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Criminal

  • United States v. Michael Connelly, Sr. (9th Cir.) - Appellee
    • The district court did not abuse its discretion in denying defendant the opportunity to cross-examine the victim regarding her convictions that were more than ten years old, particularly when the defendant could address more recent convictions
    • There is sufficient evidence to support the false statement conviction
    • The jury instructions on willfulness for Section 1001, while erroneous, were harmless

     
    Document Date 
    Brief as Appellee 12/04/14
  • Vidal-Maldonado v. United States (S. Ct.) - Respondent
    • Petitioner's "willfulness" and "fair warning" objections are predicated upon an erroneous characterization of the facts and, in any event, are meritless
    • This case is a poor vehicle for addressing the issue because, among other reasons, the court of appeals addressed it on plain error review, and that applying the one book rule here did not violate the Ex Post Facto Clause

     
    Document Date 
    Certiorari denied, 2014 WL 675600 06/23/14
    Opposition to Certiorari 05/21/14
  • United States v. Eaton (6th Cir.) - Appellee
    • None of Eaton's issues - the sufficiency of the evidence, the court's failure to give a unanimity instruction as to one of the two witness tampering counts, the court's failure to instruct the jury on the affirmative defense in Section 1512(e), the prosecution's remarks on rebuttal, and the cumulative effect of any trial errors - has merit

     
    Document Date 
    Brief as Appellee 03/06/14
  • United States v. Miller, et al. (6th Cir.) - Appellee
    • The Court should grant en banc review because the panel's interpretation and application of Section 249(a)(2) are incorrect and exceptionally important
    • Section 249(a)(2) is constitutional on its face and as applied under Congress's Commerce Clause power
    • Defendants' arguments lack merit

     
    Document Date 
    Court of Appeals Order 11/20/14
    Petition for Rehearing En Banc 10/10/14
    Court of Appeals Decision, 2014 WL 4211198 08/27/14
    Brief as Appellee 02/28/14
  • Hatch v. United States (S. Ct.) - Respondent
    • The court of appeals correctly rejected Hatch's arguments
    • There is no basis for the Court to review well-settled law that the Jones analysis applies in the Thirteenth Amendment context

     
    Document Date 
    Certiorari denied, 2014 WL 1124872 03/24/14
    Opposition to Certiorari 02/07/14
  • United States v. McIntosh (4th Cir.) - Appellee
    • McIntosh's appeal should be dismissed as he waived the right to appeal in his plea agreement

     
    Document Date 
    Court of Appeals Decision, 2014 WL 279893 01/27/14
    Motion to Dismiss 11/18/13
  • Hardy v. United States (S. Ct.) – Respondent
    • Hardy now challenges the Fifth Circuit's unpublished, per curiam decision that his indictment sufficiently alleged the necessary elements supporting a life sentence
    • This case does not warrant Supreme Court review

     
    Document Date 
    Certiorari denied, 134 S. Ct. 60 10/07/13
    Brief in Opposition 06/18/13
  • House v. United States (S. Ct.) – Respondent
    • The Eleventh Circuit's application of the harmless error standard in this context does not conflict with Supreme Court precedent or other circuit authority, and that its conclusion that the error was harmless as to the four Section 242 counts that were upheld was correct

     
    Document Date 
    Certiorari denied, 133 S. Ct. 1633 03/25/13
    Brief in Opposition 02/22/13
  • United States v. Cannon, et al. (5th Cir.) - Appellee
    • The court of appeals' decision was correct and does not conflict with other courts of appeals' decisions
    • The Supreme Court's decisions in City of Boerne v. Flores, 521 U.S. 507 (1997) (addressing Congress's power to enforce the Fourteenth Amendment), and Shelby County v. Holder, 133 S. Ct. 2612 (2013) (addressing Congress's power to enforce the Fifteenth Amendment), do not affect Congress's power to enforce the Thirteenth Amendment
    • The decision in Shelby County has no bearing on Congress's power under Section 2 of the Thirteenth Amendment; the decision did not address or disturb the Supreme Court's longstanding line of cases addressing Congress's power under Section 2 to address and proscribe badges and incidents of slavery
    • The rationale of Shelby County is inapplicable to the far more limited, and very different, legislation enforcing the Thirteenth Amendment, and that neither the "equal sovereignty" concerns, nor broader federalism concerns, expressed in Shelby County have relevance to legislation enforcing the Thirteenth Amendment that proscribes private, race-based violent conduct
    • Given the scope of Congress's power under Section 2 of the Thirteenth Amendment, and Section 249's legislative history, Congress had ample authority to enact Section 249(a)(1) and prohibit racially-motivated violent conduct as a badge or incident of slavery
    • The evidence was sufficient to sustain the convictions

     
    Document Date 
    Certiorari denied, 2014 WL 3698394 12/01/14
    Brief in Opposition to Certiorari 10/29/14
    Court of Appeals Decision, 2014 WL 1633160 04/24/14
    Supplemental Brief 08/26/13
    Brief as Appellee 02/15/13
  • United States v. Morales (11th Cir.) - Appellee
    • The court should dismiss Morales's appeal because he waived his right to appeal his sentence in his plea agreement or, in the alternative, affirm his sentence as reasonable

     
    Document Date 
    Court of Appeals Decision 06/20/13
    Brief as Appellee 02/11/13
  • United States v. Cates (7th Cir.) - Appellee
    • The district court did not abuse its discretion in denying defense counsel's motion for an extension of time to file post-trial motions

     
    Document Date 
    Court of Appeals Decision, 716 F.3d 445 06/13/13
    Brief as Appellee 01/17/13
  • United States v. Mitchell (5th Cir.) - Appellee
    • There is sufficient evidence to prove the falsity and materiality of Mitchell's deposition testimony
    • The district court properly concluded that the defendant was not prejudiced by the delayed production of two witnesses' statements and that a trial continuance was not warranted
    • The district court did not abuse its discretion in advising jurors to continue deliberating to try and reach a verdict on all counts

     
    Document Date 
    Court of Appeals Decision (unpublished), 2013 WL 5976234 04/11/13
    Brief as Appellee 11/30/12
  • United States v. McQueen and Dawkins (11th Cir.) - Appellee/Cross-Appellant
    • None of the defendants' issues, including sufficiency of the evidence, improper jury instructions, improper bolstering of a government witness, and evidentiary errors, has merit
    • The defendants' sentences are substantively unreasonable because McQueen and Dawkins were not similarly situated with their co-defendant, and therefore there was no requirement to avoid a disparity with his sentence

     
    Document Date 
    Court of Appeals Decision, 727 F.3d 1144 08/22/13
    Reply Brief as Appellee/Cross-Appellant 11/16/12
    Brief as Appellee/Cross-Appellant 09/06/12
  • Sease v. United States (S. Ct.) - Respondent
    • This case is a poor vehicle for resolving the Fourth Amendment issue Sease attempts to raise
    • The issue is factbound and unlikely to arise in future cases

     
    Document Date 
    Certiorari denied, 133 S. Ct. 102 10/01/12
    Brief in Opposition to Petition for Writ of Certiorari 08/03/12
  • United States v. Hatch (10th Cir.) – Appellee
    • Given the scope of the Congress's power under Section 2 of the Thirteenth Amendment, and Section 249's legislative history, Congress had ample authority to enact Section 249(a)(1) and prohibit racially-motivated violent conduct as a badge or incident of slavery

     
    Document Date 
    Court of Appeals Decision, 722 F.3d 1193 07/03/13
    Brief as Appellee 07/25/12
  • United States v. Dugue (5th Cir.) – Appellee
    • The circumstances giving rise to the mistrial were not such that the prosecutor "goaded" the defendant into seeking a mistrial, and therefore did not satisfy the narrow exception identified by the Supreme Court that bars retrial of a defendant after the defendant has successfully moved for a mistrial

     
    Document Date 
    Petition for Rehearing denied 10/10/12
    Petition for Panel Rehearing 08/21/12
    Court of Appeals Decision, 690 F.3d 636 08/09/12
    Brief as Appellee 07/23/12
  • United States v. Williams and Moore (5th Cir.) – Appellee
    • The evidence was more than sufficient to support the jury's verdict on all counts, and that the sentences were correctly determined

     
    Document Date 
    Court of Appeals Decision, 708 F.3d 639 02/11/13
    Brief as Appellee 06/14/12
  • United States v. Thinn (9th Cir.) – Appellee
    • There was no abuse of discretion
    • The witness police officers were percipient witnesses who properly testified regarding their training and observations
    • The court allowed, but properly limited, testimony regarding events involving the victim on other occasions

     
    Document Date 
    Court of Appeals Decision, 2012 WL 6759368 12/20/12
    Brief as Appellee 06/11/12
  • United States v. Beck (9th Cir.) – Appellee
    • Defendant's waiver was valid
    • The evidence was sufficient to uphold the conspiracy conviction

     
    Document Date 
    Court of Appeals Decision, 491 F. App'x 855 12/07/12
    Brief as Appellee 05/21/12
  • United States v. Bello (11th Cir.) – Appellee
    • The court properly instructed the jury, because the statutorily enumerated means are not separate elements that require unanimity

     
    Document Date 
    Court of Appeals Decision, 503 F. App'x 910 01/17/13
    Petition for panel rehearing granted; petition for rehearing en banc denied 01/17/13
    Court of Appeals Decision (vacated) 10/19/12
    Brief as Appellee 05/16/12
  • United States v. Pagan-Ferrer, et al. (1st Cir.) – Appellee
    • The district court did not abuse its discretion in refusing to hold a hearing to allow defendants to substantiate an allegation of courtroom closure that could have been, but was not, raised until after defendants' conviction
    • The district court did not err in determining that a curative instruction would be sufficient to overcome any potential prejudice caused by a witness's reference to a finding of liability against the City of San Juan in an earlier civil proceeding
    • The district court did not err in ruling that the admission of Salas' identification of pagan did not violate due process but rather involved questions of weight and credibility that were properly left to the jury to decide
    • The district court did not err in denying defendants' Rule 29 motion, as the evidence was more than sufficient to support conviction
    • There is no basis for this court to find plain error with the district court's jury instruction regarding consciousness of guilt
    • There was no material variance between the allegations contained in Count 16 and the evidence presented against Morales at trial
    • Vidal's sentence raises no ex post facto concerns
    • The district court did not commit plain error in rejecting Morales' argument that his sentence should be more lenient than those of defendants who pled guilty and cooperated with the government

     
    Document Date 

    Court of Appeals Decision, 736 F.3d 573

    11/22/13
    Brief as Appellee 05/02/12
  • United States v. Maybee (8th Cir.) – Appellee
    • The evidence was more than sufficient to support the jury's verdict that defendant agreed with another person to cause bodily injury to the five victims, and did so willfully and because the victims were Hispanic, and, in so doing, violated 18 U.S.C. 371 and 18 U.S.C. 249(a)(1)
    • Given the scope of Congress's power under Section 2 of the Thirteenth Amendment, and Section 249's legislative history, Congress had ample authority to enact Section 249(a)(1) and prohibit racially-motivated violent conduct as a badge or incident of slavery

     
    Document Date 
    Certiorari denied, 133 S. Ct. 556 (United States waived response to the petition for a writ of certiorari) (S. Ct.) 10/29/12
    Court of Appeals Decision, 687 F.3d 1026 08/06/12
    Brief as Appellee 04/20/12
  • United States v. Johnson (W.D. La.) – Plaintiff
    • The magistrate judge's sentence was not an abuse of discretion

     
    Document Date 
    District Court Decision, 2012 WL 1428890 04/20/12
    Brief in Opposition 03/30/12
  • United States v. McRae, et al (5th Cir.) – Appellee
    • The district court did not err in refusing to reopen the detention proceedings, in refusing to revoke the magistrate's detention order, or in holding that there was no due process violation
    • The district court did not err in instructing the jury on manslaughter
    • The district court did not err in holding that joinder was proper, or in denying Warren's motions for severance or mistrial
    • The United States complied with all Brady obligations
    • The district court did not err in its evidentiary rulings
    • Warren's conviction and sentence are constitutional in all respects
    • Because the district court appropriately exercised its discretion to impose consecutive sentences, this Court need not address Warren's argument that Section 924(j) "does not require a mandatory consecutive sentence"
    • The evidence presented at trial was more than sufficient to support McRae’s conviction for obstruction of justice
    • 18 U.S.C. 1519 is not unconstitutionally vague
    • The evidence is sufficient to support McRae's conviction for deprivation of rights under color of law
    • McRae's taking and burning of Tanner's vehicle constituted an unlawful seizure for Fourth Amendment purposes
    • McRae's sentence does not violate the Double Jeopardy Clause of the Constitution
    • The district court abused its discretion in granting McCabe's motion for a new trial

