Reversible Errors

The Defender
Reversible Errors – 2000 Edition

****************************************Release *United States v. Goosens, 84 F.3d 697 (4th Cir. 1996) (Prohibiting a defendant from active cooperation with the police was an abuse of discretion). United States v. Porotsky, 105 F.3d 69 (2nd Cir. 1997) (The court did not make findings sufficient to deny travel request). United States v. Swanquist, 125 F.3d 573 (7th Cir. 1997) (A court failed to give reasons for denying release on appeal). United States v. Fisher, 137 F.3d 1158 (9th Cir. 1998) (Defendant did not fail to appear for trial that had been continued). United States v. Baker, 155 F.3d 392 (4th Cir. 1998) (Cannot put conditions of release on person acquitted by reason of insanity who is not a danger).

Counsel

United States v. Cash, 47 F.3d 1083 (11th Cir. 1995) (Defendant could not waive counsel without proper findings by court). United States v. McKinley, 58 F.3d 1475 (10th Cir. 1995) (The court improperly denied self-representation). United States v. McDermott, 64 F.3d 1448 (10th Cir.), cert. denied, 516 U.S. 1121 (1996) (Barring the defendant from sidebars with stand-by counsel denied self-representation). *United States v. Goldberg, 67 F.3d 1092 (3rd Cir. 1995) (The defendant did not forfeit counsel by threatening his appointed attorney). United States v. Duarte-Higareda, 68 F.3d 369 (9th Cir. 1995) (Failure to appoint counsel for evidentiary hearing on §2255 petition). Delguidice v. Singletary, 84 F.3d 1359 (11th Cir. 1996) (The psychological testing of a defendant without notice to counsel violated the sixth amendment). Williams v. Turpin, 87 F.3d 1204 (11th Cir. 1996) (A state that created a statutory right to a motion for new trial must afford counsel and an evidentiary hearing). United States v. Ming He, 94 F.3d 782 (2nd Cir. 1996) (A cooperating defendant had the right to have counsel present when attending a presentence debriefing). Weeks v. Jones, 100 F.3d 124 (11th Cir. 1996) (The right to counsel in a habeas claim did not turn on the merits of the petition). United States v. Keen, 104 F.3d 1111 (9th Cir. 1996) (A court did not sufficiently explain to a defendant the dangers of pro se representation). *Carlo v. Chino, 105 F.3d 493 (9th Cir. 1997) (A state statutory right to post-booking phone calls was protected by federal due process). United States v. Amlani, 111 F.3d 705 (9th Cir. 1997) (A prosecutor’s repeated disparagement of an attorney in front of his client, denied the defendant his right to chosen counsel). United States v. Taylor, 113 F.3d 1136 (10th Cir. 1997) (The court did not assure a proper waiver of counsel). Blankenship v. Johnson, 118 F.3d 312 (5th Cir. 1997) (When the prosecution seeks discretionary review, the defendant has a right to counsel). United States v. Pollani, 146 F.3d 269 (5th Cir. 1998) (Pro se defendant’s late request for counsel should have been honored). Henderson v. Frank, 155 F.3d 159 (3rd Cir. 1998) (Defendant denied counsel at suppression hearing). United States v. Klat, 156 F.3d 1258 (D.C. Cir. 1999) (Counsel required at competency hearing). United States v. Iasiello, 166 F.3d 212 (3rd Cir. 1999) (Indigent defendant has right to appointed counsel at hearing of §2255 motion). United States v. Proctor, 166 F.3d 396 (1st Cir. 1999) (Ambiguous request for counsel tainted previous waiver). United States v. Leon-Delfis, 203 F.3d 103 (1st Cir. 2000) (Questioning after polygraph violated right to counsel). United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000) (Denial of self-representation at plea). Roney v. United States, 205 F.3d 1061 (8th Cir. 2000) (Petitioner was entitled to counsel on motion to vacate sentence). United States v. Russell, 205 F.3d 768 (5thCir. 2000) (Absence of lawyer due to illness did not waive right to counsel).

Discovery

United States v. Alzate, 47 F.3d 1103 (11th Cir. 1995) (A prosecutor withheld exculpatory evidence). United States v. Barnes, 49 F.3d 1144 (6th Cir. 1995) (Request for discovery of extraneous evidence created a continuing duty to disclose). *United States v. Boyd, 55 F.3d 239 (7th Cir. 1995) (The government failed to disclose drug use and drug dealing by prisoner-witnesses). *United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995) (The prosecutor must learn of Brady material even if it was not in her possession). Kyles v. Whitley, 514 U.S. 419 (1995) (Prosecution failed to turn over material and favorable evidence). United States v. Wood, 57 F.3d 733 (9th Cir. 1995) (Government’s failure to disclose favorable FDA materials). United States v. Camargo-Vergara, 57 F.3d 993 (11th Cir. 1995) (Government failed to disclose defendant’s post-arrest statement). In Re Grand Jury Investigation, 59 F.3d 17 (2nd Cir. 1995) (A court properly required disclosure of documents subpoenaed by the grand jury). United States v. O’Conner, 64 F.3d 355 (8th Cir.), cert. denied, 517 U.S. 1174 (1996) (Evidence of government witness threats and collaboration were not disclosed). In Re Grand Jury, 111 F.3d 1083 (3rd Cir. 1997) (The government could not seek disclosure of phone conversations that were illegally recorded by a third party). United States v. Arnold, 117 F.3d 1308 (11th Cir. 1997) (A prosecutor withheld exculpatory tapes of government witnesses). *United States v. Vozzella, 124 F.3d 389 (2nd Cir. 1997) (Evidence of perjured testimony should have been disclosed). United States v. Fernandez, 136 F.3d 1434 (11th Cir. 1998) (Court must hold hearing when defendant makes showing of a Brady violation). United States v. Mejia-Mesa, 153 F.3d 925 (9th Cir. 1998) (Brady claim required hearing). United States v. Scheer, 168 F.3d 445 (11th Cir. 1999) (Government failed to disclose it had intimidated key prosecution witness). United States v. Ramos, 179 F.3d 1333 (11th Cir. 1999) (Defendant denied opportunity to depose witness who was outside country). United States v. Riley, 189 F.3d 802 (9thCir. 1999) (Intentional destruction of notes of interview with informant violated Jencks Act).

Arrests

*United States v. Lambert, 46 F.3d 1064 (10th Cir. 1995) (A defendant was seized while agents held his driver’s license for over 20 minutes). United States v. Little, 60 F.3d 708 (10th Cir. 1995) (Requiring a passenger to go to the baggage area restrained her liberty). *United States v. Mesa, 62 F.3d 159 (6th Cir. 1995) (Nervousness and inconsistencies did not validate continued traffic stop) *United States v. Buchanon, 72 F.3d 1217 (6th Cir. 1995) (The defendants were seized when the troopers separated them from their vehicle). United States v. Roberson, 90 F.3d 75 (3rd Cir. 1996) (An anonymous call did not give officers reasonable suspicion to stop a defendant on the street merely because his clothes matched the caller’s description). *United States v. Davis, 94 F.3d 1465 (10th Cir. 1996) (There was no reasonable suspicion for stop of a defendant known generally as a gang member and drug dealer). Washington v. Lambert, 98 F.3d 1181 (9th Cir. 1996) (A general description of two African-American males did not justify stop). *United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) (Nighttime confrontation by police at the defendant’s door was a seizure). United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997) (A defendant was seized without reasonable suspicion). United States v. Miller, 146 F.3d 274 (5th Cir. 1998) (Leaving turn signal on violated no law and did not justify stop). *United States v. Jones, 149 F.3d 364 (5th Cir. 1998) (Agent lacked reasonable suspicion for investigatory immigration stop). *United States v. Acosta-Colon, 157 F.3d 9 (1st Cir. 1999) (Defendant’s 30 minute handcuffed detention, preventing him from boarding flight, was not lawful stop). United States v. Salvano, 158 F.3d 1107 (10th Cir. 1999) (Neither, cross country trip, nervousness, nor scent of evergreen, justified warrantless detention). United States v. Dortch, 199 F.3d 193 (5th Cir.), amended, 203 F.3d 883 (2000) (Continued detention after traffic stop was unreasonable). United States v. Freeman, 209 F.3d 464 (6th Cir. 2000) (Crossing lane-divider did not create probable cause for traffic stop). Ma v. Reno, 208 F.3d 815 (9th Cir. 2000) (INS lacks authority to indefinitely detain aliens who cannot be removed to their native land); see also Yong v. I.N.S., 208 F.3d 1116 (9th Cir. 2000). United States v. Thomas, 211 F.3d 1186 (9th Cir. 2000) (Tip did not provide reasonable suspicion for stop). United States v. Arvizu, 217 F.3d 1224 (9thCir. 2000) (No reasonable suspicion to support stop).

Warrantless Searches

United States v. Adams, 46 F.3d 1080 (11th Cir. 1995) (Suppression of evidence seized from motor home was upheld). United States v. Chavis, 48 F.3d 871 (5th Cir. 1995) (The court improperly placed the burden on the defendant to show a warrantless search). United States v. Angulo-Fernandez, 53 F.3d 1177 (10th Cir. 1995) (Confusion about who owned a stalled vehicle did not create probable cause for its search). United States v. Hill, 55 F.3d 479 (9th Cir. 1995) (Remand was required to see if there was a truly viable independent source for the search). *United States v. Ford, 56 F.3d 265 (D.C. Cir. 1995) (A search under a mattress and behind a window shade exceeded a protective sweep). United States v. Doe, 61 F.3d 107 (1st Cir. 1995) (Warrantless testing of packages at an airport checkpoint lacked justification). United States v. Tovar-Rico, 61 F.3d 1529 (11th Cir. 1995) (Possibility that surveillance officer was observed, did not create exigency for warrantless search of apartment). *United States v. Cabassa, 62 F.3d 470 (2nd Cir. 1995) (Exigent circumstances were not relevant to the inevitable discovery doctrine). *United States v. Ali, 68 F.3d 1468 (2nd Cir. 1995) (Checking whether the defendant had a valid export license was not a proper ground for seizure). *United States v. Mejia, 69 F.3d 309 (9th Cir. 1995) (The inevitable discovery doctrine does not apply where the police simply failed to get a warrant). United States v. Odum, 72 F.3d 1279 (7th Cir. 1995) (The court is limited to facts at the time the stop occurred to evaluate reasonableness of the seizure). Ornelas v. United States, 517 U.S. 690 (1996) (A defendant’s motion to suppress should be given de novo review by the court of appeals). *United States v. Caicedo, 85 F.3d 1184 (6th Cir. 1996) (The record lacked evidence to support a finding of the defendant’s consent to search). J.B. Manning Corp. v. United States, 86 F. 3d 926 (9th Cir. 1996) (The good faith exception to the warrant requirement does not affect motions to return property under F.R.Cr.P. 41 (e)). United States v. Duguay, 93 F.3d 346 (7th Cir. 1996) (A car could not be impounded for a later search unless the arrestee could not provide for its removal). United States v. Leake, 95 F.3d 409 (6th Cir. 1996) (Neither the independent source rule, nor the inevitable discovery rule, saved otherwise inadmissible evidence). *United States v. Elliott, 107 F.3d 810 (10th Cir. 1997) (Consent to look in trunk was not consent to open containers within). *United States v. Garzon, 119 F.3d 1446 (10th Cir. 1997) (1. Passenger did not abandon bag by leaving it on bus; 2. General warrantless search of all bus passengers by dog was illegal). United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997) (The defendant did not consent to search of truck). United States v. Cooper, 133 F.3d 1394 (11th Cir. 1998) (Defendant had reasonable expectation of privacy in rental car four days after contract expired). United States v. Beck, 140 F.3d 1129 (8th Cir. 1998) (Continued detention of vehicle was not justified by articuable facts). United States v. Nicholson, 144 F.3d 632 (10th Cir. 1998) (1. Feeling through sides of bag was a search; 2. Abandonment of bag was involuntary). *United States v. Guapi, 144 F.3d 1393 (11th Cir. 1998) (Bus passenger did not voluntarily consent to search). United States v. Fultz, 146 F.3d 1102 (9th Cir. 1998) (Guest had expectation of privacy in boxes he stored at another’s home). United States v. Rouse, 148 F.3d 1040 (8th Cir. 1998) (Search of bags lacked probable cause). *United States v. Rodriguez-Rivas, 151 F.3d 377 (5th Cir. 1998) (Vehicle stop lacked reasonable suspicion). *United States v. Washington, 151 F.3d 1354 (11th Cir. 1998) (Bus passenger was searched without voluntary consent). United States v. Madrid, 152 F.3d 1034 (8th Cir. 1998) (Inevitable discovery doctrine did not save illegal search of house). United States v. Huguenin, 154 F.3d 547 (6th Cir. 1998) (Checkpoint stop to merely look for drugs was unreasonable). *United States v. Allen, 159 F.3d 832 (4th Cir. 1999) (Inevitable discovery doctrine did not apply to cocaine found in duffle bag later detected by dog and warrant). United States v. Rivas, 157 F.3d 364 (5th Cir. 1999) (1. Drilling into trailer was not routine border search; 2. No evidence that drug dog’s reaction was an alert). United States v. Ivy, 165 F.3d 397 (6th Cir. 1999) (Consent to enter home was not shown to be voluntary). *United States v. Johnson, 170 F.3d 708 (7th Cir. 1999) (Officers lacked reasonable suspicion to prevent occupant from leaving home). United States v. Kiyuyung, 171 F.3d 78 (2nd Cir. 1999) (Firearms found during warrantless search were not in plain view). United States v. Johnson, 171 F.3d 601 (8th Cir. 1999) (No reasonable suspicion to intercept delivery of package). United States v. Iron Cloud, 171 F.3d 587 (8th Cir. 1999) (Portable breath test results were inadmissible as evidence of intoxication). Knowles v. Iowa, 525 U.S. 113 (1999) (Speeding ticket does not justify full search of vehicle). Flippo v. West Virginia, 528 U.S. 11 (1999) (No crime scene exception to warrant requirement). United States v. Payne, 181 F.3d 781 (6th Cir. 1999) (Parole officer did not have reasonable suspicion to search defendant’s trailer and truck). United States v. Eustaquio, 198 F.3d 1068 (8th Cir. 1999) (No reasonable suspicion to search bulge on defendant’s midriff). United States v. Sandoval, 200 F.3d 659 (9th Cir. 2000) (Defendant had reasonable expectation of privacy in tent on public land). Bond v. United States, 120 S.Ct. 1462 (2000) (Manipulation of bag found on bus was illegal search). United States v. Stephens, 206 F.3d 914 (9th Cir. 2000) (Defendant was illegally seized and searched on bus). United States v. Gray, 213 F.3d 998 (8th Cir. 2000) (No reasonable suspicion to stop defendant for protective frisk). United States v. Wald, 216 F.3d 1222 (10th Cir. 2000) (Odor of burnt methamphetamine in passenger compartment did not provide probable cause to search trunk). United States v. Vega, 221 F.3d 789 (5th Cir. 2000) (The police cannot create exigency for search of leased home). United States v. Baker, 221 F.3d 438 (3rd Cir. 2000) (No reasonable suspicion to justify search of trunk). United States v. Reid, 226 F.3d 1020 (9thCir. 2000) (Non-resident did not have apparent authority to allow search of apartment).

Warrants

*United States v. Van Damme, 48 F.3d 461 (9th Cir. 1995) (There was no list of items to be seized under the warrant). United States v. Mondragon, 52 F.3d 291 (10th Cir. 1995) (A supplemental wiretap application failed to show necessity). *United States v. Kow, 58 F.3d 423 (9th Cir. 1995) (The warrant failed to identify business records with particularity, and good faith did not apply). *United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996) (Bare bones, boilerplate affidavit was insufficient to justify warrant). Marks v. Clarke, 102 F.3d 1012 (9th Cir.), cert. denied, 522 U.S. 907 (1997) (A warrant to search two residences did not authorize the officers to search all persons present). United States v. Foster, 104 F.3d 1228 (10th Cir. 1996) (A flagrant disregard for the specificity of a warrant required suppression of all found). United States v. Castillo-Garcia, 117 F.3d 1179 (10th Cir.), cert. denied, 522 U.S. 962 (1997) (The government failed to show the necessity for wiretaps). United States v. McGrew, 122 F.3d 847 (9th Cir. 1997) (A search warrant affidavit lacked particularity). United States v. Alvarez, 127 F.3d 372 (5th Cir. 1997) (A warrant affidavit contained a false statement made in reckless disregard for the truth). United States v. Schroeder, 129 F.3d 439 (8th Cir. 1997) (A warrant did not authorize a search of adjoining property). In Re Grand Jury Investigation, 130 F.3d 853 (9th Cir. 1997) ( Search warrant was overbroad). *United States v. Hotal, 143 F.3d 1223 (9th Cir. 1998) (Anticipatory search warrant failed to identify triggering event for execution). United States v. Albrektsten, 151 F.3d 951 (9th Cir. 1998) (Arrest warrant did not permit search of defendant’s motel room). United States v. Ford, 184 F.3d 566 (6th Cir. 1999) (Search warrant authorized broader search than reasonable). United States v. Lopez-Soto, 205 F.3d 1101 (9th Cir. 2000) (No good faith mistake to warrantless car search). United States v. Herron, 215 F.3d 812 (8thCir. 2000) (No reasonable officer would have relied on such a deficient warrant). Knock and Announce Wilson v. Arkansas, 514 U.S. 927 (1995) (“Knock and announce” rule implicated the fourth amendment). United States v. Zermeno, 66 F.3d 1058 (9th Cir. 1995) (The officers failed to knock and announce during a drug search). *United States v. Bates, 84 F.3d 790 (6th Cir. 1996) (Officers did not have the right to break down an apartment door without first knocking and announcing their presence). Richards v. Wisconsin, 520 U.S. 385 (1997) (There was no blanket drug exception to the knock and announce requirement).

Statements

*United States v. Dudden, 65 F.3d 1461 (9th Cir. 1995) (An immunity agreement required a hearing on whether the defendant’s statements were used to aid the government’s case). United States v. Tenorio, 69 F. 3d 1103 (11th Cir. 1995) (Improper admission of post-Miranda statements). United States v. Ali, 86 F.3d 275 (2nd Cir. 1996) (Custodial interrogation required Miranda warnings). *In Re Grand Jury Subpoena Dated April 9, 1996, 87 F.3d 1198 (11th Cir. 1996) (A custodian of records could not be compelled to testify as to the location of documents not in her possession when those documents were incriminating). United States v. Trzaska, 111 F.3d 1019 (2nd Cir. 1997) (Defendant’s statement to probation officer was inadmissible). *United States v. D.F., 115 F.3d 413 (7th Cir. 1997) (Statements taken from a juvenile in a mental health facility were involuntary). United States v. Soliz, 129 F.3d 499 (9th Cir. 1997) (Questioning should have stopped when defendant invoked right to silence). United States v. Abdi, 142 F.3d 566 (2nd Cir. 1998) (Defendant’s uncounseled statement was erroneously admitted). United States v. Garibay, 143 F.3d 534 (9th Cir. 1998) (Defendant with limited English and low mental capacity did not voluntarily waive Miranda). United States v. Chamberlain, 163 F.3d 499 (8th Cir. 1999) (Inmate under investigation was entitled to Miranda warnings). United States v. Tyler, 164 F.3d 150 (3rd Cir. 1999) (Police did not honor defendant’s invocation of silence). Pickens v. Gibson, 206 F.3d 988 (10th Cir. 2000) (Admission of confession was not harmless). Dickerson v. United States, 120 S.Ct. 2326 (2000) (Miranda warnings are constitutionally based). Recusal *Bracy v. Gramley, 520 U.S. 899 (1997) (Petitioner could get discovery of trial judge’s bias against him). *United States v. Jordan, 49 F.3d 152 (5th Cir. 1995) (A judge should have been recused because the defendant made claims against family friend of the judge). *United States v. Antar, 53 F.3d 568 (3rd Cir. 1995) (A judge who stated he wanted to get money back for the victims, should have been recused). *United States v. Avilez-Reyes, 160 F.3d 258 (5th Cir. 1999) (Judge should have recused himself in case where attorney testified against judge in disciplinary hearing). Indictments United States v. Holmes, 44 F.3d 1150 (2nd Cir. 1995) (Money laundering and structuring counts based on the same transaction were multiplicious). United States v. Hairston, 46 F.3d 361 (4th Cir. 1995) (Multiple payments were part of the same offense). United States v. Graham, 60 F.3d 463 (8th Cir. 1995) (It was multiplicious to charge the same false statement made on different occasions). *United States v. Kimbrough, 69 F.3d 723 (5th Cir.), cert. denied, 517 U.S. 1157 (1996) (Multiple possessions of child pornography should be charged in a single count). *United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995) (Court amended charging language of indictment during trial). *United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997) (Gun possession convictions for the same firearm were multiplicious). United States v. Morales, 185 F.3d 74 (2nd Cir. 1999) (Racketeering enterprise did not last for duration alleged in indictment). United States v. Dubo, 186 F.3d 1177 (9th Cir. 1999) (Indictment did not allege mens rea). United States v. Nunez, 180 F.3d 227 (5th Cir. 1999) (Indictment failed to charge an offense). Limitation of Actions United States v. Li, 55 F.3d 325 (7th Cir. 1995) (The statute of limitations ran from the day of deposit, not the day the deposit was processed). United States v. Spector, 55 F.3d 22 (1st Cir. 1995) (Agreement to waive the statute of limitations was invalid because it was not signed by the government). United States v. Podde, 105 F.3d 813 (2nd Cir. 1997) (The statute of limitations barred the reinstatement of charges that were dismissed in a plea agreement). United States v. Manges, 110 F.3d 1162 (5th Cir.), cert.denied, 523 U.S. 1106 (1998) (Conspiracy charge was barred by statute of limitations). United States v. Grimmett, 150 F.3d 958 (8th Cir. 1998) (Withdrawal from conspiracy, outside statute of limitations, bars prosecution). Venue *United States v. Miller, 111 F.3d 747 (10th Cir. 1997) (The court refused a jury instruction on venue in a multi district conspiracy case). United States v. Carter, 130 F.3d 1432, cert. denied, 523 U.S. 1041 (10th Cir. 1997) (A requested instruction on venue should have been given). United States v. Cabrales, 524 U.S. 1 (1998) (Venue for money laundering was proper only where offenses were begun, conducted and completed). United States v. Brennan, 183 F.3d 139 (2nd Cir. 1999) (Venue for mail fraud permissible only in districts where proscribed acts occurred). *United States v. Hernandez, 189 F.3d 785 (9th Cir.), cert. denied, 120 S.Ct. 1441 (1999) (Venue was improper for undocumented alien discovered in one district and tried in another).

Pretrial Procedure

United States v. Ramos, 45 F.3d 1519 (11th Cir. 1995) (Trial judge wrongly refused deposition without inquiring about testimony or its relevance). United States v. Smith, 55 F.3d 157 (4th Cir. 1995) (The government’s motion for dismissal should have been granted). United States v. Gonzalez, 58 F.3d 459 (9th Cir. 1995) (The government’s motion for dismissal should have been granted). *United States v. Young, 86 F.3d 944 (9th Cir. 1996) (A court could not deny a hearing on a motion to compel the government to immunize a witness). United States v. Mathurin, 148 F.3d 68 (2nd Cir. 1998) (Court denied hearing on motion to suppress).

Severance

*United States v. Breinig, 70 F.3d 850 (6th Cir. 1995) (A severance should have been granted where the codefendant’s defense included prejudicial character evidence regarding the defendant). *United States v. Baker, 98 F.3d 330 (8th Cir.), cert. denied, 520 U.S. 1179 (1997) (Evidence admissible against only one codefendant required severance). United States v. Jordan, 112 F.3d 14 (1st Cir.), cert. denied, 523 U.S. 1041 (1998) (Charges should have been severed when a defendant wanted to testify regarding one count, but not others). United States v. Cobb, 185 F.3d 1193 (11th Cir. 1999) (Court erroneously denied severance under Bruton).

Conflicts

United States v. Shorter, 54 F.3d 1248 (7th Cir.), cert. denied. 516 U.S. 896 (1995) (There was an actual conflict when the defendant accused counsel of improper behavior). Ciak v. United States, 59 F.3d 296 (2nd Cir. 1995) (There was an actual conflict for attorney who had previously represented a witness against the defendant). United States v. Malpiedi, 62 F.3d 465 (2nd Cir. 1995) (Counsel represented witness who gave damaging evidence against his defendant). *United States v. Jiang, 140 F.3d 124 (2nd Cir. 1998) (Attorney’s potential conflict required remand for hearing). United States v. Kliti, 156 F.3d 150 (2nd Cir. 1998) (Court should have held hearing on defense counsel’s potential conflict). Perrillo v. Johnson, 205 F.3d 775 (5thCir. 2000) (An actual conflict in successive prosecutions of co-defendants).

Competency / Sanity

*United States v. Mason, 52 F.3d 1286 (4th Cir. 1995) (The court failed to apply a reasonable cause standard to competency hearing). Cooper v. Oklahoma, 517 U.S. 348 (1996) (A state could not require a defendant to prove his incompetence by a higher standard than preponderance of evidence). United States v. Davis, 93 F.3d 1286 (6th Cir. 1996) (A court did not have the statutory authority to order a mental examination of a defendant who wished to raise the defense of diminished capacity). United States v. Williams, 113 F.3d 1155 (10th Cir. 1997) (The defendant’s actions during trial warranted a competency hearing). *Martinez-Villareal v. Stewart, 118 F.3d 628 (9th Cir. 1997) (Successive writ regarding incompetency to be executed was not barred by statute). United States v. Nevarez-Castro, 120 F.3d 190 (9th Cir. 1997) (The court refused a competency hearing). United States v. Haywood, 155 F.3d 674 (3rd Cir. 1999) (Defendant allegedly restored to competency required second hearing).

