Mar 27th, 2014
It is unlikely that today Alfonso Vega Diaz would face a mandatory minimum sentence under A.G. Holder’s new drug charging policy (no violence, weapons, minors, serious injury or death; not an organizer, leader or supervisor; no “significant ties” to “large-scale drug trafficking organizations, gangs, or cartels;” and no or minimal criminal history). Unfortunately for Diaz, […]
Read the full article »Eighth Circuit Rejects Cross-Section Jury Challenge »
Mar 27th, 2014
In those increasingly rare cases that go to trial, the defendant is entitled to a jury “selected from a fair cross-section of the community.” Defendants like Carlous Horton can be surprised to learn that this doesn’t mean a jury pool, much less an actual jury, that actually reflects racial, gender and economic demographics (in Horton’s […]
Read the full article »Eighth Circuit Affirms Sentences Based on Uncontested Facts in the PSR »
Mar 23rd, 2014
How must a defendant effectively object to facts in the presentence report (PSR)? With “specificity and clarity,” the Eighth Circuit repeats in United States v. Pepper, issued on March 20, 2014 (published), so as “to put the Government on notice of the challenged facts.” In other words, it is not enough for the defense lawyer […]
Read the full article »Historyapolis Publishes Blog Entry about Lena Olive Smith »
Mar 23rd, 2014
The fabulous Historyapolis Project, run by Kirsten Delagard, Scholar-in-Residence in the Department of History at Augsburg College, is running a series of blog entries this women’s history month showcasing notable Minneapolis women. On March 13, 2014, the Project ran this entry by JaneAnne Murray on civil rights lawyer and activist, Lena Olive Smith.
Read the full article »In Sex Abuse Case, Eighth Circuit Affirms Exclusion of Prior Sex Abuse Conviction to Avoid Confusion »
Mar 23rd, 2014
The headline of this post may be misleading, since it implies a rare ruling excluding a defendant’s prior conviction similar to the charge at issue. In United States v. Patrick Brown Thunder, issued on March 12, 2014 (published), however, at issue was not a prior conviction of the defendant, but a prior conviction of someone […]
Read the full article »Eighth Circuit Affirms Imposition of Lengthy Sentences Despite Erroneous Estimates in Plea Agreements »
Mar 23rd, 2014
Time and again, the issue on appeal involves a defendant whose presentence report estimated a guideline range far higher than that in his plea agreement – sometimes triggering three-strikes laws and mandatory minimum sentences. Two recent cases, United States v. Ruacho, issued on March 11, 2014 (published), and United Haubrich, issued on March 3, 2014 […]
Read the full article »Eighth Circuit Affirms Denial of Suppression Involving Abandoned Property »
Mar 23rd, 2014
Is this a bar exam question? Spot the bases for suppression in the following thumbnail description from the Eighth Circuit’s website of United States v. Douglas, issued on March 11, 2014 (published): District court did not err in denying defendant’s motion to suppress a shotgun found hidden in a trash bag in an abandoned refrigerator […]
Read the full article »Eighth Circuit Affirms Trial Conviction Where Defendant’s Plea Stipulation Entered Into Evidence »
Mar 23rd, 2014
In a cautionary tale, Raymond Cortez was convicted at trial based in part (or maybe wholly) on a factual stipulation contained in a written plea agreement he had entered into with the government, but which he later rejected. In the plea agreement, Cortez “agree[d] this stipulation [could] be used against [him] at any time in […]
Read the full article »Eighth Circuit Affirms Denial of “Mere Presence” Instruction »
Mar 23rd, 2014
In United States v. Vore, issued on March 4, 2014 (published), the Eighth Circuit affirmed the district court’s denial of the defense request for a “mere presence” instruction. This instruction reminds the jury that a defendant’s mere presence near contraband or those engaged in criminal activity is not enough to establish knowledge or control of […]
Read the full article »Eighth Circuit Affirms Sentencing Enhancement Not Advocated by Government »
Mar 23rd, 2014
Is a defendant denying responsibility when he challenges a guideline enhancement in his presentence report? The Eighth Circuit leaves that important question open in United States v. Bowers, issued on March 4, 2014 (published). But it’s a complex question that raises competing principles: accuracy in sentencing, the enforceability of plea agreements, and the burdens of […]
