Federal Convictions Reversed-2008

The following is a publication of the Office of the Federal Public Defender for the Northern District of

New York. The cases are from United States Courts of Appeal and the United States Supreme Court. The

opinions contain at least one point favorable to criminal defendants.

The purpose is to give CJA Panel Attorneys a shortcut to case law favoring their clients. All cases

should be researched to see if they are still viable. A precedent in one jurisdiction is not necessarily the law

elsewhere. None of the cases should be cited without first reviewing the entire opinion. This warning is

especially for prisoners and defendants who wish to rely on the cases herein. A one-line summary cannot

possibly be sufficient to cite these cases without first reading each.

These materials may be duplicated for any lawyer providing legal services to indigent defendants.

Duplication is encouraged. These materials may be reprinted by other free publications or free on-line

providers serving the criminal defense bar. Attribution to this office is requested.

This collection has previously existed as Reversible Errors and Errores Juris. The new name reflects

that coverage is now limited to errors overturning federal criminal convictions, not sentences, nor are other

aspects of the criminal justice system addressed. There are two reasons. First, it has been difficult to update

so many areas of law on a regular basis. Second, federal sentencing law has changed drastically in recent years

and it will take time to determine the common bases for reversal among federal jurisdictions.

 

Updates can be found at

www.nynd-fpd.org

The publications will be distributed by e-mail in

Acrobat 8.0. Those who need an Acrobat reader can download one free at

www.adobe.com

Updated 12/08

 

Alexander Bunin, Editor, Federal Public Defender, 39 North Pearl Street, 5

Floor, Albany, NY 12207

alex.bunin@fd.org.

TABLE OF CONTENTS

Right to Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Search of Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Search of Private Vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Search of Commercial Vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Search of Packages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Search of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Defendant’s Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Limitation of Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Pretrial Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Severance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Mental Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Jeopardy / Estoppel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Plea Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Guilty Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Timely Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Jury Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Closure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Confrontation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Impeachment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Co-Defendant’s Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Extraneous Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Expert Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Deliberations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Speech / Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Interstate Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Extortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Drugs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CCE / RICO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Fraud / Theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Money Laundering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Aiding and Abetting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

False Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Violent Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Assimilative Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Miscellaneous Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Ineffective Assistance of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

 

Federal Convictions Reversed

 

Right to Counsel

 

United States v. Cash, 47 F.3d 1083

(11th Cir. 1995) (Defendant could not

waive counsel without proper findings

by court).

United States v. McKinley, 58 F.3d 1475

(10th Cir. 1995) (Court improperly

denied defendant self-representation).

United States v. McDermott, 64 F.3d

1448 (10th Cir.), cert. denied, 516 U.S.

1121 (1996) (Barring defendant from

sidebars with stand-by counsel denied

self-representation).

United States v. Goldberg, 67 F.3d 1092

(3rd Cir. 1995) (Defendant did not forfeit

counsel by threatening his appointed

attorney).

United States v. Duarte-Higareda, 68

F.3d 369 (9th Cir. 1995) (Court failed to

appoint counsel for evidentiary hearing).

Delguidice v. Singletary, 84 F.3d 1359

(11th Cir. 1996) (Psychological testing of

a defendant without notice to counsel

violated the Sixth Amendment).

Williams v. Turpin, 87 F.3d 1204 (11th

Cir. 1996) (State that created a statutory

right to a motion for new trial must

afford counsel and an evidentiary

hearing).

United States v. Ming He, 94 F.3d 782

(2d Cir. 1996) (Cooperating defendant

had the right to have counsel present

when attending a presentence

debriefing).

Weeks v. Jones, 100 F.3d 124 (11th Cir.

1996) (Right to counsel in a habeas claim

did not turn on the merits of the

petition).

United States v. Keen, 104 F.3d 1111

(9th Cir. 1996) (Court did not sufficiently

explain to a defendant the dangers of pro

se representation).

Carlo v. Chino, 105 F.3d 493 (9th Cir.),

cert. denied, 523 U.S. 1036 (1998) (State

statutory right to post-booking phone

calls was protected by federal due

process).

United States v. Amlani, 111 F.3d 705

(9th Cir. 1997) (Prosecutor’s repeated

disparagement of an attorney in front of his

client, denied the defendant his right to

chosen counsel).

United States v. Taylor, 113 F.3d 1136 (10th

Cir.), cert. denied, 528 U.S. 904 (1999)

(Court did not assure a proper waiver of

counsel).

Blankenship v. Johnson, 118 F.3d 312 (5th

Cir. 1997) (When the prosecution sought

discretionary review, the defendant had a

right to counsel).

United States v. Mills, 138 F.3d 928 (11th

Cir.), modified, 152 F.3d 937, cert. denied,

525 U.S. 1003 (1998) (Defendant could not

be made to share codefendant counsel’s

cross-examination of government witness).

United States v. Pollani, 146 F.3d 269 (5th

Cir. 1998) (Pro se defendant’s late request

for counsel should have been honored).

Henderson v. Frank, 155 F.3d 159 (3rd Cir.

1998) (Defendant was denied counsel at

suppression hearing).

United States v. Klat, 156 F.3d 1258 (D.C.

Cir. 1999) (Counsel was required at

competency hearing).

United States v. Iasiello, 166 F.3d 212 (3rd

Cir. 1999) (Indigent defendant had right to

appointed counsel at hearing).

United States v. Proctor, 166 F.3d 396 (1st

Cir. 1999) (Ambiguous request for counsel

tainted previous waiver).

United States v. Leon-Delfis, 203 F.3d 103

(1st Cir. 2000) (Questioning after polygraph

violated defendant’s right to counsel).

United States v. Hernandez, 203 F.3d 614

(9th Cir. 2000) (Defendant was denied selfrepresentation

at plea).

United States v. Russell, 205 F.3d 768 (5th

Cir. 2000) (Absence of lawyer due to illness

did not waive right to counsel).

United States v. Hayes, 231 F.3d 1132 (9th

Cir. 2000) (Defendant did not voluntarily

waive representation).

Buhl v. Cooksey, 233 F.3d 783 (3rd 2000)

(Defendant did not voluntarily waive

counsel at trial).

United States v. Boone, 245 F.3d 352 (4th

Cir. 2001) (Two attorneys must be appointed

for defendant facing death-eligible

crime).

United States v. Adelzo-Gonzalez, 268

F.3d 772 (9th Cir. 2001) (Court abused

discretion denying substitution of

counsel).

United States v. Davis, 269 F.3d 514

(5th Cir. 2001) (Judge must warn

defendant of effects of hybrid counsel).

Moore v. Puckett, 275 F.3d 685 (8th Cir.

2001) (Court prevented lawyer and

client from speaking during trial).

Manning v. Bowersox, 310 F.3d 571

(8th Cir. 2002) (Use of informants after

defendant was charged violated right to

counsel).

United States v. Midgett, 342 F.3d 321

(4th Cir. 2003) (Defendant should not

have been forced to choose between

right to lawyer and testifying in his own

defense).

Cordova v. Baca, 346 F.3d 924 (9th Cir.

2003) (Reversal for a denial of counsel,

without effective waiver, is automatic).

Caver v. Straub, 349 F.3d 340 (6th Cir.

2003) (Counsel was not present when

jury received additional instructions).

United States v. Erskine, 355 F.3d 1161

(9th Cir. 2004) (Defendant did not

knowingly and voluntarily waive

counsel).

Robinson v. Ignacio, 360 F.3d 1044 (9th

Cir. 2004) (There was a right to counsel

at sentencing even after previous

waiver).

United States v. Hamilton, 391 F.3d

1066 9th Cir. 2004) (Court allowed

testimony in absence of defense

counsel).

In Re: Grand Jury Subpoena, 419 F.3d

329 (5th Cir. 2005) (Court improperly

applied crime-fraud exception to

attorney-client privilege).

Jones v. Jamrog, 414 F.3d 585 (6th Cir.

2005) (Defendant not adequately

advised about self-representation).

United States v. Jones, 421 F.3d 359

(5th Cir. 2005) (Defendant did not

intelligently waive counsel at trial).

 

2

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Federal Convictions Reversed

 

United States v. Collins, 430 F.3d 1260

(10th Cir. 2005) (Defendant was denied

counsel at competency hearing when

lawyer refused to participate pending

motion to withdraw).

United States v. Tucker, 451 F.3d 1176

(10th Cir. 2006) (Request for selfrepresentation

should have been

granted).

United States v. Jones, 452 F.3d 223

(3rd Cir. 2006) (Defendant did not

unequivocally waive counsel).

United States v. Gonzalez-Lopez, 548

U.S. 140 (2006) (Denial of chosen

counsel was structural error).

United States v. Sandoval-Mendoza,

472F.3d 645 (9th Cir. 2006) (Court

prohibited discussion between defendant

and counsel during overnight recess).

Jones v. Walker, 496 F.3d 1216 (11th

Cir. 2007) (Defendant had not clearly

asserted waiver of counsel).

United States v. Ryals, 512 F.3d 416

(7th Cir. 2008) (Court erred by refusing

to appoint new counsel after attorney

withdrew).

United States v. Forrester, 512 F.3d 500

(9th Cir.), cert. denied, 129 S.Ct. 249

(2008) (Waiver of counsel was not

knowing and voluntary).

 

Discovery

 

United States v. Alzate, 47 F.3d 1103

(11th Cir. 1995) (A prosecutor withheld

exculpatory evidence).

United States v. Barnes, 49 F.3d 1144

(6th Cir. 1995) (Request for discovery of

extraneous evidence created a

continuing duty to disclose).

United States v. Boyd, 55 F.3d 239 (7th

Cir. 1995) (Government failed to disclose

drug use and drug dealing by prisonerwitnesses).

United States v. Hanna, 55 F.3d 1456

(9th Cir. 1995) (Prosecutor should have

learned of Brady material even if it was

not in her possession).

Kyles v. Whitley, 514 U.S. 419 (1995)

(Prosecution failed to turn over material

and favorable evidence, sufficient to

change result of case).

United States v. Wood, 57 F.3d 733 (9th Cir.

1995) (Government failed to disclose

favorable FDA materials).

United States v. Camargo-Vergara, 57 F.3d

993 (11th Cir. 1995) (Government failed to

disclose defendant’s post-arrest statement).

In Re Grand Jury Investigation, 59 F.3d 17

(2d Cir. 1995) (Court properly required

disclosure of documents subpoenaed by the

grand jury).

United States v. O’Conner, 64 F.3d 355 (8th

Cir.), cert. denied, 517 U.S. 1174 (1996)

(Evidence of government witness threats

and collaboration were not disclosed).

In Re Grand Jury, 111 F.3d 1083 (3rd Cir.

1997) (Government could not seek

disclosure of phone conversations that were

illegally recorded by a third party).

United States v. Arnold, 117 F.3d 1308

(11th Cir. 1997) (Prosecutor withheld

exculpatory tapes of government witnesses).

United States v. Vozzella, 124 F.3d 389 (2d

Cir. 1997) (Evidence of perjured testimony

should have been disclosed).

United States v. Fernandez, 136 F.3d 1434

(11th Cir. 1998) (Court must hold hearing

when defendant makes showing of a Brady

violation).

United States v. Mejia-Mesa, 153 F.3d 925

(9th Cir. 1998) (Brady claim required

hearing).

United States v. Scheer, 168 F.3d 445 (11th

Cir. 1999) (Government failed to disclose it

had intimidated key prosecution witness).

United States v. Ramos, 179 F.3d 1333

(11th Cir. 1999) (Defendant was denied

opportunity to depose witness who was

outside country).

United States v. Riley, 189 F.3d 802 (9th

Cir. 1999) (Intentional destruction of notes

of interview with informant violated Jencks

Act).

Nuckols v. Gibson, 233 F.3d 1261 (10th Cir.

2000) (Government failed to disclose

criminal allegations against key prosecution

witness).

United States v. Abbott, 241 F.3d 29 (1st

Cir. 2001) (Government was obligated to

disclose linkage between plea agreements of

defendant and his mother).

Mitchell v. Gibson, 262 F.3d 1036 (10th Cir.

2001) (Withholding exculpatory

evidence that could have affected

sentence).

Boss v. Pierce, 263 F.3d 734 (7th Cir.),

cert. denied, 535 U.S. 1078 (2002)

(Witness’s statement were unavailable

to defendant through due diligence).

Dilosa v. Cain, 279 F.3d 259 (5th Cir.

2002) (Failed to disclose hair sample on

victim that was not defendant).

Benn v. Lambert, 283 F.3d 1040 (9th

Cir), cert. denied, 537 U.S. 942 (2002)

(Prosecutor suppressed exculpatory

evidence affecting witness’s veracity).

Bailey v. Richardson, 339 F.3d 1107

(9th Cir. 2003) (Prosecutor should have

disclosed exculpatory therapy records of

victim).

In Re Grand Jury Subpoena (Torf), 357

F.3d 900 (9th Cir. 2004) (Work product

doctrine applied to criminal defendant’s

attorney).

United States v. Sipe, 388 F.3d 471 (5th

Cir. 2004) (Government failed to reveal

witness’s bias and criminal history).

Gantt v. Roe, 389 F.3d 908 (9th Cir.

2004) (Prosecutor failed to disclose

exculpatory evidence).

Banks v. Dretke, 540 U.S. 668 (2004)

(Defendant was denied exculpatory

evidence).

United States v. Alvarez, 358 F.3d 1194

(9th Cir), cert. denied, 543 U.S. 887

(2004) (Defendant entitled to

impeaching evidence if material).

United States v. Rivas, 377 F.3d 195 (2d

Cir. 2004) (Government failed to

provide exculpatory evidence until after

verdict).

United States v. Moussaoui, 382 F.3d

453 (4th Cir.), cert. denied, 544 U.S.

931 (2005) (Defendant may depose

witnesses who have material favorable

testimony when other access to

testimony is unavailable).

United States v. Blanco, 392 F.3d 382

(9th Cir. 2004) (Government suppressed

information about confidential

informant).

Slutzker v. Johnson, 393 F.3d 373 (3rd

Cir. 2004) (Prosecutor failed to disclose

police reports).

 

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Horton v. Mayle, 408 F.3d 570 (9th Cir.

20004) (Prosecutor failed to disclose deal

with key witness).

United States v. Bahamonde, 445 F.3d

1225 (9th Cir. 2006) (Homeland Security

regulation requiring written explanation

for subpoenaing officer violated due

process).

Youngblood v. West Virginia, 547 U.S.

867 (2006) (Suppression of victim’s note

alleging sex was consensual denied

defendant material exculpatory

evidence).

Trammell v. McKune, 485 F.3d 546

(10th Cir. 2007) (Suppression of receipts

which were material to show another

was implicated in theft and murder

violated Brady).

United States v. Jernigan, 492 F.3d 1050

(9th Cir. 2007) (Arrest of woman who

resembled defendant should have been

disclosed).

United States v. Rodriguez, 496 F.3d 221

(2d Cir. 2007) (Government must

produce all evidence establishing its

witness lied).

Tassin v. Cain, 517 F.3d 770 (5th Cir.

2008) (Prosecution failed to disclose

witness’s deal for leniency).

 

Arrest

 

United States v. Lambert, 46 F.3d 1064

(10th Cir. 1995) (Defendant was seized

while agents held his driver’s license for

over 20 minutes).

United States v. Little, 60 F.3d 708

(10th Cir. 1995) (Requiring a passenger

to go to the baggage area restrained her

liberty).

United States v. Mesa, 62 F.3d 159 (6th

Cir. 1995) (Nervousness and

inconsistencies did not validate

continued traffic stop).

United States v. Buchanon, 72 F.3d 1217

(6th Cir. 1995) (Defendants were seized

when the troopers separated them from

their vehicle).

United States v. Roberson, 90 F.3d 75

(3rd Cir. 1996) (Anonymous call did not

give officers reasonable suspicion to stop

a defendant on the street merely

because his clothes matched the caller’s

description).

United States v. Davis, 94 F.3d 1465 (10th

Cir. 1996) (No reasonable suspicion for stop

of a defendant known generally as a gang

member and drug dealer).

Washington v. Lambert, 98 F.3d 1181 (9th

Cir. 1996) (General description of two

African-American males did not justify

stop).

United States v. Jerez, 108 F.3d 684 (7th

Cir. 1997) (Nighttime confrontation by

police at the defendant’s door was a

seizure).

United States v. Miller, 146 F.3d 274 (5th

Cir. 1998) (Leaving turn signal on violated

no law and did not justify stop).

United States v. Jones, 149 F.3d 364 (5th

Cir. 1998) (Agent lacked reasonable

suspicion for investigatory immigration

stop).

United States v. Acosta-Colon, 157 F.3d 9

(1st Cir. 1999) (Defendant’s 30 minute

handcuffed detention, preventing him from

boarding flight, was not a lawful stop).

United States v. Salzano, 158 F.3d 1107

(10th Cir. 1999) (Cross country trip,

nervousness, nor scent of evergreen,

justified warrantless detention).

United States v. Dortch, 199 F.3d 193 (5th

Cir.), amended, 203 F.3d 883 (2000)

(Continued detention after traffic stop was

unreasonable).

United States v. Freeman, 209 F.3d 464 (6th

Cir. 2000) (Crossing lane-divider did not

create probable cause for traffic stop).

United States v. Thomas, 211 F.3d 1186

(9th Cir. 2000) (Tip did not provide

reasonable suspicion for stop).

United States v. Guevara-Martinez, 262

F.3d 751 (8th Cir. 2001) (Illegal arrest

tainted later fingerprint evidence).

Northrop v. Trippett, 265 F.3d 372 (6th

Cir.), cert. denied, 535 U.S. 955 (2002)

(Anonymous tip of two black males wearing

brand clothing and selling drugs did not

justify detention).

Sparing v. Village of Olympia Fields, 266

F.3d 684 (7th Cir. 2001) (Entering screen

door without consent caused an illegal

arrest).

Burchett v. Kiefer, 310 F.3d 937 (6th Cir.

2002) (Defendant detained for three hours

in police cruiser in 90-degree heat with no

ventilation was illegal seizure).

Ganwich v. Knapp, 319 F.3d 1115 (9th

Cir. 2003) (Detaining employees of

suspected organization was illegal).

United States v. Brown, 401 F.3d 588

(4th Cir. 2005) (Anonymous tip did not

amount to reasonable suspicion to

detain).

United States v. Flores-Sandoval, 422

F.3d 711 (8th Cir. 2005) (Lack of

evidence supporting initial detention

required suppression of statement).

United States v. Johnson, 427 F.3d

1053 (7th Cir. 2005) (There was no

basis to detain defendant at his home).

United States v. Lopez, 443 F.3d 1280

(10th Cir. 2006) (Stopping defendant for

identification was not a consensual

encounter).

United States v. Brown, 448 F.3d 239

(3rd Cir. 2006) (No reasonable suspicion

to detain pedestrians who shared only

the same race as robbery suspects).

United States v. Manzo-Jurado, 457

F.3d 928 (9th Cir. 2006) (Presence of

Hispanic work crew near Canadian

border did not amount to reasonable

suspicion).

United States v. Colonna, 511 F.3d 431

(4th Cir. 2007) (Defendant held in law

enforcement vehicle for three hours was

arrested and required warnings).

United States v. Tyler, 512 F.3d 405

(7th Cir. 2008) (Open container alone

was insufficient to arrest for public

intoxication).

 

Search of Persons

 

United States v. Caicedo, 85 F.3d 1184

(6th Cir. 1996) (Record lacked evidence

to support a finding of the defendant’s

consent to search).

United States v. Eustaquio, 198 F.3d

1068 (8th Cir. 1999) (No reasonable

suspicion to search bulge on defendant’s

midriff).

United States v. Gray, 213 F.3d 998

(8th Cir. 2000) (No reasonable suspicion

to stop defendant for protective frisk).

United States v. Burton, 228 F.3d 524

(4th Cir. 2000) (Officer’s safety alone

 

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Federal Convictions Reversed

 

did not justify search of pocket).

United States v. Miles, 247 F.3d 1009

(9th Cir. 2001) (Manipulating small box

in clothing exceeded pat-down search).

Fontana v. Haskin, 262 F.3d 871 (9th

Cir. 2001) (Claim of sexual harassment

by officer was allegation of illegal

search).

United States v. Hatcher, 275 F.3d 689

(8th Cir. 2001) (A second pat-down was

held illegal).

United States v. Casadao, 303 F.3d 440

(2d Cir. 2002) (Search of pocket was

overly intrusive).

United States v. Patterson, 340 F.3d 368

(6th Cir. 2003) (Anonymous tip offered

no reliable or meaningful information).

United States v. Neely, 345 F.3d 366

(5th Cir. 2003) (Defendant had

expectation of privacy in clothing taken

from hospital where he was patient).

Doe v. Little Rock School, 380 F.3d 349

(8th Cir. 2004) (Random, suspicion less

searches of students, violated privacy).

Bourgeois v. Peters, 387 F.3d 1303 (11th

Cir. 2004) Unreasonable to require

protesters to pass through metal

detectors).

United States v. Garcia-Beltran, 389

F.3d 864 (9th Cir.), cert. denied, 549

U.S. 935 (2006) (Fingerprints taken for a

criminal investigation may be subject to

suppression).

United States v. Sanders, 424 F.3d 768

(8th Cir. 2005) (Defendant withdrew his

consent).

United States v. McKoy, 428 F.3d 38 (1st

Cir. 2005) (Parking and license

violations did not justify pat down).

United States v. Flatter, 456 F.3d 1154

(9th Cir. 2006) (Officer had no reason to

believe defendant was armed or

dangerous for pat down).

United States v. Wright, 485 F.3d 45

(1st Cir. 2007) (Reasonable suspicion for

the pat down search cannot be justified

by discovery of weapon).

United States v. Washington, 490 F.3d

765 (9th Cir. 2007) (Initially consensual

encounter can become illegal seizure by

show of force).

United States v. Holmes, 505 F.3d 1288

(D.C. Cir. 2007) (Seizure of keys in pocket

exceeded pat down and rendered items in

locked car inadmissible).

United States v. Barnes, 506 F.3d 58 (1st

Cir. 2007) (Body cavity search required

reasonable suspicion contraband was

hidden).

United States v. Wilson, 506 F.3d 488 (6th

Cir. 2007) (Nervousness alone cannot justify

pat down).

 

Search of Private

Vehicles

 

United States v. Adams, 46 F.3d 1080 (11th

Cir. 1995) (Suppression of evidence seized

from motor home was upheld).

United States v. Chavis, 48 F.3d 871 (5th

Cir. 1995) (Court improperly placed the

burden on the defendant to show a

warrantless search occurred).

United States v. Angulo-Fernandez, 53 F.3d

1177 (10th Cir. 1995) (Confusion about who

owned a stalled vehicle did not create

probable cause for its search).

Ornelas v. United States, 517 U.S. 690

(1996) (Defendant’s motion to suppress

should be given de novo review by the court

of appeals).

United States v. Duguay, 93 F.3d 346 (7th

Cir.), cert. denied, 526 U.S. 1029 (1999) (Car

could not be impounded for a later search

unless the arrestee could not provide for its

removal).

United States v. Elliott, 107 F.3d 810 (10th

Cir. 1997) (Consent to look in trunk was not

consent to open containers within).

United States v. Chan-Jimenez, 125 F.3d

1324 (9th Cir. 1997) (Defendant did not

consent to search of truck).

United States v. Cooper, 133 F.3d 1394

(11th Cir. 1998) (Defendant had reasonable

expectation of privacy in rental car four

days after contract expired).

United States v. Beck, 140 F.3d 1129 (8th

Cir. 1998) (Continued detention of vehicle

was not justified by articuable facts).

United States v. Rodriguez-Rivas, 151 F.3d

377 (5th Cir. 1998) (Vehicle stop lacked

reasonable suspicion).

United States v. Huguenin, 154 F.3d

547 (6th Cir. 1998) (Checkpoint stop to

merely look for drugs was

unreasonable).

United States v. Rivas, 157 F.3d 364,

rehearing denied, 166 F.3d 747 (5th Cir.

1999) (1. Drilling into trailer was not

routine border search; 2. No evidence

that drug dog’s reaction was an alert).

United States v. Iron Cloud, 171 F.3d

587 (8th Cir. 1999) (Portable breath test

results were inadmissible as evidence of

intoxication).

Knowles v. Iowa, 525 U.S. 113 (1999)

(Speeding ticket does not justify full

search of vehicle).

United States v. Payne, 181 F.3d 781

(6th Cir. 1999) (Parole officer did not

have reasonable suspicion to search

defendant’s trailer and truck).

United States v. Lopez-Soto, 205 F.3d

1101 (9th Cir. 2000) (No good faith

mistake to warrantless car search).

United States v. Wald, 216 F.3d 1222

(10th Cir. 2000) (Odor of burnt

methamphetamine in passenger

compartment did not provide probable

cause to search trunk).

United States v. Baker, 221 F.3d 438

(3rd Cir. 2000) (No reasonable suspicion

to justify search of trunk).

United States v. Jones, 234 F.3d 234

(5th Cir. 2000) (Continued detention

tainted search despite initial consent).

United States v. Jones, 242 F.3d 215

(4th Cir. 2001) (Anonymous tip did not

justify investigatory stop of vehicle).

United States v. Reinholz, 245 F.3d 765

(8th Cir.), cert. denied, 534 U.S. 933

(2001) (Warrantless arrest lacked

probable cause).

United States v. Caro, 260 F.3d 1209

(10th Cir. 2001) (Officer needed

probable cause to look for VIN number

inside door).

United States v. Nee, 261 F.3d 79 (1st

Cir. 2001) (Suppression upheld when

officers were found not to be credible

about stop).

United States v. Smith, 263 F.3d571

(6th Cir. 2001) (No reasonable suspicion

for continued detention).

 

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Federal Convictions Reversed

 

United States v. Bishop, 264 F.3d 919

(9th Cir. 2001) (Admitting evidence from

illegal stop was not harmless).

United States v. Holt, 264 F.3d 1215

(10th Cir. 2001) (Questioning about

weapons exceeded stop).

United States v. Jones, 269 F.3d 919

(8th Cir. 2001) (Committing traffic

violation after seeing police did not

create probable cause to search vehicle).

United States v. Valdez, 267 F.3d 395

(5th Cir. 2001) (After computer check

completed motorist should have been

allowed to leave).

United States v. Gomez, 276 F.3d 694

(5th Cir. 2001) (Homeowner had

expectation of privacy to vehicle of third

party parked in driveway).

United States v. Chavez-Valenzuela, 279

F.3d 1062 (9th Cir. 2002) (Nervousness

alone did not justify continued

detention).

United States v. Sigmond-Ballesteros,

285 F.3d 1117, rehearing denied, 309

F.3d 545 (9th Cir. 2002) (Lacked

reasonable suspicion to search car for

undocumented aliens).

United States v. Mariscal, 285 F.3d 1127

(9th Cir. 2002) (No reasonable suspicion

of traffic violation).

United States v. Townsend, 305 F.3d

537 (6th Cir. 2002) (Actions of occupants

did not justify continued detention after

stop).

United States v. Colin, 314 F.3d 439 (9th

Cir. 2002) (No reasonable suspicion for

traffic stop).

United States v. Green, 324 F.3d 375

(5th Cir.), cert. denied, 540 U.S. 823

(2003) (Firearm suppressed when

defendant secured 25 feet from vehicle).

United States v. Golab, 325 F.3d 63 (1st

cir. 2003) (INS lacked reasonable

suspicion to search vehicle).

United States v. Hocker, 333 F.3d 1206

(10th Cir. 2003) (Driver of borrowed car

had standing to contest search of

vehicle).

United States v. Perkins, 348 F.3d 965

(11th Cir. 2003) (Detention exceeded

purpose of traffic stop).

