Friday, June 29, 2012

Defendant was Unlawfully Seized After Looking Into Car

US v. Dell, No. 11-4078 (Utah), 6/28/12 (unpublished) - Grant of motion to suppress evidence because of unreasonable seizure affirmed. Holloway was joined by Hartz; Holmes penned a lengthy dissent. Defendant and female companion are looking into windows of car lawfully parked on the street late one afternoon when cop patrolling neighborhood drives by. Defendant walks away, up the street and in same direction as cop, and female somewhat hesitantly follows him. Cop gets to corner, turns around, drives back down street, stops in the street, and says to defendant "hey, come here." Defendant complies, and about a half hour later is arrested for felon in possession. District court not impresses by cop's assertion that the neighborhood was a high crime area, and that defendant's and female's behavior was suspicious. The panel majority deferred to the district court's assessment of the cop's testimony, and was troubled by the dissent's independent fact finding that would have found reasonable suspicion to justify the seizure.

Thursday, June 21, 2012

District Court Properly Rejected Suppression and Speedy Trial Claims

US v. Madden, 2012 WL 2308633 (10th 6/19/2012)(published)

Defendant's conviction for felon-in-possession affirmed. Motion to suppress properly denied. Initial encounter between defendant and officer was consensual where officer approached defendant, who was sitting in his parked vehicle, for no good reason. "[A]officer may approach an individual, ask a few questions, ask to examine the individual's identification, and even ask for consent to search 'as long as the police do not convey a message that compliance with their requests is required.'” In other words, Defendant could have ignored the cop.

Of course, what begins as "consensual" can quickly become "investigative," as in this case, where the officer asked defendant to get out of his car and "then asked or directed" defendant to sit in the patrol car while the cop ran his name through the computer. The investigative detention was reasonable because defendant had (consensually, of course) told the officer that he didn't have his driver's license with him, which was a violation of state law and city ordinance. Once the officer learned defendant had two outstanding misdemeanor traffic warrants, it was ok to arrest him. Finally, even though the search of the car was not a valid search incident to arrest, the search occurred before Arizona v. Gant and thus the good faith exception saves the day.

Defendant also claimed that his right to a speedy trial was violated because, although the search that found the gun occurred March 3, 2005, the government didn't indict him until four years later, after he served time for state felony drug charges. The Court rejects the Fifth Amendment claim based on the preindictment delay because he failed to show prejudice. The fact that he would have been able to negotiate a concurrent sentence in state court was speculative, not definite, prejudice. His Sixth Amendment claim failed because he wasn't arrested on the state charges until February 13, 2009.

Tuesday, June 19, 2012

Claim of Prosecutorial Misconduct in Habeas Proceeding Properly Raised in Rule 60(b) Motion

In re Pickard, -- F.3d --, 2012 WL 2236616 (10th Cir. 6/18/12) (KS) - after defendants were denied relief on their 28 USC § 2255 claims that they were deprived of their rights under Brady and Giglio by the suppression of the informant's criminal and informant background, defendants filed motions in the district court under Fed. R. Civ. P. 60(b) seeking to set aside the judgment in the § 2255 proceedings on the ground that newly discovered evidence showed that the government made a false statement in the § 2255 proceedings (that no agency other than the DEA participated in the investigation leading to defendants' trial on LSD charges) that forestalled the discovery from which they could have established the merits of their underlying claims. While the defendants' claims of Brady/ Giglio violations constituted unauthorized second-or-successive claims, their claims that prosecutorial misconduct in the § 2255 proceedings affected the integrity of those proceedings were properly raised under Rule 60(b). Accordingly, the case is remanded for the district court to address the Rule 60(b) claims.

Wednesday, June 06, 2012

Where Lifetime Supervised Release Authorized, District Court May Impose Any Term Following Revocation

U.S. v. Handley, 2012 WL 1680841 (5/15/12) (Kan.) (Published) - When a defendant is convicted of a violation of 21 U.S.C. § 841(b)(1)(A) and (C) or any other statute allowing for lifetime supervised release, there is no restriction on the length of supervised release a district court may impose following revocation of supervised release. While that could mean a defendant will spend a lot of time in prison throughout his whole life, that's the defendant's fault. If he behaved himself, that wouldn't happen. 18 U.S.C. § 3583(b)(1) limits most terms of supervised release to five years or less, but it says 'except as otherwise provided," and 21 U.S.C. § 841(b)(1) otherwise provides. The 4 years of supervised release imposed in this case was reasonable in light of the defendant's failure to deal with his drug problems, his obvious need for treatment and his multiple violations of conditions.

