Decisions
This section of the Web Site contains opinions selected by individual Judges for posting and is not intended to constitute a complete set of opinions for the district or any Judge. The decisions are organized by categories listed on the lower left portion of this page. If you would like to do a word search of the entire database or individual categories you may do so by clicking on the search button below.


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-U.S. v. Shirley Weimer (Shirley Weimer pleaded guilty to Count 1 of her Indictment, Conspiracy to Use Fire to Commit Wire Fraud, 18 U.S.C. § 1343, pursuant to a binding Rule 11(c)(1)(C) plea agreement. In this memorandum opinion and order that followed Weimer’s sentencing on November 25, 2014, the Court explains that it had the statutory authority to order restitution based on the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. The Court sets forth the two-step standard to apply to determine whether to award restitution. In doing so, the Court finds that State Farm is a “victim” as defined under 18 U.S.C. § 3663A(a)(2), and the “full amount” of State Farm’s loss was not represented by $78,593.25, or the lost insurance company’s premiums, as that figure did not include pre- and postjudgment interest. The Court’s summary of the relevant case law bolsters the Court’s decision to apply pre- and postjudgment interest. Lastly, the Court articulates how it calculated the interest Weimer owes based on the dates State Farm paid four separate checks to Weimer and the Treasury Bill rate pursuant to 28 U.S.C. § 1961.)11/25/2014
-U.S. v. Richard Allen Shaffer (Is a court-martial a Court of the United States under § 3559(c) which would mean implementing the federal three strikes law?)09/05/2014
-U.S. v. Michael Clayton (Post-trial motions for judgment of acquittal and new trial, concluding: that defendant’s due process rights were not violated by the police’s interview technique with two witnesses because the police’s conduct was not an attempt to “spoon feed” the witnesses facts but an effort by the police to convince the witnesses to abandon their efforts at minimization and deception, and to be truthful, and defendant was not unfairly prejudiced by the police’s interview technique since the jury was fully aware of witnesses prior inconsistent statements and was free to take them into account in assessing the witnesses’ credibility; and that the evidence supporting the jury’s verdict did not lead to the conclusion that a serious miscarriage of justice may have occurred.)07/22/2014
-U.S. v. Darran Lohse (Motion to dismiss, order granting in part and denying in part motion. Finding that the four possession counts are not multiplicitous because each count of possession required the jury to determine that the defendant possessed a video containing child pornography on a separate device. Therefore, this portion of the motion was denied. Additionally, finding that, as to possession count 3, the defendant was convicted of receiving the same images that he was also found to have possessed, and a double jeopardy violation would occur if he was sentenced for both convictions. Therefore, the defendant’s motion was granted as to Count 3. However, possession counts 4, 5, and 6 were supported by separate conduct from the defendant’s receipt of child pornography underlying Count 2, and the defendant’s motion was denied as to possession counts 4, 5, and 6.)06/30/2014
-U.S. v. Kailib David Hendrickson (Granting a sua sponte downward variance under 18 U.S.C. § 3553(a) based on Defendant’s youth and addiction)06/11/2014
-U.S. v. Charmagne LaPoint (Proposed Rule 11(c)(1)(C) plea agreement to probation in case involving mail theft by a postal worker; issue involved fairness of agreed-upon sentence of probation; ruling rejecting the plea agreement as unfair in light of significant non-monetary harm caused by the theft)05/01/2014
-U.S. v. Darran Lohse (Motion by defendant for a judgment of acquittal and a new trial; issue involves whether nine photographs produced by defendant depicted “lascivious exhibition of genitals”; ruling denying defendant’s motions)01/21/2014
-U.S. v. Jose Sandoval (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding: that the information in search warrant application was not stale; that the issuing judge could reasonably consider and rely upon the information from all of the informants mentioned in the search warrant application to conclude that probable cause existed; that, based on the totality of circumstances, probable cause supported the state judge’s issuance of the search warrant, and alternatively finding, that, if the search warrant application was not supported by probable cause, the Leon good-faith exception to the exclusionary rule applies because the law enforcement officer obtaining the search warrant acted in reasonable reliance on the state magistrate's determination of probable cause for issuance of the warrant.)10/23/2013
-U.S. v. Douglas Young (Sentencing memorandum for defendant who pled guilty to drug charges pursuant to 21 U.S.C. §§ 841 and 851: Although the defendant was safety-valve eligible, so that he had no mandatory minimum sentence to double, he remained subject to the doubling of his maximum; examination of data from the US Sentencing Commission’s 2011 Report To Congress, the only assembly of data concerning § 851 application, demonstrating shocking intra-state, intra-Circuit, regional, and national disparities in the application of § 851 enhancements, at least prior to the Holder 2013 Memo; discussion of continuing concerns with tracking and transparency in § 851 applications after Holder 2013 Memo)08/16/2013
-U.S. v. Ryan Gene Hansen (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding that Deputy’s noncompliance with Iowa law in applying for warrants to install Global-Positioning-System (“GPS”) tracking devices on automobile was not deliberate and intentional where deputy assumed, incorrectly, that a warrant application to install GPS devices was governed under the same rules and requirements as other search warrant applications and that he was authorized to apply for and execute GPS warrants. Thus, suppression of the evidence was not required.)07/31/2013
-U.S. v. James Edward Poole (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding: that state trooper’s expansion of the traffic stop was justified and the length of the traffic stop reasonable, and that there was sufficient reason to trust the drug-detection dog’s alert and indication based on his training and history, and thus probable cause to search defendant’s vehicle.)07/22/2013
-U.S. v. Angel Amaya (Criminal law, sentencing opinion and statement of reasons pursuant to 18 U.S.C. § 3553(c) on sentencing of defendant convicted of conspiring to possess with intent to distribute 50 grams or more of pure methamphetamine or a mixture or substance containing 500 grams of methamphetamine, 5 kilograms or more of cocaine, and marijuana, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and 846, and conspiring to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956(a)(1)(B)(ii), and 1956(h). Facing a possible life sentence, defendant moved for a downward variance from his advisory guideline sentence based on what he characterized as the prosecution’s “double jeopardy violation” as well as the need to avoid unwarranted sentencing disparity among defendants. Applying the § 3553(a) factors, the court granted a downward variance because a sentence within the advisory guideline sentence range was “greater than necessary” to accomplish the goals of sentencing, in light of all of the pertinent factors, and imposed a sentence of 180 months imprisonment followed by 120 months of supervised release.)06/11/2013
-Rogers v. U.S. : (federal prisoner’s pro se motion to set aside sentence, pursuant to 28 U.S.C. § 2255, on guilty plea to bank fraud via a check cashing scheme: ruling without evidentiary hearing: granting a new sentencing on the basis of ineffective assistance of trial counsel by failing to object to a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(10), for use of an “access device” because the bad checks used to perpetrate the bank fraud scheme in this case did not constitute an “access device,” and ineffective assistance of trial counsel by failing to investigate adequately the petitioner’s mental health as an explanation of his prior violent conduct for which his sentence had been enhanced) 06/11/2013
-U.S. v. Willie Hayes (Criminal law, sentencing opinion and statement of reasons pursuant to 18 U.S.C. § 3553(c) on sentencing of defendant convicted of conspiracy to possess with the intent to distribute 35 grams or more of methamphetamine actual, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). The court granted defendant’s objection to the career offender enhancement, in part. Based on a policy disagreement with the methamphetamine Guidelines, the court found that the methamphetamine Guidelines are not based on empirical data and national experience and they yield an excessive sentence, when individualized consideration is given to the 18 U.S.C. §3553(a) factors. After considering these factors, the court varied downward by one third to the sentencing range of 100 to 124 months. The court further granted the prosecution’s motion for substantial assistance, reduced defendant’s sentence by 25%, and imposed a sentence of 75 months.)06/07/2013
-U.S. v. Nathan Melton (1 Appeal of Magistrate Judge’s order granting prosecution’s motion to disqualify defense counsel because his representation of defendant at trial would make defense counsel an unsworn witness, and because of the possibility that defense counsel might be called as either a prosecution or defense rebuttal witness; concluding magistrate’s decision was contrary to law because the prosecution had not met its heavy burden of demonstrating that defense counsel’s continued representation would cause him to be an unsworn witness that would impair the fact finding process or prejudice the prosecution and because defense counsel was not a necessary witness likely to be called under Iowa Rule of Professional Conduct 32:3.7, which requires disqualification of an attorney as a necessary witness only if that attorney has relevant and material information that no one else can provide.)06/06/2013
-U.S. v. Lori Newhouse (Criminal law, sentencing opinion and statement of reasons pursuant to 18 U.S.C. § 3553(c) on sentencing of defendant convicted of manufacturing or attempting to manufacture 5 grams or more of pure methamphetamine, or a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C). Based on quasi-categorical policy disagreements with the Career Offender guideline, the court rejected because the defendant was a low-level, non-violent drug addict engaged in the drug trade to obtain drugs to feed her addiction. Alternatively, the court found that application of the Career Offender guideline yielded an excessive sentence, when individualized consideration is given to the 18 U.S.C. § 3553(a) factors. After considering these factors, the court varied downward from the advisory Career Offender guideline sentencing range of 262 to 327 months to the mandatory minimum of 120 months. The court further granted the prosecution’s motions for substantial assistance, reduced defendant’s sentence by 20%, and imposed a sentence of 96 months imprisonment followed by 96 months of supervised release.)01/30/2013
