Issues Currently Pending In Criminal Cases in the Seventh Circuit

Transcription

Compiled by
Johanna M. Christiansen,
Appellate Division Chief
Federal Public Defender for the
Central District of Illinois
Issues
PendingIn
Criminal
Casesinthe
Seventh
Circuit
Updated 1/16/15 0
TABLE OF CONTENTS
CONTENTS
.............................................................................................................................................................. 0 Table of Contents ............................................................................................................... i Table of Authorities ....................................................................................................... vii I. Appellate Procedure .................................................................................................. 2 II. Competency............................................................................................................. 2 III. Counsel..................................................................................................................... 2 A. Choice of ........................................................................................................................................... 2 B. Ineffective Assistance ....................................................................................................................... 2 C. Motion for New Counsel ................................................................................................................... 2 D. Privileged information ...................................................................................................................... 2 E. Waiver of ........................................................................................................................................... 2 IV. Collateral Attack ..................................................................................................... 3 V. Contempt ................................................................................................................. 3 VI. Discovery ................................................................................................................. 3 VII. Double Jeopardy ..................................................................................................... 3 VIII. Evidence and Trial Procedure ........................................................................... 3 A. Brady ................................................................................................................................................. 3 B. Bruton ............................................................................................................................................... 3 C. Brady Material .................................................................................................................................. 3 D. Closing argument .............................................................................................................................. 3 E. Co‐conspirator statements ............................................................................................................... 4 F. Confrontation, right to ...................................................................................................................... 4 G. Confidential Informants .................................................................................................................... 5 H. Continuances .................................................................................................................................... 5 I. Cross‐examination ............................................................................................................................ 5 J. Cumulative Errors ............................................................................................................................. 5 K. Demonstrative Evidence ................................................................................................................... 5 i
L. Entrapment ....................................................................................................................................... 5 M. Experts .......................................................................................................................................... 6 N. Fugitive Disentitlement Doctrine ...................................................................................................... 6 O. Hearsay ............................................................................................................................................. 6 P. Impeachment .................................................................................................................................... 6 Q. Insufficient ........................................................................................................................................ 6 R. Line‐ups/Identification ...................................................................................................................... 7 S. Prosecutorial Misconduct ................................................................................................................. 7 T. Relevance .......................................................................................................................................... 8 U. Right to be Present for Trial .............................................................................................................. 8 V. Right to Present a Defense ............................................................................................................... 8 W. Rules of Evidence .......................................................................................................................... 9 1. 109 (Foundation) ........................................................................................................................... 9 2. 401 (Relevant Evidence) ................................................................................................................ 9 3. 403 (Exclusion of Relevant Evidence) ........................................................................................... 9 4. 404(b)(Character Evidence) .......................................................................................................... 9 5. 605 (Judge’s Competency as a Witness) ..................................................................................... 10 6. 609 (Prior Convictions) ................................................................................................................ 10 7. 702 (Testimony by an Expert) ..................................................................................................... 10 X. Selective Prosecution ...................................................................................................................... 10 Y. Self Incrimination ............................................................................................................................ 10 Z. Severance/Joinder .......................................................................................................................... 10 AA. Speedy Trial ................................................................................................................................. 10 BB. Stipulations ................................................................................................................................. 11 CC. Witnesses .................................................................................................................................... 11 DD. Wiretaps ...................................................................................................................................... 12 IX. Forfeiture ............................................................................................................... 12 X. Guilty Pleas & Plea Agreements ........................................................................ 12 A. Appeal Waiver ................................................................................................................................. 12 B. By Magistrate .................................................................................................................................. 12 C. Competency .................................................................................................................................... 12 ii
D. Factual Basis .................................................................................................................................... 12 E. Interference with by judge .............................................................................................................. 12 F. Knowing and Voluntary ................................................................................................................... 12 G. Withdrawal...................................................................................................................................... 12 H. Breach ............................................................................................................................................. 13 XI. Indictment.............................................................................................................. 13 XII. Interstate Agreement on Detainers .................................................................... 14 XIII. Jury Issues .......................................................................................................... 14 A. Selection .......................................................................................................................................... 14 B. Batson ............................................................................................................................................. 14 C. Challenges for Cause ....................................................................................................................... 14 D. Deliberations ................................................................................................................................... 14 E. Instructions ..................................................................................................................................... 14 F. Mistrial ............................................................................................................................................ 16 XIV. Offenses .............................................................................................................. 17 A. 8 U.S.C. § 1326 (Illegal Reentry) ...................................................................................................... 17 B. 18 U.S.C. § 373 ................................................................................................................................ 17 C. 18 U.S.C. § 666 ................................................................................................................................ 17 D. 18 U.S.C. § 915 (Foreign Diplomat) ................................................................................................. 17 E. 18 U.S.C. § 922(g)(1) (Felon in possession) ..................................................................................... 17 F. 18 U.S.C. § 924(c)(use of weapon during drug or violent felony) ................................................... 18 G. 18 U.S.C. § 1001 (false statements) ................................................................................................ 18 H. 18 U.S.C. § 1017 .............................................................................................................................. 18 I. 18 U.S.C. § 1028A (aggravated identity theft) ................................................................................ 19 J. 18 U.S.C. § 1341 (mail fraud) .......................................................................................................... 19 K. 18 U.S.C. § 1343(wire fraud) ........................................................................................................... 19 L. 18 U.S.C. § 1346 (Honest Services Fraud) ....................................................................................... 19 M. 18 U.S.C. § 1347 (health care fraud) ........................................................................................... 19 N. 18 U.S.C. § 1591 (sex trafficking) .................................................................................................... 19 O. 18 U.S.C. § 1832 (Economic espionage) .......................................................................................... 20 P. 18 U.S.C. § 1951 (Hobbs Act) .......................................................................................................... 20 iii
Q. 18 U.S.C. § 1962(RICO) .................................................................................................................... 20 R. 18 U.S.C. § 2113(e) .......................................................................................................................... 20 S. 18 U.S.C. § 2250 (Failure to Register) ............................................................................................. 20 T. 18 U.S.C. § 2342(a) (Contraband Cigarette Trafficking Act) ........................................................... 20 U. 18 U.S.C. § 2422(b) (inducing a minor re: sex) ................................................................................ 20 V. 18 U.S.C. § 2256(2)(A)(v)(lascivious exhibition of genitals) ........................................................... 20 W. 21 U.S.C. § 841(a)(Controlled Substances) ................................................................................. 20 X. 21 U.S.C. § 843 (Phone Count) ........................................................................................................ 21 Y. 21 U.S.C. § 846 (Controlled Substances Conspiracy) ...................................................................... 21 Z. 42 U.S.C. § 1320a‐7b(b)(1)(A) (Anti‐Kickback Statute) ................................................................... 21 AA. 42 U.S.C. § 7413 (Environmental Offeses) .................................................................................. 21 BB. 42 U.S.C. § 16911(d)(SORNA) ...................................................................................................... 21 XV. Recusal ................................................................................................................... 22 XVI. Restitution .......................................................................................................... 22 XVII. Retroactive Guideline Amendments .............................................................. 22 XVIII. Search & Seizure ............................................................................................ 22 A. Arrest............................................................................................................................................... 22 1. In the home ................................................................................................................................. 22 2. Probable cause to ....................................................................................................................... 22 B. Canine Searches .............................................................................................................................. 23 C. Consent ........................................................................................................................................... 23 D. Curtilage .......................................................................................................................................... 24 E. Excessive Force ............................................................................................................................... 24 F. Expectation of privacy ..................................................................................................................... 24 G. Franks .............................................................................................................................................. 24 H. Good Faith Exception ...................................................................................................................... 24 I. Hearing ............................................................................................................................................ 24 J. Miranda ........................................................................................................................................... 25 K. Miscellaneous ................................................................................................................................. 25 L. Reasonable suspicion ...................................................................................................................... 25 M. Search .......................................................................................................................................... 25 iv
1. Inevitable discovery .................................................................................................................... 25 2. Probable cause to ....................................................................................................................... 25 3. Protective Sweeps ....................................................................................................................... 26 N. Standing. ......................................................................................................................................... 26 O. Terry Stops ...................................................................................................................................... 26 P. Warrants ......................................................................................................................................... 27 XIX. Sentencing .......................................................................................................... 27 A. Acquitted conduct ........................................................................................................................... 27 B. Armed Career Criminal/Career Offender ........................................................................................ 27 C. Burden of Proof ............................................................................................................................... 28 D. Consecutive/Concurrent Sentences................................................................................................ 28 E. Cumulative Error ............................................................................................................................. 29 F. Double Jeopardy ............................................................................................................................. 29 G. Entrapment and manipulation ........................................................................................................ 29 H. Evidence admissible ........................................................................................................................ 29 I. Ex Post Facto ................................................................................................................................... 29 J. Fair Sentencing Act ......................................................................................................................... 29 K. Fast Track ........................................................................................................................................ 30 L. Fines ................................................................................................................................................ 30 M. Forfeiture .................................................................................................................................... 30 N. Guideline Sections ........................................................................................................................... 30 1. 1B1.10(b)(2)(A) ............................................................................................................................ 30 2. 2A3.5(b)(1)(A) (committing a sex offense while in fugitive status) ............................................ 30 3. 2B1.1(a)(money laundering) ....................................................................................................... 30 4. 2B1.1(b)(1) (Amount of loss) ....................................................................................................... 30 5. 2B1.1(b)(2) (number of victims in fraud) .................................................................................... 30 6. 2B1.1(b)(2)(A) (mass marketing) ................................................................................................. 31 7. 2B1.1(b)(9)(C)(Sophisticated Means) .......................................................................................... 31 8. 2B1.1(b)(10)(A) (relocating fraudulent scheme) ......................................................................... 31 9. 2B1.1(b)(11)(B)(i) (production of counterfeit access device) .................................................... 31 10. 2B1.1(b)(18)(B)(offense involving commodities law) ............................................................. 31 11. 2B3.1 (carjacking) .................................................................................................................... 31 v
12. 2D1.1(Controlled Substances) ................................................................................................ 31 13. 2D1.1(b)(1) (possession of a firearm during drug offense)..................................................... 32 14. 2G1.3(b)(3)(A)(using a computer to entice minor) ................................................................. 32 15. 2G2.1 (child exploitation) ........................................................................................................ 32 16. 2G2.2 (child pornography) ...................................................................................................... 33 17. 2K2.1(a)(firearm offense after prior drug felony) ................................................................... 33 18. 2K2.1(b)(1)(B) (number of firearms involved) ........................................................................ 33 19. 2K2.1(b)(6)(B) (possession of firearm in connection with a felony offense) .......................... 33 20. 2K2.1(c)(1)(A)(using firearm in connection with another offense) ........................................ 33 21. 2L1.2 (prior conviction) ........................................................................................................... 33 22. 2L2.1(b)(2)(C) (more than 100 documents) ............................................................................ 33 23. 2L2.1(b)(5)(B)(using or obtaining a foreign passport) ............................................................ 33 24. 2T1.1 ....................................................................................................................................... 33 25. 2X1.1 (attempt) ....................................................................................................................... 34 26. 3A1.1(vulnerable victim) ......................................................................................................... 34 27. 3A1.2(c)(1) (assaulting an official victim) ................................................................................ 34 28. 3B1.1(a)(Leader or organizer) ................................................................................................. 34 29. 3B1.2(Minor role) .................................................................................................................... 35 30. 3B1.3(Abuse of position of trust) ............................................................................................ 35 31. 3C1.1(Obstruction of justice) .................................................................................................. 35 32. 3D1.2(Grouping) ..................................................................................................................... 36 33. 3E1.1 (Acceptance of Responsibility) ...................................................................................... 36 34. 4A1.1 (Criminal History) .......................................................................................................... 36 35. 5C1.2 (Safety Valve) ................................................................................................................ 37 36. 5G1.2(Consecutive and Concurrent Sentences) ..................................................................... 37 37. 5G1.3(Credit for time served on state case) ........................................................................... 37 38. 5K1.1 (Substantial Assistance) ................................................................................................ 38 39. 5K2.20 (Aberrant Behavior) .................................................................................................... 38 O. Mandatory Minimums .................................................................................................................... 38 P. Miscellaneous ................................................................................................................................. 39 Q. Reasonableness ............................................................................................................................... 40 1. Procedural ................................................................................................................................... 40 vi
2. Substantive .................................................................................................................................. 46 R. Relevant Conduct ............................................................................................................................ 49 S. Restitution ....................................................................................................................................... 49 T. Rule 32 (Notice & Findings) ............................................................................................................. 50 U. Statutory maximums and minimums .............................................................................................. 50 XX. Supervised Release ............................................................................................... 50 XXI. Waiver ................................................................................................................. 58 TABLE OF AUTHORITIES
Cases . 35
United State v. Phillips, No. 12-2532 .............................................................................. 10
United States v. Adams, No. 13-1368 .............................................................................. 46
United States v. Addison, No. 14-2515.............................................................................. 5
United States v. Anzaldi, No. 14-1206. ......................................................................... 2, 9
United States v. Arch, No. 14-3096 ................................................................................. 58
United States v. Austin, No. 12-3175 .............................................................................. 50
United States v. Bailey, No. 13-3229. .............................................................................. 29
United States v. Baines, No. 13-3284. ....................................................................... 43, 49
United States v. Barta, No. 13-3208 ...................................................................... 6, 16, 17
United States v. Beltran, No. 12-2990 ............................................................................. 23
United States v. Bethany, No. 13-1777 ...................................................................... 13, 38
United States v. Black, No. 13-3908. ......................................................................... 33, 49
United States v. Bloch, No. 13-3333. ............................................................................... 33
United States v. Boatman, No. 14-2081. .......................................................................... 45
United States v. Borostowski, No. 13-3811................................................................ 23, 46
United States v. Boultinghouse, No. 14-2764 .................................................................. 46
United States v. Boultinghouse, No. 14-2764. ................................................................... 2
United States v. Bounds, No. 13-3910. ...................................................................... 20, 32
United States v. Bowling, No. 13-3895........................................................................ 8, 11
United States v. Bozovich, No. 14-1435. ...................................................................... 5, 49
United States v. Brandon, No. 13-3471. .......................................................................... 23
United States v. Brewster, No. 14-1285. .................................................................... 46, 53
United States v. Brown, No. 12-3290. ............................................................................. 13
vii
United States v. Burgess, No. 13-3571 ............................................................................ 25
United States v. Burnett, Nos. 13-2882 & 13-2974. ........................................... 32, 34, 35
United States v. Butler, No. 14-2770. ........................................................................ 37, 38
United States v. Calderon-Acevedo, No. 13-1015 ............................................................ 12
United States v. Camacho-Montalvo, No. 14-1220. ........................................................ 43
United States v. Carroll, No. 13-2600.............................................................................. 27
United States v. Chapman, 13-1515. ................................................................................ 19
United States v. Chapman, No. 13-1515.......................................................................... 11
United States v. Charles, No. 14-1530. .................................................................... 2, 9, 24
United States v. Clark, No. 14-1251. ................................................................... 18, 30, 50