Privilege

Ralls v. United States, 52 F.3d 223 (9th Cir. 1995) (Fee information was inextricably intertwined with privileged communications). *United States v. Sindel, 53 F.3d 874 (8th Cir. 1995) (Fee information could not be released without disclosing other privileged information). *United States v. Gertner, 65 F.3d 963 (1st Cir. 1995) (IRS summons of attorney was just a pretext to investigate her client). In Re Richard Roe Inc., 68 F.3d 38 (2nd Cir. 1995) (The court misapplied the crime-fraud exception). United States v. Rowe, 96 F.3d 1294 (9th Cir. 1996) (An in-house investigation by attorneys associated with the defendant/lawyer was covered by the attorney-client privilege). Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997) (Clergy-communicant privilege was upheld). *United States v. Kuku, 129 F.3d 1435 (11th Cir. 1997) (A defendant retains his privilege against self-incrimination, through sentencing). United States v. Bauer, 132 F.3d 504 (9th Cir. 1997) (Questioning of defendant’s bankruptcy attorney violated attorney-client privilege). *United States v. Glass, 133 F.3d 1356 (10th Cir. 1998) (Defendant’s psychotherapist-patient privilege was violated). Swinder & Berlin v. United States, 524 U.S. 399 (1998) (Attorney-client privilege survives client’s death). United States v. Millard, 139 F.3d 1200 (8th Cir. 1998) (Statements during plea discussions erroneously admitted). In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (Any documents prepared in anticipation of litigation are work product). Mitchell v. United States, 526 U.S. 314 (1999) (Guilty plea does not waive privilege against self incrimination at sentencing).

Jeopardy / Estoppel

United States v. Abcasis, 45 F.3d 39 (2nd Cir. 1995) The government is estopped from convicting a person when its agents have caused that person in good faith to believe they are acting under government authority). United States v. Weems, 49 F.3d 528 (9th Cir. 1995) (The government was estopped from proving element previously decided in forfeiture case). United States v. Sammaripa, 55 F.3d 433 (9th Cir. 1995) (A mistrial was not justified by manifest necessity). United States v. McLaurin, 57 F.3d 823 (9th Cir. 1995) (A defendant could not be retried for bank robbery after conviction on the lesser included offense of larceny). Rutledge v. United States , 517 U.S. 292 (1996) (A defendant could not be punished for both a conspiracy and a continuing criminal enterprise based upon a single course of conduct). Venson v. State of Georgia, 74 F.3d 1140 (11th Cir. 1996) (A prosecutor’s motion for mistrial was not supported by manifest necessity). United States v. Holloway, 74 F.3d 249 (11th Cir. 1996) (A prosecutor’s promise not to prosecute, made at a civil deposition, was the equivalent of use immunity for any related criminal proceeding). United States v. Hall, 77 F.3d 398 (11th Cir.), cert. denied. 519 U.S. 849 (1996) (Possession of a firearm and its ammunition could only yield a single sentence). United States v. Garcia, 78 F.3d 1517 (11th Cir. 1996) (Acquittal for knowingly conspiring barred a second prosecution for the substantive crime). Terry v. Potter, 111 F.3d 454 (6th Cir. 1997) (When a defendant was charged in two alternate manners, and the jury reaches a verdict as to only one, there was an implied acquittal on the other offense to which jeopardy bars retrial). United States v. Stoddard, 111 F.3d 1450 (9th Cir. 1997) (1. Second drug conspiracy prosecution was barred by double jeopardy; 2. Collateral estoppel barred false statement conviction, based upon drug ownership for which defendant had been previously acquitted). United States v. Romeo, 114 F.3d 141 (9th Cir. 1997) (After an acquittal for possession, an importation charge was barred by collateral estoppel). United States v. Turner, 130 F.3d 815 (8th Cir. 1997) (Prosecution of count, identical to one previously dismissed, was barred). United States v. Boyd, 131 F.3d 951 (11th Cir. 1997) (Convictions for conspiracy and CCE could not both stand). United States v. Downer, 143 F.3d 819 (4th Cir. 1998) (Court’s substitution of conviction for lesser offense, after reversal, violated Ex Post Facto Clause and Grand Jury Clause). United States v. Dunford, 148 F.3d 385 (4th Cir. 1998) (Convictions for 6 firearms and ammunition was multiplicious). United States v. Beckett, 208 F.3d 140 (3rd Cir. 2000) (Sentences for robbery and armed robbery violated double jeopardy). United States v. Kithcart, 218 F.3d 213 (3rd Cir. 2000) (Government could not relitigate suppression motion) United States v. Kramer, 225 F.3d 847 (7thCir. 2000) (Defendant was entitled to attack underlying state child support obligation).

Plea Agreements

United States v. Clark, 55 F.3d 9 (1st Cir. 1995) (The government breached the agreement by arguing against acceptance of responsibility). *United States v. Laday, 56 F.3d 24 (5th Cir. 1995) (The government breached the agreement by failing to give the defendant an opportunity to cooperate). United States v. Washman, 66 F.3d 210 (9th Cir. 1995) (The defendant could withdraw his plea up until the time the court accepted the plea agreement). United States v. Levay, 76 F.3d 671 (5th Cir. 1996) (A defendant could not be enhanced with a prior drug conviction when the government withdrew notice as part of a plea agreement). United States v. Taylor, 77 F.3d 368 (11th Cir. 1996) (The defendant could withdraw his guilty plea when the government failed to unequivocally recommend a sentence named in the agreement). United States v. Velez Carrero, 77 F.3d 11 (1st Cir. 1996) (An agreement to recommend no enhancement was breached by the government’s neutral position at sentencing). United States v. Dean, 87 F.3d 1212 (11th Cir. 1996) (A judge could modify the forfeiture provisions of a plea agreement, when the forfeiture was unfairly punitive). *United States v. Kummer, 89 F.3d 1536 (11th Cir. 1996) (Defendants who pleaded guilty to accepting a gratuity under plea agreements could withdraw their pleas when they were sentenced under bribery guidelines). United States v. Ritsema, 89 F.3d 392 (7th Cir. 1996) (A court could not ignore a previously adopted plea agreement at resentencing). United States v. Belt, 89 F.3d 710 (10th Cir. 1996) (Failure to object to the government’s breach of the plea agreement was not a waiver). United States v. Beltran-Ortiz, 91 F.3d 665 (4th Cir. 1996) (Failure to debrief the defendant, thus preventing him from benefiting from the safety valve, violated the plea agreement). United States v. Hawley, 93 F.3d 682 (10th Cir. 1996) (The government violated its plea agreement not to oppose credit for acceptance of responsibility). United States v.Van Thournout, 100 F.3d 590 (8th Cir. 1996) (The government breached an agreement from another district to recommend concurrent time). United States v. Paton, 110 F.3d 562 (8th Cir. 1997) (The government’s breach of plea agreement was a ground for downward departure). *United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (Defendant could attack illegal conviction without fear that dismissed charges in plea agreement would be revived). United States v. Wolff, 127 F.3d 84 (D.C. Cir.), cert. denied, 118 S.Ct. 2325 (1998) (Government’s failure to argue for acceptance of responsibility breached agreement and required entire sentence to be reconsidered).

United States v. Gilchrist, 130 F.3d 1131 (3rd Cir. 1997) (A plea agreement was breached by imposing a higher term of supervised release). United States v. Johnson, 132 F.3d 628 (11th Cir. 1998) (Prosecutor violated plea agreement by urging higher drug quantity). United States v. Mitchell, 136 F.3d 1192 (8th Cir. 1998) (Failure to adhere to unconditional promise to move for downward departure violated plea agreement). *United States v. Isaac, 141 F.3d 477 (3rd Cir. 1998) (Plea agreements referring to substantial assistance departures are subject to contract law). United States v. Brye, 146 F.3d 1207 (10th Cir. 1998) (Government’s opposition to downward departure breached plea agreement). United States v. Castaneda, 162 F.3d 832 (5th Cir. 1999) (Failed to prove defendant violated transactional immunity agreement). United States v. Lawlor, 168 F.3d 633 (2nd Cir. 1999) (Government breached plea agreement that stipulated to a specific offense level). United States v. Nathan, 188 F.3d 190 (3rd Cir. 1999) (Statement made after plea agreement was not stipulation). United States v. Frazier, 213 F.3d 409 (7th Cir. 2000) (Government cannot unilaterally retreat from plea agreement without hearing). United States v. Baird, 218 F.3d 221 (3rdCir.2000) (Plea agreement prevented use of information at any proceeding).

Guilty Pleas

United States v. Maddox, 48 F.3d 555 (D.C. 1995) (A summary rejection of a guilty plea was improper). *United States v. Ribas-Dominicce, 50 F.3d 76 (1st Cir. 1995) (A court misstated the mental state required for the offense). United States v. Goins, 51 F.3d 400 (4th Cir. 1995) (The court failed to admonish the defendant about the mandatory minimum punishment). *United States v. Casallas, 59 F.3d 1173 (11th Cir. 1995) (Trial judge improperly became involved in plea bargaining during colloquy). *United States v. Smith, 60 F.3d 595 (9th Cir. 1995) (The court failed to explain the nature of the charges to the defendant). *United States v. Gray, 63 F.3d 57 (1st Cir. 1995) (A defendant who did not understand the applicability of the mandatory minimum could withdraw his plea). United States v. Daigle, 63 F.3d 346 (5th Cir. 1995) (The court improperly engaged in plea bargaining). United States v. Martinez-Molina, 64 F.3d 719 (1st Cir. 1995) (The court failed to inquire whether the plea was voluntary or whether the defendant had been threatened or coerced). *United States v. Showerman, 68 F.3d 1524 (2nd Cir. 1995) (The court failed to advise the defendant that he might be ordered to pay restitution). United States v. Tunning, 69 F.3d 107 (6th Cir. 1995) (The government failed to recite evidence to prove allegations in an Alford plea). United States v. Guerra, 94 F.3d 989 (5th Cir. 1996) (A plea was vacated when the court gave the defendant erroneous advice about enhancements). *United States v. Quinones, 97 F.3d 473 (11th Cir. 1996) (The court failed to ensure that the defendant understood the nature of the charges). *United States v. Cruz-Rojas, 101 F.3d 283 (2nd Cir. 1996) (Guilty pleas were vacated to determine whether factual basis existed for carrying a firearm). *United States v. Siegel, 102 F.3d 477 (11th Cir. 1996) (Failure to advise the defendant of the maximum and minimum mandatory sentences required that the defendant be allowed to withdraw his plea). United States v. Shepherd, 102 F.3d 558 (DC Cir. 1996) (A court abused its discretion in rejecting the defendant’s mid-trial guilty plea). United States v. Still, 102 F.3d 118 (5th Cir.), cert. denied, 522 U.S. 806 (1997) (The court failed to admonish the defendant on the mandatory minimum). United States v. Amaya, 111 F.3d 386 (5th Cir. 1997) (The defendant’s plea was involuntary when the court promised to ensure a downward departure for cooperation). *United States v. Gonzalez, 113 F.3d 1026 (9th Cir. 1997) (A court should have held a hearing when the defendant claimed his plea was coerced). United States v. Brown, 117 F.3d 471 (11th Cir. 1997) (Misinformation given to the defendant made his plea involuntary). United States v. Pierre, 120 F.3d 1153 (11th Cir. 1997) (Plea was involuntary when defendant mistakenly believed he had preserved an appellate issue). *United States v. Cazares, 121 F.3d 1241 (9th Cir. 1997) (Plea to drug conspiracy was not an admission of an alleged overt act). United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998) (Plea could be withdrawn based upon misinformation about guideline range). United States v. Gobert, 139 F.3d 436 (5th Cir. 1998) (Insufficient factual basis for defendant’s guilty plea). United States v. Gigot, 147 F.3d 1193 (10th Cir. 1998) (Failure to admonish defendant of elements of offense and possible penalties rendered plea involuntary). United States v. Thorne, 153 F.3d 130 (4th Cir. 1998) (Court failed to advise defendant of the nature of supervised release). United States v. Odedo, 154 F.3d 937 (9th Cir. 1998) (Defendant not admonished about nature of charges). United States v. Suarez, 155 F.3d 521 (5th Cir. 1998) (Defendant was not admonished as to nature of charges). United States v. Andrades, 169 F.3d 131 (2nd Cir. 1999) (Court failed to determine whether defendant understood basis for plea, and failed to receive sufficient factual basis). United States v. Blackwell, 172 F.3d 129 (2nd Cir.), superceded, 1999 WL 1222629 (1999) (Omissions during colloquy voided plea). United States v. Gomez-Orozco, 188 F.3d 422 (7th Cir. 1999) (Proof of citizenship required withdrawal of guilty plea to illegal re-entry). United States v. Guess, 203 F.3d 1143 (9th Cir. 2000) (Record did not support guilty plea to firearm charge). United States v. James, 210 F.3d 1342 (11th Cir. 2000) (Plea colloquy did not cover elements of offense). United States v. Barrios-Gutierrez, 218 F.3d 1118 (9th Cir. 2000) (Defendant must be informed of statutory maximum). United States v. Santo, 225 F.3d 92 (1stCir. 2000) (Court understated mandatory minimum at plea).

Timely Prosecution

United States v. Verderame, 51 F.3d 249 (11th Cir. 1995) (Trial court denied repeated, unopposed motions for continuance in drug conspiracy case, with only 34 days to prepare). United States v. Jones, 56 F.3d 581 (5th Cir. 1995) An open-ended continuance violated the Speedy Trial Act). United States v. Mejia, 69 F.3d 309 (9th Cir. 1995) (A court denied a one-day continuance of trial, preventing live evidence on suppression issue). United States v. Foxman, 87 F.3d 1220 (11th Cir. 1996) (The trial court was required to decide whether the government had delayed indictment to gain a tactical advantage). United States v. Johnson, 120 F.3d 1107 (10th Cir. 1997) (Continuance violated Speedy Trial Act). United States v. Lloyd, 125 F.3d 1263 (9th Cir. 1997) (112-day continuance was not justified). United States v. Hay, 122 F.3d 1233 (9th Cir. 1997) (A 48-day recess to accommodate jurors vacations was abuse of discretion). United States v. Graham, 128 F.3d 372 (6th Cir. 1997) (An eight-year delay between indictment and trial violated the sixth amendment). United States v. Gonzales, 137 F.3d 1431 (10th Cir. 1998) (“Ends of justice” continuance could not be retroactive). United States v. Barnes, 159 F.3d 4 (1st Cir. 1999) (Open-ended continuance violated speedy trial). United States v. Hall, 181 F.3d 1057 (9th Cir. 1999) (Violation of Speedy Trial Act). United States v. Hardeman, 206 F.3d 1320 (9th Cir. 2000) (Speedy trial was violated). United States v. Moss, 217 F.3d 426 (6th Cir. 2000) (Speedy Trial violation required dismissal with prejudice). United States v. Ramirez-Cortez, 213 F.3d 1149 (9thCir. 2000) (Failure to make findings justifying Speedy Trial exclusion).

Jury Selection

Cochran v. Herring, 43 F. 1404 (11th Cir.), cert. denied, 516 U.S. 1073 (1996) (Batson claim). *United States v. Jackman, 46 F.3d 1240 (2nd Cir. 1995) (Selection procedure resulted in an underrepresentation of minorities in jury pool). United States v. Beckner, 69 F.3d 1290 (5th Cir. 1995) (The defendant established prejudicial pretrial publicity that could not be cured by voir dire). *United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996) (A court’s erroneous denial of a defendant’s proper peremptory challenge required automatic reversal). Turner v. Marshall, 121 F.3d 1248 (9th Cir. 1997) (A prosecutor’s stated reason for striking a black juror was pretextual). *Tankleff v. Senkowski, 135 F.3d 235 (2nd Cir. 1998) (Race-based peremptory challenges are not subject to harmless error review). *United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998) (Plan which resulted in removal of 1 in 5 blacks from panel, violated Jury Selection and Service Act). United States v. Tucker, 137 F.3d 1016 (8th Cir. 1998) (Evidence of juror bias and misconduct required evidentiary hearing). Campbell v. Louisiana, 523 U.S. 392 (1998) (White defendant could challenge discrimination against black grand jurors). United States v. Blotcher, 142 F.3d 728 (4th Cir. 1998) (Court improperly denied defendant’s race neutral peremptory challenge). *United States v. Martinez-Salazar, 146 F.3d 653 (9th Cir.), cert. granted, 119 S.Ct. 2365 (1999) (Juror prejudiced toward government should have been stricken for cause). Dyer v. Calderon, 151 F.3d 970 (9th Cir.), cert. denied, 119 S.Ct. 575 (1998) (Juror’s lies raised presumption of bias). United States v. Herndon, 156 F.3d 629 (6th Cir. 1998) (Denial of hearing on potentially biased juror). United States v. McFerron, 163 F.3d 952 (6th Cir. 1999) (Defendant did not have burden of persuasion on neutral explanation for peremptory strike). United States v. Serino, 163 F.3d 91 (1st Cir. 1999) (Defendant gave valid neutral reason for striking juror). Jordan v. Lefevre, 206 F.3d 196 (2nd Cir. 2000) (Merely finding strike of juror was rational does not determine whether there was purposeful discrimination). United States v. Gonzalez, 214 F.3d 1109 (9th Cir. 2000) ( Juror who equivocated about fairness to sit in drug case should have been excused). McClain v. Prunty, 217 F.3d 1209 (9thCir. 2000) (Judge must investigate whether purposeful jury selection discrimination occurred).

Closure

United States v. Doe, 63 F.3d 121 (2nd Cir. 1995) (The court summarily denied a defendant’s request to close the trial for his safety). *Okonkwo v. Lacy, 104 F.3d 21 (2nd Cir. 1997) (Record did not support closure of proceedings during testimony of undercover officer). *Pearson v. James, 105 F.3d 828 (2nd Cir. 1997) (Closure of courtroom denied the right to a public trial).

Trial Procedure

*United States v. Robertson, 45 F.3d 1423 (10th Cir.), cert. denied. 516 U.S. 844 (1995) (There was no evidence that the defendant intelligently and voluntarily waived a jury trial). United States v. Lachman, 48 F.3d 586 (1st Cir. 1995) (Government exhibits were properly excluded on grounds of confusion and waste). *United States v. Ajmal, 67 F.3d 12 (2nd Cir. 1995) (Jurors should not question witnesses as a matter of course). United States v. Duarte-Higarenda, 113 F.3d 1000 (9th Cir. 1997) (The court failed to question a non-English speaking defendant over a jury waiver). United States v. Iribe-Perez, 129 F.3d 1167 (10th Cir. 1997) (Jury was told that the defendant would plead guilty before start of trial). *United States v. Saenz, 134 F.3d 697 (5th Cir. 1998) (Court’s questioning of a witness gave appearance of partiality). United States v. Tilghman, 134 F.3d 414 (D.C. Cir. 1998) (Court’s questioning of defendant denied him a fair trial). United States v. Mortimer, 161 F.3d 240 (3rd Cir. 1999) (Trial judge was absent during defense closing). United States v. Prawl, 168 F.3d 622 (2nd Cir. 1999) (Court refused to instruct jury not to consider codefendants guilty plea). United States v. Golding, 168 F.3d 700 (4th Cir. 1999) (Prosecutor threatened defense witness with prosecution if she testified). United States v. Samaniego, 187 F.3d 1222 (10th Cir. 1999) (No foundation for admission of business records). United States v. Weston, 206 F.3d 9 (D.C. Cir. 2000) (Use of anti-psychotic medication was not supported by evidence of danger to defendant or others). United States v. Gomez-Lepe, 207 F.3d 623 (9thCir. 2000) (Magistrate Judge could not preside over polling jury in felony case).

Confrontation

United States v. Forrester, 60 F.3d 52 (2nd Cir. 1995) (An agent improperly commented on the credibility of another witness). *United States v. Glass, 128 F.3d 1398 (10th Cir. 1997) (The introduction of a co-defendant’s incriminating statement violated Bruton). United States v. Moses, 137 F.3d 894 (6th Cir. 1998) (Allowing child-witness to testify by video violated right to confrontation). *United States v. Mills, 138 F.3d 928 (11th Cir.), modified, 152 F.3d 937 (1998) (Defendant could not be made to share codefendant counsel’s cross-examination of government witness). *United States v. Peterson, 140 F.3d 819 (9th Cir. 1998) (Bruton violation). Gray v. Maryland, 523 U.S. 185 (1998) (Bruton prohibited redacted confession, that obviously referred to defendant). United States v. Marsh, 144 F.3d 1229 (9th Cir. 1998) (Admission of complaints by defendant’s customers denied confrontation). United States v. Cunningham, 145 F.3d 1385 (D.C. Cir. 1998) (Unredacted tapes violated confrontation). *United States v. Edwards, 154 F.3d 915 (9th Cir. 1998) (Defendant was denied confrontation when prosecutor became potential witness during trial). Lilly v. Virginia, 527 U.S. 116 (1999) (Admission of accomplice confession denied confrontation). United States v. Gonzalez, 183 F.3d 1315 (11th Cir. 1999) (Admission of codefendant’s out-of-court statement violated confrontation). United States v. Torres-Ortega, 184 F.3d 1128 (10th Cir. 1999) (Admission of grand jury testimony violated confrontation). Lajoie v. Thompson, 217 F.3d 663 (9thCir. 2000) (Notice requirement of rape shield law violated right of confrontation).

United States v. Beckman, 222 F.3d 512 (8thCir. 2000) (Limiting defense cross violated confrontation).

Hearsay

United States v. Hamilton, 46 F.3d 271 (3rd Cir. 1995) (Prosecution witnesses were not unavailable when they could have testified under government immunity). United States v. Strother, 49 F.3d 869 (2nd Cir. 1995) (A statement, inconsistent with the testimony of a government witness, should have been admitted). United States v. Acker, 52 F.3d 509 (4th Cir. 1995) (Prior consistent statements were not admissible because they were made prior to the witness having a motive to fabricate). United States v. Tory, 52 F.3d 207 (9th Cir. 1995) (Witness’ statement that the robber wore sweat pants was inconsistent with prior statement that he wore white pants). United States v. Rivera, 61 F.3d 131 (2nd Cir.), cert. denied, 520 U.S. 1132 (1997) (The court should not have admitted an attached factual stipulation when allowing defendant to impeach a witness with a plea agreement). United States v. Lis, 120 F.3d 28 (4th Cir. 1997) (A ledger connecting another to the crime was not hearsay). United States v. Beydler, 120 F. 3d 985 (9th Cir. 1997) (Unavailable witness incriminating the defendant was inadmissible hearsay). United States v. Williams, 133 F.3d 1048 (7th Cir. 1998) (Statements by informant to agent were hearsay). United States v. Mitchell, 145 F.3d 572 (3rd Cir. 1998) (Anonymous note incriminating defendant was inadmissible hearsay). United States v. Sumner, 204 F.3d 1182 (8thCir. 2000) (Child’s statement to psychologist was hearsay).

Defense Evidence

*United States v. Cooks, 52 F.3d 101 (5th Cir. 1995) (The court refused to allow government witness to be questioned about jeopardy from same charges). United States v. Blum, 62 F.3d 63 (2nd Cir. 1995) (The court excluded evidence relevant to the witness’ motive to testify). United States v. Platero, 72 F.3d 806 (10th Cir. 1995) (The court excluded cross examination of a sexual assault victim’s relationship with a third party). United States v. Montgomery, 100 F.3d 1404 (8th Cir. 1996) (Codefendants should have been required to try on clothing, after defendant had to, when the government put ownership at issue). United States v. Landerman, 109 F.3d 1053 (5th Cir.), modified, 116 F.3d 119 (1997) (The defendant should have been allowed to question a witness about a pending state charge). *United States v. Mulinelli-Nava, 111 F.3d 983 (1st Cir. 1997) (Court limited cross examination regarding theory of defense). *United States v. Paguio, 114 F.3d 928 (9th Cir. 1997) (A missing witness’ self-incriminating statement should have been admitted). United States v. Montilla-Rivera, 115 F.3d 1060 (1st Cir. 1997) (Exculpatory affidavits of codefendants, who claimed Fifth Amendment privilege, were newly discovered evidence regarding a motion for new trial). *Lindh v. Murphy, 124 F.3d 899 (7th Cir. 1997) (A defendant was not allowed to examine the state’s psychiatrist about allegations of sexual improprieties with patients). United States v. Foster, 128 F.3d 949 (6th Cir. 1997) (Exculpatory grand jury testimony should have been admitted at trial). United States v. Lowery, 135 F.3d 957 (5th Cir. 1998) (Court erroneously excluded defendant’s evidence that he encouraged witnesses to tell the truth). United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1999) (Exclusion of deposition denied right to put on defense). Schledwitz v. United States, 169 F.3d 1003 (6th Cir. 1999) (Defendant could expose bias of witness involved in investigation). United States v. James, 169 F.3d 1210 (9th Cir. 1999) (Records of victim’s violence were relevant to self-defense). United States v. Manske, 186 F.3d 770 (7th Cir. 1999) (Defendant could cross-examine witness about his threats to other witnesses about their testimony). United States v. Saenz, 179 F.3d 686 (9th Cir. 1999) (Defendant was entitled to show his knowledge of victim’s prior acts of violence to support self-defense). United States v. Byrd, 208 F.3d 592 (7th Cir. 2000) (Defendant was prevented from introducing shackles and restraints in which he was held during alleged assault on officers). United States v. Henke, 222 F.3d 633 (9th Cir. 2000) (Lay witness could not testify to what defendant knew about regulatory scheme). United States v. Rhynes, 218 F.3d 310 (4thCir. 2000) (Sequestered defense witness should not have been excluded for violating rule).

Misconduct

United States v. Flores-Chapa, 48 F.3d 156 (5th Cir. 1995) (The prosecutor referred to excluded evidence). *United States v. Kallin, 50 F.3d 689 (9th Cir. 1995) (The prosecutor commented upon the defendant’s failure to come forward with an explanation). United States v. Gaston-Brito, 64 F.3d 11 (1st Cir. 1995) (A hearing was necessary to determine if an agent improperly gestured toward defense table in front of the jury). United States v. Tenorio, 69 F.3d 1103 (11th Cir. 1995) (The prosecutor commented upon the defendant’s silence). *United States v. Cannon, 88 F.3d 1495 (8th Cir. 1996) (A prosecutor’s reference to black defendants, who were not from North Dakota, as “bad people,” was not harmless). *United States v. Roberts, 119 F.3d 1006 (1st Cir. 1997) (Prosecutor commented on defendant’s failure to testify and misstated burden of proof). United States v. Rudberg, 122 F.3d 1199 (9th Cir. 1997) (A prosecutor vouched for a witness’ credibility in closing argument). United States v. Johnston, 127 F.3d 380 (5th Cir. 1997) (A prosecutor commented on the defendant’s failure to testify and asked questions highlighting defendant’s silence). United States v. Wilson, 135 F.3d 291 (4th Cir. 1998) (Prosecutor’s argument that defendant was a murderer prejudiced drug case). *United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998) (Prosecutor coerced defense witness into refusing to testify). United States v. Maddox, 156 F.3d 1280 (D.C. Cir. 1999) (Prosecutor’s argument referred to matters not in evidence). Agardu v. Portuondo, 159 F.3d 98 (2nd Cir. 1998) (Prosecutor claimed that defendant was less credible without arguing any facts in support). United States v. Rodrigues, 159 F.3d 607 (D.C. Cir. 1999) (Improper closing by prosecutor). United States v. Richardson, 161 F.3d 728 (D.C. Cir. 1999) ( Improper remarks by prosecutor). United States v. Francis, 170 F.3d 546 (6th Cir. 1999) (Cumulative acts of prosecutorial misconduct). Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000) (Prosecution argued contradictory facts in two different but related trials). United States v. Cabrera, 222 F.3d 590 (9th Cir. 2000) ( Repeated references to “Cuban drug dealers”). United States v. Beeks, 224 F.3d 741 (8thCir. 2000) (Prosecutor’s questioning violated prior in limine ruling).

