Colleagues:

Ironically, in the year that we are celebrating the 50 anniversary ofth

Gideon v. Wainwright and its promise of effective assistance of counselregardless of ability to pay, the Federal Public Defender system is facingthe greatest threat to our funding since the beginning of the program. InFebruary of this year, the Administrative Office of Courts (AO) reducedour budget by 5% nationwide. Then in March, the sequester budget cutstook effect, resulting in an additional across-the-board cut nationwide ofover 5%. We are now facing a reduction of over 10% of our yearlybudget, all of which must come out of the last half of this fiscal year. Because our yearly budget consists almost entirely of fixed expenses,salaries, and case-related expenses, the only way to absorb cuts of thismagnitude is to furlough our employees, which we have done & may needto do again, or to reduce our caseload to lower case expenses.

We are being told that in Fiscal Year 2014 we face losing as much as anadditional 14% of the funding we need to do our work. Operating withonly 76% of the funds budgeted for this year will result in nationwidelayoffs of experienced lawyers and staff this fall. As our system isdismantled, the criminal justice system will be impacted as cases slowdown and quality of representation suffers. Considering that in order tobe fully funded for Fiscal Year 2014, the budget for the entire FPD systemwould represent only .05% of total federal spending, it is difficult to seewhy this Constitutionally mandated government expenditure is beingtargeted. The total amount sought by the Defender program is only 4%of DOJ’s request for Fiscal Year 2014, which totals $27.6 billion. Notonly have we lost the “even playing field,” we have been left behind in theparking lot! Being the optimists that we are, we will bring out ourtailgating supplies and do what we can to keep the flames burning untilwe get back on the field. In the meantime, we are grateful for any voicesout there who can assist in getting our message to those who can help inthe AO and in Congress. Maybe if there are enough of us, we will soundlike Gideon’s trumpet....

-Kathryn N. Nester, Federal Public Defender

Spring/Summer 2013 Issue No. 5

DISSENTING OPINIONFederal Public Defender, District of Utah, Newsletter

Federal Public DefenderKathryn N. Nester

Panel RepresentativeG. Fred Metos

EditorsKristen R. Angelos

Wendy LewisShelly Miller

Technical AdvisorDarla P. Snodgrass

INDIVIDUAL HIGHLIGHTS:

Conditions Precedent toDetention. . . . . . . . . . . . . . . . 2

Brown Bag Schedule. . . . . . 10

Nuts and Bolts of PTRA. . . . 11

Successful Outcome in EEACase. . . . . . . . . . . . . . . . . . . 13

Case Update:10 Circuit. . . . . . . . 14th

American Towers Plaza Phone: 801-524-401046 West Broadway, Suite 110 Fax: 801-524-4060Salt Lake City, Utah 84101 E-Mail: shelly_miller@fd.org

Spring/Summer 2013 Issue No. 5Page 2

Conditions Precedent to Detention-Daphne Oberg, Assistant Federal Public Defender

“Let the jury consider their verdict,” the King said, for about the twentieth time that day. “No, no!” said the Queen. “Sentence first—verdict afterwards.”

“Stuff and nonsense!” said Alice loudly. “The idea of having the sentence first!”“Hold your tongue!” said the Queen, turning purple.

“I won’t!” said Alice.“Off with her head!” the Queen shouted at the top of her voice. Nobody moved. 1

In practice, many issues raised by the Bail ReformAct are not fully explored in detention hearings. 2

However, it is important to limit pretrial detentionand secure release whenever possible, as adefendant’s pretrial status may affect the outcomeof later sentencing proceedings. To prevent whatcan be in effect an Alice in Wonderland “sentencefirst” approach, defense counsel must ensuredetention hearings are only held if the governmentfirst establishes the case is eligible for such ahearing under the Bail Reform Act. As the Eighth Amendment provides, “Excessivebail shall not be required, nor excessive finesimposed.” In 1789, the first Congress passed the3

first bail act, Section 33 of the Judiciary Act. 4

Among other things, this act granted an absoluteright to bail in all federal criminal cases “exceptwhere the punishment may be death.” The5

Federal Bail Reform Act of 1966 stood as the firstmajor reform of the United States bail system sincethe 1789 Judiciary Act. The Federal Bail Reform6

Act of 1966 contained a presumption in favor ofreleasing non-capital defendants on their ownrecognizance, unless conditions were necessary tosecure a defendant’s appearance. Public safetywas only a consideration in capital cases and incases where the defendant had already beenconvicted and was awaiting sentencing. Courts7

could not consider danger to the community forany other defendants. 8

Then, in the 1970s, “[h]ighly publicized violentcrimes committed by defendants while releasedpretrial prompted calls for more restrictive bail

policies and led to growing dissatisfaction withlaws that did not permit judges to consider dangerto the community in setting release conditions.” 9

Thus, the Bail Reform Act of 1984 found footing. The Bail Reform Act permitted courts to considerdanger to the community in an attempt to “addressthe alarming problem of crimes committed bypersons on release.” In United States v.10

Salerno, the United States Supreme Court11

rejected facial due process and eighth amendmentchallenges to the 1984 act, upholding the act’spreventative detention language and leaving12

defendants fighting an uphill battle. Despite the difficulties inherent in challengingdetention under the Bail Reform Act, suchchallenges remain vital to successful mitigation infederal criminal cases. For one thing, a federaldefendant’s pretrial status may affect the outcomeof later sentencing proceedings. According toresearch, “offenders who are detained prior to trialare sentenced more harshly than those who arereleased and are less likely to receive downwarddepartures or departures for providing substantialassistance.” In one study, sentencing outcomes13

were analyzed in three United States DistrictCourts. Even when accounting for the presumptivesentence, the offender characteristics and otherlegally relevant case characteristics, the studyfound defendants in custody at the time ofsentencing received significantly longer sentencesthan those not in custody. In other words,14

“pretrial detention has a strong negative effect onthe likelihood of departure and a strong positiveeffect on sentence severity.”15

Spring/Summer 2013 Issue No. 5Page 3

The restrictions imposed upon a defendant who isgranted pretrial release status also affect caseoutcomes by influencing a defendant’s chances ofsuccessful compliance. Low-risk defendantssucceed best when faced with fewer pretrialinterventions and less supervision than defendantsin other risk levels. When more intensiveprogramming and intervention are applied to low-risk defendants, pretrial failure rates increase. By16

contrast, increased supervision and programs forhigh-risk defendants tend to decrease failure rates. In fact, the exact same programs that reduce risk offailure for higher-risk defendants actually increaserisk for low-risk defendants. The idea, at least in17

part, is that these programs disrupt some of thepro-social factors making a defendant low risk,such as steady employment. This researchhighlights the importance of maximizing thepossibility of release for every defendant andensuring the conditions of release fit eachdefendant’s risk level.