United States v. Coleman, 12-2621 .................................................................................... 3
United States v. Coleman, No. 12-2919 ........................................................................... 32
United States v. Collins, No. 14-3427.............................................................................. 13
United States v. Collins, No. 14-3427........................................................................ 36, 40
United States v. Conley, No. 14-1455. ....................................................................... 29, 38
United States v. Conour, No. 13-3753 & 14-2629. ..................................................... 2, 56
United States v. Corral, No. 14-1964. .............................................................................. 40
United States v. Cortez-Lopez, No. 14-2638. ................................................................... 40
United States v. Crisp, No. 14-2135. ......................................................................... 45, 54
United States v. Crundwell, No. 13-1407 ........................................................................ 41
United States v. Cruse, No. 13-2929.......................................................................... 14, 15
United States v. Cruz, No. 14-1992. ................................................................................ 46
United States v. Curtis, No. 14-2069. .......................................................................... 9, 16
United States v. Daniels, No. 13-2078. .................................................................. 8, 10, 14
United States v. Davis, 13-1978 ....................................................................................... 13
United States v. Davis, 14-3109. ...................................................................................... 50
United States v. Davis, No. 13-2143................................................................................ 41
United States v. Davis, No. 14-3109.......................................................................... 37, 38
United States v. Dean, No. 13-2982. ...................................................................... passim
United States v. DeMarco, No. 14.1526. ......................................................................... 31
United States v. DeMarco, No. 14-1526. ........................................................................... 6
United States v. Dobek, No. 14-3073. ............................................................................ 4, 7
United States v. Downs, No. 14-3157.............................................................................. 58
United States v. DuPriest, No. 13-3914. ......................................................................... 52
United States v. DuPriest, No. 14-2419. ......................................................................... 56
United States v. Dvorkin, No. 14-2799.................................................................... 4, 5, 17
United States v. Erramilli, No. 13-3095. ......................................................................... 10
United States v. Estrada-Mederos, No. 14-2417.............................................................. 46
United States v. Falor, No. 14-1369. .................................................................... 46, 55, 58
United States v. Faulkner, No. 14-3332. ............................................................................ 3
viii
United States v. Ferrell, No. 14-2915 ................................................................................ 6
United States v. Ferrell, No. 14-2915. ............................................................................... 9
United States v. Flores, No. 14-1928. .............................................................................. 55
United States v. Ford, No. 13-3529.................................................................................. 13
United States v. Garcia, No. 14-2368. ................................................................. 46, 50, 56
United States v. Garten, No. 13-3593. ........................................................... 10, 11, 19, 30
United States v. Giovenco, No. 13-3283. ......................................................................... 19
United States v. Gonzalez, No. 13-1832 ............................................................................ 6
United States v. Goree, No. 13-2669 ................................................................................ 21
United States v. Gray, No. 13-1788 ................................................................................. 23
United States v. Gregory, Cipra, & Konrady, No. 14-2747, 14-2792, & 14-2759.......... 24
United States v. Gregory, Cipra, & Konrady, Nos. 14-2747, 14-2792, & 14-2759. . 24, 27
United States v. Griffin and Allison, Nos. 14-1508 & 14-2002. ......................... 32, 46, 58
United States v. Griffin, No. 14-1833. ....................................................................... 53, 54
United States v. Gutierrez, No. 14-1159.......................................................................... 26
United States v. Hall, No. 14-1230. ................................................................................. 54
United States v. Hardimon, No. 14-1120. ....................................................................... 49
United States v. Harris, No. 13-2216 .............................................................................. 40
United States v. Harris, No. 14-1846. ........................................................... 19, 23, 26, 35
United States v. Hawkins & Racasi, Nos. 14-1892 & 14-1908. ................................ 16, 35
United States v. Hayden, No. 14-1812. ........................................................................... 49
United States v. Haynes, No. 13-3617 ............................................................................. 40
United States v. Haynes, No. 13-3617. ...................................................................... 16, 21
United States v. Haywood, No. 13-3815. ................................................................... 30, 35
United States v. Henderson, No. 13-3861.................................................................. 12, 13
United States v. Henderson, No. 14-2297........................................................................ 12
United States v. Herman, No. 12-1183 ............................................................................ 39
United States v. Herman, No. 13-3210. ........................................................................... 23
United States v. Hernandez, No. 13-2879. ...................................................................... 25
United States v. Herrell, No. 13-1023.............................................................................. 39
United States v. Hillman, No. 13-3689............................................................................ 17
United States v. Hines-Flagg, 14-2975. ............................................................................ 31
United States v. Ingram, No. 12-3194 ............................................................................. 52
United States v. Jackson & Spencer, No. 13-2649. ............................................................ 8
United States v. Jackson & Spencer, Nos. 13-2649 & 13-3523. ................................ 10, 36
United States v. Jemine, No. 12-3857 ........................................................................ 27, 47
United States v. Jenkins, No. 13-3409. ............................................................................ 37
United States v. Jenkins, No. 14-2898. .............................................................................. 8
United States v. Jimenez, No. 14-1973. ........................................................................... 49
United States v. Jines, No. 14-1603. .......................................................................... 46, 53
ix
United States v. Jines, No. 14-1861. ................................................................................ 49
United States v. Johnson, No. 12-3092 ...................................................................... 42, 47
United States v. Johnson, No. 13-2094 ............................................................................ 51
United States v. Johnson, No. 14-1465. ........................................................................... 46
United States v. Jones, No. 11-3864 ................................................................................. 43
United States v. Jones, No. 14-1665. .................................................................... 12, 13, 37
United States v. Jones, No. 14-2787. .......................................................................... 46, 57
United States v. Jones, No. 14-3103. ....................................................................... passim
United States v. Jurgens, No. 14-2482. ............................................................................ 54
United States v. Kappes, No. 14-1223.............................................................................. 53
United States v. Kasp, No. 13-2907 ................................................................................. 35
United States v. Kelly, No. 14-1015. ................................................................................ 27
United States v. Khatib, No. 14-2216. ............................................................................. 11
United States v. Kieffer, Nos. 14-2650, 14-2652, & 14-1653. ......................................... 36
United States v. Kielar, No. 14-1390. ............................................................................ 2, 4
United States v. King, No. 13-2940 ................................................................................. 29
United States v. Kolp, No. 14-1601.................................................................................. 40
United States v. LaChappelle, No. 14-2721. .................................................................... 56
United States v. Langman, No. 14-2925. ......................................................................... 57
United States v. Latin & DeSalvo, Nos. 13-3844 & 13-3820...................................... 9, 16
United States v. Lawrence, No. 13-3205. ................................................................. 3, 9, 16
United States v. Lawson, No. 14-1233. .............................................................................. 9
United States v. Lazcano-Leon, No. 14-2036. .................................................................. 46
United States v. Lee, No. 12-1718 .................................................................................... 39
United States v. Lee, No. 14-2010. ................................................................................... 55
United States v. Lee, No. 14-2231. ................................................................................... 57
United States v. Leo, 14-2262. .......................................................................................... 26
United States v. Lewis, No. 14-2075. ............................................................................... 56
United States v. Lewis, No. 14-2324. ......................................................................... 57, 58
United States v. Lockett, No. 13-2200.............................................................................. 28
United States v. Lomax, No. 14-2237. ............................................................................. 46
United States v. Luckett, No. 14-1405. ............................................................................ 49
United States v. Lyons, No. 14-1442. .............................................................................. 39
United States v. Macias, No. 13-2166...................................................................... 6, 7, 16
United States v. Mannebach, No. 13-1787 .................................................................. 6, 38
United States v. Mares, No. 14-3110. .............................................................................. 58
x
United States v. McClain, No. 13-3008 ........................................................................... 16
United States v. McClain, No. 13-3008. ................................................................ 4, 15, 21
United States v. McClellan, No. 14-2449. ....................................................... 7, 16, 19, 20
United States v. McDowell, No. 13-1524 ........................................................................ 34
United States v. McGill, No. 12-3490................................................................................ 6
United States v. McMahan, No. 12-3291 ........................................................................ 36
United States v. McMillian, No. 13-3577...................................................... 19, 20, 29, 40
United States v. McMillian, No. 14-1537.................................................................. 22, 26
United States v. Medrano, No. 14-1100. ................................................................... 17, 28
United States v. Miller, No. 13-3062 ......................................................................... 43, 50
United States v. Miller, No. 14-2779 ............................................................................... 11
United States v. Miller, No. 14-2779. ................................................................................ 2
United States v. Miranda-Camarena, No. 14-1265. ........................................................ 44
United States v. Miranda-Sotolongo, No. 14-2753.................................................... 25, 56
United States v. Mohamed, No. 13-2368 ........................................................................... 7
United States v. Montgomery, No. 14-1648. ............................................................. 55, 58
United States v. Moody, No. 13-3875. ............................................................................. 39
United States v. Moore, 13-2905 ................................................................................ 15, 16
United States v. Moore, No. 13-2905 ................................................................................. 7
United States v. Moore, No. 14-1859. .............................................................................. 46
United States v. Moore, No. 14-3269. .............................................................................. 38
United States v. Moran-Vazquez, No. 12-3288 ............................................................... 47
United States v. Morawski, No. 13-2046 ......................................................................... 30
United States v. Morris, No. 14-2242. ............................................................................. 46
United States v. Moslavac, No. 14-2866. ......................................................................... 55
United States v. Mullins, No. 14-1701. ................................................................. 7, 17, 19
United States v. Munoz, No. 12-3377 ............................................................................. 49
United States v. Natalizio & Abate, Nos. 14-1945 & 14-2434. ....................................... 7
United States v. Natalizio & Abate, Nos. 14-1945 & 14-2434. ...................................... 16
United States v. Navarro, No. 12-2606............................................................................ 13
United States v. Nayak, No. 14-1404. .............................................................................. 19
United States v. Neal, No. 13-1536.................................................................................. 51
United States v. Nelson, No. 13-2648 ........................................................................... 30
United States v. Olivo, No. 13-3479. ............................................................................... 52
United States v. Olivo, No. 14-1140. ............................................................................... 27
United States v. Orlando, No. 14-2949............................................................................ 58
United States v. Ortiz, No. 14-1521. ............................................................................... 58
United States v. Pantazelos, No. 13-1394 ........................................................................ 36
United States v. Parks, No. 13-1448. ............................................................................... 18
United States v. Patel, No. 14-2607. ................................................................................ 21
xi
United States v. Patrick, No. 13-2463.............................................................................. 41
United States v. Patterson, No. 13-1517.......................................................................... 42
United States v. Pereira, No. 14-1301................................................................................ 7
United States v. Perez, No. 13-2446. ............................................................................... 49
United States v. Peter, No. 13-1094 ................................................................................. 24
United States v. Peters, No. 12-3830 ............................................................................... 25
United States v. Phillip, No. 14-1354. ............................................................................. 52
United States v. Pierotti, No. 13-3096. ............................................................................ 15
United States v. Poke, No. 14-2331.................................................................................. 49
United States v. Potter, No. 13-3537. .............................................................................. 30
United States v. Presley, No. 14-2704. ........................................................................ 7, 32
United States v. Printz, No. 14-1304. .............................................................................. 50
United States v. Pritchard, No. 13-2646 .................................................................... 50, 51
United States v. Procknow, No. 14-1398. .................................................................. 25, 26
United States v. Purham, No. 13-2916 ............................................................................ 35
United States v. Purham, No. 13-2916. ........................................................................... 49
United States v. Purvis, No. 12-3856 .............................................................................. 37
United States v. Pust, No. 13-3747.............................................................................. 4, 19
United States v. Quinonez, No. 14-2096. ........................................................................ 33
United States v. Rahman, No. 13-1586...................................................................... 18, 23
United States v. Ramirez, No. 13-1013...................................................................... 32, 37
United States v. Ramirez, No. 14-2145............................................................................ 11
United States v. Ramirez-Ortega, No. 13-1286 ............................................................... 42
United States v. Reichling, No. 14-2941. ......................................................................... 26
United States v. Reyes, No. 13-3177 ................................................................................ 12
United States v. Ribota, No. 14-3026. .............................................................................. 10
United States v. Richardson, No. 14-1901. ...................................................................... 11
United States v. Robertson, No. 13-3816. ........................................................................ 49
United States v. Rodriguez-Sanchez, No. 14-2456. ......................................................... 46
United States v. Rogers, No. 14-1553. ....................................................................... 30, 36
United States v. Rogers, No. 14-2053. ............................................................................. 31
United States v. Rollins, No. 13-1731........................................................................ 27, 51
United States v. Ruiz, No. 13-1209. .......................................................................... 25, 27
United States v. Rynearson, No. 13-2064 ........................................................................ 51
United States v. Saenz, No. 13-2698................................................................................ 38
United States v. Sainz, No. 13-3585 ................................................................................ 50
United States v. Sanford, No. 14-2860. ..................................................................... 25, 57
United States v. Saunders, No. 13-3863. ..................................................................... 6, 11
United States v. Scalzo, No. 13-3354 ............................................................................... 49
United States v. Schneider, No. 13-3226. ........................................................................ 12
xii
United States v. Segal. No. 13-3847 ................................................................................ 50
United States v. Seidling, No. 13-1854 ............................................................................ 19
United States v. Senymanola, No. 13-3447. .................................................................... 47
United States v. Settles, No. 12-2319 .............................................................................. 39
United States v. Sewell, No. 14-1384 ............................................................................... 32
United States v. Sewell, No. 14-1384. .................................................................. 18, 27, 49
United States v. Shamsud-Din, No. 13-2971 ...................................................... 32, 34, 46
United States v. Shannon, No. 14-3044. ...................................................................... 7, 21
United States v. Shields, No. 13-3726................................................................ 3, 5, 22, 28
United States v. Sinclair, No. 12-2604 .............................................................................. 2
United States v. Smith, No. 14-1119. ............................................................................ 7, 8
United States v. Smith, No. 14-2982. .............................................................................. 27
United States v. Smith-Meck, No. 13-1466 ..................................................................... 42
United States v. Snell, No. 14-2277. ................................................................................ 50
United States v. Starko, No. 13-1271 ............................................................................... 43
United States v. Stuart, No. 12-3471 ................................................................................. 2
United States v. Sulaski, No. 14-1520. ...................................................................... 54, 58
United States v. Szaflarski, No. 14-1540. ........................................................................ 12
United States v. Tapes, No. 13-3901. ............................................................................... 47
United States v. Taylor, No. 12-2916 ................................................................ 3, 5, 14, 21
United States v. Taylor, No. 13-2978.............................................................................. 22
United States v. Taylor, No. 13-3469. ................................................................. 34, 36, 46
United States v. Taylor, No. 14-1981. ............................................................................. 26
United States v. Tellez, No. 13-2561................................................................................ 25
United States v. Tennison, No. 12-3347 .......................................................................... 38
United States v. Thomas & Taylor, Nos. 13-2814 & 13-3469. ................................... 4, 11
United States v. Thomas, No. 13-2814. ............................................................... 34, 46, 49
United States v. Timm, No. 14-2108. .............................................................................. 46
United States v. Tolbert, No. 13-1972.............................................................................. 36
United States v. Tomkins, No. 13-2234. ................................................................ 7, 18, 27
United States v. Torres, No. 13-1428 ............................................................................... 41
United States v. Townsend, No. 13-2677 .......................................................................... 3
United States v. Trudeau, No. 14-1869 ..................................................................... 11, 16
United States v. Trudeau, No. 14-1869. .......................................................................... 16
United States v. Valley, No. 13-2870 ......................................................................... 25, 27
United States v. Vega-Carrillo, No. 13-1346 ............................................................. 42, 47
United States v. Velazquez, Nos. 14-1034 & 14-1153. ............................................... 2, 46
United States v. Velazquez-Avila, No. 14-1938. ............................................................. 54
United States v. Wade, No. 13-2758 ................................................................................ 46
United States v. Wamiq, No. 13-2681................................................................................ 9
xiii
United States v. Warner, No. 14-1330 ............................................................................. 48
United States v. Webster, No. 13-1927. ..................................................................... 4, 7, 9
United States v. West, No. 14-2415. ................................................................................ 28
United States v. West, No. 14-2514. .................................................................................. 8
United States v. White, No. 13-2943 ............................................................................... 26
United States v. Whittley, No. 14-1111. .......................................................................... 39
United States v. Wilbourn & Sanders, Nos. 133715 & 13-3727..................................... 35
United States v. Wilbourn & Sanders, Nos. 13-3715 & 13-3727. .................. 7, 16, 21, 26
United States v. Wilbourn, No. 13-3610.......................................................................... 36
United States v. Wiley, No. 13-2705................................................................................ 40
United States v. Williams, No. 13-1093 .......................................................................... 51
United States v. Williams, No. 13-3094. ......................................................................... 52
United States v. Zuniga-Galeana, No. 14-1994. .............................................................. 33
xiv
Preface
This document is intended to allow trial and appellate counsel in criminal
cases in the Seventh Circuit to know what issues are pending, but not yet
decided, in the Seventh Circuit. To my knowledge, until now, no such publicly
available database existed.
The usefulness of such a database is threefold. First, when litigating a case
in the trial court, it is important to know if you have potential issues that are
currently pending on appeal. If the Court of Appeals issues an opinion which
creates an issue for you after your case has closed or is on direct appeal, you will
be saddled with plain error review on appeal or, worse if no notice of appeal was
filed, attempting to mount a collateral attack. On the other hand, if you see an
issue is pending on appeal and you raise it below, you will have a better
standard of review on appeal should the opinion ultimately issued be favorable
to your client. Second, when you raise an issue on appeal, it is useful to know if
there are other cases pending with the same or similar issue. This is especially
true for cases which raise a legal challenge, as opposed to an issue based upon
the application of the facts to well established law. For example, if you intend to
raise a challenge to the constitutionality of the residual clause of the Armed
Career Criminal Act, it would be good to know if the question has already been
raised and is pending in the court. With that knowledge, you could both review
the brief in the other pending case for assistance with crafting your own
argument and alert the court to the other cases which raise the same issue.
Finally, as alluded to already, it is always helpful to read pleadings drafted by
others on an issue you intend to raise. By doing so, you may find cases and
arguments which you can incorporate into your own argument.
A few notes on using this reference. Once an opinion is issued in a case, I
will of course remove it from the database. I will update the database weekly,
and it will be available on our website at http://ilc.fd.org. Lastly, issues
premised on raise purely legal questions, as opposed to more fact based issues,
are in boldface type for quick and easy reference. Pro se briefs are not included
unless such a brief clearly presents an important issue.
1
I.
APPELLATE PROCEDURE
II.
COMPETENCY
Whether the district court’s failure to order a competency examination under 18
U.S.C. § 4241 requires remand? United States v. Anzaldi, No. 14-1206.
III. COUNSEL
A.
Choice of
Whether the district court’s imposition of a pretrial, post-indictment restraint of
Mr. Kielar’s assets without affording him an adversary hearing violates due
process if Mr. Kielar can show a bona fide need to use the funds to obtain
counsel in violation of the Fifth and Sixth Amendments? United States v. Kielar,
No. 14-1390.
B.
Ineffective Assistance
Whether Mr. Charles was repeatedly abandoned by his post-trial counsel, and
his late motion for new trial therefore resulted from excusable neglect under
Federal Rule of Criminal Procedure 45(b)(1)(B)? United States v. Charles, No. 141530.
Did trial counsel’s representation of Mr. Miller at trial constitute ineffective
assistance of counsel? United States v. Miller, No. 14-2779.
C.
