F.3d878 (5th Cir. 1999) (Convictions ofdefendant’s associates should nothave been admitted).

*United States v. Jean-Baptiste,166 F.3d 102 (2d Cir. 1999)(Admission of prior bad act wasplain error absent evidence itactually occurred).

United States v. Lawrence, 189F.3d 838 (9th Cir. 1999) (Testimonyregarding defendant’s marriage wasmore prejudicial than probative).

United States v. Heath, 188 F.3d916 (7th Cir. 1999) (Previous arrestwas not admissible prior bad act).

United States v. Anderson, 188F.3d 886 (7th Cir. 1999) (Prior badact was more than 10 years old).

United States v. Walton, 217 F.3d443 (7th Cir. 2000) (Evidence ofprior unsolved theft was irrelevant).

United States v. Jimenez, 214 F.3d1095 (9th Cir. 2000) (Description ofdefendant’s prior convictioninvolving firearm was not harmless).

United States v. Varoudakis, 233F.3d 113 (1st Cir. 2000) (Evidenceof previous fire was moreprejudicial than probative).

United States v. Grimes, 244 F.3d375 (5th Cir. 2001) (Narrativesfound on defendant’s computershould not have been introduced inchild porn case).

IdentificationUnited States v. Emanuele, 51F.3d 1123 (3rd Cir. 1995)(Identification, made after seeing thedefendant in court, and after afailure to identify him before,should have been suppressed).

*United States v. Hairston, 64F.3d 491 (9th Cir. 1995) (Alibiinstruction was required whenevidence of alibi was introduced inthe government’s case).

*Lyons v. Johnson, 99 F.3d 499(2d Cir. 1996) (Court denied thedefendant the right to display awitness in support of amisidentification defense).

United States v. Montgomery, 100F.3d 1404 (8th Cir. 1996) (Co-defendants should have beenrequired to try on clothing, afterdefendant had to, when thegovernment put ownership at issue).

ExpertTestimony


*United States v. Boyd, 55 F.3d667 (D.C. Cir. 1995) (Officer reliedupon improper hypothetical in drugcase).

United States v. Shay, 57 F.3d 126(1st Cir. 1995) (Defense expertshould have been allowed to explainthat the defendant had a disorderthat caused him to lie).

United States v. Posado, 57 F.3d428 (5th Cir. 1995) (Per se ruleprohibiting polygraph evidence wasabolished by Daubert).

United States v. Childress, 58 F.3d693 (D.C. Cir.), cert. denied, 516U.S. 1098 (1996) (Defense expertshould have been allowed to testifyon the defendant’s inability to formintent).

United States v. Velasquez, 64F.3d 844 (3rd Cir. 1995) (Defenseexpert should have been allowed totestify on the limitations ofhandwriting analysis).

Rupe v. Wood, 93 F.3d 1434 (9th

Cir.), cert. denied, 519 U.S. 1142(1997) (Exclusion of a witness’failed polygraph results denied dueprocess).

United States v. Hall, 93 F.3d 1337(7th Cir. 1996) (Expert testimonythat the defendant had a disorderthat may have caused him to make afalse confession should have beenadmitted).

Calderon v. U.S. District Court,107 F.3d 756 (9th Cir.), cert. denied,522 U.S. 907 (1997) (CJA funds forexpert could be used to exhaust astate claim).

*United States v. Morales, 108F.3d 1031 (9th Cir. 1997) (Thecourt should not have excluded adefense expert on bookkeeping).

*Lindh v. Murphy, 124 F.3d 899

(7th Cir.), cert. denied, 522 U.S.1069 (1998) (Defendant was notallowed to examine the state’spsychiatrist about allegations ofsexual improprieties with patients).

*United States v. Word, 129 F.3d1209 (11th Cir. 1997) (Laytestimony of abuse to defendant wasadmissible).

United States v. Dixon, 185 F.3d393 (5th Cir. 1999) (Courtimproperly refused instruction oninsanity based upon experttestimony).

United States v. Barnette, 211 F.3d803 (4th Cir. 2000) (Defendant wasprevented from presenting expert toanswer government’s rebuttal experttestimony).

*United States v. Smithers, 212F.3d 306 (6th Cir. 2000) (Courtexcluded expert on identificationwithout a hearing).

*United States v. Velarde, 214F.3d 1204 (10th Cir. 2000) (Courtfailed to make reliabilitydetermination about government’sexpert testimony).

United States v. Henke, 222 F.3d633 (9th Cir. 2000) (Lay witnesscould not testify to what defendantknew about regulatory scheme).

*United States v. Vallejo, 237 F.3d1008 (9th Cir. 2001) (Exclusion ofdefense experts regardingdefendant’s ability to communicatein English).

United States v. Watson, 260 F.3d301 (3rd Cir. 2001) (Drug agentscould not give opinion aboutdefendant’s intent).

United States v. McGowan, 274F.3d 1251 (9th Cir. 2001)(Testimony about nature of drugtrafficking organizations wasinadmissible).

EntrapmentUnited States v. Reese, 60 F.3d 660(9th Cir. 1995) (Entrapmentinstruction failed to tell the jury thatthe government must prove beyonda reasonable doubt that thedefendant was predisposed).

United States v. Bradfield, 113F.3d 515 (5th Cir. 1997) (Evidencesupported an instruction onentrapment).

*United States v. Duran, 133 F.3d1324 (10th Cir. 1998) (Entrapmentinstruction failed to place burden ongovernment).

United States v. Thomas, 134 F.3d975 (9th Cir. 1998) (Defendant maypresent good prior conduct tosupport entrapment defense).

United States v. Sligh, 142 F.3d761 (4th Cir. 1998) (Court failed togive instruction on entrapment).

*United States v. Burt, 143 F.3d1215 (9th Cir. 1998) (Entrapmentinstruction failed to place properburden on government).

United States v. Gamache, 156F.3d 1 (1st Cir. 1998) (Jury shouldhave been ins t ruc ted onentrapment).

United States v. Poehlman, 217F.3d 692 (9th Cir. 2000) (Defendantwas entrapped as matter of law).

*United States v. Brooks, 215 F.3d842 (8th Cir. 2000) (Drug defendantwas entrapped as matter of law).

DefensesUnited States v. Tory, 52 F.3d 207(9th Cir. 1995) (Defense wasprevented from arguing that anabsence of evidence implied thatevidence did not exist).


United States v. Ruiz, 59 F.3d1151 (11th Cir.), cert. denied, 516U.S. 1133 (1996) (Defendant hasthe right to have the jury instructedon his theory of defense).

United States v. Hall, 77 F.3d 398(11th Cir. 1996) (Defendant’scounsel was improperly prohibitedfrom addressing general principlesof reasonable doubt in closing).

*United States v. Talbott, 78 F.3d1183 (7th Cir. 1996) (Juryinstruction could not shift theburden to the defendant on the issueof self-defense).

*United States v. Otis, 127 F.3d829 (9th Cir. 1997) (Duressinstruction was omitted).

*United States v. Benally, 146F.3d 1232 (10th Cir. 1998)(Defendant was entitled toinstructions on self-defense andlesser included offense).

United States v. Sanchez-Lima,161 F.3d 545 (9th Cir. 1999) (Self-defense instruction should havebeen given).

United States v. Smith, 217 F.3d746 (9th Cir. 2000) (Court failed toinstruct upon defendant’s theory ofthe case).

United States v. Crowley, 236 F.3d104 (2d Cir. 2000) (Jury shouldhave been charged on voluntaryintoxication).

JuryInstructions

Smith v. Singletary, 61 F.3d 815(11th Cir.), cert. denied, 516 U.S.1140 (1996) (Court failed to givemitigating instruction in a capitalcase).

*United States v. Birbal, 62 F.3d

456 (2nd Cir. 1995) (Jurors wereinstructed they “may” acquit, ratherthan they “must” acquit, if thegovernment did not meet itsburden).

*United States v. Ahmad, 101 F.3d386 (5th Cir. 1996) (Juryinstructions in a pollution caseimplied strict liability rather than therequirement of knowledge).

United States v. Rodgers, 109 F.3d1138 (6th Cir. 1997) (If a courtallows a jury to review trialtestimony, there must be acautionary instruction not to placeupon it undue emphasis).

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

United States v. Doyle, 130 F.3d523 (2d Cir. 1997) (Erroneousinstructions stated that presumptionof innocence and reasonable doubtwere to protect only the innocent).

United States v. Wilson, 133 F.3d251 (4th Cir. 1997) (Juryinstructions did not adequatelyimpose burden of provingknowledge).

*United States v. Romero, 136F.3d 1268 (10th Cir. 1998) (“Law ofthe case” required element named injury instruction to be proven).

*United States v. Rossomando,144 F.3d 197 (2d Cir. 1998)(Ambiguous jury instruction misledjurors).

United States v. Lampkin, 159F.3d 607 (D.C. Cir. 1999) (Juryimproperly instructed thatgovernment could not prosecutejuvenile witnesses).

United States v. Prawl, 168 F.3d622 (2d Cir. 1999) (Court refused toinstruct jury not to consider co-defendants guilty plea).

Jenkins v. Huchinson, 221 F.3d679 (4th Cir. 2000) (Reasonabledoubt instruction improperlyindicated it was only advisory).

United States v. Chanthadara, 230F.3d 1237 (10th Cir. 2000) (Judgesaid that defense was a “smokescreen”).

*United States v. Gardner, 244F.3d 784 (10th Cir. 2001) (Failureto instruct on uncorroboratedaccomplice testimony).

DeliberationsUnited States v. Berroa, 46 F.3d1195 (D.C. Cir. 1995) (Allen chargevaried from ABA standard).

United States v. Harber, 53 F.3d236 (9th Cir. 1995) (Case agent’sreport was taken into the jury room).

United States v. Burgos, 55 F.3d933 (4th Cir. 1995) (Allen chargeasked jurors to think about givingup firmly held beliefs).

*United States v. Araujo, 62 F.3d930 (7th Cir. 1995) (Verdict wastaken from eleven jurors when thetwelfth was delayed by car trouble).

*United States v. Ottersburg, 76F.3d 137 (7th Cir.), clarified, 81F.3d 657 (1996) (Plain error toallow alternate jurors to deliberatewith the jury).

*United States v. Manning, 79F.3d 212 (1st Cir.), cert. denied, 519U.S. 853 (1996) (Court should havegiven a “yes or no” answer to adeadlocked jury’s question, ratherthan refer them to the testimony).

United States v. Berry, 92 F.3d597 (7th Cir. 1996) (Jury improperlyconsidered a transcript, rather thanthe actual tape).


United States v. Benedict, 95 F.3d17 (8th Cir. 1996) (Trial court shouldnot have accepted partial verdicts).

United States v. Thomas, 116 F.3d606 (2d Cir. 1997) (Juror should nothave been dismissed when he didnot admit to refusing to follow thelaw during deliberations).

United States v. Hall, 116 F.3d1253 (8th Cir. 1997) (Exposure ofjury to unrelated, but prejudicialmatters, required new trial).

United States v. Keating, 147 F.3d895 (9th Cir. 1998) (Reasonableprobability of juror prejudicerequired new trial).

United States v. Lampkin, 159F.3d 607 (D.C. Cir. 1999) (Jury wasallowed to consider tapes not inevidence).

United States v. Beard, 161 F.3d1190 (9th Cir. 1999) (Error tosubstitute alternates for jurors afterdeliberations began).

United States v. Spence, 163 F.3d1280 (11th Cir. 1999) (Jurordismissed during deliberationswithout just cause).

United States v. Eastern MedicalBilling, Inc., 230 F.3d 600 (3rd Cir.2000) (Allen charge was coercive).

United States v. Lloyd, 269 F.3d228 (3rd Cir. 2001) (Courtoverstepped authority to inquire intojuror’s decision).

VarianceUnited States v. Gilbert, 47 F.3d1116 (11th Cir.), cert. denied, 516U.S. 851 (1995) (Proof of failure tocomply with a directive of a federalofficer was in variance with theoriginal charge).

United States v. Johansen, 56 F.3d347 (2d Cir. 1995) (Variance whennone of the conspiracies alleged

were proven).

*United States v. Tsinhnahijinnie,112 F.3d 988 (9th Cir. 1997) (Fatalvariance between pleading andproof of date of offense).

*United States v. Mohrbacher,182 F.3d 1041 (9th Cir. 1999)(Variance between charge oftransporting child pornography andproof of mere receipt).

United States v. Ramirez, 182 F.3d544 (7th Cir. 1999) (Variancebetween charge and proof in firearmcase).

United States v. Shipsey, 190 F.3d1081 (9th Cir. 1999) (Court’sinstruction to jury constructivelyamended indictment).

United States v. Pigee, 197 F.3d879 (7th Cir. 1999) (Jury instructionconstructively amended indictment).

United States v. McDermott, 245F.3d 133 (2d Cir. 2001) (Variancebetween conspiracy charged andproof at trial).

Speech /Assembly

United States v. Popa, 187 F.3d672 (D.C. Cir. 1999) (Convictionfor harassing AUSA with racialepithets violated first amendment).

United States v. Baugh, 187 F.3d1037 (9th Cir. 1999) (Assembly atnational park could not beconditioned on promise not totrespass).

United States v. Frandsen, 212F.3d 1231 (11th Cir. 2000)(Requiring permit to make publicexpression of views was illegal priorrestraint).

United States v. Poocha, 259 F.3d1077 (9th Cir. 2001) (Use ofprofanity to a park ranger was not

disturbing the peace).

InterstateCommerce

United States v. Box, 50 F.3d 345(5th Cir.), cert. denied, 516 U.S. 714(1996) (Extortion of interstatetravelers did not involve interstatecommerce).

*United States v. Cruz, 50 F.3d714 (9th Cir. 1995) (Shipment offirearm in interstate commerce mustoccur after the firearm is stolen).

*United States v. Quigley, 53 F.3d909 (8th Cir. 1995) (Liquor storerobbery did not affect interstatecommerce).

United States v. Grey, 56 F.3d1219 (10th Cir. 1995) (Use ofcurrency did not involve interstatecommerce).

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

*United States v. Barone, 71 F.3d1442 (9th Cir. 1995) (False checksdid not involve interstatecommerce).

United States v. Denalli, 90 F.3d444 (11th Cir. 1996) (Arson ofneighbor’s home did not involveinterstate commerce).

*United States v. Gaydos, 108 F.3d505 (3rd Cir. 1997) (Insufficientevidence that arson involvedinterstate commerce).

United States v. Izydore, 167 F.3d213 (5th Cir. 1999) (No evidencethat phone calls crossed state linesfor wire fraud interstate nexus).

United States v. Wilson, 182 F.3d737 (10th Cir. 1999) (Insufficientevidence of child pornographyshipped in interstate commerce).


*United States v. Spinner, 180F.3d 514 (3rd Cir. 1999)(Indictment failed to allege elementof interstate commerce).

United States v. Causey, 185 F.3d407 (5th Cir.), cert. denied, 530 U.S.1277 (2000) ( No federal nexusshown regarding communication).

Jones v. United States, 539 U.S.848 (2000) (Residence that was notused for commercial purpose did notinvolve interstate commerce inarson case).

*United States v. Wang, 222 F.3d234 (6th Cir. 2000) (Robbery ofcash did not have sufficient impacton interstate commerce).

United States v. King, 227 F.3d732 (6th Cir. 2000) (Arson did notaffect interstate commerce).

United States v. Corp, 236 F.3d325 (6th Cir. 2001) (Photos of childtaken by defendant did not havesufficient connection to interstatecommerce).

United States v. Johnson, 246 F.3d749 (5th Cir. 2001) (Plea lackedfactual basis for connection tointerstate commerce).

United States v. Turner, 272 F.3d380 (6th Cir. 2001) (Robbery ofindividual who ran illegal lottery didnot affect interstate commerce).

ConspiracyUnited States v. Newton, 44 F.3d913 (11th Cir.), cert. denied, 516U.S. 857 (1995) (Leasing residencefor a drug dealer did not prove thedefendant’s participation in aconspiracy).

United States v. Lluesma, 45 F.3d408 (11th Cir. 1995) (Proof ofconspiracy to export stolen vehicleswas insufficient against defendantwho did odd jobs for mid-levelconspirator).

United States v. Flores-Chapa, 48F.3d 156 (5th Cir. 1995)(Defendant’s beeper and personaluse of drugs was not proof ofconspiracy).

United States v. Lewis, 53 F.3d 29(4th Cir. 1995) (Court failed toinstruct the jury that conspiring witha government agent alone requiredan acquittal).

United States v. Ross, 58 F.3d 154(5th Cir.), cert. denied, 516 U.S. 954(1995) (Defendant was not aconspirator merely because he solddrugs at same location asconspirators).

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

United States v. Lopez-Ramirez,68 F.3d 438 (11th Cir. 1995)(Insufficient evidence of conspiracyas to defendant who was present inhome where 65 kilos of cocaine wasdelivered and then seized).

United States v. Palazzolo, 71 F.3d1233 (6th Cir. 1995) (Verdict formfailed to distinguish the object of theconspiracy).

United States v. Martinez, 83 F.3d371 (11th Cir.), cert. denied, 519U.S. 998 (1997) (Defendant’sconviction for conspiracy to possesscocaine was reversed because therewas no evidence beyond defendant’sintent to help coconspirators stealmoney).

*United States v. Thomas, 114F.3d 403 (3rd Cir. 1997)(Insufficient evidence of aconspiracy, when it was not shownthat defendant knew cocaine was inbag he was to retrieve).

United States v. Cruz, 127 F.3d791 (9th Cir. 1997) (A defendantcould not join a conspiracy that wasalready completed).

United States v. Jensen, 141 F.3d830 (8th Cir. 1998) (Insufficientevidence of drug conspiracy).

United States v. Paul, 142 F.3d 836(5th Cir. 1998) (Insufficientevidence of conspiracy to import).

United States v. Toler, 144 F.3d1423 (11th Cir. 1998) (Insufficientevidence that defendant participatedin conspiracy).

United States v. Thomas, 150 F.3d743 (7th Cir. 1998) (Defendant wasentitled to instruction thatbuyer/seller relationship is not itselfa conspiracy).

United States v. Garcia, 151 F.3d1243 (9th Cir. 1998) (Gangrelationship alone did not supportconspiracy).

United States v. Gore, 154 F.3d 34(2d Cir. 1998) (Buyer/sellerrelationship did not establishconspiracy).

*United States v. Idowu, 157 F.3d265 (3rd Cir. 1999) (Insufficientevidence that defendant knewpurpose of drug conspiracy).

United States v. Meyer, 157 F.3d1067 (7th Cir.), cert. denied, 526U.S. 1070 (1999) (Court shouldhave instructed that merebuyer/seller relationship did notestablish conspiracy).

United States v. Morillo, 158 F.3d18 (1st Cir. 1999) (Insufficientevidence of drug conspiracy).

United States v. Dekle, 165 F.3d826 (11th Cir. 1999) (Insufficientevidence that doctor conspired toillegally distribute drugs).

