Securities Act Conviction Upheld; Computer Search OK'd; Various Booker Issues Addressed
U.S. v. Wenger, 2005 WL 2767182 (10th Cir. Oct 26, 2005)
In securities fraud conviction 10th rejects claim that D’s radio show and newsletter wherein he touted stocks in which he had an interest, in violation of the Securities Act disclosure requirement, were protected non-commercial speech under 1st Amend. 10th applied commercial speech analysis and found no impermissible burden; Securities Act provision not unconstitutionally vague. Opinion includes 404(b) analysis.
U.S. v. Brooks, 2005 WL 2767185 (10th Cir. Oct 26, 2005)
Issue I: Search of computer for kid porn not beyond scope of consent. Cops had warrant for search of computer, asked D for consent to search for images using automatic search disk. Disk did not work, and they conducted a manual search for images. Though a different method of search than what cops told D they would use, manual search did just what auto search would have done, and cops searched only for images. 10th distinguished Elliot and stated D could not supply any reason for why the manual search was more invasive than the auto search. Issue 2:Police obtained another warrant after this for a lab search of computer. 10th held that though warrant could have been better worded, it was sufficiently particular, not over-broad, distinguishing Campos and Carey. A must-read for a computer search issue.
U.S. v. Muessig, 2005 WL 2767188 (10th Cir. Oct 26, 2005)
It seems there is a lot of targeting of Vietnamese convenience store owners on psuedoephedrine (PE) sales. In this case, big targeting of 2 stores, wired undercover dick buying boxes and boxes over the course of a year. Three co-Ds. Issue in defense was intent: distributing PE “with reasonable cause to believe” it would be used to manufacture drugs/meth. Held: evidence sufficient to show intent (see opinion). Issue with “Notice”coming into evidence, which was sent to one D by manufacturer warning against sales of multiple boxes of PE because means illegal activity. Trial court ruled Rule 16 violation by government for failing to disclose Notice and sanctionedgovernemtn by barring it from evidence, but D opened door by cross-ex of agent, so agent could testify to it on re-direct. Notice exhibit went inadvertently to jury. Harmless, because lots of evidence that D had knowledge the PE could be used illegally. Harmless as well to co-D who was wife. Court not resolve two different standards ( Smith v. Ingersoll-Rand Co., 214 F.3d 1235) to assess harm done by extraneous material going to jury, because in this case the error was harmless. No plain error in non-constitutional Booker error at sentencing.
U.S. v. Corchado, WL 2746732 (10th Cir. Oct 25, 2005)
Because evidence of guilt was overwhelming (tape recordings, cop’s testimony), not plain error for government to cross examine D with his prior drug conviction in drug prosecution, even though it was contrary to court order to get permission to do so first. Also, no constitutional Booker error when judge imposed alternate sentence in anticipation of Booker.
In securities fraud conviction 10th rejects claim that D’s radio show and newsletter wherein he touted stocks in which he had an interest, in violation of the Securities Act disclosure requirement, were protected non-commercial speech under 1st Amend. 10th applied commercial speech analysis and found no impermissible burden; Securities Act provision not unconstitutionally vague. Opinion includes 404(b) analysis.
U.S. v. Brooks, 2005 WL 2767185 (10th Cir. Oct 26, 2005)
Issue I: Search of computer for kid porn not beyond scope of consent. Cops had warrant for search of computer, asked D for consent to search for images using automatic search disk. Disk did not work, and they conducted a manual search for images. Though a different method of search than what cops told D they would use, manual search did just what auto search would have done, and cops searched only for images. 10th distinguished Elliot and stated D could not supply any reason for why the manual search was more invasive than the auto search. Issue 2:Police obtained another warrant after this for a lab search of computer. 10th held that though warrant could have been better worded, it was sufficiently particular, not over-broad, distinguishing Campos and Carey. A must-read for a computer search issue.
U.S. v. Muessig, 2005 WL 2767188 (10th Cir. Oct 26, 2005)
It seems there is a lot of targeting of Vietnamese convenience store owners on psuedoephedrine (PE) sales. In this case, big targeting of 2 stores, wired undercover dick buying boxes and boxes over the course of a year. Three co-Ds. Issue in defense was intent: distributing PE “with reasonable cause to believe” it would be used to manufacture drugs/meth. Held: evidence sufficient to show intent (see opinion). Issue with “Notice”coming into evidence, which was sent to one D by manufacturer warning against sales of multiple boxes of PE because means illegal activity. Trial court ruled Rule 16 violation by government for failing to disclose Notice and sanctionedgovernemtn by barring it from evidence, but D opened door by cross-ex of agent, so agent could testify to it on re-direct. Notice exhibit went inadvertently to jury. Harmless, because lots of evidence that D had knowledge the PE could be used illegally. Harmless as well to co-D who was wife. Court not resolve two different standards ( Smith v. Ingersoll-Rand Co., 214 F.3d 1235) to assess harm done by extraneous material going to jury, because in this case the error was harmless. No plain error in non-constitutional Booker error at sentencing.
U.S. v. Corchado, WL 2746732 (10th Cir. Oct 25, 2005)
Because evidence of guilt was overwhelming (tape recordings, cop’s testimony), not plain error for government to cross examine D with his prior drug conviction in drug prosecution, even though it was contrary to court order to get permission to do so first. Also, no constitutional Booker error when judge imposed alternate sentence in anticipation of Booker.
posted by Anonymous at 11:43 AM
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