Unpublished Decisions
U.S. v. Pena, 2013 WL 6571668 (12/16/13) (N.M.) (unpub'd) - There was sufficient evidence at a bench trial for the court to find the defendant guilty of carjacking where: the defendant and another burst into a home to retrieve cash stolen from a meth dealer or the Cadillac purchased with the cash; the defendant pointed a gun in the face of the husband occupant; the intruders ransacked the house; at some point the companion pointed his gun at the wife and the couple's daughter; the intruders took a laptop and demanded that the wife give them her purse; she refused; the defendant put his gun back in his pocket and said to his companion: "let's go"; on the way out the defendant saw the keys to the Cadillac and grabbed them; and they left in the Cadillac. These facts were enough to prove the defendant had the intent to kill or inflict serious injury at the time the defendant took the car keys. The judge could have viewed the entire episode, including the events preceding the defendant putting the gun in his pocket and deciding to leave, as suggesting he was willing to hurt the couple if necessary to take the Cadillac when he took the keys.
U.S. v. Begay, 2013 WL 6671208 (12/16/13) (N.M.) (unpub'd) - The 10th affirms a rape conviction. The district court properly interjected itself into the witness examination when the 15-year-old prosecutrix had difficulty answering questions about the encounter at the core of the case and encouraged her to testify. A d. ct.'s job is to encourage testimony. The judge's urging the witness to tell what happened and expressing an understanding that it was difficult to testify about intimate details under the circumstances of a courtroom did not indicate to the jury he believed the witness. It was okay for the d. ct. to give an instruction that the jury should draw no adverse inference from a witness talking to an attorney, despite the defense's contention that the girl was coached by the prosecutors. And the prosecutor's rebuttal statements that "this case was about people who walk among us and take advantage of the weak and vulnerable" was harmless beyond a reasonable doubt in large part because the government presented a very strong case. "Even though the defense may not have been weak, that does not change the compelling nature of the government's evidence," the 10th says.
U.S. v. Ontiveros, 2013 WL 6698074 (12/20/13) (Col.) (unub'd) - The defendant's waiver of counsel was not equivocal even though he suggested he might later retain private counsel. The defendant clearly expressed his desire to go pro se in the face of the d. ct.'s offer to give him reasonable time to hire a new lawyer. While the defendant did not bind himself irrevocably to self-representation, the d. ct. did not abuse its discretion when it refused to grant the defendant's request on the day of the suppression hearing for a few days' time to secure private counsel, despite the defendant's claim that he was unprepared for the hearing. The lack of preparation was not good cause for delay, given the d. ct. gave the defendant time to prepare and the government had 7 witnesses ready to testify. At the end of the suppression hearing the d. ct. granted the defendant's request to reappoint standby counsel.
U.S. v. Silouangkhoth, 2013 WL 6698082 (12/20/13) (Ut.) (unpub'd) - If you have an MDMA case it might be worth looking at the defendant's pleadings in this case, which contend the guidelines overstate the seriousness of MDMA offenses.
U.S. v. Gomez, 2013 WL 6671209 (12/19/13) (Kan.) (unpub'd) - The 10th suggests that maybe the government waived its right to invoke the defendant's appeal waiver in the defendant's appeal of a denial of his ยง 3582(c)(2) motion where the government effectively waived that right by not invoking it during the defendant's previous direct appeal of his sentence.
U.S. v. Begay, 2013 WL 6671208 (12/16/13) (N.M.) (unpub'd) - The 10th affirms a rape conviction. The district court properly interjected itself into the witness examination when the 15-year-old prosecutrix had difficulty answering questions about the encounter at the core of the case and encouraged her to testify. A d. ct.'s job is to encourage testimony. The judge's urging the witness to tell what happened and expressing an understanding that it was difficult to testify about intimate details under the circumstances of a courtroom did not indicate to the jury he believed the witness. It was okay for the d. ct. to give an instruction that the jury should draw no adverse inference from a witness talking to an attorney, despite the defense's contention that the girl was coached by the prosecutors. And the prosecutor's rebuttal statements that "this case was about people who walk among us and take advantage of the weak and vulnerable" was harmless beyond a reasonable doubt in large part because the government presented a very strong case. "Even though the defense may not have been weak, that does not change the compelling nature of the government's evidence," the 10th says.
U.S. v. Ontiveros, 2013 WL 6698074 (12/20/13) (Col.) (unub'd) - The defendant's waiver of counsel was not equivocal even though he suggested he might later retain private counsel. The defendant clearly expressed his desire to go pro se in the face of the d. ct.'s offer to give him reasonable time to hire a new lawyer. While the defendant did not bind himself irrevocably to self-representation, the d. ct. did not abuse its discretion when it refused to grant the defendant's request on the day of the suppression hearing for a few days' time to secure private counsel, despite the defendant's claim that he was unprepared for the hearing. The lack of preparation was not good cause for delay, given the d. ct. gave the defendant time to prepare and the government had 7 witnesses ready to testify. At the end of the suppression hearing the d. ct. granted the defendant's request to reappoint standby counsel.
U.S. v. Silouangkhoth, 2013 WL 6698082 (12/20/13) (Ut.) (unpub'd) - If you have an MDMA case it might be worth looking at the defendant's pleadings in this case, which contend the guidelines overstate the seriousness of MDMA offenses.
U.S. v. Gomez, 2013 WL 6671209 (12/19/13) (Kan.) (unpub'd) - The 10th suggests that maybe the government waived its right to invoke the defendant's appeal waiver in the defendant's appeal of a denial of his ยง 3582(c)(2) motion where the government effectively waived that right by not invoking it during the defendant's previous direct appeal of his sentence.
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