United States v. Richardson, 385 F.3d 625

(6th Cir. 2004) (Seizure of vehicle lacked

reasonable suspicion).

United States v. Colletti, 387 F.3d 618 (7th

Cir. 2004) (Illegal arrest voided vehicle

search).

United States v. Hudson, 405 F.3d 425 (6th

Cir. 2005) (No reasonable suspicion to

detain vehicle).

United States v. Kennedy, 427 F.3d 1136

(8th Cir. 2005) (No probable cause to believe

drugs were in car trunk).

United States v. Buckingham, 433 F.3d 508

(6th Cir. 2006) (Defendant may withdraw

oral consent to search).

United States v. Edgerton, 438 F.3d 1043

(10th Cir. 2006) (Detention after purpose for

stop ended was illegal and tainted consent

to search).

United States v. Laughrin, 438 F.3d 1245

(10th Cir. 2006) (Poor driving record is not

reasonable suspicion for stop).

United States v. Herrera, 444 F.3d 1238

(10th Cir. 2006) (Mistake that truck was a

commercial vehicle, subject to inspection,

was not saved by good faith).

United States v. Mosley, 454 F.3d 249 (3rd

Cir. 2006) (All items seized from illegal

traffic stop must be suppressed).

United States v. McDonald, 453 F.3d 958

(7th Cir. 2006) (Mistake of law did not

excuse illegal traffic stop).

United States v. Andrews, 454 F.3d 919 (8th

Cir.), on rehearing, 465 F.3d 346 (2006) (No

objective basis to determine that car was

following too closely).

United States v. Washington, 455 F.3d 824

(8th Cir. 2006) (Officer’s mistake of law did

not excuse illegal stop of vehicle).

United States v. Jenson, 462 F.3d 399 (5th

Cir. 2006) (Illegal prolonged stop prevented

voluntary consent to search vehicle).

United States v. Henderson, 463 F.3d 27

(1st Cir. 2006) (No basis to search passenger

after traffic stop).

United States v. Spinner, 475 F.3d 356 (D.C.

Cir. 2007) (Police did not have the

reasonable suspicion defendant was armed

and dangerous necessary to justify their

search of his vehicle).

United States v. Martinez, 486 F.3d 855

(5th Cir. 2007) (Vehicle stop based on

anonymous tip was not supported by

reasonable suspicion, and later consent

was tainted).

United States v. Virden, 488 F.3d 1317

(11th Cir. 2007) (Moving vehicle to

location of drug dog without probable

cause was an illegal seizure).

United States v. Espinoza, 490 F.3d 41

(1st Cir. 2007) (No reasonable suspicion

to stop van for out-of-state plates and

owner’s previous investigation for

human smuggling).

Brendlin v. California, 127 S.Ct. 2400

(2007) (Passenger may challenge traffic

stop).

United States v. Proctor, 489 F.3d 1348

(D.C. Cir. 2007) (Impoundment of

vehicle did not follow an established

inventory policy).

United States v. Grigg, 498 F.3d 1070

(9th Cir. 2007) (Defendant’s vehicle was

improperly stopped on reasonable

suspicion of past misdemeanor

violation).

United States v. Reeves, 512 F.3d 123

(4th Cir. 2008) (Anonymous tip was not

corroborated).

United States v. Urrieta, 520 F.3d 569

(6th Cir. 2008) (Extended detention of

defendant following initial traffic stop

was unlawful).

United States v. Blair, 524 F.3d 740

(6th Cir. 2008) (There was no basis to

detain motorist beyond issuance of

traffic citation).

United States v. Valadez-Valadez, 525

F.3d 987 (10th Cir. 2008) (Merely

driving below speed limit does not give

reasonable suspicion to stop vehicle).

 

Search of

Commercial Vehicles

 

United States v. Garzon, 119 F.3d 1446

(10th Cir. 1997) (1. Passenger did not

abandon bag by leaving it on bus; 2.

General warrantless search of all bus

passengers by dog was illegal).

Bond v. United States, 529 U.S. 334

(2000) (Manipulation of bag found on

bus was illegal search).

 

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Federal Convictions Reversed

 

United States v. Stephens, 206 F.3d 914

(9th Cir. 2000) (Defendant was illegally

seized and searched on bus).

United States v. Ellis, 330 F.3d 677 (5th

Cir. 2003) (After a general immigration

inspection officers may not detain bus

passengers without individualized

suspicion).

 

Search of Packages

 

United States v. Doe, 61 F.3d 107 (1st

Cir. 1995) (Warrantless testing of

packages at an airport checkpoint lacked

justification).

United States v. Ali, 68 F.3d 1468,

modified, 86 F.3d 275 (2d Cir. 1996)

(Checking whether the defendant had a

valid export license was not a proper

ground for seizure).

United States v. Odum, 72 F.3d 1279

(7th Cir. 1995) (Court was limited to

facts at the time the stop occurred to

evaluate reasonableness of the seizure).

United States v. Nicholson, 144 F.3d 632

(10th Cir. 1998) (feeling through sides of

bag was a search; Abandonment of bag

was involuntary).

United States v. Fultz, 146 F.3d 1102

(9th Cir. 1998) (Guest had expectation of

privacy in boxes he stored at another’s

home).

United States v. Rouse, 148 F.3d 1040

(8th Cir. 1998) (Search of bags lacked

probable cause).

United States v. Allen, 159 F.3d 832 (4th

Cir. 1999) (Inevitable discovery doctrine

did not apply to cocaine found in duffle

bag later detected by dog and warrant).

United States v. Johnson, 171 F.3d 601

(8th Cir. 1999) (No reasonable suspicion

to intercept delivery of package).

United States v. Osage, 235 F.3d 518

(10th Cir. 2000) (Consent to search

suitcase did not extend to sealed can

inside).

United Staes v. Runyan, 275 F.3d 449

(5th Cir.), cert. denied, 537 U.S. 888

(2002) (Police could not open closed

container discovered by previous private

search).

United States v. Hernandez, 279 F.3d

302 (5th Cir. 2002) (Manipulation of

luggage tainted consent to search).

United States v. Escobar, 389 F.3d 781 (8th

Cir. 2004) (Consent to search bag was not

voluntary).

United States v. Waller, 426 F.3d 838 (6th

Cir. 2005) (Resident could not consent to

search of defendant’s zippered suitcase in

closet).

United States v. Purcell, 526 F.3d 953 (6th

Cir. 2008) (There were no exigent

circumstances to search luggage and no one

was present with apparent authority to

consent).

 

Search of Real

Property

 

United States v. Hill, 55 F.3d 479 (9th Cir.

1995) (Remand was required to see if there

was a truly viable independent source for

the search).

United States v. Ford, 56 F.3d 265 (D.C. Cir.

1995) (Search under a mattress and behind

a window shade exceeded a protective

sweep).

United States v. Tovar-Rico, 61 F.3d 1529

(11th Cir. 1995) (Possibility that

surveillance officer was observed, did not

create exigency for warrantless search of

apartment).

United States v. Cabassa, 62 F.3d 470 (2d

Cir. 1995) (Exigent circumstances were not

relevant to the inevitable discovery

doctrine).

United States v. Mejia, 69 F.3d 309 (9th Cir.

1995) (Inevitable discovery doctrine did not

apply where the police simply failed to get a

warrant).

J.B. Manning Corp. v. United States, 86 F.

3d 926 (9th Cir. 1996) (Good faith exception

to the warrant requirement does not affect

motions to return property).

United States v. Leake, 95 F.3d 409 (6th

Cir. 1996) (Neither the independent source

rule, nor the inevitable discovery rule, saved

otherwise inadmissible evidence).

United States v. Madrid, 152 F.3d 1034,

rehearing denied, 160 F.3d 502 (8th Cir.

1998) (Inevitable discovery doctrine did not

save illegal search of house).

United States v. Ivy, 165 F.3d 397 (6th Cir.

1999) (Consent to enter home was not

shown to be voluntary).

United States v. Johnson, 170 F.3d 708

(7th Cir. 1999) (Officers lacked

reasonable suspicion to prevent

occupant from leaving home).

United States v. Kiyuyung, 171 F.3d 78

(2d Cir. 1999) (Firearms found during

warrantless search were not in plain

view).

Flippo v. West Virginia, 528 U.S. 11

(1999) (No crime scene exception to

warrant requirement).

United States v. Sandoval, 200 F.3d 659

(9th Cir. 2000) (Defendant had

reasonable expectation of privacy in

tent on public land).

United States v. Vega, 221 F.3d 789

(5th Cir.), cert. denied, 531 1155 (2000)

(The police cannot create exigency for

search of leased home).

United States v. Reid, 226 F.3d 1020

(9th Cir. 2000) (Guest did not have

apparent authority to allow search of

apartment).

United States v. Lewis, 231 F.3d 238

(6th Cir. 2000) (Absent probable cause,

exigent circumstances did not permit

entry to home).

United States v. Oaxaca, 233 F.3d 1154

(9th Cir. 2000) (Agents could not enter

open door of garage).

United States v. Santa, 236 F.3d 662

(6th Cir. 2001) (Search of apartment

lacked exigent circumstances).

United States v. Gamez-Orduno, 235

F.3d 453 (9th Cir. 2000) (Overnight

guests had standing to challenge

search).

United States v. Heath, 259 F.3d 522

(6th Cir. 2001) (Allowing officer to

examine keys was not consent to open

and enter apartment).

United States v. Limares, 269 F.3d 794

(7th Cir. 2001) (Failure to arrest

suspect outside did not create exigency

upon entry to home).

United States v. Diehl, 276 F.3d 32 (1st

Cir.), cert. denied, 537 U.S. 834 (2002)

(Curtilage need not have obvious

boundary).

United States v. Jones, 286 F.3d 1146

 

7

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Federal Convictions Reversed

 

(9th Cir. 2002) (Subpoena did not give

authority to illegally enter premises,

even for exigent circumstances).

Loria v. Gorman, 306 F.3d 1271 (2d Cir.

2002) (Police acted without probable

cause or exigent circumstances).

United States v. Gorman, 314 F.3d 1105

(9th Cir. 2002) (No probable cause to

search third-party residence).

United States v. Davis, 332 F.3d 1163

(9th Cir. 2003) (Overnight guest had

expectation of privacy in bag under bed).

United States v. Jones, 335 F.3d 527

(6th Cir.), cert. denied, 127 S.Ct. 2902

(2007) (Handyman lacked actual or

apparent authority to allow search of

residence).

United States v. Romero-Bustamente,

337 F.3d 1104 (9th Cir. 2003) (Border

agents did not have authority to search

private real property).

United States v. Hammond, 351 F.3d

765 (6th Cir. 2003) (No evidence of

informant’s reliability for search).

United States v. Carter, 360 F.3d 1235

(10th Cir. 2004) (Protective sweep of

garage was not justified).

Hadley v. Williams, 368 F.3d 747 (7th

Cir. 2004) (False claim of a warrant

voided consent).

United States v. Washington, 387 F.3d

1060 (9th Cir. 2004) (Officers illegally

looked into defendant’s hotel room).

United States v. Chambers, 395 F.3d

563 (6th Cir. 2005) (No emergency

justifying warrantless search).

United States v. Quaempts, 411 F.3d

1046 (9th Cir. 2005) (Opening front door

did not waive expectation of privacy).

United States v. McGough, 412 F.3d

1232 (11th Cir. 2005) (Warrantless

search of apartment was illegal).

United States v. Waldner, 425 F.3d 514

(8th Cir. 2005) (Protective sweep did not

include basement).

United States v. Coles, 437 F.3d 361 (3rd

Cir. 2006) (Officers could not create their

own exigency by attempting to enter

hotel room).

Georgia v. Randolph, 547 U.S. 103

(2006) (Spouse could not consent to search

when homeowner was present and refused).

United States v. Howard, 447 F.3d 1257

(9th Cir. 2006) (Parole condition did not

allow to search home of defendant’s

acquaintance).

United States v. Lakoskey, 462 F.3d 965

(8th Cir.), cert. denied, 127 S.Ct. 1388 (2007)

(Defendant did not impliedly consent to

postal inspector entering his home).

United States v. Walker, 474 F.3d 1249

(10th Cir. 2007) (Protective sweep of home

was not incident to arrest).

United States v. Gomez-Moreno, 479 F.3d

350 (5th Cir. 2007) (Government-created

exigent circumstances to search home

voided search and consent).

United States v. Freeman, 479 F.3d 743

(10th Cir. 2007) (No reasonable suspicion to

search parolee’s residence).

United States v. Cos, 498 F.3d 1115 (10th

Cir. 2007) (Guest lacked apparent authority

to allow search of home).

United States v. Ellis, 499 F.3d 686 (7th Cir.

2007) (Movement in home was not an

exigent circumstance justifying warrantless

entry).

United States v. Collins, 510 F.3d 697 (7th

Cir. 2007) (Forcible entry to home lacked

exigent circumstances).

United States v. Troop, 514 F.3d 405 (5th

Cir. 2008) (No evidence that occupants

needed medical assistance to create exigent

circumstances).

United States v. Mowatt, 513 F.3d 395 (4th

Cir. 2008) (No exigent circumstances

justified the officers’ demand that defendant

open his apartment door).

United States v. Murphy, 516 F.3d 1117

(9th Cir. 2008) (When a co-tenant objects to

a search and another party with common

authority subsequently gives consent to that

search in the absence of the first co-tenant,

the search is invalid as to the objecting cotenant).

United States v. Castellanos, 518 F.3d 965

(8th Cir. 2008) (Statute permitting

immigration employees to conduct

warrantless searches of persons seeking

admission to the United States did not

permit search of defendant’s home during

drug investigation).

United States v. Reeves, 524 F.3d 1161

(10th Cir. 2008) (Unlawful arrest in

hotel room invalidated subsequent

consent to search).

 

Warrants

 

United States v. Van Damme, 48 F.3d

461 (9th Cir. 1995) (There was no list of

items to be seized under the warrant).

United States v. Mondragon, 52 F.3d

291 (10th Cir. 1995) (Supplemental

wiretap application failed to show

necessity).

United States v. Kow, 58 F.3d 423 (9th

Cir. 1995) (Warrant failed to identify

business records with particularity, and

good faith exception did not apply).

United States v. Weaver, 99 F.3d 1372

(6th Cir. 1996) (Bare bones, boilerplate

affidavit, was insufficient to justify

warrant).

Marks v. Clarke, 102 F.3d 1012 (9th

Cir.), cert. denied, 522 U.S. 907 (1997)

(Warrant to search two residences did

not authorize the officers to search all

persons present).

United States v. Foster, 104 F.3d 1228

(10th Cir. 1996) (Flagrant disregard for

the specificity of a warrant required

suppression of all found).

United States v. McGrew, 122 F.3d 847

(9th Cir. 1997) (Search warrant

affidavit lacked particularity).

United States v. Alvarez, 127 F.3d 372

(5th Cir. 1997) (Warrant affidavit

contained a false statement made in

reckless disregard for the truth).

United States v. Schroeder, 129 F.3d

439 (8th Cir. 1997) (Warrant did not

authorize a search of adjoining

property).

In Re Grand Jury Investigation, 130

F.3d 853 (9th Cir. 1997) ( Search

warrant was over broad).

United States v. Hotal, 143 F.3d 1223

(9th Cir. 1998) (Anticipatory search

warrant failed to identify triggering

event for execution).

United States v. Albrektsten, 151 F.3d

951 (9th Cir. 1998) (Arrest warrant did

not permit search of defendant’s motel

room).

 

8

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Federal Convictions Reversed

 

United States v. Ford, 184 F.3d 566 (6th

Cir.), cert. denied, 528 U.S. 1161 (2000)

(Search warrant authorized broader

search than reasonable).

United States v. Herron, 215 F.3d 812

(8th Cir. 2000) (No reasonable officer

would have relied on such a deficient

warrant).

United States v. Tuter, 240 F.3d 1292

(10th Cir.), cert. denied, 534 U.S. 886

(2001) (Anonymous tip lacked reliability

to support warrant).

United States v. King, 244 F.3d 736 (9th

Cir. 2001) (Officer’s mistaken belief that

ordinance was violated did not provide

reasonable suspicion to stop).

Leveto v. Lapina, 258 F.3d 156 (3rd Cir.

2001) (Search warrant for home did not

justify pat-down of owner).

United States v. Blackmon, 273 F.3d

1204 (9th Cir. 2001) (Police may not

borrow information from previous

wiretap warrant in another case).

United States v. Helton, 314 F.3d 812

(6th Cir. 2003) (Affidavit relying on

confidential informant did not establish

probable cause).

United States v. Deemer, 354 F.3d 1130

(9th Cir. 2004) (No emergency exception

to warrant requirement when search

was not related to 911 call).

United States v. Gonzales, 399 F.3d

1225 (10th Cir. 2005) (Warrant lacked

probable cause and good faith did not

apply).

United States v. Laughton, 409 F.3d 744

(6th Cir. 2005) (Affidavit lacked probable

cause and no good faith exception).

United States v. Hython, 443 F.3d 480

(6th Cir. 2006) (Warrant was clearly

stale and good faith exception did not

apply).

United States v. Staffeldt, 451 F.3d 578

(9th Cir.), amended, 523 F.3d 983 (2008)

(Wiretap application was facially

deficient).

United States v. McPhearson, 469 F.3d

518 (6th Cir. 2006) (Possession of drugs

outside home did not support warrant to

search home, nor was there good faith

reliance).

United States v. West, 520 F.3d 604 (6th

Cir. 2008) (Search warrant affidavits

contained false statements).

United States v. Tate, 524 F.3d 449 (4th Cir.

2008) (A substantial showing that a search

warrant affidavit contains falsity requires

an evidentiary hearing).

 

Defendant’s

Statements

 

United States v. Dudden, 65 F.3d 1461 (9th

Cir. 1995) (Immunity agreement required a

hearing on whether the defendant’s

statements were used to aid the

government’s case).

United States v. Tenorio, 69 F. 3d 1103

(11th Cir. 1995) (Post-Miranda statements

were improperly admitted).

United States v. Ali, 86 F.3d 275 (2nd Cir.

1996) (Custodial interrogation required

warnings).

In Re Grand Jury Subpoena Dated April 9,

1996, 87 F.3d 1198 (11th Cir. 1996)

(Custodian of records could not be compelled

to testify as to the location of documents not

in her possession when those documents

incriminated her).

United States v. Trzaska, 111 F.3d 1019 (2d

Cir. 1997) (Defendant’s statement to

probation officer was inadmissible).

United States v. D.F., 115 F.3d 413 (7th Cir.

1997) (Statements taken from a juvenile in

a mental health facility were involuntary).

United States v. Abdi, 142 F.3d 566 (2d Cir.

1998) (Defendant’s uncounseled statement

was erroneously admitted).

United States v. Garibay, 143 F.3d 534 (9th

Cir. 1998) (Defendant with limited English

and low mental capacity did not voluntarily

waive Miranda).

United States v. Chamberlain, 163 F.3d 499

(8th Cir. 1999) (Inmate under investigation

was entitled to warnings).

United States v. Tyler, 164 F.3d 150 (3rd

Cir.), cert. denied, 537 U.S. 858 (2002)

(Police did not honor defendant’s invocation

of silence).

Pickens v. Gibson, 206 F.3d 988 (10th Cir.

2000) (Admission of confession was not

harmless).

United States v. Martinez-Gaytan, 213 F.3d

890 (5th Cir. 2000) (Agent who did not

speak Spanish could not introduce

defendant’s Spanish confession).

Dickerson v. United States, 530 U.S.

428 (2000) (Warnings are required by

Fifth Amendment).

Gardner v. Johnson, 247 F.3d 551 (5th

Cir. 2001) (Psychiatrist’s warnings

about self-incrimination were

insufficient).

United States v. Pedroza, 269 F.3d 821

(7th Cir. 2001) (Agreement to speak to

officer was not consent to later

questioning).

United States v. Velarde-Gomez, 269

F.3d 1023 (9th Cir. 2001) (Post-arrest.

pre-warning silence cannot be used to

show demeanor).

United States v. Green, 272 F.3d 748

(5th Cir. 2001) (Defendant’s actions in

response to custodial interrogation were

testimonial in nature).

Ghent v. Woodford, 279 F.3d 1121 (9th

Cir. 2002) (Miranda applies to

statements offered at capital

sentencing).

Choi Chun Lam v. Kelchner, 304 F.3d

256 (3d Cir. 2002) (Statements made

under threat of violence were

involuntary).

United States v. San Juan-Cruz, 314

F.3d 384 (9th Cir. 2002) (Conflicting

warnings left defendant unclear about

his right to remain silent).

Kaupp v. Texas, 538 U.S. 626 (2003)

(Statement taken after illegal arrest

must be suppressed when there is no

meaningful intervening event).

United States v. Robles-Ortega, 348

F.3d 679 (7th Cir. 2003) (Statement

tainted by agents’ illegal entry).

United States v. Perez-Lopez, 348 F.3d

839 (9th Cir. 2003) (Spanish warnings

did not advise of right to counsel).

Taylor v. Maddox, 366 F.3d 992 (9th

Cir.), cert. denied, 543 U.S. 1038 (2004)

(Confession was involuntary).

Randolf v. California, 380 F.3d 1133

(9th Cir. 2004) (Statement elicited by

informant violated right to counsel

when defendant was represented).

 

9

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Federal Convictions Reversed

 

United States v. Aguilar, 384 F.3d 520

(8th Cir. 2004) (Statement was a result

of coercion).

Gibbs v. Frank, 387 F.3d 268 (3d Cir.

2004) (Unwarned statements to

psychiatrist were improperly admitted).

Zappulla v. New York, 391 F.3d 462 (2d

Cir.), cert. denied, 546 U.S. 957 (2005)

(Involuntary confession should have

been excluded).

United States v. Wesley, 417 F.3d 612

(6th Cir. 2005) (Defendant’s statement

he went to prison with accomplice was

unfairly prejudicial).

United States v. Magluta, 418 F.3d 1166

(11th Cir.), cert. denied, 548 U.S. 903

(2006) (Statements made after

conspiracy ended were inadmissible).

Arnold v. Runnels, 421 F.3d 859 (9th

Cir. 2005) (No voluntary waiver after

invocation of silence).

United States v. Williams, 435 F.3d 1148

(9th Cir. 2006) (Inadequate warnings

were given).

United States v. Lopez, 437 F.3d 1059

(10th Cir. 2006) (Both of defendant’s

statements were involuntary).

United States v. Chen, 439 F.3d 1037

(9th Cir. 2006) (Immigration agent was

required to warn alien of rights before

questioning).

United States v. Ollie, 442 F.3d 1135

(8th Cir. 2006) (Warnings given after

initial statement were deficient).

United States v. Brownlee, 454 F.3d 131

(3rd Cir. 2006) (Questioning of

defendant in patrol car required

warnings).

United States v. Brathwaite, 458 F.3d

376 (5th Cir. 2006) (No public safety

exception for interrogation about

firearms in home).

United States v. Olivares-Rangel, 458

F.3d 1104 (10th Cir. 2006) (Statements

were result of illegal arrest).

United States v. Shaw, 464 F.3d 615

(6th Cir. 2006) (Statements made after

illegal arrest were tainted).

United States v. Lafferty, 503 F.3d 293

(3rd Cir. 2007) (Defendant who invoked

silence should not have been

interrogated with alleged accomplice and

neither person’s statements were

admissible).

United States v. Revels, 510 F.3d 1269 (10th

Cir. 2007) (Valid investigatory stop does not

obviate need for verbal warnings).

Anderson v. Terhune, 516 F.3d 781 (9th Cir.

2008) (Petitioner’s statement, “I plead the

Fifth”, and officer’s response, “Plead the

Fifth? What’s that?”, was an invocation of

 

Miranda

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rights).

 

United States v. Rodriguez, 518 F.3d 1072

(9th Cir. 2008) (An officer must clarify the

meaning of an ambiguous response to a

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Miranda

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warning before proceeding with

 

general interrogation).

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Recusal

 

Bracy v. Gramley, 520 U.S. 899 (1997)

(Petitioner could get discovery of trial

judge’s bias against him).

United States v. Jordan, 49 F.3d 152 (5th

Cir. 1995) (Judge should have been recused

because the defendant made claims against

family friend of the judge).

United States v. Avilez-Reyes, 160 F.3d 258

(5th Cir. 1999) (Judge should have recused

himself in case where attorney testified

against judge in disciplinary hearing).

United States v. Scarfo, 263 F.3d 80 (3rd

Cir. 2001) (Judge should have recused

himself if he felt prejudiced by news article).

Clemmons v. Wolfe, 377 F.3d 322 (2d Cir.

2004) (Previous actions as state judge

required recusal).

In Re Nettles, 394 F.3d 1001 (7th Cir. 2005)

(Bombing plot involved threat to judge’s

safety).

Franklin v. McCaughtry, 398 F.3d 955 (7th

Cir. 2005) (Record indicated judge’s bias

against defendant).

United States v. Amico, 486 F.3d 764 (2d

Cir. 2007) (District judge’s prior dealings

with the government’s main cooperating

witness required recusal).

 

Indictments

 

United States v. Holmes, 44 F.3d 1150 (2d

Cir. 1995) (Money laundering and

structuring counts based on the same

transaction were multiplicious).

United States v. Hairston, 46 F.3d 361

(4th Cir. 1995) (Multiple payments were

part of the same offense).

United States v. Graham, 60 F.3d 463

(8th Cir. 1995) (Multiplicious to charge

the same false statement made on

different occasions).

United States v. Kimbrough, 69 F.3d

723 (5th Cir.), cert. denied, 517 U.S.

1157 (1996) (Multiple possessions of

child pornography should have been

charged in a single count).

United States v. Cancelliere, 69 F.3d

1116 (11th Cir. 1995) (Court amended

charging language of indictment during

trial).

United States v. Johnson, 130 F.3d

1420 (10th Cir.), cert. denied, 525 U.S.

829 (1998) (Gun possession convictions

for the same firearm were

multiplicious).

United States v. Du Bo, 186 F.3d 1177

(9th Cir. 1999) (Indictment did not

allege mens rea).

United States v. Nunez, 180 F.3d 227

(5th Cir. 1999) (Indictment failed to

charge an offense).

United States v. Dipentino, 242 F.3d

1090 (9th Cir. 2001) (Trial court

constructively amended indictment).

United States v. Olson, 262 F.3d 795

(8th Cir. 2001) (Bank robbery

indictment failed to allege a taking by

force or intimidation).

United States v. Thompson, 287 F.3d

1244 (10th Cir. 2002) (Indictment

dismissed when improper sealing

caused defendant to innocently destroy

documents necessary to his defense).

United States v. Allen, 406 F.3d 940

(8th Cir.), cert. denied, 127 S.Ct. 826

(2006) (Capital indictment requires

allegation of mens rea and one

statutory aggravating factor).

United States v. Savoires, 430 F.3d 376

(6th Cir. 2005) (Indictment charging

both carrying and possessing firearm

was duplicitous).

United States v. Buchanan, 485 F.3d

274 (5th Cir. 2007) (Four counts of child

pornography were multiplicitous as the

government did not offer proff of more

than a single transaction).

 

10

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Federal Convictions Reversed

 

United States v. Shellef, 507 F.3d 82 (2d

Cir. 2007) (Tax counts and wire fraud

counts should not have been joined).

United States v. Abu-Shawish, 507 F.3d

550 (7th Cir. 2007) (Indictment did not

allege element that defendant defrauded

the organization which he served as an

agent).

United States v. Zalapa, 509 F.3d 1060

(9th Cir. 2007) (Court must dismiss

multiplicious counts).