Motion for New Counsel
Whether the district court abused its discretion by failing to conduct any inquiry
into the reasons behind defense counsel’s motion to withdraw during the
restitution proceedings after Mr. Conour had been sentenced? United States v.
Conour, No. 13-3753 & 14-2629.
D.
Privileged information
E.
Waiver of
Whether the district court abused its discretion when it found that Mr.
Boultinghouse waived his right to counsel at the revocation hearing? United
States v. Boultinghouse, No. 14-2764.
2
IV. COLLATERAL ATTACK
V.
CONTEMPT
VI. DISCOVERY
VII. DOUBLE JEOPARDY
Whether the Appellant’s second trial for identical conduct that was the
foundation of charges of which he has been acquitted by this Court violates the
Fifth Amendment’s protections against double jeopardy? United States v. Taylor,
No. 12-2916
Whether the prosecution of Joseph Faulkner for drug dealing is barred by the
Fifth Amendment’s prohibition against Double Jeopardy since the identical
conduct was utilized by the prosecution and cited by the court in imposing a
more severe punishment in a previous case? United States v. Faulkner, No. 143332.
VIII.
A.
EVIDENCE AND TRIAL PROCEDURE
Brady
Whether the district court erred by denying Lawrence’s motion for mistrial
where an agent testified about a statement of the defendant that had never been
tendered in discovery? United States v. Lawrence, No. 13-3205.
B.
Bruton
C.
Brady Material
Whether the failure of the government to disclose Brady material to Shields
violated his right to due process because the information was material to the
issue of the officer’s contention that Shields was found with a firearm? United
States v. Shields, No. 13-3726.
D.
Closing argument
Whether the government violated Thomas and Taylor’s due process rights by
inappropriately commenting on the defendants’ subpoena power and
3
commenting on the lack of testimony from Arthur Vibanco? United States v.
Thomas & Taylor, Nos. 13-2814 & 13-3469.
Did the district court err by improperly allowing the government, during
summation, to argue that it would be unfair to allow Dvorkin to get out of the
responsibility of his actions, of his words, and of his choices by finding a verdict
of not guilty? United States v. Dvorkin, No. 14-2799.
Whether the district court abused its discretion in denying the defendants’
motion for new trial and in failing to hold an evidentiary hearing to determine
whether the presence of approximately 20 uniformed firefighters during the
presentation of closing arguments presented an unacceptable risk of
impermissible factors coming into play? United States v. Thomas & Taylor, Nos.
13-2814 & 13-3469.
E.
Co-conspirator statements
Whether the district court committed reversible error when it found the existence
of a conspiracy between a defendant and an alleged co-conspirator when there is
no evidence that the defendant had an agreement with the alleged coconspirator, knew of the scope or aims of the alleged conspiracy, or intended to
associate with the alleged conspiracy and abused its discretion when it admitted
the alleged co-conspirator’s statements pursuant to Federal Rule of Evidence
801(d)(2)(E)? United States v. Pust, No. 13-3747.
Whether the district court erred in admitting emails purportedly sent by Miguel
Ontiveros as co-conspirator statements under Federal Rule of Evidence
801(d)(2)(E)? United States v. Dobek, No. 14-3073.
F.
Confrontation, right to
Did the district court erroneously overrule McClain’s hearsay objection to a
government agent’s description of statements of confidential informants made to
him implicating McClain in drug trafficking, thereby committing reversible error
and violating McClain’s rights under the Sixth Amendment Confrontation
Clause? United States v. McClain, No. 13-3008.
Whether the district court erred by denying Mr. Kielar’s right to confront
witnesses and, when he was denied the right to confront a witness, the
prosecution impermissibly commented on the defendant’s failure to call
witnesses in violation of the Fifth and Sixth Amendments to the U.S.
Constitution? United States v. Kielar, No. 14-1390.
4
G.
Confidential Informants
H.
Continuances
Whether the district court erred in denying defense counsel’s motion to continue
the jury trial were counsel stated she had two witnesses she was “trying to get in
line?” United States v. Shields, No. 13-3726.
I.
Cross-examination
Whether the defendant was denied his constitutional right to cross-examination
by the district court’s ban on questions regarding the user population of the
Yahoo! chatroom used in the Appellant’s case where the proffered questions
questions were aimed at exposing circumstantial evidence of knowledge to
present the defense theory that the Appellant’s belief was that elliegirl1234 was
not actually a minor? United States v. Taylor, No. 12-2916
Whether the district court abused its discretion when it permitted the
government to cross-examine Mr. Bozovich well beyond the scope of his direct
examination? United States v. Bozovich, No. 14-1435.
Did the district court err in improperly restricting defense counsel’s crossexamination of the government’s key witness by refusing to permit trial counsel
to question the witness about past specific instances of misconduct? United States
v. Dvorkin, No. 14-2799.
J.
Cumulative Errors
Whether the cumulative impact of the case agent’s totally irrelevant testimony (1) that he had never “prosecuted the wrong person,” (2) that Addison’s alleged
associate had possessed a firearm; and (3) that the surrounding neighborhood
did not contain other drug houses - violated Addison’s due process right to a fair
trial and a presumption of innocence, particularly when the case agent was
called by the government as both a law witness and an expert? United States v.
Addison, No. 14-2515.
K.
Demonstrative Evidence
L.
Entrapment
Was Barta entrapped as a matter of law where the government conceded that he
was not predisposed to commit the offense and that a prima facie showing of
inducement was made, and the government agents engaged not just in the
5
required “ordinary” inducement, but in dozens of acts of inducement over the
seven-month sting? United States v. Barta, No. 13-3208
M. Experts
Did the district court abuse its discretion by admitting the testimony of the
government’s fingerprint expert who had not previously disclosed the number of
Galton points used to make the fingerprint identifications? United States v.
Saunders, No. 13-3863.
Whether the district court erred in admitting expert witness testimony regarding
illegal immigration practices and finances? United States v. Macias, No. 13-2166.
N.
Fugitive Disentitlement Doctrine
O.
Hearsay
Whether the district court erred when it denied Mr. Ferrell’s pre-trial motion to
admit a non-testifying witness’s statement pursuant to Federal Rule of Evidence
804(b)(3)? United States v. Ferrell, No. 14-2915
P.
Impeachment
Did the district court abuse its discretion when it prohibited defense counsel
from eliciting testimony regarding the victim’s initial statements to law
enforcement, which were being offered as prior inconsistent statements to
impeach the victim’s testimony at trial? United States v. DeMarco, No. 14-1526.
Did the district court abuse its discretion when it admitted testimony disclosing
information that had been redacted from an exhibit admitted at trial when the
government failed to produce an unredacted version of the exhibit prior to trial?
United States v. DeMarco, No. 14-1526.
Q.
Insufficient
Whether the government’s evidence was sufficient to sustain a conviction for
harboring when no evidence was presented to prove that McClellan intentionally
attempted to conceal, harbor, or shield from detection? United States v. McClellan,
No. 14-2449.
Whether the district court erred in denying Pereira’s Post Conviction Motion for
Judgment of Acquittal when the government’s evidence was insufficient to
prove, beyond a reasonable doubt, that Pereira conspired to distribute and
possess with intent to distribute at least 100 kilograms of marijuana? United
States v. Pereira, No. 14-1301.
6
Whether the district court abused its discretion in denying Presley’s motion for
new trial/supplemental motion for a mistrial? United States v. Presley, No. 142704.
Whether the evidence presented at trial was sufficient to support the guilty
verdicts against Natalizio and Abate? United States v. Natalizio & Abate, Nos. 141945 & 14-2434.
Whether the government presented sufficient evidence to prove Macias guilty
beyond a reasonable doubt of illegal transportation of United States Currency
and conspiracy to distribute narcotics? United States v. Macias, No. 13-2166.
Whether the evidence presented by the government insufficient to sustain
Shannon’s convictions for conspiracy and aiding and abetting possession with
intent to distribute a controlled substance? United States v. Shannon, No. 14-3044.
Whether the evidence of guilt was sufficient to support the three jury verdicts of
guilt? United States v. Dobek, No. 14-3073.
R.
Line-ups/Identification
S.
Prosecutorial Misconduct
Whether the district court erred in denying Mr. Tomkins’s motion for a mistrial
where the government withheld an x-ray of the Chicago device and unfairly
surprised Mr. Tomkins with the exhibit at trial in the presence of the jury and to
the prejudice of his defense? United States v. Tomkins, No. 13-2234.
Whether perjury, prosecutorial misconduct, and prosecution witness
intimidation by investigators denied Mullins a right to a fair trial? United States v.
Mullins, No. 14-1701.
Whether the district court erred in failing to grant a mistrial were the prosecutor
introduced prejudicial evidence against Wilbourn after he had rested his case
and in violation of the court’s instruction? United States v. Wilbourn & Sanders,
Nos. 13-3715 & 13-3727.
The government may employ undercover tactics to infiltrate an ongoing criminal
enterprise, but it is outrageous conduct to manufacture crime by creating one.
Mr. Smith was not part of any criminal enterprise, and had no involvement in
drug trafficking. Yet the Indianapolis Police and the ATF created an entirely
fictitious drug cartel solely for the purpose of soliciting his participation and
manufacturing of drug crime. Was the government’s conduct outrageous?
United States v. Smith, No. 14-1119.
7
When the government plays an excessive role in investigating, planning, and
controlling the criminal act, its conduct is outrageous. The Indianapolis police
and the ATF instigated a fake drug crime, planned the entire scheme, and had
complete control of the operation. Was the government’s conduct outrageous?
United States v. Smith, No. 14-1119.
Did the government breach the proffer agreement to not use statements or
information provided by Jenkins in its case in chief against him, when its agents
testified that they went to Jenkins’s house and searched for the gun and found it,
and then the government offered the gun as evidence? If so, does the violation
require a new trial? United States v. Jenkins, No. 14-2898.
T.
Relevance
U.
Right to be Present for Trial
The Sixth Amendment and Due Process Clauses of the United States
Constitution grant a criminal defendant the right to be present at trial. After
Daniels gave non-responsive answers to judicial questioning at three of fifteen
pretrial hearings, the district court barred Daniels from attending his trial. Did
the district court’s decision violate Daniels’s constitutional rights? United States
v. Daniels, No. 13-2078.
V.
Right to Present a Defense
Whether the lower court erred in excluding Blagojevich’s defense that he had a
good faith belief that his conduct comported with the law. United States v.
Blagojevich, No. 11-3853
Whether the trial court erred in precluding Jackson from presenting to the jury
facts and circumstances that she was the victim of a ruthless and violent
individual, Bobbie Brown, in support of the defense that she was unaware of
Brown’s fraudulent activities and thus did not possess the requisite mens rea to
commit the offenses for which she now stands convicted? United States v. Jackson
& Spencer, No. 13-2649.
Whether the district court erred in not admitting evidence related to West’s
mental Illinois and low intelligence when the proffered evidence did not speak to
the general intent element of 18 U.S.C. § 922(g), nor to his consent of the search of
the house on Loomis Street in Chicago, but instead to the trustworthiness of
West’s statements to police after his arrest, especially when the government did
not object to admission of the evidence proffered for this purpose? United States
v. West, No. 14-2514.
8
W.
Rules of Evidence
1.
109 (Foundation)
2.
401 (Relevant Evidence)
Whether the district court improperly denied Lawrence’s motion in limine to
preclude testimony regarding a narcotics detection dog? United States v.
Lawrence, No. 13-3205.
Whether the improper admission of the illegally-seized gun, case, and
ammunition at trial contributed to Mr. Charles’s conviction by corroborating Ms.
Summerise’s testimony for Judge Andersen and, as such, was not harmless?
United States v. Charles, No. 14-1530.
3.
403 (Exclusion of Relevant Evidence)
Was evidence that two guns were found in a hidden compartment in defendant’s
car following an unrelated traffic stop erroneously admitted and unduly
prejudicial? United States v. Dean, No. 13-2982.
Whether the district court abused its discretion in admitting evidence under Rule
403 of expenditures on luxury items following receipt of his tax returns in an
effort to show defendant’s mental state in submitting the allegedly false returns?
United States v. Latin & DeSalvo, Nos. 13-3844 & 13-3820.
4.
404(b)(Character Evidence)
Whether Mr. Curtis’s conviction should be reversed because the district court
erred in allowing into evidence other acts evidence of his payroll withholding tax
issues under Rule 404(b), which acts were not sufficiently similar or close in time
and because the court failed to adequately explain its reasoning to admit such
under Rule 403. United States v. Curtis, No. 14-2069.
Whether the district court abused its discretion in allowing the government to
introduce evidence at defendant’s wire fraud trial that the defendant failed to
report as income his up front fees on his personal income tax returns? United
States v. Lawson, No. 14-1233.
Whether the district court abused its discretion by admitting irrelevant and
prejudicial evidence of Ms. Anzaldi’s fee structuring? United States v. Anzaldi,
No. 14-1206.
Whether Herbert Shriver’s testimony served as impressible propensity evidence
in violation of Federal Rule of Evidence 404(b)? United States v. Ferrell, No. 142915.
9
5.
605 (Judge’s Competency as a Witness)
Whether the district court abused its discretion and provided “judicial
testimony” contrary to Federal Rule of Evidence 605 by stating that money had
been stolen and there were no timeshares sold even though the government had
been otherwise unable to prove those facts? United States v. Garten, No. 13-3593.
6.
609 (Prior Convictions)
Whether the district court erred in permitting the government to introduce
prejudicial evidence of Erramilli’s remote prior convictions for battery and sexual
abuse? United States v. Erramilli, No. 13-3095.
7.
702 (Testimony by an Expert)
X.
Selective Prosecution
Whether the district court erred in denying Mr. Ribota’s motion to dismiss based
on prosecutorial vindictiveness? United States v. Ribota, No. 14-3026.
Y.
Self Incrimination
Z.
Severance/Joinder
Did the district court erroneously deny defendant’s motion to sever his trial from
his co-defendants? United States v. Dean, No. 13-2982.
Federal Rule of Criminal Procedure 8 permits joinder of defendants in a single
indictment if the defendants “are alleged to have participated in the same act or
transaction, or in the same series of acts or transactions, constituting an offense or
offenses.” The indictment in this case charged three defendants with counts
stemming from three separate bank robberies and did not charge a conspiracy or
contain any factual allegations connecting the robberies or defendants. Did the
district court err in refusing to sever the defendants’ trial? United States v. Daniels,
No. 13-2078.
Whether a severance of the defendants for trial should have been granted? United
States v. Jackson & Spencer, Nos. 13-2649 & 13-3523.
AA. Speedy Trial
Whether the district court erred as a matter of law in denying Mr. Richardson’s
Motion to Dismiss when an analysis of Mr. Richardson’s case under the factors
set forth in Barker v. Wingo, 407 U.S. 514 (1972) demonstrate that Mr. Richardson
was denied his Sixth Amendment right to a speedy trial? United States v.
Richardson, No. 14-1901.
10
Whether the government violated Mr. Trudeau’s Speedy Trial Act Rights,
permitting 393 days to pass before he was brought to trial? United States v.
Trudeau, No. 14-1869
Whether Ramirez’s right to a speedy trial under 18 U.S.C. § 3161 was violated
where the district court continued the matter for six months because of its
congested docket? United States v. Ramirez, No. 14-2145.
Whether the district court erred in denying Ramirez’s motion to dismiss for
violation of the Speedy Trial Act? United States v. Ramirez, No. 14-2145.
Whether Mr. Khatib’s right to a speedy trial was violated when more than
seventy days of non-excludable time passed between the date of his initial
appearance on the indictment and his bench trial? United States v. Khatib, No. 142216.
BB. Stipulations
Did the district court abuse its discretion by admitting a stipulation describing
the criminal actions of persons not defendants in this case? United States v.
Saunders, No. 13-3863.
CC. Witnesses
Whether the district court plainly erred in the admission into evidence of a nontestifying co-defendant’s guilty plea that was not subjected to cross-examination
or a determination of availability? United States v. Garten, No. 13-3593.
Whether the government’s introduction of statements obtained from Montrell
Taylor through coercion into evidence at the 2012 trial violated Thomas and
Taylor’s due process rights to a fair trial? United States v. Thomas & Taylor, Nos.
13-2814 & 13-3469.
Whether the government improperly called Tjorra Payton, knowing that she had
no memory of the events for which she was being called to testify, only to
provide a backdoor for the government to present the substance of her grand
jury testimony to the jury? United States v. Thomas & Taylor, Nos. 13-2814 & 133469.
Did the district court err when it determined that Agent Peasley’s false testimony
as to the determination of license plate numbers and bank account balances was
harmless and did not impact Mr. Miller’s right to a fair trial? United States v.
Miller, No. 14-2779
11
DD. Wiretaps
IX. FORFEITURE
Whether Szaflarski had property or rights to property to which the judgment of
forfeiture could attach? United States v. Szaflarski, No. 14-1540.
X.
GUILTY PLEAS & PLEA AGREEMENTS
A.
Appeal Waiver
B.
By Magistrate
C.
Competency
D.
Factual Basis
Whether Mr. Schneider’s guilty plea to sexual abuse of a minor in violation of 18
U.S.C. § 2243(a) was knowing and voluntary where the plea colloquy failed to
establish a clear factual basis for the offense that allowed Mr. Schneider to
comprehend the nature of the charges against him and understand the law in
relation to the facts of the offense? United States v. Schneider, No. 13-3226.
