U.S. v. Burke, 2011 WL 310520 (2/2/11) (Kan.) (Published) - The 10th puts a premium on careful pleading in the district court re: suppression motions. As the more specific rule, Rule 12(e)'s waiver rule prevails over Rule 52's plain error provision. So, failure to make a particular argument for suppression amounts to a waiver, precluding plain-error review of the argument, absent the "rare" good cause for not raising the issue below. The 10th acknowledges it has sent mixed messages by reviewing some suppression issues for plain error, but Rule 12(e) was meant to protect the government. In a footnote the 10th notes all the active 10th judges have signed on to the holding. In this case, the defendant had waived the argument that the search warrant affidavit lacked sufficient detail. The 10th does concede in a footnote that the affidavit in this case was unnecessarily vague, e.g. it referred to "child porn" without specifically describing what that meant. The 10th did address the particularity of the warrant. The warrant was sufficiently particular in that it limited the computer search to material related to child porn. Again, the 10th does say "the government can do better," as far as specificity goes.

The factual recitation in the plea agreement that there were 155 child porn images did not prohibit the government from presenting evidence that there were more images than that. There was no explicit stipulation to the number of images. The defendant waived in the plea agreement the right to challenge his sentence.

U.S. v. Mitchell, 2011 WL 322371 (2/3/11) (Utah) (Published) - Another scary tool for the government. A defendant can waive his rights under Rule 410 that preclude the use of a withdrawn guilty plea and statements made during plea negotiations, so as to allow the government to introduce that evidence in the case-in-chief. The 10th saw no good reason why the S. Ct.'s decision in U.S. v. Mezzanatto, 513 U.S. 196 (1995), which allowed a Rule 410 waiver for impeachment, should not also apply to presentation in the case-in-chief. The Rule 410 waiver in this case was knowing and voluntary, even though the court had allowed the withdrawal of the plea because counsel had exerted "undue influence." Counsel telling the defendant he would be a "fool" to reject the plea offer and asking the defendant's brother to convince the defendant to take the plea did not make the plea involuntary.

U.S. v. Michael, 2011 WL 338421 (2/4/11) (N.M.) (unpub'd) - Bad faith destruction of marijuana did not entitle the defendant to dismissal of the charges. Judge Armijo indicated the DEA agent acted in bad faith when he destroyed the marijuana after learning from the AUSA that there was a pending motion to preserve the evidence. The court's preclusion of any evidence of the odor of the marijuana found in the truck the defendant was driving cured any possible prejudice from preventing an odor expert from testifying the marijuana could not have exuded an odor noticeable to the defendant. Any affirmative use of the odor analysis to demonstrate the defendant's lack of knowledge is "purely speculative." The d. ct.'s mere statement that it was overruling the objection to a perjury obstruction-of-justice enhancement constituted a sufficient finding to justify that enhancement because of the PSR's findings and the arguments made by the parties to the d. ct. The 10th admonishes that it would be better practice to make specific findings.

U.S. v. Medlin, 2011 WL 304583 (2/1/11) (Okl.) (unpub'd) - While holding the instructions as a whole adequately communicated the presumption-of-innocence principle the 10th does say the court should instruct the jury the presumption remains with the accused during the jury's deliberations and is extinguished only when the jury finds the defendant guilty beyond a reasonable doubt.

Reyes v. Central New Mexico College, 2011 WL 286361 (1/31/11) (unpub'd) - It was reasonable to temporarily detain the plaintiff where an argument in the financial aid office became contentious and almost escalated to a physical altercation.

U.S. v. Morrison, 2011 WL 286365 (1/31/11) (Kan.) (unpub'd) - Just an example of how bad these waivers can get. By waiving the right to file a § 2255, the defendant waived his right to claim it was ineffective assistance ("IA') for counsel not to present any evidence at sentencing. Counsel told the defendant counsel was not prepared to present evidence. The IA claim did not go to the validity of the waiver itself, only to post-waiver sentencing.

Marshall v. Milyard, 2011 WL 285563 (1/31/11) (Colo.) (unpub'd) - The 10th became troubled that the same assistant AG argued in one case to defeat a habeas claim that the loss of earned-time-credit eligibility cannot be brought in a habeas proceeding and then argued in this case that the § 1983 plaintiff could not raise an earned-time-credit eligibility claim because it's an issue that could be raised in habeas. The 10th sent the case back to d. ct. to clarify the AG's position.

Harris v. Wands, 2011 WL 30482 (2/1/11) (Colo.) (unpub'd) - The 10th rejects the prisoner's argument that, under civil commercial law, his criminal judgment is a warehouse receipt and his acceptance of that negotiable instrument gave him control of his body and entitled him to release.