Unpublished decisions

Moreno v. Taos County Board of Commissioners, 2014 WL 4723629 (9/24/14) (N.M.) (unpub'd) - A party is not entitled to an instruction that the jury can draw an adverse inference from an opponent's failure to preserve evidence unless the failure was intentional or in bad faith. Here the district court did not clearly err in holding there was no bad faith in failing to preserve taser evidence where the county policy only required officers to preserve taser evidence if a taser was discharged in dart-mode. In this case the taser was used in drive-stun mode.

U.S. v. Lake, 2014 WL 4694914 (9/23/14) (Okl.) (unpub'd) - Another chapter in the odd Lake case. This is the case where the government mistakenly conceded in the 10th that Alleyne prohibited the drug-death enhancement under § 2D1.1(a) based on judicial fact-finding. The 10th mistakenly bought the concession. On remand Mr. Lake's guideline range went down from 135-168 to 10-16 months. His sentence did not fall as far. It went from 135 to 95 months. The district court wasn't willing to forget the death. It upwardly varied in part because the heroin Mr. Lake shared with his son's drug-addict friend "resulted in and contributed to the drug addict's death." The district court claimed it would have imposed the same sentence "notwithstanding any judicial fact-finding." The 10th found the sentence substantively reasonable without noting the apparent inconsistency of not being allowed to increase the guideline range due to judicial fact-finding but being able to increase the sentence by variance based on the same judicial fact-finding.