REVERSED AND REMANDED (1999-2003)

This publication is a project of the Office of the Federal Public Defender for the Southern District of Alabama. The cases in this document reflect relief given to a criminal defendant by a United States Court of Appeals or by the United States Supreme Court. The editor does not warrant the continuing validity of the authority compiled herein. Therefore, it is imperative that you research the current validity of these rulings in your jurisdiction. The editor encourages users of this publication to refer to the rationale and language of the cited decisions and not to rely solely on the stated holding of the decision in this publication. The editor has printed in bold print the decisions of the United States Court of Appeals for the Eleventh Circuit, which are controlling precedent in this district.

The purpose of this project is to help CJA panel attorneys by giving them a shortcut to case law that favors their clients. All cases should be researched to determine their current validity in your jurisdiction. These materials may be duplicated by or for any lawyer providing legal services to indigent defendants. The editor encourages duplication. These materials may be reprinted by other free publications or free on-line providers serving the criminal defense bar.

EFFECTIVE ASSISTANCE is a newsletter published by this office. It is distributed about four times a year. In addition to updating "Reversed and Remanded," the newsletter contains articles that are intended to be helpful to the CJA panel lawyers. Although the newsletter has as its primary focus lawyers in this district, most features have relevance to federal criminal practice general. Lawyers wishing to receive future publications should forward an e-mail address, name and phone number to the location below (preferably by e-mail). This publication have also been duplicated on a compact disc which is generally made available to CJA panel attorneys. It has also been published on the website of the Office of the Public Defender for the Southern District of Alabama.

The editor wishes to acknowledge the help and support of the attorneys and support staff of the Office of the Public Defender for the Southern District of Alabama, in particular K. Lyn Hillman. Esq., Kristen G. Rogers, Esq. and Chris Feaster in the compilation of this publication.

Carlos A. Williams, Executive Director

Christopher Knight, Editor, Assistant Federal Defender

2 South Water Street, 2nd Floor

Mobile, Alabama 36608

Voice 251-433-0910

email at chris_knight@fd.org;

http://www.federaldefender.org

TABLE OF CONTENTS

AIDING AND ABETTING/ACCESSORIES

APPEALS

APPRENDI/JONES

ARGUMENT

ARRESTS

ATTORNEYS

CAREER ENHANCEMENTS

CARJACKING

CLOSURE/PUBLIC TRIAL

COMPETENCY/SANITY

CONFLICTS

CONFRONTATION

CONSPIRACY

CONTEMPT

CONTINUANCE

CONTINUING CRIMINAL ENTERPRISE

COUNSEL/SELF-REPRESENTATION

CRUEL AND UNUSUAL PUNISHMENT

DEFENSE EVIDENCE/THEORY

DISCOVERY/BRADY/JENCKS

EVIDENTIARY RULINGS

EXPERT TESTIMONY

EX POST FACTO

EXTORTION

EXTRANEOUS EVIDENCE - (404(b))

FALSE STATEMENTS/PERJURY

FEDERAL JURISDICTION

FIFTH AMENDMENT

• DUE PROCESS

• JEOPARDY/ESTOPPEL

• SELF-INCRIMINATION/RIGHT TO TESTIFY

• STATEMENTS/CONFESSIONS

FINES/RESTITUTION

FIREARMS

FRAUD/THEFT

GRAND JURY

GUILTY PLEAS

HABEAS CORPUS/2255

• ACTUAL INNOCENCE CLAIMS

• ADEQUATE AND INDEPENDENT STATE LAW GROUND

• CERTIFICATES OF APPEALABILITY

• EVIDENTIARY HEARING

• EXHAUSTION

• IN CUSTODY

• PROCEDURAL DEFAULT/CAUSE AND PREJUDICE

• PROSECUTORIAL WAIVER OF DEFENSE

• RELATION BACK OF AMENDMENTS

• SECOND OR SUCCESSIVE PETITIONS

• UNREASONABLE INTERPRETATION OF FEDERAL LAW BY STATE COURT

• GENERAL 2254

• GENERAL 2255 /IMPROPER DISMISSAL OR RULING BY DISTRICT COURT

• GENERAL 2241

HEARSAY

HOMICIDE

IDENTIFICATION

IMMIGRATION

INDICTMENTS

INEFFECTIVE ASSISTANCE OF COUNSEL

INSUFFICIENT EVIDENCE

INTERSTATE COMMERCE

JUDICIAL MISCONDUCT

JURY

• DELIBERATIONS

• INSTRUCTIONS

• SELECTION

• TAMPERING

JUVENILES

MISCELLANEOUS CRIMES

MONEY LAUNDERING

PAROLE/PARDON

PLEA AGREEMENTS

PORNOGRAPHY

PRETRIAL PROCEDURE

PRIVILEGE

PROSECUTORIAL MISCONDUCT

RECUSAL

RELEASE

RESENTENCING

RETROACTIVITY

SEARCH AND SEIZURE

• SEARCH AND SEIZURE - GENERAL

• KNOCK AND ANNOUNCE

• TERRY AND TRAFFIC STOPS

• WARRANTS

SENTENCING

• GENERAL

• ABUSE OF TRUST

• ACCEPTANCE OF RESPONSIBILITY

• CONCURRENT/ CONSECUTIVE

• CRACK /POWDER

• CRIMINAL HISTORY

• CROSS REFERENCES

• DEPARTURES

• DOWNWARD

• UPWARD

• DRUG QUANTITY

• CRACK /POWDER

• MARIJUANA

• METHAMPHETAMINE

• ENHANCEMENTS

• GENERAL

• VIOLENCE

• FIREARMS

• FIREARMS - "IN CONNECTION WITH ANOTHER FELONY OFFENSE"

• FRAUD/THEFT

• GROUPING/DOUBLE COUNTING

• HOMICIDE

• LOSS CALCULATION

• MONEY LAUNDERING

• OBSTRUCTION OF JUSTICE

• PORNOGRAPHY

• RECKLESS ENDANGERMENT

• RELEVANT CONDUCT

• ROLE ADJUSTMENT

• AGGRAVATING ROLE

• MITIGATING ROLE

• SAFETY VALVE

• VULNERABLE VICTIM

SEVERANCE

SPEECH/ASSEMBLY

SPEEDY TRIAL

SUPERVISED RELEASE/PROBATION/REVOCATION

TRIAL PROCEDURE

VARIANCE

VENUE

AIDING AND ABETTING/ACCESSORIES

United States v. Gallo, 195 F.3d 1278 (11th Cir. 1999)(Reasonable foreseeability required to enhance drug sentence based on co-conspirator's possession of firearm).

, 205 F. 3d 819 (5th Cir. 2000)(Conclusion that three other employees were participants in criminal activity, without first determining that each was responsible for the commission of an offense, was error.).

, 211 F.3d 575 (10th Cir. 2000)(remand to determine if co-defendant who drove to murder scene was part of conspiracy to murder and responsible under Pinkerton theory).

Table of Contents

APPEALS

,175 F.3d 115 (2nd Cir. 1999)(proper remedy where counsel fails to perfect a direct appeal and ineffective assistance is claimed in §2255 motion is for Court of Appeals to recall mandate dismissing direct appeal and reinstate the appeal; it is not necessary to show that appeal had merit).

, 182 F.3d 677 (9th Cir. 1999)(defendant entitled to deferential review of Batson claim, overruling Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995)).

, 184 F.3d 556 (6th Cir. 1999)(notice of appeal need not name appellate court as long as only one avenue of appeal available).

, 187 F.3d 516 (5th Cir. 1999)(no voluntary waiver of right to appeal; two prior state convictions which were part of common scheme treated as one for career offender purposes).

, 189 F.3d 1188 (10th Cir.)(harmless error standard, not plain error standard, applies to claimed error of judge communicating with juror outside defendant's presence).

, 192 F.3d 1246 (9th Cir. 1999)(Court of Appeals had jurisdiction to determine whether plea was valid in order to assess enforceability of defendant's purported waiver of right to appeal).

, 120 S. Ct. 746 (2000)(states are free to adopt procedures different from those in Anders v. California, 386 U.S. 738 (1967), so long as those procedures protect indigent defendant's right to appellate counsel; arguable issues, though wholly frivolous, need not be raised; but arguable issues in the normal sense require merits brief; California's Wende procedure, under which counsel remains silent on the merits of the case and offers to brief issues at the court's direction, comports with the requirements of due process and equal protection under the Fourteenth Amendment).

, 203 F.3d 894 (5th Cir. 2000)(presumption of prejudice from constructive denial of appellate counsel).

, 226 F.3d 361 (5th Cir. 2000)(constructive denial of effective assistance of counsel where Anders brief failed to mention any arguable issues on appeal).

United States v. Centracchio, 236 F.3d 812 (7th Cir. 2001)(government appeal under 18 U.S.C. § 3731 of granting of motion to suppress is required prior to jeopardy attaching and divests district court of jurisdiction until the appeal is decided).

, 256 F.3d 1146 (11th Cir. 2001)(Notice of appeal containing only one case number was sufficient to appeal all convictions).

, 122 S. Ct. 1043, 152 L. Ed. 2d 90 (2002)(Defendant who lets Rule 11 error pass in district court must satisfy Rule 52(b)'s plain error requirements.).

United States v. Stubbs, 279 F.3d 402 (6th Cir. 2002)(District court plainly erred in sentencing defendant for crime of using or carrying firearm in connection with drug trafficking crime, which crime was a different offense than the charged crime of conspiracy; misinformation regarding sentencing rendered defendant's guilty plea involuntary so that appeal waiver was not binding.).

Ramirez v. Attorney General, 280 F.3d 87 (2nd Cir. 2001)(Counsel's letter application to highest state court for leave to appeal conviction sufficiently presented issue of ineffective assistance).

United States v. Patzer, 284 F.3d 1043 (9th Cir. 2001)(Government cannot argue on petition for rehearing a completely different theory to justify search if it was not argued in initial response brief on appeal.).

United States v. Molina-Tarazon, 285 F.3d 807 (9th Cir. 2002)(Government failed to justify by showing of diligence and substantial need filing of fat brief.).

Johnson v. Chapman, 288 F.3d 1215 (10th Cir. 2002)(Failure of petitioner's state appellate counsel to perfect appeal was ineffective assistance of counsel, and petitioner would be released unless state granted him an out-of-time appeal.).

Cox v. United States, 294 F.3d 959 (8th Cir. 2002)(Where counsel promised to petition for certiorari but failed to, judgment affirming conviction would be vacated and new judgment entered to allow timely filing of the petition.).

Marshall v. Hendricks, 307 F.3d 36 (3rd Cir. 2002)(inadequate record to determine if trial counsel's assistance at penalty phase of capital trial was deficient).

United States v. Curry, 237 F.3d 598 (6th Cir. 2000)(remand necessary to determine whether district court applied correct review standard (clearly erroneous standard) in reinstating allegations to which magistrate found lack of probable cause; district court required to allow defendant to allocute prior to imposing sentence).

/1

Apprendi v. New Jersey, 530 U.S. 466 (2000)(Other than the fact of a prior conviction, any fact that increases the penalty for a particular crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.).

, 178 F.3d 295 (5th Cir. 1999)(carjacking conviction reversed in light of

Jones v. United States, 119 S.Ct. 1215, 1228 (1999))[Ed. note: conviction affirmed after remand at 312 F.3d 652 (5th Cir. 2002, finding that error was harmless].

, 190 F.3d 1208 (11th Cir. 1999)(intent to use as a weapon a "prohibited object" is element of offense and not merely sentencing factor, following Jones v. United States, 119 S. Ct. 1215 (1999)).

, ___U.S. ___, 120 S. Ct. 2090 (2000)(Statute which increases penalty for using or carrying a firearm in relation to a crime of violence when that firearm is a "machine gun" states element of a separate, aggravated crime, requiring proof of that element beyond a reasonable doubt, relying on Jones v. United States, 526 U.S. 227, 234 (1999).).

, 225 F.3d 556 (5th Cir. 2000)(two life sentences reversed under Apprendi in light of determination of drug quantity by court by a preponderance).

, 225 F.3d 1053 (9th Cir. 2000)(failure to submit drug quantity determination to jury was plain error in light of Apprendi). [Ed. note: This case was overruled in part, but not in its essential holding, by the Ninth Circuit in United States v. Buckland, 289 F.3d 558 (9th Cir. 2002)(en banc).].

, 228 F.3d 1318 (11th Cir. 2000)(where drug quantity was neither charged in the indictment nor proven to the jury beyond a reasonable doubt, defendant had to be sentenced without reference to drug quantity, following Apprendi v. New Jersey, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and overruling at least in part or by implication, United States v. Hester, 199 F.3d 1287 (11th Cir. 2000), cert. granted, judgment vacated and remanded, 2000 WL 797322 (2000)). [Ed. note: The essential holding of this case, while not overruled, was limited in the holding of United States v. Sanchez, 269 F.3d 1250, 1278 (11th Cir. 2001)(en banc), which held that failure to allege drug quantity in the indictment and failure to submit the quantity issue to a jury did not divest the district court of jurisdiction. Sanchez is in accord with the later Supreme Court decision in United States v. Cotton, 535 U.S. 625 (2002)].

Burton v. United States, 237 F.3d 490 (5th Cir. 2000)(life sentence exceeded statutory maximum for alleged offense–possession of cocaine base with intent to distribute).

United States v. Jemison, 237 F.3d 911 (7th Cir. 2001)(2 concurrent 66 month sentences improper where statutory maximum was 60 months).

United States v. Butler, 238 F.3d 1001(8th Cir. 2001)(failure to allege drug quantity in indictment and failure to submit issue to jury was plain error requiring resentencing).

United States v. Bandy, 239 F.3d 802 (6th Cir. 2001)(treating use of short-barreled shotgun as sentencing factor rather than element of crime violated Apprendi).

United States v. Edmonds, 240 F.3d 55 (D.C. Cir. 2001)(character of school, as defined in 18 U.S.C. § 860(a), is element of offense which must be proved beyond reasonable doubt in prosecution for possessing cocaine base within 1,000 feet of school).

United States v. Westmoreland, 240 F.3d 618 (7th Cir. 2001)(failure to submit issue of drug quantity to jury was reversible plain error).

United States v. Jackson, 240 F.3d 1245 (10th Cir. 2001)(drug quantities not alleged in indictment). [Ed. note: Under United States v. Cotton, 535 U.S. 625 (2002), this does not divest the district court of jurisdiction.].

United States v. Ramirez, 242 F.3d 348 (6th Cir. 2001)(Drug statute's progression of increased mandatory minimum penalties based in part on the quantity of drugs possessed invokes, under Apprendi, the full range of constitutional protections required for "elements of the crime;" and thus a defendant convicted of conspiracy to distribute cocaine and attempt to possess cocaine with intent to distribute had to be sentenced under subsection providing no mandatory minimum sentence where indictment charged the offenses only in general language and the jury did not find beyond a reasonable doubt that the defendant possessed the minimum amount required for imposition of mandatory minimum penalties under other subsections.).

United States v. Fields, 242 F.3d 393 (D.C. Cir. 2001)(Failure to have jury determine drug quantity was plain error under Apprendi and not harmless where defendant received life sentence; enhancement improper where jury did not find beyond reasonable doubt that murder was object of kidnapping.).

United States v. Garcia, 242 F.3d 593 (5th Cir. 2001)(Without jury determination, defendant's sentence could not exceed statutory default maximum provided by 21 U.S.C. § 841(b)(1)(D).).

United States v. Thomas, 246 F.3d 438 (5th Cir. 2001)(amount of crack cocaine defendant possessed was fact which increased penalty beyond statutory maximum and resulted in unconstitutional sentence under Apprendi).

United States v. Noble, 246 F.3d 946 (7th Cir. 2001)(failure to charge drug quantity in indictment and submit issue to jury was plain error requiring resentencing).

United States v. Bradford, 246 F.3d 1107 (8th Cir. 2001)(Apprendi violations occurred where there was no jury finding of drug quantity and it was unclear whether defendants had prior drug conviction).

United States v. Jackson, 240 F.3d 1245 (10th Cir. 2001)(Errors in sentencing based on drug quantities not alleged in indictment required reversal.).

United States v. Velasco-Heredia, 249 F.3d 963 (9th Cir. 2001)(Determination of drug quantity by preponderance by court rather than by jury beyond a reasonable doubt violated Apprendi even though term of imprisonment imposed was within range applicable to admitted drug quantity, because term of supervised release exceeded term of admitted drug quantity.).

United States v. Strayhorn, 250 F.3d 462 (6th Cir. 2001)(Apprendi objection adequately preserved, and district court's drug quantity, relevant conduct, finding violated Apprendi although it did not exceed the default statutory maximum for a defendant with a prior felony drug conviction.).

United States v. Ray, 250 F.3d 596 (8th Cir. 2001)(Apprendi violation warranted resentencing because defendant subjected to higher statutory maximum without jury determination of drug quantity.).

United States v. Barnes, 251 F.3d 251 (1st Cir. 2001)(Term of supervised release violated Apprendi.).

United States v. Fields, 251 F.3d 1041 (D.C. Cir. 2001)(Plain error occurred when court imposed life sentences for drug conspiracy in absence of jury findings required by Apprendi.).

United States v. Vasquez-Zamora, 253 F.3d 211 (5th Cir. 2001)(Because government failed to state quantity of drugs in indictment and prove it beyond a reasonable doubt to jury, Apprendi limits sentence to sixty months in prison and a three-year supervised release term).

United States v. Martinez, 253 F.3d 251 (6th Cir. 2001)(Sentences of 210 and 240 months in prison for marijuana conspiracy were plain error under Apprendi.).

United States v. Angle, 254 F.3d 514 (4th Cir. 2001)(en banc)(Remanded for drug quantity findings as required by Apprendi).

United States v. Alvarez, 254 F.3d 725 (8th Cir. 2001)(Sentence in excess of 20 years for drug conspiracy conviction vacated because jury made no drug quantity finding).

United States v. Cernobyl, 255 F.3d 1215 (10th Cir. 2001)(Sentence in excess of statutory maximum violated Apprendi).

United States v. Nguyen, 255 F.3d 1335 (11th Cir. 2001)(District court must base defendants' offense levels for RICO conspiracy conviction solely on predicate acts that either the jury found the defendants committed or acts that the court finds were proven beyond a reasonable doubt).

United States v. Maynie, 257 F.3d 908 (8th Cir. 2001)(Government's error of not alleging drug quantity in superseding indictment seriously affected fairness and integrity of defendants' sentencing for drug conspiracy).

United States v. Campbell, 259 F.3d 293 (4th Cir. 2001)(Sentence in excess of statutory maximum violated Apprendi.).

United States v. Randle, 259 F.3d 319 (5th Cir. 2001)(Sentence in violation of statutory maximum was plain error under Apprendi where no jury determination of drug quantity.).

United States v. Gonzalez, 259 F.3d 355 (5th Cir. 2001)(plain error under Apprendi where sentence imposed was in excess of statutory maximum).

United States v. Longoria, 259 F.3d 363 (5th Cir. 2001)(Where indictment does not specify drug quantity, court lacks jurisdiction to impose sentence under Apprendi.).

United States v. Cotton, 261 F.3d 397 (4th Cir. 2001)(Imposition of sentences for crimes with which defendants were never charged, which resulted from failure to charge a threshold drug quantity in indictment and submit it to jury was reversible plain error under Apprendi.). [Ed. note: The U.S. Supreme Court reversed this ruling and held that failure to charge drug quantity in the indictment did not deprive the district court of jurisdiction and did not violate Apprendi, United States v. Cotton, 535 U.S. 625 (2002)].

United States v. Smith, 264 F.3d 518 (5th Cir. 2001)(District court plainly erred by failing to submit drug quantity issue to jury.).

United States v. Baptiste, 264 F.3d 578 (5th Cir. 2001)(Failure to allege drug quantity in indictments and to submit issue to jury precluded enhancements in excess of statutory maximums.).

United States v. Smith, 267 F.3d 1154 (D.C. Cir. 2001)(Use of preponderance standard to determine predicate offense for conspiracy during sentencing was plain error; upward departure based on prior uncharged conduct was not warranted.).

United States v. Dinnal, 269 F.3d 418 (4th Cir. 2001)(30 year sentence in excess of statutory maximum was plain error where drug quantity not alleged in the indictment.).

United States v. Bailey, 270 F.3d 83 (1st Cir. 2001)(Failure to submit drug quantity issue to jury was error under Apprendi and was not harmless.).

, 271 F.3d 247 (6th Cir. 2001)(Lack of jury finding of quantity of marijuana plants was Apprendi violation.).

, 274 F.3d 444 (7th Cir. 2001)(Sentence of defendant to more than default maximum of 240 months in violation of Apprendi required remand.).

, 274 F.3d 655 (2nd Cir. 2001)(en banc)(Failure to charge drug type and quantity in indictment or to submit question of drug type and quantity to jury is subject to plain error review, overruling United States v. Tran; and if type and quantity of drugs may be used to impose sentence above statutory maximum, then those are elements of offense which must be charged in indictment and submitted to jury, overruling United States v. Monk and United States v. Compuzano.).

, 274 F.3d 897 (5th Cir. 2001)(improper upward departures imposing consecutive sentences beyond guideline range and statutory maximum).

, 275 F.3d 490 (6th Cir. 2001)(Concurrent 30 year sentences on basis of conspiracy involving not more than 100 marijuana plants violated Apprendi.).

, 277 F.3d 111 (2nd Cir. 2001)(Under Apprendi, it was plain error to sentence defendant to a statutory minimum term 30 months greater than he otherwise could have received as a result of failure to present drug quantity issue to jury.).

United States v. Campbell, 279 F.3d 392 (6th Cir. 2002)(Defendant's 120 month sentence after conviction for use of telephone to facilitate a narcotics conspiracy violated Apprendi.).

United States v. Benenhaley, 281 F.3d 423 (3rd Cir. 2002)(life sentence exceeding statutory maximum under drug trafficking statute impermissible under Apprendi).

United States v. Henry, 282 F.3d 242 (3rd Cir. 2002)(District court's determination of drug quantity and identity violated Apprendi and was not harmless.).

United States v. Yu, 285 F.3d 192 (2nd Cir. 2002)(Yu should have been sentenced under 21 U.S.C. § 841(b)(1)(C) since the court, not the jury, made drug quantity determination.).

United States v. Rodriguez, 285 F.3d 759 (9th Cir. 2002)(Life sentence based on finding at sentencing by preponderance that defendant had distributed in excess of 1000 kg of marijuana was plain error under Apprendi.).

United States v. Humphrey, 287 F.3d 422 (6th Cir. 2002)(Failure to determine drug quantity beyond a reasonable doubt violated Apprendi when it resulted in increase of statutory penalties applicable to defendant even though his sentence did not exceed statutory maximum.).

United States v. Burrell, 289 F.3d 220 (2nd Cir. 2002)(life sentence reversed where trial court made drug quantity finding by preponderance).

United States v. Pauley, 289 F.3d 254 (4th Cir. 2002)(Indictment which failed to specify threshold quantity of drugs violated Apprendi.).

United States v. Jordan, 291 F.3d 1091 (9th Cir. 2002)(Life sentence for offenses involving more than 50 grams of methamphetamine violated Apprendi because drug quantities not determined by jury beyond a reasonable doubt.).

United States v. Doe, 297 F.3d 76 (2nd Cir. 2002)(Sentence exceeding statutory maximum for unquantified drug offenses was plain error.).

United States v. Solis, 299 F. 3d 420 (5th Cir. 2002)(reversed and remanded due to insufficient evidence and Apprendi errors).

United States v. Cleaves, 299 F. 3d 564 (6th Cir. 2002)(Plain error resulted where the district court failed to instruct the jury to determine both the type of drug and drug quantity. Reversible error occurred during the post-verdict determination of the drug amount and following decisions to forego a special verdict as to drug type).

United States v. Timmins, 301 F.3d 974 (9th Cir. 2002)(Court erroneously determined that defendant was competent to decline a plea bargain; 294 month sentence for unarmed bank robbery exceeded the 20-year statutory maximum and was reduced to 240 months.).

United States v. Allen, 302 F.3d 1260 (11th Cir. 2002)( Apprendi violation for imposing life sentences in excess of statutory maximum required reversal.).

United States v. Bartholomew, 310 F.3d 912 (6th Cir. 2002)(Imposition of sentence in excess of 60 month statutory maximum was plain error.).

United States v. Flowal, 234 F.3d 932 (6th Cir. 2000)(Defendant was entitled to have jury determine beyond a reasonable doubt the quantity of drugs he possessed.).

Table of Contents

ARGUMENT

United States v. Francis, 170 F.3d 546 (6th Cir. 1999)(improper vouching for government witness, improper reference to plea agreements of two witnesses, improper bolstering of agent's credibility, improper attack on defendant's credibility).

United States v. Watson, 171 F.3d 695 (D.C. Cir. 1999)(prosecutor's misstatement of evidence in closing argument warranted new trial).

United States v. Mastrangelo, 172 F.3d 288 (3rd Cir. 1999)(prosecutor's misstatement of terms of stipulation required reversal).

Shurn v. Delo, 177 F.3d 662 (8th Cir. 1999)(prosecutor's closing in sentencing phase of capital trial violated due process; denial of habeas petition reversed in part).

Table of Contents

ATTORNEYS

United States v. Bailey, 175 F.3d 966 (11th Cir. 1999)(attorney may be entitled to reimbursement for reasonable cost of suit-
of-clothing for his client).

United States v. Ortlieb, 274 F.3d 871 (5th Cir. 2001)(District court lacked authority to suspend from practice of law attorney held in contempt for vulgar displays during bench conferences.).

United States v. Wiseman, 274 F.3d 1236 (9th Cir. 2001)(abuse of discretion for district court to allow attorney to testify, in violation of attorney-client privilege, that he advised defendants they could not serve as trustees).

United States v. Figueroa-Arenas, 292 F.3d 276 (1st Cir. 2002)(Contempt order against attorney was vacated because she did not file motion to dismiss or reassign case in bad faith.).

Table of Contents

CAREER ENHANCEMENTS

United States v. Sacko, 170 F.3d 227 (1st Cir. 1999)(error to delve into facts of prior statutory rape conviction to determine whether it was predicate offense under ACCA).

United States v. Dueno, 171 F.3d 3 (1st Cir. 1999)(prior conviction was not for crime of violence for career offender purposes).

United States v. McClain, 171 F.3d 1168 (8th Cir. 1999)(error in counting misdemeanors as felonies in sentencing defendant as armed career criminal).

United States v. Jackson, 177 F.3d 628 (7th Cir. 1999)(cross appeal by government resulted in career offender enhancement under U.S.S.G. §4B1.1).

United States v. Sacko, 178 F.3d 1 (1st Cir. 1999)(error to delve into facts of prior statutory rape conviction to determine whether predicate offense under ACCA).

United States v. Casarez-Bravo, 181 F.3d 1074 (9th Cir. 1999)(plain error in using state convictions as predicate offenses under career offender guideline).

United States v. Robinson, 187 F.3d 516 (5th Cir. 1999)(no voluntary waiver of right to appeal; two prior state convictions which were part of common scheme treated as one for career offender purposes).

United States v. Thomas, 211 F.3d 316 (6th Cir. 2000)(Defendant's rapes of two women constituted one predicate episode for purpose of sentencing under ACCA.).

United States v. Ubakanma, 215 F.3d 421 (4th Cir. 2000)(failure to make factual findings regarding restitution required remand).

United States v. Peters, 215 F.3d 861 (8th Cir. 2000)(district court should exercise discretion in determining whether prior conviction was prior felony for career offender sentencing).

DeRoo v. United States, 223 F.3d 919 (8th Cir. 2000)(sua sponte remand because one of predicate offenses was not a "serious drug offense" as required by 18 U.S.C. § 924(e)).

United States v. Pedragh, 225 F.3d 240 (2nd Cir. 2000)(Post-offense convictions could not be included as "prior felony convictions" for purposes of enhancing sentence.).

United States v. Matthews, 226 F.3d 1075 (9th Cir. 2000)(Conviction records and statutes of conviction must be introduced to justify ACCA conviction.).

United States v. Franklin, 235 F.3d 1165 (9th Cir. 2000)(District court could not rely upon state court charging papers for defendant's prior burglary convictions and PSR information to enhance sentence under the ACCA.).

United States v. Hoults, 240 F.3d 657 (7th Cir. 2001)(Prior conviction under general burglary statute for burglary of building was not crime of violence under career offender statute.).

United States v. Matthews, 240 F.3d 806 (9th Cir. 2001)(ACCA sentence enhancement based on prior burglary convictions could not be imposed absent both conviction records and statutes).

United States v. Romary, 246 F.3d 339 (4th Cir. 2001)(12-year old sentence could not be considered for career offender purposes).

United States v. Brandon, 247 F.3d 186 (4th Cir. 2001)(Intent to manufacture or distribute was not inherent in defendant's prior drug conviction so that conviction was not serious drug felony for armed career criminal purposes.).

United States v. Sparks, 265 F.32d 825 (9th Cir. 2001)(Because Alaska's burglary statute had broader definition than that of the ACCA, defendant's prior burglary conviction could not be counted.).

United States v. Gallaher, 275 F.3d 784 (9th Cir. 2001)(error to enhance defendant's sentence as armed career criminal based on discharged offense).

United States v. Sparks, 265 F.32d 825 (9th Cir. 2001)(Because Alaska's burglary statute had broader definition than that of the ACCA, defendant's prior burglary conviction could not be counted.).

United States v. Miles, 290 F.3d 1341 (11th Cir. 2002)(Court failed to articulate on record fact that prior burglary convictions were committed on separate occasions for purpose of applying Armed Career Criminal Act.).

United States v. Sandoval-Venegas, 292 F.3d 1101 (9th Cir. 2002)(defendant improperly treated as career offender because one of the predicate offenses was charged as generic burglary, not burglary of a dwelling).

United States v. Richardson, 313 F.3d 121 (3rd Cir. 2002)(Categorical approach in determining whether defendant used weapon during commission of juvenile offense resulted in not counting prior juvenile adjudication for ACCA purposes.).

United States v. Jones, 235 F.3d 343 (7th Cir. 2000)(simple assault and battery held not a crime of violence for career offender status).

Table of Contents

CARJACKING

United States v. Applewhaite, 195 F.3d 679 (3rd Cir. 1999)(insufficient evidence to support carjacking convictions).

Table of Contents

CLOSURE/PUBLIC TRIAL

Brown v. Andrews, 180 F.3d 403 (2nd Cir. 1999)(closure of trial during undercover officer's testimony violated defendant's right to public trial).

Bell v. Jarvis, 198 F.3d 432 (4th Cir. 1999)(violation of right to public trial in closing courtroom simply because young victim of sex crime will testify; appellate counsel ineffective in not raising the issue).

Judd v. Haley, 250 F.3d 1308 (11th Cir. 2001)(Total closure of courtroom during sexual abuse victim's testimony violated defendant's 6th Amendment right to a public trial.).

Table of Contents

COMPETENCY/SANITY

Holt v. Bowersox, 191 F.3d 970 (8th Cir. 1999)(remand necessary to determine mental competency during period of post-conviction relief).

United States v. Zedner, 193 F.3d 562 (2nd Cir. 1999)(district court had substantial reason to doubt defendant's competence, and thus was required to appoint counsel to represent him at competency hearing).

Mata v. Johnson, 210 F.3d 324 (5th Cir. 2000)(minimal due process not met where petitioner sought to abandon review in federal habeas case and his competency was questioned).

Comer v. Stewart, 215 F.3d 910 (9th Cir. 2000)(evidentiary hearing required to determine petitioner's competence to withdraw appeal and voluntariness thereof.).

United States v. Husband, 226 F.3d 626 (7th Cir. 2000)(remand to determine if use of anesthetic to obtain evidence was reasonable where it rendered defendant unconscious).

McGregor v. Gibson, 248 F.3d 946 (10th Cir. 2001)(Writ should have been granted because reasonable judge should have had a bona fide doubt about petitioner's competence.).

United States v. Watson, 260 F.3d 301 (3rd Cir. 2001)(Prosecution could not ask expert witness if defendant had requisite mental state constituting element of charged crime.).

United States v. Timmins, 301 F.3d 974 (9th Cir. 2002)(Court erroneously determined that defendant was competent to decline a plea bargain.).

United States v. Mansoori, 304 F.3d 635 (7th Cir. 2002)(Allegedly diminished mental capacity is possible ground for downward departure in cocaine conspiracy case.).

United States v. Ramirez, 304 F.3d 1033 (10th Cir. 2002)(Competency evaluation is required absent findings of an insufficient factual basis for a motion for a competency evaluation.).

Ellis v. Mullin, 312 F.3d 1201 (10th Cir. 2002)(Determination that pretrial psychiatric report which concluded that defendant was competent to stand trial did not bear on sanity at time of offense was an unreasonable determination of the facts.).

Table of Contents

CONFLICTS

United States v. Messino, 181 F.3d 826 (7th Cir. 1999)(exclusion of testimony to remedy conflict of interest was abuse of discretion because testimony would be highly probative and disqualification would not deprive defendant to 6th Amendment right to counsel of his choice).

Atley v. Ault, 191 F.3d 865 (8th Cir. 1999)(writ granted due to constitutional defect that state court's Holloway inquiry into conflict of interest raised by defense counsel was "unreasonable application of clearly established federal law").

Perillo v. Johnson, 205 F.3d 775 (5th Cir. 2000)(attorney's actual conflict of interest affected his performance at trial).

Mickens v. Taylor, 227 F.3d 203 (4th Cir. 2000)(habeas relief granted due to attorney's actual conflict of interest).

United States v. Christakis, 238 F.3d 1164 (9th Cir. 2001)(remanded for hearing to determine if actual conflict of interest in counsel representing unindicted co-conspirator prior to representing defendant).

United States v. Davis, 239 F.3d 283 (2nd Cir. 2001)(actual conflict of interest).

Koste v. Dormire, 260 F.3d 872 (8th Cir. 2001)(Writ of habeas corpus granted where state court held that defendant could obtain post-conviction relief on claim that his trial counsel had been ineffective due to conflict of interest only if he showed actual prejudice; state court failed to conduct inquiry when defendant gave notice of possible conflict of interest.).

Campbell v. Rice, 265 F.3d 878 (9th Cir. 2002)(Trial court's failure to investigate possible conflict of interest warranted habeas relief because state court's determination that defendant was not entitled to relief was contrary to clearly established federal law.).

United States v. Schwarz, 283 F.3d 76 (2nd Cir. 2002)(defendant denied effective assistance of counsel by unwaivable conflict of interest; jury exposed to prejudicial extrinsic information; insufficient evidence to support conviction for obstruction of justice).

Rubin v. Gee, 292 F.3d 396 (4th Cir. 2002)(Habeas relief warranted where trial attorneys had actual conflict of interest which adversely affected their performance.).

Table of Contents

CONFRONTATION

Lilly v. Virginia, 119 S. Ct. 1887(1999)(admission of non-testifying accomplice's confession violated defendant's Confrontation Clause rights).

United States v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999)(Bruton error not harmless; insufficient evidence of conspiracy in drug case; insufficient evidence of using or carrying firearm in relation to drug trafficking crime; insufficient notice by government of intent to seek sentence enhancement based on prior convictions).

United States v. Mayfield, 189 F.3d 895 (9th Cir. 1999)(abuse of discretion for failure to sever trials–mutually exclusive defenses presented Confrontation Clause problem).

United States v. Al-Muqsit, 191 F.3d 928 (8th Cir. 1999)(Confrontation Clause rights violated when nontestifying co-defendant's post-arrest statements were presented to jury in violation of Bruton).

Lajoie v. Thompson, 201 F.3d 1166 (9th Cir. 2000)(preclusion of relevant evidence of past abuse of victim by third parties violated Confrontation Clause and right to compulsory process).

Lajoie v. Thompson, 217 F.3d 663 (9th Cir. 2000)(exclusion of evidence of victim's past sexual

abuse by others due to petitioner's violation notice requirements of rape shield statutes violated Sixth Amendment and warranted habeas relief).

United States v. Sauza-Martinez, 217 F.3d 754 (9th Cir. 2000)(failure of court to give limiting instruction when it admitted post-
arrest incriminating statement by co-defendant directly implicating defendant was plain error).

Vincent V. Seabold, 226 F.3d 681 (6th Cir. 2000)(Sixth Amendment Confrontation Clause violations in admitting testimony of police officer regarding post-arrest, custodial hearsay statements of co-defendant as declarations against penal interest and in admitting witness's testimony that second co-defendant told her that petitioner and former co-defendant had murdered victim).

United States v. McCleskey, 228 F.3d 640 (6th Cir. 2000)(nontestifying accomplice's statement was inadmissible both as hearsay and as Confrontation Clause violation, and erroneous admission was not harmless).

Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001)(confrontation right abridged when defendant prohibited from cross-examining alleged statutory rape victim about prior false claim that she had been forcibly raped).

Brumley v. Wingard, 269 F.3d 629 (6th Cir. 2001)(Admission of incarcerated witness's videotaped deposition without prior finding of unavailability was unreasonable application of clearly established Supreme Court precedent in Ohio v. Roberts.).

Bulls v. Jones, 274 F.3d 329 (6th Cir. 2001)(Confrontation clause violation, including admission of nontestifying co-defendant's statements, had injurious effect and warranted habeas relief.).

Calvert v. Wilson, 288 F.3d 823 (6th Cir. 2002)(Admission of custodial statement of non-testifying co-defendant violated Confrontation Clause, since there were no circumstantial guarantees of trustworthiness sufficient to overcome presumption of unreliability.).

Stapleton v. Wolfe, 288 F.3d 863 (6th Cir. 2002)(Admission of co-defendant's taped statement to police violated Confrontation Clause and was not harmless.).

Melendez v. Pliler, 288 F.3d 1120 (9th Cir. 2002)(State contemporaneous objection rule did not bar consideration of petitioner's Confrontation Clause claim.).

United States v. Adamson, 291 F.3d 606 (9th Cir. 2002)(Limitation on cross-examination of defendant's brother violated defendant's Confrontation Clause rights and was not harmless.).

Ryan v. Miller, 303 F.3d 231 (2nd Cir. 2002)(Police officer's testimony was hearsay implicitly containing codefendant's accusation of the defendant in violation of Confrontation Clause; allowance of testimony was unreasonable application of clearly established federal law and was not harmless.).

Lewis v. Wilkinson, 307 F.3d 413 (6th Cir. 2002)(Excerpts from alleged rape victim's diary were admissible on issues of consent and improper motive, and exclusion from evidence was not harmless; violation of right to confront victim.).

Table of Contents

CONSPIRACY

United States v. Fuchs, 218 F.3d 957 (9th Cir. 2000)(failure to instruct that at least one overt act in furtherance of conspiracy must have occurred during the limitations period was plain error).

United States v. Grissett, 236 F.3d 452 (8th Cir. 2001)(Defendant who withdrew from conspiracy more than five years from indictment could not be prosecuted in face of limitations defense.).

United States v. Pressler, 256 F.3d 144 (3rd Cir. 2001)(Conviction vacated because government failed to prove agreement element of heroin conspiracy conviction).

United States v. Desena, 260 F.3d 150 (2nd Cir. 2001)(insufficient evidence to sustain conviction for conspiracy to assault with dangerous weapon in aid of racketeering).

United States v. Rivera, 273 F.3d 751 (7th Cir. 2001)(insufficient evidence to establish drug conspiracy; erroneous jury instruction).

United States v. Garcia-Torres, 280 F.3d 1 (1st Cir. 2002)(insufficient evidence that defendant knew he was aiding drug conspiracy).

United States v. Leveque, 283 F.3d 1098 (9th Cir. 2002)(ambiguous mail fraud indictment; insufficient evidence to show that defendant had actual knowledge that elk was taken in violation of Montana law and insufficient evidence to support conspiracy allegations.).

United States v. Thomas, 284 F.3d 746 (7th Cir. 2002)(insufficient evidence to sustain conspiracy conviction; lack of proof of agreement; no stake in success of conspirator's sales).

United States v. Cruz, 285 F.3d 692 (8th Cir. 2002)(insufficient evidence to prove defendant had constructive possession of house where methamphetamine was found and insufficient evidence to prove conspiracy).

United States v. Henning, 286 F.3d 914 (6th Cir. 2002)(plain error for district court, when granting judgment of acquittal on charge of conspiracy to commit bank fraud, to consider effect on viability of defendant's substantive convictions of its Pinkerton charge, that jury could convict defendant of substantive counts either based upon his own acts or based on acts of co-conspirators).

United States v. Vallejo, 297 F.3d 1154(11th Cir. 2002)(insufficient factual findings to support sentence based upon multi-
object conspiracy).

United States v. Friedman, 300 F.3d 111 (2nd Cir. 2002)(insufficient evidence to convict of conspiracy in connection with extortion plot).

United States v. Tocco, 306 F.3d 279 (6th Cir. 2002)(remand to consider whether defendant participated in Hobbs Act conspiracy).

United States v. Chance, 306 F.3d 356 (6th Cir. 2002)(Evidence did not support conviction for conspiring to obstruct enforcement of state criminal laws.).

United States v. Charles, 313 F.3d 1278 (11th Cir. 2002)(insufficient evidence to convict for conspiracy where defendant only drove co-conspirators to crime scene).

Table of Contents

CONTEMPT

United States v. Ortlieb, 274 F.3d 871 (5th Cir. 2001)(District court lacked authority to suspend from practice of law attorney held in contempt for vulgar displays during bench conferences.).

United States v. Figueroa-Arenas, 292 F.3d 276 (1st Cir. 2002)(Contempt order against attorney was vacated because she did not file motion to dismiss or reassign case in bad faith.).

Table of Contents

CONTINUANCE

United States v. Prochilo, 187 F.3d 221 (1st Cir. 1999)(denial of motion for continuance abuse of discretion where defendant requested time to retain counsel because of differences with appointed counsel).

United States v. Santos, 201 F.3d 953 (7th Cir. 2000)(denial of motion to continue due to counsel's scheduling conflict was abuse of discretion; numerous evidentiary errors not harmless).

Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 151 L. Ed. 2d 820 (2002)(Denial of petitioner's continuance motions due to absent witness violated due process and did not rest on independent and adequate state law ground.).

United States v. Novation, 271 F.3d 968 (11th Cir. 2001)(Continuation of trial for four days during which one of defendants was absent for medical reasons violated that defendant's constitutional rights.).

Table of Contents

CONTINUING CRIMINAL ENTERPRISE

United States v. Richardson, 195 F.3d 317 (7th Cir. 1999)(remanded for dismissal of CCE count due to improper jury instructions).

Robinson v. United States, 196 F.3d 748 (7th Cir. 1999)(defendant who pled guilty did not thereby waive double jeopardy claim that defendant could not be convicted of both conspiracy and CCE; double jeopardy challenge not barred by Teague).

United States v. McSwain, 197 F.3d 472 (10th Cir. 1999)(conspiracy charge was lesser included offense of CCE charge for which defendant was convicted and required vacation of conspiracy conviction).

United States v. Brown, 202 F.3d 691 (4th Cir. 2000)(erroneous instruction on CCE charge not harmless; special assessment could not be applied for both CCE and conspiracy charges; single unitary sentence for CCE and conspiracy charges improper).

United States v. Flaharty, 295 F.3d 182 (2nd Cir. 2002)(Defendants could not be convicted of both CCE and lesser included offense of possession with intent to distribute.).

United States v. Bass, 310 F.3d 321 (5th Cir. 2002)(Supervisory relationship was lacking in order to prove CCE count; .).

Table of Contents

COUNSEL/SELF-REPRESENTATION

United States v. Leopard, 170 F.3d 1013 (10th Cir. 1999)(lack of counsel at evidentiary hearing to support enhanced sentence for d-methamphetamine conviction required reversal).

Bell v. Hill, 190 F.3d 1089 (9th Cir. 1999)(Defendant has constitutional right under Sixth Amendment to appointed counsel for purposes of new trial motion)

United States v. Prochilo, 187 F.3d 221 (1st Cir. 1999)(denial of motion for continuance abuse of discretion where defendant requested time to retain counsel because of differences with appointed counsel).

