The Appellate division of the U.S. Attorney’s Office has several arguments at the U.S. Court of Appeals for the Tenth Circuit this week.
Monday: US v. Ford (07-1176), at 2PM at the CU Law School in Boulder. The issue is whether three emails not produced by the government in discovery were cumulative, did not affect the outcome of the trial, and thus were not material under Brady v. Maryland.
Palmer v. Kempthorne (05-1075) at 1 PM back in Denver in Courtroom II. The case presents several issues: (1) was Palmer's request to rescind a 1996 settlement agreement moot, because he withdrew the request in his objection to the magistrate's recommendation; (2) Did the Court of Federal Claims have exclusive subject matter jurisdiction pursuant to the Tucker Act over his request to rescind the settlement agreement; (3) is the complaint barred by sovereign immunity; (4) did he fail to state a claim; (5) did the district court correctly dismiss the case under the doctrine of laches; and (6) did the plaintiff waive argument as to whether the settlement agreement complied with the Older Workers Benefit Protection Act (OWBPA), or alternatively, did the settlement agreement comply with the OWBPA, and did he fail to timely raise this issue?
Tuesday: US v. Sergio Zapata (06-1542) and US v. Jaime Zapata (07-1001) at 9 AM in Courtroom IV. The issues include (1) did the district court abuse its discretion in denying motions to suppress the wiretap evidence where it found that the government adequately demonstrated “necessity” for its wiretaps; (2) did the district court abuse its discretion in denying motions for severance where the district court found that any possible risk of spillover or disparate evidence was speculative and inadequate as a matter of law and where appropriate limiting instructions were given to the jury; (3) if reviewed at all, did plain error occur with respect to certain jury instructions now challenged on appeal where they affirmatively agreed with the giving of these instructions at trial; (4) does the extensive testimony of Carlos Zapata and Fabian Miranda-Urbina as to Jaime’s involvement in this cocaine conspiracy, in addition to surveillance evidence which corroborated that testimony, provide sufficient evidence to sustain Jaime’s conviction; (5) with respect to defendants’ challenges to their sentences, did the district court commit clear error in calculating the drug quantity attributable to this conspiracy, properly deny defendants’ unwarranted sentencing disparity arguments, and properly consider Jaime’s remaining arguments pertaining to additional sentencing factors under 18 U.S.C. § 3553(a)?
US v. Sutton (07-1223), a sentencing appeal from an odometer fraud case. The issue is whether it was clearly erroneous for the district court to find that the average intended loss per victim was approximately 40% of the price victims paid for the rolled-back vehicles. In any fraud case, the sentencing range under the Guidelines is based in large part on a reasonable approximation of the loss suffered by victims. The touchstone in determining fraud loss is fair market value: the value of what the victim paid vs. the value of what the victim received in return.
Wednesday: LaBrecque v. US (07-1288), at 9 AM in Courtroom IV. The issues are (1) whether the federal tort claims are barred by the discretionary function exception of 28 USC sec. 2680(a); and (2) whether the claims are barred by the interference with contract rights exception of 28 USC sec. 2680(h).
Thursday: US v. Bowen (07-1216), at 9 AM in Courtroom III. The issues are (1) whether, for purposes of 18 U.S.C. § 924 (c)(1)(A)(ii), the evidence was sufficient to prove that defendant aided and abetted Joshua Hall’s possession and brandishing of a firearm in furtherance of a crime of violence, and whether, as a co-conspirator, defendant could reasonably have foreseen Hall’s possession and brandishing of a firearm in furtherance of the conspiracy; (2) whether the district court erred when it found that the evidence established that Hall had, within the definition in 18 U.S.C. § 924(c)(4), brandished a firearm during the commission of the offenses of which defendant and Hall were convicted, which in turn triggered imposition of a mandatory minimum 7-year sentence; and (3) whether the court should remand with directions to amend the judgment to conform to the sentence that was imposed orally.
US v. Garcia-Zambrano (07-1261). The issues are (1) whether the district court erred in determining that the affidavit in support of the application for a warrant to search the defendant's apartment contained reckless misrepresentations of fact; (2) whether, after the excision of any reckless misstatements in the search warrant affidavit, the remainder of the affidavit supplied probable cause for the issuance of the search warrant.
US v. Creighton (07-1351), a government appeal arising out of a suppression order. The issue is to what extent probable cause relating to an alleged hostage situation dissipates once the alleged victim and perpetrator are both taken into custody, such that any subsequent consent to search is rendered invalid. U.S. Attorney Troy Eid is personally arguing this case.
US v. Bedford (07-1236). The issues are (1) whether the district court correctly instructed the jury; (2) whether the superseding indictment was sufficient; (3) whether the indictment was constructively amended; and (4) whether the district court abused its discretion in admitting the testimony of the government’s tax calculation expert.
With the exception of the first listed argument, all arguments will take place at the 10th Circuit Court of Appeals, located at 1823 Stout Street.
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