     
    Document Date 
    Court of Appeals Decision, 533 F. App'x 487 06/28/13
    Opposition to Defendant's Appeal from Detention Order (Warren) 05/30/13
    Certiorari denied, 133 S. Ct. 2037 (United States waived response to McRae's petition for a writ of certiorari) (S. Ct.) 04/29/13
    Court of Appeals Decision, 702 F.3d 806 12/17/12
    Reply Brief as Appellee/Cross-Appellant 04/02/12
    Brief as Appellee 01/30/12
  • United States v. Mathis (5th Cir.) – Appellee
    • The district court did not err in applying arson as the underlying offense

     
    Document Date 
    Court of Appeals Decision, 476 F. App'x 22 04/19/12
    Brief as Appellee 01/03/12
  • United States v. Wilson (8th Cir. and S. Ct.) - Appellee/Respondent
    • The court properly employed the aggravated assault guideline in sentencing Wilson, and that his sentence was properly enhanced based on restraint of the victims and on one victim's substantial bodily injury

     
    Document Date 
    Certiorari denied, 133 S. Ct. 873(United States waived response to the petition for a writ of certiorari) (S. Ct.) 01/07/13
    Court of Appeals Decision, 686 F.3d 868 08/02/12
    Brief as Appellee 12/13/11
  • United States v. Melgoza (5th Cir.) - Appellee
    • There is sufficient evidence to prove Melgoza's use of force against one detainee that resulted in bodily injury
    • The district court properly dismissed a juror for reading a newspaper article and forming an opinion about the case prior to deliberations
    • Melgoza was not denied his right to an impartial jury based on the court's handling of the juror's misconduct

     
    Document Date 
    Certiorari denied, 133 S. Ct. 285 (United States waived response to petition for writ of certiorari) (S. Ct.) 10/01/12
    Court of Appeals Decision, 469 F. App'x 357 04/06/12
    Brief as Appellee 12/01/11
  • United States v. Gould (10th Cir.) - Appellee
    • The district court did not abuse its discretion in excluding several hearsay reports written by defendant
    • A 25-month delay between defendant's convictions and sentencing did not violate his Sixth Amendment right to a speedy trial

     
    Document Date 
    Court of Appeals Decision, reported at 672 F.3d 93002/28/12
    Supplemental Brief as Appellee 11/30/11
  • United States v. Moyer and Nestor (3d Cir.) - Appellee
    • Evidence was sufficient to support the jury's verdicts
    • Indictment was sufficient
    • 18 U.S.C. 1519 is not unconstitutionally vague

     
    Document Date 
    Certiorari denied, 133 S. Ct. 979 (United States waived response to Nestor's petition for writ of certiorari) (S. Ct.) 01/22/13
    Certiorari denied, 133 S. Ct. 165 (United States waived response to Moyer's petition for writ of certiorari) (S. Ct.) 10/01/12
    Court of Appeals Decision, reported at 674 F.3d 192 02/29/12
    Brief as Appellee 09/15/11
  • United States v. Sanchez (9th Cir.) - Appellee
    • The district court did not err in denying Sanchez's motion as the court's statements during a pretrial detention hearing are not evidence of his innocence
    • The district court was not required to make factual findings before rejecting Sanchez's examples of an allegedly unwarranted sentencing disparity where none of the examples involved Section 242 convictions and their relevance was a question of law, not a disputed issue of fact

     
    Document Date 
    Court of Appeals Decision , 472 F. App'x 575 03/23/12
    Brief as Appellee 09/14/11
  • United States v. Nguyen (9th Cir.) - Appellee
    • The district court properly denied defendant's motion; defendant challenges the denial of his motion to suppress items seized from his campaign headquarters and home, including invoices and emails, for lack of probable cause

     
    Document Date 
    Court of Appeals Decision, reported at 673 F.3d 1259 03/23/12
    Brief as Appellee 07/20/11
  • United States v. Nnaji (5th Cir.) - Appellee
    • In all respects, the evidence was sufficient to support the forced labor, harboring, document servitude, and conspiracy charges

     
    Document Date 
    Certiorari denied, reported at 132 S. Ct. 1763 and 132 S. Ct. 1770 (United States waived response to petitions for writ of certiorari) (S. Ct.) 03/19/12
    Court of Appeals Decision (unpublished), 447 F. App'x 558 10/26/11
    Brief as Appellee 07/06/11
  • United States v. Piekarsky & Donchak (3d Cir.) - Appellee
    • None of the issues defendants raised has merit, including defendants' challenges to the indictment, the jury instructions, the sufficiency of the evidence, certain evidentiary rulings, and the calculation of their sentences

     
    Document Date 
    Certiorari denied, 133 S. Ct. 549 (United States waived response to Piekarsky's petition for a writ of certiorari) (S. Ct.) 10/29/12
    Certiorari denied, 133 S. Ct. 373 (United States waived response to Donchak's petition for a writ of certiorari) (S. Ct.) 10/01/12
    Court of Appeals Decision, 687 F.3d 134 06/18/12
    Brief as Appellee 07/01/11
  • United States v. Gray (6th Cir.) - Appellee
    • The jury instructions were correct statements of law
    • The district court's sentencing calculation was correct
    • The evidence was sufficient to support his convictions

     
    Document Date 
    Certiorari denied, 133 S. Ct. 990 (United States waived response to defendant's petition for a writ of certiorari) (S. Ct.) 01/22/13
    Court of Appeals Decision, 692 F.3d 514 08/31/12
    Brief as Appellee 06/30/11
  • Wei Sun v. United States (S. Ct.) - Respondent
    • The court of appeals correctly rejected petitioner's argument that her conviction should be overturned because the District Court for the Northern Mariana Islands is "unconstitutionally established and constituted," in violation of Article III of the Constitution
    • Further review is not warranted

     
    Document Date 
    Certiorari denied, 132 S. Ct. 451 10/17/11
    Brief in Opposition to Petition for Writ of Certiorari 06/24/11
  • United States v. Saldana, et al. (9th Cir.) - Appellee
    • Issues raised by defendants do not warrant reversal
    • Issues included: whether their rights were violated by being shackled during trial and excluded from portions of the voir dire; various evidentiary issues, including the admission of hearsay statements made by a deceased witness, restrictions on cross-examination, the denial of a motion to suppress, and the testimony of a government expert witness; and whether Section 245(b)(2)(B) is constitutional on its face and as applied in this case
    • The bias and hardship voir dire did not violate the defendants' right to a public trial, and that to the extent there was error, it was not structural error warranting reversal

     
    Document Date 
    Supplemental Brief 10/25/12
    Brief as Appellee 06/15/11
  • United States v. Dodson (8th Cir.) - Appellee
    • The government met its burden of showing by clear and convincing evidence that no set of conditions of Dodson's release will reasonably assure the safety of the community

     
    Document Date 
    Order and Judgment 07/05/11
    Opposition to Appeal from Detention Order 06/03/11
  • United States v. Jay Schmeltz (6th Cir.) - Appellee
    • The indictment was not duplicitous and therefore curative instructions were not necessary and, in any event, under plain error review, Schmeltz did not suffer prejudice

     
    Document Date 
    Court of Appeals Decision, 667 F.3d 685 12/20/11
    Brief as Appellee 05/23/11
  • United States v. Jones (6th Cir.) - Appellee
    • Under the terms of his plea agreement, Jones waived his right to appeal his sentence, including any conditions of supervised release; and, in any event, the district court did not abuse its sentencing discretion

     
    Document Date 
    Court of Appeals Order 11/16/11
    Brief as Appellee 04/15/11
  • United States v. Royal (4th Cir./S. Ct.) - Appellee
    • The district court correctly calculated and sentenced defendant, given that the victims were vulnerable and that defendant used the computer to effectuate his crimes, obstructed justice, and was a leader of the conspiracies

     
    Document Date 
    Certiorari denied, reported at 132 S. Ct. 1119 (United States waived response to petition for writ of certiorari) (S. Ct.) 01/17/12
    Court of Appeals Decision (unpublished), 442 F. App'x 794 08/10/11
    Brief as Appellee 04/14/11
  • United States v. Leonard Fox (6th Cir.) - Appellee
    • Appellant claimed the following: 1) the district court abused its discretion in refusing to allow him to withdraw his guilty plea; (2) the government violated the terms of the plea agreement with regard to its sentencing recommendation; and (3) his sentence is unreasonable
    • The Division argued that none of the alleged errors warrant reversal and that the sentence was proper

     
    Document Date 
    Court of Appeals Order (unpublished) 10/18/11
    Brief as Appellee 03/29/11
  • Freeman v. United States (S. Ct.) - Respondent
    • Among the four issues raised by Freeman in his petition, three are factually based and do not give rise to any colorable issue for review by the Supreme Court
    • These issues are whether the court of appeals erred in finding the district court's abuse of discretion harmless, whether the right which Freeman violated was clearly established at the time of his crime, and whether sufficient evidence existed to prove that Freeman joined the conspiracy to violate civil rights
    • No split exists regarding the fourth issue, which is whether the Sixth Circuit's affirmation of the district court's limitation on cross-examination of a key government witness creates a circuit split
    • Circuits have taken an ad hoc approach to determining what constitutes sufficient cross-examination of a key witness

     
    Document Date 
    Certiorari denied, 131 S.Ct. 2443 (Mem) 05/25/11
    Brief in Opposition to Petition for Writ of Certiorari 04/06/11
  • Davis v. United States (S. Ct.) - Respondent
    • Indictment was sufficient and any error was harmless
    • Fifth Circuit properly applied the law of the case to bar reconsideration of Davis's jury selection claims

     
    Document Date 
    Certiorari denied, 131 S.Ct. 1676 (Mem) 03/21/11
    Brief in Opposition to Petition for Writ of Certiorari 02/18/11
  • Fontenot v. United States (S. Ct.) -- Respondent
    • The statutory-interpretation issue is not squarely presented in this case because, since Fontenot failed to object to the challenged jury instruction, the case must be decided under the plain error standard of review
    • The jury instruction was correct and no authority supports petitioner's interpretation of the statute

     
    Document Date 
    Certiorari denied, 131 S. Ct. 1601 03/07/11
    Brief in Opposition to Petition for Writ of Certiorari 02/04/11
  • United States v. Georgia Silva (9th Cir.) -- Appellee
    • The evidence was sufficient to support defendant's conviction
    • The district court did not abuse its discretion in admitting the challenged evidence or in excluding the evidence of the state court prosecution

     
    Document Date 
    Court of Appeals Decision (unpublished), 428 F. App'x 737 04/21/11
    Brief as Appellee 02/02/11
  • Cozzi v. United States (S. Ct.) -- Respondent
    • Court of appeals decision was correct: the incoming police chief's "tip" to the FBI did not constitute an improper use of the immunized testimony
    • Court of appeals decision does not conflict with the decisions of other courts of appeals

     
    Document Date 
    Certiorari denied, 131 S. Ct. 1472 02/22/11
    Brief in Opposition to Petition for Writ of Certiorari 01/13/11
  • Mahender Murlidhar Sabhnani v. United States (S. Ct.) -- Respondent
    • The Second Circuit affirmed the district court’s aiding and abetting instruction on the ground that the willfulness component of the instruction erroneously permitted the jury to convict him for failing to act, rather than affirmatively acting to aid and abet defendant’s wife
    • The Second Circuit’s harmless-error analysis did not conflict with established precedent and was correct

     
    Document Date 
    Certiorari denied, 131 S. Ct. 1000 01/18/11
    Brief in Opposition to Petition for Writ of Certiorari 12/14/10
  • Varsha Sabhnani v. United States (S. Ct.) -- Respondent
    • The Second Circuit affirmed the district court’s denial of defendant’s motion to change venue based on alleged pervasive pre-trial publicity
    • The Second Circuit’s ruling did not conflict with established precedent and was correct

