Unpublished Decisions

U.S. v. Rivera-Carrera, 2010 WL 2926543 (7/28/10) (Wyo) (unpub'd) - The 10th acknowledged it was doubtful a conspirator's explanation of the players involved in a conspiracy to an unconnected bystander was "in furtherance" of the conspiracy under the co-conspirator-hearsay rule. But the error was harmless. Also, the d. ct.'s finding that the defendant's testimony was "at total variance from that of other witnesses" and represented a "total denial" did not constitute the finding of "wilful lying" required to justify a perjury/obstruction of justice enhancement. But the "sweeping and material nature of the defendant's false denials" established the judge correctly applied the enhancement.

U.S. v. Weiss, 2010 WL 2911718 (7/27/10) (Colo) (unpub'd) - The 10th suggests it would not be witness tampering in violation of 18 U.S.C. § 1512(b) to suggest to witnesses that they not disclose evidence to investigators. But here the government proved the defendants suggested the witnesses lie. Because the tampering regarding the fraud offenses took place after the guidelines got worse for fraud, it was not a violation of the Ex Post Facto Clause to apply the newer, worse guidelines, even though the frauds took place before the guideline worsening.

U.S. v. Cooper, 2010 WL 2982931 (7/30/10) (Okl) (unpub'd) - Even though appeal waivers are not supposed to be enforceable when the sentence is above the statutory maximum, the appeal waiver waived the right to argue the sentence was above the stat max on the grounds that the d. ct. applied the wrong stat max. The defendant "clearly understood" that the d. ct. could impose a sentence above 20 years if it found the defendant's prior conviction increased the stat max to 40 years under 18 U.S.C. § 2252(b)(1). The defendant waived his right to argue on appeal that the conviction was not a qualifying conviction under § 2252(b)(1).