Extraneous Evidence

United States v. Rodriguez, 45 F.3d 302 (9th Cir. 1995) (Evidence of flight a month after crime was inadmissible to prove an intent to possess). *United States v. Blackstone, 56 F.3d 1143 (9th Cir. 1995) (Drug use was improperly admitted in felon in possession case). United States v. Moorehead, 57 F.3d 875 (9th Cir. 1995) (Evidence that the defendant was a drug dealer should not have been admitted in firearms case). United States v. Aguilar-Aranceta, 58 F.3d 796 (1st Cir. 1995) (Prior misdemeanor drug conviction was more prejudicial than probative in a distribution case). United States v. McDermott, 64 F.3d 1448 (10th Cir. 1995) (Evidence that the defendant threatened a witness should not have been admitted because it was not clear the defendant knew the person was a witness). *United States v. Vizcarra-Martinez, 66 F.3d 1006 (9th Cir. 1995) (Evidence of personal use of methamphetamine at the time of the defendant’s arrest was inadmissible). *United States v. Elkins, 70 F.3d 81 (10th Cir. 1995) (Evidence of the defendant’s gang membership was improperly elicited). United States v. Irvin, 87 F.3d 860 (7th Cir.), cert. denied, 519 U.S. 903 (1997) (The court should have excluded testimony that the defendant was in a motorcycle gang). *United States v. Utter, 97 F.3d 509 (11th Cir. 1996) (In an arson case, it was error to admit evidence that the defendant threatened to burn his tenant’s house or that the defendant’s previous residence had burned). *United States v. Lecompte, 99 F.3d 274 (8th Cir. 1996) (Evidence of prior contact with alleged victims did not show plan or preparation). United States v. Jobson, 102 F.3d 214 (6th Cir. 1996) (The court failed to adequately limit evidence of the defendant’s gang affiliation). United States v. Murray, 103 F.3d 310 (3rd Cir. 1997) (Evidence that an alleged murderer had killed before was improperly admitted in a CCE case). *United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997) (Allowing testimony about bombing of federal building was prejudicial). United States v. Paguio, 114 F.3d 928 (9th Cir. 1997) (Evidence that the defendant previously applied for a loan was prejudicial). Old Chief v. United States, 519 U.S. 172 (1997) (A court abused its discretion by refusing to accept the defendant’s offer to stipulate that he was a felon, in a trial for being a felon in possession of a firearm). *United States v. Sumner, 119 F.3d 658 (8th Cir. 1997) (When defendant denied the crime occurred, prior acts to prove intent were not admissible). United States v. Millard, 139 F.3d 1200 (8th Cir. 1998) Prior drug convictions erroneously admitted). United States v. Mulder, 147 F.3d 703 (8th Cir. 1998) (Bank’s routine practice was irrelevant to fraud prosecution). United States v. Ellis, 147 F.3d 1131 (9th Cir. 1998) (Testimony about destructive power of explosives was prejudicial). United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir. 1998) (Pornographic films should not have been displayed in light of defendant’s offer to stipulate). United States v. Spinner, 152 F.3d 950 (D.C. Cir. 1998) (Letter containing evidence of prior bad acts should not have been admitted). United States v. Polasek, 162 F.3d 878 (5th Cir. 1999) (Convictions of defendant’s associates should not have been admitted). United States v. Jean-Baptiste, 166 F.3d 102 (2nd Cir. 1999) (Admission of prior bad act was plain error absent evidence it actually occurred). United States v. Lawrence, 189 F.3d 838 (9th Cir. 1999) (Testimony regarding defendant’s marriage was more prejudicial than probative). United States v. Ahumada-Aguilar, 189 F.3d 1121 (9th Cir. 1999) (Requiring more proof of paternity from father than mother, to show citizenship, denied equal protection). United States v. Heath, 188 F.3d 916 (7th Cir. 1999) (Previous arrest was not admissible prior bad act). United States v. Anderson, 188 F.3d 886 (7th Cir. 1999) (Prior bad act was more than 10 years old). United States v. Walton, 217 F.3d 443 (7th Cir. 2000) (Evidence of prior unsolved theft was irrelevant). United States v. Jimenez, 214 F.3d 1095 (9th Cir. 2000) (Description of defendant’s prior conviction involving firearm was not harmless). United States v. Martinez-Gaytan, 213 F.3d 890 (5th Cir. 2000) (Agent who did not speak Spanish could not introduce defendant’s Spanish confession). United States v. Buchanan, 213 F.3d 302 (6th Cir. 2000) (Testimony that dog alerted to drugs on currency was inadmissible). Identification United States v. Emanuele, 51 F.3d 1123 (3rd Cir. 1995) (An identification, made after seeing the defendant in court, and after a failure to identify him before, should have been suppressed). *Lyons v. Johnson, 99 F.3d 499 (2nd Cir. 1996) (The court denied the defendant the right to display a witness in support of a misidentification defense). United States v. Barajas-Montiel, 185 F.3d 947 (9thCir. 1999) (Insufficient evidence tying defendant to false identification).

Expert Testimony

*United States v. Boyd, 55 F.3d 667 (D.C. Cir. 1995) (Officer relied upon improper hypothetical in drug case). United States v. Shay, 57 F.3d 126 (1st Cir. 1995) (Defense expert should have been allowed to explain that the defendant had a disorder that caused him to lie). United States v. Posado, 57 F.3d 428 (5th Cir. 1995) (The per se rule prohibiting polygraph evidence was abolished by Daubert). United States v. Childress, 58 F.3d 693 (D.C. Cir.), cert. denied, 516 U.S. 1098 (1996) (A defense expert should have been allowed to testify on the defendant’s inability to form intent). United States v. Velasquez, 64 F.3d 844 (3rd Cir. 1995) (A defense expert should have been allowed to testify on the limitations of handwriting analysis). Rupe v. Wood, 93 F.3d 1434 (9th Cir.), cert. denied, 519 U.S. 1142 (1997) (Exclusion of a witness’ failed polygraph results at the death penalty phase of trial, denied due process). United States v. Hall, 93 F.3d 1337 (7th Cir. 1996) (Expert testimony that the defendant had a disorder that may have caused him to make a false confession should have been admitted). Calderon v. U.S. District Court, 107 F.3d 756 (9th Cir.), cert. denied, 522 U.S. 907 (1997) (CJA funds for expert could be used to exhaust a state claim). *United States v. Morales, 108 F.3d 1031 (9th Cir. 1997) (The court should not have excluded a defense expert on bookkeeping). *United States v. Word, 129 F.3d 1209 (11th Cir. 1997) (Lay testimony of abuse to defendant was admissible). United States v. Barnette, 211 F.3d 803 (4th Cir. 2000) ( Defendant was prevented from presenting expert to answer government’s rebuttal expert testimony). United States v. Smithers, 212 F.3d 306 (6th Cir. 2000) (Court excluded expert on identification without a hearing). *United States v. Velarde, 214 F.3d 1204 (10th Cir. 2000) (Court failed to make reliability determination about government’s expert testimony). Entrapment United States v. Reese, 60 F.3d 660 (9th Cir. 1995) (An entrapment instruction failed to tell the jury that the government must prove beyond a reasonable doubt that the defendant was predisposed). United States v. Bradfield, 113 F.3d 515 (5th Cir. 1997) (Evidence supported an instruction on entrapment). *United States v. Duran, 133 F.3d 1324 (10th Cir. 1998) (Entrapment instruction failed to place burden on government). United States v. Thomas, 134 F.3d 975 (9th Cir. 1998) (Defendant may present good prior conduct to support entrapment defense). United States v. Sligh, 142 F.3d 761 (4th Cir. 1998) (Court failed to give instruction on entrapment). *United States v. Burt, 143 F.3d 1215 (9th Cir. 1998) (Entrapment instruction failed to place proper burden on government). United States v. Gamache, 156 F.3d 1 (1st Cir. 1998) (Jury should have been instructed on entrapment). United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000) ( Defendant was entrapped as matter of law). *United States v. Brooks, 215 F.3d 842 (8th Cir. 2000) (Drug defendant was entrapped as matter of law). Jury Instructions United States v. Lewis, 53 F.3d 29 (4th Cir. 1995) (The court failed to instruct the jury that conspiring with a government agent alone required an acquittal). United States v. Ruiz, 59 F.3d 1151 (11th Cir.), cert. denied, 516 U.S. 1133 (1996) (Defendant has the right to have the jury instructed on his theory of defense). *United States v. Lucien, 61 F.3d 366 (5th Cir. 1995) (An instruction on simple possession should have been given in a drug distribution case). Smith v. Singletary, 61 F.3d 815 (11th Cir.), cert. denied, 516 U.S. 1140 (1996) (The court failed to give mitigating instruction in a capital case). *United States v. Birbal, 62 F.3d 456 (2nd Cir. 1995) (Jurors were instructed they “may” acquit, rather than they “must” acquit, if the government did not meet its burden). *United States v. Hairston, 64 F.3d 491 (9th Cir. 1995) (Alibi instruction was required when evidence of alibi was introduced in the government’s case). United States v. Johnson, 71 F.3d 139 (4th Cir. 1995) (The court improperly instructed the jury that a credit union was federally insured). United States v. Palazzolo, 71 F.3d 1233 (6th Cir. 1995) (Verdict form failed to distinguish the object of the conspiracy). *United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996) (A jury instruction could not shift the burden to the defendant on the issue of self-defense). *United States v. Webster, 84 F.3d 1056 (8th Cir. 1996) (Jury instructions that did not distinguish between “carry” and “use” were defective in a §924 (c) trial). *United States v. Medina, 90 F.3d 459 (11th Cir. 1996) (The court failed to submit a jury instruction on whether a ship was subject to the jurisdiction of the United States). United States v. Baron, 94 F.3d 1312 (9th Cir.), cert. denied, 519 U.S. 1047 (1996) (A court committed plain error by giving a deliberate ignorance instruction when there was no evidence that the defendant knew, or avoided learning, of secreted drugs). *United States v. Ahmad, 101 F.3d 386 (5th Cir. 1996) (The jury instructions in a pollution case implied strict liability rather than the requirement of knowledge). United States v. Rodgers, 109 F.3d 1138 (6th Cir. 1997) (If a court allows a jury to review trial testimony, there must be a cautionary instruction not to place upon it undue emphasis). United States v. Paul, 110 F.3d 869 (2nd Cir. 1997) (The court failed to give duress instruction in a felon in possession case). *United States v. Bancalari, 110 F.3d 1425 (9th Cir. 1997) (Instruction omitted the element of intent). United States v. Cooke, 110 F.3d 1288 (7th Cir. 1997) (Jury instructions treating “carry” and use” interchangeably were defective). United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (Failure to instruct jury on use of firearm, in relation to, drug trafficking was plain error). United States v. Kubosh, 120 F.3d 47 (5th Cir. 1997) (Jury instruction failing to require active employment of firearm was plain error). *Smith v. Horn, 120 F.3d 400 (3rd Cir. 1997) (A 1st degree murder instruction failed to require specific intent). United States v. Bordeaux, 121 F.3d 1187 (8th Cir. 1997) (Jury instruction in an abusive sexual contact case failed to require force). United States v. Wozniak, 126 F.3d 105 (2nd Cir. 1997) (Charge on marijuana impermissibly amended indictment alleging cocaine and methamphetamine). *United States v. Otis, 127 F.3d 829 (9th Cir. 1997) (Duress instruction was omitted). United States v. Soto-Silva, 129 F.3d 340 (5th Cir. 1997)(Deliberate ignorance instruction was not warranted for charge of maintaining premises for drug distribution). United States v. Defries, 129 F.3d 1293 (D.C. Cir. 1997) (The court should have given an advice of counsel instruction on an embezzlement count). United States v. Doyle, 130 F.3d 523 (2nd Cir. 1997) (Erroneous instructions stated that presumption of innocence and reasonable doubt were to protect only the innocent). United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) (Jury instructions did not adequately impose burden of proving knowledge). United States v. Russell, 134 F.3d 171 (3rd Cir. 1998) (CCE instruction omitted unanimity requirement). United States v. Baird, 134 F.3d 1276 (6th Cir. 1998) (Instruction failed to charge jury that contractor was only liable for falsity of costs it claimed to have incurred). *United States v. Romero, 136 F.3d 1268 (10th Cir. 1998) (“Law of the case” required element named in jury instruction to be proven). *United States v. Rossomando, 144 F.3d 197 (2nd Cir. 1998) (Ambiguous jury instruction misled jurors). *United States v. Benally, 146 F.3d 1232 (10th Cir. 1998) (Defendant was entitled to instructions on self-defense and lesser included offense). United States v. Thomas, 150 F.3d 743 (7th Cir. 1998) (Defendant was entitled to instruction that buyer/seller relationship is not itself a conspiracy). United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1999) (Self-defense instruction should have been given). United States v. Meyer, 157 F.3d 1067 (7th Cir.), cert. denied, 119 S.Ct. 1465 (1999) (Court should have instructed that mere buyer/seller relationship did not establish conspiracy). United States v. Lampkin, 159 F.3d 607 (D.C. Cir. 1999) (Jury improperly instructed that government could not prosecute juvenile witnesses). United States v. Dixon, 185 F.3d 393 (5th Cir. 1999) (Court improperly refused instruction on insanity based upon expert testimony). United States v. Monger, 185 F.3d 574 (9th Cir. 1999) (Court should have instructed on lesser offense of simple possession). United States v. Frega, 179 F.3d 793 (9th Cir. 1999) (Court’s instruction failed to identify potential predicate acts in RICO case). United States v. Shipsey, 190 F.3d 1081 (9th Cir. 1999) (Court’s instruction to jury constructively amended indictment). United States v. Pigee, 197 F.3d 879 (7th Cir. 1999) (Jury instruction constructively amended indictment). United States v. Brown, 202 F.3d 691 (4th Cir. 2000) (Omission of instruction requiring unanimity on specific violations reversed CCE conviction). United States v. Smith, 217 F.3d 746 (9th Cir. 2000) (Court failed to instruct upon defendant’s theory of the case). United States v. Fuchs, 218 F.3d 957 (9th Cir. 2000) (No instruction that conspiracy must have occurred during statute of limitations) Jenkins v. Huchinson, 221 F.3d 679 (4thCir. 2000) (Reasonable doubt instruction improperly indicated it was only advisory).

Argument

United States v. Tory, 52 F.3d 207 (9th Cir. 1995) (The defense was prevented from arguing that an absence of evidence implied that evidence did not exist). United States v. Hall, 77 F.3d 398 (11th Cir. 1996) (Defendant’s counsel was improperly prohibited from addressing general principles of reasonable doubt in closing).

Deliberations

United States v. Berroa, 46 F.3d 1195 (D.C. Cir. 1995) (Allen charge varied from ABA standard). United States v. Harber, 53 F.3d 236 (9th Cir. 1995) (The case agent’s report was taken into the jury room). United States v. Burgos, 55 F.3d 933 (4th Cir. 1995) (Allen charge asked jurors to think about giving up firmly held beliefs). *United States v. Araujo, 62 F.3d 930 (7th Cir. 1995) (A verdict was taken from eleven jurors when the twelfth was delayed by car trouble). *United States v. Ottersburg, 76 F.3d 137 (7th Cir.), clarified, 81 F.3d 657 (1996) (It was plain error to allow alternate jurors to deliberate with the jury). *United States v. Manning, 79 F.3d 212 (1st Cir.), cert. denied, 519 U.S. 853 (1996) (The court should have given a “yes or no” answer to a deadlocked jury’s question, rather than refer them to the testimony). United States v. Berry, 92 F.3d 597 (7th Cir. 1996) (A jury improperly considered a transcript, rather than the actual tape). United States v. Benedict, 95 F.3d 17 (8th Cir. 1996) (The trial court should not have accepted partial verdicts). United States v. Thomas, 116 F.3d 606 (2nd Cir. 1997) (Juror should not have been dismissed when he did not admit to refusing to follow the law during deliberations). United States v. Hall, 116 F.3d 1253 (8th Cir. 1997) (Exposure of jury to unrelated, but prejudicial matters, required new trial). United States v. Keating, 147 F.3d 895 (9th Cir. 1998) (Reasonable probability of juror prejudice required new trial). United States v. Lampkin, 159 F.3d 607 (D.C. Cir. 1999) (Jury allowed to consider tapes not in evidence). United States v. Beard, 161 F.3d 1190 (9th Cir. 1999) (It was error to substitute alternates for jurors after deliberations began). United States v. Spence, 163 F.3d 1280 (11th Cir. 1999) (Juror dismissed during deliberations without just cause).

Variance

United States v. Johansen, 56 F.3d 347 (2nd Cir. 1995) (There was a variance when none of the conspiracies alleged were proven). United States v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir. 1997) (There was a fatal variance between pleading and proof of date of offense). *United States v. Mohrbacher, 182 F.3d 1041 (9th Cir. 1999) (There was a variance between charge of transporting child pornography and proof of mere receipt). United States v. Ramirez, 182 F.3d 544 (7thCir. 1999) (Variance between charge and proof in firearm case).

Speech / Assembly

United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999) (Conviction for harassing AUSA with racial epithets violated first amendment). United States v. Baugh, 187 F.3d 1037 (9th Cir. 1999) (Assembly at national park could not be conditioned on promise not to trespass). United States v. Frandsen, 212 F.3d 1231 (11thCir. 2000) (Requiring permit to make public expression of views was illegal prior restraint).

Interstate Commerce

United States v. Box, 50 F.3d 345 (5th Cir.), cert. denied, 516 U.S. 714 (1996) (Extortion of interstate travelers did not involve interstate commerce). *United States v. Cruz, 50 F.3d 714 (9th Cir. 1995) (Shipment of firearm in interstate commerce must occur after the firearm is stolen). *United States v. Quigley, 53 F.3d 909 (8th Cir. 1995) (Liquor store robbery did not affect interstate commerce). United States v. Grey, 56 F.3d 1219 (10th Cir. 1995) (Use of currency did not involve interstate commerce). United States v. Lopez, 514 U.S. 549 (1995) (“Gun-free school zone” law found unconstitutional). *United States v. Walker, 59 F.3d 1196 (11th Cir.), cert. denied, 516 U.S. 1002 (1995) (Conviction under “gun-free school zone” law was plain error). *United States v. Barone, 71 F.3d 1442 (9th Cir. 1995) (False checks did not involve interstate commerce). United States v. Denalli, 90 F.3d 444 (11th Cir. 1996) (Arson of neighbor’s home did not involve interstate commerce). *United States v. Gaydos, 108 F.3d 505 (3rd Cir. 1997) (There was insufficient evidence that arson involved interstate commerce). United States v. Izydore, 167 F.3d 213 (5th Cir. 1999) (No evidence that phone calls crossed state lines for wire fraud interstate nexus). United States v. Causey, 185 F.3d 407 (5th Cir. 1999) (1. No federal nexus shown regarding communication; 2. Recommendations did not support death sentences). United States v. Wilson, 182 F.3d 737 (10th Cir. 1999) (Insufficient evidence of child pornography shipped in interstate commerce). *United States v. Spinner, 180 F.3d 514 (3rd Cir. 1999) (Indictment failed to allege element of interstate commerce). Jones v. United States, 120 S.Ct. 1904 (2000) (Residence that was not used for commercial purpose did not involve interstate commerce in arson case). United States v. Wang, 222 F.3d 234 (6thCir. 2000) (Robbery of cash did not have sufficient impact on interstate commerce).

Firearms

Staples v. United States, 511 U.S. (1994) (When a defendant was prohibited from possessing a particular kind of firearm, it must be proven he knew that he possessed that type of firearm). United States v. Herron, 45 F.3d 340 (9th Cir. 1995) (A defendant whose civil rights were restored was not prohibited from possessing a firearm). United States v. Caldwell, 49 F.3d 251 (6th Cir. 1995) (Licensed dealer who sold firearm away from business was not guilty of unlicensed sale). United States v. Anderson, 59 F.3d 1323 (D.C. Cir.), cert. denied, 516 U.S. 999 (1995) (Multiple §924 (c) convictions must be based on separate predicate offenses). Bailey v. United States, 516 U.S. 137 (1995) (Passive possession of firearm was insufficient to prove “use” of firearm during drug trafficking crime). United States v. Kelly, 62 F.3d 1215 (9th Cir. 1995) (A defendant whose civil rights were restored was not prohibited from possessing a firearm). *United States v. Hayden, 64 F.3d 126 (3rd Cir. 1995) (A defendant should have been allowed to introduce evidence of his low intelligence and illiteracy to rebut allegations that he knew he was under indictment when buying a firearm). *United States v. Jones, 67 F.3d 320 (D.C. Cir. 1995) (The jury should not have been told nature of the defendant’s prior conviction when the defendant offered to stipulate that he was a felon). United States v. Edwards, 90 F.3d 199 (7th Cir. 1996) (A defendant must be shown to know his shotgun is shorter than 18 inches in length in order to be liable for failure to register the weapon). *United States v. Rogers, 94 F.3d 1519 (11th Cir.), cert.denied, 522 U.S. 252 (1998) (The government failed to prove a defendant knew that he possessed a fully automatic weapon). United States v. Atcheson, 94 F.3d 1237 (9th Cir.), cert. denied, 519 U.S. 1140 (1997) (Each §924 (c) conviction must be tied to a separate predicate crime). United States v. Indelicato, 97 F.3d 627 (1st Cir.), cert. denied, 522 U.S. 835 (1997) (A defendant who did not lose his civil rights could not be felon in possession). United States v. Casterline, 103 F.3d 76 (9th Cir.), cert. denied, 118 S.Ct. 106 (1997) (A felon in possession charge may not proven solely by ownership). United States v. Taylor, 113 F.3d 1136 (10th Cir. 1997) (A firearm found in shared home was not shown to be possessed by the defendant). United States v. Stephens, 118 F.3d 479 (6th Cir. 1997) (Two separate caches of cocaine possessed on the same day, did not support two separate gun enhancements). *United States v. Westmoreland, 122 F.3d 431 (7th Cir. 1997) (An agent’s presentation of inoperable firearm to defendant, immediately before arrest, did not support possession of a firearm in relation to drug crime). United States v. Gonzalez, 122 F.3d 1383 (11th Cir. 1997) (Evidence did not support possession of a firearm while a fugitive from justice). United States v. Norman, 129 F.3d 1393 (10th Cir. 1997) (Felon whose civil rights had been restored was not illegally in possession of firearm). United States v. Perez, 129 F.3d 1340 (9th Cir. 1997) (Jury should have been required to decide the type of firearm). United States v. Graves, 143 F.3d 1185 (9th Cir. 1998) (Accessory to felon in possession had to know codefendant was a felon and possessed firearm). Bousley v. United States, 523 U.S. 614 (1998) (Guilty plea did not bar Bailey claim. Claim was not Teague-barred). United States v. Hellbusch, 147 F.3d 782 (8th Cir. 1998) (Guilty plea did not foreclose Bailey claim). United States v. Spinner, 152 F.3d 950 (D.C. Cir. 1998) (Failure to show firearm was semiautomatic assault weapon). United States v. Benboe, 157 F.3d 1181 (9th Cir. 1999) (Firearm conviction not supported by evidence). United States v. Sanders,157 F.3d 302 (5th Cir. 1999) (Insufficient evidence that defendant carried firearm). United States v. Mount, 161 F.3d 675 (11th Cir. 1999) (Weapon found in stairwell was not carried). United States v. Gilliam, 167 F.3d 628 (D.C. 1999) (Failed to prove prior conviction in felon in possession). United States v. Aldrich, 169 F.3d 526 (8th Cir. 1999) (Vacating related gun count required entire new trial on others). United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir. 1999) (Felon had civil rights restored and could possess firearms). United States v. Martin, 180 F.3d 965 (8th Cir. 1999) (Insufficient evidence of constructive possession of a firearm). United States v. Fowler, 198 F.3d 808 (11th Cir. 1999) (Restoration of rights by state did not prohibit firearms possession). United States v. Howard, 214 F. 3d 361 (2nd Cir. 2000) ( Jury could not infer defendant knew firearm was stolen merely because he was felon, or that firearm was found next to one with obliterated serial number). United States v. Adams, 214 F.3d 724 (6th Cir. 2000) (Simultaneous possession of firearm and ammunition may result in only one conviction). United States v. Coleman, 208 F.3d 786 (9thCir. 2000) (Insufficient evidence that defendant knew co-defendant had a firearm for armed bank robbery conviction).

Extortion

*United States v. Tomblin, 46 F.3d 1369 (5th Cir. 1995) (A private citizen did not act under color of official right). *United States v. Scotti, 47 F.3d 1237 (2nd Cir. 1995) (Facilitating payment of a debt was not extortion). United States v. Delano, 55 F.3d 720 (2nd Cir. 1995) (Services or labor were not property within the meaning of a statute used as a predicate for RICO). *United States v. Wallace, 59 F.3d 333 (2nd Cir. 1995) (Demanding payment from fraudulent check scheme was not extortion). United States v. Allen, 127 F.3d 260 (2nd Cir. 1997) (Insufficient evidence of extortionate credit). United States v. Houston, 217 F.3d 1204 (9thCir. 2000) (No specific finding of express threat of death).