United States v. Mercer, 165 F.3d1331 (11th Cir. 1999) (Insufficientevidence of a drug conspiracy).

*United States v. Vaghela, 169F.3d 729 (11th Cir. 1999)(Insufficient evidence of conspiracy


to obstruct justice).

United States v. Torres-Ramirez,213 F.3d 978 (7th Cir. 2000)(Purchase of drugs and knowledgeof conspiracy did not makedefendant a co-conspirator).

*United States v. Estrada-Macias,218 F.3d 1064 (9th Cir. 2000)(Mere presence and knowledge of aconspiracy were insufficient toconvict).

*United States v. Fuchs, 218 F.3d957 (9th Cir. 2000) (No instructionthat conspiracy must have occurredduring statute of limitations).

United States v. Rivera, 273 F.3d751 (7th Cir. 2001) (Merebuyer/seller relationship was notconspiracy).

FirearmsStaples v. United States, 511 U.S.(1994) (When defendant wasprohibited from possessing aparticular kind of firearm, it must beproven he knew that he possessedthat type of firearm).

United States v. Herron, 45 F.3d340 (9th Cir. 1995) (Defendantwhose civil rights were restored wasnot prohibited from possessing afirearm).

United States v. Caldwell, 49 F.3d251 (6th Cir. 1995) (Licensed dealerwho sold firearm away frombusiness was not guilty ofunlicensed sale).

United States v. Anderson, 59 F.3d1323 (D.C. Cir.), cert. denied, 516U.S. 999 (1995) (Multiple §924 (c)convictions must be based onseparate predicate offenses).

Bailey v. United States, 516 U.S.137 (1995) (Passive possession offirearm was insufficient to prove"use" of firearm during drugtrafficking crime).

United States v. Kelly, 62 F.3d1215 (9th Cir. 1995) (Defendantwhose civil rights were restored wasnot prohibited from possessing afirearm).

*United States v. Hayden, 64 F.3d126 (3rd Cir. 1995) (Defendantshould have been allowed tointroduce evidence of his lowintelligence and illiteracy to rebutallegations that he knew he wasunder indictment when buying afirearm).

United States v. Edwards, 90 F.3d199 (7th Cir. 1996) (Defendant mustbe shown to know his shotgun isshorter than 18 inches in length inorder to be liable for failure toregister the weapon).

*United States v. Rogers, 94 F.3d1519 (11th Cir.), cert.denied, 522U.S. 252 (1998) (Government failedto prove a defendant knew that hepossessed a fully automaticweapon).

*United States v. Atcheson, 94F.3d 1237 (9th Cir.), cert. denied,519 U.S. 1140 (1997) (Each §924(c) conviction must be tied to aseparate predicate crime).

United States v. Indelicato, 97F.3d 627 (1st Cir.), cert. denied, 522U.S. 835 (1997) (Defendant who didnot lose his civil rights could not befelon in possession).

*United States v. Casterline, 103F.3d 76 (9th Cir.), cert. denied, 522U.S. 835 (1997) (Felon inpossession charge may not provensolely by ownership).

United States v. Paul, 110 F.3d 869(2d Cir. 1997) (Court failed to giveduress instruction in a felon inpossession case).

United States v. Taylor, 113 F.3d1136 (10th Cir. 1997) (Firearmfound in shared home was notshown to be possessed by thedefendant).

United States v. Stephens, 118F.3d 479 (6th Cir. 1997) (Separatecaches of cocaine possessed on thesame day, did not support twoseparate gun enhancements).

*United States v. Westmoreland,122 F.3d 431 (7th Cir. 1997)(Agent’s presentation of inoperablefirearm to defendant, immediatelybefore arrest, did not supportpossession of a firearm in relation todrug crime).

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

United States v. Norman, 129 F.3d1393 (10th Cir. 1997) (Felon whosecivil rights had been restored wasnot illegally in possession offirearm).

United States v. Perez, 129 F.3d1340 (9th Cir. 1997) (Jury shouldhave been required to decide thetype of firearm).

United States v. Graves, 143 F.3d1185 (9th Cir. 1998) (Accessory tofelon in possession had to know co-defendant was a felon and possessedfirearm).

United States v. Spinner, 152 F.3d950 (D.C. Cir. 1998) (Failure toshow firearm was semiautomaticassault weapon).

United States v. Benboe, 157 F.3d1181 (9th Cir. 1999) (Firearmconviction not supported byevidence).

United States v. Sanders,157 F.3d302 (5th Cir. 1999) (Insufficientevidence that defendant carriedfirearm).

United States v. Mount, 161 F.3d675 (11th Cir. 1999) (Weaponfound in stairwell was not carried).

United States v. Gilliam, 167 F.3d


628 (D.C.), cert. denied, 526 U.S.(1999) (Failed to prove priorconviction in felon in possession).

*United States v. Aldrich, 169F.3d 526 (8th Cir. 1999) (Vacatingrelated gun count required entirenew trial on others).

*United States v. Meza-Corrales,183 F.3d 1116 (9th Cir. 1999)(Felon had civil rights restored andcould possess firearms).

United States v. Martin, 180 F.3d965 (8th Cir. 1999) (Insufficientevidence of constructive possessionof a firearm).

United States v. Fowler, 198 F.3d808 (11th Cir. 1999) (Restoration ofrights by state allowed firearmspossession).

United States v. Howard, 214 F.3d 361 (2d Cir. 2000) ( Jury couldnot infer defendant knew firearmwas stolen merely because he wasfelon, or that firearm was found nextto one with obliterated serialnumber).

*United States v. Adams, 214 F.3d724 (6th Cir. 2000) (Simultaneouspossession of firearm andammunition may result in only oneconviction).

United States v. Coleman, 208F.3d 786 (9th Cir. 2000)(Insufficient evidence that defendantknew co-defendant had a firearm forarmed bank robbery conviction).

United States v. Mason, 233 F.3d619 (D.C. Cir. 2000) (Felon couldget instruction that firearm wasbriefly possessed for legal purpose).

*United States v. Hishaw, 235F.3d 565 (10th Cir. 2000)(Insufficient evidence that defendantpossessed firearm found under hiscar seat).

United States v. Sanders, 240 F.3d1279 (10th Cir. 2001) (Evidence did

not prove defendant knew thatweapon had silencer).

United States v. Finley, 245 F.3d199 (2d Cir. 2001) (Single guncould not be used for twopossessions during a drugtrafficking crime).

United States v. Atkins, 276 F.3d1141 (9th Cir. 2001) (Evidence wasinsufficient that defendant hadvalidly waived counsel to domesticviolence charge that was basis forfederal firearms offense).

United States v. Laskie, 258 F.3d1047 (9th Cir. 2001) (“Honorabledischarge” of drug offense inNevada counts as a set aside of theprior conviction).

United States v. Osborne, 262 F.3d486 (5th Cir. 2001) (Civil rightswere restored even though state lawwas later changed).

United States v. Fix, 264 F.3d 532(5th Cir. 2001) (Granting new trialfor state conviction removeddisability to possess firearm).

Extortion*United States v. Tomblin, 46 F.3d1369 (5th Cir. 1995) (Private citizendid not act under color of officialright).

*United States v. Scotti, 47 F.3d1237 (2d Cir. 1995) (Facilitatingpayment of a debt was notextortion).

*United States v. Delano, 55 F.3d720 (2d Cir. 1995) (Services orlabor were not property within themeaning of a statute used as apredicate for RICO).

*United States v. Wallace, 59 F.3d333 (2d Cir. 1995) (Demandingpayment from fraudulent checkscheme was not extortion).

United States v. Allen, 127 F.3d260 (2d Cir. 1997) (Insufficientevidence of extortionate credit whenterms of loan were consensual).

United States v. Houston, 217 F.3d1204 (9th Cir. 2000) (No specificfinding of express threat of death).

DrugsUnited States v. Jones, 44 F.3d 860(10th Cir. 1995) (Car passenger wasnot shown to have knowledge of thedrugs).

*United States v. Johnson, 46 F.3d1166 (D.C. Cir. 1995) (Governmentfailed to prove distribution within1000 feet of a school).

United States v. Medjuck, 48 F.3d1107 (9th Cir. 1995) (Governmentfailed to show a nexus to U.S.territory).

United States v. Valerio, 48 F.3d58 (1st Cir. 1995) (Insufficientevidence that the drugs wereintended for distribution).

*United States v. Andujar, 49 F.3d16 (1st Cir. 1995) (There was nomore evidence than mere presence).

United States v. Jones, 49 F.3d 628(10th Cir. 1995) (Inferences derivedfrom standing near open trunk didnot prove knowledge).

*United States v. Polk, 56 F.3d 613(5th Cir. 1995) (Use of thedefendant’s car and home wereinsufficient to show participation).

United States v. Horsley, 56 F.3d50 (11th Cir. 1995) (Distribution ofcocaine is lesser included offense ofdistribution of cocaine within a1,000 feet of a school, and the juryshould be charged accordingly).

*United States v. Kitchen, 57 F.3d


516 (7th Cir. 1995) (Momentarilypicking up a kilo for inspection wasnot possession).

United States v. Kearns, 61 F.3d1422 (9th Cir. 1995) (Brief samplingof marijuana was not possession).

*United States v. Lucien, 61 F.3d366 (5th Cir. 1995) (Instruction onsimple possession should have beengiven in a drug distribution case).

*United States v. Applewhite, 72F.3d 140 (D.C. Cir.), cert. denied,517 U.S. 1227 (1996) (Governmentfailed to prove distribution within a1000 feet of a school).

United States v. Derose, 74 F.3d1177 (11th Cir. 1996) (Insufficientevidence that the defendant tookpossession of marijuana when hedid not have key to car where drugswere stored).

United States v. Baron, 94 F.3d1312 (9th Cir.), cert. denied, 519U.S. 1047 (1996) (Court committedplain error by giving a deliberateignorance instruction when therewas no evidence that the defendantknew, or avoided learning, ofsecreted drugs).

United States v. Wozniak, 126F.3d 105 (2d Cir. 1997) (Charge onmarijuana impermissibly amendedindictment alleging cocaine andmethamphetamine).

*United States v. Hunt, 129 F.3d739 (5th Cir. 1997) (There wasinsufficient evidence of an intent todistribute).

United States v. Soto-Silva, 129F.3d 340 (5th Cir. 1997)(Deliberateignorance instruction was notwarranted for charge of maintainingpremises for drug distribution).

United States v. Brito, 136 F.3d397 (5th Cir. 1998) (Evidence thatdefendant was asked to find driversdid not prove constructivepossession of hidden marijuana).

United States v. Lombardi,138F.3d 559 (5th Cir. 1998) (Evidencedid not support conviction for usingjuvenile to commit drug offense).

United States v. Leonard, 138 F.3d906 (11th Cir. 1998) (Insufficientevidence that passenger of vehiclepossessed drugs or gun hidden incar).

United States v. Sampson, 140F.3d 585 ( 4th Cir. 1998)(Insufficient evidence that drugoffense occurred within 1000 feet ofa playground or public housing).

United States v. Delagarza-Villarreal, 141 F.3d 133 (5th Cir.1997) (Insufficient evidence ofpossession of marijuana wheredefendant never took control).

*United States v. Ortega-Reyna,148 F.3d 540 (5th Cir. 1998)(Insufficient evidence that drugshidden in borrowed truck weredefendant’s).

*United States v. Quintanar, 150F.3d 902 (8th Cir. 1998) (Noevidence that defendant exercisedcontrol over contraband).

United States v. Valadez-Gallegos,162 F.3d 1256 (10th Cir. 1999)(Passenger was not linked tocontraband in vehicle).

United States v. Edwards, 166F.3d 1362 (11th Cir. 1999)(Insufficient evidence of drugpossession where defendant merelypicked up package).

United States v. Orduno-Aguilera,183 F.3d 1138 (9th Cir. 1999)(Insufficient evidence that substancewas illegal steroid).

United States v. Monger, 185 F.3d574 (9th Cir. 1999) (Court shouldhave instructed on lesser offense ofsimple possession).

United States v. Garcia-Sanchez,189 F.3d 1143 (9th Cir. 1999) (Drug

quantities not supported by evidencewhere defendant did not agree tosell from specific location).

United States v. Owusu, 199 F.3d329 (6th Cir. 2000) (Insufficientevidence where defendant did notarrange for distribution).

United States v. Bryce, 208 F.3d346 (2d Cir. 2000) (Uncorroboratedadmissions were insufficient toestablish possession or distribution).

United States v. Corral-Gastelum,240 F.3d 1181 (9th Cir. 2001)(Mere proximity to drugs did notprove possession).

CCE / RICO*United States v. Barona, 56 F.3d1087 (9th Cir.), cert. denied, 516U.S. 1092 (1996) (Insufficient tofind a CCE when there were personswho could not be legally counted assupervisees).

United States v. Witek, 61 F.3d819 (11th Cir.), cert. denied, 516U.S. 1060 (1996) (Mere buyer-sellerrelationship did not satisfymanagement requirement forconviction of engaging incontinuing criminal enterprise).

United States v. Russell, 134 F.3d171 (3rd Cir. 1998) (CCEinstruction omitted unanimityrequirement).

United States v. To, 144 F.3d 737(11th Cir. 1998) (Insufficientevidence of RICO and Hobbs Actviolations).

United States v. Polanco, 145 F.3d536 (2d Cir.), cert. denied, 529 U.S.1071 (1999) (Insufficient evidencethat defendant murdered victim tomaintain position in CCE).

Richardson v. United States, 526U.S. 813 (1999) (Jury must agree onspecific violations).


United States v. Frega, 179 F.3d793 (9th Cir.), cert. denied, 528 U.S.1191 (2000) (Court’s instructionfailed to identify potential predicateacts in RICO case).

United States v. Glover, 179 F.3d1300 (11th Cir. 1999) (Role asorganizer or leader must be based onmanaging persons, not merelyassets).

United States v. McSwain, 197F.3d 472 (10th Cir. 1999)(Conspiracy to manufacture anddistribute are lesser offenses ofCCE).

United States v. Brown, 202 F.3d691 (4th Cir. 2000) (Omission ofinstruction requiring unanimity onspecific violations reversed CCEconviction).

United States v. Desena, 260 F.3d150 (2d Cir. 2001) (Talk of “war”and “grabbing shirts” did notsupport CCE).

Fraud / TheftUnited States v. Cannon, 41 F.3d1462 (11th Cir.), cert. denied, 516U.S. 823 (1995) (Proof of falsedocuments to elicit payment ongovernment contracts wasinsufficient when documents did notcontain false information).

*United States v. Manarite, 44F.3d 1407 (9th Cir.), cert. denied,516 U.S. 851 (1995) (Mailings werenot related to scheme to defraud).

*United States v. Altman, 48 F.3d96 (2d Cir. 1995) (Mailings weretoo remote to be related to thefraud).

United States v. Hammoude, 51F.3d 288 (D.C. Cir.), cert. denied,515 U.S. 1128 (1995) (Compositestamp did not make a visa acounterfeit document).

United States v. Wilbur, 58 F.3d

1291 (8th Cir. 1995) (Physician whostole drugs did not obtain them bydeception).

*United States v. Klingler, 61 F.3d1234 (6th Cir. 1995) (Customsbroker’s misappropriation of fundsdid not involve money of the UnitedStates).

*United States v. Valentine, 63F.3d 459 (6th Cir. 1995)(Government agent must convertmore that $5000 in a single year toviolate 18 U.S.C. §666).

*United States v. Campbell, 64F.3d 967 (5th Cir. 1995) (Bankofficers did not cause a loss to thebank).

United States v. Lewis, 67 F.3d225 (9th Cir. 1995) (State charteredforeign bank was not covered by thebank fraud statute).

United States v. Johnson, 71 F.3d139 (4th Cir. 1995) (Courtimproperly instructed the jury that acredit union was federally insured).

United States v. Mueller, 74 F.3d1152 (11th Cir. 1996) (Filing amisleading affidavit to delay a civilproceeding involving a bank wasnot bank fraud).

United States v. Morris, 81 F.3d131 (11th 1996) (Sale of a phonethat disguised its identity was notfraud in connection with an accessdevice).

*United States v. Allen, 88 F.3d765 (9th Cir.), cert. denied, 520 U.S.1202 (1997) (Government failed toprove that a credit union wasfederally insured).

United States v. Wester, 90 F.3d592 (1st Cir. 1996) (Loan’s facevalue was not the proper amount ofloss when collateral was pledged).

United States v. McMinn, 103 F.3d

216 (1st Cir. 1997) (Defendant wasnot in the business of selling stolengoods unless he sold goods stolenby others).

*United States v. Czubinski, 106F.3d 1069 (1st Cir. 1997) (Merelybrowsing confidential computerfiles was not wire fraud or computerfraud).

United States v. Tencer, 107 F.3d1120 (5th Cir.), cert. denied, 522U.S. 960 (1997) (Insurance checksthat were not tied to fraudulentclaims were insufficient proof ofmail fraud).

*United States v. Todd, 108 F.3d1329 (11th Cir. 1997) (Defendantwas improperly prohibited fromintroducing evidence that employeesimplicitly agreed that pension fundscould be used to save the company).

*United States v. Cochran, 109F.3d 660 (10th Cir. 1997) (Therewas insufficient proof of mail fraudw i t h o u t e v i d e n c e o fmisrepresentation).

United States v. Parsons, 109 F.3d1002 (4th Cir. 1997) (Money thatdefendant legitimately spent aspostal employee could not becounted toward fraud).

*United States v. Grossman, 117F.3d 255 (5th Cir. 1997) (Personaluse of funds from business loan wasnot bank fraud).

*United States v. Cross, 128 F.3d145 (3rd Cir.), cert, denied, 523 U.S.1076 (1998) (Fixing cases was notmail fraud just because court maileddisposition notices).

United States v. LaBarbara, 129F.3d 81 (2nd Cir. 1997)(Government failed to show use ofmails in a fraud case).

United States v. Defries, 129 F.3d1293 (D.C. Cir. 1997) (The courtshould have given an advice ofcounsel instruction on an


embezzlement count).

United States v. Baird, 134 F.3d1276 (6th Cir. 1998) (Instructionfailed to charge jury that contractorwas only liable for falsity of costs itclaimed to have incurred).

*United States v. Adkinson, 135F.3d 1363 (11th Cir. 1998)(Dismissal of underlying bank fraudundermined convictions forconspiracy, mail and wire fraudschemes, and money laundering).

*United States v. Rodriguez, 140F.3d 163 (2nd Cir. 1998)(Insufficient evidence of bankfraud).

*United States v. Ely, 142 F.3d1113 (9th Cir. 1997) (Governmentfailed to prove defendant was a bankdirector as charged in theindictment).

*United States v. D’Agostino, 145F.3d 69 (2nd Cir. 1998) (Divertedfunds were not taxable income forpurposes of tax evasion).

*United States v. Schnitzer, 145F.3d 721 (5th Cir. 1998)(Impermissible theory of fraudjustified new trial).