Defense attorneys have some work to do if theywish to decrease federal pretrial detention rates. Between 1995 and 2010, the number of federaldefendants who were detained on a pretrial basisincreased by 184 percent. In the District of Utah,18

pretrial detention rates increased in 2012 ascompared to 2011, although the rates werecertainly not the highest within the Tenth Circuit. In fiscal year 2011, 42.9 percent of Utah federalcriminal defendants (excluding immigration cases)were detained and never released, while the overallaverage rate of detention within the Tenth Circuitwas 55.2 percent in 2011. The judicial districtswithin Oklahoma maintained the lowest detentionrates. The District of New Mexico’s detention ratefell in at 65.1 percent. And the rate of pretrialdetention in Wyoming in 2011 was 68.2 percent. 19

In fiscal year 2012, the overall detention ratewithin the District of Utah increased by almost 5percent, to 47.8 percent of criminal defendants(excluding immigration cases). This rate fellbelow the average pretrial detention rate within the

Tenth Circuit—55.3 percent. However, Utah’s2012 rate was much higher than the districts withinOklahoma, which maintained the lowest detentionrates, with 32.1 percent, 38.7 percent, and 41percent in the Western, Northern, and Easterndistricts, respectively. The highest non-immigration detention rates within the TenthCircuit in 2012 were seen in New Mexico with arate of 65.8 percent, and Kansas with a rate of 63.2percent. These detention rates are compelling, in20

part, because the average length of detention infederal cases is significant. In fiscal year 2011, theaverage length of time nationally from filing offederal charges through case disposition (for101,149 defendants) was 15.7 months. 21

These detention rates are also significant fromeconomic and social policy standpoints. UnitedStates Attorney General Eric Holder recently spokeabout the impact of incarceration on our societyand the need for smarter programs that promotebest practices. Attorney General Holder estimatedthat the United States currently has more than twomillion people incarcerated—at a cost of eighty-three billion dollars in 2009 alone, “along withhuman and moral costs that are impossible tocalculate.” 22

For these reasons and many more, it is vitallyimportant to limit pretrial detention and securerelease for defendants whenever possible. Onemechanism for limiting pretrial detention is torequire the government, in every case, to establishthat the case is eligible for a detention hearing atthe time of the defendant’s initial appearance. Toooften, in local federal practice, detention hearingsare held as a matter of course. Courts andpractitioners commonly act as if every federaldefendant has the potential to be detained pursuantto the Bail Reform Act. But this is simply not thecase. The act explicitly limits the cases in whichthe defendants are eligible for pretrial detention. Before the court can even hold a detention hearing,the government must establish the existence of oneof the conditions precedent to such a hearing, aslisted in 18 U.S.C. § 3142(f). 23

Spring/Summer 2013 Issue No. 5Page 4

The Bail Reform Act of 1984 directs the court toorder pretrial release of a defendant on personalrecognizance or upon the execution of anunsecured bond, “unless the judicial officerdetermines that such release will not reasonablyassure the appearance of the person as required orwill endanger the safety of any other person or thecommunity.” If the court determines an24

unsecured bond is not sufficient, it must thenconsider attaching a number of conditions to therelease order. The court shall order detention25

only, “if, after a hearing pursuant to [§ 3142(f)],the judicial officer finds no condition orcombination of conditions will reasonably assurethe appearance of the person as required and thesafety of any other person and the community.” 26

Section 3142(e) speaks of detaining a person ondangerousness grounds. However, this detentioncan only be ordered after a hearing in accordancewith § 3142(f)—a finding of dangerousnessresulting from a detention hearing is limited to thegrounds listed in subsection (f). “In other words,27

§ 3142(f) does not authorize a detention hearingwhenever the government thinks detention wouldbe desirable, but rather limits such hearings” to theinstances specified in this subsection. 28

This interpretation of the Bail Reform Act issupported by numerous courts. One of the core29

cases to directly address the issue of conditionsprecedent to detention is United States v. Ploof. 30

In Ploof, the First Circuit reviewed a districtcourt’s decision to detain a defendant on the basisof danger to the community. The district courtlargely based its detention decision upon thegovernment’s proof that the defendant had recentlyplotted, at length, first to injure and then to kill hisgirlfriend’s husband. The defendant argued the31

district court erred in making a dangerousnessdetermination where his charges, which primarilyrelated to financial crimes, did not fit any of thecircumstances set forth in § 3142(f). The FirstCircuit agreed:

[T]he structure of the statue and itslegislative history make it clear thatCongress did not intend to

authorize preventative detentionunless the judicial officer first findsthat one of the § 3142(f) conditionsfor holding a detention hearingexists. To conclude otherwisewould be to ignore the statement inthe legislative history that the“circumstances for invoking adetention hearing in effect serve tolimit the types of cases in whichdetention may be ordered prior totrial,” see S. Rep. No. 225, 98thCong., 2d Sess. 20, reprinted in1984 U.S. Code & Admin. News3203.32

The Third Circuit preceded the First Circuit inreaching this conclusion. In United States v.Himler, the Third Circuit reversed a district33

court’s detention determination for similar reasons. The district court had ordered pretrial detention ofthe defendant based upon a perceived risk ofrecidivism in crimes involving the use offraudulent identification. The Third Circuit34

concluded this approach was erroneous becausedetention may only be ordered after a hearingpursuant to § 3142(f). Only offenses specified in35

§ 3142(f) support a motion for detention, and theBail Reform Act does not authorize “pretrialdetention upon proof of danger to the communityother than from those offenses which will supporta motion for detention.” Similar to the First36

Circuit in Ploof, the Himler court relied uponlegislative history to reach this conclusion. TheThird Circuit ultimately concluded that “the statutedoes not authorize detention of the defendant basedon danger to the community from the likelihoodthat he will if released commit another offenseinvolving false identification. Any danger whichhe may present to the community may beconsidered only in setting conditions of release.” 37

While it does not appear the Tenth Circuit hasdirectly addressed the issue of conditions precedentto detention, the court brushed up against thequestion in United States v. Rogers. In Rogers,38

the defendant argued the district court erred in

Spring/Summer 2013 Issue No. 5Page 5

holding a detention hearing because none of theconditions precedent set out in § 3142(f) werepresent in his case. In its discussion of this39

argument, the Tenth Circuit seemed to implicitlyaccept this reading of the Bail Reform Act. The40

court analyzed the defendant’s claims under thestructure he presented, tacitly assuming the BailReform Act limits pretrial detention tocircumstances specified in subsection (f). Specifically, the court conducted a crime-of-violence inquiry to determine whether the districtcourt erred in concluding the offense of illegallypossessing a firearm was eligible for a hearingunder the act. Of course, the Tenth Circuit had41

no reason to conduct this crime-of-violenceanalysis at all unless it impliedly adopted theposition that subsection (f) sets out preconditionsfor detention.