Drugs

United States v. Newton, 44 F.3d 913 (11th Cir.), cert. denied, 516 U.S. 857 (1995) (Leasing residence for a drug dealer did not prove the defendant’s participation in a conspiracy). United States v. Jones, 44 F.3d 860 (10th Cir. 1995) (A car passenger was not shown to have knowledge of the drugs). *United States v. Johnson, 46 F.3d 1166 (D.C. Cir. 1995) (The government failed to prove distribution within 1000 feet of a school). United States v. Medjuck, 48 F.3d 1107 (9th Cir. 1995) (The government failed to show a nexus to U.S. territory). United States v. Valerio, 48 F.3d 58 (1st Cir. 1995) (There was insufficient evidence that the drugs were intended for distribution). United States v. Flores-Chapa, 48 F.3d 156 (5th Cir. 1995) (The defendant’s beeper and personal use of drugs was not proof of conspiracy). United States v. Andujar, 49 F.3d 16 (1st Cir. 1995) (There was no more evidence than mere presence). United States v. Jones, 49 F.3d 628 (10th Cir. 1995) (Inferences derived from standing near open trunk did not prove knowledge). United States v. Polk, 56 F.3d 613 (5th Cir. 1995) (Use of the defendant’s car and home were insufficient to show participation). United States v. Horsley, 56 F.3d 50 (11th Cir. 1995) (Distribution of cocaine is lesser included offense of distribution of cocaine within a 1,000 feet of a school, and the jury should be charged accordingly). *United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995) (Momentarily picking up a kilo for inspection was not possession). United States v. Ross, 58 F.3d 154 (5th Cir.), cert. denied, 516 U.S. 954 (1995) (The defendant was not a conspirator merely because he sold drugs at same location as conspirators). United States v. Kearns, 61 F.3d 1422 (9th Cir. 1995) (A brief sampling of marijuana was not possession). United States v. Lopez-Ramirez, 68 F.3d 438 (11th Cir. 1995) (Insufficient evidence of possession and conspiracy as to defendant who was present in home where 65 kilos of cocaine was delivered and then seized). *United States v. Applewhite, 72 F.3d 140 (D.C. Cir.), cert. denied, 517 U.S. 1227 (1996) (The government failed to prove distribution within a 1000 feet of a school). United States v. Derose, 74 F.3d 1177 (11th Cir. 1996) (Insufficient evidence that the defendant took possession of marijuana). United States v. Martinez, 83 F.3d 371 (11th Cir.), cert. denied, 519 U.S. 998 (1997) (A defendant’s conviction for conspiracy to possess cocaine was reversed because there was no evidence beyond defendant’s intent to help coconspirators steal money). *United States v. Thomas, 114 F.3d 403 (3rd Cir. 1997) (Insufficient evidence of a conspiracy, when it was not shown that defendant knew cocaine was in bag he was to retrieve). United States v. Cruz, 127 F.3d 791 (9th Cir. 1997) (A defendant could not join a conspiracy that was already completed). United States v. Hunt, 129 F.3d 739 (5th Cir. 1997) (There was insufficient evidence of an intent to distribute). United States v. Brito, 136 F.3d 397 (5th Cir. 1998) (Evidence that defendant was asked to find drivers did not prove constructive possession of hidden marijuana). United States v. Lombardi,138 F.3d 559 (5th Cir. 1998) (Evidence did not support conviction for using juvenile to commit drug offense). United States v. Leonard, 138 F.3d 906 (11th Cir. 1998) (Insufficient evidence that passenger of vehicle possessed drugs or gun hidden in car). United States v. Sampson, 140 F.3d 585 ( 4th Cir. 1998) (Insufficient evidence that drug offense occurred within 1000 feet of a playground or public housing). United States v. Delagarza-Villarreal, 141 F.3d 133 (5th Cir. 1997) (Insufficient evidence of possession of marijuana). United States v. Jensen, 141 F.3d 830 (8th Cir. 1998) (Insufficient evidence of drug conspiracy). United States v. Paul, 142 F.3d 836 (5th Cir. 1998) (Insufficient evidence of conspiracy to import). United States v. Toler, 144 F.3d 1423 (11th Cir. 1998) (Insufficient evidence that defendant participated in conspiracy). *United States v. Ortega-Reyna, 148 F.3d 540 (5th Cir. 1998) (Insufficient evidence that drugs hidden in borrowed truck were defendant’s). United States v. Quintanar, 150 F.3d 902 (8th Cir. 1998) (No evidence that defendant exercised control over contraband). United States v. Gore, 154 F.3d 34 (2nd Cir. 1998) (Buyer/seller relationship did not establish conspiracy). *United States v. Idowu, 157 F.3d 265 (3rd Cir. 1999) (Insufficient evidence that defendant knew purpose of drug conspiracy). United States v. Morillo, 158 F.3d 18 (1st Cir. 1999) (Insufficient evidence of drug conspiracy). United States v. Valadez-Gallegos, 162 F.3d 1256 (10th Cir. 1999) (Passenger was not linked to contraband in vehicle). United States v. Dekle, 165 F.3d 826 (11th Cir. 1999) (Insufficient evidence that doctor conspired to illegally distribute drugs). United States v. Mercer, 165 F.3d 1331 (11th Cir. 1999) (Insufficient evidence of a drug conspiracy). United States v. Edwards, 166 F.3d 1362 (11th Cir. 1999) (Insufficient evidence of drug possession). United States v. Orduno-Aguilera, 183 F.3d 1138 (9th Cir. 1999) (Insufficient evidence that substance was illegal steroid). United States v. Garcia-Sanchez, 189 F.3d 1143 (9th Cir. 1999) (Drug quantities not supported by evidence). United States v. Owusu, 199 F.3d 329 (6th Cir. 2000) (Insufficient evidence of drug distribution). United States v. Bryce, 208 F.3d 346 (2nd Cir. 2000) (Uncorroborated admissions were insufficient to establish possession or distribution). United States v. Torres-Ramirez, 213 F.3d 978 (7th Cir. 2000) (Purchase of drugs and knowledge of conspiracy did not make defendant a co-conspirator). United States v. Estrada-Macias, 218 F.3d 1064 (9thCir. 2000) (Mere presence and knowledge of a conspiracy were insufficient to convict).

CCE

*United States v. Barona, 56 F.3d 1087 (9th Cir.), cert. denied, 516 U.S. 1092 (1996) (It was insufficient to find a CCE when there were persons who could not be legally counted as supervisees). United States v. Witek, 61 F.3d 819 (11th Cir.), cert. denied, 516 U.S. 1060 (1996) (Mere buyer-seller relationship did not satisfy management requirement for conviction of engaging in continuing criminal enterprise). United States v. Polanco, 145 F.3d 536 (2nd Cir.), cert. denied, 119 S.Ct. 803 (1999) (Insufficient evidence that defendant murdered victim to maintain position in CCE). Richardson v. United States, 526 U.S. 813 (1999) (Jury must agree on specific violations). United States v. Glover, 179 F.3d 1300 (11th Cir. 1999) (Role as organizer or leader must be based on managing persons, not merely assets). United States v. McSwain, 197 F.3d 472 (10th Cir. 1999) (Conspiracy to manufacture and distribute are lesser offenses of CCE). Fraud / Theft United States v. Cannon, 41 F.3d 1462 (11th Cir.), cert. denied, 516 U.S. 823 (1995) (Proof of false documents to elicit payment on government contracts was insufficient when documents did not contain false information). *United States v. Manarite, 44 F.3d 1407 (9th Cir.), cert. denied, 516 U.S. 851 (1995) (Mailings were not related to scheme to defraud). United States v. Lluesma, 45 F.3d 408 (11th Cir. 1995) (Proof of conspiracy to export stolen vehicles was insufficient against defendant who did odd jobs for midlevel conspirator). United States v. Altman, 48 F.3d 96 (2nd Cir. 1995) (Mailings were too remote to be related to the fraud). United States v. Hammoude, 51 F.3d 288 (D.C. Cir.), cert. denied, 515 U.S. 1128 (1995) (A composite stamp did not make a visa a counterfeit document). United States v. Wilbur, 58 F.3d 1291 (8th Cir. 1995) (A physician who stole drugs did not obtain them by deception). United States v. Klingler, 61 F.3d 1234 (6th Cir. 1995) (A customs broker’s misappropriation of funds did not involve money of the United States). *United States v. Valentine, 63 F.3d 459 (6th Cir. 1995) (A government agent must convert more that $5000 in a single year to violate 18 U.S.C. §666). *United States v. Campbell, 64 F.3d 967 (5th Cir. 1995) (Bank officers did not cause a loss to the bank). United States v. Lewis, 67 F.3d 225 (9th Cir. 1995) (A state chartered foreign bank was not covered by the bank fraud statute). United States v. Mueller, 74 F.3d 1152 (11th Cir. 1996) (Filing a misleading affidavit to delay a civil proceeding involving a bank was not bank fraud). United States v. Morris, 81 F.3d 131 (11th 1996) (Sale of a phone that disguised its identity was not fraud in connection with an access device). United States v. Allen, 88 F.3d 765 (9th Cir.), cert. denied, 520 U.S. 1202 (1997) (The government failed to prove that a credit union was federally insured). United States v. Wester, 90 F.3d 592 (1st Cir. 1996) (A loan’s face value was not the proper amount of loss when collateral was pledged). United States v. McMinn, 103 F.3d 216 (1st Cir. 1997) (A defendant was not in the business of selling stolen goods unless he sold goods stolen by others). *United States v. Czubinski, 106 F.3d 1069 (1st Cir. 1997) (Merely browsing confidential computer files was not wire fraud or computer fraud). United States v. Tencer, 107 F.3d 1120 (5th Cir.), cert. denied, 522 U.S. 960 (1997) (Insurance checks that were not tied to fraudulent claims were insufficient proof of mail fraud). *United States v. Todd, 108 F.3d 1329 (11th Cir. 1997) (A defendant was improperly prohibited from introducing evidence that employees implicitly agreed that pension funds could be used to save the company). *United States v. Cochran, 109 F.3d 660 (10th Cir. 1997) (There was insufficient proof of mail fraud without evidence of misrepresentation). United States v. Parsons, 109 F.3d 1002 (4th Cir. 1997) (Money that defendant legitimately spent as postal employee could not be counted toward fraud). *United States v. Grossman, 117 F.3d 255 (5th Cir. 1997) (Personal use of funds from business loan was not bank fraud). *United States v. Cross, 128 F.3d 145 (3rd Cir.), cert, denied, 523 U.S. 1076 (1998) (Fixing cases was not mail fraud just because court mailed disposition notices). United States v. LaBarbara, 129 F.3d 81 (2nd Cir. 1997) (Government failed to show use of mails in a fraud case). *United States v. Adkinson, 135 F.3d 1363 (11th Cir. 1998) (Dismissal of underlying bank fraud undermined convictions for conspiracy, mail and wire fraud schemes, and money laundering). *United States v. Rodriguez, 140 F.3d 163 (2nd Cir. 1998) (Insufficient evidence of bank fraud). *United States v. Ely, 142 F.3d 1113 (9th Cir. 1997) (Government failed to prove defendant was a bank director as charged in the indictment). *United States v. D’Agostino, 145 F.3d 69 (2nd Cir. 1998) (Diverted funds were not taxable income for purposes of tax evasion). United States v. Schnitzer, 145 F.3d 721 (5th Cir. 1998) (Impermissible theory of fraud justified new trial). *United States v. Shotts, 145 F.3d 1289 (11th Cir.), cert. denied, 119 S.Ct. 1111 (1999) (Bail bond license was not property within meaning of mail fraud statute). United States v. Hughey, 147 F.3d 423 (5th Cir. 1998) (Passing bad checks was not unauthorized use of an access device). *United States v. Evans, 148 F.3d 477 (5th Cir. 1998) (No evidence that mailings advanced fraudulent scheme). United States v. Blasini-Lluberas, 169 F.3d 57 (1st Cir. 1999) (There was no misapplication of bank funds on a debt not yet due). United States v. Silkman, 156 F.3d 833 (8th Cir. 1999) (Administrative tax assessment is not conclusive proof of tax deficiency). United States v. Adkinson, 158 F.3d 1147 (11th Cir. 1999) (Insufficient evidence of fraud). United States v. Rodrigues, 159 F.3d 439 (9th Cir. 1999) (Insufficient evidence of fraud and theft). United States v. Hanson, 161 F.3d 896 (5th Cir. 1999) (Factual questions about bank fraud should have been decided by jury). United States v. Laljie, 184 F.3d 180 (2nd Cir. 1999) (No evidence that checks were altered, that signatures were not genuine, or that they were intended to victimize bank). United States v. Lindsay, 184 F.3d 1138 (10th Cir. 1999) (Insufficient evidence that bank was FDIC insured). United States v. Harstel, 199 F.3d 812 (6th Cir. 1999) (Receipt of mailed bank statements was not a fraudulent use of mails). United States v. Principe, 203 F.3d 849 (5th Cir. 2000) (Possession of counterfeit document should not have been sentenced under trafficking guidelines). United States v. Tucker, 217 F.3d 960 (8th Cir. 2000) (Loss to IRS occurred when taxes were due, not when conspiracy began). Money Laundering United States v. Newton, 44 F.3d 913 (11th Cir. 1995) (Proof of aiding and abetting money laundering conspiracy was insufficient against defendant who leased house on behalf of conspirator). *United States v. Rockelman, 49 F.3d 418 (8th Cir. 1995) (The evidence failed to show the transaction was intended to conceal illegal proceeds). *United States v. Hove, 52 F.3d 233 (9th Cir. 1995) (Failure to instruct the jury that the defendant must know his structuring was illegal, was plain error). United States v. Torres, 53 F.3d 1129 (10th Cir.), cert. denied, 516 U.S. 883 (1995) (Buying a car with drug proceeds was not money laundering). United States v. Willey, 57 F.3d 1374 (5th Cir.), cert. denied, 516 U.S. 1029 (1995) (Transferring money between accounts was insufficient evidence of an intent to conceal). *United States v. Wynn, 61 F.3d 921 (D.C. Cir.), cert. denied, 516 U.S. 1015 (1995) (There was insufficient evidence that the defendant knew his structuring was unlawful). United States v. Dobbs, 63 F.3d 391 (5th Cir. 1995) (Undisguised money used for family needs was not money laundering). United States v. Kim, 65 F.3d 123 (9th Cir. 1995) (To be guilty of conspiracy, the defendant must have known of the illegal structuring). United States v. Nelson, 66 F.3d 1036 (9th Cir. 1995) (The defendant’s eagerness to complete the transaction was not sufficient to prove an attempt). *United States v. Kramer, 73 F.3d 1067 (11th Cir.), cert. denied, 519 U.S. 1011 (1996) (A transaction that occurred outside of the United States was not money laundering). United States v. Phipps, 81 F.3d 1056 (11th Cir. 1996) (It was not money laundering to deposit a series of checks that are less than $10K each). United States v. Pipkin, 114 F.3d 528 (5th Cir.), cert. denied, 519 U.S. 821 (1996) (The defendant did not knowingly structure a currency transaction). *United States v. High, 117 F.3d 464 (11th Cir. 1997) (A money laundering instruction omitted the element of willfulness). United States v. Garza, 118 F.3d 278 (5th Cir. 1997) (Money laundering proof was insufficient where defendants neither handled nor disposed of drug proceeds). *United States v. Christo, 129 F.3d 578 (11th Cir. 1997) (A check kiting scheme was not money laundering). United States v. Shoff, 151 F.3d 889 (8th Cir. 1998) (Purchase with proceeds of fraud was not money laundering). United States v. Calderon, 169 F.3d 718 (11th Cir. 1999) (Insufficient evidence of money laundering). United States v. Zvi, 168 F.3d 49 (2nd Cir. 1999) (Charging domestic and international money laundering based on the same transactions was multiplicitous). United States v. Brown, 186 F.3d 661 (5th Cir. 1999) (Insufficient evidence of money laundering). United States v. Anderson, 189 F.3d 1201 (10th Cir. 1999) (Titling vehicle in mother’s name did not prove money laundering). United States v. Messner, 197 F.3d 330 (9th Cir. 1999) (1. Speedy Trial Act exclusion for arrest of co-defendant did not apply to unreasonably long delay; 2. Coded language did not support money laundering conviction). United States v. Miranda, 197 F.3d 1357 (11th Cir. 1999) (Ex post facto application of money laundering conspiracy statute). United States v. Olaniyi-Oke, 199 F.3d 767 (5thCir. 1999) (Purchase of computers for personal use was not money laundering).

Aiding and Abetting

United States v. de la Cruz-Paulino, 61 F.3d 986 (1st Cir. 1995) (Moving packages of contraband and statements about police was insufficient evidence). United States v. Luciano-Mosquero, 63 F.3d 1142 (1st. Cir.), cert. denied, 517 U.S. 1234 (1996) (There was no evidence that the defendant took steps to assist in the use of a firearm). *United States v. Fulbright, 105 F.3d 443 (9th Cir.), cert. denied, 520 U.S. 1236 (1997) (The government failed to prove anyone committed the principle crime with requisite intent). United States v. Beckner, 134 F.3d 714 (5th Cir. 1998) (Lawyer was not shown to have knowledge of client’s fraud for aiding and abetting). *United States v. Nelson, 137 F.3d 1094 (9th Cir.), cert. denied, 119 S.Ct. 231 (1999) (Evidence did not support aiding and abetting use and carrying of a firearm during crime of violence). United States v. Stewart, 145 F.3d 273 (5th Cir. 1998) (Insufficient evidence that passenger aided and abetted drug possession). United States v. Garcia-Guizar, 160 F.3d 511 (9th Cir. 1999) (Insufficient evidence of aiding and abetting). United States v. Wilson, 160 F.3d 732 (D.C. Cir.), cert. denied, 120 S.Ct. 81 (1999) (Insufficient evidence of aiding and abetting murder or retaliation). United States v. Barnett, 197 F.3d 138 (5thCir. 1999) (Insufficient evidence of conspiring or aiding and abetting murder for hire).

Perjury

United States v. Hairston, 46 F.3d 361 (4th Cir. 1995) (Ambiguity in the question to the defendant was insufficient for perjury conviction). United States v. Dean, 55 F.3d 640 (D.C. Cir.), cert. denied, 516 U.S. 1184 (1996) (A statement that was literally true did not support a perjury conviction). United States v. Jaramillo, 69 F.3d 388 (9th Cir. 1995) (A defendant charged with perjury by inconsistent statements must have made both under oath). United States v. Shotts, 145 F.3d 1289 (11th Cir. 1998) (Evasive, but true, answer was not perjury).

False Statements

United States v. Gaudin, 515 U.S. 506 (1995) (Materiality is an element of a false statement case). United States v. Bush, 58 F.3d 482 (9th Cir. 1995) (No material false statements or omissions were made to receive union funds). United States v. Rothhammer, 64 F.3d 554 (10th Cir. 1995) (A contractual promise to pay was not a factual assertion). United States v. Campbell, 64 F.3d 967 (5th Cir. 1995) (The defendant’s misrepresentations to a bank were not material). *United States v. McCormick, 72 F.3d 1404 (9th Cir. 1995) (A defendant who did not read documents before signing them was not guilty of making a false statement). United States v. Barrett, 111 F.3d 947 (D.C.), cert. denied, 522 U.S. 867 (1997) (A defendant’s misrepresentation to a court was not a material false statement). United States v. Farmer, 137 F.3d 1265 (10th Cir. 1998) (Answer to ambiguous question did not support conviction for false declaration). United States v. Hodge, 150 F.3d 1148 (9th Cir. 1998) (Insufficient evidence of false statements). United States v. Sorenson, 179 F.3d 823 (9th Cir. 1999) (Defendant’s false statements were contained in an unsigned loan application). United States v. Walker, 191 F.3d 326 (2ndCir. 1999) (Insufficient proof that defendant was responsible for more than 100 false immigration documents).

Contempt

United States v. Mathews, 49 F.3d 676 (11th Cir. 1995) (Certification of contempt must be filed by the judge who witnessed the alleged contempt). United States v. Forman, 71 F.3d 1214 (6th Cir. 1995) (An attorney was not in contempt for releasing grand jury materials in partner’s case). United States v. Brown, 72 F.3d 25 (5th Cir. 1995) (A lawyer’s comments on a judge’s trial performance were not reckless). United States v. Mottweiler, 82 F.3d 769 (7th Cir. 1996) (A defendant must have acted willfully to be guilty of criminal contempt). United States v. Grable, 98 F.3d 251 (6th Cir.), cert. denied, 519 U.S. 1059 (1997) (Contempt order could not stand in light of incorrect advice about fifth amendment privilege). Bingman v. Ward, 100 F.3d 653 (9th Cir.), cert. denied, 520 U.S. 1188 (1997) (Magistrate Judge did not have the authority to hold a litigant in criminal contempt). United States v. Neal, 101 F3d 993 (4th Cir. 1996) (It was plain error for a judge to prosecute and judge a contempt action). United States v. Vezina, 165 F.3d 176 (2nd Cir. 1999) (Insufficient evidence of criminal contempt of a TRO).

Miscellaneous Crimes

United States v. Rodriguez, 45 F.3d 302 (9th Cir. 1995) (Possessing an object designed to be used as a weapon, while in prison, was a specific intent crime). United States v. Gilbert, 47 F.3d 1116 (11th Cir.), cert. denied, 516 U.S. 851 (1995) (Proof of failure to comply with a directive of a federal officer was in variance with the original charge). United States v. Bahena-Cardenas, 70 F.3d 1071 (9th Cir. 1995) (Alien who was not served with warrant of deportation, was not guilty of illegal reentry). United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997) (Transmission of e-mail messages of torture, rape and murder did not fall within federal statute without public availability). United States v. Grigsby, 111 F.3d 806 (11th Cir. 1997) (Importation of prohibited wildlife products fell under exceptions to statute). United States v. Main, 113 F.3d 1046 (9th Cir. 1997) (In an involuntary manslaughter case, the harm must have been foreseeable within the risk created by the defendant). *United States v. Wicklund, 114 F.3d 151 (10th Cir. 1997) (A murder for hire required a receipt or promise of pecuniary value). United States v. Yoakum, 116 F.3d 1346 (10th Cir. 1997) (A defendant’s interest in a business, and his presence near time of fire, did not support arson conviction). United States v. Nyemaster, 116 F.3d 827 (9th Cir. 1997) (Insufficient evidence of being under the influence of alcohol in a federal park). United States v. Spruill, 118 F.3d 221 (4th Cir. 1997) (There was insufficient evidence that a threat would be carried out by fire or explosive under 18 U.S.C. §844 (e)). United States v. Cooper, 121 F.3d 130 (3rd Cir. 1997) (Evidence did not support conviction for tampering with a witness). *United States v. King, 122 F.3d 808 (9th Cir. 1997) (Crime of mailing threatening communication required a specific intent to threaten). United States v. Valenzeno, 123 F.3d 365 (6th Cir. 1997) (It did not violate the Federal Credit Reporting Act or the Consumer Credit Act by obtaining a credit report without permission). *United States v. Farrell, 126 F.3d 484 (3rd Cir. 1997) (Urging a witness to “take the fifth” was not witness tampering). United States v. Devenport, 131 F.3d 604 (7th Cir. 1997) (A violation of a state civil provision was not covered by Assimilative Crimes Act). United States v. Rapone, 131 F.3d 188 (D.C. Cir. 1997) (Evidence was insufficient to show retaliation). United States v. Sylve, 135 F.3d 680 (9th Cir. 1998) (Deferred prosecution was available for charge under Assimilative Crimes Act). United States v. Romano, 137 F.3d 677 (1st Cir. 1998) (Law prohibiting sale of illegally taken wildlife did not cover the act of securing guide services for hunting trip). *United States v. Cottman, 142 F.3d 160 (3rd Cir. 1998) (The government is not a victim under Victim Witness Protection Act). *United States v. Copeland, 143 F.3d 1439 (11th Cir. 1998) (Government contractor was not bribed under federal statute). United States v. To, 144 F.3d 737 (11th Cir. 1998) (Insufficient evidence of RICO and Hobbs Act violations). United States v. Walker, 149 F.3d 238 (3rd Cir. 1998) (Prison worker was not a corrections officer). United States v. Gallardo-Mendez, 150 F.3d 1240 (10th Cir. 1998) (Prior guilty plea did not prevent defendant from contesting noncitizen status). United States v. Estrada-Fernandez, 150 F.3d 491 (5th Cir. 1998) (Simple assault is lesser included offense of assault with deadly weapon). United States v. Garcia, 151 F.3d 1243 (9th Cir. 1998) (Gang relationship alone did not support conspiracy). United States v. Truesdale, 152 F.3d 443 (5th Cir. 1998) (Insufficient evidence of illegal gambling). United States v. Guerrero, 169 F.3d 933 (5th Cir. 1999) (Inconclusive identification did not support bank robbery conviction). United States v. Vaghela, 169 F.3d 729 (11th Cir. 1999) (Insufficient evidence of conspiracy to obstruct justice). Jones v. United States, 526 U.S. 227 (1999) (Jury must decide whether carjacking resulted in serious bodily injury or death). *United States v. Hilton, 167 F.3d 61 (1st Cir.), cert. denied, 120 S.Ct. 115 (1999) (Whether defendant believed pornographic actors were over 18 years old is a jury question). United States v. Causey, 185 F.3d 407 (5th Cir. 1999) (1. No federal nexus shown regarding communication; 2. Recommendations did not support death sentences). United States v. Davis, 183 F.3d 231 (3rd Cir. 1999) amended 197 F.3d 662 (same). (Insufficient evidence of obstruction of justice and conspiracy). United States v. Waites, 198 F.3d 1123 (9th Cir. 2000) (Conduct that was regulated federally should not have been prosecuted under Assimilative Crimes Act). United States v. McKelvey, 203 F.3d 66 (1st Cir. 2000) (A single film strip with three images was not “3 or more matters” under child porn statute). United States v. Bad Wound, 203 F.3d 1072 (8thCir. 2000) (Defendant not liable for acts of coconspirators prior to entering conspiracy).

United States v. Wood, 207 F.3d 1222 (10th Cir. 2000) (Doctor’s injection of drug to treat patient did not prove premeditated murder) United States v. Naiman, 211 F.3d 40 (2nd Cir. 2000) (Receipt of the funds is a jurisdictional element of commercial bribery). United States v. Hood, 210 F.3d 660 (6th Cir. 2000) (Assault without verbal threat was minor rather than aggravated). United States v. Pacheco-Medina, 212 F.3d 1162 (9th Cir. 2000) (Defendant who was captured a few yards from border did not enter United States). United States v. Giles, 213 F.3d 1247 (10thCir. 2000) (Counterfeit labels were not goods within meaning of statute).