United States v. Zedner, 193 F.3d 562 (2nd Cir. 1999)(district court had substantial reason to doubt defendant's competence, and thus was required to appoint counsel to represent him at competency hearing).

Conde v. Henry, 198 F.3d 734 (9th Cir. 1999)(right to counsel denied by precluding attorney from arguing theory of defense; requested jury instruction on simple kidnapping should have been given; error to modify California pattern jury instruction to remove immediate presence requirement for robbery).

United States v. Hernandez. 203 F.3d 614 (9th Cir. 2000)(denial of self-representation violated Sixth Amendment and rendered defendant's guilty plea involuntary).

Hughes v. Booker, 203 F.3d 894 (5th Cir. 2000)(presumption of prejudice from constructive denial of appellate counsel).

Roney v. United States, 205 F.3d 1061 (8th Cir. 2000)(violation of rule entitling petitioner to appointed counsel on his motion to vacate sentence was not harmless error).

Bribiesca v. Galaza, 215 F.3d 1015 (9th Cir. 2000)(prisoner improperly denied right to represent himself).

Olden v. United States, 224 F.3d 561 (6th Cir. 2000)(absence of counsel at critical stages of trial required remand for determination of whether defendant suffered prejudice entitling him to new trial).

Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001)(Right to counsel violated during presentence interview, and Teague nonretroactivity doctrine did not bar petitioner's Fifth and Sixth Amendment claims challenging denial of counsel during presentence interview.).

Lackawanna County Dist. Attorney v. Coss, 121 S. Ct. 1567 (2001)(Failure to appoint counsel is a constitutional defect warranting habeas relief where petitioner challenges current sentence on the ground that it was enhanced based on an unconstitutional prior conviction where counsel was not appointed.).

Lainfiesta v. Artuz, 253 F.3d 151 (2nd Cir. 2001)(In 28 U.S.C. § 2254 habeas action, state court determined that refusal to permit defendant's co-counsel to conduct cross-examination did not violate defendant's right to counsel of choice; federal appeals court concluded that this determination was unreasonable but was harmless error).

Fowler v. Collins, 253 F.3d 244 (6th Cir. 2001)(Petitioner entitled to writ of habeas corpus on ground that state court's acceptance of his waiver of right to counsel was an unreasonable application of established Supreme Court precedent).

Shepard v. United States, 253 F.3d 585 (11th Cir. 2001)(Having determined that evidentiary hearing was needed on prisoner's 28 U.S.C. § 2255 petition, district court must appoint counsel; failure to appoint counsel not subject to harmless error analysis).

Hall v. Moore, 253 F.3d 624 (11th Cir. 2001)(Absence of counsel at re-sentencing hearing violated petitioner's Sixth Amendment right to counsel).

Hunt v. Mitchell, 261 F.3d 575 (6th Cir. 2001)(Petitioner was deprived of counsel during pre-trial period so as to give rise to presumption of ineffective assistance of counsel under Cronic.).

Green v. United States, 262 F.3d 715 (8th Cir. 2001)(Indigent defendant was entitled to appointment of counsel for post-conviction motion, and denial of appointed counsel is not subject to harmless error analysis.).

United States v. Johnson, 267 F.3d 376 (5th Cir. 2001)(Order prohibiting defendant from discussing case with counsel during overnight recess violated defendant's Sixth Amendment right to counsel.).

Spears v. Stewart, 267 F.3d 1026 (9th Cir. 2001)(Arizona was not entitled to benefit from procedural benefits of its counsel-
appointment provision which facially complied with Chapter 154 of AEDPA because appointment of counsel did not comply with timeliness requirement.).

United States v. Adelzo-Gonzalez, 268 F.3d 772 (9th Cir. 2001)(abuse of discretion to deny defendant's motion to substitute counsel where attorney threatened to "sink him for 105 years so he wouldn't be able to see his wife and children").

United States v. Farmer, 274 F.3d 800 (4th Cir. 2001)(Defendant who lacks funds to hire attorney has due process right to hearing to determine whether seized assets were legitimate and might be used to fund defense.).

United States v. Akins, 276 F.3d 1141 (9th Cir. 2002)(Defendant did not waive right to counsel before pleading guilty to underlying misdemeanor domestic violence charge, precluding conviction of possession of firearm after conviction of misdemeanor domestic violence crime.).

United States v. Stubbs, 281 F.3d 109 (3rd Cir. 2002)(District court's failure to make adequate inquiry to determine if defendant made knowing and intelligent waiver of counsel during middle of trial was error and was not harmless.).

Spears v. Stewart, 283 F.3d 992 (9th Cir. 2002)(Arizona's untimely appointment of counsel in capital habeas case warranted relief.).

United States v. Davis, 285 F.3d 378 (5th Cir. 2002)(Appointment of independent counsel to represent defendant at penalty phase of capital murder case violated defendant's rights under Faretta.).

Norde v. Keane, 294 F.3d 401 (2nd Cir. 2002)(Trial court's refusal to allow counsel to consult with her client during period in which defendant was removed from courtroom for disruptive behavior and its communication with him through a court officer rather than through counsel deprived defendant of his 6th Amendment right to counsel.).

United States v. Ahumala-Aguilar, 295 F.3d 943 (9th Cir. 2002)(Immigration judge deprived alien of statutory right to counsel at group deportation proceeding; waiver of right to appeal was not knowing and voluntary.).

Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002)(remanded because district court did not consider national security implications of appointing counsel for Afghanistan war detainee and ordering unfettered access to counsel; however, government's motion to dismiss habeas petition was denied).

United States v. Peppers, 302 F.3d 120 (3rd Cir. 2002)(inadequate inquiry by district court into defendant's Faretta request).

Manning v. Bowersox, 310 F.3d 571 (8th Cir. 2002)(Use of informants to elicit incriminating statements from defendant after he had already been charged violated defendant's right to counsel.).

United States v. Lott, 310 F.3d 1231 (10th Cir. 2002)(Failure to hold hearing on substitution of counsel motion under harmless error standard required remand.).

Table of Contents

CRUEL AND UNUSUAL PUNISHMENT

Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001)(Life sentence imposed in state court for first offense involving delivery of .238 grams of cocaine base violated the Eighth Amendment).

Henderson v. Norris, 258 F.3d 70t6 (8th Cir. 2001)(Life sentence for delivery of .238 grams of cocaine base violated 8th Amendment.).

Andrade v. Attorney General, 270 F.3d 743 (9th Cir. 2001)(Defendant's sentence under California Three Strikes law to life in prison with no possibility of parole for 50 years for two counts of petty theft for shoplifting 9 video tapes was so grossly disproportionate to his crime, so that, as applied, the law violated defendant's right under the Eighth Amendment to be free from cruel and unusual punishment and was unreasonable interpretation by state court of Supreme Court's decision in Solem v. Helm.).

Brown v. Mayle, 283 F.3d 1019 (9th Cir. 2002)(25 years-life sentence for petty theft violated 8th Amendment proscription of cruel and unusual punishment.).

Table of Contents

DEFENSE EVIDENCE/THEORY

Gray v. Klauser, 282 F.3d 633 (9th Cir. 2002)(Arbitrary denial of petitioner's right to present a defense and refusal to admit hearsay statements implicating victim's former boyfriend were constitutional errors and were not harmless.).

United States v. Haney, 287 F.3d 1266 (10th Cir. 2002)(District Court erred in failing to allow defendant to assert defense of duress in prosecution for possession of escape paraphernalia in prison.).

Table of Contents

DETAINERS

Alabama v. Bozeman, 121 S. Ct. 2079 (2001)(Article IV bars any further criminal proceedings against defendant held under the Interstate Agreement on Detainers when a defendant is returned to the original place of imprisonment before trial.).

Table of Contents

DISCOVERY/BRADY/JENCKS

Schledwitz . United States, 169 F.3d 1003 (6th Cir. 1999)(collective exculpatory and impeaching value of undisclosed evidence required reversal).

United States v. Ramirez, 174 F.3d 484 (5th Cir. 1999)(tape recordings of conversations between two witnesses disclosable under Jencks Act-remand needed to determine Government's culpability).

In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887 (D.C. Cir. 1999)(prosecution had Brady obligation to disclose any cooperation agreements between witness and government, even if Brady disclosure obligations did not apply to evidence impeaching defense witnesses).

Spicer v. Roxbury Correctional Institute, 194 F.3d 547 (4th Cir. 1999)(witness's prior inconsistent statement that he did not see petitioner on day of charged offense was impeachment evidence that had to be disclosed under Brady).

Moore v. Gibson, 195 F.3d 1152 (10th Cir. 1999)(state appellate court's determination that unusual conduct by detectives in collecting hair and fiber samples was not material for purposes of Brady was unreasonable).

Prou v. United States, 199 F.3d 37 (1st Cir. 1999)(information seeking enhanced sentence due to prior drug conviction must be given prior to trial; failure of counsel to object on this ground was procedural default; failure of counsel to object on this ground was ineffective assistance).

United States v. Rutherford, 175 F.3d 899 (11th Cir. 1999)(trial court must determine what confidential informant's testimony would have been before denying defendant's motion to disclose informant's names where defendant presented misidentification defense; notice of intent to seek statutory enhancement must list defendant's prior convictions).

United States v. Riley, 189 F.3d 802 (9th Cir. 1999)(Agent's intentional destruction of notes of interview with confidential informant violated Jencks Act).

White v. Helling, 194 F.3d 937 (8th Cir. 1999)(in habeas action district court should have permitted petitioner to introduce evidence that was not offered before state courts; withheld evidence regarding timing of victim's identification of defendant as robber was material under Brady).

United States v. Osage, 235 F.3d 519 (10th Cir. 2000)(failure to object to search of sealed can in suitcase did not permit officer to destroy the can or render it completely useless for intended function).

United States v. Thomas, 239 F.3d 163 (2nd Cir. 2001)(Government's failure to disclose defendant's statements at administrative hearing required reversal.).

Paradis v. Arave, 240 F.3d 1169 (9th Cir. 2001)(Notes of prosecutor regarding medical examiner's opinion regarding time and location of victim's death were material to place of death and thus discoverable under Brady.).

Boyette v. Lefevre, 246 F.3d 76 (2nd Cir. 2001)(Brady violation occurred where prosecution failed to disclose to defense material which could have suggested an alternative perpetrator or could have helped impeach victim; state court interpretation was unreasonable application of clearly established federal law which warranted relief under the AEDPA).

Boyette v. Lefevre, 246 F.3d 76 (2nd Cir. 2001)(Brady violation occurred where prosecution failed to disclose to defense material which could have suggested an alternative perpetrator or could have helped impeach victim; state court interpretation was unreasonable application of clearly established federal law which warranted relief under the AEDPA).

Leka v. Portuondo, 257 F.3d 89 (2nd Cir. 2001)(Eyewitness evidence of an off-duty police officer who observed the crime from the second-floor window of his apartment was material and favorable to defense for Brady purposes; delayed disclosure to defense, who was identified nine days before opening statements and twenty-three days before defense began its case, was "suppression" for Brady purposes).

United States v. Schwarz, 259 F.3d 59 (2nd Cir. 2001)(limited remand to consider Brady claims).

Mitchell v. Gibson, 262 F.3d 1036 (10th Cir. 2001)(reasonable probability of different sentencing outcome resulting from government's withholding evidence).

Boss v. Pierce, 263 F.3d 734 (7th Cir. 2001)(State unreasonably applied federal law under Brady when it held that evidence suppressed by state which was favorable to defendants was not material.).

Dilosa v. Cain, 279 F.3d 259 (5th Cir. 2002)(State court incorrectly applied Brady principle and engaged in unreasonable application of Brady materiality rule.).

Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002)(abuse of discretion for district court to fail to conduct evidentiary hearing on Brady claim).

United States v. Gil, 297 F.3d 93 (2nd Cir. 2002)(remanded for Brady violation).

Sawyer v. Hofbaufer , 299 F. 3d 605 (6th Cir. 2002)( By failing to address he state's non-disclosure of negative forensic test, the state appellate court engaged in an unreasonable application of federal law resulting in a sufficient ground for release).

Mendez v. Artuz, 303 F.3d 411 (2nd Cir. 2002)(Suppression of material evidence that third party in custody in another jurisdiction hired hit-man to kill shooting victim was Brady violation requiring habeas relief.).

Table of Contents

DRUGS

United States v. Moreno, 181 F.3d 206 (2nd Cir. 1999)(remand necessary to determine amount of powder cocaine distributed).

United States v. Orduno-Aguilera, 183 F.3d 1138 (9th Cir. 1999)(insufficient evidence to prove ester derivatives of drugs promoted muscle growth, as required to prove drugs were anabolic steroids).

United States v. Reliford, 210 F.3d 285 (5th Cir. 2000)(insufficient evidence of attempted distribution of crack cocaine).

Watterson v. United States, 219 F.3d 232 (3rd Cir. 2000)(no evidence that defendant distributed controlled substance within 1000 feet of school zone).

United States v. Edmonds, 240 F.3d 55 (D.C. Cir. 2001)(Character of school, as defined in 18 U.S.C. § 860(a), is element of offense which must be proved beyond reasonable doubt in prosecution for possessing cocaine base within 1,000 feet of school.).

United States v. Neuhausser, 241 F.3d 460 (6th Cir. 2001)(insufficient evidence to support Travel Act conviction).

United States v. Corral-Gastelum, 240 F.3d 1181 (9th Cir. 2001)(evidence of mere proximity to marijuana insufficient to convict in 21 U.S.C. § 846 prosecution).

United States v. Soler, 275F.3d 146 (1st Cir. 2002)(failure of government's proof that defendant possessed with intent to distribute heroin within 1,000 feet of school).

United States v. Cano, 289 F.3d 1354 (11th Cir. 2002)(insufficient evidence to prove defendant possessed marijuana during relevant time period).

United States v. Hernandez-Bautista, 293 F.3d 845 (5th Cir. 2002)(Evidence did not support convictions for possession of marijuana with intent to distribute.).

United States v. Allen, 302 F.3d 1260 (11th Cir. 2002)(Defendant was entitled to have jury instructed that government must prove that defendant was involved with both marijuana and cocaine, in indictment charging conspiracy to possess with intent to distribute both substances, following United States v. Dale, 178 F.3d 429 (6th Cir. 1999) and United States v. Rhymes, 196 F.3d 207 (4th Cir. 1999); Dale-Rhymes violation and Apprendi violation for imposing life sentences in excess of statutory maximum required reversal.).

Table of Contents

ENTRAPMENT

United States v. Brooks, 215 F.3d 842 (8th Cir. 2000)(government's conduct was entrapment as a matter of law).

United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000)(government induced otherwise unpredisposed defendant through agent posing as mother seeking "sexual mentor" for her three daughters to commit crime of crossing state lines for purpose of engaging in sex acts with minor, thus sustaining his defense of entrapment).

Table of Contents

EVIDENTIARY RULINGS

United States v. Geston, 299 F.3d 1130 (9th Cir. 2002)(Prosecutor's questions to law enforcement officers were improper because they compelled opinion evidence on veracity of government witnesses.).

United States v. Glenn, 312 F.3d 58 (2nd Cir. 2002)(Drug dealer's lay testimony about how drug dealers carry handguns was inadmissible; insufficient evidence to prove flight; false exculpatory statement by accused, standing alone, insufficient to convict.).

Table of Contents

EXPERT TESTIMONY

United States v. Abreu, 202 F.3d 386 (1st Cir. 2000)(application of indigent defendant for government funding of expert services must be heard ex parte).

United States v.Smithers, 212 F.3d 306 (6th Cir. 2000)(District court erred in excluding expert testimony regarding eye-witness identification in bank robbery case without Daubert analysis where principal evidence was eye-witness testimony.).

United States v. Hanna, 293 F.3d 1080 (9th Cir. 2002)(New trial warranted because expert testimony of secret service agents was not relevant.).

United States v. Hart, 295 F.3d 451 (5th Cir. 2002)(In false statement prosecution on FSA loan application, district court abused its discretion by allowing government witness to testify as expert witness as to what debts should be reported.).

United States v. Finley, 301 F.3d 1000 (9th Cir. 2002)(Defense expert's testimony was both reliable and relevant; defense did not fail to give notice as to expert's testimony.).

Table of Contents

EX POST FACTO

United States v. Summers, 176 F.3d 1328 (11th Cir. 1999)(imposition of enhancement under amended Sentencing Guideline violates ex post facto clause).

United States v. Eske, 189 F.3d 536 (7th Cir. 1999)(Imposition of three years of government restraint upon revocation of supervised release violated ex post facto clause).

United States v. Miranda, 197 F.3d 1357 (11th Cir. 1999)(conviction for conspiracy to launder money violated ex post facto clause; sentence enhancement based on amount of funds laundered could not include transactions which predated enactment of statutes prohibiting money laundering).

Untied States v. Prather, 205 F.3d 1265 (11th Cir. 2000)(violation of ex post facto clause in levying special assessment of $100 per count).

Carmell v. Texas, ___U.S. ___, 120 S. Ct. 1620 (2000)(Convictions that rested solely on the testimony of victim who was 14 or 15 years at the time of the offense were barred by the ex post facto clause because conviction on testimony of victim's testimony alone was not previously permitted.).

United States v. Schulte, 264 F.3d 656 (6th Cir. 2001)(Application of 1996 MVRA violated ex post facto clause.).

United States v. De La Mata, 266 F.3d 1275 (11th Cir. 2001)(Applying bank fraud statute retroactively violated ex post facto clause.).

United States v. Evans, 272 F.3d 1069 (8th Cir. 2001)(Application of amended statutory maximum sentence under Mann Act violated ex post facto clause.).

Lyons v. Mendez, 303 F.3d 285 (3rd Cir. 2002)(Imposition of additional, retrospective punishment violated ex post facto clause.).

Table of Contents

EXTRANEOUS EVIDENCE - (404(b)

United States v. Aldrich, 169 F.3d 526 (8th Cir. 1999)(evidence of vacated convictions prejudicial)

United States v. Jackson, 180 F.3d 55 (2nd Cir. 1999)(erroneous instruction on element of threat to reputation which has no nexus to a claim of right in prosecution for transmission of extortionate threats to injure reputation).

United States v. James, 169 F.3d 1210 (9th Cir. 1999)(records concerning past violent acts of defendant's boyfriend were relevant to self-defense theory).

United States v. Mitchell, 172 F.3d 1104 (9th Cir. 1999)(evidence of defendant's poverty prejudicial and not harmless).

United States v. Bensimon, 172 F.3d 1121 (9th Cir. 1999)(admission of 17-year old conviction was abuse of discretion because prejudicial effect outweighed probative value).

United States v. Lozada-Riveram 177 F.3d 98 (1st Cir. 1999)(error to admit prior report of law enforcement agent and jailhouse statements to cooperating witness not harmless).

United States v. Marshall, 173 F.3d 1312 (11th Cir. 1999)(Evidentiary errors in allowing DEA agent to testify whether crack cocaine obtained by police from informant came from source other than the defendants and in admitting evidence of previous drug convictions required reversal.).

United States v. Heath, 188 F.3d 916 (7th Cir. 1999)(evidence of prior incident in which defendant was arrested on weapons charge not admissible under other acts rule).

United States v. Vega, 188 F.3d 1150 (9th Cir. 1999)(failure to provide reasonable notice of intent to rely on other acts evidence rendered the evidence inadmissible; not harmless error).

United States v. Lawrence, 189 F.3d 838 (9th Cir. 1999)(Abuse of discretion to allow evidence of circumstances of unconventional marriage relationship in mail fraud prosecution; error in failing to consider ability to pay in fashioning restitution order).

United States v. Tubol, 191 F.3d 89 (2nd Cir. 1999)(improper joinder of robbery counts and improper testimony about unrelated bombing).

United States v. Morley, 199 F.3d 129 (3rd Cir. 1999)(prior bad acts evidence of obtaining improper notarization of signatures on bonds was not relevant to issue of defendant's knowledge or intent in bank fraud/mail fraud prosecution).

United States v. Taylor, 210 F.3d 311 (5th Cir. 2000)(error to admit chart showing organization of alleged conspiracy where chart was misleading as to state of evidence; prior drug convictions of co-conspirators inadmissible).

United States v. Foster, 227 F.3d 1096 (9th Cir. 2000)(error to allow government to use as impeachment defendant's prior conviction for receiving stolen property without determining whether prior conviction involved deceitful or fraudulent conduct).

United States v. Cavender, 228 F.3d 792 (7th Cir. 2000)(erroneous exclusion of witness's drug conviction was not harmless as to one defendant).

United States v. Emeron Taken Alive, 262 F.3d 711 (8th Cir. 2001)(Character evidence of officer's reputation for aggressiveness and violence was not unfairly prejudicial to prosecution.).

United States v. McGowan, 274 F.3d 1251 (9th Cir. 2001)(inadmissible to admit testimony regarding structure of drug trafficking organizations in a non-conspiracy importation case).

United States v. Haywood, 280 F.3d 715 (6th Cir. 2002)(Improper admission of other act evidence, occurring four months after charged event, was reversible error.).

United States v. Schwarz, 283 F.3d 76 (2nd Cir. 2002)(defendant denied effective assistance of counsel by unwaivable conflict of interest; jury exposed to prejudicial extrinsic information; insufficient evidence to support conviction for obstruction of justice).

United States v. Howell, 285 F.3d 1263 (10th Cir. 2002)(District court's failure to conduct balancing test between probative value and prejudicial effect of evidence of prosecution witness's prior felony convictions was not harmless error.).

United States v. Pineda-Torres, 287 F.3d 860 (9th Cir. 2002)(Probative value of expert testimony regarding drug-trafficking organizations was outweighed by danger of unfair prejudice.).

United States v. Garcia, 291 F.3d 127 (2nd Cir. 2002)(Prior drug conviction was not admissible to show knowledge and intent; informant's lay opinion that defendant knew and understood asbestos conversation to be coded conversation was inadmissible; erroneous admission of evidence was not harmless.).

United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001)(probative value of evidence of structure of drug operation and of evidence of fees paid to drug couriers outweighed by danger of unfair prejudice; exclusion of admissible evidence relative to defendant's special psychological problems, evidence of arrest of prior owner of vehicle used by defendant to cross border, and instruction that erroneously lowered government's standard of proof on issue of knowledge not harmless error).

Table of Contents

FALSE STATEMENTS/PERJURY

United States v. Gatewood, 173 F.3d 983 (6th Cir. 1999)(indictment for making false statement not premised on statement which is facially false is defective, and evidence was insufficient).

United States v. Sorensen, 179 F.3d 823 (9th Cir. 1999)(unsigned loan application cannot support conviction for submitting false statement).

United States v. Walker, 191 F.3d 326 (2nd Cir. 1999)(insufficient evidence in one count of making false statements to INS).

United States v. Colon-Munoz, 192 F.3d 210 (1st Cir. 1999)(insufficient evidence to support conviction for misapplication of bank funds and making false statement on loan document).

United States v. Hunerlach, 197 F.3d 1059 (11th Cir. 1999)(insufficient evidence to support conviction for filing false statement; interest and penalties improperly included in "tax loss" for sentencing purposes).

United States v. Hart, 295 F.3d 451 (5th Cir. 2002)(In false statement prosecution on FSA loan application, district court abused its discretion by allowing government witness to testify as expert witness as to what debts should be reported.).

United States v. Culliton, 300 F.3d 1139 (9th Cir. 2002)(Questions on medical form for pilot certification were fundamentally ambiguous and could not form basis for conviction of making false statement.).

Table of Contents

FEDERAL JURISDICTION

United States v. Burch, 169 F.3d 666 (10th Cir. 1999)(district court lacked subject matter jurisdiction to try defendant under Indian Major Crimes Act).

United States v. Barragan-Mendoza, 174 F.3d 1024 (9th Cir. 1999)(district court lacked jurisdiction to amend sentence).

United States v. Maragh, 174 F.3d 1202 (11th Cir. 1999)(Magistrate must obtain on record explicit and personal consent of parties, not counsel, for magistrate to conduct voir dire).

United States v. Turchen, 187 F.3d 735 (7th Cir. 1999)(district court lacked jurisdiction to entertain government's motion to reduce sentence after notice of appeal filed).

United States v. Tasy, 203 F.3d 1060 (8th Cir. 2000)(insufficient nexus to interstate commerce to form basis for federal jurisdiction).

United States v. Morrison, 204 F.3d 1091 (11th Cir. 2000)(court lacked jurisdiction to correct sentence after 7 days).

United States v. Naiman, 211 F.3d 40 (2nd Cir. 2000)(Government failed to prove jurisdictional element for offense of bribery with respect to program receiving federal funds.).

United States v. Ginyard, 215 F.3d 83 (D.C. Cir. 2000)(district court lacked statutory authority to restrict defendant's use of computer and telephone while in prison).

United States v. Gatlin, 216 F.3d 207 (2nd Cir. 2000)(district court lacked jurisdiction over crime which occurred on property leased by the United States military in Germany).

United States v. Austin, 217 F.3d 595 (8th Cir. 2000)(court had no jurisdiction to alter sentence after seven days from entry of judgment even if legally erroneous).

United States v. Rea, 223 F.3d 741 (8th Cir. 2000)(church's use of materials purchased in interstate commerce and use of natural gas and fact that property in question was church property insufficient bases to satisfy jurisdictional requirement of federal arson statute).

United States v. Centracchio, 236 F.3d 812 (7th Cir. 2001)(Government appeal under 18 U.S.C. § 3731 of granting of motion to suppress is required prior to jeopardy attaching and divests district court of jurisdiction until the appeal is decided.).

United States v. Dennis, 237 F.3d 1295 (11th Cir. 2001)(bank fraud conviction not supported by sufficient evidence absent showing that bank was federally insured).

United States v. Martinez, 241 F.3d 1329 (11th Cir. 2001)(District court may exercise jurisdiction over motion for return of property filed after criminal proceedings have ended.).

United States v. Johnston, 258 F.3d 361 (5th Cir. 2001)(Consensual delegation of motion to vacate, set aside, or correct sentence to magistrate judge is unconstitutional).

United States v. Ward, 274 F.3d 1320 (11th Cir. 2001)(District court had authority to rule on motion for new trial; case remanded for that purpose).

United States v. Ruiz-Rodriguez, 277 F.3d 1281 (11th Cir. 2002)(Magistrate judge does not have authority to conduct fact-
finding and evidentiary portion of sentencing hearing in felony case.).

United States v. Errol D., Jr., 292 F.3d 1159 (9th Cir. 2002)(District court lacked jurisdiction to try juvenile for burglary of a government building under the Indian Major Crimes Act (IMCA), which requires that the offense be against the person or property of another Indian or another person.).

United States v. Petrie, 302 F.3d 1280 (11th Cir. 2002)(District court lacked jurisdiction to enter preliminary forfeiture order six months after sentencing.).

United States v. Sadler, 234 F.3d 369 (8th Cir. 2000)(district court lacked authority to reopen original sentence to recalculate incorrectly calculated alternate sentence).

United States v. Tran, 234 F.3d 798 (2nd Cir. 2000)(no jurisdiction to enter judgment or impose sentence for uncharged, aggravated crime of using or carrying short-barreled rifle where grand jury indictment not waived).

Table of Contents

FIFTH AMENDMENT - DUE PROCESS

United States v. Barnett, 175 F.3d 580 (7th Cir. 1990)(Denial of habeas petitioner's motion for trial continuance violated due process, and limit on voir dire re: gang bias violated 6th Amendment.).

United States v. Gatewood, 184 F.3d 440 (6th Cir. 1999)(three strikes statute violated due process for requiring proof by clear and convincing evidence that defendant's previous robberies were not violent).

Morris v. Cain, 186 F.3d 581 (5th Cir. 1999)(reasonable doubt instruction using terms "grave uncertainty," "actual or substantial doubt," and "moral certainty" violated due process clause).

Keating v. Hood, 191 F.3d 1053 (9th Cir. 1999)(habeas relief warranted because omission of mens rea element from instruction on securities charges violated due process and it is possible that jury relied on legally erroneous direct perpetrator theory).

United States v. Linick, 195 F.3d 538 (9th Cir. 1999)(statute prohibiting use of national forest system land without permit held unconstitutionally overbroad on its face; due process required dismissal).

United States v. Rivera, 201 F.3d 99 (2nd Cir. 2000)(five level increase for refusal to cooperate with government following conviction violated defendant's Fifth Amendment rights).

Wray v. Johnson, 202 F.3d 515 (2nd Cir. 2000)(unreliable showup identification violated due process-error not harmless).

Mata v. Johnson, 210 F.3d 324 (5th Cir. 2000)(minimal due process not met where petitioner sought to abandon review in federal habeas case and his competency was questioned).

Spence v. Superintendent, Great Meadow Cor. Fac., 219 F.3d 162 (2nd Cir. 2000)(due process violated when original enhanced sentence imposed without showing that defendant breached plea agreement; miscarriage of justice would excuse prisoner's procedural default).

Patterson v. Gomez, 223 F.3d 959 (9th Cir. 2000)(instruction in guilty phase of capital murder trial that jury presume that defendant was sane violated due process and was not harmless).

United States v. Arrieta, 224 F.3d 1076 (9th Cir. 2000)(waiver of right to appeal deportation order was not intelligent, thus violating his due process rights).

DePetris v. Kuykendall, 239 F.3d 1057 (9th Cir. 2001)(Erroneous exclusion of husband's journal deprived defendant of due process and was objectively unreasonable and not harmless.).

United States v. Rodriguez, 260 F.3d 416 (5th Cir. 2001)(Prosecutor's comment on defendant's post-Miranda, post-arrest silence violated his right to due process and was not harmless, but did not preclude retrial on double jeopardy grounds.).

United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001)(Use of defendant's prior nonjury juvenile adjudication to increase the statutorily mandated maximum punishment violated due process and was not harmless error.).

Phillips v. Woodford, 267 F.3d 966 (9th cir. 2001)(Petitioner's two colorable claims --that counsel was ineffective for presenting alibi defense and not "shootout" defense and that petitioner's due process rights were violated by prosecution witness's false testimony that she had not been offered a deal in return for her testimony–warranted evidentiary hearing in death penalty case.).

Davis v. Strack, 270 F.3d 111 (2nd Cir. 2001)(Failure to give justification charge in case where petitioner was robbed at gunpoint three times, raped, and had life threatened was violation of due process warranting habeas relief.).

Garceau v. Woodford, 275 F.3d 769 (9th Cir. 2001)(Jury instruction allowing jury to draw inference of criminal propensity from other crimes evidence violated Due Process and was not harmless.).

Packer v. Hill, 277 F.3d 1092 (9th Cir. 2002)(trial judge's statements and actions during jury deliberation unduly coercive; requiring defendant to wear leg brace during trial due process violation).

Moore v. Kinney, 278 F.3d 774 (8th Cir. 2002)(Definition of "exceptional depravity" aggravator in capital case unconstitutionally vague).

United States v. Guagliardo, 278 F.3d 868 (9th Cir. 2002)(Conditions of defendant's probation prohibiting his possession of any kind of pornography and from residing in close proximity to places frequented by children were unconstitutionally vague.).

Beem v. McKune, 278 F.3d 1108 (10th Cir. 2002)(Vacatur of sentences for rape and taking indecent liberties with child and instead sentencing for aggravated incest for which defendants were not charged violated due process and warranted habeas relief.).

Cockerham v. Cain, 283 F.3d 657 (5th Cir. 2002)(State convictions became final when out-of-time appeal was decided, not when earlier original direct appeal was decided; Louisiana Supreme Court's validation of "reasonable doubt" jury instruction found to be infirm in Cage v. Louisiana under due process clause was "contrary to established federal law," warranting habeas corpus relief.).

Newell v. Hanks, 283 F.3d 827 (7th Cir. 2002)(Petitioner's amendments to habeas corpus petition were substantially identical to original claims and related back to bring petition within one year grace period of AEDPA; government's possible substantial interference with defense witness's free and unhampered choice to testify warranted remand for evidentiary hearing to determine if due process violated .).

Valenzuela v. United States, 286 F.3d 1223 (11th Cir. 2002)(Admission at extradition hearing of affidavit containing inculpatory statements made by alleged fugitives to DEA agents, in breach of promise of confidentiality, violated due process.).

United States v. Sofsky, 287 F.3d 122 (2nd Cir. 2002)(Condition of supervised release prohibiting child pornography convict from using computer or internet without probation officer's approval inflicted a greater deprivation on defendant's liberty than was reasonably necessary and exceeded the broad discretion of the sentencing judge.).

Caldwell v. Bell, 288 F.3d 838 (6th Cir. 2002)(Instruction on lesser included offense of second degree murder, that malice was presumed where defendant was shown to have used weapon and death is clearly shown to have resulted from its use, violated due process; instruction had a substantial and injurious effect on verdict.).

United States v. Mulero-Joubert, 289 F.3d 168 (1st Cir. 2002)(failure of proof that defendants had actual or constructive notice that their presence in security zone was prohibited by law).

Packer v. Hill, 291 F.3d 569 (9th Cir. 2002)(Trial judge's statements and actions during jury deliberations were unduly coercive in violation of Defendant's Fourteenth Amendment due process rights.).

United States v. Lipscomb, 299 F. 3d 303 (5th Cir. 2002)(Conviction was reversed, sentence vacated and remanded where the court abused its discretion by sua sponte ordering an intra-district transfer over the defendant's objections and where the federal bribery statute was applicable to the defendant, but the defendant had preserved as-applied constitutional challenges to the statute.).

Campbell v. Rice, 302 F.3d 892 (9th Cir. 2002)(Exclusion of petitioner from in chambers hearing regarding conflict of interest of his counsel was violation of due process.).

Ellis v. Mullin, 312 F.3d 1201 (10th Cir. 2002)(Determination that pretrial psychiatric report which concluded that defendant was competent to stand trial did not bear on sanity at time of offense was an unreasonable determination of the facts, and exclusion of pretrial report violated due process.).

Table of Contents

FIFTH AMENDMENT - JEOPARDY/ESTOPPEL

United States v. Davis, 177 F.3d 552 (6th Cir. 1999)(when one juror requested to be excused from deliberations, it was error not to question all jurors about prejudicial , extraneous information; error not to merge conviction for stealing U.S. property into robbery conviction).

United States v. Stevens, 177 F.3d 579 (6th Cir. 1999)(double jeopardy barred retrial where key witness refused to testify after grant of immunity and jailing and there was no manifest necessity for mistrial).

United States v. Short, 181 F.3d 620 (5th Cir. 1999)(conviction on both conspiracy to distribute heroin and cocaine and leading, organizing and managing a continuing criminal enterprise was violation of double jeopardy because the first was a lesser included offense of the second).

Robinson v. United States, 196 F.3d 748 (7th Cir. 1999)(defendant who pled guilty did not thereby waive double jeopardy claim that defendant could not be convicted of both conspiracy and CCE; double jeopardy challenge not barred by Teague).

United States v. Brewer, 199 F.3d 1287 (11th Cir. 2000)(conviction under 21 U.S.C. § 841(a)(1) for possession with intent to distribute was lesser included offense of violation of 21 U.S.C. § 861(a)(1), using minor to distribute cocaine base, requiring reversal on double jeopardy grounds).

United States v. Beckett, 208 F.3d 140 (3rd Cir. 2000)(Restitution determined without considering defendant's ability to pay; sentencing concurrently on charge of armed bank robbery and on lesser included charge of robbery violated Double Jeopardy Clause.).

United States v. Hunt, 212 F.3d 539 (10th Cir. 2000)(Double jeopardy barred appeal by United States where district court entered judgment of acquittal).

United States v. Centracchio, 236 F.3d 812 (7th Cir. 2001)(government appeal under 18 U.S.C. § 3731 of granting of motion to suppress is required prior to jeopardy attaching and divests district court of jurisdiction until the appeal is decided).

United States v. White, 240 F.3d 127 (1st Cir. 2001)(drug distribution counts duplicative, for double jeopardy purposes, of count charging, on same conduct, distribution within 1,000 feet of school).

United States v. Morris, 247 F.3d 1080 (10th Cir. 2001)(Five convictions for firearm use during robbery violated Double Jeopardy Clause.).

Huss v. Graves, 252 F.3d 952 (8th Cir. 2001)(Retrial of defendant violated double jeopardy.).

Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001)(State's evidence insufficient to convict defendant beyond a reasonable doubt; Double Jeopardy Clause precluded state from retrying defendant).

Morris v. Reynolds, 264 F.3d 38 (2nd Cir. 2001)(Jeopardy attached upon acceptance of guilty plea so that New York Court of Appeals' determination that double jeopardy bar could not arise until imposition of sentence was contrary to clearly established federal law and warranted habeas relief.).

Vincent v. Jones, 292 F.3d 506 (6th Cir. 2002)(Granting motion for directed verdict was grant of acquittal such that jeopardy attached.).

United States v. Carbullido, 307 F.3d 957 (9th Cir. 2002)(Second arson prosecution, under doctrine of collateral estoppel, was barred by double jeopardy.).

United States v. Baptiste, 309 F.3d 275 (5th Cir. 2002)(Imposition of consecutive sentences for multiple uses of firearms to advance single drug conspiracy violated Double Jeopardy Clause.).

United States v. Holloway, 309 F.3d 649 (9th Cir. 2002)(Offense under Federal Bank Robbery Act

is included within Hobbs Act offense for double jeopardy purposes.).

Table of Contents

FIFTH AMENDMENT - SELF-INCRIMINATION/RIGHT TO TESTIFY

Mitchell v. United States, 199 S. Ct. 1307 (1999)(neither guilty plea nor statements at plea colloquy functioned as waiver of right to remain silent at sentencing; court could not draw adverse inference from defendant's silence at sentencing in determining facts relating to details of crime).

United States v. Burgess, 175 F.3d 1261 (11th Cir 1999)(error to fail to give requested no-adverse-inference instruction, and error not harmless).

United States v. Martinez, 181 F.3d 627 (5th Cir. 1999)(remand to allow defendant to state with specificity claim that his counsel did not allow him to testify).

Newman v. Hopkins, 192 F.3d 1132 (8th Cir. 1999)(criminal defendants have due process right to introduce voice exemplar without waiving 5th Amendment privilege against self-incrimination).

United States v. Rivera, 196 F.3d 144 (2nd Cir. 1999)(five-year increase of sentence based on defendant's refusal to cooperate with government violated defendant's Fifth Amendment right against self-incrimination).

Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000)(prosecutor's use of statement at scene of crime where defendant told officer to talk to his lawyer violated right against self-incrimination; failure of counsel to object on that ground was ineffective assistance; failure to investigate expert witness was ineffective assistance).

Gardner v. Johnson, 247 F.3d 551 (5th Cir. 2001)(psychiatrists's pre-examination warnings insufficient to apprise petitioner that statements might be used against him to secure death penalty in violation of Fifth Amendment self-incrimination clause; state court's determination to contrary was unreasonable interpretation of federal law).

United States v. Velarde-Gomez, 269 F.3d 1023 (9th Cir. 2001)(Admission of police officer's testimony about defendant's lack of emotional reaction when confronted with a large amount of marijuana in a gas tank violated defendant's Fifth Amendment privilege against self-incrimination.).

Table of Contents

FIFTH AMENDMENT - STATEMENTS/CONFESSIONS

Henry v. Kernan, 177 F.3d 1152 (9th Cir. 1999)(involuntary confession not harmless).

Alvarez v. Gomez, 185 F.3d 995 (9th Cir. 1999)(habeas petition granted where petitioner invoked his right to counsel during custodial interrogation and purported waivers of counsel were ineffective).

Dubria v. Smith, 197 F.3d 390 (9th Cir. 1999)(inflammatory statements in pre-trial interview required redaction; deficient performance by counsel in not objecting to characterization of defendant by prosecutor as "piece of garbage" and in suggesting that evidence not presented to jury supported murder charges).

Henry v. Kernan, 197 F.3d 1021 (9th Cir. 1999)( admission of involuntary confession not harmless).

United States v. Leon-Delfis, 203 F.3d 103 (1st Cir. 2000)(erroneous admission of confession not harmless).

Pickens v. Gibson, 206 F.3d 988 (10th Cir. 2000)(Admission of involuntary confession was not harmless error.).

United States v. Bryce, 208 F.3d 346 (2nd Cir. 2000)(Defendant's uncorroborated admissions insufficient to support possession and distribution convictions and did not fall under special circumstances exception to corroboration requirement.).

United States v. Coleman, 208 F.3d 786 (9th Cir. 2000)(involuntary statement evidenced by inducement to cooperate; evidence sufficient to convict for bank robbery but not for armed bank robbery).

Soffar v. Johnson, 237 F.3d 411 (5th Cir. 2000)(Police officer violated petitioner's Fifth Amendment right against self-incrimination in responding to his ambiguous request for an attorney, which rendered his subsequent uncounseled written statements violative of Miranda).

United States v. Hanson, 237 F.3d 961 (8th Cir. 2001)(failure to give Miranda warnings to defendant in custody).

Agnew v. Leibach, 250 F.3d 1123 (7th Cir. 2001)(habeas relief warranted because bailiff who tended to jury during trial testified concerning defendant's confession).

McGraw v. Holland, 257 F.3d 513 (6th Cir. 2001)(Petitioner's confession was extracted in violation of her right to remain silent, and repeated statements by petitioner during custodial interrogation that she did not want to talk about the rape were unambiguous invocations of her right to remain silent).

United States v. Green, 272 F.3d 748 (5th Cir. 2001)(District court's constitutional error in admitting acts which were testimonial in nature and which were made during custodial interrogation was not harmless beyond a reasonable doubt.).

Ghent v. Woodford, 279 F.3d 1121 (9th Cir. 2002)(habeas relief warranted for admission of confession in violation of Miranda and for erroneous admission of psychiatric testimony).

United States v, Aleman, 286 F.3d 86 (2nd Cir. 2002)(remand for court to create record of existence,

scope, and effect of immunity agreement).

United States v. Kim, 292 F.3d 969 (9th Cir. 2002)(Defendant was in custody triggering Miranda warning requirement despite fact that she initially came to store voluntarily to check on her son.).

Hill v. Anderson, 300 F.3d 679 (6th Cir. 2002)(Issue of petitioner's mental retardation raised serious issue regarding voluntariness of his confession, requiring remand for dismissal of unexhausted Atkins claim, stay of exhausted claims, stay conditioned on promptly seeking relief from state court on Atkins claim.).

Beaty v. Stewart, 303 F.3d 975 (9th Cir. 2002)(Where defendant entered into agreement that group sessions would be confidential, he was entitled to evidentiary hearing on claim that confession he gave to psychiatrist was rendered involuntary on ground of breach of confidentiality.).

Lam v. Kelchner, 304 F.3d 256 (3rd Cir. 2002)(State court's conclusion that petitioner's incriminating statements to officers were voluntary was objectively unreasonable, warranting habeas relief.).

United States v. San Juan-Cruz, 314 F.3d 384 (9th Cir. 2002)(Invalid Miranda warning was not harmless error.)

United States v. Orso, 234 F.3d 436 (9th Cir. 2000)(Post-Miranda statements were tainted by improperly obtained pre-Miranda incriminating statements.).

Table of Contents

FINES/RESTITUTION

United States v. Mancillas, 172 F.3d 341 (5th Cir. 1999)(no basis for restitution award).

United States v. Fore, 169 F.3d 104 (2nd Cir. 1999)(improper to order restitution for violations of Title 42).

United States v. Rea, 169 F.3d 1111 (8th Cir. 1999)(restitution payment schedule required reconsideration).

United States v. Meksian, 170 F.3d 1260 (9th Cir. 1999)(error to require restitution for loss sustained by lenders due to worthlessness of collateral).

United States v. Davoudi, 172 F.3d 1130 (9th Cir. 1999)(improper valuation of property for restitution purposes).

United States v. Kinlock, 174 F.3d 297 (2nd Cir. 1999)(district court cannot order restitution due and payable immediately when defendant incapable of making payments, and must develop reasonable payment schedule for defendant's term of incarceration).