To be eligible for pretrial detention under the bailact, the case must meet one of the following seventests, as specified in 18 U.S.C. § 3142(f). Underthe first five conditions below, the governmentmust make a motion for detention before the courtcan conduct a detention hearing. A hearing under42

the final two provisions can be held pursuant to amotion by the government or sua sponte by thecourt.

1. The defendant is charged with either acrime of violence, a violation of § 1591(sex trafficking of children by force, fraud,or coercion), or an offense listed in 18U.S.C. § 2332b(g)(5)(B) for which amaximum term of imprisonment of tenyears or more is prescribed. (Section2332b(g)(5)(B) defines federal crimes ofterrorism transcending nationalboundaries.)

2. The maximum penalty for the crimecharged is life imprisonment or death.

3. The defendant is charged with a drugoffense carrying a maximum penalty of tenyears or more.

4. The defendant is charged with any felonyand has two other convictions within thecategories of serious crimes listed in (1)through (3) above.

5. The defendant is charged with a felony thatinvolves a minor victim; or possession oruse of a firearm or a destructive device orany other dangerous weapon; or a violationof the federal statute requiring registrationby a sex offender.

6. There is a serious risk that defendant willflee. (It is not enough for purposes of thissubsection that the government establish arisk of non-appearance. This subsectionrequires a serious risk of flight.)

7. There is a serious risk that defendant willobstruct justice, or threaten, injure, orintimidate a prospective witness or juror. 43

If the court or government assert the case iseligible for a detention hearing on the groundsspecified in (f)(2), the court—in determiningwhether to hold the hearing—must sometimesmake a preliminary determination of an issue itwill decide on the full merits at the later detentionhearing. The bail statute has no provision fortemporary detention to allow the government tomake an eligibility showing. The governmentmust show a case is appropriate for detention at thetime the government first makes its motion (at orbefore a defendant’s initial appearance). In allcases, the government must prove one or more ofthe grounds listed in § 3142(f) as a prerequisite todetention.

The eligibility factor engendering the mostlitigation is the question of whether a chargedoffense constitutes a “crime of violence” forpurposes of the Bail Reform Act. For bailpurposes, the term “crime of violence” includesany offense that has as an element “the use,attempted use, or threatened use of physicalforce,” any other felony that “involves a44

substantial risk that physical force against the

Spring/Summer 2013 Issue No. 5Page 6

1.LEWIS CAROLL, ALICE IN WONDERLAND 90–91 (Candlewick Press 2009) (1865).

2.Bail Reform Act of 1984, 18 U.S.C. §§ 3141–3156.

3.U.S. Const. Amend. VIII.

4.TIMOTHY R. SCHNACKE ET AL., PRETRIAL JUSTICE INSTITUTE, THE HISTORY OF BAIL AND

PRETRIAL RELEASE 5 (Sept. 2010), available at http://www.pretrial.org/1964Present/PJI-Historyof Bail Revised Feb 2011.pdf

person or property of another may be used in thecourse of committing the offense,” and any 45

felony involving sexual abuse or the sexualexploitation of or other abuse of children. As46

with other statutory crime-of-violence inquiries,the question of whether a charged offense qualifiesas a crime of violence is generally considered on acategorical basis—with a focus on the intrinsicnature of the offense rather than the factualcircumstances of a particular case. Predictably,47

therefore, the bail definition of “crime of violence”is often litigated and ever-evolving.

If the government successfully meets its burden ofestablishing the existence of an enumeratedcondition precedent to detention, the court must48

examine the factors set forth in 18 U.S.C. § 3142(g) to determine whether any conditions in § 3142(c) will reasonably assure the safety of thecommunity and the defendant’s appearance at trial. The judge may find no condition or combination ofconditions will assure community safety only uponclear and convincing evidence. However, the49

government need only prove that no conditions ofrelease will reasonably assure the appearance ofthe defendant by preponderance of the evidence. 50

In addition, the government need only prove risk offlight or danger to others—not both. 51

The lesson to be learned from this statutory schemeis that in many cases, release is required. Absenta finding that a case fits the circumstances listed in§ 3142(f) and, thus, is eligible for a detentionhearing, the court must release the defendant on apretrial basis either with or without conditions. 52

Contrary to common local practice, no case iseligible for a detention hearing simply because thegovernment shows a defendant poses a general riskto other people or to the community. Congress didnot authorize preventative detention on this basisalone. Where a case does not involve anenumerated offense or the serious risk of flight orserious risk of obstruction of justice, the court hasno statutory basis to hold a detention hearing—andthe defendant must be released pursuant to §§ 3142(b)–(c).53

Pretrial detention has such a significant negativeeffect on the likelihood of downward departuresand such a strong positive effect on sentenceseverity, release must be sought for all defendants. And release is required for defendants with casesineligible for detention under § 3142(f). Holdingthe government to its burden is even moreimportant where alternatives to pretrial detentionare dwindling. Due to budgetary constraints, theUnited States Probation Office in the District ofUtah recently terminated all funding for pretrialdefendants in community corrections facilities. This leaves local courts no middle-ground option,facing the stark choice of imprisonment or release. Failing to secure a defendant’s release in caseswhere the government has failed to meet itsthreshold burden of establishing its right to adetention hearing is akin to willingly submitting tothe Queen’s approach of, “Sentence first—verdictafterwards,” in the trial to determine who stole thetarts in Alice in Wonderland. Such “stuff andnonsense” must be avoided.

Spring/Summer 2013 Issue No. 5Page 7

5.Id. at 5 & n.20.

6.Id. at 12.

7.Id.

8.Id. at 17.

