Friday, September 28, 2012

Law and Neuroscience Resource

I received from another list serve information about a webpage, sponsored by Vanderbilt University, that states:

The Research Network on Law and Neuroscience, supported by the John D. and Catherine T. MacArthur Foundation, addresses a focused set of closely-related problems at the intersection of neuroscience and criminal justice:  1) determining the law-relevant mental states of defendants and witnesses; 2) assessing a defendant’s capacity for self-regulating his behavior; and  3) assessing whether, and if so how, neuroscientific evidence should be admitted and evaluated in individual cases.

The home page is:
To sign up to receive the e-newsletter, Neurolaw News, either sign up here:, or email with “Subscribe” in the subject line.

Other resources include the Law and Neuroscience Bibliography:, and the Law and Neuroscience Blog:

Wednesday, September 26, 2012

Tenth Affirms Capital Conviction and Sentence, Rejecting Claims of Improper Prosecutorial Questioning, Comments, and Suppression of Evidence

Banks v. Workman, 2012 WL 3834733 (9/5/12) (Okl.) (Published) - The 10th affirms yet another addition to the death penalty rolls in Oklahoma. It was improper for the trial judge to let the state repeatedly question the defendant's brother in front of the jury. He repeatedly refused to answer based on his Fifth Amendment privilege. One of the questions was whether the petitioner admitted to the brother that he killed the victim. This error was harmless. [The evidence was strong that the victim was forced to enter the car and that the petitioner was present for the abduction and killing and DNA evidence indicated the petitioner raped the victim. And besides the state didn't argue for any inference from the brother's silence]. The 10th suggested the petitioner defaulted the argument that the questioning affected the malice-aforethought theory of conviction, not just the felony murder theory. But, in any event, there was ample evidence the petitioner aided and abetted the murder where he drove the car. And the questioning was not prejudicial with respect to the death sentence. [The petitioner never made a residual doubt argument. Even if the jury would have otherwise thought the petitioner was not the triggerman, contrary to what the brother's questioning implied, juries kill non-triggermen lots of times, the 10th says. And the state presented evidence the petitioner explained he previously shot a cashier in the head because "dead men tell no tales." And the petitioner had a really bad record and the murder was heinous.]

The note the state suppressed indicating the petitioner's brother possibly committed the murder was not material because it wasn't admissible [it was double hearsay and the note might have referred to a different murder by the brother and hearsay rules applied at the death phase] and wouldn't lead to admissible evidence [if the brother was involved, the petitioner would already have known that, since he admittedly was present]. The 10th found a claim to be defaulted because Okl.'s rules governing successive petitions were adequate, even though state courts have some discretion to consider a successive petition, and the rules were independent from a federal constitutional determination, since more than just the existence of a valid constitutional claim was required before a court would consider a successive petition. The petitioner contended there was cause for the default: the failure of post-conviction counsel to raise the ineffectiveness of appellate counsel for failing to raise the ineffectiveness of trial counsel for failing to raise the intoxication of the defense's own expert witness [do you follow that?]. Martinez v. Ryan, 132 S. Ct. 1309 (2012),in which the S. Ct. permitted IA of post-conviction counsel to be cause under certain circumstances, was inapplicable here because (1) it only applies to allegations of trial, not appellate, counsel, and (2) Oklahoma, unlike Arizona in Martinez, does allow appellate counsel to raise the ineffectiveness of trial counsel on direct appeal.

Various prosecutor comments did not warrant relief. Implying during the guilt phase that the petitioner had a prior record was proper where it put in context his volunteering to authorities information about the crime. Evidence supported the claim the petitioner took turns with another man in raping the victim. It was wrong to refer to the petitioner as an animal, monster and a Mafia-style killer. But this was harmless. [The bulk of the argument was just fine and the crime was so gruesome the prosecutor couldn't inflame the jury much more]. The exhibit listing all of the petitioner's crimes with the title "trail of terror," even if improper, was not prejudicial. [The jury rejected the claim the petitioner was a continuing threat.] It was an improper comment on silence to say, in response to the claim the defendant had a religious conversion: "the petitioner has never come forward, not even in this week, to be accountable for what has taken place." But the error was harmless because the judge instructed the jury to ignore that comment and the jury is presumed to follow its instructions. Cumulative error was not prejudicial enough. The 10th ends with the tried and true bromide: "Mr. Banks may not have received a perfect trial, if such a thing exists, but he did receive a trial that conformed to the constitution and laws of the U.S. That's all we can require."
Woodward v. Cline, 2012 WL 3871594 (9/7/12) (Kan.) (Published) - The petitioner's post-conviction motion for DNA testing was a motion for discovery, not a motion for "collateral relief" that would toll the running of AEDPA's statute of limitation.

