Two published defense victories on jurisdiction in Indian Country and venue
U.S. v. Langford, 2011 WL 1368548 (4/11/11) (Okl.) (Published) - 18 U.S.C. § 1152 and the Assimilative Crimes Act do not give the federal courts jurisdiction over a non-Indian defendant charged with committing a crime in Indian country that has no human victims, in this case cockfighting. Oklahoma did have jurisdiction over the offense under its law . The 10th rejected the idea that the defendant's status as a non-Indian was a mere "technicality." It was an essential element under § 1152. There was no discussion as to whether the chickens were members of an Indian tribe.
U.S. v. Smith, 2011 WL 1367032 (4/12/11) (Okl.) (Published) - There was no venue in Oklahoma under 18 U.S.C. § 1001(a)(2) for false statements made in Minnesota about events that occurred in Oklahoma. The 10th refused to adopt a "substantial contacts" rule. In this case, the statements began, continued and ended during the interview in Minnesota, since the interview was not recorded, transcribed or otherwise preserved for use in Oklahoma. And there was insufficient evidence that the defendant violated 18 U.S.C. § 664, an embezzling statute, because the government did not prove he deprived anyone of property. The Board of a non-profit voted in its discretion to contribute to an employee profit-sharing plan. Without telling the board, the defendant, who was executive director, voided the contribution check because he was not sure there would be funding for it. There was no contractual right in the plan to collect the contributions so there was no property to be deprived of.
U.S. v. Ortiz, 2011 WL 1388789 (4/13/11) (N.M.) (unpub'd) - This amending of a prior decision provides an interesting insight into how the US Attorney's Office works, or doesn't. In the original decision, the 10th Circuit said an AUSA's improper questioning constituted prosecutorial misconduct. The government won anyway because it was found not to be prejudicial enough to warrant a new trial. Nonetheless, the government moved to amend the decision because a court finding of misconduct triggers a whole investigation by Eric Holder's folks in D.C. But if the court just says the prosecutor did something improper, that does not trigger an investigation. The 10th obligingly changed its wording to say: "the prosecutor asked an improper question that Ortiz alleges rose to the level of prosecutorial misconduct." Problem solved.
U.S. v. McConnell, 2011 WL 1388692 (4/13/11) (Okl.) (unpub'd) - The 10th remands so that the d. ct. can reconsider the defendant's claim that his appellate counsel was ineffective for failing to raise the issue of inadequate notice of a ground for upward departure [not variance]---a post-conviction firearm sale in a firearms case. The 10th noted the defendant alleged sufficient prejudice from the lack of notice because he could have impeached the government witnesses and presented an exculpatory witness and the court increased his sentence 8 months due to the new information.
U.S. v. Eskridge, 2011 WL 1388877 (Kan.) (4/13/11) (unpub'd) - Writing "2 short paragraphs" asserting an evidence-insufficiency claim constituted a waiver of the argument because it didn't adequately develop the issue. For guideline "crime of violence" purposes, under Shepard, the defendant does not have to be the one that utters the word "dwelling" at a plea hearing to find he had been convicted of burglary of a dwelling. It was enough that the judge conducting the plea hearing said the case involved a "residence" and the defendant did not disagree with that characterization.
Sanchez v. Holder, 2011WL 1446515 (4/15/11) (unpub'd) - Any offense with an intent to defraud is a crime of moral turpitude. It doesn't matter whether the fraud obtained something of value. In any event, the 10th rejected the notion that lying to get a job led to getting nothing of value because it was an even exchange of money for labor. Is that a Marxist theory or Adam Smith? Getting a job does have value, the 10th says. We all can agree with that, right?
Fournerat v. Wisconsin Law Review, 2011 WL 1366900 (4/12/11) (Okl.) (unpub'd) - The 10th throws out a lawsuit by a criminal defense lawyer against a law review. The lawyer agreed with the review's assessment that his performance in a capital trial was "amazingly inept," but he disagreed that his ineptness was due to greed or unscrupulous conduct.
U.S. v. Smith, 2011 WL 1367032 (4/12/11) (Okl.) (Published) - There was no venue in Oklahoma under 18 U.S.C. § 1001(a)(2) for false statements made in Minnesota about events that occurred in Oklahoma. The 10th refused to adopt a "substantial contacts" rule. In this case, the statements began, continued and ended during the interview in Minnesota, since the interview was not recorded, transcribed or otherwise preserved for use in Oklahoma. And there was insufficient evidence that the defendant violated 18 U.S.C. § 664, an embezzling statute, because the government did not prove he deprived anyone of property. The Board of a non-profit voted in its discretion to contribute to an employee profit-sharing plan. Without telling the board, the defendant, who was executive director, voided the contribution check because he was not sure there would be funding for it. There was no contractual right in the plan to collect the contributions so there was no property to be deprived of.
U.S. v. Ortiz, 2011 WL 1388789 (4/13/11) (N.M.) (unpub'd) - This amending of a prior decision provides an interesting insight into how the US Attorney's Office works, or doesn't. In the original decision, the 10th Circuit said an AUSA's improper questioning constituted prosecutorial misconduct. The government won anyway because it was found not to be prejudicial enough to warrant a new trial. Nonetheless, the government moved to amend the decision because a court finding of misconduct triggers a whole investigation by Eric Holder's folks in D.C. But if the court just says the prosecutor did something improper, that does not trigger an investigation. The 10th obligingly changed its wording to say: "the prosecutor asked an improper question that Ortiz alleges rose to the level of prosecutorial misconduct." Problem solved.
U.S. v. McConnell, 2011 WL 1388692 (4/13/11) (Okl.) (unpub'd) - The 10th remands so that the d. ct. can reconsider the defendant's claim that his appellate counsel was ineffective for failing to raise the issue of inadequate notice of a ground for upward departure [not variance]---a post-conviction firearm sale in a firearms case. The 10th noted the defendant alleged sufficient prejudice from the lack of notice because he could have impeached the government witnesses and presented an exculpatory witness and the court increased his sentence 8 months due to the new information.
U.S. v. Eskridge, 2011 WL 1388877 (Kan.) (4/13/11) (unpub'd) - Writing "2 short paragraphs" asserting an evidence-insufficiency claim constituted a waiver of the argument because it didn't adequately develop the issue. For guideline "crime of violence" purposes, under Shepard, the defendant does not have to be the one that utters the word "dwelling" at a plea hearing to find he had been convicted of burglary of a dwelling. It was enough that the judge conducting the plea hearing said the case involved a "residence" and the defendant did not disagree with that characterization.
Sanchez v. Holder, 2011WL 1446515 (4/15/11) (unpub'd) - Any offense with an intent to defraud is a crime of moral turpitude. It doesn't matter whether the fraud obtained something of value. In any event, the 10th rejected the notion that lying to get a job led to getting nothing of value because it was an even exchange of money for labor. Is that a Marxist theory or Adam Smith? Getting a job does have value, the 10th says. We all can agree with that, right?
Fournerat v. Wisconsin Law Review, 2011 WL 1366900 (4/12/11) (Okl.) (unpub'd) - The 10th throws out a lawsuit by a criminal defense lawyer against a law review. The lawyer agreed with the review's assessment that his performance in a capital trial was "amazingly inept," but he disagreed that his ineptness was due to greed or unscrupulous conduct.
posted by Anonymous at 8:58 AM
<< Home