     
    Document Date 
    Certiorari denied, 131 S. Ct. 1000 01/18/11
    Brief in Opposition to Petition for Writ of Certiorari 12/14/10
  • United States v. Dann (9th Cir.) -- Appellee
    • Sufficient evidence supported the jury's verdict against defendant
    • The district court did not err in calculating defendant's guidelines range
    • The district court did not err in its restitution order

     
    Document Date 
    Court of Appeals Decision, reported at 652 F.3d 1160 07/22/11
    Brief as Appellee 12/03/10
  • United States v. Joseph Silva (9th Cir.) -- Appellee
    • The district court did not abuse its discretion in admitting the challenged evidence or in excluding the evidence of the state court prosecution

     
    Document Date 
    Court of Appeals Decision (unpublished), 428 F. App'x 737 04/21/11
    Brief as Appellee 11/22/10
  • United States v. Warren (5th Cir.) -- Appellee
    • District court did not err in holding that no conditions of release could reasonably assure Warren’s appearance at trial or the safety of the community

     
    Document Date 
    Court of Appeals Decision, 397 F. App'x 994 (unpublished) 10/21/10
    Opposition to Motion for Pre-Trial Release 09/27/10
  • United States v. Karl Thompson (9th Cir.) - Appellant and Appellee
    • Consistent with the district court's ruling, the defendant's rights under Brady v. Maryland, 383 U.S. 83 (1963), were not violated because he was not prejudiced by any withheld information
    • The district court: (1) did not abuse its discretion in evidentiary rulings, (2) did not err in its jury instructions on willfulness, and (3) did not abuse its discretion in denying a new trial based on the jury's limited exposure to extrinsic evidence
    • District court abused its discretion under Federal Rule of Evidence 403 because a limiting instruction would be understood by the jury and would eliminate any undue prejudice, and the district court failed to accord sufficient weight to the probative value of this evidence for both charges
    • Admission of this evidence is consistent with Boyd v. City and County of San Francisco, 576 F.3d 938, 944 (9th Cir. 2009), which held, in a case involving an officer’s use of deadly force, that evidence not known by an officer was admissible to address a disputed fact, and was more probative than prejudicial

     
    Document Date 
    Court of Appeals Decision, 2014 WL 2726680 06/17/14
    Brief as Appellee 01/02/14
    Court of Appeals Decision, 423 F. App'x 758 03/24/11
    Brief as Appellant 09/21/10
  • United States v. White (4th Cir.) -- Appellant/Cross-Appellee
    • Defendant is not entitled to sensitive discovery materials produced by the United States before trial; he has no present need for them, since a motion under 28 U.S.C. 2255 would be premature while his appeal is pending
    • There was sufficient evidence to support the jury’s verdict on Count 6
    • The court erred in refusing to apply the vulnerable-victim sentencing adjustment
    • There was sufficient evidence to support the jury’s verdict on Counts 1, 3, and 5
    • The First Amendment does not require proof of specific intent to threaten under 18 U.S.C. 875(c)
    • The indictment was not constructively amended

     
    Document Date 
    Court of Appeals Decision, 458 F. App'x 228 12/15/11
    Informal Brief as Appellee 07/28/11
    Court of Appeals Decision, reported at 670 F.3d 498 03/01/12
    Response/Reply Brief 10/28/10
    Brief as Appellant 08/27/10
  • United States v. Morris (5th Cir.) -- Appellee
    • Morris's conviction was based on sufficient evidence
    • The sentence was reasonable and based on a proper calculation of the federal sentencing guidelines

     
    Document Date 
    Court of Appeals Decision (unpublished), 404 F. App'x 916 12/17/10
    Brief as Appellee 08/25/10
  • Seale v. United States (S. Ct.) -- Respondent
    • Certiorari is not warranted: petitioner continues to challenge the statute-of-limitations and suppression of evidence issues

     
    Document Date 
    Certiorari denied, 131 S. Ct. 163 10/04/10
    Opposition to petition for writ of certiorari 08/23/10
  • Wang & Kuo v. United States (S. Ct.) -- Respondent
    • Petition for a writ of certiorari should be held pending the Court’s decision in Dolan v. United States, No. 09-367: the petition challenges the timeliness of a restitution order

     
    Document Date 
    Certiorari granted, vacated, and remanded, 130 S. Ct. 3458 06/21/10
    Brief for the United States 04/21/10
  • United States v. Armstrong (9th Cir.) -- Appellee
    • The sentence was reasonable and properly reflected the factors codified in 18 U.S.C. 3553(a)
    • An enhancement for obstruction of justice was proper where Armstrong testified falsely at trial
    • The sentence was properly enhanced for racial selection of the victim

     
    Document Date 
    Court of Appeals Decision, reported at 620 F.3d 1172 08/31/10
    Brief as Appellee [PDF] 04/12/10
  • McGowan v. United States (S. Ct.) -- Respondent
    • Further review is unwarranted: Ninth Circuit reversed a district court’s decision to overturn a jury’s guilty verdict convicting petitioner, who was a correctional officer, on two counts of depriving convicted inmates of their civil rights in violation of 18 U.S.C. 242

     
    Document Date 
    Certiorari denied, 130 S. Ct. 2372 04/26/10
    Opposition to petition for writ of certiorari 03/26/10
  • Perez v. United States (S. Ct.) -- Respondent
    • Bureau of Prisons’ investigation of petitioner’s conduct, carried out under rules and regulations requiring documentation and investigation of every use of force against an inmate, qualifies as an “official proceeding” under Section 1512(c)

     
    Document Date 
    Certiorari denied, 130 S. Ct. 2341 04/05/10
    Opposition to petition for writ of certiorari 03/05/10
  • United States v. Wang & Kuo (9th Cir.) -- Appellee
    • The restitution order was timely in light of Dolan v. United States, No. 09-367 (S. Ct.)
    • The district court did not commit plain error in ordering restitution or in using the gross income valuation methodology
    • The district court did not abuse its discretion in relying on affidavits from the victims and interview testimony from Kuo’s wife and a customer regarding the prices charged, where the defendant’s destroyed the business records that would have allowed for more detailed proof

     
    Document Date 
    Court of Appeals Decision, reported at 620 F.3d 1158 08/30/10
    Supplemental Brief 08/06/10
    Court of Appeals Decision, reported at 588 F.3d 729 12/03/09
    Brief as Appellee, (filed under seal) 12/15/08
  • United States v. Lanham & Freeman (6th Cir.) -- Appellee/Cross-Appellant
    • Freeman has not sustained his burden of showing a substantial question of law or fact that was likely to result in reversal, a new trial, a sentence not including imprisonment, or a reduced sentence less than the time served plus the time for appeal under 18 U.S.C. 3143(b)(1)(B)
    • Freeman failed to show “exceptional circumstances” under 18 U.S.C. 3145(c)
    • District court did not abuse its discretion in refusing to strike several jurors for cause and striking another for cause
    • District court did not abuse its discretion when it limited questioning of a government cooperating witness concerning the sentence he faced
    • Sufficient evidence supported all three counts of conviction against Lanham and Freeman
    • District court did not err by having the jury determine whether the elements of aggravated sexual abuse had occurred
    • District court did not commit plain error by declining to find a lesser role for Freeman
    • District court did not abuse its discretion in finding that the government had not violated Brady v. Maryland, 373 U.S. 83 (1963)
    • District court committed legal error by refusing to use the 2008 Sentencing Guidelines
    • District court legally erred by declining to apply a leadership enhancement to Lanham’s sentence
    • Sixth Circuit’s opinion unnecessarily exacerbates a circuit split and errs on an important matter of law in suggesting that the Ex Post Facto Clause bars the use of post-offense, severity-enhancing Guidelines amendments

     
    Document Date 
    Petition for Rehearing En Banc denied 12/17/10
    Petition for Rehearing En Banc 10/07/10
    Court of Appeals Decision, reported at 617 F.3d 873 08/24/10
    Brief as Appellee/Cross-Appellant [PDF] 06/03/09
    Response to Defendant's Motion for Post-Conviction Release [PDF] 03/30/09
  • United States v. Sun (9th Cir.) -- Appellee
    • The district court has jurisdiction to hear criminal cases arising under the laws of the United States
    • The evidence was sufficient to support the convictions

     
    Document Date 
    Court of Appeals Decision, 399 F. App'x 319 (unpublished) 10/14/10
    Brief as Appellee 03/08/10
  • United States v. Fontenot (11th Cir.) -- Appellee
    • Both the language of 18 U.S.C. 1519 and its legislative history support the district court’s instruction because the element that the matter be within the jurisdiction of the United States is purely jurisdictional
    • Any error would be harmless because Fontenot testified that he probably took a course explaining that excessive force can be a state or federal crime

     
    Document Date 
    Court of Appeals Decision, reported at 611 F.3d 734 07/13/10
    Brief as Appellee [PDF] 12/22/08
  • Masarik v. United States (S. Ct.) -- Respondent
    • Certiorari is not warranted: the petition challenges the district court=s exclusion of expert testimony regarding the reliability of eyewitness identifications

     
    Document Date 
    Certiorari denied, 130 S. Ct. 1137 01/19/10
    Opposition to petition for writ of certiorari 12/14/09
  • Kaufman v. United States (S. Ct.) -- Respondent
    • The court of appeals (1) correctly rejected petitioners’ Sixth Amendment challenge to an order prohibiting petitioners from making direct eye contact with the victim-witnesses at trial; and (2) correctly affirmed under plain error review petitioners’ convictions for violations of the involuntary servitude and forced labor statutes

     
    Document Date 
    Certiorari denied, 130 S. Ct. 1013 12/14/09
    Opposition to petition for writ of certiorari 11/12/09
  • United States v. Milbourn (7th Cir.) – Appellee
    • There was sufficient evidence to support the convictions
    • The prosecutor's closing arguments were proper
    • The statutory minimum sentence for use of fire does not conflict with 18 U.S.C. 3553(a)(2)

     
    Document Date 
    Court of Appeals Decision , reported at 600 F.3d 808 04/07/10
    Brief as Appellee [PDF] 10/19/09
  • United States v. Mardis (6th Cir./S. Ct.) – Appellee
    • The district court correctly denied the motion to dismiss an indictment
    • Under the Dual Sovereignty doctrine, the federal indictment does not violate the Double Jeopardy Clause

     
    Document Date 
    Certiorari denied, reported at 131 S.Ct. 365 (S. Ct.) (response waived) 10/04/10
    Court of Appeals Decision , reported at 600 F.3d 693 03/31/10
    Brief as Appellee [PDF] 10/23/09
  • United States v. Bunke (6th Cir.) – Appellee
    • The felony conviction should be upheld

     
    Document Date 
    Certiorari denied, 131 S.Ct. 2464 (United States waived response to petition for writ of certiorari) (S. Ct.) 05/25/11
    Court of Appeals Decision, reported at 412 F. App'x 760 (unpublished) 01/19/11
    Brief as Appellee [PDF] 12/11/09
  • United States v. Marcus (S. Ct.) -- Petitioner
    • The Second Circuit’s plain error standard for reviewing ex post facto claims conflicts with subsequent Supreme Court cases on plain error because those cases require reversal only when there is a “reasonable possibility” of conviction.
    • Urged the Court to grant the petition, vacate the judgment, and remand for further consideration in light of the Court's most recent plain error decision, Puckett v. United States, 129 S. Ct. 1423 (2009)

     
    Document Date 
    Certiorari denied, 134 S. Ct. 135 (United States waived response to the petition for a writ of certiorari) (S. Ct.) 10/07/13
    Supreme Court decision, 130 S. Ct. 2159 05/24/10
    Reply Brief 02/17/10
    Brief as Petitioner 12/04/09
    Certiorari granted, 130 S. Ct. 393 10/13/09
    Reply Brief 07/15/09
    Petition for writ of certiorari 05/06/09
  • United States v. Sandstrom & Eye (8th Cir./S. Ct.) -- Appellee
    • District court did not abuse its discretion in denying defendants’ motions for severance
    • Indictment was not multiplicitous
    • Congress had authority to enact 18 U.S.C. 245
    • Prosecutor’s comments during closing were not improper or prejudicial
    • Evidence was sufficient to support Eye’s convictions on one of the Section 245 charges and a related firearm charge