 

Limitation of Actions

 

United States v. Li, 55 F.3d 325 (7th Cir.

1995) (Statute of limitations ran from

the day of deposit, not the day the

deposit was processed).

United States v. Spector, 55 F.3d 22 (1st

Cir. 1995) (Agreement to waive the

statute of limitations was invalid

because it was not signed by the

government).

United States v. Podde, 105 F.3d 813 (2d

Cir. 1997) (Statute of limitations barred

the reinstatement of charges that were

dismissed in a plea agreement).

United States v. Manges, 110 F.3d 1162

(5th Cir.), cert. denied, 523 U.S. 1106

(1998) (Conspiracy charge was barred by

statute of limitations).

United States v. Grimmett, 236 F.3d 452

(8th Cir. 2001) (Statute of limitations

had run since defendant’s withdrawal

from the conspiracy).

United States v. Gunera, 479 F.3d 373

(5th Cir. 2007) (Illegal re-entry case

barred when government was on notice

that defendant had been in U.S. for over

5 years).

 

Venue

 

United States v. Miller, 111 F.3d 747

(10th Cir. 1997) (Court refused a jury

instruction on venue in a multi-district

conspiracy case).

United States v. Carter, 130 F.3d 1432,

cert. denied, 523 U.S. 1041 (10th Cir.

1997) (Requested instruction on venue

should have been given).

United States v. Cabrales, 524 U.S. 1

(1998) (Venue for money laundering was

proper only where offenses were begun,

conducted and completed).

United States v. Brennan, 183 F.3d 139 (2d

Cir. 1999) (Venue for mail fraud permissible

only in districts where proscribed acts

occurred).

United States v. Hernandez, 189 F.3d 785

(9th Cir.), cert. denied, 529 U.S. 1028 (1999)

(Venue was improper for undocumented

alien discovered in one district and tried in

another).

United States v. Williams, 274 F.3d 1079

(6th Cir. 2001) (Sale to government

informant did not bring the conspiracy

within district’s venue).

United States v. Perez, 280 F.3d 318 (3d

Cir.), cert. denied, 537 U.S. (2002) (Venue

should be decided by jury when challenged

by defendant).

United States v. Pace, 314 F.3d 344 (9th

Cir. 2002) (Essential conduct of wire fraud

did not occur in district).

United States v. Wood, 364 F.3d 704 (6th

Cir. 2004) (Venue for mail fraud is limited to

districts where mail is deposited, passed, or

received).

United States v. Morgan, 393 F.3d 192 (D.C.

Cir. 2004) (Improper venue for receiving

stolen property).

United States v. Strain, 396 F.3d 689 (5th

Cir. 2005) (Harboring a fugitive was tried in

wrong district).

United States v. Ramirez, 420 F.3d 134 (2d

Cir.), cert. denied, 546 U.S. 1113 (2006)

(Venue improper when essential conduct did

not occur in district).

 

Pretrial Procedure

 

United States v. Ramos, 45 F.3d 1519 (11th

Cir. 1995) (Trial judge wrongly refused

deposition without inquiring about

testimony or its relevance).

United States v. Smith, 55 F.3d 157 (4th

Cir. 1995) (Government’s motion for

dismissal should have been granted).

United States v. Gonzalez, 58 F.3d 459 (9th

Cir. 1995) (Government’s motion for

dismissal should have been granted).

United States v. Young, 86 F.3d 944 (9th

Cir.), cert. denied, 523 U.S. 1112 (1998)

(Court improperly denied a hearing on a

motion to compel the government to

immunize a witness).

United States v. Mathurin, 148 F.3d 68

(2d Cir. 1998) (Court improperly denied

hearing on motion to suppress).

United States v. Lothridge, 324 F.3d

599 (8th Cir. 2003) (District Court

failed to conduct de novo review of

magistrate’s findings when defendant

objected).

United States v. Romeo, 360 F.3d 1248

(10th Cir. 2004) (Court abused

discretion by not granting government’s

motion to dismiss charges).

United States v. Salahuddin, 509 F.3d

858 (7th Cir. 2007) (Court should have

reviewed untimely motion to suppress

when good cause for delay was present).

 

Severance

 

United States v. Breinig, 70 F.3d 850

(6th Cir. 1995) (Severance should have

been granted where the codefendant’s

defense included prejudicial character

evidence regarding the defendant).

United States v. Baker, 98 F.3d 330

(8th Cir.), cert. denied, 520 U.S. 1179

(1997) (Evidence admissible against

only one codefendant required

severance).

United States v. Jordan, 112 F.3d 14

(1st Cir.), cert. denied, 523 U.S. 1041

(1998) (Charges should have been

severed when a defendant wanted to

testify regarding one count, but not

others).

United States v. Cobb, 185 F.3d 1193

(11th Cir. 1999) (Court erroneously

denied severance under Bruton).

United States v. McCarter, 316 F.3d

536 (5th Cir. 2002) (Counts for firearm

possession and drug possession should

have been severed).

United States v. Sampson, 385 F.3d 183

(2d Cir.), cert. denied, 544 U.S. 924

(2005) (Offenses occurring two years

apart should have been severed).

United States v. Tarango, 396 F.3d 666

(5th Cir. 2005) (Defendant should not

have been tried with absent codefendant).

 

11

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Federal Convictions Reversed

 

Conflicts

 

United States v. Shorter, 54 F.3d 1248

(7th Cir.), cert. denied. 516 U.S. 896

(1995) (Actual conflict when the

defendant accused counsel of improper

behavior).

United States v. Malpiedi, 62 F.3d 465

(2d Cir. 1995) (Conflict for counsel

representing witness who gave

damaging evidence against his

defendant).

United States v. Jiang, 140 F.3d 124 (2d

Cir. 1998) (Attorney’s potential conflict

required remand for hearing).

United States v. Kliti, 156 F.3d 150 (2d

Cir. 1998) (Court should have held

hearing on defense counsel’s potential

conflict).

Perrillo v. Johnson, 205 F.3d 775 (5th

Cir. 2000) (Actual conflict existed in

successive prosecutions of codefendants).

Lockhart v. Terhune, 250 F.3d 1223 (9th

Cir. 2001) (Counsel had actual conflict of

interest).

United States v. Schwarz, 283 F.3d 76

(2d Cir. 2002) (Actual conflict between

counsel and one defendant).

United States v. Newell, 315 F.3d 510

(5th Cir.), cert. denied, 546 U.S. 924

(2005) (Court failed to act when conflict

arose during trial).

United States v. Oberoi, 331 F.3d 44 (2d

Cir. 2003) (Federal Public Defender was

entitled to withdraw when conflict

arose).

Harris v. Carter, 337 F.3d 758 (6th Cir.

2003) (Court should have held hearing

about apparent conflict).

United States v. Salado, 339 F.3d 285

(5th Cir. 2003) (Joint representation of

two defendants required hearing).

United States v. Williams, 372 F.3d 96

(2d Cir. 2004) (Counsel who was

connected to charges had actual

conflict).

Lewis v. Mayle, 391 F.3d 989 (9th Cir.

2004) (Counsel had an actual conflict).

United States v. Osborne, 402 F.3d 626

(6th Cir. 2005) (Representing codefendants

was actual conflict).

Daniels v. Woodford, 428 F.3d 1181 (9th

Cir.), cert. denied, 127 S.Ct. 2876 (2007)

(Court failed to resolve conflict between

appointed lawyer and client).

United States v. Nicholson, 475 F.3d 241

(4th Cir. 2007) (Lawyer had actual conflict

of interest representing witness who

threatened defendant).

 

Mental Health

 

United States v. Mason, 52 F.3d 1286 (4th

Cir. 1995) (Court failed to apply a

reasonable cause standard to competency

hearing).

Cooper v. Oklahoma, 517 U.S. 348 (1996)

(Court could not require a defendant to

prove his incompetence by a higher

standard than preponderance of evidence).

United States v. Williams, 113 F.3d 1155

(10th Cir. 1997) (Defendant’s actions during

trial warranted a competency hearing).

United States v. Nevarez-Castro, 120 F.3d

190 (9th Cir. 1997) (Court refused to hold a

competency hearing).

United States v. Haywood, 155 F.3d 674

(3rd Cir.), cert. denied, 533 U.S. 924 (2001)

(Defendant allegedly restored to competency

required second hearing).

United States v. Ramirez, 304 F.3d 1033

(10th Cir. 2002) (Decision to deny

competency examination was not based on

either of the arguments the government

presented).

United States v. Rinaldi, 351 F.3d 285 (7th

Cir.), cert. denied, 128 S.Ct. 708 (2007)

(Requirement of in-custody mental exam

was error).

United States v. Ghane, 392 F.3d 317 (8th

Cir. 2004) (No involuntary medication when

only small chance of restored competence).

United States v. Evans, 404 F.3d 227 (4th

Cir.), cert. denied, 127 S.Ct. 1162 (2007)

(Involuntary medication was not justified).

In Re: Hearn, 418 F.3d 444 (5th Cir. 2005)

(Defendant made prima facie showing of

retardation without expert).

United States v. Rivera-Guerrero, 426 F.3d

1130 (9th Cir. 2005) (Abuse of discretion to

deny continuance of hearing to forcibly

administer anti-psychotic drugs).

United States v. Allen, 449 F.3d 1121

(10th Cir. 2006) (Insanity defense was

improperly prohibited in firearm

possession case).

 

Privilege

 

Ralls v. United States, 52 F.3d 223 (9th

Cir. 1995) (Fee information was

inextricably intertwined with privileged

communications).

United States v. Sindel, 53 F.3d 874

(8th Cir. 1995) (Fee information could

not be released without disclosing other

privileged information).

United States v. Gertner, 65 F.3d 963

(1st Cir. 1995) (IRS summons of

attorney was just a pretext to

investigate her client).

In Re Richard Roe Inc., 68 F.3d 38 (2d

Cir. 1995) (Court misapplied the crimefraud

exception).

United States v. Rowe, 96 F.3d 1294

(9th Cir. 1996) (In-house investigation

by attorneys associated with the

defendant/lawyer was covered by the

attorney-client privilege).

United States v. Bauer, 132 F.3d 504

(9th Cir. 1997) (Questioning of

defendant’s bankruptcy attorney

violated attorney-client privilege).

United States v. Glass, 133 F.3d 1356

(10th Cir. 1998) (Defendant’s

psychotherapist-patient privilege was

violated).

Swidler & Berlin v. United States, 524

U.S. 399 (1998) (Attorney-client

privilege survives client’s death).

United States v. Millard, 139 F.3d 1200

(8th Cir.), cert. denied, 525 U.S. 949

(1998) (Statements during plea

discussions were erroneously admitted).

In re Sealed Case, 146 F.3d 881 (D.C.

Cir. 1998) (Documents prepared in

anticipation of litigation were work

product).

Mitchell v. United States, 526 U.S. 314

(1999) (Guilty plea does not waive

privilege against self incrimination at

sentencing).

In Re Sealed Case, 381 F.3d 1205 (D.C.

Cir. 2004) (Subpoena should not have

issued without weighing

 

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psychotherapist privilege).

United States v. Montgomery, 384 F.3d

1050 (9th Cir. 2004) (Evidence violated

marital privilege).

 

Jeopardy / Estoppel

 

United States v. Abcasis, 45 F.3d 39 (2d

Cir. 1995) Government was estopped

from convicting a person when its agents

caused that person in good faith to

believe they were acting under

government authority).

United States v. Weems, 49 F.3d 528

(9th Cir. 1995) (Government was

estopped from proving element

previously decided in forfeiture case).

United States v. Sammaripa, 55 F.3d

433 (9th Cir. 1995) (Mistrial was not

justified by manifest necessity).

United States v. McLaurin, 57 F.3d 823

(9th Cir. 1995) (Defendant could not be

retried for bank robbery after conviction

on the lesser included offense of

larceny).

Rutledge v. United States , 517 U.S. 292

(1996) (Defendant could not be punished

for both a conspiracy and a continuing

criminal enterprise based upon a single

course of conduct).

Venson v. Georgia, 74 F.3d 1140 (11th

Cir. 1996) (Prosecutor’s motion for

mistrial was not supported by manifest

necessity).

United States v. Holloway, 74 F.3d 249

(11th Cir. 1996) (Prosecutor’s promise

not to prosecute, made at a civil

deposition, was the equivalent of use

immunity for a related criminal

proceeding).

United States v. Hall, 77 F.3d 398 (11th

Cir.), cert. denied. 519 U.S. 849 (1996)

(Possession of a firearm and its

ammunition could only yield a single

sentence).

United States v. Garcia, 78 F.3d 1517

(11th Cir. 1996) (Acquittal for knowingly

conspiring barred a second prosecution

for the substantive crime).

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

1997) (When a defendant was charged in

two alternate manners, and the jury

reached a verdict as to only one, there

was an implied acquittal on the other

offense to which jeopardy barred retrial).

United States v. Stoddard, 111 F.3d 1450

(9th Cir. 1997) (1. Second drug conspiracy

prosecution was barred by double jeopardy;

2. Collateral estoppel barred false statement

conviction, based upon drug ownership for

which defendant had been previously

acquitted).

United States v. Romeo, 114 F.3d 141 (9th

Cir. 1997) (After an acquittal for possession,

an importation charge was barred by

collateral estoppel).

United States v. Turner, 130 F.3d 815 (8th

Cir.), cert. denied, 524 U.S. 909 (1998)

(Prosecution of count, identical to one

previously dismissed, was barred).

United States v. Downer, 143 F.3d 819 (4th

Cir. 1998) (Court’s substitution of conviction

for lesser offense, after reversal, violated Ex

Post Facto Clause and Grand Jury Clause).

United States v. Dunford, 148 F.3d 385 (4th

Cir. 1998) (Convictions for 6 firearms and

ammunition was multiplicious).

United States v. Beckett, 208 F.3d 140 (3rd

Cir. 2000) (Sentences for robbery and armed

robbery violated double jeopardy).

United States v. Kithcart, 218 F.3d 213 (3rd

Cir. 2000) (Government could not relitigate

suppression motion).

United States v. Kramer, 225 F.3d 847 (7th

Cir. 2000) (Defendant was entitled to attack

underlying state child support obligation).

Morris v. Reynolds, 264 F.3d 38 (2d Cir.

2001) (Jeopardy attaches at unconditional

acceptance of guilty plea).

Wilson v. Czerniak, 355 F.3d 1151 (9th Cir.

2004) (Defendant could not be tried for

aggravated murder after acquittal of simple

murder).

United States v. Ford, 371 F.3d 550 (9th

Cir. 2004) (Acquittal for controlling or

managing a drug facility barred retrial for

using or maintaining same).

United States v. Toribio-Lugo, 376 F.3d 33

(1st Cir. 2004) (Defendant did not consent to

mistrial).

United States v. Rivera, 384 F.3d 49 (3rd

Cir. 2004) (Declaration of mistrial lacked

manifest necessity).

Stow v. Murashige, 389 F.3d 880 (9th Cir.

2004) (Acquittal barred retrial on lesser

charge).

Smith v. Massachusetts, 543 U.S. 462

(2005) (Mid-trial acquittal precluded

reconsideration later in trial).

United States v. Roy, 408 F.3d 484 (8th

Cir. 2005) (Two assault convictions for

the same conduct in a single trial was

double jeopardy).

United States v. DeCarlo, 434 F.3d 447

(6th Cir. 2006) (Defendant could not be

convicted of interstate travel to, both,

have illicit sexual conduct, and have sex

with a child less than 12).

United States v. Richardson, 439 F.3d

421 (8th Cir. 2006) (A single possession

of a firearm cannot yield convictions for

being a felon and a drug user).

United States v. Olmeda, 461 F.3d 271

(2d Cir. 2006) (Charges for possessing

same ammunition in two districts in

same month were double jeopardy).

United States v. Blanton, 476 F.3d 767

(9th Cir. 2007) (Government could not

appeal acquittal in bench trial).

Brazzel v. State of Washington, 491

F.3d 976 (9th Cir. 2007) (Implied

acquittal of greater offense barred

second prosecution for double jeopardy).

United States v. Ohayon, 483 F.3d 1281

(11th Cir. 2007) (Defendant’s acquittal

on a charge of an attempted drug

offense collaterally estopped

government from retrying defendant for

conspiracy).

United States v. Lara-Ramirez, 519

F.3d 76 (1st Cir. 2008) (Absent

defendant’s consent or manifest

necessity, mistrial barred a new trial

under principles of double jeopardy).

United States v. Davenport, 519 F.3d

940 (9th Cir. 2008) (Possessing child

pornography is a lesser included crime

within reciept for double jeopardy).

 

Plea Agreements

 

United States v. Washman, 66 F.3d 210

(9th Cir. 1995) (Defendant could have

withdrawn his plea up until the time

the court accepted the plea agreement).

United States v. Levay, 76 F.3d 671

(5th Cir. 1996) (Defendant could not be

enhanced with a prior drug conviction

 

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Federal Convictions Reversed

 

when the government withdrew notice

as part of a plea agreement).

United States v. Dean, 87 F.3d 1212

(11th Cir. 1996) (Judge could modify the

forfeiture provisions of a plea

agreement, when the forfeiture was

unfairly punitive).

United States v. Belt, 89 F.3d 710 (10th

Cir. 1996) (Failure to object to the

government’s breach of the plea

agreement was not a waiver).

United States v. Sandoval-Lopez, 122

F.3d 797 (9th Cir. 1997) (Defendant

could attack illegal conviction without

fear that dismissed charges in plea

agreement would be revived).

United States v. Castaneda, 162 F.3d

832 (5th Cir. 1999) (Government failed

to prove defendant violated

transactional immunity agreement).

United States v. Nathan, 188 F.3d 190

(3rd Cir. 1999) (Statement made after

plea agreement was not stipulation).

United States v. Frazier, 213 F.3d 409

(7th Cir.), cert. denied, 531 U.S. 1015

(2000) (Government cannot unilaterally

retreat from plea agreement without

hearing).

United States v. Baird, 218 F.3d 221

(3rd Cir.2000) (Plea agreement

prevented use of information at any

proceeding).

United States v. Randolph, 230 F.3d 243

(6th Cir. 2000) (Prosecution in second

jurisdiction violated plea agreement).

United States v. Fitch, 282 F.3d 364 (6th

Cir. 2002) (A material ambiguity should

have been construed to defendant’s

benefit).

United States v. Reyes, 313 F.3d 1152

(9th Cir. 2002) (Court can only accept or

reject a binding plea agreement, not

modify it).

United States v. Bradley, 381 F.3d 641

(7th Cir. 2004) (There was a mutual

misunderstanding of the agreement).

United States v. Copeland, 381 F.3d

1101 (11th Cir. 2004) (Conviction was

barred by plea agreement).

United States v. Floyd, 428 F.3d 513

(3rd Cir. 2005) (Government cannot

refuse to consider cooperation merely

because a charge bargain was more

favorable to defendant than anticipated).

United States v. Bradley, 455 F.3d 453 (4th

Cir. 2006) (Judge impermissibly

participated in plea negotiations).

United States v. Mink, 476 F.3d 558 (8th

Cir. 2007) (Waivers in plea agreement are

strictly construed in defendant’s favor).

United States v. Newbert, 504 F.3d 180 (1st

Cir. 2007) (Motion for new trial based upon

actual innocence did not breach plea

agreement).

United States v. Jordan, 509 F.3d 191 (4th

Cir. 2007) (Plea agreement barred

defendant’s subsequent prosecution on

related conduct).

 

Guilty Pleas

 

United States v. Maddox, 48 F.3d 555 (D.C.

1995) (A summary rejection of a guilty plea

was improper).

United States v. Ribas-Dominicce, 50 F.3d

76 (1st Cir. 1995) (Court misstated the

mental state required for the offense).

United States v. Goins, 51 F.3d 400 (4th Cir.

1995) (Court failed to admonish the

defendant about the mandatory minimum

punishment).

United States v. Casallas, 59 F.3d 1173

(11th Cir. 1995) (Trial judge improperly

became involved in plea bargaining during

colloquy).

United States v. Smith, 60 F.3d 595 (9th

Cir. 1995) (Court failed to explain the

nature of the charges to the defendant).

United States v. Gray, 63 F.3d 57 (1st Cir.

1995) (Defendant who did not understand

the applicability of the mandatory minimum

could withdraw his plea).

United States v. Daigle, 63 F.3d 346 (5th

Cir. 1995) (Court improperly engaged in

plea bargaining).

United States v. Martinez-Molina, 64 F.3d

719 (1st Cir. 1995) (Court failed to inquire

whether the plea was voluntary or whether

the defendant had been threatened or

coerced).

United States v. Showerman, 68 F.3d 1524

(2d Cir. 1995) (Court failed to advise the

defendant that he might be ordered to pay

restitution).

United States v. Tunning, 69 F.3d 107

(6th Cir. 1995) (Government failed to

recite evidence to prove allegations in

an Alford plea).

United States v. Guerra, 94 F.3d 989

(5th Cir. 1996) (Plea was vacated when

the court gave the defendant erroneous

advice about enhancements).

United States v. Cruz-Rojas, 101 F.3d

283 (2d Cir. 1996) (Guilty pleas were

vacated to determine whether factual

basis existed for carrying a firearm).

United States v. Siegel, 102 F.3d 477

(11th Cir. 1996) (Failure to advise the

defendant of the maximum and

minimum mandatory sentences

required that the defendant be allowed

to withdraw his plea).

United States v. Shepherd, 102 F.3d

558 (DC Cir. 1996) (Court abused its

discretion in rejecting the defendant’s

mid-trial guilty plea).

United States v. Still, 102 F.3d 118 (5th

Cir.), cert. denied, 522 U.S. 806 (1997)

(Court failed to admonish the defendant

on the mandatory minimum).

United States v. Amaya, 111 F.3d 386

(5th Cir. 1997) (Defendant’s plea was

involuntary when the court promised to

ensure a downward departure for

cooperation).

United States v. Gonzalez, 113 F.3d

1026 (9th Cir. 1997) (Court should have

held a hearing when the defendant

claimed his plea was coerced).

United States v. Brown, 117 F.3d 471

(11th Cir. 1997) (Misinformation given

to the defendant made his plea

involuntary).

United States v. Pierre, 120 F.3d 1153

(11th Cir. 1997) (Plea was involuntary

when defendant mistakenly believed he

had preserved an appellate issue).

United States v. Cazares, 121 F.3d 1241

(9th Cir. 1997) (Plea to drug conspiracy

was not an admission of an alleged

overt act).

United States v. Toothman, 137 F.3d

1393 (9th Cir. 1998) (Plea could be

withdrawn based upon misinformation

about guideline range).

United States v. Gobert, 139 F.3d 436

(5th Cir. 1998) (Insufficient factual

 

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Federal Convictions Reversed

 

basis existed for defendant’s guilty plea).

United States v. Gigot, 147 F.3d 1193

(10th Cir. 1998) (Failure to admonish

defendant of elements of offense and

possible penalties rendered plea

involuntary).

United States v. Thorne, 153 F.3d 130

(4th Cir. 1998) (Court failed to advise

defendant of the nature of supervised

release).

United States v. Suarez, 155 F.3d 521

(5th Cir. 1998) (Defendant was not

admonished as to nature of charges).

United States v. Andrades, 169 F.3d 131

(2d Cir. 1999) (Court failed to determine

whether defendant understood basis for

plea, and failed to receive sufficient

factual basis).

United States v. Gomez-Orozco, 188

F.3d 422 (7th Cir. 1999) (Proof of

citizenship required withdrawal of guilty

plea to illegal re-entry charge).

United States v. Blackwell, 199 F.3d 623

(2d Cir.1999) (Omissions during colloquy

voided plea).

United States v. Guess, 203 F.3d 1143

(9th Cir. 2000) (Record did not support

guilty plea to firearm charge).

United States v. James, 210 F.3d 1342

(11th Cir. 2000) (Plea colloquy did not

cover elements of offense).

United States v. Santo, 225 F.3d 92 (1st

Cir. 2000) (Court understated

mandatory minimum at plea).

United States v. Castro-Gomez, 233 F.3d

684 (1st Cir. 2000) (Court did not inform

defendant he was subject to mandatory

life sentence).

United States v. Markin, 263 F.3d 491

(6th Cir. 2001) (Judge could not

participate in negotiations once guilty

plea is entered).

United States v. Lujano-Perez, 274 F.3d

219 (5th Cir. 2001) (Court must explain

nature of the charges).

United States v. Stubbs, 281 F.3d 109

(3d Cir.), cert. denied, 535 U.S. 1028

(2002) (Waiver of counsel was

insufficient).

United States v. Yu, 285 F.3d 192 (2d

Cir. 2002) (Allocution must settle drug

quantity to satisfy Apprendi).

United States v. Pena, 314 F.3d 1152 (9th

Cir. 2003) (Court failed to explain nature of

charges).

United States v. Villalobos, 333 F.3d 1070

(9th Cir. 2003) (Failure to admonish

defendant of drug quantity establishing

statutory maximum rendered plea

involuntary).

United States v. Chavez-Salais, 337 F.3d

1170 (10th Cir. 2003) (Plea colloquy did not

waive possibility of later modification of

sentence for extraordinary circumstances).

United States v. Head, 340 F. 3d 628 (8th

Cir.), cert. denied, 547 U.S. 1082 (2006)

(Defendant must be allowed to withdraw

guilty plea before plea is accepted by court).

Waucaush v. United States, 380 F.3d 251

(6th Cir. 2004) (Defendant’s

misunderstanding of law made plea

involuntary).

United States v. Bundy, 392 F.3d 641 (4th

Cir. 2004) (Court should not have accepted

conditional plea when issue for appeal was

not dispositive).

United States v. Amaya-Portillo, 423 F.3d

427 (4th Cir. 2005) (Court failed to

determine if defendant was fit to plead

guilty).

United States v. Davis, 428 F.3d 802 (9th

Cir. 2005) (Lawyer’s misrepresentation of

potential sentence was just reason to

withdraw plea).

United States v. Bailon-Santana, 429 F.3d

1258 (9th Cir. 2005) (Court failed to

determine factual basis for plea).

Hanson v. Phillips, 442 F.3d 789 (2d

Cir. 2006) (Colloquy failed to show plea was

voluntary or upon advice of counsel).

United States v. Mastrapa, 509 F.3d 652

(4th Cir. 2007) (Plea to drug conspiracy

lacked factual basis).

United States v. Sura, 511 F.3d 654 (7th

Cir. 2007) (Judge was required to admonish

defendant of appeal waiver).

 

Timely Prosecution

 

United States v. Verderame, 51 F.3d 249

(11th Cir.), cert. denied, 516 U.S. 954 (1995)

(Trial court denied repeated, unopposed

motions for continuance in drug conspiracy

case, with only 34 days to prepare).

United States v. Jones, 56 F.3d 581 (5th

Cir. 1995) Open-ended continuance

violated the Speedy Trial Act).

United States v. Mejia, 69 F.3d 309 (9th

Cir. 1995) (Court denied a one-day

continuance of trial, preventing live

evidence on suppression issue).

United States v. Foxman, 87 F.3d 1220

(11th Cir. 1996) (Trial court was

required to decide whether the

government had delayed indictment to

gain a tactical advantage).

United States v. Johnson, 120 F.3d

1107 (10th Cir. 1997) (Continuance

because of court conflict violated

Speedy Trial Act).

United States v. Lloyd, 125 F.3d 1263

(9th Cir. 1997) (112-day continuance

was not justified).

United States v. Hay, 122 F.3d 1233

(9th Cir. 1997) (48-day recess for jurors’

vacations was abuse of discretion).

United States v. Graham, 128 F.3d 372

(6th Cir. 1997) (Eight-year delay

between indictment and trial violated

the Sixth Amendment).