Unpublished Decisions

U.S. v. Fletcher, 2012 WL 4017213 (9/13/12) (Okl.) (unpub'd) - Perhaps some small encouragement to judges not to be so persnickety re: Toombs. The 10th notes the trial court's orders granting continuances were "perilously close" to not satisfying the Speedy Trial Act's requirements. But it suggests the record is self-explanatory as to why the court believed the continuances were necessary where the newly-appointed counsel needed time to familiarize her/himself with the case involving a 39-count indictment. Also, the 10th acknowledges its precedent allowing officers to testify as experts re: the roles of drug trafficking participants conflicts with the First Circuit's precedent [something to raise for a trip to the S. Ct.].

Rivera-Ortiz v. Holder, 2012 WL 3984422 (9/12/12) (unpub'd) - The 10th lets stand the removal of an Lawful Permanent Resident who, according to the 10th, "by all accounts is a model of reformation." The alien's 1994 conviction for child sex abuse was enough to justify the removal, even though the victim now trusts the alien to babysit her own children.

Escobar v. Mora, 2012 WL 3893126 (9/10/12) (Col.) (unpub'd) - The prisoner made an 8th Amendment claim when he alleged a prison guard spit into his breakfast and lunch for 15 months causing him to refrain from eating and losing 30 pounds as a result. The 10th could not think of a legitimate penological interest served by the spitting and it lasted long enough to be cruel and unusual punishment. But the law was not clearly established enough to preclude qualified immunity. So no relief. I'm not making this up.

Campbell v. Singh, 2012 WL 3871654 (9/7/12) (Col.) (unpub'd) - No relief where: there was 1 unsuccessful surgery on a torn anterior cruciate ligament; then months of pain complaints; then another unsuccessful surgery; then the prisoner slipped on icy pavement because he wasn't given a walking aid, which lead to more broken and/or torn body parts and more surgery; then more months of ignoring the plaintiff's pain complaints; then an infection and the eventual removal of infected tissue; then more pain; then an ignored recommendation of additional surgery; then the prison improperly fitted a knee brace; later the prison moved the plaintiff to a top bunk from which the plaintiff fell causing injuries to his head and knee, which caused disorientation and more pain; and now the prison provides no additional treatment or surgery, just a cane and Tylenol.

OK Prosecutors' Flouting of Law Prohibiting Improper Victim-Impact Testimony in Capital Cases

DeRosa v. Workman, 2012 WL 3974496 (9/11/12) (Okl.) (Published) - An interesting dissent by Judge Lucero to a denial of rehearing en banc in an Okl. capital case. Judge Lucero notes that prosecutors and the Oklahoma courts, including the appellate courts, have repeatedly [6 times recently, he says] and intentionally refused to abide by clear S. Ct. law that prohibits victim-impact testimony in which the victim pleads to the jury to give the death penalty. Judge Lucero acknowledges precedent precludes finding such an error to be structural [and thus immune from harmless error review], but he urges a more searching application of the harmless error test with respect to this intentional disobedience of the constitution. He observes: "The fact that a capital defendant committed a horrible crime cannot be an excuse to repeatedly ignore constitutional errors at sentencing." He also points out the plea for death by a woman whose parents were brutally murdered, as happened in this case, certainly would have an effect on the jury.

Abundant Evidence of Discriminatory Practice at Port of Entry and by Officer Insufficient to Establish Discrimination, Says Divided Panel

Blackwell v. Strain, 2012 WL 3939917 (9/11/12) (N.M.) (unpub'd) - The plaintiff did not establish Officer Ben Strain was motivated by a discriminatory purpose when he decided to perform a Level II inspection on the plaintiff's tractor-trailer at the Lordsburg, NM Port Of Entry (POE). The statistical evidence of the officer's racism was not enough without other evidence of discriminatory purpose and there was no such additional evidence.