E.
Interference with by judge
Whether the district court violated Federal Rule of Criminal Procedure 11 when
it repeatedly commented on the plea negotiations, including warning the
defendant that he should work with his lawyer because he faced “very, very
serious” charges and the government was willing to dismiss most of them?
United States v. Jones, No. 14-1665.
F.
Knowing and Voluntary
Whether this Court must remand the case to the district court with instructions
that Mr. Henderson be allowed to withdraw his guilty plea to the indictment
because he did not enter it knowingly, intelligently, and voluntarily? United
States v. Henderson, No. 14-2297.
G.
Withdrawal
Whether this case must be remanded with instructions to allow Mr. Henderson
to withdraw his guilty plea because it was not entered knowingly, intelligently,
and voluntarily? United States v. Henderson, No. 13-3861.
12
Whether this case must be remanded to allow the district court to determine
whether Mr. Henderson’s motion to withdraw his guilty plea must be granted?
United States v. Henderson, No. 13-3861.
Whether the error made by the district court in accepting Mr. Henderson’s guilty
plea to the indictment instead of the information was harmless and could
prejudice him in the future? United States v. Henderson, No. 13-3861.
Did the district court err when it denied Adrian Collins’s first and second
motions to withdraw his plea without a hearing? United States v. Collins, No. 143427
H.
Breach
Whether Mr. Navarro is entitled to resentencing and specific performance of the
government’s promise in the plea agreement to recommend a sentence within
the properly calculated guidelines range due to the government’s substantial
breach of the plea agreement by recommending a sentence significantly higher
than the applicable guidelines range at sentencing? United States v. Navarro, No.
12-2606.
XI. INDICTMENT
Whether the district court abused its discretion in denying Brown’s Motion to
Dismiss the Indictment when an earlier plea agreement not to prosecute charges
had incorporated the facts in the present situation? United States v. Brown, No. 123290.
Whether the government’s second superseding indictment was multiplicitous or
duplicitous when it impermissibly charged Jones - over three separate counts based solely on the location when authorities found the firearms when the
evidence showed that the defendant possessed the firearms as a single course of
conduct? United States v. Jones, No. 14-1665.
13
XII. INTERSTATE AGREEMENT ON DETAINERS
XIII.
A.
JURY ISSUES
Selection
B.
Batson
Did the district court err by overruling Mr. Cruse’s objection to the government’s
exercise of peremptory challenges against two African-American jurors where
the government did not offer plausible race-neutral reasons for the strikes and
the district court did not properly evaluate the government’s stated reasons
under the totality of the circumstances? United States v. Cruse, No. 13-2929.
C.
Challenges for Cause
Whether the lower court erred in failing to strike a biased juror. United States v.
Blagojevich, No. 11-3853
Whether the district court’s unquestioning acceptance of prospective juror’s
statements of impartiality resulted in erroneous failures to strike two jurors for
cause where each challenged juror’s personal experience with sexual assault was
likely to substantially impair her ability to perform her duties as a juror? United
States v. Taylor, No. 12-2916
D.
Deliberations
Was it error not to conduct a hearing to determine whether a juror’s verdict was
unduly influenced after she complained of being bullied and was seen outside
the jury room during deliberations? United States v. Dean, No. 13-2982.
A panic attack forced a juror to leave the deliberation room. Hours after
rendering the verdict, that same juror informed the district court that she had
been “bullied” and “railroaded” into reaching her verdict. At a post-trial
hearing, the district court noted that it was unclear whether the juror was
exposed to external influences or threats of physical violence. Did the district
court err in refusing to undertake a limited inquiry into the source and severity
of the reported bullying? United States v. Daniels, No. 13-2078.
E.
Instructions
Since the evidence against McClain consisted almost entirely of purchases and
sales of drugs, was it error for the district court to refuse to charge the jury, as
14
requested by McClain, that a buyer-seller relationship is not a conspiracy?
United States v. McClain, No. 13-3008.
Whether the jury was misinstructed as to the law fraud, extortion and bribery as
they relate to political deal-making and solicitation of campaign contributions.
United States v. Blagojevich, No. 11-3853
Given the government’s eleventh-hour concession of Barta’s lack of
predisposition, was the use of the pattern entrapment instructions, which put
predisposition back in issue, plainly erroneous? United States v. Barta, No. 133208
Did the district court err by denying Mr. Cruse’s request for a standard “buyerseller” jury instruction where the evidence that he was a member of a conspiracy
principally consisted of testimony that he engaged in arms’ length drug
transactions? United States v. Cruse, No. 13-2929.
Was it plain error for the district court to instruct the jury that the amount of
cocaine involved in Cruse’s offense included, without limitation, “all amounts
involved in all acts of the co-conspirators committed in furtherance of the
conspiracy?” United States v. Cruse, No. 13-2929.
Was it plain error for the district court to instruct the jury that the amount of
cocaine involved in McClain’s offense included, without limitation, “all amounts
involved in all acts of the co-conspirators committed in furtherance of the
conspiracy?” United States v. McClain, No. 13-3008
The ostrich instruction is properly given when a defendant deliberately shields
himself from clear evidence that he is engaged in wrongdoing, so that he can
later claim ignorance. Here the court found the instruction proper on two bases:
first because Pierotti asked the sheriff and his probation officer if he could go
hunting, but he did not seek out a lawyer’s advice; second because on the gun
application there was a link for instructions, and Pierotti did not click on that
link. By giving the ostrich instruction, did the court err? United States v. Pierotti,
No. 13-3096.
Whether the district court erred in overruling Lawrence’s objection to the
government’s proposed jury instruction on possession in a drug case? United
States v. Lawrence, No. 13-3205.
Whether the district court abused its discretion in refusing to instruct the jury on
buyer-seller relationships, when the jury could have reasonably concluded that
15
Mr. Haynes was only engaged in a buyer-seller relationship? United States v.
Haynes, No. 13-3617.
Whether Mr. Curtis’s convictions also should be reversed because the district
court erred in refusing to give an instruction defining the term “willfully” as
used in 26 U.S.C. § 7203? United States v. Curtis, No. 14-2069.
Whether the district court erred in refusing to instruct the jury that the required
mental state was willfulness? United States v. Latin & DeSalvo, Nos. 13-3844 & 133820.
Whether the district court improperly permitted the jury to find willfulness
without evidence that Trudeau actually knew that his conduct was unlawful?
United States v. Trudeau, No. 14-1869
Whether a new trial is warranted because the district court misapplied the
willfulness standard? United States v. Trudeau, No. 14-1869.
Whether the district court committed plain error when it failed to instruct the
jury on the mens rea element of harboring? United States v. McClellan, No. 14-2449.
Whether the district court erroneously instructed the jury on the issues of the
defendants’ intent, the meaning of “corruptly,” and the applicability of a quid
pro quo? United States v. Hawkins & Racasi, Nos. 14-1892 & 14-1908.
Whether Abate was denied a fair trial when the district court allowed the jury to
read and use an unfair and unredacted copy of the indictment during jury
deliberations? United States v. Natalizio & Abate, Nos. 14-1945 & 14-2434.
Whether the district court committed reversible error by issuing the Seventh
Circuit pattern instruction on deliberate avoidance? United States v. Macias, No.
13-2166.
F.
Mistrial
Whether the district court erred in failing to voir dire jurors mid-trial who were
overheard expressing opinion as to the defendants’ guilt? United States v.
Wilbourn & Sanders, Nos. 13-3715 & 13-3727.
16
XIV.
A.
OFFENSES
8 U.S.C. § 1326 (Illegal Reentry)
B.
18 U.S.C. § 373
Should Dvorkin’s conviction be overturned where he renounced his intention to
commit solicitation (murder) in accordance with 18 U.S.C. § 373(b)? United States
v. Dvorkin, No. 14-2799.
Was the evidence sufficient to prove that Dvorkin solicited another to commit
murder in violation of 18 U.S.C. §§ 373(a) and 1958(a)? United States v. Dvorkin,
No. 14-2799.
C.
18 U.S.C. § 666
Is the “federal funds” element of 18 U.S.C. § 666 satisfied where the County of
Los Angeles received $10,000 in federal funds, but none of those funds went to
the county department that employed the (supposed) official who was to be
bribed? United States v. Barta, No. 13-3208
To prove a conspiracy to bribe a public official under 18 U.S.C. § 666, the
government must show that the subject of the transaction was worth $5,000 or
more. In this case, the subject of the bribe was a fictitious mail-order
pharmaceutical contract with the Los Angeles County hospital system. At trial
the government did not establish the contract’s value. Instead, it relied on the
value of the bribe. Was this sufficient to prove beyond a reasonable doubt that
the value of the subject of the transactions was worth $5,000 or more? United
States v. Medrano, No. 14-1100.
Whether the government’s evidence was sufficient to prove Mullins violated the
bribery statute? United States v. Mullins, No. 14-1701.
D.
18 U.S.C. § 915 (Foreign Diplomat)
Whether the evidence was insufficient to support Mr. Bey’s conviction for
pretending to be a diplomatic official of a foreign government under 18 U.S.C. §
915, when the evidence clearly established that he represented himself to be a
Moorish American diplomat from the Mu’ur Republic, which is not a foreign
government? United States v. Hillman, No. 13-3689.
E.
18 U.S.C. § 922(g)(1) (Felon in possession)
Whether any rational trier of fact could have convicted Mr. Parks of the offense
of being a felon in possession of a weapon given the inconsistencies in the
17
testimony of the government’s primary witness, the lack of physical evidence,
and the implausibility of the theory of the case posited by the government at
trial? United States v. Parks, No. 13-1448.
Whether there was sufficient evidence to sustain a conviction for being a felon in
possession of a firearm? United States v. Sewell, No. 14-1384.
F.
18 U.S.C. § 924(c)(use of weapon during drug or violent
felony)
Whether the district court’s ruling on the “destructive device” component of 18
U.S.C. §§ 921(a)(4) and 924(c)(1)(A) and (b)(ii) compromised Mr. Tomkins’s fifth
and sixth amendment rights where he was barred from raising a complete
defense and where the jury did not return a verdict on the firearm’s
characteristics, causing him to be subject to a statutory mandatory minimum of
30 years? United States v. Tomkins, No. 13-2234.
G.
18 U.S.C. § 1001 (false statements)
Did the government fail to prove a false statement charge where the basis of the
charge was the defendant’s statement that he did not keep records on his laptop,
but where agents later discovered such records on a laptop owned by the
defendant, but the government also failed to establish what the defendant’s
laptop looked like or how many laptops he had? United States v. Rahman, No. 131586
Whether the defendant’s statement in a false statement prosecution involved
official, authorized functions of a federal agency where the defendant’s
statements were made to a state fire investigator at the scene of a fire where a
federal official was also present on the scene, but to whom the alleged statement
was not made? United States v. Rahman, No. 13-1586
Whether Count 10 of Clark’s conviction for false statements under 18 U.S.C. §
1001 must be vacated for failure of proof of materiality, where the charged
statements were made to a state agency and only certified Clark’s compliance
with state law? United States v. Clark, No. 14-1251.
Whether Counts 1 through 9 of Clark’s conviction must be vacated for failure of
proof of materiality, where the government failed to prove that the Davis-Bacon
Act applied to the charged statements? United States v. Clark, No. 14-1251.
H.
18 U.S.C. § 1017
Whether the evidence was insufficient to support Mr. Bey’s conviction under 18
U.S.C. § 1017 for using the seal of the Department of Justice, knowing it had been
18
fraudulently affixed to his identification card, when the evidence showed that
the card featured a counterfeit facsimile of the seal rather than the actual seal
itself? United States v. Hillman, No. 13-3689.
I.
18 U.S.C. § 1028A (aggravated identity theft)
Harris was convicted of conspiracy, credit card fraud, and identity theft. Much
of the evidence against him consisted of testimony by co-defendants who were
related or friends, and obtained via plea agreement? Was the evidence sufficient
to convict? United States v. Harris, No. 14-1846.
J.
18 U.S.C. § 1341 (mail fraud)
Whether the district court erred in failing to grant a judgment of acquittal for
Garten after the government failed to make a submissible case as a matter of law
that Garten knowingly and intentionally engaged in conspiracy to commit mail
and wire fraud? United States v. Garten, No. 13-3593.
Whether the government’s evidence was sufficient to establish McClellan’s
participation in a scheme to defraud or that he possessed the requisite intent to
defraud, both of which are required elements of mail and wire fraud offenses?
United States v. McClellan, No. 14-2449.
K.
18 U.S.C. § 1343(wire fraud)
Whether the prosecution’s evidence was insufficient under the proper principles
of law to prove wire fraud? United States v. Mullins, No. 14-1701.
Whether the verdict below is supported by evidence sufficient to support a
reasonable inference of an intent to defraud, an essential element for a conviction
for wire fraud under 18 U.S.C. § 1343, where the only evidence is that the
defendant participated in an enterprise controlled by another, repeated the
enterprise’s misrepresentations, and had little indication that the enterprise was
anything but legitimate? United States v. Pust, No. 13-3747.
L.
18 U.S.C. § 1346 (Honest Services Fraud)
M.
18 U.S.C. § 1347 (health care fraud)
N.
18 U.S.C. § 1591 (sex trafficking)
Whether the evidence was sufficient to support McMillian’s conviction for sex
trafficking by means of force, fraud, or coercion under 18 U.S.C. § 1591 when the
testimony at trial at most showed mere puffing and domestic abuse? United
States v. McMillian, No. 13-3577.
19
Whether the evidence was sufficient to support McMillian’s conviction for
attempting to violate 18 U.S.C. § 1591 with regard to Cherish, when the act of
posting a prostitution advertisement to Craigslist did not involve an attempt to
recruit, entice, harbor, transport, provide, obtain, or maintain a person, namely
Cherish? United States v. McMillian, No. 13-3577.
Whether the evidence was sufficient to support any of McMillian’s convictions
under 18 U.S.C. § 1591, where the government failed to prove that McMillian
engaged in activities that implicated the federal interest in stemming involuntary
trafficking of women and children worldwide? United States v. McMillian, No.
13-3577.
O.
18 U.S.C. § 1832 (Economic espionage)
P.
18 U.S.C. § 1951 (Hobbs Act)
Q.
18 U.S.C. § 1962(RICO)
Whether the government’s evidence was sufficient to sustain a conviction for
money laundering when no evidence was presented to support McClellan’s
knowledge that the transaction involved criminally derived property or that the
property was derived from mail fraud? United States v. McClellan, No. 14-2449.
R.
18 U.S.C. § 2113(e)
S.
18 U.S.C. § 2250 (Failure to Register)
T.
18 U.S.C. § 2342(a) (Contraband Cigarette Trafficking
Act)
U.
18 U.S.C. § 2422(b) (inducing a minor re: sex)
V.
18 U.S.C. § 2256(2)(A)(v)(lascivious exhibition of
genitals)
W. 21 U.S.C. § 841(a)(Controlled Substances)
Did the district court violate Bounds’s Sixth Amendment right to a trial by jury
when it reconsidered the jury’s verdict on the quantity of narcotics involved and
found an amount more than two times greater than the jury for purposes of
sentencing? United States v. Bounds, No. 13-3910.
20
X.
21 U.S.C. § 843 (Phone Count)
Whether the phone counts should be vacated where they are premised on
facilitating a drug conspiracy which has been dismissed? United States v.
Wilbourn & Sanders, Nos. 13-3715 & 13-3727.
Y.
21 U.S.C. § 846 (Controlled Substances Conspiracy)
Should the district court have granted McClain’s motion for judgment of
acquittal on the ground that the evidence presented at trial was insufficient to
sustain a conviction under the one-count indictment charging a single sixteenyear conspiracy to possess and distribute illegal drugs, and that the evidence
might have proved a series of individual drug transactions, or multiple
conspiracies (few of which involved McClain), but did not establish a single
conspiracy? United States v. McClain, No. 13-3008.
Whether the evidence was insufficient to support Mr. Haynes’s conviction for
conspiracy to manufacture methamphetamine, when it only showed a buyerseller relationship between Mr. Haynes, a seller of pseudoephedrine, and other
individuals who used and manufactured methamphetamine? United States v.
Haynes, No. 13-3617.
Was the evidence presented by the government insufficient to sustain
defendant’s convictions for conspiracy and aiding and abetting possession with
intent to distribute a controlled substance? United States v. Shannon, No. 14-3044.
Z.
42 U.S.C. § 1320a-7b(b)(1)(A) (Anti-Kickback Statute)
Whether a physician “referred an individual to a person,” for purposes of 42
U.S.C. § 1320a-7b(b)(1)(A), the Anti-Kickback Statute, when he played no role in
the patient’s selection of the health care provider that treated his patients? United
States v. Patel, No. 14-2607.
Whether the government satisfied the essential elements of 42 U.S.C. § 1320a7b(b)(1)(A) beyond a reasonable doubt? United States v. Patel, No. 14-2607.
AA. 42 U.S.C. § 7413 (Environmental Offeses)
BB. 42 U.S.C. § 16911(d)(SORNA)
Whether the district court improperly interpreted 42 U.S.C. §16911, commonly
referred to as SORNA, when holding that its registration requirements apply
to the Appellant based on his conviction under 18 U.S.C. §1470? United States
v. Taylor, No. 12-2916
21
XV.