*United States v. Shotts, 145 F.3d1289 (11th Cir.), cert. denied, 525U.S. 1177 (1999) (Bail bond licensewas not property within meaning ofmail fraud statute).

United States v. Hughey, 147 F.3d423 (5th Cir. 1998) (Passing badchecks was not unauthorized use ofan access device).

*United States v. Evans, 148 F.3d477 (5th Cir.), cert. denied, 525 U.S.1112 (1999) (No evidence thatmailings advanced fraudulentscheme).

United States v. Blasini-Lluberas,169 F.3d 57 (1st Cir. 1999) (Therewas no misapplication of bank fundson a debt not yet due).

United States v. Silkman, 156 F.3d833 (8th Cir. 1999) (Administrativetax assessment was not conclusiveproof of tax deficiency).

United States v. Adkinson, 158F.3d 1147 (11th Cir. 1999)(Insufficient evidence of fraud).

United States v. Rodrigues, 159F.3d 439 (9th Cir. 1999)(Insufficient evidence of fraud andtheft).

United States v. Hanson, 161 F.3d896 (5th Cir. 1999) (Factualquestions about bank fraud shouldhave been decided by jury).

United States v. Laljie, 184 F.3d180 (2d Cir. 1999) (No evidencethat checks were altered, thatsignatures were not genuine, or thatthey were intended to victimizebank).

United States v. Lindsay, 184 F.3d1138 (10th Cir. 1999) (Insufficientevidence that bank was FDICinsured).

United States v. Harstel, 199 F.3d812 (6th Cir. 1999) (Receipt ofmailed bank statements was not afraudulent use of mails).

United States v. Principe, 203 F.3d849 (5th Cir. 2000) (Possession ofcounterfeit document should nothave been sentenced undertrafficking guidelines).

United States v. Tucker, 217 F.3d960 (8th Cir. 2000) (Loss to IRSoccurred when taxes were due, notwhen conspiracy began).

Cleveland v. United States, 531U.S. 12 (2000) (Victim mustactually receive the item for there tobe mail fraud).

United States v. Gee, 226 F.3d 885(7th Cir. 2000) (Insufficient evidenceof mail and wire fraud wheredefendant did not conceal materialfacts).

*United States v. Rahseparian,231 F.3d 1257 (10th Cir. 2000)(Jury could not reasonably infer thatfather knew of son’s fraudulentbusiness scheme).

United States v. Odiodio, 244 F.3d398 (5th Cir. 2001) (No bank fraudwhen bank not subject to civilliability).

United States v. Howerter, 248F.3d 198 (3rd Cir. 2001) (Personauthorized to write checks did notcommit bank larceny by cashingchecks payable to himself).

United States v. Ali, 266 F.3d 1242(9th Cir. 2001) (FDIC insurance attime of trail did not prove bank wasinsured at time of fraud).

MoneyLaundering

United States v. Newton, 44 F.3d913 (11th Cir. 1995) (Proof ofaiding and abetting moneylaundering conspiracy wasinsufficient against defendant wholeased house on behalf ofconspirator).

*United States v. Rockelman, 49F.3d 418 (8th Cir. 1995) (Evidencefailed to show the transaction wasintended to conceal illegalproceeds).

*United States v. Hove, 52 F.3d233 (9th Cir. 1995) (Failure toinstruct the jury that the defendantmust know his structuring wasillegal, was plain error).

United States v. Torres, 53 F.3d1129 (10th Cir.), cert. denied, 516U.S. 883 (1995) (Buying a car withdrug proceeds was not moneylaundering).

United States v. Willey, 57 F.3d1374 (5th Cir.), cert. denied, 516U.S. 1029 (1995) (Transferringmoney between accounts was


insufficient evidence of an intent toconceal).

*United States v. Wynn, 61 F.3d921 (D.C. Cir.), cert. denied, 516U.S. 1015 (1995) (Insufficientevidence that the defendant knewhis structuring was unlawful).

*United States v. Dobbs, 63 F.3d391 (5th Cir. 1995) (Undisguisedmoney used for family needs wasnot money laundering).

United States v. Nelson, 66 F.3d1036 (9th Cir. 1995) (Defendant’seagerness to complete thetransaction was not sufficient toprove an attempt).

*United States v. Kramer, 73 F.3d1067 (11th Cir.), cert. denied, 519U.S. 1011 (1996) (Transaction thatoccurred outside of the UnitedStates was not money laundering).

United States v. Phipps, 81 F.3d1056 (11th Cir. 1996) (Not moneylaundering to deposit a series ofchecks that are less than $10Keach).

United States v. Pipkin, 114 F.3d528 (5th Cir.), cert. denied, 519 U.S.821 (1996) (Defendant did notknowingly structure a currencytransaction).

*United States v. High, 117 F.3d464 (11th Cir. 1997) (Moneylaundering instruction omitted theelement of willfulness).

United States v. Garza, 118 F.3d278 (5th Cir. 1997) (Moneylaundering proof was insufficientwhere defendants neither handlednor disposed of drug proceeds).

*United States v. Christo, 129F.3d 578 (11th Cir. 1997) (Checkkiting scheme was not moneylaundering).

*United States v. Shoff, 151 F.3d889 (8th Cir. 1998) (Purchase withproceeds of fraud was not money

laundering).

United States v. Calderon, 169F.3d 718 (11th Cir. 1999)(Insufficient evidence of moneylaundering).

United States v. Zvi, 168 F.3d 49(2d Cir. 1999) (Charging domesticand international money launderingbased on the same transactions wasmultiplicitous).

*United States v. Brown, 186 F.3d661 (5th Cir. 1999) (Insufficientevidence of money laundering whenno proof checks were connected tofraud).

United States v. Anderson, 189F.3d 1201 (10th Cir. 1999) (Titlingvehicle in mother’s name did notprove money laundering).

*United States v. Messner, 197F.3d 330 (9th Cir. 1999) (Codedlanguage did not support moneylaundering conviction).

United States v. Miranda, 197F.3d 1357 (11th Cir. 1999) (Ex postfacto application of moneylaundering conspiracy statute)

United States v. Olaniyi-Oke, 199F.3d 767 (5th Cir. 1999) (Purchaseof computers for personal use wasnot money laundering).

United States v. Loe, 248 F.3d 449(5th Cir. 2001) (When legitimate andillegal funds were commingled,government had to prove illegalfunds were laundered).

United States v. Marshall, 248F.3d 525 (6th Cir. 2001) (Purchaseof personal property was not moneylaundering).

Aiding andAbetting

United States v. de la Cruz-Paulino, 61 F.3d 986 (1st Cir. 1995)

(Moving packages of contrabandand statements about police was notaiding and abetting).

United States v. Luciano-Mosquero, 63 F.3d 1142 (1st. Cir.),cert. denied, 517 U.S. 1234 (1996)(No evidence that the defendanttook steps to assist in the use of afirearm).

*United States v. Fulbright, 105F.3d 443 (9th Cir.), cert. denied, 520U.S. 1236 (1997) (Governmentfailed to prove anyone committedthe principle crime with requisiteintent).

United States v. Beckner, 134 F.3d714 (5th Cir. 1998) (Lawyer was notshown to have knowledge of client’sfraud for aiding and abetting).

*United States v. Nelson, 137 F.3d1094 (9th Cir.), cert. denied, 119S.Ct. 231 (1999) (Evidence did notsupport aiding and abetting use andcarrying of a firearm during crimeof violence).

United States v. Stewart, 145 F.3d273 (5th Cir. 1998) (Insufficientevidence that passenger aided andabetted drug possession withoutintent to distribute).

United States v. Garcia-Guizar,160 F.3d 511 (9th Cir. 1999)(Insufficient evidence of aiding andabetting when no money found ondefendant and was not present atsale).

United States v. Wilson, 160 F.3d732 (D.C. Cir.), cert. denied, 528U.S. 828 (1999) (Insufficientevidence of aiding and abettingmurder or retaliation wheredefendant only told shooter ofvictim’s location).

United States v. Barnett, 197 F.3d138 (5th Cir. 1999) (Insufficientevidence of conspiring or aiding andabetting murder for hire whendefendant did not share intent withprincipal).


PerjuryUnited States v. Hairston, 46 F.3d361 (4th Cir. 1995) (Ambiguity inthe question to the defendant wasinsufficient for perjury conviction).

United States v. Dean, 55 F.3d 640(D.C. Cir.), cert. denied, 516 U.S.1184 (1996) (Statement that wasliterally true did not support aperjury conviction).

United States v. Jaramillo, 69 F.3d388 (9th Cir. 1995) (Defendantcharged with perjury by inconsistentstatements must have made bothunder oath).

United States v. Shotts, 145 F.3d1289 (11th Cir. 1998) (Evasive, buttrue, answer was not perjury).

FalseStatements

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

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

United States v. Rothhammer, 64F.3d 554 (10th Cir. 1995)(Contractual promise to pay was nota factual assertion).

United States v. Campbell, 64 F.3d967 (5th Cir. 1995) (Defendant’smisrepresentations to a bank werenot material).

*United States v. McCormick, 72F.3d 1404 (9th Cir. 1995)(Defendant who did not readdocuments before signing them wasnot guilty of making a falsestatement).

United States v. Barrett, 111 F.3d947 (D.C.), cert. denied, 522 U.S.8 6 7 ( 1 9 9 7 ) ( D e f e n d a n t ’ s

misrepresentation to court was not amaterial false statement).

United States v. Farmer, 137 F.3d1265 (10th Cir. 1998) (Answer toambiguous question did not supportconviction for false declaration).

United States v. Hodge, 150 F.3d1148 (9th Cir. 1998) (Insufficientevidence of false statements whenno cert if icat ion made ondocuments).

United States v. Sorenson, 179F.3d 823 (9th Cir. 1999)(Defendant’s false statements werecontained in an unsigned loanapplication).

United States v. Walker, 191 F.3d326 (2d Cir. 1999) (Insufficientproof that defendant was responsiblefor more than 100 false immigrationdocuments).

ContemptUnited States v. Mathews, 49 F.3d676 (11th Cir. 1995) (Certificationof contempt must be filed by thejudge who witnessed the allegedcontempt).

United States v. Forman, 71 F.3d1214 (6th Cir. 1995) (Attorney wasnot in contempt for releasing grandjury materials in partner’s case).

United States v. Brown, 72 F.3d 25(5th Cir. 1995) (Lawyer’s commentson a judge’s trial performance werenot reckless).

United States v. Mottweiler, 82F.3d 769 (7th Cir. 1996) (Defendantmust have acted willfully to beguilty of criminal contempt).

United States v. Grable, 98 F.3d251 (6th Cir.), cert. denied, 519 U.S.1059 (1997) (Contempt order couldnot stand in light of incorrect adviceabout Fifth Amendment privilege).

Bingman v. Ward, 100 F.3d 653

(9th Cir.), cert. denied, 520 U.S.1188 (1997) (Magistrate judge didnot have the authority to hold alitigant in criminal contempt).

United States v. Neal, 101 F3d 993(4th Cir. 1996) (Plain error for ajudge to prosecute and preside overa contempt action).

United States v. Vezina, 165 F.3d176 (2d Cir. 1999) (Insufficientevidence of criminal contempt of aTRO dealing with a third party).

Immigration*United States v. Bahena-Cardenas, 70 F.3d 1071 (9th Cir.1995) (Alien who was not servedwith warrant of deportation, was notguilty of illegal reentry).

United States v. Dieguimde, 119F.3d 933 (11th Cir. 1997) (Order ofdeportation did not considerdefendant’s request for politicalasylum).

United States v. Gallardo-Mendez,150 F.3d 1240 (10th Cir. 1998)(Prior guilty plea did not preventdefendant from contesting non-citizen status).

*United States v. Pacheco-Medina, 212 F.3d 1162 (9th Cir.2000) (Defendant who was captureda few yards from border did notenter United States).

United States v. Rodriguez-Fernandez, 234 F.3d 498 (8th Cir.2000) (Without detention order inplace, defendant did not escape fromINS).

*United States v. Ruiz-Lopez, 234F.3d 445 (9th Cir. 2000) (Presenceat border is not the same as beingfound in the United States).

Steele v. Blackman, 236 F.3d 130(3rd Cir . 2001) (Al ien’smisdemeanor conviction fordistributing less than 30 grams of


marijuana was not aggravatedfelony).

United States v. Matsumaru, 244F.3d 1092 (9th Cir. 2001)(Insufficient evidence that attorneyset up practice to evade immigrationlaws).

United States v. Herrera-Ochoa,245 F.3d 495 (5th Cir. 2001)(Defendant’s presence at trial couldnot be evidence that he hadpreviously entered United States).

United States v. Portillo-Mendoza,273 F.3d 1224 (9th Cir. 2001) (PriorCalifornia DUI was not aggravatedfelony).

Pornography*United States v. Hilton, 167 F.3d61 (1st Cir.), cert. denied, 528 U.S.844 (1999) (Whether defendantbelieved pornographic actors wereover 18 years old was a juryquestion).

United States v. McKelvey, 203F.3d 66 (1st Cir. 2000) (Single filmstrip with three images was not “3or more matters” under child pornstatute).

United States v. Henriques, 234F.3d 263 (5th Cir. 2000) (At leastthree images must travel in interstatecommerce for child pornographyconviction).

Violent CrimesUnited States v. Main, 113 F.3d1046 (9th Cir. 1997) (In aninvoluntary manslaughter case, theharm must have been foreseeablewithin the risk created by thedefendant).

*United States v. Wicklund, 114F.3d 151 (10th Cir. 1997) (Murderfor hire required a receipt orpromise of pecuniary value).

United States v. Yoakum, 116 F.3d1346 (10th Cir. 1997) (Defendant’sinterest in a business, and hispresence near time of fire, did notsupport arson conviction).

United States v. Spruill, 118 F.3d221 (4th Cir. 1997) (Insufficientevidence that a threat would becarried out by fire or explosive).

*Smith v. Horn, 120 F.3d 400 (3rd

Cir. 1997) (First degree murderinstruction failed to require specificintent).

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

United States v. Estrada-Fernandez, 150 F.3d 491 (5th Cir.1998) (Simple assault is lesserincluded offense of assault withdeadly weapon).

United States v. Guerrero, 169F.3d 933 (5th Cir. 1999)(Inconclusive identification did notsupport bank robbery conviction).

Jones v. United States, 526 U.S.227 (1999) (Jury must decidewhether carjacking resulted inserious bodily injury or death).

United States v. Wood, 207 F.3d1222 (10th Cir. 2000) (Doctor’sinjection of drug to treat patient didnot prove premeditated murder).

United States v. Hood, 210 F.3d660 (6th Cir. 2000) (Assault withoutverbal threat was minor rather thanaggravated).

United States v. Baker, 262 F.3d124 (2d Cir. 2001) (Instructionallowed conviction without provingll elements of murder with intent toobstruct justice).

AssimilativeCrimes

United States v. Devenport, 131F.3d 604 (7th Cir. 1997) (Violationof a state civil provision was notcovered by Assimilative CrimesAct).

United States v. Sylve, 135 F.3d680 (9th Cir. 1998) (Deferredprosecution was available for chargeunder Assimilative Crimes Act).

United States v. Waites, 198 F.3d1123 (9th Cir. 2000) (Conduct thatwas regulated federally should nothave been prosecuted underAssimilative Crimes Act).

United States v. Provost, 237 F.3d934 (8th Cir. 2001) (Federalgovernment cannot prosecute statecrime occurring on lands that are nolonger in Indian hands).

United States v. Prentice, 273 F.3d1277 (10th Cir. 2001) (Partiescannot stipulate victim was Indianwhen they were not).

MiscellaneousCrimes

United States v. Rodriguez, 45F.3d 302 (9th Cir. 1995) (Possessingan object designed to be used as aweapon, while in prison, was aspecific intent crime).

United States v. Alkhabaz, 104F.3d 1492 (6th Cir. 1997)(Transmission of e-mail messages oftorture, rape and murder did not fallwithin federal statute without publicavailability).

United States v. Grigsby, 111 F.3d806 (11th Cir. 1997) (Importation ofprohibited wildlife products fellunder exceptions to statute).

United States v. Nyemaster, 116F.3d 827 (9th Cir. 1997)


(Insufficient evidence of beingunder the influence of alcohol in afederal park).

United States v. Cooper, 121 F.3d130 (3rd Cir. 1997) (Evidence didnot support conviction fortampering with a witness).

*United States v. King, 122 F.3d808 (9th Cir. 1997) (Crime ofmailing threatening communicationrequired a specific intent tothreaten).

*United States v. Valenzeno, 123F.3d 365 (6th Cir. 1997) (Obtaininga credit report without permissionwas not a crime).

*United States v. Farrell, 126 F.3d484 (3rd Cir. 1997) (Urging awitness to “take the Fifth” was notwitness tampering).

United States v. Rapone, 131 F.3d188 (D.C. Cir. 1997) (Evidence wasinsufficient to show retaliation).

United States v. Romano, 137 F.3d677 (1st Cir. 1998) (Law prohibitingsale of illegally taken wildlife didnot cover the act of securing guideservices for hunting trip).

*United States v. Cottman, 142F.3d 160 (3rd Cir. 1998)(Government is not a victim underVictim Witness Protection Act).

*United States v. Copeland, 143F.3d 1439 (11th Cir. 1998)(Government contractor was notbribed under federal statute).

United States v. Walker, 149 F.3d238 (3rd Cir. 1998) (Prison workerwas not a corrections officer).

United States v. Truesdale, 152F.3d 443 (5th Cir. 1998)(Insufficient evidence of illegalgambling).

United States v. Davis, 183 F.3d231 (3rd Cir. 1999) amended 197F.3d 662 (same). (Insufficient

evidence of obstruction of justiceand conspiracy without proof ofknowledge of pending proceeding).

United States v. Bad Wound, 203F.3d 1072 (8th Cir. 2000)(Defendant not liable for acts ofcoconspirators prior to enteringconspiracy).

United States v. Naiman, 211 F.3d40 (2d Cir. 2000) (Receipt of thefunds is a jurisdictional element ofcommercial bribery).

United States v. Giles, 213 F.3d1247 (10th Cir. 2000) (Counterfeitlabels were not goods withinmeaning of statute).

United States v. Neuhausser, 241F.3d 460 (6th Cir. 2001)(Insufficient evidence to supportTravel Act conviction).

United States v. Ortlieb, 274 F.3d871 (5th Cir. 2001) (Obstruction ofjustice requires wrongful intent).

JuvenilesUnited States v. Juvenile Male #1,47 F.3d 68 (2d Cir. 1995) (Courtproperly refused transfer of ajuvenile for adult proceedings).

United States v. Doe, 53 F.3d 1081(9th Cir. 1995) (Unadjudicatedjuvenile could not be sentenced tosupervised release).

United States v. Juvenile MalePWM , 121 F.3d 382 (8th Cir.1997) (Court imposed sentencebeyond comparable guideline foradults).

Impounded Juvenile I.H., Jr., 120F.3d 457 (3rd Cir. 1997) (Failure toprovide juvenile records barredtransfer to adult status).