-U.S. v. Jaime Almazan (Criminal law, sentencing memorandum opinion and order regarding sentencing of defendant convicted of producing child pornography. After considering the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors, the court found that no downward variance was warranted and imposed a sentence at the statutory maximum of 360 months imprisonment, followed supervised release for life.) 12/03/2012
-U.S. v. Britt Lander (considering whether motion for substantial assistance pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 may be based in part on substantial assistance of a third party; granting prosecution’s motion for substantial assistance based in part on the substantial assistance rendered by defendant’s spouse) 10/23/2012
-U.S. v. Dana Gleaves Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress and denying defendant’s motion to suppress in which he seeks to suppress evidence seized during a search of his residence conducted pursuant to a search warrant, finding: the search warrant affidavit, when considered in a commonsense, practical way, would lead a prudent person to believe that there was a fair probability that evidence of the sexual exploitation of a minor would be found at defendant’s residence. Accordingly, probable cause existed to issue the search warrant. In addition, concluding that even if there was no probable cause to issue the search warrant, the Leon good-faith exception applies because a reasonably well-trained officer would not have known that the search was illegal despite the issuing magistrate’s authorization.(07/02/2012
-U.S. v. Jason Dodd (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress and denying defendant’s motion to suppress in which he seeks to suppress evidence seized during a search of his vehicle conducted pursuant to a search warrant, finding: the search warrant affidavit, when considered in a commonsense, practical way, would lead a prudent person to believe that there was a fair probability that a firearm would be found in defendant’s vehicle. Accordingly, probable cause existed to issue the search warrant. In addition, concluding that even if there was no probable cause to issue the search warrant, the Leon good-faith exception applies because a reasonably well-trained officer would not have known that the search was illegal despite the issuing magistrate’s authorization.)05/24/2012
-U.S. v. Angel Amaya (granting prosecution’s motion to reconsider the court’s finding that DEA special agent acted in bad faith; imposing no sanctions for prosecution’s discovery violation)05/01/2012
-U.S. v. Angel & Javier Amaya (considering defendant’s motion to suppress GPS evidence based on United States v. Jones, 132 S. Ct. 945 (2012); analyzing whether good faith exception applies under Davis v. United States, 131 S. Ct. 2419 (2011); evaluating whether GPS evidence should be suppressed as a sanction for prosecution’s discovery violation). 04/10/2012
-U.S. v. Isaiah Earl Thomas (Motion to withdraw guilty pleas pursuant to Federal Rule of Criminal Procedure 11; after pleading guilty to the charged offenses, defendant sought to withdraw guilty pleas on the ground that his guilty pleas were invalid because he did not understand the nature of the conspiracy offense and that his counsel, as well as the prosecutor, grossly underestimated his guideline sentencing range at the change of plea hearing; analysis of whether these grounds constituted a fair and just reason to permit defendant to withdraw his guilty plea)04/05/2012
-U.S. v. Russell T. Hawley & Hawley Insurance Co.10/13/2011
-U.S. v. Amaya (Motion to suppres, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress and denying defendant’s motion to suppress in which he seeks to suppress evidence seized during a search of his residence conducted pursuant to a search warrant, during a consent search of his parents’ trailer home, and during a search of his vehicle, finding: the search warrant affidavit, when considered in a commonsense, practical way, would lead a prudent person to believe that there was a fair probability that drugs or evidence of drug sales would be found in defendant’s residence. Accordingly, probable cause existed to issue the search warrant. In addition, concluding that even if there was no probable cause to issue the search warrant, the Leon good-faith exception applies because a reasonably well-trained officer would not have known that the search was illegal despite the issuing magistrate’s authorization. Finally, considering the totality of the information provided to the state magistrate, the search warrant for defendant’s residence was not based on stale information. 09/06/2011
-U.S. v. Billy Williams, Sr. (sentencing of a defendant on four crack cocaine offenses after the 2010 Fair Sentencing Act and amendments to the Sentencing Guidelines reduced the crack-to-powder ratio from 100:1 to 18:1: consideration of whether to reject the “new” ratio in the Guidelines, on categorical, policy grounds, as the court had previously rejected the 100:1 crack-to-powder ratio; adoption of a methodology for imposing sentence using an initial guidelines calculation with an 18:1 ratio and an alternative guidelines calculation using a 1:1 ratio, both recognizing new guidelines enhancements for aggravating circumstances, and ultimate determination of the appropriate sentence in light of the sentencing factors in 18 U.S.C. § 3553(a))04/07/2011
-U.S. v. Kent Robert Stewart (Criminal law, sentencing memorandum opinion and order regarding joint sentencing of two defendants convicted of anitrust violations of the Sherman Act. For one defendant, after considering the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors, the court found that a upward variance from the advisory guidelines sentencing range was warranted and imposed a sentence of 48 months imprisonment, followed by 3 years of supervised release during which defendant will be required to complete 500 hours of community service, at a rate of not less than 25 hours per month. The court further found that an upward variance from the advisory guidelines fine range was warranted for the defendant and imposed a fine of $829,715.85, and a special assessment of $100. The court, alternatively, imposed sentences of 27 months imprisonment on each Count; with all 27 months of the sentence on Count 3, 15 months of the sentence on Count 1, and 6 months of the sentence on Count 2 running consecutively; for a total sentence of 48 months imprisonment, followed by 3 years of supervised release. With respect to the second defendant, the court found that the prosecution did not breach its plea agreement with the defendant and, as a result, the court could proceed with his sentencing. The court denied his requests for downward departure under U.S.S.G. §§ 5K1.1, 5K2.0, 5K2.11, and 5K2.12. The court further found that a variance from the advisory guidelines sentencing range was unwarranted for the defendant and imposed a sentence of 12 months and a day of imprisonment, followed by 3 years of supervised release during which the defendant will be required to complete 100 hours of community service, at a rate of not less than 20 hours per month. The court also imposed a fine on the defendant in the amount of $83,427.09. In addition, the defendant was ordered to pay restitution to Tri-Zack Contractor in the sum of $25,981.80.)02/08/2011
-U.S. v. Steven Vandebrake (Criminal law, sentencing memorandum opinion and order regarding joint sentencing of two defendants convicted of anitrust violations of the Sherman Act. For one defendant, after considering the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors, the court found that a upward variance from the advisory guidelines sentencing range was warranted and imposed a sentence of 48 months imprisonment, followed by 3 years of supervised release during which defendant will be required to complete 500 hours of community service, at a rate of not less than 25 hours per month. The court further found that an upward variance from the advisory guidelines fine range was warranted for the defendant and imposed a fine of $829,715.85, and a special assessment of $100. The court, alternatively, imposed sentences of 27 months imprisonment on each Count; with all 27 months of the sentence on Count 3, 15 months of the sentence on Count 1, and 6 months of the sentence on Count 2 running consecutively; for a total sentence of 48 months imprisonment, followed by 3 years of supervised release. With respect to the second defendant, the court found that the prosecution did not breach its plea agreement with the defendant and, as a result, the court could proceed with his sentencing. The court denied his requests for downward departure under U.S.S.G. §§ 5K1.1, 5K2.0, 5K2.11, and 5K2.12. The court further found that a variance from the advisory guidelines sentencing range was unwarranted for the defendant and imposed a sentence of 12 months and a day of imprisonment, followed by 3 years of supervised release during which the defendant will be required to complete 100 hours of community service, at a rate of not less than 20 hours per month. The court also imposed a fine on the defendant in the amount of $83,427.09. In addition, the defendant was ordered to pay restitution to Tri-Zack Contractor in the sum of $25,981.80.)02/08/2011
-U.S. v. Villagomez: (criminal prosecution for conspiracy to defraud the United States, wire fraud, theft from a program receiving federal funds, and bribery; ruling after evidentiary hearing settling the record, pursuant to Rule 10(e) of the Federal Rules of Appellate Procedure, concerning closure of the courtroom to members of the public during jury selection) 11/24/2010
-U.S. v. Mayer (criminal prosecution on charges of sexual exploitation of children in violation of 18 U.S.C. §§ 2251(a) and 2251(e); receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2); prosecution’s Rule 104 motion to admit evidence of factual stipulations in a plea agreement on which the defendant failed to follow through, pursuant to a waiver of the rights protected by Rule 410 of the Federal Rules of Evidence if the defendant breached the plea agreement)10/19/2010
-U.S. v. Kevin Mcmanaman (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress and denying defendant’s motion to suppress in which he seeks to suppress statements made after his arrest as well as a evidence recovered from his home, finding: that the rule of collateral estoppel applied in this case, and concluded that defendant was estopped by prior ruling from relitigating the issue of probable cause to search his house for drugs and drug paraphernalia; that based on the evidence the law enforcement officers had at the time of the defendant’s arrest, a search warrant could have been issued which would have allowed the police to search for guns and ammunition, drugs, and drug paraphernalia, and the ensuing search would have led inevitably to discovery of incriminating photographs which appear to depict underage females; that the defendant’s Sixth Amendment right to counsel for the current charges had not attached at the time of his questioning in 2008, and, therefore, the Sixth Amendment right to counsel did not bar the officers from questioning defendant in regard to the current offenses; that the non-testimonial evidence obtained as a result of defendant’s incriminating statements made in violation of Miranda are admissible because the defendant’s statements were made voluntarily, and were not the result of coercion; and that defendant’s wife consented to a search of a locked room and a locked closet in the house they shared and that defendant’s wife had either actual or apparent authority to consent to a search of the entire residence. )10/18/2010