Unpublished Decisions

U.S. v. Aragones, 2012 WL 1764222 (5/18/12) (N.M.) (unpub'd) - The 10th reverses a suppression grant. According to the 10th, the following facts created reasonable suspicion the defendant violated ABQ's ordinance prohibiting "entering upon any private property and looking into any occupied dwelling without the consent of the occupant or owner of the dwelling: the defendant with a gang tattoo on his neck was walking through a high crime neighborhood in the South Valley; he made an abrupt move away from the officer as soon as he saw him; he approached a home's side door without conversing with the residents visible inside; and the defendant glanced about in a manner consistent with an attempt to find a route to flee - according to the cop the judge found incredible on several matters. The cop did not have to wait and see whether or not the residents welcomed the defendant. Officers can act before suspects do something illegal, as in Terry and Wardlow.

U.S. v. Coleman, 2012 WL 1764224 (5/18/12) (N.M.) (unpub'd) - The defendant failed to prove the decision-maker in his case, an officer other than Officer Ben Strain, was racially motivated when he decided to submit the African-American defendant to a Level II inspection. Evidence in a civil case that Officer Strain was a racist, and aggregated information about all officers at the Lordsburg port of entry, did not prove that the particular officer in this case was racially motivated in this particular case. And besides, the defendant was really nervous and that prompted the extra inspection.

U.S. v. Mullane, 2012 WL 1677417 (5/15/12) (Kan.) (unpub'd) - It was not plain error that the supervised release violation report and revocation petition did not refer specifically to a statutory provision that prohibited possession with intent to distribute meth, yet the d.ct. found the defendant guilty of that crime and sentenced accordingly. While other circuits are picky about the defendant receiving notice of the specific statute the defendant violated, the 10th has no cases requiring such specificity. So no error could be plain.

U.S. v. Rodriguez, 2012 WL 1764212 (5/18/12) (N.M.) (unpub'd) & U.S. v. Richards, No. 10-3314 (5/24/12) (Kan.) (unpub'd) - In Rodriguez, the 10th "commended counsel for his forthrightness in making these concessions." In Richards, the 10th describes counsel's Anders brief as "helpful and excellent."

Multiple Drug Sales Were Committed on Different Occasions; ACCA Sentence Affirmed

US v. Delossantos, 2012 WL 1948645 (Tenth Cir. May 30, 2012), published. Defendant pled guilty to felon in possession of a firearm. The only issue was whether he was an armed career criminal based on three or more prior convictions for a serious drug offense committed on occasions different from one another. There was no question he had four prior drug trafficking convictions. He argued they were not committed on occasions different from one another but were rather part of a single criminal episode. The court affirms that multiple drug sales qualify as separate offenses even if they are part of a sting operation orchestrated by the government.

20-year Sentence Affirmed Although Defendant Pled Guilty to a Single 924(c) Count

US v. Gantt, 2012 WL 1942085 (10th Cir. May 30, 2012), published. Defendant was charged with felon in possession, brandishing a gun during a crime of violence, and felon in possession of a firearm, all arising out of a bank robbery. He pled guilty to the 18 USC 924(c) count, with the government agreeing to dismiss the other two counts and to recommend a sentence "at the low end of the guideline sentencing range." The relevant guideline for a 924(c) count does not recommend a range, however, but simply sets the statutory minimum sentence, which was 7 years. The judge indicated he would impose a 20-year sentence. Defense counsel objected, and the judge allowed time to respond (although indicating he wouldn't listen). At a second hearing, the judge characterized the 20-year sentence as a variance from the guidelne sentence of 7 years, and declined to change his mind, emphasizing the need to protect the public from the defendant.

The COA rejected defendant's claims that the district court committed both procedural and substantive error. It rejects the first argument that the court failed to adequately explain itself, emphasizing that to preserve a claim that the district court's explanation for its sentence was insufficient, an objection must be made, generally after sentence is imposed, alerting the district court to the inadequacy of its explanation.