United States v. Phillips, 174 F.3d 1074 (9th Cir. 1999)(defendant could a ppeal despite waiver in plea agreement where sentence violated VWPA because he was ordered to pay restitution beyond amounts directly related to tax fraud).

United States v. Checora, 175 F.3d 782 (10th Cir. 1999)(departures for extreme conduct not adequately supported; restitution order not supported by sufficient evidence).

United States v. Morrow, 177 F.3d 272 (5th Cir. 1999)(reversible error for defendants to be held responsible for losses in bank fraud conspiracy outside their period of employment).

United States v. Wells, 177 F.3d 603 (7th Cir. 1999)(district court failed to set restitution schedule).

United States v. Coates. 178 F.3d 681 (3rd Cir. 1999)(manner and schedule of payments necessary in restitution order in order to comply with MRVA).

United States v. King, 178 F.3d 1377 (11th Cir. 1999)(order of restitution to victim other than victim named in indictment erroneous).

United States v. Pandiello, 184 F.3d 682 (7th Cir. 1999)(delegation of responsibility of setting amount of restitution to Inmate Financial Responsibility Program was plain error).

United States v. Lawrence, 189 F.3d 838 (9th Cir. 1999)(Abuse of discretion to allow evidence of circumstances of unconventional marriage relationship in mail fraud prosecution; error in failing to consider ability to pay in fashioning restitution order).

United States v. Martin, 195 F.3d 961 (7th Cir. 1999)(Defendant's conduct did not cause entire loss; thus amount of restitution under MRVA was excessive).

United States v. Myers, 198 F.3d 160 (5th Cir. 1999)(plain error to require defendant to make immediate payment of $40,000 in restitution when he was unable to do so).

United States v. Johnston, 199 F.3d 1015 (9th Cir. 1999)(district court was required to determine there was no duplication of restitution, including moneys forfeited to the government and those paid by co-defendants).

United States v. Kubick, 199 F.3d 1051 (9th Cir. 1999)(Remanded for restitution under MRVA; amount could not exceed fine about which defendant advised at Rule 11 colloquy).

United States v. Joyner, 201 F.3d 61 (2nd Cir. 2000)(district court did not properly consider 18 U.S.C. § 3664 factors in setting restitution).

United States v. Carboni, 204 F.3d 39 (2nd Cir. 2000)(resentencing required as to restitution).

United States v. Romines, 204 F.3d 1067 (11th Cir. 2000)(defendant could not be required to pay restitution to theft victims since crime of conviction was escape and government was victim).

United States v. Thayer, 204 F.3d 1352 (11th Cir. 2000)(amount of restitution ordered was abuse of discretion).

United States v. Miller, 205 F.3d 1098 (9th Cir. 2000)(district court had authority to modify portion of defendant's fine that was expressly made a condition of supervised release).

United States v. Beckett, 208 F.3d 140 (3rd Cir. 2000)(Restitution determined without considering defendant's ability to pay; sentencing concurrently on charge of armed bank robbery and on lesser included charge of robbery violated Double Jeopardy Clause.).

United States v. Ubakanma, 215 F.3d 421 (4th Cir. 2000)(failure to make factual findings regarding restitution required remand).

United States v. Norris, 217 F.3d 262 (5th Cir. 2000)(order of restitution to defendant's former law partners was improper in false declaration prosecution).

United States v. Walton, 217 F.3d 443 (7th Cir. 2000)(remand for factual findings re: amount of restitution).

United States v. Sager, 227 F.3d 1138 (9th Cir.2000)(remand required to determine loss amount and appropriateness of fine without considering whether fine was undue burden to defendant's dependents).

United States v. Rodrigues, 229 F.3d 842 (9th Cir. 2000)(reversed for improper determination of restitution).

United States v. Simmonds, 235 F.3d 827 (3rd Cir. 2000)(victim's lost insurance premium discounts not "property" damaged by arson for restitution purposes).

United States v. Behrman, 235 F.3d 1049 (7th Cir. 2000)(remand for restitution determination).

United States v. Mustafa, 238 F.3d 485 (3rd Cir. 2001)(failure to inquire into defendant's ability to pay restitution ordered).

United States v. Kadonsky, 242 F.3d 516 (D.C. Cir. 2001)(Court may not impose fine without making findings about defendant's ability to pay.).

United States v. Banks-Giombetti, 245 F.3d 949 (7th Cir. 2001)(district court lacked authority to sanction defendant with costs of jury venire).

United States v. Scott, 250 F.3d 550 (7th Cir. 2001)(Mere possession of access device completed the crime so that restitution for amount of loss was not warranted because this was not charged conduct.).

United States v. Searing, 250 F.3d 665 (8th Cir. 2001)(error to overrule objection to restitution figure solely based on objected-to facts in PSR and probation officer's unsworn comments about what a victim had told him).

United States v. Bush, 252 F.3d 859 (8th Cir. 2001)(victims who did not purchase unregistered securities from Defendant not entitled to restitution).

United States v. Najjor, 255 F.3d 979 (9th Cir. 2001)(District court erred in failing to consider all evidence prior to ordering restitution).

United States v. Jolivette, 257 F.3d 581 (6th Cir. 2001)(Restitution order for undetermined amount was void and unenforceable 90 days after sentencing hearing).

United States v. Gordon K., 257 F.3d 1158 (10th Cir. 2001)(Rule providing that court may correct sentence imposed as result of arithmetical, technical or other clear error applies to juvenile proceedings but failure to order restitution was not clear error that could be corrected under this rule).

United States v. Schulte, 264 F.3d 656 (6th Cir. 2001)(Application of 1996 MVRA violated ex post facto clause.).

United States v. Lomow, 266 F.3d 1013 (9th Cir. 2001)(receiver's expenses incurred after defendant's assets were seized improperly included in restitution order).

United States v. McGiffen, 267 F.3d 581 (7th Cir. 2001)(abuse of discretion to require, without an evidentiary hearing and findings, funds used from seizure of home to pay public defender; inadequate findings to support obstruction enhancement).

Weinberger v. United States, 268 F.3d 346 (6th Cir. 2001)(Defendant could raise ineffective assistance of counsel claims where issues properly preserved; court abused discretion in not considering financial needs and earning ability of disbarred attorney defendant in ordering restitution.).

United States v. Shepard, 269 F.3d 884 (7th Cir. 2001)(Where hospital was not victim of mail fraud and money laundering, it was improper to order restitution to the hospital under the MVRA.).

United States v. Follet, 269 F.3d 996 (9th Cir. 2001)(Order of restitution to psychological counseling center which provided free counseling was improper.).

United States v. Elias, 269 F.3d 1003 (9th Cir. 2001)(sentence vacated to correct improper restitution order in hazardous waste case).

United States v. Young, 272 F.3d 1052 (8th Cir. 2001)(uncertain estimate by victim insufficient to support lost profits portion of restitution award).

United States v. Yang, 281 F.3d 534 (6th Cir. 2002)(insufficient evidence to support statutory maximum fine).

United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002)(remand to consider appropriateness of $10 million fine, in addition to restitution, for mail fraud and program fraud).

United States v. Onyiego, 286 F.3d 249 (5th Cir. 2002)(legal fees for defending civil collection action not properly included in restitution order).

United States v. Butler, 297 F.3d 505 (6th Cir. 2002)(Delegation by district court to Tax Court or to the IRS for restitution determination in tax evasion prosecution was plain error.).

United States v. Harris, 302 F.3d 72 (2nd Cir. 2002)(remand of restitution order for consideration of defendant's ability to pay).

United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002)(Delegation of restitution payment schedule to probation office was improper.).

United States v. Davis, 306 F.3d 398 (6th Cir. 2002)(error in failing to set restitution schedule).

United States v. Quintieri, 306 F.3d 1217 (2nd Cir. 2002)(Imposition of same fine on remand was plain error where fine amount was no longer appropriate under Sentencing Guidelines, given reduction in base offense level.).

United States v. Overholt, 307 F.3d 1231 (10th Cir. 2002)(Defendants did not commit mail fraud; remand required for court to set restitution schedule.).

United States v. Quarrell, 310 F.3d 664 (10th Cir. 2002)(In prosecution under the Archaeological Resources Protection Act, district court abused its discretion in ordering restitution for loss to architectural value; insufficient findings to support obstruction of justice enhancement.).

United States v. Goldin, 311 F.3d 191 (3rd Cir. 2002)(Special assessment exceeded amount allowed by statute.).

United States v. Cutter, 313 F.3d 1 (1st Cir. 2002)(causation not established to justify imposition of $20,000 fine under MVRA).

United States v. Tran, 234 F.3d 798 (2nd Cir. 2000)(statutory factors not considered in imposing restitution).

United States v. Lewis, 235 F.3d 215 (4th Cir. 2000)(Failure to make factual findings required remand on restitution issue.).

Table of Contents

FIREARMS

United States v. Taylor, 176 F.3d 331 (6th Cir. 1999)(conviction for using firearm during commission of crime of violence reversed where defendant delivered firearm to co-conspirator days before the alleged robbery).

United States v. Stotts, 176 F.3d 880 (6th Cir. 1999) ("use" and "carry" prongs of 18 U.S.C. §924(c) not met requiring reversal for insufficient evidence).

United States v. Martin, 180 F.3d 965 (8th Cir. 1999)(insufficient evidence to support conviction for being felon in possession of firearm–constructive possession issue).

United States v. Corrales, 183 F.3d 1116 (9th Cir. 1999)(dismissal required in prosecution for felon-in-possession of firearm where civil rights restored for prior felony and no express restriction under state law).

United States v. Layne, 192 F.3d 556 (6th Cir. 1999)(insufficient evidence to support crack cocaine conviction; defendant did not "use" or "carry" firearm during and in relation to drug trafficking offense).

United States v. Valdez, 195 F.3d 544 (9th Cir. 1999)(motion to vacate firearms conviction, premised on Bailey, was timely when filed prior to Bousley decision, which recognized right to raise Bailey claim on collateral review).

United States v. Smith, 196 F.3d 676 (6th Cir. 1999)(district court double counted when it applied specific offense characteristics for firearm discharge, use or possession in conviction under 18 U.S.C. § 922(g)).

U.S. v. Fowler, 198 F.3d 808 (11th Cir. 999) (Federal law prohibiting a convicted felon from carrying a firearm does not apply to a defendant whose civil and political rights were restored by the State without limitations.).

United States v. Cover, 199 F.3d 1270 (11th Cir. 2000)(Evidence in robbery prosecution showed firearms were "otherwise used" and not merely "brandished," requiring remand to apply the six-level enhancement and not the five-level enhancement for brandishing.).

United States v. Ahmad, 202 F.3d 588 (2nd Cir. 2000)(counting seven legal firearms improper in sentencing on conviction for possession of illegal firearms).

Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000)(Armed felons could be barred from eligibility for sentence reduction based on completion of treatment program; but restriction could not be retroactively applied).

United States v. Hill, 210 F.3d 861 (8th Cir. 2000)(In prosecution for receiving a firearm shipped in interstate commerce while under indictment, defendant was not "under indictment" at time of alleged offense.).

United States v. Tait, 202 F.3d 1320 (11th Cir. 2000)(defendant who had civil rights restored not subject to prosecution under felon-in-possession statute; defendant had license to carry firearm and was, therefore, not subject to conviction for possessing firearm in school zone).

Castillo v. United States, ___U.S. ___, 120 S. Ct. 2090 (2000)(Statute which increases penalty for using or carrying a firearm in relation to a crime of violence when that firearm is a "machinegun" states element of a separate, aggravated crime, requiring proof of that element beyond a reasonable doubt, relying on Jones v. United States, 526 U.S. 227, 234 (1999).).

United States v. Howard, 214 F.3d 361 (2nd Cir. 2000)(insufficient evidence that defendant knew handgun in his possession had been stolen in 18 U.S.C. § 922 prosecution).

United States v. Sanders, 240 F.3d 1279 (10th Cir. 2001)(insufficient evidence that defendant had knowledge attachment to weapon was a silencer).

United States v. Stewart, 246 F.3d 728 (D.C. Cir. 2001)(defendant who receives a gun in return for drugs has not "used" a gun during and in relation to a drug trafficking offense under Bailey).

United States v. Hutton, 252 F.3d 1013 (8th Cir. 2001)(Under prior version of guidelines, concealed inoperable replica of revolver was not "brandished, displayed, or possessed" during robbery.).

United States v. Iiland, 254 F.3d 1264 (10th Cir. 2001)(Evidence insufficient to support conviction for firearm possession in furtherance of drug trafficking activity).

United States v. White, 258 F.3d 374 (5th Cir. 2001)(Indictment's failure to charge an offense was not waived by guilty plea, waiver of appeal in plea agreement, or failure to raise the argument in initial appellate brief; convictions under Texas statutes proscribing reckless conduct and terroristic threats were not convictions of a "crime of domestic violence," and thus could not serve as predicate convictions for 18 U.S.C. § 922(g)(9)).

United States v. Laskie, 258 F.3d 1047 (9th Cir. 2001)(Defendant's honorable discharge operated to set aside prior felony conviction and required reversal of conviction under 18 U.S.C. § 922(g).).

United States v. Holloway, 259 F.3d 1199 (9th Cir. 2001)(evidence insufficient to prove armed bank robbery and carrying a firearm in relation to a violent crime).

United States v. Osborne, 262 F.3d 486 (5th Cir. 2001)(Convictions for which defendant had had his civil rights restored were not prior felonies in possession of ammunition prosecution.).

United States v. O'Malley, 265 F.3d 353 (6th Cir. 2001)(inadequate factual findings to prove foreseeability by defendant that co-
conspirators would take illegal weapon from gun store).

United States v. Akins, 276 F.3d 1141 (9th Cir. 2002)(Defendant did not waive right to counsel before pleading guilty to underlying misdemeanor domestic violence charge, precluding conviction of possession of firearm after conviction of misdemeanor domestic violence crime.).

United States v. Herrera, 289 F.3d 311 (5th Cir. 2002)(insufficient evidence to show that defendant was "unlawful user" of cocaine so that conviction of possession of firearm by unlawful user could not stand).

United States v. Spruill, 292 F.3d 207 (5th Cir. 2002)(Defendant could not be convicted of possessing a firearm while subject to a protective order where federal requirement that order be entered "after a hearing" and no hearing was conducted.).

Table of Contents

FRAUD/THEFT

United States v. Blasini-Lluberas, 169 F.3d 57 (1st Cir. 1999)(insufficient evidence of misapplication of bank funds)

United States v. Ensminger, 174 F.3d 1143 (10th Cir. 1999)(district court miscalculated intended loss in prosecution for violation of false document statute).

United States v. Howerter, 248 F.3d 198 (3rd Cir. 2001)(Defendant did not commit federal bank larceny when, as treasurer authorized to write checks for private organization, he cashed unauthorized checks payable to himself.).

United States v. Whitehead, 176 F.3d 1030 (8th Cir. 1999)(prejudicial error in failing to give instruction on "insolvency" when it was element of crime of bank fraud and false statement).

United States v. Morrow, 177 F.3d 272 (5th Cir. 1999)(reversible error for defendants to be held responsible for losses in bank fraud conspiracy outside their period of employment).

United States v. Guadagna, 183 F.3d 122 (2nd Cir. 1999)(evidence insufficient to support defendant's conviction on second count of wire fraud stemming from phone call made as part of fraudulent sweepstakes telemarketing scheme).

United States v. Laljie, 184 F.3d 180 (2nd Cir. 1999)(insufficient evidence of mail fraud).

United States v. Ward, 197 F.3d 1076 (11th Cir. 1999)(insufficient evidence of making false oaths in bankruptcy fraud prosecution, but sufficient evidence to sustain conviction for money laundering).

United States v. Hartsel, 199 F.3d 812 (6th Cir. 1999)(receipt of mailed bank statements by defendant did not constitute "use of the mails" in mail fraud prosecution).

United States v. Dennis, 237 F.3d 1295 (11th Cir. 2001)(bank fraud conviction not supported by sufficient evidence absent showing that bank was federally insured).

United States v. Samaria, 239 F.3d 228 (2nd Cir. 2001)(insufficient evidence to sustain conviction for credit card fraud).

United States v. Marshall, 248 F.3d 525 (6th Cir. 2001)(Dual larceny conviction, one for taking money with intent to steal and the other for receiving money stolen from bank, was improper; insufficient evidence to support money laundering conviction.).

United States v. Fix, 264 F.3d 532 (5th Cir. 2001)(Defendant who successfully moved to set aside sentence of probation following arson conviction had not been convicted of a felony making it unlawful for him to possess a firearm.).

Valansi v. Ashcroft, 278 F.3d 203 (3rd Cir. 2002)(no requisite showing of intent to defraud in embezzlement case so as to justify removal of alien for aggravated felony).

United States v. Geborde, 278 F.3d 926 (9th Cir. 2002)(Defendant lacked intent to defraud in connection with his failure to register drug manufacturing facility, and misbranding of drug did not occur while drug was held for sale.).

United States v. Frost, 281 F.3d 654 (7th Cir. 2002)(evidence insufficient to support substantive fraud conviction, and net loss required to be recalculated under loss calculation guideline).

United States v. Leveque, 283 F.3d 1098 (9th Cir. 2002)(ambiguous mail fraud indictment; insufficient evidence to show that defendant had actual knowledge that elk was taken in violation of Montana law and insufficient evidence to support conspiracy allegations.).

United States v. Handakas, 286 F.3d 92 (2nd Cir. 2002)(reversed for multiplicitous counts in indictment and for vague "honest services" provision of mail fraud statute; failure of predicate mail fraud counts precluded conviction on money laundering charge).

United States v. McCarrick, 294 F.3d 1286 (11th Cir. 2002)(insufficient evidence of specific intent to defraud bank).

United States v. Pendergraft, 297 F.3d 1198 (11th Cir. 2002)(There is no extortion under the Hobbs Act where there are threats to sue the county unless it settled; no scheme to defraud under the mail fraud statute is present where false affidavits are attached to a motion and mailed to the opponent).

United States v. Overholt, 307 F.3d 1231 (10th Cir. 2002)(Defendants did not commit mail fraud.).

United States v. Peter, 310 F.3d 709 (11th Cir. 2002)(Coram nobis lay where defendant's alleged misrepresentations on application for alcoholic beverage licenses did not violate mail fraud statute.).

United States v. Thomas, 315 F.3d 190 (3rd Cir. 2002)(Defendant's conduct did not support bank fraud conviction because she intended to defraud bank's customer, not bank.).

Table of Contents

GRAND JURY

In re Sealed Case No. 99-3091, 192 F.3d 995 (D.C. Cir. 1999)(excerpt from newspaper article did not amount to prima facie violation of the grand jury secrecy rule).

United States v. Pigee, 197 F.3d 879 (7th Cir. 1999)(constructive amendment by instruction to jury that government had to prove defendant made building available for unlawful purpose deprived defendant of Fifth Amendment right to indictment by grand jury).

United States v. Prentiss, 206 F.3d 960 (10th Cir. 2000)(Indian status of defendant and victim must be alleged in indictment charging violation of Indian Country Crimes Act—failure to do so deprives defendant of Fifth Amendment right to be tried only on charges presented in indictment returned by a grand jury.).

United States v. Tran, 234 F.3d 798 (2nd Cir. 2000)(no jurisdiction to enter judgment or impose sentence for uncharged, aggravated crime of using or carrying short-barreled rifle where grand jury indictment not waived; statutory factors not considered in imposing restitution).

Rideau v. Whitley, 237 F.3d 472 (5th Cir. 2000)(delay in filing petition did not justify dismissal; prima facie equal protection violation occurred in selection of grand jury resulting from racial discrimination).

Table of Contents

GUILTY PLEAS

United States v. Andrades, 169 F.3d 131 (2nd Cir. 1999)(failure to determine factual basis for plea and to determine that defendant understood nature of the charge).

United States v. Livorsi, 180 F.3d 76 (2nd Cir. 1999)(inadequate plea colloquy due to incomplete inquiry into defendant's mental state).

United States v. Hernandez-Wilson, 186 F.3d 1 (1st Cir. 1999)(defendant misled as to eligibility for sentencing under safety valve, and thus was entitled to have plea set aside).

United States v. Gomez-Orozco, 188 F.3d 422 (7th Cir. 1999)(defendant, who pleaded guilty to illegal re-entry by an alien, entitled to withdraw plea in light of new evidence that he is an American citizen).

United States v. Damon, 191 F.3d 561 (4th Cir. 1999)(remand necessary to determine if failure to determine at plea colloquy extent defendant's medication had on ability to make voluntary plea was harmless error).

United States v. Portillo-Cano, 192 F.3d 1246 (9th Cir. 1999)(Court of Appeals had jurisdiction to determine whether plea was valid in order to assess enforceability of defendant's purported waiver of right to appeal).

United States v. Johnson, 194 F.3d 657 (5th Cir. 1999)(in prosecution for church burning under federal arson statute, factual basis for guilty plea insufficient where only evidence of interstate commerce nexus was out-of-state insurer's payment to church and fact that church was a dues-paying member of an organization that funded a national body).

United States v. Blackwell, 199 F.3d 623 (2nd Cir. 1999)(where district court did not draw attention to appeal waiver and did not discuss with defendant elements of charged crime, plea was not knowing, intelligent and voluntary).

United States v. Hernandez. 203 F.3d 614 (9th Cir. 2000)(denial of self-representation violated Sixth Amendment and rendered defendant's guilty plea involuntary).

United States v. Guess, 203 F.3d 1143 (9th Cir. 2000)(government waived potential procedural default by defendant, and record did not support guilty plea).

United States v. Fernandez, 205 F.3d 1020 (7th Cir. 2000)(defendant was not sufficiently aware of conspiracy crime to which he pleaded guilty and not aware of minimum mandatory sentence).

United States v. Angeles-Mascote, 206 F.3d 529 (5th Cir. 2000)(Alien stopped at port of entry had not illegally entered United States; plain error found in acceptance of guilty plea.).

United States v. Hernandez-Fraire, 208 F.3d 945 (11th Cir. 2000)(plain error for district court to fail to ensure that defendant understood his rights before accepting plea).

United States v. James, 210 F.3d 1342 (11th Cir. 2000)(Plea colloquy did not adequately establish that defendant understood the nature of the charge.).

United States v. Vonn, 211 F.3d 1109 (9th Cir. 2000)(District court's failure to advise defendant at plea hearing of right to counsel at trial was not harmless error.).

United States v. Halter, 217 F.3d 551 (8th Cir. 2000)(Actual punishment as determined under the guidelines, as opposed to statutory maximum, is the proper basis for identifying the "more serious charge" for purposes of requirement that defendant, in seeking to set aside guilty plea under Bailey decision for use and carrying firearm during and in relation to drug trafficking offense, must show actual innocence of any and all "more serious charges" foregone by government in the course of plea bargaining to overcome procedural default of challenge to guilty plea).

United States v. Barrios-Gutierrez, 218 F.3d 1118 (9th Cir. 2000)(defendant entitled to replead or have sentence reduced to maximum stated by district court at plea colloquy where court failed to properly advise defendant of maximum possible penalty).

United States v. Vonn, 224 F.3d 1152 (9th Cir. 2000)(failure to advise defendant during guilty plea colloquy of his right to counsel at trial was not harmless).

United States v. Santo, 225 F.3d 92 (1st Cir. 2000)(court's understatement of minimum mandatory sentence violated rule governing plea hearings and affected defendant's substantial rights).

United States v. Gandia-Maysonet, 227 F.3d 1 (1st Cir.)(district court improperly told defendant at plea colloquy what it would take for government to prove scienter element of carjacking).

United States v. Goodall, 236 F.3d 700 (D.C. 2001)(Where parties agreed on 57-71 guideline range, but actual guideline range was 70-87 months, and entered into an 11(e)(1)(C) plea agreement, district court erred by failing to consider the entire 57-71 stipulated guideline range and not just the overlapping 70-71 month guideline range; if court meant to accept plea agreement, but modified it to the range suggested by the PSR, then the defendant must be resentenced with the court considering the entire 57-71 month range; if the court rejected the plea agreement, then the court must give the defendant an opportunity to withdraw his plea [recognizing split of authority with 7th and 9th Circuits agreeing with this decision and the 1st and 4th Circuits disagreeing].).

United States v. Abbott, 241 F.3d 29 (1st Cir. 2001)(Failure of government to disclose at plea linkage between plea agreements with defendant and his mother, who was charged with witness tampering,, rendered plea proceeding defective.).

United States v. Harrison, 241 F.3d 289 (2nd Cir 2001)(Error in failure to inform defendant during plea colloquy that he was subject to minimum mandatory sentence was not harmless).

United States v. Ruiz, 257 F.3d 1030 (9th Cir. 2001)("Fair and just reason" standard, rather than "manifest injustice" standard, applies to defendant's motion to withdraw guilty plea prior to sentencing but after a codefendant had been sentenced).

United States v. Carr, 271 F.3d 172 (4th Cir. 2001)(insufficient factual basis to support guilty plea to arson charge because interstate commerce element not established).

United States v. Lujano-Perez, 274 F.3d 219 (5th Cir. 2001)(Failure to explain nature of crime charged during guilty plea colloquy in case in which indictments were never read and there were no written plea agreements was not harmless error.).

United States v. Stubbs, 279 F.3d 402 (6th Cir. 2002)(Misinformation regarding sentencing rendered defendant's guilty plea involuntary so that appeal waiver was not binding.).

United States v. Shaker, 279 F.3d 494 (7th Cir. 2002)(Where district court defers accepting guilty plea, defendant has unfettered right to withdraw it.).

United States v. Moyer, 282 F.3d 1311 (10th Cir. 2002)(remand to allow defendant to withdraw guilty plea where defendant not made fully aware of genuine consequences of his plea).

United States v. Day, 285 F.3d 1167 (9th Cir. 2002)(Counsel's advice that defendant would only be allowed to make sentencing entrapment argument if he proceeded to trial deprived defendant of opportunity intelligently to consider his plea offer and to make informed decision about it and was prejudicial.).

United States v. Spruill, 292 F.3d 207 (5th Cir. 2002)(Court could reverse based on no determination of factual basis for plea despite plea agreement limiting appeal to Second and Fifth Amendment issues.).

Davis v. Combes, 294 F.3d 931 (7th Cir. 2002)(Defendant was entitled to withdraw his plea freely and without inquiry where plea had not yet been accepted by the court.).

United States v. Reyes, 300 F.3d 555 (5th Cir. 2002)(plain error for district court not to mention sentencing guidelines).

United States v. Rea, 300 F.3d 952 (8th Cir. 2002)(In prosecution under federal arson statute, there was an insufficient factual basis to support conditional plea because of insufficient evidence that church annex was used in interstate commerce or in any activity affecting interstate commerce.).

United States v. Dominguez Benitez, 310 F.3d 1221 (9th Cir. 2002)(Failure of district court to advise defendant before his plea that he could not withdraw his plea affected his substantial rights, and thus amounted to plain error.).

United States v. Seesing, 234 F.3d 456 (9th Cir. 2000)(Error in not complying with rule regarding acceptance of guilty plea was not harmless.).

Table of Contents

HABEAS CORPUS/2255

•ACTUAL INNOCENCE CLAIMS

United States v. Jones, 172 F.3d 381 (5th Cir. 1999)(inmate entitled to present evidence of actual innocence on motion to vacate).

United States v. Mikalajunas, 186 F.3d 490 (4th Cir. 1999)(Actual innocence exception to procedural default applies in noncapital sentencing only in the context of eligibility for application of a career offender or other habitual offender provision under sentencing guidelines.).

Johnson v. United States, 186 F.3d 876 (8th Cir. 1999)(failure to hold evidentiary hearing to determine whether defendant was actually innocent of crime of conviction or any more serious charges which were dropped in exchange for guilty plea was error).

United States v. Garth, 188 F.3d 99 (3rd Cir. 1999)(movant entitled to show that he was actually innocent of firearms offense so as to overcome procedural default of challenge to guilty plea for that offense).

Hampton v. United States, 191 F.3d 395 (6th Cir. 1999)(habeas motion remanded to determine issue of actual innocence).

Latorre v. United States, 193 F.3d 1035 (8th Cir. 1999)(petitioner entitled to hearing on claim of actual innocence despite his admissions during plea colloquy and via affidavit in subsequent post-conviction proceedings).

United States v. Halter, 217 F.3d 551 (8th Cir. 2000)(Actual punishment as determined under the guidelines, as opposed to statutory maximum, is the proper basis for identifying the "more serious charge" for purposes of requirement that defendant, in seeking to set aside guilty plea under Bailey decision for use and carrying firearm during and in relation to drug trafficking offense, must show actual innocence of any and all "more serious charges" foregone by government in the course of plea bargaining to overcome procedural default of challenge to guilty plea.).

Wyzykowski v. Dep't of Corrections, 226 F.3d 1213 (11th Cir. 2000)(remanded to determine if petitioner could make showing of actual innocence before determining if AEDPA limitations provision was unconstitutional as violation of habeas corpus Suspension Clause).

Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002)(Actual innocence claim, if sustained, overcomes defense based on time-barred claims.).

United States v. Couto, 311 F.3d 179 (2nd Cir. 2002)(District court had discretion to evaluate defendant's claim of innocence.).

•ADEQUATE AND INDEPENDENT STATE LAW GROUND

La Crosse v. Kernan, 211 F.3d 468 (9th Cir. 2000)(Federal habeas claim not defaulted because state court decision was based on adequate and independent state law ground; petitioner was entitled to evidentiary hearing.).

Morris v. Woodford, 229 F.3d 775 (9th Cir. 2000)(no independent and adequate state law ground for denying relief in state court).

Moore v. Bryant, 295 F.3d 771 (7th Cir. 2002)(State court did not clearly rely on waiver as independent and adequate state law ground for denying ineffective assistance of counsel claim.).

Table of Contents

•CERTIFICATES OF APPEALABILITY

Hohn v. United States, 193 F.3d 921 (8th Cir. 1999)(Claim under Bailey v. United States was constitutional in nature entitling defendant to certificate of appealability.).

Slack v. McDaniel, ___U.S. ___, 120 S. Ct. 1595 (2000)(When district court denies habeas petition on procedural grounds without reaching merits of underlying constitutional claim, a COA should issue if the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling; a habeas petition filed after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a "second or successive petition" under the AEDPA.).

Paredes v. Atherton, 224 F.3d 1161 (10th Cir. 2000)(COA properly granted where district court's procedural ruling was debatable and petitioner alleged ineffective assistance of counsel in connection with entry of guilty plea).

Morris v. Woodford, 229 F.3d 775 (9th Cir. 2000(Petitioner presented colorable constitutional claims sufficient to warrant issuance of COA.).

Petrocelli v. Angelone, 248 F.3d 877 (9th Cir. 2001)(Petitioner entitled to COA with respect to claims district court found to be procedurally defaulted.).

Murphy v. Ohio, 263 F.3 466 (6th Cir. 2001)(Denial of COA was unwarranted where petitioner did not request COA from district court and where district court did not analyze whether defendant made substantial showing of the denial of a constitutional right.).

Hall v. Scott, 292 F.3d 1264 (10th Cir. 2002)(Petitioner made substantial and timely showing of denial of a constitutional right so as to require issuance of COA.).

Castro v. United States, 310 F.3d 900 (6th Cir. 2002)(District court is required to issue or deny COA after defendant files notice of appeal, even though defendant did not move for COA.).

Table of Contents

•EVIDENTIARY HEARING

Singleton v. Johnson, 178 F.3d 381 (5th Cir. 1999)(evidentiary hearing required on issue of whether counsel knew of defendant's desire to appeal).

Johnson v. United States, 186 F.3d 876 (8th Cir. 1999)(failure to hold evidentiary hearing to determine whether defendant was actually innocent of crime of conviction or any more serious charges which were dropped in exchange for guilty plea was error).

Young v. Weston, 192 F.3d 870 (9th Cir. 1999)(evidentiary hearing necessary on ex post facto and double jeopardy claims because petitioner alleged facts which, if proven, would establish punitive nature of his confinement).

Latorre v. United States, 193 F.3d 1035 (8th Cir. 1999)(petitioner entitled to hearing on claim of actual innocence despite his admissions during plea colloquy and via affidavit in subsequent post-conviction proceedings).

Williams v. Taylor, ___U.S.___, 120 S. Ct. 1479 (2000)(On issue of whether prisoner is entitled to evidentiary hearing on claim for which prisoner has failed to develop factual basis in state court proceedings, failure to develop factual basis is not established and prisoner is entitled to evidentiary hearing unless there is lack of diligence or some greater fault attributable to prisoner or prisoner's counsel; petitioner was entitled to evidentiary hearing on his claims of juror bias and prosecutorial misconduct.).

United States v. Felici, 208 F.3d 667 (8th Cir. 2000)(Petitioner entitled to evidentiary hearing on issue of whether intended drug related materials were in fact utilized or intended to be utilized for manufacture, storage, or transportation of controlled substances.).

United States v. Chacon-Palomares, 208 F.3d 1157 (9th Cir. 2000)(Evidentiary hearing required on claim of ineffective assistance of counsel.).

Amiel v. United States, 209 F.3d 195 (2nd Cir. 2000)(hearing required on petitioner's motion to vacate due to alleged conflict of interest).

Mayes v. Gibson, 210 F.3d 1284 (10th Cir. 2000)(Evidentiary hearing required on issue of ineffective assistance of counsel.).

Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000)(Petitioner was entitled to evidentiary hearing on his motion for substitute appointed counsel and on his claim of ineffective assistance of counsel.).

Brown v. Johnson, 224 F.3d 461 (5th Cir. 2000)(inadequate evidentiary hearing on claims for which state court failed to make factual findings).

Morris v. Woodford, 229 F.3d 775 (9th Cir. 2000) (Petitioner presented colorable constitutional claims sufficient to warrant evidentiary hearing).

Koskela v. United States, 235 F.3d 1148 (8th Cir. 2001)(Failure to hold evidentiary hearing on issue of whether counsel rendered ineffective assistance by not presenting alibi witnesses and alibi defense was abuse of discretion.).

Lambright v. Stewart, 241 F.3d 1201 (9th Cir. 2001)(Petitioner entitled to evidentiary hearing on ineffective assistance claim.).

Solis v. United States, 252 F.2d 289 (3d Cir. 2001)(Defendant entitled to evidentiary hearing on claim that he instructed attorney to appeal, but attorney failed to act.).

Bruce v. United States, 256 F.3d 592 (7th Cir. 2001)(Prisoner entitled to evidentiary hearing to determine whether defense counsel adequately assessed potential alibi witnesses).

Nara v. Frank, 264 F.3d 310 (3rd Cir. 2001)(State court motion to withdraw guilty plea nunc pro tunc was properly filed application for collateral review under tolling limitations provision and ceased to be pending only when state supreme court denied petition for allowance of appeal challenging denial of motion; evidentiary hearing warranted on issue of equitable tolling.).

Phillips v. Woodford, 267 F.3d 966 (9th cir. 2001)(Petitioner's two colorable claims --that counsel was ineffective for presenting alibi defense and not "shootout" defense and that petitioner's due process rights were violated by prosecution witness's false testimony that she had not been offered a deal in return for her testimony–warranted evidentiary hearing in death penalty case.).

Summerlin v. Stewart, 267 F.3d 926 (9th Cir. 2001)(Petitioner's claim that trial judge's alleged use of and addiction to marijuana deprived him of due process merited evidentiary hearing.).

Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002)(Ineffective assistance for failure to investigate mitigating evidence for penalty phase of capital trial warranted habeas relief; abuse of discretion for district court to fail to conduct evidentiary hearing on Brady claim).

Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002)(Allegation that trial counsel failed to develop and introduce mitigating evidence during penalty phase of capital trial warranted evidentiary hearing.).

Fields v. Woodford, 281 F.3d 963 (9th Cir. 2002)(evidentiary hearing necessary to determine juror bias).

Fullwood v. Lee, 290 F.3d 663 (4th Cir. 2002)(Petitioner was entitled to evidentiary hearing on claim that juror was improperly influenced by her husband in voting on death sentence; petitioner entitled to evidentiary hearing to explore whether jury was improperly influenced by consideration that he had received death sentence from another jury.).

Aron v. United States, 291 F.3d 708 (11th Cir. 2002)(Movant was entitled to evidentiary hearing on issue of whether he exercised due diligence in discovering appellate counsel's allegedly deficient failure to appeal his sentence.).

Table of Contents

•EXHAUSTION

O'Sullivan v. Boerckel, 119 S. Ct. 1728 (1999)(In order to satisfy exhaustion requirement for habeas corpus, petitioner must first present issue to state supreme court for discretionary review.).

Brown v. Shanks, 185 F.3d 1122 (10th Cir. 1999)(Dismissal of habeas petition which contained both exhausted and unexhausted claims was appropriate where unexhausted claim involved an issue of first impression under state law.).

Bledsue v. Johnson, 188 F.3d 250 (5th Cir. 1999)(Although petitioner failed to seek discretionary review by Court of Criminal Appeals following affirmance of conviction by intermediate court, application for habeas relief to Court of Criminal Appeals sufficient to exhaust state remedies; pro se petitioner's claim of insufficient proof of intent implicitly presented issue of weight so as to avoid procedural bar).

Swoopes v. Sublet, 196 F.3d 1008 (9th Cir. 1999)(Arizona has declared that discretionary review by Arizona Supreme Court is not included in its "complete round" of established appellate review, and hence need not be sought for federal habeas corpus exhaustion purposes pursuant to Johnson v. United States, 196 F.3d 802 (7th Cir. 1999)(proposed amendment to motion to vacate filed before AEDPA effective date not a "second or successive" petition even though amendments filed after O'Sullivan v. Boerckel)).

United States v. Clark, 203 F.3d 358 (5th Cir. 2000)(Petitioner exhausted state remedies and was in custody; hence, petition should not have been dismissed).

Morgan v. Bennett, 204 F.3d 360 (2nd Cir. 2000)(Confrontation Clause claims were properly exhausted by habeas petitioner.).

Tillema v. Long, 253 F.3d 494 (9th Cir. 2001)(In 28 U.S.C. § 2254 action, district court committed prejudicial legal error when it dismissed prisoner's habeas petition without affording him the opportunity to abandon his sole unexhausted claim as an alternative to suffering dismissal of petition; district court's error equitably tolled statute of limitations).

Zarvela v. Artuz, 254 F.3d 374 (2nd Cir. 2001)(Habeas petition should have been treated as if stayed, for purposes of determining timeliness of re-filed petition, where petitioner's entry into state courts to exhaust previously unexhausted claims and his return to federal court occurred promptly).

Moore v. Luebbers, 262 F.3d 757 (8th Cir. 2001)(Since failure to seek discretionary review in Missouri Supreme Court pre-dated Supreme Court decision in O'Sullivan v. Boerckel, and since Missouri's prior position had been that discretionary review was not necessary to exhaust state remedies, petition was not barred by failure to exhaust.).

Dixon v. Dormire, 263 F.3d 774 (8th Cir. 2001)(Exhaustion doctrine was not applied to petitioners who were lulled into not seeking discretionary review in Missouri Supreme Court where petitioners reasonably believed that state procedural rules did not present bar and were not fairly apprised that state would change its firmly-held position of not asserting exhaustion defense on this basis.).

Coleman v. Kemna, 263 F.3d 785 (8th Cir. 2001)(Because petitioners bypassed discretionary review prior to Supreme Court's Boerckel decision and because state's prior and consistent position before Boerckel was that discretionary review was not necessary to exhaust state remedies, dismissal of habeas petition with prejudice would be reversed.).

Wenger v. Frank, 266 F.3d 218 (3rd Cir. 2001)(Claim that sentence violated petitioner's due process and Eighth Amendment rights was exhausted.).

Moore v. Schoeman, 288 F.3d 1231 (10th Cir. 2002)(improper hybrid disposition of unexhausted claims by dismissing one without prejudice and the other on the merits).

Barresi v. Maloney, 296 F.3d 48 (1st Cir. 2002)(Habeas petitioner satisfied exhaustion requirement by citing federal cases in support of intermediate state appellate court filings, although he did not specifically highlight federal claims in state court.).

Hill v. Anderson, 300 F.3d 679 (6th Cir. 2002)(Issue of petitioner's mental retardation raised serious issue regarding voluntariness of his confession, requiring remand for dismissal of unexhausted Atkins claim, stay of exhausted claims, stay conditioned on promptly seeking relief from state court on Atkins claim.).

Table of Contents

•IN CUSTODY

United States v. Clark, 203 F.3d 358 (5th Cir. 2000)(Petitioner exhausted state remedies and was in custody; hence, petition should not have been dismissed).

Foster v. Booher, 296 F.3d 947 (10th Cir. 2002)(Federal habeas petitioner is "in custody" where he has completed serving first of two consecutive sentences imposed by two different courts at different times where he is still serving second sentence.).

Table of Contents

•PROCEDURAL DEFAULT/CAUSE AND PREJUDICE

United States v. Gordon, 172 F.3d 753 (10th Cir. 1999)(constitutional claims not procedurally barred on motion to vacate).

Burns v. Gammon, 173 F.3d 1089 (8th Cir. 1999)(possible cause for procedural default in conflict of interest of appellate counsel).

LaGrand v. Stewart, 173 F.3d 1144 (9th Cir. 1999)(Lethal gas method of execution in Arizona declared violation of 8th Amendment; cause and prejudice established for failure to raise in first habeas petition.).

Mingo v. Artuz, 174 F.3d 73 (2nd Cir. 1999)(habeas petitioner entitled to remand for consideration of confrontation clause and procedural default issues).

Restrepo v. Kelly, 178 F.3d 634 (2nd Cir. 1999)(Failing to file notice of appeal by attorney is cause and prejudicial per se for purpose of habeas review.).

United States v. Garth, 188 F.3d 99 (3rd Cir. 1999)(movant entitled to show that he was actually innocent of firearms offense so as to overcome procedural default of challenge to guilty plea for that offense).

Park v. California, 202 F.3d 1146 (9th Cir. 2000)(Brady and speedy trial claims not procedurally defaulted).

White v. Bowersox, 206 F.3d 776 (8th Cir. 2000)(New state procedural rules limiting remedies available to defendant abandoned by counsel in state post-conviction proceeding did not bar federal habeas review of claims procedurally defaulted under state rules.).

Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000)(claim of ineffective assistance not procedurally barred since state courts treated motion to appeal out of time as motion for postconviction relief and defendant entitled to a hearing).

Manning v. Foster, 224 F.3d 1129 (9th Cir. 2000)(Cause for procedural default existed where petitioner failed to seek collateral relief in reliance on actions of attorney who failed to perfect timely appeal after petitioner made timely request that he do so, creating presumption of prejudice.).

Lambright v. Stewart, 241 F.3d 1201 (9th Cir. 2001)(State court procedural default did not bar federal habeas review because last reasoned state-court opinion did not clearly invoke procedural default rule.).

Mitchell v. Mason, 257 F.3d 554 (6th Cir. 2001)(Petitioner's § 2254 claim not procedurally barred; state court's incorrect analysis of petitioner's claim of complete denial of counsel warranted habeas relief.).

Reagan v. Norris, 279 F.3d 651 (8th Cir. 2002)(Ineffective assistance of post-trial counsel and state appellate counsel were cause and prejudice for procedural default.).

Melendez v. Pliler, 288 F.3d 1120 (9th Cir. 2002)(State contemporaneous objection rule did not bar consideration of petitioner's Confrontation Clause claim.).

Bennett v. Mueller, 296 F.3d 752 (9th Cir. 2002)(State has burden to plead and prove defense of procedural default in federal habeas corpus case; question of whether California's untimeliness bar to state habeas relief was adequate to support procedural default defense on federal habeas review required remand for consideration of issue by district court under burden-shifting analysis.).

United States v. Palmer, 296 F.3d 1135 (D.C. Cir. 2002)(Successive motion bar under AEDPA does not apply where district court recharacterizes untimely motion for new trial as motion to vacate, set aside, or correct conviction and does not advise defendant of its sua sponte recharacterization without giving defendant opportunity to object.).