United States v. Gonzales, 137 F.3d

1431 (10th Cir. 1998) (“Ends of justiceâ€?

continuance could not be retroactive).

United States v. Barnes, 159 F.3d 4 (1st

Cir. 1999) (Open-ended continuance

violated speedy trial).

United States v. Hall, 181 F.3d 1057

(9th Cir. 1999) (Continuances for codefendants

violated Speedy Trial Act).

United States v. Moss, 217 F.3d 426

(6th Cir. 2000) (Unnecessary delay

while motion was pending required

dismissal with prejudice).

United States v. Ramirez-Cortez, 213

F.3d 1149 (9th Cir. 2000) (Failure to

make “ends of justiceâ€? findings for

speedy trial exclusion).

United States v. Hardeman, 249 F.3d

826 (9th Cir. 2001) (Delay to arraign codefendant

violated speedy trial).

United States v. Nguyen, 262 F.3d 998

(9th Cir. 2001) (Court did not explain

denial of continuance when defendant

asked for new counsel).

United States v. Novaton, 271 F.3d 968

 

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Federal Convictions Reversed

 

(11th Cir.), cert. denied, 535 U.S. 1120

(2002) (Four-day mid-trial continuance

for co-defendant’s medical condition

violated defendant’s rights).

United States v. Bergfeld, 280 F.3d 486

(5th Cir. 2002) (Five-year government

delay in filing prosecution justified

presumption of prejudice).

Stogner v. California, 539 U.S. 607

(2003) (Extending a statute of

limitations to include previously timebarred

cases violates the Ex Post Facto

Clause).

United States v. Ingram, 446 F.3d 1332

(11th Cir. 2006) (Two-year delay violated

Sixth Amendment Speedy Trial).

Zedner v. United States, 547 U.S. 489

(2006) (A prospective waiver of the

Speedy Trial Act is ineffective).

United States v. Stephens, 489 F.3d 647

(5th Cir. 2007) (Neither a codefendant’s

guilty plea nor defendant’s own

severance motion rendered time

excludable from the speedy trial clock).

United States v. Garner, 507 F.3d 399

(6th Cir. 2007) (Continuance should

have been granted to allow defendant to

investigate late discovery).

United States v. Lopez-Valenzuela, 511

F.3d 487 (5th Cir. 2007) (Speedy trial

clock begins at initial appearance or

from filing of information or indictment,

whichever is later).

United States v. Williams, 511 F.3d 1044

(10th Cir. 2007) (Court could not make

retroactive ends-of-justice exclusion to

speedy trial).

United States v. Grenier, 513 F.3d 632

(6th Cir. 2008) (False statements charge

exceeded statute of limitations).

United States v. Mendoza, 530 F.3d 758

(9th Cir. 2008) (Defendant’s Sixth

Amendment right to speedy trial was

violated by ten-year delay between

indictment and trial caused by

government neglect).

United States v. Mendoza, 530 F.3d 758

(9th Cir. 2008) (Ten-year delay between

indictment and trial violated Sixth

Amendment speedy trial).

United States v. Young, 528 F.3d 1294

(11th Cir. 2008) (Filing superseding

indictment for an additional charge did

not reset speedy trial clock ).

 

Jury Selection

 

Cochran v. Herring, 43 F.3d 1404 (11th

Cir.), modified, 61 F.3d 20, cert. denied, 516

U.S. 1073 (1996) (Batson claim should have

been granted).

United States v. Jackman, 46 F.3d 1240 (2d

Cir. 1995) (Selection procedure resulted in

an under-representation of minorities in

jury pool).

United States v. Beckner, 69 F.3d 1290 (5th

Cir. 1995) (Defendant established

prejudicial pretrial publicity that could not

be cured by voir dire).

United States v. Annigoni, 96 F.3d 1132

(9th Cir. 1996) (Court’s erroneous denial of a

defendant’s proper peremptory challenge

required automatic reversal).

Tankleff v. Senkowski, 135 F.3d 235 (2d Cir.

1998) (Race-based peremptory challenges

were not subject to harmless error review).

United States v. Ovalle, 136 F.3d 1092 (6th

Cir. 1998) (Plan which resulted in removal

of 1 in 5 blacks from panel, violated Jury

Selection and Service Act).

United States v. Tucker, 137 F.3d 1016 (8th

Cir. 1998) (Evidence of juror bias and

misconduct required evidentiary hearing).

Campbell v. Louisiana, 523 U.S. 392 (1998)

(White defendant could challenge

discrimination against black grand jurors).

United States v. Blotcher, 142 F.3d 728 (4th

Cir. 1998) (Court improperly denied

defendant’s race neutral peremptory

challenge).

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

cert. denied, 523 U.S. 1033 (1998) (Juror’s

lies raised presumption of bias).

United States v. Herndon, 156 F.3d 629 (6th

Cir. 1998) (Denial of hearing on potentially

biased juror).

United States v. McFerron, 163 F.3d 952

(6th Cir. 1999) (Defendant did not have

burden of persuasion on neutral explanation

for peremptory strike).

United States v. Serino, 163 F.3d 91 (1st

Cir. 1999) (Defendant gave valid neutral

reason for striking juror).

Jordan v. Lefevre, 206 F.3d 196 (2d Cir.

2000) (Merely finding strike of juror

was rational does not determine

whether there was purposeful

discrimination).

United States v. Gonzalez, 214 F.3d

1109 (9th Cir. 2000) (Juror who

equivocated about fairness to sit in drug

case should have been excused).

McClain v. Prunty, 217 F.3d 1209 (9th

Cir. 2000) (Judge must investigate

whether purposeful jury selection

discrimination occurred).

United States v. Nelson, 277 F.3d 164

(2d Cir.), cert. denied, 537 U.S. 835

(2002) (Defendant cannot be forced to

trade for consent to seat biased juror).

Fernandez v. Roe, 286 F.3d 1073 (9th

Cir.), cert. denied, 537 U.S. 1000 (2002)

(Statistical disparities in use of strikes

are prima facie evidence of racial

discrimination).

United States v. Thomas, 320 F.3d 315

(2d Cir. 2003) (Court must make

credibility findings to support striking

minority jurors).

 

Wilson v. Beard, 426 F.3d 653 (3

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Cir.

 

2005) (Prosecutor struck all African-

Americans).

Miller-El v. Dretke, 545 U.S. 231 (2005)

(Prosecutor’s strikes were purposely

discriminatory).

United States v. Rodriguez-Lara, 421

F.3d 932 (9th Cir. 2005) (Court abused

discretion by denying court-appointed

expert to show racial disparity of

venire).

White v. Mitchell, 431 F.3d 517 (6th

Cir.), cert. denied, 127 S.Ct. 581 (2006)

(Juror admitting bias should have been

struck).

Williams v. Runnels, 432 F.3d 1102 (9th

Cir. 2006) (Claim of racial

discrimination was unrefuted).

Kesser v. Cambra, 465 F.3d 351(9th

Cir. 2006) (Prosecutor struck jurors

based on race).

United States v. Littlejohn, 489 F.3d

1335 (D.C. Cir. 2007) (Venire were told

not to mentioned family or friends in

law enforcement unless it prevented

them from being fair).

United States v. Odeneal, 517 F.3d 406

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(6th Cir. 2008) (Prosecutor’s race-neutral

reasons for exercising peremptory strike

against African-American prospective

juror were pretext for race

discrimination).

Snyder v. Louisiana, 128 S.Ct. 1203

(Prosecutor’s proffered reasons for

striking black prospective juror were

pretext for racial discrimination).

 

Closure

 

United States v. Doe, 63 F.3d 121 (2d

Cir. 1995) (Court summarily denied a

defendant’s request to close the trial for

his safety).

Okonkwo v. Lacy, 104 F.3d 21 (2d Cir.),

cert. denied, 524 U.S. 958 (1998) (Record

did not support closure of proceedings

during testimony of undercover officer).

Pearson v. James, 105 F.3d 828 (2d Cir.),

cert. denied, 524 U.S. 958 (1998)

(Closure of courtroom denied the right to

a public trial).

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

2001) (Total closure of courtroom

violated right to public trial).

United States v. Alcantara, 396 F.3d 189

(2d Cir. 2005) (Closure lacked notice to

public and sufficient findings on the

record).

United States v. Thunder, 438 F.3d 866

(8th Cir. 2006) (Closure of courtroom

denied public trial).

 

Jury Trial

 

United States v. Robertson, 45 F.3d 1423

(10th Cir.), cert. denied. 516 U.S. 844

(1995) (No evidence that the defendant

intelligently and voluntarily waived a

jury trial).

United States v. Ajmal, 67 F.3d 12 (2d

Cir. 1995) (Jurors should not question

witnesses as a matter of course).

United States v. Duarte-Higarenda, 113

F.3d 1000 (9th Cir. 1997) (Court failed to

question a non-English speaking

defendant over a jury waiver).

United States v. Iribe-Perez, 129 F.3d

1167 (10th Cir. 1997) (Jury was

erroneously told that the defendant

would plead guilty before start of trial).

United States v. Saenz, 134 F.3d 697 (5th

Cir. 1998) (Court’s questioning of a witness

gave appearance of partiality).

United States v. Tilghman, 134 F.3d 414

(D.C. Cir. 1998) (Court’s questioning of

defendant denied him a fair trial).

United States v. Mortimer, 161 F.3d 240

(3rd Cir. 1998) (Trial judge was absent

during defense closing).

United States v. Weston, 206 F.3d 9 (D.C.

Cir. 2000) (Use of anti-psychotic medication

was not supported by evidence of danger to

defendant or others).

United States v. Gomez-Lepe, 207 F.3d 623

(9th Cir. 2000) (Magistrate Judge could not

preside over polling jury in felony case).

United States v. Durham, 287 F.3d 1297

(11th Cir. 2002) (Defendant was forced to

wear “stun beltâ€? during trial).

Miller v. Dormire, 310 F.3d 600 (8th Cir.

2002) (Defendant did not waive right to jury

trial).

United States v. Curbelo, 343 F.3d 273 (4th

Cir. 2003) (Court may not proceed with

eleven jurors over defendant’s objection).

Ruimveld v. Birkett, 404 F.3d 1006 (6th Cir.

2005) (Defendant was shackled during trial).

Wisehart v. Davis, 408 F.3d 321 (7th Cir.

2005) (Hearing was needed to determine

bias of juror who knew Defendant took

polygraph).

United States v. Nickl, 427 F.3d 1286 (10th

Cir. 2005) (Judge’s comments were the

equivalent of testimony for government).

Bradley v. Harris, 428 F.3d 811 (9th Cir.),

amended, 518 F.3d 657 (2008) (Defendant

improperly excluded from in camera

conference).

United States v. Bailon-Santana, 429 F.3d

1258 (9th Cir. 2005) (Court must directly

question Spanish-speaking defendant about

jury waiver).

United States v. Robinson, 430 F.3d 537 (2d

Cir. 2005) (Court had discretion to grant

new trial when witness identifying

defendant had been impeached).

United States v. Nunez, 432 F.3d 573 (4th

Cir. 2005) (Court abused discretion by

allowing government to reopen after

summation).

United States v. Vitale, 459 F.3d 190

(2d Cir. 2006) (Court failed to conduct

post-trial hearing on juror bias

discovered during trial).

Lyell v. Renico, 470 F.3d 1177 (6th Cir.

2006) (Judge’s abuse and insults to

defense counsel denied due process).

Cunningham v. California, 549 U.S. 270

(2007) (Placing sentence-elevating

factfinding within the judge’s province,

violates a defendant’s right to trial by

jury).

United States v. Razmilovic, 507 F.3d

130 (2d Cir. 2007) (There was no

manifest necessity for mistrial and

defendant did not consent).

United States v. Mannie, 509 F.3d 851

(7th Cir. 2007) (Co-defendant’s

courtroom disruption prejudiced trial).

United States v. Rojas, 520 F.3d 876

(8th Cir. 2008) (When victim recanted,

trial court should have held hearing on

motion for new trial).

 

Confrontation

 

United States v. Hamilton, 46 F.3d 271

(3rd Cir. 1995) (Prosecution witnesses

were not unavailable when they could

have testified under government

immunity).

United States v. Lachman, 48 F.3d 586

(1st Cir. 1995) (Government exhibits

were properly excluded on grounds of

confusion and waste).

United States v. Strother, 49 F.3d 869

(2d Cir. 1995) (A statement,

inconsistent with the testimony of a

government witness, should have been

admitted).

United States v. Forrester, 60 F.3d 52

(2d Cir. 1995) (Agent improperly

commented on the credibility of another

witness).

United States v. Paguio, 114 F.3d 928

(9th Cir. 1997) (Missing witness’s selfincriminating

statement should have

been admitted).

United States v. Lis, 120 F.3d 28 (4th

Cir. 1997) (Ledger connecting another

to the crime was not hearsay).

United States v. Beydler, 120 F. 3d 985

(9th Cir. 1997) (Unavailable witness’s

 

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Federal Convictions Reversed

 

statement, incriminating the defendant,

was inadmissible hearsay).

United States v. Foster, 128 F.3d 949

(6th Cir. 1997) (Exculpatory grand jury

testimony should have been admitted at

trial).

United States v. Williams, 133 F.3d 1048

(7th Cir. 1998) (Statements by informant

to agent were hearsay).

United States v. Lowery, 135 F.3d 957

(5th Cir. 1998) (Court erroneously

excluded defendant’s evidence that he

encouraged witnesses to tell the truth).

United States v. Moses, 137 F.3d 894

(6th Cir. 1998) (Allowing child-witness to

testify by video violated right to

confrontation).

United States v. Marsh, 144 F.3d 1229

(9th Cir. 1998) (Admission of complaints

by defendant’s customers denied

confrontation).

United States v. Mitchell, 145 F.3d 572

(3rd Cir. 1998) (Anonymous note

incriminating defendant was

inadmissible hearsay).

United States v. Cunningham, 145 F.3d

1385 (D.C. Cir.), cert. denied, 525 U.S.

1059 (1998) (Unredacted tapes violated

confrontation).

United States v. Sanchez-Lima, 161 F.3d

545 (9th Cir. 1999) (Exclusion of

deposition denied right to put on

defense).

United States v. Saenz, 179 F.3d 686

(9th Cir. 1999) (Defendant was entitled

to show his knowledge of victim’s prior

acts of violence to support self-defense).

United States v. Torres-Ortega, 184 F.3d

1128 (10th Cir. 1999) (Admission of

grand jury testimony violated

confrontation).

United States v. Samaniego, 187 F.3d

1222 (10th Cir. 1999) (There was no

foundation for admission of business

records).

United States v. Sumner, 204 F.3d 1182

(8th Cir. 2000) (Child’s statement to

psychologist was hearsay).

United States v. Byrd, 208 F.3d 592 (7th

Cir. 2000) (Defendant was prevented

from introducing shackles and restraints

in which he was held during alleged

assault on officers).

LaJoie v. Thompson, 217 F.3d 663 (9th Cir.

2000) (Notice requirement of rape shield law

violated right of confrontation).

United States v. Rhynes, 218 F.3d 310 (4th

Cir. 2000) (Sequestered defense witness

should not have been excluded for violating

rule).

Schaal v. Gammon, 233 F.3d 1103 (8th Cir.

2000) (Admission of videotape of victim’s

statements violated confrontation).

Agnew v. Leibach, 250 F.3d 1308 (7th Cir.

2001) (Bailiff was improperly called to

testify about defendant’s confession).

United States v. Wells, 262 F.3d 455 (5th

Cir. 2001) (Witness could not testify to

contents of destroyed business records).

Brumley v. Wingard, 269 F.3d 629 (6th Cir.

2001) (Videotape should not have been

admitted without showing witness was

unavailable).

Cook v. McKune, 323 F.3d 825 (10th Cir.

2003) (State did not make reasonable effort

to locate key witness).

McKenzie v. Smith, 326 F.3d 721 (6th Cir.),

cert. denied, 540 U.S. 1158 (2005)

(Uncorroborated hearsay did not support

conviction).

United States v. Lopez, 340 F.3d 169 (3d

Cir. 2003) (Conviction based upon

inadmissible hearsay).

United States v. Casas, 356 F.3d 104 (1st

Cir.), clarified 359 F.3d 627, cert. denied,

541 U.S. 1069 (2004) (Drug conviction based

upon inadmissible hearsay from agent).

United States v. Turning Bear, 357 F.3d 730

(8th Cir. 2004) (Testimony via closed circuit

television violated confrontation).

Chia v. Cambra, 360 F.3d 997 (9th Cir.),

cert. denied, 544 U.S. 919 (2005) (Court

improperly used hearsay rule to exclude

defendant’s evidence).

United States v. Silva, 380 F.3d 1018 (7th

Cir. 2004) (Conviction was based on

hearsay).

Fischetti v. Johnson, 384 F.3d 140 (3rd Cir.

2004) (No showing that witnesses were

unavailable).

United States v. Cromer, 389 F.3d 662 (6th

Cir. 2004) (Statements by unavailable

witness denied confrontation).

United States v. Rodriguez-Marrero,

390 F.3d 1 (1st Cir.), cert. denied, 544

U.S. 912 (2005) (Admitting confession of

absent declarant violated

confrontation).

United States v. Gilbert, 391 F.3d 882

(7th Cir. 2004) (Admission of

statements by unavailable witness

violated confrontation).

Crawford v. Washington, 541 U.S. 36

(2004) (Admission of testimonial

statement, that was not subject to

cross-examination, violates

confrontation).

United States v. Kenyon, 397 F.3d 1071

(8th Cir. 2005) (Testimony of

physician’s assistant was inadmissible

hearsay).

United States v. Bordeaux, 400F.3d 548

(8th Cir. 2005) (Defendant denied

ability to confront sexual abuse

accuser).

Murillo v. Frank, 402 F.3d 786 (7th Cir.

2005) (Murder conviction based upon

hearsay).

United States v. Vega-Molina, 407 F.3d

511 (1st Cir.), cert. denied, 546 U.S. 919

(2005) (Court should have given

limiting instruction on co-defendant’s

confession).

Madrigal v. Bagley, 413 F.3d 548 (6th

Cir. 2005) (Admission of accomplice’s

confession violated confrontation).

United States v. Yates, 438 F.3d 1307

(11th Cir. 2006) (Two-way video

testimony denied confrontation).

Fulcher v. Motley, 444 F.3d 791 (6th

Cir. 2006) (Admission of wife’s

statements violated confrontation).

Davis v. Washington, 547 U.S. 813

(2006) (Witness affidavit was

testimonial evidence and violated

confrontation).

United States v. Jimenez, 464 F.3d 555

(5th Cir. 2006) (Defendant was not

allowed to cross-examine officer about

location during surviellance).

Vasquez v. Jones, 496 F.3d 564 (6th Cir.

2007) (Confrontation requires ability to

impeach witness with prior

convictions).

 

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Federal Convictions Reversed

 

Winzer v. Hall, 494 F.3d 1192 (9th Cir.

2007) (Officer’s hearsay testimony

violated Confrontation).

United States v. Yida, 498 F.3d 945 (9th

Cir. 2007) (Government was barred from

admitting former testimony of a witness

it deported without deposition).

United States v. Hearn, 500 F.3d 479

(6th Cir. 2007) (Introduction of

confidential informant’s statement

denied Confrontation).

United States v. Becker, 502 F.3d 122

(2d Cir. 2007) (Introduction of codefendants’

plea allocutions violated

Confrontation).

United States v. Bercier, 506 F.3d 625

(8th Cir. 2007) (Doctor’s testimony about

what victim said violated

Confrontation).

United States v. Conrad, 507 F.3d 424

(6th Cir. 2007) (Court failed to find

hearsay statement was made in

furtherance of conspiracy).

United States v. Alvarado-Valdez, 521

F.3d 337 (5th Cir. 2008) (Admission of

co-defendant’s statement made during

police interrogation violated

confrontation).

 

Impeachment

 

United States v. Cooks, 52 F.3d 101 (5th

Cir. 1995) (Court refused to allow

government witness to be questioned

about jeopardy from same charges).

United States v. Acker, 52 F.3d 509 (4th

Cir. 1995) (Prior consistent statements

were not admissible because they were

made prior to the witness having a

motive to fabricate).

United States v. Tory, 52 F.3d 207 (9th

Cir. 1995) (Witness’ statement that the

robber wore sweat pants was

inconsistent with prior statement that

he wore white pants).

United States v. Rivera, 61 F.3d 131 (2d

Cir.), cert. denied, 520 U.S. 1132 (1997)

(Court should not have admitted an

attached factual stipulation when

allowing defendant to impeach a witness

with a plea agreement).

United States v. Blum, 62 F.3d 63 (2d

Cir. 1995) (Court excluded evidence

relevant to the witness’ motive to

testify).

United States v. Platero, 72 F.3d 806 (10th

Cir. 1995) (Court excluded cross

examination of a sexual assault victim’s

relationship with a third party).

United States v. Landerman, 109 F.3d 1053

(5th Cir.), modified, 116 F.3d 119, cert.

denied, 522 U.S. 1033 (1997) (The defendant

should have been allowed to question a

witness about a pending state charge).

United States v. Mulinelli-Nava, 111 F.3d

983 (1st Cir. 1997) (Court limited cross

examination regarding theory of defense).

United States v. James, 169 F.3d 1210 (9th

Cir. 1999) (Records of victim’s violence were

relevant to self-defense).

Schledwitz v. United States, 169 F.3d 1003

(6th Cir. 1999) (Defendant could expose bias

of witness involved in investigation).

United States v. Manske, 186 F.3d 770 (7th

Cir. 1999) (Defendant could cross-examine

witness about his threats to other witnesses

about their testimony).

United States v. Beckman, 222 F.3d 512

(8th Cir. 2000) (Limiting defense cross

violated confrontation).

United States v. Doherty, 233 F.3d 1275

(11th Cir. 2000) (Court should have

admitted evidence of agent’s threat against

defense witness).

Wilkerson v. Cain, 233 F.3d 886 (5th Cir.

2000) (Limit on questioning eye witness

violated confrontation).

Redmond v. Kingston, 240 F.3d 590 (7th Cir.

2001) (Defendant was prohibited from cross

examining rape victim about prior false

claim).

United States v. Howell, 285 F.3d 1263

(10th Cir. 2002) (Court barred introduction

of witnesses’ prior felonies without first

finding prejudice).

United States v. Adamson, 291 F.3d 606

(9th Cir. 2002) (Restricting crossexamination

of key witness was error).

United States v. Chandler, 326 F.3d 210 (3d

Cir. 2003) (Court unduly limited defendant’s

right of cross-examination).

United States v. Love, 329 F.3d 981 (8th

Cir. 2003) (Court improperly limited crossexamination

of witness about his mental

illness and lack of memory).

Cotto v. Herbert, 331 F.3d 217 (2d Cir.

2003) (Defendant was prevented from

cross-examining the only eye witness).

Ortega v.Duncan, 333 F.3d 102 (2d Cir.

2003) (Perjured testimony required new

trial).

United States v. Buffalo, 358 F.3d 519

(8th Cir. 2004) (Defendant was

prevented from calling impeachment

witnesses).

United States v. Stephens, 365 F.3d 967

(11th Cir. 2004) (Defendant was

prevented from calling witnesses that

undermined government’s case).

United States v. Wilmore, 381 F.3d 868

(9th Cir. 2004) (Court restricted cross of

government witness).

United States v. Schoneberg, 396 F.3d

1036 (9th Cir. 2004) (Court prevented

lawyer from cross-examining witness).

Howard v. Walker, 406 F.3d 114 (2d

Cir. 2005) (Court limited defense cross

of expert).

 

Co-Defendant’s

Statements

 

United States v. Montilla-Rivera, 115

F.3d 1060 (1st Cir. 1997) (Exculpatory

affidavits of co-defendants, who claimed

Fifth Amendment privilege, were newly

discovered evidence regarding a motion

for new trial).

United States v. Glass, 128 F.3d 1398

(10th Cir. 1997) (Introduction of a codefendant’s

incriminating statement

violated Bruton).

United States v. Peterson, 140 F.3d 819

(9th Cir. 1998) (Bruton violation

occurred).

Gray v. Maryland, 523 U.S. 185 (1998)

(Bruton prohibited redacted confession,

which obviously referred to defendant).

Lilly v. Virginia, 527 U.S. 116 (1999)

(Admission of accomplice confession

denied confrontation).

United States v. McCleskey, 228 F.3d

640 (6th Cir. 2000) (Admission of nontestifying

co-defendant’s statement

denied confrontation).

United States v. Reynolds, 268 F.3d 572

 

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Federal Convictions Reversed

 

(8th Cir. 2001) (Evidence against codefendant

was inadmissible when he

admitted underlying crime).

Stapleton v. Wolfe, 288 F.3d 863 (6th

Cir. 2002) (Accomplice statements had

no indicia of reliability).

Hill v. Hofbauer, 337 F.3d 706 (6th Cir.

2003) (Co-defendant’s statement

establishing defendant’s malice should

have been excluded).

Ortiz v. Stevens, 465 F.3d 1229 (5th Cir.

2006) (Admission of accomplice’s

confession violated confrontation).

 

Misconduct

 

United States v. Flores-Chapa, 48 F.3d

156 (5th Cir. 1995) (Prosecutor referred

to excluded evidence).

United States v. Kallin, 50 F.3d 689 (9th

Cir. 1995) (Prosecutor commented upon

the defendant’s failure to come forward

with an explanation).

United States v. Gaston-Brito, 64 F.3d

11 (1st Cir. 1995) (Hearing was

necessary to determine if an agent

improperly gestured toward defense

table in front of the jury).

United States v. Tenorio, 69 F.3d 1103

(11th Cir. 1995) (Prosecutor commented

upon the defendant’s silence).

United States v. Roberts, 119 F.3d 1006

(1st Cir. 1997) (Prosecutor commented

on defendant’s failure to testify and

misstated burden of proof).

United States v. Rudberg, 122 F.3d 1199

(9th Cir. 1997) (Prosecutor vouched for a

witness’ credibility in closing argument).

United States v. Johnston, 127 F.3d 380

(5th Cir.), cert. denied, 522 U.S. 1152

(1998) (Prosecutor commented on the

defendant’s failure to testify and asked

questions highlighting defendant’s

silence).

United States v. Wilson, 135 F.3d 291

(4th Cir.), cert. denied, 523 U.S. 1143

(1998) (Prosecutor’s argument that

defendant was a murderer prejudiced

drug case).

United States v. Vavages, 151 F.3d 1185

(9th Cir. 1998) (Prosecutor coerced

defense witness into refusing to testify).

United States v. Maddox, 156 F.3d 1280

(D.C. Cir. 1999) (Prosecutor’s argument

referred to matters not in evidence).

United States v. Rodrigues, 159 F.3d 439,

amended, 170 F.3d 881 (D.C. Cir. 1999)

(Improper closing by prosecutor).

United States v. Richardson, 161 F.3d 728

(D.C. Cir. 1999) ( Improper remarks by

prosecutor).

United States v. Golding, 168 F.3d 700 (4th

Cir. 1999) (Prosecutor threatened defense

witness with prosecution if she testified).

United States v. Francis, 170 F.3d 546 (6th

Cir. 1999) (Cumulative acts of prosecutorial

misconduct).

Smith v. Groose, 205 F.3d 1045 (8th Cir.),

cert. denied, 531 U.S. 985 (2000)

(Prosecution argued contradictory facts in

two different but related trials).

United States v. Cabrera, 222 F.3d 590 (9th

Cir. 2000) ( Repeated references to “Cuban

drug dealers�).

United States v. Beeks, 224 F.3d 741 (8th

Cir. 2000) (Prosecutor’s questioning violated

prior in limine ruling).

