Preservation Problems Result in Plain Error Review

U.S. v. Wells, 2012 WL 6031763 (12/5/12) (Ut.) (unpub'd) - A preservation lesson. At the sentencing hearing, defense counsel attempted to explain the state charges against the defendant, but did not object to the court considering them at all. Review with respect to the claim that the court should not have considered the state charges at all is for plain error. While other circuits have held a sentencing court's consideration of dismissed and pending charges is wrong, the 10th has not done so. Any error in that regard was not "plain."

U.S. v. Handy, 2012 WL 6062658 (12/7/12) (Kan.) (unpub'd) - Another preservation lesson. Because the defendant never challenged the prosecutor's characterization of the demeanor of a prospective African-American juror before the d. ct., he could not sustain a Batson claim regarding the government's peremptory challenge of that panel member on demeanor grounds. And it was a proper neutral reason to excuse the panel member because she said she would "have a problem with" the testimony of cooperating witnesses, even though the government didn't excuse a juror who said testimony of such a witness "would make me a little suspect."