United States v. Wiseman, 297 F.3d 975 (10th Cir. 2002)(Defendant was not procedurally barred from asserting a Castillo claim, and Teague rule did not bar retroactive application of Castillo, requiring jury determination of weapon type in prosecution for using semiautomatic weapon during crime of violence, because court in Castillo did not announce new rule of criminal procedure.).

Scott v. Mullin, 303 F.3d 1222 (10th Cir. 2002)(State's failure to disclose exculpatory evidence provided cause to excuse petitioner's procedural default of Brady claim.).

Table of Contents

•PROSECUTORIAL WAIVER OF DEFENSE

Stouffer v. Reynolds, 214 F.3d 1231 (10th Cir. 2000)(Stipulation resulted in waiver by State of any exhaustion requirement; capital defendant prejudiced by counsel's failure at guilt phase of trial to lay proper foundation for relevant evidence, to challenge state's evidence, and to set forth defensive theory.).

Garceau v. Woodford, 281 F.3d 919 (9th Cir. 2002)(Teague issue raised by state for first time in petition for rehearing would not be heard.).

Scott v. Collins, 286 F.3d 923 (6th Cir. 2002)(State's failure to raise timeliness issue resulted in waiver of statute of limitations defense; sua sponte dismissal of petition as untimely was erroneous.).

Table of Contents

•RELATION BACK OF AMENDMENTS

Woodward v. Williams, 263 F.3d 1135 (10th Cir. 2001)(Amendment to habeas petition related back to filing of original petition but only with respect to argument that was merely clarified or amplified by amendment.).

Littlejohn v. Artuz, 271 F.3d 360 (2nd Cir. 2001)(Amendment of habeas petition allowed where not second or successive.).

Table of Contents

•SECOND OR SUCCESSIVE PETITIONS/TEAGUE ISSUES

Swoopes v. Sublet, 196 F.3d 1008 (9th Cir. 1999)(Arizona has declared that discretionary review by Arizona Supreme Court is not included in its "complete round" of established appellate review, and hence need not be sought for federal habeas corpus exhaustion purposes pursuant to Johnson v. United States, 196 F.3d 802 (7th Cir. 1999)(proposed amendment to motion to vacate filed before AEDPA effective date not a "second or successive" petition even though amendments filed after O'Sullivan v. Boerckel)).

Haro-Arteaga v. United States, 199 F.3d 1195 (10th Cir. 1999)(Motion to vacate was not successive under AEDPA where previous two motions had been voluntarily dismissed.).

Slack v. McDaniel, ___U.S. ___, 120 S. Ct. 1595 (2000)(A habeas petition filed after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a "second or successive petition" under the AEDPA.).

United States v. Orozco-Ramirez, 211 F.3d 862 (5th Cir. 2000) (Claims of ineffective assistance arising from representation in out-
of-time appeal were not second or successive under AEDPA.).

United States v. Evans, 224 F.3d 670 (7th Cir. 2000)(Motion for new trial qualified as motion to vacate subject to statutory restrictions on second or successive motions.).

Flowers v. Walter, 239 F.3d 1096 (9th Cir. 2001)(Express statement of retroactivity by Supreme Court is not required for habeas claim to rely on "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court" within meaning of AEDPA, such that claim can be brought in second or successive petition; Riggins v. Nevada claim was new watershed rule of criminal procedure that applied retroactively under Teague v. Lane and could be brought in second petition.).

Petrocelli v. Angelone, 242 F.3d 867 (9th Cir. 2001)(State procedural bars not "adequate" to preclude federal habeas review; petition dismissed without prejudice did not make subsequent petition second or successive.).

Petrocelli v. Angelone, 248 F.3d 877 (9th Cir. 2001)(Petitioner did not file second or successive petition when he filed petition after first petition was dismissed without prejudice because it contained unexhausted claims.).

Pennington v. Norris, 257 F.3d 857 (8th Cir. 2001)(Petition challenging parole denial was not "second or successive" merely because petitioner had previously filed a petition challenging his conviction.).

In re Byrd, 269 F.3d 585 (6th Cir. 2001)(Court of Appeals had jurisdiction to order rehearing of request for leave to file second petition for writ of habeas corpus, and case would be remanded where factual basis was not clearly set out in petition.).

United States v. Palmer, 296 F.3d 1135 (D.C. Cir. 2002)(Successive motion bar under AEDPA does not apply where district court recharacterizes untimely motion for new trial as motion to vacate, set aside, or correct conviction and does not advise defendant of its sua sponte recharacterization without giving defendant opportunity to object.).

United States v. Wiseman, 297 F.3d 975 (10th Cir. 2002)(Teague rule did not bar retroactive application of Castillo, requiring jury determination of weapon type in prosecution for using semiautomatic weapon during crime of violence, because court in Castillo did not announce new rule of criminal procedure.).

Ching v. United States, 298 F. 3d 174 (2nd Cir. 2002)(Habeas petition was properly treated as a motion to vacate, but the motion should have been construed as a motion to amend pending post conviction motion rather than as second or successive motion).

Mobley v. Head, 306 F.3d 1096 (11th Cir. 2002)(Stay of execution granted to await Supreme Court's forthcoming decision in Abdur'Raham v. Bell, ____U.S. ____, 122 S. Ct. 1605, 152 L. Ed. 2d 620 (2002) on issue of whether every Rule 60(b) motion constitutes a "second or successive" habeas petition as a matter of law.). [Ed. note: The Supreme Court has quashed the writ in Abdur'Raham as improvidently granted.].

McIver v. United States, 307 F.3d 1327 (11th Cir. 2002)(As a matter of first impression, successful motion to file an out-of-
time notice of appeal does not render a subsequent collateral challenge "second or successive" under AEDPA.).

Table of Contents

•UNREASONABLE INTERPRETATION OF FEDERAL LAW BY STATE COURT

Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999)(Michigan Supreme Court's finding that jury's possession of extraneous information was harmless unreasonable in light of U.S. Supreme Court precedent).

Atley v. Ault, 191 F.3d 865 (8th Cir. 1999)(Writ granted due to constitutional defect that state court's Holloway inquiry into conflict of interest raised by defense counsel was "unreasonable application of clearly established federal law.").

Moore v. Gibson, 195 F.3d 1152 (10th Cir. 1999)(State appellate court's determination that unusual conduct by detectives in collecting hair and fiber samples was not material for purposes of Brady was unreasonable.).

Barker v. Yukins, 199 F.3d 867 (6th Cir. 19999)(Michigan Supreme Court's finding of harmless error in trial court's failure to instruct jury that petitioner would have been justified in using deadly force to stop imminent rape was unreasonable application of federal law and was improper invasion of jury's province and prevented petitioner from presenting full defense.).

Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000)(prosecutorial misconduct in closing argument by improperly emphasizing evidence of defendant's bad character; ineffective assistance of counsel not to object; state court's determination that trial counsel was not ineffective was unreasonable application of federal law, and prosecutorial misconduct violated petitioner's due process rights).

Boyette v. Lefevre, 246 F.3d 76 (2nd Cir. 2001)(Brady violation occurred where prosecution failed to disclose to defense material which could have suggested an alternative perpetrator or could have helped impeach victim; state court interpretation was unreasonable application of clearly established federal law which warranted relief under the AEDPA).

Fowler v. Collins, 253 F.3d 244 (6th Cir. 2001)(Petitioner entitled to writ of habeas corpus on ground that state court's acceptance of his waiver of right to counsel was an unreasonable application of established Supreme Court precedent.).

Campbell v. Rice, 265 F.3d 878 (9th Cir. 2002)(Trial court's failure to investigate possible conflict of interest warranted habeas relief because state court's determination that defendant was not entitled to relief was contrary to clearly established federal law.).

Florez v. Williams, 281 F.3d 1136 (10th Cir. 2002)(New Mexico Court of Appeals' determination that failure to request lesser-
included offense instruction was not ineffective under Strickland was unreasonable interpretation of federal law.).

Cockerham v. Cain, 283 F.3d 657 (5th Cir. 2002)(State convictions became final when out-of-time appeal was decided, not when earlier original direct appeal was decided; Louisiana Supreme Court's validation of "reasonable doubt" jury instruction found to be infirm in Cage v. Louisiana under due process clause was "contrary to established federal law," warranting habeas corpus relief.).

Sawyer v. Hofbaufer , 299 F. 3d 605 (6th Cir. 2002)( By failing to address he state's non-disclosure of negative forensic test, the state appellate court engaged in an unreasonable application of federal law resulting in a sufficient ground for release).

Gentry v. Roe, 300 F.3d 1007 (9th Cir. 2002)(State court determination that petitioner was not denied effective assistance of counsel was objectively unreasonable application of federal law warranting habeas relief.).

Ryan v. Miller, 303 F.3d 231 (2nd Cir. 2002)(Police officer's testimony was hearsay implicitly containing codefendant's accusation of the defendant in violation of Confrontation Clause; allowance of testimony was unreasonable application of clearly established federal law and was not harmless.).

Brown v. Sternes, 304 F.3d 677 (7th Cir. 2002)(Failure to investigate petitioner's psychiatric condition and failure to demand action on unexecuted subpoena for medical records resulted in prejudice to petitioner, and state court's determination to the contrary was an unreasonable application of federal law.).

Table of Contents

•GENERAL 2254

Quartararo v. Hanslmaier, 186 F.3d 91 (2nd Cir. 1999)(District court could not assume position of 13th juror on petition for habeas corpus relief; must view evidence in light most favorable to prosecution.).

Phoenix v. Matesanz, 189 F.3d 20 (1st Cir. 1999)(Determination by gatekeeper justice on state supreme court that petitioner's ineffective assistance of counsel claim was not substantial and thus did not warrant further state court review does not preclude federal habeas review.).

Cullen v. United States, 194 F.3d 401 (2nd Cir.1999)(in habeas action district judge not entitled to reject magistrate judge's proposed finding of prejudice without hearing movant's testimony and making credibility determination).

Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000)(Use of one of codefendant's two factually contradictory versions of events to convict defendant coupled with use of other version to convict another codefendant at later trial warranted habeas relief.).

Evicci v. Commissioner of Corrections, 226 F.3d 26 (1st Cir. 2000)(improper to dismiss petitioner's Sixth Amendment claim on procedural grounds).

Penry v. Johnson, 121 S. Ct. 1910 (2001)(Habeas relief warranted where instructions on mitigating circumstances in capital case failed to provide jury with vehicle to give effect to mitigating circumstances of mental retardation and childhood abuse.).

McGregor v. Gibson, 248 F.3d 946 (10th Cir. 2001)(Writ should have been granted because reasonable judge should have had a bona fide doubt about petitioner's competence.).

Agnew v. Leibach, 250 F.3d 1123 (7th Cir. 2001)(habeas relief warranted because bailiff who tended to jury during trial testified concerning defendant's confession).

Table of Contents

•GENERAL 2255/IMPROPER DISMISSAL OR RULING BY DISTRICT COURT

United States v. Barron, 172 F.3d 1153 (9th Cir. 1999)(improper for district court to condition granting of motion to vacate on defendant's withdrawal of guilty plea).

United States v. Apker, 174 F.3d 934 (8th Cir. 1999)(§2255 motion dismissed by district court remanded to determine if charges government agreed not to prosecute in exchange for guilty plea to 924(c) charge were more serious than 924(c) charge).

United States v. Barger, 178 F.3d 844 (7th Cir. 1999)(improper dismissal of various § 2255 claims as moot).

Hooker v. Sivley, 187 F.3d 680 (5th Cir. 1999)(District court lacked jurisdiction to construe habeas petition as motion to vacate without prior authorization from Court of Appeals.).

United States v. Miller, 197 F.3d 644 (3rd Cir. 1999)(District court improperly characterized two post-conviction motions as one, effectively barring defendant from filing later full-fledged collateral attack on his conviction.).

Duncan v. Walker, 121 S. Ct. 2001 (2001)(Application for federal habeas corpus review is not "application for State post-conviction or other collateral review" within the meaning of the AEDPA.).

United States v. Kelly, 235 F.3d 1238 (10th Cir. 2000)(error to sua sponte recharacterize motion to modify sentence as motion to vacate).

United States v. Johnston, 258 F.3d 361 (5th Cir. 2001)(Consensual delegation of motion to vacate, set aside, or correct sentence to magistrate judge is unconstitutional.).

Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001)(As a matter of first impression, district court erred in sua sponte dismissing habeas petition without giving petitioner notice and opportunity to be heard.).

Ruth v. United States, 266 F.3d 658 (7th Cir. 2001)(Defendant's motion for new trial was not properly characterized as motion to vacate.).

United States v. Emmanuel, 288 F.3d 644 (4th Cir. 2002)(Treatment of motion for reduction of sentence as a motion to vacate was improper without notice to the defendant that court intended to treat the motion as such so that movant could amend motion to include all grounds for post-conviction relief the movant wished to raise.).

United States v. Wynn, 292 F.3d 226 (5th Cir. 2002)(remand necessary for findings as to whether attorney was deceptive about filing motion for post-conviction relief).

Broadwater v. United States, 292 F.3d 1302 (11th Cir. 2002)(District court was required to provide explanation of its summary denial of post-conviction motion in order to provide Court of Appeals with adequate basis for review.).

Table of Contents

•GENERAL 2241

Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th Cir. 1999)(Habeas claim challenging deportation cognizable under 28 U.S.C. § 2241).

Jeffers v. Chandler, 234 F.3d 277 (5th Cir. 2000)(Post-conviction statute 28 U.S.C. § 2241 has savings clause which allows a successive motion on a claim that was based on a Supreme Court decision handed down after petitioner was convicted and after he had exhausted opportunities for post-conviction relief.).

Table of Contents

HABEAS/GENERAL LIMITATION OF ACTIONS

United States v. Stansfield, 171 F.3d 806 (3rd Cir. 1999)(reversed in part because arson statute of limitations had run).

Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999)(mailbox rule applies to filing of habeas petition, and deadline is one year after effective date of AEDPA).

Ford v. Bowersox, 178 F.3d 522 (8th Cir. 1999)(One year limitation period for filing habeas petition does not apply if judgment became final prior to enactment of the AEDPA.).

Gaskins v. Duval, 183 F.3d 8 (1st Cir. 1999)(one-year grace period for filing habeas petition began upon effective date of AEDPA and grace period was tolled during time in which petitioner's motion for collateral review was pending in state courts).

Morales-Rivera v. United States, 184 F.3d 109 (1st Cir. 1999)(mailbox rule applies to pro se prisoner 28 U.S.C. §2255 motion, and runs from date prisoner deposited motion in prison's internal system).

Villegas v. Johnson, 184 F.3d 467 (5th Cir .1999)(ADEPA statute of limitations tolled while second state habeas petition pending).

Brown v. O'Dea, 187 F.3d 572 (5th Cir. 1999)(one year grace period under AEDPA; petition not successive).

Mills v. Norris, 187 F.3d 881 (8th Cir. 1999)(Petitioner's appeal from denial of his state court petition for post-conviction relief tolled limitations period under AEDPA until end of 90-day period for perfecting state court appeal, even though petitioner did not perfect such an appeal.).

Miles v. Prunty, 187 F.3d 1104 (9th Cir. 1999)(habeas limitations period equitably tolled where actions of prison officials prevented defendant from meeting deadline).

United States v. Lloyd, 188 F.3d 184 (3rd Cir. 1999)(claim not time-barred when filed within one year of Supreme Court and Circuit decisions recognizing right to raise Bailey claim on collateral review).

Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999)(statute of limitations on habeas petition began to run on date petitioner's time for seeking certiorari from Supreme Court expired).

United States v. Valdez, 195 F.3d 544 (9th Cir. 1999)(Motion to vacate firearms conviction, premised on Bailey, was timely when filed prior to Bousley decision, which recognized right to raise Bailey claim on collateral review.).

Bennett v. Artuz, 199 F.3d 116 (2nd Cir. 1999)(Since petitioner's motion to vacate was "pending" in state court when he filed his federal habeas petition, even though it was considered successive petition under New York rules, state-petition tolling provision applied, and petition was not time-barred under AEDPA.).

United States v. Burch, 202 F.3d 1274 (10th Cir. 2000)(One year limitation period for filing petition for postconviction relief begins to run under AEDPA after time for seeking certiorari has expired; time period is not extended to account for possibility that defendant could file petition for rehearing of denial of petition for certiorari.). [Ed. note: This case is consistent with the ruling of the Eleventh Circuit in Bond v. Moore, 309 F.3d 770 (11th Cir. 2002).].

United States v. Patterson, 211 F.3d 927 (5th Cir. 2000)(Equitable tolling of statute of limitations for filing motion to vacate occurred where district court dismissed defendant's motion without prejudice and led defendant to believe he could refile.).

Swartz v. Meyers, 204 F.3d 417 (3rd Cir. 2000)(habeas limitations period tolled until expiration of time in which petitioner could seek appeal from denial of postconviction relief).

United States v. Colvin, 204 F.3d 1221 (9th Cir. 2000)(Limitations period for filing motion to vacate does not begin to run on case which was remanded until amended judgment is entered and time in which to appeal amended judgment has expired.).

Walker v. Artuz, 208 F.3d 357 (2nd Cir. 2000)(Tolling of one-year limitations period for habeas petitions under AEDPA during the pendency of "other collateral review" applies to federal habeas petitions as well as applications for state review.).

United States v. Gamble, 208 F.3d 537 (5th Cir. 2000)(One year limitations period for filing motion to vacate begins to run upon expiration of time for seeking certiorari in the Supreme Court.). [Ed. note: This case is consistent with the ruling of the Eleventh Circuit in Bond v. Moore, 309 F.3d 770 (11th Cir. 2002).].

Smith v. Ward, 209 F.3d 383 (5th Cir. 2000)(One year period for seeking federal habeas relief was tolled during pendency of petitioner's application for state relief.).

United States v. Garcia, 210 F.3d 1058 (9th Cir. 2000)(One year limitations period for filing motion to vacate runs from time for filing petition for certiorari with Supreme Court, not from date of judgment of Court of Appeals.). [Ed. note: This decision is consistent with the holding of the Eleventh Circuit in Bond v. Moore, 309 F.3d 770 (11th Cir. 2002).].

United States v. Agne, 214 F.3d 47 (10th Cir. 2000)(Defendant's use of fraudulent documents to draw funds of buyer through letter of credit did not "affect" financial institution in prosecution for wire fraud so as to extend limitations period.).

Dilworth v. Johnson, 215 F.3d 497 (5th Cir. 2000)(Second state habeas petition tolled limitations period for filing state petition challenging 1992 conviction, although state petition challenged 1987 petition in which sentence had expired, where challenge was brought because the 1987 conviction was used to enhance sentences on 1992 convictions.).

Hepburn v. Moore, 215 F.3d 1208 (11th Cir. 2000)(Limitations period for habeas petition challenging resentencing begins to run on date of resentencing judgment.).

Phillips v. Donnelly, 216 F.3d 508 (5th Cir. 2000)(Equitable tolling doctrine tolled limitations period for four months between actual denial of the defendant's state habeas petition and the when he allegedly first received notice.).

Hall v. Cain, 216 F.3d 518 (5th Cir. 2000)(petitioner's state habeas proceeding was properly filed so as to toll the limitations period for filing under the AEDPA).

Nyland v. Moore, 216 F.3d 1264 (11th Cir. 2000)(error in not finding that habeas petitioner's state postconviction motions were pending until the mandate issued; however, second federal habeas petition did not relate back to date of filing of first habeas petition).

Saffold v. Newland, 224 F.3d 1087 (9th Cir. 2000)(limitations period under AEDPA tolled due to pending state habeas proceeding, and mailbox rule applied to state habeas filing).

Wims v. United States, 225 F.3d 186 (2nd Cir. 2000)(Limitations period under AEDPA begins when facts giving rise to claim reasonably could been discovered through exercise of due diligence).

Bronaugh v.. Ohio, 235 F.3d 280(6th Cir. 2000) (Statute of limitations for filing federal habeas petition was tolled for period of time in which petitioner's application to reopen direct appeal was pending).

United States v. Grissett, 236 F.3d 452 (8th Cir. 2001)(Defendant who withdrew from conspiracy more than five years from indictment could not be prosecuted in face of limitations defense.).

United States v. Ratcliff, 245 F.3d 1246 (11th Cir. 2001)(Superseding indictment broadened or substantially amended original charge so that original indictment did not toll statute of limitations with respect to superseding indictment.).

United States v. Wilson, 249 F.3d 366 (5th Cir. 2001)(Defendant was entitled to hearing on fact issue as to adequacy of government's application to support tolling of five-year limitation period.).

United States v. Hitt, 249 F.3d 1010 (D.C. Cir. 2001)(time-barred conspiracy count properly dismissed).

Saffold v. Newland, 250 F.3d 1262 (9th Cir. 2001)(Mailbox rule applied both to filing of federal habeas petition and to filing of state habeas petition; defendant's pending state habeas petition tolled limitations period for filing federal petition under AEDPA.).

United States v. Johnson, 254 F.3d 279 (D. C. Cir. 2001)(District court's issuance of a 12-page combined decision and order denying prisoner's motion to vacate did not satisfy the Rule 58 separate-document requirement and thus prisoner's time to appeal from denial of his motion had not yet run).

Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001)(Limitations period for filing habeas claim alleging ineffective assistance of counsel did not begin to run until petitioner knew or should have known of relationship between prosecution witness and person who possibly engaged in witness tampering.).

United States v. Rodriguez Aguirre, 264 F.3d 1195 (10th Cir. 2001)(Where no civil forfeiture is sought, limitations period begins to run at conclusion of criminal proceedings.).

Ashley v. United States, 266 F.3d 671 (7th Cir. 2001)(Limitations period under AEDPA begins to run on date of retroactivity determination and not on date of underlying Supreme Court decision; prisoner may seek determination that Supreme Court decision upon which he relies has retroactive application.).

Welch v. Newland, 267 F.3d 1013 (9th Cir. 2001)(Limitations period under AEDPA was tolled during pendency of state habeas petition even though there was delay of four years between dismissal of initial petition and filing of petition in Supreme Court.).

Huizar v. Carey, 273 F.3d 1220 (9th Cir. 2001)(Prison mailbox rule, which deems habeas petition filed on day petition is given to prison authorities, applies even if petition is never filed in court.).

Smith v. Duncan, 274 F.3d 1245 (9th Cir. 2001)(Habeas petition was improperly dismissed because filed within AEDPA limitations period.)

Blair v. Crawford, 275 F.3d 1156 (9th Cir. 2002)(Petitioner's application for extraordinary writ from Nevada Supreme Court was properly filed as required by tolling provision of federal habeas statute.).

Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002)(Before district court dismisses habeas petition for untimeliness, it must first give petitioner notice that petition will be dismissed absent sufficient explanation.).

Prior v. United States, 278 F.3d 612 (6th Cir. 2002)(§ 2255 motion filed within one year of Supreme Court's Bousley decision declaring Bailey retroactive to cases on collateral review was timely.).

Corjasso v. Ayers, 278 F.3d 874 (9th Cir. 2002)(equitable tolling warranted for delay between petitioner's original attempt to file habeas petition and status conference held several months later; limitations period tolled during pendency of state habeas petition).

Dean v. United States, 278 F.3d 1218 (11th Cir. 2002)(Amended claims in § 2255 motion filed after limitations period ran when original motion was filed within 1 year; AEDPA limitations period related back because they arose from same set of facts as timely-filed claim.).

United States v. Berfield, 280 F.3d 486 (5th Cir. 2002)(presumption of prejudice from five year delay between indictment and unsealing).

Currie v. Matesanz, 281 F.3d 261 (1st Cir. 2002)(State post-conviction motion is pending for AEDPA purposes from time filed until finally disposed of and further appellate review unavailable.).

Newell v. Hanks, 283 F.3d 827 (7th Cir. 2002)(Petitioner's amendments to habeas corpus petition were substantially identical to original claims and related back to bring petition within one year grace period of AEDPA; government's possible substantial interference with defense witness's free and unhampered choice to testify warranted remand for evidentiary hearing to determine if due process violated .).

Scott v. Collins, 286 F.3d 923 (6th Cir. 2002)(State's failure to raise timeliness issue resulted in waiver of statute of limitations defense; sua sponte dismissal of petition as untimely was erroneous.).

United States v. Dodson, 291 F.3d 268 (4th Cir. 2002)(One year limitations period for filing motion to vacate did not begin to run until Court of Appeals issued mandate affirming district court's ruling as to counts remanded for resentencing.).[Ed. note: This holding is contrary to the holding of the Eleventh Circuit in Bond v. Moore, 309 F.3d 770 (11th Cir. 2002), which held that one year limitations period begins to run after 90 day period for filing with United States Supreme Court expires; this case apparently creates a split among the circuits on this issue as of this writing.].

Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002)(Under doctrine of equitable tolling, petitioner was allowed one year from date he received notice that the state court denied relief on his state application to file federal habeas petition.).

Sweger v. Chesney, 294 F.3d 506 (3rd Cir. 2002)(Properly-filed state post-conviction proceeding challenging judgment tolls AEDPA statute of limitations.). [Ed. note: first impression in 3rd Circuit].

Ford v. Moore, 296 F.3d 1035 (11th Cir. 2002)(Statute of limitations under AEDPA is tolled during period of consideration of properly filed petition for state collateral relief regardless of whether that petition raises federally cognizable claims.).

Williams v. Bruton, 299 F.3d 981 (8th Cir. 2002)(Pending state post-conviction petition tolled one year limitations period for federal habeas corpus petition.).

Rodriguez v. Bennett, 303 F.3d 435 (2nd Cir. 2002)(Remand required to determine whether limitations-barred successive petition was entitled to be heard due to equitable tolling.).

Lott v. Mueller, 304 F.3d 918 (9th Cir. 2002)(Remand required to determine if equitable tolling to limitations period for pro se petitioner's habeas petition applied to petitioner's claim that he was denied access to his legal files.).

Miller v. Collins, 305 F.3d 491 (6th Cir. 2002)(Habeas statute of limitations was equitably tolled from date of his application to Ohio Court of Appeals to reopen his appeal to date petitioner received notice of the decision; state waived argument to the contrary.).

Ford v. Hubbard, 305 F.3d 875 (9th Cir. 2002)(Dismissal of claim without prejudice was prejudicial error; remand necessary to develop record on claim that appellate attorney's failure to provide petitioner with legal papers rose to level of "extraordinary circumstances" for purposes of equitable tolling.).

Pratt v. Greiner, 306 F.3d 1190 (2nd Cir. 2002)(Statute of limitations under AEDPA was tolled during pendency of state court properly filed motion to vacate; order of dismissal insufficient to allow for meaningful appellate review.).

Griffin v. Rogers, 308 F.3d 647 (6th Cir. 2002)(remand to determine if equitable tolling applied during period of pendency of initial habeas petition).

Bond v. Moore, 309 F.3d 770 (11th Cir. 2002)(Limitations period for federal habeas petition begins to run when time expires for filing petition for certiorari with U.S. Supreme Court from denial of discretionary review of denial of state postconviction relief.).

Jorss v. Gomez, 311 F.3d 1189 (9th Cir. 2002)(Habeas action was timely because equitably tolled during pendency of state collateral proceeding and for 30 days thereafter.).

Saffold v. Carey, 312 F.3d 1031 (9th Cir. 2002)(State postconviction petition was pending and eligible for tolling during period between denial of relief by state appellate court and filing of new petition before state supreme court.).

York v. Galetka, 314 F.3d 522 (10th Cir. 2003)(AEDPA limitations period tolled during pendency of state motion to set aside guilty plea; equitable tolling warranted during period in which prior petition was pending until it was dismissed for failure to exhaust state remedies).

Rouse v. Lee, 314 F.3d 698 (4th Cir. 2003)(equitable tolling applied to death-sentenced petitioner who missed filing deadline by one day).

Table of Contents

HEARSAY

United States v. Corral, 172 F.3d 714 (9th Cir. 1999)(reliance on unreliable double hearsay required remand).

United States v. Comito, 177 F.3d (9th Cir. 1999)(improper admission of hearsay evidence at revocation hearing).

United States v. Vigneau, 187 F.3d 70 (1st Cir. 1999)(name, address, and telephone number on money order company's forms not admissible under business records exception to hearsay rule and admission of hearsay was not harmless as to money laundering counts).

United States v. Bao, 189 F.3d 860 (9th Cir. 1999)(Admission of statement as prior inconsistent statement was erroneous; overvaluation of counterfeit manuals on applying offense level enhancements).

United States v. Beaulieu, 194 F.3d 918 (8th Cir. 1999)(district court abused discretion in child molestation case in admitting statements child made as prior consistent statements and statements made for purposes of medical diagnosis or treatment).

United States v. Cornett, 195 F.3d 776 (5th Cir. 1999)(Co-conspirator's statements not in furtherance of the conspiracy were hearsay; and admission was not harmless.).

United States v. Martinez-Gaytan, 213 F.3d 890 (5th Cir. 2000)(absence of translator from Spanish-speaking defendant's suppression hearing rendered English-speaking agent's testimony

about confession unreliable hearsay).

United States v. Velarde, 214 F.3d 1204 (10th Cir. 2000)(error in failing to make reliability determination before admitting pediatric testimony, error in admitting psychologist's testimony, and crime of abusive sexual contact was not a lesser included offense of aggravated sexual assault).

United States v. McCleskey, 228 F.3d 640 (6th Cir. 2000)(nontestifying accomplice's statement was inadmissible both as hearsay and as Confrontation Clause violation, and erroneous admission was not harmless).

United States v. Riley, 236 F.3d 982 (8th Cir. 2001)(Counsel could not stipulate to lab chemist's testimony over objection from defendant; and insufficient foundation laid for admission of lab report under business records exception to hearsay rule).

United States v. Palmer, 248 F.3d 569 (7th Cir. 2001)(U.S. Marshal's testimony that gang member, who did not personally testify at sentencing hearing,, told him defendant possessed 241 grams of crack cocaine, did not support finding of more than 150 grams.).

United States v. Peoples, 250 F.3d 630 (8th Cir. 2001)(FBI agent's testimony about conversation between defendants, giving lay opinion as to meaning of words and phrases used, was inadmissible; and error was not harmless.).

Green v. United States, 260 F.3d 78 (2nd Cir. 2001)(Pro se motion for extension of time to file 2255 motion may be construed as 2255 motion; 60 day extension of time proper remedy for time miscalculation.).

United States v. Wells, 262 F.3d 455 (5th Cir. 2001)(Oral testimony regarding destroyed drug ledgers was inadmissible hearsay; and because rest of evidence was less than overwhelming, admission of hearsay evidence was not harmless beyond a reasonable doubt.).

Brumley v. Wingard, 269 F.3d 629 (6th Cir. 2001)(Admission of incarcerated witness's videotaped deposition without prior finding of unavailability was unreasonable application of clearly established Supreme Court precedent in Ohio v. Roberts.).

Thomas v. Hubbard, 273 F.3d 1164 (9th Cir. 2001)(Cumulative error in admitting triple hearsay, prosecutorial misconduct in admitting evidence in violation of in limine order, and improper truncation of cross-examination warranted habeas corpus relief.).

Chia v. Cambra, 281 F.3d 1032 (9th Cir. 2002)(erroneous exclusion of friend's hearsay statements which exonerated petitioner).

United States v. Barile, 286 F.3d 749 (4th Cir. 2002)(Erroneous exclusion of prior statements affected defendant's substantial rights.).

United States v. Orellana-Blanco, 294 F.3d 1143 (9th Cir. 2002)(Exhibit, which was INS officer's notes of his interview with defendant, was not admissible as an admission, as a business or public record, and its admission was not harmless.).

Table of Contents

HOMICIDE

United States v. Wood, 207 F.3d 1222 (10th Cir. 2000)(insufficient evidence to prove premeditation or malice aforethought in murder prosecution; Rule 403 violation in admission of expert testimony on use of potassium chloride in execution of animals; reversed for cumulative evidentiary errors and error in denying motion for judgment of acquittal).

United States v. Cherry, 211 F.3d 575 (10th Cir. 2000)(remand to determine if co-defendant who drove to murder scene was part of conspiracy to murder and responsible under Pinkerton theory).

United States v. Collazo-Aponte, 216 F.3d 163 (1st Cir. 2000)(imposition of life sentence for attempted murder, which carries maximum of 20 years, required reversal).

United States v. Cherry, 217 F.3d 811 (10th Cir. 2000)(remand to determine if co-defendant was

part of conspiracy of murder of witness).

Thomas v. Gibson, 218 F.3d 1213 (10th Cir. 2000)(evidence was insufficient to satisfy heinous, atrocious, or cruel aggravator for imposition of death penalty under Oklahoma law).

United States v. Fields, 242 F.3d 393 (D.C. Cir. 2001)(enhancement improper where jury did not find beyond reasonable doubt that murder was object of kidnapping.).

United States v. Bass, 266 F.3d 532 (6th Cir. 2001)(District court should have received evidence on defendant's selective prosecution claims that race played a role in deciding which cases to select as death-eligible.).

Singleton v. Norris, 267 F.3d 859 (8th Cir. 2001)(Forcing inmate to take antipsychotic drugs warranted permanent stay of execution.).

Banks v. Horn, 271 F.3d 527 (3rd Cir. 2001)(Jurors could have been misled to believe unanimity was required in determining mitigating factors in death penalty case.).

Moore v. Kinney, 278 F.3d 774 (8th Cir. 2002)(Definition of "exceptional depravity" aggravator in capital case unconstitutionally vague).

Everett v. Beard, 290 F.3d 500 (3rd Cir. 2002)(Trial counsel was ineffective for failing to object to jury instruction which permitted jury to convict defendant , who was charged as an accomplice, of first degree murder if his accomplice intended to cause death of the victim.).

Table of Contents

IDENTIFICATION

Raheem v. Kelly, 257 F.3d 122 (2nd Cir. 2001)(Lineup in which defendant appeared wearing black leather coat was suggestive to two witnesses who had given the police descriptions emphasizing the shooter's black leather coat; identifications were not independently reliable; error not harmless).

Table of Contents

IMMIGRATION

United States v. Ahumada-Aguilar, 189 F.3d 1121 (9th Cir. 1999)(in prosecution for illegal reentry of alien, additional proof-of-
paternity requirement imposed on citizen father was sex-based violation of equal protection).

Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th Cir. 1999)(Habeas claim challenging deportation cognizable under 28 U.S.C. § 2241).

United States v. Angeles-Mascote, 206 F.3d 529 (5th Cir. 2000)(Alien stopped at port of entry had not illegally entered United States; plain error found in acceptance of guilty plea.).

United States v. Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000)(direct imposition of probation is not an "aggravated felony" for purposes of provision of sentencing guidelines authorizing enhancement of base offense level when a defendant reenters United States after being previously deported after a criminal conviction for an aggravated felony).

United States v. Arrieta, 224 F.3d 1076 (9th Cir. 2000)(waiver of right to appeal deportation order was not intelligent, thus violating his due process rights).

Boz v. United States, 228 F.3d 1290 (11th Cir. 2000)(alien's due process claim was reviewable under transitional provision established by Illegal Immigration Reform and Immigrant Responsibility Act).

United States v. Romo-Romo, 246 F.3d 1272 (9th Cir. 2001)(Alien who has never left the United States cannot be convicted for reentering).

Valansi v. Ashcroft, 278 F.3d 203 (3rd Cir. 2002)(no requisite showing of intent to defraud in embezzlement case so as to justify removal of alien for aggravated felony).

United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)(Alien's sentence could not be enhanced on basis of California theft conviction.).

United States v. Ahumala-Aguilar, 295 F.3d 943 (9th Cir. 2002)(Immigration judge deprived alien of statutory right to counsel at group deportation proceeding; waiver of right to appeal was not knowing and voluntary.).

United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002)(Lack of proof that defendant entered the United States was fatal to illegal entry counts under 18 U.S.C. § 1325.).

United States v. Ruiz-Lopez, 234 F.3d 445 (9th Cir. 2001)(evidence insufficient to determine that alien was "found" in the United States).

United States v. Rodriguez-Fernandez, 234 F.3d 498 (11th Cir. 2000)(In prosecution of alien for escape, there was no evidence that alien was confined at direction of Attorney General.).

Table of Contents

INDICTMENTS

Lucas v. O'Dea, 169 F.3d 1028 (6th Cir. 1999)(5th Amendment right to grand jury indictment violated when indictment charged intentional murder but instructions allowed wanton murder conviction–counsel ineffective for failing to object).

United States v. Randall, 171 F.3d 195 (4th Cir. 1999)(constructive amendment of indictment occurred when proof, argument and instructions allowed conviction for possession with intent to distribute when indictment charged only distribution).

United States v. Ramirez, 182 F.3d 544 (7th Cir. 1999)(plain error warranted reversal where indictment charged using and carrying firearm during actual distribution of marijuana, which was not proved, and did not rely on distinct offenses of possession and conspiracy to possess marijuana with intent to distribute of which defendant was convicted; constructive amendment of indictment required reversal for plain error).

United States v. Shipsey, 190 F.3d 1081 (9th Cir. 1999)(Constructive amendment of indictment by district court required reversal).

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999)(indictment sufficiently alleged causation element of charge of causing false statement to be made to Federal Election Comm'n).

United States v. Prentiss, 206 F.3d 960 (10th Cir. 2000)(Indian status of defendant and victim must be alleged in indictment charging violation of Indian Country Crimes Act—failure to do so deprives defendant of Fifth Amendment right to be tried only on charges presented in indictment returned by a grand jury.).

United States v. Landham, 251 F.3d 1072 (6th Cir. 2001)(deficient indictment with respect to interstate transmission of threats to kidnap; insufficient evidence to prove true threat to kidnap or threat to injure; vulgar disparaging comments to wife did not support conviction for making obscene interstate telephone calls).

United States v. Hill, 257 F.3d 1116 (9th Cir. 2001)(Indictment charging defendant as accessory after the fact had to plead underlying offense as well as accessory offense).

United States v. White, 258 F.3d 374 (5th Cir. 2001)(Indictment's failure to charge an offense was not waived by guilty plea, waiver of appeal in plea agreement, or failure to raise the argument in initial appellate brief; convictions under Texas statutes proscribing reckless conduct and terroristic threats were not convictions of a "crime of domestic violence," and thus could not serve as predicate convictions for 18 U.S.C. § 922(g)(9)).

United States v. Olson, 262 F.3d 795 (8th Cir. 2001)(Indictment which omitted element of use of force, violence or intimidation was insufficient in bank robbery prosecution.).

United States v. Prentiss, 273 F.3d 1277 (10th Cir. 2001)(Indictment's failure to allege status of victims in prosecution for arson on Indian reservation was not harmless.).

United States v. Syme, 276 F.3d 131 (3rd Cir. 2002)(Constructive amendment to indictment was plain error.).

United States v. Hill, 279 F.3d 731 (9th Cir. 2002)(Indictment charging defendant with accessory after the fact failed to plead both underlying offense and accessory offense.).

United States v. Berfield, 280 F.3d 486 (5th Cir. 2002)(presumption of prejudice from five year delay between indictment and unsealing).

United States v. Handakas, 286 F.3d 92 (2nd Cir. 2002)(reversed for multiplicitous counts in indictment and for vague "honest services" provision of mail fraud statute).

United States v. Graham, 305 F.3d 1094 (10th Cir. 2002)(Separate counts for individual sales of explosives from defendant's store were multiplicitous.).

Table of Contents

INEFFECTIVE ASSISTANCE OF COUNSEL

Mapes v. Coyle, 171 F.3d 408 (6th Cir. 1999)(evidentiary hearing required on issue of ineffective assistance).

Hart v. Gomez, 174 F.3d 1067 (9th Cir. 1999)(failure of counsel to investigate evidence of client's actual innocence was constitutionally defective requiring habeas relief).

Gallego v. United States, 174 F.3d 1196 (11th Cir. 1999)(Counsel's failure to explain right to testify at trial warranted vacating of sentence for ineffective assistance).

McHale v. United States,, 175 F.3d 115 (2nd Cir. 1999)(proper remedy where counsel fails to perfect a direct appeal and ineffective assistance is claimed in §2255 motion is for Court of Appeals to recall mandate dismissing direct appeal and reinstate the appeal; it is not necessary to show that appeal had merit).

Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999)(deficient performance by counsel in presenting mitigating evidence at capital sentencing phase).

Singleton v. Johnson, 178 F.3d 381 (5th Cir. 1999)(evidentiary hearing required on issue of whether counsel knew of defendant's desire to appeal).

Restrepo v. Kelly, 178 F.3d 634 (2nd Cir. 1999)(failing to file notice of appeal by attorney is cause and prejudicial per se for purpose of habeas review).

Arrredondo v. United States, 178 F.3d 778 (6th Cir. 1999)(ineffective assistance in failing to object to drug quantity).

Mercadel v. Cain, 179 F.3d 271 (5th Cir. 1999)(ineffective assistance claim not obviously lacking in merit).

White v. Johnson, 180 F.3d 648 (5th Cir. 1999)(ineffective assistance for failing to file appeal within time allowed by Texas law).

Delgado v. Lewis, 181 F.3d 1087 (9th Cir. 1999)(deficient state appellate representation by failing to raise any issues on appeal and by failing to withdraw).

Schell v. Witek, 181 F.3d 1094 (9th Cir. 1999)(hearing necessary to determine if counsel was ineffective for failing to request appointment of substitute counsel and for failing to consult fingerprint expert).

Smith v. U.S., 182 F.3d 1023 (8th Cir. 1999)(defendant not compelled to stand trial in prison clothes in violation of his right to fair trial absent objection and evidentiary hearing was required to determine whether failure to object was ineffective assistance of counsel).

United States v. Williamson, 183 F.3d 458 (5th Cir. 1999)(defendant prejudiced by counsel's failure to raise the issue whether defendant's conviction could serve as trigger for career offender enhancement).

United States v. Weathers, 186 F.3d 948 (D.C. Cir. 1999)(remand for evidentiary hearing on ineffective assistance claim).

Parker v. Bowersox, 188 F.3d 923 (8th Cir. 1999)(penalty-phase counsel ineffective in death penalty case in failing to call former attorney to testify that petitioner was aware prior to date of murder that victim was no longer a potential witness against him).

Smith v. Stewart, 189 F.3d 1004 (9th Cir. 1999)(counsel's nonstrategic failure at resentencing to investigate, develop and present new mitigating evidence was deficient and undermined confidence

in decision to reimpose death sentence).

Hull v. Kyler, 190 F.3d 88 (3rd Cir. 1999)(trial counsel ineffective for deficient performance at competency hearing).

Chandler v. United States, 193 F.3d 1297 (11th Cir. 1999)(failure to investigate defendant's good character in death case ineffective assistance).

Dubria v. Smith, 197 F.3d 390 (9th Cir. 1999)(inflammatory statements in pre-trial interview required redaction; deficient performance by counsel in not objecting to characterization of defendant by prosecutor as "piece of garbage" and in suggesting that evidence not presented to jury supported murder charges).

Bell v. Jarvis, 198 F.3d 432 (4th Cir. 1999)(violation of right to public trial in closing courtroom simply because young victim of sex crime will testify; appellate counsel ineffective in not raising the issue).

Prou v. United States, 199 F.3d 37 (1st Cir. 1999)(information seeking enhanced sentence due to prior drug conviction must be given prior to trial; failure of counsel to object on this ground was procedural default; failure of counsel to object on this ground was ineffective assistance).

Hernandez v. Cowan, 200 F.3d 995 (7th Cir. 2000)(ineffective cross-examination of government witness violated Sixth Amendment).

White v. Schotten, 201 F.3d 743 (6th Cir. 2000)(petitioner had constitutional right to effective assistance of counsel with respect to filing application to reopen direct appeal).

United States v. Phillips, 210 F.3d 345 (5th Cir. 2000)(ineffective assistance not to challenge obstruction of justice enhancement on appeal where challenge was meritorious).

United States v. Castano, 211 F.3d 871 (5th Cir. 2000)(Defense counsel ineffective for failing to file notice of appeal even though defendant waived appeal in plea agreement.).

United States v. Calderon, 211 F.3d 1148 (9th Cir. 2000)(Petitioner denied of effective counsel at penalty phase of death penalty case because counsel did not prepare and investigate.).