Juveniles

United States v. Juvenile Male #1, 47 F.3d 68 (2nd Cir. 1995) (A court properly refused transfer of a juvenile for adult proceedings). United States v. Juvenile Male PWM, 121 F.3d 382 (8th Cir. 1997) (1. Court imposed sentence beyond comparable guideline for adults; 2. Court considered pending unadjudicated charges). Impounded Juvenile I.H., Jr., 120 F.3d 457 (3rd Cir. 1997) (Failure to provide juvenile records barred transfer to adult status). United States v. Male Juvenile, 148 F.3d 468 (5th Cir. 1998) (Certification for juvenile by AUSA was invalid). United States v. Juvenile LWO, 160 F.3d 1179 (8th Cir. 1999) (Judge may not consider unadjudicated incidents at juvenile transfer hearing in assessing nature of charges or prior record). Sentencing – General United States v. Rivera, 58 F.3d 600 (11th Cir. 1995) (Defendant was sentenced on the wrong count). *United States v. Knowles, 66 F.3d 1146 (11th Cir.), cert. denied, 516 U.S. 1149 (There was no proof the conspiracy extended to the date when guidelines became effective). *Page v. United States, 69 F.3d 482 (11th Cir. 1995) (The court failed to require the parties to state objections at the sentencing hearing). *United States v. Petty, 80 F.3d 1384 (9th Cir. 1996) (The record should have shown that the defendant read the presentence report and supplements). United States v. Torres, 81 F.3d 900 (9th Cir. 1996) (A disparity in coconspirators’ sentences was not justified, due to inconsistent factual findings). United States v. Burke, 80 F.3d 314 (8th Cir. 1996) (A presentence report could not be used as evidence when the defendant disputed the facts therein). *United States v. Ivy, 83 F.3d 1266 (10th Cir.), cert. denied, 519 U.S. 901 (1996) (The government’s failure to object to a presentence report waived its complaint). *United States v. Graham, 83 F.3d 1466 (D.C.Cir.), cert. denied, 519 U.S. 1132 (1997) (Adoption of the presentence report is not the same as express findings). United States v. Versaglio, 85 F.3d 943 (2nd Cir.), modified, 96 F.3d 637 (1996) (A criminal contempt offense cannot be punished by both fine and incarceration). United States v. Moskovits, 86 F.3d 1303 (3d Cir.), cert. denied, 519 U.S. 1120 (1997) (A court improperly considered a defendant’s decision to go to trial rather than accept a plea offer). United States v. Tabares, 86 F.3d 326 (3rd Cir. 1996) (Erroneous information did not justify a sentence at the top of the range). United States v. Farnsworth, 92 F.3d 1001 (10th Cir.), cert. denied, 117 S.Ct. 596 (1996) (Adoption of the presentence report does not resolve disputed matters). United States v. Dieguimde, 119 F.3d 933 (11th Cir. 1997) (Order of deportation did not consider defendant’s request for political asylum). *United States v. Romero, 122 F.3d 1334 (10th Cir. 1997) (A court may not resolve factual disputes by merely adopting the presentence report). United States v. Ross, 131 F.3d 970 (11th Cir. 1997) (When a defendant is convicted of a conspiracy count with multiple objects, the court must find beyond a reasonable doubt that a particular object was proven before applying that guideline section). United States v. Renteria, 138 F.3d 1328 (10th Cir. 1998) (Lying at suppression hearing invoked accessory after fact guideline not perjury). United States v. Washington, 146 F.3d 219 (4th Cir. 1998) (Court should not have relied upon statements made pursuant to plea agreement). *United States v. Myers, 150 F.3d 459 (5th Cir. 1998) (Defendant denied right of allocution). United States v. Davenport, 151 F.3d 1325 (11th Cir. 1998) (Defendant did not waive right to review presentence report by absconding). United States v. Glover, 154 F.3d 1291 (11th Cir. 1998) (Time credited toward a sentence does not lengthen total sentence). United States v. Navarro, 169 F.3d 228 (5th Cir. 1999) (Cannot have sentencing via video conference over defendant’s objection). United States v. Casey, 158 F.3d 993 (8th Cir. 1999) (Court must use guideline of charged offense). United States v. Partlow, 159 F.3d 1218 (9th Cir. 1999) (Specific offense characteristics must be applied in the order listed). United States v. Weaver, 161 F.3d 528 (8th Cir. 1999) (Typo on PSR recommending wrong base level was plain error). United States v. Allard, 164 F.3d 1146 (8th Cir. 1999) (Offense characteristic for one offense could not be used for another). United States v. Robinson, 164 F.3d 1068 (7th Cir. 1999) (Hearsay statements used at sentencing were unreliable). United States v. Mueller, 168 F.3d 186 (5th Cir. 1999) (Failure to disclose addendum to presentence report). United States v. Jones, 168 F.3d 1217 (10th Cir. 1999) (If the court allows an oral objection at sentencing then a finding on that objection must be made). United States v. Mitchell, 187 F.3d 331 (3rd Cir. 1999) (Court may not draw adverse inference from silence at sentencing). United States v. Swiney, 203 F.3d 397 (6th Cir. 2000) (Application of mandatory minimum is controlled by guidelines definition of relevant conduct, not Pinkerton doctrine). *United States v. Kent, 209 F.3d 1073 (8thCir. 2000) (Sentence with mental health counseling was improper when there was no history of mental condition).

Grouping

United States v. DiDomenico, 78 F.3d 294 (7th Cir.), cert. denied, 519 U.S. 1006 (1996) (Unconvicted, unstipulated crimes could not be used to determine a combined offense level under §3D1.4). *United States v. Wilson, 98 F.3d 281 (7th Cir. 1996) (Money laundering and mail fraud should have been grouped together). *United States v. Haltom, 113 F.3d 43 (5th Cir. 1997) (Mail fraud and tax fraud counts should have been grouped). *United States v. Emerson, 128 F.3d 557 (7th Cir. 1997) (Money laundering and mail fraud should have been grouped). United States v. Kennedy, 133 F.3d 53 (D.C. Cir. 1998) (Court cannot refuse to group counts in order to give defendant a higher sentence). United States v. Marmolejos, 140 F.3d 488 (3rd Cir. 1998) (Clarifying amendment to guideline section justified post-sentence relief). *United States v. Thomas, 155 F.3d 833 (7th Cir.), cert. denied, 119 S.Ct. 606 (1998) (Court failed to group counts). *United States v. Martinez-Martinez, 156 F.3d 936 (9th Cir. 1999) (Reduction for non-drug conspiracy was mandated when object crime was not substantially complete). United States v. Levario-Quiroz, 161 F.3d 903 (5th Cir. 1999) (Offenses outside United States were not relevant conduct).

Consecutive/ Concurrent

United States v. Greer, 91 F.3d 996 (7th Cir. 1996) (Sentences at two proceedings on the same day were at the same time for guideline calculations). *United States v. Fuentes, 107 F.3d 1515 (11th Cir. 1997) ( A federal sentence which calculates a state sentence into the base offense level must be concurrent to the state sentence). *United States v. Corona, 108 F.3d 565 (5th Cir. 1997) (Duplicitous sentences were not purely concurrent where each received a separate special assessment). United States v. Kikuyama, 109 F.3d 536 (9th Cir. 1997) (Court cannot rely on need for mental health treatment in fashioning a consecutive sentence). *United States v. Nash, 115 F.3d 1431 (9th Cir.), cert. denied, 522 U.S. 1117 (1998) (Multiplicious counts must be sentenced concurrently and may not receive separate special assessments). *United States v. Mendez, 117 F.3d 480 (11th Cir. 1997) (Simultaneous acts of possessing stolen mail and assaulting a mail carrier with intent to steal mail, could not receive cumulative punishments). *McCarthy v. Doe, 146 F.3d 118 (2nd Cir. 1998) (BOP could designate state institution in order to implement presumptively concurrent sentence). *United States v. Quintero, 157 F.3d 1038 (6th Cir. 1999) (Federal sentence could not be imposed consecutively to not yet imposed state sentence). United States v. Dorsey, 166 F.3d 558 (3rd Cir. 1999) (A court has authority to reduce a sentence in order to make it effectively concurrent to a previously imposed state sentence).

Retroactivity

*United States v. Vazquez, 53 F.3d 1216 (11th Cir. 1995) (Case remanded to determine retroactive effect of favorable guideline, that became effective after sentencing). *United States v. Felix, 87 F.3d 1057 (9th Cir. 1996) (An amendment to the guidelines, which required a sentence based on a lower, negotiated quantity of drugs, was retroactive). United States v. Etherton, 101 F.3d 80 (9th Cir. 1996) (A retroactive amendment could be used to reduce supervised release). *United States v. Ortland, 109 F.3d 539 (9th Cir.), cert. denied, 522 U.S. 851 (1997) (Since mail fraud is not a continuing offense, an act committed after the date of an increase to guidelines did not require all counts to receive increased guidelines). United States v. Zagari, 111 F.3d 307 (2nd Cir. 1997) ( Use of guidelines effective after conduct violated Ex Post Facto Clause). United States v. Armistead, 114 F.3d 504 (5th Cir.), cert. denied, 522 U.S. 922 (1997) (There was an ex post facto application of a guideline provision). *United States v. Aguilar-Ayala, 120 F.3d 176 (9th Cir. 1997) (Defendant was entitled to sentence reduction to mandatory minimum because of retroactive guideline amendment, regardless of whether safety valve applied). United States v. Bowen, 127 F.3d 9 (1st Cir. 1997) (Amendment defining hashish oil was applied ex post facto). *United States v. Mussari, 152 F.3d 1156 (9th Cir. 1998) (Ex post facto application of criminal penalties). United States v. Comstock, 154 F.3d 845 (8th Cir. 1998) (Using guideline effective after commission of offense violated ex post facto.

Sentencing – Drug Quantities

United States v. Lawrence, 47 F.3d 1559 (11th Cir. 1995) (Insufficient findings to support drug quantities). *United States v. Hansley, 54 F.3d 709 (11th Cir.), cert. denied, 516 U.S. 998 (1995) (Individual findings were needed to hold defendant responsible for all drugs in conspiracy). United States v. Reese, 67 F.3d 902 (11th Cir.), cert. denied, 517 U.S. 1228 (1996) (Drugs were not reasonably foreseeable to the defendant, nor within scope of agreed joint criminal activity). United States v. Lee, 68 F.3d 1267 (11th Cir. 1995) (There were inadequate findings to support drug quantities. Crack abusers’ credibility was questioned). United States v. Levay, 76 F.3d 671 (5th Cir. 1996) (A defendant could challenge drug quantity calculations, based upon excludable material, by §2255 petition. United States v. Berrio, 77 F.3d 206 (7th Cir. 1996) (A government agent’s sale of drugs to an informant could not be counted as the defendant’s relevant conduct). United States v. Hill, 79 F.3d 1477 (6th Cir.), cert.denied, 519 U.S. 858 (1996) (Different transactions almost two years apart, with the sole similarity being the type of drug, were not relevant conduct). *United States v. Howard, 80 F.3d 1194 (7th Cir. 1996) (The district court could not rely upon the probation officer’s estimates of drug quantities without corroborating evidence). United States v. Hamilton, 81 F.3d 652 (6th Cir. 1996) (To be culpable for manufacturing a quantity of drugs, the defendant must have been personally able to make that quantity). United States v. Graham, 83 F.3d 1466 (D.C. Cir.), cert. denied, 519 U.S. 1132 (1997) (The court failed to make individualized findings of drug quantities). United States v. Byrne, 83 F.3d 984 (8th Cir. 1996) (Drugs seized after the defendant was in custody could not be counted toward sentence). United States v. Acosta, 85 F.3d 275 (7th Cir. 1996) (The drug quantity finding was insufficient). United States v. Caldwell, 88 F.3d 522 (8th Cir.), cert. denied, 519 U.S. 1048 (1996) (Extrapolation of drug quantities was error). United States v. Frazier, 89 F.3d 1501 (11th Cir.), cert.denied, 520 U.S. 1222 (1997) (Sentencing findings did not support drug quantities attributed to the defendant). *United States v. Tucker, 90 F.3d 1135 (6th Cir. 1996) (A court did not make individualized findings as to each defendant in a drug conspiracy). United States v. Nesbitt, 90 F.3d 164 (6th Cir. 1996) (A court failed to resolve whether amounts of drugs were attributable during the time of the conspiracy). United States v. Hernandez-Santiago, 92 F.3d 97 (2nd Cir. 1996) (A court failed to make a finding as to the scope of the defendant’s agreement). *United States v. Copus, 93 F.3d 269 (7th Cir. 1996) (The court’s estimate of drug quantity lacked a sufficient indicia of reliability). United States v. Gutierrez-Hernandez, 94 F.3d 582 (9th Cir. 1996) (There was no presumption that three drug manufacturers were equally culpable). *United States v. Chalarca, 95 F.3d 239 (2nd Cir. 1996) (When negotiated drug amount was not foreseeable, the court should use the lowest possible quantity). *United States v. Jinadu, 98 F.3d 239 (6th Cir.), cert. denied, 520 U.S. 1179 (1997) (Court could not rely on drug quantities alleged in indictment to determine a mandatory minimum). United States v. Agis-Meza, 99 F.3d 1052 (11th Cir. 1996) (Extrapolation of drug amounts was not a sufficient basis for findings). United States v. Randolph, 101 F.3d 607 (8th Cir. 1996) (The trial court inadequately explained its drug quantity findings). *United States v. Shonubi, 103 F.3d 1085 (2nd Cir. 1997) (Multiplying quantity of seized drugs by number of previous trips was an inadequate measure). In Re Sealed Case, 108 F.3d 372 (D.C. Cir. 1997) (A court failed to make findings attributing all drugs to the defendant). *United States v. Milledge, 109 F.3d 312 (6th Cir. 1997) (Evidence did not justify drug quantity finding). United States v. Rodriguez, 112 F.3d 374 (8th Cir. 1997) (Insufficient evidence of drug quantities). United States v. Jackson, 115 F.3d 843 (11th Cir. 1997) (Package containing 1% cocaine and 99% sugar was not a mixture under the guidelines). *United States v. Granados, 117 F.3d 1089 (8th Cir. 1997) (The court failed to make specific drug quantity findings). *United States v. Patel, 131 F.3d 1195 (7th Cir. 1997) (Evidence was insufficient that seized money could support cocaine quantities). United States v. Whitecotton, 142 F.3d 1194 (9th Cir. 1998) (Later drug sales were not foreseeable to defendant). United States v. Perulena, 146 F.3d 1332 (11th Cir. 1998) (Defendant was not responsible for marijuana imported before he joined conspiracy). *United States v. Wyss, 147 F.3d 631 (7th Cir. 1998) (Drugs for personal use could not be counted toward distribution quantity). United States v. Bacallao, 149 F.3d 717 (7th Cir. 1998) (No showing prior cocaine transactions were relevant conduct). United States v. Gore, 154 F.3d 34 (2nd Cir. 1998) (Possession and distribution of the same drugs may only be punished once). United States v. Brown, 156 F.3d 813 (8th Cir. 1999) (Court should have only based sentence on drug quantity proven by government). United States v. Marrero-Ortiz, 160 F.3d 768 (1st Cir. 1999) (Insufficient evidence of drug quantity). United States v. Garrett, 161 F.3d 1131 (8th Cir. 1999) (Insufficient evidence of drug quantity). United States v. Flowal, 163 F.3d 956 (6th Cir.), cert. denied, 119 S.Ct. 1509 (1999) (Drug quantity was arbitrarily chosen). United States v. Gomez, 164 F.3d 1354 (11th Cir. 1999) (Unrelated drug sales were not relevant conduct to conspiracy). United States v. Asch, 207 F.3d 1238 (10th Cir. 2000) (Drugs for personal use could not be used to calculate range for distribution). United States v. Moore, 212 F.3d 441 (8th Cir. 441 (8thCir. 2000) (Defendant’s responsibility for drugs limited to jointly undertaken activity).

Sentencing – Marijuana

*United States v. Foree, 43 F.3d 1572 (11th Cir. 1995) (Seedlings and cuttings do not count as marijuana plants). United States v. Smith, 51 F.3d 980 (11th Cir. 1995) (Weight of wet marijuana was improperly counted). *United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996) (Counting seedlings as marijuana plants to calculate the base offense level was plain error). United States v. Agis-Meza, 99 F.3d 1052 (11th Cir. 1996) (The court had an insufficient basis to calculate a quantity of marijuana based upon cash and money wrappers seized). *United States v. Carter, 110 F.3d 759 (11th Cir. 1997) (The court abused its discretion in denying a motion for a reduction of a sentence over weight of wet marijuana). *United States v. Mankiewicz, 122 F.3d 399 (7th Cir. 1997) (Marijuana that was rejected by defendants should not have been counted).

Sentencing – Meth.

*United States v. Ramsdale, 61 F.3d 825 (11th Cir. 1995) (Improperly sentenced for D-methamphetamine rather than “L”). United States v. McMullen, 86 F.3d 135 (8th Cir. 1996) (A judge could not determine the type of methamphetamine based upon the judge’s experience, the price, or where the drugs came from). United States v. Cole, 125 F.3d 654 (8th Cir. 1997) (A defendant’s testimony about his ability to manufacture was relevant). United States v. O’Bryant, 136 F.3d 980 (5th Cir. 1998) (Government has burden of proving more serious form of methamphetamine).

Sentencing – Crack

United States v. Chisholm, 73 F.3d 304 (11th Cir. 1996) (There was no factual basis that the defendant knew powder would be converted to crack). *United States v. James, 78 F.3d 851 (3rd Cir.), cert. denied, 519 U.S. 844 (1996) (There was not proof that the cocaine base was crack for enhanced penalties to apply).

Sentencing – Firearms

United States v. Bernardine, 73 F.3d 1078 (11th Cir. 1996) (The government failed to prove the defendant was a marijuana user, and thus he was not a prohibited person under U.S.S.G. §2K2.1 (a) (6)). United States v. Mendoza-Alvarez, 79 F.3d 96 (8th Cir. 1996) (Simply carrying a firearm in one’s car was not otherwise unlawful use). United States v. Roxborough, 94 F.3d 213 (6th Cir.), amended, 99 F.3d 212 (1996) (Obliterating serial numbers on a firearm was not be relevant conduct to justify an increase). WITHDRAWN FROM BOUND VOLUME *United States v. Barton, 100 F.3d 43 (6th Cir. 1996) (Enhancement under §2K2.1(a) (1) relating to prior convictions covered only those before the instant offense). United States v. Moit, 100 F.3d 605 (8th Cir. 1996) (Possession of shotguns and hunting rifles qualified for “sporting or collection” reduction). *United States v. Willis, 106 F.3d 966 (11th Cir. 1997) (A defendant who previously pleaded nolo contendere in a Florida state court was not convicted for purposes of being a felon in possession of a firearm). *United States v. Cooper, 111 F.3d 845 (11th Cir. 1997) (Firearm that was not possessed at the site of drug offense did not justify 2-level enhancement). *United States v. Knobloch, 131 F.3d 366 (3rd Cir. 1997) (Court could not impose an increase for a firearm when there was a consecutive gun count). United States v. McDonald, 165 F.3d 1032 (6th Cir. 1999) (Felon who stole firearm was not using it in connection with another felony). United States v. Ahmad, 202 F.3d 588 (2nd Cir. 2000) (Firearms that were not prohibited cannot be counted toward specific offense characteristic). United States v. Hill, 210 F.3d 881 (8th Cir. 2000) (Defendant who had already pled guilty was not “under indictment” when he received firearm). United States v. Pena-Lora, 225 F.3d 17 (1stCir. 2000) (Identity was not proven to award enhancement).

Sentencing – Money Laundering

United States v. Jenkins, 58 F.3d 611 (11th Cir. 1995) (“Rule of lenity” precluded counting money laundering transactions under $10,000). *United States v. Allen, 76 F.3d 1348 (5th Cir.), cert. denied, 519 U.S. 841 (1996) (Money laundering guidelines should have been based on the amount of money laundered, not the loss in a related fraud). United States v. Gabel, 85 F.3d 1217 (7th Cir. 1996) (Robberies and burglaries were not relevant conduct in a money laundering case). United States v. Morales, 108 F.3d 1213 (10th Cir. 1997) (Drug mandatory minimum did not apply to money laundering offense).

Sentencing – Pornography

United States v. Cole, 61 F.3d 24 (11th Cir.), cert. denied, 516 U.S. 1163 (1996) (Insufficient evidence of child pornography depicting minors under twelve). *United States v. Ketcham, 80 F.3d 789 (3rd Cir. 1996) (Enhancement for exploitation of a minor was reversed in a child pornography case for insufficient evidence). *United States v. Surratt, 87 F.3d 814 (6th Cir. 1996) (Defendant’s sexual abuse, unrelated to receiving child pornography did not prove a pattern of activity to increase the offense level). *United States v. Kemmish, 120 F.3d 937 (9th Cir.), cert. denied, 522 U.S. 1132 (1998) (The defendant did not engage in a pattern of exploitation). United States v. Fowler, 216 F.3d 459 (5thCir. 2000) (Child porn was distributed under statute, but not for guideline enhancement).

Sentencing – Fraud / Theft

*United States v. Maurello, 76 F.3d 1304 (3rd Cir. 1996) (Loss to a fraud victim was mitigated by the value received by the defendant’s actions). *United States v. Millar, 79 F.3d 338 (2nd Cir. 1996) (Adjustment for affecting a financial institution was limited to money received by the defendant). United States v. Eyoum, 84 F.3d 1004 (7th Cir.), cert. denied, 519 U.S. 941 (1996) (The fair market value, rather than the smuggler’s price, should have been used to calculate the value of illegally smuggled wildlife). United States v. Strevel, 85 F.3d 501 (11th Cir. 1996) (In determining the amount of loss, the court could not rely solely on stipulated amounts). United States v. King, 87 F.3d 1255 (11th Cir. 1996) (Without proof the defendant committed the burglary, other stolen items, not found in his possession, could not be calculated toward loss). United States v. Sung, 87 F.3d 194 (7th Cir. 1996) (Findings did not establish reasonable certainty that the defendant intended to sell the base level quantity of counterfeit goods). United States v. Allen, 88 F.3d 765 (9th Cir.), cert. denied, 520 U.S. 1202 (1997) (Collateral recovered to secure a loan, and the interest paid, was not subtracted from loss in a fraud case). United States v. Cowart, 90 F.3d 154 (6th Cir. 1996) (A common modus operandi alone, did not make robberies part of a common scheme). United States v. Krenning, 93 F.3d 1257 (4th Cir. 1996) (The value of rented assets bore no reasonable relationship to the victim’s loss). United States v. Comer, 93 F.3d 1271 (6th Cir. 1996) (An acquitted theft was not sufficiently proven to include in loss calculations). United States v. Coffman, 94 F.3d 330 (7th Cir.), cert. denied, 520 U.S. 1165 (1997) (A previous fraud using the same worthless stock was not relevant conduct). United States v. Olbres, 99 F.3d 28 (1st Cir. 1996) (Adoption of PSI was not a finding of tax loss). United States v. Peterson, 101 F.3d 375 (5th Cir.), cert. denied, 520 U.S. 1161 (Violation of fiduciary duty was not necessarily criminal conduct for application of relevant conduct). *United States v. Kohli, 110 F.3d 1475 (9th Cir. 1997) (There was insufficient evidence of the quantity of fraud attributed). *United States v. Sepulveda, 115 F.3d 882 (11th Cir. 1997) (Evidence did not support the alleged volume of unauthorized calls). *United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997) (That the defendant’s business was “permeated with fraud” was too indefinite a finding). United States v. Arnous, 122 F.3d 321 (6th Cir. 1997) (Food stamp fraud should have been valued by lost profits, not the face value of the stamps). United States v. Sublett, 124 F.3d 693 (5th Cir. 1997) (Loss during contract fraud did not include legitimate services actually provided). *United States v. McIntosh, 124 F.3d 1330 (10th Cir. 1997) (Failure to disclose his interest in a residence that the defendant did not own was not bankruptcy fraud). United States v. Barnes, 125 F.3d 1287 (9th Cir. 1997) (Services that were satisfactorily performed should have been subtracted from loss). United States v. Monus 128 F.3d 376 (6th Cir. 1997) (A court did not adequately explain loss findings). United States v. Cain, 128 F.3d 1249 (8th Cir. 1997) (Sales made before defendant was hired were not relevant conduct toward fraud). *United States v. Word, 129 F.3d 1209 (11th Cir. 1997) (Fraud, before defendant joined conspiracy, was not relevant conduct). United States v. Melton, 131 F.3d 1400 (10th Cir. 1997) (Unforeseeable acts of fraud could not be attributed to defendant). United States v. Desantis, 134 F.3d 760 (6th Cir. 1998) (Neither defendant’s business failure, nor state administrative findings, were relevant to fraud case). *United States v. Cihak, 137 F.3d 252 (5th Cir.), cert. denied, 119 S.Ct. 118 (1998) (Fraud of coconspirators must be foreseeable to defendant to be relevant conduct). United States v. Tatum, 138 F.3d 1344 (11th Cir. 1998) (Application note governing fraudulent contract procurement should have been applied rather than theft guideline). United States v. Phath, 144 F.3d 146 (1st Cir. 1998) (Depositing counterfeit checks and withdrawing money did not require more than minimal planning). United States v. Sapoznik, 161 F.3d 1117 (7th Cir. 1999) (Calculation of benefits from bribes did not support findings). United States v. Ponec, 163 F.3d 486 (8th Cir. 1999) (No showing that money withdrawn from defendant’s account came from employer).

