Tuesday, April 10, 2007

Affirmance of Drug Trafficking Convictions, Reversal of Pre-Booker Sentence.

U.S. v. Nash, -- F.3d --, 2007 WL 1041400 (10th Cir. 4/9/07) - District court did not abuse its discretion in denying continuance and mistrial motions that involved discovery re: alleged misconduct of an OK City PD detective. Nash failed to show the necessity of a continuance or that his right to a fair and impartial trial was impaired. There was overwhelming evidence of guilt. While there was a Bruton violation re: a nontestifying codefendant's confession, the error was harmless. The district court committed constitutional Booker error several ways by enhancing Nash's sentence mandatorily on the basis of judicially-found facts and the error was not harmless. The district court expressly stated that if the guidelines were held unconstitutional, it would impose a substantially lower sentence. McKay dissents re: the Bruton error - he thinks it was not harmless and would have reversed.