It rejects the second claim of procedural error - that the district court failed to consider the guideline sentence - because (again) defendant failed to repeatedly object to the sentence. Even though the defendant argued at the first hearing that there was a recommended guideline sentence, he didn't complain again after the sentence was imposed at the second hearing. His third claim, that the district court didn't consider the unwarranted disparity between the defendant and the codefendant's sentences, was also not preserved. The argument made on appeal is not the one he made below. Even that argument was insufficient. Even though he mentioned the disparity in one of his memoranda, he did not further elaborate and neither defendant nor his counsel complained at the hearing that the court didn't consider the disparity; "[a]n unelaborated snippet cannot preserve an issue for appeal." The fourth claim of procedural error - that the district court failed to consider that the defendant's prior aggravated battery conviction was for an act of self-defense - simply had no merit because he was convicted of aggravated battery. Finally, the sentence of 20 years for brandishing a firearm during a bank robbery was reasonable.

"Obliterate" for Guideline Purposes Defined

US v. Justice, 2012 WL 1942096 (10th Cir. May 30, 2012), published. 4-level enhancement for possessing a weapon with an obliterated serial number (USSG 2K2.1(b)(4)) was properly imposed even though the serial number was restored with chemicals by the forensics lab. "We hold that obliterate in the context of § 2K2.1(b)(4) means to make indecipherable or imperceptible, not necessarily irretrievable[.]" 4-level enhancement for possessing a firearm in connection with another felony offense (USSG 2K2.1(b)(6) was properly imposed because the evidence was sufficient to show that possessing the gun facilitated the defendant's possession of drugs by emboldening him. Court's failure to make a specific finding regarding the facilitation was not plain error.

Withdrawal from Conspiracy Defense Among Issues Addressed in Car-theft Case

US v. Burks, 2012 WL 1925541 (Tenth Cir. May 29, 2012), published. Defendant was charged as an accomplice in an auto-ring theft, in which he obtained key codes to automobiles that were then stolen. One of these vehicles was an Escalade stolen in Nevada and found in Utah.

Burks argued he withdrew from the conspiracy by becoming an informant for the government and he should be shielded from prosecution. The district court disagreed, but granted a jury instruction on withdrawal that placed the burden of proof on the defendant. The COA agrees that withdrawal can be a valid defense to aiding and abetting a federal crime, and also agrees that the burden of proving withdrawal rested with the defendant.

Defendant objected to an instruction permitting an inference that the Escalade was transported to Utah by an individual who knew it was stolen. In this case, there was sufficient evidence that the person (Martinez) who transported the vehicle was involved in the scheme and knew the Escalade was stolen. Therefore, the instruction was not an abuse of discretion.

The evidence was sufficient to support the conviction. Defendant argued that the vehicle was not actually stolen when it crossed state lines based on the facts that it was stolen; stripped; the frame was recovered by authorities and sold at auction to the ringleaders (who thereby got legal title); and the vehicle was then reassembled. The court recognizes that the argument is "clever," but is unpersuaded: "The Dyer Act was intended to cover a wide range of activities, and passed as an effort to close loopholes that auto thieves had exploited. ... To hold that the transportation and possession of the Escalade did not violate the Dyer Act because the authorities were made an unwitting link in the chain of theft would create an illogical loophole in direct contradiction to Congress’ intent." Finally, the defendant's aiding and abetting conviction was supported by evidence that he provided the key codes knowing the vehicles would be stolen.

The restitution order was properly based on the actual loss to the owners and the insurance company.

Defendant Wins Remand Because of Failure to Give Miranda Warnings

US v. Benard, 2012 WL 1890059 (10th Cir. 2012) (published). A rare defense win. Defendant convicted of drug offenses appealed the denial of his suppression motion and gets a remand on one issue.
Initial stop: Police had probable cause to stop defendant's vehicle based on a reasonable belief the car contained contraband. The police had been investigating a suspected drug dealer who operated out of a tire store and had wiretapped his phone. "Tommy" frequently called to buy drugs. Defendant was the individual observed visiting the store after several such calls. Following one call and visit, the officers requested that someone stop the defendant's vehicle. The trooper who stopped him was not told of the surveillance but ran a check on the vehicle and received a message it was not insured. The officer stopped him based on the apparent insurance violation. The Court affirmed the validity of the initial stop based on the fact that the officers had probable cause to believe the car contained contraband because "Tommy" had arranged to buy cocaine from the dealer and then showed up at the right time. Thus, the Court did not reach the alternative holding that the stop was justified based on the no-insurance violation. It also did not reach the scope of the detention issue.
Pat-Down Search: The defendant consented to a pat-down search. The district court's finding that consent was not coerced was not clearly erroneous because only two officers were present and only one officer approached the defendant. The officers did not draw their weapons. The officer's voice was "authoritative" but "not aggressive or threatening." The encounter was on a public street.
Miranda issues: The defendant was never Mirandized. The denial of the motion to suppress defendant's statements made during the pat-down search was not error because he was not in custody until he was handcuffed and formally placed in custody following the discovery of marijuana in his pocket. However, the statements he made following his formal arrest should have been suppressed. The trooper's question about what else might be in the car (to which Defendant responded there might be a gun left by his girlfriend -- why do these guys always think it's ok for their girlfriends and wives to leave guns in the car?) was not justified by the public safety exception because defendant was already in custody and police already had control of the car.
Withdrawal of conditional plea: The court rejects the government's argument that defendant should not be allowed to withdraw his conditional plea on remand because the most damaging evidence against him was not suppressed. However, it is for the defendant to choose whether or not to withdraw his plea upon remand.