First, data showing vehicles operated by Black folks were inspected and searched at the POE at a much higher rate than vehicles operated by non-Blacks, (51.7% vs. 28.3%), is irrelevant to Officer Strain's particular state of mind. Second, data showing that the % of Blacks Strain arrests is higher than the % of Black truckers going through the POE, (30.6 vs. 14.6), doesn't show racism, absent a showing of what % of non-Blacks passing through the POE could have been arrested [good luck making that showing]. We can't presume that arrestable offenses are committed proportionately by all races. Third, the 10th was also not impressed by evidence that the % of Strain's Black arrestees at the POE are higher than the % of his Black arrestess when he's patrolling and presumably can't tell the race of the driver as easily. Although the 10th says this statistic is "curious," it wasn't so clear Strain would have more trouble determining the driver's race while on patrol and patrol arrestees were not all truck drivers, thus screwing up any comparison. In any event, the stats were not so compelling to show intentional discrimination. Finally, evidence that on one day Strain gave a Level II inspection to all 3 Black truckers he inspected, but only a lower Level III inspection to the 2 Whites he inspected, while relevant, is not a large enough sample to make the evidence reliable.

The 10th is equally unimpressed by the non-statistical evidence, although it acknowledges circumstantial evidence alone can show racism. The record did not support the Judge's conclusion that Strain assumed Black truckers are more likely than Whites to transport drugs. Strain's mistreatment of the plaintiff [making him wait long, accusing him of DUI, giving him a breathalyzer test, pressuring him to sign the citation, and acting with a hostile, aggressive, unprofessional and confrontational manner] did not show Strain acted this way because the plaintiff is Black. He may treat everyone this badly. And the presence of alcohol in the truck justified some of Strain's conduct. Evidence that other Black truckers felt discriminated against at the POE was irrelevant unless Strain was the officer who harassed them. That Black truckers were mistreated by Strain didn't show racial motivation because Strain may have treated non-Blacks just as badly. Evidence that agents and FPDs noticed almost all drug arrestees at the POE were Black did not show Strain in particular was racially motivated. The 10th noted there was "a generous amount" of evidence regarding discrimination at the POE, but evidence of Strain's racism was "entirely lacking."

Judge Holloway dissented. He chastises the majority [Murphy and Gorsuch] for discounting the district court's factual assumptions, which ordinarily in the summary-judgment appeal posture of a case is not done. He also thought evidence of Strain's treatment of other Black drivers was relevant.

Divided Panel Affirms Conviction for "Organizing or Participating" in a Plan to Defeat Oil Leasing Procedures, Although Defendant Acted Alone

U.S. v. DeChristopher, 2012 WL 4040268 (9/14/12) (Ut.) (Published) - It was not plain error to let stand a conviction under 30 U.S.C. § 195(a) for "organizing or participating in a scheme, arrangement, plan or agreement to defeat" the BLM oil leasing procedures, even though the defendant acted alone. While the statute's language seems to call for group activity, it does not unambiguously require it. So any error is not "plain." In a footnote, the 10th notes an uncertainty as to whether a challenge to the sufficiency of the evidence relates to how the jury was instructed [which in this case did not require group activity], or with respect to how a jury should have been instructed. The defendant did not have to know the specific provisions he was violating. It was enough that he knew his actions circumvented or defeated the relevant statutes and regulations. Here he told officers he went there to stop the auction and to bid on leases for amounts of money he couldn't afford [for wacky environmental reasons], So the government proved the mens rea requirement. There was also sufficient evidence he made a false statement in violation of 18 U.S.C. § 1001(a) when he signed a form saying he had a good faith intention to acquire a lease. Although the defendant asserted he only decided to bid about 20 minutes into the auction, the jury could disbelieve him, since, among other things, he could have entered the auction area just as an observer, instead of going to the extent of getting a bidder's paddle.