-U.S. v. Miell (sentencing of landlord convicted of 18 counts of mail fraud, 2 counts of perjury, and 2 counts of filing of false tax returns arising from insurance fraud and damage deposit fraud schemes: restitution for fraud schemes pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, and “restitution” for tax offenses in the conditions for supervised release pursuant to 18 U.S.C. § 3583(d))10/04/2010
-U.S. v. Miell : (sentencing of landlord convicted of 18 counts of mail fraud, 2 counts of perjury, and 2 counts of filing of false tax returns arising from insurance fraud and damage deposit fraud schemes: applicability of upward adjustments for amount of loss, number of victims, sophisticated means, substantial interference with administration of justice, abuse of a position of trust, and obstruction of justice; applicability of downward adjustment for acceptance of responsibility; determination of whether and to what extent to vary upward from the advisory sentencing guidelines range in light of the damage deposit fraud scheme, which preyed on people too economically vulnerable or unsophisticated to contest the landlord’s claims for relatively little gain in individual cases, but amounting to over a million dollars in losses in aggregate)09/27/2010
-U.S. v. Villagomez, et al.(criminal prosecution for conspiracy to defraud the United States, wire fraud, theft from a program receiving federal funds, and bribery; reconsideration of denial of defendants’ motion pursuant to Rule 10(e) of the Federal Rules of Appellate Procedure to settle the record concerning whether members of the public were entirely excluded from jury selection) 09/07/2010
-U.S. v. Villagomez, et al (criminal prosecution for conspiracy to defraud the United States, wire fraud, theft from a program receiving federal funds, and bribery; defendants’ motion pursuant to Rule 10(e) of the Federal Rules of Appellate Procedure to settle the record concerning whether members of the public were entirely excluded from jury selection) 08/06/2010
-U.S. v. Kent Robinson (Motion for change of venue; analysis of ten factors identified in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964)-(1) the location of the defendant, (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of the place of trial; (9) docket condition of each district; and (10) any other special elements which might affect the transfer-in deciding whether to transfer the case from the Commonwealth of the Northern Mariana Islands to the District of Columbia.)07/29/2010
-U.S. v. Kevin Moes (Motion to dismiss, order accepting Magistrate Judge’s report and recommendation regarding motion to dismiss, concerning charges that defendant knowingly failed to register and update his sex offender registration as required by the Sex Offender Registration and Notification Act (“SORNA”), in violation of 18 U.S.C. § 2250(a), the court held that SORNA applies to defendant because both Iowa and Nebraska had sex offender registries during the time the defendant is alleged to have traveled between these states and failed to register in accordance with SORNA, and concluding that application of SORNA’s penalty provision to defendant did not violate due process because the defendant received adequate notice of his duty to register in Iowa to satisfy due process.)05/11/2010
-U.S. v. Kent Robinson (criminal prosecution on charges of fraudulent uttering of a private security, with making and uttering a fictitious obligation, and mail fraud; prosecution’s motions to supplement the record regarding the defendant’s detention after the court expressed serious concerns about the prosecution’s failure to seek a detention hearing or written detention order during a hearing on the pro se defendant’s motion to revoke the detention order) 05/11/2010
-U.S. v. Miell (Motion to withdraw guilty pleas pursuant to Federal Rule of Criminal Procedure 11; after pleading guilty to the charged mail fraud and perjury offenses, defendant sought to withdraw guilty pleas on the ground that his guilty pleas were invalid because the court failed to advise him of the maximum possible sentence he faced and the court’s authority to order restitution; defendant also asserted that his counsel’s ineffective assistance constituted a fair and just reason to permit him to withdraw his guilty pleas; examination of whether the court informed defendant of the maximum penalties he was facing for each of the mail fraud and perjury counts; analysis of whether Rule 11 requires a court to specifically advise the defendant of the possibility of consecutive sentencing; assessment of whether the court’s error in failing to inform defendant of the possibility of restitution affected his substantial rights; analysis of whether defendant should be permitted to withdraw his guilty pleas because he was provided with ineffective assistance of counsel; assessment of other Rule 11 factors of defendant’s innocence, the timing of his motion, and whether the prosecution will be prejudiced by defendant’s withdrawal of guilty pleas)05/10/2010
-U.S. v. Paul Riesselman (Motion to suppress, order accepting Magistrate Judge’s Report and Recommendation regarding motion to suppress, granting in part and denying in defendant’s Motion to Suppress; concluding that defendant’s Motion to Suppress should be granted as to drugs seized from his person because the prosecution conceded the pat-down search of defendant by law enforcement officers was neither authorized by a search warrant nor reasonable under the circumstances; finding that a cellular telephone, that was also seized during the same search of defendant’s person, should be suppressed for the same reasons as the drugs; rejected defendant’s argument that all evidence seized pursuant to a search warrant for his residence should be suppressed because law enforcement officers executing the search warrant failed to provide him with a complete copy of the search warrant; rejecting defendant’s contention that statement he made to law enforcement officers should be suppressed because it was the product of the unlawful search of his person; and, finding that, with respect to defendant’s statements concerning drugs and cellular telephone found on him, that the prosecution had met its burden of proving that the connection between the illegal search of defendant’s person and his statement was so attenuated as to dissipate the taint of the illegal search, and concluding that defendant’s statement was given freely, and was not coerced or procured though exploitation of the illegal seizure of the drugs or cellular telephone. 04/28/2010
-U.S. v. Villagomez, et al (08cr20) : (criminal prosecution for conspiracy to defraud the United States, wire fraud, theft from a program receiving federal funds, and bribery; defendants’ joint renewed motion pursuant to 18 U.S.C. § 3143(b) for release from custody while their convictions are on appeal, heard as a visiting judge to the District of the Northern Mariana Islands (Saipan): whether the defendants asserted a “fairly debatable” claim of violation of their Sixth Amendment right to a public trial, arising from the trial judge’s refusal to release unoccupied reserved seats to members of the general public) 04/22/2010
-U.S. v. Norita & Sablan (criminal prosecution on charges of trafficking in methamphetamine against both defendants and a gun charge against one defendant heard as a visiting judge to the District of the Northern Mariana Islands (Saipan); prosecution’s motions in limine to exclude evidence of defendants’ drug addiction, any mention of penalties, to exclude prior criminal histories of confidential informants) 04/07/2010
-U.S. v. Norita & Sablan (criminal prosecution on charges of trafficking in methamphetamine against both defendants and a gun charge against one defendant heard as a visiting judge to the District of the Northern Mariana Islands (Saipan); one defendant’s motion to reconsider denial of prosecution’s motion to dismiss indictment)04/06/2010
-U.S. v. Norita & Sablan (criminal prosecution on charges of trafficking in methamphetamine against both defendants and a gun charge against one defendant heard as a visiting judge to the District of the Northern Mariana Islands (Saipan); prosecution’s motion to dismiss indictment rather than produce DEA manuals as ordered as a sanction for failure to disclose sections of the manuals: court’s determination that the motion to dismiss was moot upon reconsideration of the underlying discovery dispute) 04/02/2010
-U.S. v. Sablan (Motion to suppress, order finding that defendant had made sufficient showing to be entitled to evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), but denying motion to suppress because defendant had not proven by a preponderance of the evidence that the search warrant affiant knowingly and intentionally included false information, or did so with reckless disregard for the truth, and alternatively, even were the court to assume, arguendo, that defendant could show that the affiant included intentional falsehoods or statements made with reckless disregard for the truth and set aside those allegations, the court would nevertheless conclude that the supporting affidavit otherwise provided probable cause for the search.)03/31/2010
-U.S. v. Norita & Sablan (criminal prosecution on charges of trafficking in methamphetamine against both defendants and a gun charge against one defendant heard as a visiting judge to the District of the Northern Mariana Islands (Saipan); defendants’ pretrial motions for discovery sanctions against the prosecution for failure to disclose sections of a DEA Laboratory Operations Manual and sections of a DEA Agent’s Field Manual, one defendant’s motion to sever the gun charge against the other defendant for separate trial, and one defendant’s motion for appointment of her retained counsel pursuant to the Criminal Justice Act) 03/29/2010
-U.S. v. Sandra Hanson (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding: that while the search and seizure occurred after a warning citation had been issued, the law enforcement officer’s continued detention of defendant in order to permit a drug dog sniff was justified by that officer’s reasonable suspicion that criminal activity unrelated to the stop was afoot; that the information from the informant was not stale and could be relied upon to support a finding of reasonable suspicion; that the fact that a drug dog’s initial failure to indicate on defendant’s pickup truck did not negate the other facts and information supporting the existence of reasonable suspicion; that defendant consented to having a drug sniffing dog enter the back of her truck, which resulted in the discovery of marijuana in the vehicle.)03/19/2010
-U.S. v. Tony Golden (Sentencing on charges of conspiracy to distribute crack cocaine, possession with intent to distribute crack, and distributing crack within 1,000 feet of a public playground or school in violation of 21 U.S.C. §§ 846, 841, and 860; reiteration of categorical rejection in Gully of 100:1 crack-to-powder ratio in Sentencing Guidelines and selection of 1:1 ratio as the reasoned alternative in this and all crack cases, demonstrating appropriateness of applying 1:1 ratio in all cases, then varying (upward, in this case), if necessary, based on case-specific factors, including this defendant’s prior conviction for attempted murder, pursuant to 18 U.S.C. § 3553(a))01/12/2010
-U.S. v. David Stephens (Appeal of Magistrate Judge’s order denying prosecution’s request to amend defendant’s conditions of release, concluding the Adam Walsh Amendments to the Bail Reform Act, which require that those on pretrial release for specified offenses be subject to curfew and electronic monitoring requirements, regardless of individual circumstances, facially violate the Due Process Clause.)11/17/2009