9.PRETRIAL SERVS. RES. CTR. OF THE BUREAU OF JUST. ASSISTANCE, AM. U., THE SUPERVISED

PRETRIAL RELEASE PRIMER 5 (Aug. 1995).

10.S. Rep. 98–225, at 3 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3185.

11.United States v. Salerno, 481 U.S. 739 (1987).

12.Id. at 752.

13.Cassia Spohn, The Effects of the Offender’s Race, Ethnicity, and Sex on Federal SentencingOutcomes in the Guidelines Era, 76 LAW & CONTEMP. PROBS. 74, 80–81 (2013) (internalcitations omitted).

14.Chandra D. LaFrentz & Cassia Spohn, Who Is Punished More Harshly in Federal Courts? The Interaction of Race/Ethnicity, Gender, Age, and Employment Status in the Sentencing ofDrug Offenders, 8 JUST. RES. & POL’Y 25 (2006).

15.Spohn, supra note 14, at 81.

16.Christopher Lowenkamp & Edward J. Latessa, Understanding the Risk Principle: How andWhy Correctional Interventions Can Harm Low-Risk Offenders, TOPICS IN COMMUNITY

CORRECTIONS 5 (2004).

17.Id. at 6.

18.THOMAS H. COHEN, U.S. DEP’T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, BUREAU OF

JUSTICE STATISTICS, PRETRIAL DETENTION AND MISCONDUCT IN FEDERAL DISTRICT COURTS,1995–2010, at 3, (Feb. 2013), available at http://www.bjs.gov/content/pub/pdf/pdmfdc9510.pdf.

19.HONORABLE THOMAS F. HOGAN, JUDICIAL BUSINESS OF THE UNITED STATES COURTS, 2011ANNUAL REPORT OF THE DIRECTOR [hereinafter 2011 ANNUAL REPORT], Table H-14A: U.S.District Courts—Pretrial Services Release and Detention, Excluding Immigration Cases for the12-Month Period Ending September 30, 2011, available athttp://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/appendices/H14ASep11.pdf.

20.Honorable Thomas F. Hogan, Judicial Business of the United States Courts, 2012 AnnualReport of the Director, Table H-14A: U.S. District Courts—Pretrial Services Release andDetention, Excluding Immigration Cases for the 12-Month Period Ending September 30, 2012, available at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2012/appendices/H14ASep12.pdf.

Spring/Summer 2013 Issue No. 5Page 8

21.2011 ANNUAL REPORT, supra note 20, Table D-6: U.S. District Courts—Median TimeIntervals From Filing to Disposition for Criminal Defendants Disposed of, by District During the12-Month Period Ending September 30, 2011, available athttp://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/appendices/D06Sep11.pdf.

22.Eric Holder, United States Attorney General, Remarks at the 15th Annual National ActionNetwork Convention (Apr. 4, 2013) (transcript available athttp://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130404.html).

23.Douglas J. Klein, Note, The Pretrial Detention “Crisis”: The Causes and Cure, 52 J. URBAN

& CONTEMP. L. 281, 284 (1997).

24.18 U.S.C. § 3142(b).

25.§ 3142(c).

26.§ 3142(f).

27.THOMAS H. COHEN, U.S. DEP’T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, BUREAU OF

JUSTICE STATISTICS, PRETRIAL DETENTION AND MISCONDUCT IN FEDERAL DISTRICT COURTS,1995–2010, at 2 (Feb. 2013).

28.United States v. Ploof, 851 F.2d 7, 10 (1st Cir. 1988).

29.See Ploof, 851 F.2d at 11(“Congress did not intend to authorize preventive detention unlessthe judicial officer first finds that one of the § 3142(f) conditions for holding a detention hearingexists.”); see also United States v. Twine, 344 F.3d 987 (9th Cir. 2003), reh’g en banc denied,362 F.3d 1163 (9th Cir. 2004); United States v. Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999); UnitedStates v. Byrd, 969 F.2d 106 (5th Cir. 1992); United States v. Friedman, 837 F.2d 48, 49 (2d Cir.1988); United States v. Himler, 797 F.2d 156 (3d Cir. 1986).

30.851 F.2d 7, 11 (1st Cir. 1988).

31.Id. at 8.

32.Id. at 10–11.

33.797 F.2d 156 (3d Cir. 1986).

34.Id. at 157.

35.Id. at 160.

36.Id.

37.Id.

38.371 F.3d 1225 (10th Cir. 2004).

39.Id. at 1227.

Spring/Summer 2013 Issue No. 5Page 9

40.See id. at 1227 & n.2.

41.At one time, whether possession of a firearm qualified as a crime of violence for purposes ofthe Bail Reform Act was a hotly litigated issue. However, in 2006, Congress amended the BailReform Act to include possession of a firearm as a listed offense under subsection (f). In otherwords, no question remains that the offense of illegal possession of a firearm qualifies for pretrialdetention.

42.Although some districts require the government to file a written detention motion before theinitial appearance, in most districts, the government makes an oral motion for detention. TheTenth Circuit has specifically held that the Bail Reform Act does not require the government tomake its detention motion in writing. United States v. Montalvo-Murillo, 876 F.2d 826 (10thCir. 1989), rev’d on other grounds by 495 U.S. 711 (1990).

43.18 U.S.C. § 3142(f).

44.18 U.S.C. § 3156(a)(4)(A).

45.§ 3156(a)(4)(B).

46.§ 3156(a)(4)(C).

47.United States v. Singleton, 182 F.3d 7, 10–12 (D.C. Cir. 1999); Dalton v. Ashcroft, 257 F.3d200, 204 (2d Cir. 2001). For instance, before Congress amended the Bail Reform Act in 2006 toinclude unlawful possession of a firearm as a condition precedent to detention, courts were atodds regarding whether such a charge categorically qualified as a crime of violence for bailpurposes. Compare United States v. Bowers, 432 F.3d 518, 524 (3d Cir. 2005) (holding felon-in-possession offense is not a crime of violence for bail purposes), with, United States v. Dillard,214 F.3d 88, 103 (2d Cir. 2000) (holding the offense is a crime of violence as it involves asubstantial risk of violence).

48.See, e.g., United States v. Goba, 240 F. Supp. 2d 242, 244 (W.D.N.Y. 2003) (notinggovernment’s burden to prove condition precedent to detention by preponderance of theevidence).

49.§ 3142(f).

50.See, e.g., United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001).