Stouffer v. Reynolds, 214 F.3d 1231 (10th Cir. 2000)(stipulation resulted in waiver by State of any exhaustion requirement; capital defendant prejudiced by counsel's failure at guilt phase of trial to lay proper foundation for relevant evidence, to challenge state's evidence, and to set forth defensive theory).

United States v. McCoy, 215 F.3d 102 (D.C. Cir. 2000)(ineffective assistance found where counsel failed correctly to apply career offender provisions of Guidelines when determining sentencing range defendant would face if he accepted plea agreement).

Flores v. Demskie, 215 F.3d 293 (2nd Cir. 2000)(counsel's waiver of Rosario claim, requiring prosecution to deliver witness's prior statement, was objectionably unreasonable and prejudiced defendant).

United States v. Patterson, 215 F.3d 776 (7th Cir. 2000)(counsel's extended absences from trial

warranted new trial for ineffective assistance; remand required to determine if sentencing judge understood he had discretion to depart from guidelines where he imposed life sentence).

Manning v. Foster, 224 F.3d 1129 (9th Cir. 2000)(cause for procedural default existed where petitioner failed to seek collateral relief in reliance on actions of attorney who failed to perfect timely appeal after petitioner made timely request that he do so, creating presumption of prejudice).

Jones v. United States, 214 F.3d 1251 (11th Cir. 2000)(defense counsel's performance was deficient when he failed to argue suppression of wiretap evidence despite government's delay of at least 31 days in sealing such evidence).

Bacon v. Lee, 225 F.3d 470 (4th Cir. 2000)(writ granted on ineffective assistance claim).

Harris v. Day, 226 F.3d 361 (5th Cir. 2000)(constructive denial of effective assistance of counsel where Anders brief failed to mention any arguable issues on appeal).

United States v. Recio, 226 F.3d 1087 (9th Cir. 2000)(insufficient evidence to prove drug conspiracy; counsel's failure to move for acquittal on drug possession charge after defendant's first trial was ineffective assistance).

Cossell v. Miller, 229 F.3d 649 (7th Cir. 2000)(State waived claim that petitioner procedurally defaulted his ineffective assistance claim; counsel ineffective for failing to object to in-court identification of defendant which lacked sufficient independent reliability.).

Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000)(ineffective assistance of counsel for failing to investigate mitigating evidence to present during sentencing phase of capital trial).

Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000)(Failure to investigate and present meaningful mitigating evidence in preparation for sentencing phase of capital trial was ineffective.).

Hudson v. Hunt, 235 F.3d 892 (4th Cir. 2000)(Deficient performance of counsel regarding consultation with client about appeal required remand for prejudice determination.).

Battenfield v. Gibson, 236 F.3d 1215 (10th Cir. 2001)(Counsel's preparation for sentencing phase of capital trial was deficient and prejudiced defendant.).

Lindstadt v. Keane, 239 F.3d 191 (2nd Cir. 2001)(Ineffective assistance resulted from four errors by defense counsel, including failure to request study relied on by prosecution expert).

United States v. Wilson, 240 F.3d 39 (D.C. Cir. 2001) (remand on ineffective assistance of counsel claim; evidence insufficient to establish that defendant's organizational activity was "otherwise extensive;" hence four level enhancement not justified).

Wilcox v. McGee, 241 F.3d 1242 (9th Cir. 2001)(Counsel's failure to make double jeopardy claim for second prosecution for same burglary offense was ineffective assistance, which claim was fairly presented to state courts.).

Miller v. Anderson, 255 F.3d 455 (7th Cir. 2001)(Petitioner charged with murder and rape was denied effective assistance of counsel as result of counsel's failure to adequately investigate or consult hair, DNA, and treadmark and footprint experts).

Hughes v. United States, 258 F.3d 453 (6th Cir. 2001)(Counsel's failure to strike juror who stated on voir dire that she did not think she could be fair constituted ineffective assistance; given juror's express admission of bias, with no rehabilitation by counsel or the court, actual bias of juror was established, requiring a new trial).

United States v. Jimenez Recio, 258 F.3d 1069 (9th Cir. 2001)(insufficient evidence of drug conspiracy; counsel's failure to move for acquittal on drug possession charge was ineffective assistance).

United States v. Morris, 259 F.3d 894 (7th Cir. 2001)(remand to consider ineffective assistance claim where attorney misinformed defendant of consequence of plea).

United States v. Villalpando, 259 F.3d 934 (8th Cir. 2001)(grant of motion for new trial due to ineffective assistance affirmed where defense counsel elicited evidence of threats by defendant and evidence that defendant had ordered a murder).

Pavel v. Hollins, 261 F.3d 210 (2nd Cir. 2001)(In child abuse case, counsel was ineffective for failing to prepare a defense, failing to call important fact witnesses, failing to conduct adequate investigation, and failing to present medical expert in child.).

Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001)(Presumption of prejudice arose from fact that defense counsel slept repeatedly during trial; Sixth Amendment claim not barred by retroactivity principles of Teague.).

Burns v. Gammon, 260 F.3d 892 (8th Cir. 2001)(Defense counsel's failure to object to prosecutor's comment during closing argument was ineffective assistance of counsel, prejudicing petitioner, and was sufficient cause to warrant habeas relief.).

Magana v. Hofbauer, 263 F.3d 542 (6th Cir. 2001)(Petitioner was denied effective assistance of counsel by counsel's giving erroneous advice at plea hearing regarding estimated prison sentence.).

Greer v. Mitchell, 264 F.3d 663 (6th Cir. 2001)(Evidentiary hearing necessary to determine if appellate counsel was ineffective in failing to assert ineffectiveness of trial counsel.).

Jermyn v. Horn, 266 F.3d 257 (3rd Cir. 2001)(Failure to investigate severe abuse during defendant's childhood and present evidence during sentencing phase of capital trial was ineffective assistance of counsel warranting habeas relief.).

Weinberger v. United States, 268 F.3d 346 (6th Cir. 2001)(Defendant could raise ineffective assistance of counsel claims where issues properly preserved.).

Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001)(ineffective assistance in death penalty case for failing to develop and present mitigating evidence regarding petitioner's background).

Ainsworth v. Woodford, 268 F.3d 868 (9th Cir. 2001)(Counsel's deficient performance during penalty phase of capital trial in failing to develop and present mitigating evidence was prejudicial to defendant under Strickland test.).

Manning v. Huffman, 269 F.3d 720 (6th Cir. 2001)(Since failure to raise ineffective assistance of counsel on direct appeal was not ground relied on by state court, the claim was not procedurally barred; trial counsel's failure to object to procedure where alternate jurors were allowed to participate in deliberations was prejudicial.).

Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001)(Deficient performance by counsel at penalty phase of death penalty case prejudiced petitioner and warranted habeas relief.).

Fields v. Bagley. 275 F.3d 478 (6th Cir. 2001)(Absence of counsel during state's interlocutory appeal

of suppression order was ineffective assistance of counsel warranting habeas corpus relief.).

Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir. 2002)(Petitioner was prejudiced by absence of proposed steroid testimony, and counsel's reasons for not presenting testimony would be addressed on remand.).

Garcia v. United States, 278 F.3d 134 (2nd Cir. 2002)(deficient performance in telling defendant he could not appeal when no waiver of appeal in plea agreement).

Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002)(ineffective assistance for failure to investigate mitigating evidence for penalty phase of capital trial warranted habeas relief).

Eagle v. Linahan, 279 F.3d 926 (11th Cir. 2001)(Appellate lawyer was ineffective for failing to raise Batson claim on direct appeal.).

Ramirez v. Attorney General, 280 F.3d 87 (2nd Cir. 2001)(Counsel's letter application to highest state court for leave to appeal conviction sufficiently presented issue of ineffective assistance).

Florez v. Williams, 281 F.3d 1136 (10th Cir. 2002)(New Mexico Court of Appeals' determination that failure to request lesser-
included offense instruction was not ineffective under Strickland was unreasonable interpretation of federal law.).

Fisher v. Gibson, 282 F.3d 1283 (10th Cir. 2002)(Counsel's deficient performance in failing to investigate, failing to act as reasonably diligent and professional advocate, showing apparent sympathy for state's case, failing to act as loyal advocate, and failing to advance any defensive theory warranted habeas corpus relief.).

United States v. Schwarz, 283 F.3d 76 (2nd Cir. 2002)(defendant denied effective assistance of counsel by unwaivable conflict of interest; jury exposed to prejudicial extrinsic information; insufficient evidence to support conviction for obstruction of justice).

Karis v. Calderon, 283 F.3d 1117 (9th Cir. 2002)(Failure of counsel to adequately investigate defendant's troubled childhood was deficient and warranted habeas relief.).

United States v. Day, 285 F.3d 1167 (9th Cir. 2002)(Counsel's advice that defendant would only be allowed to make sentencing entrapment argument if he proceeded to trial deprived defendant of opportunity intelligently to consider his plea offer and to make informed decision about it and was prejudicial.).

Johnson v. Chapman, 288 F.3d 1215 (10th Cir. 2002)(Failure of petitioner's state appellate counsel to perfect appeal was ineffective assistance of counsel, and petitioner would be released unless state granted him an out-of-time appeal.).

Everett v. Beard, 290 F.3d 500 (3rd Cir. 2002)(Trial counsel was ineffective for failing to object to jury instruction which permitted jury to convict defendant , who was charged as an accomplice, of first degree murder if his accomplice intended to cause death of the victim.).

United States v. Stricklin, 290 F.3d 748 (5th Cir. 2002)(Counsel's failure to object to drug quantity by insisting upon deduction of amount of by-product was ineffective assistance.).

Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002)(Counsel's failure to investigate petitioner's mental health was deficient and prejudiced petitioner).

Roche v. Davis, 291 F.3d 473 (7th Cir. 2002)(Given considerable evidence of mitigating circumstances, counsel's deficient performance in failing to object to defendant being brought to sentencing phase of capital trial in shackles prejudiced defendant.).

United States v. Hylton, 294 F.3d 130 (D.C. Cir. 2002)(Counsel's failure to make Kastigar objection to co-conspirator's testimony against defendant was ineffective assistance, where defendant's post-arrest debriefing statements made without valid waiver of 5th Amendment rights were a cause of co-defendant's decision to plead guilty and testify against defendant.).

Cox v. United States, 294 F.3d 959 (8th Cir. 2002)(Where counsel promised to petition for certiorari but failed to, judgment affirming conviction would be vacated and new judgment entered to allow timely filing of the petition.).

Avila v. Galaza, 297 F.3d 911 (9th Cir. 2002)(Defense counsel's failure to investigate or introduce evidence that petitioner's brother was actual shooter in attempted murder prosecution was ineffective assistance of counsel warranting habeas relief.).

Rios v. Rocha , 299 F. 3d 796 (9th Cir. 2002)(Ineffective assistance of counsel occurred where the defense counsel failed to interview more than one witness to a shooting before deciding to abandon a misidentification defense).

Gentry v. Roe, 300 F.3d 1007 (9th Cir. 2002)(State court determination that petitioner was not denied effective assistance of counsel was objectively unreasonable application of federal law warranting habeas relief.).

Brown v. Sternes, 304 F.3d 677 (7th Cir. 2002)(failure to investigate petitioner's psychiatric condition and failure to demand action on unexecuted subpoena for medical records resulted in prejudice to petitioner, and state court's determination to the contrary was an unreasonable application of federal law.).

Luna v. Cambra, 306 F.3d 954 (9th Cir. 2002)(Defense counsel's deficient performance in failing to call alibi witnesses and in failing to interview and obtain inculpatory statement from exonerating witness was prejudicial under Strickland.).

Brownlee v. Haley, 306 F.3d 1043 (11th Cir. 2002)(Trial counsel's failure to investigate, obtain, or present evidence of mitigating circumstances to sentencing jury was ineffective assistance.).

United States v. Bass, 310 F.3d 321 (5th Cir. 2002)(Counsel's failure to raise sufficiency of evidence issue on appeal was prejudicial.).

United States v. Couto, 311 F.3d 179 (2nd Cir. 2002)(counsel ineffective for misrepresenting to defendant deportation consequences of his guilty plea.).

Johnson v. United States, 313 F.3d 815 (2nd Cir. 2002)(non-barred ineffective assistance claim for failure to object to calculation of base offense level).

Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002)(Failure to request jury instruction based on diminished capacity was ineffective assistance of counsel.).

Table of Contents

INSUFFICIENT EVIDENCE

United States v. Adams, 174 F.3d 571 (5th Cir. 1999)(Prosecution failed to prove requisite intent under Migratory Bird Treaty Act where defendant's scattering of wheat on field fell under bonafide agricultural operations or procedures exception).

United States v. Gibbs, 174 F.3d 762 (6th Cir. 1999)(insufficient evidence to prove conspiracy under "slight evidence" test and to prove firearms convictions).

United States v. Goynes, 175 F.3d 350 (5th Cir. 1999)(failure to prove intent in prosecution for mailing threatening communications).

United States v. Checora, 175 F.3d 782 (10th Cir. 1999)(departures for extreme conduct not adequately supported; restitution order not supported by sufficient evidence).

United States v. Green, 175 F.3d 822 (10th Cir. 1999)(prior convictions and attribution of drugs not supported by sufficient evidence).

United States v. Stotts, 176 F.3d 880 (6th Cir. 1999) ("use" and "carry" prongs of 18 U.S.C. §924(c) not met requiring reversal for insufficient evidence).

United States v. Charley, 176 F.3d 1265 (10th Cir. 1999)(insufficient evidence to support conviction of child abuse on Indian reservation).

United States v. McGuire, 178 F.3d 205 (3rd Cir. 1999)(insufficient proof of interstate commerce in prosecution under 18 U.S.C. § 844(i)).

United States v. Martin, 180 F.3d 965 (8th Cir. 1999)(insufficient evidence to support conviction for being felon in possession of firearm–constructive possession issue).

United States v. Gibbs, 182 F.3d 408 (6th Cir. 1999)(insufficient evidence to support conspiracy and firearms convictions).

United States v. Guadagna, 183 F.3d 122 (2nd Cir. 1999)(evidence insufficient to support defendant's conviction on second count of wire fraud stemming from phone call made as part of fraudulent sweepstakes telemarketing scheme).

United States v. Davis, 183 F.3d 231 (3rd Cir. 1999)(evidence insufficient to support conviction for interfering with wiretap, obstruction of grand jury proceeding, conspiracy to obstruct justice, and racketeering; defendant entitled to intoxication instruction with respect to witness tampering charge).

United States v. Orduno-Aguilera, 183 F.3d 1138 (9th Cir. 1999)(insufficient evidence to prove ester derivatives of drugs promoted muscle growth, as required to prove drugs were anabolic steroids).

United States v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999)(Bruton error not harmless; insufficient evidence of conspiracy in drug case; insufficient evidence of using or carrying firearm in relation to drug trafficking crime; insufficient notice by government of intent to seek sentence enhancement based on prior convictions).

United States v. Laljie, 184 F.3d 180 (2nd Cir. 1999)(insufficient evidence of mail fraud).

United States v. Washington, 184 F.3d 654 (7th Cir. 1999)(conviction based on incredible evidence).

United States v. Barajas-Montiel, 185 F.3d 947 (9th Cir. 1999)(criminal intent required for felony offense of bringing in illegal aliens for financial gain).

United States v. Anderson, 189 F.3d 1201 (10th Cir. 1999)(insufficient evidence of money laundering; insufficient evidence to support finding that defendant was manager, organizer, leader or supervisor).

United States v. Charley, 189 F.3d 1251 (10th Cir. 1999)(insufficient evidence of one count in prosecution for child abuse on Indian reservation).

United States v. Reveles, 190 F.3d 678 (5th Cir. 1999)(insufficient evidence in 21 U.S.C. 846 prosecution).

United States v. Walker, 191 F.3d 326 (2nd Cir. 1999)(insufficient evidence in one count of making false statements to INS).

United States v. Colon-Munoz, 192 F.3d 210 (1st Cir. 1999)(insufficient evidence to support conviction for misapplication of bank funds and making false statement on loan document).

United States v. Layne, 192 F.3d 556 (6th Cir. 1999)(insufficient evidence to support crack cocaine conviction; defendant did not "use" or "carry" firearm during and in relation to drug trafficking offense).

United States v. Applewhaite, 195 F.3d 679 (3rd Cir. 1999)(insufficient evidence to support carjacking convictions).

United States v. Barnett, 197 F.3d 138 (5th Cir. 1999)(insufficient evidence of intent in murder conspiracy prosecution).

United States v. Owusu, 199 F.3d 329 (6th Cir. 2000)(insufficient evidence of distribution of heroin).

United States v. Olaniyi-Oke, 199 F.3d 767 (5th Cir. 1999)(insufficient evidence of money laundering in unauthorized use of credit card to purchase computers only for personal use).

United States v. Rosario-Diaz, 202 F.3d 54 (1st Cir. 2000)(insufficient evidence in carjacking prosecution).

United States v. Wood, 207 F.3d 1222 (10th Cir. 2000)(insufficient evidence to prove premeditation or malice aforethought in murder prosecution; Rule 403 violation in admission of expert testimony

on use of potassium chloride in execution of animals; reversed for cumulative evidentiary errors and

error in denying motion for judgment of acquittal).

United States v. Bryce, 208 F.3d 346 (2nd Cir. 2000)(Defendant's uncorroborated admissions insufficient to support possession and distribution convictions and did not fall under special circumstances exception to corroboration requirement.).

United States v. Coleman, 208 F.3d 786 (9th Cir. 2000)(involuntary statement evidenced by inducement to cooperate; evidence sufficient to convict for bank robbery but not for armed bank robbery).

United States v. Reliford, 210 F.3d 285 (5th Cir. 2000)(insufficient evidence of attempted distribution of crack cocaine).

United States v. Torres-Ramirez, 213 F.3d 978 (7th Cir. 2000)(insufficient evidence that one defendant joined in conspiracy).

United States v. Hoskins, 173 F.3d 351 (6th Cir. 1999)(insufficient evidence of drug conspiracy).

United States v. Estrada-Macias, 218 F.3d 1064 (9th Cir. 2000)(insufficient evidence in prosecution for conspiracy to manufacture methampthetamine).

United States v. White, 219 F.3d 442 (5th Cir. 2000)(insufficient evidence of possession with intent to distribute cocaine).

Patterson v. Gomez, 223 F.3d 959 (9th Cir. 2000)(instruction in guilty phase of capital murder trial that jury presume that defendant was sane violated due process and was not harmless).

United States v. Pena-Lora, 225 F.3d 18 (1st Cir. 2000)(insufficient evidence in hostage-taking conspiracy prosecution; mandatory sentences for using multiple weapons during single crime of violence could not be consecutive to each other).

United States v. Gee, 226 F.3d 885 (7th Cir. 2000)(insufficient evidence in wire and mail fraud prosecution; lack of buyer-seller instruction required reversal).

United States v. Recio, 226 F.3d 1087 (9th Cir. 2000)(insufficient evidence to prove drug conspiracy; counsel's failure to move for acquittal on drug possession charge after defendant's first trial was ineffective assistance).

United States v. Velazquez, 246 F.3d 204 (2nd Cir. 2001)(insufficient evidence of heat of passion to establish that underlying offense was voluntary manslaughter; clarification required as to malice; Apprendi error recognizable even if defendants withdrew their appeals due to possibility of increased sentence after remand).

United States v. Loe, 248 F.3d 449 (5th Cir. 2001)(insufficient evidence to support money laundering convictions because government could not prove withdrawal contained dirty money).

United States v. Diaz, 248 F.3d 1065 (11th Cir. 2001)(insufficient evidence of Hobbs Act violations; court could not enhance sentence by 5 levels for weapons based on brandishing or possession by a co-defendant).

United States v. Landham, 251 F.3d 1072 (6th Cir. 2001)(deficient indictment with respect to interstate transmission of threats to kidnap; insufficient evidence to prove true threat to kidnap or threat to injure; vulgar disparaging comments to wife did not support conviction for making obscene interstate telephone calls).

United States v. Iiland, 254 F.3d 1264 (10th Cir. 2001)(Evidence insufficient to support conviction for firearm possession in furtherance of drug trafficking activity).

United States v. Holloway, 259 F.3d 1199 (9th Cir. 2001)(evidence insufficient to prove armed bank robbery and carrying a firearm in relation to a violent crime).

United States v. Desena, 260 F.3d 150 (2nd Cir. 2001)(insufficient evidence to sustain conviction for conspiracy to assault with dangerous weapon in aid of racketeering).

United States v. Turner, 272 F.3d 380 (6th Cir. 2001)(insufficient evidence to prove interstate commerce element of Hobbs Act convictions).

United States v. Gumbs, 283 F.3d 128 (3rd Cir. 2002)(insufficient evidence in False Claims Act case to prove that defendant knowingly made claim under a federally-funded contract).

United States v. Cruz, 285 F.3d 692 (8th Cir. 2002)(insufficient evidence to prove defendant had constructive possession of house where methamphetamine was found and insufficient evidence to prove conspiracy).

United States v. Cano, 289 F.3d 1354 (11th Cir. 2002)(insufficient evidence to prove defendant possessed marijuana during relevant time period).

United States v. Booze, 293 F.3d 516 (D.C. Cir. 2002)(District Court applied incorrect standard in determining whether attorney's advice to defendant to accept plea was ineffective assistance; standard should have been whether counsel made a "plainly incorrect" estimate of sentence due to ignorance of the law; remanded for evidentiary hearing to determine if plea offer was made.).

United States v. Hernandez-Bautista, 293 F.3d 845 (5th Cir. 2002)(Evidence did not support convictions for possession of marijuana with intent to distribute.).

United States v. McCarrick, 294 F.3d 1286 (11th Cir. 2002)(insufficient evidence of specific intent to defraud bank).

Table of Contents

INTERSTATE COMMERCE

United States v. McGuire, 178 F.3d 205 (3rd Cir. 1999)(insufficient proof of interstate commerce in prosecution under 18 U.S.C. § 844(i)).

United States v. Wilson, 182 F.3d 737 (9th Cir. 1999)(reversed and remanded for failure to prove jurisdictional element of proof of visual depiction of minors engaged in sexually explicit conduct produced using materials which traveled in interstate commerce–no proof of interstate commerce).

United States v. Johnson, 194 F.3d 657 (5th Cir. 1999)(in prosecution for church burning under federal arson statute, factual basis for guilty plea insufficient where only evidence of interstate commerce nexus was out-of-state insurer's payment to church and fact that church was a dues-paying member of an organization that funded a national body).

United States v. Tasy, 203 F.3d 1060 (8th Cir. 2000)(insufficient nexus to interstate commerce to form basis for federal jurisdiction).

Jones v. United States, ___U.S. ___, 120 S. Ct. 1904 (2000)(An owner-occupied residence not used for any commercial purpose does not qualify as "property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce" within the meaning of the federal arson statute, and arson of such a dwelling is not subject to prosecution under that statute.).

United States v. Rea, 223 F.3d 741 (8th Cir. 2000)(church's use of materials purchased in interstate commerce and use of natural gas and fact that property in question was church property insufficient bases to satisfy jurisdictional requirement of federal arson statute).

United States v. Faasse, 227 F.3d 660 (6th Cir. 2000)(Child Support Recovery Act is unconstitutional because it exceeds Congress's commerce clause authority).

United States v. Ryan, 227 F.3d 1058 (8th Cir. 2000)(Supreme Court decision in Jones v. United States relative to standard applied in determining whether building is used in interstate commerce or in activity affecting commerce withing meaning of arson statute established the substantive reach of the statute, rather than a new rule of criminal procedure, and thus could be applied retroactively; insufficient nexus with interstate commerce in this case to sustain conviction).

United States v. Peterson, 236 F.3d 848 (7th Cir. 2001)(insufficient evidence of de minimus impact on interstate commerce in Hobbs Act prosecution).

United States v. Johnson, 246 F.3d 749 (5th Cir. 2001)(insufficient factual basis to support plea to charge of arson of property used in interstate commerce where no showing of substantial effect on interstate commerce or active employment of church building for commercial purposes).

United States v. Odom, 252 F.3d 1289 (11th Cir. 2001)(insufficient evidence that church was used in or affected interstate commerce so as to bring it within purview of federal arson statute).

United States v. Turner, 272 F.3d 380 (6th Cir. 2001)(insufficient evidence to prove interstate commerce element of Hobbs Act convictions).

United States v. Lynch, 282 F.3d 1049 (9th Cir. 2002)(Applying Fifth Circuit rule in Collins to facts of case, case would be remanded to determine if evidence supported a finding that defendant stole from a person "directly and customarily engaged in interstate commerce;" created a likelihood that assets of an entity engaged in interstate commerce would be depleted; or victimized a large number of individuals or took a sum so large that there was "some cumulative effect on interstate commerce.").

United States v. Rea, 300 F.3d 952 (8th Cir. 2002)(In prosecution under federal arson statute, there was an insufficient factual basis to support conditional plea because of insufficient evidence that church annex was used in interstate commerce or in any activity affecting interstate commerce.).

United States v. Ballinger, 312 F.3d 1264 (11th Cir. 2002)(Neither churches' acceptance of donations from out of state donors, their purchase of books from out-of-state vendors, their membership in and financial contributions to national church organization, nor fact that they had out-of-state members and occasionally hosted out-of-state guests, had substantial effect on interstate commerce as required to violate Church Arson Prevention Act.).

United States v. Perrotta, 313 F.3d 33 (2nd Cir. 2002)(insufficient evidence that victim was directly involved in interstate commerce to satisfy Hobbs Act jurisdictional requirement).

United States v. Henriques, 234 F.3d 263 (5th Cir. 2000)(insufficient connection to internet to sastisfy jurisdictional interstate commerce element in child pornography prosecution where one of three images was not connected to internet).

Table of Contents

JUDICIAL MISCONDUCT

Bracy v. Schomig, 286 F.3d 406 (7th Cir. 2002)(Inference of bias occurred during penalty phase of capital trial because of presiding judge's practice of accepting bribes in other cases.).

JURY DELIBERATIONS

United States v. Santana, 175 F.3d 57 (1st Cir. 1999)(allowing jury during deliberations to observe defendant's ears, which were covered by headphones during trial, allowed jury to consider extrinsic information).

United States v. Davis, 177 F.3d 552 (6th Cir. 1999)(when one juror requested to be excused from deliberations, it was error not to question all jurors about prejudicial , extraneous information; error not to merge conviction for stealing U.S. property into robbery conviction).

United States v. Symington, 195 F.3d 1080 (9th Cir. 1999)(error to dismiss juror during deliberations because reasonable possibility existed that impetus for dismissal was her position on merits of case).

United States v. Humphrey, 208 F.3d 1190 (10th Cir. 2000)(Abuse of discretion in limiting investigation into whether jurors were exposed to extraneous information; defendant entitled to instruction on simple possession in 21 U.S.C. § 841(a) case; evidence did not support enhancement for use of a minor.).

United States v. Ali, 266 F.3d 1242 (9th Cir. 2001)(evidence insufficient as a matter of law to show bank was federally insured at time of robbery).

United States v. Carpa, 271 F.3d 962 (11th Cir. 2001)(District court's investigation of alleged juror misconduct was inadequate.).

Packer v. Hill, 277 F.3d 1092 (9th Cir. 2002)(trial judge's statements and actions during jury deliberation unduly coercive; requiring defendant to wear leg brace during trial due process violation).

Fullwood v. Lee, 290 F.3d 663 (4th Cir. 2002)(Petitioner was entitled to evidentiary hearing on claim that juror was improperly influenced by her husband in voting on death sentence; petitioner entitled to evidentiary hearing to explore whether jury was improperly influenced by consideration that he had received death sentence from another jury.).

Table of Contents

JURY INSTRUCTIONS

United States v. Gergen, 172 F.3d 719 (9th Cir. 1999)(jury instruction eliminating mens rea requirement in possession of firearm was error; government had burden of proving defendant knew of particular characteristics of weapon which made it a firearm).

United States v. Hernandez, 176 F.3d 719 (3rd Cir. 1999)(error to instruct jury that they can convict based on what is in their own heart, soul and spirit).

United States v. Whitehead, 176 F.3d 1030 (8th Cir. 1999)(prejudicial error in failing to give instruction on "insolvency" when it was element of crime of bank fraud and false statement).

United States v. Frega, 179 F.3d 793 (9th Cir. 1999)(misleading jury instruction on RICO).

United States v. Jackson, 180 F.3d 55 (2nd Cir. 1999)(erroneous instruction on element of threat to reputation which has no nexus to a claim of right in prosecution for transmission of extortionate threats to injure reputation).

United States v. Nunez, 180 F.3d 227 (5th Cir. 1999)(erroneous jury instruction allowed defendant to be convicted of uncharged crime).

United States v. Ramos-Torres, 187 F.3d 909 (8th Cir. 1999)(inadvertently giving jury instruction relating to dismissed forfeiture count against defendant rose to level of structural error rendering trial fundamentally unfair and requiring reversal).

United States v. Yazzie, 188 F.3d 1178 (10th Cir. 1999)(instruction on lesser-included offense required; defendant's refusal to sign waiver of Miranda rights form overridden by his verbal indication that he understood his rights and was willing to talk to police).

United States v. Shipsey, 190 F.3d 1081 (9th Cir. 1999)(Constructive amendment of indictment by district court required reversal).

Smalls v. Batista, 191 F.3d 272 (2nd Cir. 1999)(improperly coercive Allen charge not harmless).

United States v. Pasillas-Gaytan, 192 F.3d 864 (9th Cir. 1999)(error not to include mens rea requirement in instructions in prosecution for unlawful procurement of naturalization and error not harmless; acquittal on false statement count precluded retrial).

United States v. Richardson, 195 F.3d 317 (7th Cir. 1999)(remanded for dismissal of CCE count due to improper jury instructions).

United States v. Pigee, 197 F.3d 879 (7th Cir. 1999)(constructive amendment by instruction to jury that government had to prove defendant made building available for unlawful purpose deprived defendant of Fifth Amendment right to indictment by grand jury).

Conde v. Henry, 198 F.3d 734 (9th Cir. 1999)(right to counsel denied by precluding attorney from arguing theory of defense; requested jury instruction on simple kidnapping should have been given; error to modify California pattern jury instruction to remove immediate presence requirement for robbery).

United States v. Hassouneh, 199 F.3d 175 (4th Cir. 2000)(error in instructing jury on term "maliciously" and error to exclude evidence that defendant was a prankster in prosecution for falsely stating there was bomb in bag he sought to place aboard civil aircraft).

United States v. Anderson, 201 F.3d 1145 (9th Cir. 2000)(failure to give instruction on involuntary manslaughter in voluntary manslaughter prosecution).

Gaines v. Kelly, 202 F.3d 598 (2nd Cir. 2000)(jury instruction defining reasonable doubt seven different ways was constitutionally defective).

United States v. Humphrey, 208 F.3d 1190 (10th Cir. 2000)(Abuse of discretion in limiting investigation into whether jurors were exposed to extraneous information; defendant entitled to instruction on simple possession in 21 U.S.C. § 841(a) case; evidence did not support enhancement for use of a minor.).

Coleman v. Calderon, 210 F.3d 1047 (9th Cir. 2000)(Instruction on governor's power to commute sentence in death case was unconstitutional, and error was not harmless.).

United States v. Smith, 217 F.3d 746 (9th Cir. 2000)(refusal of court to instruct on defendant's theory of defense that he was not aware that firearm was fully automatic was not harmless).

United States v. Sauza-Martinez, 217 F.3d 754 (9th Cir. 2000)(failure of court to give limiting instruction when it admitted post-
arrest incriminating statement by co-defendant directly implicating defendant was plain error).

United States v. Fuchs, 218 F.3d 957 (9th Cir. 2000)(failure to instruct that at least one overt act in furtherance of conspiracy must have occurred during the limitations period was plain error).

Patterson v. Gomez, 223 F.3d 959 (9th Cir. 2000)(instruction in guilty phase of capital murder trial that jury presume that defendant was sane violated due process and was not harmless).

United States v. Walls, 225 F.3d 858 (7th Cir. 2000)(erroneous instruction regarding firearm count was not harmless).

United States v. Gee, 226 F.3d 885 (7th Cir. 2000)(insufficient evidence in wire and mail fraud prosecution; lack of buyer-seller instruction required reversal).

United States v. Eastern Medical Billing, Inc., 230 F.3d 600 (3rd Cir. 2000)(instruction given after jurors indicated that they may be hung on some charges was abuse of discretion and not harmless error).

United States v. Crowley, 236 F.3d 104 (2nd Cir. 2000)(District court should have given requested instruction on voluntary intoxication.).

Penry v. Johnson, 121 S. Ct. 1910 (2001)(Habeas relief warranted where instructions on mitigating circumstances in capital case failed to provide jury with vehicle to give effect to mitigating circumstances of mental retardation and childhood abuse.).

United States v. Pierre, 254 F.3d 872 (9th Cir. 2001)(Jury instruction on self-defense impermissibly shifted burden of proof to defendant and constituted reversible error).

Johnson v. Gibson, 254 F.3d 1155 (10th Cir. 2001)(Trial court's inappropriate response to jury question regarding meaning of life imprisonment without parole warranted federal habeas relief).

Murtishaw v. Woodford, 255 F.3d 926 (9th Cir. 2001)(Instructing jury based on 1978 Calif. death penalty statute, rather than 1977 statute in effect at time of offense, violated ex post facto clause and due process; erroneous instruction was not harmless, thus warranting grant of habeas petition with regard to death sentence).

United States v. Desir, 257 F.3d 1233 (11th Cir. 2001)(Magistrate inappropriately exercised authority of an Article III judge without defendant's consent, thus requiring reversal, by making final decision regarding deliberating jury's request for read-back of trial testimony).

Kelly v. South Carolina, 534 U.S. 246, 122 S. Ct. 726, 152 L. Ed. 2d 670 (2002)(Defendant was entitled to a jury instruction under Simmons that the only alternative punishment to death is life without parole.).

United States v. Baker, 262 F.3d 124 (2nd Cir. 2001)(Since jury was only instructed on lesser included offense, sentence for offense of murder to obstruct justice violated Sixth Amendment's right to trial by jury and Due Process Clause of Fifth Amendment.).

United States v. George, 266 F.3d 52 (2nd Cir. 2001)(Constitutional error resulted from erroneous jury instructions which allowed jury to convict based on reasonableness of defendant's behavior and not based on specific intent.).

Davis v. Strack, 270 F.3d 111 (2nd Cir. 2001)(Failure to give justification charge in case where petitioner was robbed at gunpoint three times, raped, and had life threatened was violation of due process warranting habeas relief.).

United States v. Rivera, 273 F.3d 751 (7th Cir. 2001)(insufficient evidence to establish drug conspiracy; erroneous jury instruction).

Garceau v. Woodford, 275 F.3d 769 (9th Cir. 2001)(Jury instruction allowing jury to draw inference of criminal propensity from other crimes evidence violated Due Process and was not harmless.).

United States v. McElhiney. 275 F.3d 928 (10th Cir. 2001)(Allen charge was impermissibly coercive.).

United States v. Brown, 287 F.3d 965 (10th Cir. 2002)(Defendant was entitled to instruction on lesser included offense of involuntary manslaughter in voluntary manslaughter prosecution.).

Caldwell v. Bell, 288 F.3d 838 (6th Cir. 2002)(Instruction on lesser included offense of second degree murder, that malice was presumed where defendant was shown to have used weapon and death is clearly shown to have resulted from its use, violated due process; instruction had a substantial and injurious effect on verdict.).

Packer v. Hill, 291 F.3d 569 (9th Cir. 2002)(Trial judge's statements and actions during jury deliberations were unduly coercive in violation of Defendant's Fourteenth Amendment due process rights.).

United States v. Descent, 292 F.3d 703 (11th Cir. 2002)(Modified jury instruction violated rule requiring trial judge to inform counsel of its proposed action on requested jury instructions prior to closing arguments.).

Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002)(Capital case penalty phase instruction which directed jury to determine whether murder involved "torture, depravity of mind, or mutilation of the victim" was unconstitutional and not harmless error.).

Table of Contents

JURY SELECTION

United States v. Maragh, 174 F.3d 1202 (11th Cir. 1999)(Magistrate must obtain on record explicit and personal consent of parties, not counsel, for magistrate to conduct voir dire).

United States v. Barnett, 175 F.3d 580 (7th Cir. 1990)(denial of habeas petitioner's motion for trial continuance violated due process, and limit on voir dire re: gang bias violated 6th Amendment).

Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999)(defendant entitled to deferential review of Batson claim, overruling Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995)).

United States v. Harris, 192 F.3d 580 (6th Cir. 1999)(It was structural error for district court to justify exclusion of African-
American prospective jurors solely because one African American was actually seated and two others who were struck would have only served as alternates).

United States v. Jones, 193 F.3d 948 (8th Cir. 1999)(juror's voir dire answers indicated she was biased in favor of police; failure to strike her for cause was reversible error).

United States v. Polichemi, 201 F.3d 858 (7th Cir. 2000)(error not to excuse for cause prospective juror who worked for U.S. Attorney who prosecuted case).

United States v. Jackson, 209 F.3d 1103 (9th Cir. 2000)(evidentiary hearing warranted on juror bias claim).

United States v. Gonzalez, 214 F.3d 1109 (9th Cir. 2000)(implied or express bias sufficient to justify excusing of juror for cause).

United States v. Henley, 238 F.3d 1111 (9th Cir. 2001)(District court erred in failing to make factual findings regarding claim of racial bias of juror.).

United States v. Harbin, 250 F.3d 532 (7th Cir. 2001)(Prosecution's mid-trial use of peremptory challenge in violation of court's instruction violated defendant's due process rights.).

United States v. Blanding, 250 F.3d 858 (4th Cir. 2001)(error for court to sustain under Batson challenge to defense counsel's strike of white venire member who had displayed bumper sticker with confederate flag.).

Galarza v. Keane, 252 F.3d 630 (2nd Cir. 2001)(Trial court failed to adjudicate under Batson whether it credited prosecutor's proffered explanations for striking three prospective jurors with Hispanic names.).

Eagle v. Linahan, 268 F.3d 1306 (11th Cir. 2001)(Trial judge's statement that he believed both parties were using peremptory challenges in discriminatory manner should have caused trial judge to require prosecution to give race neutral reasons for excluding black venire persons; appellate counsel's failure to raise Batson issue on direct appeal was ineffective assistance of counsel.).

United States v. Nelson, 277 F.3d 164 (2nd Cir. 2002)(impermissible race and religion-based reconstruction of jury by district court).

Riley v. Taylor, 277 F.3d 261 (3rd Cir. 2001)(habeas corpus granted for Batson and Caldwell violations).

Eagle v. Linahan, 279 F.3d 926 (11th Cir. 2001)(State trial judge erred in not requiring prosecution to provide race-neutral explanation for jury strikes.).

Bui v. Haley, 279 F.3d 1327 (11th Cir. 2002)(State failed to articulate race-neutral reasons for striking African-Americans.).

Fields v. Woodford, 281 F.3d 963 (9th Cir. 2002)(evidentiary hearing necessary to determine juror bias).

Fernandez v. Roe, 286 F.3d 1073 (9th Cir. 2002)(prima facie showing of Batson violation where prosecutor struck 4 out 7 Hispanics, 21% of strikes were made against Hispanics, Hispanics constituted only 12% of the venire, prosecutor struck the only 2 prospective African-American jurors, and prosecutor failed to engage in any meaningful questioning of minority jurors).

Table of Contents

JURY TAMPERING

United States v. Corrado, 227 F.3d 528 (6th Cir. 2000)(credible evidence of jury tampering and newspaper articles recounting jury tampering required remand for further investigation).

United States v. Dutkel, 192 F.3d 893 (9th Cir. 1999)(co-defendant's bribery and coercion of juror was prima facie jury tampering with respect to habeas petitioner).

Table of Contents

JUVENILES

United States v. Juvenile (RRA-A), 229 F.3d 737 (9th Cir. 2000)(prejudicial violations of the Juvenile Delinquency Act occurred when agent waited four hours before advising juvenile of rights under Miranda and by failing to notify Mexican consulate when parents could not be contacted and by failing to wait reasonable length of time to begin interrogation).

United States v. Wendy G., 255 F.3d 761 (9th Cir. 2001)(Juvenile defendant prejudiced by officers' failure to inform her mother that she would be given the opportunity to advise and counsel juvenile before custodial interrogation).

United States v. Gordon K., 257 F.3d 1158 (10th Cir. 2001)(Rule providing that court may correct sentence imposed as result of arithmetical, technical or other clear error applies to juvenile proceedings but failure to order restitution was not clear error that could be corrected under this rule).

Boyko v. Parke, 259 F.3d 781 (7th Cir. 2001)(evidentiary hearing warranted to determine if state withheld transcript of hearing held before his case was waived from juvenile court).

Table of Contents

MISCELLANEOUS CRIMES

United States v. Charley, 176 F.3d 1265 (10th Cir. 1999)(insufficient evidence to support conviction of child abuse on Indian reservation).

United States v. Waites, 198 F.3d 1123 (9th Cir. 2000)(homeless defendant charged with trespassing on federal facility for sleeping in post office did not violate postal regulation prohibiting disorderly conduct).

United States v. Giles, 213 F.3d 1247 (10th Cir. 2000)(unattached labels were not "goods" within meaning of that term as defined in the criminal trademark infringement statute).

United States v. Bronx Reptiles, Inc., 217 F.3d 82 (2nd Cir. 2000)(Government had burden of proving that defendant knowingly caused transportation of wild animals to the United States under inhumane conditions, which included knowledge of inhumane conditions under which they were being transported).

United States v. Kramer, 225 F.3d 847 (7th Cir. 2000)(in prosecution of willful failure to pay child support case, defendant allowed to assert defense that underlying judgment was obtained without personal jurisdiction over him, which defense would negate element of willfulness).

United States v. Peterson, 236 F.3d 848 (7th Cir. 2001)(insufficient evidence of de minimus impact on interstate commerce in Hobbs Act prosecution).

United States v. Kloess, 251 F.3d 941 (11th Cir. 2001)(Defense of "safe harbor" to obstruction of justice charge where allegedly obstructive conduct was in nature of bona fide legal services raised affirmative defense requiring government to prove its case.).

United States v. McCulligan, 256 F.3d 97 (3rd Cir. 2001)(District court's failure to submit to jury question of whether defendant committed "simple" or "non-simple" assault precluded it from imposing sentence based on its finding that assault was "non-
simple.").

United States v. Taylor, 258 F.3d 1065 (9th Cir. 2001)(Public component to disorderly conduct regulation required to sustain conviction.).

United States v. Poocha, 259 F.3d 1077 (9th Cir. 2001)(Uttering words "fuck you" or "that's fucked" to park ranger was protected by First Amendment and did not violate federal disorderly conduct regulation.).

United States v. Lynch, 265 F.3d 758 (9th Cir. 2001)(Crimes directed toward an individual, as opposed to a business, have the requisite interstate commerce nexus to provide federal jurisdiction under the Hobbs Act if (1) the acts deplete the assets of an individual who is directly and customarily engaged in interstate commerce; (2) if the acts cause or create the likelihood that the individual will deplete the assets of an entity engaged in interstate commerce; or (3) if the number of individuals victimized or the sum at stake is so large that there will be some cumulative effect on interstate commerce, following Fifth Circuit Collins decision.).

United States v. Sabretech, Inc., 271 F.3d 1018 (11th Cir. 2001)(Reckless violation of regulations promulgated under Hazardous Materials Transportation Act is not a crime.).

United States v. Mulder, 273 F.3d 91 (2nd Cir. 2001)(sentences remanded for particularized findings

as to scope of agreement of labor leaders to action of murderer in Hobbs Act prosecution).

United States v. Watkins, 278 F.3d 961 (9th Cir. 2002)(Felony offense of misbranding of drug under

Food, Drug and Cosmetic Act (FDCA) requires proof of materiality rather than mere knowledge of falseness of statement.).

United States v. Gumbs, 283 F.3d 128 (3rd Cir. 2002)(insufficient evidence in False Claims Act case to prove that defendant knowingly made claim under a federally-funded contract).