RECUSAL
XVI.
RESTITUTION
XVII.
RETROACTIVE GUIDELINE AMENDMENTS
Whether, in light of United States v. Wren, 706 F.3d 861 (7th Cir. 2013), the district
court erred when it denied Mr. Freeman’s motion to reduce sentence, filed
pursuant to 18 U.S.C. § 3582(c)(2)? United States v. Freeman, No. 14-1362.
Whether the district court committed reversible error in denying Appellant’s
request for a sentence reduction under 18 U.S.C. § 3582(c)(2) for lack of subject
matter jurisdiction that otherwise allows the court to reduce a defendant’s
previously imposed sentence that has been subsequently lowered by the
Sentencing Commission pursuant to 28 U.S.C. § 994(o)? United States v. Taylor,
No. 13-2978.
Whether the district court abused its discretion in denying Mr. Taylor’s request
for sentence reduction based on revised calculations under 18 U.S.C.S 3582(c) of
the Fair Sentencing Act of 2010 which reduced sentencing disparities between
crack and powder cocaine pursuant to Amendment 750 in the Sentencing
Guidelines? United States v. Taylor, No. 13-2978.
XVIII.
A.
SEARCH & SEIZURE
Arrest
1.
In the home
Whether the district court erred in denying McMillian’s motion to suppress
evidence, when the evidence was the fruit of an illegal in-home arrest and
protective sweep? United States v. McMillian, No. 14-1537.
2.
Probable cause to
Whether the officer violated the Fourth Amendment by seizing Shields on the
basis of a condition that was not illegal and the district court erred when it
denied the motion to suppress? United States v. Shields, No. 13-3726.
Was the October 7, 2005, search of defendant’s car conducted in violation of his
Fourth Amendment rights? United States v. Dean, No. 13-2982.
22
Whether Mr. Gray’s motion to quash arrest and suppress evidence should have
been granted where there was no probable case for the arrest and further the
subsequent warrantless search of seized cell phones was impermissible in light of
Riley v. California? United States v. Gray, No. 13-1788
Police were called because a woman in a bank was attempting a fraudulent
transaction. Moments later, officers arrived and immediately arrested Harris,
who was sitting in his car outside the bank. Harris was handcuffed and in the
back of a police car as other officers arrested the actual suspect. Was the
detention and arrest of Harris legal? United States v. Harris, No. 14-1846.
B.
Canine Searches
Did the District Court erroneously deny Peter’s motion to suppress evidence of
marijuana and a hand gun seized by the Indiana State Police from his home and
garage by determining that the dog sniff conducted inside his fenced in yard on
the front porch and at the front and back doors of his house was not a search
under the Fourth Amendment requiring a warrant? United States v. Peter, No. 131094.
Whether the district court erred in reversing its decision to reopen Mr. Herman’s
suppression hearing in light of Florida v. Jardines? United States v. Herman, No. 133210.
Whether the government, by entering Mr. Herman’s locked secure apartment
building without consent, and conducting a dog sniff without a warrant, at the
front door of his apartment, violated his Fourth Amendment right to be free of
unreasonable searches and seizures under Florida v. Jardines? United States v.
Herman, No. 13-3210.
C.
Consent
Did investigators of an arson exceed the scope of the defendant’s consent when
they searched an where they knew the fire did not start for circumstantial
evidence of arson, where a cause-and-origin search is limited intrusion that does
not extend to determining criminal responsibility? United States v. Rahman, No.
13-1586
Whether the district court erred in denying the motions to suppress evidence in
determining there was actual and apparent authority by a third party, consent
was granted prior to entry into the home, contraband was in plain view, and
there was no promise of immunity from prosecution in exchange for a gun?
United States v. Brandon, No. 13-3471.
23
D.
Curtilage
Did the District Court, after finding that the police intrusion within the curtilage
of Peter’s dwelling to obtain evidence was a trespass and a search within the
meaning of the Fourth Amendment, erroneously determine that the search was
so minimal that it did not require a warrant or probable cause? United States v.
Peter, No. 13-1094
E.
Excessive Force
F.
Expectation of privacy
Did the government’s use of historical cell site evidence to track defendant’s
whereabouts on the dates of the robberies violate his Fourth Amendment rights?
United States v. Dean, No. 13-2982.
G.
Franks
Whether the search in this case should be voided and the fruits of the search
suppressed under Franks v. Delaware because material facts were deliberately or
recklessly omitted from the complaints or otherwise falsified in the complaints?
United States v. Gregory, Cipra, & Konrady, No. 14-2747, 14-2792, & 14-2759.
Whether any evidence was introduced at the Franks’ hearing that cast doubt on
whether the photos offered in support of the warrant were taken on the dates
indicated by the metadata provided by the government to the defendants with
the digital versions of the photos? United States v. Gregory, Cipra, & Konrady, No.
14-2747, 14-2792, & 14-2759.
Whether law enforcement either deliberately misled the state judge who issued
the warrant or were recklessly indifferent to whether the judge would be misled
by the information included in and omitted from Agent Chavira’s complaint for
no-knock warrant? United States v. Gregory, Cipra, & Konrady, Nos. 14-2747, 142792, & 14-2759.
H.
Good Faith Exception
I.
Hearing
Whether the district court’s failure to rule on Mr. Charles’s pretrial motion to
suppress was not supported by good cause and severely prejudiced his ability to
adequately defend himself? United States v. Charles, No. 14-1530.
24
J.
Miranda
Whether the district court erred by denying Mr. Tellez’s motion to suppress and
exclude his statement to law enforcement officers where Mr. Tellez did not waive
his Miranda rights voluntarily, knowingly, and intelligently? United States v.
Tellez, No. 13-2561.
Whether the statements Mr. Ruiz made to law enforcement officers prior to
receiving Miranda warnings should have been suppressed because Mr. Ruiz was
“in custody” at the time they were made? United States v. Ruiz, No. 13-1209.
K.
Miscellaneous
Whether the district court erred in failing to suppress all documentary evidence
obtained via grand jury subpoenas following the IRS Agents’ improper use of
civil summonses? United States v. Procknow, No. 14-1398.
L.
Reasonable suspicion
Whether law enforcement officers had reasonable suspicion to stop Mr. Ruiz’s
vehicle where the alleged suspicion was based solely on (a) entering a car that
recently had indirect contact with a suspected target and (b) adjusting the
controls on the car’s dashboard? United States v. Ruiz, No. 13-1209.
Whether the district court erred in failing to suppress all evidence where a police
officer’s mistake of law provided the individualized suspicion to justify the
traffic stop of Mr. Miranda-Sotolongo’s car? United States v. Miranda-Sotolongo,
No. 14-2753.
Whether the district court erroneously denied Mr. Sanford’s motion to suppress
evidence recovered from the rental car he was a passenger in? United States v.
Sanford, No. 14-2860.
M.
Search
1.
Inevitable discovery
Probable cause to
2.
Whether the search of a bag belonging to White, a parolee, left in an automobile
of a third party without a warrant was reasonable under the Fourth
Amendment? United States v. White, No. 13-2943
Whether the November 13, 2006, search of the car in which Sanders’ was riding
violated the Fourth Amendment? United States v. Wilbourn & Sanders, Nos. 133715 & 13-3727.
25
An officer searched Harris’s truck after arrested passenger Darrielle Watkins
asked for her coat and backpack. The officer also confiscated an incriminating
notebook. Harris, despite being in custody, was never asked if the truck was his
or whether he consented to the search. Was the search legal? United States v.
Harris, No. 14-1846.
Whether the district court erred in failing to suppress all evidence found as a
result of the Eagan Police Department’s unlawful warrantless entry and search of
Mr. Procknow’s hotel room in violation of the Fourth Amendment? United States
v. Procknow, No. 14-1398.
Does probable cause to believe that the defendant’s cell phone received digital
contraband images permit officers to search other digital storage devices in the
defendant’s possession in the absence of evidence suggesting that the defendant
transferred the digital image to a different digital device? United States v.
Reichling, No. 14-2941.
Does probable cause to believe that the defendant’s cell phone received digital
contraband images permit officers to search non-digital storage devices like VHS
tapes in the absence of any evidence suggesting that it is even possible to transfer
digital data to a VHS tape? United States v. Reichling, No. 14-2941.
3.
Protective Sweeps
Whether the district court erred in denying McMillian’s motion to suppress
evidence, when the evidence was the fruit of an illegal in-home arrest and
protective sweep? United States v. McMillian, No. 14-1537.
N.
Standing.
O.
Terry Stops
Police stopped Leo on the street and detained him to investigate a burglary
complaint. After handcuffing him, an officer took his backpack, opened it,
removed its contents, and found a gun that forms the basis for the charges
against Leo. This case presents one issue: During a Terry stop, officers may
sometimes frisk a person for weapons and frisk any bag they are carrying; may
they also open a bag and search its contents? United States v. Leo, 14-2262.
Whether Mr. Ruiz voluntarily consented to follow officers to the police station
and open the traps in his vehicle after having been stopped for thirty minutes in
the driveway and an additional thirty minutes at the police station, was escorted
to the police station flanked by police vehicles, and only opened the traps after
questioning by law enforcement officers? United States v. Ruiz, No. 13-1209.
26
Whether it is reasonable for a young black male that lives in an urban area where
police relationships are strained and it is understood that one wrong move
during an encounter with law enforcement could result in loss of life - would feel
free to walk away when encountered by police officers in a dark alley, with his
forward path partially obstructed, and where the first and only inquiry from
officers was whether he was armed or in possession of contraband? United States
v. Smith, No. 14-2982.
P.
Warrants
Whether the district court erred in denying Mr. Tomkins’s motions to suppress
evidence where multiple requests stated in the warrants were general in nature
and where government agents engaged in wholesale seizures of thousands of
irrelevant documents and other items? United States v. Tomkins, No. 13-2234.
Whether the district court erred in its determination that probable cause existed
for the issuance of the search warrant? United States v. Sewell, No. 14-1384.
Whether the search warrant affidavit was sufficient to establish probable cause
where there was no evaluation of the informant’s credibility and the affidavit
contained only conclusory statements? United States v. Olivo, No. 14-1140.
Whether the complaint for no-knock warrant satisfied the Fourth Amendment
requirements for an anonymous tip? United States v. Gregory, Cipra, & Konrady,
Nos. 14-2747, 14-2792, & 14-2759.
XIX.
SENTENCING
A.
Acquitted conduct
Whether the court erred by increasing the defendant’s sentence for making a
false statement based upon a finding at sentencing that the defendant also
committed arson, although the jury acquitted the defendant of the arson charge?
United States v. Rahman, No. 13-1586
B.
Armed Career Criminal/Career Offender
Whether the district court committed procedural error by incorrectly calculating
the Guidelines sentencing range, when Mr. Rollins' prior conviction for
possession of a sawed-off shotgun was not a crime of violence? United States v.
Rollins, No. 13-1731
Whether there was sufficient evidence to sustain an Armed Career Criminal
charge where the government did not provide sufficient evidence at trial that
27
Shields had more than one felony conviction? United States v. Shields, No. 133726.
Whether the district court erred in imposing a mandatory minimum sentence of
15 years under the Armed Career Criminal Act where the elements were not
submitted to the jury in violation of Alleyne v. United States? United States v.
Shields, No. 13-3726.
Whether the district court erred in finding Shields’s aggravated battery and
residential burglary convictions, after restoration of civil rights, were convictions
under the recidivist enhancement in 18 U.S.C. § 924(e) and U.S.S.G. §
4B1.4(b)(3)(B)? United States v. Shields, No. 13-3726.
Whether the district court erred in denying Shields’s motion to dismiss the
indictment regarding the unconstitutionality of 18 U.S.C. § 922(g)? United States
v. Shields, No. 13-3726.
Did the district court erroneously sentence Mr. Lockett as an armed career
criminal by using prior State of Illinois drug convictions as predicates, despite no
proof that these offenses carried maximum terms of 10 years or more as required
under the Armed Career Criminal Act? United States v. Lockett, No. 13-2200.
Did the restoration of rights letter Mr. Lockett received in September 1995 cover
his 1990 convictions, thereby disqualifying the 1990 convictions as predicates
under the Armed Career Criminal Act? United States v. Lockett, No. 13-2200.
Did the government’s failure to allege the fact of Mr. Lockett’s 1990 convictions,
and the government’s failure to prove this fact beyond a reasonable doubt,
prevent the district court from sentencing Mr. Lockett as an armed career
criminal? United States v. Lockett, No. 13-2200.
Whether the district court erred in sentencing West as an armed career criminal?
United States v. West, No. 14-2415.
C.
Burden of Proof
D.
Consecutive/Concurrent Sentences
Whether the court erred in sentencing Mr. Medrano to a consecutive 30-month
imprisonment rather than a concurrent sentence to the 126-month imprisonment
sentence he received under case number 459? United States v. Medrano, No. 141100.
28
Mr. Conley received a 41-month prison term for the offense of escape,
consecutive to a 20-year federal bank robbery sentence. This escape previously
was treated as an aggravating factor that increased the bank robbery sentence.
Was a 41-month consecutive sentence reasonable? United States v. Conley, No. 141455.
E.
Cumulative Error
F.
Double Jeopardy
G.
Entrapment and manipulation
H.
Evidence admissible
I.
Ex Post Facto
Whether the district court erred in holding that application of policy statement
U.S.S.G. § 1B1.10(b)(2)(A) violates the Ex Post Facto Clause? United States v. King,
No. 13-2940 (government appeal)
Whether the district court violated the ex post facto clause of the Constitution by
applying base offense levels under the Sentencing Guidelines that were
enhanced after the commission of the offenses of conviction? United States v.
McMillian, No. 13-3577.
J.
Fair Sentencing Act
Whether the denial of Mr. Bailey’s motion to reduce sentence was error where
the record shows clear intent of the parties to base the binding sentence on the
guidelines sentence (the pre-Fair Sentencing Act mandatory minimum sentence)
and where the court’s statement on the § 3553(a) factors consisted of one terse
sentence? United States v. Bailey, No. 13-3229.
29
K.
Fast Track
L.
Fines
M.
Forfeiture
N.
Guideline Sections
1.
1B1.10(b)(2)(A)
2A3.5(b)(1)(A) (committing a sex offense while in
2.
fugitive status)
Whether the district court erred in imposing a six level enhancement pursuant to
U.S.S.G. § 2A3.5(b)(1)(A) in reliance of the status offense of Indiana incest where
the alleged incestuous relationship was between the defendant and his adult
daughter, there is no element related to lack of consent in the statute, nor was his
daughter under the “custodial authority” of the defendant? United States v.
Rogers, No. 14-1553.
3.
2B1.1(a)(money laundering)
4.
2B1.1(b)(1) (Amount of loss)
Whether the district court clearly erred in misapplying the United States
Sentencing Guideline § 2B1.1(b)(1)(J), amount of loss over $2,500,000 which
resulted in a wrongly calculated guidelines range? United States v. Garten, No. 133593.
Whether the district court improperly failed to address Mr. Haywood’s claim
that admissions made during a proffer were considered in determining the
amount of loss? United States v. Haywood, No. 13-3815.
Whether the sentence should be vacated and remanded because the district court
erroneously associated more than $200,000 in “loss” under § 2B1.1 with Clark’s
charged statements? United States v. Clark, No. 14-1251.
5.
2B1.1(b)(2) (number of victims in fraud)
Whether the district court erred in calculating the number of victims? United
States v. Jones, No. 14-3103.
30
6.
2B1.1(b)(2)(A) (mass marketing)
7.
2B1.1(b)(9)(C)(Sophisticated Means)
Did the district court plainly err at sentencing by applying a two-level
enhancement for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3 and by
applying a two-level enhancement for use of sophisticated means pursuant to
U.S.S.C. § 2B1.1(b)(1)? United States v. DeMarco, No. 14-1526.
8.
2B1.1(b)(10)(A) (relocating fraudulent scheme)
Whether a fraud that is perpetrated in multiple jurisdictions is “relocated” for the
purpose of evading law enforcement under § 2B1.1(b)(10)(A) where the
defendant’s residence and fraud headquarters remained in the Detroit area for
the entire duration of the scheme, the fraudulently obtained goods were brought
back to the Detroit area to be fenced, and the defendants were unaware of any
ongoing law enforcement investigation into the fraud scheme that they sought to
evade by expanding into other jurisdictions? United States v. Hines-Flagg, 142975.
9.
2B1.1(b)(11)(B)(i) (production of counterfeit access
device)
Whether the district court erred in applying the use of a counterfeit access device
enhancement under § 2B1.1(b)(11)? United States v. Jones, No. 14-3103.
10.
2B1.1(b)(18)(B)(offense involving commodities law)
11. 2B3.1 (carjacking)
Whether a guideline enhancement for carjacking is supported where the
stipulated facts show that car keys were taken from a purse without the use of
force and violence or intimidation? United States v. Rogers, No. 14-2053.
12. 2D1.1(Controlled Substances)
Whether the district court erred in finding Mr. Burnett responsible for additional
grams of heroin (relevant conduct) beyond those involved in the offense of
conviction; and whether the district court’s failure to analyze the relationship
between uncharged drug activity admitted by the defendant and the offense of
conviction requires remand? United States v. Burnett, Nos. 13-2882 & 13-2974.