51.Id. at 436–37. Obviously, the government may invoke the rebuttable presumption that noconditions of release will ensure the safety of the community (1) when a defendant is chargedwith a crime of violence, an offense punishable by life imprisonment or death, or a federal drugfelony with a maximum sentence of ten years or more, and (2) the defendant has previously beenconvicted of one of those same types of crimes while on pretrial release, and (3) not more thanfive years have passed since the previous conviction. 18 U.S.C. § 3142(e). Likewise, thegovernment may invoke a rebuttable presumption that no release conditions will ensureappearance and safety if the court finds probable cause to believe the defendant has committed acurrently charged federal drug felony with a maximum sentence of ten years or more, a firearmoffense in violation of 18 U.S.C. § 924(c), conspiracy to kill, kidnap, or torture people in a

Spring/Summer 2013 Issue No. 5Page 10

foreign country in violation of 18 U.S.C. § 956(a), or acts of terrorism transcending nationalboundaries in violation of 18 U.S.C. § 2332(b). Id. When the defendant is charged by grand jury indictment, the indictment alone can establish probable cause to invoke the presumption. See,e.g., United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (indictment alone is sufficientto trigger presumption); United States v. Hilario-Reyes, 218 F. Supp. 2d 185, 187 (D.P.R. 2002)(same). Even in “presumption cases,” the burden of persuasion remains with the government. The defendant bears a “limited burden of production” to rebut the presumption. United States v.Mercedes, 254 F.3d 433, 436 (2d Cir. 2001). The defendant’s burden of production is not aheavy one. Any evidence “favorable to a defendant that comes within a category listed in § 3142(g) can suffice.” United States v. Hammond, 204 F. Supp. 2d 1157, 1162 (E.D. Wis.2002) (quotations and citations omitted).

52.See § 3142(c).

53.Singleton, 182 F.3d at 9.

______________________________________________________________________________

2013 FPD / CJA BROWN BAG CLE SCHEDULE

Wednesday, June 1212:15 p.m. to 1:15 p.m.*Federal Court, Room 205

Wednesday, August 1412:15 p.m. to 1:15 p.m.Federal Court, Room 140

Wednesday, October 1612:15 p.m. to 1:15 p.m.Federal Court, Room 140

Wednesday, December 1812:15 p.m. to 1:15 p.m.Federal Court, Room 140

*Please note room change

Spring/Summer 2013 Issue No. 5Page 11

THE NUTS AND BOLTS OF THE PRETRIAL SERVICES RISK ASSESSMENT TOOL

-Adam Bridge, Assistant Federal Public Defender

Many of us are seeing some new information in our clients’ pretrial services reports. It comes fromthe Pretrial Services Risk Assessment (PTRA) and looks like this:

Risk Category N % Risk Score FTA NCA FTA/NCA TV FTA/NCA/TVCategory 1 52,677 29 0- 1% 1% 2% 1% 3%Category 2 52,653 29 5-6 3% 3% 5% 4% 9%Category 3 49,920 27 7- 4% 5% 10% 9% 18%Category 4 21,779 12 9-10 6% 7% 15% 15% 28%Category 5 4,710 3 11+ 6% 10% 20% 19% 35%

PTRA is an actuarial risk and needs assessmenttool developed from data collected on federaldefendants granted pretrial release betweenOctober 1, 2000 and September 30, 2007. The1

tool is designed to identify and categorizedefendants by risk of failure to appear (FTA), newcriminal arrest (NCA) and technical violationsleading to revocation (TV). The chart breaks2

down these risks by violation and risk category. Presently, PTRA consists of 11 scored and 9 un-scored elements. The scored elements are priorfelony convictions, pending felonies ormisdemeanors, prior failures to appear, currentoffense type, offense class, age, highest level ofeducation, employment status, type of residence,existence of a drug problem and citizenship status. The elements are given points (0, 1, or 2) and areadded together to produce a total risk score, whichcorrelates to a risk category. The unscoredelements have been identified as potential riskfactors that might be included in future revisions tothe instrument. The unscored elements includecurrent alcohol abuse, travel history and ties toforeign countries.3

One of the explicit goals of PTRA is to reduceunnecessary pretrial detention. Ideally, if judgeshave better, more objective information about risk,they will make sounder decisions about pretrialcustody. Of course, risk assessment tools are goodat identifying groups of defendants who present

certain levels of risk, but they are not completelyreliable on an individual level. PTRA was also4

designed to help pretrial service officers allocateresources more efficiently based on a defendant’sspecific criminogenic needs, as opposed tounstructured subjective judgment. PTRA is being5

used in all 93 districts and the latest validationresearch indicates increased recommendations bypretrial service officers in favor of pretrial release.6

PTRA has received a mixed reception in theDistrict of Utah. Some judges are keen on theinstrument and they have cited the above-referenced statistics as a factor in their pretrialrelease decisions. Other judges are more skeptical. It has been reported that some judges prefer not tosee PTRA statistics in their pretrial servicesreports. The District of Utah’s Evidence-BasedPractice Standing Committee is studying PTRAand working on a plan to educate stakeholdersabout its use.

If anyone would like a copy of the tool, pleasecontact our office at 801-524-4010 or email AdamBridge at adam_bridge@fd.org.

Spring/Summer 2013 Issue No. 5Page 12

1. Timothy P. Cadigan, et al., The Re-validation of the Federal Pretrial Services Risk Assessment(PTRA), FED. PROBATION, September 2012, at 6.

2. Id.

3. Id. at 7.

4. Id. at 2.

5. Patricia M. Harris, et al., What Community Supervision Officers Need to Know about ActuarialRisk Assessment and Clinical Judgment, FED. PROBATION, September 2006, at 3.

6. Cadigan, supra at 5.

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"My Little Red Rules Book" is now available on iTunes for $6.99!

The application's interface is sleek, easy to use,and contains everything in the print version,

with one fantastic addition:

All case annotations in the app are hyperlinked to Google Scholar.

This means that a user is only a few clicks away from reading full cases online, without the need

for a Westlaw or Lexis password.

Unfortunately, the FPD Office will no longer be able to purchase hard copies for panel members.

Spring/Summer 2013 Issue No. 5Page 13

OFFICE OF DEFENDER SERVICES 2013 TRAINING EVENT

Multi-Track Criminal Defense SeminarAugust 8 - 10, 2013Buffalo, New York

PLEASE VISIT www.fd.org FORREGISTRATION INFORMATION

Sequestration has had a severe impact on theDefender Services budget. The impact includes areduction in the training budget of approximately50% for the 2013 fiscal year.