United States v. Mulero-Joubert, 289 F.3d 168 (1st Cir. 2002)(failure of proof that defendants had actual or constructive notice that their presence in security zone was prohibited by law).

United States v. Errol D., Jr., 292 F.3d 1159 (9th Cir. 2002)(District court lacked jurisdiction to try juvenile for burglary of a government building under the Indian Major Crimes Act (IMCA), which requires that the offense be against the person or property of another Indian or another person.).

United States v. Guerra, 293 F.3d 1279 (10th Cir. 2002)(In counterfeit cigar prosecution, district court erred in by relying in part on the value of genuine cigars and by basing the number of "infringing items" on the number of labels found on the premises of each defendant when it had based the value of "infringing items" on the value of cigars, not labels.).

United States v. Hardman, 297 F. 3d 1116 (10th Cir. 2002)(remand to determine whether the government's exclusion of eagle feather permits to Native American religious practitioners in non-federally recognized tribes is the least restrictive means of advancing the governmental interest to preserve the eagle population).

United States v. Pendergraft, 297 F.3d 1198 (11th Cir. 2002)(There is no extortion under the Hobbs Act where there are threats to sue the county unless it settled.).

Wallace v. Nash, 311 F.3d 140 (2nd Cir. 2002)(Pool cue was not inherently a weapon so as to justify conviction for possession of weapon based on striking another inmate with a pool cue.).

United States v. Ho, 311 F.3d 589 (5th Cir. 2002)(clearly erroneous finding that defendant committed an "ongoing, continuous, or repetitive discharge" in Clean Air Act case.).

United States v. Jackson, 313 F.3d 231 (5th Cir. 2002)(insufficient evidence to support jury finding that defrauded city received more than $10,000 in federal benefits within one year period during which it was defrauded to justify conviction under 18 U.S.C. § 606).

Table of Contents

MONEY LAUNDERING

United States v. Brown, 186 F.3d 661 (5th Cir. 1999)(expenditures made for legitimate business expenses did not amount to money laundering, although expenditures permitted defendant to stay in business and thus generally allowed for future fraudulent activities).

United States v. Anderson, 189 F.3d 1201 (10th Cir. 1999)(insufficient evidence of money laundering; insufficient evidence to support finding that defendant was manager, organizer, leader or supervisor).

United States v. Messer, 197 F.3d 330 (9th Cir. 1999)(delay unreasonable in violation of Speedy Trial Act; evidence insufficient as to one defendant in money laundering prosecution).

United States v. Miranda, 197 F.3d 1357 (11th Cir. 1999)(conviction for conspiracy to launder money violated ex post facto clause; sentence enhancement based on amount of funds laundered could not include transactions which predated enactment of statutes prohibiting money laundering).

United States v. Olaniyi-Oke, 199 F.3d 767 (5th Cir. 1999)(insufficient evidence of money laundering in unauthorized use of credit card to purchase computers only for personal use).

United States v. Calderon, 169 F.3d 718 (11th Cir. 1999)(evidence did not support conviction for money laundering and conspiracy to commit money laundering).

United States v. Stephenson, 183 F.3d 110 (2nd Cir. 1999)(evidence that defendant was involved with 1314 grams of crack cocaine was not legally insufficient as result of defendant's claim that crack he distributed contained caffeine; evidence of intentional down payment on vehicle of less than $10,000 to avoid triggering federal transaction reporting requirements insufficient to establish intent to conceal required for conviction under money laundering statute).

United States v. Phillips, 219 F.3d 404 (5th Cir. 2000)(failure to prove agency in prosecution for

theft from federally funded program; money laundering convictions reversed for failure to prove

that any transactions involved proceeds from "specified unlawful activity").

Patterson v. Gomez, 223 F.3d 959 (9th Cir. 2000)(instruction in guilty phase of capital murder trial that jury presume that defendant was sane violated due process and was not harmless).

United States v. Jolivet, 224 F.3d 902 (8th Cir. 2000)(mere act of depositing proceeds from insurance fraud insufficient to sustain money laundering conviction).

United States v. Bowman, 235 F.3d 1113 (8th Cir. 2000)(Facts as stipulated were insufficient to support conviction for money laundering under "structuring" subsection.).

United States v. Loe, 248 F.3d 449 (5th Cir. 2001)(insufficient evidence to support money laundering convictions because government could not prove withdrawal contained dirty money).

United States v. Marshall, 248 F.3d 525 (6th Cir. 2001)(Dual larceny conviction, one for taking money with intent to steal and the other for receiving money stolen from bank, was improper; insufficient evidence to support money laundering conviction.).

United States v. Farese, 248 F.3d 1056 (11th Cir. 2001)(Resentencing required because it was unclear whether the government proved beyond a reasonable doubt that money laundering was the object offense of conspiracy.).

United States v. Audain, 254 F.3d 1286 (11th Cir. 2001)(District court erred in sentencing defendants to life imprisonment for conspiracy to commit money laundering because statute carries a maximum sentence of twenty years).

United States v. Stewart, 256 F.3d 231 (4th Cir. 2001)(Improper venue for money laundering charges since defendant's role was limited to that of a courier, who was responsible for receiving money transfers and packages in California; district court improperly allowed defendant to be convicted on two sets of money laundering charges based upon same financial transactions simply because defendant possessed two different mental states.).

United States v. McGahee, 257 F.3d 520 (6th Cir. 2001)(Insufficient evidence to support money laundering convictions).

United States v. Handakas, 286 F.3d 92 (2nd Cir. 2002)(failure of predicate mail fraud counts precluded conviction on money laundering charge).

United States v. Venske, 296 F.3d 1284 (11th Cir. 2002)(Failure of jury verdict to specify which of two objects of money laundering conspiracy was the subject of the verdict and judge's failure to determine at sentencing beyond a reasonable doubt which offense the defendant conspired to commit was plain error.).

Table of Contents

PARDON/PAROLE

United States v. Mathis, 216 F.3d 18 (D.C. Cir. 2000)(improper increase of offense level for commission of offense while on parole).

Wilson v. United States Parole Comm'n, 193 F.3d 195 (3rd Cir. 1999)(Parole Commission's rescission guideline for new criminal behavior after sentence is commenced did not apply to prisoner's conduct of attempting to contract for murders while in federal custody).

McQuillon v. Duncan, 306 F.3d 895 (9th Cir. 2002)(Panel rescinding grant of parole erred in ruling that granting panel had not thoroughly considered nature of crimes; mere detailing of prior crimes did not support rescission.).

United States v. Schaffer, 240 F.3d 35 (D.C. Cir. 2001)(presidential pardon rendered case moot and required vacatur of all opinions, judgments, and jury verdict).

Table of Contents

PLEA AGREEMENTS

United States v. Grimm, 170 F.3d 760 (7th Cir. 1999)(breach of plea agreement where government withdrew recommendation of reduction of sentence based on acceptance of responsibility).

United States v. Phillips, 174 F.3d 1074 (9th Cir. 1999)(defendant could appeal despite waiver in plea agreement where sentence violated VWPA because he was ordered to pay restitution beyond amounts directly related to tax fraud).

In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999)(government's refusal to file motion for downward departure based on either unconstitutional motive or bad faith may warrant relief).

United States v. Padilla, 186 F.3d 136 (2nd Cir. 1999)(plea agreement prohibited government from withdrawing motion for sentencing departure based on substantial assistance, even after defendant failed to appear for sentencing and was apprehended committing another crime).

United States v. McKnight, 186 F.3d 867 (8th Cir. 1999)(government did not violate plea agreement when it made substantial assistance departure motion yet, at same time, disclosed to court certain wrongful conduct by defendant in his alleged attempt to implicate innocent person in criminal conduct).

United States v. Johnson, 187 F.3d 1129 (9th Cir. 1999)(government breached plea agreement by using victim impact statement to influence trial judge to deviate from low end of guidelines).

United States v. Bradbury, 189 F.3d 200 (2nd Cir. 1999)(enhancement for obstruction of justice not supported by record; post-plea disclosures that amount of narcotic involved in kidnapping conspiracy was greater than indicated in plea agreement could not be considered in determining base offense level).

United States v. Rodriguez, 197 F.3d 156 (5th Cir. 1999)(trial judge improperly participated in plea negotiations–error not harmless).

United States v. Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000)(Plea agreement did not block application of safety valve.).

United States v. Wells, 211 F.3d 988 (6th Cir. 2000)(remanded for district court to determine whether defendant fulfilled obligations under plea agreement).

United States v. Mondragon, 228 F.3d 978 (9th Cir. 2000)(prosecutor violated plea agreement by calling attention to allegedly serious nature of defendant's prior offenses).

Untied States v. Camarillo-Tello, 236 F.3d 1024 (9th Cir. 2001)(breach of plea agreement by government when it both failed to include all reasons underlying its recommendation for four-level departure and when it failed to orally recommend four-level departure).

United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001)(claim of ineffective assistance of counsel concerning use/carrying firearm conviction related to validity of plea and therefore survived waiver provision in plea agreement).

United States v. Johnson, 241 F.3d 1049 (8th Cir. 2001)(Government's failure to file departure motion was breach of plea agreement and was reviewable.).

United States v. Ruiz, 241 F.3d 1157 (9th Cir. 2001)(Brady waiver in plea agreement was invalid; defendant made threshold showing that government acted with unconstitutional motive in refusing to recommend departure so as to warrant evidentiary hearing.).

Dunn v. Colleran, 247 F.3d 450 (3rd Cir. 2001)(State court determination that prosecutor had not violated plea agreement was unreasonable.).

Gunn v. Ignacio, 263 F.3d 965 (9th Cir. 2001)(State court determination that government did not breach plea agreement when it concurred in presentence report that recommended four consecutive sentences involved unreasonable determination of the facts in light of the evidence presented and warranted grant of habeas relief.).

United States v. Gomez, 271 F.3d 779 (8th Cir. 2001)(Government breached plea agreement by not recommending reduction for acceptance even though defendant requested that wife warn other members of drug conspiracy of the government's investigation.).

United States v. Taylor, 277 F.3d 721 (5th Cir. 2001)(Government bears burden of proving that drug amounts listed in pre-sentence report came from source independent of information provided under use immunity plea agreement.).

United States v. Barnes, 278 F.3d 644 (6th Cir. 2002)(Failure of government to request expressly that defendant be sentenced at low end of guideline range was breach of plea agreement and reversible error.).

United States v. Lukse, 286 F.3d 906 (6th Cir. 2002)(Government was bound by plea agreement to file downward departure motion despite facts that defendants were seen smoking marijuana in jail prior to sentencing.).

Tse v. United States, 290 F.3d 462 (1st Cir. 2002)(evidentiary hearing needed to determine what counsel advised movant regarding doctrine of specialty and potential consequences of rejecting plea offer).

United States v. Keresztury, 293 F.3d 750 (5th Cir. 2002)(Plea agreement, including appeal waiver, was voided by government's opposition to reduction for acceptance of responsibility.).

United States v. Reyes, 313 F.3d 1152 (9th Cir. 2002)(Trial court could not accept plea agreement under Rule 11(e)(1)(C) and then impose sentence greater or less severe than the agreed-upon sentence.).

United States v. Pena, 314 F.3d 1152 (9th Cir. 2003)(District court failed to comply with plea colloquy requirement that defendant be fully informed of the nature of the offense to which the plea was offered and failed to inform defendant of waiver of appellate rights, thus abrogating waiver in plea agreement.).

Table of Contents

PORNOGRAPHY

United States v. Wilson, 182 F.3d 737 (9th Cir. 1999)(reversed and remanded for failure to prove jurisdictional element of proof of visual depiction of minors engaged in sexually explicit conduct produced using materials which traveled in interstate commerce–no proof of interstate commerce).

United States v. Mohrbacher, 182 F.3d 1041 (9th Cir. 1999)(customer simply on receiving end of those who make visual depictions of minors engaging in sexually explicit conduct available on a computer bulletin board or via e-mail, who downloads an image that has been made available through an automated, preconfigured process or that has been sent by another computer user, is guilty of receiving or processing such materials, but not of shipping or transporting them).

United States v. McKelvey, 203 F.3d 66 (1st Cir. 2000)(single negative film strip containing three images which allegedly depicted minor engaged in sexually explicit conduct did not constitute "3 or more" matters required for conviction under 18 U.S.C. § 2252(a)).

United States v. Dauray, 215 F.3d 257 (2nd Cir. 2000)(inadequate definition of "matter" in statute proscribing possession of "matter," three or more in number, "which contain any visual depiction" of minors engaging in sexually explicit conduct required reversal).

United States v. Carroll, 227 F.3d 486 (5th Cir. 2000)(picture of face of minor boy superimposed on body of another not shown to be a minor did not provide adequate proof of violation of 18 U.S.C. § 2251(a)).

United States v. Davidson, 246 F.3d 1240 (9th Cir. 2001)(defendant could not be required to register as sex offender for possession of child pornography "transported by computer" under 1995 version of California penal code in effect at time of the offense).

United States v. Corp, 236 F.3d 325 (6th Cir. 2001)(insufficient nexus with interstate commerce to sustain conviction under child pornography statute, and statute was unconstitutional as applied to defendant: defendant was 23, victim 17 and was not exploited; activity of 17-yr-old involved in sexual activity not connected to interstate commerce; defendant not involved in distribution or sharing with others of pictures, not involved with other minors, and not alleged to be pedophile).

United States v. Hilton, 257 F.3d 50 (1st Cir. 2001)(Two images used to support "ten or more items" sentencing enhancement for child pornography conviction did not meet statutory definition of "sexually explicit conduct.").

Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002)(Child Pornography Prevention Act is unconstitutionally overbroad to the extent that it proscribes possession of material that "is, or appears to be, of a minor engaging in sexually explicit conduct.").

United States v. Guagliardo, 278 F.3d 868 (9th Cir. 2002)(Conditions of defendant's probation prohibiting his possession of any kind of pornography and from residing in close proximity to places frequented by children were unconstitutionally vague.).

United States v. Runyan, 290 F.3d 223 (5th Cir. 2002)(inadequate linking of images to internet for purpose of proving distribution of child pornography; improper grouping of three counts of convictions affected defendant's substantial rights).

United States v. Henriques, 234 F.3d 263 (5th Cir. 2000)(insufficient connection to internet to sastisfy jurisdictional interstate commerce element in child pornography prosecution where one of three images was not connected to internet).

Table of Contents

PRETRIAL PROCEDURE

United States v. Ramos, 179 F.3d 1333 (11th Cir. 1999)(new trial required because not harmless error to deny defendant's pretrial motion to depose witness in Columbia).

United States v. Jacobo-Zavala, 241 F.3d 1009 (8th Cir. 2001)(District court abused discretion by withholding "leave of court" to file dismissal of indictment by prosecutor.).

Table of Contents

PRIVILEGE

United States v. Mett, 178 F.3d 1058 (9th Cir. 1999)(fiduciary exception to attorney-client privilege did not apply in embezzlement case; erroneous admission of legal memoranda in violation of privilege not harmless).

United States v. Wiseman, 274 F.3d 1236 (9th Cir. 2001)(abuse of discretion for district court to allow attorney to testify, in violation of attorney-client privilege, that he advised defendants they could not serve as trustees).

In re: Grand Jury Subpoena Dated Oct. 22, 2001, 282 F.3d 156 (2nd Cir. 2002)(Grand jury subpoena for attorney testimony about statements former client made in presence of IRS agents was quashed because testimony was about attorney's work product.).

Table of Contents

PROSECUTORIAL MISCONDUCT

United States v. Sanchez, 176 F.3d 1214 (9th Cir. 1999)(reversal for prosecutorial misconduct with numerous instances of improper comment).

Shurn v. Delo, 177 F.3d 662 (8th Cir. 1999)(prosecutor's closing in sentencing phase of capital trial violated due process; denial of habeas petition reversed in part).

Boyle v. Million, 201 F.3d 711 (6th Cir. 2000)(flagrant prosecutorial misconduct during cross examination warranted habeas relief).

United States v. Cheska, 202 F.3d 947 (7th Cir. 2000)(prosecutor's remark that witness "convicted 23 other people" was improper because inadequate basis in record to support it).

United States v. Edwards, 224 F.3d 1141 (9th Cir. 2000)(erroneous admission of bail receipt during second trial because of prosecution's tampering with evidence was not harmless and required reversal).

Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000)(prosecutorial misconduct in closing argument by improperly emphasizing evidence of defendant's bad character; ineffective assistance of counsel not to object; state court's determination that trial counsel was not ineffective was unreasonable application of federal law, and prosecutorial misconduct violated petitioner's due process rights).

United States v. Carter, 236 F.3d 777 (6th Cir. 2001)(plain error where prosecutor misstated the testimony of key identification witness and insisted that defense counsel was lying about the testimony; misconduct affected defendant's substantial rights and seriously affected integrity of the judicial proceeding requiring remand for new trial).

Sandoval v. Calderon, 241 F.3d 765 (9th Cir. 2001)(Invocation of religious authority by prosecution during penalty phase warranted habeas relief.).

United States v. Martinez, 253 F.3d 251 (6th Cir. 2001)(Prosecutor's eliciting from a narcotics deputy testimony that information provided by informant had always been accurate and truthful was improper bolstering but was not prejudicial error.

Moore v. Morton, 255 F.3d 95 (3rd Cir. 2001)(Prosecutor's highly prejudicial remarks during summation deprived defendant of fair trial despite state court's curative instructions; petitioner entitled to federal habeas relief because state courts did not reasonably apply Supreme Court precedent in reaching opposite conclusion).

Thomas v. Hubbard, 273 F.3d 1164 (9th Cir. 2001)(Cumulative error in admitting triple hearsay,

prosecutorial misconduct in admitting evidence in violation of in limine order, and improper truncation of cross-examination warranted habeas corpus relief.).

United States v. Blueford, 279 F.3d 1084 (9th Cir. 2002)(new trial required when prosecutor asked jury to infer fabrication of defendant's alibi when prosecutor had evidence contradicting same).

Depew v. Anderson, 311 F.3d 742 (6th Cir. 2002)(Inflammatory and misleading statements by prosecutor during penalty phase of capital murder case violated Eighth Amendment; comment on petitioner's refusal to testify violated Fifth Amendment.).

United States v. Blueford, 312 F.3d 962 (9th Cir. 2002)(Prosecutor's action in asking jury to infer fabrication of defendant's alibi, when government had no support for inference and evidence contradicted that assertion, required new trial.).

Table of Contents

RECUSAL

United States v. Cerceda, 172 F.3d 806 (11th Cir. 1999)(district court violated statute when he refused to recuse himself when it was learned he was subject of federal grand jury investigation; timely motion to reconsider tolls running of 30-day period for filing notice of appeal).

United States v. Waskom, 179 F.3d 303 (5th Cir. 1999)(three point reduction in offense level for uncompleted conspiracy should have been given; one defendant entitled to recusal of sentencing judge).

United States v. Quach, 302 F.3d 1096 (9th Cir. 2002)(Reassignment of sentencing judge was advisable in order to preserve appearance of justice.).

Table of Contents

RELEASE

United States v. Andis, 277 F.3d 984 (8th Cir. 2002)(Standards of release did not bear reasonable relationship to defendant's conduct or characteristics; defendant may appeal illegal sentence despite waiver.).

United States v. Bello, 310 F.3d 56 (2nd Cir. 2002)(Ban on watching television during home detention was impermissible condition under facts.).

Table of Contents

RESENTENCING

United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999)(remand necessary to determine if lack of compliance with treaty requiring disclosure to consulate when foreign national is imprisoned was prejudicial).

United States v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999)(defendant on remand did not waive drug quantity issue, and it was error not to consider his proffer on remand).

United States v. LaValle, 175 F.3d 1106 (9th Cir. 1999)(Defendant who successfully attacks state conviction may seek review of federal sentence that was enhanced because of prior state conviction).

Moore v. United States, 173 F.3d 1131 (8th Cir. 1999)(resentencing required on underlying drug trafficking charge upon vacatur of conviction for using firearm in connection with drug trafficking offense).

United States v. Napoli, 179 F.3d 1 (2nd Cir. 1999)(remand required to determine if defendant served more than one year and one month for prior conviction).

United States v. Jackson, 181 F.3d 740 (6th Cir. 1999)(defendant's higher sentence on remand not adequately explained and presumptively vindictive under Pearce).

United States v. Faulks, 201 F.3d 208 (3rd Cir. 2000)(Defendant's absence at resentencing required reversal for violation of the Sixth Amendment and Rule 43).

United States v. Saikaly, 207 F.3d 363 (6th Cir. 2000)(District court must consider defendant's objections to new presentence report after defendant prevailed on motion to vacate.).

United States v. Harris, 209 F.3d 156 (2nd Cir. 2000)(Resentencing as result of district court's previous failure to advise defendant of his right to appeal should have been de novo.).

Hepburn v. Moore, 215 F.3d 1208 (11th Cir. 2000)(Limitations period for habeas petition challenging resentencing begins to run on date of resentencing judgment.).

United States v. Lawrence, 248 F.3d 300 (4th Cir. 2001)(Resentencing using video teleconferencing violates rule regarding defendant's presence.).

Hall v. Moore, 253 F.3d 624 (11th Cir. 2001)(Absence of counsel at re-sentencing hearing violated petitioner's Sixth Amendment right to counsel).

United States v. Hitchcock, 263 F.3d 879 (9th Cir. 2001)(Resentencing required where defendant sentenced under provision recently held unconstitutional.).

United States v. LaValle, 175 F.3d 1106 (9th Cir. 1999)(Defendant who successfully attacks state conviction may seek review of federal sentence that was enhanced because of prior state conviction.).

Table of Contents

RETROACTIVITY

Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000)(Armed felons could be barred from eligibility for sentence reduction based on completion of treatment program; but restriction could not be retroactively applied).

Table of Contents

ROBBERY

United States v. Ali, 266 F.3d 1242 (9th Cir. 2001)(evidence insufficient as a matter of law to show bank was federally insured at time of robbery).

Table of Contents

SEARCH AND SEIZURE - GENERAL

United States v. Kiyuyung, 171 F.3d 78 (2nd Cir. 1999)(failure to prove that firearms were in plain view).

United States v. Carey, 172 F.3d 1268 (10th Cir. 1999)(warrantless seizure of computer files of child pornography in closed files violated 4th amendment because not in plain view; consent to search apartment did not carry over to contents of computer files).

United States v. Pruitt, 174 F.3d 1215 (11th Cir. 1999)(Detention of two defendants and search of van following traffic stop not authorized).

Flippo v. West Virginia, 120 S. Ct. 7 (1999)(evidence seized in warrantless search of a "homicide crime scene" cannot be justified on ground that police were entitled to a make a thorough search of a crime scene and objects found there).

United States v. Beras, 183 F.3d 22 (1st Cir. 1999)(pat down of defendant attempting to board flight from Puerto Rico to Dominican Republic fell within border search exception to 4th Amendment).

United States v. Francis, 183 F.3d 450 (5th Cir. 1999)(search conducted pursuant to clause in contract with private company hired to monitor defendant, who had been placed in home incarceration, invalid where sentencing court, in authorizing home incarceration with monitoring, did not impose any search condition).

United States v. Gwinn, 191 F.3d 874 (8th Cir. 1999)(officer's manipulation of exterior of soft-sided bag in overhead train storage compartment was unlawful search).

Florida v. J.L., 120 S. Ct. 1375 (2000)(anonymous tip lacked sufficient indicia of reliability to establish reasonable suspicion for Terry investigative stop).

United Sates v. Dortch, 199 F.3d 193 (5th Cir. 1999)(Continued detention after legitimate justification for traffic stop had ended was unreasonable seizure; evidence discovered as result of unreasonable seizure was fruit of poisonous tree, and consent was invalid.).

United States v. Stephens, 206 F.3d 915 (9th Cir. 2000)(Abandonment of container with cocaine was involuntary because defendant was unlawfully seized.).

United States v. Buchanan, 207 F.3d 344 (6th Cir. 2000)(District court required to consider alleged withdrawal from conspiracy as ground for downward departure; and, per concurring justice, dog sniff evidence inadmissible as unreliable.).

United States v. Wald, 208 F.3d 903 (10th Cir. 2000)(Odor of burnt methamphetamine did not provide probable cause to search trunk of car; suspicion of contraband possession based on smelling burnt methamphetamine not sufficiently corroborated by other circumstances; consent to search did not extend to trunk.).

United States v. Depew, 210 F.3d 1061 (9th Cir. 2000)(remand to determine if agents were within curtilage of defendant's home when making imager scan).

United States v. Thomas, 211 F.3d 1186 (9th Cir. 2000)(Tip from federal agent, activity at house, and agent's claimed auditory perception did not support finding of reasonable suspicion to stop vehicle leaving from house under surveillance.).

United States v. Wald, 216 F.3d 1222 (10th Cir. 2000)(mere odor of burnt amphetamine noted following traffic stop not sufficient to provide probable cause to search trunk without more corroboration).

United States v. Reilly, 224 F.3d 986 (9th Cir. 2000)(obtaining oral consent to search after defendant had requested counsel not excused by inevitable discovery doctrine).

United States v. Reid, 226 F.3d 1020 (9th Cir. 2000)(non-resident of apartment cannot give consent to search; warrantless search not justified as protective sweep or by exigent circumstances).

United States v. Furrow, 229 F.3d 805 (9th Cir. 2000)(warrantless search of cabin not justified under exigent circumstances exception; remand necessary to determine if son's consent to search of father's cabin was tainted by prior illegal search).

United States v. Santa, 236 F.3d 662 (11th Cir. 2000)(circumstances not sufficiently exigent to justify warrantless search of apartment and arrest of defendant's husband; husband's consent to search was product of unlawful arrest).

United States v. Haddix, 239 F.3d 766 (6th Cir. 2001)(search of home not supported by exigent circumstances).

United States v. Edwards, 242 F.3d 928 (10th Cir. 2001)(Search could not be justified as incident to lawful arrest, inventory search, or under exigent circumstances doctrine.).

Kyllo v. U.S., 121 S. Ct. 2038 (2001)(Use of thermal imaging to measure heat emanating from home was search within the meaning of the Fourth Amendment.).

United States v. Caro, 248 F.3d 1240 (10th Cir. 2001)(Trooper's request to search vehicle for VIN number exceeded permissible scope of traffic stop; defendant's consent to search for VIN number insufficient to purge taint from request; consent to search after air fresheners discovered did not purge taint of unlawful detention.).

United States v. Colon, 250 F.3d 130 (2nd Cir. 2001)(Knowledge of civilian 911 operator employed by police department could not be imputed to dispatching or arresting officers under the collective knowledge doctrine as a basis for reasonable suspicion supporting stop and frist, in the absence of any evidence that operator made any assessment of reasonable suspicion or was trained to do so.).

United States v. Johnson, 256 F.3d 895 (9th Cir. 2001)(Officer's "gut" feeling fell short of probable cause to search defendant's property for fleeing suspect; exigent circumstances did not exist; standard of review for district court's determination of where curtilage ends is de novo, not clear error).

Beck v. Bowersox, 257 F.3d 900 (8th Cir. 2001)(District court had to review transcript of suppression hearing before determining whether state court's determination of facts was reasonable).

United States v. Lapsley, 263 F.3d 839 (8th Cir. 2001)(District court erred in not hearing testimony of government informant on defendant's motion to reveal identity of informant to determine if testimony was relevant to the defense.).

United States v. Watson, 273 F.3d 599 (5th Cir. 2001)(District court confused voluntariness issue with mere consent to search.).

United States v. Blackmon, 273 F.3d 1204 (9th Cir. 2001)(suppression of wiretap evidence warranted).

United States v. Runyan, 275 F.3d 449 (5th Cir. 2001)(Search of child pornography images removed from home by defendant's wife was private search and did not implicate Fourth Amendment unless police searched files not examined by wife and unless warrants would have been obtained based on police conduct exceeding private search; remanded for further factual findings.).

United States v. Patzer, 277 F.3d 1080 (9th Cir. 2002)(no probable cause to arrest under state DUI

statute; consent tainted by unlawful arrest; statements fruit of poisonous tree despite Miranda warnings).

United States v. Patzer, 284 F.3d 1043 (9th Cir. 2001)(Government cannot argue on petition for rehearing a completely different theory to justify search if it was not argued in initial response brief on appeal.).

United States v. Haynes, 301 F.3d 669 (6th Cir. 2002)(Any consent to search vehicle was tainted by initial unlawful search.).

United States v. Larson, 302 F.3d 1016 (9th Cir. 2002)(Defendant's agreement to stipulation may not have been voluntary, requiring remand of suppression motion determination.).

United States v. Myers, 308 F.3d 251 (3rd Cir. 2002)(Police officer lacked probable cause to arrest defendant for simple assault and under Pennsylvania domestic violence law and for carrying unlicensed firearm; since bag was not accessible to officer at time of defendant's arrest, search of bag could not be justified as incident to lawful arrest.).

United States v. Barlow, 308 F.3d 895 (8th Cir. 2002)(Court's failure to consider officer's registration check printout, which was admitted into evidence at plea hearing, and which bore on officer's credibility, before denying defendant's renewed suppression motion made at the plea hearing, was error.).

United States v. Carnes, 309 F.3d 950 (6th Cir. 2002)(Warrantless search and seizure of audiotapes was not supported by probable cause.).

United States v. McLevain, 310 F.3d 434 (6th Cir. 2002)(Alleged drug paraphernalia was not immediately apparent so as to justify seizure based on plain view.).

United States v. Portillo-Aguirre, 311 F.3d 647 (5th Cir. 2002)(Extended detention after border stop was unreasonable seizure under Fourth Amendment; government failed to prove that defendant's consent to search was act of free will and not product of extended detention.).

United States v. Gorman, 314 F.3d 1105 (9th Cir. 2002)(Under Payton and 9th Circuit's Underwood case, officer must have "reason to believe" defendant is on premises plus an arrest warrant to justify entry without a search warrant; court construed "reason to believe" to be tantamount to probable cause, apparently addressing an issue of first impression.).

Table of Contents

SEARCH AND SEIZURE - KNOCK AND ANNOUNCE

United States v. Dice, 200 F.3d 978 (6th Cir. 2000)(violation of knock-and-announce rule during execution of valid search warrant warranted suppression of evidence).

United States v. Granville, 219 F.3d 1214 (9th Cir. 2000)(five second wait after knocking and announcing search was insufficient to comply with knock and announce statute; exigent circumstances did not justify immediate entry).

United States v. Tavares, 223 F.3d 911 (8th Cir. 2000)(no exigent circumstances existed to justify entry without compliance with knock and announce statute; goof faith reliance exception did not apply).

United States v. Brown, 251 F.3d 286 (1st Cir. 2001)(No-knock entry was not permissible to prevent destruction of evidence and could not be justified under Leon principle of reasonable reliance.).

United States v. Banks, 282 F.3d 699 (9th Cir. 2002)(Delay of 15-20 seconds after a single knock and announcement by officers executing search warrant was insufficient in duration to satisfy Fourth Amendment safeguards.).

United States v. Gallegos, 314 F.3d 456 (10th Cir. 2002)(failure to comply with knock-and-announce statute– 5or 10 second wait after announcing, no exigent circumstances shown).

Table of Contents

SEARCH AND SEIZURE - TERRY AND TRAFFIC STOPS

United States v. Johnson, 171 F.3d 601 (8th Cir. 1999)(no reasonable suspicion of criminal activity to warrant interception of Express Mail package).

United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999)(no reasonable suspicion to stop vehicle which had broken taillight in violation of Texas Transportation Code; good faith exception does not apply).

States v. Moreno-Chaparro, 180 F.3d 629 (5th Cir. 1999)(no reasonable suspicion that vehicle might contain illegal aliens or contraband in stop of vehicle 60 miles north of border checkpoint).

United States v. Payne, 181 F.3d 781 (6th Cir. 1999)(no reasonable suspicion justifying search of defendant's property; evidence obtained by parole officer in violation of 4th Amendment must be suppressed).

United States v. Tovar-Valdivia, 193 F.3d 1025 (8th Cir. 1999)(Terry did not authorize a pat-down for weapons after search of the suspect's bag dispelled officer's reasonable suspicion; Terry did not authorize handcuffing and searching suspect after initial pat-down did not confirm existence of a weapon or contraband).

United States v. Wilson, 205 F.3d 720 (4th Cir. 2000)(Fourth Amendment does not allow traffic stop merely for temporary tags, and firearm seized as fruit of the unlawful stop should have been excluded).

United States v. Lopez-Soto, 205 F.3d 1101 (9th Cir. 2000)(officer violated defendant's Fourth Amendment rights in stopping his vehicle based on mistaken belief that the absence of a registration sticker visible from the rear provided a reasonable basis for suspicion of a Baja California, Mexico, vehicle code violation).

United States v. Freeman, 209 F.3d 464 (6th Cir. 2000)(Motor home's weaving into emergency lane did not establish probable cause of traffic violation and probable cause that driver was intoxicated.).

United States v. Gray, 213 F.3d 998 (8th Cir. 2000)(no reasonable suspicion that criminal activity was afoot when officer frisked defendant during routine questioning).

United States v. Twilley, 219 F.3d 1092 (9th Cir. 2000)(stop based on officer's mistaken belief that vehicle violated California law because it displayed only one Michigan license plate was not supported by reasonable suspicion; government failed to show that Fourth Amendment violation connection with search of car was sufficiently attenuated to dissipate the primary taint).

United States v. Butler, 223 F.3d 368 (6th Cir. 2000)(police actions went beyond checking out suspicious circumstances so that defendant was unlawfully seized under Fourth Amendment when placed in back of police car and taken to police station).

United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000)(insufficient evidence on tip from anonymous informant to justify Terry stop of defendant who merely possessed a weapon).

United States v. Burton, 228 F.3d 524 (4th Cir. 2000)(Officer who reached into defendant's coat during routine police-citizen encounter violated Fourth Amendment despite his concern for his own safety and safety of fellow officers.).

United States v. Jones, 242 F.3d 215 (4th Cir. 2001)(Police officer who had received anonymous tip that "several black males" were drinking beer and causing a disturbance near intersection and who did not find or see anyone at intersection, lacked reasonable suspicion to stop automobile carrying four African-American males.).

United States v. Sigmond-Ballesteros, 247 F.3d 943 (9th Cir. 2001)(no reasonable suspicion to justify stop).

United States v. Miles, 247 F.3d 1009 (9th Cir. 2001)(Officer exceeded permissible scope of Terry stop by manipulating small box in defendant's pocket which was clearly not a weapon and could not be immediately recognized as contraband.).

United States v. Hunt, 253 F.3d 227 (5th Cir. 2001)(Search, justified solely upon state trooper's regular practice of conducting vehicle search during traffic stop anytime driver gets out of car to meet trooper rather than waiting in vehicle for trooper to approach, violates Fourth Amendment).

United States v. Jones, 254 F.3d 692 (8th Cir. 2001)(Defendant's acts of walking around phone bank, looking behind him, traveling without luggage, and arriving from Los Angeles were not sufficiently suggestive of crime to constitute reasonable suspicion, and officer's touching of bulge on defendant's person during consent search did not provide probable cause for arrest, where defendant explained that bulge was from recent surgery).

United States v. Johnson, 256 F.3d 214 (4th Cir. 2001)(Traffic stop invalid because state trooper did not possess articulable, reasonable suspicion that defendant's vehicle was in violation of state law establishing light transmission requirements for sunscreen device).

United States v. Childs, 256 F.3d 559 (7th Cir. 2001)(Officer lacked reasonable suspicion to exceed scope of stop's purpose by questioning passenger concerning drug possession, despite passenger's arrest by same officer three days earlier).

United States v. Shy Heath 259 F.3d 522 (6th Cir. 2001)(illegal detention under 4th Amendment where initial stop failed to produce evidence of criminal activity).

United States v. Nee, 261 F.3d 79 (1st Cir. 2001)(District court did not clearly err in its finding that officer entered vehicle after Terry stop to make intentional search.).

United States v. Bishop, 264 F.3d 919 (9th Cir. 2001)(admission of illegal traffic stop evidence not harmless beyond a reasonable doubt).

United States v. Valadez, 267 F.3d 395 (5th Cir. 2001)(Illegal detention pending completion of computer check, after officer became aware that defendant had not committed traffic violation, violated defendant's Fourth Amendment rights.).

United States v. Chavez-Valenzuela, 268 F.3d 719 (9th Cir. 2001)(Officer lacked reasonable suspicion to detain defendant after traffic stop and question him regarding drug possession; unlawful search not vitiated by defendant's consent.).

United States v. Hutchinson, 268 F.3d 1117 (D.C. Cir. 2001)(District court failed to determine whether the government had met its burden to show that seizure of defendant lasted no longer than was necessary to effectuate the purpose of the stop.).

United States v. Jones, 269 F.3d 919 (8th Cir. 2001)(no reasonable suspicion of narcotics trafficking to justify continued detention after traffic stop).

United States v. Davis, 270 F.3d 977 (D.C. Cir. 2001)(District court should have considered overall purpose of municipal program under which traffic checkpoint was established.).

United States v. Sigmond-Ballesteros, 285 F.3d 1117(9th Cir. 2002)(Defendant's conduct in changing lanes, attempts to obscure face, time of day at which defendant was driving, and absence of rear seat in defendant's truck were insufficient facts upon which to base reasonable suspicion.).

United States v. Mariscal, 285 F.3d 1127 (9th Cir. 2002)(Unsignalled right hand turn was insufficient

fact upon which to base reasonable suspicion.).

United States v. Belcher, 288 F.3d 1068 (8th Cir. 2002)(Detention of truck following stop violated Fourth Amendment; officer's inquiries regarding truck's bills of lading were improper under Arkansas law, which allowed officers to ask for and inspect bills of lading only if they had reasonable belief that vehicle was being operated in violation of regulations.).

United States v. Coward, 296 F.3d 176 (3rd Cir. 2002)(remand for district court determination of whether government can present additional evidence in support of claim of reasonable suspicion for stop).

United States v. Casado, 303 F.3d 440 (2nd Cir. 2002)(Search of defendant's pocket during Terry stop was unreasonable.).

United States v. Yousif, 308 F.3d 820 (8th Cir. 2002)(Highway checkpoint program violated Fourth Amendment; no reasonable individualized suspicion to justify stop; consent involuntary; remand to determine voluntariness of statements.).

United States v. Santiago, 310 F.3d 336 (5th Cir. 2002)(Continued detention after records check was unreasonable under Fourth Amendment, and consent to search vehicle was product of unlawful extended detention.).

United States v. Colin, 314 F.3d 439 (9th cir. 2002)(no reasonable suspicion to stop vehicle under California statute prohibiting lane straddling).

United States v. Jones, 234 F.3d 234 (5th Cir. 2000)(although initial Terry stop of vehicle was valid, continued detention after drivers license check violated Fourth Amendment, driver's consent did not dissipate Fourth Amendment violation, and evidence obtained was due to be suppressed as fruit of the poisonous tree).

Table of Contents

SEARCH AND SEIZURE- WARRANTS

United States v. King, 227 F.3d 732 (6th Cir. 2000)(officer's search of basement of duplex exceeded scope of warrant and did not fall within good-faith exception to exclusionary rule).

United States v. Herron, 215 F.3d 812 (8th Cir. 2000)(search warrant was so lacking in probable cause that no reasonable officer should have relied on it).

United States v. Simon, 206 F.3d 392 (4th Cir. 2000)(Failure of executors of search warrant to leave notice or receipt in violation of rule required remand.).

United States v. Ford, 184 F.3d 566 (6th Cir. 1999)(overbroad search warrant in gambling prosecution).

United States v. Gantt, 179 F.3d 782 (9th Cir. 1999)(good faith exception to exclusionary rule not implicated where officers failed to give defendant copy of search warrant, since violation was fault of officers, not judiciary).

United States v. Vigeant, 176 F.3d 565 (1st Cir. 1999)(affidavit in support of search warrant did not provide probable cause; good faith exception to exclusionary rule did not permit admission of weapons seized during execution of search warrant).

United States v. Scott, 260 F.3d 512 (6th Cir. 2001)(Search warrant signed by retired judge was void.).

United States v. Zimmerman, 277 F.3d 426 (3rd Cir. 2002)(Warrant application did not support determination by magistrate that there was probable cause to believe that defendant possessed child pornography in his home; evidence that defendant possessed adult pornography was stale; good faith exception did not apply.).

United States v. Helton, 314 F.3d 812 (6th Cir. 2003)(Allegations in affidavit, considered in their totality, did not provide probable cause for search; reasonable officer would not have believed anonymous tipster's statements were trustworthy and reliable.).

Table of Contents

SENTENCING - GENERAL

United States v. Haas, 171 F.3d 259 (5th Cir. 1999)(remand for failure properly to calculate loss).

United States v. Hayes, 171 F.3d 389 (6th Cir. 1999)(plain error to rely on undisclosed victim impact letters in sentencing).

United States v. Hoover, 175 F.3d 564 (7th Cir. 1999)(abuse of discretion for district court to order defendant to surrender savings bonds to pay his tax liability)..

Krevsky v. United States, 186 F.3d 237 (2nd Cir. 1999)(failure to inform defendant of right to appeal not harmless where defendant not independently aware of right).

United States v. Meador, 195 F.3d 66 (1st Cir. 1999)(remand for more specific factual finding re: three point base offense level reduction for incomplete conspiracy).

United States v. Bao, 189 F.3d 860 (9th Cir. 1999)(Admission of statement as prior inconsistent statement was erroneous; overvaluation of counterfeit manuals on applying offense level enhancements).

United States v. SKW Metals & Alloys, Inc., 195 F.3d 83 (2nd Cir. 1999)(misapplication of "volume of commerce provision of guidelines; misapprehension of authority to consider acquitted conduct).

United States v. Echegollen-Barrueta, 195 F.3d 786 (5th Cir. 1999)(denial of right to allocution).

United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999)(improper sentences exceeding statutory maximum).

United States v. Smith, 196 F.3d 676 (6th Cir. 1999)(district court double counted when it applied specific offense characteristics for firearm discharge, use or possession in conviction under 18 U.S.C. § 922(g)).

United States v. Williams, 198 F.3d 988 (7th Cir. 1999)(remanded for proper sentence of 10 years, the maximum, under False Information counts).

United States v. Tocco, 200 F.3d 401 (6th Cir. 2000)(no specific factual findings on what underlying racketeering activity used to determine base offense level; community involvement invalid basis for downward departure if substantially financial).

United States v. Adams, 252 F.3d 276 (3d Cir. 2001)(District court's failure to ask defendant if he wished to exercise his right to allocution required resentencing.).

United States v. Takahashi, 205 F.3d 1161 (9th Cir. 2000)(erroneous reliance on U.S.S.G. § 2D1.1 to calculate base offense level).

United States v. Jones, 204 F.3d 541 (4th Cir. 2000)(conviction of possession of cocaine merged into conviction for possession with intent to distribute for sentencing purposes).

United States v. Rhynes, 206 F.3d 349 (4th Cir. 1999)(Sentences exceeded statutory maximum for drug carrying lowest penalty.).

United States v. Chang, 207 F.3d 1169 (9th Cir. 2000)(reversal for sentencing above statutory maximum).

United States v. Dale, 178 F.3d 429 (6th Cir. 1999)(plain error to impose maximum sentence under general verdict in charge of conspiracy to possess with intent to distribute both cocaine and marijuana where jury given enhanced unanimity instruction).

United States v. Palmer, 183 F.3d 1014 (9th Cir. 1999)(clearly erroneous upward adjustments based on possession of guns and marijuana in mobile home on defendant's property; prior state conviction may not be used to set base offense level where civil rights restored with respect to conviction).

United States v. Feurtado, 191 F.3d 420 (4th Cir. 1999)(sentences in excess of those in defendants' guilty pleas improper).

United States v. Bazile, 209 F.3d 1205 (10th Cir. 2000)(Guidelines permitted only 25 year sentence, not life imprisonment.).