     
    Document Date 
    Certiorari denied, reported at 131 S. Ct. 192 (Eye) and 131 S. Ct. 202 (Sandstrom) (United States waived response to petitions for writ of certiorari) (S. Ct.) 10/04/10
    Court of Appeals Decision [PDF], reported at 594 F.3d 634 01/29/10
    Brief as Appellee [PDF] 06/12/09
  • United States v. Davis (5th Cir.) -- Appellee
    • Davis’s crimes, prison record, and police record provided sufficient evidence of future dangerousness; clarification of a minor error in the instructions did not require reversal; the court did not abuse its discretion in formulating instructions; and other alleged errors at trial did not require reversal under a plain error standard

     
    Document Date 
    Brief as Appellee [PDF] 06/30/09
    Court of Appeals Decision, reported at 609 F.3d 663 06/16/10
  • United States v. Ferguson & Ferguson (9th Cir.) -- Appellee
    • District court did not violate the defendants’ Confrontation Clause rights in limiting cross-examination of three government witnesses to exclude details of an unrelated, uncharged homicide
    • District court properly calculated Defendant Joseph Ferguson’s 97-month sentence, and that sentence is reasonable
    • Circuit precedent forecloses Defendant William Ferguson’s Eighth Amendment challenge to his 1,224-month sentence, imposed for multiple violations of 18 U.S.C. 924(c)

     
    Document Date 
    Court of Appeals Decision, 377 F. App'x 718 (unpublished) 04/29/10
    Brief as Appellee [PDF] 07/13/09
  • United States v. Perez-Laguna (4th Cir.) -- Appellee
    • Government did not breach the plea agreement because the defendant did not readily demonstrate acceptance of responsibility
    • Defendant’s other arguments are barred by his waiver of appeal, and even if not barred are without merit

     
    Document Date 
    Court of Appeals Decision , 357 F. App'x 507 (unpublished) 12/16/09
    Brief as Appellee [PDF] 07/22/09
  • United States v. Song Ja Cha (9th Cir.) -- Appellent
    • District court erred in suppressing items seized pursuant to a valid search warrant based on probable cause obtained after the police secured the premises for 25 and a half hours to prevent the destruction of evidence
    • Government did not waive its argument that the exclusionary rule’s remedy should not be applied, when the argument was raised for the first time in its objections to the magistrate’s report that recommended that evidence seized pursuant to a validly issued warrant from defendants’ premises should be suppressed

     
    Document Date 
    Court of Appeals Decision [PDF], reported at 597 F.3d 995 03/09/10
    Brief as Appellant [PDF] 05/08/09
    Reply Brief[PDF] 07/28/09
  • United States v. Marcus (2d Cir.) -- Appellee
    • The Division argued that the rule of lenity does not apply because 18 U.S.C. 1589 and 1591 clearly and unambiguously prohibit the defendant’s conduct, and that the statutes are constitutional as applied in this case
    • The U.S. Attorney’s Office addressed all remaining issues

     
    Document Date 
    Court of Appeals Decision, reported at 628 F.3d 36 12/07/10
    Court of Appeals Decision , reported at 538 F.3d 97 08/14/08
    Brief as Appellee [PDF] 12/14/07
  • United States v. Smith (9th Cir.) -- Appellee
    • The district court correctly refused to suppress Smith’s voluntary grand jury testimony, nor did the court abuse its discretion in excluding testimony of Smith’s proposed expert witness because the proposed testimony of this self-styled CB radio culture expert did not meet the standards of Rule 702 of the Federal Rules of Evidence
    • The district court did not commit clear error in applying a six-level enhancement to his base offense level because his conduct evidenced an intent to carry out his threats, nor commit legal error in adding a three-level adjustment because Smith selected his victim because of his race, nor commit plain error in adding a two-level enhancement for Smith’s leadership role in the offense
    • The court did not abuse its discretion by not discussing specifically Smith’s argument that the sentence recommended by the Probation Office created an unwarranted sentencing disparity under 18 U.S.C. 3553(a)

     
    Document Date 
    Court of Appeals Decision, 365 F. App'x 781 (unpublished) 02/12/10
    Brief as Appellee [PDF] 02/13/09
  • United States v. Wilson (6th Cir.) -- Appellee
    • The evidence is sufficient to sustain the jury’s verdict that bodily injury resulted
    • The district court did not commit plain error in denying defendant’s motion for severance

     
    Document Date 
    Court of Appeals Decision [PDF], available at 344 F. App’x 134 08/25/09
    Brief as Appellee [PDF] 02/11/09
  • United States v. Paulin (11th Cir.) -- Appellee
    • There was no amendment of the indictment and that the instructions and evidence at trial were sufficient to sustain a conviction of conspiracy to deprive Celestin of her right to be free of involuntary servitude
    • The indictment clearly charged Paulin with forced labor after the effective date of 18 U.S.C. 1589
    • The district court did not err in refusing to grant the requested instruction

     
    Document Date 
    Court of Appeals Decision, 329 F. App'x 232 (unpublished) 05/27/09
    Brief as Appellee [PDF] 02/04/09
  • United States v. Pilati (N.D. Ala./11th Cir.) -- Appellee
    • The record showed that the victim was a minor and that he was a minor for the purposes of registration under the Sex Offender Registration and Notification Act (SORNA)
    • Pilati failed to raise many of his arguments (among other issues, denial of counsel of choice, insufficiency of the evidence, inadequacy of jury instructions, and improper application of SORNA) before the district court and none have merit

     
    Document Date 
    Court of Appeals Decision, reported at 627 F.3d 1360 12/17/10
    Brief as Appellee [PDF] 04/26/10
    Memorandum Opinion [PDF] (N.D. Ala.) 04/07/09
    Brief as Appellee [PDF] 12/19/08
  • United States v. Cook (D.C. Cir.) -- Appellee
    • A new trial is not warranted because all of the evidence Cook identifies was disclosed during trial when Cook had ample opportunity to use it and because he failed to demonstrate that the evidence in question was exculpatory and material
    • Cook’s filing of two reports did not violate his Fifth Amendment privilege against compelled self-incrimination because the statements in the reports were exculpatory, false, and voluntary

     
    Document Date 
    Court of Appeals Decision, 330 F. App'x 1 (unpublished) 04/21/09
    Brief as Appellee [PDF] 01/09/09
  • United States v. Farrell & Farrell (8th Cir.) -- Appellee
    • The evidence was sufficient to support the Farrells’ convictions for peonage, conspiracy, and document servitude
    • The district court did not plainly err in permitting an expert to testify on the “climate of fear” that exists in many human trafficking cases

     
    Document Date 
    Court of Appeals Decision, reported at 563 F.3d 364 04/17/09
    Brief as Appellee [PDF] 08/06/08
  • United States v. Egbert, Walker, & Massey (10th Cir.) -- Appellee
    • The district court did not err in cross-referencing the aggravated assault guideline and adding five levels to Walker’s and Massey’s base offense levels in connection with the second incident
    • The district court did not err in including the second incident in computing the base offense levels of Walker and Egbert, who did not participate in that assault
    • The district court did not err in using the second incident as a basis for adjusting Walker’s and Massey’s base offense levels for purposes of grouping
    • The district court did not err in applying a four-level enhancement to Walker’s sentence for being an organizer and leader of the criminal activity
    • Walker’s sentence is substantively reasonable

     
    Document Date 
    Court of Appeals Decision, reported at 562 F.3d 1092 04/14/09
    Brief as Appellee [PDF] 06/09/08
  • United States v. Seale (5th Cir.) -- Appellee
    • The prosecution was not barred by the statute of limitations
    • Pre-indictment delay did not violate the defendant’s due process rights
    • The district court did not err in denying the defendant's motion to suppress his 1964 statement to the FBI
    • The district court did not abuse its discretion by allowing the United States’ forensic pathologist to give his expert opinion regarding the victims’ causes of death
    • The district court did not abuse its discretion by excluding the testimony of the co-conspirator’s attorney to impeach his client
    • The district court did not abuse its discretion by admitting evidence of the defendant’s motive
    • The evidence was sufficient to support the jury’s verdict
    • The panel decision conflicted with Fifth Circuit precedent for applying conflicting canons of statutory construction in Griffon v. Department of Health & Human Services, 802 F.2d 146 (1986)
    • 1972 amendment to 18 U.S.C. 1201, which repealed the death penalty but also enlarged the scope of federal kidnaping, was a substantive amendment that applied prospectively only, and did not retroactively affect the statute of limitations applicable to the defendant’s 1964 conduct
    • Defendant may not seek certification, and even if he could, the statute-of-limitations question does not warrant certification
    • No supporting authority exists for a second rehearing en banc based on a change in the court’s composition

     
    Document Date 
    Court of Appeals Decision [PDF], reported at 600 F.3d 473 3/12/10
    Court of Appeals Order to Certify Question to Supreme Court, reported at 577 F.3d 566 7/30/09
    Opposition to Defendant’s Motion to Certify Question of Law to the Supreme Court 6/18/09
    Court of Appeals Decision (en banc), reported at 570 F.3d 650 6/5/09
    Supplemental Brief as Appellee 4/16/09
    Petition for Rehearing Granted11/14/08
    Petition for Rehearing En Banc [PDF]09/23/08
    Petition for Panel Rehearing [PDF] 09/23/08
    Brief as Appellee [PDF] 03/14/08
  • United States v. Gagnier (6th Cir.) -- Appellee
    • Gagnier’s arguments concerning his Sentencing Guidelines total offense level and the travel restriction imposed on his supervised release – requiring him to remain in the United States – are waived because he failed to raise them in his initial appeal
    • Alternatively, the district court correctly considered the staged on-duty shooting incident as “relevant conduct,” correctly imposed offense level increases under U.S.S.G §§ 2B1.1(b)(1)(D) & 2B1.1(b)(12)(B), and did not abuse its discretion in imposing the travel restriction
    • Gagnier’s sentence was reasonable

     
    Document Date 
    Court of Appeals Decision [PDF], (unpublished) 01/21/09
    Brief as Appellee [PDF] 06/18/08
  • United States v. Cedric Jackson (11th Cir.) -- Appellee
    • The Civil Rights Division filed a motion to dismiss Jackson’s appeal based on his valid waiver of his right to appeal his sentence. The court of appeals upheld Jackson’s conviction and sentence and denied the Division’s motion to dismiss the appeal as moot

     
    Document Date 
    Court of Appeals Decision, 303 F. App'x 749 (unpublished) 12/17/08
  • United States v. Gilpatrick (6th Cir.) -- Appellee
    • The district court did not commit plain error in imposing a period of confinement in a community corrections facility as a condition of supervised release following imprisonment.
    • The district court did not err in adding two levels to base offense level for obstruction of justice for providing the FBI a false report of the incident and adding four levels for role as a leader and organizer of the offense.

     
    Document Date 
    Court of Appeals Decision [PDF], reported at 548 F.3d 479 11/26/08
    Brief as Appellee [PDF] 02/19/08
  • United States v. Teel (5th Cir.) -- Appellee
    • The district court correctly determined that the government’s proffered reasons were neutral and that the government did not engage in intentional discrimination on the basis of race or sex in selecting jurors.
    • The district court did not abuse its discretion in any of its evidentiary rulings.
    • None of the errors alleged by appellant warrants reversal.