The jury instructions did not constructively amend the indictment. The instructions only omitted indictment allegations that were not essential elements of the offense. And while the indictment charged in the conjunctive, the government only had to prove its case in the disjunctive. The trial court correctly excluded irrelevant evidence of the BLM not following its environmental regulations. The statute does not allow an "unclean hands" defense. The defendant was not entitled to a necessity defense because he had a lawful alternative. He could have filed a law suit and sought an injunction. The defendant did not show selective prosecution. The other person he compared himself to won less bids for less money and there was no evidence that person wanted to disrupt the sale. The trial court did not violate the defendant's First Amendment rights by relying in part on the defendant's public statements that he would continue to fight and was prepared to go to jail for his beliefs. The First Amendment does apply to sentencing, but the d. ct. did not punish the defendant for the content of his speech, but to deter him from future violations and to promote respect for the law.

Chief Judge Briscoe dissented on behalf of a criminal defendant once again. She believed 30 U.S.C. § 195(a) clearly required group activity and the evidence showed only that the defendant acted alone. Even though there was no record of any other prosecution under the statute, the error was plain in light of the language and the legislative history, which indicated Congress passed the statute to prevent oil and gas industry insider speculators from getting together to exploit the weaknesses of the law.

2255 Petition Was Untimely

U.S. v. Denny, -- F.3d --, 2012 WL 4335964 (10th Cir. 9/24/12) (NM) - The 10th Cir affirms dismissal of Mr. Denny's § 2255 motion as untimely. Contrary to Mr. Denny's instruction, his lawyer failed to appeal his sentence. Mr. Denny eventually called the court clerk's office and was told that no notice of appeal had been filed, but he did not file his 2255 habeas motion until more than a year later. The Tenth rejects arguments that the clerk's advice should not have been found to have triggered Mr. Denny's one-year AEDPA limitations period. The court also declines to excuse the late filing in light of Mr. Denny's assertion of actual innocence, his misplaced reliance on the assistance of another inmate, his prolonged segregation, or his lawyer's delay in forwarding case documents to him.

Monday, September 24, 2012

Collateral Consequences Resource

A criminal conviction frequently has consequences far beyond simply paying a fine or incarceration; a conviction can affect not only civic participation and voting rights, but also employment, occupational licensing, immigration, educational opportunities, public assistance, housing and residency, family relationships, and motor vehicle licensing. To help provide information on these far-reaching, and often unexpected, impacts on a defendant's life so that better decisions can be made, Sen. Patrick Leahy (D.Vt.) helped launch an online database that will compile the collateral consequences of a criminal conviction in all U.S. jurisdictions.

The National Inventory of the Collateral Consequences of a Criminal Conviction is available here.

The project is a joint effort by the National Institute of Justice and the American Bar Association. So far, the website includes information for only nine states and federal law. However, Margaret Love, the director, has said that additional information will be made available over the next 18 months.

Friday, September 21, 2012

RICO, Drug Convictions Affirmed

US v. Cornelius, 2012 WL 4075877 (10th Cir. 9/18/12)(published). Defendant convicted of one count of conspiracy to commit a RICO violation, and two counts of conspiracy to distribute drugs. The jury did not reach a verdict on the fourth count, which charged racketeering under RICO.

1. The Court rejects the defendant's argument that the fact the jury did not convict of the fourth count necessarily means there was insufficient evidence to convict him of conspiracy to commit a RICO violation. The court affirms that consistency in the verdicts is not required.
2. There was sufficient evidence to support the convictions for conspiracy to distribute drugs where there was evidence that the defendant repeatedly sold drugs to other people who in turn sold the drugs (an interdependent distribution scheme). Further supporting the verdict was the evidence that the defendant was a leader in the Crips.

3. Jury instruction issues: The defendant's challenge to a jury instruction was either waived or forfeited. Either way, the court says that the argument loses. The challenge to the Allen instruction was also rejected. Defendant was correctly denied an instruction on duress, based on his claim that the gang forced him to commit the illegal acts. On this issue, defendant had to show an immediate threat of death or serious bodily injury, well-grounded fear, and no reasonable opportunity to escape. In this case, the fact that the defendant was distancing himself from the Crips by moving out of the neighborhood showed that he could escape the threatened harm.

4. The court did not abuse its discretion in denying the defendant's motion for new trial, which was based on a claim of juror partiality. After the trial, one juror gave the government attorney a letter thanking the prosecutors for their service, offering to talk with them, and referring to the presiding juror's wilingness to "help [the government] rid this cancer in our society." "This kind of internal juror partiality is inevitable to some extent among any group of is not grounds to require an evidentiary hearing or a new trial."