Read the full article »Eighth Circuit Remands Where Alternate Juror May Have Participated in Deliberations »
Mar 23rd, 2014
Somehow, an alternate juror managed to stay for jury deliberations in the trial of Manuel Maldonado Aguilar without anyone noticing until the day after the verdict was rendered. In United States v. Aguilar, issued on February 26, 2014 (published), the Eighth Circuit joined three other circuits that have held that a defendant is prejudiced “when […]
Read the full article »Eighth Circuit Holds Prior Felonies Are Not ACCA Predicates »
Mar 23rd, 2014
The highly technical determination of whether prior felony convictions are predicates for Armed Career Criminal (ACCA) enhancements have yielded two notable cases from the Eighth Circuit lately, due to the Supreme Court’s recent decision in Descamps v. United States, which clarified that “sentencing courts may not apply the modified categorical approach when the crime of […]
Read the full article »Eighth Circuit Affirms Modest Downward Departure for Illegal Reenterer »
Mar 23rd, 2014
A recidivist illegal re-enterer tends to get little sympathy from a sentencing court (to paraphrase Oscar Wilde, to come back once may be regarded as a misfortune; to come back twice “looks like carelessness”). But Milton Gonzalez explained that he returned to the United States to see his girlfriend and two young children when he […]
Read the full article »Eighth Circuit Affirms Denial of Credit for Time Served in Halfway House »
Mar 22nd, 2014
In United States v. Parris, issued on February 4, 2014 (published), the Court affirmed the district court’s refusal to grant Parris credit for time served at a half-way house prior to her sentencing. Parris’ time in the half-way house was designated “a period of release” in her presentence report, and was therefore not detention in […]
Read the full article »Eighth Circuit Finds Plain but Not Reversible Error in Guilty Plea »
Mar 22nd, 2014
In United States v. Simmons, issued on December 6, 2013, Jonathan Simmons was not only charged with a crime that does not exist; he pled guilty to it. No-one – not his lawyer, the prosecutor, or the judge who took the plea – noticed that the law does not in fact penalize the possession of […]
Read the full article »Eighth Circuit, En Banc, Vacates 30-Year Sentence Due to Erroneous Jury Instructions »
Mar 22nd, 2014
In one of its most important decisions of 2013, the Eighth Circuit ruled en banc in United States v. Bruguier, issued on November 5, 2013 (published), that the word “knowingly” in the statute criminalizing sex with a physically or mentally-impaired person applied to all elements of the statute. The government must therefore prove that the […]
Read the full article »Eighth Circuit Reverses Sentence Where Loss Improperly Calculated »
Mar 22nd, 2014
A bank president convicted of misapplication of bank funds in connection with a check-kiting scheme won a new sentencing in United States v. Markert, issued on October 22, 2013 (published). His loss had been calculated based on the total of the nominee loans he had approved ($1.8M) rather than on the actual net loss the […]
Read the full article »Eighth Circuit Affirms Lengthy Sentence Over Strong Dissent from Judge Bright »
Oct 22nd, 2013
In United States v. Scott, issued on October 22, 2013, the Eighth Circuit affirmed a sentence of 115 months plus two life sentences for a 56 year-old defendant convicted of a series of bank robberies “during which no one fired a gun and no one was physically injured.” Judge Bright dissented on the sentencing issue, […]
Read the full article »Eighth Circuit Affirms District Court’s Jury Instruction »
Oct 14th, 2013
Jury instructions in a criminal trial can snatch defeat from the jaws of acquittal (and vice versa). In United States v. Mariano, issued on September 9, 2013, the Eighth Circuit reaffirmed prior precedents that “a defendant who requests and receives a jury instruction may not challenge the giving of that instruction on appeal.” By getting […]
Read the full article »Eighth Circuit Affirms 188-Month Sentence Over Strong Dissent from Judge Bright »
Oct 14th, 2013
It is one of the basic rules of criminal defense – know the “worth” of your case and know it early. The worth of a case is a complex, variable and subjective calculation – encompassing, among other things, the statutory and guideline sentencing exposure, the case’s trial prospects, the plea bargaining practices of the prosecutor’s […]
Read the full article »Eighth Circuit Affirms Use of Plea Stipulation at Trial »