     
    Document Date 
    Court of Appeals Decision , 299 F. App'x 387 (unpublished) 11/13/08
    Brief as Appellee [PDF] 07/09/08
  • United States v. Salazar (5th Cir.) -- Appellee
    • The district court properly calculated the Guideline range and the defendants’ sentences are reasonable

     
    Document Date 
    Court of Appeals Decision [PDF], available at 287 Fed. Appx. 330 07/17/08
    Brief as Appellee [PDF] 01/07/08
  • United States v. Djoumessi (6th Cir.) - Appellee
    • The appellant is not entitled to equitable tolling
    • Appellant's 28 U.S.C. 2255 motion for vacation of his sentence is therefore time-barred
    • The government presented ample evidence that the defendant coerced his victim to provide labor through the use and threats of physical injury and abuse of law or legal process
    • The defendant’s federal prosecution did not violate the Fifth Amendment’s prohibition on double jeopardy

     
    Document Date 
    Court of Appeals Decision [PDF] (unpublished), 434 F. App'x 535 09/15/11
    Brief as Appellee [PDF] 04/01/11
    Court of Appeals Decision [PDF] 8/20/08
    Brief as Appellee [PDF] 12/20/07
  • United States v. Kaufman (10th Cir.) -- Appellee
    • The district court did not violate defendants’ Confrontation Clause rights when it ordered defendants to avoid direct eye contact with the victim-witnesses
    • The district court did not commit plain error when it instructed the jury on the definition of labor and services as to counts 2, 3, and 5
    • There is sufficient evidence that defendants used the requisite compulsion under 18 U.S.C. 1584 to force Kevin and Jonathan to labor on the farm

     
    Document Date 
    Court of Appeals Decision [PDF], reported at 546 F. 3d 1242 11/12/08
    Brief as Appellee [PDF] 12/17/07
  • United States v. Carson, Hey, P. Jacquemain & R. Jacquemain (6th Cir.) -- Appellee/Cross-Appellant
    • The prosecutor’s comments during closing argument were not improper and do not warrant reversal
    • The district court’s instruction on 18 U.S.C. 242 comported with Graham v. Connor
    • The evidence was sufficient to support defendants’ convictions
    • The district court did not err in denying Hey’s request for an evidentiary hearing
    • Carson’s sentence is reasonable; Robert Jacquemain’s sentence is unreasonable
    • The district court failed to consider the applicable guideline range
    • The sentence of probation is substantively unreasonable

     
    Document Date 
    Court of Appeals Decision, reported at 560 F.3d 566 03/30/09
    Reply Brief as Appellee/Cross-Appellant [PDF] 10/19/07
    Brief as Appellee/Cross-Appellant [PDF] 08/20/07
  • United States v. Gonzalez (9th Cir.) -- Appellee
    • The district court did not abuse its discretion in admitting, as a prior consistent statement, sergeant Garza’s testimony concerning Cecilia Tirado’s account of the night she was raped by Gonzalez
    • The district court did not abuse its discretion in admitting Pamela Fields’ prior statements to sergeant Kagy and nurse McClung
    • Exclusion as irrelevant of testimony relating to the restraining order against Rory Fitzhugh did not violate Gonzalez’s right under the confrontation clause
    • The district court did not abuse its discretion in admitting evidence of two prior acts of sexual misconduct by Gonzalez
    • “Cumulative prejudice” does not warrant reversal

     
    Document Date 
    Court of Appeals Decision [PDF], reported at 533 F.3d 1057 07/18/08
    Brief as Appellee [PDF] 08/17/07
  • United States v. Hunt (11th Cir.) -- Appellee
    • The evidence was sufficient to support defendant’s conviction for violating 18 U.S.C. 1519
    • Defendant’s conduct is covered by 18 U.S.C. 1519
    • Defendant’s sentence is reasonable

     
    Document Date 
    Court of Appeals Decision [PDF], reported at 526 F.3d 739 05/05/08
    Brief as Appellee [PDF] 07/05/07
  • United States v. Conatser (6th Cir.) -- Appellee
    • The evidence was sufficient to support Conatser’s conviction
    • Marlowe’s sentence is constitutional
    • The district court did not err in applying the guideline for second degree murder
    • The defendants’ sentences are reasonable

     
    Document Date 
    Court of Appeals Decision [PDF] reported at 514 F.3d 508 02/04/08
    Brief as Appellee [PDF] 06/19/07
  • United States v. Chang (5th Cir.) -- Appellee
    • The district court's finding that Chang was a leader or organizer of an extensive criminal activity is not clearly erroneous
    • The district court did not clearly err in finding Chang eligible for the enhancement for vulnerable victims

     
    Document Date 
    Brief as Appellee [PDF] 05/04/07
    Court of Appeals Decision [PDF] (unpublished), 237 F. App'x 985 08/07/07
  • United States v. Udeozor (4th Cir.) -- Appellee
    • The district court did not abuse its discretion in admitting evidence regarding the co-conspirator’s sexual abuse of the victim
    • Admission of recorded conversations between a co-conspirator and the victim did not violate defendant’s Sixth Amendment rights
    • The district court’s use of special findings was proper defendant’s sentence was reasonable

     
    Document Date 
    Court of Appeals Decision [PDF], reported at 515 F.3d 260 02/01/08
    Brief as Appellee [PDF] 04/16/07
  • United States v. Aguilar (5th Cir.) -- Appellee
    • The district court’s 242 instruction properly followed Graham v. Connor
    • The district court did not constructively amend the indictment
    • The district court correctly instructed the jury with regard to the specific intent required by Count 1
    • The district court did not commit error when it gave the jury the definition of “corruptly” in 1512(b)(1) that Aguilar requested
    • The district court did not violate Aguilar’s Sixth Amendment rights or abuse its discretion in excluding evidence of Jimenez’s arrest record
    • The district court did not abuse its discretion when it excluded a photograph of Gilbert Garcia and testimony concerning the possibility of a firearm in the cadillac
    • The district court did not abuse its discretion when it replaced a juror, who disobeyed its instructions, with an alternate juror

     
    Document Date 
    Brief as Appellee [PDF] 04/11/07
    Court of Appeals Decision [PDF] (unpublished), 242 F. App'x 239 09/13/07
  • United States v. Miller (8th Cir.) -- Appellee
    • The evidence was more than sufficient to prove beyond a reasonable doubt that defendant-appellant Jody Miller violated inmate Climmie Jones’s Eighth Amendment rights
    • The district court did not abuse its discretion in admitting victim Terry O’Neil’s medical records into evidence
    • The district court did not abuse its discretion in admitting chief jailer Kaye Harris’s testimony about statements jailer Chris Mcfarlin made to her regarding his false report on the O’Neil incident

     
    Document Date 
    Brief as Appellee [PDF] 10/10/06
    Court of Appeals Decision [PDF], reported at 477 F.3d 644 02/23/07
  • United States v. Henderson (11th Cir.) -- Appellee
    • The district court was entitled to use the original presentence report at defendant’s resentencing
    • This decision not to grant a downward departure is committed to the district court’s unreviewable discretion

     
    Document Date 
    Brief as Appellee [PDF] 09/15/06
    Court of Appeals Decision [PDF] (unpublished), available at 211 Fed. Appx. 919 12/22/06
  • In re Grand Jury (4th Cir.) -- Appellant
    • The district court abused its discretion in quashing the grand jury subpoena

     
    Document Date 
    Brief as Appellant [Under Seal] 09/12/06
    Court of Appeals Decision [PDF], reported at 478 F.3d 581 02/22/07
  • United States v. LeMoure & Polito (1st Cir.) -- Appellee
    • The district court correctly allowed the charged violations of 18 U.S.C. 1503 in Counts Nine and Ten of the indictment to be decided by the jury
    • The evidence presented was sufficient to support Polito’s convictions under 18 U.S.C. 1512(b)(1)
    • The district court’s instructions to the jury on Section 1512(b)(1) did not constitute plain error
    • None of Polito’s convictions violate his double jeopardy rights
    • Admission of evidence of Lemoure’s conversation with Joseph Weddleton about invoking the Fifth Amendment was not plain error
    • In calculating a guideline sentence range the district court correctly concluded that Lemoure had obstructed an investigation which included allegations that he used a dangerous weapon

     
    Document Date 
    Brief as Appellee [PDF] 08/31/06
    Court of Appeals Decision [PDF], reported at 474 F.3d 37 01/29/07
  • United States v. Ruiz (5th Cir.) -- Appellee
    • Sufficient evidence supports the jury’s verdict
    • The district court did not abuse its discretion in instructing the jury on the elements of the offense

     
    Document Date 
    Brief as Appellee [PDF] 07/19/06
    Court of Appeals Decision [PDF] (unpublished), available at 213 Fed. Appx. 345 01/16/07
  • United States v. Haddock (9th Cir.) -- Appellee
    • Haddock’s appeal should be dismissed based on his knowing and voluntary waiver of appellate rights
    • The district court’s refusal to grant a downward departure based on alleged aberrant behavior is not reviewable, and was proper at any rate
    • The district court correctly applied the restraint-of-victim enhancement

     
    Document Date 
    Brief as Appellee [PDF] 07/18/06
    Court of Appeals Decision (unpublished), 202 F. App'x 969 10/23/06
  • United States v. Budd (6th Cir.) -- Appellee
    • The district court did not plainly err in instructing the jury on Count 1
    • The district court did not constructively amend Count 2 of the indictment by instructing the jury at the second trial on Pinkerton liability and conspiracy law
    • The district court did not constructively amend the indictment by using an Eighth Amendment standard in instructing the jury on Count 3
    • The district court did not plainly err in instructing the jury on the Fourteenth Amendment standard applicable to uses of force against pretrial detainees
    • The evidence was sufficient to prove that Budd’s use of force against pretrial detainee Stephen Blazo violated the due process clause of the Fourteenth Amendment
    • The evidence was sufficient to convict Budd on Count 3

     
    Document Date 
    Brief as Appellee [PDF] 07/13/06
    Court of Appeals Decision [PDF], reported at 496 F.3d 517 08/13/07
  • United States v. Lee (9th Cir.) -- Appellee
    • The district court did not err in denying defendant’s motion to dismiss the indictment
    • The district court did not abuse its discretion in denying defendant’s motion for a mistrial based on comments made during the government’s rebuttal argument
    • The district court was not required to refer to american samoan law when it instructed the jury
    • The district court was authorized to impose consecutive sentences pursuant to 18 U.S.C. 3584

     
    Document Date 
    Brief as Appellee [PDF] 05/31/06
    Court of Appeals Decision [PDF], reported at 472 F.3d 638 12/27/06
  • United States v. Picklo (11th Cir.) -- Appellee
    • There was sufficient evidence to prove that Picklo was acting under color of law when he robbed and shot Frausto
    • The government adduced sufficient evidence to prove the necessary interstate commerce nexus under the Hobbs Act
    • There was sufficient evidence to convict Picklo of attempting to kill Frausto in order to prevent him from reporting the robbery to federal officials

     
    Document Date 
    Brief as Appellee [PDF] 05/03/06
    Court of Appeals Decision [PDF] (unpublished), available at 190 Fed. Appx. 887 07/27/06
  • United States v. Hobbs (4th Cir.) -- Appellee
    • The evidence was sufficient to support the defendant’s convictions
    • The district court correctly denied defendant Kratzer’s motion for a new trial because the prosecutor’s closing argument did not implicate defendant Kratzer’s Fifth Amendment right not to testify
    • The district court correctly ruled that the prosecutor’s rebuttal closing argument did not warrant a new trial
    • The district court did not abuse its discretion in admitting Joshua Hancock’s testimony
    • The district court’s refusal to strike an alternate juror was not clearly erroneous

     
    Document Date 
    Brief as Appellee [PDF] 04/11/06
    Court of Appeals Decision [PDF] (unpublished), available at 190 Fed. Appx. 313 07/19/06
  • United States v. Jackson (9th Cir.) -- Appellee
    • Evidence was sufficient to support Jackson’s conviction
    • The district court did not abuse its discretion by denying Jackson’s motion for a new trial
    • Questioning and impeachment of defense witness Loerzel was not prosecutorial misconduct that materially affected the fairness of the trial
    • The district court correctly instructed the jury that the statutory term “knowingly” did not require Jackson to have knowledge that his conduct was illegal
    • The district court did not instruct the jury that it could consider matters beyond the scope of the indictment
    • The district court correctly applied an enhancement for abuse of a position of trust to Jackson’s sentence

     
    Document Date 
    Brief as Appellee [PDF] 03/27/06
    Court of Appeals Decision (unpublished), available at 186 Fed. Appx. 736 06/20/06
  • United States v. Norris (11th Cir.) -- Appellee
    • The district court's sentence was procedurally and substantively reasonable
    • The district court correctly determined that Norris should be detained pending his trial
    • Government presented abundant evidence that Norris coerced his victims into providing their labor through force, threats of force, and the imposition of real and imagined debts
    • District court’s giving of the Eleventh Circuit’s pattern Allen instruction was permissible and not coercive
    • Imposition of a life sentence on Norris is consistent with the statutes under which he was convicted, the Sentencing Guidelines, and the Constitution