-U.S. v. Eric Graham (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding: that the supporting affidavits for search warrant application clearly contained information which provided a substantial basis for finding a “fair probability” that contraband or evidence of illegal activity could be found in the buildings at defendant’s residence, and that law enforcement officers did not impermissibly exceed the scope of search warrant in their search.10/15/2009
-U.S. v. Mosley (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding: that defendant’s freedom of movement was not restrained to the degree associated with a formal arrest at the time he was interviewed by the police and no Miranda warning was required to be given to defendant prior to interview, and that defendant’s statements were made of his own free will.)09/09/2009
-U.S. v. Eric Yockey (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding: the plain view doctrine was established in this case with respect to officer’s viewing of the pornographic image on defendant’s cellular telephone, and that a police detective’s questioning of defendant and his search of defendant’s’s cellular telephone were not tainted by the arresting officer’s actions because any taint from the arresting officer’s unlawful conduct was sufficiently attenuated by other circumstances so as to purge it.)08/28/2009
-U.S. v. Earl Foy, Jr. (criminal prosecution on charges of sending threatening communications in violation of 18 U.S.C. § 876(b) and (c): upward variance from 262 to 480 months of imprisonment, achieved by running the two longest statutory maximum sentences consecutively, with other sentences to run concurrently, based primarily on the § 3553(a)(1) and (a)(2) factors, including the defendant’s substantial history of violence and violence toward women) 08/24/2009
-U.S. v. Jacob : (criminal prosecution on charges of using the Internet to entice a minor to engage in sexual activity prohibited by state law, in violation of 18 U.S.C. § 2242(b), and interstate transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1); sentencing memorandum: the merits of the advisory United States Sentencing Guidelines for defendants convicted of child pornography offenses, U.S.S.G. § 2G2.2, and child exploitation offenses, 18 U.S.C. § 2G2.1, including the impact of congressional mandates rather than the United States Sentencing Commission’s exercise of its institutional expertise and empirical analysis; rejection of both guidelines on categorical policy grounds and on individualized application of 18 U.S.C. § 3553(a) factors) 06/26/2009
-U.S. v. Gully: (Sentencing on charges of distributing crack cocaine and distributing crack within 1,000 of a public playground or school, after a prior felony drug conviction in violation of 21 U.S.C. §§ 846, 851, and 860; rejection on categorical policy grounds of 100:1 crack-to-powder ratio is Sentencing Guidelines and selection of 1:1 ratio as the reasoned alternative in this and all crack cases; methodology for imposing sentence using 1:1 crack-to-powder ratio and to enhance sentences, where appropriate, pursuant to 18 U.S.C. § 3553(a) for violence, chronic offenders, weapon possession, and other aggravating factors) 05/18/2009
-U.S. v. Ingram : (Sentencing for on charge of conspiring to distribute crack cocaine after a prior felony drug conviction in violation of 21 U.S.C. §§ 846 and 851; appropriateness sua sponte review of remand from appellate court for second chance for prosecution to prove prior conviction; sufficiency of proof of defendant’s prior conviction on second chance, including applicability of Federal Rules of Evidence to proof “beyond a reasonable doubt” of a prior conviction pursuant to § 851)05/11/2009
-U.S. v. Gary Visser (Sentencing on “felon in possession of a firearm” charge: applicability of the reduction to the defendant’s base offense level under the “sporting and collecting” exception in U.S.S.G. § 2K2.1(b)(2), where he had pawned several of the firearms in his collection) 04/15/2009
-U.S. v. Beiermann : (criminal prosecution on charges of possessing, receiving, transporting, and shipping child pornography in violation of 18 U.S.C. § 2252A; sentencing memorandum: the merits of the advisory United States Sentencing Guideline for defendants convicted of child pornography offenses, U.S.S.G. § 2G2.2, including the impact of congressional mandates rather than the United States Sentencing Commission’s exercise of its institutional expertise and empirical analysis; rejection of the guideline on both an individualized application of 18 U.S.C. § 3553(a) factors and categorically on policy grounds) 02/24/2009
-U.S. v. Maurice Haltiwanger (Defendant’s objection to the prosecution’s notice of intent to seek enhanced penalties, pursuant to 21 U.S.C. § 851(a), order rejecting Magistrate Judge’s report and recommendation regarding defendant’s objection to § 851 notice, finding: that defendant’s Kansas tax stamp conviction can form the basis for an enhanced sentence because it meets the federal definition of a “felony drug offense” since under Kansas’s sentencing scheme, a drug stamp conviction may result in a maximum sentence of imprisonment for more than one year.)02/23/2009
-U.S. v. Montreail Dungy ( Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255, asserting as grounds the ineffective assistance of trial, sentencing and appellate counsel for the following reasons: (1) that his trial counsel was ineffective in failing to call certain witnesses; (2) that his trial counsel was ineffective in failing to present an alibi defense; (3) that his trial counsel was ineffective in failing to object to the introduction of certain bad acts which occurred when defendant was a juvenile; (4) that his trial counsel was ineffective in failing to request a buyer-seller jury instruction; (5) that his trial counsel was ineffective in failing to object to the lack of proof that the drug involved in the conspiracy was crack cocaine; (6) that his sentencing counsel was ineffective in failing to object to the sentencing stipulation; (7) that his sentencing counsel failed to object to his two prior felony drug convictions being used to determine his criminal history as well as for a § 851 enhancement; (8) that his appellate counsel was ineffective in failing to raise claims of ineffective assistance of trial counsel based on trial counsel’s failure to call certain witnesses. Defendant also asserted that prosecution witness had recanted his testimony. Motion denied in its entirety: first, claim that trial counsel was ineffective because he failed to interview and call as witnesses individuals who could have testified at trial was denied because issue was raised on direct appeal and a motion to vacate, set aside, or correct sentence by person in federal custody may not be used to relitigate an issue that was raised on appeal; second, defendant did not demonstrate that he was prejudiced by his counsel’s failure to present an alibi defense at trial because defendant charged with drug conspiracy was not entitled to alibi instruction where conspiracy allegedly lasted for a period of years and defendant’s presence at scene of drug transaction was not a required element of the conspiracy; third, his trial counsel was not ineffective in failing to object to the admission of testimony concerning actions done when defendant was a juvenile because evidence of defendant’s juvenile actions, which took place during the pendency of the conspiracy, was relevant and admissible as part of the res gestae of the charged offense; fourth, defendant’s counsel was not ineffective for failing to request a buyer-seller instruction because he, in fact, did so, and such an instruction was given in this case; fifth, given the weight of all the evidence in the case, defendant did not demonstrate that he was prejudiced by his counsel’s failure to object to the lack of proof that the drug that was the object of the conspiracy was crack cocaine; sixth, considering that defendant faced a mandatory life sentence, defense counsel’s advice to defendant that he accept the sentencing stipulation was a reasonable strategic choice made after sufficient investigation of the law and relevant facts and one which clearly fell within the wide range of reasonable professional assistance and thus did not constitute ineffective assistance of counsel; seventh, defendant has not demonstrated that he was prejudiced by his counsel’s failure to lodge an objection to the court’s use of his two prior drug convictions to determine his criminal history as well as for a § 851 enhancement where evidence exists in the record of a number of overt acts committed by defendant in furtherance of the charged conspiracy which occurred after the date of his convictions; finally, defendant had not established that a portion of witnesses’s testimony was false.)02/02/2009
-U.S. v. Miell (criminal prosecution on charges of mail fraud, arising from a fraudulent scheme to obtain insurance proceeds for hail-damage roofs and a fraudulent scheme to retain renters’ damage deposits, perjury, and failure to file tax returns: defendant’s motion in limine to exclude the following evidence: (1) evidence from the prosecution’s “expert,” a “certified fraud examiner,” concerning damage deposits received and retained by the defendant; (2) evidence relating to the so-called “Beckfield litigation,” which included one of the present defendant’s business entities, Advanced Equities, as a defendant; (3) evidence described as “miscellaneous tenant complaints”; (4) evidence from various small claims court judges; (5) depictions of the defendant as a “slum lord”; (6) evidence of the so-called “Bat Cave,” in which the defendant purportedly retained property belonging to tenants who had been evicted or moved out; (7) photographs of the defendant’s personal residence; (8) evidence of health insurance and mileage reimbursements that the defendant pays to some of his employees; and (9) evidence of alleged destruction of documents by the defendant’s “handyman”) 12/26/2008
-U.S. v. Kenneth Siepker : (federal prisoner’s pro se motion to set aside sentence pursuant to 28 U.S.C. § 2255: ruling without evidentiary hearing: alleged ineffective assistance of counsel on the following grounds: failure to move for severance of drug and gun counts, failure to request an “Old Chief instruction,” failure to file a motion in limine to preclude non-coconspirator hearsay evidence, failure to object to count charging commission of offense while on pre-trial release as an illegal Bill of Attainder, failure to request a buyer-seller instruction, failure to object to hearsay, stipulation that firearms were possessed “in or affecting commerce,” failure to object to a constructive amendment of the indictment on the gun charges, and failure to assert an “Apprendi claim” based on court determination of drug quantity; constitutional claims based on admission of hearsay evidence in violation of the Sixth Amendment confrontation clause, and insufficient evidence on the drug conspiracy count of an illegal agreement; denial of a certificate of appealability)12/18/2008
