Circuit Snippets
In a case reeking of questionable motives (white woman driver, African-American male passenger, predominantly African-American neighborhood known for drug trafficking), the Sixth Circuit concluded that Brendlin's rule that a stop of a car seizes the passengers as well as the driver did not apply where the passenger got out of the car and tried to leave. The officers suspected drug dealing, and thus hemmed in the car after the defendant got back into it. He tried to leave. When he did so, the officers ordered him to stop (they claimed they observed a suspicious "lump" in the front of his sweatshirt and had a look on his "like a deer caught in headlights"). He was found to possess a gun and faced federal gun charges. The district court suppressed, on the basis that even if the defendant was not seized until after he got out of the car and was ordered to stop, the officer did not have reasonable suspicion. The Sixth Circuit reversed, faulting the district court for not giving sufficient weight to the officers' observations and belief that the defendant was drug trafficking. US v. Jones, No. 07-5994 (6th Cir. 4/16/09)
Possession of an unregistered firearm is not a crime of violence for purposes of 924(c)(1), the Tenth Circuit held. US v. Serafin, No 07-8086 (10th Cir. 4/14/09)
The fact that prosecutors retained the right in an immunity agreement to use evidence of defendant's proffer statements if the defense offered evidence at trial that contradicted those statements did not allow the prosecutors to presumptively admit those statements in the government's case in chief, the 8th Circuit held. Even though the government should have waited until rebuttal, the defendant was not prejudiced and therefore his conviction for tax violations was affirmed, the court held. US v. Al-Esawi, No. 08-1600 (8th CIr. 3/31/09)
When resentencing a defendant at a Rule 35(b) resentencing based on post-sentencing substantial assistance, the district court can only consider the substantial assistance, and not (as here) any disparity between the defendant's sentence and the co-defendants' sentences. US v. Poland, No. 08-1203 (1st Cir. 4/2/09)
When a defendant obtains vacatur of prior state convictions, a district court may vary upward based on the conduct involved in those conditions. In this case, the defendant, before sentencing, successfully convinced the state court to vacate two prior convictions (on the basis he was mentally ill when he pled guilty to them) to avoid career offender designation. The district court departed upward, and the First Circuit affirmed. US v. Marsh, No. 07-1698 (1st Cir. 4/1/09)
The district court did not abuse its discretion when it concluded that the government had presented insufficient evidence at a parole revocation hearing and decided that the thing to do was to continue the hearing so that the government could come up with more evidence. Not surprisingly, it did so, and the 8th Circuit said that was fine. US v. Bennett, No. 08-1399 (8th Cir. 4/8/09)
Possession of an unregistered firearm is not a crime of violence for purposes of 924(c)(1), the Tenth Circuit held. US v. Serafin, No 07-8086 (10th Cir. 4/14/09)
The fact that prosecutors retained the right in an immunity agreement to use evidence of defendant's proffer statements if the defense offered evidence at trial that contradicted those statements did not allow the prosecutors to presumptively admit those statements in the government's case in chief, the 8th Circuit held. Even though the government should have waited until rebuttal, the defendant was not prejudiced and therefore his conviction for tax violations was affirmed, the court held. US v. Al-Esawi, No. 08-1600 (8th CIr. 3/31/09)
When resentencing a defendant at a Rule 35(b) resentencing based on post-sentencing substantial assistance, the district court can only consider the substantial assistance, and not (as here) any disparity between the defendant's sentence and the co-defendants' sentences. US v. Poland, No. 08-1203 (1st Cir. 4/2/09)
When a defendant obtains vacatur of prior state convictions, a district court may vary upward based on the conduct involved in those conditions. In this case, the defendant, before sentencing, successfully convinced the state court to vacate two prior convictions (on the basis he was mentally ill when he pled guilty to them) to avoid career offender designation. The district court departed upward, and the First Circuit affirmed. US v. Marsh, No. 07-1698 (1st Cir. 4/1/09)
The district court did not abuse its discretion when it concluded that the government had presented insufficient evidence at a parole revocation hearing and decided that the thing to do was to continue the hearing so that the government could come up with more evidence. Not surprisingly, it did so, and the 8th Circuit said that was fine. US v. Bennett, No. 08-1399 (8th Cir. 4/8/09)
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