Unpublished Decisions

U.S. v. Niedlinger, 2009 WL 4282839 (12/2/09) (unpub'd) - Showing a badge, pointing out the possession of the badge, stating that, because of the badge, the defendant would not be pushed around any more and demanding to see the mayor without an appointment resulted in an overt act beyond the mere representation of claiming to be a U.S. Marshall to constitute a violation of 18 U.S.C. § 912, which prohibits acting as a federal official when you're not. The 10th rejected the defendant's contention that he had to be acting for a purported official purpose, not for personal vindication. All that's needed is an attempt to use the authority of the official to accomplish something. The jury instruction that the jury had to find the defendant "committed any act in the assumed role" sufficiently captured the meaning of "act as such" in the statute. It was okay for the trial court to allow the attorneys to argue during closing about the meaning of that phrase.

U.S. v. Turner, 2009 WL 4457510 (12/4/09) (unpub'd) - The 10th affirms an upward variance from 51-63 months to 84 months for enticing a minor based on a psycho-sexual evaluation that indicated the defendant was a danger to the community.

Meeks v. McKune, 2009 WL 4269701 (12/1/09) (unpub'd) - The decision in Giles v. California, 128 S. Ct. 2678 (2008)---that Crawford prohibited the admission of hearsay by virtue of the forfeiture-by-wrongdoing doctrine unless the defendant disabled the declarant from testifying for the purpose of shutting up the declarant---was not retroactively applicable.