-U.S. v. Miell : (criminal prosecution on charges of mail fraud, arising from a fraudulent scheme to obtain insurance proceeds for hail-damage roofs and a fraudulent scheme to retain renters’ damage deposits, perjury, and failure to file tax returns: prosecution’s motion in limine to exclude any reference to or introduction of evidence by the defendant that he repaired the hail-damaged roofs at a point in time after he obtained insurance proceeds based on fraudulent claims that he had already repaired the roofs, and any reference to or introduction of evidence by the defendant that he had or believed that he had only one year to repair the roofs) 11/25/2008
-U.S. v. Beiermann (Cases of three defendants charged with child pornography and sexual offenses involving minors; sentencing; prosecution’s request for access to court’s expert, appointed pursuant to 18 U.S.C. § 3552(c), beyond the report of the expert’s psychosexual analysis of each defendant) 10/31/2008
-U.S. v. Kelly Jacob (Cases of three defendants charged with child pornography and sexual offenses involving minors; sentencing; prosecution’s request for access to court’s expert, appointed pursuant to 18 U.S.C. § 3552(c), beyond the report of the expert’s psychosexual analysis of each defendant) 10/31/2008
-U.S. v. James Callanan (sentencing of criminal defendant: determination of appropriate remedy for another incident of prosecutorial misconduct involving breach of a plea agreement, including consideration of sanctions against prosecutor personally) 10/24/2008
-U.S. v. Matthew Kashas (Cases of three defendants charged with child pornography and sexual offenses involving minors; sentencing; prosecution’s request for access to court’s expert, appointed pursuant to 18 U.S.C. § 3552(c), beyond the report of the expert’s psychosexual analysis of each defendant) 10/21/2008
-U.S. v. Charles Schrage criminal defendant’s motion in limine before trial on “felon in possession of a firearm” charge: evidence of telephone calls and correspondence from the defendant while incarcerated; evidence of the defendant’s and a witness’s prior convictions) 10/02/2008
-U.S. v. David Dicus: (sentencing of criminal defendant: sentence reduction as a sanction for prosecution’s serious misconduct consisting of breach of a plea agreement) 09/24/2008
-U.S. v. Brett & Cory Kamerud: (Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; petitioners claim that guilty verdict for conspiracy to (1) “distribute methamphetamine,” (2) “possess with intent to distribute methamphetamine,” and (3) “possess with intent to distribute methamphetamine to one or more persons under twenty-one years of age should be set aside; the court decided whether the petitioners were provided with ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution by analyzing an extensive list of possible grounds for petitioners’ claim.)09/16/2008
-U.S. v. Yuot & Puok (defendants’ motions in limine in criminal trial: opinions about a defendant’s guilt, or, more specifically, that he “is” a drug dealer, or that he was part of a conspiracy to distribute crack cocaine, or that he is a “known” drug dealer; opinions that a sock located in a defendant’s pocket at the time of a traffic stop was the match for a sock containing crack cocaine located in the vehicle in which the defendant was a passenger; use of nicknames or aliases; evidence of a defendant’s employment history or lack thereof; evidence of and references to a defendant’s various prior arrests, charges, or convictions) 07/23/2008
-U.S. v. Jose Islas-Bravo (defendant’s motion in criminal trial to admit “reverse 404(b)” evidence of separately tried co-defendant’s prior conviction on state drug offense to support third-party guilt defense) 07/16/2008
-U.S. v. Douglas Dean Johnson (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress and granting in part and denying in part defendant’s motion to suppress, finding: that a search warrant application for defendant’s Primghar residence failed to support the state magistrate’s probable cause determination and that the search warrant application was so facially deficient that the state magistrate’s issuance of a search warrant constituted “a rubber stamp for the police”, so that the exclusionary rule should be applied and the evidence seized during the execution of the search warrant for the Primghar residence should be excluded; that with respect to a search warrant for defendant’s Clay County property, the totality of the information presented to the state magistrate supported the state magistrate’s probable cause determination and that the information contained in the search warrant application was not stale; and, that it was not objectively unreasonable for the law enforcement officers here to proceed to execute the search warrant for the Clay County property in these circumstances.)05/14/2008
-U.S. v. Michael Ingram (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding: that defendant’s freedom of movement was not restrained to the degree associated with a formal arrest when he was asked one question by a law enforcement officer which was designed to protect the officer’s safety during a traffic stop, as such, defendant was not in custody at the time and his response to the officer’s question should not be suppressed; that any statements made by defendant between the time of his arrest and the time he was advised of his rights should be suppressed; and, that, defendant’s challenge to the search warrant should be denied because even without defendant’s pre-arrest statement and the evidence seized from his person, the warrant affidavit contained sufficient evidence for a reasonable magistrate to find probable cause to issue a warrant to search the apartment.)02/25/2008
-U.S. v. David Matthew Howell (Motion to dismiss, order accepting in part and rejecting in part Magistrate Judge’s report and recommendation regarding motion to dismiss, concerning charges that defendant knowingly failed to register and update his sex offender registration as required by the Sex Offender Registration and Notification Act (“SORNA”), in violation of 18 U.S.C. § 2250(a), court concluded that Congress’s delegation of authority to the United States Attorney General in 42 U.S.C. § 16913(d) was not a violation of the nondelegation doctrine, finding that SORNA’s registration requirements and criminal provisions constitute permissible exercises of Congressional authority under the Commerce Clause; determining that application of SORNA’s penalty provision to him did not violate due process, that application of SORNA to him constituted a violation of the Ex Post Facto Clause, finding that SORNA was effective as to all convicted sex offenders as of the date of its enactment, but that application of SORNA to defendant’s conduct that pre-dated the interim rule’s enactment would constitute an unconstitutional ex post facto application of the law.)02/01/2008
-U.S. v. Hugo Salazar-Montrero (criminal defendant’s Rule 12(b)(2) motion to determine elements of “aggravated identity theft” offense defined by 18 U.S.C. § 1028A: court’s authority to determine pretrial the elements of an offense; determination of elements)10/25/2007
-U.S. v. Mark Donisi : (criminal defendant’s motion in limine: prior drug use and evidence from his proffer interview)09/25/2007
-U.S. v. Hernandez (federal prisoner’s pro se motion to set aside sentence pursuant to 28 U.S.C. § 2255: ruling after evidentiary hearing: alleged ineffective assistance of counsel for failure to file notice of appeal after prisoner’s request that counsel do so) 08/29/2007
-U.S. v. Francisco Marcos-Quiroga (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding that the police had probable cause to arrest defendant and, as a result, money found on defendant’s person was found during a lawful search incident to his arrest and not subject to suppression.)07/17/2007
-U.S. v. Travis John O'Connor (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding that upon viewing the affidavit in support of the search warrant application in a common sense manner, the court could not conclude that the issuing state judge did not have a substantial basis to believe that the items sought in the warrant would be found at defendant’s residence.)07/09/2007
-U.S. v. Francisco Marcos-Quiroga (Criminal defendant’s motion in limine: prior convictions, chain of custody of drug evidence, and plea agreement from conviction set aside by the court)06/12/2007
-U.S. v. Todd Becker (motions in limine in criminal trial: government’s motion to admit evidence of the defendant’s probation status as “intrinsic” or Rule 404(b) evidence; defendant’s motion to exclude nineteen-year-old felony drug conviction pursuant to Rule 404(b)).05/31/2007
-U.S. v. Lee, et al. (Criminal defendants’ motions in limine: first defendant’s prior misdemeanor and felony convictions and “bad acts” as Rule 404(b) and/or “direct” evidence; second defendant’s prior criminal history, opinions that he is a drug dealer or convicted felon, lay identifications of his voice on a particular tape or monitored call, identification of him as the “Rock,” his lack of employment history; and co-conspirator hearsay allegedly exculpatory hearsay statement; third defendant’s “bad acts,” references to his presence at “crack houses,” residence at places where drugs or guns were found, discovery of baggies on his person, prior convictions, and identifications as a “drug dealer”)05/17/2007
-U.S. v. Lee Cobb (Motion to suppress, order accepting Magistrate Judges report and recommendation that defendant’s motion to suppress be granted; concluding that defendant made the requisite showing to warrant a Franks hearing, that one law enforcement officer communicated false information to another that was then included in the warrant application and that if the false information is set to one side, the affidavit’s remaining content is insufficient to establish probable cause for a search of defendant’s residence.) 05/16/2007
-U.S. v. Justin Cole (criminal defendant’s and prosecution’s motions in limine and Rule 104 motions to determine admissibility of evidence: defendant’s prior convictions and “bad acts” as Rule 404(b), “direct,” or res gestae evidence; allegedly exculpatory hearsay statement, considered under Rules 804(b)(3), 607, and 613(b); and the meaning of “cocaine base” as “crack cocaine” under 21 U.S.C. § 841)04/30/2007
-U.S. v. Marcos-Quiroga (defendant’s objections to PSIR, motion to withdraw guilty plea, and motion for new counsel: defendant’s Sixth Amendment objection to use of a prior conviction as both a statutory sentence enhancement and a career offender guideline enhancement; reconsideration of motion to withdraw guilty plea based on bad advice of counsel concerning career offender status; motion for new counsel based on prejudicial conduct of current counsel)03/23/2007
-United States v. Honken : (appeal by defendant convicted of capital offenses and sentenced to death; defendant’s request for discovery of government’s records and recollections of four unrecorded conferences to prepare the defendant’s statement pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure concerning unrecorded portions of the record for appeal)02/28/2007
-United States v. Saucillo (Federal prisoners motion to set aside sentence pursuant to 28 U.S.C. 2255 asserting allegation of ineffective assistance of counsel; specifically, the defendant asserted his counsel was ineffective in failing to file an appeal; motion denied in its entirety; defendant did allege that he expressly direct his attorney to file an appeal )02/14/2007
-U.S. v. James J. Parsons (Motion for return of property pursuant to Federal Rule of Criminal Procedure 41(g); after pleading guilty to the charged felony offenses, defendant sought to designate that his firearm collection, which was seized and held by the government, should be given to a friend; analysis of the competing equities in order to decide whether defendant, who was in lawful possession of the firearms at the time of his arrest and was not a convicted felon when he acquired the three firearms, may be permitted to designate to whom his firearm collection should be given. )02/07/2007