     
    Document Date 
    Court of Appeals Decision, 453 F. App'x 861 (unpublished) 10/04/11
    Brief as Appellee 05/17/11
    Court of Appeals Decision, 358 F. App'x 60 (unpublished) 12/18/09
    Brief as Appellee 05/06/09
    Court of Appeals Decision, 188 F. App'x 822 (unpublished) 06/27/06
    Brief as Appellee 03/14/06
  • United States v. Simmons (5th Cir.) -- Appellee/Cross-Appellant
    • The evidence was sufficient to prove that Simmons sexually assaulted Robinson and that his conduct involved "aggravated sexual abuse"
    • The district court did not abuse its discretion in admitting the expert testimony of Dr. Louise Fitzgerald
    • The prosecutor's remark during closing argument that Robinson had been kidnapped is not reversible error
    • The district court did not abuse its discretion in admitting evidence that Simmons failed to log in the marijuana he seized from the victim the night of the rape
    • The district court did not abuse its discretion in admitting into evidence excerpts of Simmons' state trial testimony
    • The district court did not abuse its discretion by declining to advise the jury that Simmons had been acquitted in state court
    • The district court erred as a matter of law in refusing to impose a two-level enhancement under Sentencing Guidelines § 2A3.1(b)(3)(A), which applies if the victim was "in the custody, care, or supervisory control of the defendant"
    • The sentence imposed was unreasonable in light of the egregiousness of the offense, Simmons' perjury, his lack of remorse, and the inadequacy of the district court's explanation for choosing a sentence so far below the Guidelines range
    • The district court erred as a matter of law in refusing to impose a two-level enhancement under Sentencing Guidelines § 2A3.1(B)(3)(A), which applies if the victim was "in the custody, care, or supervisory control of the defendant"
    • The sentence imposed was unreasonable under Booker

     
    Document Date 
    Brief as Appellee/Cross-Appellant [PDF] 02/01/06
    Reply Brief as Cross-Appellant [PDF] 03/27/06
    Court of Appeals Decision [PDF], reported at 470 F.3d 1115 11/21/06
  • United States v. Skinner (2d Cir.) -- Appellee
    • The evidence was sufficient to support the defendants' conviction
    • The indictment properly alleges violations of 18 U.S.C. 242
    • Count IX of the indictment does not subject Acosta to double jeopardy with respect to counts VI and VII
    • The district court properly instructed the jury regarding Acosta's liability under Pinkerton v. United States
    • The district court properly instructed the jury on the term "use" as it is used in 18 U.S.C. 242
    • A violation of 18 U.S.C. 242 through the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire is a crime of violence under 18 U.S.C. 924(c)(3)
    • The district court properly denied defendants' motions to dismiss count IX of the indictment
    • Defendants received a fair trial

     
    Document Date 
    Brief as Appellee [PDF] 01/17/06
    Court of Appeals Decision [PDF], reported at 470 F.3d 132 11/30/06
    Court of Appeals Order [PDF] (unpublished), available at 207 Fed. App’x 39 11/30/06
  • United States v. Perkins (4th Cir.) -- Appellee
    • The district court did not commit reversible error in admitting the lay and expert opinions of law enforcement officers on the reasonableness of defendant-appellant Perkins's use of force
    • The evidence viewed in the light most favorable to the government supports the jury's finding that defendant-appellant Perkins caused "bodily injury" to Koonce, and thus, Perkins's felony conviction for violating 18 U.S.C. 242

     
    Document Date 
    Brief as Appellee [PDF] 10/21/05
    Court of Appeals Decision [PDF], reported at 470 F.3d 150 11/29/06
  • United States v. Briston (3d Cir.) -- Appellee
    • The evidence was sufficient to prove that the property defendant embezzled, stole, or converted to his own use was "valued at $5,000 or more," as required by 18 U.S.C. 666
    • Funds that the department of justice provides to state and local law enforcement agencies under its equitable sharing program are "benefits" under 18 U.S.C. 666
    • Rankin borough received "benefits" under 18 U.S.C. 666(B) when federal block grants were used to pay for street, sewer, and playground projects requested by the borough
    • The district court did not err in instructing the jury that payments under the federal government's equitable sharing program are "benefits" for purposes of Section 666
    • The district court did not abuse its discretion fusing to allow the defense to present testimony concerning accusations of wrongdoing by Rankin Borough's mayor
    • The district court did not abuse its discretion in instructing the jury on Count 1

     
    Document Date 
    Brief as Appellee [PDF] 09/01/05
    Court of Appeals Decision [PDF] (unpublished), available at 192 Fed. Appx. 84 07/14/06
  • United States v. Byrne (1st Cir.) -- Appellee
    • The district court did not abuse its discretion by limiting cross-examination as to bias on the part of the police officers who testified for the government
    • The evidence was sufficient to support defendant's conviction on the witness tampering counts
    • Defendant's sentence was not plain error under Booker

     
    Document Date 
    Brief as Appellee [PDF] 06/02/05
    Court of Appeals Decision [PDF], reported at 435 F.3d 16 01/11/06
  • United States v. Gonzales, Gomez & Reyna (5th Cir.) -- Appellee
    • The district court properly refused to dismiss the indictment
    • The jury instructions on willfulness were not plain error
    • The evidence was sufficient to convict Gonzales of violating 18 U.S.C. 242 by willfully using excessive force against Carrera, resulting in his bodily injury
    • The evidence was sufficient to convict each defendant of willfully violating Carrera's due process rights by acting with deliberate indifference to his serious medical needs, thereby causing bodily injury
    • The admission of Carrera's out-of-court statements was not plain error
    • The indictment was not constructively amended, and, even if it had been, reversal would be unwarranted under plain-error review
    • The deportation of individuals arrested with Carrera did not violate Gonzales' Sixth Amendment rights, and, in any event, does not warrant reversal under a plain-error standard
    • Gonzales's Brady claims are not properly before this court
    • The allegations of prosecutorial misconduct are unfounded and, at any rate, do not warrant a new trial for Gonzales under a plain-error standard
    • Defendants have not demonstrated, under a plain-error standard, that they are entitled to resentencing under Booker or Blakely
    • The district court did not clearly err in finding that the offenses involved two or more participants under Section 2H1.1 of the Sentencing Guidelines
    • The district court did not clearly err in finding that Gonzales was an organizer, leader, manager, or supervisor under Guidelines § 3B1.1
    • The district court did not clearly err in finding that Carrera was a "vulnerable victim" under Guidelines § 3A1.1
    • The district court did not err in imposing a restraint-of-victim enhancement against Gonzales under Guidelines § 3A1.3
    • The district court did not clearly err in finding that Gonzales obstructed justice
    • Gonzales' remaining arguments are meritless

     
    Document Date 
    Brief as Appellee [PDF] 04/27/05
    Court of Appeals Decision [PDF], reported at 436 F.3d 560 01/17/06
  • United States v. LaVallee, Schultz, & Verbickas (10th Cir.) -- Appellee/Cross-Appellant
    • The jury instructions were not erroneous
    • Sufficient evidence supports Schultz's conviction
    • The district court did not commit reversible error in any of its evidentiary rulings
    • The district court did not plainly err by summarily denying the defendants' untimely and unsupported motion to disqualify a BOP attorney
    • The denial of Schultz's motions for new trial are not before this court in these appeals
    • This court should remand for resentencing under a correct application of the guidelines, or, in the alternative, affirm the sentences
    • Defendants bear the burden of showing the sentencing errors that the government identified were harmless
    • The government's cross appeal does not seek imposition of sentences in violation of United States v. Booker
    • The district court's application of the Guidelines was erroneous
    • The district court did not abuse its discretion when it denied Schultz's motion for new trial based on newly discovered evidence
    • The district court did not err in concluding that Schultz was not entitled to a new trial under Brady v. Maryland
    • Schultz's claims regarding prosecutorial misconduct were not made below and are therefore waived

     
    Document Date 
    Brief as Appellee/Cross-Appellant [PDF] 04/07/05
    Reply Brief as Appellee/Cross-Appellant [PDF] 06/22/05
    Brief as Appellee [PDF] 09/14/05
    Court of Appeals Decision [WPD], reported at 439 F.3d 670 02/28/06
    Petition for Rehearing Denied (Schultz) 04/19/06
  • Conley v. United States (1st Cir.) -- Appellant
    • This Court should reverse the district court's order granting relief pursuant to 28 U.S.C. 2255.
    • This court must review de novo the district court's materiality determination
    • The FBI memorandum is cumulative impeachment evidence that does not justify relief under Section 2255

     
    Document Date 
    Brief as Respondent-Appellant [PDF] 02/25/05
    Reply Brief [PDF] 04/29/05
    Court of Appeals Decision [PDF], reported at 415 F.3d 183 07/20/05
  • Skidmore v. United States (9th Cir.) -- Appellee
    • Blakely is not retroactively applicable to cases on collateral review

     
    Document Date 
    Brief as Appellee [PDF] 01/19/05
    Court of Appeals Decision, unpublished, 155 Fed. Appx. 313 12/12/05
  • United States v. Jones (6th Cir.) -- Appellee
    • The district court did not err in refusing to suppress the defendant's confession because the defendant was not in custody for Miranda purposes and because his statements were voluntary

     
    Document Date 
    Brief as Appellee [PDF] 09/13/04
    Court of Appeals Decision, unpublished 07/27/05
  • United States v. Henderson (11th Cir.) -- Appellee
    • The district court did not abuse its discretion in rulings regarding testimony by and about Jack Collins
    • The sheriff's removal from office for fraud was relevant
    • The district court did not abuse its discretion in barring polygraph testimony
    • The district court appropriately barred Henderson's proposed expert witness on police procedure
    • Grant's treating physician's opinion on the causation of Grant's injury is permissible under Federal Rule of Evidence 701
    • The exclusion of law enforcement officers from the grand and petit jury does not violate the Sixth Amendment
    • The Supreme Court's Blakely decision does not invalidate Henderson's sentence

     
    Document Date 
    Brief as Appellee [PDF] 09/16/04
    Court of Appeals Decision [PDF], reported at 409 F.3d 1293 05/23/05
  • United States v. Nichols (4th Cir.) -- Appellee
    • Nichols' conviction is supported by evidence sufficient for the jury to conclude that he participated in the attack
    • The district court's correctly refused to give a lesser-included offense instruction
    • Blakely provides no grounds for reducing or remanding Nichols' sentence

     
    Document Date 
    Brief as Appellee [PDF] 08/10/04
    Court of Appeals Decision [PDF], unpublished, 149 Fed. Appx. 149 09/14/05
  • United States v. Bailey (1st Cir.) -- Appellee
    • The alleged spillover effect of the conspiracy charge on which Bailey was acquitted did not deprive him of a fair trial on the other counts
    • The jury instruction on aiding and abetting was not plain error
    • The evidence was sufficient to prove that Nikolas Dais suffered bodily injury
    • 18 U.S.C. 1512(b)(3) does not require that a federal investigation be pending at the time of the defendant's misleading conduct
    • Bailey is not entitled to a new trial on the perjury count
    • The district court did not clearly err in finding that Nikolas Dais was a vulnerable victim
    • The Supreme Court's Blakely decision does not invalidate the Federal Sentencing Guidelines
    • Even if Blakely applied to the Federal Sentencing Guidelines, Bailey's sentence should be upheld under plain-error review
    • If this Court concludes that Blakely applies to the Guidelines and that Bailey's sentence cannot withstand plain-error review, this Court should remand for resentencing within the district court's traditional discretion
    • Bailey's sentence should be upheld under the plain error standard

     
    Document Date 
    Brief as Appellee [PDF] 07/16/04
    Supplemental Brief as Appellee Regarding Blakely [PDF] 08/23/04
    Supplemental Brief as Appellee Regarding Booker [PDF] 04/05/05
    Court of Appeals Decision [PDF], reported at 405 F.3d 102 05/03/05
  • United States v. Flowers (7th Cir.) -- Appellant
    • The district court erred in ordering that court records relating to defendant's conviction be expunged

     
    Document Date 
    Brief as Appellant (Under Seal) 06/28/04
    Reply Brief as Appellant (Under Seal) 08/03/04
    Court of Appeals Decision [PDF], reported at 389 F.3d 737 11/19/04
  • United States v. Bradley & O'Dell (1st Cir.) -- Appellee
    • The district court's jury instructions regarding Section 1589 were not plain error, nor did they mislead the jury or misstate the law
    • The district court did not abuse its discretion by admitting testimony regarding the defendants' mistreatment of Clarke and Wilson
    • The district court correctly applied the Sentencing Guidelines
    • The Supreme Court's Blakely decision does not invalidate Bradley's and O'Dell's sentences
    • If the Court concludes that Blakely does invalidate the defendants' sentences, the Court should remand for resentencing within the district court's traditional discretion
    • The defendants have not met their burden to show a reasonable probability that the district court would have sentenced them more leniently under advisory guidelines