5. The trial court erred in not imposing the mandatory 20-year sentence pursuant to 21 USC 841(b)(1)(A). Court properly considered the defendant's prior conviction even though it was the result of an allegedly unconstitutional search -- Defendant was statutorily precluded from challenging the conviction because it was more than five years old and it had not been overturned.

US v. Harris: 2012 WL 4075924 (10th Cir. 9/18/12)(published). Companion case to Cornelius, above.

1. Defendant challenged the jury instructions regarding the elements of conspiracy to commit a substantive RICO violation. The court holds "the existence of an enterprise is not an element of § 1962(d) conspiracy to commit a substantive RICO violation."

2. The evidence was sufficient to support the conviction. There was evidence of different groups of Crips, but also evidence that the different groups worked together, the members met regularly, and the conduct lasted over a period of years.

3. The trial court properly denied defendant's requested instruction regarding withdrawal from the conspiracy. Even though there might have evidence that the defendant withdrew from the gang, he failed to present sufficient evidence to prove that he withdrew from the conspiracy.

4. Sentencing issues; Because defendant did not challenge the 188-month sentence he received for wire fraud, run concurrently with the RICO conspiracy sentence of 188 months, the court exercised its discretion under the concurrent sentence doctrine and declined to review his challenges to the RICO conspiracy sentence.

Wednesday, September 12, 2012

Unpublished Decisions

U.S. v. Kellogg, 2012 WL 3570724 (8/21/12) (Col.) (8/21/12) (unpub'd) - The district court did not clearly err when it found the defendant could afford to pay a $100,000 fine, even though a couple of months after the entry of the judgment the district court found the defendant was not financially able to obtain counsel or a transcript. The 10th was "perplexed" about the conflicting rulings, but it was too late to change the judgment in light of the post-judgment findings and there was support in the record justifying the fine.

Awe v. Napolitano, 2012 WL 3553721 (8/20/12) (unpub'd) - Customs and Immigration Services denied the alien's naturalization petition on the ground that his 1983 drug conviction put him in a class of removable aliens. It didn't matter that the governor of Oklahoma pardoned the alien for that conviction. 8 U.S.C. § 1429 prevented the agency from reviewing the denial because the government began removal proceedings against the alien. So, the challenge to the naturalization denial was moot. The court could afford no relief.

U.S. v. Ricketts, 2012 WL 3553746 (8/20/12) (Okl.) (unpub'd) - The petitioner's Tenth Amendment challenge to his conviction was untimely. It was not a good excuse that he was waiting for the S. Ct. to decide in Bond v. U.S., 131 S. Ct. 2355 (2011), that individuals could raise Tenth Amendment challenges.

McClain v. Davis, 2012 WL 3553723 (8/20/12) (Col.) (unpub'd) - The plaintiff could not satisfy his filing fee obligations with postage stamps.

Following Remand, Tenth Reaffirms Carjacking and Related Convictions


US v. Pablo, No. 09-2021 (NM, 9/6/12 - On remand from the Supreme Court for reconsideration in light of that court’s decision last term in Williams v. Illinois, affirming the admission of testimony of a DNA expert who had nothing to do with any of the underlying testing. The Tenth again affirms defendant’s convictions for vaginal rape, kidnaping, aggravated assault and carjacking. Held: (1) admission of expert testimony that DNA and serology testing, done by persons other than the witness, found defendant’s DNA in victim’s vaginal swabs and underwear was not plainly erroneous, given how fractured the opinions in Williams were. Even if it was, the error did not affect defendant’s substantial rights because even he admitted having had sex with the victim; (2) no deprivation of defendant’s right to present a defense where govt suggested that defense witnesses, who were present during the attack, might incriminate themselves and be subject to prosecution, and therefore needed to be advised about their Fifth Amendment rights to remain silent, since court appointed counsel for each witness, who invoked the privilege and refused to testify after conferring with counsel; (3) no error in excluding evidence under Fed.R.Evid. 412 that victim had been seen at least partially nude earlier in the evening with other guys, and that she had rubbed codefendant’s leg in a sexually suggestive manner prior to defendant having sex with her, since the evidence fit none of 412's exceptions to exclusion of such evidence, especially since defendant’s claim of consensual sex was clearly contradicted by evidence of victim’s pretty extensive vaginal-area injuries.