Did the district court clearly err by basing its narcotics quantity finding on
unreliable evidence and by not articulating a methodology for arriving at the
quantity? United States v. Bounds, No. 13-3910.
31
Whether the district court used unreliable evidence when it attributed over 30
kilograms of heroin to the defendants? United States v. Griffin and Allison, Nos. 141508 & 14-2002.
Whether the district court erred in calculating the amount of controlled
substances to be attributed to the defendant at sentencing? United States v.
Presley, No. 14-2704.
13. 2D1.1(b)(1) (possession of a firearm during drug
offense)
Whether the district court erred by imposing a two-level enhancement for
possessing a firearm during a drug offense where there was no evidence, other
than a general association between firearms and drugs, to show that Ms. Ramirez
knew that her co-conspirators were in possession of firearms? United States v.
Ramirez, No. 13-1013.
Whether the district court erred in determining that Mr. Joyce possessed a
firearm that was present during relevant conduct because the evidence fell short
of demonstrating his drug activities in July 2013, when the firearm was
possessed, were part of the same course of conduct or a common scheme or plan
as his charged conduct nearly two months earlier? United States v. Joyce, No. 141560.
Whether the district court erred in determining that the defendant possessed a
firearm in connection with a controlled substance? United States v. Sewell, No. 141384
14. 2G1.3(b)(3)(A)(using a computer to entice minor)
Whether the district court erred in finding that the computer enhancement
applied to the defendant, merely because the defendant and the minor victim
communicated by cell phone to arrange drop off and pick up when the minor
engaged in prostitution locally. United States v. Shamsud-Din, No. 13-2971
15. 2G2.1 (child exploitation)
Whether a depiction of a victim inserting a screwdriver and highlighter into her
vagina is sadistic pursuant to U.S.S.G. § 2G2.1(b)(4) based on the after-the-fact
expressions of remorse rather than the depiction itself? United States v. Johnson,
No. 14-2240.
32
16.
2G2.2 (child pornography)
17. 2K2.1(a)(firearm offense after prior drug felony)
Whether the district court miscalculated Mr. Bloch’s guidelines range when it
determined that a battery by human waste conviction was a crime of violence
under § 2K2.1(a)(1)? United States v. Bloch, No. 13-3333.
18.
2K2.1(b)(1)(B) (number of firearms involved)
19. 2K2.1(b)(6)(B) (possession of firearm in connection
with a felony offense)
20. 2K2.1(c)(1)(A)(using firearm in connection with
another offense)
21. 2L1.2 (prior conviction)
Whether the district court adequately explain why it was denying Mr. QuinonezBarraza’s motion for below guideline sentence based on the argument that the 16
level enhancement under § 2L1.2 is not founded on empirical research regarding
deterrent efficacy or any other variable relevant to the purposes of sentencing
producing an unsound sentence under the particular facts of this case? United
States v. Quinonez, No. 14-2096.
Whether, in light of Descamps v. United States, the district court erred in treating
Mr. Zuniga-Galeana’s 1991 Illinois conviction for Aggravated Criminal Sexual
Abuse as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)? United States v.
Zuniga-Galeana, No. 14-1994.
22.
2L2.1(b)(2)(C) (more than 100 documents)
23.
2L2.1(b)(5)(B)(using or obtaining a foreign passport)
24. 2T1.1
Whether the district court erred in making its determination as to the proper
offense level under the United States Sentencing Guidelines and applying a
U.S.S.G. offense level sentencing range that was inconsistent with U.S.S.G. §
2T1.1 and the underlying facts? United States v. Black, No. 13-3908.
Whether the tax loss amount in U.S.S.G. § 2T1.1 should include penalties and
interest pursuant to U.S.S.G. § 2T1.1? United States v. Black, No. 13-3908.
33
25.
2X1.1 (attempt)
26. 3A1.1(vulnerable victim)
Whether the district court erred in finding that the vulnerable victim
enhancement applied, where the victim’s minor status was already incorporated
into the offense guideline, and homelessness and economic exigency are typical
of victims of the offense, and where the victim was not unusually vulnerable
because she was afraid of her prior pimp. United States v. Shamsud-Din, No. 132971
Whether increasing Mr. Burnett’s guidelines range in the fraud case based on
both the abuse of trust and vulnerable victim enhancements constitutes
impermissible double counting where the position of trust occupied by the
defender was guardian of a minor’s estate and the vulnerable victim
enhancement was based on the age of the victims? United States v. Burnett, Nos.
13-2882 & 13-2974.
Whether the district court failed to make any findings regarding the assessment
of the enhancement under § 3A1.1(b)(1) as to whether the victim was vulnerable
and whether Mr. Taylor knew or should have known the victim was vulnerable?
United States v. Taylor, No. 13-3469.
Whether the district court failed to make any findings regarding whether the
victim was vulnerable and whether Mr. Thomas knew or should have known the
victim was vulnerable? United States v. Thomas, No. 13-2814.
27.
3A1.2(c)(1) (assaulting an official victim)
28. 3B1.1(a)(Leader or organizer)
Whether the district court in Mr. Burnett’s narcotics case erred in finding that Mr.
Burnett occupied a leadership role in a criminal activity? United States v. Burnett,
Nos. 13-2882 & 13-2974.
Whether the district court improperly found Mr. Haywood to be subject to a
four-point enhancement for a leadership role in the offense pursuant to U.S.S.G.
§ 3B1.1(a)? United States v. Haywood, No. 13-3815.
Whether the sentencing court abused its discretion by enhancing Wilbourn’s
guideline offense level based on Freeman’s criminal acts and imposing a
manger/supervisor enhancement despite the fact that Wilbourn’s crimes of
conviction involved no participant other than Wilbourn? United States v. Wilbourn
& Sanders, Nos. 133715 & 13-3727.
34
The district court enhanced Harris’s sentence based on being a manager, using
sophisticated means, the number of victims, and relocating the scheme. With
these assessments, Harris was sentenced to 156 months. Did the district court err
in its sentencing determination? United States v. Harris, No. 14-1846.
Whether the district court erred when it enhanced Mr. Jones’s offense level by
four points for being a leader/organizer? United States v. Jones, No. 14-3103.
29.
3B1.2(Minor role)
30. 3B1.3(Abuse of position of trust)
Whether increasing Mr. Burnett’s guidelines range in the fraud case based on
both the abuse of trust and vulnerable victim enhancements constitutes
impermissible double counting where the position of trust occupied by the
defender was guardian of a minor’s estate and the vulnerable victim
enhancement was based on the age of the victims? United States v. Burnett, Nos.
13-2882 & 13-2974.
Whether the district court erred in concluding that the defendants occupied high
level or sensitive decision making positions when they were employed as the
lowest level analysts for the Board of Review where their work was subject to
multiple levels of review and had virtually no element of discretion elements by
virtue of a computer protocol put in place before they started their positions?
United States v. Hawkins & Racasi, Nos. 14-1892 & 14-1908.
31. 3C1.1(Obstruction of justice)
Whether the District Court erred by sentencing Kasp to 97 months due to an
incorrectly calculated sentencing range based on the District Court’s finding that
Kasp obstructed justice by filing false statements in an affidavit. United States v.
Kasp, No. 13-2907
Whether the district court improperly calculated the advisory sentencing
guidelines by applying a 2-level offense enhancement for obstruction of justice
pursuant to U.S.S.G. §3C1.1? United States v. McMahan, No. 12-3291
Whether the two-level enhancement for obstruction of justice was appropriate
where the only basis for the enhancement was an attorney-generated delay in the
proceedings so the defendant could undergo a psychological evaluation? United
States v. Wilbourn, No. 13-3610.
Whether the district court failed to make appropriate findings in order to justify
the two level enhancement for obstruction of justice under U.S.S.G. § 3C1.1?
35
Whether the district court erred in imposing on each sentence the obstruction of
justice enhancement based on the defendant’s trial testimony? United States v.
Jackson & Spencer, Nos. 13-2649 & 13-3523.
32. 3D1.2(Grouping)
Whether the district court plainly erred in calculating Kieffer’s guideline range
by factoring in his uncharged bank robberies, to which he did not specifically
stipulate, in its multiple count adjustment and by imposing restitution based on
the uncharged bank robberies? United States v. Kieffer, Nos. 14-2650, 14-2652, &
14-1653.
33. 3E1.1 (Acceptance of Responsibility)
Whether the district court improperly calculated the advisory sentencing
guidelines when it ruled that because the defendant’s guilty plea was not an
exceptional case, defendant was not eligible to receive a 3-level decrease for
acceptance of responsibility in accordance with §3E1.1? United States v.
McMahan, No. 12-3291
Whether the district court abused its discretion in denying the defendant credit
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 based on his denial
of the incestuous relationship with his adult daughter? United States v. Rogers,
No. 14-1553.
Did the district court err by denying Collins a two point reduction for acceptance
of responsibility? United States v. Collins, No. 14-3427.
34. 4A1.1 (Criminal History)
Whether the district court erroneously assessed four criminal history points for
Mr. Tolbert's prior state offenses in case number 80 C 1525 pursuant to U.S.S.G. §
4A1.1(e) because the offenses were committed on the same occasion? United
States v. Tolbert, No. 13-1972
Whether the district court erroneously assessed one criminal history point for
each of Mr. Tolbert's prior retail theft convictions in case numbers 10 CM 2198
and 10 CM 4210 pursuant to U.S.S.G. §§ 4A1.1(c) and 4A1.2(a)(2) where only one
sentence was imposed? United States v. Tolbert, No. 13-1972
Whether the district court abused its discretion when it found that a criminal
history category of III did not overstate Mr. Pantazelos’ criminal background and
whether the resulting sentence is substantively unreasonable? United States v.
Pantazelos, No. 13-1394
36
Whether the district court erred in calculating Mr. Purvis' criminal history
category, when three criminal history points were incorrectly assessed under the
2005 Sentencing Guidelines for a prior conviction that was not separated by an
intervening arrest and was related to another conviction receiving three points?
United States v. Purvis, No. 12-3856
Whether the district court incorrectly calculated Jones’s sentencing guideline
range and criminal history category by using a conviction that occurred more
than fifteen years prior to the commencement of the conduct in this case? United
States v. Jones, No. 14-1665.
35. 5C1.2 (Safety Valve)
Whether the trial court erred in failing to apply the “safety valve” to Mr. PoncePerez contained in 18 U.S.C. § 3553(f), U.S.S.G. § 5C1.2, and U.S.S.G. §
2D1.1(b)(16) resulting in a minimum ten year sentence being imposed on the
defendant? United States v. Ponce-Perez, No. 14-1001.
Whether it was plain error not to award the two-level safety valve departure to
Ms. Ramirez? United States v. Ramirez, No. 13-1013.
36.
5G1.2(Consecutive and Concurrent Sentences)
37. 5G1.3(Credit for time served on state case)
Mr. Conley’s prior conviction for bank robbery was relevant conduct and
qualified as one of “at least two” convictions needed to apply the career criminal
guideline. Applying this guideline had the effect of increasing the offense level
for the offense of escape from 13 to 17. The district court ruled that U.S.S.G. §
5G1.3(b) did not apply. Was this ruling procedural error? United States v. Conley,
No. 14-1455.
Whether the district court’s decision, by initially predicting the amount of credit
a person will receive against his sentence and increasing the sentence to deprive
that person of the projected credited time, is procedurally flawed? United States v.
Davis, No. 14-3109.
Whether the district court improperly interpreted U.S.S.G. § 7B1.3(e) by
determining that the amount of time Mr. Davis had spent in custody awaiting
trial and subject to a detainer based upon the supervised release warrant was not
time resulting from the supervised release violation warrant or proceeding?
United States v. Davis, No. 14-3109.
Did the district court abuse its discretion in rejecting § 5G1.3(b) and ordering
Moore’s entire 235 month federal sentence to run consecutively to his 34 year
37
state sentence, where the district court’s justification focused on the fact that the
two-level obstruction enhancement would have been triggered by the prior
threat against the witness, even without the attempted murder, and that this
increase was insufficient to punish for the attempted murder? United States v.
Moore, No. 14-3269.
38.
5K1.1 (Substantial Assistance)
39.
5K2.20 (Aberrant Behavior)
O.
Mandatory Minimums
Whether the district court’s fact-finding that resulted in a 20-year mandatory
minimum sentence violated Mr. Bethany’s Sixth Amendment rights pursuant to
the Supreme Court’s ruling in Alleyne. United States v. Bethany, No. 13-1777
Whether the Sixth Amendment’s right to a jury trial and the Fifth Amendment’s
Due Process Clause require the government to prove to a jury the fact of a prior
conviction beyond a reasonable doubt when the prior conviction increases the
mandatory minimum sentence to which a defendant is subjected? United States v.
Saenz, No. 13-2698
Was Almendarez-Torres v. United States, 523 U.S. 224 (1998) wrongly decided in
light of subsequent decisions of the Supreme Court; and were Mannebach’s right
under the Fifth and Sixth Amendments violated when the judge imposed
mandatory life sentences under 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C. §
3559(c)(1) [“Three Strikes Law”] where the predicate prior convictions are not
charged in an indictment or found by a jury beyond a reasonable doubt. United
States v. Mannebach, No. 13-1787
Whether the district court improperly enhanced the defendant’s mandatory
minimum sentence pursuant to the government’s filing of an 851 notice, where
the prior drug felony should have been found to be part of the defendant’s
present offense of conviction? United States v. Perkins, No. 13-1399
Whether Tennison’s state court conviction for the same criminal conduct during
the same time period as charged in the present indictment constitutes a prior
drug conviction for sentencing enhancement under § 841(b)(1)(A). United States v.
Tennison, No. 12-3347
Does it violate the 6th Amendment for the sentencing court to increase the
minimum and maximum penalty based on a prior conviction not alleged in the
38
indictment, admitted by the defendant or proven to a jury? United States v.
Misleveck, No. 13-1855
Whether judicial fact finding regarding Mr. Herrell’s prior qualifying felonies for
purposes of the Armed Career Criminal Act violated Mr. Herrell’s rights under
the Fifth Amendment due process clause and the Sixth Amendment right to trial
by jury? United States v. Herrell, No. 13-1023
Whether the district court improperly doubled Lee’s sentence pursuant to 21
U.S.C. §841(b)(1), based on a prior Illinois drug possession charge that had been
dismissed after Lee successfully served a probationary term? United States v. Lee,
No. 12-1718
Whether the defendant should have been sentenced under the Fair Sentencing
Act in light of Dorsey, where he was sentenced after the effective date of the Act?
United States v. Lee, No. 12-1718
Whether the evidence failed to show by a preponderance of evidence at
sentencing that death or serious bodily injury resulted from the heroin the
defendant was charged with distributing, said finding by the district court
increasing the mandatory minimum from nothing to 20 years? United States v.
Settles, No. 12-2319
Whether the defendant was entitled to re-sentencing without a mandatory
minimum sentence of Life where he was sentenced after the effective date of the
FSA but received the mandatory minimum sentence provided by the law prior to
the FSA? United States v. Herman, No. 12-1183
Whether the nature and fact of a prior conviction must be alleged in the
indictment and proved to a jury beyond a reasonable doubt in order for that
conviction to increase a statutory minimum and maximum penalty? United States
v. Lyons, No. 14-1442.
Whether the nature and fact of a prior conviction must be alleged in the
indictment and proved to a jury beyond a reasonable doubt in order for that
conviction to increase a statutory minimum and maximum penalty? United States
v. Whittley, No. 14-1111.
P.
Miscellaneous
The Supreme Court has held that courts cannot lengthen a prison term to
promote an offender’s rehabilitation. During her time on federal supervision Ms.
Kolp often relapsed into drug addiction. Her supervision was revoked, and
rather than imposing a guideline sentence between 4-10 months, the court
39
sentenced her to 20 months. During sentencing, it noted that the two driving
factors were punishment and treatment. Did the district court lengthen its
sentence to promote Ms. Kolp’s rehabilitation? United States v. Kolp, No. 14-1601.
Whether the district court impermissibly considered Mr. Haynes’s race in
imposing sentence, when it alluded to his race in explaining why a 240 month
sentence was necessary? United States v. Haynes, No. 13-3617
Whether the district court procedurally erred by applying enhancements to the
offense level that were not warranted by the evidence? United States v. McMillian,
No. 13-3577.
Whether the district court erred in denying Corral’s motion for downward
departure based on the over-representation of his criminal history? United States
v. Corral, No. 14-1964.
Whether the district court erred in denying Corral’s motion for downward
departure based upon exceptional family circumstances? United States v. Corral,
No. 14-1964.
Whether the district court abused its discretion during sentencing in awarding
credit for only 24 of the 41 months of pre-indictment delay, based upon a finding
of no bad faith in delay, arbitrarily determining a period of 18 months sufficient
to investigate, and failing to adjust the criminal history category for the preindictment delay prejudice resulting in three additional points? United States v.
Cortez-Lopez, No. 14-2638.
Did the district court err in declining to continue the sentencing hearing in light
of the new allegations made by Collins? United States v. Collins, No. 14-3427.
Q.
Reasonableness
1.
Procedural
Whether the district court committed a significant procedural error, amounting
to plain error, when it decided the defendant’s sentence while under a
misapprehension as to the amount of time the defendant would serve in prison.