     
    Document Date 
    Brief as Appellee [PDF] 06/14/04
    Supplemental Brief as Appellee Regarding Blakely [PDF] 08/04/04
    Court of Appeals Decision [PDF], reported at 390 F.3d 145 12/08/04
    Supplemental Brief as Appellee Regarding United States v. Booker [PDF] 09/06/05
    Court of Appeals Decision [PDF], reported at 426 F.3d 54 10/14/05
  • United States v. Hooks (11th Cir.) -- Appellee/Cross-Appellant
    • Hooks's use of force in this case was clearly unreasonable under the circumstances
    • This court should reject appellant's invitation to overturn United States v. Myers
    • The district court erred in calculating Hooks's sentence under the Guidelines
    • Hooks is ineligible for an adjustment based on acceptance of responsibility
    • The facts do not support a downward departure based on victim conduct
    • None of the additional factors relied upon by the district court supports a downward departure
    • The Supreme Court's Blakely decision has no effect on Hooks' sentence

     
    Document Date 
    Brief as Appellee/Cross-Appellant [PDF] 06/04/04
    Reply Brief as Appellee/Cross-Appellant [PDF] 07/20/04
    Supplemental Letter Brief [PDF] 03/24/05
    Court of Appeals Decision [PDF], unpublished, 132 Fed. Appx. 281 05/20/05
  • United States v. Maravilla & Dominguez (1st Cir.) -- Respondent
    • This court lacks jurisdiction over these appeals from the district court's order denying petitioners' renewed motion for bail
    • Assuming arguendo that this court has jurisdiction, the district court did not abuse its discretion in denying petitioners' third bail petition

     
    Document Date 
    Brief as Respondent [PDF] 05/20/04
    Court of Appeals decision, unpublished 10/06/04
  • United States v. Powers & Garcia (9th Cir.) -- Appellee
    • The introduction of excerpts from the October 2, 1995, interview did not violate Garcia's Fifth Amendment rights
    • The introduction of excerpts of Powers' state court testimony was not plain error as to Garcia
    • The admission of excerpts from Garcia's October 2 interview was not plain error as to Powers
    • Because 18 U.S.C. 241 does not require proof of an overt act, the United States was not required to prove that any of the overt acts listed in the indictment were committed within the limitations period
    • Hampton's remarks to Ebright were co-conspirator statements under Fed. R. Evid. 801 and thus their admission did not violate the Confrontation Clause
    • The disqualification of Powers' lawyers did not violate his rights under the Sixth Amendment or the Due Process Clause (this argument is contained in volume 2 of this brief, which is filed under seal.)

     
    Document Date 
    Brief as Appellee [PDF] 02/26/04
    Court of Appeals decision, unpublished 10/29/04
    Response to Second Petition for Rehearing [PDF] 02/18/05
  • United States v. Ferreira (7th Cir.) -- Appellee
    • Sufficient evidence supports Ferreira's conviction for causing a deprivation of rights under color of law

     
    Document Date 
    Brief as Appellee [PDF] 02/24/04
    Court of Appeals Decision, 105 F. App'x 198 (unpublished) 07/09/04
  • Ballinger v. United States (7th Cir.) -- Appellee
    • Petitioner has waived or procedurally defaulted all claims except ineffective assistance of counsel
    • Ballinger received effective assistance of counsel
    • Ballinger's conviction did not violate his due process rights

     
    Document Date 
    Brief as Appellee [PDF] 01/23/04
    Court of Appeals Decision [PDF], reported at 379 F.3d 427 08/11/04
  • United States v. Fuselier (5th Cir.) -- Appellee
    • Fuselier's status as the highest ranking Klan member present is sufficient to support the district court's four level enhancement for serving as a leader or organizer of a criminal activity involving five or more participants under Section 3B1.1 of the Sentencing Guidelines

     
    Document Date 
    Brief as Appellee [PDF] 01/20/04
    Court of Appeals Decision, 95 F. App'x 85 (unpublished) 04/20/04
  • United States v. Franklin (11th Cir.) -- Appellee
    • Section 247(c) is a valid exercise of Congress's authority under Section 2 of the Thirteenth Amendment
    • The court did not abuse its discretion in excluding testimony concerning defendant's mental condition
    • The district court did not abuse its discretion in denying defendant's motion to exclude defendant's recorded statements concerning his criminal mischief conviction
    • Defendant is not entitled to a new trial based upon the failure to transcribe defendant's taped confession

     
    Document Date 
    Brief as Appellee [PDF] 12/09/03
    Court of Appeals Decision, unpublished 04/30/04
  • United States v. Donnelly (1st Cir.) -- Appellee
    • The district court did not err in determining that Gibson was particularly susceptible to Donnelly's crime

     
    Document Date 
    Brief as Appellee [PDF] 11/14/03
    Court of Appeals Decision [PDF], reported at 370 F.3d 87 05/27/04
  • United States v. Brugman (5th Cir.) -- Appellee
    • The evidence was sufficient to support the defendant's conviction under 18 U.S.C. 242
    • The district court did not abuse its discretion in admitting evidence of another act committed by the defendant
    • The district court correctly calculated the defendant's sentence

     
    Document Date 
    Brief as Appellee [PDF] 11/13/03
    Court of Appeals Decision [PDF], reported at 364 F.3d 613 03/26/04
  • United States v. Sipe (5th Cir.) -- Appellant
    • The Department of Justice memorandum referring to Agent Cruce's "dislike" of Sipe does not constitute Brady information
    • The district court erred in considering, in its cumulative analysis under Brady, that the failure to produce criminal history data for witness Murillo warranted a new trial
    • The United States was not required to produce notes of an interview of Ms. Rodriguez because she was known to Sipe and her statement is not exculpatory
    • Additional evidence regarding financial and other benefits given to Mexican National witnesses is not material, individually or collectively, to warrant a new trial
    • The United States had no obligation to produce photographs taken at the crime scene two months after the assault
    • The withheld evidence, considered cumulatively, does not create a reasonable probability that the verdict would be different

     
    Document Date 
    Brief as Appellant [PDF] 11/04/03
    Court of Appeals Decision [PDF], reported at 388 F.3d 471 10/15/04
  • United States v. Fuller, Serrata & Lipscomb (10th Cir.) -- Appellee/Cross-Appellant
    • The evidence overwhelmingly supports defendants' convictions
    • The district court did not abuse its discretion by limiting cross-examination and excluding extrinsic evidence regarding certain underlying details of the victim's criminal convictions
    • The district court properly instructed the jury
    • The district court properly calculated the total offense levels for the sentence of each defendant
    • The district court relied on impermissible factors when it departed downward from the sentences prescribed by the Sentencing Guidelines

     
    Document Date 
    Brief as Appellee/Cross-Appellant [PDF] 10/29/03
    Reply Brief as Cross-Appellant [PDF] 03/05/04
    Supplemental Brief Regarding Blakely [PDF] 08/30/04
    Court of Appeals Decision [PDF], reported at 425 F.3d 886 10/06/05
  • United States v. Corum (8th Cir.) -- Appellee
    • The evidence was sufficient to establish violations of Section 844(e)
    • The application of Section 844(e) to defendant's conduct is within Congress's Commerce Power
    • The evidence was sufficient to establish the Interstate Commerce element of Section 247(a)
    • Section 247(a)(2) does not violate the Establishment Clause of the First Amendment

     
    Document Date 
    Brief as Appellee [PDF] 09/24/03
    Court of Appeals Decision [PDF], reported at 362 F.3d 489 04/05/04
  • United States v. May (4th Cir.) -- Appellant
    • The district court erred in concluding that defendant may deserved a downward departure for victim misconduct
    • The district court erred in granting defendant May a downward departure for aberrant behavior
    • The district court clearly erred in finding that defendant May accepted responsibility for his actions

     
    Document Date 
    Brief as Appellant [PDF] 09/04/03
    Reply Brief as Appellant [PDF] 11/10/03
    Court of Appeals decision [PDF], reported at 359 F.3d 683 03/04/04
  • United States v. Williams (5th Cir.) -- Appellee
    • A violation of 18 U.S.C. 242 and the use of excessive force are crimes of violence under 18 U.S.C. 924(c)(3)
    • The district court properly admitted lay opinion testimony by officers that Williams's shooting of Hall was not reasonable
    • The cross-examination of Williams does not constitute reversible error
    • The district court did not abuse its discretion in admitting evidence relevant to the victim's state of mind
    • The United States' redirect and rebuttal closing on co-defendant Barfield's plea agreement do not establish prosecutorial misconduct or improper vouching

     
    Document Date 
    Brief as Appellee [PDF] 05/09/03
    Court of Appeals decision [PDF], reported at 343 F.3d 423 08/14/03
  • United States v. Ramos (11th Cir.) -- Appellee
    • The prosecutor's opening statement was proper and does not warrant reversal
    • Defendants are not entitled to reversal of their convictions as a result of the Government's alleged failure to provide timely notice of its intent to introduce 404(b) evidence
    • Forfeiture that is primarily proceeds of defendants' crimes and constitutes an amount substantially less than the fine authorized by law and the sentencing guidelines is not excessive within the meaning of the eighth amendment
    • The district court did not vindictively sentence defendant when following an order to vacate and remand for resentencing, predicated on an intervening Supreme Court decision, it imposed a longer sentence than the erroneously calculated original sentence
    • The district court did not clearly err in finding that a pistol-whipping committed during and in furtherance of the counts of conviction is relevant conduct within the meaning Section 1B1.3 of the Federal Sentencing Guidelines
    • The record supports the district court's finding that the victim of the pistol-whipping sustained "permanent or life-threatening injury" since defendant placed his victim's life at risk and caused the permanent scars on his face
    • The district court correctly denied petitioner’s pro se motion filed pursuant to 2255, in which petitioner alleged that his appellate counsel was constitutionally ineffective for pursuing his appeal without advising him that he could receive a longer sentence than originally imposed

     
    Document Date 
    Court of Appeals Decision [PDF]. 12/08/08
    Brief as Appellee [PDF] 04/22/08
    Brief as Appellee [PDF] 05/05/03
    Court of Appeals decision, 301 F. App'x 902 (unpublished) 09/26/03
    Brief as Appellee [PDF] 09/22/04
    Brief as Appellee [PDF] 10/29/04
    Court of Appeals Decision [PDF], 130 F. App'x 415 (unpublished) 05/05/05
  • United States v. Allen (9th Cir.) -- Appellee
    • There was sufficient evidence to prove violations of 18 U.S.C. 241 and 245(b)(2)(b) and the statutes are constitutional
    • The district court did not abuse its discretion in admitting certain "skinhead evidence"
    • The evidence was sufficient to support the convictions of Flom under 18 U.S.C. 241 (Conspiracy) and Allen and Dixon under 18 U.S.C. 2 (Aiding and Abetting)
    • The district court did not abuse its discretion in denying Potter's motion for a mistrial
    • The district court did not err in calculating the sentences of Allen, Dixon, and Skidmore

     
    Document Date 
    Brief as Appellee [PDF] 02/06/03
    Court of Appeals Decision [PDF], reported at 341 F.3d 870 08/26/03
  • United States v. White (7th Cir.) -- Appellee
    • Officer White acted under color of law when he assaulted Brenda Pryor
    • The district court did not abuse its discretion by admitting evidence of a prior assault by White pursuant to Fed. R. Evid. 404(b)
    • The district court did not abuse its discretion in allowing redirect examination on the context of White's interview by the FBI

     
    Document Date 
    Brief as Appellee [PDF] 01/22/03
    Court of Appeals Decision, 68 F. App'x 707 (unpublished) 05/29/03
  • Wiegand v. United States (6th Cir.) -- Appellee
    • The district court erred in ruling that Wiegand’s challenge to his conviction on count 3 was untimely

     
    Document Date 
    Brief as Appellee [PDF] 01/31/03
    Court of Appeals Decision, reported at 380 F.3d 890 08/19/04
  • United States v. Manns (6th Cir.) -- Appellee
    • Manns and Lewis demonstrated the malice aforethought required to support second degree murder as the underlying offense for their Section 242 convictions
    • The district court properly denied McDougle's pretrial motions to dismiss the indictments
    • The district court properly denied McDougle's motion for acquittal and did ot abuse its discretion in denying the request for a new trial

     
    Document Date 
    Brief as Appellee [PDF] 01/03/03
    Court of Appeals Decision, 82 F. App'x 153 (unpublished) 11/13/03
  • United States v. Gasanova (5th Cir.) -- Appellee
    • The district court correctly instructed the jury that Visas obtained based on fraudulent representations do not give "official authorization" to enter or remain in the United States under 8 U.S.C. 1324(a)(2)(b)
    • The district court did not abuse its discretion in declining to conduct voir dire regarding a news article that reported testimony at trial
    • The district court appropriately barred cross-examination that would elicit prejudicial testimony that had no probative value
    • The district court appropriately determined items subject to criminal forfeiture based on the preponderance of the evidence
    • Ample evidence supported the Gasanovs' sentence for conspiracy to violate the human trafficking laws

     
    Document Date 
    Brief as Appellee [PDF] 12/20/02
    Court of Appeals Decision [PDF], reported at 332 F.3d 297 05/22/03
  • United States v. Christian (7th Cir.) -- Appellee
    • Codefendants’ guilty pleas to lesser included misdemeanor violations of 18 U.S.C. 242 do not bar the government from presenting evidence and convicting defendant of a felonious violation of 18 U.S.C. 242
    • District court did not abused its discretion in refusing to allow defendant’s expert to characterize the severity of the victim’s injuries
    • Evidence is sufficient to establish that defendant acted under color of law.