Rejection of 3582(c)(2) Motion OK'd

US v. Osborn, 2012 WL 1890083 (10th Cir. 2012), published. Even though the defendant was eligible for a sentence reduction under 18 USC 3582(c)(2), the district court did not abuse its discretion in refusing to grant the reduction.

Tenth Rejects Numerous Arguments And Affirms Death Sentence

DeRosa v. Workman, 2012 WL 1893732, (10th Cir. 2012), published. The court affirms an Oklahoma capital sentence. The Court rejects the petitioner's argument that defense counsel failed to present available mitigating evidence. The first Strickland prong was not met because the counsel's performance was not deficient. The Court concludes that defense counsel was aware of most of the relevant mitigating events and the additional evidence was either duplicative or of marginal value. The second Strickland prong was not met because the petitioner could not prove prejudice. The COA also rejects the claims of prosecutorial misconduct. The Oklahoma courts reasonably concluded that the prosecutor did not commit misconduct by denying the existence of a deal with one testifying accomplice (White); it was not clear there was a deal at the time of trial, charges were reduced later but the reasons were clear (White was just the driver), and defense counsel was able to cross examine White at trial. The prosecutor did not improperly comment on the petitioner's right to remain silent. The Court agreed with the OCCA that the prosecutor should not have accused defense counsel of lying but the witness in question was not crucial and petitioner's right to due process was not violated. The COA agrees with the Oklahoma courts that prosecutorial comments vouching for state witnesses did not have a substantial or injurious effect or influence on the verdict. Although improper for the district attorney to refer to the elderly victims by their pet names of "Papa" and "Mama Glo" rather than their formal names, it was not so prejudicial as to render the trial fundamentally unfair or the death sentence unreliable. Similarly, improper victim impact testimony did not have a substantial and injurious effect or influence the jury's verdict. Death sentence affirmed.

Oklahoma Second-Degree Burglary Not Categorically an ACCA Predicate

US v. Cartwright, 2012 WL 1864318 (10th Cir. 2012), published. An Oklahoma conviction of second-degree burglary is not categorically a basis for ACCA enhancement. Applying the modified categorical approach, Defendant's conviction was a predicate crime of violence for ACCA purposes. Defendant's burglary was an intrusion "by a tool or instrument" and did not require personal entry. Following a lengthy discussion of what is burglary under the Model Penal Code, Taylor, etc., the Court concludes that this type of burglary qualifies as generic burglary. Regarding another conviction, Defendant's plea of nolo contendre constituted an admission to the essential elements of generic burglary and could be used as a predicate ACCA conviction.