United States v. LaPage, 231 F.3d 488 (9th

Cir. 2000) (Prosecutor used perjured

testimony).

Sandoval v. Calderon, 241 F.3d 765 (9th

Cir.), cert. denied, 534 U.S. 847 (2001)

(Prosecution referred to religious authority

for sentence).

United States v. Adkinson, 247 F.3d 1289

(11th Cir. 2001) (Bad faith inclusion of bank

fraud charge warranted reimbursement of

attorney’s fees).

United States v. Rodriguez, 260 F.3d 416

(5th Cir. 2001) (Prosecutor argued jury

could infer guilt from post-arrest silence).

Killian v. Poole, 282 F.3d 1204 (9th Cir.),

cert. denied, 537 U.S. 1179 (2003) (Reliance

on perjury in argument).

United States v. Conrad, 320 F.3d 851 (8th

Cir. 2003) (Prosecutor’s argument about

purpose of ban on sawed-off shotguns was

prejudicial).

United States v. Danielson, 325 F.3d 1054

(9th Cir. 2003) (Government deliberately

interfered with attorney-client relations by

obtaining trial strategy form informant).

United States v. Brown, 327 F.3d 867

(9th Cir. 2003) (Prosecutor improperly

referred to inadmissible prior acts in

closing).

United States v. Rutherford, 371 F.3d

634 (9th Cir. 2004) (IRS conduct may

have intimidated jurors).

United States v. Moore, 375 F.3d 259

(3rd Cir. 2004) (Calling defendant a

terrorist in closing was plain error).

United States v. Earle, 375 F.3d 1159

(D.C. Cir. 2004) (Prosecutor implied

defense acted improperly).

Hayes v. Brown, 399 F.3d 972 (9th Cir.

2005) (Prosecutor knowingly presented

false evidence).

United States v. Holmes, 413 F.3d 770

(8th Cir. 2005) (Prosecutor argued

defendant’s case was “smoke and

mirrors, red herrings�).

Hodge v. Hurley, 426 F.3d 368 (6th Cir.

2005) (Prosecutor made improper

argument).

Ben-Yisrayl v. Davis, 431 F.3d 1043

(7th Cir. 2005) (Prosecutor commented

on defendant’s silence).

Earp v. Ornoski, 431 F.3d 1158 (9th

Cir.), cert. denied, 547 U.S. 1159 (2006)

(Evidentiary hearing required for claim

that prosecutor threatened witness).

Weaver v. Bowersox, 438 F.3d 832 (8th

Cir.), cert. denied, 550 U.S. 598 (2007)

(Prosecutor argued own personal

belief).

United States v. Carpenter, 494 F.3d 13

(1st Cir. 2007) (Prosecutor’s repeated

disparagement of defendant warranted

new trial).

United States v. Azubike, 504 F.3d 30

(1st Cir. 2007) (Prosecutor’s misquoting

of defendant was prejudicial).

United States v. Jenkins, 504 F.3d 694

(9th Cir. 2007) (Prosecuting defendant

for admissions made during trial

reflected unrebutted vindictiveness).

United States v. Caruto, 532 F.3d 822

(9th Cir. 2008) (Prosecutor’s argument

that defendant’s initial statement

contained omissions violated her

subsequent invocation of silence).

 

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Federal Convictions Reversed

 

Extraneous Evidence

 

United States v. Rodriguez, 45 F.3d 302

(9th Cir. 1995) (Evidence of flight a

month after crime was inadmissible to

prove an intent to possess).

United States v. Blackstone, 56 F.3d

1143 (9th Cir. 1995) (Drug use was

improperly admitted in felon in

possession case).

United States v. Moorehead, 57 F.3d 875

(9th Cir. 1995) (Evidence that the

defendant was a drug dealer should not

have been admitted in firearms case).

United States v. Aguilar-Aranceta, 58

F.3d 796 (1st Cir. 1995) (Prior

misdemeanor drug conviction was more

prejudicial than probative in a

distribution case).

United States v. McDermott, 64 F.3d

1448 (10th Cir. 1995) (Evidence that the

defendant threatened a witness should

not have been admitted because it was

not clear the defendant knew the person

was a witness).

United States v. Vizcarra-Martinez, 66

F.3d 1006 (9th Cir. 1995) (Evidence of

personal use of methamphetamine at

the time of the defendant’s arrest was

inadmissible).

United States v. Elkins, 70 F.3d 81 (10th

Cir. 1995) (Evidence of the defendant’s

gang membership was improperly

elicited).

United States v. Irvin, 87 F.3d 860 (7th

Cir.), cert. denied, 519 U.S. 903 (1997)

(Court should have excluded testimony

that the defendant was in a motorcycle

gang).

United States v. Utter, 97 F.3d 509

(11th Cir. 1996) (In arson case, it was

error to admit evidence that the

defendant threatened to burn his

tenant’s house or that the defendant’s

previous residence had burned).

United States v. Lecompte, 99 F.3d 274

(8th Cir. 1996) (Evidence of prior contact

with alleged victims did not show plan

or preparation).

United States v. Jobson, 102 F.3d 214

(6th Cir. 1996) (Court failed to

adequately limit evidence of the

defendant’s gang affiliation).

United States v. Murray, 103 F.3d 310 (3rd

Cir. 1997) (Evidence that an alleged

murderer had killed before was improperly

admitted in a CCE case).

United States v. Fulmer, 108 F.3d 1486 (1st

Cir. 1997) (Allowing testimony about

bombing of federal building was prejudicial).

United States v. Paguio, 114 F.3d 928 (9th

Cir. 1997) (Evidence that the defendant

previously applied for a loan was

prejudicial).

Old Chief v. United States, 519 U.S. 172

(1997) (Court abused its discretion by

refusing to accept the defendant’s offer to

stipulate that he was a felon, in a trial for

being a felon in possession of a firearm).

United States v. Sumner, 119 F.3d 658 (8th

Cir. 1997) (When defendant denied the

crime occurred, prior acts to prove intent

were not admissible).

United States v. Millard, 139 F.3d 1200 (8th

Cir.), cert. denied, 525 U.S. 949 (1998) Prior

drug convictions erroneously admitted).

United States v. Mulder, 147 F.3d 703 (8th

Cir. 1998) (Bank’s routine practice was

irrelevant to fraud prosecution).

United States v. Ellis, 147 F.3d 1131 (9th

Cir. 1998) (Testimony about destructive

power of explosives was prejudicial).

United States v. Merino-Balderrama, 146

F.3d 758 (9th Cir. 1998) (Pornographic films

should not have been displayed in light of

defendant’s offer to stipulate).

United States v. Spinner, 152 F.3d 950 (D.C.

Cir. 1998) (Letter containing evidence of

prior bad acts should not have been

admitted).

United States v. Polasek, 162 F.3d 878 (5th

Cir. 1999) (Convictions of defendant’s

associates should not have been admitted).

United States v. Jean-Baptiste, 166 F.3d

102 (2d Cir. 1999) (Admission of prior bad

act was plain error absent evidence it

actually occurred).

United States v. Lawrence, 189 F.3d 838

(9th Cir. 1999) (Testimony regarding

defendant’s marriage was more prejudicial

than probative).

United States v. Heath, 188 F.3d 916 (7th

Cir. 1999) (Previous arrest was not

admissible prior bad act).

United States v. Anderson, 188 F.3d

886 (7th Cir. 1999) (Prior bad act was

more than 10 years old).

United States v. Walton, 217 F.3d 443

(7th Cir. 2000) (Evidence of prior

unsolved theft was irrelevant).

United States v. Jimenez, 214 F.3d

1095 (9th Cir. 2000) (Description of

defendant’s prior conviction involving

firearm was not harmless).

United States v. Varoudakis, 233 F.3d

113 (1st Cir. 2000) (Evidence of

previous fire was more prejudicial than

probative).

United States v. Grimes, 244 F.3d 375

(5th Cir. 2001) (Narratives found on

defendant’s computer should not have

been introduced in child porn case).

United States v. Haywood, 280 F.3d 715

(6th Cir. 2002) (Evidence of previous

possession had no bearing on alleged

sale).

Garceau v. Woodford, 281 F.3d 919 (9th

Cir.), cert. denied, 513 U.S. 848 (1994)

(Jury instruction drew attention to

prior unrelated crimes).

United States v. Jenkins, 345 F.3d 928

(6th Cir. 2003) (Evidence that

defendant smoked crack was

improperly admitted in distribution

case).

United States v. Johnson, 388 F.3d 96

(3d Cir. 2004) (Prior theft should not

have been admitted in carjacking

conspiracy).

United States v. Gonzalez-Flores, 418

F.3d 1093 (9th Cir. 2005) (Evidence that

smuggled aliens suffered heatstroke

was unfairly prejudicial).

United States v. Owens, 424 F.3d 649

(7th Cir. 2005) (Suggestion of prior

bank robbery was error).

United States v. Johnson, 439 F.3d 884

(8th Cir. 2006) (Admission of written

stories of child rape was error in child

pornography case).

United States v. Cunningham, 462 F.3d

708 (7th Cir. 2006) (Basis for wiretaps

improperly bolstered government’s

evidence).

United States v. Curtin, 489 F.3d 935

(9th Cir. 2007) (Government could not

 

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selectively excerpt pornographic stories

in defendant’s possession at time of

arrest).

United States v. Simpson, 479 F.3d 492

(7th Cir. 2007) (Evidence of unrelated

drug sales was inadmissible).

United States v. Curtin, 489 F.3d 935

(9th Cir. 2007) (Court should not have

admitted lewd stories written by

defendant without first reading them in

their entirety).

United States v. Bell, 516 F.3d 432 (6th

Cir. 2008) (Defendant’s prior drug

convictions were not admissible as

showing absence of mistake or accident).

 

Identification

 

United States v. Emanuele, 51 F.3d

1123 (3rd Cir. 1995) (Identification,

made after seeing the defendant in

court, and after a failure to identify him

before, should have been suppressed).

Lyons v. Johnson, 99 F.3d 499 (2d Cir.

1996) (Court denied the defendant the

right to display a witness in support of a

misidentification defense).

United States v. Montgomery, 100 F.3d

1404 (8th Cir. 1996) (Co-defendants

should have been required to try on

clothing, after defendant had to, when

the government put ownership at issue).

United States v. Rogers, 387 F.3d 925

(7th Cir. 2004) (Suggestive line-up

tainted courtroom identification).

United States v. Pugh, 405 F.3d 390 (6th

Cir. 2005) (Officer could not testify about

what was said at out-of-court

identification).

 

Expert Testimony

 

United States v. Boyd, 55 F.3d 667 (D.C.

Cir. 1995) (Officer relied upon improper

hypothetical in drug case).

United States v. Shay, 57 F.3d 126 (1st

Cir. 1995) (Defense expert should have

been allowed to explain that the

defendant had a disorder that caused

him to lie).

United States v. Posado, 57 F.3d 428

(5th Cir. 1995) (Per se rule prohibiting

polygraph evidence was abolished by

Daubert).

United States v. Childress, 58 F.3d 693

(D.C. Cir.), cert. denied, 516 U.S. 1098

(1996) (Defense expert should have been

allowed to testify on the defendant’s

inability to form intent).

United States v. Velasquez, 64 F.3d 844 (3rd

Cir. 1995) (Defense expert should have been

allowed to testify on the limitations of

handwriting analysis).

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

denied, 519 U.S. 1142 (1997) (Exclusion of a

witness’ failed polygraph results denied due

process).

United States v. Hall, 93 F.3d 1337 (7th Cir.

1996) (Expert testimony that the defendant

had a disorder that may have caused him to

make a false confession should have been

admitted).

Calderon v. U.S. District Court, 107 F.3d

756 (9th Cir.), cert. denied, 522 U.S. 907

(1997) (CJA funds for expert could be used

to exhaust a state claim).

United States v. Morales, 108 F.3d 1031

(9th Cir. 1997) (The court should not have

excluded a defense expert on bookkeeping).

Lindh v. Murphy, 124 F.3d 899 (7th Cir.),

cert. denied, 522 U.S. 1069 (1998)

(Defendant was prevented from examining

the state’s psychiatrist about allegations of

sexual improprieties with patients).

United States v. Word, 129 F.3d 1209 (11th

Cir. 1997) (Lay testimony of abuse to

defendant was admissible).

United States v. Dixon, 185 F.3d 393 (5th

Cir. 1999) (Court improperly refused

instruction on insanity based upon expert

testimony).

United States v. Barnette, 211 F.3d 803 (4th

Cir. 2000) ( Defendant was prevented from

presenting expert to answer government’s

rebuttal expert testimony).

United States v. Smithers, 212 F.3d 306

(6th Cir. 2000) (Court excluded expert on

identification without a hearing).

United States v. Velarde, 214 F.3d 1204

(10th Cir. 2000) (Court failed to make

reliability determination about

government’s expert testimony).

United States v. Henke, 222 F.3d 633 (9th

Cir. 2000) (Lay witness could not testify to

what defendant knew about regulatory

scheme).

United States v. Vallejo, 237 F.3d 1008,

amended, 246 F.3d 1150 (9th Cir. 2001)

(Exclusion of defense experts regarding

defendant’s ability to communicate in

English).

United States v. Watson, 260 F.3d 301

(3rd Cir. 2001) (Drug agents could not

give opinion about defendant’s intent).

United States v. McGowan, 274 F.3d

1251 (9th Cir. 2001) (Testimony about

nature of drug trafficking organizations

was inadmissible).

United States v. Varela-Rivera, 279

F.3d 1174 (9th Cir. 2002) (Erroneous

admission of testimony about general

operation of drug trafficking).

United States v. Pineda-Torres, 287

F.3d 860 (9th Cir.), cert. denied, 537

U.S. 1066 (2002) (Error to allow expert

testimony on structure of drug

organizations).

United States v. Finley, 301 F.3d 1000

(9th Cir. 2002) (Expert on defendant’s

atypical belief system improperly

excluded).

United States v. Bennett, 363 F.3d 947

(9th Cir.), cert. denied, 543 U.S. 950

(2004) (Officer’s testimony about global

positioning device violated best

evidence rule).

United States v. Hardin, 437 F.3d 463

(5th Cir. 2006) (Court refused to

appoint drug expert for indigent

defendant).

United States v. Lopez-Medina, 461

F.3d 724 (6th Cir. 2006) (Agent should

not have been allowed to give expert

testimony without cautionary

instruction).

United States v. Kaplan, 490 F.3d 110

(2d Cir. 2007) (District court erred in

admitting lay opinion testimony

regarding defendant’s and other’s

knowledge of the fraud).

Ferensic v. Birkett, 501 F.3d 469 (6th

Cir. 2007) (Exclusion of defense expert

for discovery violation denied right to

present a defense).

Parle v. Runnels, 505 F.3d 922 (9th Cir.

2007) (Cumulative error resulted from

erroneous admission of damaging cross

of defense expert).

United States v. Cohen, 510 F.3d 1114

 

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Federal Convictions Reversed

 

(9th Cir. 2007) (Defense psychiatrist

should have been allowed to testify

about personality disorder affecting

defendant’s ability to form intent).

United States v. Hasan, 526 F.3d 653

(10th Cir. 2008) (Defendant should have

been provided interpreter when called to

testify before grand jury).

 

Entrapment

 

United States v. Reese, 60 F.3d 660 (9th

Cir. 1995) (Entrapment instruction

failed to tell the jury that the

government must prove beyond a

reasonable doubt that the defendant was

predisposed).

United States v. Bradfield, 113 F.3d 515

(5th Cir. 1997) (Evidence supported an

instruction on entrapment).

United States v. Duran, 133 F.3d 1324

(10th Cir. 1998) (Entrapment instruction

failed to place burden on government).

United States v. Thomas, 134 F.3d 975

(9th Cir. 1998) (Defendant may present

good prior conduct to support

entrapment defense).

United States v. Sligh, 142 F.3d 761 (4th

Cir. 1998) (Court failed to give

instruction on entrapment).

United States v. Burt, 143 F.3d 1215

(9th Cir. 1998) (Entrapment instruction

failed to place proper burden on

government).

United States v. Gamache, 156 F.3d 1

(1st Cir. 1998) (Jury should have been

instructed on entrapment).

United States v. Poehlman, 217 F.3d 692

(9th Cir. 2000) ( Defendant was

entrapped as matter of law).

United States v. Brooks, 215 F.3d 842

(8th Cir. 2000) (Drug defendant was

entrapped as matter of law).

Bradley v. Duncan, 315 F.3d 1091 (9th

Cir.), cert. denied, 540 U.S. 963 (2003)

(Refusal to give entrapment instruction

was error).

United States v.Gurolla, 333 F.3d 944

(9th Cir.), cert. denied, 540 U.S. 995

(2003) (Court improperly denied

defendant ability to pursue entrapment

defense).

United States v. Luisi, 482 F.3d 43 (1st Cir.

2007) (Supplemental instructions, which

foreclosed the jury from considering the

defendant’s superior’s role in the asserted

government entrapment of defendant, were

erroneous).

 

Defenses

 

United States v. Tory, 52 F.3d 207 (9th Cir.

1995) (Defense was prevented from arguing

that an absence of evidence implied that

evidence did not exist).

United States v. Ruiz, 59 F.3d 1151 (11th

Cir.), cert. denied, 516 U.S. 1133 (1996)

(Defendant has the right to have the jury

instructed on his theory of defense).

United States v. Hall, 77 F.3d 398 (11th Cir.

1996) (Defendant’s counsel was improperly

prohibited from addressing general

principles of reasonable doubt in closing).

United States v. Otis, 127 F.3d 829 (9th

Cir.), cert. denied, 523 U.S. 1066 (1998)

(Duress instruction was omitted).

United States v. Benally, 146 F.3d 1232

(10th Cir. 1998) (Defendant was entitled to

instructions on self-defense and lesser

included offense).

United States v. Sanchez-Lima, 161 F.3d

545 (9th Cir. 1999) (Self-defense instruction

should have been given).

United States v. Smith, 217 F.3d 746 (9th

Cir. 2000) (Court failed to instruct upon

defendant’s theory of the case).

United States v. Chanthadara, 230 F.3d

1237 (10th Cir.), cert. denied, 534 U.S. 992

(2001) (Judge said that defense was a

“smoke screenâ€?).

United States v. Crowley, 236 F.3d 104 (2d

Cir. 2000) (Jury should have been charged

on voluntary intoxication).

United States v. Miguel, 338 F.3d 995 (9th

Cir. 2003) (Defendant was prevented from

arguing theory of the case).

United States v. Chin, 371 F.3d 31(2d Cir.

2004) (Receipts offered in support of alibi

were improperly excluded).

United States v. Boulware, 384 F.3d 794

(9th Cir. 2004) (Court excluded state

judgement that contradicted prosecution

case).

Jackson v. Edwards, 404 F.3d 612 (2d Cir.

2005) (Court refused justification

defense to manslaughter).

United States v. Burt, 410 F.3d 1100

(9th Cir. 2005)(Border agent’s

statements raised public authority

defense).

United States v. Biggs, 441 F.3d 1069

(9th Cir. 2006) (Self defense does not

require showing no reasonable

alternatives).

Holmes v. South Carolina, 547 F.3d 319

(2006) (State may not prohibit evidence

that a third party committed offense).

United States v. Veach, 455 F.3d 628

(6th Cir. 2006) (Defendant was entitled

to present defenses of voluntary

intoxication or diminished capacity).

United States v. Moran, 493 F.3d 1002

(9th Cir. 2007) (District court

erroneously excluded one defendant’s

testimony as hearsay that would have

comprised a critical element of

defendants’ good faith defense).

United States v. Canty, 499 F.3d 729

(7th Cir. 2007) (Failure to give notice of

public authority defense did not justify

barring defendant’s testimony of his

state of mind).

 

Jury Instructions

 

Smith v. Singletary, 61 F.3d 815 (11th

Cir.), cert. denied, 516 U.S. 1140 (1996)

(Court failed to give mitigating

instruction in a capital case).

United States v. Birbal, 62 F.3d 456

(2nd Cir. 1995) (Jurors were instructed

they “mayâ€? acquit, rather than they

“mustâ€? acquit, if the government did not

meet its burden).

United States v. Hairston, 64 F.3d 491

(9th Cir. 1995) (Alibi instruction was

required when evidence of alibi was

introduced in the government’s case).

United States v. Ahmad, 101 F.3d 386

(5th Cir. 1996) (Jury instructions in a

pollution case implied strict liability

rather than the requirement of

knowledge).

United States v. Rodgers, 109 F.3d 1138

(6th Cir. 1997) (If a court allows a jury

to review trial testimony, there must be

a cautionary instruction not to place

upon it undue emphasis).

 

23

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Federal Convictions Reversed

 

United States v. Bancalari, 110 F.3d

1425 (9th Cir. 1997) (Instruction omitted

the element of intent).

United States v. Doyle, 130 F.3d 523 (2d

Cir. 1997) (Erroneous instructions stated

that presumption of innocence and

reasonable doubt were to protect only

the innocent).

United States v. Wilson, 133 F.3d 251

(4th Cir. 1997) (Jury instructions did not

adequately impose burden of proving

knowledge).

United States v. Romero, 136 F.3d 1268

(10th Cir. 1998) (“Law of the caseâ€?

required element named in jury

instruction to be proven).

United States v. Rossomando, 144 F.3d

197 (2d Cir. 1998) (Ambiguous jury

instruction misled jurors).

United States v. Lampkin, 159 F.3d 607

(D.C. Cir.), cert. denied, 526 U.S. 1140

(1999) (Jury improperly instructed that

government could not prosecute juvenile

witnesses).

United States v. Prawl, 168 F.3d 622 (2d

Cir. 1999) (Court refused to instruct jury

not to consider co-defendants guilty

plea).

Jenkins v. Huchinson, 221 F.3d 679 (4th

Cir. 2000) (Reasonable doubt instruction

improperly indicated it was only

advisory).

United States v. Gardner, 244 F.3d 784

(10th Cir. 2001) (Failure to instruct on

uncorroborated accomplice testimony).

United States v. Brown, 287 F.3d 965

(10th Cir. 2002) (Defendant should have

been given instruction on lesser included

offense).

Davis v. Mitchell, 318 F.3d 682 (6th Cir.

2003) (Instructions left jurors with the

impression that a life sentence required

unanimity).

Powell v. Galaza, 328 F.3d 558 (9th Cir.

2003) (Court’s instruction improperly

removed element of specific intent).

Ho v. Carey, 332 F.3d 587 (9th Cir.

2003) (Court improperly instructed on

general intent regarding a specific intent

crime).

United States v. Combs, 369 F.3d 925

(6th Cir. 2004) (Instructions

impermissibly amended indictment).

United States v. Narog, 372 F.3d 1243 (11th

Cir. 2004) (Instruction constructively

amended indictment).

United States v. Trujillo, 390 F.3d 1267

(10th Cir. 2004) (Defendant did not have to

abandon a defense in exchange for favorable

instruction).

Smith v. Texas, 543 U.S. 37 (2004) (Death

penalty instruction failed to adequately

instruct on mitigation evidence).

United States v. Dobson, 419 F.3d 231 (3rd

Cir. 2005) (Fraud instruction did not require

a culpable mental state).

United States v. Alferhin, 433 F.3d 1148

(9th Cir. 2006) (When materiality is an

element, jury must be instructed so).

United States v. Quattrone, 441 F.3d 153

(2d Cir. 2006) (Instruction omitted intent to

obstruct justice).

Stark v. Hickman, 455 F.3d 1070 (9th Cir.

2006) (Instruction that presumed

defendant’s sanity was error).

United States v. Gaines, 457 F.3d 238 (2d

Cir. 2006) (Instruction that defendant had

motive to testify falsely was improper).

United States v. Hurwitz, 459 F.3d 463 (4th

Cir. 2006) (Instruction denied physician

good faith defense to distributing

prescription pain medicines).

United States v. Arnt, 474 F.3d 1159 (9th

Cir. 2007) (Court refused to give an

involuntary manslaughter instruction in

murder case involving intoxication).

United States v. Hernandez, 476 F.3d 791

(9th Cir. 2007) (Defendant was entitled to

instruction on lesser included crime of mere

possession).

United States v. Tobin, 480 F.3d 53 (1st Cir.

2007) (Instruction equating harassment

with repeated phone calls made in bad faith

was overly broad).

United States v. Kayser, 488 F.3d 1070 (9th

Cir. 2007) (Defendant is due a charge on his

theory of defense despite the strength or

weakness of the evidence).

 

Deliberations

 

United States v. Berroa, 46 F.3d 1195 (D.C.

Cir. 1995) (Allen charge varied from ABA

standard).

United States v. Harber, 53 F.3d 236

(9th Cir. 1995) (Case agent’s report was

taken into the jury room).

United States v. Burgos, 55 F.3d 933

(4th Cir. 1995) (Allen charge asked

jurors to think about giving up firmly

held beliefs).

United States v. Araujo, 62 F.3d 930

(7th Cir. 1995) (Verdict was taken from

eleven jurors when the twelfth was

delayed by car trouble).

United States v. Ottersburg, 76 F.3d

137 (7th Cir.), clarified, 81 F.3d 657

(1996) (Plain error to allow alternate

jurors to deliberate with the jury).

United States v. Manning, 79 F.3d 212

(1st Cir.), cert. denied, 519 U.S. 853

(1996) (Court should have given a “yes

or noâ€? answer to a deadlocked jury’s

question, rather than refer them to the

testimony).

United States v. Berry, 92 F.3d 597 (7th

Cir.), cert. denied, 523 U.S. 1143 (1998)

(Jury improperly considered a

transcript, rather than the actual tape).

United States v. Benedict, 95 F.3d 17

(8th Cir. 1996) (Trial court should not

have accepted partial verdicts).

United States v. Thomas, 116 F.3d 606

(2d Cir. 1997) (Juror should not have

been dismissed when he did not admit

to refusing to follow the law during

deliberations).

United States v. Hall, 116 F.3d 1253

(8th Cir. 1997) (Exposure of jury to

unrelated, but prejudicial matters,

required new trial).

United States v. Keating, 147 F.3d 895

(9th Cir. 1998) (Reasonable probability

of juror prejudice required new trial).

United States v. Lampkin, 159 F.3d 607

(D.C. Cir.), cert. denied, 526 U.S. 1140

(1999) (Jury was allowed to consider

tapes not in evidence).

United States v. Beard, 161 F.3d 1190

(9th Cir. 1999) (Error to substitute

alternates for jurors after deliberations

began).

United States v. Spence, 163 F.3d 1280

(11th Cir. 1999) (Juror dismissed

during deliberations without just

 

24

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Federal Convictions Reversed

 

cause).

United States v. Eastern Medical

Billing, Inc., 230 F.3d 600 (3rd Cir. 2000)

(Allen charge was coercive).

United States v. Lloyd, 269 F.3d 228

(3rd Cir. 2001) (Court overstepped

authority to inquire into juror’s

decision).

United States v. McElhiney, 275 F.3d

928 (10th Cir. 2001) (Allen instruction

was coercive).

French v. Jones, 332 F.3d 430 (6th Cir.),

cert. denied, 540 U.S. 1018 (2003) (Jury

deliberations were a critical stage of

trial that required counsel to be present

for note from deadlocked jury).

United States v. Alvarez-Farfan, 338

F.3d 1043 (9th Cir. 2003) (Jury should

have been allowed to compare

handwriting samples).

United States v. Peters, 349 F.3d 842

(5th Cir. 2003) (Judge’s ex parte

communication with juror was error).

Caliendo v. Warden of California Men’s

Colony, 365 F.3d 691 (9th Cir.), cert.

denied, 543 U.S. 927 (2000) (Prejudice

was presumed from detective’s 20-

minute conversation with jurors).