All remaining FY2013 events have been cancelled.

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MOOT / MOCKTRIAL SESSIONS

The FPD Office, hopes to be able to assist anyonewho needs or wants to practice or run through anylegal presentation. We can pull together amoot/mock team to meet your needs. We are alsowilling and able to arrange sessions outside officehours with advance notice.

Please contact co-chairs:Benji McMurray or Daphne Oberg

at 801-524-4010._____________________________________

SUCCESSFUL OUTCOMEIN UTAH’S FIRST

FEDERAL PROSECUTIONUNDER THE ECONOMIC

ESPIONAGE ACT!

In United States v. Mohapatra, Utah’s first federalprosecution under the Economic Espionage Act, 18U.S.C. § 1831, for alleged trade secret theft ofseveral chemical recipes, Parker Douglas andKathy Nester successfully argued for a sentence ofthree days (time served) and restitution of$3,435.25. The government filed a 26-countSuperseding Indictment in the case, chargingseveral counts of Trade Secret Theft, Wire Fraud,and Unlawful Access to a Protected Computer. The defendant pleaded guilty to one count ofUnlawful Access to a Protected Computer inviolation of 18 U.S.C. § 1040(a)(4), under a pleaagreement which provided for dismissal of theother counts. At sentencing, the governmentsought to prove the trade secret theft value asrelevant conduct under U.S.S.G. 2B1.1, arguingthat the total loss should be $227,985.91, yieldinga sentencing range of 70-87 months. After a five-day evidentiary hearing, which included chemicalexpert testimony as well as accounting testimonyfrom the victim corporation, the district courtfound that no trade secrets were at issue. Accordingly, the relevant loss amount value wasmerely the time the company took for its initialinvestigation of the defendant’s work computer.

Spring/Summer 2013 Issue No. 5Page 14

10 Circuit Court Case Updateth

-Bretta Pirie, Research and Writer

United States v. Ray, 704 F.3d 1307 (10th Cir.Nov. 6, 2012). Enhancement for distribution permissible underU.S.S.G. § 2G2.2(b)(3)(F) without proof that childpornography was actually distributed or thatdefendant had intent to distribute in cases wheredefendant using a peer-to-peer file-sharingprogram that puts images into shared folders. Neither does the defendant need to know about the“distribution capability of the program he is usingto view child pornography.” Sentencingenhancements, unlike elements, do not necessarilyhave mens rea requirements: “We have repeatedlyheld that when the plain language of a guideline, incontrast to a criminal statute, does not include amens rea element, we should not interpret theguideline as containing such an element.” Slavishconformity to the Guidelines is improper;deference is not, and without deference toGuidelines, disparities and some mandatory fix forthem would result. Deference to Guidelines doesnot conflict with parsimony principle.

United States v. Woodard, 699 F.3d 1188 (10thCir. Nov. 9, 2012)Reverses conviction following jury trial forviolation of 6th Amendment Confrontation rights. To establish that defendant knowingly transportedmarijuana in truck he was driving, governmentrelied heavily on testimony of inspector whoinspected defendant’s truck at border that therewas a strong odor of marijuana coming fromtractor trailer. District court refused to allowcross-examination on prior judicial finding thatofficer not credible in a different case when hetestified at suppression hearing that his actionsmotivated by a similar strong smell of marijuana. Defendant properly framed issue as constitutionalone, not as merely an evidentiary issue; thatevidentiary issues underlie a decision to precludearea of cross-examination does not convertquestion from constitutional one to evidentiaryone. Cross-examination of officer on prior

credibility determination would have been properunder Fed. R. Evid. 608(b); Court adopts list of 7factors developed by Second Circuit to determineif evidence admissible under 608(b). Evidence notproperly excluded under 403. Restriction violatedConfrontation rights to defendant’s prejudice: thejury might have regarded witness’s credibilitysignificantly differently with cross-examination. Error not harmless beyond reasonable doubt.

United States v. Ahrensfield, 698 F.3d 1310 (10thCir. Nov. 14, 2012).Defendant acquitted of false statements charge atfirst trial, but jury unable to return verdict onobstruction charge. At second trial, governmentintroduced evidence underlying false statementscharge. Court rejects defendant’s argument thatdouble jeopardy clause protects finality ofjudgments and that aspect of clause violated here. So long as government does not need to proveevidence of prior crime beyond a reasonable doubtit may be admitted without violating the collateralestoppel component of the double jeopardy clause. Comparing elements of false statement andobstruction of justice, the Court determines thatthey share no elements and so all is well. Districtjudge did not err in refusing to instruct jury thatdefendant had been acquitted on false statementscharge once evidence regarding false statementsadmitted.

United States v. Santistevan, 701 F.3d 1289 (10thCir. Dec.17, 2012). Girlfriend of incarcerated defendant called officerand indicated that defendant wanted to talk toofficer. While officer driving to jail the nextmorning, defendant’s lawyer called to indicate thatdefendant did not want to talk to counsel and thathe had a letter to that effect. Upon arriving at jail,agent asked defendant if he had a letter anddefendant handed it to agent without comment. Bydoing so, defendant adopted letter’s contents andunambiguously invoked right to counsel. Dissent

Spring/Summer 2013 Issue No. 5Page 15

says handing letter without comment createdambiguity and officer was entitled to clarify withadditional questioning.

United States v. Jones, 701 F.3d 1300 (10th Cir.Dec. 18, 2012).Missouri officers unwittingly crossed into Kansasand so were without authority under circumstancesunder state law, but a violation of state law is notdeterminative of Fourth Amendmentreasonableness, although it may be relevant “whenthe constitutional test requires an examination ofthe relevant state law or interests.” Initialencounter between defendant and policeconsensual despite opening with accusatorystatement that officer was there for defendant’s potplants. It was but one statement, not part of series,and spoken in ordinary tone and overall context notcoercive. Court acknowledges that 3 officers there,but suggests that the prong of multi-factor testreferring to “threatening presence of severalofficers” means the officers have to do somethingthreatening; the presence of multiple officers is notthreatening all by itself.

United States v. Washington, 706 F.3d 1215 (10thCir. Dec. 28, 2012).Juvenile conviction that was “dismissed” byOklahoma juvenile court was not therebyexpunged or set aside for purposes of ACCA andthus could still serve as predicate. Examining theOklahoma statutory scheme, the Court concludesthat this species of dismissal is merely “a way fora juvenile court to close a proceeding afterappropriate actions have been taken.” A dismissedcase is only “considered never to have occurred ifthe juvenile records are sealed,” and even thensuch records may be used for sentencing purposes.