*United States v. Male Juvenile,148 F.3d 468 (5th Cir. 1998)

(Certification for juvenile by AUSAwas invalid).

United States v. Juvenile LWO,160 F.3d 1179 (8th Cir. 1999)(Judge may not considerunadjudicated incidents at juveniletransfer hearing in assessing natureof charges or prior record).

United States v. Juvenile (RRA-A), 229 F.3d 737 (9th Cir. 2000)(Agents failed to notify juvenile’sparents or Mexican consulate).

Sentencing -General

United States v. Rivera, 58 F.3d600 (11th Cir. 1995) (Defendantwas sentenced on the wrong count).

*United States v. Knowles, 66 F.3d1146 (11th Cir.), cert. denied, 516U.S. 1149 (No proof the conspiracyextended to the date whenguidelines became effective).

*Page v. United States, 69 F.3d482 (11th Cir. 1995) (Court failed torequire the parties to state objectionsat the sentencing hearing).

*United States v. Petty, 80 F.3d1384 (9th Cir. 1996) (Record shouldhave shown that the defendant readthe presentence report andsupplements).

United States v. Torres, 81 F.3d900 (9th Cir. 1996) (Disparity incoconspirators’ sentences was notjustified, due to inconsistent factualfindings).

United States v. Burke, 80 F.3d314 (8th Cir. 1996) (Presentencereport could not be used as evidencewhen the defendant disputed thefacts therein).

*United States v. Ivy, 83 F.3d 1266(10th Cir.), cert. denied, 519 U.S.901 (1996) (Government’s failure toobject to a presentence report


waived its complaint).

*United States v. Graham, 83 F.3d1466 (D.C.Cir.), cert. denied, 519U.S. 1132 (1997) (Adoption of thepresentence report is not the same asexpress findings).

United States v. Versaglio, 85 F.3d943 (2d Cir.), modified, 96 F.3d 637(1996) (Criminal contempt offensecannot be punished by both fine andincarceration).

United States v. Moskovits, 86F.3d 1303 (3d Cir.), cert. denied,519 U.S. 1120 (1997) (Courtimproperly considered a defendant’sdecision to go to trial rather thanaccept a plea offer).

*United States v. Tabares, 86 F.3d326 (3rd Cir. 1996) (Erroneousinformation did not justify asentence at the top of the range).

United States v. Farnsworth, 92F.3d 1001 (10th Cir.), cert. denied,519 U.S. 1034 (1996) (Adoption ofthe presentence report did notresolve disputed matters).

*United States v. Romero, 122F.3d 1334 (10th Cir.), cert. denied,523 U.S. 1025 (1998) (Court maynot resolve factual disputes bymerely adopting the presentencereport).

United States v. Ross, 131 F.3d970 (11th Cir. 1997) (Whendefendant is convicted of aconspiracy count with multipleobjects, the court must find beyonda reasonable doubt that a particularobject was proven before applyingthat guideline section).

United States v. Renteria, 138 F.3d1328 (10th Cir. 1998) (Lying atsuppression hearing invokedaccessory after fact guideline, notperjury).

United States v. Washington, 146F.3d 219 (4th Cir. 1998) (Courtshould not have relied upon

statements made pursuant to pleaagreement).

*United States v. Myers, 150 F.3d459 (5th Cir. 1998) (Defendant wasdenied right of allocution).

*United States v. Davenport, 151F.3d 1325 (11th Cir. 1998)(Defendant did not waive right toreview presentence report byabsconding).

United States v. Glover, 154 F.3d1291 (11th Cir. 1998) (Timecredited toward a sentence did notlengthen total sentence).

United States v. Casey, 158 F.3d993 (8th Cir. 1999) (Court must useguideline of charged offense).

United States v. Partlow, 159 F.3d1218 (9th Cir. 1999) (Specificoffense characteristics must beapplied in the order listed).

United States v. Weaver, 161 F.3d528 (8th Cir. 1999) (Typo on PSRrecommending wrong base levelwas plain error).

*United States v. Allard, 164 F.3d1146 (8th Cir. 1999) (Offensecharacteristic for one offense couldnot be used for another).

United States v. Robinson, 164 .3d1068 (7th Cir.), cert. denied, 528 .S.848 (1999) (Hearsay statements sedat sentencing were unreliable).

United States v. Mueller, 168 F.3d86 (5th Cir. 1999) (Failure todisclose addendum to presentencereport).

United States v. Jones, 168 F.3d217 (10th Cir. 1999) (If the courtallows an oral objection atsentencing hen a finding on thatobjection must be made).

United States v. Navarro, 169 F.3d228 (5th Cir. 1999) (Cannot havesentencing via video conference

over defendant’s objection).

United States v. Mitchell, 187 F.3d331 (3rd Cir. 1999) (Court may notdraw adverse inference from silenceat sentencing).

United States v. Swiney, 203 F.3d397 (6th Cir.), cert. denied, 530 U.S.1238 (2000) (Application ofmandatory minimum is controlledby guidelines definition of relevantconduct, not Pinkerton doctrine).

*United States v. Kent, 209 F.3d1073 (8th Cir. 2000) (Sentence withmental health counseling wasimproper when there was no historyof mental condition).

United States v. Sadler, 234 F.3d368 (8th Cir. 2000) (Once districtcourt lost jurisdiction over case itcould not raise sentence).

Shafer v. South Carolina, 532 U.S.36 (2001) (Whenever futuredangerousness is at issue in a capitalcase, the jury must be informedabout life sentence withoutpossibility of parole).

United States v. Fields, 242 F.3d393 (D.C. Cir. 2001) (Kidnappingcould not be enhanced by murder,when murder was not pled).

United States v. Corporan-Cuevas, 244 F.3d 199 (1st Cir.2001) (Could not sentence beyondstatutory maximum even whenconcurrent to legal sentence).

United States v. Velasquez, 246F.3d 204 (2d Cir. 2001) (Sentenceexceeded statutory maximumwithout proof of death or seriousbodily injury).

United States v. Thomas, 246 F.3d438 (8th Cir. 2001) (Sentenceexceeded statutory maximumwithout proof of drug quantities).

United States v. Bradford, 246F.3d 1107 (8th Cir. 2001) (Sentenceviolating statutory maximum cannot


be upheld because trial court mighthave stacked sentences to reachsame result).

United States v. Knight, 266 F.3d203 (3rd Cir. 2001) (It is plain errorto apply wrong guideline section).

United States v. Sumner, 265 F.3d532 (7th Cir. 2001) (Court mustmake specific findings to includeuncharged conduct).

United States v. Martinez, 274F.3d 897 (5th Cir. 2001) (Federalsentence under Assimilative CrimesAct was three times state sentencefor same conduct).

United States v. Taylor, 277 F.3d721 (5th Cir. 2001) (Court must beassured information in report wasnot from defendant’s immunizedstatements).

United States v. Burgos, 276 F.3d1284 (11th Cir. 2001) (Court couldnot penalize defendant for failure toc o o p e r a t e i n u n r e l a t e dinvestigation).

GroupingUnited States v. DiDomenico, 78F.3d 294 (7th Cir.), cert. denied, 519U.S. 1006 (1996) (Unadjudicatedcrimes could not be used todetermine a combined offenselevel).

*United States v. Wilson, 98 F.3d281 (7th Cir. 1996) (Moneylaundering and mail fraud shouldhave been grouped together).

*United States v. Haltom, 113F.3d 43 (5th Cir. 1997) (Mail fraudand tax fraud counts should havebeen grouped).

*United States v. Emerson, 128F.3d 557 (7th Cir. 1997) (Moneylaundering and mail fraud shouldhave been grouped).

United States v. Kennedy, 133

F.3d 53 (D.C. Cir.), cert. denied,525 U.S. 911 (1998) (Court cannotrefuse to group counts in order togive defendant a higher sentence).

United States v. Marmolejos, 140F.3d 488 (3rd Cir. 1998) (Clarifyingamendment to grouping sectionjustified post-sentence relief).

*United States v. Thomas, 155F.3d 833 (7th Cir.), cert. denied, 525U.S. 1048 (1998) (Court failed togroup counts when threats weremade to same victim).

*United States v. Martinez-Martinez, 156 F.3d 936 (9th Cir.1999) (Reduction for non-drugconspiracy was mandated whenobject crime was not substantiallycomplete).

United States v. Levario-Quiroz,161 F.3d 903 (5th Cir. 1999)(Offenses outside United Stateswere not relevant conduct).

United States v. Bartley, 230 F.3d667 (4th Cir. 2000) (Drug andmoney laundering conspiraciesshould have been grouped).

United States v. Nedd, 262 F.3d 85(1st Cir. 2001) (Groupingdetermined by sets of victims, notindividuals).

Consecutive/Concurrent

United States v. Greer, 91 F.3d996 (7th Cir. 1996) (Sentences attwo proceedings on the same daywere presumed concurrent).

*United States v. Fuentes, 107F.3d 1515 (11th Cir. 1997) ( Federalsentence which calculated a statesentence into the base offense levelmust be concurrent to the statesentence).

*United States v. Corona, 108F.3d 565 (5th Cir. 1997)

(Duplicitous sentences were notpurely concurrent where eachreceived a separate specialassessment).

United States v. Kikuyama, 109F.3d 536 (9th Cir. 1997) (Courtcannot rely on need for mentalhealth treatment in fashioning aconsecutive sentence).

*United States v. Nash, 115 F.3d1431 (9th Cir.), cert. denied, 522U.S. 1117 (1998) (Multipliciouscounts must be sentencedconcurrently and may not receiveseparate special assessments).

*United States v. Mendez, 117F.3d 480 (11th Cir. 1997)(Simultaneous acts of possessingstolen mail and assaulting a mailcarrier with intent to steal mail,could not receive cumulativepunishments).

*McCarthy v. Doe, 146 F.3d 118(2d Cir. 1998) (BOP could designatestate institution in order toi m p l e m e n t p r e s u m p t i v e l yconcurrent sentence).

*United States v. Quintero, 157F.3d 1038 (6th Cir. 1999) (Federalsentence could not be imposedconsecutively to not yet imposedstate sentence).

United States v. Dorsey, 166 F.3d558 (3rd Cir. 1999) (Court hadauthority to reduce a sentence inorder to make it effectivelyconcurrent to a previously imposedstate sentence).

United States v. Chea, 231 F.3d531 (9th Cir. 2000) (Court wasrequired to consider undischargedprior when fashioning sentence).

Retroactivity*United States v. Vazquez, 53 F.3d1216 (11th Cir. 1995) (Caseremanded to determine retroactiveeffect of favorable guideline, that


became effective after sentencing).

*United States v. Felix, 87 F.3d1057 (9th Cir. 1996) (Amendment tothe guidelines, which required asentence based on a lower,negotiated quantity of drugs, wasretroactive).

United States v. Etherton, 101F.3d 80 (9th Cir. 1996) (Retroactiveamendment could be used to reducesupervised release).

*United States v. Ortland, 109F.3d 539 (9th Cir.), cert. denied, 522U.S. 851 (1997) (Since mail fraud isnot a continuing offense, an actcommitted after the date of anincrease to guidelines did notrequire all counts to receiveincreased guidelines).

United States v. Zagari, 111 F.3d307 (2d Cir. 1997) (Use ofguidelines effective after conductviolated Ex Post Facto Clause).

United States v. Armistead, 114F.3d 504 (5th Cir.), cert. denied, 522U.S. 922 (1997) (Ex post factoapplication of a guidelineprovision).

*United States v. Aguilar-Ayala,120 F.3d 176 (9th Cir. 1997)(Defendant was entitled to sentencereduction to mandatory minimumbecause of retroactive guidelineamendment, regardless of whethersafety valve applied).

United States v. Bowen, 127 F.3d 9(1st Cir. 1997) (Amendmentdefining hashish oil was applied expost facto).

*United States v. Mussari, 152F.3d 1156 (9th Cir. 1998) (Ex postfacto application of criminalpenalties to failure to pay childsupport).

United States v. Comstock, 154F.3d 845 (8th Cir. 1998) (Usingguideline effective after commissionof offense violated ex post facto

where amendment increasedpunishment).

United States v. Schulte, 264 F.3d656 (6th Cir. 2001) (Act wascommitted prior to effective date ofstatute).

Sentencing -Marijuana

*United States v. Foree, 43 F.3d1572 (11th Cir. 1995) (Seedlingsand cuttings did not count asmarijuana plants).

*United States v. Smith, 51 F.3d980 (11th Cir. 1995) (Weight of wetmarijuana was improperly counted).

United States v. Caldwell, 88 F.3d522 (8th Cir.), cert. denied, 519 U.S.1048 (1996) (Extrapolation of drugquantities was error).

*United States v. Antonietti, 86F.3d 206 (11th Cir. 1996) (Countingseedlings as marijuana plants tocalculate the base offense level wasplain error).

United States v. Agis-Meza, 99F.3d 1052 (11th Cir. 1996) (Courthad an insufficient basis to calculatea quantity of marijuana based uponcash and money wrappers seized).

*United States v. Carter, 110 F.3d759 (11th Cir. 1997) (Court abusedits discretion in denying a motionfor a reduction of a sentence overweight of wet marijuana).

*United States v. Mankiewicz, 122F.3d 399 (7th Cir. 1997) (Marijuanathat was rejected by defendantsshould not have been counted).

United States v. Perulena, 146F.3d 1332 (11th Cir. 1998)(Defendant was not responsible formarijuana imported before he joinedconspiracy).

*United States v. Wyss, 147 F.3d

631 (7th Cir. 1998) (Drugs forpersonal use could not be countedtoward distribution quantity).

United States v. Butler, 238 F.3d1001 (8th Cir. 2001) (Failure toallege marijuana quantity requiredresentencing to below enhancedstatutory maximum).

United States v. Garcia, 242 F.3d593 (5th Cir. 2001) (Drug quantitywas not proven).

Sentencing -Meth

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

United States v. Hamilton, 81 F.3d52 (6th Cir. 1996) (To be culpableor manufacturing a quantity ofdrugs, the defendant must have beenpersonally able to make thatquantity).

United States v. McMullen, 86F.3d 135 (8th Cir. 1996) (Judgecould not determine the type ofmethamphetamine based upon thejudge’s experience, the price, orwhere the drugs came from).

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

United States v. Cole, 125 F.3d 654(8th Cir. 1997) (Defendant’stestimony about his ability tomanufacture was relevant).

United States v. O’Bryant, 136F.3d 980 (5th Cir. 1998)(Government has burden of provingm o r e s e r i o u s f o r m o fmethamphetamine).

*United States v. Whitecotton, 142F.3d 1194 (9th Cir. 1998) (Later


drug sales were not foreseeable todefendant).

United States v. Asch, 207 F.3d1238 (10th Cir. 2000) (Drugs forpersonal use could not be used tocalculate range for distribution).

United States v. Kroeger, 229 F.3d700 (8th Cir. 2000) (Environmentalharm enhancement did not apply tometh case).

*United States v. Eschman, 227F.3d 886 (7th Cir. 2000) (Methquantities should have been basedupon defendant’s own ability toproduce).

United States v. Munoz, 233 F.3d(6th Cir. 2000) (Court could notcount meth that defendant wasincapable of delivering).

United States v. Fraser, 243 F.3d473 (8th Cir. 2001) (Drug quantitiesfor personal use must be excludedfrom distribution amounts).

United States v. Hollings worth,257 F.3d 871 (8th Cir. 2001)(Quantity of precursor chemicalmust be pled and proven beyondreasonable doubt to raise maximumpunishment).

Sentencing -Heroin

*United States v. Jinadu, 98 F.3d239 (6th Cir.), cert. denied, 520 U.S.1179 (1997) (Court could not relyon drug quantities alleged inindictment to determine amandatory minimum).

*United States v. Shonubi, 103F.3d 1085 (2d Cir. 1997)(Multiplying quantity of seizeddrugs by number of previous tripswas an inadequate measure).

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

quantities).

United States v. Gore, 154 F.3d 34(2d Cir. 1998) (Possession anddistribution of the same drugs mayonly be punished once).

United States v. Marrero-Ortiz,160 F.3d 768 (1st Cir. 1999)(Insufficient evidence of drugquantity).

United States v. Guevara, 277 F.3d111 (2d Cir. 2001) (When quantityof heroin was not pled or proven tojury, defendant is subject to rangefor heroin proven, not higherstatutory maximum).

Sentencing -Cocaine

United States v. Reese, 67 F.3d 902(11th Cir.), cert. denied, 517 U.S.1228 (1996) (Drugs were notreasonably foreseeable to thedefendant, nor within scope ofagreed joint criminal activity).

*United States v. Howard, 80 F.3d1194 (7th Cir. 1996) (District courtcould not rely upon the probationofficer’s estimates of drug quantitieswithout corroborating evidence).

United States v. Acosta, 85 F.3d275 (7th Cir. 1996) (Drug quantityfinding was insufficient).

United States v. Nesbitt, 90 F.3d164 (6th Cir. 1996) (Court failed toresolve whether amounts of drugswere attributable during the time ofthe conspiracy).

United States v. Hernandez-Santiago, 92 F.3d 97 (2d Cir. 1996)(Court failed to make a finding as tothe scope of the defendant’sagreement).

*United States v. Chalarca, 95F.3d 239 (2d Cir. 1996) (Whennegotiated drug amount was notforeseeable, the court should use the

lowest possible quantity).

In Re Sealed Case, 108 F.3d 372(D.C. Cir. 1997) (Court failed tomake findings attributing all drugsto the defendant).

*United States v. Milledge, 109F.3d 312 (6th Cir. 1997) (Evidencedid not justify drug quantityfinding).

United States v. Jackson, 115 F.3d843 (11th Cir. 1997) (Packagecontaining 1% cocaine and 99%sugar was not a mixture under theguidelines).

*United States v. Granados, 117F.3d 1089 (8th Cir. 1997) (Thecourt failed to make specific drugquantity findings).

*United States v. Patel, 131 F.3d1195 (7th Cir. 1997) (Evidence wasinsufficient that seized money couldsupport cocaine quantities).

United States v. Bacallao, 149 F.3d717 (7th Cir. 1998) (No showingprior cocaine transactions wererelevant conduct).

United States v. Flowal, 163 F.3d956 (6th Cir.), cert. denied, 119 S.Ct.1509 (1999) (Drug quantity wasarbitrarily chosen).

*United States v. Noble, 246 F.3d946 (7th Cir. 2001) (Failure tocharge drug quantity was plainerror).

Sentencing -Crack

United States v. Lawrence, 47 F.3d1559 (11th Cir. 1995) (Could notsimply multiply sales outside ofcrackhouse times days defendantwas in conspiracy).

*United States v. Hansley, 54 F.3d


709 (11th Cir.), cert. denied, 516U.S. 998 (1995) (Individual findingswere needed to hold defendantresponsible for all drugs inconspiracy).

*United States v. Lee, 68 F.3d1267 (11th Cir. 1995) (There wereinadequate findings to support drugquantities. Crack abusers’ credibilitywas questioned).