Enhancements- General

United States v. Tapia, 59 F.3d 1137 (11th Cir.), cert. denied, 516 U.S. 953 (1995) (Using phone to call codefendant was not more than minimal planning). *United States v. Miller, 77 F.3d 71 (4th Cir. 1996) (Enhancement for manufacturing counterfeit notes did not apply to those so obviously counterfeit that they are unlikely to be accepted). United States v. Torres, 81 F.3d 900 (9th Cir. 1996) (The government must prove sentencing enhancements by a preponderance of evidence). United States v. Tavares, 93 F.3d 10 (1st Cir.), cert. denied, 519 U.S. 955 (1996) (A finding that an aggravated assault occurred was inconsistent with a finding of no serious bodily injury). United States v. Kraig, 99 F.3d 1361 (6th Cir. 1996) (There was insufficient evidence that the defendant employed sophisticated means). United States v. Brazel, 102 F.3d 1120 (11th Cir.), cert. denied, 522 U.S. 822 (1997) (A sentence could not be enhanced with convictions that were not final). *United States v. Carrozzella, 105 F.3d 796 (2nd Cir. 1997) (An enhancement for violation of a judicial order did not apply to every perceived abuse of judicial process). United States v. Eshkol, 108 F.3d 1025 (9th Cir.), cert. denied, 522 U.S. 841 (1997) (Only existing counterfeit bills could be counted toward upward adjustment). *United States v. DeMartino, 112 F.3d 75 (2nd Cir. 1997) (Court was without authority to increase a sentence that was not mere clerical error). *United States v. Shadduck, 112 F.3d 523 (1st Cir. 1997) (There was no proof that a defendant violated a judicial order during a course of fraud). United States v. Zelaya, 114 F.3d 869 (9th Cir. 1997) (An express threat of death was not foreseeable to the accomplice-defendant). *United States v. Calozza, 125 F.3d 687 (9th Cir. 1997) (Identical enhancements for separately grouped counts was double-counting). United States v. Rogers, 126 F.3d 655 (5th Cir. 1997) (An attempted drug crime did not support career offender enhancement). *United States v. Barakat, 130 F.3d 1448 (11th Cir. 1997) (Enhancement for sophisticated means could not be based on acquitted conduct). United States v. Mezas De Jesus, 217 F.3d 638 (9th Cir. 2000) (Kidnaping, used to enhance sentence, needed to be proven by clear and convincing evidence). Enhancements- Drug Crimes United States v. Ruiz-Castro, 92 F.3d 1519 (10th Cir. 1996) (A court failed to inquire whether the defendant had notice of the government’s intent to seek an enhanced sentence with a prior drug conviction). *United States v. Ekinci, 101 F.3d 838 (2nd Cir. 1996) (Unlawful dispensing of drugs by a doctor was not subject to an enhancement for proximity to a school). United States v. Mikell, 102 F.3d 470 (11th Cir.), cert. denied, 520 U.S. 1181 (1997) (A defendant who was subject to an enhanced sentence under 21 U.S.C. §841, could collaterally attack a prior conviction). United States v. Chandler, 125 F.3d 892 (5th Cir. 1997) (Enhancement for drug sale near school only applies when it is charged by indictment). United States v. Hudson, 129 F.3d 994 (8th Cir. 1997) (A firearm enhancement was not proven). United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998) (Court must hold a hearing if defendant challenges validity of a prior drug conviction used for statutory enhancement). United States v. Saavedra, 148 F.3d 1311 (11th Cir. 1998) (Defendant could not receive increase for selling drugs near school unless so charged). United States v. Hass, 150 F.3d 443 (5th Cir. 1998) (Nonfinal state conviction could not be basis for statutory enhancement of drug sentence). United States v. Schmalzried, 152 F.3d 354 (5th Cir. 1998) (Government failed to connect firearm to drug offense). United States v. Rettelle, 165 F.3d 489 (6th Cir. 1999) (Mandatory minimum controlled by drugs associated with conviction only). United States v. Hands, 184 F.3d 1322 (11th Cir. 1999) (Domestic abuse was irrelevant to drug conspiracy). United States v. Crawford, 185 F.3d 1024 (9th Cir. 1999) (Proximity to school must be charged in order for enhancement to apply). United States v. Garrett, 189 F.3d 610 (7th Cir. 1999) (Guilty plea colloquy was not admission to crack, as opposed to powder, for sentencing purposes). United States v. Chastain, 198 F.3d 1338 (11th Cir. 1999) (Improper enhancement for use of private plane in drug case). United States v. Takahashi, 205 F.3d 1161 (9th Cir. 2000) (Enhancement for drug crime in protected area must be pleaded and proven before a finding of guilt). United States v. Smith, 210 F.3d 760 (7th Cir. 2000) (Tossing drugs out window during chase was not reckless endangerment). United States v. Szakacs, 212 F.3d 344 (7thCir. 2000) (Possession of firearm had no connection to drugs).

Enhancements- Violence

United States v. Murray, 82 F.3d 361 (10th Cir. 1996) (In an assault case, an enhancement for discharging a firearm did not apply to shots fired after the assault). United States v. Rivera, 83 F.3d 542 (1st Cir. 1996) (There was insufficient evidence that a rape involved serious bodily injury). *United States v. Alexander, 88 F.3d 427 (6th Cir. 1996) (A note indicating the presence of a bomb, and a request to cooperate to prevent harm, during a bank robbery, was not an express threat of death). United States v. Shenberg, 89 F.3d 1461 (11th Cir.), cert. denied, 519 U.S. 1117 (1997) (More than minimal planning increase did not apply to plan to assault a fictitious informant). United States v. Triplett, 104 F.3d 1074 (8th Cir.), cert. denied, 520 U.S. 1236 (1997) (A threat of death adjustment was double counting in 18 U.S.C. §924 (c) case). United States v. Reyes-Oseguera, 106 F.3d 1481 (9th Cir. 1997) (Flight on foot was insufficient for reckless endangerment enhancement). United States v. Dodson, 109 F.3d 486 (8th Cir. 1997) (There lacked proof of bodily injury for enhancement). United States v. Sawyer, 115 F.3d 857 (11th Cir. 1997) (Enhancement for bodily injury was not supported by alleged psychological injury). United States v. Drapeau, 121 F.3d 344 (8th Cir. 1997) (Enhancement for assaulting a government official applicable only when official is victim of the offense). United States v. Sovie, 122 F.3d 122 (2nd Cir. 1997) (Evidence to support enhancement for intending to carry out threat was insufficient). United States v. Bourne, 130 F.3d 1444 (11th Cir. 1997) (Applying both brandishing weapon and threat of death enhancements was double counting). *United States v. Hayes, 135 F.3d 435 (6th Cir. 1998) (Enhancements for reckless endangerment, and assault, during flight, were double counting). United States v. Tolen, 143 F.3d 1121 (8th Cir. 1998) (Putting hand in pocket and warning to cooperate or “no one will get hurt” was not express threat of death). United States v. Kushmaul, 147 F.3d 498 (6th Cir. 1998) (Holding baseball bat was not”otherwise used”). *United States v. Thomas, 155 F.3d 833 (7th Cir. 1999) (Intent to carry out threat could not be proven by criminal history). United States v. Smith, 156 F.3d 1046 (10th Cir. 1999) (Insufficient evidence of actual or threatened force or violence). United States v. Richardson, 161 F.3d 728 (D.C. Cir. 1999) (Burglary not shown to be crime of violence). *United States v. Anglin, 169 F.3d 154 (2nd Cir. 1999) (Bank tellers were not physically restrained). United States v. Leahy, 169 F.3d 433 (7th Cir. 1999) (Departure of 10 levels for analogous terrorism enhancement was unreasonable). United States v. Zendeli, 180 F.3d 879 (7th Cir. 1999) (Enhancement for injury does not apply to codefendant’s injury). United States v. Charles, 209 F.3d 1088 (8th Cir. 2000) (Two convictions, sentenced simultaneously, should only count as one prior crime of violence). United States v. Brock, 211 F.3d 88 (4th Cir. 2000) (Enhancement for multiple threats was incompatible with base level for no threats). Castillo v. United States, 120 S.Ct. 2090 (2000) (In order to get aggravated sentence for carrying a firearm during crime of violence, use of a machinegun must be proven as element of offense). Watterson v. United States, 219 F.3d 232 (3rd Cir. 2000) (No enhancement for drugs in proximity to school unless charged under that statute). United States v. Rebmann, 226 F. 3d 521 (6thCir. 2000) (Elements of death or serious bodily injury must be proven beyond a reasonable doubt in drug case).

Enhancements- Immigration

*United States v. Fuentes-Barahona, 111 F.3d 651 (9th Cir. 1997) (Conviction occurring before effective date of guideline amendment could not be considered as aggravated felony). United States v. Herrerra-Solorzano, 114 F.3d 48 (5th Cir. 1997) (A prior probated felony was not an aggravated felony in an illegal reentry case). United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. 1997) (A prior conviction for being an alien in unlawful possession of a firearm was not an aggravated felony). *United States v. Viramontes-Alvarado, 149 F.3d 912 (9th Cir.), cert. denied, 119 S.Ct. 434 (1998) (Noncitizen’s priors were not aggravated felonies). United States v. Avilia-Ramirez, 170 F.3d 277 (2nd Cir. 1999) (Defendant’s prior aggravated felony was not a listed offense at the time of his reentry).

United States v. Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000) (Theft was not aggravated felony at time of deportation and reentry).

Career Enhancements

*United States v. Murphy, 107 F.3d 1199 (6th Cir. 1997) (Two prior robberies were a single episode under Armed Career Criminal Act). United States v. Bennett, 108 F.3d 1315 (10th Cir. 1997) (There was no proof that a prior burglary involved a dwelling or physical force under career offender provisions). United States v. Hicks, 122 F.3d 12 (7th Cir. 1997) (Burglary of a building was not a crime of violence for career offender enhancement). *United States v. Covington, 133 F.3d 639 (8th Cir. 1998) (Evidence did not show imprisonment within last 15 years on predicate offense used for career offender enhancement). United States v. Gottlieb, 140 F.3d 865 (10th Cir. 1998) (Defendant established that no firearm or dangerous weapon was used in prior conviction defeating Three Strikes enhancement). United States v. Dahler, 143 F.3d 1084 (7th Cir. 1998) (Defendant whose rights were restored was not armed career criminal). United States v. McElyea, 158 F.3d 1016 (9th Cir. 1999) (Crimes of a single transaction may not be counted separately under Armed Career Criminal Act). *United States v. Thomas, 159 F.3d 296 (7th Cir.), cert. denied, 119 S.Ct. 2370 (1999) (Statutory rape without violence was not predicate crime under Armed Career Criminal Act). United States v. Richardson, 166 F.3d 1360 (11th Cir. 1999) (Prior conviction under Armed Career Criminal Act must occur before felon in possession violation). United States v. Wilson, 168 F.3d 916 (6th Cir. 1999) (Burglary of a building is not a career offender predicate unless it involves physical force, or its threat or attempt). United States v. Sacko, 178 F.3d 1 (1st Cir. 1999) (Court could not look at facts of prior conviction to determine whether it was a violent felony). United States v. Casarez-Bravo, 181 F.3d 1074 (9th Cir. 1999) (Prior conviction not counted under criminal history cannot be used as career offender predicate). United States v. Martin, 215 F.3d 470 (4th Cir. 2000) (Bank larceny is not a crime of violence). United States v. Matthews, 226 F.3d 1075 (9thCir. 2000) (No records supporting prior convictions for Armed Career Criminal).

Cross References

United States v. Lagasse, 87 F.3d 18 (1st Cir. 1996) (There was no link between a knife-point robbery of a coconspirator, and the charged drug conspiracy, to justify an increase in sentence). *United States v. Aderholt, 87 F.3d 740 (5th Cir. 1996) (Murder guidelines were improperly applied in a mail fraud conspiracy because murder was not an object of the conspiracy). United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997) (Transportation of a child, not involving prostitution or production of a visual depiction, required cross reference to lower base level for sexual contact). *United States v. Jackson, 117 F.3d 533 (11th Cir. 1997) (A police officer convicted of theft should not have been sentenced under civil rights guidelines). United States v. Cross, 121 F.3d 234 (6th Cir. 1997) (Torture was not relevant conduct in a drug case). *United States v. Sanders, 162 F.3d 396 (6th Cir. 1999) (Possibility that defendant could have been charged with state burglary did not mean firearm was used in connection with another offense).

Abuse of Trust

United States v. Jolly, 102 F.3d 46 (2nd Cir. 1996) (Corporate principal could not get abuse of trust enhancement for defrauding lenders). United States v. Long, 122 F.3d 1360 (11th Cir. 1997) (Abuse of trust enhancement did not apply to prison employee who brought in contraband). *United States v. Garrison, 133 F.3d 831 (11th Cir. 1998) (Owner of a health care provider did not occupy position of trust with Medicare). United States v. Burt, 134 F.3d 997 (10th Cir. 1998) (Deputy sheriff’s drug dealing did not merit abuse of trust or special skills enhancements). United States v. Reccko, 151 F.3d 29 (1st Cir. 1998) (Police switchboard operator did not occupy position of trust). *United States v. Wadena, 152 F.3d 831 (8th Cir.), cert. denied, 119 S.Ct. 1355 (1999) (Money laundering, unrelated to defendant’s position, did not warrant abuse of trust). United States v. Holt, 170 F.3d 698 (7th Cir. 1999) (Part-time police officer did not justify abuse of trust enhancement). United States v. Guidry, 199 F.3d 1150 (10th Cir. 1999) (Defendant must have relationship of trust with victim for abuse of trust to apply). United States v. Tribble, 206 F.3d 634 (6th Cir. 2000) (Postal window clerk did not hold position of trust). United States v. Ward, 222 F.3d 909 (11thCir. 2000) (Bank guard did not occupy position of trust).

Obstruction of Justice

United States v. Williams, 79 F.3d 334 (2nd Cir. 1996) (In order to justify an obstruction of justice enhancement, the court had to find the defendant knowingly made a false statement under oath). *United States v. Strang, 80 F.3d 1214 (7th Cir. 1996) (Perjury in another case did not warrant an obstruction of justice enhancement in the instant case). United States v. Medina-Estrada, 81 F.3d 981 (10th Cir. 1996) (A court must have found all elements of perjury are proven to give enhancement for obstruction of justice). United States v. Hernandez, 83 F.3d 582 (2nd Cir. 1996) (Staring at a witness and calling them “the devil,” did not justify enhancement for intimidation). United States v. Sisti, 91 F.3d 305 (2nd Cir. 1996) (Obstruction of justice was only proper for conduct related to the conviction). United States v. Ruggiero, 100 F.3d 284 (2nd Cir. 1996) ( A judge properly refused to apply an obstruction of justice enhancement). *United States v. Draves, 103 F.3d 1328 (7th Cir.), cert. denied, 521 U.S. 1127 (1997) (Fleeing from a police car was not obstruction of justice). United States v. Harris, 104 F.3d 1465 (5th Cir.), cert. denied, 522 U.S. 833 (1997) (Actions of accessory after the fact did not justify obstruction enhancement when those same acts supported the substantive offense). United States v. Zagari, 111 F.3d 307 (2nd Cir. 1997) (There was no finding to support obstruction enhancement). United States v. Tackett, 113 F.3d 603 (6th Cir. 1997) (The court failed to find that government resources were wasted for obstruction enhancement). United States v. Sawyer, 115 F.3d 857 (11th Cir. 1997) (Sentencing increase for reckless endangerment only applied to defendant fleeing law enforcement officer, not civilians). United States v. Sassanelli, 118 F.3d 495 (6th Cir. 1997) (Obstruction findings did not specify which statements were materially untruthful). United States v. Solono-Godines, 120 F.3d 957 (9th Cir. 1997) (A misrepresentation by the defendant did not obstruct justice). United States v. Webster, 125 F.3d 1024 (7th Cir. 1997) (A finding that the defendant testified falsely lacked specificity). United States v. Senn, 129 F.3d 886 (7th Cir. 1997) (Lying about minor details to grand jury was not obstruction). United States v. Norman, 129 F.3d 1393 (10th Cir. 1997) (Concealing drugs at scene of crime was not obstruction). United States v. McRae, 156 F.3d 708 (6th Cir. 1999) (Insufficient findings of obstruction of justice). United States v. Jones, 159 F.3d 969 (6th Cir. 1999) (Irrelevant false testimony did not support obstruction of justice). United States v. Koeberlein, 161 F.3d 946 (6th Cir. 1999) (Failure to appear on unrelated offense was not obstruction). United States v. Monzon-Valenzuela, 186 F.3d 1181 (9th Cir. 1999) (Absent perjury finding, adjustment for obstruction did not apply). United States v. Gage, 183 F.3d 711 (7th Cir. 1999) (Defendant’s denial that his robbery note mentioned a firearm did not justify obstruction adjustment). United States v. Amsden, 213 F.3d 1014 (8thCir. 2000) (Defendant convicted of threatening communications did not obstruct justice by sending additional threatening letter).

Vulnerable Victim

*United States v. Castellanos, 81 F.3d 108 (9th Cir. 1996) (Merely because a fraud scheme used Spanish language media, did not justify an enhancement for victims particularly susceptible to fraud). *United States v. Stover, 93 F.3d 1379 (8th Cir. 1996) (Persons’ desire to adopt children did not make them vulnerable victims of an adoption agency). United States v. Shumway, 112 F.3d 1413 (10th Cir. 1997) (Prehistoric skeletal remains were not vulnerable victims). *United States v. Robinson, 119 F.3d 1205 (5th Cir.), cert. denied, 522 U.S. 1139 (1998) (Asian-American merchants were not vulnerable victims). United States v. Hogan, 121 F.3d 370 (8th Cir. 1997) (Victims must have been targeted in order to be considered vulnerable). United States v. Monostra, 125 F.3d 183 (3rd Cir. 1997) (A victim’s vulnerability must facilitate the crime in some manner). United States v. McCall, 174 F.3d 47 (2nd Cir. 1999) (Vulnerable victim enhancement is not a relative standard). United States v. Pospisil, 186 F.3d 1023 (8thCir. 1999) (No evidence that defendant knew victims were vulnerable).

Aggravating Role

United States v. Ivy, 83 F.3d 1266 (10th Cir.), cert. denied, 519 U.S. 901 (1996) (There were insufficient findings for a managerial role). United States v. Lozano-Hernandez, 89 F.3d 785 (11th Cir. 1996) (Leadership role in drug conspiracy was not proven). United States v. Patasnik, 89 F.3d 63 (2nd Cir. 1996) (A management role had to be based on managing people, not assets). United States v. Wester, 90 F.3d 592 (1st Cir. 1996) (The court failed to make findings there were five or more participants). United States v. Miller, 91 F.3d 1160 (8th Cir. 1996) (The lack of evidence that the defendant controlled others precluded a leadership role). *United States v. Albers, 93 F.3d 1469 (10th Cir. 1996) (A leadership role had to be based upon leadership, and not the defendant’s importance to the success of the conspiracy). United States v. Delpit, 94 F.3d 1134 (8th Cir. 1996) (A murder-for-hire scheme had less than five participants). United States v. Avila, 95 F.3d 887 (9th Cir. 1996) (A defendant who was the sole contact between a buyer and a seller was not an organizer). United States v. Jobe, 101 F.3d 1046 (5th Cir.), cert. denied, 118 S.Ct. 81 (1997) (Defendant’s position as bank director did not justify managerial role when he did not manage or supervise others). United States v. DeGovanni, 104 F.3d 43 (3rd Cir. 1997) (A corrupt police sergeant was not a supervisor merely because of his rank). United States v. Eidson, 108 F.3d 1336 (11th Cir.), cert. denied, 118 S.Ct. 248 (1997) (Clean Water Act violation lacked five participants for role adjustment). United States v. Gort-Didonato, 109 F.3d 318 (6th Cir. 1997) (To impose an upward role adjustment, the defendant must have supervised at least one person). United States v. Bryson, 110 F.3d 575 (8th Cir. 1997) (Facts did not support upward adjustment for role). United States v. Logan, 121 F.3d 1172 (8th Cir. 1997) (Record did not support upward role adjustment). United States v. Makiewicz, 122 F.3d 399 (7th Cir. 1997) (Defendant was not a leader for asking his father to accompany informant to motel). United States v. Del Toro-Aguilar, 138 F.3d 340 (8th Cir. 1998) (Occasionally fronting drugs to coconspirators did not justify upward role adjustment). United States v. Alred, 144 F.3d 1405 (11th Cir. 1998) (Defendant was not an organizer). United States v. Lopez-Sandoval, 146 F.3d 712 (9th Cir. 1998) (Defendant was not an organizer). *United States v. Glinton, 154 F.3d 1245 (11th Cir.), cert. denied, 119 S.Ct. 1281 (No managerial role for defendant who did not supervise or control others). United States v. Walker, 160 F.3d 1078 (6th Cir. 1999) (Insufficient evidence of organizer role). United States v. Graham, 162 F.3d 1180 (D.C. Cir. 1999) (Conclusionary statement that defendant was lieutenant did not justify role adjustment). United States v. Tank, 200 F.3d 627 (9thCir. 2000) (Insufficient evidence of defendant’s leadership role). Mitigating Role United States v. Moeller, 80 F.3d 1053 (5th Cir. 1996) (No leadership role for a government official who inherited an historically corrupt system, but the defendant’s lack of understanding of the entire scheme justified a minimal role adjustment). *United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996) (There was an insufficient basis to deny a minor role reduction). *United States v. Haut, 107 F.3d 213 (3rd Cir.), cert. denied, 521 U.S. 1127 (1997) (Arson defendants who worked at direction of others were minimal participants). *United States v. Snoddy, 139 F.3d 1224 (8th Cir. 1998) (Sole charged defendant may receive minor role when justified by relevant conduct). United States v. Neils, 156 F.3d 382 (2nd Cir. 1999) (Defendant who merely steered buyers was minor participant).

Acceptance of Responsibility

United States v. Fells, 78 F.3d 168 (5th Cir.), cert. denied, 519 U.S. 847 (1996) (A defendant making a statutory challenge, could still qualify for acceptance of responsibility). United States v. Patino-Cardenas, 85 F.3d 1133 (5th Cir. 1996) (There was no basis to deny credit when the defendant did not falsely deny relevant conduct). United States v. Garrett, 90 F.3d 210 (7th Cir. 1996) (A defendant could not be denied acceptance when he filed an uncounseled, pro se motion to withdraw plea after his attorney died). United States v. Flores, 93 F.3d 587 (9th Cir. 1996) (A defendant should have received credit for his written statement). *United States v. Atlas, 94 F.3d 447 (8th Cir.), cert. denied, 520 U.S. 1130 (1997) (A defendant who timely accepted responsibility must be given the additional one-level downward adjustment). United States v. Ruggiero, 100 F.3d 284 (2nd Cir. 1996) (A single false denial did not bar credit for acceptance of responsibility). United States v. McPhee, 108 F.3d 287 (11th Cir. 1997) (A defendant who qualified should not have been given less than the full three-point reduction for accepting responsibility). *United States v. Guerrero-Cortez, 110 F.3d 647 (8th Cir.), cert. denied, 522 U.S. 1017 (1998) (Defendant’s pretrial statements of acceptance justified reduction though case was tried). United States v. Marroquin, 136 F.3d 220 (1st Cir. 1998) (Creation of a lab report was not the type of trial preparation to deny extra point off for accepting responsibility). United States v. Fisher, 137 F.3d 1158 (9th Cir. 1998) (Despite not guilty plea, admission in open court could be acceptance). United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998) (Defendant who does not contest facts at trial may be eligible for acceptance). United States v. Ellis, 168 F.3d 558 (1st Cir. 1999) (Defendant who went to trial was still potentially eligible for acceptance of responsibility). United States v. Rice, 184 F.3d 740 (8thCir. 1999) (Defendant was entitled to full three-level reduction for acceptance).

United States v. Corona-Garcia, 210 F.3d 973 (9thCir. 2000) (Even after trial, defendant could receive full credit for acceptance when he confessed fully and immediately upon arrest).

Safety Valve

*United States v. Shrestha, 86 F.3d 935 (9th Cir. 1996) (Eligibility for the safety valve did not depend on acceptance of responsibility). United States v. Flanagan, 87 F.3d 121 (5th Cir. 1996) (On remand, the sentencing court could withdraw a leadership role so the defendant could qualify for safety valve). *United States v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996) (To be eligible for safety valve, a defendant did not need to give information to a specific agent). United States v. Beltran-Ortiz, 91 F.3d 665 (4th Cir. 1996) (Failure to debrief the defendant, thus preventing him from benefitting from the safety valve, violated the plea agreement). United States v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996) (The government had to rebut the defendant’s version in order to deny safety valve). United States v. Sherpa, 97 F.3d 1239 (9th Cir.), amended, 110 F.3d 656 (1997) (Even a defendant who claimed innocence was eligible if he meets requirements). United States v. Wilson, 105 F.3d 219 (5th Cir.), cert. denied, 522 U.S. 847 (1997) (A coconspirator’s use of a firearm did not bar application of the safety valve). United States v. Osei, 107 F.3d 101 (2nd Cir. 1997) (Two-level safety valve adjustment applied regardless of mandatory minimum). *United States v. Clark, 110 F.3d 15 (6th Cir. 1997) (Safety Valve applied to cases that were on appeal at effective date). United States v. Mertilus, 111 F.3d 870 (11th Cir. 1997) (Safety valve applied to a telephone count). *United States v. Mihm, 134 F.3d 1353 (8th Cir. 1998) (Court failed to consider safety valve at resentencing). United States v. Carpenter, 142 F.3d 333 (6th Cir. 1998) (Refusal to testify did not bar safety valve). United States v. Gama-Bastidas, 142 F.3d 1233 (10th Cir. 1998) (Court failed to make findings regarding applicability of safety valve). *United States v. Kang, 143 F.3d 379 (8th Cir. 1998) (Defendant could not be denied safety valve because government claimed he was untruthful absent supporting evidence). United States v. Clavijo, 165 F.3d 1341 (11th Cir. 1999) (Unforeseen possession of firearm by coconspirator does not bar safety valve relief). United States v. Ortiz-Santiago, 211 F.3d 146 (1stCir. 2000) (Plea agreement prohibiting further adjustments did not preclude safety valve).

Criminal History

*United States v. Spell, 44 F.3d 936 (11th Cir. 1995) (Judgement could be the only conclusive proof of prior convictions). *United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996) (Under the Armed Career Criminal Act guidelines, “felon in possession” was not a crime of violence). United States v. Douglas, 81 F.3d 324 (2nd Cir.), cert. denied, 517 U.S. 1251 (1996) (A juvenile sentence, more than five years old, was incorrectly applied). United States v. Cox, 83 F.3d 336 (10th Cir. 1996) (It was proper to attack a guidelines sentence by a §2255 petition when prior convictions, used in the criminal history calculation, were later successfully attacked). *United States v. Sparks, 87 F.3d 276 (9th Cir. 1996) (An attempted home invasion was not a violent felony under the Armed Career Criminal Act). United States v. Parks, 89 F.3d 570 (9th Cir. 1996) (No criminal history points could be attributed to a defendant when indigence prevented payment of fines). United States v. Flores, 93 F.3d 587 (9th Cir. 1996) (The court erroneously twice counted a single probation revocation to increase two prior convictions). United States v. Ortega, 94 F.3d 764 (2nd Cir. 1996) (An uncounseled misdemeanor was improperly counted). United States v. Easterly, 95 F.3d 535 (7th Cir. 1996) (Fish and game violation should not have been counted). *United States v. Pettiford, 101 F.3d 199 (1st Cir. 1996) (A prisoner could file a §2255 petition to attack a federal sentence based on state convictions that were later overturned). *United States v. Gilcrist, 106 F.3d 297 (9th Cir. 1997) (Sentence, upon which parole began over 15 years ago, could not be counted toward criminal history). United States v. Huskey, 137 F.3d 283 (5th Cir. 1998) (Prior convictions in same information were related cases for counting criminal history). United States v. Walker, 142 F.3d 103 (2nd Cir. 1998) (Prior convictions for offenses that were calculated into offense level should not have received criminal history points). United States v. Hernandez, 145 F.3d 1433 (11th Cir. 1998) (Arrest warrant did not determine nature of prior conviction). United States v. Torres, 182 F.2d 1156 (10th Cir. 1999) (Prior convictions that are relevant conduct may not be counted toward criminal history). United States v. Thomas, 211 F.3d 316 (6th Cir. 2000) (Two prior rapes were a single transaction). United States v. Arnold, 213 F.3d 894 (5th Cir. 2000) (Sentence of less than a year and a day must be imposed within ten years of offense to count toward criminal history). United States v. Stuckey, 220 F.3d 976 (8thCir. 2000) (Military prior was not serious drug offense).

