United States v. Willis, 2016 WL 3407626 (10th Cir. 2016): The Tenth Circuit affirms the defendant’s conviction for aggravated sexual abuse committed in Indian country. The issue at trial was not whether the encounter happened, but whether or not there was consent. The Court found no error in admitting evidence of prior alleged sexual assault incidents involving other women when the defendant was a juvenile. The victim’s alleged prior sexual activity was properly excluded. Willis also asserted his initial statements to law enforcement were not lawfully obtained. However, although he initially requested an attorney, he asked the agents if he could change his mind and talk with them. The agents reminded him of his rights and had him sign the waiver form again. Accordingly, Willis was aware he did not need to give any statements and they were properly admitted. The final argument was that an agent wrongly vouched for the victim’s credibility. The Tenth Circuit found Willis’ objections to be insufficient. The agent testified that the victim’s story changing did not change the fact that he believed her claims. The defense did not make a very specific objection, and later, during cross-examination, reemphasized the agent’s affirmative belief in the victim. Overall, the Court concluded that Willis received a fair trial.

Above-guideline sentence for involuntary manslaughter affirmed

United States v. Singer, 2016 WL 3244869 (10th Cir. 2016) - Defendant appealed his 75-month sentence for involuntary manslaughter based on drunk driving. The victim was a pedestrian who was decapitated and dismembered by the impact. The victim's wife saw the accident. Mr. Singer got a 75-month sentence that he challenged on procedural and substantive grounds. The Tenth affirms. It decides that an offense level enhancement under U.S.S.G. § 3C1.2 properly relied on facts other than the manslaughter itself and the reckless operation of a vehicle that was part of it. The additional facts included Mr. Singer's high-speed flight from the scene of the crime, which created a risk of injury or death to other persons. An upward departure under U.S.S.G. § 5K2.14 was also appropriate based on Mr. Singer's elevated blood-alcohol level, flight from and danger to law enforcement officers, and the extreme degree of risk to members of the public before and after the manslaughter took place. The sentence, about 18 months above the top of the guidelines range, was also substantively reasonable. It was based on the brutality of the victim's death in his wife's presence, Mr. Singer's arrest for DWI and resulting loss of his license about six months earlier, and his assault of law enforcement officers after being arrested in this case.

Defendant's 6th Amendment Rights Not Violated by Denial of Access to Classified Material

United States v. Lustyik, 2016 WL 4275592 (10th Cir. 2016) (published) – The Court rejects Mr. Lystyk’s claim that his Sixth Amendment rights were violated when his counsel was denied access to classified materials for use at sentencing. Mr. Lustyk, a former FBI agent, failed to explain what material he needed or show how it would have helped. Counsel, who had requested and been denied time to obtain a security clearance, was given more than a million pages of unclassified documents before sentencing and Mr. Lustyik was able to review almost 7000 pages of classified material. The government said it would not base sentencing arguments on classified material. The district court reviewed the confidential material and did not abuse its discretion in determining the material was not relevant for sentencing. Furthermore, the Classified Information Procedures Act does not provide a freestanding right to classified information. The court remanded for clarification of the sentence clarification because two of the eleven counts carried a 5-year maximum sentence and it was unclear from the judgment whether the district court intended the imposed 120-month sentence to apply to each of the eleven counts.