United States v. Chisholm, 73 F.3d304 (11th Cir. 1996) (No factualbasis that the defendant knewpowder would be converted tocrack).

*United States v. James, 78 F.3d851 (3rd Cir.), cert. denied, 519 U.S.844 (1996) (No proof that thecocaine base was crack for enhancedpenalties to apply).

United States v. Hill, 79 F.3d 1477(6th Cir.), cert.denied, 519 U.S. 858(1996) (Different transactionsalmost two years apart, with the solesimilarity being the type of drug,were not relevant conduct).

United States v. Graham, 83 F.3d1466 (D.C. Cir.), cert. denied, 519U.S. 1132 (1997) (Court failed tomake individualized findings ofdrug quantities).

United States v. Frazier, 89 F.3d1501 (11th Cir.), cert.denied, 520U.S. 1222 (1997) (Sentencingfindings did not support drugquantities attributed to thedefendant).

United States v. Byrne, 83 F.3d984 (8th Cir. 1996) (Drugs seizedafter the defendant was in custodycould not be counted towardsentence).

*United States v. Tucker, 90 F.3d1135 (6th Cir. 1996) (Court did notmake individualized findings as toeach defendant in a drugconspiracy).

United States v. Randolph, 101

F.3d 607 (8th Cir. 1996) (Trial courtinadequately explained its drugquantity findings).

United States v. Brown, 156 F.3d813 (8th Cir. 1999) (Court shouldhave only based sentence on drugquantity proven by government).

United States v. Garrett, 161 F.3d1131 (8th Cir. 1999) (Insufficientevidence of drug quantity).

United States v. Gomez, 164 F.3d1354 (11th Cir. 1999) (Unrelateddrug sales were not relevant conductto conspiracy).

United States v. Moore, 212 F.3d441 (8th Cir. 2000) (Defendant’sresponsibility for drugs limited tojointly undertaken activity).

United States v. Jackson, 240 F.3d1245 (10th Cir.), cert. denied, 122S.Ct. 112 (2001) (Failure to pleaddrug quantities required reversal).

United States v. Williams, 247F.3d 353 (2d Cir. 2001) (Drugsmeant for personal use were not tobe counted toward distributionconspiracy).

United States v. Palmer, 248 F.3d569 (7th Cir. 2001) (Unreliablehearsay did not support drugquantity).

United States v. Cotton, 261 F.3d397 (4th Cir. 2001) (Failure tocharge drug quantity to increasemaximum punishment is plainerror).

United States v. Baptiste, 264 F.3d578 (5th Cir. 2001) (Failure toallege drug quantity is plain errorwhen defendant sentenced abovelowest statutory maximum).

United States v. Thomas, 274 F.3d655 (2d Cir. 2001) (Failure to pleadand prove amount of crack limitspunishment to lowest statutorymaximum).

Sentencing -Firearms

United States v. Bernardine, 73F.3d 1078 (11th Cir. 1996)(Government failed to prove thedefendant was a marijuana user, andthus he was not a prohibitedperson).

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

*United States v. Barton, 100 F.3d43 (6th Cir. 1996) (Enhancementrelating to prior convictions coveredonly those before the instantoffense).

United States v. Moit, 100 F.3d605 (8th Cir. 1996) (Possession ofshotguns and hunting rifles qualifiedfor “sporting or collection”reduction).

*United States v. Willis, 106 F.3d966 (11th Cir. 1997) (Defendantwho previously pleaded nolocontendere in a Florida state courtwas not convicted for purposes ofbeing a felon in possession of afirearm).

*United States v. Cooper, 111 F.3d845 (11th Cir. 1997) (Firearm thatwas not possessed at the site of drugo f f e n s e d i d n o t j u s t i f yenhancement).

United States v. Zelaya, 114 F.3d869 (9th Cir. 1997) (Express threatof death was not foreseeable to theaccomplice-defendant).

*United States v. Knobloch, 131F.3d 366 (3rd Cir. 1997) (Courtcould not impose an increase for afirearm when there was aconsecutive gun count).

*United States v. McDonald, 165F.3d 1032 (6th Cir. 1999) (Felonwho stole firearm was not using it in


connection with another felony).

United States v. Ahmad, 202 F.3d588 (2d Cir. 2000) (Firearms thatwere not prohibited cannot becounted toward specific offensecharacteristic).

United States v. Hill, 210 F.3d 881(8th Cir. 2000) (Defendant who hadalready pled guilty was not “underindictment” when he receivedfirearm).

United States v. Pena-Lora, 225F.3d 17 (1st Cir. 2000) (Identity ofhostage taken was not proven toaward enhancement).

United States v. Moerman, 233F.3d 379 (6th Cir. 2000) (Defendantmerely brandished firearm, nototherwise used).

United States v. Seesing, 234 F.3d456 (9th Cir. 2000) (Enhancementfor obliterated serial number onlyapplied to firearm counts).

United States v. Diaz, 248 F.3d 525(11th Cir. 2001) (Co-defendant’sbrandishing firearm did not supportenhancement for defendant).

United States v. O’Malley, 265F.3d 353 (6th Cir. 2001) (Duringconspiracy to steal firearms, it wasnot foreseeable that one of thefirearms would be illegal).

Sentencing -Money

LaunderingUnited States v. Jenkins, 58 F.3d611 (11th Cir. 1995) ("Rule oflenity" precluded counting moneylaundering transactions under$10,000).

*United States v. Allen, 76 F.3d1348 (5th Cir.), cert. denied, 519U.S. 841 (1996) (Money launderingguidelines should have been based

on the amount of money laundered,not the loss in a related fraud).

United States v. Gabel, 85 F.3d1217 (7th Cir. 1996) (Robberies andburglaries were not relevant conductin a money laundering case).

United States v. Morales, 108 F.3d1213 (10th Cir. 1997) (Drugmandatory minimum did not applyto money laundering offense).

United States v. Hunt, 272 F.3d488 (7th Cir. 2001) (Court cannotsubstitute drug quantities for moneylaundered).

Sentencing -Pornography

United States v. Cole, 61 F.3d 24(11th Cir.), cert. denied, 516 U.S.1163 (1996) (Insufficient evidenceof child pornography depictingminors under twelve).

*United States v. Ketcham, 80F.3d 789 (3rd Cir. 1996)(Enhancement for exploitation of aminor was reversed in a childpornography case for insufficientevidence).

*United States v. Surratt, 87 F.3d814 (6th Cir. 1996) (Defendant’ssexual abuse, unrelated to receivingchild pornography did not prove apattern of activity to increase theoffense level).

*United States v. Kemmish, 120F.3d 937 (9th Cir.), cert. denied, 522U.S. 1132 (1998) (The defendantdid not engage in a pattern ofexploitation).

United States v. Fowler, 216 F.3d459 (5th Cir. 2000) (Child porn wasnot “distributed” for guidelineenhancement).

United States v. Galo, 239 F.3d572 (3rd Cir. 2001) (Prior statesexual abuse conviction was not

proper enhancement).

Sentencing -Fraud / Theft

*United States v. Maurello, 76F.3d 1304 (3rd Cir. 1996) (Loss to afraud victim was mitigated by thevalue received by the defendant’sactions).

*United States v. Millar, 79 F.3d338 (2d Cir. 1996) (Adjustment foraffecting a financial institution waslimited to money received by thedefendant).

United States v. Eyoum, 84 F.3d1004 (7th Cir.), cert. denied, 519U.S. 941 (1996) (Fair market value,rather than the smuggler’s price,should have been used to calculatethe value of illegally smuggledwildlife).

United States v. Strevel, 85 F.3d501 (11th Cir. 1996) (In determiningthe amount of loss, the court couldnot rely solely on stipulatedamounts).

United States v. King, 87 F.3d1255 (11th Cir. 1996) (Without proofthe defendant committed theburglary, other stolen items, notfound in his possession, could notbe calculated toward loss).

United States v. Sung, 87 F.3d 194(7th Cir. 1996) (Findings did notestablish reasonable certainty thatthe defendant intended to sell thebase level quantity of counterfeitgoods).

United States v. Allen, 88 F.3d 765(9th Cir.), cert. denied, 520 U.S.1202 (1997) (Collateral recovered tosecure a loan, and the interest paid,was not subtracted from loss in afraud case).

United States v. Cowart, 90 F.3d


154 (6th Cir. 1996) (Common modusoperandi alone, did not makerobberies part of a commonscheme).

United States v. Krenning, 93 F.3d1257 (4th Cir. 1996) (Value ofrented assets bore no reasonablerelationship to the victim’s loss).

United States v. Comer, 93 F.3d1271 (6th Cir. 1996) (Acquitted theftwas not sufficiently proven toinclude in loss calculations).

United States v. Coffman, 94 F.3d330 (7th Cir.), cert. denied, 520 U.S.1165 (1997) (Previous fraud usingthe same worthless stock was notrelevant conduct).

United States v. Olbres, 99 F.3d 28(1st Cir. 1996) (Adoption of PSI wasnot a finding of tax loss).

*United States v. Peterson, 101F.3d 375 (5th Cir.), cert. denied, 520U.S. 1161 (Violation of fiduciaryduty alone was not relevantconduct).

*United States v. Kohli, 110 F.3d1475 (9th Cir. 1997) (There wasinsufficient evidence of the quantityof fraud attributed).

*United States v. Sepulveda, 115F.3d 882 (11th Cir. 1997) (Evidencedid not support the alleged volumeof unauthorized calls).

*United States v. Rutgard, 116F.3d 1270 (9th Cir. 1997) (Thatdefendant ’ s bus iness was“permeated with fraud” was tooindefinite a finding).

United States v. Arnous, 122 F.3d321 (6th Cir. 1997) (Food stampfraud should have been valued bylost profits, not the face value of thestamps).

United States v. Sublett, 124 F.3d693 (5th Cir. 1997) (Loss duringcontract fraud did not includelegitimate services actually

provided).

*United States v. McIntosh, 124F.3d 1330 (10th Cir. 1997) (Failureto disclose his interest in a residencethat the defendant did not own wasnot bankruptcy fraud).

United States v. Barnes, 125 F.3d1287 (9th Cir. 1997) (Services thatwere satisfactorily performed shouldhave been subtracted from loss).

United States v. Monus 128 F.3d376 (6th Cir. 1997) (Court did notadequately explain loss findings).

United States v. Cain, 128 F.3d1249 (8th Cir. 1997) (Sales madebefore defendant was hired were notrelevant conduct toward fraud).

*United States v. Word, 129 F.3d1209 (11th Cir. 1997) (Fraud, beforedefendant joined conspiracy, wasnot relevant conduct).

United States v. Melton, 131 F.3d1 4 0 0 ( 1 0 t h C i r . 1 9 9 7 )(Unforeseeable acts of fraud couldnot be attributed to defendant).

United States v. Desantis, 134 F.3d760 (6th Cir. 1998) (Neitherdefendant’s business failure, norstate administrative findings, wererelevant to fraud case).

*United States v. Cihak, 137 F.3d252 (5th Cir.), cert. denied, 525 U.S.847 (1998) (Fraud of co-conspirators must be foreseeable todefendant to be relevant conduct).

United States v. Tatum, 138 F.3d1344 (11th Cir. 1998) (Applicationnote governing fraudulent contractprocurement should have beenapplied rather than theft guideline).

*United States v. Phath, 144 F.3d146 (1st Cir. 1998) (Depositingcounterfeit checks and withdrawingmoney did not require more thanminimal planning).

United States v. Sapoznik, 161

F.3d 1117 (7th Cir. 1999)(Calculation of benefits from bribesdid not support findings).

*United States v. Ponec, 163 F.3d486 (8th Cir. 1999) (No showingthat money withdrawn fromdefendant’s account came fromemployer).

United States v. Austin, 239 F.3d 1(1st Cir. 2001) (Value of get-away-car was not part of loss from bankrobbery).

United States v. Titchell, 261 F.3d348 (3rd Cir. 2001) (Court mustmake detailed analysis of potentialloss and intended loss).

Enhancements-General

United States v. Tapia, 59 F.3d1137 (11th Cir.), cert. denied, 516U.S. 953 (1995) (Using phone tocall co-defendant was not more thanminimal planning).

*United States v. Miller, 77 F.3d71 (4th Cir. 1996) (Enhancement formanufacturing counterfeit notes didnot apply to those so obviouslycounterfeit that they are unlikely tobe accepted).

United States v. Torres, 81 F.3d900 (9th Cir. 1996) (Governmentm u s t p r o v e s e n t e n c i n genhancements by a preponderanceof evidence).

United States v. Kraig, 99 F.3d1361 (6th Cir. 1996) (Insufficientevidence that the defendantemployed sophisticated means).

United States v. Brazel, 102 F.3d1120 (11th Cir.), cert. denied, 522U.S. 822 (1997) (Sentence could notbe enhanced with convictions thatwere not final).

United States v. Eshkol, 108 F.3d1025 (9th Cir.), cert. denied, 522


U.S. 841 (1997) (Only existingcounterfeit bills could be countedtoward upward adjustment).

*United States v. DeMartino, 112F.3d 75 (2d Cir. 1997) (Court waswithout authority to increase asentence that was not mere clericalerror).

*United States v. Shadduck, 112F.3d 523 (1st Cir. 1997) (No proofthat a defendant violated a judicialorder during a course of fraud).

*United States v. Calozza, 125F.3d 687 (9th Cir. 1997) (Identicalenhancements for separatelygrouped counts was double-counting).

*United States v. Barakat, 130F.3d 1448 (11th Cir. 1997)(Enhancement for sophisticatedmeans could not be based onacquitted conduct).

Enhancements-Drug Crimes

United States v. Ruiz-Castro, 92F.3d 1519 (10th Cir. 1996) (Courtfailed to inquire whether thedefendant had notice of thegovernment’s intent to seek anenhanced sentence with a prior drugconviction).

*United States v. Ekinci, 101 F.3d838 (2d Cir. 1996) (Unlawfuldispensing of drugs by a doctor wasnot subject to an enhancement forproximity to a school).

United States v. Mikell, 102 F.3d470 (11th Cir.), cert. denied, 520U.S. 1181 (1997) (Defendant whowas subject to an enhanced sentenceunder 21 U.S.C. §841, couldcollaterally attack a priorconviction).

United States v. Chandler, 125

F.3d 892 (5th Cir. 1997)(Enhancement for drug sale nearschool only applied when it wascharged by indictment).

United States v. Hudson, 129 F.3d1994 (8th Cir. 1997) (Firearmenhancement was not proven).

United States v. Sanchez, 138 F.3d1410 (11th Cir. 1998) (Court musthold a hearing if defendantchallenges validity of a prior drugconviction used for statutoryenhancement).

United States v. Saavedra, 148F.3d 1311 (11th Cir. 1998)(Defendant could not receiveincrease for selling drugs nearschool unless so charged).

United States v. Hass, 150 F.3d443 (5th Cir. 1998) (Non-final stateconviction could not be basis forstatutory enhancement of drugsentence).

United States v. Schmalzried, 152F.3d 354 (5th Cir. 1998)(Government failed to connectfirearm to drug offense).

United States v. Rettelle, 165 F.3d489 (6th Cir. 1999) (Mandatoryminimum controlled by drugsassociated with conviction only).

United States v. Hands, 184 F.3d1322 (11th Cir. 1999) (Domesticabuse was irrelevant to drugconspiracy).

United States v. Crawford, 185F.3d 1024 (9th Cir. 1999)(Proximity to school must becharged in order for enhancement toapply).

United States v. Garrett, 189 F.3d610 (7th Cir. 1999) (Guilty pleacolloquy was not admission tocrack, as opposed to powder, forsentencing purposes).

*United States v. Chastain, 198F.3d 1338 (11th Cir. 1999)

(Improper enhancement for use ofprivate plane in drug case).

United States v. Takahashi, 205F.3d 1161 (9th Cir. 2000)(Enhancement for drug crime inprotected area must be pleaded andproven before a finding of guilt).

United States v. Smith, 210 F.3d760 (7th Cir. 2000) (Tossing drugsout window during chase was notreckless endangerment).

United States v. Szakacs, 212 F.3d344 (7th Cir. 2000) (Possession offirearm had no connection to drugs).

Watterson v. United States, 219F.3d 232 (3rd Cir. 2000) (Noenhancement for drugs in proximityto school unless charged under thatstatute).

United States v. Cooper, 274 F.3d230 (5th Cir. 2001) (Firearm neitherfound near drugs nor used inconnection to drug activities).

Enhancements-Violence

United States v. Murray, 82 F.3d361 (10th Cir. 1996) (In assaultcase, an enhancement fordischarging a firearm did not applyto shots fired after the assault).

United States v. Rivera, 83 F.3d542 (1st Cir. 1996) (Insufficientevidence that a rape involvedserious bodily injury).

*United States v. Alexander, 88F.3d 427 (6th Cir. 1996) (Noteindicating the presence of a bomb,and a request to cooperate to preventharm, during a bank robbery, wasnot an express threat of death).

United States v. Shenberg, 89 F.3d1461 (11th Cir.), cert. denied, 519U.S. 1117 (1997) (More thanminimal planning increase did notapply to plan to assault a fictitious


informant).

United States v. Tavares, 93 F.3d10 (1st Cir.), cert. denied, 519 U.S.955 (1996) (Finding that anaggravated assault occurred wasinconsistent with a finding of noserious bodily injury).

*United States v. Triplett, 104F.3d 1074 (8th Cir.), cert. denied,520 U.S. 1236 (1997) (Threat ofdeath adjustment was doublecounting in case for using firearmduring crime of violence).

*United States v. Reyes-Oseguera,106 F.3d 1481 (9th Cir. 1997)(Flight on foot was insufficient forr e c k l e s s e n d a n g e r m e n tenhancement).

United States v. Dodson, 109 F.3d486 (8th Cir. 1997) (Lacked proofof bodily injury for enhancement).

United States v. Sawyer, 115 F.3d857 (11th Cir. 1997) (Enhancementfor bodily injury was not supportedby alleged psychological injury).

United States v. Drapeau, 121F.3d 344 (8th Cir. 1997)(Enhancement for assaulting agovernment official applicable onlywhen official is victim of theoffense).

United States v. Sovie, 122 F.3d122 (2d Cir. 1997) (Evidence tosupport enhancement for intendingto carry out threat was insufficient).

United States v. Bourne, 130 F.3d1444 (11th Cir. 1997) (Applyingboth brandishing weapon and threatof death enhancements was doublecounting).

*United States v. Hayes, 135 F.3d435 (6th Cir. 1998) (Enhancementsfor reckless endangerment, andassault, during flight, were doublecounting).

United States v. Tolen, 143 F.3d1121 (8th Cir. 1998) (Putting hand

in pocket and warning to cooperateor “no one will get hurt” was notexpress threat of death).

United States v. Kushmaul, 147F.3d 498 (6th Cir. 1998) (Holdingbaseball bat was not “otherwiseused”).

*United States v. Thomas, 155F.3d 833 (7th Cir. 1999) (Intent tocarry out threat could not be provenby criminal history).

United States v. Smith, 156 F.3d1046 (10th Cir. 1999) (Insufficientevidence of actual or threatenedforce or violence).