-U.S. v. Enrique Aragon-Hernandez (criminal defendant’s motion in limine: inaudibility of recordings rendering them untrustworthy as a whole and, therefore, inadmissible) 01/31/2007
-U.S. v. Ryan Keith Mathison (Following a jury verdict of guilty on all counts charged in the Second Superseding Indictment, both defendant filed timely motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure and, in the alternative, a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure; court holds that (1) viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty on Counts One through Seven, as alleged in the Second Superseding Indictment;(2) no grounds for a new trial on the defendant’s convictions exist because the evidence presented at trial overwhelmingly weighs in favor of the jury verdict on all counts charged in the Second Superseding Indictment ; (3) the mid-trial publicity that resulted after the defendant voluntarily absconded did not prejudice the defendant and his Sixth Amendment rights were adequately protected;(4) the defendant’s post-trial motions are denied in their entirety.)01/05/2007
-U.S. v. Edward Valenciano (Motion to transfer trial pursuant to Federal Rule of Criminal Procedure 21; analysis of whether defendant had met the high threshold of proof to show that case was one of the “rare and extreme cases” in which the court can presume “inherent prejudice” based on pretrial publicity, such that a transfer pursuant to Rule 21(a) was appropriate; alternative analysis of whether it was necessary to transfer the trial on the grounds of convenience of the parties and witnesses pursuant to Federal Rule of Criminal Procedure 21(b)).12/27/2006
-U.S. v. Vincent & Karl Raymond Bertling (Following a jury verdict of guilty on all counts charged in the Second Superseding Indictment, both defendants filed timely motions for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure and motions for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure; court holds that (1) viewing the evidence in the light most favorable to the government, a reasonable jury could have found both defendants guilty of conspiracy to corruptly endeavor to influence, obstruct and impeded the due administration of justice in United States v. Vincent Bertling, CR05-4125-MWB, by intimidating witnesses, as alleged in Count One; (2) a reasonable jury could have found defendant Vincent guilty of the three counts of being an unlawful user of controlled substances in possession of a firearm, as alleged in Counts Two, Three and Four; (3) with respect to the verdicts rendered on Counts Two, Three and Four against defendant Vincent, no miscarriage of justice has occurred; (4) the evidence supporting the convictions of the defendants on Count One weighs heavily enough against the verdict that a miscarriage of justice has occurred in this case; (5) the verdict as to Count One against defendants Vincent Bertling and Karl Raymond Bertling is set aside and Vincent Bertling and Karl Raymond Bertling are granted a new trial on this count; and (6) in all other respects, the defendants’ motions for judgment of acquittal and new trial are denied.)11/13/2006
-U.S. v. Jesse John Wendelsdorf (Objections to the PSIR launched by the defendant requesting the court to exclude certain amounts from its drug quantity determination; Court held: (1) Although acts surrounding a tank of anhydrous ammonia by the defendant were relevant, court would not include theoretical amount that could have been yielded from the tank because the uncontroverted evidence introduced at trial showed the anhydrous ammonia leaked out of the tank and was unusable; furthermore, even if tank should have been included, the government failed to meet its burden of proof with respect to the amount of methamphetamine that could have been produced from the anhydrous in the tank because no reliable evidence was produced as to not only how much methamphetamine could be produced from the tank, but also how full the tank actually was when it was taken by the defendant; (2) PSIR inappropriately inflated the quantity that can be attributed to the defendant based on the testimony of a coconspirator with respect to the amount of methamphetamine that was traded in exchange for prescription pills; (3) A review of the entire trial transcript reveals that the coconspirators’ testimony has sufficient indicia of reliability and amounts attributed to the defendant by the coconspirators’ testimony is properly included in the court’s drug quantity calculation; while it is true that the coconspirators’ testimony produced some discrepancy with respect to the amount of methamphetamine involved, the court, in accord with applicable case law has erred on the side of caution and utilized the most conservative estimate proffered by the defendants’ coconspirators.) 11/01/2006
-U.S. v. Arturo Ruiz-Ahumada (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on two grounds; specifically, the defendant asserted (1) an error based on United States v. Booker, 125 S. Ct. 738 (2005), on the grounds that he was sentenced under the mandatory Guidelines regime, which impermissibly allowed a judge, as opposed to the jury, to adjust the sentencing range based on a preponderance of the evidence, and (2) that his plea was the product of coercion and therefore, not entered into voluntarily; motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, the defendant’s own statements during the plea hearing demonstrate he pled guilty knowingly and voluntarily; defendant also filed separately a pro se Motion to Amend and a pro se Motion to Supplement; both motions are denied as untimely, as they do not relate back to his original § 2255 petition.)10/24/2006
-U.S. v. Perez-Sanchez (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on the following grounds: (1) a “Booker error,” based on the defendant’s contention that a jury, not the sentencing judge, should have determined the amount of drug quantity attributed to him for sentencing purposes; (2) ineffective assistance of trial counsel in failing to challenge the constitutionality of 21 U.S.C. § 841 to the extent that those provisions permitted the court to make drug quantity and role determinations in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) failure of appellate counsel to argue that the defendant’s rights under the Vienna Convention were violated during his plea hearing on appeal; motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, neither trial counsel’s nor appellate counsel’s performance was not deficient on the grounds alleged by the defendant. )10/17/2006
-U.S. v. Alfredo Luna (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255, asserting as grounds the ineffective assistance of trial and appellate counsel for the following reasons: (1) that his trial counsel was ineffective because he failed to fully impeach government witnesses; (2) that his trial counsel was ineffective in failing to object to the edition of the federal guidelines used at the time of sentencing; (3) that his trial counsel was ineffective in failing to object to the criminal history for defendant that was set out in his presentence investigation report; (4) that his trial counsel was ineffective in failing to object to the standard utilized by the court in determining the applicability of a two-level weapons enhancement pursuant to U.S.S.G. § 2D1.1(b); (5) that his appellate counsel was ineffective in failing to raise the issue of trial counsel’s ineffectiveness in failing to fully impeach government witnesses; (6) that appellate counsel was ineffective in failing to raise the issue of the edition of the federal guidelines used at the time of sentencing; and, (7) that his appellate counsel was ineffective in failing to raise on appeal the issue of the court’s calculation of defendant’s criminal history. Defendant also challenged his sentence in light of the United States Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), arguing that the Booker decision must be given retroactive effect; motion denied in its entirety, first, the Booker decision does not apply retroactively to cases on collateral review, second, defendant had not established that his trial or appellate counsel were ineffective in representing defendant, specifically, defendant did not demonstrated that he was prejudiced by his counsel’s cross-examination of government witnesses at trial; defendant did not demonstrate that he was prejudiced by the use of the 2000 edition of the Federal Sentencing Guidelines because the punishment under the 2000 and 1998 Sentencing Guidelines remained the same, because defendant’s criminal history was not manifestly less serious than that of defendants typically labeled category II, defendant did not demonstrated that he was prejudiced by his counsel’s failure to seek a downward departure on the grounds that his assessed criminal history category overstated the seriousness of his criminal history; defendant’s counsel could not be faulted for not challenging the court’s application of § 2D1.1(b)’s two-level weapons enhancement to defendant where trial testimony showed that during the course of the drug conspiracy defendant possessed several firearms, including several pistols and an AR-15 semi-automatic assault rifle and threatened to use his AR-15 rifle on a possible informant and pointed a pistol at an individual during several drug transactions)10/03/2006
-U.S. v. Juan Carlos Vazquez-Munoz (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting three allegations of ineffective assistance of counsel; specifically, the defendant asserted his counsel was ineffective in (1) failing to file an appeal after being expressly directed to do so by the defendant; (2) failing to file an appeal without obtaining the defendant’s consent; and (3) failing to object to the PSIR regarding the defendant’s role in the offense; motion denied in its entirety; defendant did not expressly direct his attorney to file an appeal and he could neither prove breach of duty nor prejudice on either of his remaining claims.)09/28/2006
-U.S. v. Hernandez (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on two grounds; specifically, the defendant asserted (1) an error based on United States v. Booker, 125 S. Ct. 738 (2005), on the grounds that he was sentenced under the mandatory Guidelines regime, which impermissibly allowed a judge, as opposed to the jury, to adjust the sentencing range based on a preponderance of the evidence, and (2) a somewhat related claim of ineffective assistance of counsel due to counsel’s failure to anticipate Booker, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), which had been decided at the time of the defendant’s sentencing; motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, counsel’s performance was not deficient on the grounds alleged by the defendant. )09/25/2006
-U.S. v. Renee Carlson (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255; specifically, the defendant asserted that (1) her plea was the product of coercion, (2) she was forced to incriminate herself, presumably by admitting to her involvement in the conspiracy during her plea hearing, (3) the government failed to disclose the evidence against her because she never personally viewed the evidence; additionally, the defendant contends her counsel was ineffective in (1) preparing her for her guilty plea, (2) failing to ensure she was read her Miranda rights, and (3) failing to inform her of her right to appeal; motion denied in its entirety; defendant was not entitled to relief on any of the alleged grounds.)09/11/2006