United States v. Lentz, 383 F.3d 191

(4th Cir. 2004) (Evidence that had not

been admitted was considered by jury).

Cannon v. Mullin, 383 F.3d 1152 (10th

Cir. 2004) (Improper contact between

jury and government witnesses).

United States v. Yarborough, 400 F.3d

17 (D.C. 2005) (Judge’s comments to jury

coerced conviction).

United States v. Southwell, 432 F.3d

1050 (9th Cir. 2005) (Court failed to

respond to note concerning the affect of

defendant’s sanity on verdict).

United States v. Ginyard, 444 F.3d 648

(D.C. Cir. 2006) (Court made inadequate

findings to support dismissing hold-out

juror).

United States v. Vasquez-Ruiz, 502 F.3d

700 (7th Cir. 2007) (Unrebutted

presumption of prejudice occurred when

juror’s notes had “Guiltyâ€? written).

United States v. Richard, 504 F.3d 1109

(9th Cir. 2007) (Replaying tape upon

jury request required instruction not to

overemphasize that evidence).

United States v. Jones, 504 F.3d 1218 (11th

Cir. 2007) (Charge to deadlocked jury was

coercive).

 

Variance

 

United States v. Gilbert, 47 F.3d 1116 (11th

Cir.), cert. denied, 516 U.S. 851 (1995)

(Proof of failure to comply with a directive of

a federal officer was in variance with the

original charge).

United States v. Johansen, 56 F.3d 347 (2d

Cir. 1995) (Variance when none of the

conspiracies alleged were proven).

United States v. Tsinhnahijinnie, 112 F.3d

988 (9th Cir. 1997) (Fatal variance between

pleading and proof of date of offense).

United States v. Mohrbacher, 182 F.3d 1041

(9th Cir. 1999) (Variance between charge of

transporting child pornography and proof of

mere receipt).

United States v. Ramirez, 182 F.3d 544 (7th

Cir. 1999) (Variance between charge and

proof in firearm case).

United States v. Morales, 185 F.3d 74 (2nd

Cir.), cert. denied, 529 U.S. 1010 (2000)

(Racketeering enterprise did not last for

duration alleged in indictment).

United States v. Shipsey, 190 F.3d 1081 (9th

Cir. 1999) (Court’s instruction to jury

constructively amended indictment).

United States v. Pigee, 197 F.3d 879 (7th

Cir.), cert. denied, 530 U.S. 1269 (2000)

(Jury instruction constructively amended

indictment).

United States v. McDermott, 245 F.3d 133

(2d Cir. 2001) (Variance between conspiracy

charged and proof at trial).

United States v. Collins, 350 F.3d 773 (8th

Cir. 2003) (Jury instruction constructively

amended indictment).

United States v. Ross, 412 F.3d 771 (7th Cir.

2005) (Substantial variance between date

charged and proof at trial).

United States v. Hoover, 467 F.3d 496 (5th

Cir. 2006) (Judge’s instruction allowed jury

to convict for different false statement than

charged).

United States v. Swafford, 512 F.3d 833 (6th

Cir. 2008) (There were multiple

conspiracies with different participants

alleged as a single conspiracy).

 

Speech / Assembly

 

United States v. Popa, 187 F.3d 672

(D.C. Cir. 1999) (Conviction for

harassing AUSA with racial epithets

violated first amendment).

United States v. Baugh, 187 F.3d 1037

(9th Cir. 1999) (Assembly at national

park could not be conditioned on

promise not to trespass).

United States v. Frandsen, 212 F.3d

1231 (11th Cir. 2000) (Requiring permit

to make public expression of views was

illegal prior restraint).

United States v. Poocha, 259 F.3d 1077

(9th Cir. 2001) (Use of profanity to a

park ranger was not disturbing the

peace).

United States v. Scarfo, 263 F.3d 80 (3d

Cir. 2001) (Prohibiting counsel’s

extrajudicial statements violated free

speech).

McCoy v. Stewart, 282 F.3d 626 (9th

Cir. 2002) (Gang members statements

to one another were protected by First

Amendment).

In Re Boston Herald, 321 F.3d 174 (1st

Cir. 2003) (Newspaper could not get

defendant’s financial affidavit under

CJA).

 

Interstate Commerce

 

United States v. Box, 50 F.3d 345 (5th

Cir.), cert. denied, 516 U.S. 918 (1995)

(Extortion of interstate travelers did

not involve interstate commerce).

United States v. Cruz, 50 F.3d 714 (9th

Cir. 1995) (Shipment of firearm in

interstate commerce must occur after

the firearm is stolen).

United States v. Quigley, 53 F.3d 909

(8th Cir. 1995) (Liquor store robbery did

not affect interstate commerce).

United States v. Grey, 56 F.3d 1219

(10th Cir. 1995) (Use of currency did

not involve interstate commerce).

United States v. Lopez, 514 U.S. 549

(1995) (“Gun-free school zone” law

 

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Federal Convictions Reversed

 

found unconstitutional).

United States v. Barone, 71 F.3d 1442

(9th Cir. 1995) (False checks did not

involve interstate commerce).

United States v. Denalli, 90 F.3d 444

(11th Cir. 1996) (Arson of neighbor’s

home did not involve interstate

commerce).

United States v. Gaydos, 108 F.3d 505

(3rd Cir. 1997) (Insufficient evidence

that arson involved interstate

commerce).

United States v. Izydore, 167 F.3d 213

(5th Cir. 1999) (No evidence that phone

calls crossed state lines for wire fraud

interstate nexus).

United States v. Wilson, 182 F.3d 737

(10th Cir. 1999) (Insufficient evidence of

child pornography shipped in interstate

commerce).

United States v. Spinner, 180 F.3d 514

(3rd Cir. 1999) (Indictment failed to

allege element of interstate commerce).

United States v. Causey, 185 F.3d 407

(5th Cir.), cert. denied, 530 U.S. 1277

(2000) ( No federal nexus shown

regarding communication).

Jones v. United States, 529 U.S. 848

(2000) (Residence that was not used for

commercial purpose did not involve

interstate commerce in arson case).

United States v. Wang, 222 F.3d 234

(6th Cir. 2000) (Robbery of cash did not

have sufficient impact on interstate

commerce).

United States v. King, 227 F.3d 732 (6th

Cir. 2000) (Arson did not affect

interstate commerce).

United States v. Corp, 236 F.3d 325 (6th

Cir. 2001) (Photos of child taken by

defendant did not have sufficient

connection to interstate commerce).

United States v. Johnson, 246 F.3d 749

(5th Cir. 2001) (Plea lacked factual basis

for connection to interstate commerce).

United States v. Carr, 271 F.3d 172 (4th

Cir. 2001) (Admission to arson of mobile

home that served as a church did not

satisfy interstate commerce prong).

United States v. Turner, 272 F.3d 380,

amended, 280 F.3d 1078 (6th Cir. 2002)

(Robbery of individual who ran illegal

lottery did not affect interstate commerce).

United States v. Chance, 306 F.3d 356 (6th

Cir. 2002) (Obstruction of state laws to

facilitate illegal gambling had insufficient

nexus to interstate commerce).

United States v. Jackson, 313 F.3d 231 (5th

Cir. 2002) (Insufficient evidence that city

received over $10K of federal funding under

theft statute).

United States v. Perrotta, 313 F.3d 33 (2d

Cir. 2002) (Intended victim was only an

employee of company participating in

interstate commerce).

United States v. Burton, 324 F.3d 768 (5th

Cir. 2003) (Government failed to prove

vehicle was manufactured out of state).

United States v. Lamont, 330 F.3d 1249 (9th

Cir. 2003) (Church arson had no federal

nexus).

Scheidler v. NOW, Inc., 547 U.S. 9 (2006)

(Acts affecting commerce that are neither

robbery nor extortion are not covered by

Hobbs Act).

United States v. Craft, 484 F.3d 922 (7th

Cir. 2007) (Motorcycle club was not in

interstate commerce for arson prosecution).

United States v. Schaefer, 501 F.3d 1197

(10th Cir. 2007) (Use of Internet is not alone

sufficient proof of interstate commerce).

 

Conspiracy

 

United States v. Newton, 44 F.3d 913 (11th

Cir.), cert. denied, 516 U.S. 857 (1995)

(Leasing residence for a drug dealer did not

prove the defendant’s participation in a

conspiracy).

United States v. Lluesma, 45 F.3d 408 (11th

Cir. 1995) (Proof of conspiracy to export

stolen vehicles was insufficient against

defendant who did odd jobs for midlevel

conspirator).

United States v. Flores-Chapa, 48 F.3d 156

(5th Cir. 1995) (Defendant’s beeper and

personal use of drugs was not proof of

conspiracy).

United States v. Lewis, 53 F.3d 29 (4th Cir.

1995) (Court failed to instruct the jury that

conspiring with a government agent alone

required an acquittal).

United States v. Ross, 58 F.3d 154 (5th

Cir.), cert. denied, 516 U.S. 954 (1995)

(Defendant was not a conspirator

merely because he sold drugs at same

location as conspirators).

United States v. Kim, 65 F.3d 123 (9th

Cir. 1995) (To be guilty of conspiracy,

the defendant must have known of the

illegal structuring).

United States v. Lopez-Ramirez, 68

F.3d 438 (11th Cir. 1995) (Insufficient

evidence of conspiracy as to defendant

who was present in home where 65

kilos of cocaine was delivered and then

seized).

United States v. Palazzolo, 71 F.3d

1233 (6th Cir. 1995) (Verdict form failed

to distinguish the object of the

conspiracy).

United States v. Martinez, 83 F.3d 371

(11th Cir.), cert. denied, 519 U.S. 998

(1997) (Defendant’s conviction for

conspiracy to possess cocaine was

reversed because there was no evidence

beyond defendant’s intent to help coconspirators

steal money).

United States v. Thomas, 114 F.3d 403

(3rd Cir. 1997) (Insufficient evidence of

a conspiracy, when it was not shown

that defendant knew cocaine was in bag

he was to retrieve).

United States v. Jensen, 141 F.3d 830

(8th Cir. 1998) (Insufficient evidence of

drug conspiracy).

United States v. Paul, 142 F.3d 836 (5th

Cir. 1998) (Insufficient evidence of

conspiracy to import).

United States v. Toler, 144 F.3d 1423

(11th Cir. 1998) (Insufficient evidence

that defendant participated in

conspiracy).

United States v. Thomas, 150 F.3d 743

(7th Cir. 1998) (Defendant was entitled

to instruction that buyer/seller

relationship is not itself a conspiracy).

United States v. Garcia, 151 F.3d 1243

(9th Cir. 1998) (Gang relationship alone

did not support conspiracy).

United States v. Gore, 154 F.3d 34 (2d

Cir. 1998) (Buyer/seller relationship did

not establish conspiracy).

United States v. Idowu, 157 F.3d 265

(3rd Cir. 1999) (Insufficient evidence

that defendant knew purpose of drug

 

26

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Federal Convictions Reversed

 

conspiracy).

United States v. Meyer, 157 F.3d 1067

(7th Cir.), cert. denied, 526 U.S. 1070

(1999) (Court should have instructed

that mere buyer/seller relationship did

not establish conspiracy).

United States v. Morillo, 158 F.3d 18

(1st Cir. 1999) (Insufficient evidence of

drug conspiracy).

United States v. Dekle, 165 F.3d 826

(11th Cir. 1999) (Insufficient evidence

that doctor conspired to illegally

distribute drugs).

United States v. Mercer, 165 F.3d 1331

(11th Cir. 1999) (Insufficient evidence of

a drug conspiracy).

United States v. Vaghela, 169 F.3d 729

(11th Cir. 1999) (Insufficient evidence of

conspiracy to obstruct justice).

United States v. Torres-Ramirez, 213

F.3d 978 (7th Cir. 2000) (Purchase of

drugs and knowledge of conspiracy did

not make defendant a co-conspirator).

United States v. Estrada-Macias, 218

F.3d 1064 (9th Cir. 2000) (Mere presence

and knowledge of a conspiracy were

insufficient to convict).

United States v. Fuchs, 218 F.3d 957

(9th Cir. 2000) (No instruction that

conspiracy must have occurred during

statute of limitations).

United States v. Rivera, 273 F.3d 751

(7th Cir.), cert. denied, 540 U.S. 922

(2003) (Mere buyer/seller relationship

was not conspiracy).

United States v. Garcia-Torres, 280 F.3d

1 (1st Cir. 2002) (Defendant involved in

kidnapping and murder did not know he

was aiding drug conspiracy).

United States v. Thomas, 284 F.3d 746

(7th Cir. 2002) (Two sales did not prove

membership in conspiracy).

United States v. Cruz, 285 F.3d 692 (8th

Cir. 2002) (Insufficient evidence of

conspiracy to distribute

methamphetamine).

United States v. Culps, 300 F.3d 1069

(9th Cir. 2002) (The number of days used

for multiplying against the average

amount of drugs sold overestimated the

amount of time of continuous drug

activity related to the conspiracy).

United States v. Hernandez, 301 F.3d 886

(8th Cir. 2002) (Defendant was not proven

to be part of methamphetamine conspiracy).

United States v. Shi, 317 F.3d 715 (7th

2003) (Buyer-seller relationship alone is not

a conspiracy).

United States v. Fitz, 317 F.3d 878 (8th Cir.

2003) (Failed to show defendant was aware

of conspiracy or knowingly agreed to join it).

United States v. Banuelos, 322 F.3d 700

(9th Cir. 2003) (Jury must find conduct that

increases statutory maximum).

United States v. Ceballos, 340 F.3d 115 (2d

Cir. 2003) (Insufficient evidence that

defendant joined bribery conspiracy).

United States v. Cartwright, 359 F.3d 281

(3d Cir. 2004) (Insufficient evidence that the

defendant knew the identity of the

substance charged in the drug conspiracy).

United States v. Mann, 389 F.3d 869 (9th

Cir.), cert. denied, 544 U.S. 955 (2005)

(Firearms found in locked safe were not

shown to be in furtherance of conspiracy).

United States v. Mendoza-Larios, 416 F.3d

872 (8th Cir. 2005) (Lacking ownership of

car containing drugs, there was insufficient

evidence of conspiracy).

United States v. Johnson, 440 F.3d 1286

(11th Cir.), cert. denied, 128 S.Ct. 262 (2007)

(Insufficient evidence of money laundering

conspiracy).

United States v. Arbane, 446 F.3d 1223

(11th Cir. 2006) (Agreement with

government informant alone was not a

conspiracy).

United States v. Brown, 459 F.3d 509 (5th

Cir.), cert. denied, 127 S.Ct. 2249 (2007)

(Defendant who was absent from critical

communications was not guilty in fraud

conspiracy).

United States v. Korey, 472 F.3d 89 (3rd

Cir. 2007) (Defendant must share goal of

conspiracy, not merely commit overt act).

United States v. Wexler, 522 F.3d 194 (2d

Cir. 2008) (Writing a prescription did not

constitute conspiracy to distribute a

controlled substance).

 

Firearms

 

Staples v. United States, 511 U.S. (1994)

(When defendant was prohibited from

possessing a particular kind of firearm,

it must be proven he knew that he

possessed that type of firearm).

United States v. Herron, 45 F.3d 340

(9th Cir. 1995) (Defendant whose civil

rights were restored was not prohibited

from possessing a firearm).

United States v. Caldwell, 49 F.3d 251

(6th Cir. 1995) (Licensed dealer who

sold firearm away from business was

not guilty of unlicensed sale).

United States v. Anderson, 59 F.3d

1323 (D.C. Cir.), cert. denied, 516 U.S.

999 (1995) (Multiple §924 (c) convictions

must be based on separate predicate

offenses).

Bailey v. United States, 516 U.S. 137

(1995) (Passive possession of firearm

was insufficient to prove “use” of

firearm during drug trafficking crime).

United States v. Kelly, 62 F.3d 1215

(9th Cir. 1995) (Defendant whose civil

rights were restored was not prohibited

from possessing a firearm).

United States v. Hayden, 64 F.3d 126

(3rd Cir. 1995) (Defendant should have

been allowed to introduce evidence of

his low intelligence and illiteracy to

rebut allegations that he knew he was

under indictment when buying a

firearm).

United States v. Edwards, 90 F.3d 199

(7th Cir. 1996) (Defendant must be

shown to know his shotgun is shorter

than 18 inches in length in order to be

liable for failure to register the

weapon).

United States v. Rogers, 94 F.3d 1519

(11th Cir.), cert. denied, 522 U.S. 252

(1998) (Government failed to prove a

defendant knew that he possessed a

fully automatic weapon).

United States v. Atcheson, 94 F.3d 1237

(9th Cir.), cert. denied, 519 U.S. 1140

(1997) (Each §924 (c) conviction must be

tied to a separate predicate crime).

United States v. Indelicato, 97 F.3d 627

(1st Cir.), cert. denied, 522 U.S. 835

(1997) (Defendant who did not lose his

civil rights could not be felon in

possession).

United States v. Casterline, 103 F.3d 76

(9th Cir.), cert. denied, 522 U.S. 835

(1997) (Felon in possession charge may

 

27

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Federal Convictions Reversed

 

not proven solely by ownership).

United States v. Paul, 110 F.3d 869 (2d

Cir. 1997) (Court failed to give duress

instruction in a felon in possession case).

United States v. Taylor, 113 F.3d 1136

(10th Cir. 1997) (Firearm found in

shared home was not shown to be

possessed by the defendant).

United States v. Stephens, 118 F.3d 479

(6th Cir. 1997) (Separate caches of

cocaine possessed on the same day, did

not support two separate gun

enhancements).

United States v. Westmoreland, 122

F.3d 431 (7th Cir. 1997) (Agent’s

presentation of inoperable firearm to

defendant, immediately before arrest,

did not support possession of a firearm

in relation to drug crime).

United States v. Gonzalez, 122 F.3d

1383 (11th Cir. 1997) (Evidence did not

support possession of a firearm while a

fugitive from justice).

United States v. Norman, 129 F.3d 1393

(10th Cir. 1997) (Felon whose civil rights

had been restored was not illegally in

possession of firearm).

United States v. Perez, 129 F.3d 1340

(9th Cir. 1997) (Jury should have been

required to decide the type of firearm).

United States v. Graves, 143 F.3d 1185

(9th Cir. 1998) (Accessory to felon in

possession had to know co-defendant

was a felon and possessed firearm).

United States v. Spinner, 152 F.3d 950

(D.C. Cir. 1998) (Failure to show firearm

was semiautomatic assault weapon).

United States v. Benboe, 157 F.3d 1181

(9th Cir. 1999) (Firearm conviction not

supported by evidence).

United States v. Sanders,157 F.3d 302

(5th Cir. 1999) (Insufficient evidence

that defendant carried firearm).

United States v. Mount, 161 F.3d 675

(11th Cir. 1999) (Weapon found in

stairwell was not carried).

United States v. Gilliam, 167 F.3d 628

(D.C.), cert. denied, 526 U.S. 1164 (1999)

(Failed to prove prior conviction in felon

in possession).

United States v. Aldrich, 169 F.3d 526

(8th Cir. 1999) (Vacating related gun count

required entire new trial on others).

United States v. Meza-Corrales, 183 F.3d

1116 (9th Cir. 1999) (Felon had civil rights

restored and could possess firearms).

United States v. Martin, 180 F.3d 965 (8th

Cir. 1999) (Insufficient evidence of

constructive possession of a firearm).

United States v. Fowler, 198 F.3d 808 (11th

Cir. 1999) (Restoration of rights by state

allowed firearms possession).

United States v. Howard, 214 F. 3d 361 (2d

Cir.), cert. denied, 531 U.S. 909 (2000) (Jury

could not infer defendant knew firearm was

stolen merely because he was felon, or that

firearm was found next to one with

obliterated serial number).

United States v. Adams, 214 F.3d 724 (6th

Cir. 2000) (Simultaneous possession of

firearm and ammunition may result in only

one conviction).

United States v. Coleman, 208 F.3d 786 (9th

Cir. 2000) (Insufficient evidence that

defendant knew co-defendant had a firearm

for armed bank robbery conviction).

United States v. Moerman, 233 F.3d 379

(6th Cir. 2000) (Defendant merely

brandished firearm, not otherwise used).

United States v. Mason, 233 F.3d 619 (D.C.

Cir. 2000) (Felon could get instruction that

firearm was briefly possessed for legal

purpose).

United States v. Hishaw, 235 F.3d 565 (10th

Cir.), cert. denied, 533 U.S. 908 (2001)

(Insufficient evidence that defendant

possessed firearm found under his car seat).

United States v. Sanders, 240 F.3d 1279

(10th Cir. 2001) (Evidence did not prove

defendant knew that weapon had silencer).

United States v. Finley, 245 F.3d 199 (2d

Cir.), cert. denied, 534 U.S. 1144 (2002)

(Single gun could not be used for two

possessions during a drug trafficking crime).

United States v. Laskie, 258 F.3d 1047 (9th

Cir. 2001) (“Honorable dischargeâ€? of drug

offense in Nevada counts as a set aside of

the prior conviction).

United States v. Osborne, 262 F.3d 486 (5th

Cir. 2001) (Civil rights were restored even

though state law was later changed).

United States v. Fix, 264 F.3d 532 (5th Cir.

2001) (Granting new trial for state

conviction removed disability to possess

firearm).

United States v. Gayle, 342 F.3d 89 (2d

Cir.), cert. denied, 544 U.S. 1026 (2005)

(Felon in possession of a firearm must

have been previously convicted in the

United States).

United States v.Rawlings, 341 F.3d 657

(7th Cir. 2003) (Without ability to

control firearm defendant did not have

constructive possession).

United States v. Jones, 371 F.3d 363

(7th Cir. 2004) (Accompanying straw

purchaser did not prove knowledge).

United States v. Hammond, 371 F.3d

776 (11th Cir. 2004) (Cardboard tube

containing gunpowder was not

explosive device).

United States v. Augustin, 376 F.3d 135

(3rd Cir. 2004) (Insufficient evidence

that defendant was drug user while

possessing firearm).

United States v. Rodriguez, 392 F.3d

539 (2d Cir. 2004) (Insufficient evidence

of drug distribution).

United States v. Jones, 393 F.3d 107

(2d Cir. 2004) (Drug and firearms

convictions were based on insufficient

evidence).

United States v. Harris, 397 F.3d 404

(6th Cir. 2005) (Jury did not find

firearm was semiautomatic for crime of

use during a drug offense).

United States v. Orellana, 405 F.3d 360

(5th Cir. 2005) (Defendant with

temporary immigration status was not

a prohibited person).

Small v. United States, 544 U.S. 385

(2005) (Defendant previously convicted

in foreign country was not prohibited

person).

United States v. Simpson, 442 F.3d 737

(9th Cir. 2006) (Defendant is not

prohibited person once civil rights are

restored).

United States v. Elrawy, 448 F.3d 309

(5th Cir. 2006) (Alien whose visa had

expired was improperly charged for

possession after entering with nonimmigrant

visa).

United States v. Brown, 449 F.3d 154

 

28

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Federal Convictions Reversed

 

(D.C. Cir.), amended 463 F.3d 1 (2006)

(Accidental discharge was not in

furtherance of drug trafficking).

United States v. Rios, 449 F.3d 1009

(9th Cir. 2006) (Mere possession of

firearm at residence was not in

furtherance of drug trafficking).

United States v. Frechette, 456 F.3d 1

(1st Cir. 2006) (Prior conviction for

domestic violence did have valid jury

trial waiver).

United States v. Palmer, 456 F.3d 484

(5th Cir. 2006) (Insufficient evidence to

support plea for possessing firearm in

furtherance of drug trafficking).

United States v. Chenowith, 459 F.3d

635 (5th Cir. 2006) (Defendant whose

civil rights had been restored could

possess firearm).

United States v. Nobriga, 474 F.3d 561

(9th Cir. 2006) (Reckless offense did not

meet definition of domestic violence).

United States v. Introcaso, 506 F.3d 260

(3rd Cir.), cert. denied, 128 S.Ct. 1324

(2008) (Rule of lenity applies to whether

unregistered firearm was an antique).

Parker v. Renico, 506 F.3d 444 (6th Cir.

2007) (Mere presence as passenger in

vehicle was insufficient to establish

possession of firearm).

United States v. Hill, 539 F.3d 1213

(10th Cir. 2008) (Defendant was not a

felon when prior never put him in

jeopardy to receive a sentence greater

than one year).

United States v. Daniel, 518 F.3d 205

(3d Cir. 2008) (Proof of lack of

authorization to possess firearm did not

constitute proof of lack of authorization

to possess ammunition).

 

Extortion

 

United States v. Tomblin, 46 F.3d 1369

(5th Cir. 1995) (Private citizen did not

act under color of official right).

United States v. Scotti, 47 F.3d 1237 (2d

Cir. 1995) (Facilitating payment of a

debt was not extortion).

United States v. Delano, 55 F.3d 720 (2d

Cir. 1995) (Services or labor were not

property within the meaning of a statute

used as a predicate for RICO).

United States v. Wallace, 59 F.3d 333 (2d

Cir. 1995) (Demanding payment from

fraudulent check scheme was not extortion).

United States v. Allen, 127 F.3d 260 (2d Cir.

1997) (Insufficient evidence of extortionate

credit when terms of loan were consensual).

United States v. Saadey, 393 F.3d 669 (6th

Cir. 2005) (Extortion not under color of

official right).

 

Drugs

 

United States v. Jones, 44 F.3d 860 (10th

Cir. 1995) (Car passenger was not shown to

have knowledge of the drugs).

United States v. Johnson, 46 F.3d 1166

(D.C. Cir. 1995) (Government failed to prove

distribution within 1000 feet of a school).

United States v. Valerio, 48 F.3d 58 (1st Cir.

1995) (Insufficient evidence that the drugs

were intended for distribution).

United States v. Andujar, 49 F.3d 16 (1st

Cir. 1995) (There was no more evidence

than mere presence).

United States v. Jones, 49 F.3d 628 (10th

Cir. 1995) (Inferences derived from standing

near open trunk did not prove knowledge).

United States v. Polk, 56 F.3d 613 (5th Cir.

1995) (Use of the defendant’s car and home

were insufficient to show participation).

United States v. Horsley, 56 F.3d 50 (11th

Cir. 1995) (Distribution of cocaine is lesser

included offense of distribution of cocaine

within a 1,000 feet of a school, and the jury

should be charged accordingly).

United States v. Kitchen, 57 F.3d 516 (7th

Cir. 1995) (Momentarily picking up a kilo

for inspection was not possession).

United States v. Kearns, 61 F.3d 1422 (9th

Cir. 1995) (Brief sampling of marijuana was

not possession).

United States v. Lucien, 61 F.3d 366 (5th

Cir. 1995) (Instruction on simple possession

should have been given in a drug

distribution case).

United States v. Applewhite, 72 F.3d 140

(D.C. Cir.), cert. denied, 517 U.S. 1227

(1996) (Government failed to prove

distribution within a 1000 feet of a school).

United States v. Derose, 74 F.3d 1177 (11th

Cir. 1996) (Insufficient evidence that the

defendant took possession of marijuana

when he did not have key to car where

drugs were stored).

United States v. Wozniak, 126 F.3d 105

(2d Cir. 1997) (Charge on marijuana

impermissibly amended indictment

alleging cocaine and

methamphetamine).

United States v. Hunt, 129 F.3d 739

(5th Cir. 1997) (There was insufficient

evidence of an intent to distribute).

United States v. Soto-Silva, 129 F.3d

340 (5th Cir. 1997) (Deliberate

ignorance instruction was not

warranted for charge of maintaining

premises for drug distribution).