United States v. Richardson, 161F.3d 728 (D.C. Cir. 1999) (Burglarywas not shown to be crime ofviolence).

*United States v. Anglin, 169 F.3d154 (2d Cir. 1999) (Bank tellerswere not physically restrained).

United States v. Leahy, 169 F.3d433 (7th Cir. 1999) (Departure of 10levels for analogous terrorismenhancement was unreasonable).

United States v. Zendeli, 180 F.3d879 (7th Cir. 1999) (Enhancementfor injury did not apply to co-defendant’s injury).

United States v. Charles, 209 F.3d1088 (8th Cir. 2000) (Twoc o n v i c t i o n s , s e n t e n c e dsimultaneously, should have onlycounted as one prior crime ofviolence).

United States v. Brock, 211 F.3d88 (4th Cir. 2000) (Enhancement formultiple threats was incompatiblewith base level for no threats).

Castillo v. United States, 530 U.S.120 (2000) (In order to getaggravated sentence for carrying afirearm during crime of violence,use of a machine gun must be

proven as element of offense).

*United States v. Rebmann, 226 F.3d 521 (6th Cir. 2000) (Elements ofdeath or serious bodily injury mustbe proven beyond a reasonabledoubt in drug case).

United States v. Franks, 230 F.3d811 (5th Cir. 2000) (Cannot receiveenhancement for “express threat ofdeath” as well as conviction for useof a firearm during a crime ofviolence).

United States v. Wright, 248 F.3d765 (8th Cir. 2001) (No evidence ofserious bodily injury).

United States v. Campbell, 259F.3d 293 (4th Cir. 2001) (Enhancedstatutory maximum for use ofdeadly or dangerous weaponrequired pleading and proof beyondreasonable doubt).

United States v. Atwater, 272 F.3d511 (7th Cir. 2001) (Five-levelenhancement cannot be based onassumption that all bank robbers usefirearms).

Enhancements-Immigration

*United States v. Fuentes-Barahona, 111 F.3d 651 (9th Cir.1997) (Conviction occurring beforeeffective date of guidelineamendment could not be consideredas aggravated felony).

United States v. Herrerra-Solorzano, 114 F.3d 48 (5th Cir.1997) (Prior probated felony wasnot an aggravated felony in anillegal reentry case).

United States v. Reyna-Espinosa,117 F.3d 826 (5th Cir. 1997) (Priorconviction for being an alien inunlawful possession of a firearmwas not an aggravated felony).

*United States v. Viramontes-


Alvarado, 149 F.3d 912 (9th Cir.),cert. denied, 525 U.S. 976 (1998)(Non-citizen’s priors were notaggravated felonies).

United States v. Avilia-Ramirez,170 F.3d 277 (2d Cir. 1999)(Defendant’s prior aggravatedfelony was not a listed offense at thetime of his reentry).

United States v. Guzman-Bera,216 F.3d 1019 (11th Cir. 2000)(Theft was not aggravated felony attime of deportation and reentry).

CareerEnhancements

*United States v. Talbott, 78 F.3d1183 (7th Cir. 1996) (Under theArmed Career Criminal Actguidelines, “felon in possession”was not a crime of violence).

*United States v. Sparks, 87 F.3d276 (9th Cir. 1996) (Attemptedhome invasion was not a violentfelony under the Armed CareerCriminal Act).

*United States v. Murphy, 107F.3d 1199 (6th Cir. 1997) (Twoprior robberies were a singleepisode under Armed CareerCriminal Act).

United States v. Bennett, 108 F.3d1315 (10th Cir. 1997) (There was noproof that a prior burglary involveda dwelling or physical force undercareer offender provisions).

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

United States v. Rogers, 126 F.3d655 (5th Cir. 1997) (Attempteddrug crime did not support careeroffender enhancement).

*United States v. Covington, 133F.3d 639 (8th Cir. 1998) (Evidencedid not show imprisonment withinlast 15 years on predicate offenseused for career offenderenhancement).

United States v. Gottlieb, 140 F.3d865 (10th Cir. 1998) (Defendantestablished that no firearm ordangerous weapon was used in priorconviction defeating Three Strikesenhancement).

United States v. Dahler, 143 F.3d1084 (7th Cir. 1998) (Defendantwhose rights were restored was notarmed career criminal).

*United States v. McElyea, 158F.3d 1016 (9th Cir. 1999) (Crimesof a single transaction may not becounted separately under ArmedCareer Criminal Act).

*United States v. Thomas, 159F.3d 296 (7th Cir.), cert. denied, 527U.S. 1023 (1999) (Statutory rapewithout violence was not predicatecrime under Armed Career CriminalAct).

United States v. Richardson, 166F.3d 1360 (11th Cir. 1999) (Priorconviction under Armed CareerCriminal Act must occur beforefelon in possession violation).

United States v. Wilson, 168 F.3d916 (6th Cir. 1999) (Burglary of abuilding is not a career offenderpredicate unless it involves physicalforce, or its threat or attempt).

*United States v. Sacko, 178 F.3d1 (1st Cir. 1999) (Court could notlook at facts of prior conviction todetermine whether it was a violentfelony).

*United States v. Casarez-Bravo,181 F.3d 1074 (9th Cir. 1999) (Priorconviction not counted undercriminal history cannot be used ascareer offender predicate).

United States v. Martin, 215 F.3d470 (4th Cir. 2000) (Bank larceny isnot a crime of violence).

*United States v. Peterson, 233F.3d 101 (1st Cir. 2000)(Defendant’s prior for breaking andentering did not meet definition ofviolent felony under ACCA).

United States v. Concha, 233 F.3d1249 (10th Cir. 2000) (Foreignconvictions are not predicates underACCA).

United States v. Matthews, 240F.3d 806 (9th Cir. 2001) (Courtlacked documentary evidence tofind prior conviction proven underACCA).

United States v. Brandon, 247F.3d 186 (4th Cir. 2001) (Absent anelement of intent to distribute ormanufacture, prior was not a seriousdrug felony).

Dalton v. Ashcroft, 257 F.3d 200(2d Cir. 2001) (Not all felony DUIsin New York are crimes ofviolence).

United States v. Trinidad-Aquino,259 F.3d 1140 (9th Cir. 2001)(California DUI was not crime ofviolence).

United States v. Sparks, 265 F.3d825 (9th 2001) (Burglary of a storagelocker was not violent felony).

United States v. Tighe, 266 F.3d1187 (9th Cir. 2001) (Prior juvenileadjudications that do not provide forjury trial must be pled and provenbeyond a reasonable doubt).

CrossReferences

United States v. Lagasse, 87 F.3d18 (1st Cir. 1996) (There was no linkbetween a knife-point robbery of acoconspirator, and the charged drug


conspiracy, to justify an increase insentence).

*United States v. Aderholt, 87F.3d 740 (5th Cir. 1996) (Murderguidelines were improperly appliedin a mail fraud conspiracy becausemurder was not an object of theconspiracy).

United States v. Meacham, 115F.3d 1488 (10th Cir. 1997)(Transportation of a child, notinvolving prostitution or productionof a visual depiction, required crossreference to lower base level forsexual contact).

*United States v. Jackson, 117F.3d 533 (11th Cir. 1997) (Policeofficer convicted of theft should nothave been sentenced under civilrights guidelines).

United States v. Cross, 121 F.3d234 (6th Cir. 1997) (Torture was notrelevant conduct in a drug case).

*United States v. Sanders, 162F.3d 396 (6th Cir. 1999) (Possibilitythat defendant could have beencharged with state burglary did notmean firearm was used inconnection with another offense).

*United States v. Mezas De Jesus,217 F.3d 638 (9th Cir. 2000)(Kidnaping, used to enhancesentence, needed to be proven byclear and convincing evidence).

United States v. Shabazz, 263 F.3d603 (6th Cir. 2001) (Use base level,not total offense level, whencalculating accessory after the fact).

United States v. Taylor, 272 F.3d980 (7th Cir. 2001) (Shooting mustbe directly related to escape toenhance sentence).

Abuse of Trust*United States v. Jolly, 102 F.3d46 (2d Cir. 1996) (Corporateprincipal could not get abuse of trust

enhancement for defraudinginvestors).

United States v. Long, 122 F.3d1360 (11th Cir. 1997) (Abuse oftrust enhancement did not apply toprison employee who brought incontraband).

*United States v. Garrison, 133F.3d 831 (11th Cir. 1998) (Owner ofa health care provider did notoccupy position of trust withMedicare).

United States v. Burt, 134 F.3d997 (10th Cir. 1998) (Deputysheriff’s drug dealing did not meritabuse of trust or special skillsenhancements).

United States v. Reccko, 151 F.3d29 (1st Cir. 1998) (Policeswitchboard operator did not occupyposition of trust).

*United States v. Wadena, 152F.3d 831 (8th Cir.), cert. denied, 526U.S. 1050 (1999) (Moneylaundering, unrelated to defendant’sposition, did not warrant abuse oftrust).

United States v. Holt, 170 F.3d 698(7th Cir. 1999) (Part-time policeofficer did not justify abuse of trustenhancement).

United States v. Guidry, 199 F.3d1150 (10th Cir. 1999) (Defendantmust have relationship of trust withvictim for abuse of trust to apply).

United States v. Tribble, 206 F.3d634 (6th Cir. 2000) (Postal windowclerk did not hold position of trust).

United States v. Ward, 222 F.3d909 (11th Cir. 2000) (Bank guarddid not occupy position of trust).

United States v. Willard, 230 F.3d1093 (9th Cir. 2000) (Motherhoodalone is not a position of trust underthe guidelines).

United States v. Trice, 245 F.3d1041 (8th Cir. 2001) (Abuse of trustadjustment did not apply to armslength business relationship).

Obstruction ofJustice

United States v. Williams, 79 F.3d334 (2d Cir. 1996) (In order tojustify an obstruction of justiceenhancement, the court had to findthe defendant knowingly made afalse statement under oath).

*United States v. Strang, 80 F.3d1214 (7th Cir. 1996) (Perjury inanother case did not warrant anobstruction of justice enhancementin the instant case).

United States v. Medina-Estrada,81 F.3d 981 (10th Cir. 1996) (Courtmust have found all elements ofperjury were proven to giveenhancement for obstruction ofjustice).

United States v. Hernandez, 83F.3d 582 (2d Cir. 1996) (Staring ata witness and calling them “thedevil,” did not justify enhancementfor intimidation).

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

*United States v. Ruggiero, 100F.3d 284 (2d Cir.), cert. denied, 522U.S. 1138 (1998) (Judge properlyrefused to apply an obstruction ofjustice enhancement).

*United States v. Draves, 103 F.3d1328 (7th Cir.), cert. denied, 521U.S. 1127 (1997) (Fleeing from apolice car was not obstruction ofjustice).

United States v. Harris, 104 F.3d1465 (5th Cir.), cert. denied, 522U.S. 833 (1997) (Actions of


accessory after the fact did notjustify obstruction enhancementwhen those same acts supported thesubstantive offense).

United States v. Zagari, 111 F.3d307 (2d Cir. 1997) (No finding tosupport obstruction enhancement).

*United States v. Tackett, 113F.3d 603 (6th Cir.), cert. denied, 522U.S. 1089 (1998) (Court failed tofind that government resources werew a s t e d f o r o b s t r u c t i o nenhancement).

United States v. Sawyer, 115 F.3d857 (11th Cir. 1997) (Sentencingincrease for reckless endangermentonly applied to defendant fleeinglaw enforcement officer, notcivilians).

*United States v. Sassanelli, 118F.3d 495 (6th Cir. 1997)(Obstruction findings did notspecify which statements werematerially untruthful).

*United States v. Solono-Godines,120 F.3d 957 (9th Cir.), cert. denied,5 2 2 U . S . 1 0 6 1 ( 1 9 9 8 )(Misrepresentation by the defendantdid not obstruct justice).

United States v. Webster, 125 F.3d1024 (7th Cir. 1997) (Finding thatthe defendant testified falsely lackedspecificity).

United States v. Senn, 129 F.3d886 (7th Cir. 1997) (Lying aboutminor details to grand jury was notobstruction).

United States v. Norman, 129 F.3d1393 (10th Cir. 1997) (Concealingdrugs at scene of crime was notobstruction).

United States v. McRae, 156 F.3d708 (6th Cir. 1999) (Insufficientfindings of obstruction of justice).

United States v. Jones, 159 F.3d969 (6th Cir. 1999) (Irrelevant falsetestimony did not support

obstruction of justice).

United States v. Koeberlein, 161F.3d 946 (6th Cir. 1999) (Failure toappear on unrelated offense was notobstruction).

United States v. Monzon-Valenzuela, 186 F.3d 1181 (9th Cir.1999) (Absent perjury finding,adjustment for obstruction did notapply).

United States v. Gage, 183 F.3d711 (7th Cir. 1999) (Defendant’sdenial that his robbery notementioned a firearm did not justifyobstruction adjustment).

United States v. Amsden, 213 F.3d1014 (8th Cir. 2000) (Defendantc o n v i c t e d o f t h r e a t e n i n gcommunications did not obstructjustice by sending additionalthreatening letter).

*United States v. Woodard, 239F.3d 159 (2d Cir. 2001) (Unlessdefendant left district intending tomiss court, it was not obstruction).

United States v. McGiffin, 267F.3d 581 (7th Cir. 2001)(Conclusions about defendant’stestimony were not specificfindings).

United States v. Jenkins, 275 F.3d283 (3rd Cir. 2001) (Failing toappear at related state proceedingwas not obstruction).

VulnerableVictim

*United States v. Castellanos, 81F.3d 108 (9th Cir. 1996) (Merelybecause a fraud scheme usedSpanish language media, did notjustify an enhancement for victimsparticularly susceptible to fraud).

*United States v. Stover, 93 F.3d

1379 (8th Cir. 1996) (Persons’desire to adopt children did notmake them vulnerable victims of anadoption agency).

*United States v. Shumway, 112F.3d 1413 (10th Cir. 1997)(Prehistoric skeletal remains werenot vulnerable victims).

*United States v. Robinson, 119F.3d 1205 (5th Cir.), cert. denied,522 U.S. 1139 (1998) (Asian-American merchants were notvulnerable victims).

United States v. Hogan, 121 F.3d370 (8th Cir. 1997) (Victims musthave been targeted in order to beconsidered vulnerable).

United States v. Monostra, 125F.3d 183 (3rd Cir. 1997) (Victim’svulnerability must facilitate thecrime in some manner).

United States v. McCall, 174 F.3d47 (2d Cir. 1999) (Vulnerablevictim enhancement is not a relativestandard).

United States v. Pospisil, 186 F.3d1023 (8th Cir. 1999) (No evidencethat defendant knew victims werevulnerable).

United States v. Castaneda, 239F.3d 978 (9th Cir. 2001) (Clubworkers who were encouraged toprovide sexual services for feeswere not vulnerable victims).

AggravatingRole

United States v. Ivy, 83 F.3d 1266(10th Cir.), cert. denied, 519 U.S.901 (1996) (Insufficient findings fora managerial role).

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


United States v. Patasnik, 89 F.3d63 (2d Cir. 1996) (Management rolehad to be based on managingpeople, not assets).

United States v. Wester, 90 F.3d592 (1st Cir. 1996) (Court failed tomake findings there were five ormore participants).

United States v. Miller, 91 F.3d1160 (8th Cir. 1996) (Lack ofevidence that the defendantcontrolled others precluded aleadership role).

*United States v. Albers, 93 F.3d1469 (10th Cir. 1996) (Leadershiprole could not be based solely ondefendant’s importance to thesuccess of the conspiracy).

*United States v. Delpit, 94 F.3d1134 (8th Cir. 1996) (Murder-for-ire scheme had less than fiveparticipants).

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

United States v. Jobe, 101 F.3d1046 (5th Cir.), cert. denied, 522U.S. 823 (1997) (Defendant’sposition as bank director did notjustify managerial role when he didnot manage or supervise others).

United States v. DeGovanni, 104F.3d 43 (3rd Cir. 1997) (Corruptpolice sergeant was not a supervisormerely because of his rank).

United States v. Eidson, 108 F.3d1336 (11th Cir.), cert. denied, 118S.Ct. 248 (1997) (Clean Water Actviolation lacked five participants forrole adjustment).

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

United States v. Bryson, 110 F.3d575 (8th Cir. 1997) (Facts did notsupport upward adjustment for role).

United States v. Logan, 121 F.3d1172 (8th Cir. 1997) (Record didnot suppor t upward ro leadjustment).

United States v. Makiewicz, 122F.3d 399 (7th Cir. 1997) (Defendantwas not a leader for asking hisfather to accompany informant tomotel).

United States v. Del Toro-Aguilar,138 F.3d 340 (8th Cir. 1998)(Occasionally fronting drugs tococonspirators did not justifyupward role adjustment).

*United States v. Alred, 144 F.3d1405 (11th Cir. 1998) (Defendantwas not an organizer).

United States v. Lopez-Sandoval,146 F.3d 712 (9th Cir. 1998)(Defendant was not an organizer).

*United States v. Glinton, 154F.3d 1245 (11th Cir.), cert. denied,119 S.Ct. 1281 (No managerial rolefor defendant who did not superviseor control others).

United States v. Walker, 160 F.3d1078 (6th Cir.), cert. denied, 526U.S. 1056 (1999) (Insufficientevidence of organizer role).

United States v. Graham, 162 F.3d1 1 8 0 ( D . C . C i r . 1 9 9 9 )(Conclusionary statement thatdefendant was lieutenant did notjustify role adjustment).

United States v. Tank, 200 F.3d627 (9th Cir. 2000) (Insufficientevidence of defendant’s leadershiprole).

Mitigating RoleUnited States v. Moeller, 80 F.3d1053 (5th Cir. 1996) (No leadershiprole for a government official who

inherited an historically corruptsystem, but the defendant’s lack ofunderstanding of the entire schemejustified a minimal role adjustment).

*United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir.1996) (There was an insufficientbasis to deny a minor rolereduction).

*United States v. Haut, 107 F.3d213 (3rd Cir.), cert. denied, 521 U.S.1127 (1997) (Arson defendants whoworked at direction of others wereminimal participants).

*United States v. Snoddy, 139F.3d 1224 (8th Cir. 1998) (Solecharged defendant may receiveminor role when justified byrelevant conduct).

United States v. Neils, 156 F.3d382 (2d Cir. 1999) (Defendant whomerely steered buyers was minorparticipant).

Acceptance ofResponsibility

United States v. Fells, 78 F.3d 168(5th Cir.), cert. denied, 519 U.S. 847(1996) (Defendant making astatutory challenge, could stillqualify for acceptance ofresponsibility).

United States v. Patino-Cardenas,85 F.3d 1133 (5th Cir. 1996) (Nobasis to deny credit when thedefendant did not falsely denyrelevant conduct).

United States v. Garrett, 90 F.3d210 (7th Cir. 1996) (Defendant couldnot be denied acceptance when hefiled an uncounseled, pro se motionto withdraw plea after his attorneydied).