Upward Departures

United States v. Thomas, 62 F.3d 1332 (11th Cir.), cert. denied, 516 U.S. 1166 (1996) (Consequential damages did not justify an upward departure unless it was substantially in excess of typical fraud case). *United States v. Henderson, 75 F.3d 614 (11th Cir. 1996) (An upward departure for multiple weapons in a drug case was improper when the defendant was also convicted under 18 U.S.C. §924 (c)). United States v. Blackwell, 81 F.3d 945 (10th Cir. 1996) (Rule 35 does not give a court jurisdiction to increase a sentence later). United States v. Harrington, 82 F.3d 83 (5th Cir. 1996) (A court should not have upwardly departed for a defendant’s status as an attorney without first considering application of abuse of trust). *United States v. Sherwood, 98 F.3d 402 (9th Cir. 1996) (Just because victims were almost vulnerable, did not justify an upward departure). United States v. LeCompte, 99 F.3d 274 (8th Cir. 1996) (Defendant did not get notice of departure, and justification was based on an amendment after offense). *United States v. Valentine, 100 F.3d 1209 (6th Cir. 1996) (The difference between seven and five offenses did not justify multiple count departure). United States v. Mangone, 105 F.3d 29 (1st Cir.), cert. denied, 510 U.S. 1258 (1997) (Failure to give notice of upward departure was plain error). *United States v. Otis, 107 F.3d 487 (7th Cir. 1997) (Failure to give notice of an upward departure was plain error). United States v. Arce, 118 F.3d 335 (5th Cir. 1997) (Manufacturing firearms was not a basis for upward departure). United States v. White, 118 F.3d 739 (11th Cir. 1997) (The Sentencing Commission’s “undervaluation” of a guideline range was not a ground for upward departure). United States v. DePace, 120 F.3d 233 (11th Cir. 1997) (An upward departure was without notice). United States v. Johnson, 121 F.3d 1141 (8th Cir. 1997) (Defendant did not get notice of upward departure). United States v. Stein, 127 F.3d 777 (9th Cir. 1997) (Upward departure based on more than minimal planning and multiple victims was unwarranted). United States v. Corrigan, 128 F.3d 330 (6th Cir. 1997) (Neither, number of victims, number of schemes, nor amount of loss, supported upward departure). United States v. Candelario-Cajero, 134 F.3d 1246 (5th Cir. 1998) (Absent an upward departure, grouped counts cannot receive consecutive sentences). United States v. Terry, 142 F.3d 702 (4th Cir. 1998) (Extent of upward departure was not supported by findings). *United States v. Hinojosa-Gonzales, 142 F.3d 1122 (9th Cir.), cert. denied, 119 S.Ct. 576 (1999) (Defendant did not get adequate notice of upward departure). *United States v. G.L., 143 F.3d 1249 (9th Cir. 1998) (Lenient theft guidelines did not justify upward departure). *United States v. Almaguer, 146 F.3d 474 (7th Cir. 1998) (Use of firearm was included in guideline and did not justify upward departure). United States v. Nagra, 147 F.3d 875 (9th Cir. 1998) (Upward departure based upon factor considered by guidelines was double counting). *United States v. Van Metre, 150 F.3d 339 (4th Cir. 1998) (Commentary Note on grouping did not provide basis for upward departure). United States v. Johnson, 152 F.3d 553 (6th Cir. 1998) (Arson was within heartland of cases and did not justify upward departure). United States v. Lawrence, 161 F.3d 250 (4th Cir. 1999) (Must specify findings to depart up for under-representation of criminal history). United States v. Whiteskunk, 162 F.3d 1244 (10th Cir. 1999) (Upward departure must include some method of analogy, extrapolation, or reference to the guidelines). *United States v. Jacobs, 167 F.3d 792 (3rd Cir. 1999) (Court did not adequately explain upward departure for psychological injury).

Downward Departures

United States v. Rodriguez, 64 F.3d 638 (11th Cir. 1995) (A downward departure was allowed to give credit for acceptance of responsibility on consecutive sentences). *United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996) (A downward departure for aberrant behavior should not have been denied without examining the totality of the circumstances). *United States v. Workman, 80 F.3d 688 (2nd Cir.), cert. denied, 519 U.S. 938 (1996) (A downward departure was permissible for prearrest rehabilitation). Koon v. United States, 518 U.S. 81 (1996) (A district court could depart from the guidelines if (1) the reason was not specifically prohibited by the guidelines; (2) the reason was discouraged by the guidelines but exceptional circumstances apply; or (3) the reason was neither prohibited nor discouraged, and the reason was not previously addressed by the applicable guideline provisions in that case). United States v. Conway, 81 F.3d 15 (1st Cir. 1996) (A court could not refuse a downward departure based upon information received as part of a cooperation agreement). United States v. Lindia, 82 F.3d 1154 (1st Cir. 1996) (A court could depart downward from the career offender guidelines). United States v. Graham, 83 F.3d 1466 (10th Cir.), cert. denied, 519 U.S. 1132 (1997) (Extreme vulnerability to abuse in prison could justify a downward departure). *United States v. Walters, 87 F.3d 663 (5th Cir.), cert. denied, 519 U.S. 1000 (1996) (A downward departure was approved for a defendant who did not personally benefit from money laundering). *United States v. Cubillos, 91 F.3d 1342 (9th Cir. 1996) (A basis for downward departure could no longer be categorically rejected after Koon). *United States v. Jaroszenko, 92 F.3d 486 (7th Cir. 1996) (Remorse could be considered as a ground for downward departure). United States v. Sanders, 97 F.3d 856 (6th Cir. 1996) (Downward departure was available for an Armed Career Criminal). United States v. Olbres, 99 F.3d 28 (1st Cir. 1996) (A court could grant departure for effect on innocent employees of the defendant). United States v. Etherton, 101 F.3d 80 (9th Cir. 1996) (The court had authority to reduce the sentence after a revocation of supervised release when the guidelines were later amended to provide for a lower range). United States v. Williams, 103 F.3d 57 (8th Cir. 1996) (The court could reduce a sentence for a retroactive amendment even after a reduction under Rule 35). United States v. Lopez, 106 F.3d 309 (9th Cir. 1997) (Prosecutors’ violation of ethical rule in meeting with an indicted defendant justified a downward departure). *United States v. Brock, 108 F.3d 31 (4th Cir. 1997) (Rehabilitation was a proper basis for downward departure). United States v. Wallace, 114 F.3d 652 (7th Cir. 1997) (A court should not have limited a downward departure just because the defendant already received credit for accepting responsibility). United States v. Alvarez, 115 F.3d 839 (11th Cir. 1997) (A 5K1.1 motion rewards assistance prior to sentencing, while a Rule 35 (b) motion rewards assistance after sentencing. Forcing a defendant to choose when the government would seek a reduction was error). *United States v. McBroom, 124 F.3d 533 (3rd Cir. 1997) (Reduced mental capacity was a basis for downward departure in a child porn case). *United States v. Core, 125 F.3d 74 (2nd Cir.), cert. denied, 522 U.S. 1067 (1999) (Postconviction rehabilitation could justify sentence reduction). *United States v. Rounsavall, 128 F.3d 665 (8th Cir. 1997) (Defendant was entitled to an evidentiary hearing to determine if the government’s failure to move for a reduced sentence was irrational, in bad faith, or unconstitutionally motivated). United States v. Clark, 128 F.3d 122 (2nd Cir. 1997) (Downward departure for a lesser harm was available in a felon in possession case). United States v. O’Hagan, 139 F.3d 641 (8th Cir. 1998) (A court could depart downward to credit time served on an expired state sentence for the same conduct). United States v. Kaye, 140 F.3d 86 (2nd Cir. 1998) (Court can depart downward based on assistance to state law enforcement without motion by government). United States v. Campo, 140 F.3d 415 (2nd Cir. 1998) (Judge could not refuse to depart solely because he did not like USA’s policy about not recommending a specific sentence). United States v. Whitecotton, 142 F.3d 1194 (9th Cir. 1998) (Court could depart based on entrapment and diminished capacity). United States v. Faulks, 143 F.3d 133 (3rd Cir. 1998) (Agreement not to contest forfeitures may be basis for downward departure). United States v. Crouse, 145 F.3d 786 (6th Cir. 1998) (Civic involvement justified downward departure). *United States v. Rhodes, 145 F.3d 1375 (D.C. Cir. 1998) (Post-conviction rehabilitation can justify downward departure). United States v. Whitaker, 152 F.3d 1238 (10th Cir. 1998) (Post-offense drug rehabilitation can justify downward departure). United States v. Stockheimer, 157 F.3d 1082 (2nd Cir. 1999) (Refusing to consider downward departure based on economic reality of intended loss was plain error). United States v. Fagan, 162 F.3d 1280 (10th Cir. 1999) (Court can depart downward for exceptional remorse). United States v. Jones, 160 F.3d 473 (8th Cir. 1999) (Government actions prejudicing defendant can justify downward departure). United States v. Martinez-Ramos, 184 F.3d 1055 (9thCir. 1999) (Court had authority to depart downward to remedy sentencing disparity).

United States v. Coleman, 188 F.3d 354 (6th Cir. 1999) (Court must look at case as a whole to see if factors take case out of “heartland” for downward departure).

United States v. Rodriguez-Lopez, 198 F.3d 773 (9th Cir. 1999) (Government need not consent to departure for stipulated deportation). United States v. Wells, 211 F.3d 988 (6th Cir. 2000) (Plea agreement required only full cooperation, not substantial assistance). Fines / Restitution *United States v. Remillong, 55 F.3d 572 (11th Cir. 1995) (Restitution order reversed for a defendant with no ability to pay and no future prospects). United States v. Ledesma, 60 F.3d 750 (11th Cir. 1995) (Restitution order could only be applied to charges of conviction). *United States v. Mullens, 65 F.3d 1560 (11th Cir.), cert. denied, 517 U.S. 1112 (1996) (Record lacked findings to support restitution). United States v. Maurello, 76 F.3d 1304 (3rd Cir. 1996) (The court had to make findings in support of a restitution order). United States v. Reed, 80 F.3d 1419 (9th Cir.), cert. denied, 519 U.S. 882 (1996) (Restitution order had to be limited to conduct of conviction). United States v. Blake, 81 F.3d 498 (4th Cir. 1996) (Restitution could only be based on the loss directly related to the offense, and the court had to make findings that the defendant can pay that amount without undue hardship). United States v. Giwah, 84 F.3d 109 (2nd Cir. 1996) (A restitution order failed to indicate that all statutory factors were considered). United States v. Sharma, 85 F.3d 363 (8th Cir. 1996) (No reason was given for an upward departure on a fine). United States v. Hines, 88 F.3d 661 (8th Cir. 1996) (In assessing fine and restitution, the court should have considered the defendant’s familial obligations of his recent marriage). *United States v. Upton, 91 F.3d 677 (5th Cir.), cert. denied, 520 U.S. 1228 (1997) (No restitution was available to victims not named in the indictment). United States v. Sablan, 92 F.3d 865 (9th Cir. 1996) (Consequential expenses could not be included in a restitution order). United States v. Jaroszenko, 92 F.3d 486 (7th Cir. 1996) (The court failed to fully consider the defendant’s ability to pay restitution). United States v. Santos, 93 F.3d 761 (11th Cir.), cert. denied, 520 U.S. 1170 (1997) (A defendant could not be ordered to pay restitution for money taken in a robbery for which he was not convicted). *United States v. Sanders, 95 F.3d 449 (6th Cir. 1996) (A court was not required to order restitution). *United States v. Monem, 104 F.3d 905 (7th Cir. 1997) (A court did not make sufficient factual findings to justify the fine of a defendant who claimed inability to pay). *United States v. McMillan, 106 F.3d 322 (10th Cir. 1997) (A court could reduce a fine pursuant to Rule 35 (b)). United States v. Messner, 107 F.3d 1448 (10th Cir. 1997) (Restitution had to be based on actual loss). United States v. McArthur, 108 F.3d 1350 (11th Cir. 1997) (A defendant could not be ordered to pay restitution for acquitted conduct). United States v. Eidson, 108 F.3d 1336 (11th Cir.), cert. denied, 522 U.S. 899 (1997) (Facts did not support restitution order). United States v. Hodges, 110 F.3d 250 (5th Cir. 1997) (1. Fine was not justified for a defendant with a negative net worth; 2.Lack of Specific findings about ability to pay). United States v. Khawaja, 118 F.3d 1454 (11th Cir. 1997) (The government was not a victim for purposes of awarding restitution). *United States v. Gottesman, 122 F.3d 150 (11th Cir. 1997) (A defendant’s promise to pay back-taxes did not authorize court-ordered restitution). *United States v. Baggett, 125 F.3d 1319 (9th Cir. 1997) (Restitution must be based upon a specific statute). United States v. Mayer, 130 F.3d 338 (8th Cir. 1997) (Restitution should not have been higher than the loss stipulated in the plea agreement). United States v. Drinkwine, 133 F.3d 203 (2nd Cir. 1998) (Insufficient evidence that defendant could pay a fine). United States v. Menza, 137 F.3d 533 (7th Cir. 1998) (Defendant did not have to pay restitution for amount greater than losses). United States v. Riley, 143 F.3d 1289 (9th Cir. 1998) (Defendant could not be ordered to pay restitution on loan unrelated to fraud). United States v. Stoddard, 150 F.3d 1140 (9th Cir. 1998) (Restitution could not exceed actual loss). *United States v. Siegel, 153 F.3d 1256 (11th Cir. 1998) (Court must consider defendant’s ability to pay restitution). United States v. Dunigan, 163 F.3d 979 (6th Cir. 1999) (Court did not adequately consider defendant’s ability to pay restitution). United States v. Brierton, 165 F.3d 1133 (7th Cir. 1999) (Restitution can only be based on loss from charged offense). United States v. Merric, 166 F.3d 406 (1st Cir. 1999) (Court could not delegate scheduling of installment payments to probation officer’s discretion). United States v. Johnston, 199 F.3d 1015 (9th Cir. 1999) (Forfeited money should have been subtracted from restitution). United States v. Prather, 205 F.3d 1265 (11th Cir. 2000) (Amount of special assessment governed by date of offense). United States v. Beckett, 208 F.3d 140 (3rdCir. 2000) (Restitution should not have been ordered without determining ability to pay).

United States v. Norris, 217 F.3d 262 (5th Cir. 2000) (Restitution was not for actual loss). United States v. Griffin, 215 F.3d 866 (8thCir. 2000) (Loss from food stamp fraud was limited to actual benefits diverted).

United States v. Andra, 218 F.3d 1106 (9thCir. 2000) (Tax loss should not have included penalties and interest).

Appeals

United States v. Byerley, 46 F.3d 694 (7th Cir. 1996) (The government waived argument by inconsistent position at sentencing). United States v. Caraballo-Cruz, 52 F.3d 390 (1st Cir. 1995) (The government defaulted on double jeopardy claim). *United States v. Carillo-Bernal, 58 F.3d 1490 (10th Cir. 1995) (The government failed to timely file certification for appeal). United States v. Petty, 80 F.3d 1384 (9th Cir. 1996) (Waiver of appeal of an unanticipated error was not enforceable). *United States v. Ready, 82 F.3d 551 (2nd Cir. 1996) (Waiver of appeal did not cover issue of restitution and was not waived). *United States v. Thompson, 82 F.3d 700 (6th Cir. 1996) (Technicalities that did not prejudice the government were not cause to deny a motion to extend time to file an appeal). *United States v. Agee, 83 F.3d 882 (7th Cir. 1996) (A waiver of appeal, not discussed at the plea colloquy, was invalid). United States v. Webster, 84 F.3d 1056 (11th Cir. 1996) (When a law was clarified between trial and appeal, a point of appeal was preserved as plain error). *United States v. Allison, 86 F.3d 940 (9th Cir. 1996) (Remand was proper even though the district court could still impose the same sentence). *United States v. Perkins, 89 F.3d 303 (6th Cir. 1996) (Orally raising an issue at sentencing preserved it for appeal). United States v. Stover, 93 F.3d 1379 (8th Cir. 1996) (Under the ex post facto clause, an appellate court refused to use a substantive change to the guidelines to uphold a sentence that was improper at the time imposed). United States v. Alexander, 106 F.3d 874 (9th Cir. 1997) (Rule of the case barred reconsideration of a suppression order after remand). United States v. Zink, 107 F.3d 716 (9th Cir. 1997) (Waiver of appeal of sentence did not cover a restitution order). United States v. Saldana, 109 F.3d 100 (1st Cir. 1997) ( A defendant had a jurisdictional basis to appeal a denial of a downward departure). Sanders v. United States, 113 F.3d 184 (11th Cir. 1997) (A pro se petitioner’s out-of-time appeal was treated as a motion for extension of time). United States v. Arteaga, 117 F.3d 388 (9th Cir. 1997) (Evidence that was precluded at trial could not support convictions on appeal). *In Re Grand Jury Subpoena, 123 F.3d 695 (1st Cir. 1997) (A third party may appeal the denial of a motion to quash without risking a contempt citation). United States v. Martinez-Rios, 143 F.3d 662 (2nd Cir. 1998) (Vague appeal waiver was void). United States v. Montez-Gavira, 163 F.3d 697 (2nd Cir. 1999) (Deportation did not moot appeal).

Resentencing

*United States v. Moore, 131 F.3d 595 (6th Cir. 1997) (A limited remand did not allow a new enhancement at resentencing). *United States v. Wilson, 131 F.3d 1250 (7th Cir. 1997) (The government waived the issue of urging additional relevant conduct at resentencing). United States v. Rapal, 146 F.3d 661 (9th Cir. 1998) (Higher resentence presumed vindictiveness). *United States v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999) (Sentence imposed, between original sentence and remand, could not be counted at resentencing). United States v. Jackson, 181 F.3d 740 (6thCir. 1999) (Resentencing did not overcome presumption of vindictiveness).

United States v. Faulks, 201 F.3d 208 (3rd Cir. 2000) (3rdCir. 2000) (Defendant could not be resentenced in abstentia).

Supervised Release / Probation

United States v. Doe, 53 F.3d 1081 (9th Cir. 1995) (An unadjudicated juvenile could not be sentenced to supervised release). United States v. Doe, 79 F.3d 1309 (2nd Cir. 1996) (Occupational restriction was not supported by the court’s findings). United States v. Edgin, 92 F.3d 1044 (10th Cir.), cert. denied, 519 U.S. 1069 (1997) (A court failed to provide adequate reasons to bar a defendant from seeing his son while on supervised release). United States v. Wright, 92 F.3d 502 (7th Cir. 1996) (Simple possession of drugs was a Grade C, not a Grade A violation, of supervised release). United States v. Leaphart, 98 F.3d 41 (2nd Cir. 1996) (A misdemeanor did not justify a two year term of supervised release). United States v. Myers, 104 F.3d 76 (5th Cir.), cert. denied, 520 U.S. 1218 (1997) (A court could not impose consecutive sentences of supervised release). United States v. Ooley, 116 F.3d 370 (9th Cir. 1997) (A probationer was entitled to a hearing over a warrantless search). *United States v. Collins, 118 F.3d 1394 (9th Cir. 1997) (Illegal ex post facto application of rule allowing additional term of release after revocation). United States v. Romeo, 122 F.3d 941 (11th Cir. 1997) (A court could not order deportation as a condition of supervised release). United States v. Aimufa, 122 F.3d 1376 (11th Cir. 1997) (A court lacked authority to modify conditions of release after revocation). *United States v. Patterson, 128 F.3d 1259 (8th Cir. 1997) (Failure to provide allocution at supervised release revocation was plain error). United States v. Pierce, 132 F.3d 1207 (8th Cir. 1997) (Probation revocation for a drug user does not require a prison sentence; treatment is an option). United States v. Biro, 143 F.3d 1421 (11th Cir. 1998) (Deportation could not be condition of supervised release). United States v. Bonanno, 146 F.3d 502 (7th Cir. 1998) (Court improperly delegated discretion over drug testing to probation officer). United States v. Balogun, 146 F.3d 141 (2nd Cir. 1998) (Court could not order supervised release tolled while defendant out of country). United States v. Giraldo-Prado, 150 F.3d 1328 (11th Cir. 1998) (Deportation cannot be condition of supervised release). *United States v. Evans, 155 F.3d 245 (3rd Cir. 1998) (Cannot make reimbursement for court-appointed counsel a condition of supervised release). United States v. Havier, 155 F.3d 1090 (9th Cir. 1998) (1. Motion to revoke must specifically identify charges; 2. Revocation petition did not give adequate notice of violation). *United States v. Kingdom, 157 F.3d 133 (2nd Cir. 1998 (Revocation sentence should have been based only on most serious violation). United States v. Waters, 158 F.3d 933 (6th 1999) (Defendant has right to allocution at revocation hearing). United States v. Strager, 162 F.3d 921 (6th Cir. 1999) (Disrespectful call to probation officer did not justify revocation). United States v. McClellan, 164 F.3d 308 (6th Cir. 1999) (Court must explain why it is departing above revocation guidelines). United States v. Cooper, 171 F.3d 582 (8th Cir. 1999) (Court could not order that defendant not leave city for more than 24 hours as condition of supervised release).

Ineffective Assistance of Counsel

*Jackson v. Herring, 42 F.3d 1350 (11th Cir.), cert. denied, 515 U.S. 1189 (1995) (Trial counsel presented no mitigation evidence in capital case). *Esslinger v. Davis, 44 F.3d 1515 (11th Cir. 1995) (Counsel failed to determine that the defendant was a habitual offender before plea). United States v. Cook, 45 F.3d 388 (10th Cir. 1995) (The court ordered defendant’s counsel to advise a government witness to comply with her plea agreement). *Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995) (Counsel failed to correct state trial judge’s misstatements that state sentence could run concurrent with potential federal sentence). *United States v. Stearns, 68 F.3d 328 (9th Cir. 1995) (A counsel failed to file notice of appeal). Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995) (Failure to file notice of appeal after request by defendant). *United States v. Hansel, 70 F.3d 6 (2nd Cir. 1995) (Counsel failed to raise statute of limitations). Upshaw v. Singletary, 70 F.3d 576 (11th Cir. 1995) (Claim of ineffective assistance of counsel at plea was not waived even though not raised on direct appeal). United States v. Streater, 70 F.3d 1314 (D.C. 1995) (Counsel gave bad legal advice about pleading guilty). Martin v. United States, 81 F.3d 1083 (11th Cir. 1996) (Counsel failed to file a notice of appeal when requested to do so by the defendant). Sager v. Maass, 84 F.3d 1212 (9th Cir. 1996) (Counsel was found ineffective for not objecting to inadmissible evidence). Glock v. Singletary, 84 F.3d 385 (11th Cir.), cert. denied, 519 U.S. 1044 (1996) (Counsel’s failure to discover and present mitigating evidence at the sentencing proceeding required an evidentiary hearing). United States v. McMullen, 86 F.3d 135 (8th Cir. 1996) (Counsel’s bad sentencing advice required remand). United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996) (Prejudice was presumed when trial counsel was forced to prove his own ineffectiveness at a hearing). Baylor v. Estelle, 94 F.3d 1321 (9th Cir.), cert. denied, 520 U.S. 1151 (1997) (Counsel was ineffective for failing to follow up on lab reports suggesting that the defendant was not the rapist). Huynh v. King, 95 F.3d 1052 (11th Cir. 1996) (A lawyer’s failure to raise a suppression issue was grounds for remand). United States v. Baramdyka, 95 F.3d 840 (9th Cir.), cert. denied, 520 U.S. 1132 (1997) (An appeal waiver did not bar a claim of ineffective assistance of counsel). *United States v. Glover, 97 F.3d 1345 (10th Cir. 1996) (It was ineffective for counsel to fail to object to the higher methamphetamine range). Martin v. Maxey, 98 F.3d 844 (5th Cir. 1996) (Failure to file a motion to suppress could be grounds for ineffectiveness claim). Fern v. Gramley, 99 F.3d 255 (7th Cir. 1996) (Prejudice could be presumed from an attorney’s failure to file an appeal upon the defendant’s request). Griffin v. United States, 109 F.3d 1217 (7th Cir. 1997) (Counsel’s advice to dismiss appeal to file motion to reduce a sentence was prima facie evidence of ineffective assistance of counsel). United States v. Kauffman, 109 F.3d 186 (3rd Cir. 1997) (Failure to investigate insanity defense was ineffective assistance of counsel). Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (Failure to investigate the defendant’s mental illness was ineffective assistance of counsel). Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (Failure to investigate the defendant’s mental illness was ineffective assistance of counsel). United States v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997) (Counsel was ineffective for giving incorrect sentencing information in contemplation of plea). United States v. Soto, 132 F.3d 56 (D.C. Cir. 1997) (Counsel was ineffective for failing to urge downward role adjustment). United States v. Taylor, 139 F.3d 924 (D.C. Cir. 1998) (Counsel was ineffective for failing to inform client of advice of counsel defense). Smith v. Stewart, 140 F.3d 1263 (9th Cir. 1998) (Failure to investigate mitigating evidence was ineffective). Tejeda v. Dubois, 142 F.3d 18 (1st Cir. 1998) (Counsel’s fear of trial judge hindered defense). United States v. Kliti, 156 F.3d 150 (2nd Cir. 1998) (Defense counsel who witnessed exculpatory statement had conflict). United States v. Moore, 159 F.3d 1154 (9th Cir. 1999) (Irreconcilable conflict between defendant and lawyer). United States v. Alvarez-Tautimez, 160 F.3d 573 (9th Cir. 1999) (Counsel ineffective for failing to withdraw plea after co-defendant’s suppression motion granted). United States v. Granados, 168 F.3d 343 (8th Cir. 1999) (Counsel was ineffective for unfamiliarity with guidelines and failure to challenge breach of plea agreement). United States v. Harfst, 168 F.3d 398 (10th Cir. 1999) (Failure to argue for downward role adjustment can be ineffective assistance of counsel). Prou v. United States, 199 F.3d 37 (1st Cir. 1999) (Counsel failed to attack timeliness of statutory drug enhancement). United States v. Hall, 200 F.3d 962 (6th Cir. 2000) (Despite waiver, dual representation denied effective assistance of counsel). Coss v. Lackawanna County District Attorney, 204 F.3d 453 (3rd Cir. 2000) (Defendant was prejudiced by attorney’s failure to subpoena witnesses). Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000) (Counsel failed to object to post arrest statement, or to investigate defense expert witness). United States v. Patterson, 215 F.3d 812 (8th Cir. 2000) (Absences of counsel during trial denied effective assistance). *Carter v. Bell, 218 F.3d 581 (6thCir. 2000) (Failure to investigate mitigating evidence was ineffective assistance).