United States v. Brito, 136 F.3d 397

(5th Cir.), cert. denied, 523 U.S. 1128

(1998) (Evidence that defendant was

asked to find drivers did not prove

constructive possession of hidden

marijuana).

United States v. Lombardi,138 F.3d 559

(5th Cir. 1998) (Evidence did not

support conviction for using juvenile to

commit drug offense).

United States v. Leonard, 138 F.3d 906

(11th Cir.), cert. denied, 526 U.S. 1059

(1999) (Insufficient evidence that

passenger of vehicle possessed drugs or

gun hidden in car).

United States v. Sampson, 140 F.3d 585

( 4th Cir. 1998) (Insufficient evidence

that drug offense occurred within 1000

feet of a playground or public housing).

United States v. Delagarza-Villarreal,

141 F.3d 133 (5th Cir. 1997)

(Insufficient evidence of possession of

marijuana where defendant never took

control).

United States v. Ortega-Reyna, 148

F.3d 540 (5th Cir. 1998) (Insufficient

evidence that drugs hidden in borrowed

truck were defendant’s).

United States v. Quintanar, 150 F.3d

902 (8th Cir. 1998) (No evidence that

defendant exercised control over

contraband).

United States v. Valadez-Gallegos, 162

F.3d 1256 (10th Cir. 1999) (Passenger

was not linked to contraband in

vehicle).

United States v. Edwards, 166 F.3d

 

29

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Federal Convictions Reversed

 

1362 (11th Cir. 1999) (Insufficient

evidence of drug possession where

defendant merely picked up package).

United States v. Orduno-Aguilera, 183

F.3d 1138 (9th Cir. 1999) (Insufficient

evidence that substance was illegal

steroid).

United States v. Monger, 185 F.3d 574

(9th Cir. 1999) (Court should have

instructed on lesser offense of simple

possession).

United States v. Garcia-Sanchez, 189

F.3d 1143 (9th Cir. 1999) (Drug

quantities not supported by evidence

where defendant did not agree to sell

from specific location).

United States v. Bryce, 208 F.3d 346 (2d

Cir.), cert. denied, 537 U.S. 884 (2002)

(Uncorroborated admissions were

insufficient to establish possession or

distribution).

United States v. Corral-Gastelum, 240

F.3d 1181 (9th Cir. 2001) (Mere

proximity to drugs did not prove

possession).

United States v. Noble, 246 F.3d 946

(7th Cir. 2001) (Failure to charge drug

quantity was plain error).

United States v. Huerto-Orozco, 272

F.3d 561 (8th Cir. 2001) (Insufficient

evidence that defendant possessed drugs

in bag found in cab).

United States v. Thomas, 274 F.3d 655

(2d Cir. 2001) (Failure to plead and

prove amount of crack limits

punishment to lowest statutory

maximum).

United States v. Henry, 282 F.3d 242 (3d

Cir. 2002) (Drug quantity raising

statutory maximum must be pleaded

and proven to jury).

United States v. Bennafield, 287 F.3d

320 (4th Cir.), cert. denied, 537 U.S. 961

(2002) (Simultaneous possession of

multiple packages was a single crime).

United States v. Allen, 302 F.3d 1260

(11th Cir. 2002) (Jury must decide type

and quantity of drugs when it affects

maximum punishment).

United States v. Velasco-Heredia, 319

F.3d 1080 (9th Cir. 2003) (Judge could

not make drug quantity finding that

increased statutory maximum

punishment).

United States v. Hodge, 321 F.3d 429 (3rd

Cir. 2003) (Wax/flour mixture cannot be

prosecuted as drug analogue).

United States v. Cabaccang, 332 F.3d 622

(9th Cir. 2003) (Flying drugs between points

in the U.S. is not importation even if

traveling into international airspace).

United States v. Cartwright, 359 F.3d 281

(3rd Cir. 2004) (Insufficient evidence that

defendant participated in drug transaction).

United States v. Trujillo, 390 F.3d 1267

(10th Cir. 2004) (Defendant was entitled to

lesser charge of simple possession).

United States v. Byfield, 391 F.3d 277 (D.C.

Cir. 2004) (Government failed to rebut

defense that weight of drugs was partly of

sugar).

United States v. Rodriguez, 392 F.3d 539

(2d Cir. 2004) (Insufficient evidence of drug

possession).

United States v. Jones, 393 F.3d 107 (2d

Cir. 2004) (Insufficient evidence of drug

distribution).

United States v. Selwyn, 398 F.3d 1064 (8th

Cir. 2005) (Enhanced drug quantity was not

submitted to jury).

United States v. Caseer, 399 F.3d 828 (6th

Cir. 2005) (No fair notice that Khat

contained controlled substance).

United States v. Collins, 401 F.3d 212 (4th

Cir. 2005) (Enhanced drug quantity was not

submitted to jury).

United States v. Moncivais, 401 F.3d 751

(6th Cir. 2005) (Enhanced drug quantity

was not submitted to jury).

United States v. Dunmire, 403 F.3d 722

(10th Cir. 2005) (Insufficient evidence of

charged drug quantity).

United States v. Scofield, 433 F.3d 580 (8th

Cir.), cert. denied, 547 U.S. 1215 (2006)

(Mere proximity to drugs is insufficient

evidence of possession).

United States v. Rojas Alvarez, 451 F.3d 320

(5th Cir. 2006) (Insufficient evidence spouse

knew drugs were in home).

United States v. Hall, 473 F.3d 1295 (10th

Cir. 2007) (Insufficient proof defendant

possessed drugs on charged date).

United States v. Stephens, 482 F.3d 669

(4th Cir. 2007) (Evidence was

insufficient to corroborate defendant’s

statement and establish his guilt of

drug crimes).

United States v. Esquivel-Ortega, 484

F.3d 1221 (9th Cir. 2007) (Insufficient

evidence that passenger had knowledge

of concealed drugs).

United States v. Lopez-Vanegas, 493

F.3d 1305 (11th Cir. 2007) (Discussing

drug crime to occur abroad does not

violate U.S. law).

United States v. Powell, 503 F.3d 147

(D.C. Cir.), cert. denied, 128 S.Ct. 1103

(2008) (Drug distribution within

proximity to a school applies only to

certain defined schools).

United States v. Brooks, 524 F.3d 529

(4th Cir. 2008) (Jury, not judge, must

make drug quantity findings to

determine statutory minimums and

maximums).

 

CCE / RICO

 

United States v. Barona, 56 F.3d 1087

(9th Cir.), cert. denied, 516 U.S. 1092

(1996) (Insufficient to find a CCE when

there were persons who could not be

legally counted as supervisees).

United States v. Witek, 61 F.3d 819

(11th Cir.), cert. denied, 516 U.S. 1060

(1996) (Mere buyer-seller relationship

did not satisfy management

requirement for conviction of engaging

in continuing criminal enterprise).

United States v. Russell, 134 F.3d 171

(3rd Cir. 1998) (CCE instruction

omitted unanimity requirement).

United States v. To, 144 F.3d 737 (11th

Cir. 1998) (Insufficient evidence of

RICO and Hobbs Act violations).

United States v. Polanco, 145 F.3d 536

(2d Cir.), cert. denied, 525 U.S. 1071

(1999) (Insufficient evidence that

defendant murdered victim to maintain

position in CCE).

Richardson v. United States, 526 U.S.

813 (1999) (Jury must agree on specific

violations).

United States v. Frega, 179 F.3d 793

(9th Cir.), cert. denied, 528 U.S. 1191

(2000) (Court’s instruction failed to

 

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Federal Convictions Reversed

 

identify potential predicate acts in RICO

case).

United States v. Glover, 179 F.3d 1300

(11th Cir.), cert. denied, 533 U.S. 936

(2001) (Role as organizer or leader must

be based on managing persons, not

merely assets).

United States v. McSwain, 197 F.3d 472

(10th Cir.), cert. denied, 529 U.S. 1138

(2000) (Conspiracy to manufacture and

distribute are lesser offenses of CCE).

United States v. Brown, 202 F.3d 691

(4th Cir. 2000) (Omission of instruction

requiring unanimity on specific

violations reversed CCE conviction).

United States v. Desena, 260 F.3d 150

(2d Cir. 2001) (Talk of “warâ€? and

“grabbing shirtsâ€? did not support CCE).

Williams v. Obstfeld, 314 F.3d 1270

(11th Cir. 2002) (Absent a joint

enterprise defendant could not be

vicariously liable for acts of others).

Soto-Negron v. Taber Partners I, 339

F.3d 35 (1st Cir. 2003) (Series of

improperly cashed checks were not

RICO predicates).

United States v. Cummings, 395 F.3d

392 (7th Cir. 2005) (Insufficient evidence

of RICO crimes).

 

Fraud / Theft

 

United States v. Cannon, 41 F.3d 1462

(11th Cir.), cert. denied, 516 U.S. 823

(1995) (Proof of false documents to elicit

payment on government contracts was

insufficient when documents did not

contain false information).

United States v. Manarite, 44 F.3d 1407

(9th Cir.), cert. denied, 516 U.S. 851

(1995) (Mailings were not related to

scheme to defraud).

United States v. Altman, 48 F.3d 96 (2d

Cir. 1995) (Mailings were too remote to

be related to the fraud).

United States v. Hammoude, 51 F.3d

288 (D.C. Cir.), cert. denied, 515 U.S.

1128 (1995) (Composite stamp did not

make a visa a counterfeit document).

United States v. Wilbur, 58 F.3d 1291

(8th Cir. 1995) (Physician who stole

drugs did not obtain them by deception).

United States v. Klingler, 61 F.3d 1234 (6th

Cir. 1995) (Customs broker’s

misappropriation of funds did not involve

money of the United States).

United States v. Valentine, 63 F.3d 459 (6th

Cir. 1995) (Government agent must convert

more that $5000 in a single year to violate

18 U.S.C. § 666).

United States v. Campbell, 64 F.3d 967 (5th

Cir. 1995) (Bank officers did not cause a loss

to the bank).

United States v. Lewis, 67 F.3d 225 (9th

Cir. 1995) (State chartered foreign bank was

not covered by the bank fraud statute).

United States v. Johnson, 71 F.3d 139 (4th

Cir. 1995) (Court improperly instructed the

jury that a credit union was federally

insured).

United States v. Mueller, 74 F.3d 1152 (11th

Cir. 1996) (Filing a misleading affidavit to

delay a civil proceeding involving a bank

was not bank fraud).

United States v. Morris, 81 F.3d 131 (11th

1996) (Sale of a phone that disguised its

identity was not fraud in connection with an

access device).

United States v. Allen, 88 F.3d 765 (9th

Cir.), cert. denied, 520 U.S. 1202 (1997)

(Government failed to prove that a credit

union was federally insured).

United States v. Wester, 90 F.3d 592 (1st

Cir. 1996) (Loan’s face value was not the

proper amount of loss when collateral was

pledged).

United States v. McMinn, 103 F.3d 216 (1st

Cir. 1997) (Defendant was not in the

business of selling stolen goods unless he

sold goods stolen by others).

United States v. Czubinski, 106 F.3d 1069

(1st Cir. 1997) (Merely browsing confidential

computer files was not wire fraud or

computer fraud).

United States v. Tencer, 107 F.3d 1120 (5th

Cir.), cert. denied, 522 U.S. 960 (1997)

(Insurance checks that were not tied to

fraudulent claims were insufficient proof of

mail fraud).

United States v. Todd, 108 F.3d 1329 (11th

Cir. 1997) (Defendant was improperly

prohibited from introducing evidence that

employees implicitly agreed that pension

funds could be used to save the company).

United States v. Cochran, 109 F.3d 660

(10th Cir. 1997) (There was insufficient

proof of mail fraud without evidence of

misrepresentation).

United States v. Parsons, 109 F.3d 1002

(4th Cir. 1997) (Money that defendant

legitimately spent as postal employee

could not be counted toward fraud).

United States v. Grossman, 117 F.3d

255 (5th Cir. 1997) (Personal use of

funds from business loan was not bank

fraud).

United States v. Cross, 128 F.3d 145

(3rd Cir.), cert, denied, 523 U.S. 1076

(1998) (Fixing cases was not mail fraud

just because court mailed disposition

notices).

United States v. LaBarbara, 129 F.3d

81 (2nd Cir. 1997) (Government failed

to show use of mails in a fraud case).

United States v. DeFries, 129 F.3d 1293

(D.C. Cir. 1997) (The court should have

given an advice of counsel instruction

on an embezzlement count).

United States v. Baird, 134 F.3d 1276

(6th Cir. 1998) (Instruction failed to

charge jury that contractor was only

liable for falsity of costs it claimed to

have incurred).

United States v. Adkinson, 135 F.3d

1363 (11th Cir. 1998) (Dismissal of

underlying bank fraud undermined

convictions for conspiracy, mail and

wire fraud schemes, and money

laundering).

United States v. Rodriguez, 140 F.3d

163 (2nd Cir. 1998) (Insufficient

evidence of bank fraud).

United States v. Ely, 142 F.3d 1113 (9th

Cir. 1997) (Government failed to prove

defendant was a bank director as

charged in the indictment).

United States v. D’Agostino, 145 F.3d

69 (2nd Cir. 1998) (Diverted funds were

not taxable income for purposes of tax

evasion).

United States v. Schnitzer, 145 F.3d

721 (5th Cir. 1998) (Impermissible

theory of fraud justified new trial).

United States v. Shotts, 145 F.3d 1289

(11th Cir.), cert. denied, 525 U.S. 1177

(1999) (Bail bond license was not

property within meaning of mail fraud

 

31

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Federal Convictions Reversed

 

statute).

United States v. Hughey, 147 F.3d 423

(5th Cir.), cert. denied, 525 U.S. 1030

(1998) (Passing bad checks was not

unauthorized use of an access device).

United States v. Evans, 148 F.3d 477

(5th Cir.), cert. denied, 525 U.S. 1112

(1999) (No evidence that mailings

advanced fraudulent scheme).

United States v. Blasini-Lluberas, 169

F.3d 57 (1st Cir. 1999) (There was no

misapplication of bank funds on a debt

not yet due).

United States v. Silkman, 156 F.3d 833

(8th Cir. 1998) (Administrative tax

assessment was not conclusive proof of

tax deficiency).

United States v. Adkinson, 158 F.3d

1147 (11th Cir. 1998) (Insufficient

evidence of fraud).

United States v. Rodrigues, 159 F.3d 439

(9th Cir.), amended, 170 F.3d 881 (1999)

(Insufficient evidence of fraud and theft).

United States v. Hanson, 161 F.3d 896

(5th Cir. 1999) (Factual questions about

bank fraud should have been decided by

jury).

United States v. Laljie, 184 F.3d 180 (2d

Cir. 1999) (No evidence that checks were

altered, that signatures were not

genuine, or that they were intended to

victimize bank).

United States v. Lindsay, 184 F.3d 1138

(10th Cir. 1999) (Insufficient evidence

that bank was FDIC insured).

United States v. Hartsel, 199 F.3d 812

(6th Cir.), cert. denied, 529 U.S. 1070

(2000) (Receipt of mailed bank

statements was not a fraudulent use of

mails).

United States v. Principe, 203 F.3d 849

(5th Cir. 2000) (Possession of counterfeit

document should not have been

sentenced under trafficking guidelines).

United States v. Tucker, 217 F.3d 960

(8th Cir. 2000) (Loss to IRS occurred

when taxes were due, not when

conspiracy began).

Cleveland v. United States, 531 U.S. 12

(2000) (Victim must actually receive the

item for there to be mail fraud).

United States v. Gee, 226 F.3d 885 (7th Cir.

2000) (Insufficient evidence of mail and wire

fraud where defendant did not conceal

material facts).

United States v. Rahseparian, 231 F.3d

1267 (10th Cir.), cert. denied, 532 U.S. 974

(2001) (Jury could not reasonably infer that

father knew of son’s fraudulent business

scheme).

United States v. Odiodio, 244 F.3d 398 (5th

Cir. 2001) (No bank fraud when bank not

subject to civil liability).

United States v. Howerter, 248 F.3d 198

(3rd Cir. 2001) (Person authorized to write

checks did not commit bank larceny by

cashing checks payable to himself).

United States v. Ali, 266 F.3d 1242 (9th Cir.

2001) (FDIC insurance at time of trail did

not prove bank was insured at time of

fraud).

United States v. La Mata, 266 F.3d 1275

(11th Cir.), cert. denied, 535 U.S. 989 (2002)

(Ex post facto application of bank fraud

statute).

United States v. Maung, 267 F.3d 1113

(11th Cir. 2001) (Defendant was not in the

business of selling stolen property).

United States v. Thomas, 315 F.3d 190 (3d

Cir. 2002) (Insufficient evidence of bank

fraud when there was no loss and no intent

to steal from a bank).

United States v. Bobo, 344 F.3d 1076 (11th

Cir. 2003) (Insufficient evidence of health

care fraud).

United States v. Habegger, 370 F.3d 441

(4th Cir. 2004) (Insufficient evidence of

trafficking in counterfeit goods).

United States v. Chandler, 388 F.3d 796

(11th Cir. 2004) (Promotional games were

not mail fraud).

United States v. Cacho-Bonilla, 404 F.3d 84

(1st Cir.), cert. denied, 546 U.S. 956 (2005)

(Insufficient evidence of false statement).

United States v. Cassese, 428 F.3d 92 (2d

Cir. 2005) (A defendant’s interest in a

transaction is insufficient to prove insider

trading).

United States v. Ligon, 440 F.3d 1182 (9th

Cir. 2006) (Archaeological value alone is not

value for purposes of a theft).

United States v. Ingles, 445 F.3d 830 (5th

Cir. 2006) (Insured had no knowledge

or arson and was not guilty of mail

fraud).

United States v. Hunt, 456 F.3d 1255

(10th Cir. 2006) (Checks signed with

authority were not forged securities).

United States v. Turner, 465 F.3d 667

(6th Cir. 2006) (Mail fraud cannot be

based upon the fact that official

received a salary).

United States v. Jones, 471 F.3d 478

(3rd Cir. 2006) (Employee’s theft of

funds did not affect delivery or payment

of health care benefits).

United States v. Milwitt, 475 F.3d 1150

(9th Cir. 2007) (Bankruptcy fraud must

be proven by showing identifiable

victims or class).

United States v. Thompson, 484 F.3d

877 (7th Cir. 2007) (Absent a tangible

benefit, or evidence of a corrupt motive,

steering of a contract for political

reasons, was not fraud).

United States v. Ratcliff, 488 F.3d 639

(5th Cir. 2007) (Deceiving voting public

to get re-elected was not mail fraud).

United States v. Spirk, 503 F.3d 619

(7th Cir. 2007) (Testimony that witness

probably received letter did not

establish a mailing).

United States v. Urciuoli, 513 F.3d 290

(1st Cir. 2008) (Instructions allowed

consideration of non-criminal behavior

of a legislator as a deprivation of honest

services).

United States v. Howard, 517 F.3d 731

(5th Cir. 2008) (An erroneous

instruction on fraud tainted a

remaining count for falsifying books).

 

Money Laundering

 

United States v. Newton, 44 F.3d 913

(11th Cir. 1995) (Proof of aiding and

abetting money laundering conspiracy

was insufficient against defendant who

leased house on behalf of conspirator).

United States v. Rockelman, 49 F.3d

418 (8th Cir. 1995) (Evidence failed to

show the transaction was intended to

conceal illegal proceeds).

United States v. Torres, 53 F.3d 1129

 

32

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Federal Convictions Reversed

 

(10th Cir.), cert. denied, 516 U.S. 883

(1995) (Buying a car with drug proceeds

was not money laundering).

United States v. Willey, 57 F.3d 1374

(5th Cir.), cert. denied, 516 U.S. 1029

(1995) (Transferring money between

accounts was insufficient evidence of an

intent to conceal).

United States v. Wynn, 61 F.3d 921

(D.C. Cir.), cert. denied, 516 U.S. 1015

(1995) (Insufficient evidence that the

defendant knew his structuring was

unlawful).

United States v. Nelson, 66 F.3d 1036

(9th Cir. 1995) (Defendant’s eagerness to

complete the transaction was not

sufficient to prove an attempt).

United States v. Kramer, 73 F.3d 1067

(11th Cir.), cert. denied, 519 U.S. 1011

(1996) (Transaction that occurred

outside of the United States was not

money laundering).

United States v. Phipps, 81 F.3d 1056

(11th Cir. 1996) (Not money laundering

to deposit a series of checks that are less

than $10K each).

United States v. Pipkin, 114 F.3d 528

(5th Cir.), cert. denied, 519 U.S. 821

(1996) (Defendant did not knowingly

structure a currency transaction).

United States v. High, 117 F.3d 464

(11th Cir. 1997) (Money laundering

instruction omitted the element of

willfulness).

United States v. Garza, 118 F.3d 278

(5th Cir. 1997) (Money laundering proof

was insufficient where defendants

neither handled nor disposed of drug

proceeds).

United States v. Christo, 129 F.3d 578

(11th Cir. 1997) (Check kiting scheme

was not money laundering).

United States v. Shoff, 151 F.3d 889 (8th

Cir. 1998) (Purchase with proceeds of

fraud was not money laundering).

United States v. Calderon, 169 F.3d 718

(11th Cir. 1999) (Insufficient evidence of

money laundering).

United States v. Zvi, 168 F.3d 49 (2d

Cir.), cert. denied, 528 U.S. 872 (1999)

(Charging domestic and international

money laundering based on the same

transactions was multiplicitous).

United States v. Brown, 186 F.3d 661 (5th

Cir. 1999) (Insufficient evidence of money

laundering when no proof checks were

connected to fraud).

United States v. Anderson, 189 F.3d 1201

(10th Cir. 1999) (Titling vehicle in mother’s

name did not prove money laundering).

United States v. Messer, 197 F.3d 330 (9th

Cir. 1999) (Coded language did not support

money laundering conviction).

United States v. Miranda, 197 F.3d 1357

(11th Cir. 1999) (Ex post facto application of

money laundering conspiracy statute)

United States v. Olaniyi-Oke, 199 F.3d 767

(5th Cir. 1999) (Purchase of computers for

personal use was not money laundering).

United States v. Loe, 248 F.3d 449 (5th

Cir.), cert. denied, 534 U.S. 974 (2001)

(When legitimate and illegal funds were

commingled, government had to prove

illegal funds were laundered).

United States v. Marshall, 248 F.3d 525 (6th

Cir.), cert. denied, 534 U.S. 925 (2001)

(Purchase of personal property was not

money laundering).

United States v. Braxton-Brown-Smith, 278

F.3d 1348 (D.C Cir.), cert. denied, 536 U.S.

932 (2002) (No presumption that money

drawn from commingled funds is unclean).

United States v. Corchado-Peralta, 318 F.3d

255 (1st Cir. 2003) (Insufficient evidence

defendant knew the character of the

money).

United States v. Carucci, 364 F.3d 339 (1st

Cir. 2004) (No connection shown between

alleged unlawful activity and financial

transactions).

 

Aiding and Abetting

 

United States v. de la Cruz-Paulino, 61 F.3d

986 (1st Cir. 1995) (Moving packages of

contraband and statements about police was

not aiding and abetting).

United States v. Luciano-Mosquero, 63 F.3d

1142 (1st. Cir.), cert. denied, 517 U.S. 1234

(1996) (No evidence that the defendant took

steps to assist in the use of a firearm).

United States v. Beckner, 134 F.3d 714 (5th

Cir. 1998) (Lawyer was not shown to have

knowledge of client’s fraud for aiding and

abetting).

United States v. Nelson, 137 F.3d 1094

(9th Cir.), cert. denied, 525 U.S. 901

(1999) (Evidence did not support aiding

and abetting use and carrying of a

firearm during crime of violence).

United States v. Stewart, 145 F.3d 273

(5th Cir. 1998) (Insufficient evidence

that passenger aided and abetted drug

possession without intent to distribute).

United States v. Garcia-Guizar, 160

F.3d 511 (9th Cir. 1999) (Insufficient

evidence of aiding and abetting when no

money found on defendant and was not

present at sale).

United States v. Wilson, 160 F.3d 732

(D.C. Cir.), cert. denied, 528 U.S. 828

(1999) (Insufficient evidence of aiding

and abetting murder or retaliation

where defendant only told shooter of

victim’s location).

United States v. Barnett, 197 F.3d 138

(5th Cir.), cert. denied, 529 U.S. 1111

(2000) (Insufficient evidence of

conspiring or aiding and abetting

murder for hire when defendant did not

share intent with principal).

United States v. Yakou, 428 F.3d 241

(D.C. Cir. 2005) (Cannot aid and abet

from outside United States).

United States v. Staples, 435 F.3d 860

(8th Cir.), cert. denied, 127 S.Ct. 148

(2007) (Causing a legitimate check to be

issued was not aiding and abetting

bank fraud).

United States v. Penaloza-Duarte, 473

F.3d 575 (5th Cir. 2006) (Defendant did

not knowingly associate with drug

trafficking venture).

United States v. Gardner, 488 F.3d 700

(6th Cir. 2007) (Driver of car did not aid

or abet possession of firearms by other

occupants).

 

Perjury

 

United States v. Hairston, 46 F.3d 361

(4th Cir.), cert. denied, 516 U.S. 840

(1995) (Ambiguity in the question to the

defendant was insufficient for perjury

conviction).

United States v. Dean, 55 F.3d 640

(D.C. Cir.), cert. denied, 516 U.S. 1184

(1996) (Statement that was literally

true did not support a perjury

conviction).

 

33

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Federal Convictions Reversed

 

United States v. Jaramillo, 69 F.3d 388

(9th Cir. 1995) (Defendant charged with

perjury by inconsistent statements must

have made both under oath).

United States v. Shotts, 145 F.3d 1289

(11th Cir.), cert. denied, 525 U.S. 1177

(1999) (Evasive, but true, answer was

not perjury).

 

False Statements

 

United States v. Gaudin, 515 U.S. 506

(1995) (Materiality is an element of a

false statement case).

United States v. Bush, 58 F.3d 482 (9th

Cir. 1995) (No material false statements

or omissions were made to receive union

funds).

United States v. Rothhammer, 64 F.3d

554 (10th Cir. 1995) (Contractual

promise to pay was not a factual

assertion).

United States v. Campbell, 64 F.3d 967

(5th Cir. 1995) (Defendant’s

misrepresentations to a bank were not

material).

United States v. McCormick, 72 F.3d

1404 (9th Cir. 1995) (Defendant who did

not read documents before signing them

was not guilty of making a false

statement).

United States v. Barrett, 111 F.3d 947

(D.C.), cert. denied, 522 U.S. 867 (1997)

(Defendant’s misrepresentation to court

was not a material false statement).

United States v. Farmer, 137 F.3d 1265

(10th Cir. 1998) (Answer to ambiguous

question did not support conviction for

false declaration).

United States v. Hodge, 150 F.3d 1148

(9th Cir. 1998) (Insufficient evidence of

false statements when no certification

made on documents).

United States v. Sorenson, 179 F.3d 823

(9th Cir. 1999) (Defendant’s false

statements were contained in an

unsigned loan application).

United States v. Walker, 191 F.3d 326

(2d Cir.), cert. denied, 529 U.S. 1080

(2000) (Insufficient proof that defendant

was responsible for more than 100 false

immigration documents).

United States v. Good, 326 F.3d 589 (4th

Cir. 2003) (Regulation that was basis for

alleged false statement was not effective at

time statement was made).

United States v. Cacioppo, 460 F.3d 1012

(8th Cir. 2006) (Failure to make disclosure

was not false statement when defendant did

not know requirement).

