Unpublished Decisions
U.S. v. Cox, 2012 WL 6062664 (12/7/12) (Ut.( (unpub'd) - Another cautionary tale re: what defense counsel might be construed to concede. The d. ct. imposed a stolen gun enhancement based on the following facts: (a) the 9mm Glock found in the defendant's possession in 2010 was bought by Dennis White in 1999: (2) a police report indicated a 9mm Glock was stolen from Mr. White's son's home in 2006; (3) the defendant stated that in 2003 he got the gun from a stranger who told him it was probably stolen, which the 10th characterizes as an "unconvincing account," supporting the inference the gun was stolen; and (4) counsel supposedly conceded that Mr. White gave his son the Glock the defendant possessed. The 10th relied heavily on its interpretation of counsel's statements to the d. ct., concluding counsel was conceding the transfer of the particular gun, rather than simply not disputing it. The 10th then pontificates on the notion that "the reasonableness of a permissive inference is not based solely on deductive reasoning." It's okay to infer based on a reasonable probability that something is true. Judge Holloway dissents. He determined counsel only conceded Mr. White transferred a gun, not the gun, to his son. The evidence, Judge Holloway concluded, didn't prove the gun stolen from the son was the same gun the defendant possessed. The son could have had a different Glock stolen. The 10th improperly judged the credibility of the defendant's account of his acquisition of the gun where the d. ct. made no credibility finding on the matter.
U.S. v. Race, 2012 WL 6119886 (12/11/12) (Col.) (unpub'd) - The d. ct. erred when it admitted the defendant's statement regarding his prior drug activity on the grounds that Rule 404(b) doesn't apply to a defendant's statements. Rule 404(b) does apply to a defendant's statements. But the error was harmless in light of other substantial evidence of guilt. The standard of review for mistrial denials for improper government questions and mistrial denials for improper witness statements is the same. An officer's response that he drew his gun on the defendant because he recognized him did not warrant a mistrial, given the instruction to the jury to disregard the question and answer.
U.S. v. Torres, 2012 WL 6200395 (12/13/12) (Col.) (unpub'd) - In a reentry case in Colorado the government agreed to an appeal waiver that allowed the defendant to appeal if his offense level was determined to be greater than 17.
U.S. v. Chatburn, 2012 WL 6119136 (12/11/12) (Col.) (unpub'd) - Because the circuit courts are divided on the issue, the d. ct. did not "plainly" err when it considered the seriousness of the underlying offense when it sentenced the defendant for violating supervised release. 18 U.S.C. ยง 3583(e) omits that factor from the factors a d. ct. is supposed to consider when sentencing upon revocation of supervised release.
Monarque v. Garcia, 2012 WL 6177010 (12/12/12) (N.M.) (unpub'd) - There was sufficient evidence that Rio Rancho police officers used excessive force when they restrained the suspect by getting on top of him while he was face down for 2 to 3 minutes applying "some type of pressure." This was so even if the officers were attempting to carry out a community caretaker function to get the suspect some mental health assistance. The suspect passed out and died at the hospital.
U.S. v. Race, 2012 WL 6119886 (12/11/12) (Col.) (unpub'd) - The d. ct. erred when it admitted the defendant's statement regarding his prior drug activity on the grounds that Rule 404(b) doesn't apply to a defendant's statements. Rule 404(b) does apply to a defendant's statements. But the error was harmless in light of other substantial evidence of guilt. The standard of review for mistrial denials for improper government questions and mistrial denials for improper witness statements is the same. An officer's response that he drew his gun on the defendant because he recognized him did not warrant a mistrial, given the instruction to the jury to disregard the question and answer.
U.S. v. Torres, 2012 WL 6200395 (12/13/12) (Col.) (unpub'd) - In a reentry case in Colorado the government agreed to an appeal waiver that allowed the defendant to appeal if his offense level was determined to be greater than 17.
U.S. v. Chatburn, 2012 WL 6119136 (12/11/12) (Col.) (unpub'd) - Because the circuit courts are divided on the issue, the d. ct. did not "plainly" err when it considered the seriousness of the underlying offense when it sentenced the defendant for violating supervised release. 18 U.S.C. ยง 3583(e) omits that factor from the factors a d. ct. is supposed to consider when sentencing upon revocation of supervised release.
Monarque v. Garcia, 2012 WL 6177010 (12/12/12) (N.M.) (unpub'd) - There was sufficient evidence that Rio Rancho police officers used excessive force when they restrained the suspect by getting on top of him while he was face down for 2 to 3 minutes applying "some type of pressure." This was so even if the officers were attempting to carry out a community caretaker function to get the suspect some mental health assistance. The suspect passed out and died at the hospital.
posted by Anonymous at 10:05 AM
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