Monday, June 04, 2012

Edwards v. Roberts, 2012 WL 1592973 (5/7/12) (Kan.) (unpub'd) - Troubling habeas ruling that the § 2254 petitioner was not entitled to equitable tolling due to lack of diligence, not because he didn't act diligently to file the federal petition once his counsel withdrew, but because he waited 8 months before filing his initial state habeas.
Romero v. Goodrich, 2012 WL 1632498 (5/10/12) (N.M.) (unpub'd) - The habeas petitioner challenging his Nambe tribal court convictions preserved his challenge to the convictions, rather than just the sentence, by requesting a new trial in tribal court, even though it sounded like he was complaining only about the length of the sentence [8 consecutive one-year sentences imposed without counsel]. But the case was moot where the tribe commuted his sentence to time served when it learned the government indicted the petitioner for assault of a federal officer. A challenge to a conviction usually isn't moot, even when the sentence is finished, because collateral consequences are presumed. But here the petitioner waived a claim to the presumption by not objecting to the magistrate judge's failure to apply that presumption. The possibility of a sentence enhancement due to the convictions is usually too speculative to warrant a finding of collateral consequences. Here the convictions were used as a ground for an upward departure in the federal case. But the petitioner never pointed that out before the magistrate judge or the d. ct. So that argument and the argument that the convictions affected the petitioner's eligibility for tribal office or tribal employment, which was also not raised below, were waived. The petitioner had long ago forfeited other civil rights by accumulating a lot of other convictions.
Shepherd v. Holder, 2012 WL 1592973 (5/8/12) (Published) - The immigration petition met the finality and exhaustion requirements, even though the petitioner petitioned for review of the IJ's decision without appealing to the BIA. The appeal would have been futile because the BIA had already rejected the estoppel claim. The 10th had jurisdiction to consider whether the factual conditions existed to establish jurisdiction by virtue of the petitioner's citizenship, without regard to how the BIA resolved the question. Unfortunately, the undisputed record established the petitioner was at least 18 when Congress passed an Act which would otherwise have made her a citizen, as an adopted LPR child residing in the U.S. with a citizen parent. That the government at first conceded the petitioner was a citizen did not estop the 10th from making its own determination to the contrary. The petitioner goes back to India from whence she was brought to the U.S. as a baby.
US v. Diaz, 2012 WL 1592967 (10th Cir. 5/8/12) Defendant was convicted pursuant to the Assimilative Crimes Act of knowingly leaving the scene of a fatal accident in Indian country. The court affirmed. The government sufficiently proved the victim (a pedestrian struck on the side of the road) was a non-Indian for jurisdictional purposes based on the testimony of his father regarding the family's history. The jury instructions adequately informed the jury that it had to find the defendant knew that an accident had occurred. The trial court did not abuse its discretion in allowing in, as FRE 404(b) evidence, the fact that the defendant had been drinking before the accident. The evidence was admitted for the proper purpose of establishing a reason for the defendant having left the scene, and relevant to that issue. It was no more prejudicial than the charged crime of leaving the scene of a fatal accident. Evidence of the victim's intoxication was properly excluded as irrelevant. The judge's comments regarding certain cross-examination of a government witness about how the judge could not see the relevance of the questions were not an abuse of discretion or deprive the defendant of a fair trial. And they were harmless in light of government evidence that the defendant had made calls to her sister, son, and a member of the tribal police about having hit something. The defendant was not entitled to a new trial on her Brady claim. One government witness was a sheriff's officer who had been involved in a SWAT team incident in the 1990s. Defendant's cousin was involved in the incident, and an officer was killed. The cousin was acquitted, based on self-defense, and later sued the SWAT team. The government did not disclose this information. The court doubted that this information was favorable, and even if it was considered favorable, the undisclosed evidence was not material in light of the limited probative value of the officer's testimony.
U.S. v. Johnson, 2012 WL 1524019 (5/2/12) (Okl.) (unpub'd) - The defendant waived his argument that the Miranda warnings were incomplete by not raising the issue below, although he did raise other Miranda issues. That he argued he actually had raised the issue below showed that he did not have good cause for not raising the issue. It was okay for the d. ct. to instruct the jury that the government was under no obligation to use all the investigative methods at its disposal. The defendant's instant bank robbery offense qualified as a strike for the three-strikes statute. The defendant did not meet his burden to prove no threat of a dangerous weapon was used in the offense where he told the teller he had a detonator, although the detonator was actually fake. The categorical approach does not apply to prior convictions for the 3-strikes statute, It's the facts, not the elements, that matter [Isn't that a violation of Apprendi, etc.?]. The materials showed that, with respect to a prior conviction, the defendant used physical force by beating a child and he used a dangerous weapon, an extension cord, to cause serious bodily injury. Defendant gets a life sentence.

Jordan v. Wiley, 2012 WL 1435933 (4/26/12) (Col.) (unpub'd) - The 10th upholds discipline imposed for violating BOP's rule against an inmate possessing his own PSR.

Morales v. Jones, 2012 WL 1563886 (5/4/12) (Okl.) (unpub'd) - The 10th grants a pro se prisoner's rehearing petition and holds that the plaintiff's letter to the d. ct. requesting forms to appeal was the equivalent of filing a notice of appeal. Therefore his appeal was timely. But he loses on the merits.