United States v. De La Cruz, 703 F.3d 1193 (10thCir. Jan. 9, 2013). Officers stopped car because they believed drivermight be someone they were seeking; passengerfled when car stopped. After retrieving passengerand discovering he was in the U.S. illegally, policediscovered that driver was not who they thought,

and thus any reason to detain driver had vanished.Flight of a suspect can create reasonable suspicion,but flight of a passenger does not create reasonablesuspicion that driver engaged in illegal activity. (Under other circumstances it might: e.g., if stopnear U.S.-Mexican border on road often used byillegal immigrants and multiple people fled car.) Dropping passenger off at work is an ordinarysocial interaction, and not furthering continuedpresence in United States, so suspicion oftransporting an illegal alien cannot justify thedetention either. Passenger’s presence illegal, butthe person detained must be suspected of illegalactivity; it is not enough that illegal activity isafoot in the vicinity. Finally, evidence of identitymay be suppressed when what is at issue is not thecourt’s jurisdiction but ordinary questions ofadmissibility following constitutional violations. There is a dissent.

United States v. Graham, 704 F.3d 1275 (10thCir. Jan. 15, 2013).Freeman v. United States, 131 S.Ct. 2685 (2011),produced a 4-1-4 split on the question of whethera district court may reduce a previously-imposedsentence based upon a post-sentencing reduction inthe guidelines range, when the underlying sentencewas based on a 11(c)(1)(C) plea agreement. TheTenth Circuit joins all the others to haveconsidered the issue in determining that theconcurrence (which commanded only the vote ofits author) is the narrowest of the three opinions inFreeman and so the holding of that case. Thus, ifan 11(c)(1)(C) plea agreement is based on aGuideline range later amended, the defendant canreceive the benefit of the amendment. If the11(c)(1)(C) is not based on a Guideline range, thesubsequent lowering of a range does not inure todefendant’s benefit.

United States v. Rutland, 705 F.3d 1238 (10thCir. Jan. 22, 2013).Court need not decide whether to join the majorityof circuits holding that a Hobbs Act prosecutionfor robbing an individual rather than a business,requires “a more substantial showing that therobbery affected interstate commerce.” Instead,

Spring/Summer 2013 Issue No. 5Page 16

Court concludes that criminal organizations—andeven solo drug dealers—are businesses for HobbsAct purposes. To satisfy jurisdictional element,prosecution must show that drug operationengaged in interstate commerce and that robberydepleted assets of operation.

United States v. Caiba-Antele, 706 F.3d 1162(10th Cir. Jan. 23, 2013).District court varied upwards based on droppedstate charges from several years before. Districtcourt relied on officers’ testimony describing theirinterviews with child victims, testimony ofprosecutor in earlier case, and fact that children’sstories were consistent. Upward variance based onthis evidence had sufficient indicia of reliability sothat relying upon it did not constitute a due processviolation. Distinguishes case in which probationofficer’s account of phone conversation withvictim was found not to be sufficiently reliable. Aface-to-face interview increases officers’ ability toassess credibility. Corroboration of other childrenand fact that none of the children changed theirstories or recanted adds to reliability.

United States v. McGlothin, 705 F.3d 1254 (10thCir. Jan. 24, 2013).United States v. Morn, 503 Fed.3d 1135 (10th Cir.2007) “makes clear that when a defendant placeshis intent at issue [in a felon-in-possessionprosecution], the defendant’s prior acts of weaponpossession are relevant for the proper purpose ofdemonstrating the charged act of firearmpossession was knowingly undertaken. The panelin McGlothin expresses some reservations aboutbreadth of rule, opining in footnote that if it wereup to them they would adopt recent 7th Circuitbalancing test that considers whether priorpossession was recent and involved the same gun. What with the prior precedent, though, the broader,less nuanced Moran rule controls.

United States v. Smith, 705 F.3d 1268 (10th Cir.Jan. 25, 2013). At trial, jury convicted defendant of one count andcould not reach verdict on remaining four counts

and so judge declared mistrial. Governmentproceeded to violate Speedy Trial Act with regardto remaining counts and district court dismissedthe indictment on those counts without prejudice. Court rejects argument that Fifth Amendmentrights chilled because he could not adequatelydefend himself at sentencing without sacrificingFifth Amendment rights with regard to retrial onother counts. The species of prejudice that mattersfor the speedy trial analysis is the prejudice causedby delay and here it is dismissal without prejudicethat causes defendant’s difficulties. Moreover,defendant’s Fifth Amendment rights not impairedbecause he can still choose not to testify atsentencing hearing. It is really defendant’s right toallocute that was affected and this right is not aconstitutional one; chilling allocution right doesnot require remedy of dismissal with prejudice.

United States v. Ruby, 706 F.3d 1221 (10th Cir.Jan. 29, 2013).Federal Rule of Criminal Procedure Rule 32.1codifies due process guarantees at the guilt phaseof revocation hearings. Once the guiltdetermination has been made, however, theordinary sentencing rules apply, so that Rule 32,rather than 32.1, controls the sentencing phase. Ajudge may accordingly rely on hearsay indetermining the sentence to impose uponrevocation, so long as that hearsay bears someminimal indicia of reliability. Court offersexamples from prior cases in which hearsay did ordid not meet this low threshold. (“Corroboratingevidence is often key to determining whether astatement is sufficiently reliable.”).

United States v. Rich, 708 F.3d 1135 (10th Cir.Feb. 11, 2013). Court rejects argument that ACCA violates right tosubstantive due process because it places no limiton age of predicate convictions. Here, 20-year oldjuvenile adjudication used as predicate. Substantive due process jurisprudence provides alow bar: a sentencing scheme need be onlyrational. This one is good enough under thatforgiving standard. Nor does the use of juvenileconvictions fall afoul of the Supreme Court’s

Spring/Summer 2013 Issue No. 5Page 17

recent work on death and LWOP sentences forjuveniles, as these sentences are extraordinary. The Court also notes the difference betweensentence imposed for crime committed whileyoung and later sentence enhanced for crimecommitted while young.

United States v. Battle, 706 F.3d 1313 (10th Cir.Feb. 12, 2013). A resentencing after a change to a guideline under§ 3582(c)(2) is not a plenary resentencing. Portions of the guidelines calculation unaffected bythe change may not be recalculated; court can,however, look to previous factfinding and portionsof PSR adopted at original sentencing to makemore specific findings as to drug quantity (whenresentencing on change in guideline covering drugquantity). Court does not reach question ofwhether new fact-finding is permitted.

