U.S. v. Thornburgh, No. 09-5156 (5/27/11) (Okl.) (Published) - There was sufficient evidence the conspiracy to defraud carried on into the statute of limitations period where the defendant stopped communicating with one of the conspirators, but still engaged in some conduct that furthered the conspiracy, in particular "lulling" the victims. The 10th confines the holding in U.S. v. Santos, 553 U.S. 507 (2008) to its facts: "proceeds" in the money laundering statute with respect to an illegal gambling operation means "profits," but otherwise, for example in this wire fraud case, "proceeds" can be gross receipts. Any error in failing to instruct the jury properly was not plain, given how differently the circuits have applied Santos. [And, besides, Congress has now defined "proceeds" as "any property" and so overruled Santos.] Because the defendant did not identify which co-conspirator statements were inadmissible, the 10th refused to address the question. It was plain error not to instruct the jury that it had to find the defendant violated 18 U.S.C. § 1349 after its enactment on July 30, 2002. But the defendant did not show his substantial rights were affected because the defendant's activities before and after that date were pretty much the same. There was no plain error in failing to sever defendants, where the defendants pursued similar defenses. The defendant waived his right to be present at trial when his counsel asked the court to allow the defendant to absent himself for medical reasons and said he thought it best for his client that the trial continue in the defendant's absence.

U.S. v. Fishman, 2011 WL 2084207 (5/27/11) (5/27/11) (Okl.) (Published) - The 10th addressed some of the same issues the defendant's co-defendant, Mr. Thornburgh raised and the following issues. The defendant did not "in effect" testify before the grand jury pursuant to a grant of immunity. No one authorized to give immunity did so. The defendant was deeply involved in the conspiracy. It was unlikely the defendant could watch as months went by and investors failed to get the money they were promised and not be aware the scheme was fraudulent. The defendant's brief was "woefully inadequate" when it argued for a half-page that the evidence of money laundering was insufficient. And besides the evidence was sufficient. And there was also sufficient evidence there was one conspiracy, not three. There's one conspiracy as long as the conspirator's goals are not at cross purposes, even if participants come and go. The defendant's argument that the amount of loss for his guideline calculation was unreasonable was too abbreviated to warrant addressing. The defendant did not meet his burden to establish he withdrew from the conspiracy before the statute of limitations kicked in. Cooperation with authorities is not enough to show withdrawal.

Byrd v. Workman, 2011 WL 2084204 (5/27/11) (Okl.) (Published) - A denial of habeas relief primarily based on the really stringent IA and habeas standards. There was no need to apply the harmless error standard because the Strickland prejudice prong is at least as difficult a standard to meet. Counsel failed to discover that only 4 of the petitioner's 7 convictions were countable under Oklahoma's habitual offender statute. As a result, the jury who decided guilt and sentence were exposed to more convictions than they would otherwise have been. The 10th thinks it's a novel argument to say the petitioner might have received a lower sentence if the jury was exposed to less convictions. Since no S. Ct. case had indicated such an analysis was required, the petitioner was out of luck. The Okl. appellate court's mistaken assumption that the trial court ruled all the convictions were admissible for impeachment purposes did not entitle the petitioner to relief. He still had to show the state court's decision was "based on" the mistake and establish the 2 prongs of the Strickland test. He did not prove the extra number of convictions before the jury affected the jury's decision. This case was different from an unpublished 10th case where the prosecutor stressed to the jury the number of convictions.

U.S. v. Thompson, 2011 WL 2064849 (5/26/110 (Col.) (unpub'd) - An unremarkable holding that a bottom-of-the-guideline-range sentence was substantively reasonable, but a remarkable concurrence by Judge O'Brien. He wrote separately to "commend" the d. ct. for its "resolve" in imposing "condign" [i.e., deserved, I had to look it up], punishment. He footnoted Daniel Webster's quote: "I would invoke those who fill the seats of justice, and all who minister at her altar, that they execute the wholesome and necessary severity of the law." He goes on to opine that the defendant was a "confirmed grifter" who received a sentence that was perhaps less, but certainly not more, than she deserved.

U.S. v. Heath, 2011 WL 2023425 (5/25/11) (Okl.) (unpub'd) - "Access devices" under 18 U.S.C. § 1029(e)(1) includes credit card account numbers alone.

Richwine v. Romero, 2011 WL 2066552 (5/26/11) (N.M.) (unpub'd) - A habeas procedural win. The state had expressly waived exhaustion when it admitted all the petitioner's issues were exhausted. The d. ct. erred when it decided some of the issues were unexhausted without considering the state's waiver. The 10th also interestingly [to me] indicated perhaps a petitioner may exhaust in N.M. by just raising issues before the N.M. S. Ct. without raising them below.

U.S. v. Goodwin, 2011 WL 2006335 (5/24/110 (Kan.) (unpub'd) - The rule that precludes a conviction for conspiracy for just a buyer-seller relationship does not apply when the defendant purchases the drugs for resale. There was sufficient evidence the defendant participated in the conspiracy, even though he was a low-level street dealer. He was still integral to the conspiracy. There was sufficient evidence to establish venue in Kansas that either he or the person he called was in Kansas when the relevant phone conversation occurred. It was not cruel or unusual punishment to impose a life sentence for a first-time felony conviction of possession with intent to distribute 50 grams or more of cocaine.

U.S. v. Temple, 2011 WL 2006308 (5/24/11) (Kan.) (unpub'd) - It was okay to instruct the jury on the offense of aiding and abetting a conspiracy. There is such a thing. The defendant's subjective lack of knowledge that her co-conspirator possessed firearms in connection with drug trafficking was not enough to meet her burden to show the connection was "clearly improbable" under USSG § 2D1.1, comment. (n. 3).

U.S. v. McDaniel, 2011 WL2006304 (5/24/11) (Kan.) (unpub'd) - Rule 901 sets a "low bar" for admission of voice identification evidence. "Minimal familiarity" with the defendant's voice is enough for an officer to identify the voice on recordings. How much the defendant talked to the officer only went to the weight of the officer's testimony.

Wise v. Chester, 2011 WL 2023415 (5/25/11) (Kan.) (unpub'd) - BOP correctly refused to give the defendant credit for time he spent in custody after he was taken from state custody to federal custody pursuant to a writ of habeas corpus ad prosequendum because the state gave him credit against his state sentence for that time. The feds were just temporarily borrowing the defendant.