Palma-Salazar v. Davis, 2012 WL 1511775 (5/1/12) (Col.) (Published) - Since the plaintiff challenged his transfer from one facility to another (ADX) and the transfer seemed to the 10th like a garden-variety prison placement, he should have proceeded pursuant to Bivens, not § 2241.

Pilot's Conviction for Flying while Drunk Affirmed

U.S. v. Cope, 2012 WL 1511777 (5/1/12) (Col.) (Published) - The defendant, a pilot, and his co-pilot flew a United Express flight from Austin to Denver without incident. The co-pilot noticed the defendant had a bit of a puffy face and his eyes were a little red. After the flight, the co-pilot noticed the defendant smelled of alcohol. The co-pilot told the defendant if he had any problem taking a breathalyzer, he should call in sick. The defendant said: "I guess I better call off sick then." But he ended up being breathalyzed anyway, recording a .094 and 20 minutes later a .084. At the Denver airport, the defendant told the co-pilot he drank alcohol on a few occasions the night before. The defendant exhibited no outward signs of impairment. Venue was proper in Denver because venue for flying under the influence of alcohol in interstate commerce lies in any state in which commerce moves. It was not error for the d. ct. to rely on the breathalyzer results. The government expert explained the high elimination rate evidenced by the results could be the result of the defendant being an experienced drinker. "Under the influence" means the person has a less than normal ability for clarity and control. Outward signs of intoxication are not necessary to prove a defendant is under the influence. Although 18 U.S.C. § 343 presumes a BAC over .10 establishes under the influence, a lower score does not establish innocence. Overall there was sufficient evidence to prove guilt beyond a reasonable doubt. The 10th says it was okay for it to consider the defendant's statements to the co-pilot, even though the d.ct., who was the fact-finder, said it didn't. The d. ct. did not rely on FAA regulations because, although it mentioned the regs in its findings of facts, it didn't mention the regs in its conclusions of law. And, anyway, even if it would be error to consider the regs, the error would have been harmless because there was sufficient evidence of guilt.

Improper Jury Instructions Result in Partial Reversal

U.S. v. Bader, 2012 WL 1548579 (5/3/12) (Col.) (Published) - A partial defense victory re: jury instructions. The d. ct. committed plain error warranting reversal of 2 counts when it submitted an instruction that allowed the jury to convict on a theory upon which the defendant was never charged. The instruction told the jury it could convict the defendant, a pharmacist, of illegally importing a finished drug product [this was charged] or an ingredient [this was not charged]. There was a reasonable probability the jury concluded that, even though the HGH was not a finished drug product subject to a new drug application requirement, it was still an ingredient that was imported illegally. Such a probability of a conviction on an unindicted theory impugned the fairness, integrity and public reputation of the defendant's trial. The 10th also reverses the forfeiture of 4.8 million dollars because the amount might have been affected by the reversed convictions.
The defendant fails in his challenges to all of his other convictions. There was no First Amendment problem with evidence of advertisements by the defendant's business. The evidence showed the defendant purposefully marketed HGH and testosterone cypionate for unlawful anti-aging and body-building uses. The government didn't have to show the defendant filled an improper prescription to establish he violated 21 U.S.C. § 333. It was enough that he possessed the HGH with the intent to distribute it for an unlawful purpose. There was enough evidence that the defendant illegally imported a finished product and he knew it was illegal. So he can be retried on the reversed counts relating to that offense. "Overt act" and "substantial step" are different concepts. "Substantial step" is a higher threshold. But the law of the case required the government to present enough proof of a substantial step because it did not object to the "substantial step" instruction. And it did present enough proof to sustain the defendant's conspiracy conviction. For example, the defendant approved advertisements promoting big muscles and fighting aging. [The notion that an ad was not for body building was contradicted by the "overtly muscular male image prominently displayed"]. The defendant could not rely on a court decision for an estoppel defense. A court is not a government official or agency. The defendant's huge business clearly did not fall into the exemption for compounding for individual patients pursuant to valid prescriptions. The d. ct. permissibly limited the defendant's cross to stop counsel from "surreptitiously" introducing a legal definition of compounding that favored the defense. That the government got upset with a witness while interviewing her before trial did not amount to intimidating a witness. The government did not commit misconduct by objecting too much during trial. The prosecutors were just being zealous. Making an argument in only one sentence in the brief constituted a waiver of the argument.