Relief Granted; 2255 Petitioner Gets Hearing on Criminal History Calculation Error


US v. Rayford, No. 12-3006 (Kan), 9/6/12 - possible error in calculating defendant’s criminal history in this attempted bank robbery case, based on evidence that he got sentenced on the same day in two different prior drug trafficking cases, FINALLY gets addressed via 2255, resulting in remand to establish whether he really was sentenced on same day in both cases, and, if so, whether there had been an intervening arrest after first incident and before the second. This started with what was apparently a typo in the presentence report that indicated that the sentencings had taken place two days apart. Nobody caught this at the time, including defense counsel. This error, if such it was, placed defendant in criminal history category V instead of IV. He was sentenced to the bottom of the guideline imprisonment range. On direct appeal, counsel filed an Anders brief and the Tenth affirmed. Defendant then obtained what he represents to be a transcript of the drug cases sentencings, showing that both were sentenced on the same day, and filed a 2255 petition. The district court denied relief because it found that the issue had already been rejected on direct appeal. Rejecting the government's various procedural arguments, the Tenth decided to exercise discretion and cut to the chase, granted relief based on apparent ineffective assistance of counsel, and remanded for the district court to sort the whole thing out. Good for them (McKay, with Briscoe and Holmes).

Monday, September 10, 2012

Transfer of Child Porn Based on Use of Peer-to-Peer Program Upheld

U.S. v. Ramos, -- F.3d --, 2012 WL 3642432 (10th Cir. 8/27/12) - affirmance of sentence for receipt of child porn. The district court appropriately concluded that Mr. Ramos distributed child porn within the meaning of U.S.S.G. § 2G2.2(b) by using eMule; the enhancement of his sentence under that section was therefore proper. The gov't did not have to prove intent to distribute. The commentary states that "distribution" includes "any act ... related to the transfer of material involving the sexual exploitation of a minor." When someone uses a peer-to-peer network file-sharing program with knowledge that the program will deposit downloaded child porn files into a shared folder accessible to other users, that individual has engaged in an act related to the transfer of child porn. Even if Mr. Ramos subjectively desired not to share his child porn, his use of eMule foreclosed that option. The COA declines to address constitutional challenges to the five-year mandatory minimum for receipt of child porn, concluding Mr. Ramos lacks standing because he failed to establish that the mandatory minimum affected the determination of his sentence.

Wednesday, September 05, 2012

Pending Criminal Cases in SCOTUS

Thanks to the folks at the Central Illinois Federal Public Defender's Office, here is a list of the cases in which certiorari has so far been granted for the upcoming term.

1. Florida v. Jardines, No. 11-564
Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

2. Florida v. Harris, No. 11-817
Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle?

3. Johnson v. Williams, No. 11-465
Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim?

4. Ryan v. Gonzales, No. 10-930
Does 18 U.S.C. § 3599(a)(2) “which provides that an indigent capital state inmate pursuing federal habeas relief "shall be entitled to the appointment of one or more attorneys" entitle a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel?

5. Tibbals v. Carter, No. 11-218
1) Whether capital prisoners possess a “right to competence” in federal habeas proceedings under Rees v. Peyton; and 2) whether a federal district court can order an indefinite stay of a federal habeas proceeding under Rees?

6. Moncrieffe v. Holder, No. 11-702
Whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony?

7. Chaidez v. United States, No. 11-820
Whether the Court’s decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement?

8. Bailey v. United States, No. 11-770
Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed?

9. Smith v. United States, No. 11-8976
Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdrawn, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period – a fundamental due process question that is the subject of a well-developed circuit split?

10. Evans v. Michigan, No. 11-1327
Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact?

11. Henderson v. United States, No. 11-9307
Whether, when the governing law is unsettled at the time of trial but settled in the
defendant’s favor by the time of appeal, an appellate court reviewing for “plain error” should apply Johnson v. United States’s time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted?

12. Descamps v. United States, No. 11-9540
Whether, in a case under the Armed Career Criminal Act, when a state crime does not require an element of the federal crime of burglary, the federal court may find the existence of that element by examining the record of the state proceedings under the "modified categorical approach?”