-U.S. v. Hernandez : (federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255: alleged “Booker error,” and allegations of ineffective assistance of counsel before, during, and after trial, including (1) failure to assert “Apprendi claim”; (2) failure to investigate the facts of the case, including facts that would have provided the basis to challenge the credibility of the government’s witnesses and the falsehoods in their trial testimony; (3) failure to challenge, at trial and on appeal, sentencing enhancements for obstruction of justice, possession of a firearm, and drug quantity, and (4) failure to assert that the evidence showed multiple conspiracies instead of the single conspiracy with which Hernandez was charged, supplemented at evidentiary hearing to include (5) failure of trial counsel to advise him adequately of the law applicable to his consideration of whether to go to trial, plead guilty; determination of whether resentencing was appropriate relief on the last claim)08/30/2006
-U.S. v. Jeffrey Determan (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on one ground: that he received an illegal sentence based on United States v. Booker, 125 S. Ct. 738 (2005); motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence.) 08/18/2006
-U.S. v. Roberto Alvarez-Delgadillo (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on two grounds; specifically, the defendant asserted (1) an error based on United States v. Booker, 125 S. Ct. 738 (2005), on the grounds that a jury, not the sentencing judge, should have determined the amount of drug quantity attributed to him for sentencing purposes, and (2) a somewhat related claim of ineffective assistance of counsel due to counsel’s failure to challenge the constitutionality of 21 U.S.C. § 841(a)(1)(A) and (B) to the extent that those provisions permitted the court to make drug quantity determinations in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, counsel’s performance was not deficient on the grounds alleged by the defendant.)08/14/2006
-U.S. v. Pinkerton (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting two allegations of ineffective assistance of counsel; specifically, the defendant asserted her counsel was ineffective in (1) preparing her for her guilty plea and (2) in representing to the prosecutor that the defendant was dishonest in her debriefings; motion denied in its entirety; defendant could neither prove breach of duty or prejudice on either claim.)08/11/2006
-U.S. v. Robert Lee Kriens (federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255: allegations of ineffective assistance of counsel before and during sentencing pursuant to a plea agreement, including challenge to voluntariness of guilty plea and allegation of ineffective assistance of counsel on appeal, including failure to investigate and present evidence that would purportedly prove that the defendant’s prior conviction for attempted burglary under Iowa law was not a “violent felony” for purposes of the armed career criminal enhanced mandatory minimum sentence under 18 U.S.C. § 924(e)).07/25/2006
-U.S. v. Lori Clare Kavitz : (federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255: ten allegations of ineffective assistance of counsel before and during sentencing pursuant to a plea agreement, including challenge to voluntariness of guilty plea and request to reopen Apprendi claim, which had been dismissed on initial review, in light of Blakely).07/17/2006
-U.S. v. Javier Barajas Ramirez (federal defendant’s post-conviction motion to vacate sentence on a drug-trafficking charge pursuant 28 U.S.C. § 2255 based on ineffective assistance of trial counsel in failing to move for a safety-valve reduction in the defendant’s sentence and failure of appellate counsel to appeal the omission of a safety-valve reduction)06/13/2006
-U.S. v. Homero Bustos Flores (federal defendant’s post-conviction motion to vacate sentence on a drug-trafficking charge pursuant 28 U.S.C. § 2255 based on (1) ineffective assistance of trial counsel, consisting of (a) denial of his right to testify; (b) failure to challenge the drug quantity calculation; (c) failure to raise a challenge pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), at sentencing; and (d) failure to make a timely objection to omission of safety-valve eligibility in the PSIR; (2) ineffective assistance of appellate counsel, who was the same as his trial counsel, consisting of failure to raise issues (1)(b), (1)(c), and (1)(d); and (3) imposition by the trial court of a sentence in violation of the defendant’s Sixth Amendment rights as established by Apprendi, consisting of judicial fact-finding regarding drug quantity and enhancement of his sentence based upon such improper fact-finding)06/13/2006
-U.S. v. Douglas Wayne Nielsen (Resentencing on remand pursuant to a written order; government’s motion to correct sentence by imposing the sentence with the defendant in open court; Court held: (1) Both the government and the defendant expressly waived objections during resentencing hearing; (2) The purposes of Rule 43 of the Federal Rules of Criminal Procedure were served as defendant, during the resentencing hearing, was afforded the opportunity to challenge the accuracy of any information presented by the government or on which the court might otherwise rely, argue about the reliability and weight such information should be given, and present any mitigating evidence; (3) The government’s motion is denied to impose sentence in open court is denied and the amended judgment shall stand.) 05/04/2006
-U.S. v. Saenz (resentencing on remand pursuant to a written order; government’s motion to “correct sentence” by imposing the sentence with the defendant present in open court: holding that the defendant had waived her presence, if it was required)04/24/2006
-U.S. v. Douglas Wayne Nielsen (Resentencing on remand from the circuit for consideration in light of United States v. Booker; Court held: (1) Traditional departure under U.S.S.G. § 4A1.3 for overrepresentation of the seriousness of the defendant’s criminal history was warranted; (2) Pursuant to § 4A1.3, the departure is limited to one criminal history category; (3) A non-Guidelines sentence is appropriate after consideration of all the § 3553(a) factors; and (4) The defendant is committed to the custody of the United States Bureau of Prisons to be imprisoned for 188 months on Count One of the Indictment, 188 months on Count One of the Information, and 92 months on counts Two through Seven of the Indictment, all to be served concurrently. )04/13/2006
-United States v. Barnett (Motion to withdraw guilty plea to one of four counts after remand for resentencing: Rule 11(e) neither foreclosed the defendant from asserting, nor foreclosed the court from hearing, a motion to withdraw the defendant’s guilty plea on jurisdictional grounds, and the defendant had not waived that motion by failing to assert it either at his original sentencing or on his original appeal; making, receiving, and possessing unregistered short-barreled shotguns, in violation of 26 U.S.C. §§ 5841, 5845, 5861 and 5871, are not “crimes of violence” within the meaning of 18 U.S.C. § 924(c)(3), for purposes of a charge of using and carrying a short-barreled and shortened-length firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(A)(iii) and 924(c)(1)(B)(i)). 04/05/2006
-United States v. Jesse John Wendelsdorf (Sentencing motion in limine brought by defendant requesting the court to exclude from its sentencing determination certain conduct of which the defendant was acquitted; Court held: (1) Based on the court’s firsthand knowledge and subsequent review of this evidence, the Government failed to prove the acquitted conduct a preponderance of the evidence, and that therefore, it could not be considered as relevant conduct during the defendant’s sentencing hearing; (2) Even if the Government had proved its case by a preponderance of the evidence, the court would exercise its discretionary powers and not consider the acquitted conduct based on the extraordinary facts and unique circumstances surrounding the case; (3) In the event the court is required to consider the acquitted conduct and apply the appropriate upward adjustment, a downward departure in the same amount would be authorized under the circumstances presented in this case, effectively vitiating any net gain to the defendant’s term of incarceration; (4) Therefore, during the defendant’s sentencing, the court will not consider additional evidence with respect to the acquitted charges.)03/24/2006
-United States v. Saenz : (resentencing on remand after the circuit court found the original 68% reduction in the defendant’s sentence for “substantial assistance” was “unreasonable” and “excessive”: suggesting that neither prior precedent nor recent data compiled by the United States Sentencing Commission supports labeling a 50 percent reduction for substantial assistance “extraordinary” and suggesting other lessons from the Sentencing Commission’s Special Post-Booker Coding Project Report; finding that the defendant was entitled, on resentencing, to a 68% reduction from a minimum Guidelines sentence of 63 months to 20 months for substantial assistance, based on § 5K1.1 factors fully present)03/23/2006
-U.S. v. Rudy Balmore Zavala Villalobos (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claim that the court employed the wrong standard in determining drug quantities at his sentencing; review of whether the indictment was fatally flawed because it failed to reference 21 U.S.C. § 841(b); analysis of whether the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), rendered 21 U.S.C. § 846 facially unconstitutional; relief under § 2255 denied; certificate of appealability denied as to all issues)09/30/2004
-U.S. v. Juan Carlos Mier-Godinez (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claim of ineffective assistance of counsel; examination of whether claim that defendant’s conviction was obtained in violation of his Fifth Amendment rights because his plea was not knowing and voluntarily made was procedurally defaulted; analysis of whether defendant procedurally defaulted on his claim that he was improperly sentenced based on facts that he did not admit at his plea hearing but that were later proved by a preponderance of the evidence at his sentencing hearing and used in calculating his sentence; relief under § 2255 denied; certificate of appealability denied as to all issues)09/29/2004
-U.S. v. Marcelino Garibay-Gomez (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel; analysis of whether defendant could challenge correctness of sentence in view of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); examination of whether claim that defendant’s Sixth Amendment right to a speedy trial was violated by delays was procedurally defaulted; analysis of whether defendant procedurally defaulted on claim that the court departed upward in sentencing him without first providing him with notice of its intent to possibly depart upward; analysis of whether defendant’s claim that the government failed to establish the amount of methamphetamine attributed to him at sentencing was procedurally defaulted; relief under § 2255 denied; certificate of appealability denied as to all issues)09/29/2004