United States v. Mannino, 212 F.3d 835 (3rdCir. 2000) (Failing to raise sentencing issue denied effective assistance). United States v. McCoy, 215 F.3d 102 (D.C. Cir. 2000) (But for counsel’s deficient performance, defendant would not have pled guilty).

Parole

John v. United States Parole Commission, 122 F.3d 1278 (9th Cir. 1997) (A parolee had a due process right to a hearing and to call witnesses). Gambino v. Morris, 134 F.3d 156 (3rd Cir. 1998) (There was no rational basis to deny parole). Strong v. United States Parole Commission, 141 F.3d 429 (2nd Cir. 1998) (Prisoner could not be reparoled to special parole after revocation of original special parole). Robles v. United States, 146 F.3rd 1098 (9th Cir. 1998) (Parole Commission could not impose second special term of parole). Whitney v. Booker

 

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“I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. . . . corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.” — U.S. President Abraham Lincoln, Nov. 21, 1864 (letter to Col. William F. Elkins) Ref: The Lincoln Encyclopedia, Archer H. Shaw (Macmillan, 1950, NY)

A History of Corporate Rule
and
Popular Protest

 

A new populist movement has emerged to challenge corporate power and call for a more equitable economic order that protects traditional cultures and ecosystems and promotes sustainability.

Extracted from Nexus Magazine(Oct-Nov 2002)
PO Box 30, Mapleton Qld 4560 Australia. editor@nexusmagazine.com
Telephone: +61 (0)7 5442 9280; Fax: +61 (0)7 5442 9381
From our web page at: www.nexusmagazine.com

by Richard Heinberg © 2002
Editor/Publisher
MuseLetter
1604 Jennings Avenue
Santa Rosa, CA 95401, USA
Email: heinberg@museletter.com
Website: http://www.museletter.com


The corporation was invented early in the colonial era as a grant of privilege extended by the Crown to a group of investors, usually to finance a trade expedition. The corporation limited the liability of investors to the amount of their investment–a right not held by ordinary citizens. Corporate charters set out the specific rights and obligations of the individual corporation, including the amount to be paid to the Crown in return for the privilege granted.

Thus were born the East India Company, which led the British colonisation of India, and Hudson’s Bay Company, which accomplished the same purpose in Canada. Almost from the beginning, Britain deployed state military power to further corporate interests–a practice that has continued to the present. Also from the outset, corporations began pressuring government to expand corporate rights and to limit corporate responsibilities.

The corporation was a legal invention–a socio-economic mechanism for concentrating and deploying human and economic power. The purpose of the corporation was and is to generate profits for its investors. As an entity, it has no other purpose; it acknowledges no higher value.

Many people understood early on that since corporations do not serve society as a whole, but only their investors, there is therefore always a danger that the interests of corporations and those of the general populace will come into conflict. Indeed, the United States was born of a revolution not just against the British monarchy but against the power of corporations. Many of the American colonies had been chartered as corporations (the Virginia Company, the Carolina Company, the Maryland Company, etc.) and were granted monopoly power over lands and industries considered crucial to the interests of the Crown.

Much of the literature of the revolutionaries was filled with denunciations of the “long train of abuses” of the Crown and its instruments of dominance, the corporations. As the yoke of the Crown corporations was being thrown off, Thomas Jefferson railed against “the general prey of the rich on the poor”. Later, he warned the new nation against the creation of “immortal persons” in the form of corporations. The American revolutionaries resolved that the authority to charter corporations should lie not with governors, judges or generals, but only with elected legislatures.

At first, such charters as were granted were for a fixed time, and legislatures spelled out the rules each business should follow. Profit-making corporations were chartered to build turnpikes, canals and bridges, to operate banks and to engage in industrial manufacture. Some citizens argued against even these few, limited charters, on the grounds that no business should be granted special privileges and that owners should not be allowed to hide behind legal shields. Thus the requests for many charters were denied, and existing charters were often revoked. Banks were kept on a short leash, and (in most states) investors were held liable for the debts and harms caused by their corporations.

All of this began to change in the mid-19th century. According to Richard Grossman and Frank Adams in Taking Care of Business: “Corporations were abusing their charters to become conglomerates and trusts. They were converting the nation’s treasures into private fortunes, creating factory systems and company towns. Political power began flowing to absentee owners intent upon dominating people and nature.”1

Grossman and Adams note that: “In factory towns, corporations set wages, hours, production processes and machine speeds. They kept blacklists of labor organizers and workers who spoke up for their rights. Corporate officials forced employees to accept humiliating conditions, while the corporations agreed to nothing.”

The authors quote Julianna, a Lowell, Massachusetts, factory worker, who wrote: “Incarcerated within the walls of a factory, while as yet mere children, drilled there from five till seven o’clock, year after year.what, we would ask, are we to expect, the same system of labor prevailing, will be the mental and intellectual character of future generations.a race fit only for corporation tools and time-serving slaves?… Shall we not hear the response from every hill and vale: ‘Equal rights, or death to the corporations’?”

Industrialists and bankers hired private armies to keep workers in line, bought newspapers and (quoting Grossman and Adams again): “.painted politicians as villains and businessmen as heroes. Bribing state legislators, they then announced legislators were corrupt, that they used too much of the public’s resources and time to scrutinise every charter application and corporate operation. Corporate advocates campaigned to replace existing chartering laws with general incorporation laws that set up simple administrative procedures, claiming this would be more efficient. What they really wanted was the end of legislative authority over charters.”

During the Civil War, government spending brought corporations unprecedented wealth. “Corporate managers developed the techniques and the ability to organise production on an ever grander scale,” according to Grossman and Adams. “Many corporations used their wealth to take advantage of war and Reconstruction years to get the tariff, banking, railroad, labor, and public lands legislation they wanted.”

In 1886, the US Supreme Court declared that corporations were henceforth to be considered “persons” under the law, with all of the constitutional rights that designation implies.

The Fourteenth Amendment to the Constitution, passed to give former slaves equal rights, has been invoked approximately ten times more frequently on behalf of corporations than on behalf of African Americans. Likewise the First Amendment, guaranteeing free speech, has been invoked to guarantee corporations the “right” to influence the political process through campaign contributions, which the courts have equated with “speech”.

If corporations are “persons”, they are persons with qualities and powers that no flesh-and-blood human could ever possess–immortality, the ability to be in many places at once, and (increasingly) the ability to avoid liability. They are also “persons” with no sense of moral responsibility, since their only legal mandate is to produce profits for their investors.

Throughout the late 19th and early 20th centuries, corporations reshaped every aspect of life in America and much of the rest of the world. The factory system turned self-sufficient small farmers into wage-earners and transformed the family from an interdependent economic production unit to a consumption-oriented collection of individuals with separate jobs. Advertising turned productive citizens into “consumers”. Business leaders campaigned to create public schools to train children in factory-system obedience to schedules and in the performance of isolated, meaningless tasks. Meanwhile, corporations came to own and dominate sources of information and entertainment, and to control politicians and judges.

During two periods, corporations faced a challenge: the 1890s (a depression period when Populists demanded regulation of railroad rates, heavy taxation of land held only for speculation, and an increase in the money supply), and the 1930s (when a profound crisis of capitalism led hundreds of thousands of workers and armies of the unemployed to demand government regulation of the economy and to win a 40-hour week, a minimum-wage law, the right to organise, and the outlawing of child labour). But in both cases, corporate capitalism emerged intact.

In the words of historian Howard Zinn : “The rich still controlled the nation’s wealth, as well as its laws, courts, police, newspapers, churches, colleges. Enough help had been given to enough people to make Roosevelt a hero to millions, but the same system that had brought depression and crisis.remained.”2

World War II, like previous wars, brought huge profits to corporations via government contracts. But following this war, military spending was institutionalised, ostensibly to fight the “Cold War”. Despite occasional regulatory setbacks, corporations seized ever more power, and increasingly transcended national boundaries, loyalties and sovereignties altogether.

 

GLOBAL PILLAGE

In the 1970s, capitalism faced yet another challenge as postwar growth subsided and profits fell. The US was losing its dominant position in world markets; the production of oil from its domestic wells was peaking and beginning to fall, thus making America increasingly dependent upon oil imports from Arab countries; the Vietnam War had weakened the American economy; and Third World countries were demanding a “North-South dialogue” leading towards greater self-reliance for poorer countries. President Nixon responded by doing away with fixed currency exchange rates and devaluing the dollar, largely erasing US war debts to other countries. Later, newly elected President Reagan, at the 1981 Cancún, Mexico, meeting of 22 heads of state, refused to discuss new financial arrangements with the Third World, thus effectively endorsing their further exploitation by corporations.

Meanwhile, the corporations themselves also responded with a new strategy. Increased capital mobility (made possible by floating exchange rates and new transportation, communication and production technologies) allowed US corporations to move production offshore to “export processing zones” in poorer countries. Corporations also undertook a restructuring process, moving toward “networked production”–in which big firms, while retaining and consolidating power, hired smaller firms to take over aspects of supply, manufacture, accounting and transport. (Economist Bennett Harrison defined networked production as “concentration of control combined with decentralization of production”.) This restructuring process is also known as “downsizing”, because it results in the shedding of higher-paid employees by large corporations and the hiring of low-wage contingent workers by smaller subcontractors.

Jeremy Brecher and Tim Costello write in Global Village or Global Pillage that: “As the economic crisis deepened, there gradually evolved.a ‘supra-national policy arena’ which included new organizations like the Group of Seven (G7) industrial nations and NAFTA and new roles for established international organisations like EU, IMF, World Bank, and GATT. The policies adopted by these international institutions allowed corporations to lower their costs in several ways. They reduced consumer, environmental, health, labor, and other standards. They reduced business taxes. They facilitated the move to lower wage areas and threat of such movement. And they encouraged the expansion of markets and the ‘economies of scale’ provided by larger-scale production.”3

All of this has led to a globalised economy in which (again quoting Brecher and Costello): “All over the world, people are being pitted against each other to see who will offer global corporations the lowest labor, social, and environmental costs. Their jobs are being moved to places with inferior wages, lower business taxes, and more freedom to pollute. Their employers are using the threat of ‘foreign competition’ to hold down wages, salaries, taxes, and environmental protections and to replace high-quality jobs with temporary, part-time, insecure, and low-quality jobs. Their government officials are justifying cuts in education, health, and other services as necessary to reduce business taxes in order to keep or attract jobs.”

Corporations, no longer bound by national laws, prowl the world looking for the best deals on labour and raw materials. Of the world’s top 120 economies, nearly half are corporations, not countries. Thus the power of citizens in any nation to control corporations through whatever democratic processes are available to them is receding quickly.

In November 1999, tens of thousands of students, union members and indigenous peoples gathered in Seattle to protest a meeting of the World Trade Organization (WTO). This mass demonstration seemed to signal the birth of a new global populist uprising against corporate globalisation. In the three years since then, more mass demonstrations–some larger, many smaller–have occurred in Genoa, Melbourne, Milan, Montreal, Philadelphia, Washington and other cities.

In January 2001, George W. Bush and Dick Cheney took office, following a deeply flawed US election. With strong ties to the oil industry and to the huge energy-trading corporation Enron, the new administration quickly proposed a national energy policy that focused on opening federally protected lands for oil exploration and on further subsidising the oil industry.

Enron, George W. Bush’s largest campaign contributor, was the seventh largest corporation in the US and the 16th largest in the world. Despite its reported massive profits, it had paid no taxes in four out of the previous five years. The company had thousands of offshore partnerships, through which it had hidden over a billion dollars in debt. When this hidden debt was disclosed in October 2001, the company imploded. Its share price collapsed and its credit rating was slashed. Its executives resigned in disgrace, taking with them multimillion-dollar bonuses, while employees and stockholders shouldered the immense financial loss. Enron’s bankruptcy was the largest in corporate history up to that time, but its creative accounting practices appear to be far from unique, with dozens of other corporations poised for a similar collapse.

Following the outrageous and tragic attacks of September 11, Bush launched a “War on Terror”, raising the listed number of potential target countries from three to nearly 50, most having exportable energy resources. With Iraq (holder of the world’s second-largest proven petroleum reserves) high on the list of enemy regimes to be violently overthrown, the Bush administration’s Terror War appeared to be geared toward making the world safe for the expanded reach of US oil corporations. Meanwhile, new laws and executive orders curtailed constitutional rights and erected screens of secrecy around government actions and decision-making processes.

It remains to be seen how the American populace will react to these new developments. Here again, a little history may help us understand the options available.

 

HURDLES IN THE PATH

The Populism of the 1890s failed for two main reasons: divisiveness within, and co-optation from without. While many Populist leaders saw the need for unity among people of different racial and ethnic backgrounds in attacking corporate power, racism was strong among many whites. Most of the Alliance leaders were white farm owners who failed in many instances to support the organising efforts of poor rural blacks, and poor whites as well, thus dividing the movement.

“On top of the serious failures to unite blacks and whites, city workers and country farmers,” writes Howard Zinn, “there was the lure of electoral politics. Once allied with the Democratic party in supporting William Jennings Bryan for President in 1896.the pressure for electoral victory led Populism to make deals with the major parties in city after city. If the Democrats won, it would be absorbed. If the Democrats lost, it would disintegrate. Electoral politics brought into the top leadership the political brokers instead of the agrarian radicals… In the election of 1896, with the Populist movement enticed into the Democratic party, Bryan, the Democratic candidate, was defeated by William McKinley, for whom the corporations and the press mobilised, in the first massive use of money in an election campaign.”4

Today, a new populist movement could easily fall prey to the same internal divisions and tactical errors that destroyed its counterpart a century ago. In the recent American presidential election, populists faced the choice of supporting their own candidate (Ralph Nader) and thereby contributing to the election of the far-right, pro-corporate Republican candidate (Bush), or supporting the centrist Gore and seeing their movement co-opted by pro-corporate Democrats.

Meanwhile, though African Americans, Asian Americans, Hispanic Americans, European Americans and Native Americans have all been victimised by corporations, class divisions and historical resentments often prevent them from organising to further their common interests. In recent elections, ultra-right candidate Pat Buchanan appealed simultaneously to “populist” anti-corporate and anti-government sentiments among the working class, as well as to xenophobic white racism. Buchanan’s critique of corporate power was shallow, but it was often the only such critique permitted in the corporate-controlled media. One cannot help but wonder: were the corporations looking for a lightning rod to rechannel the anger building against them?

While Buchanan had no chance of winning the presidency, his candidacy did raise the spectre of another kind of solution to the emerging crisis of popular resentment against the system–a solution that again has roots in the history of the past century.

 

A FALSE REVOLUTION

In the early 1900s, workers in Italy and Germany built strong unions and won substantial concessions in wages and work conditions; still, after World War I they suffered under a disastrous postwar economy, which fanned unrest. During the early 1920s, heavy industry and big finance were in a state of near-total collapse. Bankers and agribusiness associations offered financial support to Mussolini–who had been a socialist before the war–to seize state power, which he effectively did in 1922 following his march on Rome. Within two years, the Fascist Party (from the Latin fasces, meaning a bundle of rods and an axe, symbolising Roman state power) had shut down all opposition newspapers, crushed the socialist, liberal, Catholic, democratic and republican parties (which had together commanded about 80 per cent of the vote), abolished unions, outlawed strikes and privatised farm cooperatives.

In Germany, Hitler led the Nazi Party to power, then cut wages and subsidised industries.

In both countries, corporate profits ballooned. Understandably, given their friendliness to big business, Fascism and Nazism were popular among some prominent American industrialists (such as Henry Ford) and opinion shapers (like William Randolph Hearst).

Fascism and Nazism relied on centrally controlled propaganda campaigns that cleverly co-opted the language of the Left (the Nazis called themselves the National Socialist German Workers Party–while persecuting socialists and curtailing workers’ rights). Both movements also made calculated use of emotionally charged symbolism: scapegoating minorities, appealing to mythic images of a glorious national past, building a leader cult, glorifying war and conquest, and preaching that the only proper role of women is as wives and mothers.

As political theorist Michael Parenti points out, historians often overlook Fascism’s economic agenda–the partnership between Big Capital and Big Government–in their analysis of its authoritarian social program. Indeed, according to Bertram Gross in his startlingly prescient Friendly Fascism (1980), it is possible to achieve fascist goals within an ostensibly democratic society.5 Corporations themselves, after all, are internally authoritarian (courts have ruled that citizens give up their constitutional rights to free speech, freedom of assembly, etc., when they are at work on corporate-owned property); and as corporations increasingly dominate politics, media and economy, they can mould an entire society to serve the interests of a powerful elite without ever resorting to stormtroopers and concentration camps. No deliberate conspiracy is necessary, either: each corporation merely acts to further its own economic interests. If the populace shows signs of restlessness, politicians can be hired to appeal to racial resentments and memories of national glory, dividing popular opposition and inspiring loyalty.

In the current situation, “friendly fascism” works somewhat as follows. Corporations drive down wages and pay a dwindling share of taxes (through mechanisms outlined above), gradually impoverishing the middle class and creating unrest. As corporate taxes are cut, politicians (whose election was funded by corporate donors) argue that it is necessary to reduce government services in order to balance the budget. Meanwhile, the same politicians argue for an increase in the repressive functions of government (more prisons, harsher laws, more executions, more military spending). Politicians channel the middle class’s rising resentment away from corporations and toward the government (which, after all, is now less helpful and more repressive than it used to be) and against social groups easy to scapegoat (criminals, minorities, teenagers, women, gays, immigrants).

Meanwhile, debate in the media is kept superficial (elections are treated as sporting contests), and right-wing commentators are subsidised while left-of-centre ones are marginalised. People who feel cheated by the system turn to the Right for solace, and vote for politicians who further subsidise corporations, cut government services, expand the repressive power of the state and offer irrelevant scapegoats for social problems with economic roots. The process feeds on itself.

Within this scenario, George W. Bush (and similar ultra-right figures in other countries) are not anomalies but, rather, predictable products of a strategy adopted by economic elites–harbingers of a less-than-friendly future–as the more “moderate” tactics for the maintenance and consolidation of power founder under the weight of corporate greed and resource exhaustion.

 

CAUSE FOR HOPE?

These circumstances are, in their details, unprecedented; but in broad outline we are seeing the re-enactment of a story that goes back at least to the beginning of civilisation. Those with power are always looking for ways to protect and extend it, and to make their power seem legitimate, necessary or invisible so that popular protest seems unnecessary or futile. If protest comes, the powerful always try to deflect anger away from themselves. The leaders of the new populist movement appear to have a good grasp of both the current circumstances and the historical ground from which these circumstances emerge. They seem to have realised that, in order to succeed, the new populism will have to:

  • avoid being co-opted by existing political parties;
  • heal race, class and gender divisions and actively resist any campaign to scapegoat disempowered social groups;
  • avoid being identified with an ideological category–“communist”, “socialist” or “anarchist”–against which most of the public is already well inoculated by corporate propaganda;
  • direct public discussion toward the most vulnerable link in the corporate chain of power: the legal basis of the corporation;
  • internationalise the movement so that corporations cannot undermine it merely by shifting their base of operations from one country to another.

As Lawrence Goodwyn noted in his definitive work, The Populist Moment , the original Populists were “attempting to construct, within the framework of American capitalism, some variety of cooperative commonwealth”. This was “the last substantial effort at structural alteration of hierarchical economic forms in modern America”.6

In announcing the formation of the Alliance for Democracy, in an article in the August 14, 1996 issue of The Nation, activist Ronnie Dugger compiled a list of policy suggestions which comprise some of the core demands of the new populist movement. These include: a prohibition of contributions or any other political activity by corporations; single-payer national health insurance with automatic universal coverage; a doubling of the minimum wage, indexed to inflation; a generic low-interest-rate national policy, entailing the abolition of the Federal Reserve System; statutory reversal of the court-made law that corporations are “persons”; establishment of a national public oil company; limitations on ownership of newspapers, magazines, radio and TV stations to one of any kind per person or owning entity; and the halving of military spending. The new populists are, in Ronnie Dugger’s words, “ready to resume the cool eyeing of the corporations with a collective will to take back the powers they have seized from us”.7

The new populism draws some of its inspiration from the work of the Program on Corporations, Law and Democracy (POCLAD), a populist “think-tank” that explores the legal basis of corporate power. POCLAD believes that it is possible to control–and, if necessary, dismantle–corporations by amending or revoking their charters.8

Since the largest corporations are now transnational in scope, the new populism must confront their abuses globally. The International Forum on Globalization (IFG) was founded for this purpose in 1994, as an alliance of 60 activists, scholars, economists and writers (including Jerry Mander, Vandana Shiva, Richard Grossman, Ralph Nader, Helena Norberg-Hodge, Jeremy Rifkin and Kirkpatrick Sale), to stimulate new thinking and joint action along these lines.

In a position statement drafted in 1995, the International Forum on Globalization said that it: “.views international trade and investment agreements, including the GATT, the WTO, Maastricht and NAFTA, combined with the structural adjustment policies of the International Monetary Fund and the World Bank, to be direct stimulants to the processes that weaken democracy, create a world order in the control of transnational corporations and devastate the natural world. The IFG will study, publish and actively advocate in opposition to the current rush toward economic globalization, and will seek to reverse its direction. Simultaneously, we will advocate on behalf of a far more diversified, locally controlled, community-based economics. We believe that the creation of a more equitable economic order–based on principles of diversity, democracy, community and ecological sustainability–will require new international agreements that place the needs of people, local economies and the natural world ahead of the interests of corporations.”9

Leaders of the new populism appear to realise that anti-corporatism is not a complete solution to the world’s problems; that the necessary initial focus on corporate power must eventually be supplemented by a more general critique of centralising and unsustainable technologies, money-based economics and current nation-state governmental structures, by efforts to protect traditional cultures and ecosystems, and by a renewal of culture and spirituality.

It would be foolish to underestimate the immense challenges to the new populism from the current US administration and from the jingoistic, bellicose post-September 11 public sentiment fostered by the corporate media. Nevertheless, POCLAD, the Alliance for Democracy and the IFG (along with dozens of human rights, environmental and anti-war organisations around the world) provide important rallying points for citizens’ self-defence against tyranny in its most modern, invisible, effective and even seductive forms.


Endnotes:

1. Grossman, Richard and Frank Adams, Taking Care of Business: Citizenship and the Charter of Incorporation,
2. Zinn, Howard, A People’s History of the United States: 1492 to Present , Harper Perennial, 2001.
3. Brecher, Jeremy and Tim Costello, Global Village or Global Pillage: Economic Reconstruction from the Bottom Up , South End Press, 1998.
4. Zinn, op. cit.
5. Gross, Bertram, Friendly Fascism: The New Face of Power in America , South End Press, 1998.
6. Goodwyn, Lawrence, The Populist Moment: A Short History of the Agrarian Revolt in America , Oxford University Press, 1978.
7. The Alliance for Democracy website, http://www.thealliancefordemocracy.org/.
8. POCLAD website, http://www.poclad.org.
9. IFG pamphlet, 1995; revised position statement at IFG website, http://www.ifg.org.

About the Author:

Richard Heinberg is a journalist, educator, editor, lecturer and musician. He has lectured widely and appeared on national radio and TV in five countries. He is a core faculty member of New College of California, where he teaches courses on Culture, Ecology and Sustainable Community.

He is the author of: “Memories and Visions of Paradise “; “Celebrate the Solstice “; “A New Covenant with Nature “; and “Cloning the Buddha: the Moral Impact of Biotechnology“. His next book, “The Party’s Over: Oil, War and the Fate of Industrial Societies“, is to be published by New Society in March 2003. His essays have been featured in The Futurist, Intuition, Brain/Mind Bulletin, Magical Blend, New Dawn and elsewhere.

Richard is also author/editor/publisher of MuseLetter, a highly regarded monthly, subscription-only, alternative newsletter which is now in its tenth year of publication. MuseLetter’s purpose is “to offer a continuing critique of corporate-capitalist industrial civilization and a re-visioning of humanity’s prospects for the next millennium”. His article, “A History of Corporate Rule and Popular Protest”, was originally published in MuseLetter in 1996 as “The New Populism”, and was revised in August 2002. Visit the MuseLetter website at http://www.museletter.com.

Our Hidden History of Corporations in the United States

CORPORATE GREED, CORRUPTION, & THE COMING COLLAPSE OF AMERICA AS WE KNOW IT

Bakan, an internationally recognized legal scholar and professor of law at the University of British Columbia, takes a powerful stab at the most influential institution of our time, the corporation. As a legal entity, a corporation has as its edict one and only one goal, to create profits for its shareholders, without legal or moral obligation to the welfare of workers, the environment, or the well-being of society as a whole. Corporations have successfully hijacked governments, promoting free-market solutions to virtually all of the concerns of human endeavor. Competition and self-interest dominate, and other aspects of human nature, such as creativity, empathy, and the ability to live in harmony with the earth, are suppressed and even ridiculed. Bakan believes that, like Communism, this ideological order cannot last and that corporate rule must be challenged to bring balance and revive the values of democracy, social justice, equality, and compassion. This eye-opening look at a system “programmed to exploit others for profit” has been made into a provocative film documentary that could be the next Bowling for Columbine. David Siegfried Copyright © American Library Association. All rights reserved –This text refers to an out of print or unavailable edition of this title.

“Unequal Protection should be in the hands of every thinking American. If we do not awaken soon, democracy will be replaced by a new ‘Third Reich’ of corporate tyranny. To be aware of the danger is the responsibility of each of us. No one has told us the truth better than Thom Hartmann. Read it!”–Gerry Spence, author of Give Me Liberty

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