United States v. Ramirez-Cortez, 213 F.3d 1149 (9th Cir. 2000)(Magistrate Judge failed to make factual findings regarding excluding delay from Speedy Trial Act's time limits; defendant was entitled to additional 1 level reduction for acceptance of responsibility).

United States v. Webb, 214 F.3d 962 (8th Cir. 2000)(improper standard applied in sexual assault civil rights case for purpose of setting base offense level; proper standard is whether any force involved was sufficient to prevent victim from escaping sexual contact).

United States v. Arrington, 215 F.3d 855 (8th Cir. 2000)(remand for evidentiary hearing on contested fact in PSR).

United States v. Mathis, 216 F.3d 18 (D.C. Cir. 2000)(improper increase of offense level for commission of offense while on parole).

United States v. Collazo-Aponte, 216 F.3d 163 (1st Cir. 2000)(imposition of life sentence for attempted murder, which carries maximum of 20 years, required reversal).

United States v. Ross, 219 F.3d 592 (7th Cir. 2000)(remanded for proper sentencing calculation and proper computation of credit for time served).

Virgin Islands v. Martinez, 239 F.3d 293 (3rd Cir. 2001)(sentences violated Virgin Islands statute requiring court to suspend at least portion of custodial term when imposing split sentence).

United States v. Vega, 241 F.3d 910 (7th Cir. 2001)(Right to appeal sentence in excess of court's jurisdiction may not be waived.).

United States v. Apker, 241 F.3d 1060 (8th Cir. 2001)(remanded to determine appropriate punishment based on sentencing guidelines rather than applicable statutory maximums).

United States v. Jackson, 240 F.3d 1245 (10th Cir. 2001)(Errors in sentencing based on drug quantities not alleged in indictment required reversal.).

United States v. Audain, 254 F.3d 1286 (11th Cir. 2001)(District court erred in sentencing defendants to life imprisonment for conspiracy to commit money laundering because statute carries a maximum sentence of twenty years).

United States v. Washington, 255 F.3d 483 (8th Cir. 2001)(Failure to afford one defendant her right of allocution required resentencing).

United States v. Hollingsworth, 257 F.3d 871 (8th Cir. 2001)(Imposition of sentence in excess of statutory maximum was not harmless error).

United States v. Robertson, 260 F.3d 500 (6th Cir. 2001)(improper determination of whether defendant entitled to additional one point reduction for acceptance.).

United States v. Landeros-Gonzales, 262 F.3d 424 (5th Cir. 2001)(Texas criminal mischief statute was not crime of violence and thus not an "aggravated felony" for sentencing purposes.).

United States v. Shabazz, 263 F.3d 603 (6th Cir. 2001)(insufficient factual findings to support base offense level determination).

United States v. Busekros, 264 F.3d 1158 (10th Cir. 2001)(Denial of federal benefits was error because defendant assisted with two state prosecutions.).

United States v. Danser, 270 F.3d 451 (7th Cir. 2001)(District court could not impose higher sentence after initial sentencing.).

United States v. Mulder, 273 F.3d 91 (2nd Cir. 2001)(sentences remanded for particularized findings

as to scope of agreement of labor leaders to action of murderer in Hobbs Act prosecution).

United States v. Dixon, 273 F.3d 636 (5th Cir. 2001)(Sentences exceeded statutory maximum.).

United States v. Portillo-Mendoza, 273 F.3d 1224 (9th Cir. 2001)(Improper classification of DUI

offenses as aggravated offenses was plain error.).

United States v. Clark, 274 F.3d 1325 (11th Cir. 2001)(plain error for district court to impose sentence that was two-
thirds the mandatory statutory minimum). [Ed. note: This case was appealed on a plain error issue raised by the defendant claiming error during the plea colloquy. The Government cross-appealed on the sentencing issue stated above. Although it is not clear from the decision whether the Government would have appealed regardless, this case presents a good example of a possibly ill-advised appeal which resulted in a longer sentence by one-third for the defendant. Caveat litigator.].

United States v. Burgos, 276 F.3d 1284 (11th Cir. 2001)(District court abused its discretion by punishing defendant for failing to cooperate in an unrelated case.).

United States v. Saenz, 282 F.3d 354 (5th Cir. 2002)(Leave to supplement motion attacking sentence relative to defendant's not receiving plea offer from his trial counsel should have been granted.).

United States v. Zillgitt, 286 F.3d 128 (2nd Cir. 2002)(Fairness and public reputation of judicial proceedings was seriously affected and warranted reversal for plain error where sentence was in excess of statutory maximum.).

United States v. Gordon, 291 F.3d 181 (2nd Cir. 2002)(Tax evasion and mail fraud counts grouped under wrong guideline was plain error; sentence improperly structured; where total punishment exceeds statutory maximums on some counts, sentence should be structured to impose statutory maximum on all such counts, impose the total punishment on the count with a statutory maximum higher than the total punishment, and run the sentences consecutively only to the extent necessary to achieve the total punishment.).

United States v. Osborne, 291 F.3d 908 (6th Cir. 2002)(violation of sentencing rule requiring district court to rule on any objections to pre-sentence report and to make, as to each matter controverted, either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing).

United States v. Williams, 291 F.3d 1180 (9th Cir. 2002)(Sentence for inducing interstate travel to engage in prostitution exceeded statutory maximum; district court erred by failing to give defendant notice of intent to impose consecutive sentences and of upward departure; determination required of whether one of victims was uniquely vulnerable.).

United States v. Vallejo, 297 F.3d 1154(11th Cir. 2002)(insufficient factual findings to support sentence based upon multi-object conspiracy).

United States v. Campbell, 300 F.3d 202 (2nd Cir. 2002)(Errors in calculating sentence required remand.).

United States v. Quach, 302 F.3d 1096 (9th Cir. 2002)(Government required at sentencing to make good faith evaluation of defendant's assistance up to date of sentencing.).

United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002)(Failure to afford defendant opportunity to allocute was plain error.).

United States v. Dixon, 308 F.3d 229 (3rd Cir. 2002)(Concurrent 75 month sentences exceeded 60 month statutory maximum.).

United States v. Ramon, 310 F.3d 317 (5th Cir. 2002)(District court's question as to whether "there was anything else that you-
all want to talk about" did not comply with allocution rule.).

United States v. McCoy, 313 F.3d 561 (D.C. Cir. 2002)(Completion of prison term did not moot issue of proper calculation of sentence, even where no objection was raised until remand for resentencing.).

United States v. McCoy, 313 F.3d 561 (D.C. Cir. 2002)(Completion of prison term did not moot issue of proper calculation of sentence, even where no objection was raised until remand for resentencing.).

Table of Contents

SENTENCING - ABUSE OF TRUST

United States v. Jankowski, 194 F.3d 878 (8th Cir. 1999)(defendant's position as messenger for armored car company was not "position of public or private trust" within meaning of sentencing guidelines' abuse of position of trust enhancement).

United States v. Guidry, 199 F.3d 1150 (10th Cir. 1999)(enhancement for abuse of position of trust improper).

United States v. Tribble, 206 F.3d 634 (6th Cir. 2000)(Postal window clerk did not hold position of trust.).

United States v. Humphrey, 279 F.3d 372 (6th Cir. 2002)(Enhancement of offense level for abuse of position of trust did not apply to defendant because as bank vault teller she was not authorized to exercise substantial professional or managerial discretion.).

United States v. Hoskins, 282 F.3d 772 (9th Cir. 2002)(Defendant's position as a retail store security guard was not a "position of public or private trust" under the guideline provision.).

United States v. Morris, 286 F.3d 1291 (11th Cir. 2002)(Lack of attorney-client relationship between attorney and victims of conspiracy to defraud precluded enhancement for abuse of position of trust.).

Table of Contents

SENTENCING - ACCEPTANCE OF RESPONSIBILITY

United States v. Cohen, 171 F.3d 796 (3rd Cir. 1999)(remanded for factual findings on issue of acceptance of responsibility).

United States v. Wilson, 183 F.3d 1290 (11th Cir. 1999)(erroneous belief that court lacked authority to grant 2-level reduction for acceptance of responsibility).

United States v. Rice, 184 F.3d 740 (8th Cir. 1999)(Court has no discretion to deny reduction for acceptance of responsibility where defendant makes timely announcement of intent to plead guilty).

United States v. Zwick, 199 F.3d 672 (3rd Cir. 1999)(fact that government had to prepare for trial did not foreclose defendant from receiving one point reduction in offense level for acceptance of responsibility).

United States v. Cunningham, 201 F.3d 20 (1st Cir. 2000)(Defendant did not have to admit facts of forfeiture in order to be eligible for reduction for acceptance of responsibility.).

United States v. Whitman, 209 F.3d 619 (6th Cir. 2000)(remand for resentencing on issue of acceptance of responsibility ).

United States v. Corona-Garcia, 210 F.3d 973 (9th Cir. 2000)(vacated to give defendant additional point for acceptance of responsibility).

United States v. Ramirez-Cortez, 213 F.3d 1149 (9th Cir. 2000)(Magistrate Judge failed to make factual findings regarding excluding delay from Speedy Trial Act's time limits; defendant was entitled to additional 1 level reduction for acceptance of responsibility).

United States v. Mateo-Mendez, 215 F.3d 1039 (9th Cir. 2000)(timely and complete confession entitled defendant to additional 1 level reduction for acceptance of responsibility).

United States v. Eschman, 227 F.3d 886 (7th Cir. 2000)(improper to use one-to-one conversion ratio in conspiracy to manufacture methamphetamine case because it was theoretically possible to convert precursor chemicals into same amount of drug; also remanded for reconsideration of failure to give 3 point acceptance or responsibility reduction).

United States v. Jeter, 236 F.3d 1032 (9th Cir. 2001)(Guidelines do not contemplate only one level reduction for acceptance of responsibility.).

United States v. Banks, 252 F.3d 801 (6th Cir. 2001)(Post- plea criminal charges did not preclude reduction for acceptance of responsibility; failure to provide written statement of his offenses for pre-sentence investigation report was not deliberate refusal to cooperate with government.).

United States v. Rood, 281 F.3d 353 (2nd Cir. 2002)(Since defendant provided timely information to government about his involvement in offense, he was entitled to additional one level decrease for acceptance of responsibility.).

United States v. Leal-Mendoza, 281 F.3d 473 (5th Cir. 2002)(Additional one point reduction for acceptance of responsibility is mandatory if all statutory requirements are met.).

United States v. Cortes, 299 F.3d 1030 (9th Cir. 2002)(Proceeding to trial does not vel non preclude reduction for acceptance of responsibility.).

United States v. Gallant, 306 F.3d 1181 (1st Cir. 2002)(District court lacked discretion to deny additional point for acceptance of responsibility where defendant was found to have accepted responsibility and was awarded two points.).

Table of Contents

SENTENCING- CONCURRENT/ CONSECUTIVE

Jake v. Herschberger, 173 F.3d 1059 (7th Cir. 1999)(defendant in state custody given credit for federal time running from date stay of state conviction was entered).

United States v. Rose, 185 F.3d 1108 (10th Cir. 1999)(district court must state in open court its reasons for imposing consecutive, rather than concurrent, sentences under 18 U.S.C. §3553(c)).

United States v. Maria, 186 F.3d 65 (2nd Cir. 1999)(district court retains discretion under U.S.S.G. §5G1.3(c) to sentence concurrently or partially concurrently when defendant commits a federal offense while on federal or s tate probation, parole, or supervised release, and such probation parole, or supervised release has been revoked).

United States v. Gonzalez, 192 F.3d 350 (2nd Cir. 1999)(improper "backdating" of sentence to date of state arrest; co-
defendant entitled to credit for time already served while in federal custody).

Rios v. Wiley, 201 F.3d 257 (3rd Cir. 2000)(petitioner entitled to habeas relief under U.S.S.G. § 5G1.3(c) and to credit for time spent while awaiting writ of habeas corpus ad prosequendum).

Romandine v. United States, 206 F.3d 731 (7th Cir. 2000)(District court may not require sentence to run consecutive to a state sentence that will be imposed in the future.).

United States v. Pena-Lora, 225 F.3d 18 (1st Cir. 2000)(insufficient evidence in hostage-taking conspiracy prosecution; mandatory sentences for using multiple weapons during single crime of violence could not be consecutive to each other).

United States v. Swan, 275 F.3d 272 (3rd Cir. 2002)(Note 6 of U.S.S.G. § 5G1.3(c) does not mandate consecutive sentences for defendant who commits offense while on federal or state probation, parole, or supervised release, only that consecutive sentences "should" be imposed, leaving discretion with district court.).

Table of Contents

SENTENCING- CRIMINAL HISTORY

United States v. DiPina, 178 F.3d 68 (1st Cir. 1999)(prior juvenile dispositions not countable in criminal history calculation unless tantamount to guilty or nolo pleas).

United States v. Martinez-Santos, 184 F.3d 196 (2nd Cir. 1999)(prior crimes erroneously characterized as not victimless for criminal history calculation).

United States v. Carter, 203 F.3d 187 (2nd Cir. 2000)(past misdemeanor conviction for harassment could not be counted in calculating criminal history score).

United States v. Sanders, 205 F.3d 549 (2nd Cir. 2000)(prior minor offense of "fare-beating" should not have been included in criminal history score calculation).

United States v. Johnson, 205 F.3d 1197 (9th Cir. 2000)(district court erred by adding four criminal history points to account for two prior juvenile convictions).

United States v. Arnold, 213 F.3d 894 (5th Cir. 2000)(date on which city court sentence was pronounced, not later date on which probation was revoked and sentence began, was determining date on issue of whether prior sentence was imposed within ten years so that it could be used in determining criminal history score).

United States v. Morales, 239 F.3d 113 (2nd Cir. 2000)(New York conviction for second-degree harassment did not warrant criminal history point).

United States v. Murphy, 241 F.3d 447 (6th Cir. 2001)(remanded for proper application of criminal history points for two misdemeanor convictions).

United States v. Hoover, 246 F.3d 1054 (7th Cir. 2001)(sentence of two days for resisting arrest was not at least 30 days imprisonment or one year's probation so as to justify additional criminal history point).

United States v. Miranda, 248 F.3d 434 (5th Cir. 2001)(remand because criminal history incorrectly calculated).

United States v. Robertson, 260 F.3d 500 (6th Cir. 2001)(Criminal history calculation could not include convictions more than 15 years before commission of current offense; improper determination of whether defendant entitled to additional one point reduction for acceptance.).

United States v. Knight, 266 F.3d 203 (3rd Cir. 2001)(plainly erroneous miscalculation of guideline range based on incorrect criminal history).

United States v. Smith, 278 F.3d 605 (6th Cir. 2002)(District court could have departed downwardly for over-representation of actual criminal history.).

United States v. Reyes-Maya, 305 F.3d 362 (5th Cir. 2002)(Prior misdemeanor conviction for criminal mischief should have been excluded from criminal history score, and error was not harmless.).

United States v. Sims, 309 F.3d 739 (10th Cir. 2002)(improper extension of criminal history from Category VI to hypothetical Category IX).

Table of Contents

SENTENCING- CROSS REFERENCES

United States v. Crandon, 173 F.3d 122 (3rd Cir. 1999)(necessary to consider defendant's motivation or purpose in taking photos before determining applicability of cross-reference for receipt of child pornography).

United States v. Smith, 184 F.3d 415 (5th Cir. 1999)(erroneous application of first degree murder guideline in conspiracy to commit kidnapping case).

United States v. Thomas, 280 F.3d 1149 (7th Cir. 2002)(Homicide cross-reference was not warranted and was plain error.).

United States v. Angle, 234 F.3d 327 (7th Cir. 2000)(Defendant did not receive proper application of cross-reference to sexual abuse guideline.).

Table of Contents

SENTENCING - DEPARTURES

•DOWNWARD

United States v. Paster, 173 F.3d 206 (3rd Cir. 1999)(additional one-level reduction in sentence for assisting in investigation required; proportionality concerns required remand as a result of 9-level upward departure).

United States v. Galvez-Falconi, 174 F.3d 255 (2nd Cir. 1999)(district court has authority to depart downward based on defendant's willingness to consent to deportation).

United States v. McMurtuary, 176 F.3d 959 (7th Cir. 1999)(unjustified sentencing disparities among co-conspirators should have been considered basis for downward departure).

United States v. Aker, 181 F.3d 167 (1st Cir. 1999)(remand for clarification as to basis of denial of departure based on diminished capacity).

United States v. Lahey, 186 F.3d 272 (2nd Cir. 1999)(since neither bank fraud statute nor statute prohibiting probation for Class B felonies precludes a sentence imposing no jail term, court allowed to depart from sentencing guidelines despite guideline directing a sentence including at least one month imprisonment).

United States v. Rudolph, 190 F.3d 720 (6th Cir. 1999)(district court may depart downward on the basis of defendant's post-
sentence rehabilitation).

United States v. Debeir, 186 F.3d 561 (4th Cir. 1999)(unique psychological condition, unusual susceptibility to abuse in prison, status as resident alien, employment consequences, negative publicity, fact that defendant was not a pedophile, alleged victimless nature of offense did not warrant downward departure).

United States v. Thorpe, 191 F.3d 339 (2nd Cir. 1999)(incorrect belief by district court that Guidelines required a downward departure before non-custodial probationary sentence could be imposed).

United States v. Rodriguez-Lopez, 198 F.3d 773 (9th Cir. 1999)(absence of government consent did not necessarily preclude downward departure on basis of defendant's stipulation of deportation).

United States v. Castillo-Casiano, 198 F.3d 787)(plain error for district court not to consider nature of aggravated felony which resulted in increased base offense level in deciding whether downward departure appropriate).

United States v. Coleman, 188 F.3d 354 (6th Cir. 1999)(en banc)(district court may grant downward departure based upon government's improper investigatory techniques).

United States v. Daas, 198 F.3d 1167 (9th Cir. 1999)(abuse of discretion to deny downward departure due to sentencing disparity with co-defendants).

United States v. Bradstreet, 207 F.3d 76 (1st Cir. 2000)(Post-sentencing rehabilitation may be used to grant downward departure in a sufficiently exceptional case, citing Koon – first impression.).

United States v. Buchanan, 207 F.3d 344 (6th Cir. 2000)(District court required to consider alleged withdrawal from conspiracy as ground for downward departure; and, per concurring justice, dog sniff evidence inadmissible as unreliable.).

United States v. Ross, 210 F.3d 916 (8th Cir. 2000)(additional findings necessary on issue of role in offense; downward departure not supported by finding that not all wire fraud proceeds were put to fraudulent use or by perceived sentencing guidelines disparity).

United States v. Patterson, 215 F.3d 776 (7th Cir. 2000)(counsel's extended absences from trial

warranted new trial for ineffective assistance; remand required to determine if sentencing judge understood he had discretion to depart from guidelines where he imposed life sentence).

United States v. Greer, 223 F.3d 41 (1st Cir. 2000)(remand to determine if court had imposed downward departure).

United States v. Simpson, 228 F.3d 1294 (11th Cir. 2000)(plain error in calculation of drug quantity; error to downwardly depart from statutory mandatory minimum sentence in absence of a motion by the government under 18 U.S.C. § 3553(e) or unless defendant falls within provisions of safety valve statute, 18 U.S.C. § 3553(f)).

United States v. White, 240 F.3d 127 (1st Cir. 2001)(drug distribution counts duplicative, for double jeopardy purposes, of count charging, on same conduct, distribution within 1,000 feet of school; remand for consideration of whether appropriate case for downward departure from mandatory stacking provisions of U.S.S.G. § 5G1.2).

United States v. Lewis, 249 F.3d 793 (8th Cir. 2001)(remanded for resentencing because court could not determine whether district court thought it had authority to depart for "lesser harms," i.e. that defendant pawned gun to pay bills, because this was not type of evil envisioned by Congress when it enacted §§ 922(a)(6) and 922(g)(1)).

United States v. Walter, 256 F.3d 891 (9th Cir. 2001)(Childhood abuse was extraordinary and could constitute basis for downward departure).

United States v. Rodriguez-Montelongo, 263 F.3d 429 (5th Cir. 2001)(Cultural assimilation is permissible basis for downward departure in alien reentry case.).

United States v. Carty, 264 F.3d 191 (2nd Cir. 2001)(Downward departure could be based upon severe pre-sentence confinement conditions.).

United States v. Powell, 269 F.3d 175 (3rd Cir. 2001)(If downward departure may be based on either discretionary or legal grounds, proper procedure is to remand to district court to clarify basis for departure.).

United States v. Gonzalez, 281 F.3d 38 (2nd Cir. 2002)(Spontaneity is not a subset of limited duration factor or significant planning factor with respect to issue of aberrant conduct so that district court should have considered whether downward departure was warranted because defendant's behavior was, in some significant degree, spontaneous.)

United States v. Lukse, 286 F.3d 906 (6th Cir. 2002)(Government was bound by plea agreement to file downward departure motion despite facts that defendants were seen smoking marijuana in jail prior to sentencing.).

United States v. Harris, 293 F.3d 863 (5th Cir. 2002)(Because victim provoked offensive behavior, downward departure was appropriate.).

United States v. Dominguez, 296 F.3d 192 (3rd Cir. 2002)(Grant of downward departure is discretionary where unusual or extraordinary effect on family members.).

United States v. Downing, 297 F.3d 52 (2nd Cir. 2002)(Denial of downward adjustment of sentence on basis of failure to complete acts necessary to carry out substantive offense was erroneous in prosecution for conspiracy to commit wire fraud and securities fraud.).

United States v. Carr, 303 F.3d 539 (4th Cir. 2002)(Where district court erroneously determines it has no authority to downwardly depart, remand is required.).

United States v. Truman, 304 F.3d 586 (6th Cir. 2002)(District court had discretion to depart for defendant's assistance which did not involve investigation or prosecution of another person.).

United States v. Mansoori, 304 F.3d 635 (7th Cir. 2002)(Allegedly diminished mental capacity is possible ground for downward departure in cocaine conspiracy case.).

United States v. Kushner, 305 F.3d 194 (3rd Cir. 2002)(That defendant's "intended loss" overrepresented the seriousness of his offense is ground for downward departure.).

United States v. Parish, 308 F.3d 1025 (9th Cir. 2002)(downward departure upheld in child pornography case where district court determined defendant's stature, demeanor and naivete rendered him susceptible to abuse while in prison).

United States v. Silleg, 311 F.3d 557 (2nd Cir. 2002)(Diminished capacity may form basis of downward departure in child pornography case; district court may have misapprehended its authority to downwardly depart.). [Ed. note: Of course, the Feeney Amendment has changed this.].

Table of Contents

•UPWARD

United States v. Davis, 170 F.3d 618 (6th Cir. 1999)(four-level upward departure for extreme conduct improper).

United States v. Checora, 175 F.3d 782 (10th Cir. 1999)(departures for extreme conduct not adequately supported; restitution order not supported by sufficient evidence).

United States v. Warren, 186 F.3d 358 (3rd Cir. 1999)(large quantities of drugs possessed by defendant did not warrant upward departure where defendant didn't intend anyone to consume the drugs; statement in PSR about defendant's purported other criminal activities was too ambiguous and attenuated to support upward departure).

United States v. Stevens, 192 F.3d 263 (2nd Cir. 1999)(inadequate reasons for upward departure from recommended supervised release term).

United States v. Holmes, 193 F.3d 200 (3rd Cir. 1999)(upward departure for extraordinary abuse of trust upheld; proper factual inquiry not made before determining restitution amount).

United States v. Lawton, 193 F.3d 1087 (9th Cir. 1999)(upward departure based on the suspected but uncharged real offense conduct of assault was plain error).

United States v. Medford, 194 F.3d 419 (3rd Cir. 1999)(Selection of midpoint between high and low estimates of stolen items' fair market value, as measure of loss, was arbitrary; upward departure was improper absent notice to defendants; upward departure based on cultural, non-monetary value of stolen items was proper.).

United States v. Cones, 195 F.3d 941 (7th Cir. 1999)(unusually high purity of heroin did not justify upward departure).

United States v. Bartsma, 198 F.3d 1191 (10th Cir. 1999)(failure to justify degree of upward departure; reasonable presentence notice necessary to impose special condition of release requiring registration as sex offender).

United States v. Hunerlach, 258 F.3d 1282 (11th Cir. 2001)(Upward departure from criminal history category cannot be based on conduct which constituted relevant conduct already considered in computing base offense level.).

United States v. Hanson, 264 F.3d 988 (10th Cir. 2001)(Upward departure from second-degree murder range on grounds that murder was premeditated was precluded.).

United States v. Smith, 267 F.3d 1154 (D.C. Cir. 2001)(Upward departure based on prior uncharged conduct was not warranted.).

United States v. Olabanji, 268 F.3d 636 (9th Cir. 2001)(Where court upwardly departed from Chapter 7 sentencing guidelines in imposing sentence following revocation of probation, court erred in failing to consider guideline range of underlying offense of conviction.).

United States v. Hannah, 268 F.3d 937 (10th Cir. 2001)(inadequate basis for upward departure on record).

United States v. Martinez, 274 F.3d 897 (5th Cir. 2001)(improper upward departures imposing consecutive sentences beyond guideline range and statutory maximum).

United States v. Martin, 278 F.3d 988 (9th Cir. 2002)(Recidivism could not form basis for offense level departure under the Guidelines.).

United States v. Cade, 279 F.3d 265 (5th Cir. 2002)(District court's use of state sentences as relevant conduct did not justify upward departure on ground that criminal history category did not adequately reflect seriousness of past criminal conduct.).

United States v. Guzman, 282 F.3d 177 (2nd Cir. 2002)(When considering upward departure for failure of guideline to reflect seriousness of the offense, court improperly applied analogous guideline for bribery where it should have started with base offense level of the offense of conviction, and only then, in exercise of its discretion, applied the analogous guideline for upward departure.).

United States v. Walker, 284 F.3d 1169 (10th Cir. 2002)(Despite defendant's extensive criminal history, seven-level upward departure was not justified by reasoned explanation by district court.).

United States v. Diaz, 285 F.3d 92 (1st Cir. 2002)(District court's failure to give notice of upward departure based on inadequacy of criminal history category and in determining that conduct posed a substantial risk of death or bodily injury to multitude of victims warranted remand.).

United States v. Cross, 289 F.3d 476 (7th Cir. 2002)(improper methodology in departing upwardly for inadequacy of criminal history category where district court failed to tailor the departure by increasing the offense level in response to extra criminal history points).

United States v. Hurlich, 293 F.3d 1223 (10th Cir. 2002)(insufficient evidence to support sentencing enhancement for possession of firearm in connection with another felony offense; failure to articulate reasons for degree of upward departure).

United States v. Cicirello, 301 F.3d 135 (3rd Cir. 2002)(District court erred in single step adjustment in upwardly departing based on hypothetical scenario instead of proceeding sequentially.).

United States v. Spring, 305 F.3d 276 (4th Cir. 2002)(error in departing upward without prior notice to defendant).

United States v. Booth, 309 F.3d 566 (9th Cir. 2002)(Imposition of upward departure for victim's desperation was barred for lack of notice.).

Table of Contents

SENTENCING - DRUG QUANTITY

United States v. Garcia-Sanchez, 189 F.3d 1143 (9th Cir. 1999)(defendant, an independent seller, could not be held accountable for entire amount attributed to conspiracy; unreliable evidence of conspiracy's sales).

United States v. Garcia-Sanchez, 189 F.3d 1143 (9th Cir. 1999)(Defendant not to be held accountable for entire amount of drugs sold by conspiracy where evidence established he was only individual seller; evidence of conspiracy's sales based on unreliable evidence).

United States v. Rivera-Maldonado, 194 F.3d 224 (1st Cir. 1999)(district court's finding as to drug quantity under sentencing guidelines lacked sufficient indicia of reliability where district court utilized incorrect metric conversions and presentence report failed to break down drug quantity by drug type and failed to indicate how total drug quantity was calculated).

United States v. Santos, 195 F.3d 549 (9th Cir. 1999)(drug quantities triggering mandatory minimum sentences under 21 U.S.C. § 841(b) are determined exclusively by reference to offense of conviction and not by relevant conduct, abrogating United States v. Keyes, 40 F.3d 1148 and following great weight of authority from other circuits). [Ed. note: The decision cites no authority on this issue from the Eleventh Circuit.]

United States v. Morrison, 207 F.3d 962 (7th Cir. 2000)(clear error in calculation of drug quantities).

United States v. Gigley, 207 F.3d 1212 (10th Cir. 2000)(Offense level should have been based on quantity of pure methamphetamine, not mixture.).

United States v. Asch, 207 F.3d 1238 (10th Cir. 2000)(Drugs possessed for personal consumption cannot be considered when determining statutory sentencing range.).

United States v. Moore, 212 F.3d 441 (8th Cir. 2000)(31.8 grams of cocaine base improperly included in determining base level).

United States v. Lopez, 219 F.3d 343 (4th Cir. 2000)(error for court to use information in defendant's proffer statement as basis for drug quantity determination; evidence at trial did not provide basis for drug quantity determination).

United States v. Eschman, 227 F.3d 886 (7th Cir. 2000)(improper to use one-to-one conversion ratio in conspiracy to manufacture methamphetamine case because it was theoretically possible to convert precursor chemicals into same amount of drug; also remanded for reconsideration of failure to give 3 point acceptance or responsibility reduction).

United States v. Simpson, 228 F.3d 1294 (11th Cir. 2000)(plain error in calculation of drug quantity; error to downwardly depart from statutory mandatory minimum sentence in absence of a motion by the government under 18 U.S.C. § 3553(e) or unless defendant falls within provisions of safety valve statute, 18 U.S.C. § 3553(f)).

United States v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000)(error to attribute entire drug quantity in conspiracy absent explicit finding of responsibility).

United States v. Stott, 245 F.3d 890 (7th Cir. 2001)(conversion ratio - cocaine to cocaine base -

not based on reliable evidence).

United States v. Williams, 247 F.3d 353 (2nd Cir. 2001)(In prosecution for possession with intent to distribute, drugs meant only for personal use must be excluded from quantity calculation for sentencing.).

United States v. Palmer, 248 F.3d 569 (7th Cir. 2001)(U.S. Marshal's testimony that gang member, who did not personally testify at sentencing hearing,, told him defendant possessed 241 grams of crack cocaine, did not support finding of more than 150 grams.).

United States v. Camacho, 261 F.3d 1071 (11th Cir. 2001)(Weight of pure LSD alone, not entire weight of liquid solution, determines appropriate base offense level.).

United States v. Morgan, 292 F.3d 460 (5th Cir. 2002)(Weight of pure LSD alone, not of entire liquid solution, controls base offense level). [Ed. note: first impression case in 5th Circuit].

United States v. Keresztury, 293 F.3d 750 (5th Cir. 2002)(district court erroneously based offense level on weight of LSD/Vodka mixture and not on pure LSD.).

United States v. Noble, 299 F.3d 907 (7th Cir. 2002)(no reliable evidence to support district court's drug quantity determination).

United States v. Culp, 300 F.3d 1069 (9th Cir. 2002)(Evidence did not support estimated average transaction size used by district court to approximate drug quantities.).

United States v. Sandlin, 313 F.3d 351 (6th Cir. 2002)(plain error to aggregate drug quantities accumulated over period of three months).

United States v. Rosacker, 314 F.3d 422 (9th Cir. 2002)(forensic lab report not sufficiently reliable to support quantity approximation).

United States v. Seesing, 234 F.3d 456 (9th Cir. 2000)(insufficient evidence to support finding as to drug quantity ).

United States v. Sau Hung Yeung, 241 F.3d 321 (3rd Cir. 2001)(defendant only accountable for quantity of heroin actually delivered to informant).

Table of Contents

•CRACK /POWDER

United States v. Moreno, 181 F.3d 206 (2nd Cir. 1999)(remand necessary to determine amount of powder cocaine distributed).

United States v. Hunt, 272 F.3d 488 (7th Cir. 2001)(plain error to convert laundered money into rough equivalent of cocaine for drug quantity purposes).

Table of Contents

•MARIJUANA

•METHAMPHETAMINE

United States v. Gigley, 207 F.3d 1212 (10th Cir. 2000)(Offense level should have been based on quantity of pure methamphetamine, not mixture.).

United States v. Sandlin, 291 F.3d 875 (6th Cir. 2001)(improper aggregation of quantities of methamphetamine manufactured in three batches over a three month period).

Table of Contents

SENTENCING ENHANCEMENTS- GENERAL

United States v. Leahy, 169 F.3d 433 (7th Cir. 1999)(unreasonable terrorism enhancement of 10 levels).

United States v. Summers, 176 F.3d 1328 (11th Cir. 1999)(imposition of enhancement under amended Sentencing Guideline violates ex post facto clause).

United States v. Banda-Zamora, 178 F.3d 728 (5th Cir. 1999)(remanded to determine if direct probation–not suspended sentence-results in enhancement for "aggravated felony" under U.S.S.G. § 2l1.2(b)(1)(A)).

United States v. Waskom, 179 F.3d 303 (5th Cir. 1999)(three point reduction in offense level for uncompleted conspiracy should have been given; one defendant entitled to recusal of sentencing judge).

Williams v. Edwards, 195 F.3d 95 (2nd Cir. 1999)(remanded to allow Petitioner to amend to challenge illegal enhancement).

United States v. Thayer, 201 F.3d 214 (3rd Cir. 2000)(merely committing bankruptcy fraud did not warrant enhancement for violation of a judicial process).

United States v. Gormley, 201 F.3d 290 (4th Cir. 2000)(enhancement due to alleged "special skill" of tax preparation did not warrant upward adjustment).

United States v. Rutherford, 175 F.3d 899 (11th Cir. 1999)(Trial court must determine what confidential informant's testimony would have been before denying defendant's motion to disclose informant's names where defendant presented misidentification defense; notice of intent to seek statutory enhancement must list defendant's prior convictions.).

United States v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999)(Bruton error not harmless; insufficient evidence of conspiracy in drug case; insufficient evidence of using or carrying firearm in relation to drug trafficking crime; insufficient notice by government of intent to seek sentence enhancement based on prior convictions).

United States v. Merino, 190 F.3d 956 (9th Cir. 1999)(Environmental clean-up cost of $32,000 was not "substantial" expenditure warranting sentence enhancement).

United States v. Magluta, 198 F.3d 1265 (11th Cir. 1999)(improper reliance on same conduct to depart for "loss of confidence in an important institution" and for "significant disruption of a governmental function;" error to enhance base level by nine levels for bail jumping).

United States v. Chastain, 198 F.3d 1338 (11th Cir. 1999)(improper enhancement based on use of private airplane in drug importation case).

United States v. Walker, 202 F.3d 181 (3rd Cir. 2000)(official victim enhancement not warranted where prison cook supervisor who was attacked did not spend significant time guarding prisoners).

United States v. Butler, 207 F.3d 839 (6th Cir. 2000)(Sentence enhancement not warranted for defendant's participation in robbery with minor; concurring opinion holds guideline authorizing enhancement for using or attempting to use a minor in an offense contrary to statute because it applied to defendants regardless of their age.).

United States v. Brock, 211 F.3d 88 (4th Cir. 2000)(two-level enhancement for threats to injure person in prosecution for interstate harassing communications incompatible with base offense level of six which did not involve threat to injure person or property).

United States v. Pedragh, 225 F.3d 240 (2nd Cir. 2000)(post-offense convictions could not be included as "prior felony convictions" for purposes of enhancing sentence).

United States v. Kroeger, 229 F.3d 700 (8th Cir.2000)(plain error to apply environmental-harm enhancement in determining offense level for count of endangering life in manufacturing methamphetamine case).

Steele v. Blackman, 236 F.3d 130 (3rd Cir. 2001)(second misdemeanor conviction for possessing 30 grams or less of marijuana was not "aggravated felony" under Controlled Substances Act).

United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001)(en banc)(Conviction of transporting , selling, importing, giving away, or otherwise importing marijuana into California does not qualify as an aggravated felony under 16-level enhancement provision of the Guidelines.).

United States v. Montano, 250 F.3d 709 (9th Cir. 2001)(2 level enhancement for smuggling involving sophisticated concealment in drug smuggling case not warranted).

United States v. Bennett, 252 F.3d 559 (2nd Cir. 2001)(improper enhancement of sentence on ground that wife refused to surrender her interest in property).

United States v. Alarcon, 261 F.3d 416 (5th Cir. 2001)(Mere fact that child was riding in truck carrying marijuana shipment did not support conviction for using minor; sentencing enhancement for using minor to commit crime was plain error.).

United States v. Maung, 267 F.3d 1113 (11th Cir. 2001)(Enhancement for being "in the business of receiving and selling stolen property" was improper; restitution order which exceeded 90-day time period was invalid.).

United States v. Cervantes-Nava, 281 F.3d 501 (5th Cir. 2002)(Texas DWI offense was not crime of violence or aggravated felony warranting increase in base offense level.).

United States v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002)(prior felonies not aggravated so as to justify 4-level enhancement).

United States v. Chau, 293 F.3d 96 (3rd Cir. 2002)(improper enhancement of sentence for failure to obtain refuse disposal permit).

United States v. Lee, 296 F.3d 792 (9th Cir. 2002)(Imposition of special skills enhancement upon conviction based on use of fraudulent website on internet was not warranted.).

United States v. Jiminez, 300 F.3d 1166 (9th Cir. 2002)(Enhancements for using minor in commission of offense and for obstruction of justice were not warranted.).

United States v. Stallings, 301 F.3d 919 (8th Cri. 2002)(Prior non-entered felony conviction could not be used to enhance sentence.).

United States v. Garcia-Cantu, 302 F.3d 308 (5th Cir. 2002)(Texas state conviction for injury to a child was not crime of violence to qualify as "aggravated felony" for enhancement purposes.).

United States v. Crispo, 306 F.3d 71 (2nd Cir. 2002)(Bankruptcy trustee was not "government officer

or employee" within meaning of sentencing guideline providing for enhancement if victim was government officer or employee.).

Table of Contents

SENTENCING ENHANCEMENTS -VIOLENCE

United States v. Sickinger, 179 F.3d 1091 (8th Cir. 1999)(failure to prove injuries sustained– no enhancement under kidnapping provision).

United States v. Zendeli, 180 F.3d 879 (7th Cir. 1999)(statutory sentence enhancement for personal injury to person improperly applied where injured person was co-conspirator in arson/insurance fraud scheme).

United States v. Farrow, 198 F.3d 179 (6th Cir. 1999)(impermissible double counting by relying on same conduct, use of car as dangerous weapon, in determining that defendant committed aggravated assault and in applying 4-level enhancement for otherwise using a dangerous weapon).

United States v. Dixon, 201 F.3d 1223 (9th Cir. 2000)(clear error for imposing enhanced sentence for creating substantial risk of death or serious bodily injury where illegal aliens were put in trunk of vehicle).

United States v. Swiney, 203 F.3d 397 (6th Cir. 2000)(Sentencing Guidelines reasonable foreseeability analysis, not theory of co-conspirator vicarious liability, determines whether defendant is subject to 20-year minimum sentence based on fact that death resulted from use of heroin distributed by members of conspiracy).

United States v. Shumpert Hood, 210 F.3d 660 (6th Cir. 2000)("minor assault" guidelines provision applied, not "aggravated assault" provision).

United States v. Wright, 248 F.3d 765 (8th Cir. 2001)(no evidence to support enhancement of 4 levels for serious bodily injury).

United States v. Blue, 255 F.3d 609 (8th Cir. 2001)(Evidence did not support sentence enhancement for using force or on ground that victim was in "custody, care, or supervisory control" of defendant).

United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001)(DUI conviction without injury was not crime of violence and thus not "aggravated felony" warranting 16-level increase.).

United States v. Landerros-Arreola, 260 F.3d 407 (5th Cir. 2001)(Menacing conviction could not be treated as "aggravated felony" for sentencing enhancement purposes.).

United States v. Guy, 282 F.3d 991 (8th Cir. 2002)("deeming" provision of sentencing guideline defining "serious bodily injury" inappropriately applied; more specific findings required on issues of whether serious bodily injury appropriate on basis of protracted impairment of bodily members or mental faculties and on basis of extreme physical pain).

United States v. Londono, 285 F.3d 348 (5th Cir. 2002)(Two-level enhancement for taking property "from the person of another" was not justified where defendant took diamonds from x-ray belt at security checkpoint at airport while accomplice prevented salesman from passing through metal detector.).

United States v. Hernandez-Neave, 291 F.3d 296 (5th Cir. 2002)(Defendant's prior conviction for unlawfully possessing firearm in place licensed for selling alcoholic beverages was not a "crime of violence" which would support 16-level increase to base offense level.).

United States v. Charles, 301 F.3d 309 (5th Cir. 2002)(Sentencing Guidelines definition of "crime of violence," not statutory definition, controlled in determination of whether prior felony conviction supported enhancement; simple motor vehicle theft under Texas law is not a crime of violence.).

United States v. Turner, 305 F.3d 349 (5th Cir. 2002)(Determination of whether burglary of a building was a "crime of violence" for purpose of increasing base offense level turned on conduct expressly charged in indictment for the prior conviction, which was not in the record.).

United States v. Costello, 307 F.3d 553 (7th Cir. 2002)(Enhancement for use of physical force in relation to prostitution offense only applied to force against prostitute.).

Table of Contents

SENTENCING - FIREARMS

United States v. Wilson, 169 F.3d 418 (7th Cir. 1999)(improper firearms enhancement in drug case).

United States v. Gallo, 195 F.3d 1278 (11th Cir. 1999)(Reasonable foreseeability required to enhance drug sentence based on co-conspirator's possession of firearm.).

United States v. Jamieson, 202 F.3d 1293 (11th Cir. 2000)(defendant's sentence erroneously enhanced based on his possession of a semiautomatic weapon which was not one of the nine weapons specifically banned by the Violent Crime Control Act).

United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000)(improper 16-level enhancement for possession of firearm by non-citizen–not an "aggravated felony").

United States v. Rome, 207 F.3d 251 (5th Cir. 2000)(Speculation that defendant would have stolen all 87 guns on display in store he broke into was insufficient basis for 6-level enhancement for crime involving 50 guns or more.).

United States v. Mojica, 214 F.3d 1169 (10th Cir. 2000)(defendant's sentence properly reduced to level 6 because shotgun he possessed was used in connection with brother's lawful sporting activity).

United States v. Aquino, 242 F.3d 859 (9th Cir. 2001)(Weapons enhancement under Sentencing Guidelines could not be imposed on defendant convicted of using and carrying firearm during drug trafficking offense.).

United States v. Diaz, 248 F.3d 1065 (11th Cir. 2001)(insufficient evidence of Hobbs Act violations; court could not enhance sentence by 5 levels for weapons based on brandishing or possession by a co-defendant).

United States v. Jordan, 256 F.3d 922 (9th Cir. 2001)(Due process requires that aggregated nine-level sentence enhancements for firearm possession and abduction to facilitate escape be proven by clear and convincing evidence, not mere preponderance of the evidence).

United States v. Le, 256 F.3d 1229 (11th Cir. 2001)(District court's error in applying seven-level firearm increase to defendant's sentence for Hobbs Act convictions was not harmless).

United States v. Highsmith, 268 F.3d 1141 (9th Cir. 2001)(insufficient evidence to prove defendant in constructive possession of firearm during commission of drug-related crime).

United States v. McAllister, 272 F.3d 228 (4th Cir. 2001)(insufficient evidence to justify enhancement for gun possession during illegal drug activity).

United States v. Atwater, 272 F.3d 511 (7th Cir. 2001)(District Judge ignored particulars of case in enhancing defendant's sentence by five levels for use of gun during bank robbery, relying instead on his own conclusion that guns are usually used in bank robberies.).

United States v. Cooper, 274 F.3d 230 (5th Cir. 2001)(insufficient evidence to justify weapons enhancement for defendant who pled guilty to weapons charge).

United States v. Stubbs, 279 F.3d 402 (6th Cir. 2002)(District court plainly erred in sentencing defendant for crime of using or carrying firearm in connection with drug trafficking crime, which crime was a different offense than the charged crime of conspiracy.).

United States v. Lucas, 282 F.3d 414 (6th Cir. 2002)(insufficient evidence to justify enhancement for possession of firearm in connection with drug offense).