Oct 14th, 2013
Most federal cases end in a guilty plea (about 97%) and most of those involve plea agreements – a reflection of what has been described as the prosecutor’s “awesome” bargaining power. In fact, as the Supreme Court acknowledged in Frye v. Lafler, “longer sentences exist on the books largely for bargaining purposes.” How stringently are […]
Read the full article »Eighth Circuit Confirms Safety Valve Relief Available After Trial »
Oct 14th, 2013
Among the many proposals currently being advanced to reduce our shameful mass incarceration is the expansion or duplication of the “safety valve” under 18 U.S.C. § 3553(f). This provision grants first-time, low-level, non-violent drug offenders a path to avoid heavy mandatory minimum penalties. They must meet certain criteria: only one criminal history point, no weapon […]
Read the full article »Eighth Circuit Rejects Unsubstantiated Challenge to Government Translation »
Oct 14th, 2013
Criminal defense lawyers are forced to rely as much on instinct as information. Clients may genuinely not know the facts or refuse to share them. Criminal discovery, despite the stakes in criminal cases, is a shadow of its civil counterpart. Prosecutors, more often than not, “play things close to the vest,” to quote a direction […]
Read the full article »Eighth Circuit Hints It Might Entertain Expanded Scope of Rule 17(c) »
Oct 14th, 2013
It is one of the great ironies of the law that in criminal cases, where the stakes are the highest, defendants have less discovery rights than in civil cases, and far less than those prosecuting them. One discovery mechanism available to a defendant is Fed.R.Crim.P. 17(c)(1), which allows the criminal defendant, with the permission of […]
Read the full article »Eighth Circuit Reverses SORNA Conviction of Defendant Who Moved Abroad »
Oct 14th, 2013
The highly technical SORNA statute – a dubious component in efforts to prevent sexual violence – continues to accrue appellate drubbings. In United States v. Lunsford, issued on August 5, 2013, the Eighth Circuit held that an individual subject to sex offender registration is not required under SORNA to notify the registry of a change […]
Read the full article »Eighth Circuit Remands for Explanation of Probationary Sentence »
Aug 12th, 2013
A downward variance to probation from a guideline range of 135 to 168 months in a $33M fraud case has precipitated a remand for a fuller explanation in United States v. Cole, issued on August 6, 2013. The government had appealed the sentence as substantively unreasonable, but the Eighth Circuit did not reach that issue, […]
Read the full article »Eighth Circuit Affirms Habeas Denial Despite Perjured Testimony »
Aug 12th, 2013
What standard should govern the analysis in a habeas proceeding of the government’s knowing or reckless presentation of perjured testimony at a trial? Is it, as the Ninth Circuit has held, simply a materiality determination (using the lower materiality standard for perjury) or is it a two-step process requiring both a materiality determination, followed by […]
Read the full article »Eighth Circuit Affirms Conviction in “Razor-thin” Case »
Aug 12th, 2013
Defense counsel’s failure to move for judgment of acquittal at the close of the government’s case, at the close of all evidence, or after the jury’s verdict, despite “razor-thin” evidence of guilt, resulted in a defendant forfeiting that argument, and resorting to the steep standard of “plain error” review on appeal, in United States v. […]
Read the full article »Eighth Circuit Affirms Federal Sentence Imposed Concurrent to State Sentence »
Aug 12th, 2013
Some of the most complex and problematic issues in federal sentencing involve the interaction between simultaneous state and federal sentences. These include whether such sentences run concurrently or consecutively to each other, where is the optimal place to serve time for prison credit purposes, when concurrent sentencing is mandatory or simply discretionary, and when the […]
Read the full article »Eighth Circuit Upholds Admission of Defendant’s Proffer Statements at Trial »
Aug 2nd, 2013
The relentless efficiency of our criminal justice system depends on frequent and candid plea discussions. That’s why Congress adopted Rule 410 of the Federal Rules of Evidence, which provides that statements made during plea discussions are inadmissible at trial – a rule that courts, applying legislative intent, have extended to the impeachment context. But what […]
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