United States v. Addison, 708 F.3d 1181 (10thCir. Feb. 26, 2013).Defendant’s right to a public trial is not absolute,and a partial closure is permissible if trial judgegives a substantial reason for it. Concernsregarding witness intimidation are adequatesubstantial reasons to justify partial closure.Exclusion of person for entire trial can beappropriate if more than one witness intimidated.

In re Grand Jury Proceedings 709 F.3d 1027(10th Cir. March 1, 2013).As a general rule the denial of a motion to quash asubpoena duces tecum is not an appealable finalorder. In order to appeal such an order, “aprotesting witness” must refuse to obey and beheld in contempt, thus putting “the objectingperson’s sincerity to the test.” The alternative is toseriously undermine the need for expeditiouscriminal proceedings. There is an exception whensomeone other than the subpoenaed witness claimsthe privilege.

United States v. Rosalez, Hernandez, 711 F.3d1194 (March 29, 2013).Defendant recruited principals to beat up anotherprison inmate, but beating went a bit far andinmate died. Jury instruction for aiding andabetting in second-degree murder did not requirejury finding that defendant intended the resultachieved by principals. Defendant liable formurder as coconspirator b/c purpose of conspiracywas to beat victim so badly he would have movedto another jail, so his death was reasonablyforeseeable; moreover, conspiracy did not end untilbeating ended. Court also rejects defendant’samendment and variance arguments. Aiding andabetting and co-conspirator liability are theories ofliability, and indictments are not required to pleadtheories of liability.

United States v. Benoit, 713 F.3d 1 (10th Cir.April 2, 2013). Possession of child pornography is a lesserincluded offense of receipt of child pornography. There is no evidence of congressional intent topunish the lesser included offense separately, andso multiplicitous punishments for receipt andpossession are not permissible. A defendant maybe punished for both receipt and possession,however, if the counts for one charge involvedifferent conduct (different images) than the countsfor the other charge. Tenth Circuit joins themajority of circuits (all but Fifth) to conclude thata district court can award restitution in a childpornography case only for those harms to a victimthe government can show a defendant proximatelycaused. Ignoring the contradictory canons ofstatutory construction available to justify eitherresult, the Court instead relies on the principle thatCongress legislates against background legalnorms, and observes that a proximate causerequirement is entrenched in both criminal and tortlaw. Court is content with portion of restitutionaward consisting of lawyers’ hourly rates in thiscase multiplied by hours spent, but rejects portionthat consists of dividing victim’s total damages bynumber of restitution awards thus far.

Spring/Summer 2013 Issue No. 5Page 18

United States v. Patterson, --- F.3d ---- , 2013 WL1365720 (10th Cir. April 5, 2012). Evidence of coded conversations between allegedco-conspirators was sufficient to show aconspiracy so as to make co-conspirator statementsadmissible, and the large quantities of druginvolved was sufficient to imply guilt ofconspiracy.

United States v. Baker, --- F.3d ---- , 2013 WL1458965 (10th Cir. April 11, 2013). Defendant did not make a motion to suppressregarding use of GPS tracker on car he was using,and this failure constitutes waiver—the issue willnot be reviewed (even for plain error) on appeal.Federal Rule of Criminal Procedure 12(e) excuseswaiver for “good cause.” But the fact that Jones(USSC case on GPS monitoring) was decided afterdefendant’s sentencing is not good cause.

United States v. Shuck, --- F.3d ---- , 2013 WL1490758 (10th Cir. April 12, 2013). Officers can enter onto curtilage of home to doknock-and-talk, so long as they use a route of normal access for anyone visiting that residence. Here the back door appeared to be the normalaccess point for visitors, so no Fourth Amendmentviolation there. No search requiring warrant whenofficer knelt on ground to smell PVC pipe a foot ortwo to right of back door. Court distinguishesbetween use of technology that reveals intimateand lawful details about life in home (thermal-imaging in Kyllo) and use of senses (or animals)capable of revealing only illicit activity (dog sniffin Caballes). Florida v. Jardines, in which USSCrecently precluded bringing drug dog to front doorfor knock and talk, does not change the outcomehere. Because humans are not dogs and humansniff is not a search, but rather a plain smellextension of plain view doctrines.

United States v. Madrid, --- F.3d ---- , 2013 WL1632692 (10th Cir. April 17, 2013).Court rejects defendant’s argument that districtcourt should have taken into account “relativelyminor nature of the crimes being investigated” (afight) in determining whether reasonable suspicion

existed for traffic stop. A traffic stop involves onlya slight intrusion and crime involved threat topublic safety. Anonymous caller to police boresufficient indicia of reliability to providereasonable suspicion for traffic stop. Afterdiscussion of relative degrees of anonymity, Courtappears to reject government’s argument that callernot truly anonymous b/c police could have figuredout who he was. Still, all of the other factorsconsidered suggest informant’s reliability.

United States v. Toombs, --- F.3d ---- , 2013 WL1777299 (10th Cir. April 26, 2013). Defendant testified at first trial and was convicted.The Tenth Circuit found violation of Speedy TrialAct, district court dismissed case withoutprejudice, and government indicted anew. Atsecond trial, defendant did not testify, but districtcourt allowed government to put in transcript ofdefendant’s entire testimony from first trial. Circuit has already determined that use of priortestimony in subsequent trial is not a FifthAmendment violation. Court finds here, though,that the prior testimony is not automaticallyadmissible; the district court must still determinewhether the testimony is otherwise admissibleunder the rules of evidence.

United States v. Luna-Acosta, --- F.3d ---- , 2013WL 1848761 (10th Cir. May 3, 2012). The question of whether a district court hasjurisdiction, under Rule 35 of the Federal Rules ofCriminal Procedure, to modify a previously-imposed sentence, is a jurisdictional one that doesnot fall within the scope of an appeal waiver thatforbids appeal of the sentence. Rule 35 applies todivest sentencing courts of jurisdiction (except for14 days for certain minor corrections) only whenthere is a “formal break in the proceedings fromwhich to logically and reasonably conclude thatsentencing ha[d] finished.” The sentencing courtdoes not lose jurisdiction during the same hearing,or when s/he announces a tentative ruling, or when,as here, the Court continues the sentencing hearingwithout finalizing all the terms of a sentence.

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