United States v. Timmons, 283 F.3d 1246 (11th Cir. 2002)(Conviction under 18 U.S.C. § 924(c) precluded sentencing enhancement for possession of weapon in connection with drug trafficking offense.).

United States v. Pena-Sarabia, 297 F.3d 983 (10th Cir. 2002)(Evidence of husband's possession of firearm in their home was insufficient to establish defendant's possession under safety valve provision.).

United States v. Cicirello, 301 F.3d 135 (3rd Cir. 2002)("reason to believe" guns would be used in commission of another felony not warranted by evidence; no evidence of "substantial risk of death or bodily injury to multiple individuals;" district court erred in single step adjustment in upwardly departing based on hypothetical scenario instead of proceeding sequentially).

United States v. Collins, 313 F.3d 1251 (10th Cir. 2002)(Failure of district court to reduce sentence where it failed to properly examine circumstances in determining whether defendant's purpose in possessing weapons was solely lawful for sporting was reversible error.).

United States v. Romano, 314 F.3d 1279 (11th Cir. 2002)(In 18 U.S.C. § 922(g)(1) prosecution, inclusion in sentence of base offense level increases based on conduct involved in count which was to be dismissed pursuant to plea agreement was plain error.).

United States v. Seesing, 234 F.3d 456 (9th Cir. 2000) (error to apply altered serial number sentencing enhancement to non-firearms counts).

United States v. Thompson, 234 F.3d 726 (D.C. Cir. 2000)(sentence vacated for improper gun enhancement for stolen gun).

Table of Contents

SENTENCING- FIREARMS -"IN CONNECTION WITH ANOTHER FELONY OFFENSE"

United States v. Askew, 193 F.3d 1181 (11th Cir. 1999)(evidence did not support finding that defendant had reason to believe that stolen firearms would be used in another felony, and thus did not support enhancement under sentencing guidelines).

United States v. Szakacs, 212 F.3d 344 (7th Cir. 2000)(Defendant's offense levels were not subject to enhancement for use of weapon in another felony offense where indictment charged conspiracy to steal firearms from licensed firearms dealer.).

United States v. Adams, 214 F.3d 724 (6th Cir. 2000)(possession of ammunition during same incident as possession of handguns did not support separate conviction).

United States v. Mezas De Jesus, 217 F.3d 638 (9th Cir. 2000)(nine level enhancement based on theory that firearms offense was committed during an uncharged kidnapping necessitated that proof of kidnapping be by clear and convincing evidence, not just by preponderance).

United States v. Rogers, 270 F.3d 1076 (7th Cir. 2001)(Sentence of 70 months for possession of unregistered silencer was not warranted because evidence determined by preponderance cannot result in greater sentence than identical conduct based upon proof beyond a reasonable doubt.).

United States v. Hurlich, 293 F.3d 1223 (10th Cir. 2002)(insufficient evidence to support sentencing enhancement for possession of firearm in connection with another felony offense).

United States v. Fenton, 309 F.3d 825 (3rd Cir. 2002)(Where defendant did not possess any firearms when he entered store to steal firearms and did not use the stolen firearms to commit any crimes after the theft, his sentence for possession by felon of firearm could not be enhanced for use or possession of firearm in connection with another felony offense.).

Table of Contents

SENTENCING - FRAUD/THEFT

United States v. Cabrera, 172 F.3d 1287 (11th Cir. 1999)(improper attribution of amount of fraud loss to defendant; factual findings necessary when computing fraud loss amount).

United States v. Smith, 186 F.3d 290 (3rd Cir. 1999)(conduct underlying defendants' convictions for conspiracy to defraud, interstate transportation of stolen property, causing unlawful interstate travel with intent to distribute stolen property, and money laundering, which arose from embezzlement/kickback scheme, fell outside heartland of money laundering guideline, and, instead, use of fraud guidelines was proper).

United States v. Lander, 188 F.3d 190 (3rd Cir. 1999)(defendants's statement at hearing on factual basis of pleas not "stipulations" supporting application of fraud guideline; district court erred in calculating loss to victim and defendants's ability to pay fine; reassignment on remand to different district judge unwarranted).

United States v. Principe, 203 F.3d 849 (5th Cir. 2000)(guideline dealing with fraudulent acquisition of immigration documents applied, not guideline dealing with trafficking in such documents).

United States v. Nichols, 229 F.3d 975 (10th Cir. 2000)(findings that defendant intended to deprive lender of full amount of FHA mortgage and vehicle loans so that amount of intended loss could be considered in determining base offense level were clearly erroneous; court required to consider security deposit put up in obtaining credit card in determining amount of intended loss).

Table of Contents

SENTENCING - GROUPING/DOUBLE COUNTING

United States v. Kirkham, 195 F.3d 126 (2nd Cir.1999)(conviction for failing to appear must be grouped with underlying conviction for making false statements).

United States v. Gigley, 207 F.3d 1208 (10th Cir. 2000)(District court failed to group failure to appear and underlying drug offenses and should have imposed consecutive sentences.).

United States v. Shea, 211 F.3d 658 (1st Cir. 2000)(remand in order to merge drug-user-in-possession sentence with that imposed for felon-in-possession count).

United States v. Bartley, 230 F.3d 667 (4th Cir. 2000)(drug and money laundering conspiracies should have been grouped for sentencing purposes, since money laundering offense level increased based on knowledge that laundered funds were drug proceeds).

United States v. Petrillo, 237 F.3d 119 (2nd Cir. 2000)(Tax evasion and mail fraud counts should have been grouped.).

United States v. Salter, 241 F.3d 392 (5th Cir. 2001)(Money laundering and narcotics convictions should have been grouped for sentencing; prior convictions for tax evasion and drug trafficking should have been combined for sentencing as part of common scheme or plan).

United States v. Moreno-Arredondo, 255 F.3d 198 (5th Cir. 2001)(Defendant's offenses of indecency with a child were "related" for sentencing purposes, U.S.S.G. § 4A2.1(a)(2), even though they involved different victims).

United States v. Runyan, 290 F.3d 223 (5th Cir. 2002)(inadequate linking of images to internet for purpose of proving distribution of child pornography; improper grouping of three counts of convictions affected defendant's substantial rights).

United States v. Gordon, 291 F.3d 181 (2nd Cir. 2002)(Tax evasion and mail fraud counts grouped under wrong guideline was plain error; sentence improperly structured; where total punishment exceeds statutory maximums on some counts, sentence should be structured to impose statutory maximum on all such counts, impose the total punishment on the count with a statutory maximum higher than the total punishment, and run the sentences consecutively only to the extent necessary to achieve the total punishment.).

United States v. Melendez, 301 F.3d 27 (1st Cir. 2002)(delinquency adjudications double-counted).

United States v. Reedy, 304 F.3d 358 (5th Cir. 2002)(Prosecution erroneously permitted to group child pornography counts by each individual image instead of by website.).

United States v. Green, 305 F.3d 422 (6th Cir. 2002)(Crime of failure to appear had to be grouped with underlying narcotics conspiracy for sentencing.).

United States v. Tolbert, 306 F.3d 244 (5th Cir. 2002)(Factoring-scheme counts should have been grouped with bank fraud count.).

Table of Contents

SENTENCING - HOMICIDE

United States v. Fortier, 180 F.3d 1217 (10th Cir. 1999)(guideline for first degree murder improperly used).

Table of Contents

SENTENCING - LOSS CALCULATION

United States v. Hopper, 177 F.3d 824 (9th Cir. 1999)(interest and penalties not to be included in tax loss calculation; disproportionate sentence required reversal under clear and convincing standard).

United States v. Fiorillo, 186 F.3d 1136 (9th Cir. 1999)(loss calculation erroneous; written judgment inconsistent with oral pronouncement).

United States v. Lander, 188 F.3d 190 (3rd Cir. 1999)(defendants's statement at hearing on factual basis of pleas not "stipulations" supporting application of fraud guideline; district court erred in calculating loss to victim and defendants's ability to pay fine; reassignment on remand to different district judge unwarranted).

United States v. Ruhe, 191 F.3d 376 (4th Cir. 1999)(different approach required in determining loss in ITAR prosecution).

United States v. Medford, 194 F.3d 419 (3rd Cir. 1999)(selection of midpoint between high and low estimates of stolen items' fair market value, as measure of loss, was arbitrary; upward departure was improper absent notice to defendants; upward departure based on cultural, non-monetary value of stolen items was proper).

United States v. Hunerlach, 197 F.3d 1059 (11th Cir. 1999)(insufficient evidence to support conviction for filing false statement; interest and penalties improperly included in "tax loss" for sentencing purposes).

United States v. Rowe, 202 F.3d 37 (1st Cir. 2000)("intended loss" calculation clearly erroneous).

United States v. Dawkins, 202 F.3d 717 (4th Cir. 2000)(economic loss calculated in error).

United States v. Bad Wound, 203 F.3d 1079 (8th Cir. 2000)(time at which defendant joined conspiracy was not determined so that amount of loss could be determined).

United States v. Standard, 207 F.3d 1136 (9th Cir. 2000)(failure to make necessary findings as to proportion of deductions based on illegal payments in false tax return case).

United States v. Sasso, 215 F.3d 283 (2nd Cir. 2000)(failure to make factual findings regarding amount of contribution ordered toward cost of monitorship of union required remand in RICO prosecution).

United States v. Andra, 218 F.3d 1106 (9th Cir. 2000)(tax loss calculation improperly included some penalties and interest).

United States v. Austin, 238 F.3d 1 (1st Cir. 2001)(value of car stolen before robbery not robbery-related loss under sentencing guidelines).

United States v. Silver, 245 F.3d 1075 (9th Cir. 2001)(in product substitution case, market value of goods disposed of by government should have been offset against disposal costs when calculating actual loss).

Pavel v. Hollins, 261 F.3d 210 (2nd Cir. 2001)(In child abuse case, counsel was ineffective for failing to prepare a defense, failing to call important fact witnesses, failing to conduct adequate investigation, and failing to present medical expert in child.).

United States v. Liss, 265 F.3d 1220 (11th Cir. 2001)(Failure to make factual findings regarding amount of loss and failure of Government to show Medicare program suffered loss resulted in reversal of restitution order.).

United States v. Higgins, 270 F.3d 1070 (7th Cir. 2001)(Improper loss calculation in bank fraud case).

United States v. Renick, 273 F.3d 1009 (11th Cir. 2001)(Arbitrary assignment of loss number was abuse of discretion.).

United States v. Gricco, 277 F.3d 339 (3rd Cir. 2002)(no coherent basis for calculation of tax loss).

United States v. Hardy, 279 F.3d 856 (9th Cir. 2002)(Where two prices are equally good measure of

actual or intended loss, court should use price bringing lesser punishment.).

United States v. Weaver, 281 F.3d 228 (D.C. Cir. 2002)(error to attribute to defendant particular uncharged loss in prosecution for misappropriation of postal funds).

United States v. Frost, 281 F.3d 654 (7th Cir. 2002)(evidence insufficient to support substantive fraud conviction, and net loss required to be recalculated under loss calculation guideline).

United States v. Hardy, 289 F.3d 608 (9th Cir. 2002)(District court improperly used retail value instead of wholesale value to calculate loss.).

United States v. Schaefer, 291 F.3d 932 (7th Cir. 2002)(failure to adequately articulate and justify relevant conduct relied on for loss calculation).

United States v. Snyder, 291 F.3d 1291 (11th Cir. 2002)(In prosecution for making false statements to FDA, district court erred in finding that loss sustained to stockholders of pharmaceutical company could not be determined.).

United States v. Wheeldon, 313 F.3d 1070 (8th Cir. 2002)(Intended loss in bankruptcy fraud prosecution was value of assets defendant concealed from bankruptcy court, not total debt sought to be discharged.).

Table of Contents

SENTENCING - MONEY LAUNDERING

United States v. Rodriguez, 278 F.3d 486 (5th Cir. 2002)(Discrepancy between defendant's earned income and assets did not justify enhancement of money laundering sentence absent showing that unaccounted money was laundered.).

United States v. Orlando, 281 F.3d 586 (6th Cir. 2002)(Three level enhancement without specific factual findings in money laundering case required remand.).

United States v. Scialabba, 282 F.3d 475 (7th Cir. 2002)(Proceeds of illegal gambling business were

net income or profits of business, not gross income or receipts of business, under money laundering statute.).

Table of Contents

SENTENCING - OBSTRUCTION OF JUSTICE

United States v. Cataldo, 171 F.3d 1316 (11th Cir. 1999)(enhancement for obstruction of justice not warranted).

United States v. Clayton, 172 F.3d 347 (5th Cir. 1999)(evidence did not support enhancement for obstruction of justice).

United States v. Brooks, 174 F.3d 950 (8th Cir. 1999)(insufficient factual findings and insufficient evidence to justify obstruction of justice enhancement).

United States v. Gage, 183 F.3d 711 (7th Cir. 1999)(clear error where district court increased defendant's offense level without stating with adequate clarity whether defendant's false testimony resulted from faulty memory or intent to impede justice).

United States v. Monzon-Valenzuela, 186 F.3d 1181 (9th Cir. 1999)(insufficient factual findings to support enhancement for obstruction of justice).

United States v. Bradbury, 189 F.3d 200 (2nd Cir. 1999)(enhancement for obstruction of justice not supported by record; post-
plea disclosures that amount of narcotic involved in kidnapping conspiracy was greater than indicated in plea agreement could not be considered in determining base offense level).

United States v. McSherry, 226 F.3d 153 (2nd Cir. 2000)(defendant's false grand jury testimony did not amount to obstruction of justice and did not warrant sentence enhancement).

United States v. Arambula, 238 F.3d 865 (7th Cir. 2001)(false testimony minimizing scope of conspiracy did not warrant enhancement for obstruction of justice).

United States v. Woodard, 239 F.3d 159 (2nd Cir. 2001)(factual findings insufficient to sustain enhancement for obstruction of justice).

United States v. Middleton, 246 F.3d 825 (6th Cir. 2001)(insufficient factual findings to support obstruction of justice enhancement).

United States v. McGiffen, 267 F.3d 581 (7th Cir. 2001)( inadequate findings to support obstruction enhancement).

Ortega v. United States, 270 F.3d 540 (8th Cir. 2001)(Mere fact that defendant failed polygraph exam did not warrant sentence enhancement for obstruction of justice.).

United States v. Kosmel, 272 F.3d 501 (7th Cir. 2001)(Absent evidence of willfulness, defendant could not be held responsible for obstructing justice by providing materially false information to his probation officer.).

United States v. Seward, 272 F.3d 831 (7th Cir. 2001)(Bare finding of untruthful statement did not support obstruction of justice enhancement.).

United States v. Jenkins, 275 F.3d 283 (3rd Cir. 2001)(improper enhancement for obstruction of justice for defendant's failure to appear at state court hearing; federal proceedings must be impeded).

United States v. Scungio, 255 F.3d 11 (1st Cir. 2001)(Defendant could not be sentenced under obstruction guideline because his conduct did not satisfy statutory elements of statute covered by that guideline; defendant's skill as a tax lawyer did not facilitate offense so as to justify "special skill" enhancement).

United States v. Tankersley, 296 F.3d 620 (7th Cir. 2002)(erroneous upward adjustment for obstructing administration of justice because no evidence that defendant obstructed trial or investigation of the obstruction count).

United States v. Jiminez, 300 F.3d 1166 (9th Cir. 2002)(Enhancements for using minor in commission of offense and for obstruction of justice were not warranted.).

United States v. Lawrence, 308 F.3d 623 (6th Cir. 2002)(findings insufficient as to alleged perjury to support enhancement for obstruction of justice).

United States v. Quarrell, 310 F.3d 664 (10th Cir. 2002)(insufficient findings to support obstruction of justice enhancement.).

United States v. Farmer, 312 F.3d 933 (8th Cir. 2002)(insufficient evidence to justify two-level enhancement for obstruction of justice where defendant testified that he did not possess gun that was seized from his vehicle).

Table of Contents

SENTENCING - PORNOGRAPHY

United States v. Amirault, 173 F.3d 28 (1st Cir. 1999)(photo of young naked female did not contain a "lascivious exhibition of the genitals" in prosecution for child pornography).

United States v. Crandon, 173 F.3d 122 (3rd Cir. 1999)(necessary to consider defendant's motivation or purpose in taking photos before determining applicability of cross-reference for receipt of child pornography).

United States v. Stevens, 197 F.3d 1263 (9th Cir. 1999)(district court relied on impermissible factors in determining that defendant did not fall within the heartland of offenders sentenced for possessing child pornography and in downwardly departing; district court erred as a matter of law in relying on absence of other crimes as a matter of mitigation; it was erroneous as a matter of law for court to downwardly depart based on factors inherent in use of a computer).

United States v. Fowler, 216 F.3d 459 (5th Cir. 2000)(electronic images of sadistic sexual conduct involving minors did not warrant increase under Sentencing Guidelines).

United States v. Boudreau, 250 F.3d 279 (5th Cir. 2001)(Defendant's use of computer in relation to interstate commerce counts, later dismissed, did not warrant enhancement for smuggling child pornography, since defendant was convicted of smuggling magazines in which no computer was used– government's relevant conduct theory as to computer images rejected ).

United States v. Dunlap, 279 F.3d 965 (11th Cir. 2002)(plain error to enhance sentence, without factual basis, for possessing sadistic child pornographic images).

United States v. Reedy, 304 F.3d 358 (5th Cir. 2002)(Prosecution erroneously permitted to group child pornography counts by each individual image instead of by website.).

United States v. Parish, 308 F.3d 1025 (9th Cir. 2002)(downward departure upheld in child pornography case where district court determined defendant's stature, demeanor and naivete rendered him susceptible to abuse while in prison).

United States v. Boyd, 312 F.3d 213 (6th Cir. 2002)(Government failed to prove that defendant distributed material involving sexual exploitation of minors, precluding 5 level enhancement.).

United States v. Angle, 234 F.3d 327 (7th Cir. 2000)(child pornography conviction and sentence remanded because defendant did not receive notice prior to sentencing of the intent to impose the sex offender registration requirement as a special condition of supervised release).

United States v. Galo, 239 F.3d 572 (3rd Cir. 2001)(District court improperly focused on defendant's conduct instead of statutory definitions of state court convictions relating to sexual exploitation of children in enhancing sentence for production of material depicting sexual exploitation of minor.).

Table of Contents

SENTENCING - RECKLESS ENDANGERMENT

United States v. Cook, 181 F.3d 1232 (11th Cir. 1999)(proof of aiding and abetting necessary for enhancement for reckless endangerment when someone other than defendant engaged in reckless conduct; proof here insufficient to warrant enhancement).

United States v. Smith, 210 F.3d 760 (7th Cir. 2000)(enhancement for reckless endangerment not supported by the evidence where defendants dumped anhydrous ammonia out of window during chase but there was no showing as to amount, concentration, and length of time officers were exposed).

Table of Contents

SENTENCING - RELEVANT CONDUCT

United States v. Anderson, 174 F.3d 515 (5th Cir. 1999) (relevant conduct implicating only property damage and no criminal misconduct wrongly included in determining base offense level).

United States v. Wall, 180 F.3d 641 (5th Cir. 1999)(1996 and 1997 incidents involving seizure of marijuana from defendant's former girlfriend not relevant conduct in connection with 1992 marijuana offense).

United States v. Torres, 182 F.3d 1156 (10th Cir. 1999)(to determine whether prior sentence constituted relevant conduct for purposes of assessing criminal history points, appeals court would combine approaches of asking whether district court took prior sentence into account in determining base offense level and of reviewing district court's underlying finding).

United States v. Garecht, 183 F.3d 671 (7th Cir. 1999)(defendant's prior conviction for cocaine possession could be counted as relevant conduct for conviction for conspiracy to possess marijuana with intent to distribute but could not be counted as prior felony conviction for career offender purposes).

United States v. Crawford, 185 F.3d 1024 (9th Cir. 1999)(using the "relevant conduct" of school proximity to pick offense guideline section applicable to controlled substance offense was error).

United States v. Ramirez, 196 F.3d 895 (8th Cir. 1999)(improper relevant conduct finding where fraud loss included claims filed in forfeiture proceedings; restitution order limited to loss involved in charged conduct).

United States v. Santos, 195 F.3d 549 (9th Cir. 1999)(drug quantities triggering mandatory minimum sentences under 21 U.S.C. § 841(b) are determined exclusively by reference to offense of conviction and not by relevant conduct, abrogating United States v. Keyes, 40 F.3d 1148 and following great weight of authority from other circuits).2 [Ed. note: The decision cites no authority on this issue from the Eleventh Circuit.]

United States v. Palafox-Mazon, 198 F.3d 1183 (9th Cir. 2000)(not clear error for district court to conclude that defendants did not engage in joint criminal activity and in sentencing defendants to amount of marijuana each personally carried).

United States v. Shafer, 199 F.3d 826 (6th Cir. 1999)(failure to pay overtime wages by defendant in violation of Fair Labor Standards Act should not have been included as relevant conduct in false statements prosecution).

United States v. Dove, 247 F.3d 152 (4th Cir. 2001)(error to include non-criminal conduct as relevant conduct in calculating sentence).

United States v. Sumner, 265 F.3d 532 (7th Cir. 2001)(Defendant was prejudiced by court's plain error in not explaining connection between uncharged conduct and offense of conviction.).

United States v. Taylor, 272 F.3d 980 (7th Cir. 2001)(Shooting in which defendant involved a week after escape was not relevant conduct for purpose of sentencing for the escape.).

United States v. Schaefer, 291 F.3d 932 (7th Cir. 2002)(failure to adequately articulate and justify relevant conduct relied on for loss calculation).

Table of Contents

SENTENCING - ROLE ADJUSTMENT

• AGGRAVATING ROLE

United States v. Glover, 179 F.3d 1300 (11th Cir. 1999)(2-level enhancement for aggravating role unwarranted where defendant managed only asset of conspiracy, not another participant).

United States v. Harness, 180 F.3d 1232 (11th Cir. 1999)(aggravating role enhancement improperly applied in illegal diversion of federal funds case).

United States v. Luca, 183 F.3d 1018 (9th Cir. 1999)(insufficient factual findings to support vulnerable victim enhancement; erroneous finding that defendant was organizer or leader without identifying any other participant in the scheme).

United States v. Anderson, 189 F.3d 1201 (10th Cir. 1999)(insufficient evidence of money laundering; insufficient evidence to support finding that defendant was manager, organizer, leader or supervisor).

United States v. Pagan, 196 F.3d 884 (7th Cir. 1999)(clear error in holding one defendant responsible for whole truckload of drugs and for determining that defendant was manager or supervisor).

United States v. Spears, 197 F.3d 465 (10th Cir. 1999)(insufficient evidence that defendant was organizer or leader).

United States v. Tank, 200 F.3d 627 (9th Cir. 2000)(insufficient evidence that defendant was organizer or leader).

United States v. Vandenberg, 201 F.3d 805 (6th Cir. 2000)(enhancement for managerial role not warranted).

United States v. Lanzotti, 205 F.3d 951 (7th Cir. 2000)(no factual predicate to support district court's conclusion that defendant acted as manager or supervisor).

United States v. Ross, 210 F.3d 916 (8th Cir. 2000)(additional findings necessary on issue of role in offense; downward departure not supported by finding that not all wire fraud proceeds were put to fraudulent use or by perceived sentencing guidelines disparity).

United States v. Wilson, 240 F.3d 39 (D.C. Cir. 2001) (evidence insufficient to establish that defendant's organizational activity was "otherwise extensive;" hence four level enhancement not just ified).

United States v. King, 246 F.3d 1166 (9th Cir. 2001)(remand required to determine applicability of organizer or leader enhancement).

United States v. Lalley, 257 F.3d 751 (8th Cir. 2001)(Necessary factual predicate for a three-level increase in offense level, on ground that defendant was a leader, organizer, manager or supervisor of conspiracy, was not established).

United States v. Barrie, 267 F.3d 220 (3rd Cir. 2001)(Whereas defendant was organizer or leader,

there were not five participants so that enhancement should have been 2 levels, not 4.).

United States v. Antico, 275 F.3d 245 (3rd Cir. 2001)(Extortion scheme did not involve five or more participants so as to justify increase in base offense level.).

United States v. Anthony, 280 F.3d 694 (6th Cir. 2002)(Number of participants did not warrant 4-point enhancement for being leader/organizer; person not a knowing and willing participant cannot be counted as participant; in order to apply "otherwise extensive" enhancement, there must be finding that there was the functional equivalent of a crime involving 5 or more participants; district court relied on impermissible factors to conclude cover-up scheme was "extensive.").

United States v. Fitch, 282 F.3d 364 (6th Cir. 2002)(Plea agreement precluded upward adjustment to base offense level for role as organizer or leader.).

United States v. Jordan, 291 F.3d 1091 (9th Cir. 2002)( four-level enhancement for leadership role not justified.).

United States v. Sayles, 296 F.3d 219 (4th Cir. 2002)(no evidence that defendant functioned as organizer, leader, manager or supervisor so as to justify 4-level enhancement).

United States v. Ho, 311 F.3d 589 (5th Cir. 2002)(clearly erroneous finding that defendant committed an "ongoing, continuous, or repetitive discharge" in Clean Air Act case; remand to determine extent of enhancement for organizer role.).

Table of Contents

•MITIGATING ROLE

United States v. Hunte, 196 F.3d 687 (7th Cir. 1999)(defendant qualified for minor or minimal participant adjustment).

United States v. Rojan-Millan, 234 F.3d 465 (9th Cir. 2000)(District court should have evaluated defendant's role relative to all participants in the alleged conspiracy and not relative only to his co-defendant's participation in determining whether two-point downward adjustment for minor participation was warranted.).

Table of Contents

SENTENCING - SAFETY VALVE

United States v. Hendricks, 171 F.3d 1184 (8th Cir. 1999)(defendant who qualified for safety valve could not be sentenced to term of supervised release in excess of 3-5 years).

United States v. Miller 179 F.3d 961 (5th Cir. 1999)(failure to award safety valve erroneous because defendant's prior drug activities did not qualify as part of the same course of conduct or common scheme or plan with offense of conviction, and defendant was not required to provide government with truthful information regarding those activities).

United States v. Schreiber, 191 F.3d 103 (2nd Cir. 1999)(defendant entitled to safety valve despite previous lies and obstruction as long as he truthfully provided information re: offenses at issue).

United States v. Jeter, 191 F.3d 637 (6th Cir. 1999)(fact that defendant engaged in additional criminal conduct after his arrest and indictment on state charges did not preclude finding of acceptance of responsibility on subsequent federal charges).

United States v. Powers, 194 F.3d 700 (6th Cir. 1999)(weight of LSD should not have been determined in accordance with statute setting forth mandatory minimum sentence when defendant sentenced under safety valve).

United States v. Figueroa, 199 F.3d 1281 (11th Cir. 2000)(defendant must make a complete and truthful disclosure of her knowledge of the crime in order to qualify for the safety valve).

United States v. Brownlee, 204 F.3d 1302 (11th Cir. 2000)(defendant entitled to safety valve even if he failed to truthfully disclose information related to his offenses ).

United States v. Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000)(Plea agreement did not block application of safety valve.).

United States v. Lopez, 264 F.3d 527 (5th Cir. 2001)(District court erred in determining that downward departure below statutory minimum sentence was not allowed once safety valve applied.).

United States v. Warnick, 287 F.3d 299 (4th Cir. 2002)(Safety valve applied to conviction for aiding and abetting distribution of cocaine within 1000 feet of school.).

United States v. Pena-Sarabia, 297 F.3d 983 (10th Cir. 2002)(Evidence of husband's possession of firearm in their home was insufficient to establish defendant's possession under safety valve provision.).

United States v. Franco-Lopez, 312 F.3d 984 (9th Cir. 2002)(Denial of safety valve could not be based on lack of truthful disclosure by defendant given lack of information in the record regarding substance of disclosures.).

Table of Contents

SENTENCING - VULNERABLE VICTIM

United States v. McCall, 174 F.3d 47 (2nd Cir. 1999)(error to apply relative standard of invulnerability and not absolute "particularly vulnerable" standard in applying U.S.S.G. § 3A1.1(b) and to fail to make particularized findings).

United States v. Luca, 183 F.3d 1018 (9th Cir. 1999)(insufficient factual findings to support vulnerable victim enhancement; erroneous finding that defendant was organizer or leader without identifying any other participant in the scheme).

United States v. Pospisil, 186 F.3d 1023 (8th Cir. 1999)(Remand due to lack of proof that defendant knew or should have known victims were vulnerable victims under U.S.S.G. § 3A1.1(b)(1)).

United States v. Geiger, 190 F.3d 661 (5th Cir. 1999)(Vulnerable victim does not apply when United States is victim.).

United States v. Seward, 272 F.3d 831 (7th Cir. 2001)(insufficient evidence that deceased's former boarder was vulnerable victim.).

United States v. Williams, 291 F.3d 1180 (9th Cir. 2002)( determination required of whether one of victims was uniquely vulnerable.).

United States v. Proffit, 304 F.3d 1001 (10th Cir. 2002)(insufficient evidence for application of vulnerable victim enhancement).

Table of Contents

SEVERANCE

United States v. Cobb, 185 F.3d 1193 (11th Cir. 1999)(District court should have granted defendant's motion to sever his trial from that of his brother, so that brother could provide exculpatory testimony in defendant's trial for receiving stolen funds.).

United States v. Mayfield, 189 F.3d 895 (9th Cir. 1999)(abuse of discretion for failure to sever trials–mutually exclusive defenses presented Confrontation Clause problem).

United States v. Tubol, 191 F.3d 89 (2nd Cir. 1999)(improper joinder of robbery counts and improper testimony about unrelated bombing).

United States v. Singh, 261 F.3d 530 (5th Cir. 2001)(Improper joinder was prejudicial).

Table of Contents

SPEECH/ASSEMBLY

Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002)(Child Pornography Prevention Act is unconstitutionally overbroad to the extent that it proscribes possession of material that "is, or appears to be, of a minor engaging in sexually explicit conduct.").

Table of Contents

SPEEDY TRIAL

United States v. Hall, 181 F.3d 1057 (9th Cir. 1999)(delay resulting from granting co-defendant's continuance motions not reasonable as to defendant).

United States v. Messer, 197 F.3d 330 (9th Cir. 1999)(delay unreasonable in violation of Speedy Trial Act; evidence insufficient as to one defendant in money laundering prosecution).

United States v. Williams, 197 F.3d 1091 (11th Cir. 1999)(20 day period for filing motions not to be excluded from Speedy Trial Act calculations; defendant entitled to jury charge instruction on lesser included offense of simple assault).

United States v. Hardeman, 206 F.3d 1320 (9th Cir. 2000)(Speedy Trial Act was violated where no identifiable pre-trial motion pending.).

United States v. Jiang, 214 F.3d 1099 (9th Cir. 2000)(indictments were properly dismissed but should have been dismissed without prejudice due to unnecessary delay in bringing defendants to trial).

United States v. Moss, 217 F.3d 426 (6th Cir. 2000)(Dismissal of original indictment without prejudice under the Speedy Trial Act was clearly erroneous because court's written factors did not address requisite statutory factors.).

United States v. Hardeman, 249 F.3d 826 (9th Cir. 2001)(indictment dismissed for violation of statutory speedy trial rights; court on remand must determine whether dismissal is with or without prejudice).

United States v. Scott, 270 F.3d 30 (1st Cir. 2001)(Trial court violated Speedy Trial Act by taking a motion to suppress evidence under submission for more than 120 days; appropriate remedy was dismissal without prejudice.).

United States v. Brown, 285 F.3d 959 (11th Cir. 2002)(Government's pre-trial motion that merely reported on Speedy Trial Act status was not motion resulting in exclusion of time under Speedy Trial Act.).

United States v.Martinez-Espinoza , 299 F. 3d 414 (5th Cir. 2002)(An indictment which was filed prior to the expiration of the speedy trial deadline, but did not charge the same offense as the subsequent indictment, did not toll speedy trial deadline. In accordance with its usual practice, the Court of Appeal would remand for a determination of whether the new indictment should be dismissed with or without prejudice).

United States v. Cordona, 302 F.3d 494 (5th Cir. 2002)(Prejudice was presumed, requiring no showing of actual prejudice, for establishment of Sixth Amendment speedy trial right violation.).

United States v. Williams, 309 F.3d 762 (11th Cir. 2002)(Period of continuance was not excludable under Speedy Trial Act because insufficient evidence in record that continuance served ends of justice; violation required dismissal without prejudice.).

United States v. Williams, 314 F.3d 552 (11th Cir. 2002)(period of continuance not excludable under Speedy Trial Act because insufficient evidence that continuance served ends of justice; dismissal without prejudice appropriate).

Table of Contents

SUPERVISED RELEASE/PROBATION/REVOCATION

United States v. Cooper, 171 F.3d 582 (8th Cir. 1999)(special condition prohibiting defendant from employment as truck driver if it required his absence from city for more than 24 hours was an abuse of discretion).

United States v. Forbes,172 F.3d 675 (9th Cir. 1999)(both probation and straight imprisonment cannot be imposed).

United States v. LeBlanc, 175 F.3d 511 (7th Cir. 1999)(no knowing and voluntary waiver of right to revocation hearing).

United States v. Rhodes, 177 F.3d 963 (11th Cir. 1999)(3 year term of supervised release for misdemeanor exceeded statutory maximum of one year).

United States v. Comito, 177 F.3d (9th Cir. 1999)(improper admission of hearsay evidence at revocation hearing).

United States v. Armstrong, 186 F.3d 1055 (8th Cir. 1999)(invalid probation condition prohibiting defendant from reentering park for non-business activities in prosecution for violation of National Park Service regulation).

United States v. Brings Plenty, 188 F.3d 1051 (8th Cir. 1999)(revocation sentence of 2 years supervised release exceeded maximum allowed where maximum SRT for original conviction was 3 years, 12-month prison term imposed for current revocation, and defendant had previously served 6-month revocation term).

United States v. Loy, 191 F.3d 360 (3rd Cir. 1999)(remand for district court to state reasons for imposing additional conditions of supervised release).

United States v. Morales-Alejo, 193 F.3d 1102 (9th Cir. 1999)(person in pretrial detention is not "imprisoned" in connection with a conviction as would toll term of supervised release).

United States v. Breedlove, 197 F.3d 524 (D.C. Cir. 1999)(improper supervised release term of 5 years for Class C felony).

United States v. Breedlove, 204 F.3d 267 (D.C. Cir. 2000)(term of supervised release exceeded statutory maximum).

Johnson v. United States, ___U.S. ___, 120 S. Ct. 1795 (2000)(18 U.S.C. § 3583(h) applies only to cases in which the initial offense occurred after September 13, 1994, the date of its enactment. At the time of defendant's conviction, 18 U.S.C. § 3583(e)(3) gave the district court the authority to reimpose supervised release upon recommitment after revocation. Therefore, the district court was authorized to impose another term of supervised release after recommitment.).

United States v. Zanghi, 209 F.3d 1201 (10th Cir. 2000)(remanded for district court to explain why

supervised release and home confinement imposed).

United States v. Carmichael, 216 F.3d 224 (2nd Cir. 2000)(two-level downward departure inappropriate; plain error to rely on erroneous assumption in increasing period of supervised release from four to five years at resentencing).

United States v. Keeling, 235 F.3d 533 (10th Cir. 2000)(remanded for resentencing on issue of supervised release).

Lopez v. Davis, 121 S. Ct. 714 (2001)(Bureau of Prisons has discretion, under governing statute, to promulgate regulation categorically denying early release to prisoners whose felonies involved use of firearm.).

United States v. Peterson, 248 F.3d 79 (2nd Cir. 2001)(impermissibly vague conditions imposed on sex offender regarding use of internet and enrollment in sex-offender program as directed by probation; condition that defendant must notify third parties of risks occasioned by his criminal record improper because it required notification of prior conviction).

United States v. Sesma-Hernandez, 253 F.3d 403 (9th Cir. 2001)(In deciding petition for revocation of supervised release, district court must articulate findings as to all disputed matters sufficient to permit appellate review).

United States v. Merced, 263 F.3d 34 (2nd Cir. 2001)(Defendant's sentence, when combined with prior term of imprisonment, violated two year maximum period of supervised release applicable to Class D felony.).

United States v. Monteiro, 270 F.3d 465 (7th Cir. 2001)(Seizure authority contained in special condition of supervised release must be reasonably related to ends of rehabilitation and protection of public.).

United States v. Scott, 270 F.3d 632 (8th Cir. 2001)(Where there was no evidence that defendant had propensity to commit future sex crimes, imposition of special conditions of release was abuse of discretion.).

United States v. Guagliardo, 278 F.3d 868 (9th Cir. 2002)(Conditions of defendant's probation prohibiting his possession of any kind of pornography and from residing in close proximity to places frequented by children were unconstitutionally vague.).

United States v. Moreci, 283 F.3d 293 (5th Cir. 2002)(Supervised release term for sentence imposed under 21 U.S.C. § 841(b)(1)(C) should have been three years, not five years, resulting in plain error.).

United States v. Maxwell, 285 F.3d 336 (4th Cir. 2002)(error in imposing supervised release term after second revocation because court did not deduct from the total amount of supervised release authorized by statute term of imprisonment imposed as part of first postrevocation sentence as well as imprisonment imposed as result of second postrevocation sentence).

United States v. Sofsky, 287 F.3d 122 (2nd Cir. 2002)(Condition of supervised release prohibiting child pornography convict from using computer or internet without probation officer's approval inflicted a greater deprivation on defendant's liberty than was reasonably necessary and exceeded the broad discretion of the sentencing judge.).

United States v. Thomas , 299 F. 3d 150 (2nd Cir. 2002)(The judgment was remanded to strike non-binding supervised release conditions that prohibited the defendant from possession of any ID in the name of another person).

United States v. Modena, 302 F.3d 626 (6th Cir. 2002)(abuse of discretion in requiring defendant to undergo testing and treatment for drug and alcohol abuse and to abstain from use of alcohol during term of supervised release).

United States v. Tschebaum, 306 F.3d 540 (8th Cir. 2002)(Sentence which did not consider all relevant statutory sentencing factors was plainly unreasonable in revoking probation.).

United States v. Gross, 307 F.3d 1043 (9th Cir. 2002)(remand for consideration of required statutory factors in modifying terms of supervised release).

Table of Contents

TRIAL PROCEDURE

United States v. Rosario-Peralta, 175 F.3d 48 (1st Cir. 1999)(abuse of discretion to rule records not relevant without first reviewing them).

Jones v. United States, 119 S. Ct. 1215 (1999)(provisions of carjacking statute establishing higher penalties for serious bodily injury or death set forth additional elements of the offense requiring proof beyond a reasonable doubt).

United States v. Manske, 186 F.3d 770 (7th Cir. 1999)(defendant entitled to cross-examine witness about alleged threats of violence and intimidation of persons who might incriminate witness in criminal proceedings since such evidence implicated witness's truthfulness).

United States v. Villiard, 186 F.3d 893 (8th Cir. 1999)(appellate court hesitant to find abuse of discretion in denying expert eyewitness identification testimony unless government's case rested exclusively on uncorroborated eyewitness testimony).

United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999)(47 U.S.C. §223(a)(1)(C) unconstitutional as applied to defendant who made phone calls to U.S. Attorney containing racial epithets).

United States v. Samaniego, 187 F.3d 1222 (10th Cir. 1999)(government failed to lay proper basis for admissibility of summaries of phone records at trial; Court of Appeals declined to apply harmless error rule because government failed to raise it in briefs).

Johnson v. Karnes, 198 F.3d 589 (6th Cir. 1999)(declaration of manifest necessity in declaring mistrial an abuse of discretion after defense counsel introduced evidence of prior acquittal of defendant on related charge).

United States v. Byrd, 208 F.3d 592 (7th Cir. 2000)(Refusing to allow defendant to show jury shackles and restraints in which he was held at time of alleged assault was abuse of discretion and not harmless.).

United States v. Gomez-Lepe, 207 F.3d 623 (9th Cir. 2000)(Polling of jurors is critical stage of trial which requires consent by defendant before Magistrate Judge can preside–first impression.).

United States v. Taylor, 210 F.3d 311 (5th Cir. 2000)(error to admit chart showing organization of alleged conspiracy where chart was misleading as to state of evidence; prior drug convictions of co-conspirators inadmissible).

United States v. Barnette, 211 F.3d 803 (4th Cir. 2000)(Reversible error committed in death penalty case when district court refused to allow defense expert to testify in surrebuttal to contest prosecution expert's rebuttal testimony diagnosing defendant as a psychopath.).

United States v. Sauza-Martinez, 217 F.3d 754 (9th Cir. 2000)(failure of court to give limiting instruction when it admitted post-arrest incriminating statement by co-defendant directly implicating defendant was plain error).

United States v. Edwards, 235 F.3d 1173 (9th Cir. 2000)(Violation of local rule during pendency of trial in discovering receipt in bag held by court clerk containing receipt with defendant's name on it was not harmless.).

United States v. Willis, 257 F.3d 636 (6th Cir. 2001)(Decision to grant a new trial was not an abuse of discretion).

United States v. Desir, 257 F.3d 1233 (11th Cir. 2001)(Magistrate inappropriately exercised authority of an Article III judge without defendant's consent, thus requiring reversal, by making final decision regarding deliberating jury's request for read-back of trial testimony).

United States v. Scarfo, 263 F.3d 80 (3rd Cir. 2001)(Gag order was appealable, involved issue capable of repetition, yet evading review, and was erroneous.).

United States v. Durham, 287 F.3d 1297 (11th Cir. 2002)(District court abused its discretion in failing to make sufficient findings to justify use of stun gun to restrain defendant at trial.).

United States v. Torres-Palma, 290 F.3d 1244 (10th Cir. 2002)(Use of video teleconferencing for sentencing violated rule that defendant be present for sentencing.).

United States v. Rivera-Rosario, 300 F.3d 1 (1st Cir. 2002)(Violations of Jones Act requiring that all proceedings be conducted in the English language were plain error as to two defendants.).

Table of Contents

VENUE

United States v. Brennan, 183 F.3d 139 (2nd Cir. 1999)(venue improper in mail fraud prosecution when case brought in a district in which the mail merely moved).

United States v. Tingle, 183 F.3d 719 (7th Cir. 1999)(venue for distribution of drugs improper when all acts necessary for offense and any aiding or abetting by defendant occurred in another state).

Hernandez v. Campbell, 204 F.3d 861 (9th Cir. 2000)(error in transferring venue of habeas claim).

United States v. Bownes, 224 F.3d 302 (4th Cir. 2000)(improper venue because essential conduct element of harboring a fugitive occurred outside district).

United States v. Liang, 224 F.3d 1057 (9th Cir. 2000)(reversed and dismissed for improper venue).

United States v. Stewart, 256 F.3d 231 (4th Cir. 2001)(improper venue for money laundering charges since defendant's role was limited to that of a courier, who was responsible for receiving money transfers and packages in California).

United States v. Williams, 274 F.3d 1079 (6th Cir. 2001)(improper venue resulting in reversible error for failure to change venue in drug conspiracy prosecution).

United States v. Lipscomb, 299 F. 3d 303 (5th Cir. 2002)(Conviction was reversed, sentence vacated and remanded where the court abused its discretion by sua sponte ordering an intra-district transfer over the defendant's objections and where the federal bribery statute was applicable to the defendant, but the defendant had preserved as-applied constitutional challenges to the statute.).

United States v. Prevatte, 300 F.3d 792 (7th Cir. 2002)(transfer of petition brought under general habeas corpus statute in jurisdiction where petitioner incarcerated to district where he was convicted where there was intervening Supreme Court decision giving rise to colorable claim).

United States v. Pace, 301 F.3d 1034 (9th Cir. 2002)(improper venue in Arizona because no direct or causal connection in Arizona to misuse of the wires).

United States v. Pace, 314 F.3d 344 (9th Cir. 2002)(Government failed to establish that defendant began, continued or completed wire fraud in Arizona so as to justify venue there.).

Table of Contents