-U.S. v. Ira Jerome Moore (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel; analysis of whether claim, that a prior conviction for burglary of a commercial building should not have qualified as a “crime of violence” under the Career Criminal Act because it did not qualify under section 4B1.1 of the United States Sentencing Guidelines, was procedurally defaulted; analysis of whether defendant could challenge correctness of sentence in view of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); relief under § 2255 denied; certificate of appealability denied as to all issues) 09/28/2004
-U.S. v. Benjamin Franklin Moore (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel; analysis of whether defendant could challenge correctness of sentence in view of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); relief under § 2255 denied; certificate of appealability denied as to all issues)09/28/2004
-U.S. v. Thomas Kosek (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel for for failing to challenge his conviction for methamphetamine as a schedule II drug, for failing to challenge Kosek being sentenced as a career offender pursuant to U.S.S.G. § 4B1.1, and for failing to seek a downward departure under Rule 35(b); relief under § 2255 denied; certificate of appealability denied as to all issues)09/28/2004
-U.S. v. Raul Sanchez (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel for failing to object to the probation report which did not indicate whether the controlled substance was l-methamphetamine or d-methamphetamine, for failing to object to the failure of the government to show the type of narcotic involved by a preponderance of the evidence as to support the base level offense, for failing to object to the testing of the Iowa Department of Public Safety since it did not determine whether the narcotic was l-methamphetamine or d-methamphetamine, for failing to object to the lack of determination of the type of methamphetamine involved, the lesser of the two types of methamphetamine should have been used to determine his base offense level; for failing to object to the firearm which was found in a closed drawer of a dresser at defendant’s residence; for failing to raise the argument that it was not unlawful for him to possess that firearm at the time of the search of his residence; for failing to argue that he was not present in the bedroom and did not have access to the firearm at the time of the search; for failing to argue that mere possession of the firearm was insufficient to sustain the firearm enhancement; for not making a request for a downward departure on the basis that defendant would be subject to deportation after the completion of his sentence; for not objecting to the probation officer’s finding that there were no other grounds for downward departure; for failing to provide a full and fair hearing on all available issues and arguments; for not appealing the dismissal of the indictment without prejudice even though the issue was preserved for appeal in his plea agreement; analysis of whether defendant could challenge correctness of sentence in view of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); relief under § 2255 denied; certificate of appealability denied as to all issues)09/27/2004
-U.S. v. Gary O'Dell (Motion under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel for failing to object to leading questions; for failing to obtain a handwriting analysis of defendant in regard to the forged cashier checks; for failing to ask for a limited instruction regarding cooperating witnesses; for being careless in the way he phrased questions to witnesses; for failing to object to coconspirator testimony; for failing to make a record regarding the advice he had given to defendant about whether to testify at trial; for not objecting to remarks made during the prosecutor’s rebuttal summation; for failing to obtain a copy of the trial transcript; for failing to understand the admissibility of polygraph examination results; for failing to seek a maximum term of imprisonment of five years on the conspiracy charge; relief under §2255 denied; certificate of appealability denied as to all issues )08/26/2004
-U.S. v. Daniel Castro (Motion under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel for failing to conduct an adequate pretrial investigation; for failing to prepare a blame shifting defense, for failing to file a timely motion to suppress, for failing to move for severance, for failing to appeal a magistrate judge’s decision to deny defendant’s motion to continue trial and extension of time to file a motion to suppress, for failing to withdraw from the case, for failing to resubmit defendant’s motion to suppress and motion to continue trial after the superseding indictment was filed against him, for failing to move to dismiss the Superseding indictment, for failing to withdraw after trial; for not raising ineffective assistance of counsel on direct appeal, for failing to request that defendant be sentenced for a schedule III controlled substance, for failing to request a minimal or minor role adjustment in his sentence; claim that defendant’s sentence was incorrect because his criminal history category was in part based on a conviction that was subsequently vacated; relief under §2255 denied; certificate of appealability denied as to all issues)08/04/2004
-United States v. Howard Harp (28 U.S.C. §2255; claim of ineffective assistance of counsel based on counsel’s alleged refusal to file timely appeal; failure to advise defendant to plead only to drug charges; failure to advise defendant to pursue trial on only gun possession charge; §2255 denied; certificate of appealability denied as to all issues)07/22/2004
-Hepperle v. Ault (Petition for habeas corpus relief from Iowa state court conviction under § 2254; petitioner convicted of first-degree murder for the stabbing death of a neighbor and sentenced to life imprisonment; report and recommendation prepared by magistrate judge; petitioner does not object to recommended dismissal of his Miranda claim; no plain error in magistrate’s analysis of petitioner’s Miranda claim, therefore recommendation that Miranda claim be denied is accepted; petitioner’s objection to the standard used by magistrate in analysis of petitioner’s ineffective assistance of counsel claim overruled; petitioner contends trial counsel was ineffective for proffered victim’s husband as alternate perpetrator rather than the neighborhood ‘window peeper’ who admitted to attempting to window peep at the time the crime was committed; trial counsel’s decision to offer husband as alternate perpetrator was strategic in nature, and was not unreasonable; petitioner admitted knowledge of intended trial strategy in offering victim’s husband as alleged perpetrator; trial counsel’s performance was not deficient or ineffective; petitioner could not show outcome of trial was prejudiced by trial counsel’s ; report and recommendation accepted; writ of habeas corpus denied; certificate of appealability would not issue.)06/23/2004
-United States v. Betterton (Prosecution for possessing methamphetamine, cocaine and marijuana with intent to distribute, order regarding report and recommendation concerning defendant’s motion to suppress evidence; analysis of whether the car defendant was driving was lawfully impounded pursuant to police department policy and review of whether police officers conducted a lawful inventory search of the car. )01/20/2004
-U.S. v. Elmer Taylor (Criminal prosecution for robbery affecting commerce, possession of a firearm in furtherance of a crime of violence, felon in possession of a firearm, possession of a stolen firearm, and interstate transportation of a stolen vehicle, order regarding report and recommendation concerning defendant’s motion to suppress evidence; analysis of whether defendant entered into a plea agreement knowingly and intelligently, whether deputy could lawfully stopped vehicle for failing to signal a turn, and whether defendant made a voluntary, knowing, and intelligent waiver of his right to remain silent.)01/06/2004
-United States v. Yahnke (Prosecution for “maintaining a drug establishment” in violation of 21 U.S.C. § 856; sentencing upon plea of guilty: upward departure pursuant to U.S.S.G. § 4A1.3 on the ground that the defendant’s criminal history category did not adequately reflect either “the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes,” in light of the defendant’s prior conviction for second-degree murder, parole violations not resulting in criminal charges or convictions, and other uncharged criminal conduct to which the defendant admitted)12/24/2003
-U.S. v. Ameling & Brown (Motion to suppress evidence obtained during search of motor vehicle; analysis of whether law enforcement officers had reasonable suspicion that defendants were involved in criminal activity, and thus could conduct investigatory stop of defendants’ vehicle, where officers were told that defendants had each purchased two boxes of pseudoephedrine, known to be a methamphetamine precursor, that defendants did not leave the store together and reunited in the vehicle, that defendants traveled to another store and purchased a battery, which officer believed to be another methamphetamine precursor-- ruling overturned by the Eighth Circuit Court of Appeals)12/23/2003
-United States v. Thongmy Thammavong (28 U.S.C. §2255; claim of ineffective assistance of counsel based on explanation of plea and INS hold; failure to seek safety valve; failure to request continuation of sentencing hearing to pursue safety valve; interpreters performance during proceedings; §2255 denied; certificate of appealability granted as to safety valve issue)09/04/2003
-United States. v. Nieman (Criminal prosecution for bank fraud and embezzlement; defendant’s motions to dismiss a superseding indictment for pre-indictment delay and failure to state offenses: application of the "prejudice" and "intentional delay" standard to a claim of pre-indictment delay; sufficiency of the charges in terms of allegation of the essential elements of the offense, including allegation of "intent to defraud" in bank fraud count and conduct constituting "embezzlement" or "misapplication" in embezzlement counts, and the defendant’s ability to prepare a defense or to plead acquittal or conviction as a bar to subsequent prosecution) 05/30/2003
-United States v. Nguyen (§ 2255 motion, ineffective assistance of counsel; claims his counsel failed to investigate and raise the fact that there can be no indictable conspiracy involving only the defendant and government agents and informers; claims his counsel failed to raise an entrapment defense at trial.)04/03/2003
-United States v. Mansker (Renewed motion for sanctions and post-trial motion for judgment of acquittal and post-trial motion for new trial. Defendant convicted of conspiracy to distribute methamphetamine; government failed to turn over exculpatory materials and court excluded three witnesses at trial as a sanction; on renewed motion, court affirmed its ruling that government committed a Brady and discovery rule violation, but declined defendant’s request for dismissal with prejudice as sanction, finding that exclusion of witnesses was adequate sanction; denial of motion for judgment of acquittal because testimony of government’s cooperating witnesses sufficient to convict, especially in conjunction with defendant’s own testimony, in which he testified to sharing methamphetamine with friends; and denial of motion for new trial, finding that case presented close call because sole evidence against defendant government presented was testimony of government’s 6 cooperating witnesses.)01/20/2003
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