United States v. Flores, 93 F.3d587 (9th Cir. 1996) (Defendantshould have received credit for hiswritten statement).


*United States v. Atlas, 94 F.3d447 (8th Cir.), cert. denied, 520 U.S.1130 (1997) (Defendant who timelyaccepted responsibility must begiven the additional one-leveldownward adjustment).

United States v. Ruggiero, 100F.3d 284 (2d Cir. 1996) (Singlefalse denial did not bar credit foracceptance of responsibility).

United States v. McPhee, 108 F.3d287 (11th Cir. 1997) (Defendantwho qualified should not have beengiven less than the full three-pointreduction for timely acceptingresponsibility).

*United States v. Guerrero-Cortez, 110 F.3d 647 (8th Cir.),cert. denied, 522 U.S. 1017 (1998)(Defendant’s pretrial statements ofacceptance justified reductionthough case was tried).

United States v. Marroquin, 136F.3d 220 (1st Cir. 1998) (Creationof a lab report was not the type oftrial preparation to deny extra pointoff for accepting responsibility).

United States v. Fisher, 137 F.3d1158 (9th Cir. 1998) (Despite notguilty plea, admission in open courtcould be acceptance).

*United States v. McKittrick, 142F.3d 1170 (9th Cir.), cert. denied,525 U.S. 1072 (1998) (Defendantwho did not contest facts at trialmay be eligible for acceptance).

United States v. Ellis, 168 F.3d 558(1st Cir. 1999) (Defendant who wentto trial was still potentially eligiblefor t imely acceptance ofresponsibility).

United States v. Rice, 184 F.3d 740(8th Cir. 1999) (Defendant wasentitled to full three-level reductionfor acceptance).

United States v. Corona-Garcia,210 F.3d 973 (9th Cir. 2000) (Even

after trial, defendant could receivefull credit for acceptance when heconfessed fully and immediatelyupon arrest).

United States v. Ochoa-Gaytan,265 F.3d 837 (9th Cir. 2001)(Defendant could get acceptanceeven after trial).

Safety Valve*United States v. Shrestha, 86F.3d 935 (9th Cir. 1996) (Eligibilityfor the safety valve did not dependon acceptance of responsibility).

United States v. Flanagan, 87 F.3d121 (5th Cir. 1996) (On remand, thesentencing court could withdraw aleadership role so the defendantcould qualify for safety valve).

*United States v. Real-Hernandez,90 F.3d 356 (9th Cir. 1996) (To beeligible for safety valve, a defendantdid not need to give information toa specific agent).

United States v. Beltran-Ortiz, 91F.3d 665 (4th Cir. 1996) (Failure todebrief the defendant, thuspreventing him from benefittingfrom the safety valve, violated theplea agreement).

United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir.1996) (Government had to rebut thedefendant’s version in order to denysafety valve).

United States v. Sherpa, 97 F.3d1239 (9th Cir.), amended, 110 F.3d656 (1997) (Even a defendant whoclaimed innocence was eligible if hemet requirements).

United States v. Wilson, 105 F.3d219 (5th Cir.), cert. denied, 522 U.S.847 (1997) (Co-conspirator’s use ofa firearm did not bar application ofthe safety valve).

United States v. Osei, 107 F.3d 101(2d Cir. 1997) (Two-level safety

valve adjustment applied regardlessof mandatory minimum).

*United States v. Clark, 110 F.3d15 (6th Cir. 1997) (Safety valveapplied to cases that were on appealat effective date).

United States v. Mertilus, 111 F.3d870 (11th Cir. 1997) (Safety valveapplied to a telephone count).

*United States v. Mihm, 134 F.3d1353 (8th Cir. 1998) (Court failed tocons ider sa fe ty va lve a tresentencing).

United States v. Carpenter, 142F.3d 333 (6th Cir. 1998) (Refusal totestify did not bar safety valve).

United States v. Gama-Bastidas,142 F.3d 1233 (10th Cir. 1998)(Court failed to make findingsregarding applicability of safetyvalve).

*United States v. Kang, 143 F.3d379 (8th Cir. 1998) (Defendant couldnot be denied safety valve becausegovernment claimed he wasuntruthful absent supportingevidence).

United States v. Clavijo, 165 F.3d1341 (11th Cir. 1999) (Unforeseenpossession of f irearm bycoconspirator does not bar safetyvalve relief).

United States v. Ortiz-Santiago,211 F.3d 146 (1st Cir. 2000) (Pleaagreement prohibiting furtheradjustments did not preclude safetyvalve).

United States v. Lopez, 264 F.3d527 (5th Cir. 2001) (It does notmatter in which order the courtapplies the guidelines).

Criminal History*United States v. Spell, 44 F.3d936 (11th Cir. 1995) (Judgement wasthe only conclusive proof of prior


convictions).

United States v. Douglas, 81 F.3d324 (2d Cir.), cert. denied, 517 U.S.1251 (1996) (Juvenile sentence,more than five years old, wasincorrectly applied).

United States v. Cox, 83 F.3d 336(10th Cir. 1996) (Proper to attack aguidelines sentence when priorconvictions were later successfullyattacked).

*United States v. Parks, 89 F.3d570 (9th Cir. 1996) (No criminalhistory points could be attributed toa defendant when indigenceprevented payment of fines).

United States v. Flores, 93 F.3d587 (9th Cir. 1996) (Courterroneously twice counted a singleprobation revocation to increase twoprior convictions).

United States v. Ortega, 94 F.3d764 (2d Cir. 1996) (Uncounseledmisdemeanor was improperlycounted).

United States v. Easterly, 95 F.3d535 (7th Cir. 1996) (Fish and gameviolation should not have beencounted).

*United States v. Gilcrist, 106 F.3d297 (9th Cir. 1997) (Sentence, uponwhich parole began over 15 yearsago, could not be counted towardcriminal history).

United States v. Huskey, 137 F.3d283 (5th Cir. 1998) (Priorconvictions in same informationwere related cases for countingcriminal history).

United States v. Walker, 142 F.3d103 (2d Cir.), cert. denied, 525 U.S.896 (1998) (Prior convictions foroffenses that were calculated intooffense level should not havereceived criminal history points).

United States v. Hernandez, 145F.3d 1433 (11th Cir. 1998) (Arrest

warrant did not determine nature ofprior conviction).

United States v. Torres, 182 F.2d1156 (10th Cir. 1999) (Priorconvictions that are relevant conductmay not be counted toward criminalhistory).

United States v. Thomas, 211 F.3d316 (6th Cir. 2000) (Two prior rapeswere a single transaction).

United States v. Arnold, 213 F.3d894 (5th Cir. 2000) (Sentence ofless than a year and a day must beimposed within ten years of offenseto count toward criminal history).

United States v. Stuckey, 220 F.3d976 (8th Cir. 2000) (Military priorwas not serious drug offense).

United States v. Morales, 239 F.3d113 (2d Cir. 2001) (No criminalhistory point for 2nd degreeharassment).

UpwardDepartures

United States v. Thomas, 62 F.3d1332 (11th Cir.), cert. denied, 516U.S. 1166 (1996) (Consequentialdamages did not justify an upwarddeparture unless it was substantiallyin excess of typical fraud case).

*United States v. Henderson, 75F.3d 614 (11th Cir. 1996) (Upwarddeparture for multiple weapons in adrug case was improper).

United States v. Blackwell, 81 F.3d945 (10th Cir. 1996) (Court did nothave jurisdiction to increase asentence after judgement was final).

United States v. Harrington, 82F.3d 83 (5th Cir. 1996) (Courtshould not have upwardly departedfor a defendant’s status as anattorney without first consideringapplication of abuse of trust).

*United States v. Sherwood, 98F.3d 402 (9th Cir. 1996) (Justbecause victims were almostvulnerable, did not justify anupward departure).

United States v. LeCompte, 99F.3d 274 (8th Cir. 1996)(Justification was based onguideline amendment after offenseoccurred).

*United States v. Valentine, 100F.3d 1209 (6th Cir. 1996) (Thedifference between seven and fiveoffenses did not justify departure formultiple counts).

United States v. Mangone, 105F.3d 29 (1st Cir.), cert. denied, 510U.S. 1258 (1997) (Failure to givenotice of upward departure wasplain error).

*United States v. Otis, 107 F.3d487 (7th Cir. 1997) (Failure to givenotice of an upward departure wasplain error).

United States v. Arce, 118 F.3d335 (5th Cir. 1997) (Manufacturingfirearms was not a basis for upwarddeparture).

United States v. White, 118 F.3d739 (11th Cir. 1997) (Lenientguideline range was not a ground forupward departure).

*United States v. DePace, 120 F.3d233 (11th Cir.), cert. denied, 523U.S. 1153 (1998) (Upwarddeparture was without notice).

United States v. Johnson, 121 F.3d1141 (8th Cir. 1997) (Defendant didnot get notice of upward departure).

United States v. Stein, 127 F.3d777 (9th Cir. 1997) (Upwarddeparture based on more thanminimal planning and multiplevictims was unwarranted).

United States v. Corrigan, 128F.3d 330 (6th Cir. 1997) (Neither,number of victims, number of


schemes, nor amount of loss,supported upward departure).

United States v. Candelario-Cajero, 134 F.3d 1246 (5th Cir.1998) (Absent an upward departure,grouped counts cannot receiveconsecutive sentences).

United States v. Terry, 142 F.3d702 (4th Cir. 1998) (Extent ofupward departure was not supportedby findings).

*United States v. Hinojosa-Gonzales, 142 F.3d 1122 (9th Cir.),cert. denied, 525 U.S. 1033 (1999)(Defendant did not get adequatenotice of upward departure).

*United States v. G.L., 143 F.3d1249 (9th Cir. 1998) (Lenient theftguidelines did not justify upwarddeparture).

*United States v. Almaguer, 146F.3d 474 (7th Cir. 1998) (Use offirearm was included in guidelineand did not justify upwarddeparture).

United States v. Nagra, 147 F.3d875 (9th Cir. 1998) (Upwarddeparture based upon factorconsidered by guidelines wasdouble counting).

*United States v. Van Metre, 150F.3d 339 (4th Cir. 1998)(Commentary Note on grouping didnot provide basis for upwarddeparture).

United States v. Johnson, 152 F.3d553 (6th Cir. 1998) (Arson waswithin heartland of cases and did notjustify upward departure).

United States v. Lawrence, 161F.3d 250 (4th Cir. 1999) (Mustspecify findings to depart up forunder-representation of criminalhistory).

United States v. Whiteskunk, 162F.3d 1244 (10th Cir. 1999) (Upwarddeparture must include some

method of analogy, extrapolation, orreference to the guidelines).

*United States v. Jacobs, 167 F.3d792 (3rd Cir. 1999) (Court did notadequately explain upwarddeparture for psychological injury).

DownwardDepartures

United States v. Rodriguez, 64F.3d 638 (11th Cir. 1995)(Downward departure was allowedto give credit for acceptance ofresponsibility on consecutivesentences).

Koon v. United States, 518 U.S. 81(1996) (A district court could departfrom the guidelines if (1) the reasonwas not specifically prohibited bythe guidelines; (2) the reason wasdiscouraged by the guidelines butexceptional circumstances apply; or(3) the reason was neither prohibitednor discouraged, and the reason wasnot previously addressed by theapplicable guideline provisions inthat case).

United States v. Conway, 81 F.3d15 (1st Cir. 1996) (Court could notrefuse a downward departure basedupon information received as part ofa cooperation agreement).

United States v. Graham, 83 F.3d1466 (10th Cir.), cert. denied, 519U.S. 1132 (1997) (Extremevulnerability to abuse in prisoncould justify a downwarddeparture).

*United States v. Walters, 87 F.3d663 (5th Cir.), cert. denied, 519 U.S.1000 (1996) (Downward departurewas approved for a defendant whodid not personally benefit frommoney laundering).

*United States v. Cubillos, 91 F.3d1342 (9th Cir. 1996) (Basis fordownward departure could nolonger be categorically rejected after

Koon).

*United States v. Jaroszenko, 92F.3d 486 (7th Cir. 1996) (Remorsecould be considered as a ground fordownward departure).

United States v. Sanders, 97 F.3d856 (6th Cir. 1996) (Downwarddeparture was available for anArmed Career Criminal).

United States v. Olbres, 99 F.3d 28(1st Cir. 1996) (Court could grantdeparture for effect on innocentemployees of the defendant).

United States v. Etherton, 101F.3d 80 (9th Cir. 1996) (Court hadauthority to reduce the sentenceafter a revocation of supervisedrelease when the guidelines werelater amended to provide for a lowerrange).

*United States v. Williams, 103F.3d 57 (8th Cir. 1996) (Court couldreduce a sentence for a retroactiveamendment even after a reductionfor substantial assistance).

United States v. Lopez, 106 F.3d309 (9th Cir. 1997) (Prosecutors’violation of ethical rule in meetingwith an indicted defendant justifieda downward departure).

*United States v. Brock, 108 F.3d31 (4th Cir. 1997) (Rehabilitationwas a proper basis for downwarddeparture).

United States v. Paton, 110 F.3d562 (8th Cir. 1997) (Government’sbreach of plea agreement was aproper ground for downwarddeparture).

United States v. Wallace, 114 F.3d652 (7th Cir. 1997) (Court shouldnot have limited a downwarddeparture just because the defendantalready received credit for acceptingresponsibility).

*United States v. McBroom, 124F.3d 533 (3rd Cir. 1997) (Reduced


mental capacity was a basis fordownward departure in a child porncase).

*United States v. Rounsavall, 128F.3d 665 (8th Cir. 1997) (Defendantwas entitled to an evidentiaryhearing to determine if thegovernment’s failure to move for areduced sentence was irrational, inbad faith, or unconstitutionallymotivated).

United States v. Clark, 128 F.3d122 (2d Cir. 1997) (Downwarddeparture for a lesser harm wasavailable in a felon in possessioncase).

United States v. O’Hagan, 139F.3d 641 (8th Cir. 1998) (Courtcould depart downward to credittime served on an expired statesentence for the same conduct).

United States v. Kaye, 140 F.3d 86(2d Cir. 1998) (Court can departdownward based on assistance tostate law enforcement withoutmotion by government).

United States v. Campo, 140 F.3d415 (2nd Cir. 1998) (Judge couldnot refuse to depart solely becausehe did not like USA’s policy aboutnot recommending a specificsentence).

United States v. Whitecotton, 142F.3d 1194 (9th Cir. 1998) (Courtcould depart based on entrapmentand diminished capacity).

United States v. Faulks, 143 F.3d133 (3rd Cir. 1998) (Agreement notto contest forfeitures may be basisfor downward departure).

United States v. Crouse, 145 F.3d786 (6th Cir. 1998) (Civicinvolvement justified downwarddeparture).

*United States v. Whitaker, 152F.3d 1238 (10th Cir. 1998) (Post-offense drug rehabilitation can

justify downward departure).

United States v. Stockheimer, 157F.3d 1082 (2nd Cir.), cert. denied,525 U.S. 1184 (1999) (Refusing toconsider downward departure basedon economic reality of intended losswas plain error).

United States v. Fagan, 162 F.3d1280 (10th Cir. 1999) (Court coulddepart downward for exceptionalremorse).

*United States v. Jones, 160 F.3d473 (8 th Cir. 1999) (Governmentactions prejudicing defendant canjustify downward departure).

*United States v. Martinez-Ramos, 184 F.3d 1055 (9th Cir.1999) (Court had authority to departdownward to remedy sentencingdisparity).

*United States v. Coleman, 188F.3d 354 (6th Cir. 1999) (Courtmust look at case as a whole to seeif factors take case out of“heart land” for downwarddeparture).

United States v. Rodriguez-Lopez,198 F.3d 773 (9th Cir. 1999)(Government need not consent todeparture for stipulated deportation).

United States v. Wells, 211 F.3d988 (6th Cir. 2000) (Plea agreementrequired only full cooperation, notsubstantial assistance).

United States v. Ventrilla, 233F.3d 166 (2d Cir. 2000) (Judge wasmistaken about authority to departfor diminished mental capacity).

United States v. Causor-Serrato,234 F.3d 384 (8th Cir. 2000) (Courtcould depart for defendant’sagreement to be deported).

United States v. Walter, 256 F.3d891 (9th Cir. 2001) (Defendant waseligible for departure for childhoodabuse).

United States v. Busekros, 264F.3d 1158 (10th Cir. 2001)(Departure for substantial assistanceallowed defendant to retain federalbenefits).

United States v. Rodriguez-Montelongo, 263 F.3d 429 (5th Cir.2001) (Cultural assimilation is basisfor departure).

Fines /Restitution

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

United States v. Ledesma, 60 F.3d750 (11th Cir. 1995) (Restitutionorder could only be applied tocharges of conviction).

*United States v. Mullens, 65 F.3d1560 (11th Cir.), cert. denied, 517U.S. 1112 (1996) (Record lackedfindings to support restitution whenamount was specific offensecharacteristic).

United States v. Maurello, 76 F.3d1304 (3rd Cir. 1996) (The court hadto make findings to determine actualloss to victim).

*United States v. Reed, 80 F.3d1419 (9th Cir.), cert. denied, 519U.S. 882 (1996) (Restitution orderhad to be limited to conduct ofconviction).

United States v. Blake, 81 F.3d 498(4th Cir. 1996) (Restitution couldonly be based on the loss directlyrelated to the offense, and the courthad to make findings that thedefendant can pay that amountwithout undue hardship).

*United States v. Giwah, 84 F.3d109 (2d Cir. 1996) (Restitution


order failed to indicate that allstatutory factors were considered).

United States v. Sharma, 85 F.3d363 (8th Cir. 1996) (No reason wasgiven for an upward departure on afine).

United States v. Hines, 88 F.3d 661(8th Cir. 1996) (In assessing fine andrestitution, the court should haveconsidered the defendant’s familialobligations of his recent marriage).

*United States v. Upton, 91 F.3d677 (5th Cir.), cert. denied, 520 U.S.1228 (1997) (No restitution wasavailable to victims not named inthe indictment).

*United States v. Sablan, 92 F.3d865 (9th Cir. 1996) (Consequentialexpenses could not be included in arestitution order).

United States v. Jaroszenko, 92F.3d 486 (7th Cir. 1996) (The courtfailed to fully consider thedefendant’s ability to payrestitution).

United States v. Santos, 93 F.3d761 (11th Cir.), cert. denied, 520U.S. 1170 (1997) (Defendant couldnot be ordered to pay restitution formoney taken in a robbery for whichhe was not convicted).

*United States v. Monem, 104F.3d 905 (7th Cir. 1997) (Court didnot make sufficient factual findingsto justify the fine of a defendantwho claimed inability to pay).

*United States v. McMillan, 106F.3d 322 (10th Cir. 1997) (Courtcould reduce a fine for substantialassistance).

United States v. Messner, 107 F.3d1448 (10th Cir. 1997) (Restitutionhad to be based on actual loss).

United States v. McArthur, 108F.3d 1350 (11th Cir. 1997) (Adefendant could not be ordered topay restitution for acquitted

conduct).