United States v. Wiley, No. 13-2705
Whether the district court procedurally erred in sentencing Mr. Harris by failing
to adequately address his arguments in support of a sentence to be run
concurrent to his undischarged state prison sentence. United States v. Harris, No.
13-2216
40
Did the District Court procedurally err when it failed to mention or take into
consideration the advisory guideline range under the Guidelines? United States v.
Patrick, No. 13-2463
Did the District Court err when it failed to make findings or specifically address
Patrick’s “history and characteristics” under 18 U.S.C. §3553(a)(1) in determining
a reasonable sentence under the Guidelines? United States v. Patrick, No. 13-2463
Did the court err when it failed to state on the record any appropriate reason for
a sentence above the high end of the guideline range, and more than ten times
higher than the 30 days the government and the probation officer recommended?
United States v. Patrick, No. 13-2463
Stanciu and Isac, both non-citizens, argue that the district court did not address
the likelihood of deportation after serving their sentences, thereby failing to
address an important factor under Title 18 USC §3553(a) and that the resulting
sentence was unreasonable. United States v. Stanciu, No. 13-1149
Whether Mr. Husti’s sentencing was procedurally proper where the district court
did not state the reason for Mr. Husti’s sentence, which because it is one day over
a year, prevents him from seeking legal resident status. United States v. Husti, No.
13-1431
Whether the district court erred when it failed to address the defendant’s
potentially meritorious argument at sentencing, and whether the defendant’
middle-of-the range sentence was unreasonable? United States v. Davis, No. 132143
The sentence of 235 months’ imprisonment, just six months short of the statutory
maximum and four years in excess of the top end of the advisory sentencing
guideline range, is procedurally unreasonable since the district court did not
fully consider or explain Ms. Crundwell’s non frivolous mitigating arguments.
United States v. Crundwell, No. 13-1407
The district court erroneously combined psychological harm to non victims and
significant disruption of government function to impose an upward variance of
four years. Since the district court did not weigh the effect of each factor, this
Court is unable to determine if the district court abused its discretion. United
States v. Crundwell, No. 13-1407
Did the District Court err by failing to make an adequate individualized
assessment of the appropriate sentence based on the 3553(a) factors? United States
v. Torres, No. 13-1428
41
Whether the district court erred as a matter of law when it concluded it had no
authority or discretion to consider in mitigation of the sentence, the impact of
Mr. Patterson’s drug use on the offense, so long as the drug use did not negate
the mens rea element of the offense. United States v. Patterson, No. 13-1517
Whether Mr. Vega-Carrillo’s sentence is procedurally and substantively
unreasonable because the district court failed to give adequate consideration to
the multiple strong mitigating factors present in this case, including but not
limited to his motivation for committing the offense, namely the need to support
a drug habit in a moment of extreme financial weakness, his family
circumstances and the birth of his first child while incarcerated, post-offense
rehabilitation, and the need to avoid unwarranted sentencing disparities? United
States v. Vega-Carrillo, No. 13-1346
Should Mr. Ramirez-Ortega be resentenced because the district court failed to
address his argument that the court should impose a concurrent sentence and
give him credit for the lost opportunity to serve a portion of his federal sentence
concurrently with his state sentence due to the government’s delay in charging
him? United States v. Ramirez-Ortega, No. 13-1286
Did the district court address and adequately consider the factors enumerated in
Title 18, United States Code, Section 3553(a)? United States v. Smith-Meck, No. 131466
Whether Mr. Johnson’s sentence is procedurally unreasonable where it is unclear
whether the district court presumed that the United States Sentencing Guidelines
(“Guidelines”) were reasonable, and used a presentence investigation report
(“PSR”) that referred to improper documents to determine whether a divisible
prior conviction was a career offender predicate? United States v. Johnson, No. 123092
Did the district court err by failing to meaningfully consider a defendant’s
principal sentencing argument – made in both sentencing memoranda and oral
argument at the sentencing hearing – that a custodial sentence would create an
unwarranted disparity between the defendant and others sentenced for theft of
trade secrets convictions in violation of §1832? United States v. Jin, No. 12-3013
Whether, where the sentencing goal of protection of the public was the driving
force behind the District Court’s thirty year sentence, and where Appellant had
argued that concurrent, twenty year terms for Appellant’s production of child
pornography offenses would be sufficient to serve the goals of sentencing
because the civil commitment law would prevent his release at the end of his
42
term, if he was sexually dangerous, did the District Court err by failing to
address this argument? United States v. Starko, No. 13-1271
Whether the district court’s sentence was unreasonable because the court
sentenced the defendant as if he was convicted of a dismissed count, when that
count was already factored into the Guideline range? United States v. Jones, No.
11-3864
Whether the court failed to meaningfully address a mitigation argument based
upon the deportation consequences of the defendant’s sentence? United States v.
Ramirez-Fuentes, No. 12-1494
Whether the district court committed procedural error by considering an
erroneous fact during Mr. Miller’s sentencing: that the jury found Mr. Miller
committed repeated acts of tax evasion when the jury only found Mr. Miller
committed at least one act of tax evasion? United States v. Miller, No. 13-3062
Whether the district court committed procedural error by failing to consider a
required sentencing factor under 18 U.S.C. § 3553(a) when it failed to address Mr.
Miller’s arguments that he presented a low risk of recidivism? United States v.
Miller, No. 13-3062
Whether remand for resentencing is necessary because the district court failed to
address factors under 18 U.S.C. § 3553(a), sufficiently explain the reasons for the
sentence or impose a sentence using the same substantive standards as had been
applied in the co-defendants’ cases? United States v. Baines, No. 13-3284.
Whether remand for resentencing should be ordered in view of a recent
proposed amendment to the United States Sentencing Guidelines and a postsentencing change in Department of Justice policy, which would require
subtraction of 2 levels from a drug quantity finding? United States v. Baines, No.
13-3284.
Whether the district court procedurally erred by failing to consider Mr.
Camacho-Montalvo’s principal sentencing arguments in mitigation under 18
U.S.C. § 3553(a), as evidence by the court’s failure to address them at all or in any
meaningful way? Furthermore, was the sentence imposed substantively
unreasonable? United States v. Camacho-Montalvo, No. 14-1220.
Mr. Wade came within the career offender guideline only because of the
inclusion of convictions for conduct he committed 25 years ago when he was 18
years old. Did the district court err by failing to give meaningful consideration
43
to Mr. Wade’s principal argument that he should not be sentenced as a career
offender? United States v. Wade, No. 13-2758
Whether the district court procedurally erred by failing to consider Mr. MirandaCamarena’s principal sentencing arguments in mitigation under 18 U.S.C. §
3553(a), as evidenced by the court’s failure to address any of them, in imposing
an enhanced, mid-range sentence of 34 months imprisonment? Furthermore,
was the sentence imposed substantively unreasonable? United States v. MirandaCamarena, No. 14-1265.
Whether the district court procedurally erred by failing to make an
individualized assessment of Mr. Miranda-Camarena’s offense conduct, basing
its sentence on erroneous facts and other improper considerations, and failing to
adequately explain the sentence imposed, in imposing an enhanced, mid-range
sentence of 34 months imprisonment? United States v. Miranda-Camarena, No. 141265.
Whether the district court plainly erred when it used incorrect information that
Mr. Brewster “repeatedly forced” a child to perform sex acts as a basis to impose
a 420 month sentence? United States v. Brewster, No. 14-1285.
Whether the district court erred in failing to address specifically the evidence of
Mr. Johnson’s reform during his period of incarceration as it is evidence of the
likelihood that he would respond positively to a lower sentence and the
likelihood that he would reoffend? United States v. Johnson, No. 14-1465
Whether the district court’s explanation of the reasoning behind the sentence it
imposed addressed Mr. Timm’s sentencing arguments pertaining to his mental
health and age at the time of his prior criminal history sufficiently to assure that
the mandatory consideration of the factors listed in 18 U.S.C. § 3553(a) occurred?
United States v. Timm, No. 14-2108.
Whether the district court erred in failing to address specifically the evidence of
Mr. Johnson’s reform during his period of incarceration as it is evidence of the
likelihood that he would respond positively to a lower sentence and the
likelihood that he would not reoffend? United States v. Johnson, No. 14-1465.
Whether the district court erred by not considering a principal mitigating
argument at sentencing and inadequately explaining the above-guidelines
sentence it imposed? United States v. Jines, No. 14-1603.
Whether the district court erred, as a matter of law, when it failed to consider or
comment on a principal defense argument in mitigation, namely, Mr. Crisp’s
44
substantial cooperation with law enforcement? United States v. Crisp, No. 142135.
Whether the district court failed to respond to Mr. Boatman’s principal, nonfrivolous argument that his sentence should incorporate community-based drug
treatment which constitutes procedural error that requires resentencing? United
States v. Boatman, No. 14-2081.
Mr. Moore’s non-frivolous argument that the personal and historical
circumstances by which he began drug dealing merited a sentence below the
advisory guideline range? United States v. Moore, No. 14-1859.
Whether the district court procedurally erred by failing to consider Mr. Taylor’s
non-frivolous § 3553(a) arguments in mitigation advanced at sentencing
including his extremely traumatic childhood and upbringing, his youth at the
time of the offense, his low IQ, and his efforts at rehabilitation. Furthermore,
whether the sentence imposed in this case was substantively unreasonable?
Whether the district court committed reversible procedural error by failing to
consider Mr. Thomas’s non-frivolous § 3553(a) arguments that he advanced at
sentencing, including that he was raised in a completely dysfunctional
household marred by poverty, instability, substance abuse, death, and violence;
had a long history of substance abuse; and suffered from mental health issues at
the time of the offense? United States v. Thomas, No. 13-2814.
Whether the district court procedurally erred by not providing an explanation
for the sentence imposed commensurate with the departure from the range of
imprisonment recommended by the Sentencing Guidelines? United States v.
Rodriguez-Sanchez, No. 14-2456.
Whether the district court’s failure to adequately explain its reasons for refusing
to grant a variance based on a government policy of delaying indictment for
Illegal Reentry until the defendant completed his state sentence was procedural
error? United States v. Lazcano-Leon, No. 14-2036.
Whether the district court erred by inadequately addressing Mr. Falor’s principal
mitigation argument? United States v. Falor, No. 14-1369.
Whether the district court erred when after imposing a 240 month sentence based
on the 18 U.S.C. § 3553(a) factors, it met with the probation office off the record,
obtained undisclosed information, and sentenced Allison to 288 months’
imprisonment despite having just found that § 3553(a)’s parsimony principle
45
required only a 240 month sentence? United States v. Griffin and Allison, Nos. 141508 & 14-2002.
Whether the district court erred as a matter of law when it provided almost no
explanation at all for its choice of sentence, and either ignored or overlooked
entirely Estrada’s mitigation arguments regarding: (1) the loss of almost two
years of potential sentencing credit or concurrent sentences because of the
government’s delay in presenting the case for indictment; (2) a challenge to the
unduly harsh consequences of § 2L2.1’s 16-level increase in offense level; and (3)
the collateral consequences Estrada is likely to suffer as a result of this
conviction? United States v. Estrada-Mederos, No. 14-2417.
Whether the district court erred at the resentencing hearing by not weighing or
addressing Mr. Lomax’s mitigating arguments? United States v. Lomax, No. 142237.
Whether the district court erred by failing to consider the 18 U.S.C. § 3553(a)
factors before imposing sentence? United States v. Boultinghouse, No. 14-2764
Whether the district court erred when it imposed a sentence more than 50%
longer than the high-end of the advisory guidelines range without offering a
sufficiently compelling justification? United States v. Garcia, No. 14-2368.
Did the district court err when it failed to adequately consider Mr. Jones’s 3553(a)
factors and merely relied on the sentencing guideline range for the purposes of
sentencing? United States v. Jones, No. 14-2787.
Whether the district court erred when it refused/failure to consider codefendant’s sentences to avoid unwarranted sentencing disparities? United States
v. Jones, No. 14-3103.
Whether the district court committed procedural error in its sentence as the court
failed to properly take into consideration the nature and circumstances of the
offense? United States v. Cruz, No. 14-1992.
2.
Substantive
Whether Mr. Adams’ sentence, at more than double the guideline range, is
substantively unreasonable? United States v. Adams, No. 13-1368
Whether the district court’s sentence was unreasonable, where there was no
substantial justification for such an extreme upward departure from the correctly
calculated range. United States v. Shamsud-Din, No. 13-2971
46
The issue is whether the sentence of 155 months of imprisonment is
unreasonable where the defendant who is a drug addict has never had an
opportunity for meaningful drug treatment. United States v. Jemine, No. 12-3857
Was a high-end, albeit within guideline, sentence of 87 months for illegal reentry
by an aggravated felon inherently unreasonable given the District Court’s
emphasis upon Appellant’s prior gang affiliations, involvement in transporting
individuals unlawfully in the United States, and likelihood to re-offend, in light
of the other sentencing factors raised by the defense: to include his lack of
recidivism since returning to the United States, difficult childhood, and relatively
young age? United States v. Moran-Vazquez, No. 12-3288
Is Hintonʹs 132‐month sentence, which is disproportionate to the sentences of this
co‐defendant and others involved in a related drug conspiracy, unreasonable in
violation of 18 U.S.C. § 3553? United States v. Hinton, No. 12-2885
Whether the district court procedurally erred in relying on inaccurate
information regarding Mr. Vega-Carrillo’s desire to return and stay in Mexico
and raise his daughter, as basis for determining an appropriate sentence? United
States v. Vega-Carrillo, No. 13-1346
Whether Mr. Johnson’s sentence is substantively unreasonable in light of the
district court’s heavy reliance on the Guidelines, overemphasis on Mr. Johnson’s
criminal history, and the failure of the sentence to reflect Mr. Johnson’s age and
personal characteristics? United States v. Johnson, No. 12-3092
Whether the defendant’s within the range sentence in excess of 24 years was
substantively unreasonable in light of the mitigation evidence presented at
sentencing? United States v. Ramirez-Fuentes, No. 12-1494
Whether the district court imposed a substantively unreasonable sentence for a
recidivist bank robber with significant cognitive deficiencies? United States v.
Senymanola, No. 13-3447.
Whether the sentence imposed by the district court was unreasonable and
excessive here the court did not consider the factors listed in § 3553(a). United
States v. Tapes, No. 13-3901.
Whether the district court abused its discretion in imposing a 120 month
sentence of imprisonment, a below-guidelines sentence, where, although Mr.
Hardimon’s criminal history was extensive, such a sentence significantly
overstated the seriousness of his offense and the nature of his criminal history?
United States v. Hardimon, No. 14-1120.
47
Whether the district court’s imposition of an above-guidelines, four-year
sentence, based on Ms. Luckett’s uncharged social security fraud and possible
food stamp fraud, was unreasonable because the sentence significantly exceeded
the guideline range that would have applied if she had been convicted for the
uncharged fraud and where her life expectancy is reduced because she is in stage
four kidney disease? United States v. Luckett, No. 14-1405.
Whether the district court significantly erred when it imposed Mr. Perez’s
sentence, resulting in a sentence that was greater than necessary to comply with
the purposes of sentencing by (1) giving an undue presumption of
reasonableness to the guidelines, (2) relying on inaccurate information when
imposing sentence, (3) failing to adequately consider sentencing arguments, and
(4) failing to adequately explain why the sentence was sufficient, but not greater
than necessary? United States v. Perez, No. 13-2446.
Over the course of a decade, Mr. Warner hid more than $100 million in secret
Swiss bank accounts, refused to report at least $24 million of income to the
Internal Revenue Service, and evaded at least $5.5 million in taxes. He was
sentenced to a term of probation, 500 hours of community service, and a fine of
$100,000. Was this a reasonable sentence? (government appeal) United States v.
Warner, No. 14-1330
Whether the district court’s decision sentencing Mr. Jimenez to 77 months’
imprisonment for illegal reentry, despite the nature and circumstances of his past
and present offenses, is substantively unreasonable under 18 U.S.C. § 3553(a)?
United States v. Jimenez, No. 14-1973.
Whether the sentence imposed was substantively reasonable given the correct
guideline offense level and sentencing range and a consideration of the facts
presented during sentencing in applying the § 3553(a0 factors and whether the
error made by the district court in determining the U.S.S.G. offense level and
sentencing range was harmless? United States v. Black, No. 13-3908.
Whether the district court committed reversible substantive error by failing to
consider Mr. Thomas’s non-frivolous § 3553(a) arguments that he advanced at
sentencing? United States v. Thomas, No. 13-2814.
Whether the district court committed substantive error by failing to adequately
explain its reasons for sentencing defendant toward the high end of the advisory
guidelines sentencing range? United States v. Lazcano-Leon, No. 14-2036.
48
Whether the district court failed to consider the argument regarding the risks of
imposing a de facto life sentence and whether the resulting sentence was
substantively unreasonable? United States v. Jines, No. 14-1861.
Whether Mr. Jones’s sentence was reasonable in light of the factors listed in 18
U.S.C. § 3553(a)? United States v. Jones, No. 14-3103.
Whether the district court imposed an objectively unreasonable sentence of 420
months for a low-level, non-violent drug offense, because it failed to adequately
follow the directives in 18 U.S.C. § 3553(a)(1), (2), and (6)? United States v. Poke,
No. 14-2331.