United States v. Horvath, 492 F.3d 1075

(9th Cir. 2007) (Presentence interview may

not be used to prosecute materially false

statement to federal government).

United States v. Robison, 505 F.3d 1208

(11th Cir. 2007) (Statements to agency must

be made knowingly false).

Boulware v. United States, 128 S.Ct. 1168

(2008) (Defendant was not required to show

that either he or the corporation that

distributed funds to him intended a capital

return when the distribution occurred, for

the purpose of defeating the tax deficiency

element of the tax evasion offense).

 

Contempt

 

United States v. Mathews, 49 F.3d 676

(11th Cir. 1995) (Certification of contempt

must be filed by the judge who witnessed

the alleged contempt).

United States v. Forman, 71 F.3d 1214 (6th

Cir. 1995) (Attorney was not in contempt for

releasing grand jury materials in partner’s

case).

United States v. Brown, 72 F.3d 25 (5th Cir.

1995) (Lawyer’s comments on a judge’s trial

performance were not reckless).

United States v. Mottweiler, 82 F.3d 769

(7th Cir. 1996) (Defendant must have acted

willfully to be guilty of criminal contempt).

United States v. Grable, 98 F.3d 251 (6th

Cir.), cert. denied, 519 U.S. 1059 (1997)

(Contempt order could not stand in light of

incorrect advice about Fifth Amendment

privilege).

Bingman v. Ward, 100 F.3d 653 (9th Cir.),

cert. denied, 520 U.S. 1188 (1997)

(Magistrate judge did not have the authority

to hold a litigant in criminal contempt).

United States v. Neal, 101 F3d 993 (4th Cir.

1996) (Plain error for a judge to prosecute

and preside over a contempt action).

United States v. Vezina, 165 F.3d 176 (2d

Cir. 1999) (Insufficient evidence of criminal

contempt of a TRO dealing with a third

party).

United States v. Harris, 314 F.3d 608

(D.C. Cir. 2002) (No competent evidence

that defendant refused to testify at

grand jury).

In Re Smothers, 322 F.3d 438 (6th Cir.

2003) (Proper notification was not

followed).

United States v. Murphy, 326 F.3d 501

(4th Cir. 2003) (An outburst in court

could only be charged as a single count

of contempt).

In re Troutt, 460 F.3d 887 (7th Cir.

2006) (Criminal contempt of attorney

did not follow rules of criminal

procedure).

United States v. Rangolan, 464 F.3d

321 (2d Cir. 2006) (Approaching juror in

cafeteria did not support contempt

conviction).

 

Immigration

 

United States v. Bahena-Cardenas, 70

F.3d 1071 (9th Cir. 1995) (Alien who

was not served with warrant of

deportation, was not guilty of illegal

reentry).

United States v. Dieguimde, 119 F.3d

933 (11th Cir. 1997) (Order of

deportation did not consider defendant’s

request for political asylum).

United States v. Gallardo-Mendez, 150

F.3d 1240 (10th Cir. 1998) (Prior guilty

plea did not prevent defendant from

contesting noncitizen status).

United States v. Pacheco-Medina, 212

F.3d 1162 (9th Cir. 2000) (Defendant

who was captured a few yards from

border did not enter United States).

United States v. Rodriguez-Fernandez,

234 F.3d 498 (8th Cir. 2000) (Without

detention order in place, defendant did

not escape from INS).

United States v. Ruiz-Lopez, 234 F.3d

445 (9th Cir. 2000) (Presence at border

is not the same as being found in the

United States).

United States v. Matsumaru, 244 F.3d

1092 (9th Cir. 2001) (Insufficient

evidence that attorney set up practice

to evade immigration laws).

 

34

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Federal Convictions Reversed

 

United States v. Herrera-Ochoa, 245

F.3d 495 (5th Cir. 2001) (Defendant’s

presence at trial could not be evidence

that he had previously entered United

States).

United States v. Ubaldo-Figueroa, 364

F.3d 1042 (9th Cir. 2004) (Defendant

denied due process when previous

removal proceeding was not translated

into Spanish).

United States v. Sosa, 387 F.3d 131 (2d

Cir. 2004) (Procedural defect at

deportation hearing voided illegal reentry

conviction).

United States v. Bello-Bahena, 411 F.3d

1083 (9th Cir. 2005)(Defendant placed in

official restraint upon entering country

was not “found in U.S.â€?).

United States v. Zavala-Mendez, 411

F.3d 1116 (9th Cir. 2005)(Alien who

proceeded directly to border station was

not “found in the U.S.â€?).

United States v. Smith-Baltiher, 424

F.3d 913 (2005) (Defendant entitled to

present defense of mistaken citizenship).

United States v. Lombera-Valdovinos,

429 F.3d 927 (9th Cir. 2005) (Deported

alien who only intended to be surrender

was not guilty of attempted illegal

reentry).

United States v. El Shami, 434 F.3d 659

(4th Cir. 2005) (Prior deportation was

undermined by lack of notice and

reasonable probability of relief).

United States v. Lopez-Perera, 438 F.3d

932 (9th Cir. 2006) (Alien at secondary

inspection had not “enteredâ€? United

States).

United States v. Lopez, 445 F.3d 90 (2d

Cir. 2006) (Deportation was defective in

that defendant had been falsely told he

had no grounds for relief).

United States v. Camacho-Lopez, 450

F.3d 928 (9th Cir.2006) (Defendant who

had been eligible for discretionary relief

was improperly deported).

United States v. Charleswell, 456 F.3d

347 (3rd Cir. 2006) (Deportation was

subject to attack over failure to inform

defendant of right to appeal).

United States v. Ozcelik, 527 F.3d 88

(3rd Cir. 2008) (Explaining to an alien

how to avoid detection was not

harboring, concealing or shielding him).

 

Pornography

 

United States v. McKelvey, 203 F.3d 66 (1st

Cir. 2000) (Single film strip with three

images was not “3 or more mattersâ€? under

child porn statute).

United States v. Henriques, 234 F.3d 263

(5th Cir. 2000) (At least three images must

travel in interstate commerce for child

pornography conviction).

United States v. Runyan, 290 F.3d 223 (5th

Cir.), cert. denied, 537 U.S. 888 (2002)

(Insufficient evidence that some of the

images were tied to Internet).

United States v. Ellyson, 326 F.3d 522 (4th

Cir. 2003) (Government failed to show

computer images involved an actual child).

United States v. Pearl, 324 F.3d 1210 (10th

Cir.), cert. denied, 539 U.S. 934 (2004)

(Convictions for materials that appeared

depict minors were unconstitutional).

 

Violent Crimes

 

United States v. Main, 113 F.3d 1046 (9th

Cir. 1997) (In an involuntary manslaughter

case, the harm must have been foreseeable

within the risk created by the defendant).

United States v. Wicklund, 114 F.3d 151

(10th Cir. 1997) (Murder for hire required a

receipt or promise of pecuniary value).

United States v. Yoakum, 116 F.3d 1346

(10th Cir. 1997) (Defendant’s interest in a

business, and his presence near time of fire,

did not support arson conviction).

United States v. Spruill, 118 F.3d 221 (4th

Cir.), cert. denied, 522 U.S. 1006 (1997)

(Insufficient evidence that a threat would be

carried out by fire or explosive).

Smith v. Horn, 120 F.3d 400 (3rd Cir.), cert.

denied, 522 U.S. 1109 (1998) (First degree

murder instruction failed to require specific

intent).

United States v. Bordeaux, 121 F.3d 1187

(8th Cir. 1997) (Jury instruction in an

abusive sexual contact case failed to require

force).

United States v. Estrada-Fernandez, 150

F.3d 491 (5th Cir. 1998) (Simple assault is

lesser included offense of assault with

deadly weapon).

United States v. Guerrero, 169 F.3d 933

(5th Cir. 1999) (Inconclusive

identification did not support bank

robbery conviction).

Jones v. United States, 526 U.S. 227

(1999) (Jury must decide whether

carjacking resulted in serious bodily

injury or death).

United States v. Wood, 207 F.3d 1222

(10th Cir. 2000) (Doctor’s injection of

drug to treat patient did not prove

premeditated murder).

United States v. Shumpert, 210 F.3d

660 (6th Cir. 2000) (Assault without

verbal threat was minor rather than

aggravated).

United States v. Baker, 262 F.3d 124

(2d Cir. 2001) (Instruction allowed

conviction without proving elements of

murder with intent to obstruct justice).

United States v. Peters, 277 F.3d 963

(7th Cir. 2002) (Victim’s intoxication

and disdain for the defendant did not

prove lack of consent to sexual act).

United States v. Glenn, 312 F.3d 58 (2d

Cir. 2002) (Insufficient evidence of

murder during drug conspiracy).

Patterson v. Haskins, 316 F.3d 596 (6th

Cir.), cert. denied, 128 S.Ct. 90 (2007)

(Instruction on involuntary

manslaughter omitted requirement of

proximate cause).

United States v. Odom, 329 F.3d 1032

(9th Cir. 2003) (Inadvertent display of a

firearm was not armed bank robbery).

Bunkley v. Florida, 538 U.S. 835 2020

(2003) (Legally possessed pocketknife

could not support armed burglary

conviction).

United States v. Hampton, 346 F.3d

813 (8th Cir. 2003) (Losing control of

vehicle was not an intentional assault

on official victim).

United States v. Bellew, 369 F.3d 450

(5th Cir. 2004) (Bank robbery requires

actual intimidation).

United States v. Frampton, 382 F.3d

213 (2d Cir.), cert. denied, 543 U.S.

1037 (2004) (Insufficient evidence of

murder-for-hire).

United States v. Davies, 394 F.3d 182

(3rd Cir. 2005) (Insufficient evidence of

 

35

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Federal Convictions Reversed

 

arson of church).

United States v. Harris, 420 F.3d 467

(5th Cir. 2005) (No evidence of intent to

kill or harm victim during carjacking).

United States v. Burton, 425 F.3d 1008

(5th Cir. 2005) (Insufficient evidence

that robbery involved a bank).

United States v. Sandles, 469 F.3d 508

(6th Cir.), cert. denied, 128 S.Ct. 229

(2007) (Bank investigator did not have

personal knowledge of FDIC insurance).

United States v. Banks, 514 F.3d 959

(9th Cir. 2008) (Violence in aid of a

racketeering enterprise required more

than an incidental motive to maintain

membership in gang).

United States v. Salgado, 519 F.3d 411

(7th Cir. 2008) (Statute criminalizing

robbing money belonging to the United

States was not violated when victim was

believed to be private actor and he had

no such money).

 

Assimilative Crimes

 

United States v. Devenport, 131 F.3d

604 (7th Cir. 1997) (Violation of a state

civil provision was not covered by

Assimilative Crimes Act).

United States v. Sylve, 135 F.3d 680 (9th

Cir. 1998) (Deferred prosecution was

available for charge under Assimilative

Crimes Act).

United States v. Waites, 198 F.3d 1123

(9th Cir. 2000) (Conduct that was

regulated federally should not have been

prosecuted under Assimilative Crimes

Act).

United States v. Provost, 237 F.3d 934

(8th Cir.), cert. denied, 533 U.S. 960

(2001) (Federal government cannot

prosecute state crime occurring on lands

that are no longer in Indian hands).

United States v. Prentiss, 273 F.3d 1277

(10th Cir. 2001) (Parties could not

stipulate victim was Indian when they

were not).

United States v. Martinez, 274 F.3d 897

(5th Cir. 2001) (Federal sentence that

was three times longer was not like

state sentence).

United States v. Bruce, 394 F.3d 1215

(9th Cir. 2005) (Defendant should have

been charged under statute for Indian

Lands).

 

Miscellaneous Crimes

 

United States v. Rodriguez, 45 F.3d 302 (9th

Cir. 1995) (Possessing an object designed to

be used as a weapon, while in prison, was a

specific intent crime).

United States v. Alkhabaz, 104 F.3d 1492

(6th Cir. 1997) (Transmission of e-mail

messages of torture, rape and murder did

not fall within federal statute without public

availability).

United States v. Grigsby, 111 F.3d 806 (11th

Cir. 1997) (Importation of prohibited wildlife

products fell under exceptions to statute).

United States v. Nyemaster, 116 F.3d 827

(9th Cir. 1997) (Insufficient evidence of

being under the influence of alcohol in a

federal park).

United States v. Cooper, 121 F.3d 130 (3rd

Cir. 1997) (Evidence did not support

conviction for tampering with a witness).

United States v. King, 122 F.3d 808 (9th

Cir. 1997) (Crime of mailing threatening

communication required a specific intent to

threaten).

United States v. Valenzeno, 123 F.3d 365

(6th Cir. 1997) (Obtaining a credit report

without permission was not a crime).

United States v. Farrell, 126 F.3d 484 (3rd

Cir. 1997) (Urging a witness to “take the

Fifth� was not witness tampering).

United States v. Rapone, 131 F.3d 188 (D.C.

Cir. 1997) (Evidence was insufficient to

show retaliation).

United States v. Romano, 137 F.3d 677 (1st

Cir. 1998) (Law prohibiting sale of illegally

taken wildlife did not cover the act of

securing guide services for hunting trip).

United States v. Cottman, 142 F.3d 160 (3rd

Cir. 1998) (Government is not a victim

under Victim Witness Protection Act).

United States v. Copeland, 143 F.3d 1439

(11th Cir. 1998) (Government contractor

was not bribed under federal statute).

United States v. Walker, 149 F.3d 238 (3rd

Cir. 1998) (Prison worker was not a

corrections officer).

United States v. Truesdale, 152 F.3d 443

(5th Cir. 1998) (Insufficient evidence of

illegal gambling).

United States v. Davis, 197 F.3d 662

(3rd Cir. 1999). (Insufficient evidence of

obstruction of justice and conspiracy

without proof of knowledge of pending

proceeding).

United States v. Bad Wound, 203 F.3d

1072 (8th Cir. 2000) (Defendant not

liable for acts of coconspirators prior to

entering conspiracy).

United States v. Naiman, 211 F.3d 40

(2d Cir. 2000) (Receipt of the funds is a

jurisdictional element of commercial

bribery).

United States v. Neuhausser, 241 F.3d

460 (6th Cir.), cert. denied, 534 U.S.

879 (2001) (Insufficient evidence to

support Travel Act conviction).

United States v. Ortlieb, 274 F.3d 871

(5th Cir. 2001) (Obstruction of justice

requires wrongful intent).

United States v. Leveque, 283 F.3d

1098 (9th Cir. 2002) (Lacey Act requires

defendant know taking game was

illegal).

United States v. Mulero–Joubert, 289

F.3d 168 (1st Cir. 2002) (For

trespassing, government must prove

defendant had actual or constructive

notice that presence was illegal).

United States v. Cohen, 301 F.3d 152

(3rd Cir. 2002) (Failure to prove agent

intended to obstruct justice by

misappropriating money).

Wallace v. Nash, 311 F.3d 140 (2d Cir.

2002) (Item that was not designed to be

weapon must be used in order for its

possession to be prohibited in a prison).

United States v. Hathaway, 318 F.3d

1001 (10th Cir. 2003) (Assault on

federal officer defines three offenses

and each must be charged separately).

United States v. Murphy, 323 F.3d 102

(3rd Cir. 2003) (Bribery Act does not

criminalize ordinary patronage).

United States v. Leftenant, 341 F.3d

338 (4th Cir.), cert. denied, 540 U.S.

1160 (2004) (Single act of counterfeiting

did not justify multiple counts of

conviction).

United States v. Lincoln, 403 F.3d 703

 

36

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Federal Convictions Reversed

 

(9th Cir. 2005) (Predicting the President

would be harmed by others was not a

threat).

Arthur Anderson L.L.P. v. United

States, 544 U.S. 696 (2005) (Obstruction

of justice requires proof of conscious

wrongdoing).

United States v. Cassel, 408 F.3d 622

(9th Cir. 2005) (Threat must be intended

as such by speaker).

United States v. Norris, 428 F.3d 907

(9th Cir. 2005) (Evidence of sexual

contact was insufficient when

defendant’s statement was

uncorroborated).

Valdes v. United States, 475 F.3d 1319

(D.C. Cir. 2007) (Search on law

enforcement computer was not official

act for bribery).

United States v. Reddest, 512 F.3d 1067

(8th Cir. 2008) (Evidence of sexual abuse

involving penetration was insufficient).

United States v. Villanueva-Sotelo, 515

F.3d 1234 (8th Cir. 2008) (The

aggravated identity theft statute

requires that the government must

prove the defendant actually knew the

identification in question belonged to

someone else).

United States v. Mitchell, 518 F.3d 230

(4th Cir. 2008) (False driver’s license

offered as identification did not identify

a specific real individual as required to

convict for aggravated identity theft).

United States v. Madera, 528 F.3d 852

(11th Cir. 2008) (It was not a crime to

failure to register as a sex offender

between the time of the statute’s

enactment and the promulgation of

enforcing regulation).

 

Ineffective Assistance

of Counsel

 

Esslinger v. Davis, 44 F.3d 1515 (11th

Cir. 1995) (Counsel failed to determine

that the defendant was a habitual

offender before plea).

United States v. Cook, 45 F.3d 388 (10th

Cir. 1995) (Court infringed on counsel’s

professional judgement).

United States v. Hansel, 70 F.3d 6 (2d

Cir. 1995) (Counsel failed to raise

statute of limitations).

Upshaw v. Singletary, 70 F.3d 576 (11th

Cir. 1995) (Claim of ineffective assistance of

counsel at plea was not waived even though

not raised on direct appeal).

United States v. Streater, 70 F.3d 1314

(D.C. 1995) (Counsel gave bad legal advice

about pleading guilty).

Sager v. Maass, 84 F.3d 1212 (9th Cir. 1996)

(Counsel was found ineffective for not

objecting to inadmissible evidence).

United States v. Del Muro, 87 F.3d 1078

(9th Cir. 1996) (Prejudice was presumed

when trial counsel was forced to prove his

own ineffectiveness at a hearing).

Baylor v. Estelle, 94 F.3d 1321 (9th Cir.),

cert. denied, 520 U.S. 1151 (1997) (Counsel

was ineffective for failing to follow up on lab

reports suggesting that the defendant was

not the rapist).

Huynh v. King, 95 F.3d 1052 (11th Cir.

1996) (Lawyer’s failure to raise a

suppression issue was grounds for remand).

Martin v. Maxey, 98 F.3d 844 (5th Cir.

1996) (Failure to file a motion to suppress

could be grounds for ineffectiveness claim).

United States v. Kauffman, 109 F.3d 186

(3rd Cir. 1997) (Failure to investigate

insanity defense was ineffective assistance

of counsel).

Williamson v. Ward, 110 F.3d 1508 (10th

Cir. 1997) (Failure to investigate the

defendant’s mental illness was ineffective

assistance of counsel).

United States v. Gaviria, 116 F.3d 1498

(D.C. Cir.), cert. denied, 522 U.S. 1082

(1997) (Counsel was ineffective for giving

incorrect sentencing information in

contemplation of plea).

United States v. Taylor, 139 F.3d 924 (D.C.

Cir. 1998) (Counsel was ineffective for

failing to inform client of advice of counsel

defense).

Tejeda v. Dubois, 142 F.3d 18 (1st Cir. 1998)

(Counsel’s fear of trial judge hindered

defense).

United States v. Kliti, 156 F.3d 150 (2d Cir.

1998) (Defense counsel who witnessed

exculpatory statement had conflict).

United States v. Moore, 159 F.3d 1154 (9th

Cir. 1999) (Irreconcilable conflict between

defendant and lawyer).

United States v. Alvarez-Tautimez, 160

F.3d 573 (9th Cir. 1999) (Counsel

ineffective for failing to withdraw plea

after co-defendant’s suppression motion

granted).

United States v. Granados, 168 F.3d

343 (8th Cir. 1999) (Counsel was

ineffective for failure to challenge

breach of plea agreement).

United States v. Hall, 200 F.3d 962 (6th

Cir. 2000) (Despite waiver, dual

representation denied effective

assistance of counsel).

Combs v. Coyle, 205 F.3d 269 (6th Cir.),

cert. denied, 531 U.S. 1035 (2000)

(Counsel failed to object to post arrest

statement, or to investigate defense

expert witness).

United States v. Patterson, 215 F.3d

812 (8th Cir. 2000) (Absences of counsel

during trial denied effective assistance).

United States v. McCoy, 215 F.3d 102

(D.C. Cir. 2000) (But for counsel’s

deficient performance, defendant would

not have pled guilty).

Washington v. Hofbauer, 228 F.3d 689

(6th Cir. 2000) (Counsel’s failure to

object to prosecutor’s misconduct was

ineffective assistance).

Cossel v. Miller, 229 F.3d 649 (7th Cir.

2000) (Counsel was ineffective for

failing to object to suggestive in-court

identification).

United States v. Davis, 239 F.3d 283

(2d Cir. 2001) (Counsel was ineffective

by threatening to withhold services to

encourage plea).

Wanatee v. Ault, 259 F.3d 700 (8th Cir.

2001) (Counsel failed to advise client of

affect of felony-murder rule).

Glover v. Miro, 262 F.3d 268 (4th Cir.

2001) (Overworked attorney did not

spend enough time with client).

Burdine v. Johnson, 262 F.3d 336 (5th

Cir.), cert. denied, 535 U.S. 1120 (2002)

(Attorney slept through portions of

trial).

Burns v. Gammon, 260 F.3d 892 (8th

Cir. 2001) (Failure to raise objection to

prosecutor’s misconduct during closing

argument).

 

37

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Federal Convictions Reversed

 

Hunt v. Mitchell, 261 F.3d 575 (6th Cir.

2001) (Defendant denied right to confer

with new counsel ten minutes before

trial).

Magana v. Hofbauer, 263 F.3d 542 (6th

Cir. 2001) (Counsel misinformed

defendant about effect of plea

agreement).

Dixon v. Snyder, 266 F.3d 693 (7th Cir.

2001) (Counsel misunderstood

admissibility of witness statements).

Manning v. Huffman, 269 F.3d 720 (6th

Cir. 2001) (Failure to object to

participation of deliberation by alternate

jurors).

Fisher v. Gibson, 282 F.3d 1283 (10th

Cir. 2002) (Counsel failed to adequately

argue against weak prosecution case).

Haynes v. Cain, 298 F.3d 375 (5th Cir.

2002) (Counsel conceded defendant’s

guilt on several counts over objection).

Pirtle v. Morgan, 313 F.3d 1160 (9th

Cir.), cert. denied, 539 U.S. 916 (2003)

(Counsel failed to request diminished

capacity jury instruction).

Catalan v. Cockrell, 315 F.3d 491 (5th

Cir. 2002) (Failure to prepare for trial

and reliance on conflicted counsel).

Mitchell v. Mason, 325 F.3d 732 (6th

Cir.), cert. denied, 543 U.S. 1080 (2005)

(Period of pretrial investigation and

consultation is a critical stage of trial).

United States v. Leonti, 326 F.3d 1111

(9th Cir. 2003) (Failing to assist client in

cooperation with government can be

ineffective assistance of counsel).

Joshua v. Dewitt, 341 F.3d 430 (6th Cir.

2003) (Failure to challenge probable

cause was ineffective assistance of

counsel).

United States v. Leibach, 347 F.3d 219

(7th Cir. 2003) (Counsel was ineffective

for failing to investigate exculpatory

evidence and not keeping promises made

in opening statement).

Moore v. Bryant, 348 F.3d 238 (7th Cir.

2003) (Counsel gave inaccurate advice to

induce guilty plea).

Reagan v. Norris, 365 F.3d 616 (8th Cir.

2004) (Ineffective assistance of counsel

for failing to object to charge omitting

essential element).

Soffar v. Dretke, 368 F.3d 441 (5th Cir.

2004) (Defense counsel failed to interview

exculpatory witness).

United States v. Levy, 377 F.3d 259 (2d Cir.

2004) (Counsel’s overall performance was

ineffective).

Miller v. Webb, 385 F.3d 666 (6th Cir. 2004)

(Counsel was ineffective at jury selection).

Owens v. United States, 387 F.3d 607 (7th

Cir. 2004) (Failure to move to suppress

evidence was ineffective).

Turner v. Bagley, 401 F.3d 718 (6th Cir.

2005) (Counsel’s actions caused loss of

ability to appeal).

United States v. Jones, 403 F.3d 604 (8th

Cir. 2005) (Counsel failed to challenge

multiplicitous indictment).

Henry v. Poole, 409 F.3d 48 (2d Cir.), cert.

denied 547 U.S. 1040 (2006) (Counsel

elicited alibi for wrong time period).

Tenny v. Dretke, 416 F.3d 404 (5th Cir.

2005) (Failure to investigate evidence of

self-defense).

Martin v. Grosshans, 424 F.3d 588 (7th

2005) Counsel failed to move for mistrial).

Rompilla v. Beard, 545 U.S. 374 (2005)

(Counsel failed to examine file of prior

conviction).

Thomas v. Varner, 428 F.3d 491 (3rd Cir.),

cert. denied, 127 S.Ct. 928 (2007) (Counsel

did not move to suppress unreliable

identification).

Rolan v. Vaughn, 445 F.3d 671 (3rd Cir.

2006) (Counsel failed to call self defense

witness).

Virgil v. Dretke, 446 F.3d 598 (5th Cir.

2006) (Counsel failed to challenge potential

jurors who stated they could not be fair).

Adams v. Bertrand, 453 F.3d 428 (7th Cir.

2006) (Failure to locate witness who saw

defendant and alleged victim before sexual

encounter was ineffective).

Dando v. Yukins, 461 F.3d 791 (6th Cir.

2006) (Failure to investigate Battered

Woman’s Syndrome defense was

ineffective).

Stewart v. Wolfenbarger, 468 F.3d 338 (6th

Cir. 2006) (Failure to give notice of alibi and

failure to subpoena witness).

Raygoza v. Hulick, 474 F.3d 958 (7th

Cir.), cert. denied, 128 S.Ct 613 (2007)

(Defense counsel’s performance was

deficient for failure to investigate alibi).

Thompson v. United States, 504 F.3d

1203 (11th Cir. 2007) (Counsel did not

adequately consult with defendant on

his right to appeal).

Ramonez v. Berghuis, 490 F.3d 482 (6th

Cir. 2007) (Decision not to interview

potential beneficial witnesses was

ineffective).

United States v. Santiago, 495 F.3d 27

(2d Cir. 2007) (Anders brief and letter

were not sufficient notice to illiterate

client).

United States v. Weathers, 493 F.3d

229 (D.C. Cir. 2007) (Failure to object to

multiplicious counts was ineffective).

Julian v. Bartley, 495 F.3d 487 (7th Cir.

2007) (Counsel’s misstatement of

potential sentence to defendant before

trial was ineffective).

United States v. Mooney, 497 F.3d 397

(4th Cir. 2007) (Failure to spot potential

justification defense for firearm

possession was ineffective).

Bell v. Miller, 500 F.3d 149 (2d Cir.

2007) (Failure to consult medical expert

on eye witness’s ability to perceive was

ineffective).

Girts v. Yanai, 501 F.3d 743 (6th Cir.),

cert. denied, 129 S.Ct. 92 (2008)

(Counsel failed to object to prosecutor’s

repeated improper comments).

Editor: Alexander Bunin

Federal Public Defender

Northern New York

 

39 North Pearl Street, 5th Floor

Albany, NY 12207

(518) 436-1850

(518) 436-1780 FAX

alex.bunin@fd.org

Phone Numbers

Office: (214) 871-1112
David Cell: (214) 538-6629
Kathy: (214) 738-4703 (Paralegal Kathy Archuletta)

Office Location

Dallas
2828 N. Harwood, Suite 1950
Dallas, TX 75201
Phone: (214) 871-1112

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