United States v. Eidson, 108 F.3d1336 (11th Cir.), cert. denied, 522U.S. 899 (1997) (Facts did notsupport restitution order).

United States v. Hodges, 110 F.3d250 (5th Cir. 1997) (Fine was notjustified for a defendant with anegative net worth).

United States v. Khawaja, 118F.3d 1454 (11th Cir. 1997)(Government was not a victim forpurposes of awarding restitution).

*United States v. Gottesman, 122F.3d 150 (11th Cir. 1997)(Defendant’s promise to pay back-axes did not authorize court-orderedrestitution).

*United States v. Baggett, 125F.3d 1319 (9th Cir. 1997)(Restitution must be based upon aspecific statute).

United States v. Mayer, 130 F.3d338 (8th Cir. 1997) (Restitutionshould not have been higher thanthe loss).

United States v. Drinkwine, 133F.3d 203 (2d Cir. 1998) (Insufficientevidence that defendant could pay afine).

United States v. Menza, 137 F.3d533 (7th Cir. 1998) (Defendant didnot have to pay restitution foramount greater than losses).

United States v. Riley, 143 F.3d1289 (9th Cir. 1998) (Defendantcould not be ordered to payrestitution on loan unrelated tofraud).

United States v. Stoddard, 150F.3d 1140 (9th Cir. 1998)(Restitution could not exceed actualloss).

*United States v. Siegel, 153 F.3d

1256 (11th Cir. 1998) (Court mustconsider defendant’s ability to payrestitution).

*United States v. Dunigan, 163F.3d 979 (6th Cir. 1999) (Court didnot adequately consider defendant’sability to pay restitution).

United States v. Brierton, 165 F.3d1133 (7th Cir. 1999) (Restitutioncan only be based on loss fromcharged offense).

United States v. Merric, 166 F.3d406 (1st Cir. 1999) (Court could notdelegate scheduling of installmentpayments to probation officer’sdiscretion).

United States v. Johnston, 199F.3d 1015 (9th Cir. 1999) (Forfeitedmoney should have been subtractedfrom restitution).

United States v. Prather, 205 F.3d1265 (11th Cir. 2000) (Amount ofspecial assessment governed by dateof offense).

United States v. Beckett, 208 F.3d140 (3rd Cir. 2000) (Restitutionshould not have been orderedwithout determining ability to pay).

United States v. Norris, 217 F.3d262 (5th Cir. 2000) (Restitution wasnot for actual loss).

United States v. Griffin, 215 F.3d866 (8th Cir. 2000) (Loss from foodstamp fraud was limited to actualbenefits diverted).

United States v. Andra, 218 F.3d1106 (9th Cir. 2000) (Tax lossshould not have included penaltiesand interest).

United States v. Rodrigues, 229F.3d 842 (9th Cir. 2000) (Norestitution for speculative loss).

United States v. Young, 272 F.3d1052 (8th Cir. 2001) (Report’sfailure to document loss excuseddefendant’s failure to object to


restitution amount).

AppealsUnited States v. Byerley, 46 F.3d694 (7th Cir. 1996) (Governmentwaived argument by inconsistentposition at sentencing).

United States v. Caraballo-Cruz,52 F.3d 390 (1st Cir. 1995)(Government defaulted on doublejeopardy claim).

*United States v. Carillo-Bernal,58 F.3d 1490 (10th Cir. 1995) (Thegovernment failed to timely filecertification for appeal).

United States v. Petty, 80 F.3d1384 (9th Cir. 1996) (Waiver ofappeal of an unanticipated error wasnot enforceable).

*United States v. Ready, 82 F.3d551 (2d Cir. 1996) (Waiver ofappeal did not cover issue ofrestitution and was not waived).

*United States v. Thompson, 82F.3d 700 (6th Cir. 1996)(Technicalities that did not prejudicethe government were not cause todeny a motion to extend time to filean appeal).

*United States v. Agee, 83 F.3d882 (7th Cir. 1996) (Waiver ofappeal, not discussed at the pleacolloquy, was invalid).

*United States v. Webster, 84 F.3d1056 (11th Cir. 1996) (When a lawwas clarified between trial andappeal, a point of appeal waspreserved as plain error).

*United States v. Allison, 86 F.3d940 (9th Cir. 1996) (Remand wasproper even though the district courtcould still impose the samesentence).

*United States v. Perkins, 89 F.3d303 (6th Cir. 1996) (Orally raisingan issue of double-counting at

sentencing preserved it for appeal).

United States v. Stover, 93 F.3d1379 (8th Cir. 1996) (Appellatecourt refused to use a substantivechange to the guidelines to uphold asentence that was improper at thetime imposed).

United States v. Alexander, 106F.3d 874 (9th Cir. 1997) (Rule ofthe case barred reconsideration of asuppression order after remand).

United States v. Zink, 107 F.3d716 (9th Cir. 1997) (Waiver ofappeal of sentence did not cover arestitution order).

United States v. Saldana, 109 F.3d100 (1st Cir. 1997) ( Defendant hada jurisdictional basis to appeal adenial of a downward departure).

*Sanders v. United States, 113F.3d 184 (11th Cir. 1997) (Pro sepetitioner’s out-of-time appeal wastreated as a motion for extension oftime).

United States v. Arteaga, 117 F.3d388 (9th Cir.), cert. denied, 522 U.S.988 (1997) (Evidence that wasprecluded at trial could not supportconvictions on appeal).

*In Re Grand Jury Subpoena, 123F.3d 695 (1st Cir. 1997) (Thirdparty may appeal the denial of amotion to quash without risking acontempt citation).

*United States v. Martinez-Rios,143 F.3d 662 (2d Cir. 1998) (Vagueappeal waiver was void).

United States v. Montez-Gavira,163 F.3d 697 (2d Cir. 1999)(Deportation did not moot appeal).

United States v. Gonzalez, 259F.3d 355 (5th Cir. 2001) (Apprendierror was preserved even whendefendant waived appeal).

United States v. Smith, 263 F.3d571 (6th Cir. 2001) (Government

appeal, of suppression, wasdismissed when there was nocertification that appeal was notfiled in bad faith).

Resentencing*United States v. Moore, 131 F.3d595 (6th Cir. 1997) (Limited remanddid not allow a new enhancement atresentencing).

*United States v. Wilson, 131 F.3d1250 (7th Cir. 1997) (Governmentwaived the issue of urgingadditional relevant conduct atresentencing).

United States v. Rapal, 146 F.3d661 (9th Cir. 1998) (Higherr e s e n t e n c e p r e s u m e dvindictiveness).

*United States v. Ticchiarelli, 171F.3d 24 (1st Cir.), cert. denied, 528U.S. 850 (1999) (Sentence imposed,between original sentence andremand, could not be counted atresentencing).

United States v. Jackson, 181 F.3d740 (6th Cir. 1999) (Resentencingdid not overcome presumption ofvindictiveness).

*United States v. Faulks, 201 F.3d208 (3rd Cir. 2000) (Defendantcould not be resentenced inabsentia).

SupervisedRelease /Probation

United States v. Doe, 79 F.3d 1309(2d Cir. 1996) (Occupationalrestriction was not supported by thecourt’s findings).

United States v. Edgin, 92 F.3d


1044 (10th Cir.), cert. denied, 519U.S. 1069 (1997) (Court failed toprovide adequate reasons to bar adefendant from seeing his son whileon supervised release).

United States v. Wright, 92 F.3d502 (7th Cir. 1996) (Simplepossession of drugs was a Grade C,not a Grade A violation, ofsupervised release).

United States v. Leaphart, 98 F.3d41 (2d Cir. 1996) (Misdemeanor didnot justify a two year term ofsupervised release).

United States v. Myers, 104 F.3d76 (5th Cir.), cert. denied, 520 U.S.1218 (1997) (Court could notimpose consecutive sentences ofsupervised release).

United States v. Ooley, 116 F.3d370 (9th Cir.), cert. denied, 524 U.S.963 (1998) (Probationer wasentitled to a hearing over awarrantless search).

*United States v. Collins, 118 F.3d1394 (9th Cir. 1997) (Illegal ex postfacto application of rule allowingadditional term of release afterrevocation).

United States v. Romeo, 122 F.3d941 (11th Cir. 1997) (Court couldnot order deportation as a conditionof supervised release).

United States v. Aimufa, 122 F.3d1376 (11th Cir. 1997) (Court lackedauthority to modify conditions ofrelease after revocation).

*United States v. Patterson, 128F.3d 1259 (8th Cir. 1997) (Failureto provide allocution at supervisedrelease revocation was plain error).

United States v. Pierce, 132 F.3d1207 (8th Cir. 1997) (Probationrevocation for a drug user did notrequire a prison sentence; treatmentis an option).

United States v. Biro, 143 F.3d1421 (11th Cir. 1998) (Deportationcould not be condition of supervisedrelease).

United States v. Bonanno, 146F.3d 502 (7th Cir. 1998) (Courtimproperly delegated discretionover drug testing to probationofficer).

United States v. Balogun, 146 F.3d141 (2d Cir. 1998) (Court could notorder supervised release tolled whiledefendant out of country).

United States v. Giraldo-Prado,150 F.3d 1328 (11th Cir. 1998)(Deportation cannot be condition ofsupervised release).

*United States v. Evans, 155 F.3d245 (3rd Cir. 1998) (Cannot makereimbursement for court-appointedcounsel a condition of supervisedrelease).

United States v. Havier, 155 F.3d1090 (9th Cir. 1998) (Motion torevoke must specifically identifycharges).

*United States v. Kingdom, 157F.3d 133 (2d Cir. 1998 (Revocationsentence should have beenconcurrent sentences based on mostserious violation).

United States v. Waters, 158 F.3d1933 (6th 1999) (Defendant hadright to allocution at revocationhearing).

United States v. Strager, 162 F.3d921 (6th Cir. 1999) (Disrespectfulcall to probation officer did notjustify revocation).

United States v. McClellan, 164F.3d 308 (6th Cir. 1999) (Courtmust explain why it is departingabove revocation guidelines).

*United States v. Cooper, 171 F.3d582 (8th Cir. 1999) (Court could notorder that defendant not leave city

for more than 24 hours as conditionof supervised release).

IneffectiveAssistance of

Counsel*Esslinger v. Davis, 44 F.3d 1515(11th Cir. 1995) (Counsel failed todetermine that the defendant was ahabitual offender before plea).

United States v. Cook, 45 F.3d 388(10th Cir. 1995) (Court infringed oncounsel’s professional judgement).

*Finch v. Vaughn, 67 F.3d 909(11th Cir. 1995) (Counsel failed tocorrect misstatements that statesentence could run concurrent withpotential federal sentence).

Montemoino v. United States, 68F.3d 416 (11th Cir. 1995) (Failureto file notice of appeal after requestby defendant).

*United States v. Hansel, 70 F.3d6 (2d Cir. 1995) (Counsel failed toraise statute of limitations).

Upshaw v. Singletary, 70 F.3d 576(11th Cir. 1995) (Claim ofineffective assistance of counsel atplea was not waived even thoughnot raised on direct appeal).

United States v. Streater, 70 F.3d1314 (D.C. 1995) (Counsel gavebad legal advice about pleadingguilty).

Martin v. United States, 81 F.3d1083 (11th Cir. 1996) (Counselfailed to file a notice of appeal whenrequested to do so by thedefendant).

Sager v. Maass, 84 F.3d 1212 (9th

Cir. 1996) (Counsel was foundineffective for not objecting toinadmissible evidence).

Glock v. Singletary, 84 F.3d 385


(11th Cir.), cert. denied, 519 U.S.1044 (1996) (Counsel’s failure todiscover and present mitigatingevidence at the sentencingproceeding required an evidentiaryhearing).

United States v. McMullen, 86F.3d 135 (8th Cir. 1996) (Counsel’sbad sentencing advice requiredremand).

*United States v. Del Muro, 87F.3d 1078 (9th Cir. 1996) (Prejudicewas presumed when trial counselwas forced to prove his ownineffectiveness at a hearing).

Baylor v. Estelle, 94 F.3d 1321 (9th

Cir.), cert. denied, 520 U.S. 1151(1997) (Counsel was ineffective forfailing to follow up on lab reportssuggesting that the defendant wasnot the rapist).

Huynh v. King, 95 F.3d 1052 (11th

Cir. 1996) (Lawyer’s failure to raisea suppression issue was grounds forremand).

United States v. Baramdyka, 95F.3d 840 (9th Cir.), cert. denied, 520U.S. 1132 (1997) (Appeal waiverdid not bar a claim of ineffectiveassistance of counsel).

*United States v. Glover, 97 F.3d1345 (10th Cir. 1996) (Ineffectivefor counsel to fail to object to thehigher methamphetamine range).

Martin v. Maxey, 98 F.3d 844 (5th

Cir. 1996) (Failure to file a motionto suppress could be grounds forineffectiveness claim).

Fern v. Gramley, 99 F.3d 255 (7th

Cir. 1996) (Prejudice could bepresumed from an attorney’s failureto file an appeal upon thedefendant’s request).

Griffin v. United States, 109 F.3d1217 (7th Cir. 1997) (Counsel’sadvice to dismiss appeal to filemotion to reduce a sentence wasprima facie evidence of ineffective

assistance of counsel).

*United States v. Kauffman, 109F.3d 186 (3rd Cir. 1997) (Failure toinvestigate insanity defense wasineffective assistance of counsel).

Williamson v. Ward, 110 F.3d1508 (10th Cir. 1997) (Failure toinvestigate the defendant’s mentalillness was ineffective assistance ofcounsel).

Williamson v. Ward, 110 F.3d1508 (10th Cir. 1997) (Failure toinvestigate the defendant’s mentalillness was ineffective assistance ofcounsel).

United States v. Gaviria, 116 F.3d1498 (D.C. Cir.), cert. denied, 522U.S. 1082 (1997) (Counsel wasineffective for giving incorrectsentencing information incontemplation of plea).

United States v. Soto, 132 F.3d 56(D.C. Cir. 1997) (Counsel wasineffective for failing to urgedownward role adjustment).

United States v. Taylor, 139 F.3d924 (D.C. Cir. 1998) (Counsel wasineffective for failing to informclient of advice of counsel defense).

*Smith v. Stewart, 140 F.3d 1263(9th Cir.), cert. denied, 525 U.S. 929(1998) (Failure to investigatemi t i g a t i n g e v i d e n c e w a sineffective).

Tejeda v. Dubois, 142 F.3d 18 (1st

Cir. 1998) (Counsel’s fear of trialjudge hindered defense).

United States v. Kliti, 156 F.3d 150(2d Cir. 1998) (Defense counselwho witnessed exculpatorystatement had conflict).

United States v. Moore, 159 F.3d1154 (9th Cir. 1999) (Irreconcilableconflict between defendant andlawyer).

United States v. Alvarez-

Tautimez, 160 F.3d 573 (9th Cir.1999) (Counsel ineffective forfailing to withdraw plea after co-defendant’s suppression motiongranted).

United States v. Granados, 168F.3d 343 (8th Cir. 1999) (Counselwas ineffective for unfamiliaritywith guidelines and failure tochallenge breach of plea agreement).

United States v. Harfst, 168 F.3d398 (10th Cir. 1999) (Failure toargue for downward role adjustmentcan be ineffective assistance ofcounsel).

Prou v. United States, 199 F.3d 37(1st Cir. 1999) (Counsel failed toattack timeliness of statutory drugenhancement).

United States v. Hall, 200 F.3d 962(6th Cir. 2000) (Despite waiver,dual representation denied effectiveassistance of counsel).

Combs v. Coyle, 205 F.3d 269 (6th

Cir.), cert. denied, 531 U.S. 1035(2000) (Counsel failed to object topost arrest statement, or toinvestigate defense expert witness).

United States v. Patterson, 215F.3d 812 (8th Cir. 2000) (Absencesof counsel during trial deniedeffective assistance).

*Carter v. Bell, 218 F.3d 581 (6th

Cir. 2000) (Failure to investigatemitigating evidence was ineffectiveassistance).

United States v. Mannino, 212F.3d 835 (3rd Cir. 2000) (Failing toraise sentencing issue deniedeffective assistance).

United States v. McCoy, 215 F.3d102 (D.C. Cir. 2000) (But forcounsel’s deficient performance,defendant would not have pledguilty).

Washington v. Hofbauer, 228 F.3d689 (6th Cir. 2000) (Counsel’s


failure to object to prosecutor’smisconduct was ineffectiveassistance).

Cossel v. Miller, 229 F.3d 649 (7th

Cir. 2000) (Counsel was ineffectivefor failing to object to suggestive in-court identification).

Lockett v. Anderson, 230 F.3d 695(5th Cir. 2000) (Inadequatemitigation investigation by defense).

Glover v. United States, 531 U.S.198 (2000) (Counsel’s failure toobject to application of guidelinesthat increased sentence wasineffective assistance).

United States v. Davis, 239 F.3d283 (2d Cir. 2001) (Counsel wasineffective by threatening towithhold services to encourageplea).

Betts v. Litscher, 241 F.3d 594 (7th

Cir. 2001) (Counsel failed to perfectappeal).

Wanatee v. Ault, 259 F.3d 700 (8th

Cir. 2001) (Counsel failed to adviseclient of affect of felony-murderrule).

Glover v. Miro, 262 F.3d 268 (4th

Cir. 2001) (Overworked attorneydid not spend enough time withclient).

Burdine v. Johnson, 262 F.3d 336(5th Cir. 2001) (Attorney sleptthrough portions of trial).

Burns v. Gammon, 260 F.3d 892(8th Cir. 2001) (Failure to raiseobjec t ion to p rosecu to r ’ smisconduct during closingargument).

Hunt v. Mitchell, 261 F.3d 575 (6th

Cir. 2001) (Defendant denied rightto confer with new counsel tenminutes before trial).

Magana v. Hofbauer, 263 F.3d 542(6 t h Cir . 2001) (Counselmisinformed defendant about effect

of plea agreement).

Greer v. Mitchell, 264 F.3d 663(6th Cir. 2001) (Failure to allegeineffectiveness claim on directappeal can be ineffective assistanceof counsel).

Dixon v. Snyder, 266 F.3d 693 (7th

Cir. 2001) (Counsel misunderstoodadmissibility of witness statements).

Our thanks to Alexander Bunin,Federal Public Defender for theDistricts of Northern New York andVermont who allows us toreproduce and distribute these casesin our newsletter.

Special thanks to Molly Corbettfor invaluable assistance.

The Back Bencher

Published by: The Federal PublicDefender’s Office for theCentral District of Illinois

Editor: Richard H. Parsons,Federal Public Defender

Central District of Illinois

Managing Editor: Mary KedziorCJA Panel Administrator

Federal Defender’s OfficeCentral District of Illinois

Your comments and suggestionsare appreciated!

Federal Public Defender’s OfficeCentral District of Illinois401 Main Street, Suite 1500Peoria, Illinois 61602Phone: 309/ 671-7891Fax: 309/ 671-7898

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