R.
Relevant Conduct
Whether the district court’s relevant conduct funding, which subjected Baines to
punishment liability for more than 29,600 grams of heroin beyond what Baines
admitted in his guilty plea, should be vacated? United States v. Baines, No. 133284.
Whether the district court clearly erred when it found Mr. Bozovich responsible
for over one kilogram of heroin? United States v. Bozovich, No. 14-1435.
Whether the district court erred in determining that the defendant’s criminal
activity involved at least 15 kilograms but less than 50 kilograms of cocaine?
United States v. Sewell, No. 14-1384.
S.
Restitution
Whether the District Court erroneously ordered Mr. Munoz to pay a criminal
penalty of $20,100 as “restitution” to the government for the buy money used in
the controlled buys that led to his convictions? United States v. Munoz, No. 123377
Whether the district court erred in issuing its order of restitution pursuant to 18
U.S.C. § 3663A, which does not permit orders of restitution for violations of Title
26 of the United States Code? United States v. Miller, No. 13-3062
Whether the Mandatory Victim’s Restitution Act violates the right to trial by jury
both on its face and as applied in this case? United States v. Robertson, No. 133816.
Whether the district court erred by imposing restitution under 18 U.S.C. § 2259 to
“Cindy” without considering Mr. Sainz’s relative role in the causal process
underlying the losses experienced by “Cindy” as required by Paroline v. United
States? United States v. Sainz, No. 13-3585
49
Whether the Mandatory Victim’s Restitution Act violates the right to trial by jury
and violates the Sixth and Seventh Amendments to the United States
Constitution? United States v. Printz, No. 14-1304.
Whether the district court’s restitution order must be vacated because none of the
designated payees are “victims” as that term is defined in 18 U.S.C. § 3663?
United States v. Clark, No. 14-1251.
Whether the district court plainly erred in imposing an order of restitution to
Zale Corporation for monetary losses caused by Mr. Snell that were unrelated to
the offense of conviction? United States v. Snell, No. 14-2277.
Without an evidentiary hearing, the district court denied the government’s
motion to reform the parties’ written settlement agreement to include an asset
that was to be retained by the government as part of the parties’ oral agreement.
The government proffered that the parties had expressly agreed that the
government would retain that asset and requested an evidentiary hearing to
demonstrate that there had been a drafting mistake in the agreement. Did the
district court commit legal error and abuse its discretion? United States v. Segal.
No. 13-3847
T.
Rule 32 (Notice & Findings)
Whether by imposing a 108 month sentence, the district court procedurally erred
since it expressly stated that it intended to impose a sentence that was 27 months
above the high-end of the 57 to 71 month guidelines range, and such a sentence
would have resulted in 98 rather than the 108 months’ imprisonment? United
States v. Garcia, No. 14-2368.
U.
Statutory maximums and minimums
Whether the district court committed plain error when it mistakenly sentence
Mr. Davis in excess of the statutory maximum? United States v. Davis, 14-3109.
XX. SUPERVISED RELEASE
Whether Mr. Pritchard’s Fifth Amendment and Federal Rule of Criminal
Procedure 32.1(b)(2)(C) right to confront adverse witnesses were violated when
the district court denied him the ability to question witnesses whose hearsay
testimony was offered by the Government? United States v. Pritchard, No. 13-2646
50
Whether the district court erred when it found there was a Grade A violation of
supervised release? United States v. Pritchard, No. 13-2646
Whether the 92 month sentence that the district court imposed was plainly
unreasonable since the Guideline range was, at worst, 46 to 57 months’
imprisonment and perhaps as low as 7 to 13 months’ imprisonment? United
States v. Pritchard, No. 13-2646
Whether the 92 month sentence is substantively unreasonable because the district
court relied on allegations that were not supported by evidence and were not
contained in the revocation petition? United States v. Pritchard, No. 13-2646
Whether the district court committed procedural error by incorrectly calculating
the Guidelines term of supervised release? United States v. Rollins, No. 13-1731
Whether the district court imposed an illegal sentence upon the revocation of Mr.
Neal's supervised release, where the total term of supervised release imposed
less the term of imprisonment imposed exceeded the term of supervised release
authorized by statute for the offense that resulted in the original term of
supervised release? United States v. Neal, No. 13-1536
Whether the district court committed reversible procedural error when it
imposed sex offender treatment as a special condition of supervised release
without providing any justification for the imposition of this special condition?
United States v. Rynearson, No. 13-2064
Whether the district court abused its discretion when it imposed sex offender
treatment as a special condition of supervised release under the particular facts
of this case? United States v. Rynearson, No. 13-2064
Whether the District Court’s New Term of Supervised Release Requiring
Appellant to Submit to a Search of his Person, Residence, Real Property, Place of
Business, Computer or Other Electronic Communication or Data Storage Device
or Media, Vehicle, and Any Other Property Under his Control at a Reasonable
Time and in a Reasonable Manner Based Upon a Reasonable Suspicion of
Contraband or Evidence of a Violation of a Condition of Release Is Excessively
Intrusive, and Not Sufficiently Justified by the Goals of Sentencing In Light of
Appellant’s Violations, History, and Characteristics. United States v. Johnson, No.
13-2094
Whether “the regular terms of supervised release” require a defendant to obtain
a General Equivalency Diploma within 2 years and to refrain from consuming
any alcohol. United States v. Williams, No. 13-1093
51
Whether the court erred when it sentenced the defendant to two concurrent
terms of imprisonment upon revocation of supervised release because, in a prior
revocation proceeding, the court imposed only a single term of supervised
release to follow his sentence of probation? United States v. Ingram, No. 12-3194
Whether the defendant’s term of supervised release commenced after he had
completed his prison term but while he was still being detained in connection
with Adam Walsh Act civil commitment proceedings? United States v. Maranda,
No. 13-3917.
Whether the district court’s imposition of an 18 month sentence was illegal
because Mr. DuPriest, who was on supervised release for a Class E felony, was
subject to a maximum sentence of one year imprisonment pursuant to 18 U.S.C. §
3583(e)(3)? United States v. DuPriest, No. 13-3914.
Whether the district court committed reversible procedural error by
miscalculated the policy range of imprisonment recommended by the guidelines
and failing to consider the factors set forth in 18 U.S.C. § 3553(a)? United States v.
DuPriest, No. 13-3914.
Whether the district court’s revocation sentence was procedurally unreasonable,
and should be vacated, because the court relied on a sentencing factor of its own
creation and failed to explain its upward variance based upon the factor? United
States v. Phillip, No. 14-1354.
Whether the district court abused its discretion by imposing an
unconstitutionally vague and overbroad special condition of supervised release
that Mr. Williams “shall not consume . . . any mood altering substances?” United
States v. Williams, No. 13-3094.
Whether the district court erred when it required Mr. Williams to pay for the
treatment programs imposed as special conditions of supervised release? United
States v. Williams, No. 13-3094.
Whether the district court abused its discretion by imposing an
unconstitutionally vague and overbroad special condition of supervised release
that Mr. Williams “shall not consume . . . any mood altering substances?” United
States v. Olivo, No. 13-3479.
Whether the district court erred when it required Mr. Williams to pay for the
treatment programs imposed as special conditions of supervised release? United
States v. Olivo, No. 13-3479.
52
Whether the district court erred when it imposed as “special conditions” of
supervised release a polygraph requirement, a restriction on where Mr. Brewster
could go and who he could communicate with, and a ban on him accessing
sexually stimulating/sexually oriented material or patronizing locations where
such material is available? United States v. Brewster, No. 14-1285.
Whether the district court abused its discretion when it imposed a number of
special conditions of supervised release that are not reasonably related to the
offense of conviction, involve a greater deprivation of liberty than necessary, run
afoul of the First Amendment to the United States Constitution, and are contrary
to this Court’s decision in United States v. Siegel? United States v. Sainz, No. 133585.
Whether conditions of supervised release contained in the written judgment that
were not orally pronounced at sentencing are a nullity? United States v. Kappes,
No. 14-1223.
Whether the district court erred by imposing “Special Conditions of
Supervision” requirements that ban contact with minors, all “pornography,” use
of the internet “for purposes of sexual arousal,” “excessive use of alcohol,” and
all “mood altering substances?” United States v. Kappes, No. 14-1223.
Whether the district court erred when, as part of supervised release, it required
Mr. Kappes to pay for a portion of his court-ordered sex offender treatment and
testing? United States v. Kappes, No. 14-1223.
Whether the district court, when imposing a condition of release requiring Mr.
Ramer to make $100 monthly restitution payments, erred by failing to explicitly
state that the monthly payment obligation was subject to Mr. Ramer’s ability to
pay same? United States v. Ramer, No. 13-3644.
Whether the district court erred by imposing non-mandatory supervised release
conditions that were unsupported by any 18 U.S.C. § 3583(d) findings and which
excessively infringe on Mr. Jines’s Fourth and Fifth Amendment rights? United
States v. Jines, No. 14-1603.
Whether the district court erred by imposing standard conditions of supervised
release without making any findings to support them? United States v. Griffin, No.
14-1833.
Whether the district court, when it imposed a special condition of supervised
release requiring Mr. Griffin to perform community service, erred by failing to
53
limit the total amount of community service to 400 total hours? United States v.
Griffin, No. 14-1833.
Whether the district court’s imposition of “additional imprisonment terms” that
required Mr. Velazquez-Avila to be surrendered for deportation, prohibited his
illegal reentry if deported, and forced him to cooperate in the collection of DNA
were ultra vires in addition to being null because they were not orally
pronounced at sentencing? United States v. Velazquez-Avila, No. 14-1938.
excessively infringe on Mr. Hall’s Fourth and Fifth Amendment rights? United
States v. Hall, No. 14-1230.
Whether the district court erred when it imposed certain conditions of
supervised release, including: (1) a complete ban on the use of alcohol, despite no
evidence of any alcohol addiction or that alcohol played any part in the offense
or past criminal offenses; (2) a ban on involvement with any “mood altering”
substances, without defining that term; and (3) that Mr. Crisp “support his or her
dependents and meet other family responsibilities,” without defining what kind
of support the court intended, identifying the responsibilities, or setting out
consequences of failure to support or meet those responsibilities? United States v.
Crisp, No. 14-2135.
Whether the district court erred when it ordered 20 years of supervised release
without addressing Mr. Jurgens’s 10 year request or the 18 U.S.C. § 3583(c)
factors that “shall” be considered when determining the length of supervised
release? United States v. Jurgens, No. 14-2482.
Whether the district court erred by imposing discretionary supervised release
conditions without making the necessary 18 U.S.C. § 3583(d) findings to support
them? United States v. Jurgens, No. 14-2482.
Whether the standard conditions of supervised release, since they were never
orally pronounced at sentencing, are a nullity? United States v. Sulaski, No. 141520.
Whether, irrespective of its failure to orally pronounce the standard conditions,
the district court erred by imposing discretionary conditions that are vague,
overbroad, involve excessive deprivations of liberty and lack the required 18
U.S.C. § 3583(d) findings? United States v. Sulaski, No. 14-1520.
54
Whether the district court erred when it imposed vague and overbroad
discretionary conditions of supervised release? United States v. Flores, No. 141928.
Whether a district court has the discretion to impose a condition of supervision
that a defendant take psychiatric medication when the district court did not
receive any information regarding the defendant’s prior use of psychiatric
medication and the district court found that the defendant’s offense was not
affected by her psychiatric state? United States v. Montgomery, No. 14-1648.
Whether the district court erred by entering a written Amended Judgment whose
“Standard Conditions of Supervision” differ from the terms orally pronounced at
the sentencing hearing? United States v. Falor, No. 14-1369.
Whether the district court erred by imposing discretionary conditions that are
vague, overbroad, involve excessive deprivations of liberty, and lack the
required 18 U.S.C. § 3583(d) findings? United States v. Falor, No. 14-1369.
Whether the district court erred when it imposed discretionary conditions of
supervised release without making any 18 U.S.C. § 3583(d) findings to support
them? United States v. Griffin and Allison, Nos. 14-1508 & 14-2002.
Did the district court procedurally err in basing its revocation sentence on a
factor of its own creation rather than upon the statutory sentencing factors
prescribed by Congress? United States v. Arch, No. 14-3096
Whether a district court has the discretion to impose a condition of supervision
that a defendant take psychiatric medications when the district court did not
receive any information regarding the defendant’s prior use of psychiatric
medication and the district court found that the defendant’s offense was not
affected by her psychiatric state? United States v. Montgomery, No. 14-1648.
Whether the district court committed reversible error by failing to balance the
defendant’s right to confront a critical witness in his supervised release
proceeding with the government’s reason for failing to produce the witness?
United States v. Moslavac, No. 14-2866.
Whether Mr. Lee was denied due process when he was not provided adequate
written notice of the alleged violation of supervised release contrary to Rule
32.1(b)(2)(A) of the Federal Rules of Criminal Procedure? United States v. Lee, No.
14-2010.
55
Whether the district court erred when it imposed vague and overbroad
discretionary conditions of supervised release regarding supporting dependents,
employment, change in residence, use of alcohol, frequenting drug locations,
association with felons, and notifying third parties of risks associated with Mr.
Lewis’s history and characteristics? United States v. Lewis, No. 14-2075.
Whether the district court erred in imposing unconstitutionally vague and
overbroad special conditions of supervised release and requiring Mr. MirandaSotolongo to pay for the substance abuse treatment programs imposed as special
conditions of supervised release? United States v. Miranda-Sotolongo, No. 14-2753.
Whether the district court plainly erred in including a ten-year term of
supervised release in Mr. Downs’s probation revocation sentence without first
calculating and considering the advisory guideline range for the supervised
release term? United States v. Downs, No. 14-3157.
Whether the district court abused its discretion when it imposed a condition of
supervised release authorizing suspicionless searches of Mr. Conour’s person,
home, and effects when such condition is not authorized by 18 U.S.C. § 3583(d)?
United States v. Conour, No. 13-3753 & 14-2629.
excessively infringe on Mr. Conour’s Fourth and Fifth Amendment rights?
United States v. Conour, No. 13-3753 & 14-2629.
Whether the district court erred by failing to consider the relevant 18 U.S.C. §
3553(a) factors before imposing sentence for Mr. DuPriest’s violation of
supervised release? United States v. DuPriest, No. 14-2419.
conditions without making any 18 U.S.C. § 3583(d) findings to support them?
United States v. Garcia, No. 14-2368.
Whether the district court erred by entering a judgment that included 13
“standard conditions” of supervised release that were not in the PSR and were
not orally pronounced at sentencing? United States v. LaChappelle, No. 14-2721.
Whether the district court procedurally erred by predetermining the sentence
before revoking the defendant’s supervised release and by failing to address the
defendant’s principal non-frivolous arguments in mitigation upon revocation of
his supervised release? United States v. Mares, No. 14-3110.
56
Did the district court err when it failed to impose supervised release conditions
that were sufficiently tailored toward Mr. Jones? United States v. Jones, No. 142787.
United States v. Langman, No. 14-2925.
Whether the district court, by not calculating the guidelines range and stating
that it “must” impose the lifetime supervised release recommended by the
guidelines, committed significant procedural error? United States v. Orlando, No.
14-2949.
Whether the standard conditions contained in the Judgment, since they were not
orally pronounced during the sentencing hearing, are null and must be vacated?
United States v. Orlando, No. 14-2949.
United States v. Orlando, No. 14-2949.
Whether Mr. Lee’s constitutional right to due process and statutory right to
confront adverse witnesses were violated at the hearing to revoke his term of
supervised release where multiple layers of hearsay were admitted into evidence
and the district court failed to balance Mr. Lee’s constitutional rights against the
government’s reasons for presenting hearsay? United States v. Lee, No. 14-2231.
Whether the standard conditions of supervised release, since they were never
orally pronounced at sentencing, are a nullity? United States v. Sanford, No. 142860.
conditions without making any 18 U.S.C. 3583(d) findings to support them?
United States v. Sanford, No. 14-2860.
Whether the district court erred by entering a written Judgment where the
special condition of supervised release imposing a payment schedule for
restitution differed from the condition pronounced at the sentencing hearing?
United States v. Lewis, No. 14-2324.
57
excessively infringe on Ms. Lewis’s Fourth and Fifth Amendment rights? United
States v. Lewis, No. 14-2324.
Did the district court abuse its discretion by denying Johnson’s motion to
terminate supervised release without considering the required 18 U.S.C. §
3553(a) factors? United States v. Johnson, No. 14-3095.
Did the district court abuse its discretion when it denied Johnson’s motion after
considering and relying upon an undisclosed report from the probation office?
United States v. Johnson, No. 14-3095.
XXI.
WAIVER
58

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County Intermediate Punishment Sentencing Helene Placey PA Commission on Sentencing

EFS–020 Michael J. Gleason (SBN 279434) Hahn Loeser & Parks LLP

Issues Currently Pending In Criminal Cases in the Seventh Circuit

AFFT - Clark County Courts

Seventh Annual Fall Institute Agenda October 23-24, 2014 Washington, DC

here

CPY Document Title

CIVIL - NON-DOMESTIC CASE INFORMATION REPORT IN THE CIRCUIT COURT FOR

U.S. Department of Justice FOR IMMEDIATE RELEASE April 2, 2004 United States Attorney