     
    Document Date 
    Brief as Appellee [PDF] 11/25/02
    Court of Appeals decision [PDF], reported at 342 F.3d 744 08/19/03
  • United States v. Mohr (4th Cir.) -- Appellee
    • District Court did not abuse its discretion in admitting the limited 404(b) evidence in this case
    • District Court did not commit plain error or abuse of discretion in admitting the testimony of Dennis Bonn on redirect examination
    • District Court did not abuse its discretion or commit plain error in admitting the expert testimony of Dr. James Fyfe as rebuttal evidence

     
    Document Date 
    Brief as Appellee [PDF] 08/12/02
    Court of Appeals Decision [PDF], reported at 318 F.3d 613 02/03/03
  • United States v. Jackson (8th Cir.) -- Appellee
    • Court acted well within its discretion in permitting the prosecutor to cross-examine defendant on facts surrounding defendant's prior conviction

     
    Document Date 
    Brief as Appellee [PDF] 07/31/02
    Court of Appeals decision [PDF], reported at 310 F.3d 1053 11/18/02
  • United States v. Tecum (11th Cir.) -- Appellee
    • Defendant received adequate translation services during trial
    • Court properly admitted into evidence documentation regarding the defendant's arrival in the U.S.
    • Defendant was properly restrained by U.S. Marshals when he threatened a witness during the trial
    • Defendant was provided effective assistance of counsel

     
    Document Date 
    Brief as Appellee [PDF] 05/24/02
    Court of Appeals decision (unpublished), 48 F. App'x 739 08/28/02
  • United States v. Bates (3d Cir.) -- Appellee
    • District court did not err in refusing to sever trial of multiple defendants
    • Alleged prosecutorial misconduct is not a basis for reversal of convictions in this case
    • Evidence was sufficient to support convictions of police officers accused of violating citizens' civil rights

     
    Document Date 
    Brief as Appellee [PDF] 03/19/02
    Court of Appeals decision (unpublished), 46 F. App'x 104 06/12/02
  • United States v. Lee (11th Cir.) -- Appellee
    • District court properly referred to Sentencing Guideline for underlying offense in applying Guideline for civil rights offense
    • Government's recommendation that court apply Guideline for underlying defense did not violate plea agreement

     
    Document Date 
    Brief as Appellee [PDF] 03/15/02
    Court of Appeals decision (unpublished), 37 Fed. Appx. 500 05/06/02
  • United States v. Kennard (9th Cir.) -- Appellee
    • Defendant who pleaded guilty and agreed not to appeal his sentence cannot appeal his sentence on the grounds that the plea was involuntary
    • Defendant's plea agreement was voluntary

     
    Document Date 
    Brief as Appellee [PDF] 02/28/02
    Court of Appeals decision, unpublished, 46 Fed. Appx. 426 08/29/02
  • United States v. Howell (10th Cir.) -- Appellee
    • Judge did not error in refusing to require disclosure of nature of the felonies committed by a Government witness
    • prosecutors did not engage in misconduct
    • Judge did not error in admitting evidence that Howell attacked an inmate
    • Judge properly admitted inmate grievance form into evidence
    • Judge gave a proper Allen charge to the jury
    • The cumulative effect of the claimed errors does not warrant reversal
    • Judge properly denied request for a new trial based on new evidence

     
    Document Date 
    Brief as Appellee [HTML] [PDF] 10/22/01
    Court of Appeals decision[HTML], reported at 285 F.3d 1263 04/05/02
  • United States v. Vangates (11th Cir.) -- Appellee
    • Statements made by Defendant in prior civil case were not inadmissible compelled statements for Fifth Amendment purposes

     
    Document Date 
    Brief as Appellee [PDF] 10/04/01
    Court of Appeals decision [HTML], reported at 287 F.3d 1315 04/07/02
  • United States v. Kwon (9th Cir.) -- Appellee
    • Court of Appeals should dismiss appeal because Defendants waived their right to appeal the issues they are raising
    • Case decided after sentencing in this case does not apply to Defendants because they waived their right to appeal sentencing

     
    Document Date 
    Brief as Appellee [PDF] 10/04/01
    Court of Appeals decision, unpublished, 41 Fed. Appx. 69 07/02/02
  • United States v. Rathburn (4th Cir.) -- Appellee/cross-appellant
    • Judge did not commit plain error in failing to instruct jury to disregard evidence regarding dismissed count
    • District court erred in refusing to give upward sentencing adjustment for obstruction of justice
    • District court erred in giving defendant downward departure because he was a police officer and police officers may be subject to abuse in prison

     
    Document Date 
    Brief as Appellee/Cross-Appellant [HTML] [PDF] 08/08/01
    Case Dismissed 09/06/01
  • United States v. Geston (9th Cir.) -- Appellee/cross-appellant
    • The Government did not knowingly use false testimony against the defendant police officer in excessive force case
    • The Government's cross-examination of certain witnesses is not a basis for reversal
    • The district court did not err in refusing to allow the defendant to cross-examine the victim about prior, unrelated fights the victims had been in with a hotel security gaurd and fellow Navy sailor
    • The district court misapplied the Sentencing Guidelines by refusing to increase the defendant's sentence based on the facts that the defendant was acting under color of law and abusing his capacity as a pubic official

     
    Document Date 
    Brief as Appellee/Cross-Appellant [HTML] [PDF] 07/31/01
    Reply Brief [PDF] 09/21/01
    Court of Appeals decision [PDF], reported at 299 F.3d 1130 08/13/02
  • United States v. Daniels (5th Cir.) -- Appellee
    • The compelled statements of one of the defendants were not used against him at trial in violation of Garrity v. New Jersey
    • The district court did not err in refusing to recuse the prosecution team or sever defendants' trials
    • The court's supplemental jury instructions were proper
    • There as sufficient evidence to support convicting defendants of viciously beating a handcuffed inmate in violation of the Eighth Amendment

     
    Document Date 
    Brief as Appellee [HTML] [PDF] 06/18/01
    Court of Appeals decision [PDF], reported at 281 F.3d 168 01/23/02
  • United States v. Harris (5th Cir.) -- Appellee/cross-appellant
    • There was sufficient evidence to convict the defendant, a county sherrif, of beating a handcuffed suspect with his baton when the suspect refused to calm down in the back of a police car
    • The district court erred in reducing the defendant's sentence to less than 15% of the length of imprisonment set forth in the Sentencing Guidelines, based on the court's conclusion that the victim's misbehavior contributed to the incident

     
    Document Date 
    Brief as Appellee/Cross-Appellant [HTML] [PDF] 04/04/01
    Court of Appeals decision [PDF], reported at 293 F.3d 863 06/11/02
  • United States v. Rowe (4th Cir.) -- Appellee
    • Fire-bombing of two automobiles falls within scope of 18 U.S.C. 844(i), which prohibits arson of real or personal property used in interstate commerce or in any activity affecting interstate commerce

     
    Document Date 
    Brief as Appellee [HTML]  [PDF] 12/06/00
    Court of Appeals decision [HTML]  [PDF], unpublished 07/05/01
  • United States v. Brown & Troxel (7th Cir.) -- Appellee
    • Police officers properly convicted under 18 U.S.C. 242 for use of excessive force by persons acting under color of law

     
    Document Date 
    Brief as Appellee [HTML] 11/02/00
    Court of Appeals decision [HTML], reported at 250 F.3d 580 05/16/01
  • United States v. Vartanian (6th Cir.) -- Appellee
    • Evidence was sufficient to sustain conviction under 42 U.S.C. 3631(a) for threatening African-American couple through their real estate agents

     
    Document Date 
    Brief as Appellee [HTML]  [PDF] 09/11/00
    Court of Appeals Decision [PDF], reported at 245 F.3d 609 03/30/01
  • United States v. Grassie (10th Cir.) -- Appellee
    • Arson of a church falls within scope of 18 U.S.C. 844(i), which prohibits arson of real or personal property used in interstate commerce or in any activity affecting interstate commerce, and the Hobbs Act

     
    Document Date 
    Brief as Appellee [HTML] [PDF] 09/08/00
    Court of Appeals decision [HTML], reported at 237 F.3d 1199 01/19/01
  • United States v. Odom (11th Cir.) -- Appellee
    • Arson of a church falls within scope of 18 U.S.C. 844(i), which prohibits arson of real or personal property used in interstate commerce or in any activity affecting interstate commerce

     
    Document Date 
    Brief as Appellee [HTML]  [PDF] 08/11/00
    Court of Appeals decision[HTML], reported at 252 F.3d 1289 05/31/01
  • United States v. Magleby (10th Cir.) -- Appellee
    • Evidence was sufficient to sustain conviction under 42 U.S.C. 3631(a) for burning a cross in front of home of African-American family

     
    Document Date 
    Brief as Appellee [HTML] 08/01/00
    Court of Appeals decision [HTML], reported at 241 F.3d 1306 03/07/01
  • United States v. Mungia (5th Cir.) -- Appellee
    • Requirement of 18 U.S.C. 245(a)(1) that the Attorney General certify in writing that in his judgment prosecution "is in the public interest and necessary to secure substantial justice" does not require certification to be filed with court

     
    Document Date 
    Brief as Appellee [HTML]  [PDF] 07/26/00
    Court of Appeals decision, unpublished 11/30/00
  • United States v. Downen (9th Cir.) -- Appellee
    • Evidence was sufficient to sustain convictions under 18 U.S.C. 241, 371 and 1001 for assaulting Mexican-American family because they moved into apartment and lying about incident

     
    Document Date 
    Brief as Appellee [HTML]  [PDF] 03/13/00
    Court of Appeals decision, unpublished 06/15/00
  • United States v. Whitney (10th Cir.) -- Appellee
    • Evidence was sufficient to sustain conviction under 18 U.S.C. 241 and 42 U.S.C. 3631 for burning a cross in front of home of African-American family

     
    Document Date 
    Brief as Appellee [HTML] [PDF]* 02/23/00
    Court of Appeals decision [HTML], reported at 229 F.3d 1296 10/11/00
    * Note: this brief has been redacted consistent with the provisions of Victims' Protection and Rights Act regarding child witnesses, 18 U.S.C. 3509
  • United States v. Lanier (6th Cir.) -- Appellee
    • Fugitive disentitlement doctrine bars defendant raising claims that were raised in proceedings terminated due to his flight
    • The district court properly dismissed Lanier's application for habeas corpus, pursuant to 28 U.S.C. 2241, because he failed to demonstrate that he was eligible to invoke that remedy

     
    Document Date 
    Brief as Appellee [HTML]  [PDF] 10/12/99
    Court of Appeals decision, unpublished 11/06/00
    Opposition to Petition for Certiorari 05/09/01
    Petition for Certiorari denied 06/11/01
    Brief as Respondent-Appellee [PDF] 05/09/05
    Unpublished Court of Appeals Order 09/14/05


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